"An age without surrender ceremonies"

Mary L. Dudziak

Here’s a snippet from the book I’m finishing up this fall.  This passage is about what I think of as President Obama’s “Mission Accomplished” moment, and it raises questions about how to think about the role of wartime in American history during a period when wars don’t seem to end.
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Posted 10:39 PM by Mary L. Dudziak [link] (9) comments

Glenn Beck Should be Speaker of the House

Guest Blogger

Evan A. Schnidman

Or maybe Rush Limbaugh, or possibly Sarah Palin. True, none of these individuals hold elected office, much less have a seat in Congress, but that’s irrelevant. Perhaps the most idiosyncratic rule under which Congress operates is that the Speaker of the House need not be an elected member of the House, or even a member of Congress. Sure, in 200+ years Congress has always elected one of its own to the prestigious post of both most powerful legislator and second in line, according to the current Succession in Office Act, to ascend to the Presidency, but who is to say that things can’t change? After all, some moderate Democrats who were pushing for Bill Clinton to become Speaker instead of Nancy Pelosi after the Democrats retook Congress in 2006.

One needs only to do a quick search on YouTube to findCalifornia Democratic Senator Barbara Boxerholding up the gavel and reminding Oklahoma Senator James Inhofe (who had lost his chairmanship of the Senate Committee on Environment and Public Works to her as a result of the 2006 elections)that “elections have consequences.” Indeed, most predictions indicate that next week’s election will be especially consequential.

It appears likely that Republicans, led by Tea Party activists, are likely to take control of the House of Representatives. These Tea Party Republicansmay wellmake the ideologically charged Republican class of 1994 look like moderates. Which leads one to ask, why would these ultra-conservative freshman Congressmen vote for moderate Republican leadership in John Boehner? Perhaps it is his charisma, or just his inner (or maybe his outer) glow…
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Posted 10:33 AM by Guest Blogger [link]

Judge Baer and Grutter v. Bollinger

Jason Mazzone

Judge Harold Baer Jr. (S.D.N.Y.) is in the news for his efforts to promote diversity among the class action lawyers who appear before him. Last month, in response to a request for approval of a settlement in a class action securities fraud case against Gildan Activewear, Judge Baer issued an order that read in part:

Whereas in order to approve the proposed settlement, the Court must approve, among other things ... the appointment of plaintiffs’ counsel as the Co-Lead counsel for the class...;

And whereas this proposed class includes thousands of participants, both male and female, arguably from diverse backgrounds, and it is therefore important to all concerned that there is evidence of diversity, in terms of race and gender, in the class counsel I appoint ... it is hereby

Ordered that Co-Lead Counsel, Robbins Geller Rudman & Dowd LLP and Labaton Sucharow LLP, shall make every effort to assign to this matter at least one minority lawyer and one woman lawyer with requisite experience.

This was not the first case in which Judge Baer specified racial and gender requirements for lawyers in class actions. The above order cited Judge Baer’s 2007 opinion certifying a class in an ERISA suit against JP Morgan. In that case, Judge Baer wrote:

The proposed class includes thousands of [retirement plan] . . . participants, both male and female, arguably from diverse racial and ethnic backgrounds. Therefore, I believe it is important to all concerned that there is evidence of diversity, in terms of race and gender, of any class counsel I appoint. A review of the firm biographies provides some information on this score. Here, it appears that gender and racial diversity exists, to a limited extent, with respect to the principal attorneys involved in the case. Co-lead counsel has met this Court’s diversity requirement-i.e., that at least one minority lawyer and one woman lawyer with requisite experience at the firm be assigned to this matter.

[In re J.P. Morgan Chase Cash Balance Litigation, 242 F.R.D. 265, 277 (SDNY 2007)]

As in the order last month, in justifying this “diversity requirement” in the JP Morgan case, Judge Baer invoked Rule 23(g) of the Federal Rules of Civil Procedure. It lists factors that a court must take into account in appointing class counsel: the lawyer’s experience, knowledge of the law, resources, and so on. Rule 23(g) then provides that in appointing counsel the court “may consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” Because the class contains women and racial minorities, Judge Baer reasoned, women and minority lawyers are needed to ensure the class is represented.

(The opinion in the JP Morgan case doesn’t make clear whether the law firm by itself had met the diversity requirement—or whether it did so because Judge Baer told it to add women and minority lawyers. Nonetheless, the class is certified and the diversity requirement is not tested on appeal.)

In an interview published yesterday in the New York Law Journal, Judge Baer said that, given the discretion that Rule 23(g) gives to judges, he saw no reason why diversity could not be taken into account.

I see a reason: the Constitution.
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Posted 9:10 PM by Jason Mazzone [link]

Open Letter to the President on ACTA Negotiations

Frank Pasquale

Lack of transparency in international trade negotiations over the Anti-Counterfeiting Trade Agreement has alarmed many. Chris Sprigman, Dave Levine, and Sean Flynn have drafted and circulated a letter to the President that I and over 70 other law professors have signed. Here are some key excerpts:

Your Administration promised to change the way Washington works. You promised to bring increased truthfulness and transparency to our public policy and law, including the Freedom of Information Act. You promised that wherever possible, important policy decisions would be made in public view, and not as the result of secret special interest deals hidden from the American people. Your Administration’s negotiation of ACTA has been conducted in stark contrast to every one of these promises.

First, ACTA’s negotiation has been conducted behind closed doors, subject to intense but needless secrecy, with the public shut out and a small group of special interests very much involved. Second, the Administration has stated that ACTA will be negotiated and implemented not as a treaty, but as a sole executive agreement. We believe that this course may be unlawful, and it is certainly unwise.

Third, and finally, we are concerned that the purpose that animates ACTA is being deliberately misrepresented to the American people. The treaty is named the “Anti-Counterfeiting Trade Agreement”. But it has little to do with counterfeiting or controlling the international trade in counterfeit goods. Rather, this agreement would enact much more encompassing changes in the international rules governing trade in a wide variety of knowledge goods – whether they are counterfeit or not – and would establish new intellectual property rules and norms without systematic inquiry into effects of such development on economic and technical innovation in the U.S. or abroad. These norms will affect virtually every American and should be the subject of wide public debate.

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Posted 8:28 AM by Frank Pasquale [link]

An Unlikely Champion of Reform in Legal Academia--Dean Matasar

Brian Tamanaha

Dean Richard Matasar of New York Law School published a remarkably dire essay on the future of law schools in the October issue of the New York State Bar Journal, entitled, “Does the Current Economic Model of Legal Education Work for Law Schools, Law Firms (or Anyone Else)?” He delivers a resounding “No” to this question, closing with a warning: “The years ahead suggest that law schools…must change or die.”

Dear Matasar has been out front on the need for reform for several years now. At the January 2009 AALS conference Matasar accused law schools of “exploiting” prospective law students, trading on their delusion that they are buying a ticket to a lucrative career. For many law students, the odds of obtaining a high paying law firm job are akin to a lottery. Matasar castigated legal academics, suggesting that we

"should be ashamed of ourselves….We own our students' outcomes. We took them. We took their money. We live on their money....And if they don't have a good outcome in life, we're exploiting them. It's our responsibility to own the outcomes of our institutions. If they're not doing well ... it's gotta be fixed. Or we should shut the damn place down. And that's a moral responsibility that we bear in the academy."

His recent article details the challenges faced by law schools. Foremost among these challenges is the mismatch between the high cost of attending law school and the poor employment prospects of many graduates. Matasar observes that many law graduates get temporary jobs, and many do not get legal jobs at all.

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Posted 5:07 PM by Brian Tamanaha [link] (8) comments

RUC's Role in Medicare

Frank Pasquale

Earlier this month, Ian Ayres questioned Medicare's procurement auction rules. The Center for Public Integrity recently released an article that suggests Medicare's process for deciding physician payments may also need a second look. Just as critics have charged that HHS relied excessively on a physician-allied group (the Council on Graduate Medical Education) in determining future health care work force needs, the CPI report makes a case that too much responsibility has been devolved from governmental decisionmakers to a private sector group, the American Medical Association/Specialty Society Relative Value Scale Update Committee (RUC). RUC's dominant role in suggesting payment levels raises hard questions about price-setting in the health care sector.

Administered pricing can be a important tool of health care cost containment. However, the process of setting prices for various health care services is always at risk of capture by those who would profit from overpayments. By way of background, here is an excerpt on the resource-based relative-value scale [RB-RVS] that gave rise to committees like the RUC:
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Posted 1:30 PM by Frank Pasquale [link]

Is the House of Representatives Too Small?

Gerard N. Magliocca

I've always been perplexed by the zeal of proponents of campaign finance reform. Decades of legislation in this area did almost nothing to improve the political process, even before Citizens United came along. Perhaps this is because the means used to regulate money were incorrect (i.e., we should have had public financing for campaigns, or we should be following the "secret ballot" model for donations advanced by Bruce Ackerman and Ian Ayres), but that reminds me of Ronald Reagan's line that "[t]he more the plans fail the more the planners plan."
Posted 5:03 PM by Gerard N. Magliocca [link]

Symposium on Bruce Ackerman, The Decline and Fall of the American Republic

JB

Here are the collected links to the various essays in the symposium:

Stephen Griffin, Ackerman's Dark Moment

Stephen Guardbaum, Empire Rises

Sandy Levinson, Paul Revere or Cassandra? The Dilemma of Iconoclasm

Bruce Ackerman, It Can Happen Here
Posted 6:35 AM by JB [link]

It Can Happen Here

Guest Blogger

For the symposium on Bruce Ackerman, The Decline and Fall of the American Republic


Bruce Ackerman

In 1973, Arthur Schlesinger gave Americans a name for a collective anxiety: the imperial presidency. But as Steve Griffin suggests, his diagnosis centered on foreign affairs, and especially questions of war and peace. My focus is different. Decline and Fall points to a wide range of developments that have made the presidency a threat to our constitutional traditions at home, not only abroad.
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Posted 6:15 AM by Guest Blogger [link]

Ghailani and the Contradictions of U.S. Detention Policy

Guest Blogger

Jonathan Hafetz

District judge Lewis A. Kaplan recently released a redacted version of his opinion barring a key government witness from testifying against Ahmed Khalfan Ghailani, the first Guantánamo detainee to be tried in federal court, because the witness's testimony was obtained through coercive interrogations of Ghailani at a secret CIA jail, where Ghailani claims he was tortured. It remains to be seen whether Kaplan's ruling marks only a temporary setback for the government's prosecution of Ghailani, on trial for his role in the 1998 U.S. embassy bombings in East Africa. (Abebe would have testified that he sold Ghailani TNT prior to the bombings). Apart from its impact on Ghailani's case, however, the decision underscores the continuing tensions at the heart of U.S. detention policy.
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Posted 6:05 AM by Guest Blogger [link]

The autonomy and responsiveness of law

Guest Blogger

Fernando Muñoz Leon

How does law confront non-legal expectations? In other words, how does it handle expectations of a moral, partisan, or popular–that is, broadly speaking, a social– character? Paradigmatically, we have two possible answers: either by protecting itself or by deferring to them.

From this basic distinction stem two models for understanding the relation between law and society and the intersection between law and politics. One of them is that in order to protect its own integrity, the law develops immanent criteria to determine the legality of phenomena. In this view, law structures society. This is the notion of the autonomy of law. The other is that in order to satisfy the needs and priorities of the specific society where it happens to exist, the law identifies certain social expectations and serves them as means to an end. In this view, society structures law. This is the notion of the responsiveness of law.

Thus, when we speak about the relation between law and society, we tend to adopt discursive patterns that follow the fundamental archetypes of autonomy and responsiveness, which consistently shape our understanding of this intersection and of the many issues that circle it.
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Posted 6:00 AM by Guest Blogger [link]

Health Care Reform, the Tax Power, and the Presumption of Constitutionality

Guest Blogger

Gillian Metzger & Trevor Morrison


The latest move in the litigation saga involving challenges to the new healthcare reform, the Affordable Care Act, is a decision by the Florida district court denying the government’s motion to dismiss. [Florida v. Health & Human Servs., 3:10-cv-91-RV/EMT.] The decision rejects certain claims that the plaintiffs in that case --- a group of 20 states, along with a couple of individuals and a business association --- had brought to the Act. But its most notable feature is its lengthy treatment and rejection of the argument that the “individual mandate provision,” more accurately described as the requirement that individuals obtain minimum health insurance coverage or face a penalty, falls within the scope of Congress’s tax power. According to the court, even if the penalty could be sustained under the tax power had Congress intended to enact it as a tax, “it is inarguably clear that Congress did not intend for the exaction to be regarded as a tax.”

The decision’s sustained attention to the tax power issue stands to its credit --- though we have to confess to some bias on the importance of this issue, having submitted (together with Jack) an amicus brief in the parallel Virginia suit, defending the Act as a constitutional exercise of Congress’s tax power. The district court’s opinion might also carry some intuitive appeal, at least if one thinks it is the job of a federal court to police not only the constitutionality of actually enacted legislation but also the content of individual legislators’ and the President’s public statements about the legislation. Yet upon more sustained analysis, there are two major problems with the court’s conclusion that Congress didn’t intend to enact a tax. First, the court’s approach imposes upon Congress a set of requirements that, if actually implemented, would threaten to overturn the longstanding presumption of constitutionality that courts owe to federal legislation. Second, even assuming some judicial examination of the issue is warranted, the district court in this case misread the record.
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Posted 1:50 PM by Guest Blogger [link]

"Too Big To Fail" States

Gerard N. Magliocca

Last week I attended a terrific symposium put on by the University of Connecticut Law Review on "Is Our Constitutional Order Broken?" The keynote address was given by a certain member of this blog. (I'll give you three guesses as to who it was.) I thought I'd outline what I talked about there.
Posted 7:26 AM by Gerard N. Magliocca [link]

The Irresponsibility of Law Schools

Brian Tamanaha

The chart on the top shows the number of applicants law schools admitted (who actually enrolled) from 2001 through 2009. The chart on the bottom shows total law related employment--attorney and non-attorney--from 2001 through 2009. [Note that the charts are not on the same scale; and the labor chart is not limited to lawyers.]

While legal employment has fallen dramatically since 2007 (with a further decline in 2010), law schools, after remaining flat in 2008, increased by 5% the number of students admitted (and enrolled) in 2009. This increase was greater than the percentage increase in applications to law school. (The 2010 admissions numbers are not yet available.)

Law schools thus responded to the worst recession in the legal market in at least two decades by letting in more law students.

[Let me apologize to chart hawks who rightly point out that there is a misleading visual aspect to my charts, which are on different scales (as I note). Because the bottom chart covers a million jobs, a decline of 40,000 jobs is not extraordinarily steep relative to the whole. With this caution, now made more explicit, there is nothing misleading about what the charts aim to illustrate (and the relevant numbers are indicated on the charts as well as the link). Unfortunately, I have limited chart skills, and I welcome suggestions on how to better construct the charts.]
Posted 2:05 PM by Brian Tamanaha [link] (36) comments

DADT: Injunctions Can Be Orderly Too

Jason Mazzone

The Obama Administration opposes Don't Ask, Don't Tell but also opposes Judge Virginia Phillips's injunction against enforcement of the law. The explanation the Administration gives is that an injunction is too disruptive: repeal of DADT requires an orderly process. Thus, today on Meet the Press, White House Press Secretary Robert Gibbs, when asked why the President continues to support DADT in the courts, explained: "[W]e have a process in place right now to work with the Pentagon for an orderly and disciplined transition from the law that we have now to an era that 'don't ask, don't tell' doesn't exist. And I will say this . . . 'don't ask, don't tell' will end under this president."

The problem with the Administration's position is that it is based on a false notion that a judicial remedy is inconsistent with orderly change.
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Posted 10:32 PM by Jason Mazzone [link]

What constitutes an "emergency" or "disaster"

Sandy Levinson

In the discussion at the Volokh Conspiracy sparked by Ilya Somin's response to my posting about whether libertarians can support spending government money on rescuing trapped miners, Bob (from Ohio) asserts that "[t]here is literally no one in the US, even libertarians, who believes that government should not respond to emergencies and disasters." It would be an entirely cheap shot to note that in a country of 310 or so million people it is unlikely that there is not even one person genuine anarchist who believes there should be no government at all or that there is no true "minimal statist" who would confine the role of the state to policing, national defense, and the enforcement of private contracts." I take it that Bob (from Ohio) is asserting something like "all reasonable people concede that a legitimate government has a role, even if it involves de facto redistributive measures, in responding to emergencies an disasters." But now the problem is how we define "emergencies" or "disasters," since no one claims that they are what philosophers call "natural kinds" (e.g., water as constituted by H2O) or, for some philosophers, lions, zebras, or tigers. Instead, I assume that even philosophical Realists will concede that definitions of "emergencies" and "disasters" are social constructs, inevitably influenced by our ideologies as to how the world workds. The very best writing on this that I am familiar with is by Stanford law professor Michelle Landis Dauber, who brilliantly noted that part of FDR's "packaging" of the New Deal was (correctly, I believe) to analogize what was happening to millions of people to earlier "natural disasters" that, by defintion, were not the fault of the people themselves. It is also instructive to read the majority's seminal opinion in the 1934 Blaisdell case (which is despised by most libertarians), in which the mortgage moratorium imposed by the Minnesota legislature (in violation of the "literal command" of the Contract Clause) is justified by analogizing the consequences of the Great Depression to those generated by natural disasters.

It is obvious that contemporary libertarians are prone to blame individuals for most (even if as Bob (from Ohio) suggests, not all) things that befall them; political liberals are far more likely to offer structuralist explanations that have the consequence of exempting individuals from "responsibility" for much of their fate. Trouble cases for liberals include, say, smokers (in today's world) or mountain climbers: As a matter of fact, I have no hesitation in saying that any mountain climber rescued by the state should be liable for the full cost of the rescue, unless, for some inexplicable reason, we wish to encourage (and thus subsidize) mountain climbing. I'd also make residents of Malibu pay the full costs of any fire protection they receive, etc. But I would think (and hope) that thoughtful conservatives/libertarians like Bob (from Ohio) would be equally troubled by leaving, say, children or the victims of structural unemployment and financial collapses to their own fate.
Posted 6:09 PM by Sandy Levinson [link] (9) comments

Our Love/Hate Relationship with Carrots and Sticks

Ian Ayres

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Posted 3:34 PM by Ian Ayres [link]

Paul Revere or Cassandra? The Dilemma of Iconoclasm

Sandy Levinson

For the symposium on Bruce Ackerman, The Decline and Fall of the American Republic


In his extraordinary new book, The Decline and Fall of the American Republic, Bruce Ackerman begins, quite literally, by condemning the “triumphalism” that surrounds most discussion of the Constitution (which extends, it should be recognized, to critics of the Supreme Court whose sole complaint is that judges aren’t faithful to the one true view of constitutional meaning, which would indeed provide the cures for whatever ails us as a polity). He is kind enough to exempt me, identifying me in his first footnote as “the only iconoclast in the crowd.”

Perhaps, then, it is fitting to begin by noting that one aspect of iconoclasm is that one presumably wants to be Paul Revere, warning fellow concerned citizens about an oncoming danger secure in the knowledge that they will respond if only informed, but discovers, all too often that the correct analogy is Cassandra, the ill-fated daughter of King Priam (and, therefore, sister of Hector), who could correctly foresee the dim future awaiting the Trojans but who was cursed by Apollo to be utterly disbelieved by those she was warning. If one is permitted to quote Wikipedia, “her combination of deep understanding and powerlessness exemplify the tragic condition of humankind.”

Thus, whether or not I agree with Ackerman on all the details—I generally agree with Steve Griffin’s friendly demurrers to some of his specific arguments—I certainly agree that has identified a genuine problem with our polity, and I admire him, not for the first time, in having the willingness to speak in tones that many of his more moderate and “reasonable” colleagues in the legal academy will undoubtedly dismiss as overwrought. The question, of course, is whether they will actually address his arguments or, like those presented with Cassandra’s altogether accurate warnings, dismiss them under the general rubric “it can’t happen here.” I would, incidentally, strongly advise people to read as well Andrew Bacevich’s new book, Washington Rules: America’s Path to Permanent War, which, like Ackerman's book, also is also a highly patriotic effort to warn Americans about what is happening—and, indeed, has been happening for all too long—before our very eyes, if only we had the analytical acumen to see. Perhaps it is my own sense of frustration that makes me fearful that both Ackerkman and Bacevich will end up more as (fellow) Cassandras than as successful Paul Revere’s, for two quite different reasons.
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Posted 6:50 AM by Sandy Levinson [link] (7) comments

Would Eric Cantor or Paul Ryan (let alone Rand Paul or Glen Beck) have saved the Chilean miners

Sandy Levinson

PBS reports that the cost of rescuing the 33 trapped Chilean miners was $10-20 million. A third apparently came from private donations, with the rest from a mix of the state-owned copper company in charge of the effort and the government of Chile itself. Every American law student is told that there is, in the United States, no "duty to rescue." It is, of course, just such a notion of "good Samaritanism" that is the foundation of the welfare state, in which haves see their funds redistributed to have-nots lest the latter end up starving or freezing on the streets or watching their houses burn down because they can't afford to pay the user fee to the local fire department.

The modern Republican Party and its rising "top guns" are Social Darwinists who seem altogether happy with the idea of dismantling the welfare state and leaving it up to rugged individualists to take care of themselves. Glen Beck tells us that "compassion," at least if it takes a governmental form, leads straight to Naziism, and he, even more than Rush Limbaugh, has become the de-facto leader of the current Republican Party. So I ask, entirely non-rhetorically, if anyone who takes pride in this assault on the welfare state--let's repeal Medicare and Social Security, etc., etc., etc.--would have supported spending even a penny of federal funds on a similar rescue in the United States. After all, there are lots of better alternative uses for $10-20 million than rescuing miners who "assumed the risk" of mine accidents. It's scarcely a secret that mining is one of the most dangerous occupations in the world, after all.

Or, let me ask the question in another way: If one was genuinely inspired by the display of social solidarity both by the miners themselves and the Chilean people, including their government and President, can one sturdily cabin that admiration and continue to support those who would dismantle the welfare state? (No doubt some will reply that relying on the market will make things better for everyone, including trapped miners, though there is, of course, not a scintilla of evidence for this ravingly ideological proposition.)

I've done a quick check of recent entries to the Volokh Conspiracy, which I take it is the leading collection of libertarians in the legal academy, and I notice that none of them saw the rescue as worthy of comment. Might it be too threatening for, say, David Bernstein, who announced his forthcoming talk to the Federalist Society (with a comment to follow by Jack Balkin) on his new book that attempts to rehabilitate Lochner, to admit that at least sometimes there is a role for the "rescuing state," which, almost by definition, must take from those who have in order to provide for those who don't? Or is there an ostensible "public purpose" in rescuing miners that doesn't cover, say, supplying medical care to children or food or shelter, among other things, to hungry infants or persons at the other end of the life cycle who, say, saw their savings wiped out by an economic collapse?
Posted 3:57 PM by Sandy Levinson [link] (65) comments

Empire Rises

Guest Blogger

For the symposium on Bruce Ackerman, The Decline and Fall of the American Republic


Stephen Gardbaum


Bruce Ackerman’s The Decline and Fall of the American Republic is a profoundly important constitutional wake-up call. It presents a powerful, multi-layered, yet highly accessible argument that the body politic faces the serious and unprecedented structural risk of presidential extremism and lawlessness -- and a series of new checks and balances that offer the rare combination of pragmatism and originality. One hopes that the book will receive its just deserts by provoking a vigorous new constitutional debate not only among fellow academics but also, more importantly, among We the People.

My reactions to the book mostly supplement rather than question Bruce’s argument, suggesting a few additional explanations, concerns, or proposals. To the extent that some of the pathologies he identifies seem to me to be equal opportunity ones that have already spread beyond the presidency to other parts of the polity, this perhaps adds another twist to the narrative.
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Posted 10:26 AM by Guest Blogger [link]

Ackerman's Dark Moment

Stephen Griffin

For the symposium on Bruce Ackerman, The Decline and Fall of the American Republic


A deep patriotism as well as optimism toward our republican constitutional experiment has been characteristic of the Yale school of constitutional interpretation, whose distinguished members include Bruce Ackerman, Akhil Amar, Jack Balkin, and Reva Siegel (among others). So the publication of Ackerman’s Decline and Fall of the American Republic is a notable event in that, while not losing one iota of his patriotism, Ackerman is getting off the optimistic bus. All I can say is: it’s about time!
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Posted 10:18 AM by Stephen Griffin [link]

Racist Progressives, Meet Hard-Hearted Libertarians

Brian Tamanaha

With the resurgence of the use of the term “progressive” by liberals, libertarians have taken to reminding liberals that their turn-of-the-century progressive forebears were virulent racists. According to libertarians, when the social reformist impulse of progressivism mixed with the personal racism of progressives, a toxic brew resulted that led to the legal oppression of blacks and other racial minorities. “The ideas of race and color were powerful, controlling elements in progressive social and political thinking,” [David Southern] argues. “And this fixation on race explains how democratic reform and racism went hand-in-hand.” Libertarians even blame progressives for Jim Crow laws.
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Posted 10:49 AM by Brian Tamanaha [link] (21) comments

Symposium on Bruce Ackerman's The Decline and Fall of the American Republic

JB

Over the next few days, we'll be holding a symposium on Bruce Ackerman's new book, The Decline and Fall of the American Republic (Harvard University Press 2010), based on his Tanner Lecturers. The contributors will be Stephen Gardbaum of UCLA, Sandy Levinson of Texas, and Stephen Griffin of Tulane. Bruce Ackerman will write a response.
Posted 10:30 AM by JB [link]

DADT Injunction: Why the Sky Won't Fall

Jason Mazzone

Today, the Department of Justice filed an emergency application with Judge Virginia Phillips to stay, pending appeal, the injunction she issued on Tuesday against enforcement of Don't Ask, Don't Tell. The DOJ's basic argument is that DADT should be ended through the continuation of the repeal process that is already underway rather than by court decree. The DOJ says in its brief: "The precipitous changes required by the injunction would prevent the military from developing the necessary policies and regulations, and from conducting the necessary training and education of the force, to successfully adapt to the end of DADT." Among other things, the DOJ notes that ending DADT requires the Department of Defense to amend its policies governing personnel benefits, equal opportunity rules, and anti-harassment standards. And, the government says, if Judge Phillips is reversed on appeal, it will have to change all of those things again. According to the government, without a stay of the injunction there will therefore be disruption and confusion that will undermine military readiness.

Given that Judge Phillips hasn't thought much of the government's arguments so far, I think she will deny the application. The Administration will then go to the Ninth Circuit with the same request for a stay of the injunction.

Setting aside whether Judge Phillips' holding that DADT is unconstitutional was correct, the injunction might actually have little immediate effect. Here is why: It would be foolish for gay and lesbian service members to come out to their commanding officers before the case is reviewed on appeal (or before Congress ends DADT itself). Service members cannot be discharged while the injunction is in place. But given the reasonable possibility that Judge Phillips will be reversed on appeal (and that Congress will be slow to repeal the law), this reprieve may be temporary. In light of these uncertainties, gay and lesbian service members themselves have an interest in maintaining the status quo.

Immediately after Judge Phillips issued her injunction, the Servicemembers Legal Defense Network (a prominent organization seeking the end to DADT ) issued a notice that "Don't Ask, Don't Tell is still in effect" and advising service members not to do anything in response to the injunction because they remained in jeopardy of discharge. That's sound advice. Gay and lesbian service members will likely follow it while the process continues in the courts and in Congress. And so the sky won't fall.
Posted 8:22 PM by Jason Mazzone [link]

Getting Paid to Lose Weight

Ian Ayres

Crosspost from Freakonomics:

The results are in. I’m happy to report that my eBay auction ended with a winning bid of $282.85. Twenty-three bidders put in a total of 45 bids. The bidders were a mixture of seasoned eBay users (some with more than 150 eBay purchases) and newbie eBay users.

The winning bidder is a co-author of mine and auction guru, Peter Cramton. Peter has lots of friends in New Haven who will tell him if it looks like I’m not in compliance. Friendship, he tells me, was not his motive. In fact, he engaged in bid snipping – entering the fray with one minute to go (5 a.m.!) so as not to induce unwanted competition: “I definitely did not intend to push the price up,” Peter emailed me. “I was looking for profits. Profit maximization was my objective.” So I am especially indebted to eBay bidder “gody22” who bid $277.85 at 4:19 in the morning. It was gody22 (who is unknown to me) who pushed Peter up so high.

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Posted 4:51 PM by Ian Ayres [link]

Why I Continue to Hate the New York Yankees (as should everyone else)

Sandy Levinson

I have loathed the New York Yankees for more than half a century, ever since I realized that they epitomized mean-minded arrogance (not to mention oppression of their near-slave employees thanks to the "reserve clause" that allowed George Weiss, the tyrannical general manager, to pay Yankee stars a fraction of what they would have made in a free market). Everytime I think that I should perhaps "grow up" and realize that to err is human (and that Derek Jeter appears to be, at least most of the time, an admirable athlete and human being), I come across a story like this, in which the Steinbrenner family and the Yankee organization are denying a 77-year-old woman the right to quote from some entirely innocent letters that George Steinbrenner wrote her when he was attending Williams College. They are, of course, asserting their rights under copyright law. But there is always something amusing when the Steinbrenners assert their legal rights, since George seemed to have, shall we say, a touch of the Holmesian bad man about him with regard to any felt obligations to obey the law when it touched on his own interests. Thus, of course, he was a convicted (albeit pardoned by a Repubican President) felon for violating campaign contribution laws, and he was suspended by Major League Baseball for a year for his thuggish conduct vis-a-vis Dave Winfield. Generally, one shouldn't speak ill of the dead, but Steinbrenner is truly exceptional, as proved by this latest example of Steinbrenner (and Yankee) tyranny (however much this particular tyrannical conduct might be protected by law--which, of course, is all too often the case, as demonstrated by various acts of the Bush and now Obama administrations).

It deeply grieves me that Mark Graber, whom I adore as a virtual brother, continues to be a Yankees fan. Perhaps this latest example of unbridled excess will persuade him to see the error of his ways. Go Rangers (which is a phrase I thought I'd never utter, as Austinites are not in the habit of wishing Dallas teams well, especially a team that was once owned and mismanaged--remember who sold Sammy Sosa--by George W. Bush)!
Posted 2:48 PM by Sandy Levinson [link] (9) comments

Why Progressives Should Reject "Progressive Historiography" (And Caricatures Thereof)

Brian Tamanaha

Legal historian G. Edward White recently asserted that counter Progressive historical work (mainly Lochner revisionism) is becoming so prevalent “that one might say it is poised to become a new orthodoxy.” He’s right that the long dominant Progressive historical account is now under assault. My Beyond the Formalist-Realist Divide takes aim at a central component of it. But it is important to emphasize that one can attack Progressive historiography without being anti-progressive.

According to White,

Progressive legal and constitutional historiography began as early as the 1920s, and can in some respects be seen as a byproduct of sociological jurisprudence and Realism, which came to be the dominant jurisprudential perspectives of the 1930s and beyond….[I]ts practitioners held shared starting assumptions. American history was a clash of interests and classes. Judging was an instrumental, ideological exercise. Behavioralist analysis was the key to understanding judging. Law was a “mirror of society”: legal doctrine was a purposive (or unconscious) response to social conditions filtered through the lenses of political ideology.

Now comes the counter-Progressive position:

Counter-Progressive work assumes that describing American society as a shifting clash of classes and interests is simplistic and potentially pejorative, imposing anachronistic post-New Deal categories on past epochs. It assumes that judging is more than what the judge ate for breakfast or an imposition of the judge’s instinctive and class biases on public policy. It assumes that judges are importantly constrained by legal doctrine, so that the relationship between law and current political ideology is delicate and complex. And it assumes that law, far from being simply a “mirror of society,” is at any moment in time, in a dialectical relationship with American culture at large, so that law is both constitutive and reflective of its cultural setting.

This is obviously a loaded contrast—in which Progressive views appear narrow and extremist, while Counter-Progressive views seen balanced and respectful of law. Needless to say, conservatives love this contrast, which saddles contemporary progressives with the view that judging is all about politics (Timothy Sandefur does it again here; I don’t know White’s political views, and I admire his work, but the contrast he makes is false, as noted here.). This is the standard script for judicial confirmation hearings which allows conservatives to claim to be the champions of judicial fidelity to law, immediately putting progressives on the defensive.

Until this narrative changes, with fundamentally new lines drawn, progressives will be boxed in to a position on judging that is impossible to defend. Uprooting Progressive historiography (which is wrong in important respects), and challenging caricatures of progressive views, are necessary preludes to this change.

Of course progressives know, and have always known, that judges are (and should be) "importantly constrained by legal doctrine"!
Posted 12:23 PM by Brian Tamanaha [link] (5) comments

Constitutional Convention? If Sandy Wants it, Then It Must be a Leftist Plot

Brian Tamanaha

As readers of this blog know, co-blogger Sandy Levinson believes that our national political institutions are broken and the Constitution is largely to blame. According to this article in the American Spectator, a growing number conservatives think the same, and they are advocating a constitutional convention to rectify the problems.

Sandy's support for the idea, however, gives them pause:

Indeed, one reason for conservative suspicions is that liberals themselves have proposed a constitutional convention in order to make it easier to realize leftist policy goals. In 2006, for instance, University of Texas law professor Sanford Levinson wrote a well-received book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It). He argued for a convention in which the entire founding document is fair game.

There's nothing to worry about, according Robert Natelson (of Independence Institute). "The convention is bound by the nature of the call," Natelson said. "So if it's been told to propose an amendment forbidding the government from being involved in health care, that is the only issue it may address."

Don't count on it.

During the 1990 constitutional convention of the Federated States of Micronesia, a legal challenge was brought against the convention (while it was in session) on the grounds that, once convened, it improperly decided to alter the rules that purported to restrict its actions and agenda. The case went directly to the FSM Supreme Court.

As Legal Counsel representing the convention, I argued that the Court had no say in and no power over the convention. A duly constituted constitutional convention is the ultimate political body which cannot be bound by legal restrictions (of course, its actions must be later ratified to amend the constitution). I suggested (respectfully) that the court had no authority to even hear the case. They didn't much care for the latter argument, but they ultimately ruled in favor of the convention on political question grounds.

What struck me at the time, and today, is that this question cannot be answered by legal analysis. A constitutional convention is, in a sense, a meta-legal body. Natelson is much too confident in his view that the convention can be controlled.

To get conservatives on board, what Sandy should do now is come out against the convention--say, out of new found concern that it would be taken over by conservative TP activists who pursue amendments that make the constitution even worse than it already is.

[Postscript: As the article indicates, Randy Barnett is a leading conservative activist for a convention. He has drawn up a list of desirable amendments, some of which might appeal to conservatives as well as liberals (like his "repeal" proposal, in which two-thirds of the states may rescind any federal law or regulation). But I am puzzled by his proposal to limit congressional power under the Commerce Clause to its "original intent." A major benefit of a convention is that, at least for the new amendments, we can get away from (tendentious) historical analysis about "original intent" or "original meaning" and simply analyze what the amendments mean now. The best way to limit congressional power is to spell out the limits. (Perhaps that's what Barnett meant, and he wants the explicit limits to match the limits then.) Interpretation will still be required, but it will no longer turn on what people thought 200 years ago.]
Posted 5:37 PM by Brian Tamanaha [link] (19) comments

The DADT Injunction and the Obama Administration

Jason Mazzone

In issuing an injunction today prohibiting enforcement of Don’t Ask Don’t Tell, Judge Virginia Phillips has handed the Obama Administration a gift. Judge Phillips’s injunction applies immediately and everywhere in the world there is a U.S. military presence. Given the injunction’s sweeping scope, the Administration can now play both sides of the issue. It can maintain, plausibly, that it is opposed to DADT while asserting also that wholesale repeal by the stroke of a judge’s pen is too disruptive.

The Department of Justice can both appeal and not appeal. It can appeal the terms of the injunction as beyond the scope of Judge Phillips’s authority and argue to the appellate court that any relief Judge Phillips orders must be limited to the benefit of the plaintiffs before her or to the jurisdictional area of California where her court is located. At the same time, the DOJ can downplay objections to Judge Phillips’s ruling that DADT is unconstitutional; the DOJ can even forego entirely the constitutional issue on appeal. The message to gay rights advocates can be: “Judge Phillips is right.” The message to political challengers can be: “We’re appealing Judge Phillips’s ruling.”

The Administration likes to be all things to everyone. Judge Phillips has made this possible on DADT.
Posted 4:15 PM by Jason Mazzone [link]

The incoherence of the contemporary Right

Sandy Levinson

In a debate on the New York Times web site, conservative historian George Nash writes that "Like America's Founders, conservatives in 2010 prefer a government of an by, and not just for, the people." But if there's anything clear about the Founders, it is that they rejected far more than accepted "government by" the people, which, at least to a modern consciousness, suggests that ordinary blokes will in fact get to participate extensively in government. But, of course, the only directly elected officials in the entire national government, in terms of the original Constitution, were members of the House of Representatives (selected by the same electorate as voted for the state's more popular house, which allowed, as of 1787, a great deal of exclusions on ground not only of race and gender, but also of lack of property). And many contemporary Tea Partiers, including a number of their Republican candidates for office this year, want to repeal the 17th Amendment, which does allow for more government "by the people," inasmuch as it allows the populace to choose senators rather than leave that choice to state legislators. Furthermore, and even more obviously, there is not one smidgeon of direct democracy in the national system, even with regard, say, to ratification of the Constitution itself or of later amendments.

One must assume that the contemporary Right hates most state constitutions inasmuch as almost all of them are far, far more democratic than the United States Constitution. But the fact is that the Right really doesn't care about democratic governnace at the national level. What they want to do is to destroy the modern national political order and to replace it with a domestic America of, say, 1837, where the national government did almost nothing and the states did everything. If they were honest, they would take up the cudgels thrown down by Texas Governor Rick Perry and state forthrightly that they would rather see the Union destroyed than maintained in its present form.
Posted 11:44 PM by Sandy Levinson [link] (15) comments

Review of Inside Job

Frank Pasquale

In his review of Michael Perino's book Hellhound of Wall Street, Lawrence Cunningham observes that "Our predecessors were fortunate to have someone like Ferdinand Pecora to uncover top-secret financial shenanigans. No such person appears in our midst."

It's a tragic situation, especially because there are some real truth tellers out there---Yves Smith, Mike Konczal, Michael Greenberger, and many affiliates of the Roosevelt Institute come to mind. The difference between Pecora's time and ours is a fragmented and manipulated media that a) can barely follow a complex financial story for more than a few hours, and b) fastidiously counterbalances every account of a Wall Street misdeed with some "expert" assuring us that it's just business as usual in an industry that's way too complicated for ordinary people to understand.

Charles Ferguson's compelling film Inside Job steps in for a phantom mass media. Every citizen should be conversant with the narrative Ferguson weaves. Andrew Sheng, Chief Advisor to the China Banking Regulatory Commission, puts it in a nutshell: there was massive private gain in the US financial sector leading to massive public loss. Looking back, we might have all been better off if the finance tycoons profiled in the film had simply demanded hundreds of millions of dollars directly from the government back in 2000, and retired to Capri.

Instead, these deci- and centimillionaires helped build up the Rube Goldberg contraption of derivative deregulation, CDO's, and CDS's Ferguson describes. Fortunately, the film concisely explains that farrago in a way that will both educate the uninitiated and intrigue those who've read some books on the crisis. The film's real contribution lies in four arguments it makes.
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Posted 12:31 AM by Frank Pasquale [link]

Making It Easier to Be Honest

Ian Ayres

Crosspost from Freakonomics:

I was a little scared to get on the scale this morning. I had eaten copious amounts this weekend – including a quarter pounder at McDonalds.

But my fear was heightened because I knew that my weight would be automatically tweeted at twitter.com/ianweight:

You see, last week I received a wonderful new piece of technology, the withings wifi scale, and I have synched it to automatically report to a special Twitter account.

The scale is a bit pricey ($145 on Amazon), but works like a dream. Within 25 minutes of opening the box, I had the scale connected to the Internet and publishing my weight, BMI and body fat percentage (based somewhat crudely on bioelectrical impedance) data to withings.com, to the withings iPhone app, and to twitter. Easy-peasy. Since then, it has worked like a charm. Somehow it magically distinguishes between the four members of my family and tracks our info separately. Each member can separately choose whether and with whom to share the data. Consider this an unsolicited rave review.

(I am not sure how “withings” is pronounced – maybe “WI-things,” because they produce things that are wi-fi enabled.)

My biggest surprise is experiencing a new range of emotions (including excitement and a kind of fear) when I’m about to stand on the scale. I’m committed to reporting my weight honestly to stickK.com and stand ready to step up whenever my referee calls me to his scale. But notwithstanding my commitment to honesty, it’s a little scary to give up control over how I report the weight. What if the scale goes haywire and mistakenly reports that I weight more than 185 lbs? I’d have some explaining to do if I didn’t report a forfeiture that week on my maintenance contract.

The withings scale provides two connected values for dieters. First, it makes it easier for you to keep track of your weight. It seems like it shouldn’t be that much of a hassle to write down your weight after getting on the scale. For more than a year, I did that on Google docs. But every extra click reduces the chance that you will sustain the behavior. The automation of the recording process means that a lot of people are going to remain a lot more “mindful” of where they are and where they’ve been. Second, it makes it harder to fudge when you’re telling your weight to others. Even though “ianweight” currently has zero followers, the information is there for anyone to see.

Making it easier for others to verify my true weight should also reduce one anxiety bidders have about whether to plunk down money on my ebay auction. Because of the withings scale, they shouldn’t worry as much that they will have trouble finding out whether I violate the terms of my weight maintenance contract. The transparency of publishing my withings data to a Twitter account makes lying harder. On the other hand, the public disclosure of my weight is yet another form of accountability that might make it more likely that I will keep my weight in line.

By the way, as of this morning, the high bid in my auction was $110.

Posted 8:47 PM by Ian Ayres [link]

The NY Times on Clarence & Virginia Thomas

Jason Mazzone

The New York Times has a story about the political activities of Virginia Thomas, the wife of Justice Clarence Thomas. Part of the story suggests that Virginia Thomas may be improperly benefiting from Supreme Court decisions in which Justice Thomas was in the majority.

The Times cites Virginia Thomas’s role as leader of the organization, Liberty Central, in light of the Court’s 2010 decision in Citizens United v. FEC (which held unconstitutional restrictions in the Bipartisan Campaign Reform Act on corporations and unions funding independent political broadcasts in candidate elections). Here is what the Times says:

Nonprofit groups with political agendas like Liberty Central are operating in this election cycle under evolving legal and regulatory standards, most notably the ruling last January by the Supreme Court in the Citizens United case, which eased restrictions on independent campaign spending by corporations and unions. In that case, Justice Thomas, long an advocate of dismantling campaign finance restrictions, was in the 5-to-4 majority. Wealthy individuals and some corporations, emboldened by the ruling, are giving to such groups to influence the election but still hide their tracks.

Whatever one thinks of Citizens United, this criticism is framed at too high a level of generality to be compelling.
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Posted 7:20 PM by Jason Mazzone [link] (6) comments

4-4 Is Fine

Jason Mazzone

Justice Elena Kagan has recused herself from 25 of the 51 cases the Supreme Court has thus far agreed to hear this term. Most observers think she has made the right decisions in light of the recusal rules. But there has also been a good deal of commentary about the risk of 4-4 outcomes in those cases.

Senator Patrick Leahy has proposed legislation that would authorize the Justices to appoint, by majority vote, a retired Justice to fill the seat of a recused Justice. In explaining his proposal, Leahy said that it is designed to prevent the Supreme Court from being “rendered ineffective.” He reasoned: “Given the Court’s recent rash of 5-4 rulings, the absence of one Justice could result in a 4-4 decision. In that scenario, the Supreme Court cannot serve its function and the lower court decision stands.”

Leahy’s proposal strikes me as a solution in search of a problem.
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Posted 1:59 PM by Jason Mazzone [link] (11) comments

A Structural Approach to the Eighth Amendment

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

Douglas A. Berman


The Eighth Amendment's prohibition on "cruel and unusual punishments" presents a classic constitutional line-drawing problem: most punishments must be constitutionally sound, yet courts must find that at least a few punishments cross the ethereal line that demarcates a sanction as unconstitutionally "cruel and unusual." This line-drawing challenge has proven especially confounding to the Supreme Court. Reflecting the view of many commentators, Ben Wittes has described the Justices' Eighth Amendment work as "a jurisprudential train wreck." With a bit more understatement, the Supreme Court has itself admitted that "our precedents in this area have not been a model of clarity."
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Posted 6:00 AM by Guest Blogger [link]

Picketing At Funerals

Jason Mazzone

Today the Supreme Court hears argument in Snyder v. Phelps. The case pits the privacy interests of the father of a dead Marine burying his son against the First Amendment rights of strangers picketing at the funeral. As Neil Richards has said, respondent Fred W. Phelps, Sr. is the least likeable party in all of First Amendment jurisprudence. But I predict Phelps will win because even if the Court is inclined to apply lesser First Amendment protections to funeral protests, this is the wrong case for the Court to do it.
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Posted 1:00 AM by Jason Mazzone [link]

Tom Friedman can't see the elephant (or smell the rotting pig)

Sandy Levinson

Jack, among others, has commented on Tom Friedman's column in the Sunday New York Times calling for a third-party in 2012. Friedman quotes Stanford political scienitst Larry Diamond: "We basically have two bankrupt parties bankrupting the country." Friedman sounds like James Madison in condemning those now "leading" our country for a basic lack of republican virtue (as in "Republican Form of Government," not maximizing the interests of the Republican Party, which the Madison of the Federalst almost certainly would have regarded--like the Democratic Party--as a basically wicked "faction"). There is much to agree with in the column, and I think it's altogether possible that we will have a four-party election in which David Petraeus will be the Republican candidate, Sarah Palin will represent the Tea party, Barack Obama the Democrats, and Michael Blomberg (with Evan Bayh) the Friedmanite "responsible centrists."

But why can't Friedman connect the basic dots and realize that he is simply regurgitating one aspect of early 20th century Progressivism, i.e., the denunciation of wicked politicians and the valorization of elites ostensibly committed to the "common good" instead of the "interests," without recognizing what at least some Progressives, including Woodrow Wilson and Teddy Roosevelt (who are, interesting enough, very high on the enemies list of Glen Beck, who might well run as Palin's vice president), that we have a radically defective Constitution? Indeed, that period brought us a number of important constitutional amendments, including the 17th Amendment that at least some Tea Partiers are trying to repeal in order to give selection of senators back to state legislatures.
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Posted 10:58 AM by Sandy Levinson [link] (37) comments

The Tea Party: Puppet or Windup Toy?

JB

Glenn Reynolds informs us that he told us so: the Tea Party is the result of an Army of Davids self-organizing, routing around traditional power centers,"tak[ing] on big institutions who would rather not listen to them, and win[ning]". Jonathan Rauch at the National Journal marvels at the Tea Party's ability to organize without central leadership.

Meanwhile, in her New Yorker piece "Covert Operations," Jane Mayer points out that various Tea Party organizations are well funded by anonymous contributions from wealthy and powerful industrialists, while Frank Rich of the New York Times, in his "Billionaires Bankrolling the Tea Party," points out the role of Freedom Works, and the many rich and powerful interests that are using the different strands of the Tea Party for their own ends, while Paul Krugman chimes in with a similar assessment.
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Posted 6:50 AM by JB [link]

The Senate Confirmation Process

Gerard N. Magliocca

The following is an op-ed of mine that appears in today's Indianapolis Star. While this is a small piece of the problem that Jack discussed yesterday, I think that it's important.

Posted 7:55 AM by Gerard N. Magliocca [link]

The Senate Must Be Reformed

JB

Tom Friedman argues that there will be a third party candidate in 2012 because people are sick and tired of the two-party system. His concern?

a president who won a sweeping political mandate, propelled by an energized youth movement and with control of both the House and the Senate — about as much power as any president could ever hope to muster in peacetime — was only able to pass an expansion of health care that is a suboptimal amalgam of tortured compromises that no one is certain will work or that we can afford (and doesn’t deal with the cost or quality problems), a limited stimulus that has not relieved unemployment or fixed our infrastructure, and a financial regulation bill that still needs to be interpreted by regulators because no one could agree on crucial provisions. Plus, Obama had to abandon an energy-climate bill altogether, and if the G.O.P. takes back the House, we may not have an energy bill until 2013.

But all of these half measures resulted not from lack of political will or from a bankrupt two party system, but from the Senate's ridiculous rules, including the filibuster, which requires 60 votes to pass anything. With the filibuster, the likes of Ben Nelson (Mr. Cornhusker compromise) and Joe Lieberman (who depends heavily on support from insurance companies) decide national policy. Without the filibuster, one needs only 50 Democrats plus the Vice-President to pass reform legislation in the Senate. Without the filibuster, the stimulus is larger, heath care reform includes different (and likely better) compromises, and the financial regulation bill has teeth. Change the Senate rules, and American democracy works again--hardly perfectly, for it has many many other problems besides--but far better than it has for the last two decades.

The problem, as I have said over and over again since Obama's election, is the Senate. It has been for some time. If we want to save American democracy, the Senate has to be reformed.
Posted 9:00 AM by JB [link]

Punishment and the Constitution in 2020: Luck or Law? The (Uneasy) Constitutional Case Against Indeterminate Sentencing

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

Dan Markel

Nearly forty years ago, Judge Marvin Frankel famously spotlighted attention on the uncabined discretion available to judges in sentencing matters, writing that "[t]he almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law." At the time, such "unchecked and sweeping" powers belonged not only to federal judges but also state judges who similarly operated with little structure or appellate review to guide sentencing choices. As we all know now, Frankel’s policy entrepreneurship helped create the conditions for sentencing reform at the federal level and across many states over the subsequent four decades.

What is less well-known, however, is that trial judges in the majority of states in this nation still operate without any meaningful structure or appellate review to guide sentencing choices. Indeterminate sentencing -- by which an offender can face an increase in punishment simply for having a surly demeanor or for having been suspected of charges that were never brought -- is a design that still prevails around the several states. Perhaps less disconcerting (to some) but no less odd (to many), a defendant can receive a reduction in punishment from that which would otherwise be given because the judge knows the defendant goes to church or has done some form of community service in the past.
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Posted 6:00 AM by Guest Blogger [link]

Fix Medicare's Bizarre Auction Program

Ian Ayres

Crosspost from Freakonomics:

Here’s a piece co-authored with auction guru Peter Cramton, a professor of economics at the University of Maryland:

Fix Medicare’s Bizarre Auction Program

By Ian Ayres and Peter Cramton

Harry Truman once quipped, “Give me a one-handed economist! All my economists say, ‘On the one hand, on the other’” Often even a lone economist has difficulty making a recommendation. While true on certain matters, there are many issues where economists do agree about the right and wrong course of action. A case in point is competitive bidding for Medicare supplies.

Economists and other auction experts agree that using administrative prices from 25 years ago to set Medicare prices is a bad idea, and that a much better approach is to price Medicare supplies in competitive auctions. That is not surprising. What is surprising is the degree of consensus that Medicare’s shift to auctions is fatally flawed and must be fixed for the Medicare auctions to succeed in lowering costs while maintaining quality for medical equipment and supplies.

For the last ten years, the Centers for Medicare and Medicaid Services has been testing an auction approach that is incredible in the inefficiency of its flawed design. This policy brief lays out a number of weaknesses with the auction procedure but it is sufficient to focus on the interaction of just two:

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Posted 3:20 PM by Ian Ayres [link]

Bodies, Borders, and the National Security Sovereign

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

John T. Parry

In “America and the World, 2020,” one of the essays in The Constitution in 2020, Harold Koh suggests that before 2001, the executive branch was “checked by an energetic Congress and overseen by a searching judicial branch,” and there were no such things as “law-free zones, practices, courts, or persons” (316). He follows these claims with a catalog of some of the George W. Bush administration’s post-9/11 claims about expansive executive authority over national security issues.

There is no question that the Bush administration had a strong conception of itself as a “national security sovereign.” But Koh’s phrasing suggests that this conception was a new thing in American law and politics – that before 2001, the president was constrained and hemmed in by the other branches and by a pervasive rule of law.

I want to contest that claim from the perspectives of the law of international extradition and the practice of irregular rendition as they existed before the “war on terror.” Extradition traditionally has been an area – like immigration – in which the executive branch enjoys enormous discretion over the movement of bodies across borders and in which federal courts tend to defer to executive action. Thus, Second Circuit Judge Jon O. Newman wrote in LoDuca v. United States (1996) that, if there were no federal extradition statute, “the Executive Branch would retain plenary authority to extradite.” Plenary authority, that is, to seize people and expel them from the United States without process so that they can face criminal proceedings in another country. Statements of this kind – and there are many in the federal reports – indicate that extradition provides a useful way to get at the nature of the national security sovereign today and to say a bit about the kind of national security sovereign we might have in 2020.
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Posted 6:53 AM by Guest Blogger [link]

Selling My Addiction

Ian Ayres

Crosspost from Freakonomics:

An unusual auction began late yesterday on eBay. I’m selling my “right to regain weight.” Why would anyone in their right mind be willing to pay me cash to buy this right? What does this even mean?

It’s simple. The winner of the auction wins the rights to receive any forfeitures on my stickK weight maintenance contracts over the course of the next year. As I say in the eBay item description:

Following the auction’s close (and as soon as I receive payment from the auction winner), I will designate the winner as the recipient of any forfeiture payments made on my www.stickK.com maintenance contracts for the next 52 weeks.

Any week during this 52-week period where

(i) I fail to report to stickK my progress on the contract;

(ii) I report that my weight is above 185; or

(iii) My referee, Barry Nalebuff (Yale game-theorist and Ayres coauthor), reports that my weight is above 185 lbs

the auction winner will receive $500.

So, I’m selling the right to receive any and all stickK forfeitures during the next year. I’m auctioning my stickK contracts. Since I’m putting $500 at risk each week, the auction winner will receive somewhere between $0 and $26,000.

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Posted 2:10 PM by Ian Ayres [link]

Information Empowerment and Social Control

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

Wayne A. Logan

It is safe to assume that in 2020, like today, a significant majority of the nation’s convicts will be subject to community supervision of some kind, not prison or jail. If the recent past serves as a guide, the correctional regime that they experience will be heavily information-based.

Convict information, assembled and disseminated to communities, played a linchpin role in what was arguably the defining social control innovation of the late twentieth century, sex offender registration and community notification (RCN) laws. The laws, now in effect nationwide and sweeping up roughly 700,000 individuals, utilize two distinct yet complementary information-based strategies. With registration, targeted individuals must provide identifying information to governments in the hope of instilling a surveillance effect (hence deterring recidivist misconduct) and enabling police to investigate reported sexual offenses. With community notification, this information is spread among communities, in the hope of empowering families and individuals with information to take self-protective measures against sexual abuse and to help police monitor registrants.
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Posted 6:08 AM by Guest Blogger [link]