Does the Constitution Require the Senate to Give Amy Klobuchar 2 Votes?

The most important provision of the Constitution is the one giving each State an equal voice in the Senate. How do we know? Because while everything else in the Constitution can be amended by a 2/3 vote in each house of Congress followed by ratification by 3/4 of the States, the Constitution provides a special rule for equal representation in the Senate: "no state, without its consent, shall be deprived of its equal suffrage in the Senate."

And yet, there is poor Minnesota, which for all of the current session of Congress thus far, and potentially for months to come, has had but one Senator, while the courts sort out Norm Coleman's challenge to Al Franken's razor-thin victory. Mostly this is a problem for the Democratic Party, which would have 57 Senators if Franken were seated. Add in the two Independents who caucus with the Democrats---Bernie Sanders, who is effectively a Democrat, and Joe Lieberman, who is pretty close on most issues---and that would mean that to break a filibuster they'd only need to pick up one of the Maine Senators or Arlen Specter. Without Franken, they need two out of three, which is a substantial difference.

The Senate could solve this problem by changing its cloture rule to provide that it takes X-40 votes to end debate, where X is the number of Senators actually seated. Of course, to change the filibuster rule, even in this minor way, would require overcoming a filibuster to the Senate Rule Change vote itself, or use of the "nuclear option," so this seems unlikely. And even if this worked, it would not help Minnesota, which has discrete interests as a state (i.e., pork) that are about Minnesota rather than the Democratic Party.

A more straightforward option would be to give the one seated Minnesota Senator, Amy Klobuchar (D), two votes. Of course, that would violate the express voting rule for the Senate set forth in Article I (one vote per Senator), but if we think that the equal suffrage provision of Article V (quoted above) is more important, then perhaps it overrides. Surely giving Klobuchar two votes would be truer to the spirit of the Article I voting rule than the cloture rule itself.

To be sure, beyond the fact that it's never going to happen, my two-votes-for-Klobuchar plan also appears to violate the 17th Amendment, which authorizes special elections to fill vacant Senate seats, or in the alternative, authorizes state legislatures to delegate to Governors the power to make interim Senate appointments. If, constitutionally speaking, the second Minnesota seat is now regarded as "vacant" because of the never-ending legal battle, then isn't the remedy for Minnesota to have another election or for Governor Pawlenty to name someone temporarily? And because neither of those options seems remotely appropriate, doesn't that suggest that the second Minnesota seat should not be regarded as vacant?

But at some point that logic breaks down. Suppose the Coleman/Franken litigation drags on for several years (as litigation sometimes does). Surely then somebody would be authorized to act---and if the Republican Governor of Minnesota refuses to do so because he regards delay as benefiting the Republican Party nationally, then the Senate itself would be warranted in taking action, even if doing so requires the "nuclear option." What I'm suggesting here is that in doing so, the Senate could say it's acting to protect the Constitution's most important provision.

Posted by Mike Dorf

Obeying Our Overlords

Earlier this month, the premier of China gave a speech in which he expressed concern about the management of the U.S. economy. In the context of his country's holding of over a trillion dollars in U.S. Treasury securities, the remarks were widely seen as saying, in effect, "We own you now. Do what we tell you or we'll cut you off. Then you'll really be in trouble."

Despite plenty of evidence that the Chinese leader's comments were bluster and aimed at his domestic political audience, this story has gained some currency in the U.S. The comments were immediately seized upon by U.S. pundits, politicians, and others to support their contentions that U.S. fiscal policy must become more "responsible" by reducing U.S. deficits and debt as soon as possible. Shortly after his remarks were reported here, I attended a conference on budget policy in which people discussed the "warnings" as if they were important. Last night, by chance I watched a few minutes of Fareed Zakaria's new talk show on CNN, in which he again quoted China's leader and asked how bad the situation is. (That one of his panelists was Nicholas Kristof of the New York Times, who is completely unqualified to speak on the subject, is a different matter.) Even though Zakaria's guests did not speak in panicked tones, the very discussion of the Chinese leader's remarks imparted to them an importance that they do not deserve. As usual, the conventional wisdom regarding deficits has it mostly wrong.

Why do we borrow from abroad at all? In any given year, any economy will generate some amount of saving that can be used to finance investment. The domestic government (if it is running a deficit) and domestic businesses (if they are well run) will want to borrow money to finance their purchases. Under the standard story, if the government is running a deficit, the money that it borrows "crowds out" borrowing by private businesses, preventing factories from being built, machines from being purchased, etc. If, on the other hand, the government finances its deficit by borrowing from abroad, domestic businesses are not forced to reduce their borrowing and thus are able to invest as they would have if the government had not run a deficit. The cost of this, of course, is that foreign bondholders are owed interest on U.S. debt, which means that even though we have built more factories, etc., we must divert some of our profits from those factories to pay our foreign lenders.

As an initial matter, therefore, the choice of borrowing from abroad allows us to invest in capital in the U.S. that we would not otherwise be able to afford. If the capital earns a higher rate of return than the interest on foreign debt, then we are ahead. Given that the decisions to invest are pegged to the interest rates that businesses must pay, we typically have good reason to believe that they will invest up until (but not past) the point where their projects are equal to the cost of borrowing. In short, the ability to borrow from abroad allows us to build some things that we would not otherwise build, with the concomitant job creation, etc., in this country and the likelihood that the investments will in the aggregate pay off at higher rates than we are paying on our debt.

Any concerns about foreign borrowing, therefore, must be based on political concerns that we are giving foreign lenders the ability to affect our economy in ways that they could not if we did not owe them so much money. The reality, of course, is that being a creditor to the U.S. is still so attractive that the bonds that we issue fetch very high prices (which is the same thing as saying that they pay very low interest rates). If a bondholder were to engage in a deliberate attempt to punish the U.S. for its fiscal policies, the only thing it could do is to sell U.S. Treasury securities. Because prices fall when supply rises exogenously, the holders of debt would see the value of their assets fall. The more U.S. debt one holds, the more of a loss one suffers from U.S. debt becoming less valuable. More simply, punishing us by making us pay higher interest rates also punishes our lenders by making their investments go down in price.

Of course, the legitimate concern is that lenders will rationally pull back on future purchases and will not re-lend money to us when current securities mature. On the margin, U.S. policy must be set in a way that takes into account the likely reactions of all potential lenders to U.S. fiscal policies. This is quite different, however, from saying that foreign borrowing is going to allow the Chinese government to dictate terms to the U.S. government. In the current vernacular, the U.S. is "too big to fail," and our lenders know it. As I discussed the other day in the context of monetary policy, what China and every other lender (foreign and domestic) want is a healthy and rich U.S. economy that can service its debt payments and buy and sell goods and services in a well-functioning global economy. The surest path to that outcome is for the U.S. to engage in fiscal, monetary, and regulatory policies that will end the recession. Following that path will be much easier if we do not allow ourselves to be distracted by the politically-motivated comments of a foreign leader -- even (or especially) one who is counting on us to pay interest on a trillion dollars in securities that his government counts as an asset.

-- Posted by Neil H. Buchanan

Math Police: Sports Division

Did you hear that the Big East conference has four teams in the Elite 8 of the NCAA Men's Basketball tournament?! Did you know that no conference has ever put four teams in the Elite 8 in the history of the tournament?!?!?!! Are you excited? Neither am I, except that this gives me another opportunity to rant about the inability of people to understand simple math concepts.

It's not that there aren't four Big East teams in the regional finals. There are: Louisville, Connecticut, Pittsburgh, and Villanova. The relevant fact, however, is that there are currently a total of 16 teams in the Big East, whereas no other power conference has ever had more than 12 teams. The previous record for one conference putting teams in the Elite 8 was three. Sixteen is to twelve as four is to three. (Sorry, I couldn't resist.) In fact, when the Big East put three teams in the Final Four of the men's basketball tournament in 1985, there were only nine teams in the conference (and Louisville was not among them). The ACC, which also had nine teams that year, also had three teams in the Elite 8.

As anyone who follows sports knows, this is hardly the only mindless misuse of numbers that we run across on a regular basis. The NFL went from 14 to 16 games in 1978, but fans and commentators continue to talk about season records as totals rather than per-game averages. Baseball fans talk about 162-game records as if they are the same as 154-game (or less) records, such as the talk in 2001 when the Seattle Mariners went 116-46 and "tied" the all-time record for wins in a season. Whose record did they tie? The 1906 Cubs, who went 116-36.

The most ridiculous version of this was when I heard an announcer a couple of years ago talk about the great achievement of the NC State football team, when it won 10 games in one season for the first time (or for a couple of years in a row -- I can't recall the exact meaningless claim). Because of changes in the rules, however, that year the 'pack had played 15 games, whereas up until a couple of years ago most teams could only play 12 games (including a bowl). When you hear that, say, Oklahoma has won ten games in a season x times, you're talking about a team that frequently did so when they only played ten or eleven games, not a team that lost five games in a season while winning a minor bowl. But State won 10 games. You can't take that away from 'em!

This lack of comprehension of the meanings of numbers carries over to other basic concepts of logic. For example, the NFL recently adopted the so-called "Brady Rule," which makes it illegal for a defensive player to lunge at the legs of a quarterback (which is the move that ended Tom Brady's 2008 season during the first game of the year). Along with all the predictable repetitions of Jack Lambert's infamous "Why don't you just put a dress on 'em?" complaint, talk-show host and former defensive lineman Mike Golic assailed the rule because it would "prevent me from doing my job," which was to bring the quarterback down.

That's correct. Many rules make it harder to bring down a quarterback. Defensive linemen can no longer head-slap linemen; they can't grab blockers by the facemask and throw them out of the way; they can't bring weapons onto the field; and the quarterback is allowed to run more than two steps without being called for traveling. In fact, quarterbacks can never be called for traveling! (In the NBA, meanwhile, "crab dribblers" think they can take as many steps as they need -- but even pro basketball has limits.) Lots of rules. As in the legal system, if the rules change, the outcomes change; but that doesn't mean that the rules should never be changed. The worst argument, of course, is that "it's a violent sport" and "injuries happen." I'm sure that defensive linemen didn't say that when career-ending crackback blocks were banned, even though that made it harder for offensive players to do their jobs.

Why complain about this silliness? In part, just because it's fun to complain about sports on a Saturday afternoon. It does, however, seem odd to consider this inability to understand the function of rules and the basic context for numbers when we hear so often that "sports makes boys like math." If so, then it makes many of them enjoy playing with numbers without understanding them.

-- Posted by Neil H. Buchanan

Is Barney Frank Right that Justice Scalia is a Homophobe But Justice Thomas is Not?

To defend his off-the-cuff charge that Justice Scalia is homophobic, Barney Frank points to Scalia's dissents in Romer v. Evans and Lawrence v. Texas. Scalia's rhetoric in those opinions indicates, according to Rep. Frank, that Scalia does not simply take the view that the Constitution is silent with respect to gay rights---a position that a reasonable person could take on strictly jurisprudential grounds---but that on policy grounds Scalia favors laws that discriminate against gay people and criminally punish same-sex sexual relations. To drive home his point, Frank contrasts Scalia's views with those of Justice Thomas, who wrote in his dissent in Lawrence that he regarded the Texas anti-sodomy law as "silly," and would vote to repeal it if he were a legislator, but that the law is not unconstitutional. (Thomas's somewhat odd choice of the word "silly" was a result of the fact that he was quoting Justice Stewart's dissent in Griswold v. Connecticut.)

First, let's look at Frank's argument that Scalia's Romer and Lawrence dissents provide evidence of homophobia. Frank quotes Scalia's Lawrence dissent, including this choice passage:

Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.

Reading these lines with the utmost charity to Justice Scalia, it's possible that he himself isn't one of the people who would shun a gay business partner, scoutmaster or teacher for his children, or boarder in his home, but is only saying that these are attitudes others hold. To what end, though? It's one thing to say that discrimination against gay people is legal and widespread, but Frank is surely right that the tone of Scalia's dissent is at the very least, grossly insensitive.

Justice Scalia's Romer dissent is just as bad, including a passage that Rep. Frank does not quote. In the course of explaining why he thinks that the Court should not be troubled by discrimination against gay Coloradons, Justice Scalia says it is "nothing short of preposterous to call 'politically unpopular' a group which enjoys enormous influence in American media and politics." If you have difficulty seeing this statement as homophobic, imagine that the referent were Jews instead of gays, and ask whether it wouldn't obviously be anti-Semitic.

But now the tricky part. Rep. Frank is right to note that Justice Thomas took pains to distance himself from the policy of the Texas legislature in Lawrence. However, Justice Thomas also joined Justice Scalia's dissents in both Lawrence and Romer. But if those dissents were homophobic and Justice Thomas is, according to Rep. Frank, not a homophobe, why did he join them?

I think two possible (potentially overlapping) answers could be given. One is that the Scalia dissents give rise to a strong suspicion of homophobia, and that because Justice Thomas did not want to be associated with that sentiment, he went out of his way to distance himself. On this view, Justice Scalia's (and the late Chief Justice Rehnquist's) failure to cross-join Justice Thomas's Lawrence dissent reinforces the conclusion that Scalia is in fact homophobic: Unlike Justice Thomas, Scalia approved of the Texas law in Lawrence on policy grounds.

The second point is that the author of a dissent or other opinion has much greater control over its precise wording than a Justice who merely joins. Under the Court's customs, a joining Justice can request specific wording changes that reflect differences in his or her views about the law, but it would have been hard for Justice Thomas to condition his joinder on Justice Scalia "toning down the homophobic rhetoric." That's not to say that Justice Thomas shouldn't have tried to get Justice to Scalia to change some of the most offensive bits, but for all we know, the original versions of the Scalia dissents in Romer and Lawrence were even more homophobic.

Bottom Line: Rep. Frank has made a very strong case that Justice Scalia is more likely to be homophobic than is Justice Thomas.

Posted by Mike Dorf

Hillary the Movie

On Tuesday, the Supreme Court heard oral argument in Citizens United v. FEC, which presents the question whether the McCain-Feingold law (or "BCRA" for Bipartisan Campaign Reform Act) validly applies to forbid the use of general treasury funds of corporations and labor unions for such political documentaries as Hillary The Movie. Citizens United, a non-profit corporation, sued the FEC to enjoin the enforcement of the law against its film, which the 3-judge federal district court that heard the case described as follows: "[Hillary] The Movie is susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her. [Hillary] The Movie is thus the functional equivalent of express advocacy." (The district court opinion is available here; other documents in the case are available here.)

Press reports (e.g., here and here) indicate that the Justices gave Deputy Solicitor General Malcolm Stewart a chilly, even incredulous reception, suggesting that this may be a classic case of asking for a whole loaf and getting nothing, where, it is assumed, asking for a half a loaf might have yielded half a loaf, or at least a decent-sized slice. In asserting the power of the government to ban a 90-minute documentary because of its funding source, the reports suggest, Stewart went so far as even to alienate those Justices (e.g., David Souter) who generally vote to uphold campaign finance restrictions.

That's quite possibly true, but it's not clear what Stewart's other options were. BCRA by its terms would undoubtedly apply to Hillary The 30-Second Spot. Why should the fact that the actual film is 180 times as long make a difference, assuming the district court was correct in characterizing the documentary as indeed an extended infomercial urging voters to oppose then-Senator Clinton's bid for the White House?

The answer, I suppose, is that it would be difficult to draw a line between movies with a political perspective that would seem to be relevant to how people ought to vote (e.g., Fahrenheit 9/11) and feature-length campaign ads. It would be highly problematic to forbid the use of general corporate funds for all films with political content (in the election period as defined by BCRA), and so protection of Hillary The Movie is the price we would have to pay for protection of other expression.

That may well be right, but again, it's not clear that Stewart could have made this point without conceding that BCRA is unconstitutional as applied to Hillary The Movie. Nothing in BCRA itself suggests that there is a time limit for its restrictions, and if the Court chooses to find that the First Amendment imposes one, it will be a nice task of saying what it is: 30 minutes? 10 minutes? Accordingly, the government defended BCRA's application to Hillary The Movie in the only way that seems realistic---by characterizing it as a highly unusual 90-minute political ad that urged voters to oppose the Clinton candidacy. If that argument fails, it won't be for bad lawyering.

Posted by Mike Dorf

New Money

Last week, the Federal Reserve announced that it would buy a little more than $1 trillion of Treasury bonds as a means to revive the economy. This is such a challenge to the conventional wisdom that many people -- even those who ought to know better -- have made it sound as if there is something nefarious going on. For example, the usually very sober Edmund Andrews, a NYT business columnist, described the Fed's policy as "a tactic that amounts to creating vast new sums of money out of thin air" and "using its authority to create new money at will." Yes, it is. On the other hand, that's always the essence of money creation. The current situation is dire, and the Fed is responding (finally) in an appropriate way. Here, I'll briefly explain the process and then discuss the merits of the Fed's move.

The Fed is the central bank of the United States. (It is called the Federal Reserve rather than the Bank of the United States because of political opposition to centralized planning.) When it wants to change the money supply, it either buys or sells government bonds. Even though the Fed is a federal agency, for accounting purposes it is not a part of the government that issues bonds. If the Treasury (not the Fed) needs to borrow money, it issues bonds that private individuals, businesses, state and local governments, and foreign governments buy from the Treasury. Doing so leaves the money supply unchanged, because the Treasury borrows dollars from someone else and spends those same dollars on, say, park rangers' salaries. When the Fed buys Treasury bonds, however, it does so by using its authority to create new money. It sends a check (backed by itself) to Treasury, which uses the new funds to finance its deficit. When the Fed sells back some of the bonds that it has previously purchased, that decreases the money supply by pulling dollars out of circulation.

Usually, the Fed makes its bond buying and selling decisions as part of a strategy to influence interest rates. Lately, however, the economy has been in such terrible shape that the interest rate most responsive to Fed policy is essentially zero and cannot go any lower. The Fed understands that the economy needs more spending, so it is buying bonds -- creating new money out of thin air -- in the hope that people will spend the money on goods and services. Again, this is not some kind of conspiracy. Every modern economy works this way, with central banks creating new money all the time.

Based on conversations I've had recently with non-economists, one of the things that people seem to have absorbed from their long-ago Econ 101 class is that money creation must be inflationary. This has intuitive appeal, because otherwise why would we not just print money at will? The fact is, however, that the connection between increased money supply and increased inflation is anything but certain. Two other variables (beyond money supply and prices) are involved: how many times each dollar is spent and re-spent on new goods and services ("velocity") and how many goods and services are being created.

Consider the latter: If someone shows up at a store with an extra $100 and the store does not have an extra $100 worth of merchandise, then the store owner will raise prices. If, on the other hand, the store owner has unsold merchandise sitting on shelves, they'll be glad to sell those goods without raising prices. In other words, in a weak economy it is highly unlikely that new spending will tempt suppliers to increase prices. (The velocity of money has been the topic of countless dissertations and research articles. Suffice it to say that velocity does not act in a way that guarantees a direct link from money creation to inflation.)

Could the Fed's injection of new money lead to inflation later? Sure. If the economy recovers, at some point there will be upward pressure on prices. If we reach that happy place, though, the Fed can then drain money out of the economy (by selling Treasury bonds), which is the appropriate monetary policy to fight inflation.

The new question that people are raising about the Fed's money creation activities is whether the Chinese government will be angry. Because it holds a large amount of U.S. Treasury bonds, the Chinese government has an interest in the value of those assets. If U.S. policy would undermine the long-term value of holding assets denominated in U.S. dollars, that would be bad for China's finances. The Chinese government should be worried, then, if either (1) the U.S. is about to engage in inflationary policy, or (2) the U.S. will be less likely to pay its debts in the future. With the biggest concern currently being whether we're going to slip from recession into depression and deflation, the first concern is simply not credible.

Just as importantly, a strong U.S. economy is better able to support its debt payments than is a weak U.S. economy. (If you have lent someone money, you'd be reasonably worried if the borrower lost her job.) China has a strong interest in the U.S. coming out of its severe contraction, which means that -- far from being angry with us for adopting an expansionary monetary policy -- they should be happy that we are trying to speed up our recovery (which would, coincidentally, revive U.S. demand for China's exports).

It is understandable that people mistakenly equate "printing money" with inflation. Thankfully, however, it is not that simple. The Fed's policy is counter-intuitive, perhaps, but it makes sense for the U.S. government and its creditors.

-- Posted by Neil H. Buchanan

Andrew Cuomo Out-Spitzers Eliot Spitzer

Long before he disgraced himself as Client 9, Eliot Spitzer made a name for himself as a result of his aggressive role as New York Attorney General in investigating and prosecuting corporate misdeeds. Some conservatives complained that Spitzer, in tackling issues of national moment, was overstepping his authority. Progressives responded--rightly in my view--that there is concurrent jurisdiction between state and federal authorities for many of the sorts of actions that Spitzer was targeting. Federal securities laws operate on top of state corporate law, and so Spitzer was acting within his rights in taking actions designed to protect the shareholders of corporations that did substantial business in New York State. Somewhat more controversially, it was sometimes suggested that lax oversight by the SEC and the Bush Administration warranted Spitzer's efforts to fill the regulatory void. That was a more controversial defense because it suggested that Spitzer was using his state powers pretextually to address national issues.

Now comes Spitzer's successor, NY State AG Andrew Cuomo, who has been investigating the AIG bonuses. That investigation has already yielded substantial rewards. The latest statement from AG Cuomo reports: "So far, 9 of the top 10 bonus recipients have agreed to give the bonuses back. Of the top 20, 15 have agreed to return the bonuses."

I have little doubt that the NY State AG has the technical authority to investigate AIG. It's based in NY State and shareholders in AIG could complain about breaches of fiduciary duty (a matter of state corporate law) if the bonuses were improperly paid. And yet the use of the state AG's authority looks quite pretextual here. Indeed, AG Cuomo's statement tellingly refers to the giveback of the bonuses as "what this country now needs and demands"--not what NY State needs and demands. As everyone knows, if there is a problem with the bonuses, it is that they use federal taxpayer funds to reward people who performed badly.

Our constitutional law permits the federal government to use its power over interstate commerce to accomplish ends--such as forbidding various forms of discrimination--that are not strictly economic or commercial in nature. Notwithstanding language in early cases prohibiting the federal government from using its powers pretextually, there is effectively no such limit on the modern exercise of federal powers. So why not have the same approach to state powers?

One plausible answer would be that the states and the federal government are dissimilarly situated. The federal government is representative of the whole country, including all of the states in which federal law operates, whereas a state AG using state power to accomplish national ends does appear to be acting beyond his jurisdiction. But if that's so, then it seems that the right answer is for Congress to pre-empt the forbidden state regulatory activities rather than for courts to attempt to develop a jurisprudence that forbids state pretextual regulation, which, in practice, will likely prove very difficult to identify.

So the bottom line is that AG Cuomo may well be acting in a national capacity, but until the feds tell him to cut it out, that's his prerogative.

Posted by Mike Dorf

The Pedagogical Constitution

My latest FindLaw column looks at two cases involving the rights of minors in public schools---one a flag salute case and the other the strip-search case currently pending before the U.S. Supreme Court---and argues that courts and others ought to resist the temptation to see children's rights as simply a proper subset of adults' rights. I explain that children are not simply miniature adults; rather, they have (on average) different capacities and vulnerabilities that sometimes warrant fewer rights but may sometimes warrant more or at least different rights.

Here I want to briefly explore a point sometimes made by the Supreme Court in its more liberal rhetoric involving the rights of schoolchildren. The argument goes like this: An important function of education is to prepare the future adult for citizenship; citizens must learn how to assert and exercise their rights responsibly; they can only learn this lesson by living it; and thus, children should be given the maximum protection for their rights consistent with their capacities and the institutional imperatives of the school environment, so that they receive practical training in what their rights are and how to use those rights.

If the italicized argument is sound pedagogy, that can only be because the qualifier "consistent with their capacities" does an awful lot of work. In a great many contexts, after all, children come to internalize social norms not by being given the freedom to act on or disregard those norms, but by constant reinforcement if not Skinnerian conditioning. For example, most children will not learn the virtue of tidiness (such as it is) by being given the freedom to neaten or not to neaten their rooms. Rather, continual reminders from adults, perhaps coupled with a system of positive reinforcement for room tidying, will have a better chance of getting the child to internalize the tidiness norm.

Or at least so one might think. The notorious sloppiness of college students suggests that once liberated from the authority of parents, young adults revert to their slovenly ways, thus demonstrating that they have not internalized the tidiness norm. But whatever the best way to instill the virtue of tidiness, it would be passing strange to suppose that the Constitution requires a particular pedagogical method for public school teachers to use in trying to teach first graders to clean up their toys or eighth graders to bus their lunch trays.

To be sure, there are exceptions. West Virginia State Bd. of Educ. v. Barnette limits the pedagogical means that public schools can use to induce patriotism, while the Establishment Clause cases make certain subjects unfit for public school teaching at all (e.g., teaching the Bible as the word of God rather than for its historical significance). But it is a mistake to think that there is some overarching constitutional principle that requires that the virtues of any particular constitutional guarantee must be taught only by extending the protections of that guarantee. Of course, if the guarantee, best understood, extends its protection to students in particular circumstances, that must be respected.

In the First Amendment context, the substantive right to avoid a compulsory pledge is itself a right to resist a certain kind of pedagogy. That is why it made sense for Justice Jackson, speaking for the Court in Barnette, to say: "That [public schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." But the invocation of this principle by the Court in a school Fourth Amendment case, New Jersey v. T.L.O., was, or at least should have been, problematic.

To be sure, perhaps the most famous Fourth Amendment opinion---Justice Brandeis's dissent in Olmstead v. United States---invokes the notion of the state as educator. ("Our government is the potent, the omnipresent teacher.") It does not follow that the Constitution in general or even in Fourth Amendment cases concerns itself with pedagogy as such.

Posted by Mike Dorf

Attainder & Equality

There's much buzz about the Bill of Attainder Clause of late. (Actually, the Constitution has two such clauses, one in Art. I., Sec. 9, which applies to the federal government, and another one in Art. I., Sec. 10, which applies to the states.) H.R. 1586---the bill passed by the House that taxes bonuses paid by major recipients of TARP funds at 90%---certainly smells like a bill of attainder, although it could survive constitutional scrutiny either on the ground that the tax is not a punishment or on the ground that the bill doesn't single out a particular person or corporation.

Whether H.R. 1586 is punishment is largely a matter of intent, and while everybody knows that the House was hopping mad when it passed H.R. 1586, that may not be enough to have a court deem the bill a punishment (should it be enacted and challenged). The law's defenders would simply say that what Congress was hopping mad about was the unjust enrichment of the bonus recipients, and that the bill does not punish them; it merely takes away that unjust enrichment. If the bonus recipients were not entitled to the bonuses in the first place, as Congress believes, then taking away 90% of the bonuses is simply restoring the status quo ante. Indeed, far from being punished, the recipients still get a boon from the federal govt, up to 10% of the value of the bonuses.

Maybe that argument will fly; maybe it won't. But Congress still has up its sleeve the seemingly killer argument that as written, H.R. 1586 doesn't single anybody out. This isn't merely a matter of using general language in a transparent effort to treat an individual case. (E.g., "In any Congressional District in which a Major League Baseball franchise with a name that rhymes with 'Head Box' plays its home games . . . ."). Rather, H.R. 1586 really would tax the bonuses of people who worked for other TARP fund recipients, not just A.I.G. So, under the Nixon case, there is a pretty good argument to be made that the bill is general enough that it's not an attainder.

But if so, that only shows the weakness of the protections afforded by the Bill of Attainder Clauses. The prohibitions on bills of attainder serve three overlapping functions sounding in: 1) separation of powers---it's the job of the courts, not the legislature, to adjudicate wrongdoing in particular cases; 2) due process---legislative procedures are not well suited to providing individuals a fair opportunity to present their arguments; and 3) equal protection---unpopular individuals should not be singled out by the legislature for adverse treatment but should have the benefit of the same law as everyone else.

If Congress can avoid the strictures of the Section 9 Bill of Attainder Clause by singling out not just one unpopular entity or person but throwing in a whole class of unpopular entities or persons, then the core values of the Clause are easily circumvented. Yale Law Professor Akhil Amar had a nice set of examples in an article he wrote in the 1996 Michigan Law Review defending the Supreme Court's Romer v. Evans decision as related to the anti-attainder principle. (The article is not available for free on the web, though anyone with WestLaw, Lexis or Heinonline access can find it at 96 Mich. L. Rev. 203 (1996).) He asked the reader to imagine whether a law that singled him out for punishment would be any more defensible if, instead of targeting just Akhil Amar, it targeted "All Americans of East Indian descent."

As a normative matter, it is clear that legislative singling out of a broader, but still politically powerless, group should not save what is otherwise a bill of attainder from condemnation. As a matter of doctrine, however, it might. The key constitutional difference between Amar's hypothetical example and H.R. 1586 is that Americans of East Indian descent are a suspect class based on national origin, whereas Americans who have received bonuses from firms that received TARP money are not. Therefore, Amar's hypothetical example is a violation of (the) equal protection (component of the Fifth Amendment Due Process Clause). Under the conventional reading of Nixon, neither Amar's hypothetical example nor H.R. 1586 would violate the Bill of Attainder Clause itself, but Amar's larger point---with which I agree---is that such bills nonetheless violate the spirit of the Bill of Attainder Clause. Whatever a court would be prepared to say if faced with the issue, one would hope that the Senate, as the historically cooler body, would place some value on that spirit.

Posted by Mike Dorf

Move over Moveon

Pop Quiz: Who remembers why MoveOn is called MoveOn?

Answer: The organization started in 1998 as a movement of political progressives and moderates who were appalled by how the efforts to impeach President Clinton were consuming Washington and thus preventing any progress on the country's real problems. The proposal of those early Moveon members (of which I was one) was this: Congress should pass a resolution censuring Clinton and then move on to the country's real business.

If MoveOn were true to its roots, it would surely be arguing today that Congress ought to quickly announce some symbolic denunciation of excessive performance bonuses to people who work for companies receiving federal bailout funds and then move on to the pressing business of rescuing the global economy from what could well be a depression.

As Neil explained, the outrage over the AIG bonuses is largely misdirected. But even if we credit the narrative that the AIG financial products division was unusually or uniquely culpable in causing the current mess, groups like MoveOn have been fanning the flames of over-reaction. The AIG bonuses are, as a few other voices of sanity have been noting, less than one tenth of one percent of the bailout money paid to AIG, and the legislation working its way through Congress that would go well beyond AIG is almost certain to have perverse effects.

Most importantly, every minute that Congress and the Obama Administration are distracted by the populist fervor for recouping the bonuses or finding out who is most responsible for their non-cancellation in the first place (Tim Geithner? Chris Dodd? Hank Paulson?) is a minute spent not working on reviving the actual economy. The bonus mania is reminiscent of nothing so much as the suggestion that President Clinton ordered airstrikes against al Q'aeda targets as a means of deflecting attention from the "real" issue of whether he lied about consensual oral sex. If anybody ought to get that, it should be MoveOn.

Posted by Mike Dorf

Survival of the Confickest

In Survival of the Sickest, Sharon Moalem argues that contemporary human (and other animals') susceptibility to disease typically reflects adaptation strategies of our ancestors to different conditions. It is widely known, for example, that the greater susceptibility of persons of African descent to sickle-cell anemia was an adaptation that enabled their ancestors to survive malaria. The gene for sickle-cell anemia looks like and is a misfortune for people living in societies with means to combat malaria, but it can be a blessing for those who are otherwise vulnerable. Moalem shows how a great many of our genetic predispositions to disease have this feature.

Among Moalem's most interesting observations is a point he makes about pathogens. He explains how it is not generally in the "interest" of a parasitic organism (such as a virus or bacterium) to kill its host. By this measure, the common cold viruses are remarkably successful. By evolving into mere nuisances rather than deadly plagues, they have ensured themselves a plentiful stock of hosts. From this fact, Moalem suggests that much of modern medicine's approach to pathogens may be counter-productive. Antibiotics that aim to kill all of a certain kind of germ end up selecting for the drug-resistant strains, which are often more virulent. We might do better, he suggests, to "encourage" pathogens (such as HIV) to enter into a more symbiotic relationship with us. Moalem then outlines how one could accomplish this task.

And that brings me to computer viruses, or more precisely, worms. With computer security experts still confounded by the conficker worm (as explained here), they may be adopting a strategy that causes its author or authors to become more virulent. We don't exactly know the point of the botnet that conficker uses, but the best guess is that it is commercial: By turning innocent computers into zombies, conficker's master or masters can then sell space on its botnet to spammers and others. The computer security experts are trying to eradicate conficker and to apprehend those behind it. If that succeeds, great, but there is a significant chance that these efforts will fail or, in the process, lead the confickerers to engage in electronic blackmail or terrorism--effectively commanding the botnet to destroy valuable data or disrupt vital programs as retribution.

But what if we learned to live with conficker? With computer memory becoming ever-more plentiful, it might be possible to treat botnet infections as a kind of inevitable nuisance like the common cold. We would simply accept as the cost of doing business, some level of zombification of our computers. We would still treat the symptoms and take precautions against new infections, but by lowering the stakes, we would avoid prompting the confickerers into raising the ante.

I'm not suggesting that this approach would necessarily work. There are some disanalogies between actual germs and computer germs (and worms). But I'd feel better knowing that the security experts had given some thought to the possibility that their all-stick-and-no-carrot approach might be counter-productive. Oh, and by the way, this insight can apply to political leaders as well. Just ask Muammar al-Gaddafi.

Posted by Mike Dorf

Of Scams, Bad Bets, and Deregulation

The news this week is all about bonuses and "retention payments" at AIG. Public outrage over the ongoing series of bailouts is currently focused on bonuses paid to employees of AIG's division that is viewed as having caused the crisis at their company -- a crisis that must now be mitigaged by government intervention and public money. The underlying problem at AIG, however, remains in the background. By reading various news accounts and watching cable news, all we appear to know at this point is that "the insurance giant AIG" (which has become the company's semi-official name) engaged in a bunch of complicated deals that went bad.

As I noted at the end of my post on Tuesday, tucked inside the excellent work that Jon Stewart has done on "The Daily Show" to expose the poor journalism and hucksterism at CNBC was an interview with Joe Nocera of The New York Times, whose Feb. 27 column on AIG purported to explain the "scam" that AIG had perpetrated. Stewart told Nocera that, because of that column, Stewart finally understood what had really happened. Unfortunately, Nocera's arguments make no sense. While it is surely true that AIG's employees did some things that have had very bad consequences, it is important to know what they did not do wrong as well as what they did, in order to know how to proceed.

Nocera, to his credit, concedes "the conventional wisdom" that AIG cannot be allowed to fail because of the likely domino effect on the rest of the financial system if AIG's commitments are not met. This has to be the lesson of allowing Lehman Brothers to go into bankruptcy. Still, Nocera says, "we should be furious" about all of this. Yes, we are. Nocera, in one paragraph, uses phrases such as "extreme hubris," "shady techniques," and "utter recklessness" to describe AIG's actions, and he tells us that it should make our "blood boil" to know that the company must be bailed out precisely because it acted so badly. Get out your pitchforks!

I do not mean to downplay the seriousness of the situation. My concern is that Nocera's rhetoric -- not to mention his actual analysis, as I describe below -- makes it more difficult to have a serious discussion about what to do now. The recent surge of populist outrage has been fueled in large part by loose talk like Nocera's. Still, if his underlying analysis were sound, we might forgive him. Ahem.

Nocera starts by describing AIG's strategy as being based on "regulatory arbitrage" and "ratings arbitrage." Applied to AIG's situation, he says that the word arbitrage "means taking advantage of a loophole in the rules. A less polite but perhaps more accurate term would be 'scam.'" Definitions of the word scam usually include "deceit" and "fraud" as the operative terms. What is the fraud at the heart of Nocera's argument? AIG, he says, sold "credit default swaps," which were insurance policies to cover losses if securities backed by mortgages were to default: "In effect, A.I.G. was saying if, by some remote chance (ha!) those mortgage-backed securities suffered losses, the company would be on the hook for the losses."

What is the problem with insuring against losses? AIG had a AAA rating for its financial soundness, and "when it sprinkled its holy water over those mortgage-backed securities, suddenly they had AAA ratings too." That is the "ratings arbitrage" that allowed AIG to exploit its reputation. Perhaps Nocera is leaving something out, but this is simply not a meaningful indictment of AIG's practices. According to this description, a large insurance company agreed to guarantee the value of a financial asset, which made the financial asset more valuable. How is this different, at its core, from a student asking her parents to co-sign on a loan? With a low (or non-existent) credit rating, the student needs someone to tell a lender not to worry. The reason the lender makes the loan is precisely because the parents have "sprinkled their holy water" on the loan. That's what guarantees and insurance are all about: assuring one party that another party is less of a risk because a more reliable person or institution stands behind them.

Of course, if the parents lie about their assets or plan to dissipate their assets after the loan is disbursed, then that would be fraud (deceit, scam, swindle, etc.). "What was in it for A.I.G.? Lucrative fees, naturally. But it also saw the fees as risk-free money; surely it would never have to actually pay up. Like everyone else on Wall Street, A.I.G. operated on the belief that the underlying assets — housing — could only go up in price." Again, where is the scam? Is it that the company charged fees to people who wanted to buy its products? That the company issued insurance in the hope that it would not ultimately have losses that would need to be covered? If so, then every insurance company is engaged in fraud every day. Nocera's argument to this point reduces to an indictment of the concept of insurance. There must be more to it than this.

We thus move on to the real problem. AIG was selling unregulated insurance products, which meant that there were no minimum amounts of money that must be kept on hand to cover losses. "So when housing prices started falling, and losses started piling up, it had no way to pay them off. Not understanding the real risk, the company grievously mispriced it." Note that Nocera is claiming now that AIG did not understand the real risk, which moves us out of the realm of scams and into the world of mistakes. Arrogant mistakes, no doubt. Most importantly, though, AIG's mistakes were made possible by virtue of a deregulated financial environment.

Nocera, however, is not finished. He then faults AIG for agreeing to "collateral triggers" for some of its insurance contracts, "meaning that if certain events took place, like a ratings downgrade for either A.I.G. or the securities it was insuring, it would have to put up collateral against those securities." Collateral is bad? "Again, the reasons it agreed to the collateral triggers was pure greed: it could get higher fees by including them." Yes, when you agree to provide something valuable to the other party in a contract, you usually get something in return. Which brings us back to bad business judgment. "And again, it assumed that the triggers would never actually kick in and the provisions were therefore meaningless. Those collateral triggers have since cost A.I.G. many, many billions of dollars. Or, rather, they’ve cost American taxpayers billions."

Nocera's description of "regulatory arbitrage" is just as odd. He argues, in essence, that banks (especially in Europe) used AIG insurance to shift risk from their own balance sheet to AIG's, allowing them to satisfy regulators that their assets were "risk-free." Once again, however, it is difficult to see what is wrong with this as a concept. If I am running a bank, and I have mortgage-backed securities among my assets, it is simply good business practice to insure against losses. "And unlike most Wall Street firms, it didn’t hedge its credit-default swaps; it bore the risk, which is what insurance companies do." Exactly! That is what insurance companies do. Why Nocera is shocked that this was an "open secret" is difficult to fathom.

For his final argument, Nocera describes another form of insurance ("2a-7 puts") that allowed money-market funds to hold riskier assets than they would otherwise hold. AIG invested the cash that it received in mortgage-backed securities, which (we now know) were part of the problem. Without that 20-20 hindsight, though, there is nothing obviously wrong with the idea that an insurance company would put its cash assets into something that would earn a rate of return. Not doing so, in fact, would have been a breach of fiduciary duty.

Why go on at such length about one fatuous column from three weeks ago? It provides a lesson in how easy it is to scare and anger people when the subject is complicated. No one (not even otherwise very smart and motivated people like Jon Stewart) understands finance and insurance; so when someone with purported expertise comes along and says it's all about "scams" and "pure greed," people fall for it. At most, however, Nocera has proved two things: (1) AIG should have been regulated, and (2) An unregulated AIG took risks that look bad in hindsight.

I will not discuss here other's (possibly stronger) arguments that AIG was engaged in activities for which it might be civilly or criminally liable. The point is only this: It matters whom we blame, and why we are blaming them. If the message that comes out of this mess is not that we need a better regulatory system but rather that some bad people at AIG took the taxpayers to the cleaners, then we have missed an important opportunity to minimize the risk of future catastrophes.

-- Posted by Neil H. Buchanan

Eyewitnesses and Lineups

Over on FindLaw, my latest column recounts my own experience as a crime victim and witness in Los Angeles many years ago in the service of examining better and worse ways of handling eyewitness identifications. I also discuss, and include a link to, interesting work by Gary Wells.

Posted by Sherry Colb

PDAs in the Courtroom

A NY Times story recounts the problem of jurors using PDAs when in the courtroom---and home computers when out of court but not sequestered---both to find out information on the case that is not formally part of the evidence and to post info about the case to others (via email, twitter, etc). Both such activities violate the jurors' obligations.

The article mentions two things courts can do to stem the tide of outside influence and communications to the outside world: 1) Issue warnings with better explanations for the prohibitions; 2) Confiscate PDAs and cell-phones. Presumably number 2 would be necessary for those undeterred by the better explanations of number 1, and for this incorrigible lot, one would have to think about greater use of sequestration. An additional option would be to increase the penalties for jurors who seek outside info or transmit confidential info during the course of the case. Voir dire could also seek to weed out crackberries and the like---although given the incentive people already have to try to avoid jury service, adding a set of potentially disqualifying questions of the form "can you really not Google the defendant?" would encourage more bogus excuses.

Before rushing into any such changes, however, it would be useful to know just how large the problem is. The Times story does not say, offering only this: "There appears to be no official tally of cases disrupted by Internet research, but with the increasing adoption of Web technology in cellphones, the numbers are sure to grow." Even if that's true, we would want to know whether technology poses an especially troubling instance of jurors disregarding the rules. For example, how often do jurors disregard a judge's instruction to draw no adverse inference from a defendant's failure to testify, knowing---as many of them do from watching crime dramas---that a defendant who does not testify may well be trying to prevent the jury from learning of his criminal record? Is this a bigger or smaller problem than the use of PDAs, etc?

Finally, it's worth thinking about the rules of evidence themselves. Sure, individual juries shouldn't be overriding the law about what is or is not admissible on a case-by-case basis, but if jurors have a hard time following the rules, that may be because the rules are, at least in some respect, wrong-headed. To name only one of the most famous, the "dying declaration" exception to the hearsay exclusion is premised on the dubious view that people about to die are especially unlikely to lie about the cause of their death. More broadly, if the rules of evidence excluded less probative evidence, we would have less reasion to worry about jurors seeking that evidence elsewhere. That's not to say that we shouldn't be worried about jurors turning to unreliable sources of information, but only to point out that some of the concern here is that jurors are going outside of the formal legal structure of the trial the better to get at the truth.

Posted by Mike Dorf

Post Mortem on the Stewart vs. CNBC Furor

The exchange between Jon Stewart and Jim Cramer ended last Thursday night with an appearance by Cramer on "The Daily Show" that was fascinating (though squirm-inducing). Stewart was as well prepared for the interview as any prosecutor, with video clips assembled to refute every excuse that Cramer might offer, turning an interview that initially looked like it might be a non-event into a relentless cross-examination that left Cramer deflated and obviously just hoping that it would all be over. I have often faulted Stewart for being too soft on his guests, so this was an especially pleasant surprise.

The substance of Stewart's case against CNBC was that the network and its anchors consistently present themselves as being some combination of journalists and financial experts, when in fact they are neither. (He also reminded Cramer that CNBC was the subject of his critique, with Cramer only being one part of the parade of clowns.) They are, instead, entertainers who happily sucked up to the titans of finance and industry, amplifying nonsense in a way that harmed anyone who took the network's claims of expertise seriously. That is why Stewart's retort that "[t]here's a market for cocaine and hookers" was so perfect, putting Cramer's defense that CNBC was just exploiting a market niche in perspective. The point of Stewart's complaint, in other words, was that CNBC and Cramer are guilty of misrepresenting themselves as reliable guides to finance when in fact they are simply charlatans. When CNBC anchors ask ponzi-scheme operators questions like: "What's it like to be a billionaire?" their journalistic credibility is difficult to take seriously.

Speaking of journalistic sloppiness (or worse), the New York Times's review of Cramer's appearance on The Daily Show, by their TV critic Alessandra Stanley, was an inadvertent demonstration of how badly a supposed journalist can miss the point. "Mr. Stewart treated his guest like a C.E.O. subpoenaed to testify before Congress: his point was not to hear Mr. Cramer out, but to act out a cathartic ritual of indignation and castigation." Actually, Stewart listened carefully to Cramer's explanations. He then demonstrated when those explanations did not add up -- which just happened to be the case for every answer that Cramer offered, making Stewart's preparation for the interview all the more impressive as Cramer veered all over the map, only to find that Stewart was ready with evidence to refute each of Cramer's claims. If that level of preparedness is part of a "messianic streak," as Stanley suggested sneeringly about Stewart, then we need more messiahs. More to the point, being prepared for an interview and asking tough follow-up questions is now something that a New York Times columnist ridicules. No wonder so many people say that they get their news from "The Daily Show"!

All of which is very important but misses the bigger point. Stewart never claimed to be doing anything more than holding up CNBC to ridicule for its failure to live up to its own billing. The network rode a market bubble to high ratings, offering what turned out to be ruinous advice to its viewers and arguably making the whole thing worse than it otherwise might have been. Bubbles need hot air, and CNBC provided plenty of it. This exchange was never, however, about what brought the bubble into existence in the first place or why it was not prevented by regulators. On that score, Stewart showed that his insights on journalism do not extend to finance and economics.

The whole brouhaha began, you might recall, when "The Daily Show" had booked CNBC's Rick Santelli (of the infamous "subsidizing the mortgages of losers" rant) for an interview on the show. As Stewart later explained it, he and his staff prepared their first expose of CNBC to show to Santelli as part of an effort to suggest where the "losers" might have been getting their disastrous financial advice. When Santelli canceled his appearance, Stewart showed the expose anyway. What almost no one noticed, however, is that the replacement guest that night was Joe Nocera, a business columnist for the New York Times. That interview was a non-event, but it shows just how confused the public discussion of the financial crisis has become.

Shortly before his appearance on The Daily Show, Nocera wrote a column purporting to explain the cause of the problem with the insurance giant AIG. Stewart started the interview by telling Nocera that, because of Nocera's column, he now finally understood what had gone wrong in the financial markets. Short explanation: AIG had engaged in a "scam." In my next blog post on Thursday morning, I will explain why Nocera's explanation makes no sense and how it helps to fan the flames of populist outrage that are beginning to rage out of control. Stay tuned.

-- Posted by Neil H. Buchanan

One Fish, Two Fish, Red Fish, Blue Fish . . .

A panel of the Ninth Circuit issued a noteworthy Endangered Species Act decision yesterday. The case involved the government's use of hatchery-reared salmon when assessing salmon populations for listing and other status changes under the ESA. Counting hatchery salmon can be either more or less protective of natural salmon populations, depending on how and when it is done.) Keith Rizzardi beat me to the punch with a post about it on his excellent ESA Blawg here.

Here, I'll just note that the essence of the holding is this: human-raised fish are as good under the Endangered Species Act as are "natural" fish if the "expert agency" says they are . . . because Congress has never said otherwise. Given the realities of Pacific Northwest habitat declines, my prediction on hatcheries: "here come more fish."

Posted by Jamie Colburn

Stem Cells, Cannibalism, and the Wisdom of George W. Bush

Having posted an explanation for Bernie Madoff's crimes last week, I thought I'd continue in my role of devil's advocate by taking President Obama's announcement of the new government policy on embryonic stem cell research as an opportunity to reflect on the wisdom, such as it was, of the prior policy of President G.W. Bush. Just a month before 9/11 transformed his Presidency, Bush's August 2001 speech on stem cell research was billed by the White House as a watershed moment, one that would show the seemingly callow President to be a Marcus Aurelius of the 21st century, as he wrestled with a great ethical challenge of the day.

Bush began by describing his process of consultation with the great minds of science and philosophy. He then boiled down the issue to two questions:

First, are these frozen embryos human life and therefore something precious to be protected? And second, if they're going to be destroyed anyway, shouldn't they be used for a greater good, for research that has the potential to save and improve other lives?

The Philosopher-in-Chief did not expressly provide anything purporting to be an answer to either question. Instead, like a Zen master, he "unasked" the question. Because there were, in Bush's account, 60 existing stem cell lines already, he would permit stem cell research on these lines, but not on other embryos. I must confess that my first reaction to this announcement was "that's ridiculous. Why should the morally significant moment be the date when Bush gives his speech?" On further reflection, I came to see that line as potentially defensible if one accepts certain assumptions.

I'll explain what made sense about the Bush approach with a parable. Suppose that Alice is the chief of of a remote tribal society of cannibals. Tribal members eat the dead bodies--as smoked and cured "people jerky"--of their fellow tribal members as well as the dead bodies of those of their enemies they manage to kill, either for the specific purpose of eating them or those that they kill for other reasons. One day, a visitor from the developed world arrives by airplane in the domain of Alice's tribe. Regarding the visitor as a god, Alice decrees that he is to be revered rather than eaten. The visitor tells Alice and the other members of the tribe that cannibalism is unethical. The tribal members are at first dismissive of the idea but over time it gains adherents. The visitor leaves but now there is much debate among the tribe about whether to continue as cannibals or to find new food sources. They settle these things as they settle all divisive matters: Alice consults with the tribal elders and renders a judgment. She decrees that henceforth there shall be no more cannibalism---except that tribal members can eat the already-smoked-and-cured stocks of people jerky they possess.

Is that a sensible resolution of the issue? Why permit eating existing people jerky but forbid tribe members from smoking, curing and eating the bodies of people who died of natural causes or tribal enemies killed in battles that were fought for reasons having nothing to do with cannibalism? One answer might be that cannibalism causes kuru (similar to mad cow disease), but let's suppose that the tribe members don't know this. Another possibility could be that cannibalism is wrong even if it doesn't lead to additional killings, but if that were so, we would think that eating the existing human jerky is also wrong. The best that one could say in favor of Alice's compromise, I think, is that the process of creating people jerky is regarded as unethical, perhaps because it shows disrespect for the dead, but that once people jerky exists, it is in a form that is so far removed from living people that eating it no longer bears the taint of its origin.

Can we make that claim plausible? I'm not sure but it pretty much reflects a close analogy to my own practices. I only became a vegan a few years ago, at a point at which I still had in my possession some leather items. After giving the matter some thought, I uneasily decided to keep and use them, even though I don't purchase new products made from animal products. If I were accidentally to hit and kill a deer with my car, I suppose that I would have no first-order moral objection to eating its flesh and making slippers out of its hide (assuming I knew how to do that). Indeed, on utilitarian grounds, I might have good reason to call a butcher and tanner to do these things and sell the products to the omnivorous public, on the theory that doing so might make unnecessary the deliberate killing of one additional deer. Yet I have a revulsion against both courses of action, perhaps on aesthetic grounds only, although my aesthetic judgment here is clearly related to my ethical grounds for veganism.

If the reader thinks that my practices and the decision of my hypothetical Alice are at least plausible, what does that tell us about Bush's policy of 1) permitting the destruction of embryos; 2) forbidding the use of new embryos for stem cell research; but 3) permitting research on the already-extant lines of stem cells?

One answer, of course, could be that there's nothing wrong with using any embryos for stem cell research. This, I think, is where most Americans (including me) are: I think that at some point prior to birth a fetus develops capacities for sensation, pain, etc., that warrant our moral concern, but that occurs much later than at the embryonic phase.

Moreover, even if one thinks that it's wrong to kill embryos, we still have the puzzle--acknowledged by Bush in his speech--that if not experimented upon, the embryos are going to be destroyed anyway. A view that the real problem is the killing of the embryos would target their creation. (Sherry discussed the consequences of that view in a column just before Bush's speech.) To make sense of the Bush view, one must think that experimentation on human embryos is wrong--presumably because it is either wrong in itself or leads down a slippery slope to something like the Tuskegee experiment or Joseph Mengele--and that experimenting on existing human stem cell lines is different from experimenting on new fated-for-destruction embryos that could lead to new lines. One must think, in other words, that the existing stem cell lines are like the leather baseball glove I bought when I was an omnivore or the human jerky in Alice's decision.

Now I'll admit that I don't see the extant human stem cell lines as purged of the taint in quite the same way as my baseball glove, and indeed, I don't even regard my baseball glove as fully untainted. But I suppose it's possible that someone--Bush himself, say--could regard the existing stem cell lines this way. Sure, it may only be an aesthetic judgment, and the banning portion of the decision rests on the controversial assumption that experimenting on human embryos is either wrong in itself or poses the slippery slope dangers, but at least the policy wasn't completely irrational, which by the standards of the last administration, is pretty good.

Posted by Mike Dorf

BREAKING NEWS: Iftikhar Muhammad Chaudhry Reportedly to Be Restored as Chief Justice of Pakistan

(Cross-posted from SAJAforum)

Via Reuters (and Sadia Abbas), some breaking news from Pakistan:

The Pakistan government agreed on Monday to reinstate Iftikhar Chaudhry as Supreme Court chief justice to end a political crisis that has gripped the Muslim nation, a government official said.

The official added that a constitutional package would also be presented.

President Asif Ali Zardari had hitherto stonewalled calls from the opposition led by former prime minister Nawaz Sharif and a lawyers' movement to restore the judge.

Chaudhry was dismissed in late 2007 by then-president and army chief Pervez Musharraf, but Zardari regarded the judge as too politicized and feared he could pose a threat to his own presidency if restored. [link]

No solid confirmation as yet, but Prime Minister Yousaf Raza Gilani is scheduled to address the nation shortly.

Watch a live stream from Samaa TV (Urdu) here:

Some links to other Pakistani television news streams:

• Geo
• Dawn News (English)
• Dunya News

For updates, see Twitter, the live update feed from Teeth Maestro, and SAJAforum. Here's a screenshot of Teeth Maestro's update feed from earlier this evening (via Chapati Mystery):

Posted by Anil Kalhan

You Say Potato, I Say Enemy Combatant

The news that the Obama Justice Department will no longer rely on the President's supposed inherent Commander-in-Chief authority and will no longer use the term "enemy combatant" to refer to detained persons would have been a big deal had it not come long after Supreme Court decisions that basically required as much. In response to the earliest challenges to its power to hold war-on-terror detainees, the Bush Administration originally asserted sweeping powers, but those were effectively cut back by the Supreme Court to more or less where the current Administration would set them.

Attorney General Holder's memo makes much of the fact that the Obama Administration will rely on the September 2001 Authorization for the Use of Military Force (AUMF) as the source of its power to detain, but of course, the Bush Administration consistently said much the same thing. Indeed, Justice O'Connor's most quoted line in her 2004 plurality opinion in Hamdi v. Rumsfeld--"a state of war is not a blank check for the President"--came in response to President Bush's argument that even if he lacked inherent Commander-in-Chief authority to detain citizens (and non-citizens) without judicial review, he had been given that authority by Congress via the AUMF. So Hamdi and the other Gitmo cases, which involved aliens, already established the proposition AG Holder touts: namely, that the authorization of force by Congress also limits the President.

Similarly, the abandonment of the term "enemy combatant" is not, at least by now, a substantive change. The problematic nature of the Bush Administration policy concerned two issues: 1) Its willingness to treat as enemy combatants persons who might more readily be thought to be criminals engaged in illegal acts far away from any battlefield; 2) Its broad notion of who counted as an unlawful enemy combatant not entitled to be treated as a POW under the Geneva Conventions.

With respect to 1), the Holder memo makes no substantive change. It asserts: "the AUMF is not limited to persons captured on the battlefields of Afghanistan" or, it is clear, battlefields anywhere else. People providing substantial support to the Taliban or al-Qaida will still be subject to military custody, regardless of their proximity to any battlefield.

As to the second question, it seems likely that the Obama Administration will take a somewhat narrower view than did the Bush Administration, but on the crucial question, there is no change: The new administration also believes that captives from irregular forces (such as the Taliban and al-Qaida as well as those who provide substantial support) can be subject to military detention without being given the status of POWs.

Early press reports about the Holder memo have emphasized the abandonment of the term "enemy combatant" and the new requirement that a person have given "substantial" support to the Taliban, al-Qaida, or associated forces in order to qualify for detention. To my mind, the abandonment of the term "enemy combatant" is mere semantics, whereas the emphasis on substantiality does not mark a significant change in actual practice. The Bush Administration did not purport to detain anybody at Gitmo on the ground that the detainee had unwittingly given money to a front operation for al-Qaida, thinking he was giving to a children's hospital.

There are, nonetheless, at least two reasons to regard the Holder memo as marking something of a break with the policy of the late Bush Administration. First, the memo pretty clearly ties Obama Administration policy to international law, including customary international law and the Geneva Conventions. The Military Commissions Act (MCA) declared such sources of law ineffective as a ground for judicial relief when relied upon by detainees, and that aspect of the MCA probably survived the invalidation of the habeas-stripping provision in Boumediene v. Bush. Thus, as a matter of domestic law, the Obama Administration probably could have gotten away with ignoring international law in formulating detainee policy. To the Administration's credit, the Holder memo accepts that whether or not enforceable by U.S. courts post-MCA, customary international law and the Geneva Conventions remain binding on the political branches of the government.

Second, the memo repeatedly refers to the ongoing and comprehensive re-evaluation of detainee policy that the government is conducting. It is thus possible that AG Holder is simply staking out a fairly expansive position to allow some flexibility later, depending on the outcome of that re-evaluation.

But those two important caveats aside, it is striking how little has changed, despite the hullabaloo the Justice Department has made of the new definitions.

Posted by Mike Dorf

Dorf on Law on Twitter

I must say that I find the whole notion of Twitter more than a bit silly. I certainly hope that it doesn't come to replace other forms of information dissemination, lest we end up in the dopey dystopia depicted here. But as a means of promoting actual news and analysis, I suppose Twitter is marginally useful. And thus, I have taken the plunge and put Dorf on Law on Twitter. Click here to subscribe to my tweets. I'll tweet whenever I have a new post (although I can't promise that my co-bloggers all will). How will this be useful, you ask? I can't honestly say it will be, except perhaps if you're an email subscriber who doesn't like to go to the blog directly but does follow Twitterers (tweeters? nitwits?). Then you can see exactly when a post has gone up, without having to wait for it to appear in your a.m. inbox. Like I said, more than a bit silly.

Posted (and tweeted) by Mike Dorf

Déjà Vu All Over Again

Perhaps it's fitting that Pakistan's latest crisis has come just as the television series Battlestar Galactica (whose final episode airs next week) is drawing to a close. Between the Musharraf Supreme Court's controversial decision to declare Pakistan Muslim League-N leaders Nawaz Sharif and Shahbaz Sharif ineligible to hold public office, President Asif Ali Zardari's decision to crack down on the lawyers' movement and other opponents, and the State Department's apparent decision, at least initially, to respond to the crisis somewhat tepidly, one is left, wearily, with the irresistible sense that all of this has happened before, and all of it will happen again.

To refresh our collective recollection, Zardari's ascent to power last September came on the heels of an unprecedented movement in which Pakistan's lawyers and ultimately its electorate decisively rejected then-General-cum-President Pervez Musharraf's interference with the independence of Pakistan's judiciary and his authoritarian, martial law-like crackdown on his opponents in the guise of "Emergency." Like Benazir Bhutto before him, Zardari pledged on many occasions after the election to fulfill the key demands that stirred this mass movement to action: restoration of the judges unlawfully ousted by Musharraf, and in particular, restoration of Chief Justice Iftikhar Muhammad Chaudhry. Zardari also promised to roll back the powers accumulated in the presidency by Musharraf, restoring the supremacy of Pakistan's parliament. Well over a year has passed since Pakistan's electorate delivered that mandate. However, Zardari's government has neither restored Chaudhry to his position, nor rolled back any of the other extraconstitutional actions taken by Musharraf during the Emergency, nor repealed the sweeping executive powers instituted by Musharraf.

Now, with Musharraf's still-lingering Supreme Court declaring Zardari's PML-N rivals ineligible to hold office, Zardari's government has dismissed the PML-N government in Punjab and imposed Governor's Rule, leading to civil and political unrest throughout the province. In response to this week's second anniversary of Chaudhry's suspension by Musharraf, the lawyers' movement already had planned a second "Long March" on Islamabad, from March 12 to 16, seeking restoration of Pakistan's pre-November 2007 constitution and reinstatement of all judges ousted during the Emergency.

Apparently feeling the political heat, Zardari then discovered his inner Musharraf -- not on the golf course, as he previously had told the world he would have preferred, but rather in the authoritarian laws inherited from the British:

[P]olice and intelligence officials carried out early-morning raids across Punjab and Sindh, arresting more than 300 lawyers and political activists.... The crackdown began late Tuesday night, with the government invoking Section 144 of the 1860 Penal Code, a law from the British colonial era that forbids public gatherings of four or more people. As whispers of imminent arrests gathered momentum and local television channels exhibited lengthy lists of intended targets, many prominent lawyers and politicians went into hiding, just as they did during a crackdown operated by former President Pervez Musharraf....

Indeed, many of the people allegedly on the lists were last arrested in late 2007, when Musharraf imposed emergency rule....

Athar Minallah, a prominent lawyer, maneuvered himself out of being arrested from the driver's seat of his car. "I locked myself in the car, and the police didn't know how to get me," he said. "So I called the television cameras who were only two minutes away. I began giving live interviews from the car, addressing the Interior Minister, Rehman Malik, directly. After a while, Mr. Malik came down himself and shouted the police officers away." [link]

Perhaps seeking to out-Musharraf Musharraf, Zardari's government has even played the terrorism card.

During the 2008 campaign, President Obama sharply criticized the Bush administration's approach to Pakistan, asserting that by

coddl[ing] Musharraf, we alienated the Pakistani population, because we were anti-democratic. We had a 20th-century mindset that basically said, 'Well, you know, he may be a dictator, but he's our dictator."....

That's going to change when I'm president of the United States. [link]

So how has the new administration responded to this week's events? State Department spokesperson Robert Wood's initial response did not go all that smoothly:

'You haven’t been clear at all about where the US stands on what's going on in Pakistan,' said a journalist.

'I have given you what our position is. I can’t give you an assessment of what’s taking place right at this moment on the ground,' said Wood.

'That’s not what I’m asking. I’m asking, what is your position on reinstatement of the chief judge,' the journalist asked.

'That’s something that’s going to have to be determined by the Pakistanis in accordance with their laws and their constitution. I can’t go beyond that,' said Wood.

'But when President Musharraf installed a state of emergency to avoid the reinstatement of the judges, you had called for the reinstatement of the judges,' the journalist reminded him.

'Look, I’m giving you what the policy is right now. And as I’ve said, this is something that needs to be worked out within Pakistan’s political sphere in accordance with its laws. That’s about the best I can give you,' said Wood. [link]

Still, to their credit, Wood and other diplomats, including special envoy Richard Holbrooke, have publicly expressed concern about Zardari's restrictions on freedom of assembly and freedom of speech, and have urged Pakistan to act in accordance to the rule of law. Will it make any difference? As when the crisis over the judiciary first began, hum dekhenge. Again, and still.

Posted by Anil Kalhan

Didn't See It Coming

I was recently going through some files and found an essay by the economist Jeff Madrick in the New York Times with the provocative title: "Market messes happen. And inefficiencies have consequences." Discussing the orthodox view that financial markets efficiently process all information and thus correctly set the prices for financial assets based on available information, Madrick noted that "economists are increasingly challenging the orthodoxy. A growing number argue that according to the best new evidence, financial markets do not appear all that efficient after all." If markets are not as efficient as economists generally thought, he continued, "speculative and dangerous stock market bubbles are entirely possible and even likely, ... the federal authorities must remain vigilant about the complete and open flow of information, and ... the stock market does not necessarily allocate capital investment to the right places."

At this point in the financial crisis, such arguments have become familiar if not commonplace. What makes this interesting is that Madrick published those words on August 3, 2000. Since then, the stock market has tanked not once but twice (see, for example, this historical graph of the Dow Jones industrials), first after the dot-com bubble burst and now with the mortgage-led collapse. Madrick was writing while Bill Clinton was still president, shortly after the Gramm-Leach-Bliley Act dismantled the barriers between various types of financial institutions as part of an effort to deregulate financial markets and allow them to become even more efficient.

Madrick did not discuss any particular legislation. Instead, he simply pointed out that some very high-powered economists (focusing on Andrei Shleifer, but also mentioning Robert Shiller and Richard Thaler) had been doing important theoretical work that undermined the "efficient markets hypothesis," which was at the heart of the case for financial deregulation. The orthodoxy was so strong, however, that this dissenting work did not penetrate the mainstream. Alan Greenspan has now famously admitted that he was in a state of "shocked disbelief" about the meltdown of the financial markets: "I made a mistake in presuming that the self-interests of organizations, specifically banks and others, were such that they were best capable of protecting their own shareholders and their equity in the firms."

Admittedly, it's probably possible to go back a decade and find three economists who seem to have predicted any particular event. But this is not some isolated event. We are talking about the unraveling of the global economy in the wake of decisions that were based explicitly on theories that these dissenting economists debunked. Greenspan and others ignored this unorthodox work not because of some overwhelming body of evidence against it but precisely because it was unorthodox and did not fit with their preconceived view how markets work.

The resistance by the mainstream to any such unorthodoxy, moreover, affects not just the ideologues but also the undecided -- and even those who see through the nonsense. Last Fall, Shiller discussed his own advisory work with the Federal Reserve and allowed that he had been shy about pushing his views because of "groupthink," saying that those with unorthodox views are "forever worrying about their personal relevance and effectiveness, and feel that if they deviate too far from the consensus, they will not be given a serious role. They self-censor personal doubts about the emerging group consensus if they cannot express these doubts in a formal way that conforms with apparent assumptions held by the group." With wonderful candor, Shiller admitted: "In my position on [a Fed advisory] panel, I felt the need to use restraint. While I warned about the bubbles I believed were developing in the stock and housing markets, I did so very gently, and felt vulnerable expressing such quirky views. Deviating too far from consensus leaves one feeling potentially ostracized from the group, with the risk that one may be terminated."

Even in the current crisis, there is entrenched resistance to revising cherished presumptions. Economics graduate students at top departments are not being encouraged to look at the work of economists whose work directly addresses the causes and consequences of financial crises, like John Maynard Keynes and Hyman Minsky, because (according to the chair of a top economics department) "graduate students work on subjects — like real models of business cycles — that are at the frontier of the field; by contrast Keynes and Minsky are not on the frontier anymore." You just have to love the power of circular reasoning!

-- Posted by Neil H. Buchanan

A Possible Explanation of (But Not Excuse for) Some of Bernie Madoff's Worst Misdeeds

With bilked investors hopping mad at Bernie Madoff--due in court to plead guilty tomorrow--here I want to suggest an explanation (but let's be clear, not an excuse) for how Madoff ended up ripping off not only individual investors but charities. It's one thing, we might think, to operate a ponzi scheme that robs the rich of their riches. But surely it is beyond the pale to do what Madoff did--namely, to take money from charitable organizations and purport to invest it, only to have it disappear down the big ponzi hole.

Worse indeed, but the logic of escalation made it all but inevitable. Let's suppose that Madoff began with individual investors. These are people with sizeable amounts to invest and some number of them also give to and/or help operate charities. They get the following idea: "I could do a lot of good for Charity X by investing with Madoff instead of leaving the money in the bank where it's earning 2%/year." So they approach Madoff with the idea. This is very easy because Madoff himself was an active philanthropist

Perhaps Madoff was thrilled and thought to himself "Oh goody, finally a chance to rip off not just some rich indivduals but the Elie Wiesel Foundation for Humanity and the Gift of Life Bone Marrow Foundation. I hate those do-gooders." Perhaps Madoff is and was just that kind of monster. But it's also possible that initially Madoff took the charities' money reluctantly. At least we could see how he might have felt compelled to do so.

Suppose that Madoff had turned down the charities. What would he have told them? Sorry, I can't help you because my investment firm is a giant ponzi scheme and I don't want to destroy your endowment? Investing with me is too risky because of market volatility? Any explanation Madoff might have given to the charities for turning down their business would have quickly become known to his other investors, which could have led to the unraveling of his whole scheme.

I offer this hypothesis with three important caveats: 1) There may well be evidence that Madoff was NEVER even remotely reluctant to take the charities' money (although the explanation itself would predict why he would not have been outwardly reluctant even if he was inwardly reluctant); 2) Even if Madoff started out reluctant, it is in the nature of a pyramid scheme to need an ever-larger pool of investors, and so he would have been eager for funds from any source, including charities, nearer to the end; and 3) The logic I have identified in no way exonerates Madoff.

Perhaps the best comparison for a blue-collar crime might be something like this: Snake puts on a ski mask and holds up a liquor store. During the course of the robbery, after he has deactivated the surveillance camera, Snake is overcome by an itch. He holds his gun to the clerk and tells the clerk to look away while he briefly takes off his mask to scratch his nose. In those few seconds, a customer enters the store and gets a clear look at Snake's face. To avoid detection, Snake shoots and kills the customer. Snake didn't go to the store with an intent to commit murder but he clearly ended up doing so. Likewise, even if Madoff did not originally intend to rip off the charities, he ended up doing so for the same sort of reason that Snake killed the customer--to avoid detection for his already-committed offenses.

Posted by Mike Dorf

Summum and the Plastic Reindeer

In my earlier post on the Summum case, I promised a FindLaw column and a follow-up post. Mea culpa. I was scooped on FindLaw by Marci Hamilton, so I wrote about the Wyeth case instead. But I have at least one further set of thoughts about Summum that I thought worth spelling out here. The thought concerns the question lurking just below the surface in Summum: Where is the sweet spot between sufficient government distance from speakers' messages that a public forum has been created for free speech purposes and sufficient endorsement of a religious speaker's message that there is an Establishment Clause violation?

Justice Alito's majority opinion does not address the Establishment issue, which was not properly before the Court. However, what he says about government speech and the public forum doctrine--as a matter of free speech law alone--has some implications for Establishment.

Justice Alito argues that government acceptance of a privately donated monument as a permanent display on public property is government speech, even if the government message is vague and/or distinct from the message that the donor means to convey. Suppose that a municipal government adopts a policy of honoring "Great Scientists of History." The local Astronomy Club donates a statue of Copernicus, while the local Astrology Club donates a statue of Ptolemy. The city accepts both statues, even though it also rejects the local Superhero Club's donation of a statue of Batman on the ground that he is both fictional and not a scientist (but see Homer Simpson: "Batman's a scientist"). Even though the Astrology Club wanted to honor Ptolemy because of his Tetrabiblos, the city is not endorsing either astrology or the geocentric theory of the universe in accepting the statue. It is simply acknowledging that Ptolemy made important (if mostly wrong) contributions to science.

Of course, nothing in the Constitution forbids our fictional city from accepting the Copernicus statue while rejecting the Ptolemy statue, on the ground that the city endorses the heliocentric theory of the solar system. (Even better would be a statue of Aristarchus of Samos!) Indeed, the city could even accept the Ptolemy statue but not the Copernicus statue on the foolish ground that the citizens of this city believe in geocentrism---at least so long as that decision were neither driven by religion nor had the effect of endorsing geocentrism as a distinctly religious view (as opposed to a mistaken scientific view). And that is more or less what the Supreme Court's Establishment Clause jurisprudence says.

Critics have long argued that the Establishment Clause doctrine governing religious displays on public property is silly because of what can easily be ridiculed as the "plastic reindeer rule." (For one application, see County of Allegheny v. ACLU of Greater Pittsburgh). The basic idea is that the overall context of a display either impermissibly endorses the religious message of a specifically religious piece of that display (such as a creche or a Ten Commandments monument) or indicates something else, such as government respect for the diverse traditions of members of the community or historical recognition of an important source of widely shared values. The common sense displayed by Justice Alito's opinion for the Court in Summum shows that the plastic reindeer rule is more sensible than the critics recognize.

Posted by Mike Dorf

Are Conservative Supreme Court Justices Meta-Hypocrites?

In my latest FindLaw column, I use last week's Supreme Court decision in Wyeth v. Levine as an occasion to note and comment on an apparent inconsistency in the Justices' voting behavior: (With three arguable exceptions), the conservatives favor states' rights in 10th Amendment cases and oppose states' rights in preemption cases, while the liberals oppose states' rights in 10th Amendment cases while favoring states' rights in preemption cases. (The arguable exceptions are Justice Thomas, who favors states' rights in both categories of cases, and Justices Kennedy and Breyer, who don't have strong druthers in preemption cases.) I explore the possibility that what's really going on is that the Justices are using doctrines about federalism insincerely, as a means to advance their anti-regulatory (conservatives) or pro-regulatory (liberals) agenda.

I conclude my column by defending the Court against the charge of deliberate manipulation. In my view, in hard cases, judges' values play at least an unconscious role in their decision making. Accordingly, I defend President Obama--who has said that he would select judges with empathy for others--against the charge that some conservatives have leveled against him of advocating lawlessness. Obama is not saying that judges should ignore the law and vote their values; rather, he has argued that because judges' values play an important role in filling in the law's gaps, it's important to have judges with good values. ("Good" here is of course a contested term, but elections have consequences: President G.W. Bush, by this logic, was entitled to select judges whose values he shared, to the extent the Senate would go along.)

Here I want to call attention to a possible inconsistency in the criticism of the Obama position. That critique trades on a view of the law as more determinate than even the conservatives themselves believe in other contexts. If we assume that legal materials themselves really determine the answers without any contribution from the subjective values of the judges, even in hard cases, then what Obama urges is tantamount to lawlessness. But conservatives don't in fact believe that. Here's the late Chief Justice Rehnquist, speaking for the Court in Butler v. McKellar, which narrowly defined the circumstances under which a state prisoner can take advantage of a new federal constitutional ruling to secure relief via habeas corpus in federal court:

. . . the fact that a court says that its decision is within the "logical compass" of an earlier decision, or indeed that it is "controlled" by a prior decision, is not conclusive for purposes of deciding whether the current decision is a "new rule" under Teague. Courts frequently view their decisions as being "controlled" or "governed" by prior opinions even when aware of reasonable contrary conclusions reached by other courts.

In other words, in hard cases, the talk of the law controlling outcomes is just that: talk. Modern conservatives recognize that different judges will draw different conclusions about what the law requires in hard cases. So, what accounts for that difference? Given the inevitable normativity of law, it is hard to imagine that the values the judges hold isn't a big piece of the answer. Indeed, even Ronald Dworkin, who thinks that objective right answers exist in hard cases, describes such right answers as the co-product of legal materials and the judge's effort to synthesize the pre-existing legal materials in accordance with the best account of political morality--and Dworkin does not deny that judges with different values will reach different conclusions about what the best account of political morality is.

Although my column acquits the conservative and liberal Justices alike of the charge of first-order conscious hypocrisy with respect to principles of federalism, the foregoing analysis suggests that conservatives are engaging in a kind of inconsitency at a meta-level--assuming formalist principles to critique Obama even as they reject such principles in habeas jurisprudence. I realize, of course, that the people who have criticized the President regarding how to pick judges do not necessarily endorse every proposition ever affirmed by any conservative Justice, but both sets of commitments are common among conservatives both on and off the courts. It is possible that a similar showing of meta-inconsistency could be made with respect to liberals, but I'll leave that demonstration to my conservative friends.

Posted by Mike Dorf

Rightside-Up Benefits, part 2

This past Friday, I posted some thoughts on the "upside-down benefit problem," which arises from the fact that tax deductions are more valuable to people as their incomes rise. Focusing on the deduction for charitable contributions, I created a hypothetical taxpayer named Zoe, with taxable income of $25,000, who would have only 15% of her contributions subsidized by the tax code. Anwar, on the other hand, declared $425,000 in taxable income and would thus receive a 35% subsidy. Some of the comments on my post offered interesting questions and suggestions about the issues raised by a plan from the Obama administration to partially fix this problem, and I thought I would offer some further thoughts inspired by those comments.

First, some clarifications. The current system provides two ways (other than rate cuts) for Congress to reduce people's taxes. Tax credits are straight-up reductions in a person's tax due. If I receive a $500 tax credit for, say, child care, then my taxes go down by $500. By contrast, tax deductions reduce taxable income, which is then multiplied by a person's marginal tax rate (their current tax bracket) to determine their tax saving. A person who receives a $500 deduction will reduce her taxes by $50 if she is in the 10% bracket but by $140 if she is in the 28% bracket and $175 if she is in the top 35% bracket.

A credit system with a flat rate would set a uniform percentage of total deductions to be credited against total tax liability, severing the link between the benefits from deductions and one's tax bracket. For example, a 25% credit would simply mean that every $4 of deductions would result in $1 of reduced tax liability, no matter the taxpayer's current bracket. (I also described a progressive crediting system, but I'll leave that aside here.)

The Obama plan would go only part of the way toward a pure credit system with a flat rate. Under his plan, someone like Anwar would reduce his taxes by $28 for a $100 charitable donation, because that is the maximum amount that can be credited. In other words, at income levels starting with the 28% bracket, there will be no connection between one's tax bracket and the tax savings that result from deductions. At lower income levels, the connection (and thus the upside-down benefit) would still exist. Therefore, Zoe's taxes would still go down by only $15 if she gave a $100 donation (and if she itemizes).

Some people on the comments board discussed various possibilities such as setting a uniform credit rate at the top bracket rate, which would not reduce the tax benefit from deductions for the highest incomes from current levels but would increase them for everyone else. (Again, even this only works for people who itemize, which leaves out a lot of middle- and almost all lower-income taxpayers.) I am relatively agnostic about this, though I note that setting the credit rate at the top income level is the most expensive option. I also see no reason to tie the credit rate to tax rates at all.

The broadest point that I wanted to make is that reducing people's taxes for any of the things for which we currently allow taxes or credits is the equivalent of a direct subsidy from the government. We could partially reimburse people for making charitable contributions, for example, simply by having them apply to an agency other than the IRS and then sending them a check. Running this through the tax code is, as I noted, an accident of history. While this accident has the advantage of being administratively quite inexpensive, it has the disadvantage of making people think of these things as "tax benefits" rather than just "government benefits" or "public subsidies." This connection to taxes thus muddles the debate by bringing in all of the white-hot rhetoric about the supposed evils of taxes. It need not be so.

Second, Mike -- proving that he remembers a lot more tax law than I remember con law -- pointed out that the Obama plan creates an interesting non-neutrality. People who are in the highest income tax brackets would have an incentive to provide services directly to charity rather than to earn income in their jobs and then give the money to a charity, because cash deductions will only save 28% while in-kind donations avoid 35% for the highest income taxpayers. Very true, as a theoretical matter. Mike makes no suggestion that this is empirically significant, but I will simply offer my hunch that this will not be a big deal. We are only talking about people whose taxable income in 2008 is roughly $165,000, which means that their gross income would typically be above $200,000. I find it hard to believe that this would be the type of taxpayer who would be likely to change from cash donations to labor donations on the basis of a few percentage points of difference. I could be wrong, but as my GW tax colleague Sarah Lawsky put it: "How many people are we talking about here? Ten?"

More to the point, this example applies to charitable contributions but not to the other major items for which we allow tax deductions. According to 2007 data, "charitable contributions other than education and health" (such as soup kitchens, but also including symphonies and opera companies) cost the Treasury just over $34 billion. The mortgage interest deduction cost almost $88 billion, and that cannot be gamed in the way that Mike describes. More broadly, we should not be focused only on charitable contributions, though this is mostly my fault for using that to motivate my examples.

Third, some commenters pointed out that there are some deductions that are available because they are necessary to allow us to measure income correctly. Miscellaneous employee expenses, for example, are properly taken out of income because they are part of the cost of producing income. We could, therefore, use this as an opportunity to think carefully about which deductions are part of computing income accurately and which are genuine subsidies that happen to be run through the income tax system, subjecting only the latter to the Obama rule or its extension. Apparently, the Obama plan would apply to all deductions as currently defined.

Even though I like theoretical purity as much as the next tax nerd, I am not especially concerned about this distinction, for two reasons. For one thing, the equivalence between phasing out or limiting deductions for higher-income earners and raising effective rates is easy to demonstrate arithmetically. If the Obama plan amounts to raising or lowering effective rates indirectly by limiting the deduction of certain expenses, that will hardly be the first time that we have deviated from a pure system. Raising the top rates after sorting out the deductions that should not be limited is an option, but the bottom line would be the same.

Moreover, we also violate the income-measurement aspect of the tax code for other reasons, such as ease of administation. We limit deductions for miscellaneous employee expenses to amounts exceeding 2% of adjusted gross income, meaning that we currently miscalculate income for literally everyone. We do so because of the saving in time and effort for people who are freed from keeping receipts for everything. More generally, I tend to be worried when we make tax changes that create a new type of exception to general tax principles or that significantly increase the size of an existing exception. Based on currently available information, neither of those concerns appears to be raised by the Obama plan or even by the two more thorough-going alternatives that I endorsed on Friday. The big changes are the de-coupling of benefits from tax rates and the mild increase in progressivity, which is why I am excited about this plan.

These thoughts are not meant to be definitive but only to suggest that I view the admitted impurities of switching from a deduction system to a credit system as not worrisome enough to make this a bad idea. Far from it. As always, however, further evidence and analysis could change my mind.

-- Posted by Neil H. Buchanan

Turning the Upside-Down Benefit Rightside-Up

President Obama's budget plan includes a dramatic change in the tax code that -- because it would change the way tax deductions are handled -- seems anything but dramatic. Even so, it is a partial version of an extremely good idea that should be extended still further. The idea is to make the tax benefit that one receives from deductions completely independent of the person's tax bracket. Asleep yet? Stay with me. This could be really big.

Two people each give $100 to their favorite charities. Anwar has taxable income of $425,000, putting him in the 35% tax bracket, while Zoe has taxable income of $25,000, putting her in the 15% tax bracket. This means that the $100 deduction for charitable contributions reduces Anwar's taxes by $35, allowing him to give his favored charity $100 at a personal cost of only $65. Zoe only saves $15 and pays $85 to give $100 to her favored charity. (Actually, the chances are pretty good that Zoe does not even itemize her deductions, in which case she saves nothing on taxes and pays the full freight for her charitable donation.)

This unappealing result has long been known in the tax world as the "upside-down benefit" problem, because it gives the largest tax savings to the highest-income taxpayers. It might seem to be impossible to fix this problem, however, because it appears to be the inevitable result of having a progressive rate structure. If you want to have higher tax rates on higher incomes (and I do), then you have to accept the upside-down benefit, right? Actually, it is well known that the answer is no.

The Obama budget takes an approach that is only a partial fix to the upside-down benefit problem, but it is still a huge step forward. The plan would limit the tax benefit for deductions to 28% of the amount deducted. Even though a single person with more than $164,550 in income (in 2008) pays tax at a 33% rate on income up to $357,700 and 35% on amounts above that, the Obama plan would limit the tax benefit to 28% of the deducted amount. The benefit is still upside-down for lower brackets (and for non-itemizers), but it is no longer upside-down for the highest brackets.

This approach might seem to hit higher earners coming and going. They pay a 33% or 35% rate when they earn income, yet they only get a 28% benefit when they offset income. True enough, but why should there be any connection between the rate that one pays on income and the benefit that one receives from deductions? To stay with charitable deductions as our example, why should my tax bracket have anything to do with how much it costs me to give to charity? The charitable deduction is a method by which the rest of society agrees to share in the cost of a decision that an individual taxpayer makes. You pay (1-x)% of something, and we pay x% of it. There is no coherent reason that Anwar's and Zoe's tax brackets should have anything to do with how much of their deductible activities are subsidized by other taxpayers, with taxpayers currently contributing $35 to Anwar's charity but $15 to Zoe's. It is simply an accident of history that we have used the tax code to provide this subsidy, and it is another accident of history that we have tied the amount of the subsidy to the structure of the tax brackets by making this a deduction. The Obama plan partially fixes those historical accidents.

There is no good reason why we should continue to provide these benefits through tax deductions. In fact, we have perfectly good examples of how we can provide tax advantages to certain activities without creating an upside-down benefit. For example, when I lived in Wisconsin in 1998-99, I discovered that the state completely de-couples tax deductions from tax brackets. At that time, the state's income tax brackets ran from 3-7%, but all deductions were multiplied by 5% to determine the tax savings from the favored activities. Instead of deducting dollars from taxable income, taxpayers would simply reduce their taxes by 5% of their total deductions. This turns a tax deduction (which interacts with tax brackets) into a tax credit (which does not). This could be done at the federal level by making deductions worth 28% in tax savings for all taxpayers, not just for the upper-middle and upper classes.

To take it a step further, there is no reason why there has to be a single rate to determine the tax credit, nor do the credit rates have to be tied to the tax brackets at all. We could set up credit brackets that decrease with the amount of deductions. For example, the credit rate could be 25% for the first $20,000 of deductions, 15% for the next $20,000, and 5% for anything more than that. This would be no more complicated than having a table for tax credits that would work much like the table for tax brackets.

Even stopping short of my preference for progressive credit rates, though, Congress should embrace Obama's idea and extend it to all income levels. This would not only increase the overall progressivity of the tax code, but it would do so by separating two things that never should have been linked in the first place. It would, in other words, be a good idea even without the increase in progressivity. This is hardly the sexiest policy idea on the table, but its effects could profoundly affect the way people think about taxes, charity, and all of the other things in our lives that we currently subsidize through deductions.

[As a side note, it is obviously true that any change in the tax code changes people's incentives and thus might change their behavior. Decreasing the tax benefits of charitable donations for higher income earners might cause them to reduce the size of their gifts; but will it? And if so, by how much? The best evidence indicates that the effect on charitable giving will be minimal to non-existent. See various sources linked here.]

-- Posted by Neil H. Buchanan

Thomas Friedman as Ali G

In the "ice cream glove" sketch (above), Ali G pitches his idea for a device (the ice cream glove) that would solve the main problem with ice cream cones: they drip on your hands as they melt. To prove its revenue potential, Ali G multiplies the number of hits he gets when he googles "ice cream" by the number of hits he gets when he googles "gloves," by his projected unit price per glove, to get a figure on the order of a gazillion pounds.

Now along comes Thomas Friedman with a disturbingly similar methodology for measuring the depth of our economic crisis. In his NY Times column yesterday, Friedman uses the "suggestions" that Google provides when you enter the beginnings of words as an index of the economic zeitgeist. This methodology may sound goofy at first but on close inspection it proves to be downright preposterous.

First, we need to distinguish between Google's customized suggestions and its generic ones. If I type f-e-d into my search bar, I get a list of terms specific to me based on my searches ("Federalist Papers" tops my list), and a separate generic list (here topped by "Fedex"). Friedman is using the generic list as his public opinion barometer, because Google generates these lists based on how other people typically complete these searches. So there is at least something plausible to Friedman's analysis. If the first suggestion when one types s-o-u is "soup kitchen," that's bad economic news.

But in fact none of the top 10 suggestions for s-o-u is even soup-related. When I tried this, Southwest Airlines was first, South Park second, and Soulja Boy third. Worse, Friedman's own results are not even reproducible, at least not by me. I get the same results he gets for m-e-r-e (a list topped by Meredith Whitney), but his other example is a bust. Friedman says that b-a produces a list topped by Bank of America, with Barack Obama coming in third, yet when I tried this my list was topped by Barnes and Noble, with Barack Obama second, and Bank of America online banking eighth.

Furthermore, this whole enterprise is suspect, as another little experiment revealed. I typed p-o-r into my search bar, expecting porn or pornography to top the list but it was nowhere to be found. Perhaps that's because Google does some screening (although no "porn" appeared when I turned off safe searching), but in any event, the list I did get was revealing. In third place was Portugese water dog, no doubt because of the recent announcement of the expected breed of the First Dog. Portal was at number two. Topping the list was Porsche. If the Friedman methodology were useful, that would mean that people are keenly interested in buying expensive sportscars. In fact, we know that Porsche sales, like car sales more generally, have tanked recently. Meanwhile, when I type t-h-o-m-a, the ninth suggestion is Thomas Friedman. Make of that what you will.

Posted by Mike Dorf

The Perfect, The Good, and The Truth in Animal Cruelty

On FindLaw today, I will have a column that discusses the question of why we have anti-cruelty laws, one example of which is the pending Captive Primate Safety Act, approved by the House in the wake of the Connecticut incident in which a pet chimpanzee violently mauled his owner's friend and was subsequently killed by police.

In the column, I propose that although a genuine concern for the interests of animals plays a role in motivating the passage of anti-cruelty legislation, the deeper purpose of the laws is to calm the conscience of those who believe that it is wrong to harm animals but nonetheless feel committed to actively subsidizing the largest and most grotesque treatment of animals by consuming meat, eggs, and dairy products. By having laws that appear to protect animals from cruelty, well-meaning people are able to imagine a comfortable and even pleasant life, along with a humane death, for the creatures who later appear on their dinner tables.

I want to focus in this post on what I predict will be a response that some self-described "conscientious omnivores" will have to what I say. Some will argue (and have said to me in the past) that the perfect can be the enemy of the good and that if the choice is between becoming a vegan and the status quo, most people will choose the status quo and leave the current deplorable conditions of animals unchanged. Wouldn't I prefer, they might ask me, that the animals within the food industry suffer less rather than more? And if so, then why do I find fault with legislation aimed at accomplishing precisely that -- the reduction of suffering in a population of animals who are almost certainly going to die to satisfy human appetites either way.

My response to this point has three parts.

First, I reject the notion that such modifications in animal agriculture as "cage-free" eggs represent "the good" -- something positive that simply falls short of perfection. Though "cage free" sounds like freedom, it means very little in fact. The label of "cage-free" is overwhelmingly applied to cases in which chickens are crowded into dark buildings in which the concentration of their waste products fills the air with toxic gas (though there are no cages, so the setting is literally "cage-free"). The hens' beaks are mutilated, and male chicks are killed as babies (often by suffocation or by being ground up alive) in cage-free facilities. The "cage free" image -- of chickens roaming around a barn filled with hay, able to nest and run around -- is inaccurate. To put the point differently, I view the "changes" made by anti-cruelty laws (and the practices they promote) as representing the introduction of euphemisms into the vernacular.

Second, I do not view current levels of demand as unchangeable. Neither does the food industry. To say that a law or practice might reduce the suffering of farmed animals by a tiny amount -- even if, contrary to the evidence, we were to believe in the reduced suffering claim -- is to assume that the law or practice has no impact on demand. In reality, however, people in the agricultural industry know that our collective conscience is, on occasion, repelled by what is done to animals in our name (especially in the rare case when commonplace practices become public). Participants in the industry have an interest in calming such revulsion so that it does not reduce demand. The misleading labels "humanely raised" or "cage free" and the misleading legislation that purports to protect animals thus serve to expand or prevent the contraction of a consumer-base that might have otherwise been drawn to a plant-based diet for reasons of health, the environment, and a rejection of the suffering inflicted. Such labels -- far from representing "progress" for the animals already condemned to suffer -- can thus increase the number of animals tortured and killed. The "good" -- in this case -- is enemy of the good.

Third and finally, I do recognize that not everyone is ready to become a vegan. I would have to live on another planet to be unaware of this fact. But there is something constructive that a person who wants to reduce animal suffering can do. He can reduce his consumption of animal products. Rather than substituting "cage free" eggs for the regular kind, she can commit to consuming fewer eggs in total. Rather than buying "organic" milk with pictures of happy cows on the container, she can begin to incorporate some combination of soy milk, almond milk, rice milk, and hazelnut milk into her diet as replacements for cow milk. And rather than buying "humane" meat, poultry, and fish, he can begin to include the many plant-based sources of protein and iron (including grains, beans, and vegan meat substitutes) in meals that were previously built around dead animals. The first step to abolishing animal cruelty does not lie in symbolic gestures. It lies in the reduction (and, in time, elimination) of demand for products that require -- by their nature -- the infliction of suffering and death on vulnerable, sentient beings.

Posted by Sherry F. Colb

Ideology versus Reality: Taxes and Growth

The Obama administration announced its new budget framework last week. Opponents of that plan are focusing on, among other things, the tax increases that the plan would impose on upper-income taxpayers. In addition to allowing the Bush tax cuts to expire for the most advantaged taxpayers, President Obama proposes to phase out the value of tax deductions for couples with incomes above $250,000 and $200,000 for singles. The response from Obama's opponents is predictable: everyone knows that tax increases hurt the economy, so why increase them now? Of course, if one accepts the premise that tax increases hurt the economy, then there really is no good time to raise them; but that is ultimately the anti-taxers' point. "Don't raise taxes now" really means "Don't ever raise taxes." The premise, however, is wrong. There is no convincing evidence that tax increases (especially of the sort that Obama has proposed) harm the economy.

Is this not heresy?! Surely, tax increases hurt the economy. People who must pay higher taxes are discouraged from working and innovating. Taxes sap the competitiveness of U.S. corporations. Low taxes always lead to higher growth. We hear these assertions and variants on them so often that they have taken on the character of a mantra, a cherished set of beliefs that need not -- indeed, that must not -- be challenged.

Faith is a fine thing. The evidence, however, is just not there. Bruce Bartlett, a former advisor to Presidents Reagan and Bush the Elder, recently argued that "when Republicans claim that higher taxes will destroy the economy, they should be reminded that they made the same argument in 1982 and 1993 and that the actual economic results were the opposite of what they predicted." Similarly, the economics writer for the New York Times, David Leonhardt, put it this way: "Despite all the scary stories you've heard, the evidence that higher taxes necessarily cripple an economy is somewhere between thin and nonexistent."

Both Bartlett and Leonhardt make essentially the same reality-based case: Looking at post-WWII U.S. economic performance, not only does the economy not do better when taxes are cut, but it actually has performed best when tax rates were relatively high. The highest marginal personal income tax rate in the early 1960's was 91% (on annual income above roughly $2.8 million, in inflation-adjusted dollars), and the years of those high tax rates were also some of the best years of broadly-share economic prosperity the world has ever seen. Predictions of doom when taxes rise have turned out to be wrong, as have predictions of boom when taxes fall.

It is, of course, always possible that something else is going on that hides the true effect of taxes. Maybe high taxes have been levied when other factors were in place to make the economy grow, making any unexpected correlations (or lack of any correlations at all) spurious. This is what careful statistical research is all about, and it should surprise no one that this has been a major area of research for public finance economists.

Once we control for other relevant factors, can we find a negative correlation between tax rates and economic prosperity? Back in 2005, another Times business reporter, under the headline "Do Taxes Thwart Growth? Prove It," wrote: "Over the last 30 years, economists have undertaken hundreds of studies to determine whether taxes hurt the economy. So far, they've turned up little to convict taxes of the charge. After reviewing the literature on the topic in 1993, two economists, William Easterly of New York University and Sergio Rebelo of Northwestern, concluded in a joint paper that 'the evidence that tax rates matter for growth is disturbingly fragile.'" "Disturbingly fragile" means, in the standard understatement of these types of academic articles, that a sufficiently motivated analyst could produce a statistical model showing the desired effect, but even mild changes in statistical methods would change the results. In other words, the affirmative claim that higher taxes cause economic harm is not supported by the evidence.

In a post on Febuary 19, I wondered whether it is possible to make progress in getting people to understand when the evidence really is one-sided, notwithstanding our deep-seated belief that there are two sides to every issue. I still do not have a general answer, but this is yet another example of the problem. The evidence fails to support the conventional wisdom, but some people insist that they know better. As the old saying goes, why let evidence get in the way of a good story?

-- Posted by Neil H. Buchanan

Overturning Abbott Labs — Gradually?

The Court's decision in Summers v. Earth Island Institute was released this morning. To no one's great surprise, the decision was 5-4, reversing the Ninth Circuit's decision. In the case, a group of environmental nonprofits challenged the Forest Service's "salvage logging" rules (rules that greased the skids, so to speak, for timber sales following fires throughout the National Forest System). At issue was the quality and quantity of "injury" the plaintiffs needed to sustain Article III standing. What they'd argued is that their many members use the NFS's 155+ units, which is spread across 190 million acres, quite frequently. Because of the unpredictability of fire and future salvage logging contracts, they could not allege that any particular place would be affected by the rule. The majority holds that that is fatal for Article III purposes.

This is, of course, a perennial dispute when it comes to challenging rules as such — an issue with special salience for environmental plaintiffs.

Justice Scalia's opinion (which garners the votes of Roberts, Alito, and Thomas, along with a very short concurrence from AMK purporting to join the Scalia opinion "in full") goes a good distance toward making so-called "pre-enforcement" review of rulemakings as such much harder than the Court did in the famous Abbott Laboratories trilogy of 1967. The Summers opinion picks-up where the Ohio Forestry Association opinion left off. Where will it lead, though?

Posted by Jamie Colburn

Exclusion or Damages

The exclusionary rule, which sometimes prevents prosecutors from introducing illegally obtained evidence in criminal trials, increases crime rates by weakening deterrence, according to Paul H. Rubin, writing in WSJ.com on Saturday. Rubin cites his own 2003 paper (with Raymond Atkins), which found that the rule substantially increased rates of larceny, auto theft, burglary, robbery, and assault. As a result, he says, Justice Roberts understated the costs of the rule when he wrote recently, in Herring v. United States (which weakened the exclusionary rule), that the rule allows "guilty and possibly dangerous defendants" to go free.

Rubin proposes, as an alternative to the exclusionary rule, "deterrence of police misconduct through a system of civil damages paid by the police department for improper searches." The potential for civil damages, he says, "would give police departments incentives to be cautious in performing searches, but might be less costly for the rest of us in terms of its effect on crime rates."

It is not clear, though, why Rubin assumes that a strong civil damages system would have less of an effect on crime rates than the exclusionary rule. One would expect money damages to reduce operating budgets at police departments, police departments, as a result, to catch fewer criminals, and criminals, as a result, to be less deterred. The comparative efficiency of the exclusionary rule and civil damages as measured by benefit to police conduct and cost in crime is an empirical question that Rubin doesn't mention. (In case it matters to anyone, I support a strong civil damages regime in addition to, not instead of, the exclusionary rule. If I thought I knew which one was more efficient, and I thought it feasible, including politically, to deter misconduct adequately through that one alone, I would, I imagine, oppose the other.)

The civil damages proposal is also surprising coming from Rubin, who not too long ago published (with Joanna M. Shepherd) a law review article concluding that the whole United States tort system is unjustifiable, specifically because it doesn't deter effectively. (SSRN See pages 223, 235). While generalizing to the whole tort system, the focus of that article was on non-motor-vehicle accidental death cases, which, according to the authors, actually increase accidental deaths. The most important reason for this outcome, the article says, is that many of the defendants in these cases—doctors and makers of medicines and protective equipment—are engaged in reducing, not increasing risk. (p. 222). I may well be missing something, but to me it seems that an analogous point applies to police departments, which are, after all, charged with preventing some of the same types of misconduct that can result in exclusion under the exclusionary rule (breaking into your home, for example, and taking your things). If Rubin really does support a strong civil damages system to deter police misconduct, it would be interesting to know why he doesn't view it in the same light as he does other kinds of tort cases.

--posted by David Gold

You May Say Justice Alito Is a Dreamer, But He's Not the Only One

Last week's decision in the case of Pleasant Grove City v. Summum was hardly surprising. The Court held unanimously that a Utah city park's acceptance of a permanent 10 Commandments monument did not, as a matter of free speech doctrine, obligate the city to accept a permanent monument commemorating the "Seven Aphorisms" of the Summum religion.

As I noted in a FindLaw column when the Court granted certiorari last spring, this was the only result one could have reasonably expected, at least treated as a case involving speech issues alone. I also noted at the time that more difficult issues were presented by the Establishment Clause but that those were not technically before the Court. And not surprisingly, dueling concurrences by, on one side, Justice Scalia (joined by Justice Thomas), and on the other side, Justice Stevens (joined by Justice Ginsburg), Justice Breyer (flying solo), and Justice Souter (solo and only concurring in the judgment), argue that if the Establishment Clause issue were squarely before the Court it would change nothing (Scalia and Thomas) or it would potentially change the analysis (Stevens, Souter, Ginsburg, and Breyer).

I'll have some further thoughts on the Summum case in my FindLaw column next week. For now, though, I'll just make an observation about song lyrics. Not surprisingly, for a case involving park monuments, the Court drew examples from well-known monuments, such as the Statue of Liberty, the Iwo Jima Memorial, and the Vietnam Memorial. In pursuit of the point that government acceptance of a privately placed monument may convey a different message to different park visitors, Justice Alito (for the Court) discussed the "Imagine" memorial in Central Park, which is located near the 73rd Street entrance, opposite the Dakota Hotel, and pictured above. In a footnote, Justice Alito quotes in full the lyrics to "Imagine" (minus the "wooo-hoo-oo-oo-oo") thus perhaps revealing himself as a Lennon fan. (Who knew?)

That's great, but it is unfortunate, in my view, that no one (except me?) has been giving props to Lou Reed in connection with the Summum case. Many of the examples posed by the city's supporters have paired the Statue of Liberty with a hypothetical Statue of Tyranny or, less commonly, a Statue of Bigotry. But it was Lou Reed who coined the latter phrase in his fabulous song "Hold On" (lyrics here) off of his equally fabulous 1989 album New York. So this is just to say thanks, Lou.

Posted by Mike Dorf

What Should a New Executive Order 12866 Look Like?

In a talk for Penn State’s ACS chapter Thursday, I framed the challenge for those opposing Cass Sunstein’s nomination to lead OIRA as, essentially: if not cost-benefit analysis (CBA), then what? Readers will know I’ve aimed some skepticism at Sunstein’s detractors already. It takes a theory (of rationality) to beat one, as they say. But, like the detractors, I also wonder: now that the Bush order on regulatory review has been rescinded, what should replace it?

In my view, this question brings along with it the following suite of assumptions — which are each highly constraining: (1) The vast majority of authority to regulate which will exist in the next 4-8 years already exists in the form of statutory grants of authority to the alphabet soup Justice Jackson once called a "sprawling chaos." Scores of these statutes are either sacred and untouchable or interwoven with others that are, making many legislative changes impractical. (2) The scarcity of federal appropriations ensnares even the most powerful agencies in appropriations caps and budget law. (3) The ways in which we could take action to reduce risk, mitigate harm, suffering or death, or improve the quality of life for those who deserve it are too numerous to count. If Sunstein's detractors can break out of this frame, some or all of what follows can be rejected.

But when the question is framed in this way – and we assume that Presidential imperialism has its own awful consequences, as well – some version of modern CBA is practically unavoidable for consequentialists. Here’s why: defenders of CBA who view it as applied rationality and detractors convinced of its inhumanity almost always lock horns on the following median dividing their two streams of consciousness (to mix a few metaphors). Virtually every human decision maker actually does weigh and consider the pros and cons of their actions — as Mike pointed out in a comment on my original post. An extremely potent variable in this process, however, is time. When they consider actions, pros, and cons which spread out over long intervals, consequentialist agents usually try to “discount” the values at issue back to their present magnitudes. An uncertain future, after all, is normally uncertain as to both pros and cons. Governments constantly confront choices of this kind. Deficit spending of $3 or $4 trillion is obviously not the first-best option, either for us or for the future taxpayers who will have to service such a debt. When compared to the possible scenarios today, though, another trillion dollars on top of our already mountainous national debt is (perhaps) the most rational step we can agree to take under our present circumstances.

What about the regulation of greenhouse gases? The Departments of State, Transportation, Energy, Agriculture, HUD, Interior, Commerce, and the EPA (etc.) each have scores of discretionary authorities to take steps against GHG emissions. But they’re still highly subordinated in our legal system — even acting in concert. And they’re confronting a problem whose most salient risks to the US are projected to peak no sooner than 1-2 centuries from now. Even apart from the potential for "leakage" of economic activity beyond the jurisdictional reach of the US, stringent regulations of major sources like the electricity sector would likely generate significant "costs" (i.e., loss of lives) in the present and/or near future. Less electricity really does mean, for now at least, lower standards of living, higher individuated risks to poor people, etc. So is the possibility of 100 lives lost over the next century better than, equal to, or worse than, say, 37 lives lost in the next 5 years?

If you view a rulemaking as an investment with a price tag, opportunity costs, legal contours, and informational gaps, my sense is you cannot but view this kind of comparison as endemic to risk regulation.

Because I view agencies as real agents that exist over time, have limited options, limited time to act, and imperfect information, I (like Sunstein) see their ending CBA and/or not discounting the future to some extent as both impractical and quite likely immoral. A Sunstein OIRA will, thus, probably look to resume where Clinton’s Executive Order 12866 left off. (Incidentally, 12866 also governed the Bush OIRA until recently (2007).)

What the new Administration should do to improve things is: (1) Invest in the optimal standardization of CBA (distributed, uncoordinated regulatory review entails needless duplication of effort and avoidable errors). This will probably require “longitudinal” analysis of the analyses. Since most of these are predictions at base, they are always mistaken to a lesser or greater extent. But the more we benchmark these techniques over time, the more we learn how to sort the good from the bad. (2) Boost the profile of CBA as a routine and transparent step in the regulatory process. Some of the worst episodes in CBA’s sorry past have come down to poor communication of the framework assumptions laid out above and even poorer information sharing between OMB and the public/action agency. (3) Diffuse the tensions between action agencies and OIRA which have built up over the last few years. To cooperate, these actors must trust each other more than they do now and sharing personnel—on temporary details, for example—would be a good start. (4) Use existing (imperfect) information/CBA to unify the action agencies’ agendas and prompt them into action, rather than as a brake that tends toward inaction.

In truth, many of the disputes surrounding CBA—like the selection of a discount rate—are actually an outgrowth of our uncertainty. They diffuse rapidly when we get at least a rough sense of the variables at issue and their relative magnitudes. Hopefully, an Obama OIRA will recognize that better production and sharing of information is the key to much of this.

Post by Jamie Colburn