Wednesday, June 30, 2010

Where are the Kagan Confirmation Hearing Transcripts?


During the Roberts, Alito and Sotomayor confirmation hearings, news organizations ranging from the New York Times to the Washington Post to the Los Angeles Times published daily transcripts of the hearings. This helped enormously in understanding what was going on. Like Ann Althouse, I've been unable to locate freely available transcripts of the hearings so far.

The failure to publish timely transcripts of these hearings does the public a disservice. At least one of the major news organizations should do so as a matter of course. Although video of the hearings has been available, scrolling through hours of video to find a particular passage is not an equivalent.

Portions of the transcripts are available on Westlaw, but not every citizen has free access to Westlaw.

If any readers know of links to transcripts of the hearings available to the general public, please include them in the comments section below.

Monday, June 28, 2010

McDonald: What Happens Next


Over at the New York Times, I'm participating in a discussion of "What Bolstering Gun Rights Will Mean." You can find my remarks here.

Justice Ginsburg's Sharp Tone in Christian Legal Society

Mark Tushnet

As I was reading Justice Ginsburg's opinion in Christian Legal Society, I was struck with how uncharacteristically sharp her criticisms of Justice Alito's dissent were ("Indulges in make-believe," "warped"). It's almost as if these parts of the opinion had been written by Justice Scalia. Then I got to the final footnote, saying that the dissent "impugn[s] the veracity of a distinguished legal scholar and a well respected school administrator," and I understood (I think). The scholar/administrator is Mary Kay Kane, whose scholarly field is civil procedure, one of the fields in which Justice Ginsburg labored as an academic. I assume, without any inside knowledge of this, that Justice Ginsburg has had personal contacts with former Dean Kane, and found particularly offensive the aspersions Justice Alito cast on her sworn testimony.

McDonald: More Important in Theory than in Practice


McDonald v. Chicago is a very long opinion, and quite interesting theoretically, but its practical effect is likely to be fairly small. The vast majority of states already have guarantees of a right to bear arms. The case is remanded for further proceedings. The Chicago ordinance, which bans handguns in the home, is likely to be held unconstitutional under Heller. However, the big issues really have yet to be decided. Moreover, McDonald goes out of its way to restate language in Heller suggesting that a range of traditional limits on firearms will be unaffected by an individual right to keep firearms for self-defense in the home. Since most states already apply a reasonableness test for gun regulations, and uphold many different types of gun control laws, it's likely that the federal courts will be not be much more protective. McDonald, like Heller, is a symbolic opinion more than a revolution in the practical effects of the law.

In this post, therefore, I want to discuss some of the theoretical issues in the plurality opinion by Justice Alito and the concurrence by Justice Thomas.
Read more »

Does the Bill of Rights Apply Equally to the States?

Guest Blogger

Adam Winkler

One important question raised by McDonald v. Chicago is whether a right incorporated to apply against the states limits federal, state, and local governments in precisely the same way. Justice Alito’s majority opinion, quoting Malloy v. Hogan, says that the protections in the Bill of Rights “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” In other words, any restriction on a right, no matter what government institution adopts it, should be treated the same by the courts. Fred Schauer calls this “institutional blindness”: courts ignore the identity of the governmental actor behind a law.

In fact, however, the courts often do treat laws differently depending on who’s behind the law—or at least it appears that way.
Read more »

The Free Enterprise Decision: A Symbolic Victory for the "Unitary Executive Branch" Vision of the Presidency, but of Limited Practical Consequence

Rick Pildes

In a much anticipated separation-of-powers decision, the Court today held unconstitutional a provision of the Sarbanes-Oxley Act (SOX). I view Chief Justice Roberts's opinion, for a 5-4 Court, as a symbolic victory for the "unitary executive branch" view of the Presidency, but as little more than symbolic. The decision has no practical effect at all on the Sarbanes-Oxley Act; the SEC and the Board that administers the Act will go on as before. Indeed, lost in the headlines will be the fact that the Court actually rejected all the most expansive constitutional challenges to the SEC and to SOX. It accepted only the most narrow challenge; the Court held that the SEC had to have the power to remove Board members at will, rather than being able to remove them only for "good cause" (as SOX essentially provided). And even on that score, the Court simply severed the offending provision from the law and told the SEC and the Board to get on with continuing to administer SOX. In the view of the seven former SEC Chairman I represent in this case, the decision will change nothing in the on-the-ground relationship between the SEC and the Board. The SEC already has effective power to control the Board fully; the decision will not change that reality. Congress does not have to do anything legislatively in response to the Court's decision. To those in the business community who are hostile to SOX and were hoping the decision would undercut SOX in a major way and throw the statute back into Congress's lap to reconsider -- such as, presumably, the Free Enterprise Fund itself -- the decision is a total loss.

Moreover, despite the headline of "Court holds SOX unconstitutional," the decision is also a loss on many fronts to the "unitary executive branch" view. Proponents of this view believe independent agencies are themselves unconstitutional. The challengers argued that independent agencies, such as the SEC, unlike executive departments of the government, such as the Treasury, were not "departments" within the meaning of the Constitution and hence Congress could not give independent agencies the power to appoint inferior officers. The Court unanimously rejected that view. Similarly, many of the leading proponents of the "unitary executive branch" view, including academics like Steven Calabresi and Gary Lawson, had argued that the Board was constitutional only if the President, with Senate consent, appointed the Board members -- as opposed to the current law, in which the SEC appoints the Board members. The Court unanimously rejected that position too.

The big battle over the "unitary executive branch" view has always been whether independent agencies are constitutional. To see how removed from that battle today's decision, notice the irony of where the Court ends up: to protect the President's power to control administration of the laws, an independent agency, the SEC, must have greater power to fire the people who work under it, such as Board members. The opinion has some of the most robust language in 90 years in support of the unitary executive branch view, but for now at least, the fight is really at the margins of this issue, as today's decision confirms. One way to view the decision is that unitary executive branch proponents have lost the war, over independent agencies, but the unique structure of the SEC-Board relationship provided them an opportunity to at least draw a line somewhere. But anything is possible, and if the Court majority wants to revive the larger battle at some point, the language of today's opinion could be put in service of that mission.

UPDATE: I noticed that at the Volokh blog, John Elwood has a response to the case that is very similar to mine. I agree with John's comments there.

Sunday, June 27, 2010

The Supreme Court and "Majority Opinion:" Monday's Test in the Campaign-Finance Appeal

Rick Pildes

Amidst all the other Supreme Court action that will take place on Monday, Rick Hasen notes that the Court will have to decide whether to hear an appeal in a major new campaign-finance case, Republican National Committee v. FEC. The Court's decision poses an interesting test over current popular discussion concerning how responsive the Court is to "public opinion." The case is an as-applied challenge to the McCain-Feingold law's ban on political parties soliciting and spending "soft money," including money that corporations might donate to the parties. On the one hand, if the Court is highly responsive to public opinion, one might think the Court would want to stay away from hearing this appeal on the merits, based on the enormous controversy surrounding its recent decision in Citizens United. In that case, the prediction would be a summary affirmance. On the other hand, it's difficult to believe the necessary five or more Justices would be comfortable doing so. Justices Kennedy, Scalia, and Thomas, for example, dissented on this issue in the McConnell case. Especially in light of the fact that Citizens United already overruled other parts of McConnell, there is certainly reason to think that several Justices would like to hear this issue on the merits.

There is, however, at least one other option which would permit the Court to avoid the choice. The Court could write a brief opinion indicating that it is summarily affirming the decision below, but on the ground that the challengers did not ask for McConnell to be overruled. Thus, the Court would write to affirm the rejection of an as-applied challenge to the soft-money ban, while expressly leaving open a facial challenge in the future to that ban. If the Court does decide to hear the appeal, however, that would provide some evidence that the public and political response to Citizens United would not deter the Court from jumping back into these waters right away.

Friday, June 25, 2010

The Real Issues in Viacom v. YouTube


The district court opinion in Viacom v. YouTube gives summary judgment for YouTube. It's a big win for YouTube's parent company Google.
Read more »

Thursday, June 24, 2010

The First Amendment, Direct Democracy, and the Risks of Technology: Today's Court Decision in Doe v. Reed

Rick Pildes

Today's decision in Doe v. Reed should be understood as the Court's first foray into the way changing technologies, the internet in particular, should affect the potential conflicts between democracy, the First Amendment, political participation, and privacy. And in my view, the Court's first step in this area got the matter just right; the Court established the appropriate general principles for this area, acted with a realistic awareness of the way new technologies pose new risks to constitutional values, and properly decided to leave for future cases the application of these general principles to what will inevitably be highly fact-dependent contexts.
Read more »

Wednesday, June 23, 2010

A silver lining in Holder v. Humanitarian Law Project? Terrorism is not “war”

Mary L. Dudziak

In one courtroom this week, the problem of terrorism was framed as a “war.” In another, it was more plainly a problem of national security and international relations, but not war.

The war on terror was invoked by Faisal Shahzad, the failed Times Square bomber. Upon pleading guilty in a Manhattan courtroom, he said that he was a soldier, and that “It’s a war.”

Read more »

Tuesday, June 22, 2010

RFID Tags for Nurses, then Everybody?

Frank Pasquale

Survselfhelplittle.jpgThe recent City of Ontario v. Quon decision has had a mixed reception among privacy advocates. Though many are disappointed that employees' privacy rights have once again been narrowed, some have discerned helpful dicta in the case. However, I worry that, whatever the drift of thought among swing justices, economic imperatives and cultural shifts will mean a lot less privacy in the workplace of the future. Health care in particular offers a few interesting bellwethers.

As an opinion piece by Theresa Brown explains, maintaining proper staffing levels in hospitals is becoming increasingly difficult. Surveillance systems are offering one way to address the problem; work can be performed more intensively and efficiently as it is recorded and studied. But such monitoring has many troubling implications, according to Torin Monahan (in his excellent book, Surveillance in a Time of Insecurity):

The tracking of people [via Radio Frequency Identification Tags] represents a . . . mechanism of surveillance and social control in hospital settings. This includes the tagging of patients and hospital staff. . . . When administrators demand the tagging of nurses themselves, the level of surveillance can become oppressive. . . . [because nurses face] labor intensification, job insecurity, undesired scrutiny, and privacy loss. . . . To date, such efforts at top-down micromanagement of staff by means of RFID have met with resistance. . . . One desired feature for nurses and others is an 'off' switch on each RFID badge so that they can take breaks without subjecting themselves to remote tracking. (122)

Like the "nannycam" employed by many a wary parent, the nurse-cam may be seen as a way to protect the vulnerable. It may also increase the accuracy of evidence in malpractice cases. On the other hand, inserting a tireless electronic eye to monitor what is already an extremely stressful job may create many unintended consequences, or deter people from going into nursing altogether. Even advocates of pervasive surveillance recognize these difficulties.

The increasing pressure to monitor what happens inside hospitals reminds me of a recent article by Thomas Goetz in Wired (no link yet) on Google co-founder Sergey Brin's quest to find a cure for Parkinson's disease. As Goetz describes it, a new form of "high-speed science" depends on rapid accumulation of as much data as possible:

In Brin's way of thinking, each of our lives is a potential contribution to scientific insight. We all go about our days, making choices, eating things, taking medications, doing things---generating what is inelegantly called data exhaust. . . . With contemporary computing power, that data can be tracked and analyzed. "Any experience that we have or drug that we may take, all those things are individual pieces of information. Individually, they're worthless, they're anecdotal. But taken together they can be very powerful." In computer science, the process of mining such large data sets for useful associations is known as a market-basket analysis.

Goetz has promoted this as a new way to "do science in the petabyte age."
Read more »

Why the Supreme Court's Decision in Rent-a-Center v. Jackson Matters

David Gans

Yesterday, the Supreme Court handed down its ruling in Rent-a-Center v. Jackson to a near-deafening silence. The case generated very little media coverage, drowned out by continuing coverage of the oil spill and coverage of other rulings by the Court and limited, perhaps, by the density of Justice Scalia’s majority opinion, which seems designed to make the case appear complicated, technical and narrow. But Rent-a-Center is extremely important, and its holding will likely affect thousands of Americans, another ruling in a long campaign by corporations to supplant judicial review with arbitration. This post explains why Rent-a-Center matters.

Read more »

Monday, June 21, 2010

The Supreme Court Calls for Less Speech

Mark Graber

Cross posted at Quoth the Raven

The Supreme Court has decided that making speech cheaper increases investment in violence. Chief Justice Roberts in Holder v. Humanitarian Law Project claimed that non-profit groups that instructed terrorist organizations on how to pursue goals peacefully enabled those organizations to divert more of their resources to terrorist activities. This is a remarkable perversion of traditional free speech doctrine. Conventional First Amendment wisdom treats speech as a preferred substitute for violence. Policies that make speech cheaper (i.e., not punishing speakers) supposedly make individuals and groups more likely to speak than maim. The Roberts Court apparently disagrees. A 6-3 majority thinks human rights organizations that provide material assistance to humanitarian activities sponsored by terrorist organizations permit those terrorists to shift more of their scarce resources into murderous activities. Apparently the justices believe terrorists organizations operate on fixed budgetary constraints. Fifty percent for bombs; fifty percent to feed the starving. If this view is correct, then by providing a terrorist organization with material to make bombs, I would cause that group to shift more of their existing budget into humanitarian activities.

Consider whether Humanitarian Law Project permits Congress to ban organizations from handing out Shakespeare plays to teenagers. Most teenagers have a budget. They spent a certain percentage of their budget on innocent activities and a certain percentage of their money on less than innocent activities. If Chief Justice Roberts is correct, giving Shakespeare to troubled teenagers is likely to cause teenagers to divert money that might have gone to innocent activities (buying books) to less than innocent activities (buying drugs). At least Congress could make this decision. If Congress has a compelling interest in stopping the drug trade, then Congress has the power to prohibit people from giving books to teenagers. Such as the logic of Humanitarian Law Project.

Traditional free speech doctrine encourages efforts to substitute speech for violence. Just we think giving teenagers Shakespeare might encourage them to spend more time reading classic literature, so making speech cheap is more likely to cause organizations to pursue more legitimate means of achieving their goals. Congress until this week could regulate speech only in cases of incitement to imminent lawless violence. When terrorists are involved, advocacy of imminent lawful behavior is also beyond the pale of constitutional protection.

The 2010 Term, the Spending Clause, and State Sovereign Immunity

Steve Vladeck

Understandably lost in the other news coming out of the Supreme Court this morning was its decision to grant certiorari in Virginia Office for Protection & Advocacy v. Reinhard, a case coming out of the Fourth Circuit. Specifically, Reinhard raises whether state-created agencies (created to enforce the state's compliance with a particular federal statute in exchange for federal funds) are allowed to invoke the Ex parte Young "exception" to the Eleventh Amendment in suits against states for prospective relief. The Fourth Circuit, in an opinion by Judge Wilkinson, held that they could not. [Full disclosure: I co-authored an amicus brief in support of certiorari in Reinhard.]

As I've noted previously, the grant in Reinhard was all-but foreordained. Even if it wasn't enough that the SG (whose views the Court solicited) recommended the grant, the Seventh Circuit effectively sealed the deal in late April, when, sitting en banc, it unanimously disagreed with the Fourth Circuit's analysis, holding in a closely analogous case that there was no reason why the identity of the plaintiffs should matter under Ex parte Young.

Whatever one's views of the merits of this issue, Reinhard is now the second major state sovereign immunity case on the Court's docket for the 2010 Term; last month, the Court granted certiorari in Sossamon v. Texas, which raises whether the Religious Land Use and Institutionalized Persons Act (RLUIPA) validly subjects states (and state officials in both their official and individual capacities) to damages liability. The argument there is not that RLUIPA abrogates the state's sovereign immunity, but rather that states, in accepting funds under RLUIPA, are voluntarily waiving their sovereign immunity.
Together, then, Reinhard and Sossamon may well make the 2010 Term the bellwether for the Roberts Court when it comes to either following or retreating from the Rehnquist Court in one of the latter's more controversial areas of jurisprudence. Indeed, the Supreme Court's last significant decision in this area was one of the last cases in which Justice O'Connor participated--Central Virginia Community College v. Katz in 2006. There, a 5-4 Court (with O'Connor surprisingly in the majority) held that Congress could abrogate state sovereign immunity pursuant to the Bankruptcy Clause of Article I, even though the entire foundation of the Seminole Tribe line of cases was that Congress could only subject non-consenting states to suit pursuant to the enforcement clauses of the Reconstruction amendments (and not pursuant to any of its Article I powers--including, one would think, the Bankruptcy Clause). One may well suspect that Justice Alito does not hold his predecessor's views on this issue (or, at least, her latest views as manifested in Katz), but, in four Terms, the issue has yet to squarely arise (assuming one doesn't count Chief Justice Roberts's dissent earlier this month in Alabama v. North Carolina).

It is definitely worth debating these issues on the merits, especially in the unique context of the Spending Clause, where, in my view, there is a fairly strong argument that (so long as the regulation survives South Dakota v. Dole), the states really are voluntarily waiving their immunity. But for the moment, and for those who can't wait to look forward to the Court's upcoming Term (perhaps as a distraction from what's likely to come in the next 10 days), it seemed worth noting the atmospherics, too. I suspect that it's still too early to decide whether the Roberts Court is as deeply committed to federalism as its predecessors, but if these cases are any guide (Sossamon, especially), we should know a lot more by this time next year.

Today's Court Decision on The Material Support Statute: Deference to Executive-Legislative Consensus on Terrorism Policies

Rick Pildes

In post 9/11 debates about terrorism law and policy, many constitutional scholars, myself included, argued that the inevitably difficult policy and legal choices involved would be put on the surest constitutional footing if Congress and the Executive Branch jointly reached consensus on the content of those policies. Unfortunately, on many major policy choices after 9/11, the Executive Branch did not seek congressional involvement and Congress showed no inclination on its own to act. Today's decision in Holder v. Humanitarian Law Project, however, involves one area in which Congress and the Executive Branch worked together, over many years, to create a legal regime that makes it a crime to "knowingly provid[e] material support or resources to a foreign terrorist organization," and that fills in the definitional details. And the 6-3 decision powerfully confirms that the Court, as it has throughout its history, will give a good deal of weight to factual findings and informed judgments of the other two branches, when they act in concert.

This deference theme is, indeed, the central one that runs throughout the Court's analysis of the specific statutory terms and First Amendment issues. And it has implications for all other terrorism policies issues, including issues Congress has not confronted in all these years, such as how to structure the ongoing detention regime that currently exists at GTMO, or potential issues that might be looming, such as how the Court might respond were Congress to define the boundaries of the "public safety" exception to Miranda.

" At bottom, plaintiffs simply disagree with the consid­ered judgment of Congress and the Executive that provid­ing material support to a designated foreign terrorist organization—even seemingly benign support—bolsters the terrorist activities of that organization. That judg­ment, however, is entitled to significant weight, and we have persuasive evidence before us to sustain it. Given the sensitive interests in national security and foreign affairs at stake, the political branches have adequately substantiated their determination that, to serve the Gov­ernment’s interest in preventing terrorism, it was neces­sary to prohibit providing material support in the form of training, expert advice, personnel, and services to foreign terrorist groups, even if the supporters meant to promote only the groups’ nonviolent ends."

My claim here is a descriptive one: over the course of constitutional history, the Court has been most accepting of national security policies that arguably touch about constitutional rights when those policies reflect sustained support and factfinding consensus among the political branches. Of course, the Court will not blindly defer, especially in the modern era, as cases like Boumediene indicate. And there will often be complaints, as in today's dissent, that the Court has been too accepting of legislative-executive policies. But the fact remains that, descriptively at least, the Court has tended to gravitate toward being most accepting of national-security policies that have come with the imprimatur of joint legislative-executive approval, as in today's decision.

The Gitmo Task Force Report

Deborah Pearlstein

Cross-posted at Opinio Juris

Nothing like summertime to catch up on a little light reading I spent too little time with during the semester. So especially after being re-energized at this year’s American Constitution Society Convention (where I did a panel with Gene Fidell and others far more interesting than I on military commissions vs. federal courts, and got treated to a Cory Booker barn-burner of a “do something” speech), herewith my first catching-up blog.

If you read any new document this summer in the ongoing detention-interrogation-trial saga that is Guantanamo Bay, make it the (relatively) recently released final report of the Guantanamo Review Task Force. This was the inter-agency body established by Executive Order a few days after President Obama took office and charged with reviewing (which required first collecting) all of the government’s existing information about the then-current residents of Guantanamo Bay and making recommendations for their disposition. The report is available here and was the subject of a few articles (in the Times and Wash Post),though my sense is that it was largely overlooked when it was released. The report itself is a concise 32 pages, and contains (among other instructive passages), the most detailed official public description (beginning p. 22) I’ve seen explaining why the executive branch has determined that 48 detainees at Gitmo should still be detained but cannot be prosecuted in either an Article III or military commission court.

Read more »

Friday, June 18, 2010

Originalism and Witchcraft

Mark Graber

This squip is cross-posted at Quoth the Raven, the new University of Maryland Law Faculty blog

Whether states may constitutionally punish witchcraft is an issue that should receive more legal attention. The Supreme Court has cited Blackstone as a legal authority in 22 cases over the past three years. This week, both Justice Scalia and Justice Kennedy referred to Blackstone when discussing judicial takings in Stop the Beach Renourishment v. Florida Department of Environmental Protection. Blackstone on witchcraft is quite clear. His Commentaries on the Law of England defends state power to prevent persons from using the occult to harm others. “A SIXTH species of offences against God and religion,” he declared, “is . . . the offence of witchcraft. . . . To deny the possibility, nay, actual existence, of witchcraft and sorcery, is at once flatly to contradict the revealed word of God.” Blackstone then indicates such prosecutions are a bad idea. Nevertheless, as Felix Frankfurter repeatedly reminded Americans, lots of bad policies are constitutionally permitted.

Consider some fairly standard rhetorical moves that might be made to justify a state law punishing by death the sorcerers among us. To begin with, perhaps the word of Blackstone should be sufficient. To the best of my knowledge, no one in the eighteenth century claimed that state constitutional provisions on freedom of conscience and establishment barred prosecutions for witchcraft. Following Justice Thomas, if we are prepared to overrule 200 years of precedent contrary to original intentions, we ought to seriously getting rid of those unfortunate precedents that might prevent law enforcement officials from shutting down the Wicked Witch of the West.

Read more »

Law professors' brief defending the health care act


I'm at the American Constitution Society conference in Washington, D.C. today; I'm appearing in a panel with Randy Barnett debating the constitutionality of health care reform.

Yesterday Gillian Metzger (Columbia), Trevor Morrison (Columbia), Andrew Pincus (Mayer Brown) and I have filed an amicus brief in Virginia v. Sebelius, the Virginia litigation that is challenging the Patient Protection and Affordable Care Act. We argue that the health care act's individual mandate is a constitutional exercise of Congress's powers to tax and spend for the general welfare.

Wednesday, June 16, 2010

Kosman's The Buyout of America

Frank Pasquale

As lawmakers squabble over the "carried interest" tax rate, it's nice to find an accessible overview of some of the economic activity they're discussing. I recently read Josh Kosman's book The Buyout of America: How Private Equity Will Cause the Next Great Credit Crisis, and I highly recommend it to our readers. Kosman unravels the complex financial maneuvers behind marquee private equity firms which bought "more than three thousand American companies from 2000-2008." He describes in detail how they resist transparency (164) and "hurt their businesses competitively, limit their growth, cut jobs without reinvesting the savings, and generate mediocre returns" (195). The recipe for high earnings is simple: the firms "get large fees up front and are largely divorced from their results if their transactions fail" (195).

Like Kwak and Johnson's account in 13 Bankers, Kosman offers a political economy account of private equity's favored treatment by government. As he notes,

[F]our of the past eight Treasury Secretaries joined the PE industry . . . . and they have significant influence in Washington. President Bill Clinton, and both President Bushes, have also advised PE firms or worked for their companies. . . . KKR retained former Democratic House majority leader Richard Gephardt as a lobbyist and hired former RNC chairman Kenneth Mehlman as head of global public affairs. (196)

Having analyzed a wide array of buyouts, Kosman concludes that "PE firms manage their businesses to satisfy short-term greed, not for long-term survival" (51). It's precisely this mentality that FDIC Chair Sheila Bair indicted in her testimony before the FCIC:
Read more »

How radical is the Texas State Board of Education?

Sandy Levinson

David Williams, who teaches political science at University of Wisconsin, Stevens Point, published a quite remarkable op-ed in the Daily Texan--he received his Ph.D. from the University of Texas several years ago--on some of the implications of the seeming recent endorsement by the Texas State Board of Education of such thinkers as Thomas Aquinas, Montisquieu, and Voltaire (not to mention Rousseau, on whom David is a specialist. Consider only Aquinas, who wrote that "business, absolutely speaking, is wicked, since it does not essentially signify a worthy or necessary objective," but instead, when absolutized, is simply a testament to the deadly sin known as greed or the lust for profit. (Can you spell BP?) So I look forward to Texas students being asked, on a future final exam, about how one can escape (assuming that is possible at all) the "wickedness" that is attached to the standard economist's view of business, by which, as if by magic, the public benefits from private vice (i.e., the lust for profit? Or, if one can indeed distinguish between private vice and public benefit with regard to business, then why stop there? Are we indeed living within a highly relativized, or at least far more morally complex, universe than we might hope is the case? Was the Texas State Board snookered by ostensible conservatives in embracing someone like St. Thomas? Or the State Board expect young Texans to become proficient in debating the intricacies of Thomistic argument (and the arguments of the other philosophers mentioned)?

The Dialectic does indeed work in strange and mysterious ways, including the hyper-conservatives on the Texas Board of Education seving as the agents for a radical critique of the central commitments of the modern Right.

Holland v. Florida and the Equity of the Writ

Steve Vladeck

Most media reports and early commentary on Monday’s Supreme Court decision in Holland v. Florida have focused (rightly, methinks) on the atmospherics—on the Court once again interfering with a capital sentence in a state court; on the slow-but-steady movement to the center in the Court’s jurisprudence with regard to professional standards of conduct in capital habeas cases; even on the surprising silence of the Chief Justice, the only one of the four Justices to Justice Kennedy’s right who joined the majority opinion without comment.

Lost in these discussions, though, is perhaps the far more interesting (and potentially more significant) thread underlying the holding in Holland—that equitable tolling is, and should be, generally available in post-conviction habeas cases under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). To be sure, the Justices differed somewhat (as lower courts have) over what would be an appropriate case for equitable tolling, but it’s fairly significant that, other than Justices Scalia and Thomas, the Court had no difficulty in applying a principle grounded in equity to the statutory codification of a common-law writ.

Thus, in discussing the applicability of the normal presumption in favor of equitable tolling, Justice Breyer wrote for the Court that, “In the case of AEDPA, the presumption’s strength is reinforced by the fact that equitable principles have traditionally governed the substantive law of habeas corpus, for we will not construe a statute to displace courts’ traditional equitable authority absent the clearest command.” [citations and quotation marks omitted]

What’s telling about this passage is not the notion that “equitable principles have traditionally governed the substantive law of habeas corpus”; that much is clearly true, even if it is (at least superficially) somewhat counterintuitive. As an amicus brief filed by habeas historians argued, it was well established by 1789 that habeas practice in England had expressly incorporated a host of equitable features into both the statutory and common-law forms of the writ, recognizing the uniqueness of the Great Writ and the need to maximize judicial flexibility. The question Holland really presented was whether those equitable principles survived AEDPA, and the Court unhesitatingly concluded that they did:

When Congress codified new rules governing this previously judicially managed area of law, it did so without losing sight of the fact that the writ of habeas corpus plays a vital role in protecting constitutional rights. It did not seek to end every possible delay at all costs. The importance of the Great Writ, the only writ explicitly protected by the Constitution, along with congressional efforts to harmonize the new statute with prior law, counsels hesitancy before interpreting AEDPA’s statutory silence as indicating a congressional intent to close courthouse doors that a strong equitable claim would ordinarily keep open.

Read more »

Tuesday, June 15, 2010

Secrecy & the Spill

Frank Pasquale

I have tried to give the Obama Administration the benefit of the doubt during the Gulf/BP oil disaster. There was a "grand ole party" at Interior for at least eight years. Many Republicans in Congress would have tried to block nominees for Interior who were committed to environmentalism. But the more I read about the controversy, the harder it gets to excuse current players for their actions. Consider just one issue: the use of dispersants in response to the spill.

Read more »

Monday, June 14, 2010

The Roberts Court and the Unitary Executive Branch View of the Presidency: When Will We Know?

Rick Pildes

One of the longest outstanding cases from this Term of the Court is the constitutional challenge, based on separation of powers grounds, to the Sarbanes-Oxley Act. As I've noted before, the case raises a host of fundamental questions about how much power the President has to have, constitutionally, over the organization of administrative agencies. At bottom, these questions reflect longstanding debates over what's known as the unitary executive branch theory of the Presidency, and it's the first major test of how the Roberts Court is going to view these issues. The case is also the most important in twenty years, since Morrison v. Olson upheld the Independent Counsel Act, on these general issues. When Congress enacted the statute, it was advised by constitutional and administrative law experts -- including by Elena Kagan, then Dean of Harvard Law School -- that the structure of SOX was constitutional. The lower courts agreed: the District Court upheld the Act, as did the 2-1 panel of the DC Circuit (and a 5-4 vote of that court denied rehearing en banc on the case).

If the opinion comes down today, the immediate question will of course be whether the Court holds SOX constitutional. But if it does not, I will be looking at a couple key questions. The challenge presents extremely broad and very narrow basis on which SOX is claimed to be unconstitutional. More than in most cases, the basis on which the Court, if it finds the Act unconstitutional, reaches its conclusion will be of great consequence. Second, will the Court's decision require Congress to revisit SOX, which will throw yet another significant policy issue onto Congress's plate? Or will any constitutional problem in the statute, if the Court finds one, be cured by the Court itself in its opinion -- if the Court, for example, finds that it can just sever any offensive provision? Third, how will the decision likely effect the current legislative plans, as part of the financial reform legislation, to put a new Consumer Financial Protection Agency inside the Federal Reserve Board? There could be direct implications for that important question.

Disclosure: As I've noted before, I am not a disinterested observer in this case. I filed an amicus brief on behalf of seven former SEC Chairmen defending the constitutionality of the Act.

Ode to Lifecycle Investing

Ian Ayres

Crosspost from Freakonomics:

I’ve been posting substantively about my new book, Lifecycle Investing (for example, here and here and here). But in a lighter vein, Barry and I have coauthored our very first poem about the advantages of borrowing money to invest for retirement when you are young. With some trepidation, I share the poem with you now:

There once was a young man from Rome
who went out and purchased our tome.
He learned to invest,
and now can attest
that loans are not just for the home.

This explains why there are not more coauthored poems.

You can learn more about our leveraged lifecycle strategy in these video FAQs:

Where did the idea come from?

What’s in it for me?

Why do we need this book today?

How much does it cost to buy on margin?

Why stop at a 2-1 ratio?

What’s wrong with dollar cost averaging?

Why is your future savings like a bond?

What’s wrong with target-date funds?

How does Social Security fit into the picture?

I’m over forty years old. What can I do now?

Barack Obama, Reluctant Demagogue


At the beginning of the Obama Administration Rahm Emmanuel was famously quoted as saying that you never want to let a crisis to go to waste. Never letting a crisis go to waste, however, creates one of the most important temptations-- and dangers-- of the modern Presidency: the tendency to turn to government by emergency as a means of ordinary politics. Government by emergency means characterizing situations as emergencies in order to shore up constituencies, discomfit opponents, gain extra powers, and generally get things done.

Government by emergency however, is like riding the proverbial tiger: if the public tires of the crisis, loses focus or no longer believes in the emergency as the President has explained it, the President has to come up with new emergencies to keep his political momentum going. This leads to the danger of Presidential Ponzi schemes, where each new emergency pays off the political debts of the previous one.

What is so remarkable about the Obama Presidency is that following the initial use of emergency politics to justify the stimulus Obama has largely refrained from invoking the politics of emergency. He did not do so in the health care bill. He has not done so in his terrorism policies (which are in many ways a continuation of George W. Bush's second term), and he has not done so in the recent crisis created by the oil spill in the Gulf. Obama has not used the occasion of the oil spill to seize the public's imagination and gain political advantages for possible goals like climate change legislation, energy legislation, environmental protection, or a second stimulus bill that would focus on energy, infrastructure, and cleanup.

To be sure, there appears to be very little that the President can actually do with respect to the Gulf Oil spill, but the point of the politics of emergency is to use the crisis to structure political realities, put opponents at a disadvantage and push for other things that the President would like to do. Many other politicians would have quickly found ways to frame reality and use the situation politically to their advantage; just as many, one suspects, would have immediately used the situation to demagogue to their heart's content. Certainly one cannot imagine a White House dominated by Karl Rove hesitating for a moment to use a crisis like the oil spill on behalf of President Bush's policies and to frame political realities to undermine if not silence opposition. (What the oil spill shows is that we need more tax cuts!) To be sure, Rove might have faced a much trickier problem than he did after 9/11 given the nature of the crisis and the Administration's ties to energy producers; but imagine if you will a left-wing version of Rove, as devoted to the Democrats' agenda (including environmental reforms) as Rove has been to the Republicans'.

Obama, at least so far, has largely refrained from the sort of tactics Rove and company delighted in. If anything, his reluctance to use the present crisis to his political advantage-- and to emphasize in various ways how little there is that one can do other than be patient-- has led the press (and his political opponents) to criticize him for not being more decisive, for not exercising more leadership, for not doing more to "kick ass," for not being more emotional, expressive, and bellicose, and so on.

These complaints about Obama's failure to-- in effect--engage in blatant use of the crisis to his own political advantage are a pretty amazing state of affairs. By now the American public and the American press have become so inured to (addicted to?) government by emergency that they seem to expect it from their leaders. In short, what the public and the press seem to want is presidents who will never let a crisis go to waste, and indeed, if there is no genuine crisis, will literally make one up as they go along.

In one sense it is admirable that Obama has been so reluctant to demagogue the crisis. (You can just imagine the things that he could have done to stoke up public resentment against oil companies, corporations, his Republican adversaries, and so on). But in another sense, it is a sad commentary on American politics that his failure to do so looks increasingly naive and foolish. Americans, it seems, want their Presidents to use crises to lead them. They like the politics of emergency, or at the very least, it is the politics that they have become used to. In the same way, much of the press views manipulating emergencies, as well as Clintonian "feel your pain" maneuvers, as precisely what bold and effective leadership consists in, at least in the twenty-first century. George W. Bush's finest hour, it seems, was when he stood at the debris at the World Trade Center, grabbed a bullhorn, and started talking about doing something. The fact that doing something eventually meant attacking Iraq-- which had no connection to the 9/11 attacks-- is beside the point, or perhaps more correctly, using emergency to justify policies you'd like to do anyway is the point.

I feel genuinely ambivalent about even suggesting that Obama should act a bit more like George Bush and Karl Rove would have in a similar situation. But Obama, who has proven himself a quintessential realist and accommodator, must somehow learn to accommodate the public's and the press's expectations of the modern Presidency, expectations that, I fear, are increasingly not in the best interest of the Republic.

Sunday, June 13, 2010

Wake Up, Fellow Law Professors, to the Casualties of Our Enterprise

Brian Tamanaha

It’s grim reading. The observations are raw, bitter, and filled with despair. It is easier to avert our eyes and carry on with our pursuits. But please, take a few moments and force yourself to look at Third Tier Reality, Esq. Never, Exposing the Law School Scam, Jobless Juris Doctor, Temporary Attorney: The Sweatshop Edition, and linked sites. Read the posts and the comments. These sites are proliferating, with thousands of hits.

Look past the occasional vulgarity and disgusting pictures. Don’t dismiss the posters as whiners. To a person they accept responsibility for their poor decisions. But they make a strong case that something is deeply wrong with law schools.

Their complaint is that non-elite law schools are selling a fraudulent bill of goods. Law schools advertise deceptively high rates of employment and misleading income figures. Many graduates can’t get jobs. Many graduates end up as temp attorneys working for $15 to $20 dollars an hour on two week gigs, with no benefits. The luckier graduates land jobs in government or small firms for maybe $45,000, with limited prospects for improvement. A handful of lottery winners score big firm jobs.

And for the opportunity to enter a saturated legal market with long odds against them, the tens of thousands newly minted lawyers who graduate each year from non-elite schools will have paid around $150,000 in tuition and living expenses, and given up three years of income. Many leave law school with well over $100,000 in non-dischargeable debt, obligated to pay $1,000 a month for thirty years.

This dismal situation was not created by the current recession—which merely spread the pain up the chain into the lower reaches of elite schools. This has been going on for years.

The law graduates posting on these sites know the score. They know that law schools pad their employment figures—96% employed—by counting as “employed” any job at all, legal or non-legal, including part time jobs, including unemployed graduates hired by the school as research assistants (or by excluding unemployed graduates “not currently seeking” a job, or by excluding graduates who do not supply employment information). They know that the gaudy salary numbers advertised on the career services page—“average starting salary $125,000 private full time employment”—are actually calculated based upon only about 25% of the graduating class (although you can’t easily figure this out from the information provided by the schools). They know all this because they know of too many classmates who didn’t get jobs or who got low paying jobs—the numbers don’t jibe with their first hand knowledge.

They know the score now. But they didn’t know it when they first applied to law school. They bought into the numbers provided by law schools. The mission of these sites is to educate, to warn away, the incoming crop of prospective law students—to save them from becoming victims of the law school scam.

Wait a minute, we protest.

Law professors are not scammers. We advance the rule of law and justice. We promote efficient legal institutions. We develop legal knowledge and knowledge about law for the good of society. We are the conscience of the legal profession. Indeed, we made a financial sacrifice to become academics when we could have earned more money as practicing lawyers.

The students made their choices. They should have done more research. They should have thought more carefully about the consequences of taking on so much debt. It was their foolish over-optimism to think they would place among the top 10% of the class and land the scarce corporate law jobs. They should have known better. (If the numbers on our website are misleading it’s the Administration’s fault; and we don’t set the high tuition.) Don’t blame us.

It is their dream to become a lawyer—we provide them with the opportunity and what they make of it is up to them. Besides, a law degree is valuable even if you don’t get a job as a lawyer. It improves your reasoning ability. It opens all kinds of doors.

When annual tuition was $10,000 to $15,000, these rationalizations had enough truth, or at least plausibility, to hold up. When annual tuition reaches $30,000 to $40,0000, however, it begins to sound hollow. Students at many law schools are putting out a huge amount of money for meager opportunities.

What can we do? As a start, we can provide prospective students with straightforward information about the employment numbers of recent graduates. It is open knowledge that many law schools present employment information in a misleading fashion, or don’t disclose it at all. This lack of candor on the part of law schools is itself a telling indication that there is something problematic about the product we are selling to prospective students.

More crucially, law schools must shrink the number of graduates, and must hold the line on tuition increases. (The fact that many students get scholarships is no answer because it simply means that some students, those paying full fare—often the students with the worst prospects—are subsidizing others.) This will be painful: smaller raises (perhaps even salary reductions), smaller administrations, smaller faculties, more teaching, less money for research, travel, and conferences.

The longer law schools delay in undertaking these measures, the more casualties there will be. At some point, law professors can no longer disclaim responsibility for the harmful consequences of this enterprise. (These comments are not meant to point fingers at others—I too want to earn as much as I can, with lots of time for research, knowing that this is paid for by students.)

Professors at elite law schools might think this has nothing to do with them because their graduates are getting opportunities that justify the cost. In narrow terms this might be correct. But the current contraction of the legal market has spared no one (except law schools!), so their graduates are not immune. Their graduates too are burdened by massive debt.

Law school tuition has tripled in just 15 years. Annual tuition at Yale, Columbia, and Berkeley will likely top $50,000 by next year. Add $20,000 per year in living expenses, and the total cost of becoming a lawyer at these institutions will be $210,000. (That’s not counting the cost of an undergraduate degree.) Other law schools are not far behind (New York Law School projects an annual cost of $67,615).

The negative consequences for individuals and for society of the extraordinary price of entry to the legal profession will become more apparent over time. And it all happened under our watch.

Friday, June 11, 2010

Asymmetric Penalties for the Double Technical

Ian Ayres

Crosspost from Freakonomics:

In Freakonomics, Levitt and Dubner pointed out that asymmetries in payoffs could lead to collusion in sumo wrestling. But in the current NBA Finals, there is a different kind of asymmetry in payoffs that should lead the Lakers to try to have their own players called for technical fouls. Specifically, the Lakers should try to instigate double technical fouls.

I have been a bit surprised that Lakers coach Phil Jackson hasn’t had his center, Andrew Bynum, try to get in the face of Celtics center Kendrick Perkins and start a clenching and shoving match.

Double technicals are routinely awarded to both players involved in such an altercation early in a game, regardless of who instigated the altercation. (An example occurred in the first game when the refs called double techicals on Ron Artest and Paul Pierce.)

Double technicals for Bynum and Perkins would be disproportionately costly for the Celtics because:

Celtics center Kendrick Perkins is on the threshold of a one-game suspension after accruing six technicals — five of which are of the double-technical variety (two opposing players being called for technicals on the same play) . . .

The same tactic might also pay Laker dividends with respect to the Celtics bigs, Rasheed Wallace (who now has five technicals) and Kevin Garnett (who has four). It’s not impossible to believe that with a little Laker help, these Celtics could be double-T’d into suspension.

In the second game, the referees in one sequence showed a reluctance to call double technicals involving Perkins. Still the instigation strategy seems like a risk worth taking. At worst, one of the Lakers would be called for a solo T and the Celtics would get to shoot a free throw. A 50% chance of that bad outcome might be worth a 50% chance of a suspension for the Celtics center.

The rationality of trying to get technical fouls called on your own team is an example of what Steve Salop and David Sheffman call “raising rivals’ costs.” Sometimes it makes sense to increase your own cost of production, if you can raise the cost of your rival’s even more.

Tuesday, June 08, 2010

Copyright: The Elephant in the Middle of the Glee Club

Guest Blogger

Christina Mulligan

The fictional high school chorus at the center of Fox’s Glee has a huge problem — nearly a million dollars in potential legal liability. For a show that regularly tackles thorny issues like teen pregnancy and alcohol abuse, it’s surprising that a million dollars worth of lawbreaking would go unmentioned. But it does, and week after week, those zany Glee kids rack up the potential to pay higher and higher fines.

In one recent episode, the AV Club helps cheerleading coach Sue Sylvester film a near-exact copy of Madonna’s Vogue music video (the real-life fine for copying Madonna’s original? up to $150,000). Just a few episodes later, a video of Sue dancing to Olivia Newton-John’s 1981 hit Physical is posted online (damages for recording the entirety of Physical on Sue’s camcorder: up to $300,000). And let’s not forget the glee club’s many mash-ups — songs created by mixing together two other musical pieces. Each mash-up is a “preparation of a derivative work” of the original two songs’ compositions – an action for which there is no compulsory license available, meaning (in plain English) that if the Glee kids were a real group of teenagers, they could not feasibly ask for — or hope to get — the copyright permissions they would need to make their songs, and their actions, legal under copyright law. Punishment for making each mash-up? Up to another $150,000 — times two.

The absence of any mention of copyright law in Glee illustrates a painful tension in American culture. While copyright holders assert that copyright violators are “stealing” their “property,” people everywhere are remixing and recreating artistic works for the very same reasons the Glee kids do — to learn about themselves, to become better musicians, to build relationships with friends, and to pay homage to the artists who came before them. Glee’s protagonists — and the writers who created them — see so little wrong with this behavior that the word ‘copyright’ is never even uttered.

You might be tempted to assume that this tension isn’t a big deal because copyright holders won’t go after creative kids or amateurs. But they do: In the 1990s, the American Society of Composers, Authors and Publishers (ASCAP) asked members of the American Camping Association, including Girl Scout troops,to pay royalties for singing copyrighted songs at camp. In 2004, the Beatles’ copyright holders tried to prevent the release of The Grey Album – a mash-up of Jay-Z’s Black Album and the Beatles’ White Album — and only gave up after massive civil disobedience resulted in the album’s widespread distribution. Copyright holders even routinely demand that YouTube remove videos of kids dancing to popular music. While few copyright cases go to trial, copyright holders like the Recording Industry Association of America (RIAA) don’t hesitate to seek stratospheric damage awards when they do, as in the Jammie Thomas-Rasset filesharing case.

These worlds don’t match. Both Glee and the RIAA can’t be right. It’s hard to imagine glee club coach Will Schuester giving his students a tough speech on how they can’t do mash-ups anymore because of copyright law (but if he did, it might make people rethink the law). Instead, copyright violations are rewarded in Glee — after Sue’s Physical video goes viral, Olivia Newton-John contacts Sue so they can film a new, improved video together.

So what should you do in real life if you and your friends, inspired by Glee, want to make a mash-up, or a new music video for a popular song? Should you just leave this creativity to the professionals, or should you become dirty, rotten copyright violators?

Current law favors copyright holders. But morally, there’s nothing wrong with singing your heart out. Remixing isn’t stealing, and copyright isn’t property. Copyright is a privilege — actually six specific privileges — granted by the government. Back in 1834, the Supreme Court decided in Wheaton v. Peters that copyrights weren’t “property” in the traditional sense of the word, but rather entitlements the government chose to create for instrumental reasons. The scope and nature of copyright protection are policy choices — choices that have grown to favor the interests of established, rent-seeking businesses instead of the public in general.

The Constitution allows Congress to pass copyright laws to “promote the progress of science” — a word often used in the 18th century to mean “knowledge”. The stated purpose of the original 1790 copyright statute was to encourage learning. So you tell me — what promotes knowledge and learning: letting people rearrange music and learn to use a video camera, or threatening new artists with $150,000 fines?

Defenders of modern copyright law will argue Congress has struck “the right balance” between copyright holders’ interests and the public good. They’ll suggest the current law is an appropriate compromise among interest groups. But by claiming the law strikes “the right balance,” what they’re really saying is that the Glee kids deserve to be on the losing side of a lawsuit. Does that sound like the right balance to you?

Christina Mulligan is a visiting fellow of the Information Society Project at Yale Law School. You can reach her by e-mail at cmulligan at

Shortcuts to Reform

Heather K. Gerken

During the last couple of years, I've been writing a fair bit about the reform process, as it is a much neglected topic within the academy. Last week, I posted two papers on the subject, both of which emphasize the importance of shortcuts to reform. Shortcuts are a well known phenomenon in elections scholarship. The best known example is the party label, which provides voters an important heuristic for casting their vote. These two papers argue that shortcuts can and do play an important role in influencing three of the main leverage points for reform: voters, policymakers, and bureaucrats. The first essay focuses on one such shortcut -- a Democracy Index, which would rank states and localities based on how well their election systems perform -- and explains why it ought to help create an environment more receptive to reform. The second paper, which builds on the first, discusses two other shortcuts that might move along the reform process: model districting commissions and a Model Election Code. I'm happy to say that all three of these ideas have received a good deal of interest and support from foundations. The reason for this enthusiasm is simple. While these reforms might seem quite modest compared to typical reform proposals, they are the kind of reforms that can make bigger and better reform possible.

Monday, June 07, 2010

The First Amendment's "Scarcity Rationale": Elena Kagan and Media Regulation

Marvin Ammori

In 1995, wearing her "academic hat," Elena Kagan gave a speech to the National Association of Broadcasters, the Newspaper Association of America, and the Libel Defense Resource Center on the Relationship Between First Amendment Doctrine and Technological Change.

In the speech, she said something that would have been welcome to the broadcasters in the room: that the usual constitutional rationale resulting in "lesser" constitutional protection for broadcasters' speech was senseless. Kagan told the audience:
For example, did the scarcity rationale ever make sense with respect to broadcasting? Perhaps courts should only with great forethought and caution determine that new technology demands a new legal framework.

The consequence to her assertion is simple: if this key rationale, "scarcity," is senseless, then broadcasters like ABC and Clear Channel deserve increased constitutional protection for their speech. And this increased protection would come from judges and Justices (such as a Justice Kagan) striking down congressional and FCC rules on broadcasters.

In mocking the scarcity rationale, Elena Kagan was disagreeing with Supreme Court majorities, as no majority has yet voted to abandon the scarcity rationale.

Kagan was, however, agreeing with the broadcast lawyers in the room. She was also agreeing with Justice Clarence Thomas, who has devoted concurrences to attacking the rationale, siding with broadcasters. But Justice Thomas and Kagan have many allies on this one--perhaps the majority of conservative and liberal free speech scholars at the time would have agreed that the scarcity rationale made no sense. Her statement would have been almost uncontroversial.

But, if Dean is confirmed to the Court, she will likely understand why the Supreme Court has never abandoned the rationale, despite the often off-hand academic attacks. The real-world consequences of eliminating the scarcity rationale would be far-reaching--resulting in destabilizing the framework for communications in our society and producing outcomes adverse to individual speech rights.

These consequences are something that most speech scholars (including Kagan in 1995) generally overlook. This is understandable as--with our specialized academic culture--many speech scholars are simply not expert in or even aware of the rules governing media, but necessarily specialize in some other important aspect of speech doctrine.

But the "unintended" consequences of eliminating the scarcity rationale are real. The consequences include heightened judicial aggression (1) against some long-established campaign finance rules (both disclosure and access rules), (2) against government rules (with 80-years of precedent) for assigning frequencies to those who communicate wireless-ly from CBS to Verizon (paraphrasing Larry Lessig and Yochai Benkler, eliminating the scarcity rationale would make CBS "unconstitutional"), (3) against numerous media ownership limits designed to ensure that a small handful of corporations do not control the public's sources of information, (4) against rules promoting children's educational programming, and (5) against rules promoting noncommercial programming on satellite TV.

Indeed, while overlooking these consequences, scholars' desire to eliminate the scarcity rationale seems targeted at exactly one 40-year-old case (called Red Lion, discussed below) that upheld a law that has now been repealed (and dead) for over 22-years. But eliminating the far-reaching scarcity rationale to undermine Red Lion is like cutting off your fingers to clip your (already clipped) fingernails. In fact, considering the far-reaching effects, it's more like axing off your entire arm. The scarcity rationale, senseless as it may seem, underpins many decisions that speech scholars--and most Americans--would strongly endorse.

I write this post in three parts.
I. I briefly explain the scarcity rationale, and do so from the point of view of its critics. Based on their understanding of the rationale, the rationale is as senseless as Kagan says.

II. I continue with real-world consequences, which are noted above. Dozens of rules--obscure but highly significant--would be constitutionally suspect.

III. If the scarcity rationale doesn't make sense but generally leads to good results, then a better understanding is necessary. I briefly note what I think the scarcity rationale is really about, and which other rationales would place the many scarcity-supported pro-speech outcomes on firmer footing.

I. The Senseless Scarcity Rationale.

Many speech scholars would describe the scarcity rationale this way: government can impose rules on TV and radio broadcasters that it could not impose on pamphleteers and newspapers because of the technological scarcity of usable wireless frequencies.

If I had a radio set (or a TV with bunny ear antennas) and two or more people transmitted at 88.1 kHz, my radio set could not play any of the signals. Rather than hearing speech, I would hear static and crosstalk.

As a result, back in the 1920s and 1930s, the US government gave licenses to certain companies to broadcast at certain frequencies, and forbade others from broadcasting without licenses. Because only a few companies received the licenses (and government kicked a lot of groups off the airwaves), the government imposed rules and guidelines on the broadcasters to ensure covered important local issues, public issues, and generally to do so "fairly."

The scarcity rationale, importantly in this account, results in a different "standard of scrutiny" than applied to other media speech--not strict scrutiny, but often intermediate or even apparently lower scrutiny. (But neither Red Lion nor the subsequent newspaper case once references standards of scrutiny, as the standards are more recent doctrinal devices; rather, they analyzed the challenged rules and the facts, then reached a conclusion. Some cases suggest that scarcity would be merely a fact to be weighed when applying the usual standards, while more interpret Red Lion to apply differing standards.)

Based on this account, the scarcity rationale is senseless in at least two ways.

First, almost everything is scarce, including paper and pen, so frequencies are no different. The government usually cannot regulate who uses pens and papers--or worse, what you can write with those pens--based on their scarcity. Rather, the government just sets up markets in scarce goods.

Second, even if the scarcity of the frequencies justified initial licensing--of radio broadcasters, satellite broadcasters, wireless phone companies among others--it does not justify intrusive content regulation.

The key example here is the fairness doctrine, an FCC rule, abandoned in 1987, requiring broadcasters to cover public issues, and to present both (or many) sides of the issue. The Supreme Court unanimously upheld the fairness doctrine in Red Lion in 1969 (the year it decided Brandenburg v. Ohio), concluding that the rights of viewers, not broadcasters, are "paramount." The Court did agree that the doctrine could be unconstitutional with evidence of government silencing dissent through the doctrine.

Worse, just a few years later, in 1974, the Court unanimously reached the opposite result for newspapers--striking down a state law similar to the fairness doctrine. Scholars argue that the two cases cannot be reconciled, as the supposed distinction (scarcity) is senseless. Therefore, broadcasters deserve the same protection from the fairness doctrine as newspapers (and, say, pamphleteers).

I'll note two arguments that miss the point. Some believe "scarcity" underlies broadcasting indecency rules. Other rationales are relevant there ("pervasiveness" and "unique accessibility for children"). In Pacifica , the lead broadcast indecency case, Justice Brennan's dissent commended the majority for this:"The [majority opinions] rightly refrain from relying on the notion of "spectrum scarcity" to support their result. ... [A]lthough scarcity has justified increasing the diversity of speakers and speech, it has never been held to justify censorship."

Second, some argue scarcity no longer exists because there are so many media outlets available to individuals. But scarcity refers to the scarcity of wireless frequencies, not scarcity of the number of media outlets. Licensing AM stations and punishing pirates for transmitting without a license does not rest on the abundance of outlets.

I. Revolutionary Consequences of Eliminating the Scarcity Rationale.

I am not going to defend the fairness doctrine. (I am on record opposing it.) But the fairness doctrine is, in my analogy above, the (already clipped) fingernails.

If we eliminate the scarcity rationale as Kagan suggests, and ratchet up the constitutional scrutiny for broadcasters as broadcasters argue, here are some major consequences.

1. Electoral rules.

(A) Reasonable access for candidates. Broadcasters are required to "allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office." The Supreme Court held that this rule properly balances the free speech rights of broadcasters, the public, and the viewers--whose rights are paramount.

(B) Record keeping. Broadcasters must keep a record of requests by candidates or others for airtime regarding elections or national legislative issues. In the 2004 decision, McConnell v. FEC (another part of which was overruled in Citizens United), the Court cited Red Lion for the FCC's broad authority over broadcasters.

(2) Broadcasting would be suspect. Opponents of scarcity will argue that scarcity "no longer exists" because of new technologies enabling unlicensed uses like wi-fi. Just like air, which is not meaningfully scarce, government should be unable to license people to speak through the air. This conclusion, however, would eliminate broadcasters--something that would make them unhappy. Rather, they want licenses without obligations. But, without scarcity, the government could not assign licenses to some speakers and silence others, such as "pirate broadcasters"--and anyone else who wants to broadcast, by mobile satellite, fixed satellite, wireless broadband service, AM radio, international services coordinated with the ITU, or dedicated unlicensed like wi-fi, etc.

(Some argue scarcity no longer exists because there are so many media outlets available to individuals, but scarcity refers to scarcity of wireless frequencies, not scarcity of the number of media outlets. Licensing AM stations and punishing pirates does not rest on the abundance of outlets.)

(3) Media ownership limits would be suspect. The government has imposed many ownership limits on broadcasters and on cable companies. For broadcasters, these include a limit on broadcasters owning too many local or national stations, multiple networks, and forbidding newspaper owners (under certain conditions) from acquiring broadcast licenses overlapping with their newspaper-circulation areas. To be clear, in this case and others, the government's interest was not an economic antitrust interest--it was a speech interest, which was supported by scarcity.

In the words of Justice Thurgood Marshall, writing for a unanimous court to uphold one of these rules, these rules are "designed to further, rather than contravene, the system of freedom of expression"; and to promote "the public interest in diversified mass communications."

Broadcasters, in arguing against the scarcity rationale, have a very different view. They argue that they should be allowed to gobble up as many stations as they see fit--just as a pamphleteer can buy as many pamphlets as he'd like. It is the interest of the broadcaster to buy stations--not the public's interest in diverse communications--for which they argue.

Without the scarcity rationale--something not applicable to cable systems--cable companies can challenge cable ownership limits as violating their First Amendment rights to "speak" by amassing cable holdings across the country. And, in the DC Circuit case testing FCC cable ownership limits, the court bought the argument and struck down the rules. (The standard applied was Turner, something Kagan has also discussed.)

So eliminating the scarcity rationale would make it far more difficult to advance policies supported by Barack Obama (and others, including, historically, some Republicans) ensuring diversity of ownership among TV and radio broadcasters.

(4) Requiring children's educational programming would be suspect. Today, the FCC provides renewal preferences to stations that air at least 3 hours a week of children's educational programming. (Not all of it is highly educational.) When the FCC extended these rules to digital broadcasting, in 2004, the broadcasters appealed (to the usual DC Circuit). Without the scarcity rationale, the broadcasters might have had a strong argument that requiring "educational" programming was "content-based" and therefore unjustifiable (which I think misunderstands the content-based precedent) and interferes with editorial discretion (imagine requiring a pamphleteer to hand out children's educational pamphlets a certain percentage of the week, or to devote a particular portion of their papers to educating children).

Because of scarcity, the rights of the viewers, including children, would be doctrinally paramount. (Disclosure: I was a lawyer on this appeal, representing the children's groups. We settled the case.)

(5) Noncommercial educational programming on satellite TV. When the DC Circuit confronted rules requiring 3% of capacity on private satellite TV providers be reserved for noncommercial educational programming, the court seemed unable to uphold the rule without the scarcity rationale. The court invoked the rationale, determined that under the rationale a rule must promote the speech interests of "viewers and listeners" in diverse communications and in access to political and educational speech. The lower court, which did not invoke scarcity, had struck down the rule.

But what about eliminating the fairness doctrine? Some might argue that it's worth the upheaval of questioning these campaign finance, licensing, consolidation-limiting, educational and non-commercial programming rule to finally overrule Red Lion. But so what? The fairness doctrine (and other rules upheld in Red Lion) have been long repealed, and are sure never to return.

III. A (Slightly) Better Way to Think About Scarcity.

The much-mocked scarcity rationale, dissed by Dean Kagan herself, has been so resilient--surviving since 1943 at least--largely because the alternative is simply unacceptable as a matter of doctrine and effect on society. The alternative is for courts to use the First Amendment to require media consolidation and to undermine efforts to ensure Americans have access to diversified and public communications through wireless communications.

The key question is how to balance the government's legitimate, pro-speech, interests without harming the public speech interests by permitting government censorship. That is, how can the government pursue rules like those effectuating the public's right "to receive suitable access to social, political, esthetic, moral and other ideas and experiences"; to ensure "the widest possible dissemination of information from diverse and antagonistic sources"; and engage in "efforts to enhance the volume and quality of coverage of public issues"--while not giving the government too broad a mandate to suppress speech.

Based on these two interests--public information and non-censorship--rules like ownership limits and some access rules should be broadly acceptable. As, indeed, they have been, though they have been acceptable based on what academics consider a "senseless" rationale.

What is not helpful, I think, is trying to map the balancing of these two interest on "standards of scrutiny," just as we don't feel the need to translate NYT v. Sullivan's "actual malice" or Brandenburg v. Ohio's "imminent lawlessness" into standards of scrutiny. Justice Stevens himself had criticized the over-emphasis on these standards, with regard to content-distinctions he described as pervading speech doctrine, despite pushback from Justice O'Connor and others.

So "perhaps," as Dean Kagan said 15 years ago, "courts should only with great forethought and caution determine that new [even 80-year old broadcast] technology demands a new legal framework." Without that forethought and caution, there would be considerable consequences.

The Future of Redistricting Reform

Heather K. Gerken

Last week, the Columbus Dispatch reported that while redistricting reform efforts were stymied in the state legislature, Ohio was well on its way to choosing the official state amphibian. Needless to say, it's a bad sign when a reform cause ranks below salamanders on the legislative agenda. The story was just the latest illustration of how hard it is to get redistricting reform passed. The central problem with redistricting reform is that the people who know the most about the issue and care the most about the issue . . . are the politicians who oppose it.

I just posted a paper that focuses on strategies for getting redistricting reform passed. Typically, academics and reformers try to take the politics out of election regulation by pushing for a nonpartisan districting process. Nonpartisan districting is surely a noble cause and a perfectly sensible long-term goal. But we have allowed that instinct for nonpartisanship to shape our short and medium-term strategies for achieving reform.

That is a mistake. Ours is a system where the foxes are guarding the henhouse, where legislators set the rules of the game at the same time they play it. Needless to say, they are loathe to give up this power. Yet most reform strategies turn on asking politicians to ignore their own interests and do the right thing. Perhaps unsurprisingly, these strategies have not produced much by way of results.

If we are interested in getting reform passed, we have to do something more than appeal to self-interested political actors to ignore their self-interest. We need to realign the incentives of the foxes with those of the hens, to redirect competitive political energies into healthier channels. For those interested in reform, the paper offers concrete proposals for doing so and surveys the cutting-edge work in this area.

Paging Dr. Mengele: Medical Experimentation and the CIA Detainees

Steve Vladeck

[Cross-Posted on PrawfsBlawg.]

It had seemed, at least until late last week, that intervening events had taken most of the attention away from one of the most significant controversies of President Obama’s first year in office—whether senior Bush Administration officials should be investigated for their role in the documented torture and other abusive treatment of non-citizens detained as terrorism suspects. President Bush himself may have rekindled the controversy with his surprisingly candid comments about waterboarding, but that pales in comparison to the implications of a new report, released this morning by Physicians for Human Rights (PHR) (and available through this link).

In the report, titled “Experiments in Torture: Evidence of Human Subject Research and Experimentation in the 'Enhanced' Interrogation Program,” PHR marshals strong evidence that doctors working for the U.S. government conducted “illegal and unethical” human experimentation and research on detainees in CIA custody. In particular, the report concludes that
Health professionals working for and on behalf of the CIA monitored the interrogations of detainees, collected and analyzed the results of those interrogations, and sought to derive generalizable inferences to be applied to subsequent interrogations. Such acts may be seen as the conduct of research and experimentation by health professionals on prisoners, which could violate accepted standards of medical ethics, as well as domestic and international law. These practices could, in some cases, constitute war crimes and crimes against humanity.
In other words, because medical professionals were intimately involved in the EIT program, and appear to have used prior experiences with individual detainees to suggest ways of increasing the effectiveness of the techniques going forward, these individuals were effectively conducting the very kind of research and experimentation that ethical codes, federal regulations, and international law all prohibit.

The Report is quite clear that many of its conclusions are based on inferences and other circumstantial evidence (much of the crucial information remains classified), and avoids reaching final conclusions as to whether any of these codes, rules, or laws were broken. Nevertheless, as the Report concludes, "a comprehensive federal investigation is required to answer the questions this evidence raises."

Regardless of whether the EITs themselves were violations of federal or international law (on this point, at least, I don't imagine I'll convince anyone of a view distinct from that which they already have), there seems far less room for debate over the propriety of human subject research and experimentation. The so-called "Common Rule," which applies to the CIA and the Department of Defense (along with a number of other major federal agencies), bars such research without the consent of the subject. And the United States was not just instrumental in creating the body of international law that prohibits the practice; it was a U.S. military commission at Nuremberg that tried 23 Nazi officials (20 of them doctors) in the "Doctors' Trial" after World War II, convicting 16 of the defendants (and executing seven) for war crimes and crimes against humanity arising out of their involvement in medical experimentation on, inter alia, concentration camp internees. In the process, the Nuremberg Military Tribunal (NMT) articulated what has since become known as the "Nuremberg Code"--10 principles to set the permissible boundaries of human subject research. We, in other words, set the precedent that such conduct by medical professionals is more than just unethical and illegal, but is in fact a war crime. [And then we watered down the War Crimes Act in the Military Commissions Act of 2006, but I digress . . .]

Given that so much of the critical information remains classified (including, as the PHR Report notes, the unclear role of OLC with regard to the medical professionals), it would be imprudent to speculate on what specifically happened, or who may actually be liable. The larger point, though, is that these charges only reinvigorate a point that I'm neither the first nor last to make: We still don't know what we don't know about the EITs, about who was behind them, and about how they were implemented. Thus, this Report is not about the well-worn debate over whether or not torture was committed, or, alternatively, whether individual techniques constituted "torture." Regardless of the legality of the individual interrogation techniques, any non-consensual medical experimentation would have been against both federal and international law. And as PHR's Report concludes,
The use of health professionals to monitor intentionally harmful interrogation techniques places them in the service of national security objectives which are in conflict with the interests of those who they are monitoring. The result has been a co-opting of health professionals by the national security apparatus and a violation of the highest medical admonition to “do no harm.” Until the questions examined in this paper are answered and, if ethical violations or crimes were committed, those responsible are held accountable, the misuse of medical and scientific expertise for expedient and non-therapeutic goals jeopardizes the ethical integrity of the profession, and the public trust in the healing professions risks being seriously compromised.

Older Posts
Newer Posts