Saturday, December 31, 2011

The Detainee Provisions of the National Defense Authorization Act

Marty Lederman

As you may have read, the President today signed the NDAA, which contains several controversial provisions concerning detainees, GTMO, etc. The President's signing statement can be found here.

There's been a great deal of debate, confusion and simple misrepresentation concerning what, exactly, the detainee provisions say and what effect they'll have. With Steve Vladeck, I've posted some of my own observations about the new legislation, in two parts, at Opinio Juris. The first part generally describes the most problematic parts of the legislation, but also cautions that much of the worst of what you've heard isn't very accurate. Perhaps the most important impact of the NDAA, however, may be with respect to a question that has received comparatively little attention–namely, the effect of the laws of war on the Executive’s military detention authority. As we explain in our companion post, although the NDAA by its terms does not “limit or expand” the President’s detention authority, it is best read to clarify Congress’s understanding of how the existing AUMF authority should be construed—namely, as limited and informed by the laws of war, as the governing opinion in Hamdi instructs and as the Executive branch has been arguing since 2009.

Wishing all Balkinization readers a good and peaceful new year . . .

Monday, December 26, 2011

How to Think About War Powers, Pt. 3

Stephen Griffin

The last post ended with the promise that I would discuss the special dangers posed by “real” wars. Well, we’re almost there. I need to pursue a sub-topic
first, whether it makes sense to distinguish big or “real” wars from military
operations short of war. Some people believe we don’t need to do this. They
think there are crucial constitutional issues at stake every single time the
president orders a military operation. Thus, they seek a doctrine or set of rules that would tell us under what circumstances the president can act. This is not my project and I doubt that we could ever come up with such a doctrine, at least in the absence of the judiciary lending a consistent common law helping hand across a range of cases. Rather, I suggest we focus our attention on those operations that pose the gravest policy risks and the deepest constitutional and moral issues. Doing this, however, involves clearing out some rather mythical conceptual underbrush concerning how the US gets itself into major military operations, the ones we call “wars.”
Read more »

The Poor Get One Strike; Banks Get Thousands

Frank Pasquale

Most readers of this blog are already familiar with draconian treatment of the poor by various law enforcers and state bureaucracies. Here's yet another example:

[A] one-strike clause . . . allows the public housing authority to evict [the tenant] if any member of her household or any guest engages in certain kinds of criminal activity. . . . Stories abound about the one-strike policy being wielded in seemingly egregious ways to evict "innocent tenants," such as a disabled elderly man in California whose caretaker was caught with crack. . . .The Chicago Reporter wrote in September that 86 percent of Chicago's one-strike evictions last year did not arise from criminal activity by the person named on the lease.

"These policies, the effect of them on children, families, women, families of color, were not thought through. And I think now a national conversation is beginning to rethink that," said Ariela Migdal, a senior staff attorney with the Women's Rights Project of the American Civil Liberties Union. Migdal pointed to a June 2011 letter from HUD Secretary Shaun Donovan to public housing directors, encouraging the directors to use their "broad discretion" to create a flexible set of standards for who will be admitted to and allowed to stay in public housing.

Certainly the Obama administration has ample experience deploying "discretion" and "mercy" in other areas.  For example, consider Barry Ritholtz's summary of a shocking Reuters report by Scott Paltrow on foreclosure fraud:
Read more »

Sunday, December 25, 2011

A Holiday Puzzle for Supreme Court Trivia Fans

Mark Tushnet

There's (at least) one Supreme Court case in which nine justices participated, and the Court announced that it was equally divided. Name the case and explain the outcome. (The case involved multiple issues, but the puzzle doesn't arise, at least directly, from one of the standard paradoxes of aggregation of votes on multiple issues.)

I don't know how to enable comments, but I'll post the first correct answer I receive.

Friday, December 23, 2011

Another way to think about War Powers: Why the Small Wars Matter

Mary L. Dudziak

Stephen Griffin has been laying out his ideas about war's impact on the constitutional order in a series of posts.  Important to his analysis is the distinction between different kinds of conflicts.  For example, Griffin writes:   "Wars, 'real' wars, pose unique risks for American constitutionalism. Small-scale presidentially-ordered military strikes in support of rebels do not."  While I look forward to the rest of the argument, many historians of war look not to the distinctions between different kinds of conflicts, but instead to the cumulative effect of decision-making in conflicts, large and small, on the politics and culture of contemporary decisions about the use of force.

In a discussion of whether the U.S. war in Iraq has been worth the cost, Andrew Bacevich writes:
The disastrous legacy of the Iraq War extends beyond treasure squandered and lives lost or shattered. Central to that legacy has been Washington's decisive and seemingly irrevocable abandonment of any semblance of self-restraint regarding the use of violence as an instrument of statecraft. With all remaining prudential, normative, and constitutional barriers to the use of force having now been set aside, war has become a normal condition, something that the great majority of Americans accept without complaint. War is U.S.
While Bacevich takes up a war that is "real" for Griffin, historian Marilyn Young argues that the small wars have played an important role in this normalization of the use of force, and especially the insulation of the American people from American war politics.  In the many American military interventions of the Cold War, she argues, post–World War II administrations “had to create a public
tolerance for war as normal rather than aberrational, so normal that after a while only those who were actively engaged in fighting it—and their families—noticed it was being fought at all.” 

This consciously facilitated insulation of the American people from American wars, I argue, has helped to atrophy political restraints on the war powers.  And so the "real" wars that have impacted the workings of our constitutional order include the small wars and the "forgotten wars" that lead us to Bacevich's critique, that "war has become a normal condition, something that the great majority of Americans accept without complaint."

Thursday, December 22, 2011

Hate Speech Prosecutions: Europe and the U.S.

Ken Kersch

The news that John Terry, the (white) captain of the English national soccer team (and of his club team, Chelsea), will be criminally prosecuted under Britain’s Crime and Disorder Act of 1998 for racist comments Terry allegedly made on the pitch to Queens Park Rangers defender Anton Ferdinand (who is black) spotlights the very different ways that European and American law strike the balance between – as the subtitle of an excellent new book on the subject puts it -- “preserv[ing] freedom and combat[ing] racism.”

The book is Erik Bleich’s The Freedom to Be Racist? How the United States and Europe Struggle to Preserve Freedom and Combat Racism (Oxford, 2011). Bleich is not a law professor, but a political scientist with an expertise in the racial and ethnic politics of western Europe. In late November, I was part of an interdisciplinary panel of sociologists, anthropologists, criminologists, and political scientists at the Annual Meeting of the Social Science History Association who discussed the book with Bleich.

The topic of hate speech regulation was big when I was in law school, but most of that discussion was rooted in political/legal theory: Catharine MacKinnon, Andrea Dworkin, Feminist Theory, Critical Race Theory. Bleich’s approach, while outlining the basics of the theory, is different. For one thing, since he is not a constitutional law professor, he doesn’t feel a professional obligation to advance a theory of the single “best” way to approach the issue that gets the balance between liberty and dignity/equality just right, in the process refuting the proposed “best” theories advanced by others. Bleich starts by assuming that the core tensions between the values involved in the question are real -- and theoretically unresolvable.

Of course, practically, as a matter of public policy, those tensions must be resolved by governments, and are. The book is largely empirical. It sets out to describe the different ways that hate speech is regulated in several key European countries (England, France, Germany), as well as transnationally. It describes the different forms that such regulation takes there, involving not simply prosecution for racist remarks – as with the current prosecution of the footballer Terry in England, and the famous serial prosecutions of film icon, and animal rights advocate, Bridget Bardot in France (for anti-Muslim remarks) – but also the banning of racist political parties, and restrictions on the freedom of the press (the Danish cartoons), and intellectual freedom (historian David Irving’s Holocaust denial), and other topics. Bleich places a heavy emphasis on situating each form of regulation in the institutional and political histories and cultures of the various countries, suggesting, in the process, that any understanding of the “best” approach to the issue must effectively take into account such developmental pedigrees and lineages – it is not, that is, something that can be resolved by abstract theory alone (although the theory, as refracted through the medium of party and social movement politics, is certainly part of the process). Comparing “the law in action” from “the law in books,” Bleich argues, somewhat provocatively, that that the U.S. is less exceptional in its regulation of hate speech than is commonly supposed (think of all the restrictions on speech in the workplace here, for example: see
David Bernstein, You Can’t Say That! (Cato Institute, 2003)). Bleich's empirical overview raises many questions that might not be first and foremost when one approaches the subject as a matter of legal theory.

The diverse panel offered varied observations, and raised a number of questions. I argued that, if one approached the issue empirically, the test of these laws had to ultimately be not how many prosecutions there were under the laws, but rather one of how well the regulatory system helped manage the society’s pluralism – something that would be difficult to measure (Bleich doesn’t attempt that). I wondered whether such laws would have any effect in most serious cases (Weimar Germany; Rwanda). I also raised questions about some institutional differences between the U.S. and European democracies that might justify different rules – chiefly the relative autonomy of prosecutor’s offices there (anchored as they are in the highly professionalized civil service), and the relatively political nature of the office here (where prosecutors are political appointees, if not elected). Others testified to the symbolic importance of such laws and prosecutions (or their absence), provided evidence of the depth of the problem, and its consequences, here and abroad, and raised questions about the limits of Bleich’s case selection (studies of hate speech in Africa and post-communist Eastern Europe were suggested).

All in all, it was a stimulating discussion. The book is relatively short, and clearly written, which would make it useful for classroom teaching. It would be a nice addition to courses addressing the issue that currently focus solely on the U.S. case, or to courses that approach the question as a purely a matter of political/legal theory. Not the least of the book’s virtues is to suggest –
as one of the leading Republican Party candidates for President is warning that Muslims are moving to establish Shariah Law in the United States -- that there is actually a lot more to know and learn about (unfortunately) timely topic.

Wednesday, December 21, 2011

The Roberts Court’s Bad Romance

Frank Pasquale

Recently a coalition of Missouri payday lenders implied "that standing up for high-interest-rate lenders is somehow analagous to the acts of the 'poor people who followed Dr. King and walked with him hundreds of miles because they believed in civil rights that much.'" Because we all know that liberty means little if you're not free to take a loan out at 444% APR.

In The Irony of Free Speech, Owen Fiss warned that the language of the First Amendment would lose its emancipatory potential as courts used it to gut progressive legislation. In a recent essay in Democracy Journal, Jedediah Purdy confirms those fears. His thoughts on last term's Sorrell v. IMS Health are particularly incisive on the topic of commercial speech, which the Court appears ready to radically rethink:
Read more »

Monday, December 19, 2011

How to Think About War Powers, Pt. 2

Stephen Griffin

If we wish to understand how and why presidents have used their war powers in contemporary times, we should inquire into how presidents see their own situation. In my first post, I posited that presidents believe they are advancing the foreign policy and defending the national security of the US. (I will bracket for now the role of domestic party-political considerations). So presidents tend to think about using armed force in the context of foreign policy and national security, not “war.” Mind you, the US has fought a number of major wars since 1945 and no one thinks otherwise. But presidents see war as a means to an end. Perhaps this is unremarkable, but experience shows that it is easy for them to focus so much on foreign policy ends that they lose sight of the terrible nature of the means. This of course suggests one of the purposes of deliberating about war in advance.
Read more »

Gamifying Control of the Scored Self

Frank Pasquale

Social sorting is big business. Bosses and bankers crave "predictive analytics:" ways of deciding who will be the best worker, borrower, or customer. Our economy is less likely to reward someone who "builds a better mousetrap" than it is to fund a startup which will identify those most likely to buy a mousetrap. The critical resource here is data, the fossil fuel of the digital economy. Privacy advocates are digital environmentalists, worried that rapid exploitation of data either violates moral principles or sets in motion destructive processes we only vaguely understand now.*

Start-up fever fuels these concerns as new services debut and others grow in importance. For example, a leader at Lenddo, “the first credit scoring service that uses your online social network to assess credit," has called for "thousands of engineers [to work] to assess creditworthiness." We all know how well the "quants" have run Wall Street---but maybe this time will be different. His company aims to mine data derived from digital monitoring of relationships. ITWorld headlined the development: "How Facebook Can Hurt Your Credit Rating"--"It's time to ditch those deadbeat friends." It also brought up the disturbing prospect of redlined portions of the "social graph."

There's a lot of value in such "news you can use" reporting. However, I think it misses some problematic aspects of a pervasively evaluated and scored digital world. Big data's fans will always counter that, for every person hurt by surveillance, there's someone else who is helped by it. Let's leave aside, for the moment, whether the game of reputation-building is truly zero-sum, and the far more important question of whether these judgments are fair. The data-meisters' analytics deserve scrutiny on other grounds.
Read more »

Friday, December 16, 2011

What are the people behind Americans Elect thinking?

Sandy Levinson

The NYTimes reports that Americans Elect is very likely to have a place on all 50 state ballots for the 2012 election and that the organization continues to plan to nominate, via an internet "primary," a "unity ticket" consisting of a presidential candidate and a v.p. candidate not from the same political party. Consider the following paragraph from the Times article:

Those who have lent their names to the effort include Will Marshall, the president of the Progressive Policy Institute, the centrist Democratic research group; Christine Todd Whitman, the former governor of New Jersey and one of a dwindling band of moderate Republicans; Mark McKinnon, the strategist who guided Mr. Bush’s message in 2000 and 2004 but backed Mr. Obama in 2008 and now says his interest is “anything that disrupts the current system,” and Doug Schoen, a pollster who worked for Bill Clinton in the 1990s but is now frequently critica of Democrats.

“This is an effort to empower people,” said Ms. Whitman. “This ticket could win, but at the least it could drive both parties toward the center.”

Two observations: As should be obvious from many of my posts, I resonate in many ways to Mr. Schoen's rather flamboyant statement. But is it really true that anything disruptive of the current system" would be a good thing? Consider, for starters, systematic attempts at assassination of political leaders. So presumably we should interpret Mr. Schoen to be saying that "anything that disrupts the current two-party duopoly over presidential elections would be a good thing." I think that a lot of us can support that view. But again one must ask about the meaning of "anything" in this context. What if the Americans Elect effort should lead to the election of Newt Gingrich, who will certainly get only a minority of the popular vote and would limp through to an electoral vote victory only because he gets, say, 40% of the vote in several large states that split 35-25% between Obama and the Americans Elect "unifier"? What continues to be missing in the Americans Elect analysis is even the slightest recognition that we elect our presidents under the lunatic electoral college system, placed in the Constitution in 1787 in large part to benefit slave-holding states (who would get the benefit of the three-fifths clause in computing their electoral votes) and without any redeeming value since then.

Ms. Whitman's comment is even more mysterious. She ignores the presence of the electoral college and the possibility that the Republican Party, especially, would, in their efforts to gain 270 electoral votes, emphasize ever more a combination of high-turnout of their zealous base and suppression, through voter-ID and other even more nefarious tactics that Republicans are good at. (I recognize that the Democrats might also be tempted by a similar base-mobilization strategy, but there would be no parallel effort to suppress the vote of their opposition.) But she also doesn't confront the point that orthodox political science (which may deservedly be under attack) would predict that in a two-party race for a winner-take-all office like the presidency, the "rational" electoral strategy is to aim for the fabled "median voter," which means a move toward the center. The amazing thing about the current Republican Party is that it demonstrates no real desire to do this, though that is clearly the basis of the Romney campaign, if only he can survive the circus of the Republican nominating process. Obama seems to be thinking much more of the median voter, though he has to worry about losing some of his base that might, unwisely, just choose to tune out of the election.

Frankly, the only sensible defense of America Elects is the belief, which might be quite rational, that if Gingrich does indeed knock Romney out or otherwise simply makes Romney ever more unelectable by exposing him as the ultimate in core-less pandering, then it is thinkable that a centrist ticket would actually win by cobbling together 40%+ of the vote in the largest states. So, as suggested by an extremely politically savvy friend, might we see the re-emergence of Chris Christie after all as the America Elect candidate, coupled with, say, Evan Bayh as VP? Or consider the Times's lead sentences: "To those who bemoan the lack of better choices in presidential elections, third-party fantasies come easily at this stage in a campaign. End hyper-partisanship and Washington dysfunction: Vote Bloomberg-Petraeus in 2012!" I doubt that the Jewish, hyper-rich, anti-gun, and secretive mayor of NYC is actually the best path to an electoral victory, but I have thought for some time that Petraeus may be in our future, though once Obama brilliantly neutralized him by sending him first to Afghanistan and now to the CIA, I assumed that the year for Petraeus's Caesarist candidacy would be 2016. Perhaps we should start thinking of the strange bedfellows (Jerry) Brown-(Scott) Brown! Or maybe Tom Brokaw (presumably an independent)-(Susan) Collins or (Olympia) Snowe, since the two Maine senators do nothing useful in the Senate other than to provide key votes, when needed, to maintain Mike McConnell's hammerlock on getting anything done. But, no doubt, they are perceived as "moderate" because they don't often take demonstrably crazy positions.

And, of course, there is always the possiblity that Ron Paul, the only candidate with any intellectual integrity in the Republican race--even if, as Paul Krugman demonstrates, many of his ideas are aptly described as "monetary madness," albeit sincerely believed--will decide to accept the entreaties of the Libertarian Party to run as its candidate and get probably 10% of the national vote, with whatever particular effects on Obama and the Republican candidate. We are living in "interesting times."

Thursday, December 15, 2011

Sex Equality and Original Meaning: A Response to Jack Balkin

Guest Blogger

Steven G. Calabresi and Julia Rickert

Jack Balkin has recently posted a response to a law review article on “Originalism and Sex Discrimination” which we have posted online and which is forthcoming in the Texas Law Review. In that article, we argue that there was at least a serious question whether the Fourteenth Amendment’s ban on caste and class legislation applied to legislation limiting women’s civil rights in 1868, but this question was conclusively resolved in 1920 when the Nineteenth Amendment giving women the right to vote was adopted. We argue that political rights like the right to vote were regarded by the framers of the Fourteenth Amendment as being at the apex of the pyramid of rights for which civil rights were the base. We conclude that once women acquired the right to vote for president, senate, and governor this conclusively tipped the scales in favor of understanding limitations on their civil rights to own property, enter into contracts, or be employed in certain professions as caste legislation prohibited by the Fourteenth Amendment.
Read more »

Legal Language Explorer

Jason Mazzone

Just launched: the Legal Language Explorer website. The site allows users to search all U.S. Supreme Court cases from 1791-2005 for words or phrases and to generate a frequency plot for the results (as well as a download-able list of cases). The site's developers promise coverage of more courts and other tools in the near future. Having played with the site this morning, I can report it is quite addictive.

The Stop Online Piracy Act's Anticircumvention Provisions

Guest Blogger

Wendy Seltzer

The House's Stop Online Piracy Act is in Judiciary Committee Markup today. As numerous protests, open letters,and advocacy campaignsacross the Web, this is a seriously flawed bill. Sen. Ron Wyden and Rep. Darell Issa's proposed OPEN Act points out, by contrast, some of the procedural problems.Here, I analyze just one of the problematic provisions of SOPA: a new"anticircumvention" provision (different from the still-problematic anti-circumvention of section1201). SOPA's anticircumvention authorizes injunctions against the provision of tools to bypass the court-ordered blocking of domains. Although it is apparently aimed at MAFIAAfire, the Firefox add-on that offered redirection for seized domains in the wake of ICE seizures,[1] the provision as drafted sweeps much more broadly. Ordinary security and connectivity tools could fall within its scope. If enacted, it would weaken Internet security and reduce the robustness and resilience of Internet connections.
Read more »

The Stop Online Piracy Act

Guest Blogger

Nick Bramble

The apparent purpose of section 105 of the Stop Online Piracy Act (SOPA) is to delink access and funding blockage decisions from the presence of a court order, and instead to condition these actions upon the existence of “credible evidence” of infringement and the good faith belief of the provider taking the action. But section 105 suffers from ambiguous references to sections 102 and 103 of SOPA, yields little clarity as to the basic question of when providers may restrict information and financial flows in the absence of a court order and still receive broad legal immunity, and may encourage actions that have little to do with the purpose of the underlying bill. The confusing structure of section 105 is particularly problematic given the possibility for abuse by service providers and others with an interest in labeling competitors as “foreign infringing sites” or “sites dedicated to theft of U.S. property” without judicial oversight.

Read more »

Wednesday, December 14, 2011

How to Think About War Powers, Pt. 1

Stephen Griffin

Having finished a draft of a book on war powers, this is the first of several posts on topics arising from the book. If I had to boil the book down to one claim, it would be that wars, “real” post-1945 wars such as Korea, Vietnam, the 1991 Gulf War, Afghanistan and Iraq, pose extraordinary challenges and risks for our democratic constitutional order that clearly separate them from other types of military conflicts. At the same time, I add covert wars and decisions on nuclear strategy to the usual list of wars fought by the US since 1945 because significant presidential decisions were made in those spheres without the participation of Congress.

In these initial posts I will concentrate on clearing away the conceptual underbrush of the war powers debate. The debate has been going on, after all, for several decades, at least since the Vietnam War became controversial in the mid-1960s. Last July 4, Time magazine summarized it as a clash of two constitutional clauses – “declare war” in Article I versus “commander in chief” in Article II. This popular way of describing the debate, indulged in by both sides (although more by pro-president than pro-Congress scholars), is misguided. It misses how presidential war powers have always been exercised in the context of US foreign policy and treats the use of military force as completely separate from that policy. This foreign policy perspective has in fact been advocated from time to time, mostly by presidentialists. I don’t believe that this basic point has a particular valence for either side in the debate. But it is true that congressionalists have often failed to engage with the real-world context of the use of armed force because of a blind spot about the role of foreign policy in presidential decision making. For some legal liberals in particular, the war powers debate has served as a kind of substitute for confronting broad issues of US strategy in foreign affairs. And that is a shame because it makes their cogent critique of presidential decisions for war almost unrecognizable to the executive branch officials it is supposed to influence.

So accepting that presidents exercise war powers in the context of advancing the foreign policy and defending the national security of the US is not a sop to presidentialists. It is rather an essential precondition for having a useful debate in the first place. Acting within the context of foreign policy, presidents do not typically think of themselves as starting “wars.” Rather they are advancing and defending as specified. Nevertheless, war is not like other aspects of foreign policy or even like low level uses of armed force. Its risks and challenges are of a different character. That difference is backed by the Constitution, which makes “war” a meaningful category of government action and identifies Congress as the branch which has to authorize war. Treating war as a subset of foreign policy does not either establish presidential predominance in war powers or avoid the obligations that the Constitution imposes on the executive branch as a matter of law.

Few would dispute that presidential power in foreign affairs has a basis in practice or tradition. But does this power have a basis in the text of the Constitution? Here is where my opinions changed the most over the course of my project. Thanks largely to the excellent scholarship of Mike Ramsey and William Casto, I accept that it is likely that the vesting clause of Article II is a reasonable textual basis for presidential power in foreign affairs. Mind you, I don’t go all the way with scholars who view the vesting clause as a source of all presidential power. But historical evidence strongly suggests it is a location of power in foreign affairs. I recommend Ramsey’s book The Constitution’s Text in Foreign Affairs and Casto’s book Foreign Affairs and the Constitution in the Age of Fighting Sail to everyone interested in presidential power in foreign affairs. Among other points, they establish that Hamilton and Madison agreed more than they disagreed with respect to war powers in their famous 1793 debate as “Pacificus” and “Helvidius” respectively. My own research supports their conclusions.

Students of debates over presidential power know this relates to Justice Jackson’s concurring (now controlling) opinion in the Steel Seizure case. Jackson specifically rejected the vesting clause thesis and assumed that founding era debates such as the Pacificus-Helvidius clash showed that it was fruitless to rely on historical evidence to resolve separation of powers problems. But Jackson did not consider the narrower possibility that the vesting clause underwrote presidential power with respect to foreign policy. And he was simply too quick in concluding that the Pacificus-Helvidius debate was a wash. The belief that the Pacificus-Helvidius debate showed deep divisions among the framers as to presidential power in foreign affairs, including the war power, has been one of the main stumbling blocks preventing scholars from seeing that there was a univocal founding era judgment that only Congress could commence “war.” Ramsey and Casto have shown that careful scholarship can improve our knowledge of the past even with respect to texts that have long been available and discussed for decades. How does regarding war powers issues in the context of foreign policy aid our understanding of the constitutional issues at stake? That’s for next time.

First Amendment & Stop Online Piracy Act's Manager's Amendment: Some Thoughts

Marvin Ammori

The tech and civil liberties communities are all focused on a pair of bills in Congress aimed at "rogue foreign sites" like All of MP3 and The Pirate Bay, but that actually appear to target Tumblr, Twitter, and YouTube--and commandeer search engines, domain name services, and advertisers to target these legitimate sites. Today, dozens of top tech CEOs have taken out full page ads in major papers across the country. And thousands of Americans are contacting Congress through the amazing effort of, a joint project of several civil liberties groups. In reviewing these bills, I produced a memorandum for Congress analyzing their First Amendment problems. Professor Laurence Tribe filed a letter on the same day, he on behalf of the consumer electronics industry and I on behalf of tech companies. We agreed on several, fundamental key points, including that the bills were overbroad and unconstitutional as written. I discussed the pieces on Balkinization. The  House version of the bills--called the Stop Online Piracy Act, or SOPA--will face a Committee vote tomorrow. Two nights ago, the Committee leadership swapped out the original bill for a new bill. The new version, substituted through a procedure known as a Manager's Amendment, is designed to address some objections raised by tech companies, civil liberties groups, and academics. As a result, in the past 36 hours, those interested in Internet freedom and copyright have moved quickly to analyze the new bill. (See here, here, and here.) Yesterday, I joined in a staff briefing organized by friends at Net Coalition to discuss the new version. At the briefing, I made three points:
  1. The new version is an improvement.
  2. The Committee staff seems to have grappled with concerns raised by technology companies, citizens, the 100 academics who have commented on the House bill, and by Professor Tribe and by me. The staff and leadership deserves some credit and thanks. On a personal note, I was happily surprised to see many tweaks that seemed directly to take my memorandum's suggestions into account.
  3. Despite these initial steps, more must be done to resolve other concerns.
Let me note some weaknesses and encourage some additional movement forward. Read more »

Tuesday, December 13, 2011

Dad-or-Daughter Contest: We Have a Winner

Ian Ayres

I’m happy to announce that Elizabeth Simpson won the Dad-or-Daughter Songwriting Contest by correctly identifying Friend Zone as the song that I coauthored with my daughter, as well as correctly identifying a line in that song that I composed (“But you just laughed it off and said we’d always be bros”) and a line in the song that Anna composed (“I bought a shirt today with your favorite band.”).
Read more »

2012: 1936? 1992?

Ken Kersch

Adam Liptak’s lead article in today’s New York Times underlines that the Supreme Court’s decision to hear the Arizona immigration case means (as the headline puts it) that the “case is the third accepted in a month on major political issues” (the others involve the 2010 health care law and the future of the Voting Rights Act of 1965). Many Supreme Court decisions can be fairly arcane. But sometimes they line-up with issues that are politically salient in party and social movement politics.

When this happens, law’s politics is foregrounded. Inevitably, scholars are asked to comment on the degree to which there is precedent for such fireworks. In Liptak’s article, various law professors are quoted suggesting 1936 and 1992 as parallels. The FDR vs. the conservative Court comparison is, of course, the most arresting alleged precedent. I confess that, especially if I am teaching undergrads, the temptation to draw this comparison is hard to resist. It imports a sense of high-drama portending a fundamental clash of political visions, to the point (possibly) of constitutional breakdown itself – enough drama to get my students to put down the iPads and to imagine they are witnessing, and participating in, a turning point in American history. For liberals, the 1930s clash, moreover, offers lessons/warnings about severe disjunctions between a Court and the politics of its times. For conservatives, interestingly, we see the mainstreaming of a new (old) interpretation: that the failure of the Court to stand up to the President in the 1930s invited into American government a Trojan Horse progressivism/socialism that destroyed the American constitutional tradition. Whatever your view – liberal, conservative, or just a professor desperate for student attention – there are thus lots of temptations right now to draw the New Deal parallel.

Of course, the 1930s parallel is catnip to the most ideologically inflamed on both sides. But the current politically salient issues aren’t really part of a systematic program set out (or invented) by Obama, as was the case with FDR’s New Deal. Despite our limping economy, the times aren’t (yet) as dire, and the measures under review aren’t put forth as a new way to rescue the economy in total meltdown. They involve a fairly random mix of policies in a diverse array of policy areas. It is possible they will be implicated in the election, and signal an ongoing turn rightward on the Court. But the 1936 comparison is a stretch.

I would add that not the least of the reasons for rejecting the “shock and awe” parallel of 1936 is what Yale political scientist Stephen Skowronek has called the “institutional thickening” that has occurred within the American state since the New Deal. Our politics and policies may swing back and forth between liberal and conservative, but (as the Reagan administration showed; see also No Child Left Behind), in its essentials, the New Deal state is deeply entrenched institutionally. Even conservatives are more likely to use that state to advance their own (micro) purposes than to disassemble it in any fundamental way (although there is a lot of ideological rhetoric out there these days insisting on their intention to do just that).

As for the 1992 comparison, the Times article notes that that term’s big decisions dealt with abortion, the freedom of speech, religion, and school desegregation. This comparison might be more apposite. One interesting feature of that comparison – not mentioned in the article -- is the degree to which 1992 involved the post-New Deal, Warren Court antagonism between liberals and conservatives over civil liberties and civil rights – culture war issues, in many respects. In 2012, the cases are much more structural. This may say something about the direction of constitutional antagonisms today between political opponents (maybe it is 1936! (which was largely about structure)). It may also mean that contemporary conservatives are increasingly inclined to use structural means to reach what are really cultural ends. Or, in a time of thickened institutions, it might mean that "shock and awe" constitutional revolutions are passé – that fundamental changes may now be enacted via slow-motion, structural adjustments (something John Roberts understands well). Or the differences between 1992 and 2012 might simply be random.

No need to get carried away. But the parallels are worth pondering … for heuristic reasons, if nothing else.

Monday, December 12, 2011


Jason Mazzone

When I teach Carolene Products, I ask my students to identify who falls within the final category of footnote 4 in which the Court preserves the possibility of close judicial scrutiny of governmental classifications. This produces an interesting discussion because that portion of footnote 4 is rather complex. It says:

Nor need we enquire . . . whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

Thus the footnote is concerned with "minorities" who are both "discrete" and "insular" and also victims of "prejudice"--so that the political process breaks down and those discrete and insular minorities end up disadvantaged.

Who meets those conditions, I ask?

The point of the exercise is to have students think about what the Court means to achieve in footnote 4 (mid-way in the discussion I draw on Bruce Ackerman’s persuasive showing that anonymous and diffuse minorities, rather than those that are discrete and insular (and as a result better positioned to protect their interests) really deserve the judicial protection the Court is concerned about). Reflecting on the exercise at the end of the equal protection unit of the course also allows students to assess how well the Court has lived up to the footnote 4 promise.

Over the years, the lists of discrete and insular minorities my students have supplied have contained some predictable candidates (gays and lesbians; the Amish) and some less predictable (“forest people”).

On occasion, I have gotten redheads.

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"A Permanent State of Remote War"

Mary L. Dudziak

William J. Astore, retired lieutenant colonel (USAF), has a post today on the remoteness of American wars from the American people:
America’s wars are remote.  They’re remote from us geographically, remote from us emotionally (unless you’re serving in the military or have a close relative or friend who serves), and remote from our major media outlets, which have given us no compelling narrative about them, except that they’re being fought by “America’s heroes” against foreign terrorists and evil-doers.  They’re even being fought, in significant part, by remote control—by robotic drones “piloted” by ground-based operators from a secret network of bases located hundreds, if not thousands, of miles from the danger of the battlefield.

Their remoteness, which breeds detachment if not complacency at home, is no accident.  Indeed, it’s a product of the fact that Afghanistan and Iraq were wars of choice, not wars of necessity.  It’s a product of the fact that we’ve chosen to create a “warrior” or “war fighter” caste in this country, which we send with few concerns and fewer qualms to prosecute Washington’s foreign wars of choice.
Astore goes on to argue that  wars of choice have led to "a state of permanent remote war" that "has weakened our military, drained our treasury, and eroded our rights and freedoms."

The engagement of the people with a nation's wars has been central to ideas about warfare.  War theorist Carl von Clausewitz wrote of the people as both an engine and a restraint on warfare.  Clausewitz's "wonderful trinity," describes the nature of war as "composed of the original violence of its elements, hatred and animosity, which may be looked upon as blind instinct; of the play of probabilities and chance, which make it a free activity of the soul; and of the subordinate nature of a political instrument, by which it belongs purely to the reason."  The trinity is often reduced to those Clausewitz thought to embody these elements:  the people, the military, and the government.

The emotional element of war, centered in the people, can help motivate a nation to warfare.  But the people can also rein in warfare.  When the costs of war are too great, the people are thought to lose their will to fight, hampering the nation's ability to pursue war.

But what happens if the people are never in engaged in a war in the first place? This where Astore's point is so important.  The remoteness of the American people from American wars, he argues, enables the nation's wars of choice.  The absence of the people -- the embodiment of the emotional element Clausewitz thought was a central feature of warfare -- means that the people do not tire of the costs of war.  The people's remoteness and isolation from war undermines their traditional role as a restraint.

Astore writes: 
As Admiral Mike Mullen, former Chairman of the Joint Chiefs of Staff, put it recently to Time:  “Long term, if the military drifts away from its people in this country, that is a catastrophic outcome we as a country can't tolerate.”
One of the consequences of this development appears to be our current "permanent state of remote war."

Cross-posted from War Time.

Saturday, December 10, 2011

John Bingham--Moderate or Radical?

Gerard N. Magliocca

I'm now about half-way through my draft of the Bingham biography, and I wanted to post about an insight into his political profile that I think others have overlooked.

One of the most vexing questions for scholars of Reconstruction is whether Bingham was a moderate or a radical. You can find evidence that points both ways, which may suggest that the inquiry is pointless. Another way to think about the issue, though, is that Bingham was one of the most radical Republicans in the House of Representatives prior to the Civil War, while after the war he often opposed the more extreme faction led by Thaddeus Stevens and was considered a leading moderate. Did Bingham mellow with age? What other explanation could there be?

Here's one possibility. Take a look at his share of the popular vote in his congressional races before the War:

1854: 65%
1856: 58%
1858: 57%
1860: 64%

Now look at his shares during and after the War:

1862: 45%
1864: 52%
1866: 52%
1868: 52%
1870: 50%

In 1862, Bingham's congressional district was redrawn and became more conservative. He lost that election in part because troops from the district who were in the field could not vote. Indeed, in 1864 Bingham again lost the votes of men residing in the district and won only because of military votes. After that, every election was touch-and-go until he left Congress in 1873.

Thus, it may be that the "moderate" John Bingham of Reconstruction was a politician who needed to be more cautious to retain his majority. This is consistent with the man who supported the Fugitive Slave Act of 1850 initially because he thought that was where public opinion in Ohio was, even though privately he wrote letters saying that the Act was horrific. Such is politics.

Friday, December 09, 2011

Resisting Elites’ Resistance to the Rule of Law (Review of Glenn Greenwald’s  With Liberty and Justice for Some)

Frank Pasquale

(Glenn Greenwald is having a fundraiser; link here.  I think his work is well worth supporting.)

There are few (if any) "free markets" in the largest sectors of the US economy. The health care industry is a labyrinth of public and private payers. Sectors known as "guard labor" are also larded with subsidies.  The Departments of Defense and Homeland security contract with thousands of companies.  The communications industry enjoys various government "givings." And at this point, everyone knows that our largest financial institutions are taxpayer supported entities. Without the implicit backing of the federal government, they would collapse.

Government subsidy to large industries is not, in and of itself, a bad thing. When wages are stagnant and capital gains are mainly enjoyed by the top thousandth of the population, some entity has to spend for common provision. But the price of that spending should be higher standards for the propped-up industry. In health care, for instance, Medicare Conditions of Participation (and laws like the 1986 EMTALA) require many hospitals to provide care regardless of patients' ability to pay. Tough fraud and abuse enforcement subjects providers' bills to rigorous audits; privacy law will soon require audit-capability for digital medical records. Legislation passed in 2009 and 2010 creates many other requirements to channel private provision of health care toward more public ends. It's certainly not a perfect system, but regulation is serious and purposeful. There are real consequences for many lawbreakers.

Glenn Greenwald tells a very different story about three other heavily subsidized industrial sectors.  He gives us serious reason to doubt that law has constrained banks, telcos, and the security sector when they posed critical threats to our economy, privacy, and liberty. His book With Liberty and Justice for Some is a passionate indictment of four distinct trends:

1) elites who violate laws with impunity,
2) retroactive immunity for acts unlawful at the time they were committed,
3) lobbyists' power to influence legislators to render bad conduct lawful or even subsidized, and
4) a radical increase in punishment of those who fall outside the charmed circle of political and economic elites.

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Thursday, December 08, 2011

Originalism and Sex Discrimination, or, How Thick is Original Public Meaning?


Steve Calabresi and Julia Rickert's new article, Originalism and Sex Discrimination, attempts to do for the 1970s sex equality decisions what Michael McConnell's 1995 article, "Originalism and the Desegregation Decisions," did for Brown v. Board of Education. Nonoriginalists argued that originalism was an unworkable or normatively unattractive theory because it could not account for Brown or for the modern sex equality decisions. McConnell responded that Brown was indeed consistent with the 14th amendment’s original meaning. Calabresi and Rickert try to show that properly understood, the original meaning of the 14th amendment-- in conjunction with the original meaning of the 19th amendment--prohibits discrimination on the basis of sex.

There are many interesting things about this piece. In this post, however, I want to focus on Calabresi and Rickert’s version of original meaning originalism. Calabresi and Rickert note early on that they agree with me that original meaning is not the same thing as original expected applications. This is a central claim of New Originalists like Randy Barnett, Larry Solum, and myself. At the same time, Calabresi and Rickert’s version of original meaning originalism differs from New Originalist approaches in important respects. Equally important, it also differs from the original meaning originalism of scholars like Michael McConnell, John McGinnis, and Michael Rappaport, as well as that championed by jurists like Antonin Scalia and Clarence Thomas.

Thus, although Calabresi and Rickert’s article might seem to be in the same vein as McConnell’s famous article, in fact the two are quite different, because they use historical evidence quite differently. And, as I shall now try to show, the way they articulate original meaning orignalism—“thicker” than framework originalism but “thinner” than the approaches of McConnell and McGinnis and Rappaport—creates puzzles that they don’t adequately address.
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Controversial Copyright Bills Would Violate First Amendment--Letters to Congress by Laurence Tribe and Me

Marvin Ammori

Today, both Professor Laurence Tribe and I submitted letters and legal memoranda to Congress explaining that proposed copyright legislation would violate the First Amendment and be struck down in court. (His letter is available here, and mine is available here.)

Professor Tribe is perhaps the nation's leading constitutional law expert and among its greatest Supreme Court advocates. My expertise is in Internet law, and I research, write on, and litigate issues concerning the 21st Century First Amendment.

We both felt compelled to write because of the threat to freedom of speech from the PROTECT IP Act in the Senate and the Stop Online Piracy Act (or SOPA) in the House.  Others have also come out to oppose the bills, including the leading civil liberties organizations (at home and abroad), venture capitalists, the leading technology platforms from Facebook and Google to Tumblr and Zynga, and (today) hundreds of entrepreneurs. In fact, a million people emailed Congress and well over 90,000 personally called their Members to oppose the bills, many during a coordinated "American Censorship Day" inspired by the bills' free speech burdens, a day organized by Fight for the Future, Demand Progress, Electronic Frontier Foundation, Public Knowledge, and Mozilla, among others. Over 90 law professors have also come out against the Senate version and even more against the House version.

The bills are not limited; they're sledgehammers not scalpels.
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