Tuesday, January 31, 2012

First Amendment Challenges in the Digital Age

Marvin Ammori

Next Friday, February 10, the Stanford Technology Law Review is holding its annual symposium, and this year's topic is an important one: First Amendment Challenges in the Digital Age. Of the three panels, one is devoted to privacy and another to copyright. The third is devoted to a long, ambitious law review article ... written by me. The panel participants joining me to discuss the article are two of the nation's great free speech scholars--Harvard's Yochai Benkler and the University of Virginia's Lillian BeVier. The article is called First Amendment Architecture. In it, I argue that the First Amendment plays an important role in ensuring adequate physical and digital spaces for speech, and that this role is not some exceptional outgrowth of First Amendment doctrine but is central to understanding what the First Amendment "means." While I submitted the paper for publication in February 2011, the subsequent events of the Arab Spring, the Occupy Movement, and the fight over SOPA/PIPA have all highlighted the significance to democratic speech of open physical and digital spaces. I am using the occasion of this symposium panel to blog about First Amendment Architecture. Law review "articles" generally add up to 30,000 words, or 60 pages, and have hundreds of footnotes and use semi-colons; this article is definitely a creature of that genre. My language in the piece is simple I think, but the blog genre is better for discussing the same arguments in bite-sized, digestible pieces. Several people have already blogged about my article briefly (saying nice things even), such as law professors Tim Wu (calling it "important work") and Susan Crawford (calling it "a terrific article"), as well MSNBC host Dylan Ratigan (saying it addresses "important ... First Amendment questions") . This first post is more about the amazing panel and about why I chose to research and write this article. The next pieces will present the article's arguments more fully.Read more »

Sunday, January 29, 2012

More on Corporations as Slaves


Following my previous post on why for-profit corporations cannot be persons for purposes of the Thirteenth Amendment, Sandy Levinson reminded me of another important fact. Not only can people buy and sell for-profit corporations like slaves, but they can also liquidate them. In the (in)famous 1830 case of State v. Mann, the North Carolina Supreme Court, in an opinion by Judge Ruffin, held that the owner of a slave had complete authority to use violence against a slave, even to take the slave's life. On the other hand, people who were not owners (or in the position of an owner, as Mann was in the case) could be sued for injuring or killing a slave.

In the same way, the owners of a for-profit corporation can liquidate or dissolve the corporation whenever it is convenient (subject always, of course, to various the regulatory requirements of state corporate law). Like slavemasters, they have the power of life or death over their corporations. On the other hand, the owners can sue other people who attempt to injure the corporation, and of course, the owners can take various steps to avoid hostile takeovers.

All of which suggests an interesting perspective on the First Amendment rights of for-profit corporations. Traditionally, slaves in the antebellum South lacked independent rights of their own, although their masters had rights against third parties who harmed them. That is, in most cases, legal protection of slaves was actually the protection of the property rights of their masters. Ordinarily slaves would not have had free speech rights of any kind; indeed, they would have been incompetent to testify in court.

If for-profit corporations have free speech rights, it is not because corporations are persons. It is because it makes sense to give the people that control them (who are not necessarily their owners) the power to use the corporate form to amplify their voices. Conversely, to the extent that it makes sense to limit the speech of for-profit corporations, it is not because constitutional rights of corporations are violated; it is because the rights of the people who control the corporations should not extend so far.

Saturday, January 28, 2012

Corporations and the Thirteenth Amendment


Yesterday Columbia Law Review held a symposium on the Thirteenth Amendment, at which Sandy Levinson and I presented a paper we are currently working on (I hope to post a draft soon).

As we explain in the paper, while the Fourteenth Amendment has been the font of a huge caselaw, and has been construed in ways that far outstrip its original purposes and understandings, the Thirteenth Amendment has been treated very differently. There is only a modest amount of case law construing it, and courts have generally construed it very narrowly, limiting it to situations that closely approximate chattel slavery of African-Americans. This is so despite the view of many Congressional Republicans in the 1860s that the end of slavery meant equal civil freedom for all, and the far broader conception of slavery that existed at the country's founding (more about that in another post). [Update: Marty Lederman correctly points out that section 2 has been read to give Congress broad powers to remedy private racial and national origin discrimination, but the point is that section 2 would bestow even broader powers if section 1 had been read in the way that we normally read section 1 of the Fourteenth Amendment--or many other portions of the Bill of Rights. Courts do not, for example, assume that section 2 gives Congress the power to regulate all oppressive labor conditions or secure equality of civil rights generally, unrelated to questions of race or national origin.].

There are several reasons why the Fourteenth Amendment blossomed and the Thirteenth Amendment did not. One of them is that the Fourteenth Amendment proved much more easily adaptable to the interests of business than the Thirteenth Amendment. (This is a point about the comparative opportunities available to repeat players with resources for litigation, which fairly well describes the business and corporate bar in the nineteenth century.)

Attorneys representing business interests had incentives to bring Fourteenth Amendment claims repeatedly to try to protect the interests of their clients, and federal judges, who were often drawn from the same group of lawyers, were increasingly receptive to these claims as the nineteenth century drew to a close. In this way, the Fourteenth Amendment was gradually co-opted by business interests during the nineteenth century; it was transformed from a vehicle for promoting racial equality and basic civil liberties for all into a vehicle for protecting the interests of businesses, industry, and corporations.

The Thirteenth Amendment was much less adaptable to this purpose, for a number of reasons. It says that "[n]either slavery nor involuntary servitude" shall exist in the United States. Suppose we read this language broadly, as we do for the Fourteenth Amendment. Then the ban on "slavery" might be useful to groups that sought to end various forms of unjustified domination and enforced dependence in civil society. In fact, it was so used by women seeking to reform marriage laws, and by early labor activists seeking to attack sweatshop conditions in factories. The same language, however, would be somewhat less useful to market-based enterprises, especially large and powerful ones.

Make no mistake-- the language of the Thirteenth Amendment could be adapted to protect powerful economic interests-- one should never underestimate the cleverness of lawyers with well-paying clients-- but it would just be more difficult to carry off. We are talking here about comparative opportunities available to lawyers seeking to promote their clients' interests. If there had never been a Fourteenth Amendment, I expect that the corporate bar in the nineteenth century might have tried to see if they could get judges to read the Thirteenth Amendment with a pro-business and anti-regulatory spin, for example, by arguing that government regulations of the economy or various forms of taxation were so onerous as to be a form of "involuntary servitude," or perhaps even slavery. Modern Tea Party conservatives, echoing protests against the British Empire, have tried to suggest that contemporary Americans are now slaves to an overweening federal government, and that the individual mandate is a form of unjustified coercion. So it's possible to make pro-corporate and pro-business arguments using the Thirteenth Amendment. It's just that it takes a lot of rhetorical work, and even then the arguments may not be particularly convincing.

On the other hand, the ideas of due process and equal protection in the Fourteenth Amendment could be more easily adapted-- and in fact were adapted-- to protect the interests of businesses. After the Supreme Court rebuffed initial attempts to use the Fourteenth Amendment to protect white butchers in the Slaughterhouse Cases, theories about how to use the concept of due process to protect business interests percolated in the state courts until they were recognized by the Supreme Court near the end of the nineteenth century. Businesses did not attempt to use the Thirteenth Amendment this way, although, as noted above, early women's rights activists and labor activists tried.

Moreover, in 1886, in the Santa Clara case, the Supreme Court held that corporations were persons protected by the Fourteenth Amendment. But lawyers representing business and industry could not make similar use of the Thirteenth Amendment. For-profit corporations could not be persons protected by the Thirteenth Amendment for a simple reason: You can own for- profit corporations (or shares of corporations) and buy and sell them. You can auction off corporations in markets (sometimes called stock exchanges). Finally, the owners of corporations can force corporations to work for them and take all the profits of their labor. Put differently, for-profit corporations are by nature designed to be "slaves." That is what distinguishes them from natural persons.

Wednesday, January 25, 2012

Bad Ads in Mass.

Joseph Fishkin

Following up on Mark’s post, a further problem with the Brown-Warren agreement is that not all ads “for” or “against” a candidate make their case effectively. Some are wholly ineffectual and others are actually counterproductive, indirectly reminding voters of why they disagree with the ad’s message.

This creates opportunities for mischief. If I were a really savvy Brown operative (by which I mean, of course, not a current campaign staffer, but perhaps an ex-staffer, college roommate, childhood best friend, or someone else officially “independent”), I’d run the worst, shoddiest, most-likely-to-backfire anti-Brown ad I could, and then watch as (a) the ad does nothing to hurt Brown, and may even help him, (b) Brown claims credit for sticking up for himself amid a barrage of attack advertising that Warren’s side is reprehensibly launching despite their agreement, and (c) oh, and by the way, for every two dollars I spend, the Warren campaign has to give one to charity. Not bad.

Now probably this is one of those “loopholes” to which the Brown-Warren agreement refers briefly at the end—a “sham ad.” But if so, all that does is move the goalposts. Now the game is to come up with an ad that, while pointless and ineffectual, is nonetheless just serious enough not to be considered a “sham.” In theory, even if an ad helps Warren, if it helps her less than 50% as effectively per dollar as the ad she would otherwise have run—for example because it muddies her message or unhelpfully changes the subject—then it actually helps Brown. (Don’t assume it will be easy to distinguish deliberate self-sabotage from earnest boneheadedness. If an agreement like this one had been in place, and if an ad like this one had been an independent expenditure, would you have believed it was for real?) On the flip side, there’s always a danger that a message intended to be ineffectual will instead be wildly popular
Read more »

Monday, January 23, 2012

What Am I Missing?

Mark Tushnet

According to reports, Elizabeth Warren and Scott Brown have reached an agreement -- the near-final version of which is, with grammatical warts and all, available here -- expressing their opposition to "outside" spending in connection with their campaigns for the Senate. As summarized, the agreement is this: "Brown said his campaign would have to donate 50 percent of the value of any spending on his behalf to a charity of Warren’s choice, and she would have to do the same to a charity of his choosing if he was targeted with an outside ad benefitting her." On its face, this agreement seems to turn control over campaign advertising to outside groups: Say Brown and Warren each have $10 million to spend on their own advertising. All that outside groups have to do to gain complete control over campaign messaging is to spend $20 million (each, for Brown and Warren).

I have to be missing something, but what? The agreement says that the candidates will work to close loopholes, but what I've described doesn't seem to me fairly characterized as a loophole. As the saying goes, it appears to me to be a feature not a bug. But, as I say, I have to be missing something.

Favorite Son/Daughter Candidates

Gerard N. Magliocca

Normally I wouldn't post on something that has nothing to do with law, but in this case I can't resist. If Newt Gingrich wins the Florida primary and turns the campaign for the GOP nomination into a long fight, I wonder whether we might see an old-style tactic reemerge; namely, local politicians running in their home state to win delegates and thereby prevent anyone from getting a first-ballot majority. For example, Mitch Daniels could run in the IN primary in May, Mike Huckabee could run in the AR primary in May, Mitch McConnell could run in the KY primary in May, etc.

People could have many motives for doing this. Maybe it's because they don't want any of the current candidates to be the nominee. Maybe it's because they think that they could the nominee of a brokered convention. Maybe they just want bargaining power at the convention. ("That first Supreme Court vacancy would look nice in exchange for my support.") Or maybe they want to serve as a stalking horse for somebody else. Granted, many of the filing deadlines for these later states are coming up quickly or have already passed, but that doesn't prevent an organized write-in campaign from taking delegates.

Is this far-fetched? Sure. Would it be entertaining as all get-out? Absolutely.

Friday, January 20, 2012

Three Cheers

Gerard N. Magliocca

Given how often the Supreme Court gets bashed for being political or hopelessly fractured, it is worth noting that the Court was unanimous (in result) on two recent cases on hot-button issues--the ministerial exception and redistricting in Texas. Maybe that's a fluke, but some credit should be given to the Chief Justice and his colleagues for finding common ground when they can.

"The Workers are Animals. Let's Replace Them with Robots."

Frank Pasquale

Among the billionaires at the vanguard of global capital, Terry Gou of Hon Hai (also known as Foxconn) deserves special recognition for his honesty. "Hon Hai has a workforce of over one million worldwide and as human beings are also animals, to manage one million animals gives me a headache," said the chairman. His company has also begun building "an empire of robots" to replace a whining workforce.

To get a better sense of why the "animals" may be complaining, be sure to listen to Mike Daisey's extraordinary report on his trip to Shenzhen, home of a massive Foxconn factory. Here's one excerpt:
N-hexane is an iPhone screen cleaner. It's great because it evaporates a little bit faster than alcohol does, which means you can run the production line even faster and try to keep up with the quotas. The problem is that n-hexane is a potent neurotoxin, and all these people have been exposed. Their hands shake uncontrollably. Most of them can't even pick up a glass.
I talk to people whose joints in their hands have disintegrated from working on the line, doing the same motion hundreds and hundreds of thousands of times. It's like carpal tunnel on a scale we can scarcely imagine. And you need to know that this is eminently avoidable. If these people were rotated monthly on their jobs, this would not happen.
But that would require someone to care. That would require someone at Foxconn and the other suppliers to care. That would require someone at Apple and Dell and the other customers to care. Currently no one in the ecosystem cares enough to even enforce that. And so when you start working at 15 or 16, by the time you are 26, 27, your hands are ruined. And when they are truly ruined, once they will not do anything further, you know what we do with a defective part in a machine that makes machine. We throw it away.
When workers are already treated as machines, perhaps their replacement by robots should be a cause for celebration. But the question then becomes: what do the displaced do for a living? Is there an alternative to exploitation?
Read more »

Thursday, January 19, 2012

Debating (and Teaching) the Freedom of Expression

Ken Kersch

Oxford’s Timothy Garton Ash has launched a global forum for the discussion of the basic principles of the freedom of expression. Amongst other things, the site sets out draft principles for debate, and – of special value – posts an array of well-chosen “case studies” of free expression controversies from around the world. The site is designed to allow for conversation in an array of languages. Ash (together with LSE Political Scientist Fawaz Gerges and pianist Jonathan Biss) recently participated in an informative discussion of the freedom of expression on the BBC’s Forum program “A World of Ideas.”

In the United States, we’ve had a robust dialogue on the nature and scope of the freedom of expression since at least 1919. Many of the questions raised by Ash will thus be familiar to us -- especially to First Amendment experts. But Ash’s site, and his BBC interview, set things out clearly, in a way that will be useful to many, particularly in our role as teachers. The case studies are well-chosen, timely, and accessible. They may be especially welcome to those interested in stimulating discussion of live, hard-fought free speech controversies 1) from around the world, that 2) have not (yet?) been reduced to judicial opinions.

Wednesday, January 18, 2012


Jason Mazzone

Justice Ginsburg, who has never seen a copyright law she doesn't like, writes for the Court today in Golan v. Holder, upholding Congress's power to remove un-copyrighted works from the public domain. Perhaps the only thing right about the Golan opinion is its timing: it arrives on the same day as the web-wide protests against the astonishing threat to freedom of speech that is SOPA.

SOPA and the Fight for Control of Online Content

Frank Pasquale

I have an essay on the SOPA controversy at the Boston Review. My main point: SOPA and its ilk are terrible, but its opponents should rally behind a constructive alternative to promote funding for arts and culture. As I argue there:
SOPA has spawned a powerful alliance of netizens to support basic principles of due process, free expression, and accountability online. But this battle is merely a prelude to a much more contested debate about the proper allocation of digital revenues. Like health care battles between providers and insurers, struggles between content owners and intermediaries will profoundly shape our common life. Stopping SOPA is only one small step toward preserving a fair, free, and democratic culture online.
For other commentary, here's Marvin Ammori, Danielle Citron, Gerard Magliocca, and Derek Bambauer.

Simulposted: Concurring Opinions.

If you can't do without Wikipedia . . .

Gerard N. Magliocca

Cross-posted at Concurring Opinions

As I'm sure you know, Wikipedia is dark today to protest the bills pending in Congress that would give content providers new tools to stop copyright infringement. The legislation is awful (when it comes to IP, that's par for the course) and I endorse this protest wholeheartedly. Alleged copyright infringers should have an opportunity to defend themselves--the notion that they can be punished through an ex part proceeding or by simply telling a host that you think somebody is engaged in illegal activity is contrary to due process and to the First Amendment. Moreover, a policy that allows a site to be, in effect, disconnected from the Web is more suited to Beijing than Washington DC. When I lived in China, it would be fun to figure out what websites you could or could not access. (Legal blogs from the US were always blocked back then.) What Congress is contemplating is not as bad, but the underlying principle is the same. The state should not get to decide what websites we can visit--period.

Though I have class this morning, I'll be available after that to answer all questions that you would normally take to Wikipedia. Consider it a game of "Stump Gerard." I accept the challenge!

Monday, January 16, 2012

Martin Luther King Day Links

Frank Pasquale

To mark the day, a few reflections:

1) Nicholas K. Peart, Why is the NYPD After Me?

Less than two years later, in the spring of 2008, N.Y.P.D. officers stopped and frisked me, again. And for no apparent reason. This time I was leaving my grandmother’s home in Flatbush, Brooklyn; a squad car passed me as I walked down East 49th Street to the bus stop. The car backed up. Three officers jumped out. Not again. The officers ordered me to stand, hands against a garage door, fished my wallet out of my pocket and looked at my ID. Then they let me go. I was stopped again in September of 2010. This time I was just walking home from the gym. It was the same routine: I was stopped, frisked, searched, ID’d and let go. . . .

[L]ast year, the N.Y.P.D. recorded more than 600,000 stops; 84 percent of those stopped were blacks or Latinos. Police are far more likely to use force when stopping blacks or Latinos than whites. In half the stops police cite the vague “furtive movements” as the reason for the stop. Maybe black and brown people just look more furtive, whatever that means. These stops are part of a larger, more widespread problem — a racially discriminatory system of stop-and-frisk in the N.Y.P.D.

2) MLK’s Legacy: The Charleston Hospital Workers’ Strike of 1969:

During the year after her husband’s assassination, Coretta Scott King made several visits to Charleston, S.C., where hospital aides at what was then the Medical College of South Carolina were involved in a protracted fight for decent wages. After a 113-day strike, the union won an agreement that led to wage increases and new grievance procedures.

The campaign was led by Mary Moultrie, a South Carolina native . . . In Moultrie’s telling, the gains that the union won lasted only for a few years. Because South Carolina is a right-to-work state, the union couldn’t manage to maintain much strength. But Moultrie didn’t give up: She was still organizing as recently as 2008.

3) Adam Kotsko, On the commemoration of Martin Luther King
Read more »

Sunday, January 15, 2012

Mitt Romney and the 2012 Campaign

Gerard N. Magliocca

Stephen Skowronek's research on the presidency is a major influence on my work. My conclusion, which I've stated in prior posts, is that the 2008 election was a realignment and that Barack Obama is a "reconstructive" president in Skowronek's model, by which I mean that we are at the beginning of a new party system that will be dominated by Democrats.

Suppose, though, that I'm wrong. (Indeed, Skowronek himself does not think that Obama is a reconstructive president, or at least is unsure about that.) In that case, we are still in the Reagan/conservative era. With that assumption, Mitt Romney looks an awful lot what Skowronek calls a "disjunctive" or end-of-regime presidential candidate.

The traits of a disjunctive president are that he presents himself as a technocrat and comes from outside the typical political base for his party. Examples include (1) John Quincy Adams, an ex-Federalist who got elected as a Jeffersonian Democrat based on his problem-solving skills; (2) Franklin Pierce, an obscure candidate from New Hampshire who ran as a pragmatist in 1852; (3) Herbert Hoover, an engineer who wasn't a Republican until 1920; and (4) Jimmy Carter, an engineer who had never served in Washington. They were also all terrible failures.

Mitt Romney, of course, has never served in Washington and is running based on his business know-how. He also hails from Massachusetts, which is not where modern Republican leaders come from. Indeed, for the last few decades Massachusetts has been the symbol of liberalism run amok (Ted Kennedy, Michael Dukakis, John Kerry). If Romney wins (and that's a big if), he could be following the dismal pattern of disjunctive presidents.

Saturday, January 14, 2012

Justice Accused (circa 2012): Antislavery Constitutionalism … on the Republican Right

Ken Kersch

Just in time for the MLK holiday, I have an article out in the Maryland Law Review on antislavery constitutionalism on the contemporary right:

"Beyond Originalism: Conservative Declarationism and Constitutional Redemption," 71 Md. L. Rev. 229 (2011).

The first two paragraphs, setting out the main argument, are here:

“Almost 150 years after the ratification of the Thirteenth Amendment, the redemption of the nation from chattel slavery has become important--and for many conservatives, central--to the understanding of American politics. Slavery itself may be a thing of the past, but the purported political and constitutional lessons of its initial acceptance and subsequent eradication--once a preoccupation primarily of the liberal/left--are very much on the mind of the modern American right. In a marked departure from the old, more familiar conservative narrative, many of the modern movement's most influential constitutional theorists recount the nation's experience with slavery through a constitutional vision I will call (as have others) "Declarationism." As that term is used in this Article, Declarationism is the view that the Constitution can only be understood and interpreted in light of the principles enunciated in the opening words of the Declaration of Independence, which are held to be the Constitution's beating heart and unshakable foundation.

This Article, argues that contemporary conservative Declarationism offers a dramatic and morally compelling story about the long trajectory of American constitutional development, and serves: (1) as an ideological means of morally rehabilitating and redeeming southern conservatism in the wake of its longtime, but now morally discredited, defense of legal segregation; and (2) as an ideological means of unifying the diverse strands of the contemporary Religious Right. Both, of course, are crucial to the mission of the modern Republican Party.”

Friday, January 13, 2012

The "Absolute" Ministerial Exception


In the Hosanna-Tabor case, the Supreme Court for the first time recognized a ministerial exception under the First Amendment, insulating church officials from lawsuits by (some of) their former employees. Different versions of the ministerial exception have existed in the circuit courts for many years, but now the Supreme Court has weighed in, in what seemed, at least at first glance, to be a rather uncompromising version of the doctrine.
Read more »

Wednesday, January 11, 2012

Just released: War Time: An Idea, Its History, Its Consequences

Mary L. Dudziak

I hope you will indulge this little announcement:  My new book, War Time: An Idea, Its History, Its Consequences, has just been released by Oxford University Press.  You have had a preview, of course, since I've occasionally talked about it here. In the acknowledgments is a thank you to everyone who sent an email and posted a blog comment (a group thank you, since of course I couldn't list everyone).  I could not address all the great suggestions I received, but I greatly benefited from your engagement.

Here's the press book description:
When is wartime? On the surface, it is a period of time in which a society is at war. But we now live in what President Obama has called "an age without surrender ceremonies," as the Administration announced an "end to conflict in Iraq," even though conflict on the ground is ongoing. It is no longer easy to distinguish between wartime and peacetime. In this inventive meditation on war, time, and the law, Mary Dudziak argues that wartime is not as discrete a time period as we like to think. Instead, America has been engaged in some form of ongoing overseas armed conflict for over a century. Meanwhile policy makers and the American public continue to view wars as exceptional events that eventually give way to normal peace times. This has two consequences. First, because war is thought to be exceptional, "wartime" remains a shorthand argument justifying extreme actions like torture and detention without trial. Second, ongoing warfare is enabled by the inattention of the American people. More disconnected than ever from the wars their nation is fighting, public disengagement leaves us without political restraints on the exercise of American war powers.
There are endorsements from a couple of your favorite con law scholars and others. The table of contents and introduction are on SSRN.  Other details are here and here. Book news, information about public events, and discussion of related works, can be found here.  And you can read the whole book right now on Kindle and Nook.

Cross-posted from the Legal History Blog.

Saturday, January 07, 2012

War Powers (Pt. 4)

Stephen Griffin

Why worry about war powers? If we accept that there is a constitutional basis for presidential predominance in foreign policy (a view I advanced in Pt. 1), it is hard to see why we should devote most of our attention to minor military operations carried out in furtherance of that policy. If we have a problem with the operation, we should argue with the foreign policy that underlies it, not the Constitution. The chief reason to worry about war powers is because of the dubious constitutional origins and consequences of “real” wars – military conflicts such as Korea, Vietnam, the 1991 Gulf War and the recent wars in Afghanistan and Iraq. These “limited” wars fought since 1945 have posed grave challenges for our constitutional system and imposed massive costs on the country.

Speaking very broadly, since 1945 the US has enjoyed many discrete military successes. To be sure, post-1945 history is not usually described this way. That is because those limited successes were wrapped in an almost unbroken series of much greater political failures. By “political” I mean to include failures of policy, diplomacy, public justification, and party-political disruption. Certainly presidents have had a much easier time starting wars than justifying them.

It is surely true that the war powers debate was generated by these failures. But in assessing them, the debate has tended to concentrate on the question of authority narrowly construed. For example, did George H. W. Bush have authority to launch a war against the Iraqi army in Kuwait? Most scholars say yes, because Bush went to Congress in January 1991 and obtained a resolution of authorization, one of a number of “AUMFs” sought by presidents since Eisenhower. But this limited approach does not answer every important constitutional question we could ask. In fact, Bush never accepted Congress’s legitimate constitutional role and was willing, like most post-1945 presidents,to launch a major war on his own authority. Crucially, this meant that he never had to formulate a robust rationale for the war in light of the risk that, if Congress rejected his request for war authority, he would have had to cancel the operation and suffer the attendant policy consequences.

My review of the wars fought since 1945 shows that every single one has featured serious problems of executive branch deliberation that are directly connected to an infirm constitutional process. The problem is not so much that presidents have usurped authority but rather that the unilateral presidential decisionmaking that was imagined as a necessary element of the Cold War constitutional order was inherently defective.

What sort of defects are we talking about? It may seem startling, but history discloses no record of anything close to an adequate decisionmaking process for any war post-1945. In terms of a terrible or even nonexistent decisionmaking process, the 2003 Iraq War was unfortunately all too typical. Basic policy alternatives are rarely identified. The executive branch seems incapable of deliberating in a systematic way. This has had consequences for policy. The Iraq War was launched without a careful review of the available evidence concerning WMD. Truman ordered US troops to unite Korea without considering Chinese reaction. But the problems go further than bad policy choices. There were several instances,including the 1991 Gulf War and the war in Afghanistan, in which the executive branch was unable to decide on war aims, to identify the basic purpose of the war. This has not only hurt policy, but the ability of the president to justify the war to the public in a democratic way. Moreover, there is considerable evidence that each president who has fought a major war becomes personally involved in an unhealthy psychological sense, overwhelmed and eventually paralyzed not only in reacting to the changing circumstances of the war but with respect to foreign policy generally. Occasionally, these troubles have become serious enough to cause serious disturbances in the American governmental system, even constitutional crises. The ultimate lesson is that wars cannot be fought by the president alone.

These defects constitute a kind of “reverse proof” that the Constitution requires robust interbranch deliberation before the decision for war is made. The original constitutional order – the fundamental arrangement of powers as implemented by institutions – conflicts with the Cold War constitutional order. The Constitution did permit the president to become the leader in foreign policy. Those who created the Cold War constitutional order thus had some basis for thinking that a unilateral approach to foreign policy was justified. Unfortunately war, “real” war, is special. It is marked as such by the Constitution and confirmed by our concrete historical experience. Wars thus could not be conducted unilaterally without placing the entire constitutional system at risk. That is why we need to focus on how these major military conflicts came about and how an inadequate decisionmaking process might be avoided in the future.

Because this is the end of one cycle of posts, I’ve allowed comments. In the next cycle, I’ll describe some of the ways this project changed my view of post-1945 American history.

Thursday, January 05, 2012

Was the New York Times Used by Duncan Law School (or were readers duped by the Times)?

Brian Tamanaha

The theme of the final installment of the New York Times series on law schools, "For Law Schools, A Price to Play the A.B.A.'s Way," was that ABA accreditation is to blame for high tuition. The story revolved around the effort of Duncan School of Law to obtain provisional A.B.A. accreditation. In the article, Duncan administrators and the main benefactor complained that accreditation regulations were "massive, just massive." Without these requirements, they claimed, "Duncan could have cut its tuition in half, maybe by two-thirds."

The article gave the clear impression that Duncan was awaiting a final decision on whether it would receive accreditation without any foreknowledge of its likely fate. The concluding passages:

ON Dec. 2, Mr. Beckman and six colleagues from Duncan traveled to a hotel in San Juan, P.R., where the A.B.A. held its latest council meeting. The school had 15 minutes at a hearing to offer its arguments for provisional accreditation.

“This is just a pet peeve,” Mr. Beckman said last week, “but there is all this talk about the cost of legal education, and they make us fly to Puerto Rico and meet at the Ritz-Carlton?”

After his presentation, Mr. Beckman and others answered a number of questions, including a few about the job market for lawyers in east Tennessee. This bothered Mr. Beckman because, for antitrust reasons, employment prospects are not part of the A.B.A.’s standards. He pointed that out to the council.

“They didn’t really respond,” he says.

Nor did they hint at whether they would give Duncan a thumbs-up. In the past, law schools have learned a few days after their hearings. But since Dec. 2, there has been nothing. “The last thing we heard — and they didn’t mean this to be rude or anything — was at the end of the meeting in Puerto Rico,” Mr. Beckman says. “They said, ‘You can let yourselves out.’ “

Just three days after the Times story, on December 20th, the ABA notified Duncan that it had been denied accreditation. The timing and perfunctory nature of the notification suggested to some observers that the ABA had retaliated against Duncan for its critical comments.

As it turns out, however, the story left out crucial information. Read more »

Tuesday, January 03, 2012

Christopher Hitchens and the Law

Gerard N. Magliocca

Although it happened before the holidays, I want to take a moment to note the passing of Christopher Hitchens, who was an intellectual hero of mine. Not only was he was a brilliant writer who covered a broad range of topics, but he had an independent streak a mile wide. His point that "sometimes the wrong people have the right line" is a principle that everyone involved in politics should think about, as group-think is all too common these days.

In Letters to a Young Contrarian, Hitchens quoted F.M Cornford, a Cambridge don who wrote that "[t]here is only one argument for doing something; the rest are arguments for doing nothing." He then catalogued three of the leading arguments for doing nothing:

1. The Wedge

You should not act justly now for fear of raising expectations that you may act still more justly in the future--expectations that you are afraid you will not have the courage to satisfy. A little reflection will make it evident that the wedge argument implies the admission that the persons who use it cannot prove that the action is not just. If they could, that would be the sole and sufficient reason for not doing it, and this argument would be superfluous.

2. The Dangerous Precedent

You should not do any admittedly right action for fear you, or your equally timid successors, should not have the courage to do right in some future case, which is essentially different, but superficially resembles the present one. Every public action that is not customary either is wrong, or, if it is right, is a dangerous precedent. It follows that nothing should ever be done for the first time.

3. The Time is Not Ripe

People should not do at the present moment what they think right at that moment, because the moment at which they think it right has not yet arrived.

You Must Remember This….

Ken Kersch

A coda to my earlier post on the regulation of hate speech in Europe and the U.S…. The following day, the New York Times had another interesting article on the subject. The paper reported a major diplomatic rupture between France and Turkey following the approval by the lower house of the French parliament of a bill that would make it a crime for anyone to deny that the Turks committed genocide against the Armenians in the early twentieth century. Especially notable was the fact that Turkey has its own law that is the mirror image of the proposed French legislation – a law, that is, that makes it a crime in Turkey for anyone to affirm that the Turks committed genocide against the Armenians.

Let’s look at this from the perspective of the (purported) aspirations of these two nations to “unite” under a common polity – the European Union (which was created in significant part to prevent the Nazi genocide (post hoc, of course…)). If, for a moment, we treat these nations as true compatriots, the law of the European umbrella polity now makes it a criminal offense to either deny or affirm the Armenian genocide.

Is this what they call a “teachable moment”?

I would ask some analytic and developmental questions.

Rather than being crudely either “for” or “against” laws criminalizing hate speech, might it be useful for social scientists, legal scholars, and our students, to start making some more refined analytic distinctions between different types of hate crimes regulations, and the different contexts occasioning them? The Turkey-France contretemps is a case of an effort to regulate a particular type of speech – the articulation of a historical interpretation of events. Is this on all-fours with the criminalization of European Holocaust denial? Is David Irving’s denial of the Nazi genocide a denial of (all but) indisputable facts, whereas the Turkish denial is a matter of the interpretation/characterization of the facts? When is a fact so “factual” as to be indisputable? At a deeper level, is it possible to form a common polity out of nations with utterly divergent historical memories? What happens to law when it is not underwritten by memory? Obviously, both parties here believe that a shared historical memory is enormously important to a successful, sustainable polity (or else they wouldn’t have tried to impose it under penalty of law). Once the EU unites (if the fantastical economic utopianism underwriting the monetary union doesn’t destroy it first….), will the seat of the Ottoman Empire and Paris join in a shared historical memory in all areas where it matters? What about the world? How much is the success of any human rights regime dependent upon these convergences? What are the consequences of seeking to legally coerce convergence?

The criminalization of historical interpretation is only one form of hate speech regulation. There is also regulation applying to remarks (casual/off-the-cuff, or with the specific intention to intimidate --with diverse likelihoods of success), to the systematic propagation of ideologies (or religions), to the legal recognition (or permitting) of political parties (does it matter whether the political prospects for such parties are high or hopeless?), to the legality of dismissals from private or public employment, and so forth. These may all be about regulating “hate,” but they are not the same thing.

And what about context? How much would it matter if we are in an immediate post-genocide situation (e.g. places in Africa), or well down the road to a new day (Nazi western Europe)? Should these laws be sunset-able (as Justice O’Connor famously suggested about racial preferences in the U.S.) – implying that they are about managing pluralism in a polity in which the underlying conditions are changing and developing – or are they there to enforce and make a symbolic statement of timeless principles? What about purportedly pre-genocide situations? Or are hate speech regulations aimed more at less dire matters of “nudging” us toward social and political equality under more functional conditions? How bad do things have to be to justify them? Or, from a different perspective, how good? Might these laws, in some cases, serve to undermine the basis of that functionality?

To return to case of prosecution for articulating the wrong memory, of course this is not solely a European matter. A large part of the constitutional politics roiling the contemporary United States involves aggressive efforts to sell divergent memories of the nation’s past: about the Founding, Reconstruction, the New Deal, the 1960s, the 1980s, etc. When are clashes of historical and constitutional memory the necessary -- and perhaps even desirable -- features of a vital constitutional polity, and when are they toxic? If toxic, when is the time to step in with the criminal law… if ever?

In the throes of its currency debacle, Europe may be moving toward fundamentally rethinking its theories of political/constitutional unity. Might this be necessary outside the economic realm as well?

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