Monday, February 28, 2011

Supreme Court Ethics: Of Geese and Ganders

Jason Mazzone

Supreme Court ethics are in the news.

The organization, "Common Cause," recently asked Attorney General Holder to investigate whether Justice Scalia and Justice Thomas should have recused themselves from Citizens United v. FEC, the 2010 decision in which the Supreme Court invalidated federal restrictions on political campaign ads by corporations and unions. The gist of Common Cause's wide-ranging complaint is that the two justices "attended . . . retreats sponsored by Koch Industries, the second-largest privately held corporation in the United States and a major political player that directly benefited from the Citizens United decision." Common Cause reports that after the Court loosened restrictions on campaign spending, Koch Industries spent $2.6 million in the 2010 election cycle, mostly to benefit Republican candidates. Common Cause claims that the two Justices's participation in the Citizens United case after they had attended Koch-sponsored events raises "serious issues of the appearance of impropriety and bias." Common Cause also cites as additional evidence of impropriety the political lobbying activities of Justice Thomas's wife, through an organization that receives contributions from (unnamed) corporations.

Meanwhile, some law professors have called on Congress to impose on the Supreme Court Justices the same ethics rules that apply to lower federal judges. Although short on details, the professors ask that Congress require members of the Supreme Court to issue a written decision explaining any denial of a motion to recuse and urge the creation of a panel, consisting of some of the Justices or outside experts, to review recusal denials. According to news reports, these professors are also motivated by concerns about connections between Justices Scalia and Thomas and the Koch family.

It would, of course, be wrong to turn on the investigatory machinery or craft new recusal requirements on the basis of complaints by special interest groups against particular Justices and about particular decisions with which those groups disagree. Because all of the Justices would be vulnerable to investigation and bound by new rules, one needs to think generally about the wisdom of the Attorney General investigating or Congress legislating. To that end, let's test the wisdom of these proposals by thinking not about Scalia and Thomas but about Ginsburg.
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Friday, February 25, 2011

Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform

Andrew Koppelman

Two federal district judges have invalidated the so-called “individual mandate” in the Patient Protection and Affordable Care Act of 2010. Their reasoning is bizarre and mischievous. The novel approach to constitutional law that they propose would misread the Constitution, betray the intentions of the framers, and cripple the nation’s ability to address one of its most pressing problems.

The correct legal analysis is simple. Congress has the authority to solve problems that the states cannot separately solve. It can choose any reasonable means to do that.

I’ve been saying this here for months in a series of short posts. I’ve now posted a paper on SSRN that pulls together the whole argument.

Jury Nullification on Trial

Jason Mazzone

As the New York Times reports, the federal government has indicted Julian Heicklen on one count of jury tampering in connection with his distribution outside the federal courthouse in lower Manhattan of pamphlets advocating that jurors refuse to apply laws with which they disagree. In the days when jurors played a greater role in interpreting statutes, nullification was an available tool for reining in overreaching government actors. Today, of course, judges instruct jurors that they must follow the law as the judge provides it. As a practical matter, though, there is little that can be done to remedy a verdict that is based on the jury's belief that the law they are asked to apply is unjust. Heicklen is charged under 18 USC s 1504, which provides:
Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned not more than six months, or both.
Heicklen's case is far from the usual section 1504 case in which somebody tries to reach a juror to influence the juror's vote in a specific case. The government faces several hurdles in prosecuting Heicklen.
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Thursday, February 24, 2011

Holder's Gamble

Jason Mazzone

In my first-year constitutional law course, we do an exercise involving footnote 4 of Carolene Products. Tracking the language of that footnote, I ask my students to identify the "discrete and insular minorities" against whom there is "prejudice" that "curtails the operation of . . . political processes" that "ordinarily . . . protect minorities" so that a "more searching judicial inquiry" is warranted when the government draws classifications involving members of those minority groups. The discrete and insular minorities my students identify vary from year to year but we always end up with a long list (and a lively debate about which groups should receive special protection from the courts).

My students are often surprised that after we work our way through the equal protection cases, the Supreme Court's own list of suspect classes is very short. Students sometimes ask if we just didn't cover a whole set of cases. No, I tell them, this is all there is. Students also suggest the Court is simply slower in identifying all of the groups who merit special judicial protection and there are surely more cases to come. My response is that there is in fact very little likelihood that the Court will hold that a classification involving any additional group triggers a heightened form of scrutiny.

Accordingly, I teach my students that in arguing cases (or, of more immediate concern to them, answering an exam question), they are unlikely to prevail if they argue for recognition of a new suspect class in accordance with footnote 4's framework. (As somebody who also teaches criminal procedure, where the Court hardly ever talks about levels of scrutiny, I also tell my constitutional law students not to obsess over whether or not courts use buzz words like "suspect classification" and "strict scrutiny" but to pay attention to the nature of the judicial review being conducted.)

In light of all of this, I am less moved than are other observers by Attorney General Holder's announcement yesterday concerning DOMA.
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Is Obama's Position on DOMA an Executive Power Grab?

Guest Blogger

Walter Dellinger

Orin Kerr's post on Volokh Conspiracy comparing what the Justice Department has announced it will do in DOMA cases to some of John Yoo's theories of presidential power doesn't give proper weight to the enormous difference between refusing to obey a law (which the Bush administration did -- and secretly!) and obeying the law which the Obama administration will continue to do with DOMA. Informing the courts of the administration's view that a law is unconstitutional, while facilitating the participation of amicus who will argue in defense of the law, is respectful of the role of the other branches, both Congress and the judiciary. This October 2010 article in the New York Times discusses the differences:

[T]he government has an obligation to comply with the nation’s laws, regardless of whether the president agrees with a particular statute. Doing otherwise would also set a precedent justifying similar nullifications by future administrations. The next president might, for example, decide not to enforce the recent health care reform law; all he would need would be a single ruling against the law by a single district court judge, which he would then refuse to appeal.

Presidents in rare instances can determine that a law is unconstitutional and decline to comply with it. But a 1994 opinion by the Office of Legal Counsel (where I was the head) concluded that a president can do so only under very special circumstances, including a conclusion on his part that it is “probable” that the Supreme Court would agree with him . . .

[Presidents, however] have another option: while appealing the lower court’s decision, [the President] could have the Justice Department tell the appellate court that the executive branch believes the law is unconstitutional.

In other words, the Justice Department would take the formal steps necessary to defend the law, but it would also make substantive arguments about why the law should be struck down. The Supreme Court could still vote to uphold the law, but the president’s position could significantly influence how the court rules.

Doing so wouldn’t unfairly strip the law of adequate defense: if the administration took a stand against the law, the appellate courts would very likely allow lawyers for Congress or outside groups to appear and argue on its behalf.

This approach is not unprecedented. In 1943, Congress passed a law prohibiting the payment of salaries to three particular government employees. Arguing that the law was unconstitutional, the employees sued and won in claims court. The solicitor general asked the Supreme Court to review the lower court’s decision, but he also told the justices that the administration agreed with the original ruling; the court ultimately struck down the law.

That case and others like it provided a precedent for President Bill Clinton in 1996 both to comply with a law requiring the military to discharge service members who had H.I.V., and at the same time inform the courts that he found it to be unconstitutional. Thanks in part to support from the military, Congress repealed the law before litigation ensued.

Telling the courts that a federal law should be struck down is not a position to be taken lightly by a president wary of overstepping his bounds. But if he concludes that the law restricts important liberties without advancing a government purpose, he has the right to say so. After all, while courts usually defer to Congress on such questions, the president is under no such obligation: he is a constitutional officer entitled to his own views on governmental necessity, particularly on matters of national defense.

Walter Dellinger is the Douglas B. Maggs Professor of Law at Duke University. You can reach him by e-mail at wdellinger at

Wednesday, February 23, 2011

A whole new ball game on DOMA and same sex marriage


Back in July 2010, Judge Tauro in the federal district court in Massachusetts issued a pair of decisions overturning the Defense of Marriage Act (and offering some rather creative tenth amendment rhetoric). I was quoted in the New York Times as saying "What an amazing set of opinions . . . No chance they’ll be held up on appeal."

I can't say that now.
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AG Holder on DOMA

Jason Mazzone

In a letter today to Speaker Boehner, Attorney General Holder advised that pursuant to a directive from the President, the Department of Justice will not defend section 3 of the Defense of Marriage Act in cases currently pending in the Southern District of New York and the District of Connecticut. Those cases, Windsor v. United States (S.D.N.Y.) and Pedersen v. OPM (D. Conn.) involve challenges to section 3 of DOMA (which defines marriage for purposes of federal law as a union between a man and a woman) by same-sex couples legally married under state law. Holder reports that the administration has concluded that sexual orientation classifications merit heightened judicial scrutiny and that under that standard, section 3 is unconstitutional. Because no "reasonable" argument can be made in defense of section 3's application to married same-sex couples, "the proper course is to forgo the defense of this statute."

This sounds like heady stuff. Refusing to defend DOMA because it is unconstitutional would be a dramatic development. But a close reading of Holder's letter suggests that what the DOJ is actually doing is considerably more modest.

The key paragraph in Holder's letter is this one:
In light of the foregoing, I will instruct the Department’s lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard. Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.
In other words, the actual position of the DOJ (which will remain in the case) is that if the courts agree with the government that heightened scrutiny is the appropriate standard, then the plaintiffs should prevail because section 3 of DOMA does not satisfy the heightened scrutiny test.

Whether the district courts (and the Second Circuit) will apply heightened scrutiny is an open question. Following the lead of other courts, they might conclude that rational review applies. If so, the government's position is that section 3 is constitutional under the rational standard.

Holder's opening rhetoric aside, the mechanics of the DOJ's position fall far short of a refusal to defend DOMA.

A Chauffeur's Dilemma for Wisconsin's Police

Frank Pasquale

Kevin Drum has explained events in Wisconsin well. Whatever you think of public sector unions, Gov. Walker's proposals ring alarm bells because they are so high-handed. They are also embedded in a larger package of crony capitalism, authority for infrastructure giveaways, and Medicaid-mongering.

What's particularly striking about Walker's proposal is that it carves out favors for certain public sector unions which supported his election, including the police. These same unions may need to decide whether, in the event of continuing protests, to forcibly remove "agitators" and round up Democratic state senators. At that point, they might face what Arlie Hochschild has memorably styled "the Chauffeur's Dilemma:"

Let's consider our political moment through a story. Suppose a chauffeur drives a sleek limousine through the streets of New York, a millionaire in the backseat. Through the window, the millionaire spots a homeless woman and her two children huddling in the cold, sharing a loaf of bread. He orders the chauffeur to stop the car. The chauffeur opens the passenger door for the millionaire, who walks over to the mother and snatches the loaf. He slips back into the car and they drive on, leaving behind an even poorer family and a baffled crowd of sidewalk witnesses. For his part, the chauffeur feels real qualms about what his master has done, because unlike his employer, he has recently known hard times himself. But he drives on nonetheless. Let's call this the Chauffeur's Dilemma.

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The Constitution in 2020: the Caesars or the Tudors?

Guest Blogger

Adrian Vermeule

A trope of tyrannophobic political discourse compares the American presidency with the government of the Caesars. T.B. Macaulay addressed a comparison between the Caesars and the Tudor monarchs (Henry VII, his son, and his grandchildren) in terms both withering and illuminating:
It has been said … that the Tudors were as absolute as the Caesars. Never was a parallel so unfortunate. The Caesars ruled despotically, by means of a great standing army, under the decent forms of a republican constitution. Our Tudors, on the other hand, under the titles and forms of monarchical supremacy, were essentially popular magistrates. Though the legal checks on their activities were feeble, the natural checks were strong. It was impossible for them to carry oppression beyond a certain point. They knew that, if the patience of the nation were severely tried, the nation would put forth its strength, and that its strength would be found irresistible.(Macaulay, Burleigh and His Times, in the Essays).
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Tuesday, February 22, 2011

Schmitt and Post-9/11 Legal Thought

Mary L. Dudziak

This is the second post in a short series on post-9/11 legal thought.

One of the more curious turns in post-9/11 legal scholarship was the embrace of the work of German theorist and Nazi Party member Carl Schmitt. References to Schmitt proliferated in an ongoing discourse of exceptionality (the idea that normal time had been ruptured by non-normal time). Schmitt’s most widely invoked quote was that the “Sovereign is he who decides on the exception.” This seemed to fit the post-9/11 context perfectly, since President Bush had declared that an exceptional moment, a wartime, had commenced with the September 11 attacks. Italian philosopher Georgio Agamben was also turned to. He draws from Schmitt’s theory of sovereignty to develop a radical critique of the modern state, arguing that states of exception tend to become normalized. (The scholarly consensus is described here.)...Consistent across this literature was the idea that time had changed on September 11, that it had ushered in a new era... Citations to Schmitt in legal scholarship steadily increased. A search of the Westlaw legal periodicals database shows twenty-four citations to Schmitt in 2001, twenty-nine in 2002, fifty-one in 2003, and eighty-six in 2009. Important and influential works invoked Schmitt’s ideas....Many criticized the turn to Schmitt, but curiously critics continued to incorporate Schmitt into their analysis of executive power. This illustrates the way invocations of Schmitt became a language for discussions of executive power, even for scholars who decried his influence.

This is an intro/summary.  The post, including a chart tracking cites to Schmitt, is below the fold.

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The Search for Authority

Gerard N. Magliocca

Last month I read an excellent paper by Jamal Greene on the constitutional anti-canon. (The draft is not on SSRN but soon will be.) One interesting feature of Professor Greene's argument is that there was no anti-canon until the 1960s. Prior to that time, there were cases that people saw as wrong, but none were considered so wrong that they should be upheld as precedent of what not to do. Today, of course, some cases are used that way (e.g., Dred Scott, Plessy, Lochner, and Korematsu) by judges and scholars who want to buttress their reasoning ("My theory could never lead to one of those awful results") or attack the reasoning of others ("Your logic would lead to those awful results.")

Why did this methodological change occurred in the 1960s? With respect to race, the link between the Civil Rights Movement and the banishment of the leading cases on slavery and segregation is obvious. The connection to the liberty of contract is not as clear, but presumably the Court's development of the right of privacy (starting in Griswold) required them to find a way to sharply distinguish between those unenumerated rights and the economic liberty cases decided between the defeat of William Jennings Bryan and the reelection of Franklin D. Roosevelt.

More broadly, the development of the anti-canon illustrates on ongoing problem in constitutional law. As the gap between the text and the doctrine gets wider over time, new rhetorical devices are required to synthesize those sources. My hunch is that the next stage of this process will involve the increasing use of historical counterfactuals, which is one reason why I am focusing on that tool in my own work. Hypotheticals were widely used in Roman law as authorities that were tantamount to actual decisions, and more research into that intellectual tradition is warranted.

Sunday, February 20, 2011

Minority Report: Leon Neyfakh on Risk Prediction

Bernard E. Harcourt

Leon Neyfakh, over at the Ideas section of the Boston Globe, has a fascinating piece today on the increased use of risk prediction instruments, "Inside the new science of predicting violence." Neyfakh covers the ground extremely well and even-handedly, discussing the important contributions of John Monahan and his colleagues, Richard Berk at Penn, and others.

Neyfakh raises some criticisms of risk prediction, and the only thing I would add is that, even if you assume that these prediction tools work, in all likelihood their use undermines the goals that they are intended to promote. We usually adopt these risk prediction instruments with the goal of reducing future crime. The fact is, however, that profiling on risk likely is going to increase overall crime in society, either because (if you believe that people are “rational actors” and change their criminal behavior based on the amount of punishment) the profiled people are less likely to respond much to the increased punishment whereas everyone else will respond much more to the decreased punishment, or because (if you believe that people don’t change their behavior because of the amount of punishment) profiling is going to disproportionately affect the profiled group, which is going to have devastating effects on their employment, family, and social outcomes.

There arguments are a mouthful, I realize, and I spell them out in detail in Against Prediction, but just to be clear, let me give a paragraph to each. First, even if we assume that individuals respond to increased punishment by offending less (even if we adopt the economists’ assumptions of choice), the overall long-term effect is likely to be counter-productive if the profiled population is less responsive to punishment than the non-profiled population. Profiling may well deter crime among the profiled population, but if so, it will likely increase the offending rates of non-profiled groups. If those others are more responsive to changes in punishment, then the overall rate of crime in society will go up. And the truth is, we have no idea about the comparative responsiveness of different groups to punishment, but a reasonable and conservative guess is that, if a population has a higher offending rate, it probably is less elastic to punishment. Most explanations for why a group would have a higher offending rate than other groups would also suggest that the group is less responsive to punishment.

Second, even if people don’t change their behaviors in response to punishment, the problem is that profiling is going to have a disproportionate effect on members of the profiled population and this distortion is only going to get worse with every new annual crime statistic. It may surprise, but the only way to get a prison population that reflects the offending population is to police and punish randomly: to sample randomly. That’s why we use random sampling in the social sciences. Anytime you start picking and choosing, your sample is going to be skewed. And the point is, the skew has devastating consequences for the profiled group, not only on their criminal justice outcomes, but also on their job potential, on their educational outcomes, and on their family lives—which in turn fuels increased criminal activity.

The bottom line is that there is no good law enforcement argument for profiling on risk prediction: the practice is in all likelihood counter-productive to the very goals of law enforcement. The other big danger, of course, is that these risk instruments rely increasingly on prior criminal history and, because of disparate treatment in policing, prior criminal history is increasingly a proxy for race. Therefore, the use of these risk tools is likely going to worsen the already disproportionate effect of the criminal justice system on minorities.

Neyfakh ends his article with an interesting conundrum—the question of where all this will lead us. Neyfakh recounts: “Supposing I am able to tell a mother that her 8-year-old has a one in three chance of committing a homicide by age 18,” says Richard Berk at the University of Pennsylvania. “What the hell do I do with that information? What do the various social services do with that information? I don’t know.”

One answer, I take it, would be to divert more resources toward that youth. That’s exactly what the City of Chicago began to do over the past year, with school officials creating a “risk model” to predict who is more likely to be the victim of gun violence and then to target mentoring and other resources toward them. In other words, to affirmatively target higher-risk youngsters so as to reduce the odds.

As a critic of prediction, that’s the toughest case for me. Is it alright to use risk prediction to target treatment to youth in order to help them beat the odds? I’m afraid the answer, again, is no, because it’s likely that the diversion of resources away from the youths who are less at risk is likely to have a greater and more detrimental effect on them. The best bet is to invest equally in our youths. Equally, and heavily.

American's Panel on Guantanamo

Deborah Pearlstein

Cross-posted at Opinio Juris

It felt like a lively discussion Friday at the panel hosted by American University scholar Dan Marcus on “Guantanamo Detainees – What Next?” (Many thanks to Ken for plugging it earlier in the week. I take it the session will at some point be available among webcasts on the law school website.) Jack Goldsmith gave a keynote address to a very full house, and then Bobby Chesney (UTexas), Steve Vladeck (American) and I had a chance to respond and interact. It felt a little like old home week with folks like Gene Fidell, Marty Lederman, Geremy Kamens (Hamdi’s defense counsel) and Ken Troccoli (Moussaoui’s defense counsel) in the audience. Good to see everyone, and thanks to all for an engaging conversation.

For those of you who’ve been following this for a while, I’m not sure we broke any major new ground, but a few points may be worth mentioning. Jack Goldsmith is no longer arguing in favor of a statutory fix to the Guantanamo problem in the form of a clearer AUMF-type authorization. As he rightly notes, the D.C. courts have now in key respects answered questions of what habeas hearings look like procedurally, and even who may be detained. I hardly agree with the courts’ answers in all these respects, but I wholeheartedly agree that congressional involvement at this point to try to “clarify” the law in those habeas cases would only set back the litigation clock another 8 years. We were also quite in agreement about many of the deficits of the military commissions. And there was vigorous, bipartisan consensus on the panel about Congress’ foolhardiness – either as a matter of constitutional power or as disastrous policy or both – in trying to prevent the criminal prosecution of any of the Guantanamo detainees under any circumstances.

On the subject of Congress’ attempts to prohibit the transfer of Gitmo detainees to the United States for trial, a number of people in and outside government have floated the idea of creating D.Gtmo – bringing Article III judges to Guantanamo to hold federal criminal trials there. The question was raised again Friday. (Feel free to out yourselves in comments, I just didn’t want to do it for you without asking.) The notion is that detainees might waive jury trial (so avoid the deeply problematic question of how to get impartial civilian jurors to Gitmo) in exchange for an actual prosecution of some kind. And there is (Steve Vladeck notes) at least some, albeit equivocal precedent for the idea of creating a federal district of sorts outside the territorial United States. It’s a creative suggestion, and in principle I don’t much care where Article III trials are held as long as they involve Article III judges and Article III process. But this proposal, like everything with Gitmo, comes with its own set of problems. First and probably most problematic, one would still need congressional authorization. Perhaps the politics of trials at Gitmo are different from the politics of trials in NYC. Hope springs eternal. Then there must be some question of venue, which as Padilla reminded us, may actually matter from time to time. And there is also the dilemma of detainee incentives. Detainees have done quite well for themselves overall in reaching plea agreements under the military commission system, achieving rather minor sentences compared to the equivalent defendants facing federal courts. (Only one of the ironic features of Congress’ preference for commissions over courts.) Defense counsels’ relative success in this regard hardly makes the outcomes legitimate. Among other things, commission defendants may be pleading “guilty” to offenses that don’t actually exist as war crimes under international law. But if they can get a lesser ‘sentence’ in commission bargaining than in criminal plea bargaining, why would any defense attorney recommend that her client waive jury trial to get access to the potentially more punitive federal courts?

To my ear, the single area of most apparent disagreement was on the question of the need for some additional, military detention power going forward. That is, setting aside the thorny dilemma of how to resolve the unique mess at Guantanamo Bay, aren’t we losing something as a matter of policy, or creating incentives (to kill rather than capture) if we don’t find some source of authority more robust and enduring than Congress’ 2001 Authorization for the Use of Military Force to enable the ongoing detention of international terrorists? A fair and important question. I’ve written about this a lot before e.g. here and here and at the panel today, so I won’t rehearse my arguments again. For what it’s worth, I argued Friday I don’t think we are losing much.

All the Right Moves

Frank Pasquale

I've talked in previous posts about a "closed circuit" economy among the wealthy. A plutonomy at the top increasingly circulates buying power (be it luxury goods, real estate, gold, or securities) among itself. The middle class used to dream that a rising Wall Street tide would lift all boats; as Felix Salmon shows, that hope is fading. Whatever innovations arise out of these companies aren't doing much for average incomes.

On the other hand, financial innovation has done wonders to extract purchasing power from the broad middle into the closed circuit at the top. Here, for example, is how one of our leading firms created enormous value in 2006:

Consider the tale of Travelport, a Web-based reservations company. [A] private equity firm and a smaller partner bought Travelport in August 2006. They paid $1 billion of their own money and used Travelport's balance sheet to borrow an additional $3.3 billion to complete the purchase. They doubtless paid themselves hefty investment banking fees, which would also have been billed to Travelport.

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Saturday, February 19, 2011

Reducing Mass Incarceration – It's Not About "Free-Market Innovation," Grover Norquist!

Bernard E. Harcourt

There have been several fascinating interventions on the question of reducing mass incarceration since I last posted on Reducing Mass Incarceration, and they have ranged the political spectrum with important contributions from Mike Konczal at the Roosevelt Institute, Josh Brokaw over at, Scott Keyes at Think Progress, and Grover Norquist at the National Review Online. The Justice Policy Institute also just released a report criticizing President Obama’s budget for “an 11 percent increase from FY2010 in spending on the federal prison system and slash[ing] funding for juvenile justice programming dedicated to providing opportunities for positive life outcomes for youth involved in the justice system.”

Some commentators believe that the on-going state budget crises have already triggered a new climate of bipartisanship on punishment that is likely to reduce prison populations. Others are touting economic considerations as the path to reform. And, to be sure, we have seen the rate of prison growth plateau with the financial collapse and even some states reducing their prison populations.

But one problem with the embrace of austerity as the means to prison reform is that it attributes too much to economics and fails to appreciate the dynamics that led to the prison excess. Mike Konczal makes the excellent point that the budget crisis alone is not going to solve the underlying problems—and in fact, may exacerbate them: “During times of budget stress you see an increase in fear among the general population. So any desire to use the state’s balance sheet as an argument for changing prison policy is going to be offset by an increase in an xenophobia and retrenchment that expresses itself most forcibly in the language of crime control.” Marie Gottschalk makes the same point in her work.

Deficits and austerity alone will not bring about reform. There needs to be federal leadership. The experience of the Great Depression, the New Deal, and 1960s deinstitutionalization suggest strongly that economic woes alone do not reduce prison population and may in fact increase general anxiety and fear of crime. The privatization of prisons creates additional lobbying pressure for politicians to maintain current levels of prison populations. And as we have seen in New York State, the weak economy is actually pushing many counties in the northern part of the state to explicitly combat prison closings or retrenchment because that is their only source of economic viability.

I would argue that, if anything, economic logics have facilitated, not hindered, our penal excess in the last forty years—which is the essential point of my new book, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard 2011). Our increasing faith in the efficiency of markets has propelled policing and punishment as practically the only space of competence and efficient government intervention. The consequence, whether intended or not, has been to make it easier to resist government intervention in the marketplace, but to embrace the criminalization and punishment of anything we can call disorder. It facilitates passing new criminal statutes and wielding the penal sanction more liberally because, it is illogically believed, that is where government is necessary, that is where the state can legitimately act, that is the proper and competent sphere of politics.

It is truly puzzling how a society marked by such strong fear of big government and skepticism of government efficiency and by such resounding embrace of free market ideals, would paradoxically create the largest government-run prison bureaucracy in the world—in raw numbers or per capita. It is time to put aside the ideology of self-regulation or free markets, and begin to lead the way toward addressing this social disaster.

The answer is not "free-market innovation," as Grover Norquist suggests in the National Review. Norquist writes that the only way to reform the prison system to “both keep Americans safe and save money” is if we “return to conservative principles of local control, performance-based funding, and free-market innovation.” The example Norquist uses is Texas, where incarceration rates went down 8 percent while the crime rate dropped 6 percent. Those are great statistics, but what did the "free market" have to do with that? In his own words, Texas took inmates out of prison and “placed them under community supervision, in drug courts, and in short-term intermediate sanctions and treatment facilities.” That’s not free market economics (even if there were such a thing as a free market), that’s recognizing full well that the social sphere is fully regulated and that what we need to do is regulate more wisely. But there is nothing free about it. [Incidentally, this is exactly what was done during the deinstitutionalization of the 1960s].

I mentioned President Kennedy's programs and calls for action to deinstitutionalize mental health patients in 1963 in the last post and asked whether it would ever be possible to hear a President of the United States say something similar about mass incarceration today? Hard to imagine, I said. But let me emphasize again, it will not be possible to make much headway in reducing mass incarceration even with our recession without the kind of political investment, will, and reregulation that President John F. Kennedy demonstrated in 1963.

There is no good reason to leave the problem of mass incarceration to economics—especially free market economics. The economic stress on budgets is unlikely to produce effects without federal leadership and a clear understanding that what we are doing is reregulating a regulated sphere.

In all this, it will be especially important not to replicate the hyper-prison by other institutional means, nor to worsen the racial imbalance in our criminal justice system. We need to avoid compounding, rather then reforming. Mike Konczal draws an excellent parallel to broken-windows strategies (another one of my pet peeves). Konczal writes that the dark side of broken-windows is that you may get the worst of both: “yes, we can criminalize petty early activities and have a massive prison system.” Or, as I argued a few years ago in the Boston Review, you end up with “both lengthened sentences for hardcore offenders and order-maintenance policing.” We need to make sure that, in the process of reforming the prison, we don’t compound the prison with other equally problematic forms of social control.

In sum, this conversation needs to address the larger political economic issues, many of which are in evidence in Wisconsin right now. Maybe someone can explore that link in another post…

Search Neutrality as Disclosure and Auditing

Frank Pasquale

We had an excellent online symposium on Tim Wu's book The Master Switch at Concurring Opinions last week. I just wanted to respond to some concerns about the role of search engines raised by Jonathan Zittrain and Katherine Strandburg. For example, Strandburg observes:

Google . . . is held up as a paradigm of openness in The Master Switch, yet in many very important ways Google is anything but open. Google’s search technology is open primarily in the sense of access by searchers and “connection” by those who are the subjects of search. It is quite closed in the senses of both dissemination and follow-on innovation.

Google’s algorithms are patented and protected by trade secrecy and its databases of information about users and their searches (which are crowd-sourced entirely from users themselves) are also protected by secrecy. To call Google open is, for better or worse, implicitly to privilege certain kinds of openness. . . . As a general matter – and not just in the information arena – companies prefer their inputs to be open and their outputs to be closed.

Zittrain also believes Wu should take a position on whether search neutrality is as pressing an issue as net neutrality.
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Thursday, February 17, 2011

"Wartime" becomes "Crisis Time" in post-9/11 Legal Thought

Mary L. Dudziak

With the tenth anniversary of September 11 coming up this year, we are sure to see efforts to take account of the past decade.  There will be tireless repetition of the idea that “everything changed” on September 11.  But it should also be an occasion for meaningful examination of the era of 9/11 as a moment in history.  This is the first of a short series of posts on post-9/11 American legal thought (and it is part of the “wartime” project that some readers will be familiar with).

Legal scholars argued over Bush administration policies, of course.  But underlying these expected disagreements were divisions over just what the post-9/11 environment was, with debates over whether “war” or “state of emergency” was the better way to frame the sort of security environment Americans found themselves.  Many adopted the wartime frame and supported an expansion of executive power, emphasizing the idea that wartime justified government action to address the danger.  Some international law scholars countered that the war on terror did not fit the definition of war under international law.  This mattered since the switch from peace to war triggered the application of the law of war and international human rights protections.  Bruce Ackerman argued that this era was not a war, but an emergency.  Before long “emergency” or “crisis” became dominant ways of describing the era.  Some scholars re-characterized wartimes in American history as emergency times, and at least one important scholarly paper about the impact of war on American courts was renamed, substituting “crisis” for “war.”

Underlying the disagreement about how to characterize the post-9/11 era was the concern that “wartime” called for the suspension of normal restrictions on executive power.  Searching for workable analogies, Mark Tushnet argued that
the long duration of the “war on terrorism” suggests that we ought not to think of it as a war in the sense that the Second World War was a war. It is, perhaps, more like a condition than a war -- more like the war on cancer, the war on poverty, or, most pertinently, the war on crime. Suspending legality during a time-limited war is one thing. Suspending it during a more or less permanent condition is quite another. 
The play in the terms of post-9/11 scholarship reveals a broader issue.  Like the Cold War era, there was a lack of fit between the conceptual categories of wartime and peacetime and the geopolitical era which scholars confronted.  An essential element of a traditional wartime was that war was temporary.  And in the past, war was most commonly defined as a conflict between nations, not between a nation and a social group or an ideology.  The state had dropped out of many definitions of war by the end of the 20th century.  But the war on terror also seemed to defy the idea that war was limited in time.

Most legal scholars responded not by jettisoning the old categories, but by renaming and re-imposing them, retaining the distinction between normal times and exceptional times.  For example, in a 2005 essay, Samuel Issacharoff and Richard H. Pildes described the dividing lines not as between wartime and peacetime, but between “normal times” and “times of heightened risk to the physical safety” of citizens. Post-9/11 scholarship persisted in the assumption that normality is a state of existence outside times of danger. “Wartime” and “peacetime” broke down, but the basic temporal structure (normal times, ruptured by non-normal times) largely remained in place in legal thought, even if it seemed unclear whether normal times would ever return.

While many drew comparisons between the post-9/11 era and other wartimes, for Benjamin Wittes, the era had a different character, for the war on terror was “a conflict unlike any that this country has ever faced.”  For Wittes, it was reasonable for the Bush Administration to adopt a war model after 9/11, but later in the decade the war on terror had “entered a different phase” in which “traditional warfare had given way to something more elastic.” As the immediacy of September 11 receded, the nation seemed to enter an ambiguous era that was neither wartime nor peacetime.  For the most part, however, scholars, courts and lawmakers continued to employ the old categories, although wartime had been renamed as crisis time.

Up next: The turn to Schmitt.

Wednesday, February 16, 2011

John Bingham

Gerard N. Magliocca

I'm working on a biography of John Bingham, the primary drafter of the Fourteenth Amendment. While my research is not complete, I thought I'd provide an update on how things are going. Specifically, I want to share what I've learned so far that seems important.

First, Bingham attended Franklin College, which was one of the few racially integrated schools at the time. Furthermore, one of his closest friends there was Titus Basfield, an African-American who became a minister and a lifelong confident. These college years almost certainly played a significant role in shaping Bingham's viewpoint on racial issues. It also explains, I think, why he was collaborating with Salmon P. Chase as early as 1845 to combat slavery (I found a letter in the Chase Archives on this point).

Second, Bingham's image as a civil libertarian is at odds with his performance as a prosecutor in the Lincoln conspiracy trial and as a House Manager in Andrew Johnson's impeachment trial. In the Lincoln trial, Bingham put forward a broad interpretation of military jurisdiction and presidential authority to counter claims by the defendants that they were not receiving the protections of the Bill of Rights (e.g., jury trial). And in the Johnson Trial, he argued that the Alien and Sedition Acts were consistent with the First Amendment (largely to support his claim that Johnson had engaged in impeachable sedition by attacking Congress).

Third, I can find no statements by Bingham supporting segregation. That doesn't mean that he didn't (there is, after all, a voting record to scrutinize), but that omission strikes me as interesting. I want to take a closer look at his views about the Freedman's Bureau and other remedial measures for African-Americans to get a sense of his attitude towards race-conscious policies, but I have not formed a conclusion about that yet.

Fourth, Bingham wanted the Fifteenth Amendment to be much broader than what ended up in the text. Indeed, his proposal would have barred states from discriminating against voting based on religion or wealth (as well as race).

Finally, Bingham said nothing about the Fourteenth Amendment after he left Congress in 1873. Since he lived until 1900, this is quite odd. I am also beginning to think that his departure from Washington just as the Supreme Court was starting to interpret the text was rather important and suggests that the Credit Mobilier scandal, which sullied Bingham's reputation and helped end his political career, may be more important than we've thought.

Vague Law, Stable Outcomes: The Example of Money and Judicial Elections

Rick Pildes

In earlier posts and academic work, I've written about the phenomenon I call "vague law, stable outcomes." This experience is central, in my view, to thinking about constitutional doctrine and Supreme Court decisionmaking, yet not properly appreciated. Some of the most difficult problems the Court confronts arise when the Court is inclined to conclude a constitutional violation has occurred, but where the nature of the issues inherently makes it difficult or impossible to formulate a relatively clear set of doctrinal principles or rules that can define the border between constitutional and unconstitutional action. Should the Court go ahead and declare the action unconstitutional, even though the Court will inevitably be able to do no better than generate a vague set of principles to guide future cases? Or should the fact that the Court cannot do better than offer vague principles be a reason the Court should refrain from declaring a constitutional violation in the first place? A good recent example is the Caperton case, in which the 5-4 Court held that due process is violated at some point when a judge sits on a case involving the interests of an entity that has spent extremely large amounts to get that judge elected (or his opponent defeated). There is simply no clear doctrinal way for the Court to specify at what point spending or contributions to elect or defeat a judicial candidate become so large as to require, as a matter of due process, judicial recusal. For some Justices, that unavoidable lack of clarity is a reason not to act; for others, that lack of clarity is not.

In cases like these, dissenting Justices and academic commentators typically take the Court to task for issuing vague and destabilizing rulings that create uncertainty and raise the prospect of endless litigation. Thus, in Caperton, Chief Justice Roberts offered up 40 or so situations to which the vague principles of the Caperton decision might extend, but which could not clearly be handled in any obvious or easy way by the Court's decision. But these criticisms implicitly assume that the only source of stability and certainty that constitutional decisions can provide must come from within legal doctrine itself. Thus, these critiques take what we might call an internalist and purely legalist view of the potential sources of clarity and stability in the law. But in my view, we should think more broadly (and perhaps judges already do so) about how Court decisions interact with policymaking institutions. There are many examples of vague constitutional rulings turning out to generate stable policies and practices, not because the doctrine itself is clear, but because other institutions respond to the Court's decision in ways that create the clarity and certainty that the law itself lacks.

Now comes along a perfect example to illustrate this phenomenon with respect to Caperton itself. As the New York Times recently reported, New York's highest court, which has the power to regulate the state judicial system on these matters, is set to issue clear rules that will provide a great deal of certainty about the relationship between money and the need for judicial recusal. For example, these rules will state that “no case shall be assigned” by court administrators to a judge when the lawyers or any of the participants involved donated $2,500 or more in the preceding two years, court officials said. Other state high courts are issuing similar rules. Other state high courts are issuing similar, though less strict, rules. I do not profess to know whether any of these rules are sensible or not; I have not studied them in detail. But they nicely illustrate the point that just because constitutional doctrine itself is vague -- and inherently so, with respect to certain kinds of problems, particularly some of the most difficult the Court confronts -- there remain sources outside legal doctrine that can take vague constitutional law and turn it into clear, stable, predictable outcomes. It is important to bear that in mind in evaluating Supreme Court decisions that create "vague" doctrine.

The most difficult question, once we focus on the potential dynamic relationship between constitutional doctrine and the responses of other institutions, is knowing how to judge in advance whether vague constitutional law will be turned into stable policies and practices by other actors. Sometimes, vague constitutional doctrine does create a mess -- constant uncertainty, enormous transactions cost of endless litigation -- and should be avoided for that reason. Sometimes other institutions cannot or will not turn vague law into stable outcomes. Can we have any confidence in advance, and can judges, about recognizing when it is likely that other institutions will create stability and clarity out of vague constitutional doctrine? But we only get to these kind of questions once we recognize the larger point: that vague constitutional doctrine can be transformed into clear rules and practices through the actions of other institutions.

New Life for the Bagram Habeas Litigation?

Jonathan Hafetz

Yesterday, U.S. District Judge John D. Bates granted a motion filed on behalf of the three non-Afghan detainees held at the Bagram air base in Afghanistan to present new evidence in support of their habeas corpus petitions. Bates' opinion explaining his order in al-Maqaleh v. Gates is available here. Bates had previously ruled in al-Maqaleh that some Bagram detainees—specifically, non-Afghans seized outside Afghanistan and brought to Bagram by the U.S.—could obtain federal habeas review of their detention. Bates relied on the test set forth in Boumediene v. Bush for determining the extraterritorial application of the Constitution's habeas corpus Suspension Clause (In Boumediene, the Supreme Court upheld the constitutional right of Guantanamo detainees to habeas corpus). The test considers, among other factors, the citizenship and prior process the detainee had received; the nature of the site of the prisoner's apprehension and detention; and the practical obstacles to habeas review. Last year, the D.C. Circuit reversed Judge Bates' ruling in al-Maqaleh, holding that Bagram detainees had no constitutional right to habeas corpus under Boumediene. The Circuit did, however, leave open the possibility that the petitioners could present new evidence in support of their jurisdictional arguments.

Habeas review for Bagram detainees still faces steep hurdles. (For the schedule on further proceedings in al-Maqaleh, see Lyle Denniston’s post here). Bates’ order nonetheless suggests that new facts—such as evidence that the U.S. plans to hold some Bagram detainees indefinitely even after it relinquishes control of the prison to Afghanistan—could potentially alter the jurisdictional calculus. Such evidence, for example, might show that the practical obstacles to review were not as great as previously believed or that the U.S. is, in fact, using Bagram to circumvent habeas review by keeping prisoners there instead of bringing them to Guantanamo (an assertion the D.C. Circuit said lacked evidentiary support). Thus, despite his doubts about the merits of those arguments, Bates said that the detainees should be permitted to amend their petitions in light of Federal Rule of Civil Procedure 15’s liberal standard. At the very least, Bates’ ruling suggests that he will give the petitions the careful scrutiny they deserve.

Reducing Mass Incarceration: One Missing Piece In Our Ongoing Deficit Debates

Bernard E. Harcourt

In a message to Congress in 1963, President John F. Kennedy outlined a federal program designed to reduce by half the number of persons in custody. The institutions in question were asylums, but the numbers were staggeringly large, in fact comparable to today’s level of mass incarceration in prisons. President Kennedy’s message to Congress was powerfully simple:

If we launch a broad new mental health program now, it will be possible within a decade or two to reduce the number of patients now under custodial care by 50 percent or more. Many more mentally ill can be helped to remain in their homes without hardship to themselves or their families. Those who are hospitalized can be helped to return to their own communities... Central to a new mental health program is comprehensive community care. Merely pouring Federal funds into a continuation of the outmoded type of institutional care which now prevails would make little difference.

President Kennedy’s aspiration of a 50 percent drop underestimated the massive deinstitutionalization that followed. It was the result, to be sure, of a larger set of societal changes, including the reorganization of the psychiatric profession, new medications, shifting views on mental illness, the aftershock of World War II, changing state policies, and fiscal crises—not just ambitious federal intervention.

But even though the historical record is complex, one simple fact remains: This country has deinstitutionalized before. As we think about mass incarceration today and how to reduce our prison populations and our national budget deficits, it would be useful to draw insights from that experience. It is especially timely because of the ongoing national debate over the fiscal budget and the need to find areas to cut government spending.

What then can we learn from deinstitutionalization in the 1960s that could help us decarcerate in a successful manner? The place to begin is with the three factors that most influenced deinstitutionalization: first, the development of federal social welfare programs (such as Medicaid and Medicare) that created financial incentives for states to channel care for the mentally ill from state mental hospitals to community-based outpatient facilities; second, the development and use of psychiatric medicines as treatment for even severe mental illness that not only allowed patients to live on their own, but transformed the way we thought about mental illness; and third, the increased understanding and sympathy for persons with mental illness resulting from changed perceptions catalyzed in part by World War II, impact litigation, and critical attention to the plight of patients in documentaries and films like Titicut Follies and One Flew Over the Cuckoo’s Nest. I trace the historical background of these developments in greater detail in a draft I posted on SSRN.

These factors suggest several avenues for change today. First, federal leadership should be encouraged to create funding incentives for diversionary and reentry programs and other ways of reintegrating offenders (or avoiding incarceration from the outset) that would give states a financial motive to move prisoners out of the penitentiary and into community-based facilities and programs. The key here is to give states an economic and fiscal incentive to move convicts out of state prisons and into non-custodial programs on the model of Medicaid reimbursement for outpatient community mental health treatment.

The immediate reaction, naturally, is that President Obama is already having enough difficulties with his newly proposed federal budget and that this would only make matters worse. But that ignores the fact that these prison costs are being born by the states today, and they too have mounting deficits. Reducing prison incarceration and replacing with non-custodial programs would reduce the overall costs. Federal leadership in this area would involve a smarter reallocation and redistribution of costs, which, on a well thought-out basis, would reduce, not increase, the overall aggregated national budget associated with corrections.

Second, regarding the use of prescribed medications, there is a real need for improved psychiatric care and treatment of prison inmates. The proportion of prisoners with mental health difficulties far exceeds the professional and institutional capacities of departments of correction in most states. More than 60 percent of inmates across the country report mental health problems within the past year; only a small fraction get help. Providing better mental health treatment in corrections is an absolute must.

In addition, the increased use of prescribed medications for aggressive behavior, on a voluntary basis, to address problems of conduct disorder will in many cases be an appropriate alternative to incarceration. Diversionary programs modeled on outpatient mental health clinics and involving the administration of prescribed medications already exist, especially for youth, and could be developed further and expanded.

Two other ideas in the same vein. The increased use of GPS monitoring and other biometric monitoring could serve as substitutes to incarceration as well. Electronic bracelets, telephone monitoring, and other forms of home supervision are an attractive alternative for certain types of offenders. Moreover, a move toward the legalization or medicalization of lesser controlled substances would also have a direct impact on reducing our prison populations, not only because of decriminalization but also by eliminating the drug trade and its attendant violence.

Third, high-profile impact litigation regarding prison conditions, the paucity of mental health treatment, and prison overcrowding, as well as documentaries of prison life along the lines of Frederick Wiseman’s 1967 film, Titicut Follies, should form part of a larger strategy to shift the public perception of those persons incarcerated. Increased public awareness of the reality of prison life would contribute to greater willingness to support federal policies aimed at helping reduce our prison populations. In the words of Justice Sonia Sotomayor at the oral argument on the California prison overcrowding case, “When are you going to avoid the needless deaths that were reported in this record? When are you going to avoid or get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you're going to deliver care that is going to be adequate?”

All of these approaches may well involve Faustian bargains, and the dangers associated with each are apparent. 1960s deinstitutionalization had its own dark sides, including the increased racial imbalance of the mental hospital population as the asylums were being emptied, as well as the problem of transinstitutionalization. Some solutions, such as the use of risk assessment, may actually worsen the problems of race. It would be absolutely crucial, in any effort to reduce mass incarceration, to avoid both the further racialization of the prison population and the transinstitutionalization of prisoners into other equally problematic institutions, such as homeless shelters or the kind of large mental institutions depicted, precisely, in documentaries like Titicut Follies.

President Kennedy's call for action to deinstitutionalize mental health patients was a milestone in our history. Would it ever be possible to hear a President of the United States say something similar about mass incarceration today? I do not know the answer to this question, but am certain that it will not be possible to make much headway in reducing mass incarceration without the kind of political investment and will that President John F. Kennedy expressed in 1963.

Monday, February 14, 2011

Watch the Banks First

Frank Pasquale

I have not been a big fan of Wikileaks. I believe in diplomacy and the rule of law as cornerstones of a civilized society. But the recent revelations about a clandestine campaign to discredit Wikileaks supporters forces reconsideration of a pro-state, anti-Wikileaks position.

According to numerous press accounts, the DOJ advised Bank of America (BofA) to consult with a law firm that, in turn, consulted with "security firms" about how to address possible revelations from Wikileaks about BofA. A leaked report "suggested numerous ways to destroy WikiLeaks . . . including planting fake documents with the group and then attacking them when published; 'creat[ing] concern over the security' of the site; 'cyber attacks against the infrastructure to get data on document submitters.'"

If such actions were commissioned as part of a broad plan to protect national security, I could understand them. But what's truly astonishing here is that the government seems to be encouraging a megabank to engage in questionable surveillance and smear tactics, while itself lacking even basic modes of understanding what's going on in our "too big to fail" behemoths.

SEC Chair Mary Schapiro recently observed that "the technology for collecting data and surveilling our markets is often as much as two decades behind the technology currently used by those we regulate." James K. Galbraith has documented that, "after 9/11 500 FBI agents assigned to financial fraud were reassigned to counter–terrorism and (what is not understandable) they were never replaced." As the financial economy continues to grow and dwarf the real economy in size, it becomes a potential source not merely of “systemic risk,” but of far more profound disruptions. Nevertheless, high officials seem more committed to pursuing those who might expose those risks, rather than the risk-takers themselves.

This asymmetry is part of a larger trend toward punishing whistleblowers. Bradley Birkenfeld was imprisoned for uncovering massive tax evasion. British police have used tear gas against UK Uncut, a group trying to call attention to tax evasion by major corporations, and have classified an 85-year-old peace activist as a "domestic extremist." In a similar situation in Maryland, "some of the so-called terrorists were actually Catholic nuns."
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Enforcing the Compact Clause

Guest Blogger

Michael Greve

A pending cert petition in S&M Brands v. Caldwell presents, among other salient issues, the question of whether the Constitution’s Compact Clause still has independent force and meaning. The Court should review that question and answer it in the affirmative, for reasons summarized below and explained at much greater length in Greve, Compacts, Cartels, and Congressional Consent, 68 Mo. L. Rev. 285 (2003). By way of disclosure: I serve as Chairman of the Competitive Enterprise Institute (CEI), which represents the plaintiff-petitioners in the case. However, this post reflects my own views and not necessarily the plaintiffs’ litigation position.

S&M Brands urges the Court to revisit the Constitution’s prohibition against "any Agreement or Compact" among states, without congressional consent, U.S. Const. Art. I §10 cl.3. The petition petition, authored principally by Erik Jaffe and Michael McConnell, challenges the Master Settlement Agreement (MSA) on tobacco litigation, signed in 1998 between the major tobacco firms and state attorneys general. It urges review both on the Compact Clause question and on a closely related question, the MSA’s Parker immunity from the Sherman Act. An amicus brief by Alan Morrison, on behalf of himself, Richard Epstein, and brief by antitrust experts supports petitioners on the Parker question. Respondents’ brief in opposition and petitioners’ reply appear here and here.

No circuit split exists on either question. However, the Roberts Court has shown a commendable willingness to recover long-ignored and seemingly marginal constitutional clauses. Two years ago, for example, the justices unearthed the Compact Clause’s immediate constitutional neighbor—the Tonnage Clause, last adjudicated in 1935. In Polar Tankers v. City of Valdez, the justices read the prohibition against "any [state] Duty of Tonnage" without the consent of the Congress "in light of its purpose" and invalidated a state duty that, while nominally declared a "property tax," operated as a de facto tax on the privilege of entering a port. The ruling in the case—yanked up without a circuit split—reflects the conviction, which still commands near-universal assent, that every clause of the Constitution must retain some independent force and meaning. The tobacco agreement provides a pristine test of that same bedrock principle. If the MSA does not require congressional consent, no state compact can violate the Compact Clause unless it is already unlawful for some other, independent reason.
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Sunday, February 13, 2011

Black Box Search vs. Black Hat Publicity Hounds

Frank Pasquale

J.C. Penney was on top of the web world last holiday season, showing up at #1 for dozens of retail search queries on Google. Type "dresses," "area rugs," "bedding:" you'd get Penney's items as your first search result. Had the venerable retailer become a "Wikipedia" of online shopping, reliably providing the "people's choice?" Or was something more troubling going on?

The New York Times has related an excellent study (which I had worried was impossible to do) examining the issue. The study "suggests that the digital age’s most mundane act, the Google search, often represents layer upon layer of intrigue." For J.C. Penney was using "black hat" search engine optimization, a definite no-no in search engine land.
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Friday, February 11, 2011

Learning from German Finance and Corporate Governance

Frank Pasquale

The president recently cajoled business leaders at the U.S. Chamber of Commerce to create more jobs. As Harold Meyerson shows in a recent piece in The American Prospect, that's not likely to do much to relieve long-term trends toward U.S. decline:

When he was CEO of General Electric, in 1998, Jack Welch pithily summarized his vision for corporate America: "Ideally, you'd have every plant you own on a barge to move with currencies and changes in the economy." . . . . As corporate profits skyrocket, even as the economy remains stalled in a deep recession, Americans confront a grim new reality: Our corporations don't need us anymore.

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Thursday, February 10, 2011

Leveling Up: A Public Finance Analog for Lobbying

Heather K. Gerken

For those interested in lobbying reform, I have a second post on Rick Hasen's Election Law Blog. It follows up yesterday's post, which argued that lobbying will end up being the new campaign finance. Today's post suggests that, as with campaign finance, the future of lobbying reform will involve leveling up not leveling down. In keeping with this idea, the post proposes a public finance analog for lobbying reform.

Wednesday, February 09, 2011

Lobbying as the New Campaign Finance

Heather K. Gerken

For those interested, I am guest blogging this week on Rick Hasen's Election Law Blog. My first post argues that in the wake of Citizens United, lobbying will become the new campaign finance.

Protean Rankings in the Economy of Prestige

Frank Pasquale

Paul Caron brings news of the ranking system from Thomas M. Cooley School of Law, which pegs itself at #2, between Harvard and Georgetown. Caron calls it "the most extreme example of the phenomenon we observed [in 2004]: in every alternative ranking of law schools, the ranker's school ranks higher than it does under U.S. News." I just wanted to note a few other problems with such systems, apart from what I've discussed in earlier blog posts and articles on search engine rankings.

Legendary computer scientist Brian W. Kernighan (co-author of the classic textbook on the C programming language) wrote a delightful editorial on rankings last fall:

In the 1980s, statisticians at Bell Laboratories studied the data from the 1985 “Places Rated Almanac,” which ranked 329 American cities on how desirable they were as places to live. (This book is still published every couple of years.) My colleagues at Bell Labs tried to assess the data objectively. To summarize a lot of first-rate statistical analysis and exposition in a few sentences, what they showed was that if one combines flaky data with arbitrary weights, it’s possible to come up with pretty much any order you like. They were able, by juggling the weights on the nine attributes of the original data, to move any one of 134 cities to first position, and (separately) to move any one of 150 cities to the bottom. Depending on the weights, 59 cities could rank either first or last! [emphasis added]

To illustrate the problem in a local setting, suppose that US News rated universities only on alumni giving rate, which today is just one of their criteria. Princeton is miles ahead on this measure and would always rank first. If instead the single criterion were SAT score, we’d be down in the list, well behind MIT and California Institute of Technology. . . . I often ask students in COS 109: Computers in Our World to explore the malleability of rankings. With factors and weights loosely based on US News data that ranks Princeton first, their task is to adjust the weights to push Princeton down as far as possible, while simultaneously raising Harvard up as much as they can.

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Sunday, February 06, 2011

"The Dark Side of Internet Freedom"

Mary L. Dudziak

With the uprising in Egypt, fueled by social networking, dominating the news, it may be jarring to read Lee Siegel's review of a "brilliant and courageous book," THE NET DELUSION: The Dark Side of Internet Freedom by Evgeny Morozov in today's New York Times.
Morozov is interested in the Internet’s political ramifications. “What if the liberating potential of the Internet also contains the seeds of depoliticization and thus dedemocratization?” he asks. The Net delusion of his title is just that. Contrary to the “cyberutopians,” as he calls them, who consider the Internet a powerful tool of political emancipation, Morozov convincingly argues that, in freedom’s name, the Internet more often than not constricts or even abolishes freedom.
The twittered Iranian revolution was crushed:  "The elements of a successful revolution — the complicity of the military, of a powerful political class, of an almost universally discontented population — simply weren’t there."  The internet itself aided repression, as "the Iranian regime used the Web to identify photographs of protesters...and to text the population into counterrevolutionary paranoia."  Continue reading here.

No mention is made of Egypt in this nevertheless very timely and sobering review, but Siegel writes that the book "is immediately tested by events" in Egypt in a recent Arts Beat post.  "Just as with every other type of technology of communication, the internet is not a solution to human conflict but an amplifier for all aspects of a conflict. As you read about pro-government agitators charging into crowds of protesters on horseback and camel, you realize that nothing has changed in our new internet age."

Cross-posted from the Legal History Blog's Sunday book review round-up.

Saturday, February 05, 2011

Is the U.S. a "full democracy" instead of a "flawed democracy"?

Sandy Levinson

Charles Blow's column in today's New York Times is typically interesting, as he looks at a variety of data in different countries across the globe with regard to understanding social unrest. The United States, for example, has the largest geni coefficient (where bigger is not better) with regard to inequality of any of the countries he examines. What interests me, though, is that he describes Israel (along with Cyprus) as "flawed democracies' while the United States is listed as a "full democracy." I know nothing about Cyprus. But I do know a fair amount about Israel, and I'm perplexed by Israel's and the U.S. being put in a different category re "democracy." It is not that I'd describe Israel as a "full democracy," whatever that precisely means (Blow isn't telling), but, rather, that I'd definitely put the U.S. in the catagory of a distincltly "flawed" democracy. And the reason isn't that we elected a Republican House, any more than one would stop simply with Israel's electing Netenyahu as their PM. I won't rehearse all of the deviations from any acceptable 21st century of democracy in our own political system. The Senate itself is enough to establish our membership in the list of "flawed democracies." Israel, of course, suffers from an access of one version of "represenative government," whereby the Knessett is open to any party that can get more than 1-1/2% of the national vote, and the fragmentation of the party system (and of Israeli society) means that very small parties can engage in successful extortion in order to get their votes to join an inevitably fragile coaltion. But I suspect that there are fewer barriers to actual voting in elections in Israel by Israeli citizens (including the 20% of Israeli-Arabs) than there are in this country. [Update: And, as Frank Rich notes in his column in tomorrow's Times, El Jazeera English "is routinely available in Israel," unlike the good old U.S.A., whose principal television media are controlled by feckless cowards (perhaps afraid that they will be harassed by right-wingers in Congress should they open up their channels to what many of them undoubtedly simplistically define as "the enemy").]

Israel is surely a "flawed democracy" with regard to the discriminations it practices against its Arab citizens, which have been well documented. (The issue of Israeli policy vis-a-vis the Arabs living in occupied territories is the subject for other discussions, and I am appalled by many aspects of Israeli policy, but I'd be a bit surprised if that is the reason for the characterization of Israel as a "flawed democracy." One wonders, sometimes, if the policies increasingly being adopted with regard to "illegal aliens" are much better than many of the objectionable policies of Israel vis-a-vis inhabitants of the West Bank.) With regard to discrimination against citizens, though, there is much in the American record, including, say, the mass disenfranchisement of felons, that might lead a neutral observer to talk about "flaws." And so on.

In any event, I'd be very interested in knowing what Blow's criteria were that allowed American exceptionalism to appear as part of an otherwise extremely interesting column.

UPDATE: A REPONDENT SUGGESTED THAT BLOW WAS DRAWING HIS CRITERIA FROM THE ECONOMIST INGELLIGENCE UNIT'S REPORT ON DEMOCRACY IN 2010. It's certainly worth taking a look at this Report. As a matter of fact, the U.S. ranks near the bottom of the "full democracies," behind most of the European countries (but not France or Italy, which are "flawed," but, interestingly enough, both (accurately) deemed to have better electoral systems than tha U.S.).

A Wake-Up Call on Severability Doctrine

Guest Blogger

Kevin Walsh

One of the most surprising aspects of Judge Vinson's decision holding the individual mandate unconstitutional was his further holding that the entire Patient Protection and Affordable Care Act was unenforceable. Judge Vinson determined that the mandate could not be severed from the constitutional remainder of the Act, thus causing the mandate's invalidity to metastasize throughout the Act . If sustained on appeal, this ruling would wipe out many provisions of the Act, including those already in effect, that have nothing to do with health insurance. (Michael Dorf discusses some of these here.)

Some have charged that Judge Vinson's decision was driven by partisan or ideological considerations (see, for example, the posts linked to here>). On this view, his inseverability-based in toto invalidation is but one aspect of an antipathy to the Act manifested throughout his opinion. There may be something to this criticism, but a too-ready, too-knowing recourse to an ideological or attitudinal explanation can obscure other important issues, such as the way in which flawed doctrine abets bad judicial decisionmaking.

Because severability doctrine does not receive much attention, many have not previously noticed that it is broken. Yet it is hard to ignore now. Perhaps one virtue of Judge Vinson's decision, then, will be to cast on a light on the sorry state of modern severability doctrine (about which I have previously written here).

Judge Vinson’s application of severability doctrine was mistaken in some of its particulars and probably wrong in its ultimate conclusion. The difficulty with drawing a stronger bottom-line conclusion is that the doctrine calls for backward-looking counterfactual speculation about whether Congress would have enacted the remaining provisions of the PPACA without the unconstitutional individual mandate. If this question is viewed wholesale, as Judge Vinson viewed it (i.e., would Congress have enacted everything else in the Act absent the individual mandate?), then the conclusion of inseverability is reasonable, though by no means beyond question. After all, the PPACA probably would not have existed but for the individual mandate. If this question is viewed on a provision-by-provision basis (i.e., would Congress have enacted Provision X, or Provision Y, or Provision Z absent the individual mandate?), then the conclusion of complete inseverability is on much weaker footing. The real problem with the doctrine, though, is that it calls for a series of imponderable “what ifs” about which reasonable people can disagree. That level of indeterminacy is unacceptable given that resolution of those imponderables can have massive consequences--as vividly seen here.

Judge Vinson's decision reintroduces a potent pairing previously seen in the 1930s (and not seen since then): a constitutional holding that Congress has exceeded its power under the Commerce Clause, joined with an inseverability holding that expands invalidity beyond unconstitutionality. The Supreme Court's use of severability doctrine to invalidate New Deal legislation triggered Robert L. Stern’s seminal scholarly analysis of severability, which appeared in 1937. After a thorough canvass of the development of modern severability doctrine from its first appearance in 1854 through when he wrote in 1937, Stern failed to find an organizing principle. He concluded, instead, that “the Court avails itself of one [severability] formula or another in order to justify results which seem to it to be desirable for other reasons.”

This criticism, and others leveled by Stern and later analysts, has never been adequately answered. Instead, the pressure on severability doctrine in federal law abated as the Court showed greater receptivity to New Deal legislation as a matter of substantive constitutional law. But while Judge Vinson's opinion reveals that history can repeat itself, there is good reason to believe that the current Supreme Court will be much more cautious in approaching the question of inseverability.

Although the Court has maintained a similar verbal formula for severability over time, its application of that doctrine has been much more restrained than in the decisions that prompted Stern to write. For different reasons, the Court's pragmatists, minimalists, and textualists have good reason to move severability doctrine away from the sort of backward-looking counterfactual speculation that yielded Judge Vinson's holding of inseverability (i.e., the determination that the individual mandate was inseverable from the remainder of the Act because Congress would not have enacted the Act without the mandate). While a detailed doctrinal analysis to support this assertion would be more appropriate for another venue, a careful review of the Court's severability reasoning in United States v. Booker and Free Enterprise Fund v. Public Company Accounting Oversight Board suggests directions in which the Court may be moving the doctrine. Justice Breyer’s pragmatic approach to severability in Booker is more forward-looking and consequentialist than the standard approach. Chief Justice Robert’s approach to severability in Free Enterprise Fund emphasizes the need for clear evidence that Congress intended inseverability; given the typical absence of such evidence, the result of this approach is minimalist with respect to the scope of invalidation (though the pragmatic approach is more likely to be minimalist with respect to practical consequences). Finally, textualist Justices eschew, in other contexts, the sort of exercises in imaginative reconstruction that standard formulations of severability doctrine on their face require. Perhaps they might begin to do so in this context as well. For all these reasons, it is extremely unlikely that the Supreme Court would conclude both that the individual mandate is unconstitutional and also that the remainder of the Act is inseverable.

While most attention, rightly, has been paid to the the constitutional issues, the district court’s ruling in Florida v. HHS demonstrates the importance of attending to severability doctrine as well. Paying attention now should yield dividends in the not-too-distant future, as the lessons of the past can inform the shape this doctrine takes going forward.

Kevin C. Walsh is an Assistant Professor at the University of Richmond School of Law. You can reach him by e-mail at kwalsh at

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