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Law 2009-13 Archives
March 28, 2013
LAW/POLITICS: Same Sex Marriage Is Not the Same As Opposite Sex Marriage
At the core of the two same-sex marriage cases argued this week before the Supreme Court is the fundamental question of whether the Constitution requires the state and federal governments to treat same-sex marriage exactly the same as traditional, opposite-sex marriage for all purposes for all time, or whether it is permissible to draw reasoned distinctions between the two, ranging from California's simple reservation of the term "marriage" to opposite-sex couples to the federal government's comprehensive reservation of all federal benefits of marriage (including joint tax filings, Social Security benefits and immigration status) to opposite-sex couples. I respectfully submit that this should not be a difficult question. Common human experience, basic biology, and existing social science all confirm that there are significant differences between SSM and traditional marriage. Whether or not you support SSM as a political and policy matter, there should be no doubt as a legal matter that the state has the same legitimate right that it has always possessed to draw distinctions between the two in the many, many areas of law that touch on marriage and family life.
I have not, over the years, spent much time or energy on the battle over political recognition of same-sex marriage; while I don't think it's a wise idea, it is also not likely to have enormous consequences, for reasons I discuss below. Democracy works, however imperfectly: things done legislatively can be modified or undone the same way, can be adapted in different ways to the needs of different jurisdictions, and can be passed or amended with protections for conscientious dissent. Personally, for two decades, I've supported the "live and let live" option of civil unions, the moderate solution that allows people the freedom to choose whatever partner they want and make a life together, with the basic rights of contract, inheritance, hospital visitation and the like. Call it a marriage if you want, but without the official endorsement and coercive power of the state behind the name.
But the democratic process is one thing. A judicial determination that the Constitution prohibits recognition of any distinctions between the two institutions for all time would have much more far-reaching effects on our laws - effects we may not even be able to anticipate or foresee until creative lawyers have gone off to the races with this freshly-minted legal doctrine. We have seen, over and over, how changes in law and policy produce unforeseen or unintended consequences in the family and society; the institution of marriage in particular has buckled badly under a long series of liberal social experiments over the past five decades. You'd think that by now we would at least have learned to stop using irrevocable court decisions to open Pandora's Box.
It does the law no good to pretend things that are not so. Whatever the merits of SSM, it is not the same thing as marriage between a man and a woman, and the differences are neither irrational nor insignificant. Even if you support SSM, the only reasonable conclusion is that male-male or female-female marriage is not the same as male-female marriage. Let us count the most obvious ways.
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Marriage has many facets: it's an emotional coupling, a religious sacrament, an economic unit, and the basic building block of social organization of all kinds. But the aspect of marriage that is of most urgent interest to the state is its role in producing children and creating a home for them. Children are, literally, the future of the state: no kids, no future. They are also the aspect of married life that the state traditionally involves itself in most heavily, from child custody law to the substantial public role in education.
And there is no disputing the facts that (1) opposite-sex couples are dramatically more likely to produce children in marriage than same-sex couples; and (2) opposite-sex couples are dramatically more likely to produce children outside of marriage than same-sex couples. Both facts, combined with the state's interests in promoting the birth of children and having them reared in stable, two-parent homes, create a compelling state interest in promoting traditional opposite-sex marriage that simply does not exist in the case of SSM.
And that's before we get to the distinct question of whether same-sex marriages are truly the equivalent of a home with both a father and a mother.
A. Where Babies Come From
Even in an age when modern science can provide children without sex, virtually all of the world's children are the product of opposite-sex unions, for obvious reasons. If we evaluated our laws on the basis of common human experience accessible to the average voter - as was the case for the first century and a half of our democracy - that would be the end of the argument (the Bill of Rights has served us just fine even though it was adopted without the benefit of social-science studies). The available data, unsurprisingly, supports the same conclusion: far lower rates of child-rearing among same-sex couples.
I looked at this issue in 2011, in response to a New York Times writeup of 2009 Census Bureau data showing that "[a]bout a third of lesbians are parents, and a fifth of gay men are." A rising proportion of those children are adopted: 19%, up from 8% a decade ago, which is good news in that adoption is a good thing, but also a reminder of the distinction from how traditional marriages operate. A more recent American Community Survey report from the Census Bureau put the estimate at 593,000 same-sex couples, of whom 115,000 (19%) had children age 18 or under in the home - but 15.9% of those couples had no "own children" (a group that includes biological children, adopted and step-children), more than twice the rate of married couples with children in the home. Thus, the actual "own children" rate is 16.3%.
By contrast, looking at the 2010 CPS data and drilling into Table F1, we can see more detailed data on how opposite-sex married couples have families. Among married couples, there are 24.575 million families with "own children" under age 18 out of 58.41 million overall - 42.1%, or two and a half times the rate of same-sex couples. And when you break down the married couples by age, what you see is that the percentage with minor children in the home peaks at 83.8% of married couples age 35-39. Only about 15% of opposite-sex married couples between age 35-45 have no children living with them at all. You will look long and hard for a sub-sample of same-sex couples that looks anything like this. The bulk of couples with no children at home are senior citizens whose kids have grown up:
That's before you get to the question of how many children these families have. Comparative data is harder to come by on this point, but anecdotal experience suggests that there are very, very few same-sex couples with three or more children in the home. By contrast, in the peak childbearing years, we see that more than a quarter of married couples are families of five or more, and over 60% are families of four or more:
There are approximately 21,000 married same-sex couples in Canada, out of 6.29 million married couples. Same-sex couples (married and unmarried) constitute 0.8% of all couples in Canada; 9.4% of the 64,575 same-sex couples (including common-law and married) have children in the home, and 80% of these are lesbian couples. By contrast, 47.2% of heterosexual couples have children in the home.
(As an aside, we will encounter a few times in this essay the distinctions between gay men and lesbians; suffice to say that what can be generalized from the data about one group is not always true of the other. Gay men and gay women are still men and women.)
The evidence on this point is clear, and consistent with elementary biology and common experience: married opposite-sex couples are significantly more likely to be raising children than same-sex couples, and quite likely more children. A government interested in the next generation will rationally be much more interested in the opposite-sex couples.
B. Where Adults Come From
1. Motherhood And Its Deniers
Is there any rational basis to conclude that two parents of the same sex are not the equivalent of a mother and a father? You would think that common human experience tells us that of course there is. Not everything of value or importance in life can be quantified by social scientists. For example, in order to accept the proposition that same-sex parents are equal in all ways to opposite-sex parents, you must literally accept the conclusion that a mother adds nothing of unique value to a child's life that a man could not provide - no unique value to breastfeeding, no unique value to maternal love, no unique value to a female role model in the life of a young girl or to teach a young boy how to respect a female authority figure. (The same goes for the absence of male role models in two-female households, despite everything we know about the importance of fathers in the development of young men.) I submit that you do not have to be any sort of bigot to believe that mothers have a value no man can entirely replace, or to fear the consequences for family law if the United States Supreme Court holds that this is an irrational opinion.
The case for arguing that common sense and experience are wrong on this point rests wholly on appeals to social science - appeals that are deeply flawed. First of all, it's always hazardous to cast Constitutional rules in permanent concrete based on social science data that can be disproven by subsequent studies. The very nature of science is that it is subject to change, but courts are in the business of providing final and unchanging answers based on the evidence at a particular point in time. The Supreme Court in 1927 held, in Buck v. Bell, that states could forcibly sterilize the "unfit" (e.g., the mentally retarded) for the good of the state - a decision that rested on the widely-accepted eugenic and Malthusian economic theories of the day, now long since discredited. Buck's reliance on social science gave us this cringe-inducing passage from Justice Holmes for an 8-1 majority that included such distinguished Justices as William Howard Taft and Louis Brandeis:
We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes....Three generations of imbeciles are enough.
Skepticism of the limits of social science is not a sentiment unique to SSM opponents; as Rod Dreher has noted, it's nearly impossible to find supporters of SSM who could ever be persuaded by any social-science data to abandon that support, having decided in most cases that the issue is one of fundamental rights rather than utilitarian benefit to society.
2. Lies, Damned Lies, And Statistics
All that aside, what does the social science say about the quantifiable merits of same-sex parents as opposed to traditional homes with a father and a mother? The answer is surprisingly unsatisfactory, if you're accustomed to thinking of social science as an all-seeing oracle. Certainly there is enough anecdotal evidence to support the idea that same-sex parents are capable of raising children well, but that's not the issue; as a comparison, we know that individual single moms can raise children well, but we also know from a vast body of literature that as a group, single moms are more likely to produce kids with a host of problems, both because single parenting is hard and because fathers are important. Similarly, the question is not the existence of some number of good and diligent same-sex parents, but whether same-sex parenting is so identical in all meaningful respects to traditional married parenting that no rational distinction could ever be drawn between the two.
Liberal commentators would have you believe that there is an unbroken chain of scientifically incontrovertible evidence showing that distinctions between opposite-sex and same-sex parents are inconceivable. Most prominent is the 2005 claim in a brief by the American Psychological Association that "[n]ot a single study has found children of lesbian or gay parents to be disadvantaged in any signiﬁcant respect relative to children of heterosexual parents." Here's what the district court claimed in the Proposition 8 case:
Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy,successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.
And here's Nathaniel Frank, writing in Slate - before admitting that "none of this should matter" because he would support SSM "[e]ven if gay parenting did disadvantage kids":
"Rarely is there as much consensus in any area of social science as in the case of gay parenting," said Judith Stacey, the New York University sociologist who is one of the deans of gay parenting scholarship....
In fact, most of the studies in this area have suffered from a combination of flaws, which cannot be cured simply by repeating them over and over in multiple studies: (1) very small sample sizes, the bane of any kind of statistical study; (2) unrepresentative, often self-selected samples, (3) inherent biases in self-reporting by the parents; and (4) failure to choose a proper comparison group. Partly this is the inherent difficulty of the project, given the relative recency and rarity of such families. But there are also reasons to suspect that it reflects the political and social biases of the researchers.
The amicus brief filed in the Proposition 8 case by Leon Kass, Harvey Mansfield and the Institute for Marriage and Public Policy lays out the general argument for why social science "consensus" reports like the APA's should be regarded more as political documents than science, and why social science in general and fields like sociology and psychology in particular are especially prone to left-leaning political bias that colors and enforces such consensuses. The brief describes the characteristics of the existing research:
One prominent study, for example, relied on a sample recruited entirely at lesbian events, in women's bookstores, and in lesbian newspapers. Others relied on samples as small as 18 or 33 or 44 cases. And most of them relied heavily on reports by parents about their children's well-being while the children were still under their own care.
(Citations omitted). This is the kind of "random" sampling that gives you internet polls won by Ron Paul. The perils of self-reporting by parents are especially noteworthy in this context, where the reporting parents are fully aware of the political purposes to which the research will be put. Yet the proponents adopt the familiar tactic of declaring that a "consensus" of a large number of studies endorsed by a large number of politically sympathetic scientists is conclusive of the issue, regardless of the actual scientific rigor of the studies themselves. We have seen this movie many times before.
Salon, for example, touts one long-running study of 78 children of lesbian families over 25 years that found "zero percent of children reported physical or sexual abuse - not a one." Ezra Klein cites the author of an American Academy of Pediatrics brief in favor of SSM who describes this as "[t]he best study" available. But given the number of families involved and the self-selected nature of such a long-running sample, it is a stretch to consider this a significant finding applicable to the population as a whole. Albert Pujols opened last season by going 116 plate appearances without a home run; this does not make it irrational to be concerned about pitching to Albert Pujols.
The most detailed effort yet to open the hood and see what is actually inside these studies was performed by Loren Marks of the LSU School of Human Ecology, who published a paper in Social Science Research in 2012 examining the 59 published studies behind the APA's breezy assertion of a scientific consensus. (Marks did not examine the other 8 studies cited by the APA, which were "unpublished dissertations.") Marks opened his paper by comparing the research on same-sex families to the by-now bulletproof research showing the advantages of traditional married parents over "cohabiting, divorced, step, and single-parent families," noting that those studies used "large, representative samples" such as "four nationally representative longitudinal studies with more than 20,000 total participants." By contrast, Marks found:
-"[M]ore than three-fourths (77%) of the studies cited by the APA brief are based on small, nonrepresentative, convenience samples of fewer than 100 participants. Many of the non-representative samples contain far fewer than 100 participants, including one study with ﬁve participants"
Nobody who has not already made their mind up would find research of this nature conclusive of anything.
One recent study that attempted to fix the problems Marks identified was published in the same edition of the same journal by University of Texas professor Mark Regnerus. Regnerus' study had - as he freely admitted - limitations of its own, discussed below. But the reaction to Regnerus' work - in contrast to how the badly flawed studies examined by Marks were swallowed uncritically - vividly illustrates why credible, unbiased research on this topic is so hard to come by.
Regnerus set out to do a truly randomly selected study over a large population sample, and to remove the problem of biased parental reporting by interviewing adults about their childhood experiences. His sample covered 15,000 respondents, and despite the subsequent firestorm, no problem was ever identified with his methods or the data he gathered. Unlike most of the prior research, the respondents with a "gay father" or "lesbian mother" (more on which below) were, respectively, 48% and 43% black or Hispanic. His findings were dramatic across numerous types of outcomes, detailing greatly elevated incidence of parental rape, parental pedophilia and suicidal tendencies; as he explained his findings,
Even after including controls for age, race, gender, and things like being bullied as a youth, or the gay-friendliness of the state in which they live, such respondents were more apt to report being unemployed, less healthy, more depressed, more likely to have cheated on a spouse or partner, smoke more pot, had trouble with the law, report more male and female sex partners, more sexual victimization, and were more likely to reflect negatively on their childhood family life, among other things.
But Regnerus' effort faced the usual problem: his random sample, large as it was, turned up only a little over 200 respondents who said they had a parent who had been in a gay or lesbian relationship. And of those 200, only two - two! - reported that the parent's relationship was stable enough to cover their entire childhood (in both cases, the parents were lesbians):
In his original article, he reported that an initially-screened population of 15,000 young adults aged 18-39 yielded a set of 163 who said their mothers had had a same-sex relationship sometime during their childhood. (There were only 73 who said this of their fathers.)
As Regnerus' most prominent critic notes, "[a] woman could be identified as a 'lesbian mother' in the study if she had had a relationship with another woman at any point after having a child, regardless of the brevity of that relationship and whether or not the two women raised the child as a couple." (Although the claim that he included one-night stands is silly, given that these were relationships recalled by their children in adulthood. The charge that Regnerus improperly classified people with homosexual relationships as homosexuals is also particularly odd, given the Left's usual insistence for Constitutional law purposes that homosexuality is an immutable characteristic, and it effectively reads the children of bisexuals out of the debate.)
Anyone familiar with how liberals respond to scientific findings they don't like can predict what happened next: immediately upon the publication of his study, Regnerus was subjected to a campaign of vilification aimed at discrediting his work, destroying his professional reputation and deterring any other scholar from pursuing a similar line of inquiry. The University of Texas convened an audit of his study to deal with the pressure campaign, and the editor of the journal hired a prominent, vocal critic of Regnerus to audit the peer-review process that led to its publication. Andrew Ferguson and Matthew Franck detail the blow-by-blow of this campaign to destroy Regnerus.
And by and large, Regnerus passed the audits. The UT audit found "no falsification of data, plagiarism or other serious ethical breaches constituting scientific misconduct." The journal audit grudgingly concluded the journal editor acted correctly, despite a lot of sniping by its hostile author at Regnerus and the peer reviewers. But the liberal blogs and newspapers continued to act as if Regnerus had been unmasked as a charlatan.
Twenty-seven scholars (including Marks) signed a joint letter defending Regnerus' sample selection:
[T]he demographics of his sample of young-adult children of same-sex parents - in terms of race and ethnicity - come close to resembling the demographics of children from same-sex families in another large, random, and representative study of gay and lesbian families by sociologist Michael Rosenfeld that has been well received in the media and in the academy...
(Emphasis mine; footnotes omitted).
The vehemence of the attacks on Regnerus, by people who were happy to tout far less reliable studies, ought to be a gigantic red flag to anyone tempted to view the social science in this area as the work of disinterested professionals who care only to find the truth. And any tour of the work of Marks, Regnerus and their critics should disabuse anyone of the notion that we have ironclad-for-all-time scientific proof of equal outcomes that should be cast permanently into Constitutional law. Given the many common-sense reasons, grounded in experience, to think that both fatherhood and motherhood have unique value, the overwhelming scientific evidence that traditional marriage is superior to all the other family structures that have been studied, the relative recency and rarity of same-sex parent households and the current state of the science, the most logical answer is that both Congress and the voters of the State of California could rationally conclude that a family with a mother and a father is preferable to a family with two mothers and no father or two fathers and no mother.
C. Traditional Marriage In Crisis
These are all reasons why the state should consider traditional marriage a more valued partner in bringing children into the world than SSM. By contrast, the battery of serious social problems that follow from unmarried pregnancies is - again, for obvious reasons - almost entirely a heterosexual phenomenon, and a growing one. As a result, the state's powerful interest in promoting opposite-sex marriage as an alternative to opposite-sex childbearing out of wedlock has no comparable counterpart among same-sex couples.
Is traditional marriage struggling? Absolutely, and that is precisely why this seems a most perverse time to bind the hands of the state in choosing its best ally in this process. Child-bearing trends in the U.S., as elsewhere, are headed in a very bad direction, both in terms of dramatically fewer children being born and a higher proportion being born out of wedlock:
20-somethings are driving America's all-time high level of nonmarital childbearing, which is now at 41% of all births, according to vital-statistics data from the Centers for Disease Control and Prevention....Between 1990 and 2008...the rate of nonmarital childbearing among 20-something women has risen by 27%.
That leads to an epidemic of fatherlessness:
In every state, the portion of families where children have two parents, rather than one, has dropped significantly over the past decade. Even as the country added 160,000 families with children, the number of two-parent households decreased by 1.2 million. Fifteen million U.S. children, or 1 in 3, live without a father, and nearly 5 million live without a mother. In 1960, just 11 percent of American children lived in homes without fathers.
Scandinavian family dissolution has only been worsening. Between 1990 and 2000, Norway's out-of-wedlock birthrate rose from 39 to 50 percent, while Sweden's rose from 47 to 55 percent. In Denmark out-of-wedlock births stayed level during the nineties (beginning at 46 percent and ending at 45 percent). But the leveling off seems to be a function of a slight increase in fertility among older couples, who marry only after multiple births (if they don't break up first). That shift masks the 25 percent increase during the nineties in cohabitation and unmarried parenthood among Danish couples (many of them young). About 60 percent of first born children in Denmark now have unmarried parents. The rise of fragile families based on cohabitation and out-of-wedlock childbearing means that during the nineties, the total rate of family dissolution in Scandinavia significantly increased.
Correlation is not causation, but these are the three countries that were first to adopt same-sex marriage; what is debatable is whether the collapse of traditional marriage in those countries and the adoption of same-sex marriage were really both symptoms of a common, larger cause.
D. Strategies For Ignoring The Evidence
Defenders of SSM have two tried-and-true gambits to avoid the obvious and dramatic disparities between the two institutions in their relationship to the core roles of childbearing and childrearing. One is to argue that it's required for defenders of the current marriage laws to not only show that traditional marriage is different from SSM in ways that are important to society, but also provide social-science evidence that classifying them identically will directly cause quantifiable harm to traditional marriage. But this puts the cart before the horse. The first question is whether there's a rational basis for drawing a distinction, not providing conclusive social-science evidence that failure to make the distinction will cause quantifiable harm. We do not live in a world of infinite resources, and rational basis review traditionally allowed legislatures very broad latitude in choosing how to deploy them. If traditional marriage is much more intimately connected to the bearing and raising of children than SSM, then the state's interest in encouraging married child-rearing and discouraging unmarried child-rearing is ample justification for prioritizing marriage among opposite-sex couples, as the Defense of Marriage Act does, or for that matter reserving the privileged social status of the title "marriage," as Proposition 8 does.
The other argument is that the widely differential rates of childbearing are somehow a pretext because the state does not actually require opposite-sex couples to have children or even be able to have children. To start with, this is an interesting argument coming from liberal commentators who commonly rely on 'state of the median citizen' social-science data. Moreover, traditionally, infertility was grounds at law for divorce in states that had fault divorce regimes.
But even leaving that aside, there are multiple reasons why the state doesn't intrude on this question at the time of marriage. The most obvious is the numbers: opposite sex couples tend to have children, so simply confirming that a couple is a male and a female is a fairly strong basis for presuming the ability and intent to have kids without asking more invasive questions before issuing a license. Note the chart above showing rates of parenthood over 80% in the peak childbearing years. And young couples who aren't sure if they want kids may end up having them anyway, while couples who are past the age of having children often already have children from previous marriages and will provide them with a marital home. Nothing in rational-basis law forbids the government from providing a benefit to one group who is significantly more likely to produce the desired end.
II. Marriage and Divorce
A. Fewer Marriages?
A second major distinction between SSM and traditional marriage is that, even with traditional marriage in its current, battered state, experience has shown that same-sex couples get married at lower rates and may be less likely to stay together long-term. The rates of legal coupling are low to begin with:
[Among] marriage, civil unions, domestic partnerships, and reciprocal-beneficiary relationships...the most recent U.S. Census data reveal that, in the last 15 years, only 150,000 same-sex couples have elected to take advantage of them - equivalent to around one in five of the self-identified same-sex couples in the United States....in the first four years when gay marriage was an option in trailblazing Massachusetts, there were an average of only about 3,000 per year, and that number included many who came from out of state.
The Williams Institute concluded that, "When a state allows marriage for same-sex couples, over 60 percent of those who marry come from other states" - a bubble effect that will disspate further if the institution stops being a novelty.
The good news, for opponents or skeptics of SSM, is that this suggests why political adoption of SSM is not actually that big a deal; the number of such unions is likely to remain vanishingly small. Saying that political enactment of SSM will destroy traditional marriage is like saying that eating a pint of Ben & Jerry's will make you fat. This reality is one of the main reasons why the storm and fury over this issue is so overrated compared to, say, 900,000 abortions a year.
B. More Divorces?
If same-sex marriages are rare, there are also indications (although the data on this is more uneven) that they may be less stable than opposite-sex marriages - the opposite of what you might expect in a population in which so few couples settle down in the first place. The Scandanavian experience provides long-term data:
In Norway, male same-sex marriages are 50 percent more likely to end in divorce than heterosexual marriages, and female same-sex marriages are an astonishing 167 percent more likely to be dissolved. In Sweden, the divorce risk for male-male partnerships is 50 percent higher than for heterosexual marriages, and the divorce risk for female partnerships is nearly double that for men. This should not be surprising: In the United States, women request approximately two-thirds of divorces in all forms of relationships - and have done so since the start of the 19th century - so it reasonably follows that relationships in which both partners are women are more likely to include someone who wishes to exit.
According to UCLA's Williams Institute, two-thirds of legally recognized same-sex couples in the United States are lesbian. (Solely on the "marriage" front, in Massachusetts's first four years, this statistic was 62 percent.)
Early experience in jurisdictions like the U.S. and the U.K. where same-sex marriage is relatively new tend to show a lower divorce rate for same-sex couples - but that should not be surprising, given that the early rush to the altar includes a backlog of couples who have already been together for years and are less likely than ordinary newlyweds to split. As California-based "non-traditional family law" practitioner Frederick Hertz writes at the Huffington Post:
I suspect that this can be attributed to the types of couples getting married in these early years of same-sex marriage, and not a testament to the stability of lesbian and gay relationships. There's no statistical data out yet on this particular dynamic, but in my experience as a lawyer working with same-sex couples, the partners getting married tend to be those who have already been together for some time. They already have weathered the stormy middle years of coupledom, and they are consciously committed to being a family. For that reason, we should not be surprised that they are not rushing to get divorced so quickly.
We can say with some certainty that experience shows that same-sex couples are much less likely to marry than opposite-sex couples. As to whether those marriages will be as durable, the most charitable conclusion is that we are a long way from having data that would show comparable rates of marital stability and longevity.
C. Traditional Marriage In Crisis, Redux
As I noted above, traditional marriage's virtues have not prevented it from suffering serious social decay as the primary unit for bearing and raising children. This has, in fact, been part of a broader loss of respect and fidelity to traditional marriage:
Only about half of Americans are married now, down from 72 percent in 1960, according to census data. The age at which one first gets married has risen by six years since 1960, and now only 20 percent of Americans get married before the age of 30. The number of new marriages each year is declining at a slow but steady rate. Put simply, if you are an unmarried adult today, you face a lower chance of ever getting married, a longer wait and higher divorce rates if you do get married. The Pew Research Center recently found that about 40 percent of unmarried adults believe that marriage is becoming obsolete.
The downward trend has continued in the latest Pew study, with the rate of new marriages per 1000 eligible adults dropping from 41.4 in 2008 to 36.4 in 2011, a 12% drop just since President Obama took office.
California has been the leader in this field, long ago obliterating the distinctions between marriage and cohabitation with liberal divorce laws, "palimony" and opposite-sex civil unions, all of which have been used as arguments in the Prop. 8 case for why there's not much left of traditional marriage in California to distinguish it from same-sex civil unions.
The causes of the decline of traditional marriage are numerous and beyond the scope of this essay. But with all the ground marriage has lost, the last thing it needs is a Supreme Court declaration that its role in childbearing and rearing and its traditional status in society and religion have no rational value.
I've stuck here to the mostly-quantifiable nuts and bolts of family formation, childbearing and rearing, and family dissolution. Of course, there's much more to marriage than that, as our social and religious traditions have long recognized. It is important to bear in mind that the Supreme Court originally cited the longstanding traditional status of marriage as the basis for the not-anywhere-in-the-text "fundamental" right to privacy, in the 1965 Griswold v Connecticut decision:
Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
Indeed, as I have discussed before, the Ninth Circuit discussed at length the traditional social status of marriage as its basis for concluding that the challengers to Proposition 8 had suffered an injury to Constitutional rights by being unable to share in that status. Yet, in a bait-and-switch, the challengers argue that tradition only counts on one side of the scale: that they can demand a free ride on the social status of traditional marriage while denying that the courts can consider where that social status came from.
Tradition alone is an insufficient basis, of course, to sustain invidious forms of discrimination such as slavery. But as to the pragmatic question of what works for society, ignoring tradition is both anti-empirical and anti-democratic: anti-empirical because it turns a blind eye to the actual, practical experience of a much larger sample size of people than any social science study can measure, and anti-democratic because common experience is the very reason why we have government by and of the people in the first place rather than rule by self-appointed experts.
IV. Some Concluding Considerations
In evaluating and predicting what the Supreme Court might do in the two cases before it, it's important to recognize that - as is common in big, controversial cases - there are a welter of procedural and structural issues before the Court that could lead to the cases being disposed of without reaching the core question of equating the two types of marriage. For example, I'm sympathetic on policy grounds to the federalism argument in the DOMA case, specifically that Section 3 of DOMA should have allowed federal benefits such as tax treatment to be determined on the basis of whether the marriage was recognized in the state where the couple resides, rather than imposing a uniform federal definition applicable to all federal programs (some federal definition being needed for areas where the federal government has plenary legislative powers). The argument holds that domestic relations are traditionally left to the states under the Tenth Amendment, and thus even federal programs must use state-law definitions. But I am somewhat skeptical of the merits of the federalism argument as a constitutional mandate, as it could have far-reaching and unanticipated effects if there is not a logical stopping point. (Of course, a federalism resolution to the DOMA challenge becomes an empty husk if the Proposition 8 case tells the states to recognize SSM).
The California Proposition 8 case is not so easily disposed of; the Court can likely duck the issue only by declaring that the voters of the state of California are effectively not entitled to have their decisions represented in court, or that the challengers had no standing to sue. (This is a topic for another day, but the tendency of this sort of thing to happen is an argument for why popular referenda are not really a very effective tool - they are almost always challenged in court, and the voters are usually too disorganized and defenseless to stand up against a political establishment that is unwilling to obey the voters).
The libertarian argument for cutting the Gordian knot of whether to equate SSM with traditional marriage is to suggest that government get out of the marriage business altogether. Like so many libertarian arguments, this presents an excellent academic/"thought experiment" exercise, but is completely impractical as a real-world political solution. There are over a thousand federal laws that reference marriage, and many multiples of that across the country, including the whole body of family law (child custody, divorce courts, adoption, inheritance). Uprooting the entire structure and replacing it with something completely different - even if it was the clearly superior policy option - would be the political work of a generation, requiring a massive multi-jurisdictional legislative effort that would crowd out dealing with any other problem for many years. There is a good deal of sense and wisdom to the broad libertarian observation that we drive ourselves deeper into these debates every time we expand government's role in education, healthcare, retirement and other areas that are deeply entangled with family life (the Windsor DOMA case, for example, is an estate tax case). But there is simply no practical option to take the ball of marriage and go home, abandoning the debate over how to define marriage in the laws that remain; that just leaves the field entirely to left-wingers, who never, ever propose abandoning the levers of government.
And it won't stop there; it never does. I've written before of the Seven Stages of Liberal Legal Activism:
1. It's a free country, X should not be illegal.
Dana Loesch neatly sums up a handful of the recent examples of why the next stage from a Supreme Court ruling on "marriage equality" will be the legal persecution of anyone who, on religious grounds, refuses to get involved in the same-sex marriage business, a process for which the controversy over the HHS contraception mandate was merely a dry run. (More here with similar examples from the Canadian experience; in Denmark, the Parliament voted to mandate that churches perform same-sex weddings).
Now, many of the people pushing "marriage equality" and changing their Facebook profiles to a red equals sign are, of course, well-meaning; they have gay friends or relatives, or they're gay themselves, or they simply like the old-fashioned American ideal of equality. Who's not in favor of equality for everybody? But anyone who lived through the Sixties or Seventies remembers well how much damage can be done by well-meaning liberals who never understand what they are tearing down, or who they are empowering, or why our system of government has checks, balances, limitations and written laws. Good intentions are never an adequate substitute for the truth.
As conservatives, we take the world as it is. Marriage, as traditionally understood, has served us well, and today is in trouble for reasons that go far beyond SSM. But if the Supreme Court holds as a matter of law that many of the things of value in marriage - its unique role in bearing and begetting children, the distinct value of mothers and of fathers, its tendency to endure over time and promote monogamy, its social status developed by centuries of experience, its sacramental role in many major religious traditions - are irrational considerations, forbidden to even be considered by government policymakers, then we are headed down a very dark road indeed, one with no light of experience or historical precedent to guide us.
What could go wrong?
Disclaimer: as usual, my opinions are my own and do not represent those of my employer, clients, or anybody else but me.
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February 25, 2013
POLITICS: Jane Mayer's McCarthyist Attack on Ted Cruz
The New Yorker's Jane Mayer, in a pair of blog posts, served up the latest attempted Democratic Party talking point on freshman Texas Senator Ted Cruz: that Senator Cruz is the second coming of Joe McCarthy. (ThinkProgress coordinates with a predictable illustration for those too simple-minded to get Mayer's point). As it happens, I have some firsthand knowledge of the subject of Mayer's vague, thinly-sourced hit job. She'll have to do better next time, because Ted Cruz is right about Harvard Law School in the mid-1990s. If she'd talked to more people, she might have figured that out.
Here's the part of Cruz's remarks at a 2010 event that Mayer presents as shocking evidence of Cruz's mendacity:
He then went on to assert that Obama, who attended Harvard Law School four years ahead of him, "would have made a perfect president of Harvard Law School." The reason, said Cruz, was that, "There were fewer declared Republicans in the faculty when we were there than Communists! There was one Republican. But there were twelve who would say they were Marxists who believed in the Communists overthrowing the United States government."
Leaving aside Mayer's failure to check a fairly basic fact in the president's biography (Obama graduated in the spring of 1991; Cruz entered HLS in the fall of 1992), Cruz is absolutely right on the basic point here: there were multiples more Marxists on the Harvard Law faculty at the time than open Republicans. I know because I was there. I was a year behind Ted at Harvard, and was president of the HLS Republicans in 1994-95, when Ted was a third-year law student. I can't say I knew Ted well at the time (he was more involved in the Federalist Society and Law Review), but we crossed paths a few times, and even then everyone knew he was a superstar who was going places in life. He was undoubtedly reflecting on the same things I saw in those days.
Aside from a generic denial by a current Harvard spokesman, Mayer's only source for the original article is Charles Fried, my old constitutional law professor who was - at the time - the faculty advisor for the HLS Republicans, but has in more recent years become a vocal spokesman for all things Obama. On the one hand, Fried argues that Cruz has understated the GOP presence in the extensive Harvard faculty:
I can right offhand count four "out" Republicans (including myself) and I don't know how many closeted Republicans when Ted, who was my student and the editor on the Harvard Law Review who helped me with my Supreme Court foreword, was a student here.
Ironically, given the tenor of Mayer's article, she never asks Fried to name any of these people, but just takes him at his word that he has a list of Republicans on the faculty. Now, closeted Republicans may have been known to Fried in the faculty lounge, but they were of little help to those of us in the student body, seeing as how both the liberals and the left-wing radicals were all very open and vocal. At the time, I was aware of only one other Republican or conservative of any stripe on the faculty besides Fried: Mary Ann Glendon, who was busy during much of 1994 and 1995 with activities on behalf of the Vatican (which she represented at a 1995 conference in Beijing). The fact that we had so little representation on the faculty was a running joke among conservative students; I still have the t-shirts we printed after the 1994 elections:
When Fried was appointed to the Massachusetts Supreme Judicial Court in 1995, we legitimately feared that we would not be able to find a faculty advisor, which of course any student group needs; as it turned out, Professor Glendon stepped in with Fried's departure. It may be the case that there were two other Republicans on the faculty, but to this day I have no idea who they were; I assume Ted Cruz didn't either.
Of course, the more controversial part of Senator Cruz's equation is his charge that there were Marxists on the faculty. Mayer weakly allows:
It may be that Cruz was referring to a group of left-leaning law professors who supported what they called Critical Legal Studies, a method of critiquing the political impact of the American legal system. Professor Duncan Kennedy, for instance, a leader of the faction, who declined to comment on Cruz's accusation, counts himself as influenced by the writings of Karl Marx. But he regards himself as a social democrat, not a Communist, and has never advocated the overthrow of the U.S. government by Communists. Rather, he advocated widening admissions at the law school to under-served populations, hiring more minorities and women on the faculty, and paying all law professors equally.
Cruz's spokeswoman confirmed, in response, that this is precisely the faculty clique he referred to, and Mayer does not dispute their numbers on the faculty. But her description is a rather serious whitewash of what Kennedy and the other "Crits," as they were colloquially known on campus, professed and taught: a menu of class conflict, false-consciousness theory and subversion of property rights that would have fit comfortably on the syllabus at Patrice Lumumba University. Here's how one of Harvard's own courses describes the movement:
A self-conscious group of legal scholars founded the Conference on Critical Legal Studies (CLS) in 1977. Most of them had been law students in the 1960s and early 1970s, and had been involved with the civil rights movement, Vietnam protests, and the political and cultural challenges to authority that characterized that period. These events seemed to contradict the assumption that American law was fundamentally just and the product of historical progress; instead, law seemed a game heavily loaded to favor the wealthy and powerful. But these events also suggested that grassroots activists and lawyers could produce social change.
Now, it's something of a hyperbolic flourish to describe armchair radicals of this sort as people "who believed in the Communists overthrowing the United States government," and as Fried notes, the fall of the Soviet Union in 1991 had necessarily pushed a lot of previously proud Marxists to go underground and readjust their rhetoric. But as even Matt Yglesias conceded, "[t]he conclusion that ...a follower of Marx's ideas is, like Marx, a Communist seems perfectly plausible." The fact that the fall of Communism made the Crits somewhat abashed about their intellectual heritage and its logical conclusions is no reason to discount the thorough Marxist influence in their work, or shrink from asking why arguably the nation's leading law school should employ several times more of them than Republicans.
Cruz made quite clear who he was talking about and why, and any fair-minded observer can draw their own conclusions - unlike, say, when the Senate Majority Leader last summer claimed an unnamed, anonymous source who told him Mitt Romney hadn't paid his taxes. Cruz didn't stretch to connect people via tenuous associations, like those who tried to paint Sarah Palin as a secessionist for a marginal political party her husband briefly joined or Rick Perry as a racist for something written on a rock by a person who sold land to his father. He called a bunch of Marxist professors Marxists, and while he may have thrown in a rather excessive dramatic flourish, his speech drew the obvious conclusion to where Marxism necessarily leads. If Mayer had done her homework, she would have recognized what pitiful support this provides for the talking points she was laboring to shore up.
But for a freshman Senator to draw the kind of fear that generates this type of assault from the New Yorker, he must be doing something right.
Posted by Baseball Crank at 12:00 AM | Law 2009-13 | Politics 2013 | Comments (13) | TrackBack (0)
February 1, 2013
HISTORY: Reflections on the American Revolution, Part III of III: The Militia
How did thirteen colonies, with a barely functioning central government and a thrown-together, underfunded and poorly supplied army of constantly fluctuating size and composition, win the Revolutionary War? One reason was the colonies' ability to rely on their common citizens to supplement the Continental Army with local militia. I've looked previously at the demographic and physical conditions and foreign alliances that shaped the war and the generals who led the armies. Let's conclude this tour of the American Revolution with the militia.
The Militia: Americans then and now have had a romantic attachment to the citizen militia, epitomized by the Massachusetts "minutemen." The importance of the militia as both a bulwark against tyranny and a line of national defense was, of course, famously the backdrop for the Second Amendment and other militia-related clauses in the Constitution (including allowing Congress to arm them and the President to command them at need "to execute the Laws of the Union, suppress Insurrections and repel Invasions"). Yet it was ultimately the Continental Army, not the militia, that had to do the bulk of the work needed to win the war. Nonetheless, the story of the American victory cannot be told without the militia.
Massachusetts: The militia's finest hour came at the beginning, before there was a Continental Army: Concord and Bunker Hill. At Concord, in April 1775, the sudden appearance of the Massachusetts militia in significant force, firing largely from behind the cover of trees and stone walls, drove the (mostly inexperienced) redcoats back to Boston with surprising casualties. At Bunker Hill two months later, Massachusetts militia entrenched largely on high ground and firing from behind fortifications and stone walls inflicted a staggering casualty rate of almost 50% on the British regulars (even higher among the officer corps); the militia then beat a mostly orderly retreat when they were finally overcome. Those two battles left the British besieged in Boston, where they would remain for nearly a year until dislodged by Henry Knox's artillery in March 1776. Bunker Hill also traumatized the British command, haunting their thinking about attacks on entrenched positions for the rest of the war. When the Continental Army was assembled to carry on the siege, much of its manpower and officer corps was drawn from the militia, including key leaders like Knox and Nathanael Greene. Moreover, the artillery that liberated Boston had been seized by militia in 1775 when Ethan Allen and Benedict Arnold, leading the Vermont militia (the Green Mountain Boys) in an expedition supported by Massachusetts and Connecticut militia, captured the lightly-defended Fort Ticonderoga. And without the militia, the army in 1775 would have been unarmed. The Continental Army being chronically short on supplies and having no official, standard weapon, recruits early in the war fought with whatever guns they brought to the army, either their own or those supplied by the state governments - but while that system was essential to forming an army from scratch, Washington found it unsatisfactory to carry on the war. As a 1981 U.S. Army study described the situation:
It was the policy of the Continental Congress in 1775 to "hire" arms, which meant encouraging each new soldier to bring his own gun, a practice that had been common in militia service. Having established this policy, Congress then left the task of equipping the troops to the Commander in Chief. More often than not, however, the men arrived at camp without arms. When Washington undertook to form a Continental Army from the forces before Boston in 1775, he initiated the first of several measures designed to arm his troops. He began by seeking to retain for the use of the new Continental force the muskets that the men hurrying to the defense of their country had brought to Cambridge. He ordered that no soldier upon the expiration of his term of enlistment was to take with him any serviceable gun. If the musket was his private property, it would be appraised, and he would be, given full value for it. All arms so taken and appraised were to be delivered into the care of the Commissary of Military Stores. To make doubly sure that the weapons would be retained for Army use, Washington threatened to stop the last two month's pay due a soldier if he carried away his gun.
Among the factors contributing to the shortage of arms in the spring of 1776 was the carelessness of the soldiers in maintaining their arms in good working order. An examination of the weapons of the army in New York revealed them to be in shocking condition. Washington issued an order to the regimental commanders to have the arms put in good order as soon as possible and to see that each musket was equipped with a bayonet. Those soldiers who had lost the bayonets they had been issued were to pay for new ones, and if any soldier had allowed his gun to be damaged by negligence, the cost of its repair was to be deducted from his pay. This order by no means eliminated negligence in caring for weapons. It persisted throughout the war....
There were other warning signs of the militia's limitations in 1775 as well: the militia at Bunker Hill had strategic depth but failed to use it, being too poorly organized to bring reserve units into the fight in time, and the Green Mountain Boys didn't linger to garrison Fort Ticonderoga once its liquor supplies had run out. An army constituted for the long haul would have to do better.
New Jersey: Problems persisted, but so did the militia's contributions. Washington was disappointed when more New Jersey and Pennsylvania militia didn't show up to assist his campaigns in the region between late 1776 and the summer of 1778. But the New Jersey militia played a valuable role in the series of skirmishes known as the New Jersey Forage War in the winter of 1776-77. Acting sometimes alone and sometimes with modest support from the Continental Army, the militia repeatedly staged ambushes and opportunistic attacks on British and Hessian detachments looking for food and forage for their animals, inflicting a slow bleed of casualties and leaving the enemy jittery and under-supplied: a classic guerrilla campaign, although the word hadn't been coined yet. The New Jersey militia would eventually even draw praise from Washington, long a critic of militia, for its ongoing role in assisting Greene in turning back the final Hessian efforts in 1780 to assail Washington's position in Morristown; Washington wrote of the militia after the Battles of Connecticut Farms and Springfield that "The militia deserve everything that can be said on both occasions. They flew to arms universally and acted with a spirit equal to anything I have seen in the course of the war."
Saratoga: Militia were also important to the pivotal Saratoga campaign. Allen and Arnold's capture of Fort Ticonderoga had cut the British lines of communication in two, severing Guy Carleton's Canadian forces from the Thirteen Colonies. General Burgoyne's expedition, marching south from Canada, was designed to turn the tables. His aim was to seize control of the Hudson River valley and link up with Howe and Clinton in New York, reuniting the British forces while cutting New England off from the rest of the colonies. It started well, as such things often do; Burgoyne seized the forts in early July and scattered the Continental Army's forces in the region with barely a fight. But Burgoyne didn't count on the patriot militia.
Burgoyne's plan called for him to link up with Barry St. Leger, who was marching southeast down the Mohawk River that runs through Western and Central New York and flows into the Hudson just north of Albany. The plan - and reason for the two British forces to march separately - was for St. Leger to gather with him the Iriquois Six Nations and the Loyalist militia. St. Leger laid siege to Fort Stanwix, which controlled the Mohawk River; to relieve the siege, local militia leader Nicholas Herkimer hastily raised about 800 militia, a few dozen Oneida Indians (one of the two Iriquois tribes that sided with the colonists) and wagonloads of supplies. St. Leger chose to meet Herkimer with a thousand men, the bulk of which were Mohawk and Seneca Indians, who ambushed Herkimer as his column wound through a densely wooded ravine on August 6, 1777. The result was the savagely bloody Battle of Oriskany, depicted above. The militia was caught by surprise, several key officers were killed in the opening volley, and Herkimer had his leg broken falling from his horse (he would die of the wounds a few days later). But the militia fought on, Herkimer directing the battle while propped against a tree and regrouping his men to counterattack after a downpour. The battle ended in a British victory, with enormous American casualties that broke Herkimer's militia. But heavy losses from the battle demoralized St. Leger's Indian allies and Loyalist militia, who had expected to play a support and ambush role and let the British and Hessians do the heavy lifting, and instead found themselves fighting a desperate, cornered militia at close quarters. Most of St. Leger's support melted away, greatly weakening his force and leading to its ultimate failure to capture Fort Stanwix (which was relieved by Benedict Arnold on August 22).
While St. Leger was bogged down on his right, Burgoyne faced a second militia threat from his left that ultimately cost him nearly 1,000 casualties, more than 10 percent of his expedition. Approximately 2,000 New Hampshire, Massachusetts and Vermont militia under John Stark (a veteran of Bunker Hill who had served for a time under Washington in the Continental Army before returning home), who raised this force in a little over a week, set out to harass Burgoyne's advance. Burgoyne sent a detachment of Hessians - considered some of Europe's best professional troops - to gather supplies and intercept Stark before he could do more damage or link up with the Continental Army. At the ensuing August 16, 1777 Battle of Bennington (actually located in present-day New York near Bennington, Vermont), Stark's militia faced the Hessians in a pitched battle, albeit with the advantage that the Hessians arrived in two groups of around 600, allowing Stark to defeat them in detail with a large numerical advantage. Stark's militia surrounded the elite Hessian dragoons holding an elevated redoubt; the Hessian commander, Friedrich Baum, was mortally wounded in a last, desperate saber charge, and hundreds of his men surrendered. Few of the Hessians made it back to Burgoyne's army.
As Burgoyne marched south, weakened by the failure of St. Leger, the loss of the Hessians and the defection of his Native American allies and with the Americans felling trees in his path, the Continental Army under Horatio Gates was bolstered by the arrival of thousands of militia, to the point where Burgoyne may have been outnumbered more than two-to-one at the second and final Battle of Saratoga. Militia units fought in the line of battle with the Continentals at Saratoga, which rivals Yorktown as the most important American victory of the war. More important than anything the militia did at Saratoga itself, their presence on the battlefield gave weight to the Continental forces that Burgoyne could not overcome. His surrender on October 17, 1777 permanently ended the effort to divide the colonies and link up with the British forces in Quebec, and was crucial to bringing France into the war.
The South: In the South, the militia had to come more directly to the rescue of the regulars. When the British moved the focus of their offensive operations to the South in 1779, they found a Continental Army much less well prepared and led than Washington's army in the north. Cornwallis routed the defenders of Savannah in 1779 and Charleston in May, 1780, followed shortly by Tarleton's massacre of a smaller Continental Army force at Waxhaws. Horatio Gates attempted to replicate his victory at Saratoga by rallying the militia around a new Continental Army force, but was wiped out by Cornwallis' army (under Lord Rawdon) at Camden on August 16, 1780 (Washington regarded Camden as another foolhardy attempt to rely on militia). Between Charleston and Camden, Cornwallis had captured over 6,000 prisoners, including most of the Continental Army left in the South. The road seemed open to claim the prizes of North Carolina and Virginia.
It didn't work out that way. Heavy-handed Loyalist militias, first under Christian Huck and later Patrick Ferguson, combined with Tarleton's brutality at Waxhaws, enraged the population of the Carolinas and Eastern Tennessee. The first militia victories, at Ramsour's Mill in North Carolina in June and the killing of Huck in South Carolina in July, were small, almost spontaneous engagements (although a study of the records of the militia who fought Huck showed that a number were Continental Army veterans and most had been fighting the British in one form or another since 1775). A landmark of the growing resistance came in October 1780, when a muster of nearly a thousand militia from the Carolinas, Virginia and Tennessee cornered Ferguson in the forest at King's Mountain near the North/South Carolina border, killing Ferguson and destroying his Loyalist militia. In November, Tarleton's feared British Legion - including hundreds of British regulars - were bloodied and beaten by the militia at Blackstock's Farm, South Carolina. There were scores of other, smaller ambushes and militia-on-militia engagements in this period, some with the character of a blood feud.
The militia's victories in the Carolinas begat more American recruitment and more caution for Cornwallis, buying time for Greene to enter the southern theater in late 1780 and re-organize the regulars. But with only a small regular force of a few thousand men, Greene still needed plenty of help from the militia. At Cowpens, South Carolina on January 17, 1781, a combined force of militia and Daniel Morgan's crack riflemen broke the back of Tarleton's British Legion, killing or capturing more than 80% of Tarleton's 1,150-man force and effectively ending British control over South Carolina. Probably less than half of the American force at Cowpens was Continental regulars. The major engagement of the campaign came at Guilford Court House, North Carolina on March 15, 1781, at which Greene (while nominally losing the battle) inflicted sufficient casualties to convince Cornwallis (himself down to less than 2,000 men) to fall back to Virginia, where he would consolidate his forces only to meet his great defeat. As at Saratoga, while the fiercest fighting was done by the Continental regulars, the militia were important at Guilford Court House for their sheer numbers; Greene outnumbered Cornwallis more than two-to-one with a force that was probably around 70-80% militia.
The West: Finally, the Western theater of the war was almost entirely conducted by militia; beyond Western New York and Pennsylvania, there simply wasn't much the Continental Army could do to support operations in the West. The one time in 1781 when the army sent a detachment to assist George Rogers Clark in his campaigns in what became the Northwest Territory, they were defeated en route. This left Clark, a Virginia militia commander, to seize outposts in present-day Illinois and Indiana using Virginia and Kentucky militia. The militia also conducted both offensive and defensive campaigns in the West against the Native American tribes. (The Spanish also made use of militia in the West and South during the war, both in the defense of St. Louis and in Bernardo de Galvez' campaigns in Louisiana and the Floridas).
The Militia, Assessed: The militia were never an adequate substitute for a regular army. Bennington and Bunker Hill notwithstanding, they were often not useful in conventional engagements, especially offensive operations. They maneuvered poorly (e.g, the failure of the militia to arrive in proper position to support the Continental Army at Germantown and Trenton), a key weakness in 18th century warfare, and when not fighting from cover like stone walls or trees they were notorious for breaking formation and running when charged by the enemy. Continental Army commanders had no end of frustration trying to get militia companies to carry out orders and assignments, or even to determine in advance how many militia would show up when mustered. Washington himself had despised the militia as useless ever since his experiences with the Virginia militia in the French and Indian War (beware of Washington quotes about the militia and the right to bear arms that you may see on the internet; several of these are apocryphal and at odds with his actual thinking). Militia units were usually more effective fighting other militia or Native Americans than regular soldiers. And being amateurs who often had families to support, they preferred to stick close to home; Clark was never able to get enough volunteers from the Kentucky militia to carry out his grand plan of a march on Detroit.
The 1779 Penobscot expedition, in which a force composed mainly of Massachusetts and Maine militia (supported by a small detachment of marines) was to make an amphibious landing in Maine and assault a British fort, was a textbook example of the kind of complex operation completely unsuited to militia: despite superior numbers compared to the enemy and some initial momentum, the unwieldy joint command co-ordinated poorly with its Continental Navy support, the Maine militia turned out in smaller numbers than expected, and the militia maintained an ineffective siege and cut and ran when counter-attacked. The commanders of the expedition, including Paul Revere, ended up being hauled before a court-martial, and Maine remained in British hands the rest of the war.
Getting the most out of militia units in battle required tactical flexibility. Daniel Morgan, at Cowpens, ordered the first line of the North Carolina militia to fire two volleys from an advance position and then make an orderly retreat to the rear, with the second line firing three volleys then doing the same; the regulars in the third line would absorb the British charge. Morgan had no faith that the militia could withstand a charge without breaking, and quipped that he made sure not to make a stand near a swamp so the militia couldn't disappear into it at the first sign of the enemy. Herkimer, at Oriskany, had to order his men in the midst of battle to start fighting in pairs, taking turns shooting while the other reloaded, because they were vulnerable to tomahawk attacks while reloading.
But for all their drawbacks, the ability to put militia units in the field was undeniably important, at times crucial, to the colonial cause. The main reason is the balance of manpower. The British, as I noted earlier, usually had 25-30,000 soldiers to work with, of whom 22-25,000 were either British or Hessian regulars. The size of the Continental Army at various points in time can be hard to ascertain due to spotty records, desertions, illness and short enlistments, but its main body seems to have peaked with about 20,000 around the Battle of Brooklyn, and Washington usually fought with about 10-12,000 men at his larger engagements; aside from the large force assembled at Saratoga, the army rarely had more than 5,000 men in any other place, and more often the commanders outside Washington's immediate vicinity had only a few thousand regulars to work with. The Continental Army usually fought with smaller groups of regulars than its adversaries, it lost more battles than it won, and when Washington's main army wasn't present, it almost never won a significant engagement without the presence of militia. The army simply couldn't defend most of the countryside. The militia was a force multiplier that prevented the British from consolidating control, which in turn would have forced Washington to seek active battles he couldn't win. But with the support of the militia, the Americans had the advantage: the British couldn't easily replenish their manpower, which had to be requested from London and shipped across the ocean (this is why they relied on their own Loyalist militia), while the Americans could do so on short notice whenever local authorities felt the need, without even consulting Congress. Besides numbers, the militia harassed the British supply lines, also a vulnerability for an army operating thousands of miles overseas.
And the militia bought time. In the North, the militia confronted and bottled up the British in Boston and seized their Hudson River forts at a time when there was no regular army. In the South, the militia kept up the fight after the regulars had been crushed, buying time for Greene. In New York, the decentralized ability to rapidly raise militia companies to bleed and eventually outnumber Burgoyne's army was essential to the pivotal Saratoga campaign after the regulars had been dispersed by Burgoyne's advance.
The militia didn't win the war, and would never have won it alone. But it is hard to see how there is a Yorktown, a Treaty of Paris and an independent United States without the efforts of thousands of militia from 1775 to 1782.
Posted by Baseball Crank at 12:49 PM | History | Law 2009-13 | Politics 2013 | Comments (0) | TrackBack (0)
December 26, 2012
POLITICS/LAW: Gun Control, Gun Rights, Gun Politics and Newtown: Part I of II
The school shooting atrocity in Newtown, Connecticut has, predictably, touched off another round of the perennial gun-control debate. Especially for parents of young children (my youngest is the same age as most of the victims), the horror of the shootings is almost beyond description, and tends to make rational discussion impossible. And also unseemly, as Jonah Goldberg has explained. More to the point, this is one of those issues where the public demands foolproof solutions that remain elusive: we keep saying "never again" after mass shootings, terrorist attacks, and all sorts of other manmade and supposedly preventable disasters, but there's never a perfect answer that guarantees that any such thing will never happen again (this is, for example, why anti-terrorism policies are best focused on terrorist organizations rather than lone nuts). We can only and always base public policy proposals on what will reasonably improve the situation without imposing costs we can't live with.
The reality of no perfect or costless solutions lends both a hysterical quality to the gun debate as well as a one-sided burden of proof. Gun control advocates suggest a goal (the complete non-existence of firearms) that is not politically, legally or practically possible, and argue that opponents of any gun control measure show how their alternative would be 100% effective by comparison to a gun control utopia that doesn't and never will exist. In a more rational, realistic debate, you would compare the actual proposed gun controls to a world without those proposals - and in that rational world, the first question for gun control advocates after Newtown is why gun control in Connecticut didn't work after the Brady Campaign hailed the state's tough gun laws as a model of public safety. Gun control - complete with an "assault weapons ban," waiting periods, background checks, "gun free school zone" laws and the rest - was already tried in Connecticut, and it failed to make a difference. If Newtown means anything in the gun debate, it's that gun control doesn't work.
The trenches are long-since dug on both sides; if you can find clips of Archie Bunker discussing an issue on YouTube, chances are that we have already had a "national conversation" about that issue. Of course, changing the culture can be at least as important as changing the law, so it is certainly helpful to look again at how we handle things like responsible gun ownership and mental illness (besides the shooter himself, his mother bears responsibility for having firearms under the same roof with such a mentally unbalanced young man). If there's one valuable service the NRA could provide in this debate - and Wayne LaPierre's ham-handed press conference failed to provide - it is stepping up the cultural battle to engage responsible gun owners outside of government.
But both advocates and opponents of gun control tend to fall too easily into knee-jerk slogans that go too far. It is no less true for being a truism, for example, that guns don't kill people, people kill people, and that we don't get nearly as many calls for controlling, say, knives or baseball bats when they are misused. But it is also true that guns are the most efficient, portable, and cost-effective killing tools we have: that's exactly why they remain the weapon of choice for soldiers, cops, criminals, and hunters all over the world (and why the right to own a gun matters). There's a strong case that good people with guns can be a more effective answer to armed criminals than gun control; gun control advocates are almost invariably willfully blind to the value of this. But that doesn't mean that proposals to arm everyone, everywhere are a good idea with no costs or a perfect, foolproof solution. It does no good for defenders of gun rights to overstate their arguments, any more than it helps proponents of gun control to ignore the costs and limitations of gun control or to react with incredulity to the idea that the Constitution means what it says. Frankly, if your approach to the Second Amendment is to laugh and ignore it, I'm not going to trust you to take the rest of the Bill of Rights seriously either.
I am probably a lot less pro-gun, and a lot less interested in guns, than most conservatives; I've never owned, fired or even held a gun, and personally I could be perfectly happy keeping it that way. I'd be personally content to live in a world with no guns at all. And I'm open to supporting reasonable gun regulations where there is reason to believe they will have more than just symbolic effects. But I also respect practical reality, the Constitution, and the rights of other people to freedoms that aren't personally important to me. A few thoughts and observations on guns, Newtown and the way forward:
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The NRA and the History of Gun Control
The NRA, as the nation's most vocal guardian of the right to own a gun, naturally comes in for a lot of abuse after any major shooting, and its leadership sometimes doesn't help the cause (there's a reason why small-government conservatives have battled at times with the NRA, and why the Gun Owners of America exists). But much of the effort to paint the NRA as some sort of moneyed special interest that buys its influence ignores the group's structure and history: it's a consumer group of gun owners, not the trade association of gun manufacturers. As Frank Fleming noted on Twitter, "[p]eople don't support gun rights because the NRA is so powerful; the NRA is so powerful because people support gun rights." It would have faded years ago without that grassroots support. Brian Palmer at Slate explains where the NRA came from and how it got into politics in the first place:
For the most part, the NRA's lobbying arm didn't gin up the emotional fervor of firearms advocates - it resulted from it. The NRA was founded shortly after the Civil War by Union veterans who felt the Confederacy only lasted as long as it did because of the Southerners' superior marksmanship. For nearly a century, the NRA catered to competitive shooters and merely dabbled in politics. As with so many other American cultural issues, things changed in the 1960s. Crime soared. Armed members of the Black Panthers began following police officers around American cities. Riots broke out in Newark and Detroit, and some government officials blamed easy access to guns. Assassins killed two Kennedy brothers and Martin Luther King Jr. In 1968, under pressure from terrified constituents, Congress passed the first major gun control legislation since the 1930s. A backlash ensued, as American firearms enthusiasts feared the government planned to take their guns. They pushed the relatively apolitical NRA to lobby on their behalf. When the leadership balked in 1977, a group of activists staged a coup. The new leaders commissioned a poll, which found that lobbying was the members' biggest priority. They turned the group into a political force, with the Second Amendment as their bible.
This is much like the history of the abortion issue, in which heavy-handed liberals created an ideological opposition where none had existed before the 1960s. And as with abortion, the history of gun control in the U.S. begins with an explicitly racist agenda. UCLA law professor Adam Winkler observes:
America's most horrific racist organization, the Ku Klux Klan, began with gun control at the very top of its agenda. Before the Civil War, blacks in the South had never been allowed to possess guns. During the war, however, blacks obtained guns for the first time. Some served as soldiers in black units in the Union Army, which allowed its men, black and white, to take their guns home with them as partial payment of past due wages. Other Southern blacks bought guns in the underground marketplace, which was flooded with firearms produced for the war.
Kentucky firebrand Ida B. Wells urged that "the Winchester rifle deserved a place of honor in every Negro home." The first generation of legal battles by the NAACP were centered on defending Blacks who had used firearms in self-defense – e.g., hiring Clarence Darrow to defend Dr. Ossian Sweet who was mobbed for attempting move into a white neighborhood
As Winkler notes, even the NRA itself turned away from its history to help devise the first gun-licensing laws in the 1920s, designed to keep immigrants from obtaining guns. And as he explained in a 2011 article for The Atlantic, the modern gun control movement was as much a response to the Black Panthers as anything.
The NRA's position since the 1970s may seem unduly uncompromising - but it's also more respectful of equal civil rights. And while we have thankfully moved on from the age of organized hate crimes, Jim Crow, and secession, they are not such distant memories to make us smug about the assurance that nobody in America need ever worry again about the need for protection against fellow Americans.
Guns are also the great equalizer, in a way that can be of importance to women and the elderly, particularly in high-crime areas or when traveling alone at night. Most crime is committed by men, disproportionately young men who are often physically stronger than their victims. Guns, far more than any other weapon, place women on an equal footing with their assailants. Just as today, the Founding Fathers' generation understood this: I've recently been reading HW Brands' sterling biography of Benjamin Franklin, and one of the anecdotes in the book recounts how Franklin's wife prepared with the family gun to defend their home (while Ben was away in England) from a rampaging anti-Stamp Act mob.
Moreover, harken back to the original idea of the NRA: to teach marksmanship skills that could later be used in military service to the nation. In an age of all-volunteer militaries, this is a particularly important point: I don't know whether anyone has formally studied the issue, but just from anecdotal experience I'd be willing to bet that young men and women who grow up with a gun in the household are much more likely to volunteer for military service, especially in the Army or Marine Corps. Which brings us to the Second Amendment - why we have one, what it means, and why it matters.
What Is The Second Amendment?
As you probably know, the Second Amendment to the US Constitution - adopted in 1791, and ceding pride of place in the Bill of Rights only to the freedoms of speech, religion and assembly - states that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
A similar provision appears in the bills of rights of 43 states, including states that adopted them prior to 1791. Hunting - and in some parts of the country, protection from dangerous wildlife like wolves and bears - is a major reason why guns are popular, widespread and useful. But the Founding Fathers did not put the right to bear arms in the Bill of Rights because they were worried about restrictions on hunting. It is a political right: the right to bear arms in defense of one's self, home, and state against intruders of all kinds, up to and including the national government, foreign invaders, secessionists or domestic hate groups like the Klan. I can't really explain why better than this spellbinding Newt Gingrich address to the NRA in 2011, especially the ten minutes starting around 4:50:
The men who wrote the Bill of Rights did not include the Second Amendment as an oversight or a rhetorical flourish; as Newt explains, the history of the right to bear arms was real, vivid and a life-or-death matter to them and one they saw as "necessary to the security of a free State." Madison in Federalist No. 46 explicitly argued at length that an armed citizenry would protect even against our own federal government:
[Compared to the small federal military Madison envisioned] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.
Madison would, it turns out, underestimate the federal government, which would go on over the next 80 years or so to impose its will on all manner of armed citizens - the Whiskey Rebellion, John Brown's abolitionists, the Confederate Army, the Mormons. (Nat Turner's slave rebellion was conducted without firearms, with predictable lack of success).
Madison's Constitution - even before its inclusion of an express right to bear arms - already contained other provisions relating to the citizen Militia, over which Congress was given specific but not plenary powers:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
The President's Commander-in-Chief power is likewise explicitly extended to "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." And immediately following the adoption of the Second Amendment, the Congress of the Founding generation used the authority granted in the Militia clause:
A 1792 federal law mandated every eligible man to purchase a military-style gun and ammunition for his service in the citizen militia. Such men had to report for frequent musters - where their guns would be inspected and, yes, registered on public rolls.
The Supreme Court has recently affirmed, in two landmark cases (DC v. Heller and McDonald v Chicago), a conclusion supported by extensive scholarship: that the Second Amendment protects an individual right, one that exists regardless of whether an individual has been called into militia service. (I have argued before that it may also protect a state's right to permit or promote gun ownership within its own borders). I won't rehash the ins and outs of the argument here except to note that a huge majority of the liberal commentary on the issue basically amounts to laughing and saying "that can't be true!" rather than actually investigating the facts and the history of the right (not for nothing has Second Amendment scholarship been dominated in recent decades by the pro-gun-rights scholars). The failure to take the Constitution seriously is one that continues to plague the gun control movement.
But what "Arms" are protected? Given the political purpose of the right and its intimate connection to national defense - and how Congress read the Militia clause in 1792 - it is illogical in the extreme to argue that "assault weapons" or "military-style weapons" or some such are not covered. The entire point of the Second Amendment is to ensure that citizens could be armed and ready to be converted, on short notice (think: "minutemen") into a military force. In 1791, that meant the standard equipment of an infantryman of the day, a musket or rifle and likely a bayonet. (Veterans of the savage fighting at Bunker Hill would scoff ruefully at the notion that muskets were not "assault weapons"). Of course, even the colonial militia only had a right to possess infantry weapons; even in the 18th century, the militiamen owned muskets and rifles individually, but the town or state collectively owned the cannons. No serious reading of the Second Amendment would protect your right to own artillery, tanks or fighter jets. It is a fair question where or whether there is any limit to what kind of infantry-style weapons (rifle, sidearm, etc.) would count as "Arms" under the Second Amendment, but the mere description of a weapon as a military-style rifle makes it more rather than less likely that it would be the sort of thing the right was written to protect (indeed, the gun control side argued - unsuccessfully - in Heller that handguns were not protected because they were not of sufficient military use).
By contrast, the Second Amendment specifically speaks of the militia being "well-regulated" and gives to Congress explicit powers relating to that regulation. That makes the right to bear arms less like the more absolute rights to free speech and free exercise of religion (about which "Congress shall make no law") and more like the right against searches and seizures, which the Fourth Amendment bans only when "unreasonable." Indeed, Congress used that authority in 1792 to require gun registration and ownership. The obvious conclusion is that, while neither Congress nor the states can properly bar the ownership or possession of any class of guns, one or both may impose reasonable regulations. Again, we can argue about the limits of what kind of regulation is wise or permitted - I personally tend to support background checks, limited waiting periods and even a gun registry - but there's no particular reason to believe that the Second Amendment is intended to present a meaningful obstacle to such regulations of the right.
(Gun owners often argue that a state or national gun registry would make confiscating guns easier. That's true, but we don't prevent the government from licensing the broadcasting spectrum or knowing where newspapers are published, because we have a tradition of respecting freedom of speech. If we took the Second Amendment more seriously, we might have less paranoia around regulating gun ownership).
Even aside from the Constitution, in considering how changes in the law would play out, a little perspective should be in order from all sides. First of all, it is simply not the case that a ban on all guns is politically possible in the United States; even a Washington Post snap poll after the shootings found 71% of Americans opposed, and 56% strongly opposed, to a total gun ban.
Moreover, we know from long experience that when you ban something there's a public demand for, it gets less common, more expensive and more under the control of the criminal class - but it doesn't go away entirely. That's true whether you are talking about guns, alcohol, drugs, cigarettes, gambling, abortion, prostitution, pornography, or illegal immigration. That's not a reason to give up on banning any bad things, but it means that you have to look down the road at what you do next, and in this case that's a world where the illegal gun population would not decline nearly as much as the legal gun population. There may be something like 300 million guns already out there in the U.S., which can not feasibly be confiscated. If you like the War on Drugs, you'd love a War on Guns. Moreover, long experience with restrictive gun control, as in Chicago, suggests that criminals are much more likely to endure the risks and expenses of buying illegal guns, tilting the playing field further against law-abiding citizens.
This is why a mass shooting is the perfect storm for gun control advocates: the debate on guns and crime or even guns and terrorism is a losing one for them, because people easily grasp that gun bans don't make a dent in guns owned by the bad guys and that the better path is to crack down on the criminals, not the guns. Criminals will always make the extra effort to get illegal guns; terrorists are just as happy to use bombs; suicides and crimes of passion will just as easily reach for whatever stands at hand. Ben Domenech has a must-read roundup of what we know and have learned about both gun control and mass shootings, and it's not a record that inspires confidence in the superiority of the gun control approach.
What is more likely to be proposed is some form of "assault weapons ban." But we know from experience of the Clinton-era ban that the final legislation is likely to be shot through with nonsensical distinctions drawn from the difficulties of defining what it is that the statute aims to ban. It is sadly the case that a huge amount of the gun control debate is driven by liberals and journalists with little or no personal experience with guns, and therefore no concept of how to draw the distinctions at issue. Tim Carney, as part of a larger explainer on the various distinctions ("use of the phrase semi-automatic when talking about guns is like using the phrase 'gasoline cars.'") recalls the 1994 bill:
First, all guns can be used to assault someone - even a muzzle-loading black-powder rifle.
Efforts to block the access of a very small subset of people - mass shooters - from to a narrow band of originally-legally-purchased firearms (the Newtown shooter was blocked by Connecticut's tough gun laws from buying a rifle just days before the attack, so he stole one instead) is a worthy goal, to be sure; some of the proposals under discussion might reduce the number of victims in some future incident. But in practical terms, the odds are much greater that in our effort to lock this particular barn door, we are talking about a large national political debate, the restriction of freedom on a large number of people, and the additional burden on law enforcement nationwide for a slight reduction in firepower that could potentially save maybe a handful of lives per decade.
It's hard to keep perspective after an event like Newtown - it's almost impossible, in fact, for parents to regard such an atrocity with any perspective at all - but the likely result of all this debate is a whole lot of political posturing for not very much result. In some ways this recalls the Terri Schiavo debate in 2005, when national politics ground to a halt over the life of one woman - a noble goal, perhaps the noblest of goals - but one that squandered the opportunity for a newly re-elected president to do bigger things affecting a much larger swath of the country's future, but which our political system was unable to resist because of the moral certainty of those who fought for Schiavo. (Our priorities can seem quite strange in this way: Planned Parenthood kills twenty children every half hour, day after day, week after week, month after month, year after year, and we do nothing about that.)
The next round of gun control debates is likely to be long on symbolism and short on practical solutions. Congress should not pass any laws - in this or other contexts - without some good reason to believe they will actually accomplish something. The burden remains on the advocates of new gun laws to show not only that their proposals are constitutional and not undue burdens on the rights and freedoms of law-abiding citizens, but that they actually have some practical chance of working.
(In Part II, I will look at the different ways - prevention, preemption, deterrence, disarmament, self-defense - that we look at violence)
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Posted by Baseball Crank at 3:15 PM | Law 2009-13 | Politics 2012 | Politics 2013 | Comments (7) | TrackBack (0)
July 28, 2012
HISTORY/LAW: And We Think The Legal System Is Rough Today
I think today you would get some headlines if a former California Chief Justice was shot dead attacking a US Supreme Court Justice over a case involving the extortion of a US Senator.
June 29, 2012
LAW: The Supreme Court's Disappointing Tax Ruling
Yesterday's ruling that Obamacare's individual mandate exceeded Congress' power under the Commerce Clause showcased the Supreme Court at its intellectual best: the fruits of years of detailed and heated scholarly and judicial debate, intensive briefing and vigorous argument were reflected in the various opinions. Unfortunately, the same cannot be said of the Court's opinions on the alternative ground - the taxing power - that Chief Justice Roberts and the Court's four Democratic appointees found to be an alternative basis for the mandate. Critics on the Right have assumed that Roberts is wrong about the taxing power, and the cheerleaders on the Left are simply pocketing the result, but neither the various opinions nor most of the commentary have bothered to explain a theory of what Congress can and cannot constitutionally do through its power to tax.
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In theory, the powers of the federal government should be determined by examining first the Constitution's text and then the caselaw. While there are different schools of thought on how to handle the text, the conservative "originalist" argument is that it should be read in light of how that text was commonly understood at the time it was adopted, since the time of adoption is when the consent of the governed was given to the text. But Part III(C) of Chief Justice Roberts' opinion for the Court, comprising p. 33-44 of the opinion, spends almost no time actually looking at the scope or original meaning of the taxing power.
The very first power granted to Congress in Article I, Section 8, is the power to tax:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States
Section 9 adds a limitation: "No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken." However, unlike the Commerce Clause and the Spending Clause, which remain unchanged from their original 1787 text, this aspect of the taxing power has been altered by the Sixteenth Amendment, ratified in 1913, which states: "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."
To begin with, the Court's opinion has to thread a very narrow needle in explaining how the mandate is a tax for purposes of the Constitutional power to tax, but not a tax for purposes of the Anti-Injunction Act, which would have barred the Court from deciding the issue until someone actually paid the penalty for not having insurance and sued for a refund, which could happen no sooner than 2014. The resulting explanation - that when Congress calls something a penalty that makes it a penalty for purposes of statutory construcution, while the label should be disregarded in favor of the substance for purposes of constitutionality - is not completely implausible, but it is surely not one that you could come up with if you did not begin the exercise with a dogged determination to reach a particular result.
Even Chief Justice Roberts' opinion for the Court admits that the "most straightforward reading" of the statute is to treat the mandate and the associated penalty as a mandate with an associated penalty (indeed, the White House is continuing to insist today in the face of this opinion that the penalty is a penalty, not a tax). But assuming for the sake of argument that it is constitutional if it could be considered a tax, we must look at how Roberts finds that tax to be within the power of Congress.
Examining how the mandate could be within Congress' power to tax, Roberts makes seven basic points about the taxing power, most of which he supports with a case cite or two, but only one of which (#5 on this list) does he support with anything we might characterize as an originalist source (I am summarizing here):
1-A tax raises revenue; the mandate penalty will raise revenue, and can therefore be a tax.
2-A tax can be labelled something else, like a fee, so the fact that the statute says it's a penalty does not mean it is not a tax.
3-A tax can be intended to influence conduct, and thus the intent of the penalty to make people buy insurance does not mean it is not a tax.
4-A tax can be a tax, not a penalty, if it's the only legal consequence for a choice. You don't go to jail for defying the mandate, all you do is pay the IRS.
5-The Court in 1796 unanimously sustained - over James Madison's objection - the view that a tax on carriages was not a direct tax (subject to the pre-1913 Section 9 prohibition) because it did not fall on the whole population, and therefore a tax only on the uninsured is not a direct tax.
6-The constitution doesn't say anything about not taxing inactivity, and thus - unlike the Commerce Clause, which refers to "Commerce" (an activity), there is no bar on taxing people for not buying insurance. Roberts supports this point only with Ben Franklin's aphorism that only "death and taxes" are certain.
7-The caselaw has recognized that there is a limit past which a tax is so coercive it becomes a penalty no matter its other characteristics. The Court does not attempt to determine where that line is drawn.
The Joint Dissent
The joint dissent (like many commentators, I've tended to refer to this as Scalia's opinion because he's listed first and the conclusion in particular is unmistakably vintage Scalia, but it is actually signed as the work of Scalia, Kennedy, Thomas and Alito, and Thomas refers to it as "our joint opinion") sets forth a fairly strong argument that the mandate was intended and designed to be a mandate, and therefore the Court should not even consider whether it could have been passed as a tax:
The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.
(p. 17-18; emphasis in original).
The joint dissent's entire argument (in Part II of its opinion, comprising p. 16-26 of the dissent) is therefore, basically, that the mandate was not intended, labelled or designed as a tax. That leaches over to some extent into an argument about what kind of taxes the Court has previously authorized, but the joint dissent repeatedly stresses that it is not discussing what Congress could have done if it had labelled the penalty as a tax and made a few other largely cosmetic alterations to its functioning. You will look long and hard in the joint dissent, without success, for any analysis of the actual original meaning of the taxing power.
The joint dissent makes at most three points that touch on what the taxing power actually is:
1-The Court has sometimes treated taxes designed to punish as improper and unconstitutional penalties, as in the 1922 Child Labor Tax Case (authored by then Chief Justice and former President Taft) and 1936's United States v Butler. However, the joint dissent notes other cases treating fees as taxes and does not make an affirmative argument that Child Labor and Butler comprise any sort of coherent constitutional rule, much less a correctly decided one under an originalist reading.
2-The Court has sometimes treated even exactions that were called taxes as penalties.
3-The absence of a scienter (intent) requirement doesn't prove it's not a penalty.
That's about it. The joint dissent also faults the majority for cursorily deciding the issue of whether the penalty was a direct tax, but does not make an argument about what the direct tax prohibition now means after the Sixteenth Amendment. Indeed, at page 30, in its discussion of the Spending Clause, the joint dissent seems to throw in the towel on the idea that there is any real limit on the permissible subjects of taxing or spending:
The Constitution grants Congress the power to collect taxes "to...provide for the...general Welfare of the United States," Art. I, sec 8, cl. 1, and from "the foundation of the Nation sharp differences of opinion have persisted as to the true interpretation of the phrase" "the general welfare." Butler, 297 U. S., at 65. Madison, it has been said, thought that the phrase "amounted to no more than areference to the other powers enumerated in the subsequent clauses of the same section," while Hamilton "maintained the clause confers a power separate and distinctfrom those later enumerated [and] is not restricted in meaning by the grant of them." Ibid.
(pp. 29-30; bold added). That's the spending power, of course, and doesn't speak directly to what limits there may be in the taxing power, but if the limitation on the taxing power lies in its text's reference to the general welfare, it does not appear that even the dissenters placed much stock in that text.
Professor Epstein's Commentary
Sadly, most of the commentary on the decision thus far has focused on anything and everything but the question of whether the Court got the taxing power right. Richard Epstein has provided the best effort I've seen so far at an originalist argument, citing Child Labor and Butler; a sample:
Historically speaking, this clause corrected one of the great weaknesses of the Articles of Confederation (the precursor to the Constitution), which had forced Congress to essentially beg the states for the revenues needed to run its business. By giving Congress independent powers over taxation and other revenue sources, the Constitution ended that dependency. But as a quid pro quo, the Constitution also restricted the use of these revenues to classical public goods - benefits that must be given to all citizens, if given to any - like paying off national debts and paying for the nation's defense. General welfare, mentioned in parallel with these two phrases, is best read as covering only matters that advance the welfare of the United States as a whole. The redistribution of income, or "transfer payments" among citizens, like those mandated under the Affordable Care Act, doesn't qualify for taxation in this originalist reading of the Constitution.
He then goes on to note how both Butler and Child Labor struck down indirect and punitive taxes aimed at regulating matters Congress could not regulate directly: "[a] heavy tax, the court argued, could not be used to mount an end run around this constitutional obstacle to its own power."
One can certainly derive something like a negative principle from Butler and Child Labor that the Constitution, as amended, does not permit the federal government to tax for any purpose other than the raising of revenue, but I have not seen anybody either (1) make an originalist argument that the Constitution actually was intended to impose such a restriction on the purposes of tax incentives or (2) explain how one would go about designing a judicially enforceable rule along these lines. Under Professor Epstein's view, it might seem that all sorts of things in the tax code are unconstitutional because they create behavioral incentives - and maybe they are, but how one comes up with a rule that is both workable and grounded in legitimate textual authority is very much an open question.
Professor Epstein's point about general welfare spending is also an arguable one and one he has expounded on elsewhere in far more detail than a NY Times op-ed allows, but in light of the joint dissent's treatment of the phrase "general welfare," it seems doubtful that anybody beyond possibly Justice Thomas would be willing to go that far, and unclear what the historical basis would be for such a rule. There are state constitutions that attempt to place limits on laws that do not address the interests of the public as a whole (the New Jersey constitution, for example, provides that "No general law shall embrace any provision of a private, special or local character"), but the history of such rules in practice has not been one of clear and successful jurisprudence.
For many years now, we have had a lively and enlightening debate over the history, scope and limiting principles applicable to the Commerce Clause. By using the taxing power to justify - through the backdoor - a mandate to buy insurance that Congress could not enact directly via the Commerce Clause, the Supreme Court may have opened the door to expansive future uses of the taxing power. But the majority did not justify with any convincing analysis its view that the taxing power actually extends that far, nor did the joint dissent offer a meaningful reason to believe that it does not. It will now fall to academics, legal commentators, and in the long run courts and legislators to work out the still-uncharted boundaries of how far Congress can go in using its power to tax as a power to regulate.
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June 28, 2012
LAW/POLITICS: The Big Decision
You better not pout, you better not cry, you better not shout I'm telling you why. The Commerce Clause is coming to town....
Here's my writeup on what happened. More to follow on other days, I'm sure.
A few other observations:
-In the long run, I'd rather lose the ones we can fix democratically than the ones we can't.
-If Congress starts justifying every new regulation as a tax, Grover Norquist is going to be a very busy man.
-Romney has raised a vast amount of money from a lot of new donors today. Even more than energizing and galvanizing the base in the presidential race, focusing on repeal as a political goal should help down-ticket Republicans in Senate races (in states like Missouri, Ohio, Virginia and Florida) who lack Romney's baggage on the issue.
-Both the Roberts and Scalia opinions are very explicit about the fact that Obamacare puts "massive new costs on insurers" and is essentially collectivist in using the mandate to force young people to subsidize the care of others by buying policies that will deliver them less benefits than the premiums they pay.
-I don't know that anybody predicted a lineup of 5-4 for the mandate under the taxing power but 7-2 against the withholding of Medicaid funds from states that refuse to join the expansion of the program. It's remarkable that Obama's own Solicitor General at the time Obamacare was written joined an opinion calling it "a gun to the head" of the states.
-For all the flap before the decision about Justice Scalia rethinking Wickard v Filburn in his new book, neither his opinion nor Roberts' actually argues for overturning Wickard or Gonzales v. Raich. That may come another day, but for now the Court simply distinguished them.
-I see in some quarters the notion that Scalia was wrong somehow to refer to Ginsburg's opinion as "the dissent," but her opinion is 4 Justices dissenting from the Court's conclusion that the mandate wasn't supported by the Commerce power. That is, technically, a dissent on that issue.
-Justice Thomas' pithy 2-page opinion basically says that Congress is a spoiled child the Court didn't say no to often enough & now it's grown into an idiot teenager that does stupid things like try to force people to buy insurance policies. I paraphrase, but not by much.
-Characterizing the mandate as a tax may make it easier for Republicans, procedurally, to justify using the reconciliation process to repeal the bill with 51 votes instead of 60 in the Senate.
-This morning's result will make Obama look even more ridiculous the next time he frames Citizens United as the work of a runaway right-wing Court.
-A prediction: the centerpiece of Chief Justice Roberts' legacy on the court will be a case that hasn't arisen yet.
Other commentary around the web worth reading:
-In case you missed it, why IPAB is unconstitutional in at least two ways.
June 27, 2012
LAW: My Predictions on the Health Care Case
I follow the Supreme Court fairly closely and, I like to think, intelligently, having participated in briefing a number of cases before the Court. (As usual, my speculation is my own, and not the view of my firm). But I'm as much in the dark as everyone else on how the Court will decide any given case - indeed, the more veteran and expert the Supreme Court practitioner you talk to, the more uncertain they are likely to be in making predictions.
That said, we may as well all make our educated guesses now, while the jury (so to speak) is still out. Here, without much further explanation, I'll offer mine, all of which will be rendered inoperative in less than 24 hours.
1. It looks as if Chief Justice Roberts will write the main opinion, possibly covering all the issues in the case. Sean Trende and Jack Balkin explain why this is so. If Roberts writes an opinion covering all four issues (bear in mind, there are only four issues in the case if the Court rules in the challengers' favor on the Anti-Injunction Act and the mandate and severs at least some of the statute), expect a very long opinion and a whole bunch of opinions concurring and dissenting in differently-numbered/lettered subparts.
2. Judging by the arguments, the overall weakness of the Administration's case, and the simple fact that the whole shebang remains undecided at Term's end, I'll be surprised if there are more than one or two votes to declare the mandate a tax that the Court can't address until 2014 under the Anti-Injunction Act. Court may even be unanimous on that score.
3. Forced to predict, I'll predict that the Court will strike down the individual mandate, 5-4. I can't say I'm overwhelmingly confident in that prediction.
4. On severability, I think the most likely outcome is actually that the Court does what the Solicitor General asked in the event the mandate goes down, and throws out only the community rating and guaranteed issue provisions, probably on a 6-3 vote. That may not be an entirely principled compromise, but it at least has the advantage of being endorsed by the Administration, as opposed to leaving the Justices to decide on their own what is and is not integrally related to the mandate.
5. The enormous sleeper in the case is the Medicaid challenge. I could be wrong, but I don't expect the Court to be willing to rule that Congress exceeded its authority under the Spending Clause here. The bad news for conservatives is that, after years of the Court warning that there are limits to how far Congress could go in using the spending power to indirectly dictate to the states things it cannot directly dictate, the Court would effectively have to concede that it will never tell Congress that it has breached that limit - you simply can't find a more coercive program than Medicaid, which amounts to a quarter of most state's budgets and as to which - as the states repeatedly emphasized - Congress did not even offer a Plan B for what happens if a state opts out. I expect a thundering, epic dissent from Justice Scalia on this abdication if that is where we come out.
March 29, 2012
LAW/POLITICS: A Word About Charles Fried
Charles Fried has suddenly become a very popular fellow on the Left. The former Reagan Solicitor General and Bill Weld appointee to the Massachusetts Supreme Judicial Court is being touted by the Washington Post's in-house left-wing activists Greg Sargent and Ezra Klein, as well as ThinkProgress and Media Matters and its frenetic professional tweeters Eric Boehlert and Oliver Willis over Professor Fried's support for the constitutionality of Obamacare. Dahlia Lithwick went further, using Prof. Fried's prediction of an 8-1 decision as evidence that "[t]he conservative legal elites don't believe in the merits of this challenge". It's not surprising that these folks are in such a rush to get the cover of a former Reagan lawyer to restore their talking point - now in tatters after a week of serious, sober and probing questioning from the Supreme Court - that only an extremist would think there is any constitutional issue at all with Obamacare. But there are some things they're not telling you about Charles Fried.
Now, let me preface this by saying that I have a lot of respect for Prof. Fried. He was my constitutional law professor and probably the best teacher I had in law school, a brilliant man who had taught just about every area of law under the sun and was especially talented at bringing together the strands of disparate areas of the law. I read his book about his days as the SG before I started law school, and I respected his willingness - as a guy who is not pro-life - to argue, twice, for overturning Roe v Wade. He was also the faculty adviser for the Law School Republicans, which I headed for a time. Prof. Fried has indeed been, in the past, a longstanding member of the GOP legal establishment; he testified in favor of John Roberts' Supreme Court confirmation, and in 2006 wrote a NY Times op-ed defending his former deputy, Samuel Alito, as "not a lawless zealot but a careful lawyer with the professionalism to give legally sound but unwelcome advice" and "a person who can tell the difference between the law and his own political predilections."
But if you think brilliant people can't be horribly wrong, you have not spent much time studying lawyers and the law. And if you've been reading the left-wing activists, you might not have learned that the 76-year-old Prof. Fried has not only been a vigorous defender of Obamacare who famously testified that the federal government could mandate that you buy vegetables and join a gym, he also voted for President Obama and wrote him what amounted to a political love letter last summer, wrote a book in 2010 with his son which he characterized as showing that the Bush Administration's anti-terrorism policies "broke the law" and were "disgusting and terrible and degrading," and has been a vociferous critic of the Tea Party.
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Prof. Fried's big, public break with the GOP came in the heat of the last election campaign, when he joined Weld in backing Obama, citing the selection of Sarah Palin as GOP vice presidential candidate. (Fried had published an article blasting race-based affirmative action in the Harvard Law Review when Obama was its president). He has staked out an increasingly strident view of the Commerce Clause in his defense of Obamacare, testifying:
Sen. Durbin: The point raised by Senator Lee - the 'buy your vegetables, eat your vegetables' point? I'd like you ask to comment on that because that is the one I'm hearing most often. By people who are saying "Well, if the government can require me to buy health insurance, can it require me to have a membership in a gym, or eat vegetables?" We've heard from Professor Dellinger on that point, would you like to comment?
Oddly, Prof. Fried even testified that if Congress lacked the power to mandate the purchase of insurance, "not only is ObamaCare unconstitutional, but then so is RomneyCare in Massachusetts" - despite the fact that the legal basis for a state-level mandate derives from state police powers rather than the more limited, enumerated powers in Article I of the U.S. Constitution (you can hear his rather tortured reasoning on this point near the end of this video):
Last August, during the debt-deal battle, Prof. Fried went further, penning an op-ed for the Daily Beast entitled, without irony, "Obama Is Too Good For Us," blasting basically everyone in the GOP (besides Jon Huntsman) and Palin and the Tea Party movement in particular.
It is fair and accurate to describe Prof. Fried as a former Reagan official and former member of the GOP legal establishment. But it is deeply misleading to suggest that he speaks today for some element of mainstream thought on the Right, or to tout his views on Obamacare without presenting to readers his support for Obama, his effective divorce from the modern GOP, and the extreme nature of his views on the government's ability to make you buy broccoli.
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February 15, 2012
LAW/POLITICS: Indecent Proposition
The Ninth Circuit's 2-1 decision last week in Perry v. Brown upheld the decision of Judge Vaughan Walker holding that the people of the State of California violated the Equal Protection Clause of the 14th Amendment by passing - in a statewide referendum in 2008 - Proposition 8. Prop 8 amended the California Constitution to define marriage as between one man and one woman, restoring the rule previously set forth in California statutory law until overturned by the California Supreme Court earlier in 2008. Prop 8 garnered over 7 million votes, two million more than John McCain in liberal California - it was the supported by 52.3% of the same electorate that broke 61-37 for Barack Obama, including 58% of black voters and 59% of Latino voters.
Despite some game efforts to meddle with the burden of proof based on the sequence of events, the core of the decision - written by veteran arch-liberal Judge Stephen Reinhardt - was the same as that of the district court: the assertion that there is no possible rational basis for distinguishing between traditional, opposite-sex marriage and same-sex marriage. More specifically, in the California context, the court found that the federal constitution gives federal judges the right to dictate the language itself, holding that California's voters were not even permitted to reserve the term marriage to opposite-sex marriage while providing effectively all the practical state-law benefits of marriage to same-sex couples through "domestic partnership."
There are arguments for and against same-sex marriage as a policy matter, but the argument for declaring that the Constitution mandates that only one set of those arguments be considered "rational" is itself irrational and intellectually indefensible. This is so not only because it begs the question by redefining the language and because it ignores basic biological reality, but most of all because the argument for striking down Proposition 8 treats history, culture, tradition and social convention inconsistently. It should not be taken seriously as constitutional law.
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The Ninth Circuit panel majority reassures the reader that the distinction between opposite-sex and same-sex marriage "is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly." Yet, like Judge Walker, the majority determined that no person of good will could have any rational reason for voting for Proposition 8. I detailed at greater length the flaws in Judge Walker's original decision back in 2010; let's hit the high points of why the case against Prop 8 is so intellectually shoddy.
Tradition for Me, Not For Thee
The core problem with the Ninth Circuit panel's analysis, as with that of Judge Walker, is its inconsistent treatment of the role of tradition and culture. When it comes to finding that same-sex couples have been injured by being deprived of the use of the term "marriage," the court waxes eloquent on the cultural status of the institution:
All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of 'marriage,' which symbolizes state legitimization and societal recognition of their committed relationships.
[W]e emphasize the extraordinary significance of the official designation of 'marriage.' That designation is important because 'marriage' is the name that society gives to the relationship that matters most between two adults...The word 'marriage' is singular in connoting "a harmony in living," "a bilateral loyalty," and "a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred." Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
We need consider only the many ways in which we encounter the word 'marriage' in our daily lives and understand it, consciously or not, to convey a sense of significance. We are regularly given forms to complete that ask us whether we are "single" or "married." Newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, "Will you marry me?", whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see "Will you enter into a registered domestic partnership with me?". Groucho Marx's one-liner, "Marriage is a wonderful institution ... but who wants to live in an institution?" would lack its punch if the word 'marriage' were replaced with the alternative phrase. So too with Shakespeare's "A young man married is a man that’s marr'd," Lincoln's "Marriage is neither heaven nor hell, it is simply purgatory," and Sinatra's "A man doesn't know what happiness is until he's married. By then it's too late." We see tropes like "marrying for love" versus "marrying for money" played out again and again in our films and literature because of the recognized importance and permanence of the marriage relationship. Had Marilyn Monroe's film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different. The name "marriage' signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships.
The incidents of marriage, standing alone, do not...convey the same governmental and societal recognition as does the designation of 'marriage' itself. We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries. The designation of 'marriage' is the status that we recognize. It is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered into it.
All of this is unobjectionable - it accords with the view that the term "marriage" has value that comes from a longstanding social and cultural tradition, stretching back in fact much further even than Shakespeare. As Justice Holmes famously said, "The life of the law has not been logic; it has been experience." Human experience gives meaning to words, or else we could not have a language that is commonly understood. The full quotation from the Supreme Court's unanimous opinion in Griswold - including the portion not quoted by the Perry panel majority - makes precisely this point in finding that rights arising from marriage are derived from the institution's age and traditional role and importance in society, and not from mere judicial syllogism:
Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
But that whole history - and each and every cultural references cited by Judge Reinhardt - is a history of opposite-sex marriage. The long, hard work of establishing the meaning and value of marriage - earning that social and cultural "respect and dignity" that raises marriage to the level of a commitment "intimate to the degree of being sacred" in the eyes of society, from literature to film to church to law - has been done by uncounted millions of opposite-sex married couples over thousands and thousands of years. What the Perry plaintiffs want is to free ride on that effort, to be granted the social respect earned by a distinct relationship - and have the government enforce that by redefining the very language. The issue is not at all one of "live and let live," but a demand for "state legitimization and societal recognition" enforced by the courts. Yet somehow, in ruling on that issue, the Perry panel majority puts the weight of such considerations on only one side of the scale.
Tradition, history, culture, social recognition: these things were good enough, not only for Justice Douglas in 1965, but for the Ninth Circuit panel majority itself in its own discussion of the reasons why the term "marriage" matters and has value - yet they suddenly become a thing that could have been given no rational weight when determining whether the state may continue to use the same word to mean the same thing it has meant throughout history. This cannot possibly be defended as law or logic.
If the term "marriage" is a thing of sufficient social and cultural value to give rise to a constitutional injury, then the source of that social and cultural value must be considered a rational basis for continuing to use the word to have the same meaning. It is no equal protection of the laws to say that the Perry plaintiffs may legitimately consider social and cultural status important, yet 7 million California voters may not.
The Birds and the Bees
Declaring opposite-sex and same-sex marriage to be identical also ignores the basic fundamental biological distinction between the sexes: it takes a man and a woman to make a baby. There is - as I have explained at much greater length here and here - an entirely rational basis for distinguishing as a class between opposite-sex and same-sex couples by virtue of the relationship between opposite-sex relations and the bearing and begetting of children. The Ninth Circuit majority waves this consideration away on the grounds that Prop 8 did not directly affect the right or ability of either type of couple to have or raise children. And admittedly, California law's expansive domestic partnership and palimony laws have long failed to give much in the way of privileged legal status to traditional marriage. But again, the Perry panel majority fails to consider the common-sense point that maintaining some of the social and cultural respect unique to marriage (the very thing the panel majority just got done trumpeting in significance) is the very least thing the state can do to preserve the status of an institution that is so vital to raising the next generation.
Its relationship to having children is the aspect of marriage in which the state has the most obvious interest, and which justifies any state involvement at all. The state has a compelling - to the point of being existential - interest in encouraging the birth of children. This is especially true in a world of declining birth rates and an entitlement state whose demographic premises are rapidly eroding (and no American state is in as dire fiscal straits as California). Statistically speaking, opposite-sex couples produce nearly all the world's children. Same-sex couples, even with the aid of modern technology, are highly unlikely to reproduce at even a replacement level. Disparities between the likelihood of the two groups to produce children are backed up by current Census data. Encouraging opposite-sex marriage in ways and to an extent different from same-sex couplings is an entirely rational way of pursuing this goal, and this is so even without conducting a more intrusive examination of whether particular couples of one type or another are willing or able to have children (or even know if they are, at the time they marry).
The state also has a compelling interest in encouraging opposite-sex couples to marry, precisely because unmarried opposite-sex couples may have children, and because of the superiority of raising children in a married rather than unmarried home (a point backed not only by common experience but by virtually all social science research ever) The state has no nearly similar interest in encouraging same-sex couples to do so - the number of gay single parents is vanishingly small and (not to state the obvious) includes essentially no unplanned pregnancies.
Perhaps one may argue that the state can, or should, offer more than (literally) a single word of encouragement for traditional marriage. But nothing in constitutional law requires that the state do every possible thing to achieve a goal in order to show that it has acted for a rational purpose.
Reading Is Fundamental
The plaintiffs in Perry have also argued that they were deprived of the "fundamental right to marry." The court, wisely in my view, steered clear of this argument, which is a dishonest bait-and-switch for much the same reason.
The Constitution mentions no right to marry. The Supreme Court has recognized this right as being "fundamental" for essentially the reasons identified in Griswold - because it is a social institution older than the Bill of Rights itself, and which the Founding Fathers would not have thought to protect in the Bill of Rights solely because they did not anticipate the federal government tampering with it. That is, in fact, why we have a Ninth Amendment ("The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people"): to protect against novel intrusions on rights long recognized and respected at common law. Rewriting the definition of "marry" to mean something significantly different from the word's common law meaning would call into question the entire rationale for recognizing the right as fundamentally beyond the reach of the law in the first place. Constitutional law would get a lot more interesting if the ordinary meaning of words can be changed to place desired outcomes beyond the reach of the democratic process.
Here, Sir, The People Rule
We have written constitutions, enforceable by judges, for a reason. The Founding Fathers believed in natural law and natural rights - that is, in the notion that we are endowed by our Creator with certain rights that are inalienable, immune from the proper reach of the law. But they did not write the Constitution to give the judiciary a broad-ranging charter to determine what rights were God-given; they wrote down specific powers granted to particular organs of government and specific rights reserved to the people, and - by Article V - empowered We the People to change the Constitution by supermajority if the People felt that it required revision with the times (something the People have done 27 times so far).
Judicial review to strike down democratic enactments on the grounds that the People have placed certain things beyond the reach of legislation - such as the freedom of speech, free exercise of religion and prohibition on slavery - is essential and legitimate. It is the way in which the rule of popular sovereignty is enforced and enhanced, not degraded.
But when judges seek to decide what is "rational" or "fundamental" without any guidance from the text of the Constitution or the history of its enactment (two things conspicuous by their absence in Perry, as it would be laughable to suggest that the 14th Amendment addresses the definition of marriage or was understood at the time to do so), they are engaging in that open-ended exercise of what amounts to determining the will of God rather than of the People, and doing so without any particular reason to believe that they are more competent to the task than the electorate. The fact that rights are declared to be fundamental or decisions to be irrational on the basis of an avowedly secular set of principles does not make such a system of government meaningfully different in practice from theocracy or any other form of oligarchy, in which some questions are simply off-limits to the consent of the governed, to be interpreted only by a self-selecting elite. In a democracy, there are no such things as questions too important for the voters, only questions about what the voters have placed within and without the current sphere of their authority.
Absent text and history to guide them, what makes two judges (or one, or five) a better determinant of what is rational, or fundamental, than seven million Californians, drawn from all races, religions and walks of life? And why can't those seven million Californians draw on things like experience, tradition, culture, and plain old common sense in making their decisions?
As I've written before, democracy, free markets, tradition and the rule of written law are all valuable for the same reason - they include the largest number of people in the making of decisions. Tradition protects us from the tyranny of small sample sizes, by delivering to us the lessons drawn from experience of prior generations. Tradition is not stasis; it is the gradual accrual of the lessons of trial and error of countless individuals. It changes when new things are proven to work, and old things are found to have become unuseful. In fact, you cannot believe in moral progress of any kind if you do not believe in tradition, only a sort of moral Brownian motion in which nothing learned today has any guarantee against being unlearned tomorrow.
But the myriad individual and social judgments that compose tradition are made by the common man (who is valuable precisely because he is so common), and far less reliable when made by a small and insular number of lawyers. Voters gave us the Bill of Rights; judges gave us Dred Scott. Indeed, if voters' views of same-sex marriage change, as they have in some states, the law will change with them. But if we continue down the path of decisions like Perry, the voters of tomorrow may find little left they are permitted to decide. And that, far more even than the specific policy question at issue, is something worth getting upset about.
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August 3, 2011
BUSINESS: Negotiating Through The Media
There are many species of bad journalism, most of which involve too much opinion by the writer, but sometimes the opposite is true and a writer gives you the apparent facts without the context needed to make sense of them. Let me use an article from the NY Times about 30 Rock to illustrate a common type of bad journalism that I find to be equally amusing and annoying: reporting negotiating positions without bothering to explain to the reader to take negotiating positions with a grain of salt, let alone how to interpret statements made in the course of negotiations. This has been a common thread in scores of articles these past few months about - among other topics - the debt ceiling negotiations, the Libya war, the perpetual Israel-Palestine 'peace process,' the NFL and NBA labor negotiations, the Mets' legal dispute with the Madoff trustee and other business machinations and their efforts to re-sign Jose Reyes, and the legal imbroglio surrounding the Dodgers. I've read more articles on all these topics than I could count that failed to give the reader the guidance to put the parties' statements in the context of the underlying negotiating dynamics.
The Times tells us, first, that Alec Baldwin has said he's leaving 30 Rock after next season, a departure that of course would be a terrible blow to a show built around the tensions between his (awesome) character, Jack Donaghy, and Tina Fey's Liz Lemon. It may well be true that Baldwin sincerely has other things on his mind, maybe even a run for public office, and/or that he's feeling he's done all he could with the character. But it's at least equally likely that he could be persuaded to stay on if NBC offers money or other contractual concessions to make it worth his while.
Then we get the response from NBC brass and from Lorne Michaels, the show's executive producer:
Executives from the show and NBC aren't sure, but they made it clear in interviews here this week that his departure would not mean an automatic end to the award-winning comedy.
Again: I don't doubt that NBC would very much like to extend the show's run one extra season for syndication purposes; many a sitcom past has been kept on past its proverbial shark-jumping point for that reason. If 30 Rock is still making money at that point, the network would probably try to soldier on without Baldwin. And Lorne Michaels has never been a guy who thought any of his cast members were indispensable (to put it mildly). But this all smacks strongly of a negotiating posture: the network and Michaels are doing interviews here precisely to send Baldwin the message that he's not holding all the cards. And the reporter, Bill Carter, doesn't breathe a word of that, probably because he knows full well why they are giving him these interviews.
Of course, Greenblatt and Michaels have their own competing agendas:
Mr. Greenblatt did open the door to a possible disagreement with Mr. Michaels over the re-entry of "30 Rock" onto NBC's schedule. The show's sixth-season premiere has been postponed until midseason because of the pregnancy of its star, Tina Fey.
Of course, if Baldwin's future with the show is in doubt, that's one reason the network would not want to commit valuable Thursday night prime-time space, plus Greenblatt is taking charge of a fourth-place network and probably should keep his options open. But NBC has to keep Michaels happy, too; as the creator of Saturday Night Live, he remains a vital part of the network's brand image. Michaels' certainty here is obviously intended to send an unsubtle message that he will not be a happy camper if the network moves his prime-time baby out of its Thursday night sinecure.
I don't mean to pick on Carter, who in this article has at least offered us enough quotes from each of the participants that a skeptical reader can piece together what is really being said here; that's not always the case with this sort of journalism. But in general, reporters aren't doing their jobs if they don't report how someone involved in negotiations could stand to gain from taking a particular position in public, and worse still if they straight-facedly claim that someone will never make a particular concession (e.g., Jose Reyes won't talk about a new contract during the season), when in fact they might well do so for the right price. The dynamics of negotiations and how they are handled through the media can differ across situations, but there are a finite number of basic underlying approaches to negotiating, and they crop up across many different fields of endeavor.
Consider the debt ceiling debate - surely many Republicans would have preferred to pass 'cut, cap and balance,' and some were genuinely opposed to raising the debt ceiling at all. But for many people involved in the fight, pushing for the ideal policy, even if it was the policy they wanted, was also a matter of getting leverage to extract a better deal when the time came to compromise. Similarly, many Republicans sincerely opposed any deal that would raise any taxes at all; others may have been willing to trade some revenue-raisers for something better, but found it convenient to stay in line with the ATR pledge against tax hikes as a posture unless and until that better offer materialized. None of this is insincere; it's just good bargaining.
Learn to look for the signs of negotiating postures between the lines of news articles, and they will surface again and again in every section of the paper.
Posted by Baseball Crank at 12:26 PM | Baseball 2011 | Basketball | Business | Football | Law 2009-13 | Politics 2011 | Pop Culture | War 2007-12 | Comments (0) | TrackBack (0)
July 14, 2011
BASEBALL/LAW: No Decision For Clemens
June 29, 2011
LAW/POLITICS: The Centralizing Impulse
Michael Barone has an excellent essay on what the partial dissent in Wal-Mart v Dukes says about how businesses should be run. As someone who practices a lot of class action defense, my main interest in the case* was the procedural aspects, including the point on which the Court was unanimous: you can't use Rule 23(b)(2)'s mandatory, no-opt-out class action device and "Trial by Formula" for suits seeking individual damages. But Barone focuses on the real fissure that led to the 5-4 split on whether the case presented common, class-wide issues - the fact that Wal-Mart delegates discretion over personnel decisions down to the local store level and holds managers accountable simply for results - and how the dissent's approach would spell the end of that entire management style. This feeds into one of Barone's larger points: so much of "progressivism" is, for all its emotional hostility to big business, fundamentally dependent on an economy and society in which decisions are made on a nationwide basis by large, centralized institutions like big corporations, the federal government and large labor unions. Defined-benefit pension plans, nationwide class actions, a massively complex corporate tax code, volumes upon volumes of federal regulations - all these things are spectacularly ill-suited to addressing a decentralized world in which even people connected to large institutions are genuinely empowered at the local level, to say nothing of their poor fit with smaller businesses that lack the economies of scale to cope with byzantine federal regulatory demands, rent-seeking plaintiffs lawyers and long-term pension and health care costs for current employees.
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* - Disclaimer: My firm was involved in the case, this post is solely my own opinion, etc.
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June 28, 2011
June 9, 2011
LAW/POLITICS: The Perils of Complexity
As a practicing lawyer, I naturally have a professional interest in vague and/or complex legal rules that require lots of expensive legal research, training and experience to understand and explain. But complexity isn't just costly to consumers of legal services, and thus a burden on business as well as on citizen access to the courts. It's also a drag on the economy and on personal liberty, as businesses and ordinary citizens must choose between paying lots of compliance lawyers or steering too wide of increasingly large gray areas. It risks in particular the unfair, arbitrary and sometimes corrupt or discriminatory abuse of the criminal justice system to prosecute things that were hard to foresee as violations of the law. And it demeans democracy, as the actual making of law is done by judges and bureaucrats rather than citizen-elected legislators.
One of the greatest virtues of Justice Scalia in his quarter-century on the Supreme Court (he celebrates 25 years on the High Court in September) has been his structural critique of, and systemic assault on, unnecessary legal complexity. In three opinions this morning, he focused attention on three different aspects of that same problem - one of which was graphically illustrated by yesterday's news regarding the widespread practice of waivers under Obamacare. And last week's news regarding the indictment of John Edwards illustrates how the failure to heed Scalia's wise observations has made a hash of efforts by campaign finance "reformers" to regulate political speech in the United States.
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1. Sykes v United States: Vagueness By Judging
In the first case, Sykes v. United States, Scalia dissented from an opinion by Justice Kennedy regarding the Armed Career Criminal Act, which punishes the possession of firearms by felons with three prior "violent felony" convictions. Congress, however, did not set out an exhausive list in the ACCA of what is a "violent felony," and since every state has its own set of felonies, there has been repeated litigation over what is and is not a "violent felony," and the Court has adopted a variety of tests for determining whether a particular state felony counts. Blasting "today's tutti-frutti opinion" for failing to choose among these tests, Scalia tore into the entire process of using repeated Supreme Court cases to define what Congress, in the ACCA, has failed to define:
As the Court's opinion acknowledges, this case is "another in a series,"...More specifically, it is an attempt to clarify, for the fourth time since 2007, what distinguishes "violent felonies" under the residual clause of the [ACCA], from other crimes. We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.
My assessment has not been changed by the Court's later decisions in the ACCA "series." Today's opinion, which adds to the "closest analog" test ... the "purposeful, violent, and aggressive" test ... and even the risky-as-the-least-risky test that I had proposed as the exclusive criterion, has not made the statute's application clear and predictable. And all of them together - or even the risky-as-the-least-risky test alone, I am now convinced - never will. The residual-clause series will be endless, and we will be doing ad hoc application of ACCA to the vast variety of state criminal offenses until the cows come home.
Scalia found especially unhelpful the Court's technocratic analysis through crime statistics of what felonies tend to be associated with violence (a chronic problem with using the ever-changing body of social science research to determine the meaning of a statute or Constitutional term that was adopted at a fixed point in time):
[T]he more fundamental problem with the Court's use of statistics is that, far from eliminating the vagueness of the residual clause, it increases the vagueness. Vagueness, of course, must be measured ex ante - before the Court gives definitive meaning to a statutory provision, not after. Nothing is vague once the Court decrees precisely what it means. And is it seriously to be expected that the average citizen would be familiar with the sundry statistical studies showing (if they are to be believed) that this-or-that crime is more likely to lead to physical injury than what sundry statistical studies (if they are to be believed) show to be the case for burglary, arson, extortion, or use of explosives? To ask the question is to answer is to answer it.
Finally, Scalia homes in on the real culprit: an overly-meddlesome Congress:
We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step - indeed, I think it would be highly responsible - to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.
2. DePierre v. United States: Lawmaking By Legislative History
One of Justice Scalia's best-known crusades, at least among lawyers, is against the use of legislative history to determine the meaning of statutes. Now, there are good reasons at times to look at the historical record at the time a statute or Constitutional provision was enacted to get a general sense of how terms were understood at the time and what problem a particular enactment was targeted at, but Scalia's point is twofold: (1) when Congress speaks clearly, its work should not be undone by what was said at some point by some participant in the legislative debate and (2) legislative history is rarely a trustworthy guide to what the majority who voted for a bill intended - it can easily capture just the thinking of some staffers. And of course, if you have to research legislative history every time lawyers argue over a statute, that makes litigation more expensive, and the law harder to understand for non-lawyers who don't keep volumes of USCCAN on their bookshelves.
In a characteristically acid-tipped concurrence to an opinion by Justice Sotomayor holding that "cocaine base," for sentencing purposes, includes all forms of cocaine base and not just crack, Justice Scalia unloaded on the Court for taking the time to include a discussion of legislative history in its analysis:
Everything in-between could and should have been omitted. Even if Dr. Byck had not lectured an undetermined number of likely somnolent Congressmen on "the damaging effects of cocaine smoking on people in Peru," ... we would still hold that the words "cocaine base" mean cocaine base. And here, as always, the needless detour into legislative history is not harmless. It conveys the mistaken impression that legislative history could modify the text of a criminal statute as clear as this. In fact, however, even a hypothetical House Report expressing the Committee's misunderstanding (or perhaps just the Committee staff's misunderstanding, who knows?) that "cocaine base means crack cocaine" could not have changed the outcome of today's opinion.
3. Talk America, Inc. v. Michigan Bell Telephone Co.: Lawmaking By Bureaucratic Fiat
In the third of today's trilogy, Justice Scalia filed a concurrence to an opinion by Justice Thomas regarding the meaning of some FCC regulations. There are longstanding rules (subject to some exceptions not relevant here) under which courts defer to administrative agencies in determining the meaning of the statute the agency is charged with enforcing. Justice Scalia wrote separately to explain why he was rethinking one corollary to that rule, extending deference to an agency's interpretation of its own regulations:
On the surface, it seems to be a natural corollary - indeed, an a fortiori application - of the rule that we will defer to an agency's interpretation of the statute it is charged with implementing ... But it is not. When Congress enacts an imprecise statute that it commits to the implementation of an executive agency, it has no control over that implementation (except, of course, through further, more precise, legislation). The legislative and executive functions are not combined. But when an agency promulgates an imprecise rule, it leaves to itself the implementation of that rule, and thus the initial determination of the rule's meaning. And though the adoption of a rule is an exercise of the executive rather than the legislative power, a properly adopted rule has fully the effect of law. It seems contrary to fundamental principles of separation of powers to permit the person who promulgates a law to interpret it as well. "When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner." Montesquieu, Spirit of the Laws ...
Obamacare Waivers and Bureaucratic Lawmaking
The issue of combining the executive and judicial functions was a great source of controversy during the Bush years, as many liberals reacted with loud horror at the Bush Administration's use of "signing statements" - a longstanding practice used by all prior Administrations - to announce where it would not comply with laws it deemed unconstitutional. Yet the problem has mushroomed under the Obama Administration, with nary a peep from the same critics - not only has Obama continued the use of signing statements, he has also refused to defend the constitutionality of duly-enacted laws. And of course, the excessive reliance on bureaucracies to make, enforce and construe the law has expanded apace under this Administration together with its push for more regulations, more "czars," and more government meddling in business.
The latest example of this is the news that Obamacare - the bill you famously had to pass to find out what was in it - doesn't expressly authorize the Department of Health and Human Services to grant waivers from the statute's requirements:
[T]he Department of Health and Human Services (HHS) never had the authority to issue waivers from Obamacare's annual limit requirements.
This is a far larger issue than signing statements, given the massive reach of the statute into American domestic life, and the waiver process is a graphic real-world illustration of Justice Scalia's concern about arbitrary enforcement when laws are not clear on their face, accountable to Congress and applied uniformly across the population:
In what's become a bit of a pattern for the Obama administration, there's at least an appearance of political favoritism in favor of those who lobbied for HHS to grant itself waiver power. Many of the administration's nearly 1,400 waivers, including the waivers that went to House Minority Leader Nancy Pelosi's San Francisco district in April, went to companies and entities that lobbied their support behind HHS's drive to grant itself that power.
United States v Johnny Edwards
For another such graphic illustration, look no further than John Edwards, a two-time presidential candidate who 59 million Americans voted to make Vice President in 2004, and who now stands under indictment for taking money from contributors to cover up an affair and illegitimate child. I have no sympathy whatsoever for Edwards, but after the initial rush of schadenfreude wore off, the fact remains that his criminal prosecution, too, raises some troubling questions about the complexity of the law. Much of the original debate about the legal investigation of Edwards was about whether he could be charged with misusing campaign contributions to pay off his mistress, on the theory that this is not a valid campaign purpose. But instead, Edwards was charged under precisely the opposite theory: that taking money from big backers to pay off his mistress, without reporting them as campaign contributions, violated FEC rules because paying her off was for the purpose of advancing his campaign. Edwards was damned if he did and damned if he didn't.
This is, if you recall, not the first time a major figure on the national political scene has faced a campaign finance investigation or prosecution under rules that are far from clear, ranging from the IRS investigation of then-Speaker Newt Gingrich to the investigation of then-Vice President Al Gore to the conviction of former House Majority Leader Tom DeLay. In each case, there was much controversy over the complexity of the rules involved and the lack of precedents for the charges being levelled - witness Gore's famous lament, under a provision of the Pendleton Act that hadn't been enforced since 1883, that there was "no controlling legal authority." You may find these protestations unconvincing as to those politicians you disagree with, but one of the basic principles of clarity in the law is that you shouldn't pass criminal statutes if you wouldn't be prepared to see them used against someone you like. Ad hoc-racy is not democracy in the world of campaign finance any more than it is under the ACCA.
Maybe we need to listen more to Justice Scalia and that old military maxim, KISS: Keep It Simple, Stupid.
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April 13, 2011
BASEBALL/LAW: Not Buying Bonds
So the verdict has come down in the Barry Bonds trial, and while the jury was unable to reach a verdict on three counts of perjury, they convicted Bonds of one count of obstruction of justice based on his grand jury testimony regarding whether he was given steroids or HGH by his trainer, Greg Anderson, or allowed Anderson or others besides his doctor to inject him. As with the Manny Ramirez story, this is yet another example of how baseball news has been unable to escape the hangover of the PED scandals.
While I recognize that perjury in a grand jury setting is a huge red flag for any prosecutor, I ultimately think this case was a waste of resources by the Justice Department; it's hard to see how the whole steroids ring was that major a law enforcement priority to begin with, or Bonds' testimony that crucial to it, that it was really going to be a useful exercise to pour enormous resources into a public trial of the man. (For background, some thoughts here and here on what makes up a serious enough case of perjury to be worth prosecuting). And that's coming from a guy who's hated Bonds for nearly 25 years now.
But while I'm skeptical of the prosecution, the jury verdict isn't as nonsensical as some people are making it out. Here's what the judge apparently told the jury about the charges. Unlike the perjury statute, on which I did some work in law school, I am not that well-versed in the caselaw under 18 USC 1503, the obstruction statute; according to a summary on the Justice Department's website, obstruction can include the following:
Giving false denials of knowledge and memory, or evasive answers...or false and evasive testimony...False testimony may be a basis for conviction, ...however, false testimony, standing alone, is not an obstruction of justice.
(Citations omitted; it doesn't seem from the cases cited that the Supreme Court has yet laid out a definition of obstruction other than to require a very specific intent in false-statements-to-investigators cases). Here, the judge charged the jury in the perjury counts that they needed to find the following elements:
1. The defendant testified under oath before a grand jury;
By contrast, the obstruction charge:
In order for the defendant to be found guilty of Count 5, the government must prove each of the following elements beyond a reasonable doubt:
In short, if the jury found that Bonds' statements were intentionally evasive or misleading, they could convict even without being convinced that they were outright false. That's a significant difference, and would seem to justify the jury in convicting on an obstruction charge on the same facts on which they were unable to convict on perjury. The statement he was convicted on was Statement C in the charge:
Q: Did Greg [Anderson] ever give you anything that required a syringe to inject yourself with?
Presumably, the jury may have felt that Bonds was misleading or evasive by deflecting this question with a denial that he'd had anybody inject him, without explicitly denying what he was asked - whether Anderson gave him something to inject himself with. Which is a common-sense enough reading of that testimony. At least under the perjury statute, it's not a crime to give a literally true answer that evades the question, the lesson of which - hammered home to most lawyers - is that you need to keep asking until the witness is pinned down. As I said above, I'm not really sure if this is the law under the obstruction statute, but it's safely within what the judge told the jury, so you can't fault them for following instructions.
March 21, 2011
LAW: Regulating The Fourth Amendment Out of Existence
The Fourth Amendment, which protects Americans from unreasonable searches and seizures and demands that judicial officers issuing search warrants do so only on a showing of probable cause, is an important guarantee of our civil liberties, designed to protect personal privacy - especially in the home - from random governmental snooping. The Fourth Amendment tends to get a lot of bad press because it is usually enforced only by the Exclusionary Rule, which keeps the government from using illegally obtained evidence; by definition, the Exclusionary Rule protects only the rights of people with incriminating evidence to hide. It's also subject to various common-sense exceptions to allow law enforcement to operate on public streets when a warrant is impractical or public safety is imminently threatened. But whatever the misuses of the Exclusionary Rule, the protection against unreasonable searches and seizures remains a core Constitutional right.
And like all such rights, it is bound to come under more pressure the larger the regulatory state grows and the further it sinks its tentacles into every avenue of our existence. The growth of the regulatory state is a much greater threat to rights like these than are ordinary law enforcement or even the national security state, both of which are much more narrowly focused in their goals and thus unlikely to expend much effort harassing ordinary citizens.
A clear example of how the growth of the regulatory state threatens the rights protected by the Fourth Amendment was pointed out this morning by Justice Alito, in an opinion joined by Chief Justice Roberts, Justice Scalia and Justice Thomas concurring in the denial of a certiorari petition (scroll to the last two pages of the pdf):
Our cases recognize a limited exception to the Fourth Amendment's warrant requirement for searches of businesses in "closely regulated industries." ...The thinking is that, otherthings being equal, the "expectation of privacy in commercial premises" is significantly less than the "expectation in an individual’s home." ...And where a business operates in an industry with a "long tradition of close government supervision" - liquor dealers and pawnbrokers are classic examples - the expectation of privacy becomes "particularly attenuated."...
(Emphasis added; citations omitted).
Justice Alito went on to note that the Court was properly declining to take the case for procedural reasons: the decision came from an intermediate appellate court, not a state Supreme Court, and thus didn't meet the Court's usual criteria for resolving disputed issues of federal law. But it is noteworthy nonetheless that the Court's four conservative Justices felt it important to remind lower courts that the creeping expansion of regulation up to the very doorstep of private homes - the heartland of the Fourth Amendment's protections - should not be used as an excuse to treat private property's privacy as yet another thing subject to bureaucratic whim.
January 19, 2011
POLITICS/LAW: The Winning Statistic in the Same-Sex Marriage Debate
There are a welter of issues raised by the public policy debate over same-sex marriage and whether to treat it, for purposes of the law, as identical to traditional opposite-sex marriage. Among other things, there is the broader debate over the propriety of valuing tradition (i.e., the collected experience by trial and error of large numbers of people over time) and the respect we give to broad-based popular sovereignty in evaluating human relationships. But even treated purely as a matter of quantifiable empirical social science, the legal debate comes down to whether there exists any rational basis for distinguishing the two relationships. The burden of establishing the complete absence of such a rational basis is on the proponents of court-mandated "marriage equality." And new Census data makes that burden harder to carry.
While I'm in favor of granting civil-union status to consenting same-sex adults, I have made the point at great length previously (see here and here) that the most obvious legal argument for why opposite-sex relationships are different from same-sex relationships - and can be recognized as such in democratically-enacted laws - is that they are vastly more likely to produce children, for reasons so biologically obvious they should not have to be repeated. Now the New York Times has given us some statistics from the Census Bureau that confirm the relatively low number of same-sex couples that are raising children (even before we get to the issue of bearing biological children): "About a third of lesbians are parents, and a fifth of gay men are." The Times article breaks this out by region, but even its most optimistic spin shows an incidence of child-rearing that would be very low by the standards of opposite-sex couples:
About 32 percent of gay couples in Jacksonville are raising children, Mr. Gates said, citing the 2009 Census data, second only to San Antonio, where the rate is about 34 percent.
Consider, by contrast, the overall Census data for married couples. If you compare the "All Families" line to the "With own children, any age" line, you can quickly calculate that 60.2% of married couples have children in the household, and 74% of those include at least one child under age 18. If you break it out by the age of the heads of household, you see that a very large proportion of married couples in the prime child-bearing years have children at home - 24.6% for married teenagers, 37.7%, 22.8% and 26.1% for married couples 55-64, 65-74 and age 75+, respectively, but for the prime years 58.5% (age 20-24), 69.8% (25-29), 80.6% (30-34), 86.2% (35-39), 84.9% (40-44), 77.8% (45-49), and 62.1% (50-54). And the declining numbers after age 55 simply reflect people who have finished the job of parenthood. If that's not a statistically significant disparity, what would be? I defy anybody to come up with any significantly-sized sample of same-sex couples at any age that shows over 80-85% to be engaged in raising children.
At the end of the day, this is why the real action in the legal battle - other than simply judge-shopping - is in the proponents trying to change the legal standard by which their evidence should be judged. Because the data is against them.
Posted by Baseball Crank at 12:00 PM | Law 2009-13 | Politics 2011 | Comments (27) | TrackBack (0)
December 13, 2010
LAW/POLITICS: The Mandate
I haven't had a chance to review it or collect my thoughts yet, but here's the just-issued opinion from the US District Court for the Eastern District of Virginia holding the individual mandate portions of Obamacare to be unconstitutional on the grounds that it exceeds the scope of Congress' Article I power over foreign and interstate commerce.
Posted by Baseball Crank at 12:27 PM | Law 2009-13 | Politics 2010 | Comments (21) | TrackBack (0)
August 30, 2010
LAW: The Billable Market
One of the enduringly stupid genres of legal writing is bemoaning the billable hour, which everyone hates but which has endured for a variety of practical reasons I've written about repeatedly in the past. This from the American Lawyer's AmLaw Daily is an extreme example of the genre:
Yet it survives because it has powerful defenders, including the U.S. Supreme Court's conservative five-man majority. Yes, the obstacles facing those seeking better days are that formidable.
This ignores the fact that - as the Court pointed out - the Court would be open to reconsidering its rule if the market changed, i.e., the market for legal services not subject to court approval but negotiated between willing parties with their own money. The job of the court in approving fee-shifting awards (or in class action or bankruptcy cases) is to attempt to produce a judicial resolution that best approximates what would be negotiated privately. If the private market changes, so will the law.
August 5, 2010
LAW/POLITICS: The Prop 8 Decision: Having It Both Ways
Judge Vaughan Walker, the chief district judge of the US District Court for the Northern District of California, handed down his post-trial decision yesterday in Perry v. Schwarzenegger, holding that Proposition 8 - the referendum approved by California voters in 2008, amending the California Constitution to define marriage as between a man and a woman and thus deny recognition to same-sex "marriages" - violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the federal Constitution. In a larger sense, the lawsuit, seeking to overturn judicially a status quo that has existed for essentially all of human history and was only recently reaffirmed by the California electorate, is yet more proof that it's not conservatives who are on the offensive in the 'culture wars'. But even focusing on the judicial process, and setting to one side its reliance on the oxymoronic concept of "substantive due process," Judge Walker's decision is fundamentally flawed in three ways, two of which represent failures of reasoning and the third of which highlights the structural problem with substituting judicial "factfinding" for the collected judgment of a democratic electorate. Specifically:
(1) Judge Walker's decision is internally, logically inconsistent in its treatment of the worth of cultural values, arguing that morality and tradition are not a valid basis for supporting the legal status of marriage, but at the same time finding a Constitutional violation from the fact that the same-sex alternative (domestic partnerships) lacks the social and cultural status that marriage has...and which it derives from its grounding in longstanding moral, cultural and religious traditions;
(2) Judge Walker's decision ignores the compelling state interest in promoting childbearing and childrearing within the context of opposite-sex marriage, and the absence of such an interest in same-sex marriage, specifically ignoring the fact that heterosexual relationships produce many more children than homosexual relationships; and
(3) the whole idea of leaving core judgments about a society's most central and longstanding values to a single judge rather than respect the collective wisdom of a diverse electorate is fundamentally anti-democratic.
Let's review these one at a time.
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Refresher: The Legal Posture
To recap for the non-lawyers or those who haven't followed the case, Judge Walker conducted a trial and issued a 138-page decision that included both "Findings of Fact," i.e., his conclusions of what the evidence showed, and "Conclusions of Law," i.e., the legal impact of those facts under federal law. The decision can be appealed to the US Court of Appeals for the Ninth Circuit, and from there to the US Supreme Court. Because Proposition 8 amended the California Constitution, there was no opportunity to resolve the case under state law; either Proposition 8 violates federal law, or it is valid. California has a fairly broad-reaching "domestic partnership" law that gives many of the legal benefits of marriage to same-sex couples, so the plaintiffs in Perry had to argue mainly that not using the term "marriage" was itself improper discrimination banned by the Fourteenth Amendment.
Under the Supreme Court's controversial 1996 decision in Romer v Evans, authored by Justice Kennedy, current federal law subjects a state constitutional amendment passed by referendum to the same three-tiered structure of Fourteenth Amendment review as any other state statute. The highest tier of that review, "strict scrutiny," applies when a state draws distinctions on the basis of some suspect classification such as race, or burdens a right deemed "fundamental" by the courts; the lowest level, generally applied to most types of legislation, is "rational basis" review, which at least in theory is supposed to uphold any law that has any arguably sane basis whatsoever. The Supreme Court has never held that distinctions on the basis of sexual orientation trigger strict scrutiny, and thus while Judge Walker tiptoes around the concept, his decision is principally aimed at arguing that putting a separate and distinct value on traditional, opposite-sex marriage is insane and irrational. As Judge Walker properly stated the standard:
The court defers to legislative (or in this case, popular) judgment if there is at least a debatable question whether the underlying basis for the classification is rational...Most laws subject to rational basis easily survive equal protection review, because a legitimate reason can nearly always be found for treating different groups in an unequal manner.
(p. 118, 119).
(1) What Value Culture?
Judge Walker conceded the obvious: "The evidence at trial shows that marriage in the United States traditionally has not been open to same-sex couples." (p.112). He nonetheless insisted that Prop 8 infringed the "fundamental right to marry," (p. 117) claiming that "Plaintiffs do not seek recognition of a new right. To characterize plaintiffs' objective as 'the right to same-sex marriage' would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy - namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages." (p. 114). This is classic question-begging, as the entire point of Prop 8 is to define what is and is not marriage, and he's just admitted that same-sex relationships have traditionally not been defined as marriage.
Seeking to characterize a rule that has existed throughout history as insane, Judge Walker first engaged in a sort of pop evolutionary history:
The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry...Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.
(p112) But to open a quarrel with the past, in Churchill's turn of phrase, is not sufficient; given the deep roots of traditional marriage in nearly every aspect of our society and history, Judge Walker must find a way to categorically exclude those considerations:
Tradition alone...cannot form a rational basis for a law....The "ancient lineage" of a classification does not make it rational....Rather, the state must have an interest apart from the fact of the tradition itself....
(p. 124-26, 130, 135)
52. Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States...
From this, he concluded:
The evidence shows that domestic partnerships do not fulfill California's due process obligation to plaintiffs for two reasons. First, domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage...Second, domestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples...
(p. 115-16). Suddenly the "social meaning" and "cultural meaning" and "status" of marriage is not irrelevant, but essential. This is what economists call free riding: traditional marriage gains social and cultural significance by long experience and association with moral, religious and cultural norms - and yet it is constitutionally improper to deny the same status to an institution that doesn't comply with those norms. Judge Walker puts the culture on one side of the scale while lifting it off the other, which may be many things but surely is not equal justice under law. It's this analysis, not the view of the California electorate, that fails the test of basic rationality.
This analysis also reveals why this is not, as some would have it, a libertarian, live-and-let-live decision at all. No liberty is at stake here, in the sense of preserving some activity from government sanction, and indeed few if any of the rights of property and contract are denied to domestic partners in California. Instead, what the plaintiffs in Perry seek is the government to help them obtain the affirmative social and cultural approval of their neighbors.
(2) Marriage and Children
Judge Walker also found insufficient the entirely rational proposition that society values traditional marriage because of its blindingly obvious relationship with the bearing and begetting of children:
The court asked the parties to identify a difference between heterosexuals and homosexuals that the government might fairly need to take into account when crafting legislation...Proponents pointed only to a difference between samesex couples (who are incapable through sexual intercourse of producing offspring biologically related to both parties) and opposite-sex couples (some of whom are capable through sexual intercourse of producing such offspring)...Proponents did not, however, advance any reason why the government may use sexual orientation as a proxy for fertility or why the government may need to take into account fertility when legislating...No evidence at trial illuminated distinctions among lesbians, gay men and heterosexuals amounting to "real and undeniable differences" that the government might need to take into account in legislating...
(p. 121-22, 128). The screamingly obvious fact that Judge Walker's legal analysis ignores is right there at #49 on his list of findings of fact:
49. California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology. Approximately eighteen percent of same-sex couples in California are raising children.
Now, I don't have the numbers handy here, but I'd bet every penny I have that very significantly more than 18% of opposite-sex married couples, even in California, have children. And if you looked at the numbers, it's likely the disparity would be even larger if you counted by number of children rather than number of households, as for a variety of reasons (including religious and cultural beliefs and just enjoying the baby-making process), opposite-sex couples are far more likely to have families of three or more children.
Remember that laws routinely pass rational basis review without a 100% fit between means and ends (almost nothing would be left of the New Deal and Great Society otherwise) - the government is very much permitted to draw distinctions based on probabilities and incentives. The mere fact that some same-sex couples bear children and others adopt them, while some opposite-sex couples do neither, doesn't change the basic fact that opposite-sex relationships are overwhelmingly more likely to produce children.
To use a hypothetical I've used before, let's say that you're an investor in a new planned community, to be started from scratch in a part of the country that presently has little population. And let's further suppose that, based on the mix of businesses you are hoping to attract to your planned community, your consultants and investment bankers inform you that the economic assumptions of the project require that a fairly large proportion of the new residents be families with children. And, finally, let's suppose that you had a finite budget for advertising and sales, and that budget included a deal with an airline to bring in, say, 500 prospective residents at little or no cost to inspect the place. It doesn't matter what your agenda or your biases are - acting out of pure rational economic self-interest, wouldn't you very strongly prefer that the 500 seats went to opposite-sex married couples? Aren't they very obviously the people most likely to produce children in general, and multiple-child families in particular? Is it really so irrational to believe that a set of 250 opposite-sex married couples would, in almost any conceivable circumstance, produce more children than 250 same-sex married couples of the same age and socioeconomic background? If that isn't a rational conclusion for government to draw, there are precious few of the conclusions supporting any legislation that will withstand scrutiny.
Judge Walker's "fertility" analysis is off-base in a number of other ways that I explored at much greater length in my 2005 essay on this topic. First, the government absolutely does have an interest in ensuring that there is a next generation; not only does economic growth require a growing population, but the fiscal stability of government becomes ever more dependent on a growing population the more it creates presently unfunded liabilities to future retirees. Anyone vaguely familiar with the position of public pensions in California can tell you why the state will need more taxpayers 25 years from now.
Second, just because Lawrence v. Texas limited the state's power to prevent some types of sexual activity outside of marriage doesn't change the fact that the state absolutely has an interest in encouraging sex to occur within marriage, and that interest is vastly greater when it is procreative sex. To be blunt, gay sex does not lead to illegitimacy or abortion - and thus the state's interest in the subject is less vital.
(3) Here, The People Do Not Rule
The third problem with the Perry decision goes beyond Judge Walker's analysis, but it starts with the procedural status of the case. As you can see from the preceding discussion, Judge Walker heard evidence and reached conclusions of "fact," which at least in theory will be given deference on appeal as if he was a jury deciding who killed Nicole Simpson. That's why getting a sympathetic judge can be so important in a case like this, and naturally these plaintiffs filed this case in a district in which Judge Walker was the chief judge and assigned the case to himself - a different judge or a different district might have meant different "facts." And his decision is full of sweeping generalizations, both "fact" and inference from fact, that might not be universally uncontroversial:
71. Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted....
(p. 125-26, 132) Defenders of Judge Walker's ruling will undoubtedly argue that these are perfectly reasonable conclusions from the evidence presented in court. And Judge Walker's factual findings and legal conclusions cast a jaundiced eye on the 'evidence' presented during the election campaign:
45. Proponents' campaign for Proposition 8 assumed voters understood the existence of homosexuals as individuals distinct from heterosexuals...
(p. 133-34). Just imagine the horror - campaigns that oversimplified the issues and relied on pre-existing assumptions and scare tactics! There oughta be a law!
There is something fundamentally wrong with this process and its repeated application to judicial scrutinty of the views of the voters and their elected representatives. Consider the following passage:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. - That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, - That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
"Self-evident"? That would not pass muster under the analysis applied by Judge Walker, given that Thomas Jefferson cited no statistics, no sociological studies compiled by sympathetic scientists. Yet it remains the foundation of the very existence of our Republic. The Founding Fathers sometimes relied (if you have read the Federalist Papers) on concrete if anecdotal examples, but very often the laws and rules set down then as now were based on the common experience and judgment of the people and their leaders. Part of the beauty of democracy, especially in a large and diverse nation, is that the voters never need to say why. And yet this subjection of the judgment of the many to the second-guessing by the 'expert' few renders that popular privilege meaningless, and literally excludes common sense from the permissible bases of law.
For all of the supposed commitment of Prop 8's liberal opponents to diversity and its benefits in making decisions, this judicial approach tramples the rich tapestry of the enormously diverse California electorate. Detailed analyses showed, for example, that Prop 8 drew the support of 49% of white voters, 58% of African-American voters, 59% of Latino voters, 49% of women, 54% of men, 53% of independents and 67% of voters over 65. Every one of those voters entered the voting booth with their own opinions and life experiences that rendered them - with all due respect to Judge Walker - every bit his equal in their ability to decide the value of traditional marriage, the merits of same-sex rationships, the importance of motherhood, and other issues implicated here. In a nation that respected democracy, those votes would count, and the more numerous faction would decide - unless the people had by previous agreement placed the issue beyond elections (as plainly, nobody had reason to think they were doing with regard to the definiton of marriage when they ratified the Fourteenth Amendment in 1868). Instead, the vote was re-cast by an electorate of one - one attorney, white, male, Republican (Judge Walker was originally proposed for the bench by Ronald Reagan) and in many other ways unrepresentative of the California electorate as a whole.
The American people deserve more respect than that.
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Posted by Baseball Crank at 12:00 PM | Law 2009-13 | Politics 2010 | Comments (32) | TrackBack (0)
July 21, 2010
LAW/POLITICS: Swallowing The Rule
Randy Barnett looks at the radicalism of the legal theory invoked to defend Obamacare. Barnett admits that he himself adheres to a particularly narrow view of the scope of federal powers and particularly broad view of the Ninth and Tenth Amendments, but as he points out, even if you don't buy his vision of the Constitution, the counter-argument would all but eliminate the existing limits on Congress' enumerated powers. Key excerpt:
[W]e are all looking at the law as it currently exists and observing that the Supreme Court has never upheld the use of the commerce power to mandate that everyone engage in economic activity. All it has ever done is regulate or prohibit those who choose to engage in economic activity. As such there is no existing authority for extending the Commerce Clause this far.
Read the whole thing.
March 29, 2010
POLITICS: 8-K? What's An 8-K?
Coming as it does somewhat within my area of professional expertise, this is perhaps the most alarming example yet of the complete ignorance of the Obama Administration and Capitol Hill Democrats regarding how business operates - and to think these same people will be voting on overhauling financial services regulation:
The White House political and legislative operations were said to be livid with the announcement by several large U.S. companies that they were taking multi-million or as much as a billion dollar charges because of the new health-care law, the issue was front-and-center with key lawmakers. By last Friday, AT&T, Caterpillar, Deere & Co., and AK Steel Holding Corp. had all announced that they were taking the one-time charges on their first-quarter balance sheets. More companies were expected to make similar announcements this week.
Read the whole thing. H/T Moe Lane. Then, read Mark Steyn's explanation of the specific change at issue and why it's likely to change corporate behavior:
In 2003, Washington blessed a grateful citizenry with the Medicare prescription drug benefit, it being generally agreed by all the experts that it was unfair to force seniors to choose between their monthly trip to Rite-Aid and Tony Danza in dinner theatre.
Now, let me explain this real simple: If you do something that's going to cost a company a lot of money, they have a whole lot of legal reasons why they have to tell their shareholders that sooner or later. And, if they're being prudent, they will tell them sooner rather than later when it starts showing up in the company's cash flow and the stockholders panic. Dennis the Peasant goes through this in a bit more detail, and he and Erick and Ace all look at Waxman's plan to drag the disclosing CEOs before a Congressional committee to explain why they are daring to inform their shareholders of the impact that the new regulations, specifically the withdrawal of tax breaks, will have on their business.
At least honest leftists would admit that yes, they were doing something genuinely harmful to publicly traded employers, although honest leftists would next try to pass even more laws to prevent the companies from doing anything to pass on the costs to employees, customers and/or taxpayers so as to preserve enough return to shareholders to enable the company to keep raising capital to stay in business. But in the happy-fairy-land of guys like Obama and Waxman, there are never any costs or tradeoffs to heaping new taxes and regulations on businesses in the middle of a recession, and no behavioral incentives changed when you meddle with the tax code.
The level of ignorance here is staggering. George W. Bush understood this stuff. Sarah Palin understands this stuff. Yet, these people whose self-image depends on telling themselves how much smarter than Bush and Palin they are, are continually taken by surprise by these things.
Posted by Baseball Crank at 6:56 PM | Business | Law 2009-13 | Politics 2010 | Comments (25) | TrackBack (0)
March 23, 2010
LAW: Triple FAIL
Here's the opening of the syllabus of today's lone Supreme Court opinion, United Student Aid Funds, Inc. v. Espinosa, No. 08-1134, a unanimous decision written by Justice Thomas:
A plan proposed under Bankruptcy Code (Code) Chapter 13 becomes effective upon confirmation, see 11 U. S. C. ss1324, 1325, and will re-sult in a discharge of the debts listed in the plan if the debtor completes the payments the plan requires, see s1328(a). A debtor may obtain a discharge of government-sponsored student loan debts only if failure to discharge that debt would impose an "undue hardship" on the debtor and his dependents. ss523(a)(8); 1328. Bankruptcy courts must make this undue hardship determination in an adversary proceeding, see Fed. Rule Bkrtcy. Proc. 7001(6), which the party seeking the determination must initiate by serving a summons and complaint on his adversary, see Rules 7003, 7004, 7008. Respondent Espinosa's plan proposed repaying the principal on his student loan debt and discharging the interest once the principal was repaid, but he did not initiate the required adversary proceeding. The student loan creditor, petitioner United, received notice of the plan from the Bankruptcy Court and did not object to the plan or to Espinosa's failure to initiate the required proceeding. The Bankruptcy Court confirmed the plan without holding such a proceeding or making a finding of undue hardship. Once Espinosa paid his student loan principal, the court discharged the interest. A few years later, the Department of Education sought to collect that interest.
If you're keeping score at home:
(1) The debtor failed to use the proper procedure to request the discharge of his interest obligations;
(2) The creditor failed to object when given notice of this defective proceeding; and
(3) The court failed to make the necessary findings to justify the discharge.
Can't anybody play this game?
Sensibly enough, after being presented with this train wreck of mutual malpractice, the Court decided to let sleeping dogs lie, holding that the creditor couldn't go back later on and reopen the judgment, having failed to object at the time (the creditor had argued, and the Ninth Circuit had agreed, that the court's failure to make the hardship finding was equivalent to acting without jurisdiction and thus voided the judgment even without a timely objection).
February 23, 2010
LAW: A Small Victory For Federalism
A unanimous Supreme Court this morning, in Hertz Corp. v. Friend, No. 08-1107 (U.S. Feb. 23, 2010), held that a corporation's "principal place of business" under the federal diversity-jurisdiction statute and the Class Action Fairness Act (CAFA)
refers to the place where the corporation's high level officers direct, control, and coordinate the corporation's activities. Lower federal courts have often metaphorically called that place the corporation's "nerve center." ... We believe that the "nerve center" will typically be found at a corporation's headquarters.
At first blush, while Justice Breyer's opinion is of great practical interest to commercial litigators, it would seem to be little more than a routine dispute over the construction of a federal statute governing the jurisdiction of the federal courts. But buried within is a small victory for horizontal federalism or what I have long referred to as "federalism's edge," i.e., protecting the balance of federalism from being upset by a single state's efforts to assert jurisdiction over the nation as a whole. Stay with me for just a bit of background and you'll see why.
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The Hertz case reached the Supreme Court because the Ninth Circuit had refused to apply the "nerve center" test used by other federal courts. The plaintiff brought an employment class action composed of California citizens under California law in California state court. Hertz, which is headquartered in New Jersey, took advantage of a federal statute that has existed in one form or another since 1789 that permits "diversity" cases to be removed from state court to federal court. To simplify, diversity jurisdiction, which derives from the explicit language of Article III of the Constitution, gives the federal courts jurisdiction over lawsuits between citizens of one state and citizens of another state. The idea is that federal courts are a more neutral forum and less likely to be biased against out-of-staters. The statute does not, however, allow a defendant to remove a case from the courts of the state in which the defendant is a citizen, the theory being that a defendant won't be harmed by local prejudices in its own home state.
(I'll leave aside here the ways in which this statutory scheme was altered by the 2005 enactment of CAFA, governing nationwide class actions, as the Court's decision didn't turn on its jurisdictional idiosyncracies; the case also involved some procedural issues under CAFA).
A simple enough legal issue where human beings are involved, but as such things often do, the diversity rules get complicated to apply when one of the "citizens" involved is a corporation. The Constitution is silent on the issue, but Congress by statute has provided that a corporation is to be treated as a citizen of the state it's incorporated in (often Delaware) and the state where it has its "principal place of business."
What's a "principal place of business"? Well, courts in New York, Chicago and elsewhere had used the "nerve center" definition defined by the respected District Judge Edward Weinfeld in the 1950s, but the Ninth Circuit instead used a different rule - they let the plaintiff treat Hertz as having its principal place of business in California because that's where it had the most retail car rental locations and employees. You see the problem: California's the most populous state, so almost any company with operations distributed evenly across the country could be treated as a California corporation and denied recourse to federal court, even if the company was very obviously headquartered and identified with some other state.
The Supreme Court saw it too, and didn't buy it; the Court unanimously endorsed the "nerve center" rule, mainly because it was easier to apply in practice, but also mentioning how California's population could skew the question.
Some knee-jerk observers of battles over federal and state court jurisdiction tend to regard anything that expands federal jurisdiction as an affront to federalism, and concededly an employment class action composed solely of California residents is in the usual case less of a threat to expansion of California law over the nation than the kinds of nationwide class actions CAFA was aimed at. But then, the Hertz rule doesn't prevent California state law from being applied by the federal courts. What it does is simply put California back on the same footing as other states in balancing the interests of out-of-state corporations sued by its residents. That balance of power among the states in applying the law within their borders to national enterprises is, too, part of the delicate balance of federalism.
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January 14, 2010
POLITICS/LAW: Martha Coakley, Bad Prosecutor
It's worth recalling, as the Massachusetts Senate election approaches, that Martha Coakley is not just some bland Democratic machine apparatchik. She's a bland Democratic machine apparatchik with a long record as a prosecutor that includes some very ugly things.
Exhibit A is the notorious case, familiar to readers of the Wall Street Journal over the past three decades, of Gerald Amirault. The case, discussed in summary here, was a terrible miscarriage of justice involving fantastical accounts of sex abuse of children, exposed by Journal reporter Dorothy Rabinowitz; it was originally prosecuted by another politically ambitious Democrat, Scott Harshbarger. And then:
When Martha Coakley became district attorney of Middlesex County in 1999, the Amiraults were still in the news. But by this time hardly anyone believed they were guilty of the horrendous crimes they were alleged to have committed. In fact there was no evidence that anyone had abused any children in the Fells Acres Day Care.
That alone should disqualify Coakley as a candidate for higher office. But there's more. Such overzealousness is why criminal-defense-minded writers like Radley Balko and Jeralyn Merritt - neither of them exactly a right-wing Republican - are opposed to Coakley. Both cite other examples as well (Balko notes that Coakley first came to prominence in the notorious "shaken-baby" case against British nanny Louise Woodward, in which Woodward's murder conviction was reduced to manslaughter by the judge).
But overzealousness in questionable (or worse) cases isn't Coakley's problem. There's also the opposite, her lenient treatment of a Somerville cop who raped his 23-month-old niece - yes, a toddler - with a hot curling iron. Coakley's office let him out without bail pending trial; only under her successor was he convicted and sentenced to two life terms in jail.
It starts to be apparent that the persistent incompetence and tone-deafness of Coakley's campaign may not be a new thing for her.
SECOND UPDATE: But she is tough on ladies' gardening clubs.
THIRD UPDATE: Rabinowitz lays into Coakley.
November 24, 2009
WAR/LAW: Ignorance of History
Ed Morrissey has some fun with an article contending that if trials were good enough for the Nazis, they should be good enough for Al Qaeda - but completely ignoring the fact that the Nuremberg trials were military commissions without the full panoply of criminal procedures available today in federal court.
Posted by Baseball Crank at 12:33 PM | History | Law 2009-13 | War 2007-12 | Comments (13) | TrackBack (0)
November 23, 2009
WAR/LAW: Everyone Is A Critic
Want an illustration of problems faced by putting terrorists on trial that don't arise in military commissions or in ordinary criminal prosecutions? Try this:
A legal team is going to New York to prevent the use of evidence provided by Germany in seeking a death penalty. Berlin wants to ensure that promises made by the US are kept if the suspects are found guilty.
Now, we can certainly tell the Germans to mind their own damn business, but since the entire point of this exercise is good PR with the "international community," that's not going to advance the purpose of the trial.
November 20, 2009
BLOG: Quick Links 11/20/09
*Lots of interesting stuff out there on Sarah Palin and her book tour. the Daily Beast looks at how Palin's book and tour are a one-woman economic stimulus package. Obama's organization wants a part of that action too: Organizing for America says Palin's book tour is "dangerous," so please give them $5. As liberal writer Ezra Klein notes of the Palin coverage:
Liberal sites need traffic just like conservative sites, and the mainstream media needs traffic more than both. And Palin draws traffic. This is actually pretty good revenge for a politician who hates the media. The press had a good time showing Palin to be a superficial creature who relied more on style than on substance, and in getting the media to drop everything and focus on her book tour, she's proving that they're much the same.
Amazingly, two positive Palin pieces at Salon, and neither of them written by Camille Paglia: a favorable review of her book and a look at what she means and why she's not going away as a public figure.
And witness the McCain campaign's crack rapid-response team in action: more than a year after the election, the NY Times finally gets to talk to the stylist who bought the Palin family's clothes, and admits that Palin had nothing to do with the money that was spent.
*Mitt Romney takes apart how Obama's inexperience has led to his failure to set clear priorities and resulting lack of focus on the war and the economy while he pursues as-yet-unfinished health care and cap and trade bills and failed efforts to salvage the campaigns of Jon Corzine and Creigh Deeds. It's a mark of how inexperienced and incompetent Obama is that he can be lectured credibly on these points by a 1-term governor like Romney and a half-term governor like Palin. Michael Gerson looks in more detail at the mess that is Obama's decision-making process in Afghanistan.
The Southwest Georgia Community Action Council, after receiving about $1.3 million in funding from The American Recovery and Reinvestment Act, reported creating or saving 935 jobs in their Head Start preschool program that only employs 508 people.
*Patterico, as usual, is a man not to tangle with, and he remorselessly dismantles an LA Times columnist over the latest Breitbart ACORN videos. It's a facepalm with egg and crow!
*Jonathan Karl notices a $100 million payoff to Louisiana in the Senate healthcare bill to buy Mary Landrieu's vote. John Conyers, in griping about Obama's posture on the House bill, speaks about "the Barack Obama that I first met, who was an ardent single-payer enthusiast himself."
*Michael Rosen looks at Al Franken's so-called "anti-rape" bill that would preclude arbitration of sexual harrassment and various negligence-based employment claims. As Rosen notes, given that the law already bars arbitration of claims arising from rape, whereas the things it would actually change are much less dramatic, it is flatly false to describe opposition to the bill as being "pro-rape" - but then, that's pretty much Franken's M.O.
Posted by Baseball Crank at 9:48 AM | Blog 2006-13 | Law 2009-13 | Politics 2009 | Politics 2012 | War 2007-12 | Comments (9) | TrackBack (0)
November 19, 2009
WAR/LAW: Gee, I Had Not Thought of That
Lindsey Graham exposes the extent to which Attorney General Holder simply doesn't have a well-thought-out plan for how to handle interrogations of captured enemy combatants in a way that makes a rational distinction between those who should be given Miranda and other warnings in preparation for civilian prosecution, and those who should not. It's impossible for anybody involved in battlefield detentions to watch this video and come away with any sort of guidance from the nation's chief law enforcement officer. As a number of people have pointed out, whatever this is, it isn't the rule of law.
November 18, 2009
LAW: Alito Speaks
I had the pleasure of hearing Justice Alito speak at the Federalist Society Convention a few years back; I didn't make it this year, but apparently he was again both entertaining and insightful, and Above the Law has a recap. H/T. A highlight:
Referring to [then-Judge Sotomayor's] opening statement, Alito said, "There was not a word in that statement that was controversial, but that's not how it was received by her progressive audience." He cited as an example a post on the Federalist Society's Web site by Georgetown law professor Louis Michael Seidman, in which Seidman wrote, "I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified."
November 17, 2009
WAR/LAW/POLITICS: The Public's Not Buying The Trial
Here in New York, the Obama Administration's decision to try Khalid Sheikh Mohammed and other Al Qaeda terrorists in the civilian justice system in downtown Manhattan has garnered plenty of well-earned criticism, including from New York's leading anti-terrorism experts like Rudy Giuliani, Michael Mukasey (who handled the blind sheikh trial as a district judge before becoming President Bush's third Attorney General) and Andrew McCarthy (who was one of the prosecutors), and Long Island Congressman Peter King. And not just from the Right; even arch-liberals like Daily News sportswriter Mike Lupica have weighed in against the decision. Now the people are being heard from, and while the polls as usual show some diversity of opinion, the public is deeply skeptical of this enterprise even before it gets underway, let alone after what promises to be many months of grandstanding by the terrorists, gridlock in lower Manhattan, possible setbacks in the prosecution and the hemmhoraging of scarce resources on the trial(s) (as my retired-NYPD dad put it: "there's going to be plenty of overtime for the cops.").
The critics' bases for opposing a trial are numerous, and several of them are reviewed by Erick here. And the polls now show those criticisms are shared by a majority of the nation's voters and a significant minority even in liberal New York City, with the rest uncertain.
To quickly summarize the case against the trials:
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1) The trials are wholly unnecessary; the Administration is holding some enemy combatants without trial and trying others through the military commission system, thus conceding that it has alternatives. As a result, any risks, expenses or other downsides of the trials are being undertaken solely for the purpose of empty symbolism.
2) The trials risk disclosure of sensitive intelligence information and sources. This is the most significant objection of all.
3) The trials create a heightened risk or incentive for a terrorist attack/jailbreak effort in Manhattan.
4) The additional security required to guard against #3 will cost the federal and city governments a fortune, interfere with the administration of justice in a busy federal district and busy federal prison, add to the traffic and delays already extant in lower Manhattan, and place a great burden on the jurors, judge, and prosecutors.
5) The detainees, as they have shown in the past, are especially dangerous to guards, a problem that's more acute when in transit or in civilian prisons than in a facility like Guantanamo that's designed to house them.
6) The trials will give these extremists the opportunity to grandstand.
7) There is, inherent in civilian criminal trials and given the likelihood that the defense will seek to play politics with the trial, some risk of one or more acquittals or hung juries that would give a propaganda victory to the terrorists and destroy what little symbolic value the trials have if the defendants are remanded to custody after being acquitted.
8) There is a risk that, to guard against #7, rules and precedents governing criminal procedure will be distorted in ways that have lingering effects on the regular justice system.
9) Trying terrorists in civilian courts perversely rewards their war crimes; they have not earned the rights of either American citizens nor lawful combatants under international law, and should not be granted them.
Well, the polls are in, and the news should not be encouraging to the Administration. First, the Rasmussen poll, conducted nationally:
Fifty-one percent (51%) of U.S. voters oppose the Obama administration's decision to try the confessed chief planner of the 9/11 attacks and other suspected terrorists in a civilian court in New York City.
As Rasmussen notes from prior polls, "Most voters have consistently opposed moving any of the Guantanamo prisoners to prisons in the United States out of safety concerns." And public awareness is high:
Seventy-five percent (75%) of all voters say they have followed news stories about the decision to try the suspected terrorists in a civilian court at least somewhat closely. Thirty-nine percent (39%) say they have been following very closely. Only six percent (6%) are not following the news about the decision at all.
Locally, the Marist poll of New York City residents (H/T) finds a small plurality of the overwhelmingly Democratic City in favor of the trials - but a significant group opposed, and a larger minority among New Yorkers than nationally who are concerned about the elevated security risks:
45% of residents think it's a good idea to have the trial in New York City while 41% believe it's a bad one. 14% just aren't sure.
The left-wing response to the criticisms of the trials has been to focus only on point #3 above and essentially throw a tantrum, accusing anyone concerned with the risk of an attack of either cowardice or fear-mongering. As I have explained at some length before, this is shtick, not argument, and especially ridiculous given some of the people making it. Thus, we have people like left-wing activist Greg Sargent getting so wrapped up in their own shtick that they try to spin the Rasmussen poll as a victory, even in the face of the public being against them on the bottom line:
[P]ublic opposition is not a response to all the lurid fearmongering we've heard from Rudy Giuliani and other diehard anti-terror warriors. It's more rooted in a sense that the justice system isn't a proper venue to prosecute terrorism, because it places suspected terrorists - symbolically, perhaps more than legally - on an equal footing with your run-of-the-mill suspected murderers....While a majority does oppose the trial, it appears that most Americans aren't quite as fearful of it as Rep. Shadegg is.
Sargent further notes of the Marist poll: "Opposition to trying Khalid Sheik Mohammed and his co-conspirators in a New York court is almost entirely driven by old, white, and Republican voters." Well, good thing none of those groups is a significant voting bloc, eh?
A few more such victories, as Phyrrus said, and Obama and his fans are finished.
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Posted by Baseball Crank at 12:43 PM | Law 2009-13 | Politics 2009 | War 2007-12 | Comments (9) | TrackBack (0)
November 13, 2009
WAR: The Khalid Sheikh Mohammed Lower Manhattan Reunion Tour
Pardon me if I am seeing red this morning:
Khalid Sheikh Mohammed, alleged mastermind of the Sept. 11, 2001, terrorist attacks, and four others accused in the attacks will be put on criminal trial in New York, Attorney General Eric Holder is expected to announce later Friday.
WHAT IN THE HELL IS WRONG WITH THESE PEOPLE?
So, Barack Obama will be staging his own New York production of Chicago, with Khalid Sheikh Mohammed as Roxy Hart ("You had it coming, you had it coming, you only have yourselves to blame...." ). We will be treated to months upon months of front page headlines giving a platform to this lunatic war criminal. The courthouses and City office buildings in lower Manhattan (City Hall, the state courts, the immigration offices, the Court of International Trade, the US Attorney's Office, the DA's office, and the main city office building that does marriage licenses and the like are all within about a two-block radius of the federal courthouses and the Metropolitan Correctional Center) will be snarled with massive security, as if lower Manhattan needs more traffic and more armed men. We'll have to have pretrial hearings on the inevitable countless motions about how KSM was apprehended and the evidence against him collected, undoubtedly to the detriment of vital sources of intelligence, like when we lost the ability to track Osama bin Laden by cellphone after our tracing of his calls was revealed by a prosecution under the DOJ Criminal Division then headed by...Eric Holder. And that's even before he starts in on the sob stories about being waterboarded. I'm not seriously concerned that KSM stands any chance of being acquitted, but a hung jury? It only takes one person with extreme political or religious views, one juror who just can't abide the death penalty (even assuming Obama's DOJ pursues it). Just imagine the controversy, if there are Muslims in the jury pool, over what questions prosecutors are permitted to ask them and whether they can be challenged. And of course, it sends the message to our enemies that there's nothing you can do to us that will get you sent through a process rougher than the one we used on Michael Vick or Martha Stewart.
I know I have spoken and written many rough things about Obama, but as Michael Moore would say, most New Yorkers voted for the man - why is he doing this to us?
It's impossible, really, to caricature this White House; even Josiah Bartlett didn't run through this many liberal stereotypes in his first season. Obama needs new writers. Blow up the World Trade Center and kill 3,000 Americans? Jail! Don't buy health insurance? Jail! Win the Nobel Prize for doing jack squat. Travel to Copenhagen to beg and grovel unsuccessfully for the Olympics, and pledge to go visit Hiroshima and Nagasaki, but blow off traveling to Berlin to commemorate the victory of freedom over Communism (then give a tepid speech on the subject that refuses to acknowledge Ronald Reagan). Commemorate the 70th anniversary of the Soviet invasion of Poland by unilaterally abandoning missile defense installations in Poland. Insult and disdain one faithful ally after another - Britain, India, Israel, Poland, Colombia, you name it - and cozy up to our enemies, with nothing to show for it - nothing to show for anything he's done in foreign affairs. All but ignore democratic protests in Iran while supporting an illegal effort by Honduras' president to stay on beyond the end of his term. Suddenly complain about corruption and electoral fraud in Afghanistan, while seeking the favor of Hugo Chavez and Mahmoud Ahmadenijad and Vladimir Putin - heck, Obama endorsed half a dozen people in Chicago more corrupt than Hamid Karzai. On and on and on we go, with President Apology constantly straining to run down his country's record and talk up the propagandized view of history of its enemies. He's taken more time to "evaluate" General McChrystal's recommendations about Afghan policy than it took George W. Bush to invade Afghanistan and capture Kabul after September 11. It would be funny if it wasn't tragically stupid and bound to get people killed. There is no mistake of our past that Obama is unwilling to remake.
If there's an upside to all this, after months of watching KSM up close, even liberal New Yorkers may be ready to give Dick Cheney a medal.
Posted by Baseball Crank at 9:15 AM | Law 2009-13 | Politics 2009 | War 2007-12 | Comments (90) | TrackBack (0)
October 31, 2009
LAW: For My Next Witness, I Call Mr. Peanut
From AmLaw Daily, a classic Halloween tale of sexual harassment litigation. Worth reading the whole thing, but this is undoubtedly the highlight:
Cognex and its CEO, Robert Shillman, retained Lukey, and she sat in on what she remembers as a six-day deposition of Shillman. That's when the case took a bizarre turn. Shillman--known for his sense of humor and his devotion to Halloween, Lukey says--wore a different Halloween costume to each day of his deposition. The get-ups included a priest costume (complete with garlic necklace to repel vampires) and, most memorably for Lukey, a full Mr. Peanut costume, top hat and all. One problem: The hat made the costume top-heavy, and Shillman at one point toppled out of his chair when he tried to lean back, Lukey says.
October 28, 2009
BLOG: Quick Links 10/28/09
*Josh Painter looks at how the latest financial disclosure forms tell the story of the intense financial pressure put on Sarah Palin by the stream of bogus ethics complaints filed by left-wing bloggers, culminating in the complaint that prevented her from accessing funds raised for her legal defense. It certainly makes a compelling case why an ordinary person in Palin's shoes would step down rather than be driven under by the expenses. Whether that's enough to absolve her as a potential presidential candidate is another matter; we tend to expect potential presidents not to act like ordinary people. Of course, most politicians would have escaped the mounting debts by writing a book or giving speeches for money, but Palin may have felt, not without reason, that any such activities while serving as governor would lead to further ethics complaints that would tie up those sources of income as well. Meanwhile, Melissa Clouthier looks at a CNN poll finding 70% of the public currently thinks Palin unqualified to be president.
I'm not picking a horse for 2012 yet, nor will I until after 2010. It's unclear if Palin will run, anyway. I do know a few things. One, for reasons I've been through many times, I'd much prefer to support a more experienced candidate - we're not the Democrats, after all, who have permanently forfeited the right to say anything on this subject by backing Obama - and the fact that people in my position are even open to Palin at all at this juncture is a sign of the weakness of the field so far. Two, Palin has proven to be extraordinarily effective at retaining the public's interest and even at exercising her influence as a guerilla opposition leader armed with nothing more than a Facebook page; by mostly absenting herself from the public eye except for Facebook and a few op-eds and obscure speeches, she's kept 'em wanting more (witness the explosive early pre-orders for her book, which non-fiction publishing people viewed as unprecedented), while still driving the public debate (i.e., "death panels"). But the Newt Gingrich experience is vivid proof for Republicans that effective guerillas don't always make good leaders when they come into power.
Whichever way Palin chooses to go, the book tour (including the appearance on Oprah, who is naturally hostile but not really accustomed to tough interviews) will be a sort of second coming-out for her on the public stage that will be critical and should reveal whether she has spent well her time out of the limelight in terms of boning up for future policy debates. We'll be able to assess her future much better in a few months.
*Meanwhile, a man to watch if he gets persuaded to run is Indiana Governor Mitch Daniels. (H/T) I'll have more on him another day...upside: Daniels is serious, tough-minded, won re-election in Indiana in 2008 (while it was carried by Obama) after being given up for politically dead in 2006 (when his low approval ratings were blamed as a cause for heavy GOP House losses in the state, paralleling a similar trend in Ohio and Kentucky). Downside: Daniels is as yet reluctant to run (recall how well that worked out with Rudy and Fred), and as a public speaker he's dry as dust.
*The Democratic circular firing squad over health care continues. And Jay Cost explains why the continuing threat to Lieberman from the Left has made it politically necessary for him to oppose the public option.
*Dan Riehl looks at how the GOP made the disastrous decision in the Congressional race in NY's 23d district to nominate Dede Scozzafava, who now seems likely to finish third in that race. Meanwhile, Newsbusters notices that the NY Daily News still refuses to acknowledge the existence of Doug Hoffman, the Conservative candidate in the race. Jim Geraghty is unsparing on the folly of Newt's continuing support for Scozzafava.
*George W. Bush, motivational speaker - without a teleprompter. The WaPo seems astonished that a man who won something on the order of 110 million votes in two national elections is actually a decent speaker. Key quote from Bush: "It's so simple in life to chase popularity, but popularity is fleeting."
*Naturally, he's retracted it, but you can't top Anthony Weiner's initial assessment of Alan Grayson as being "one fry short of a Happy Meal."
Posted by Baseball Crank at 12:48 PM | Blog 2006-13 | Law 2009-13 | Politics 2009 | Politics 2012 | Pop Culture | Comments (19) | TrackBack (0)
September 29, 2009
LAW/POLITICS: Whoopi Goldberg, Moral Monster
I knew Whoopi was rude, an ignoramus (she told John McCain last year that the Constitution doesn't prohibit slavery) and a walking crime against comedy, but even I was startled to discover her cavalier attitude towards the violation of a young girl.
Oh, and also following the same story with what only tries to be parody: the Onion.
Posted by Baseball Crank at 12:36 PM | Law 2009-13 | Politics 2009 | Pop Culture | Comments (22) | TrackBack (0)
September 28, 2009
LAW: The Age of Consent
UPDATE: This is also a good point. But then, sexual abuse of minors just doesn't get taken half as seriously when it's...well, pretty much anybody else.
September 24, 2009
LAW/POLITICS: Nuts To That
Leon Wolf disposes swiftly of the legal "merits" of ACORN's lawsuit against Breitbart. One of Jonah Goldberg's readers has more, although I'm skeptical of his third point, on standing grounds (as to RICO, anyway; the False Claims Act would be more a matter of finding something new, and I'm not familiar with whether you can use civil discovery to become an "original source" for qui tam purposes).
June 19, 2009
POLITICS/LAW: The More Things Change...
Not that there's anything wrong with that; we conservatives have been standing up for Justice Scalia's view of the unitary nature of executive power - and the democratic accountability it promotes - for years. It's the people who blathered about it during the Bush years who didn't know what they were talking about, and now have to pretend that they were in favor of this kind of thing all along, much the way they only learned to despise the Independent Counsel when they found themselves on the receiving end of it.
June 11, 2009
WAR/LAW: Living Down to the Stereotype
Must-read on Obama Administration's decision to give Miranda warnings to captured jihadists. Like so many things Obama has done, this one was derided as a straw man when Sarah Palin claimed last year that he would do it.
May 28, 2009
LAW: The Hazards Of Blogging A Subject You Do Not Understand
I don't know whether Jason Linkins at the Huffington Post is a lawyer, but from this post I have to assume not - and that he really should have talked to a lawyer before publishing it.
The main thrust of Linkins' post is his argument that Justice Scalia in his 2002 opinion in Republican Party of Minnesota v. White somehow endorsed the notion that it's appropriate for judges to make policy. (I have discussed before the importance of that opinion in judicial-nomination fights for a different reason: Justice Scalia noted that the restrictions in question imposed a nonsensical distinction between what a judge can say before and after announcing a candidacy for judicial office, and in so doing explained why it is silly to question whether a judge is "impartial" simply because he or she has previously stated views about what the law is.)
So, did Justice Scalia defend the making of policy by judges? It's true that nobody really disputes that at the margins, a judge in many cases will be involved in some level of policymaking and policy considerations, and that some of the questions courts must resolve entail the judges' view of how the world actually works. Justice Scalia, however, would seem a curious witness to call on this point, as he is the figure in American public life most associated with the view that the legitimacy of a court's decisions depends upon limiting judges' discretion to the maximum possible extent and never losing sight of the fact that the Constitution and federal statutes are democratic enactments whose interpretation must at all times conform to what the people understood they meant at the time they became law.
Let's look at the quotes Linkins chooses and why they are - assuming Linkins was writing in good faith - so hilariously misguided.
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White involved a Minnesota statute restricting speech by candidates for elected judicial office, which Justice Scalia (writing for the Court), characteristically found to be inconsistent with the unambiguous free speech guarantees of the First Amendment. Linkins selects the following quote (emphasis his):
This complete separation of the judiciary from the enterprise of "representative government" might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to "make" common law, but they have the immense power to shape the States' constitutions as well. See, e.g., Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999). Which is precisely why the election of state judges became popular.
Taking the language in bold first, Justice Scalia was talking about the common law. For the non-lawyers out there, a lot of areas of state law are common law, i.e., judges apply rules developed by judges. This is true of contract law, or personal injury law, for example. State legislatures can and do add their own rules, and judges aren't unconstrained in making common law - the weight of precedent is important in areas where judge-made law has developed over centuries - but a common law court indisputably can and does make policy. Quite sensibly, Justice Scalia notes that in light of this legitimate policymaking power, the citizenry in electing state court judges should be allowed to hear their policy views.
That has nearly nothing to do with the role of the federal courts, however, where Judge Sotomayor and Justice Scalia both sit. It has been established law since the 1930s - it's one of the first things every law student learns - that there is no such thing as general federal common law. There are some discrete areas of federal common law - maritime law, federal contractor law, etc. - but the big ticket issues for the Supreme Court are its constitutional and federal statutory dockets. In point of fact, Justice Scalia has been an opponent of the expansion of federal common law (see his 1994 opinion for the Court in O'Melveny & Myers v FDIC). Still less is the power to make common law a legitimate way for judges to approach the Constitution.
Scalia's reference to state-court power over state constitutional law is, to put it mildly, not an endorsement of the sort of judicial policymaking he has long railed against, as the citation to the Vermont Supreme Court's decision in Baker - which compelled Vermont's lawmakers to accept same-sex civil unions on questionably creative state constitutional grounds - should have signalled to the attentive reader. His perhaps-subtle point was, rather, that voters should get to hear more from judges precisely because they have lately been in the habit of taking issues away from elected officials as they did in Baker. The final sentence of the quotation makes that rather explicit: voters want to elect judges to stop them from making policy against the voters' wishes.
Then we have a further extended quotation from footnote 12 of the opinion (it's a footnote to that same paragraph dealing simply with rebutting further arguments by the dissents):
Although Justice [John Paul] Stevens at times appears to agree with Justice [Ruth Bader] Ginsburg's premise that the judiciary is completely separated from the enterprise of representative government, post, at 3 ("[E]very good judge is fully aware of the distinction between the law and a personal point of view"), he eventually appears to concede that the separation does not hold true for many judges who sit on courts of last resort, post, at 3 ("If he is not a judge on the highest court in the State, he has an obligation to follow the precedent of that court, not his personal views or public opinion polls"); post, at 3, n. 2. Even if the policy making capacity of judges were limited to courts of last resort, that would only prove that the announce clause fails strict scrutiny. "[I]f announcing one's views in the context of a campaign for the State Supreme Court might be" protected speech, post, at 3, n. 2, then-even if announcing one's views in the context of a campaign for a lower court were not protected speech, ibid.-the announce clause would not be narrowly tailored, since it applies to high- and low-court candidates alike. In fact, however, the judges of inferior courts often "make law," since the precedent of the highest court does not cover every situation, and not every case is reviewed. Justice Stevens has repeatedly expressed the view that a settled course of lower court opinions binds the highest court. See, e.g., Reves v. Ernst & Young, 494 U.S. 56, 74 (1990) (concurring opinion); McNally v. United States, 483 U.S. 350, 376--377 (1987) (dissenting opinion).
Emphasis again Linkins'. Obviously, this is simply a continuation of the point about the state judges who were at issue in White (plus Justice Scalia is obviously trying to throw some of Justice Stevens' own prior views back at him, without necessarily endorsing them).
Supreme Court fights involve the basic, core issue of the legitimacy of judicial power and the ultimate scope of democratic self-government. Because of that, and because the core concept of legitimacy is one that can and should be understood by ordinary citizens, I would not argue that the issues at hand should be left solely to the lawyers to argue about. But just as pundits and bloggers sometimes need to talk to military people before making mistakes about matters within the sphere of military expertise, it's a good idea to ask a lawyer before you go quoting judicial opinions. You might, like Jason Linkins, end up making a fool of yourself.
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May 26, 2009
POLITICS/LAW: I Forgot
LAW/POLITICS: SCOTUS Prediction
Just to get on record before the expected announcement at 10:15 this morning, I will be shocked if Obama does not pick Judge Diane Wood of the Seventh Circuit for the Supreme Court. Wood is a veteran federal appellate judge, she's female, she's a relatively low-key personality (usually an asset in confirmation hearings), she's reliably liberal, and he knows her personally from Chicago. Downsides? Well, Obama, like Bush, wants badly to name the first Hispanic Justice, but there are always multiple considerations in picking a Justice; Bush never got there either, and Obama may well have one or two more picks in the next few years. Otherwise, the main downside - if you consider it one - is that Judge Wood's record will put the abortion issue front and center even more than the usual SCOTUS battle.
UPDATE: No sooner had I written these words than the word came down that Obama has instead chosen Second Circuit Judge Sonia Sotomayor.
I'm going to need to be very cautious in writing about this nomination battle, for professional reasons. Let's just say that everyone with any interest in making a fight of this nomination is very happy with this pick.
SECOND UPDATE: Ruffini notes that Obama is making this announcement the same day the California Supreme Court is set to decide whether to throw out the verdict of the people of California in supporting Proposition 8, the anti-same-sex marriage proposition. Unclear whether Obama is hoping to preempt the issue, but the net result will likely be a sudden shift of focus to social issues.
May 18, 2009
LAW/BUSINESS: PCAOB and Sarbox In The Dock
The Supreme Court this morning granted certiorari in Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, et al., No. 08-861 on the Court's docket. The case will be briefed over the summer, heard in the Fall (after, among other things, Justice Souter's retirement, assuming all goes on schedule) and decided some time between next December and July 2010. Given that my firm and/or my clients may well end up being involved in the case, I won't try to handicap its success or get too far into its merits, but know this: the issue before the Court presents important questions generally about the scope of separation of powers restrictions in economic regulation, and specifically about the constitutionality of a key provision of Sarbanes-Oxley and, potentially, could threaten the entire statute.
Last August, a divided panel of the DC Circuit rejected a separation of powers challenge to the provision of Sarbanes-Oxley governing the Public Company Accounting Oversight Board's appointment. For the uninitiated, PCAOB promulgates accounting rules for public companies. The core question was whether the PCAOB's powers were such that constitutionally, its members should have been directly accountable to the President under the Appointments Clause. Judge Judith Rogers, joined by Judge Janice Rogers Brown, found that the statute did not unduly dilute the executive branch's control over the PCAOB:
We hold, first, that the Act does not encroach upon the Appointment power because, in view of the [SEC]'s comprehensive control of the Board, Board members are subject to direction and supervision of the Commission and thus are inferior officers not required to be appointed by the President. Second, we hold that the for-cause limitations on the Commission's power to remove Board members and the President's power to remove Commissioners do not strip the President of sufficient power to influence the Board and thus do not contravene separation of powers, as that principle embraces independent agencies like the Commission and their exercise of broad authority over their subordinates.
Slip op. at 3 (emphasis added). In short, the court found "no instance in which the Board can make policy that the Commission cannot override" and thus no undue intrusion on the President's power, acting through the SEC, to control the PCAOB. Id. at 33.
Judge Brett Kavanaugh dissented, on essentially similar grounds to Justice Scalia's masterful (but lone) dissent in the 1988 independent counsel case, Morrison v. Olson (the Independent Counsel case), although he also argued that the constitutional problems here go beyond those in Morrison:
The President's power to remove is critical to the President's power to control the Executive Branch and perform his Article II responsibilities. Yet under this statute, the President is two levels of for-cause removal away from Board members, a previously unheard-of restriction on and attenuation of the President's authority over executive officers. This structure effectively eliminates any Presidential power to control the PCAOB, notwithstanding that the Board performs numerous regulatory and lawenforcement functions at the core of the executive power. So far as the parties, including the United States as intervenor, have been able to determine in the research reflected in their exhaustive and excellent briefs, never before in American history has there been an independent agency whose heads are appointed by and removable only for cause by another independent agency, rather than by the President or his alter ego. But that is the case with PCAOB members, who are removable for cause only by the SEC - and it is undisputed that the SEC as an independent agency is not the President's alter ego.
The reason why the Free Enterprise Fund's lawsuit raised particular eyebrows is because of the lack of a "severability" clause in Sarbanes-Oxley, a standard provision that allows a statute to avoid being struck down if just one part of it is declared unconstitutional, thus presenting the possibility that the court would have had to declare the entire Sarbanes-Oxley statute unconstitutional (or, alternatively, raising the question of what power a court has in such a large and complex enactment to strike down only a part of it).
May 11, 2009
POLITICS/LAW: How Republicans Should Oppose Obama's Supreme Court Nominee
At this writing, we do not know who President Obama will nominate to replace David Souter on the Supreme Court, and so it's impossible to anticipate precisely how much Republican opposition his pick will meet with, or for that matter whether any Democrats will be opposed.
Nonetheless, of this much we can be sure, from Obama's own history and prior statements as well as that of his party: Obama is highly likely to select a nominee who will do a terrible job as a Supreme Court Justice, in terms of (1) following the reasoning process that we Republicans and conservatives believe is the legitimate and appropriate way for a Justice to decide cases and (2) reaching what Republicans/conservatives would regard as the correct results in interpretiting the Constitution and federal statutes.
So, the President is likely to do something Republicans legitimately and seriously disagree with, and which will do lasting damage to the nation. How then to respond? Here, sight unseen of the nominee, I can offer two main suggestions.
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I. Get To The Merits
Republicans in recent battles over judicial nominees, especially those conducted while the GOP held a strong majority in the Senate, have had an unfortunate tendency to fall back on proceduralism. That means making arguments primarily along the lines that if a candidate is "qualified," he or she should be given a floor vote by the Senate, without getting into matters of judicial philosophy or ideology.
This is perhaps the best tactical approach if you control the White House and need to apply pressure to wavering Senators, given that there's a fairly broad bipartisan popular consensus that is at least vaguely in favor of deferring to the President in the judicial selection and confirmation process. But as a matter of long-term strategy, it's terribly short-sighted.
Sure, arguments about merit, like this Pejman essay, are important. Lack of qualifications was ultimately what turned me and many others who had no particular ideological reason to oppose her against Harriet Miers. But qualifications are not the core issue. Let's say I was starting a team that aimed to win a championship, and I asked you whether LeBron James was more qualified than Albert Pujols. You could not answer that question without first asking me whether I'm playing basketball or baseball - because the two men make their living trying to accomplish completely different things.
The simple fact is that Republicans have a fundamentally different view of what judges are trying to accomplish. And so, ipso facto, a judge who is highly intelligent and experienced may be "qualified" in the abstract, but is guaranteed to perform poorly if he or she is not even trying to do the things those of us on the Right believe are the essentials of the job.
Obama has been known to say things like this in describing what a Justice should be like:
We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.
Now, empathy is not a bad thing in the abstract (although a little empathy for the unborn, the soldier, the cop, the Christian, the victim of crime or terrorism among others, might offer some balance to that picture), but in terms of putting it as the centerpiece of a judicial philosophy...well, imagine how liberals would feel if George W. Bush had said the most important thing in a judge was being patriotic or a good Christian. Just because something is an important value for people or government officials generally doesn't mean it's the job of the judiciary.
Republicans disagree fundamentally with the view that "empathy" is a Justice's primary job. Instead, we believe that the job of judges is, at its core, to recognize that all legitimate exercises of judicial power derive from the consent of the governed. That job is carried out by figuring out what exactly the people - acting directly or through their elected representatives - agreed to when they enacted the Constitution and federal statutes. Making that determination doesn't decide 100% of the issues presented to the Supreme Court, of course, but it's the bedrock foundation without which the Court's exercise of power is fundamentally illegitimate, and the Court must decide that question, and determine if it disposes of all the issues at hand in a case, before it proceeds to any other question. But Obama and his allies simply refuse to be bound by the need to limit themselves to such constraints on their power.
The Republican position has a lot of popular appeal, much more than the competing view of judicial imperialism (that the judiciary should stop the elected branches from doing things that violate the judges' moral and public policy views) and, worse yet, transnational progressivism (i.e., the notion that American law should conform and ultimately subject itself to European/Canadian-derived "international" law without regard to the consent of the American people). Republicans have a winning philosophical argument on the merits, one that goes to the very core of our continuing status as a democracy; we should not fear to make it.
Perhaps the best evidence of the enduring popularity of judicial conservatism is the other side's perennial and often-desperate attempts to blur this distinction and appropriate its language. Justice Stevens has been known to claim that he is a conservative, which is the highest tribute that can be paid to judicial conservatives: a man who is closing in on the status of oldest and longest-serving Justice prefers the conservative label to one that would distinguish his jurisprudence from that of his critics. For a recent example, Gordon Silverstein at the New Republic peddles the myth of Justice Souter as a "real" conservative, which he frames as adherence to judicial precedent but by which he really means one who never makes liberals unhappy. Orin Kerr explodes that myth. A sample:
[T]he two Justices on the current Court who vote most frequently with each other are often Justice Souter and Justice Ginsburg. Looking at the current Supreme Court Term, for example, the Souter/Ginsburg pairing is the most common: They have fully agreed with each other 88% of the time. The next closest pairings are Scalia/Roberts at 83%, Roberts/Alito at 81%, and Thomas/Scalia at 79%.
This is even before you consider the numerous occasions on which Justice Souter has not adhered to precedent, ranging from recent reversals on the 8th Amdment to Lawrence v. Texas, just to pick a few of the more sensational examples.
Putting the argue-the-merits approach into practice, of course, doesn't mean ignoring short-term tactics entirely. Certainly, we should want to win the battle ahead. But tactics are not everything, and the odds against victory are prohibitive: even if Obama picks a poor nominee who generates significant Democratic opposition, the fact remains that he has close to 60 votes in the Senate; he'll get some choice of his eventually, whether it's his first choice or not.
Thinking strategically, therefore, Republicans and conservatives should prioritize, not immediate tactical advantage, but long-term victory, by focusing on educating the public about how Obama's nominee departs from the proper and legitimate interpretation of the law and how the visions of the two sides differ on this issue. Elections have consequences - and the loser of the election should not hesitate to point out what those are.
II. Be Willing To Apply The Obama Standard
Many of us on the Right have long argued, on principle, against the filibustering of judges. Personally, while I'm comfortable with using the filibuster to delay floor votes on a nominee to ensure the gathering and dissemination of sufficient information about the nominee, I regard it as an important practice for the Senate, as a matter of courtesy and tradition, to give the President an up-or-down vote on all his nominees.
But let's face it: we had a long national argument on that point, and we lost. The other side didn't adhere to that view of deference. In the 2008 election, we nominated a candidate who voted in favor of every SCOTUS nominee during his career, ranging from Bork to Ginsburg; the Democrats nominated a man who participated in numerous filibusters of appellate nominees, voted to filibuster Justice Alito, and voted on the merits against the two SCOTUS nominees (Roberts and Alito) to come to a vote during his brief tenure as a Senator. Orrin Hatch led the way in convincing Senate Republicans to give a fair vote and deference to the selection of Justices Ginsburg and Breyer, and left-wingers are still using that against Republicans. Republicans should make explicit that they will give Obama's nominees only so much deference as he himself was willing to give.
Jeff Sessions, himself at one time a victim of Democratic obstruction in the Senate back when he was nominated for a federal appellate judgeship, has signalled that the GOP is not necessarily gearing up for a filibuster. I don't have a problem with this statement. First of all, it's traditional to at least profess a willingness to keep your options open. Second, as Karl Rove points out, Senate rules currently require that any nominee win at least one vote of the minority party on the Judiciary Committee, and with the loss of Arlen Specter from the minority, the pickings could be slim even without a filibuster. And third, there's a lot on the table in the Senate; if Republicans can accomplish their mission of educating the public, and if they are prepared to vote against the nominee on the merits, there may not be a point in a fruitless filibuster vote.
All that said, Republicans shouldn't rule out the filibuster. There comes a time when unilaterally standing on a principle the other side doesn't respect, out of courtesy and tradition, is just self-defeating. And in the long run - maybe not now, given how close the Democrats are to 60 votes, but sooner or later - Republican resistance could decide the Democrats on changing the rules themselves to make it easier to get judges confirmed. As with other efforts to rely on brute force, it is better to compel this to be done openly, in full view of the public. And new rules - unlike courtesy or custom - are something Republicans can use down the road to re-establish the balance they wanted all along.
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April 30, 2009
LAW: Not Precisely An Excuse
This is certainly an entertainingly straightforward case for avoiding jury duty, but not the most persuasive one. Well, until you consider whether you'd want this guy on your jury.
April 24, 2009
LAW: Unpublished Law
In the process of declining to revisit a prior opinion after the Ninth Circuit (in a decision called McCoy) created a Circuit split by disagreeing with the Seventh Circuit, Judge Frank Easterbrook hits one of my pet peeves - unpublished opinions on unsettled questions of law, and the courts that ignore them:
Before McCoy issued, every federal judge (trial or appellate) who had analyzed this subject had concluded that [Section] 226.9(c) requires notice of a change in contractual terms, but not of a lender's decision to invoke its rights under terms already in the contract....It takes more than a vague regulation plus cloudy commentary to displace a contract.
This goes to the heart of the unpublished-opinion issue. Nobody disputes that, with the volume of appeals ever increasing, federal appellate courts may sometimes write abbreviated dispositions of routine cases without producing a full opinion suitable for publication in the Federal Reporter - opinions that provide just enough reasoning to explain to the parties that their arguments were heard and understood and why the court ruled as it did, but without requiring the court to concern itself with how the opinion will be read as a guide to future cases. But in a common law system, the emphasis must be on routine - like the scores of repetitive immigration, pro se cases and prisoner appeals that constitute the biggest chunk of the volume of the docket and that often presents no serious legal controversy. But if a court is grappling with the application of law to fact in a way that is frequently litigated in the lower courts, and still moreso if it is addressing a question on which courts have divided or the courts of that Circuit have yet to definitively rule, it is no excuse to say, in essence, 'we decide this case without deciding the rule' if the rule governs that case. Instead, my sense from seeing this arise with increasing frequency is that courts are disposing of more and more appeals raising serious, contested questions of law, sometimes on issues that have divided districts or circuits, and marking them unpublished. The result is bad for the administration of law and justice because it ignores the primary function of appellate courts: to say what the law is for the purpose of settling legal questions so that trial courts can focus to the greatest extent possible on the facts.
April 22, 2009
LAW/POLITICS: Uh, Pandora, Shut That Lid...
Christopher Badeaux continues his look at the dangers unleashed by threatening to impeach a federal judge over legal advice given prior to taking the bench. As he notes, Democrats proposing these sorts of things plainly are not planning for the possibility that Republicans might ever retake control of any branch of government.
Posted by Baseball Crank at 10:29 AM | Law 2009-13 | Politics 2009 | War 2007-12 | Comments (14) | TrackBack (0)
April 17, 2009
LAW: Knowing Where To Look
The New York Times headlines an article about an appearance by Clarence Thomas before a high school group "Reticent Justice Opens Up to a Group of Students." What's amusing is that after Justice Thomas has spent 18 years on the Court, the Times still thinks it's newsworthy that he would speak to a student group simply because he does not ask questions at oral argument (a practice he has explained and defended and which was once more of a norm on the Court). In fact, anyone remotely familiar with the Court will tell you that Justice Thomas has long been very active, perhaps the most active Justice on the Court, in meeting with visitors from the general public (when I was in college, in the spring of 1992, he took 45 minutes to meet with a group of 12 of us who were in DC for Holy Cross' semester-in-Washington program, and I gather he's been doing that ever since), he's a frequent speaker at events around the country - he even wrote a deeply personal autobiography that may have escaped the Times' notice. (Note also Adam Liptak's shot at Thomas giving a "rambling" answer to a question - we are compelled to take his word for it, although of course it's rare to hear an unscripted Q&A with anybody without a few of those answers).
April 14, 2009
WAR/LAW: Should The Surviving Somali Pirate Be Tried...In Juvenile Court?
It's so hard to do satire these days, because the truth is so often beyond parody. The last of the heavily-armed pirates who stormed the Maersk Alabama, held a paralyzed U.S. Navy at bay for three days and repeatedly threatened to execute their hostage unless they were paid millions in ransom may well be tried in the United States for piracy. This is probably the right call, since this is piracy against American ships, although really it would have been better if all the pirates had been killed on the spot. Where this gets bizarre is the suggestion that an act of piracy on the high seas should be treated as a juvenile crime because the pirates reportedly were somewhere between age 16 and 20:
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Jo Becker, a D.C.-based advocate for Human Rights Watch, said if the pirate suspect is in fact 16 or 17 years old, "he would certainly be entitled to protections under international law that allow for lower culpability of juveniles involved in crimes."
People like Ms. Becker are precisely why it's a bad idea to take anybody alive in these situations. And of course, concern about pressure from the 'international community' may come into play:
Kenneth Randall, dean of the University of Alabama School of Law, said the suspect's age may not affect where or how he is charged, but is likely to impact his eventual sentence.
Yes, I look forward to a Somali pirate becoming the next Mumia or Zacarias Moussaoui. Hooray for the legal profession!
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April 9, 2009
LAW/WAR: Dock Amok
Christopher Badeaux at the New Ledger looks at why the American Bar Association should be opposed to indicting lawyers for giving legal advice. One can certainly imagine a world in which lawyers would simply refuse to advise governments and other institutional clients as to what the rules governing some topics are, on the grounds that, say, the President should consult only his conscience - and possibly Scripture - before acting, rather than inform himself as to whether or not he is in compliance with the law. But that is hardly the world institutions like the ABA purport to champion.
April 1, 2009
LAW: Most Likely To Kill Cops
Jack Dunphy looks at a stone-cold Oakland cop-killer and the morally depraved excuses made for him. The comments from Red Ron Dellums are enough to make you wonder why anyone would agree to serve in the Oakland PD under such a Mayor.
March 25, 2009
LAW: Three Rulings
Here's three interesting ones (well, to me as a law nerd, anyway) from the carnival of law and humanity that comes out of my daily scan of the latest appellate court decisions:
-The Second Circuit overturns a lower court decision holding that medical residents are not "students" exempt from FICA taxes, concluding that the statute doesn't clearly define what a "student" is and the courts need to look at the facts of each particular program (regardless of whether this is right on the law, it's terrible policy, as it leaves the issue to expensive fact-intensive litigation rather than giving residency programs clear rules to plan around). The subtext, of course, is that residents who make little money now but expect to make a lot in the future would far rather opt out of the whole Social Security system to the greatest extent possible.
-The Eighth Circuit disagrees with a man who claims to be mentally retarded so as to receive disability assistance, saying his low IQ isn't proof enough to overcome his work history and general life experience of nobody treating him as mentally handicapped. While it's something of an amusing effort, the guy has obviously had a pretty hard life when you read the whole thing (for example, the court notes that he dropped out of school not due to mental impairment but due to an accident that nearly cost him his right arm).
-The Fifth Circuit rejects Dennis Kucinich's challenge to the Texas Democratic Party's 'loyalty oath' that presidential primary candidates must pledge to support the ultimate nominee. Judge Edith Jones clearly doesn't think much of the idea of the oath but finds no constitutional problem with it being a condition to ballot access in a partisan primary.
March 24, 2009
LAW/BASKETBALL: An Expert In Brawling
In the early hours of July 20, 2005, a brawl erupted at the Eyebar, a Washington, D.C. nightclub. Among the injured was Marlin Godfrey, a patron in the Eyebar VIP area that night. He suffered a concussion, a ruptured eardrum, a burst blood vessel in his eye, a torn rotator cuff, various cuts and bruises, and emotional injuries. Godfrey sued Allen Iverson and his bodyguard, Jason Kane, both of whom were in the Eyebar VIP area that night. The amended complaint alleged that Kane and Terrance Williams, who also sometimes acted as Iverson's bodyguard, attacked him and directly caused his physical and emotional injuries, and that Iverson was negligent in failing to stop both men from injuring Godfrey.
Iverson's lawyer argued that traditionally, you can't sue an employer for "negligent supervision" (the theory under which Iverson was held responsible for what his bodyguard's misconduct) without expert testimony establishing how he should have trained his employee to deal with these situations. The court effectively concluded that an ordinary, reasonable-man standard of care applies when the beat-down happens in the employer's presence:
A jury may need the aid of expert testimony to evaluate how a hotel should train and otherwise supervise its security guards to ensure that they do not unreasonably use force on some future date. But it is a different thing altogether to say such expert assistance is needed to establish the standard of care for an individual who is present while his personal bodyguard, acting on his behalf in clearing a room in a nightclub, beats a customer and causes significant injuries. Iverson has pointed to no case in the District of Columbia - nor have we been able to locate any - dealing with the standard of care a person owes in supervising his personal bodyguard in his presence. The evidence in this case supported the jury's finding that Kane attacked Godfrey in a fight that lasted several minutes, and that Iverson stood and watched without attempting to do anything to stop the beating.
Of course, it may not have been admissible evidence given that it happened when he was a teenager, but Iverson has his own past history of brawling - which is, ironically, probably why he has a bodyguard now and possibly why he was hesitant to get involved. I'm not 100% comfortable with sticking him with the bill for everything his bodyguard does, and I'm sympathetic to the possibility that (1) the damages here were excessive and (2) the guy who picked the fight may have been setting Iverson up, but the jury didn't buy those arguments, and as far as the legal analysis goes, when you just stand there as a guy in your employ beats a man that badly, it's hard to say that the law shouldn't hold you responsible.
March 13, 2009
LAW: Suing The Constitution
I've seen some strange lawsuits filed by crackpots over the years, but I can't say I have seen anyone attempt to sue the Constitution itself before.
March 12, 2009
LAW: The Big Salad
Judge Posner explains why the meaning of when a salad dressing is "best when purchased by" is not sufficiently well-defined to support a federal wire fraud or food misbranding conviction for a reseller who changed the dates.
March 5, 2009
LAW/POLITICS: Waiting For Bureaucrats To Say It's Time To Make The Donuts
One of the benefits of reading a lot of judicial opinions, as I do, is that you get to see a lot of retail examples of how our government operates at its most legalistic-bureaucratic. Yesterday's opinion by the U.S. Court of Appeals for the First Circuit in River Street Donuts, LLC v. Napolitano is a wonderful little vignette about a bureaucratic system run amok.
River Street runs a donut baking operation, and in January 2003, it wanted to hire a new head donut baker/supervisor for a salary of about $40,000 a year. This is your basic business decision - hire a new baker, try to grow the business - but there's a catch: the guy they wanted to hire, a man named Farag Mohamed, is a foreign national, so River Street needed the approval of the Bureau of Citizenship and Immigration Services to sponsor a work visa for Mr. Mohamed.
At this point, some readers will balk at the fact that River Street wanted to bring in a foreigner, but in a sane world, if a business has a skilled laborer they want to offer a job to, as long as there's not some other reason to keep the guy out of the country, this should not be a terribly onerous process.
But here's where things get complicated. Because BCIS demands that River Street submit proof that it can afford to hire Mr. Mohamed to make donuts, and after reviewing River Street's 2001 and 2002 tax returns, BCIS tells River Street that it knows River Street's donut business better than the company does, and they can't afford a $40,000 a year donut baker. Whereupon River Street enters the mad world of administrative law litigation, proceeding up through the Administrative Appeals Office of Homeland Security and ultimately to a federal court of appeals, consuming six years of litigation that almost certainly cost them more than $40,000 and did not produce any donuts. The First Circuit ultimately upheld the BCIS' and AAO's decisions, rejecting River Street's arguments about how to allocate depreciation in determining its financial strength. The opinion is mostly about administrative procedure, and I can't really quibble with the court's legal reasoning, but I still stand in some awe of the insanity of the entire exercise. Should it really be this complicated and bureaucratic to hire a guy to bake donuts? And is this a preview of the future of the financial and health care sectors?
Now, I don't know any more about this particular case than what's in the court's opinion, so I can't tell you if River Street made a good business decision to hire Mr. Mohamed or if he'd be a good person to have in this country. And I understand that, as with many such legal rules and regulations, there are arguments for why you need this sort of regulation: to make companies think twice about hiring foreigners instead of Americans and to ensure that people don't get brought in on work visas for jobs that dry up.
But no matter how you slice it, making a company spend years and legal fees trying (in this case unsuccessfully) to justify their own business decisions to second-guessintg bureaucrats and judges is a recipe for economic paralysis (as well as an inducement to seek to do business instead on the black market). You can write this off if you will as a symptom of our screwed-up immigration laws, which are simultaneously draconian in their terms and tepid and sporadic in their enforcement, but the nature of bureaucracy is universal and not unique to BCIS. I fear that in the years to come, a lot more businesses large and small are going to be living through similar experiences.
February 12, 2009
LAW: You Know Times Are Tough When....
Meanwhile, Judge Reindhardt is calling out incompetent criminal appellate lawyers (you gotta click through to the opinion), illegal aliens are suing a rancher who tried to stop them wrecking his property, and even these guys and this guy apparently got played.
Strange days, indeed.
February 6, 2009
LAW: 11th Circuit Backs Miami-Dade School's Removal of Book About Cuba From School Library
An opinion that was handed down by a divided panel of the 11th Circuit yesterday in American Civil Liberties Union v. Miami-Dade County is bound to be controversial: the court held, among other things (the opinion plus dissent run 177 pages) that a school board in Miami was justified in removing from the bookshelves of a school library a book that painted an unduly rosy picture of life in Cuba. The interesting part of the opinion, rejecting an ACLU challenge, runs from about page 59-104 of the slip opinion in pdf form, if you want to read it yourself. The core of the court's decision was its conclusion that removing a book that was factually inaccurate in failing to depict the reality of life under Castro was not a forbidden exercise of political opinion but a legitimate exercise of a school board's power to take factually false material off the shelves.
It requires no stretch of the imagination to recognize why this holding is a flashpoint; nearly all disputes over subjects ranging from evolution to global warming to Israel and Palestine involve warring camps both of which assert that the other's position is simply factually false and should not be taught to schoolchildren. As I have long argued in the case of media bias, the biggest single issue is deciding which stories have two legitimate sides and which don't. But to state the problem doesn't answer the question of where courts can allow democratically elected school boards to draw the line, or where those boards should draw the line if left free to do so, since the alternative involves the courts tying the hands of the board in decisions about removing books, while giving free rein to political agendas in the decision to buy the books in the first place.
As the majority opinion noted:
The dissenting opinion argues that if a school board's action in removing a book from its own library shelves does not amount to banning a book, then a school board can never ban a book. See Dissenting Op. at 172. So what? Nowhere is it written that a school board must be empowered to ban books. Because a school board has no power to prohibit people from publishing, selling, distributing, or possessing a book, it has no power to ban books.
Slip op. at 93. My own preference, and I think the reading most consistent with the Constitution, would be to get the courts out of the business entirely, but even that doesn't answer the core policy question of how the school boards should decide these kinds of brouhahas.
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Legally, the interesting point in the opinion was that the court did explicitly what courts often do without saying: it distinguished between the objective facts in the record that were left as they were found by the trial court and the inferences about motivation drawn from those facts, and made clear that the appellate court was applying its own judgment to the latter (appellate courts often do this, though it's a fair question whether they ought to):
[W]e will review for clear error only the district court’s findings of ordinary historical facts. Those are facts about the who, what, where, when, and how of the controversy - what the School Board did, when and how it acted, what various members of the Board said, and so forth. Those facts, already set out earlier in this opinion, are largely undisputed. By contrast, under the assumptions about the law that we have made for purposes of deciding this case, we must determine the "why" facts. Those are the core constitutional facts that involve the reasons the School Board took the challenged action - its intent, or more accurately, its motive for removing copies of the Vamos a Cuba book from the school libraries.
Slip op. at 61. The court made clear that however much controversy is inevitably involved either way, a school board simply can't be stripped of the power to decide that some books are just wrong:
Whatever else it does in the context of school library books, the First Amendment does not require a school board to leave on its library shelves a purportedly nonfiction book that contains false statements of fact. That is no less true if, as here, the falsehoods in the book make a totalitarian regime that is out of favor in this country look better than the true facts would. A preference in favor of factual accuracy is not unconstitutional viewpoint discrimination.
Facts about the conditions inside a country are not a viewpoint. They are facts. A book that recounts those facts accurately would not, for that reason, be political in nature. And a book that presents a distorted picture of life inside a country - whether through errors of commission or omission - does not, for that reason, become "apolitical."
Slip op. at 96-97. And the court chided the district court for what it saw as a bias against the Cuban-Americans on the school board (as well as the former Cuban political prisoner who originally objected to the book):
There is something of this flavor in the plaintiffs' argument and the district court's opinion: the majority of the School Board members were Cuban Americans; Cuban Americans despise Castro and his regime; therefore, the Board's removal of the book must have been motivated by their disagreement with the book's political viewpoint instead of by its factual inaccuracies....To the extent that is an argument, it confuses interest with motive. Cuban Americans are more interested than others in removing a book that falsely portrays, to the upside, life in Castro's Cuba, but that does not mean their motive for wanting the book removed is anything other than the fact that the book contains falsehoods. If the book accurately discussed life in Cuba, they would have no reason to have it removed.
Slip op. at 102-03. In addressing the merits, the court was unsparing in describing how a book full of anodyne descriptions of how life in Cuba is like life in America is at odds with the reality of the Castro regime:
On page 25 of Vamos a Cuba, the book states: "Cuba's beaches are good for swimming and boating. People like to dive and fish. There are also rowboat and sailboat races." [R:28:A Visit to Cuba:25] The truth, according to the uncontradicted evidence in the record, is that the traditional Cuban rowboat and sailboat races were abolished a half century ago. [R:19:48]
Slip op. at 73-75 (footnotes omitted). And so on. You may be uncomfortable - I am - with a court detailing such politically controversial facts, but facts they are, as established in the trial court in the usual way (the parties each submitted expert witnesses, affidavits, etc.), and if there is to be a judicial resolution, the court has no choice but to conclude whether or not there was a legitimate basis for the school board's finding of factual inaccuracy.
As I said before, when you think seriously about the issue instead of knee-jerking about how banning books is bad, this is at its root a hard question, as disputes about what is a political opinion and what is a fact, or what things courts should decide and what things the people should decide, usually are. Obviously, in this case, I was cheering along as the court recited sometimes unpopular truths about Castro's regime; but it's not hard to see how a liberal court could and might do the same to impose its own view of what the facts are about various controversies. Which is why, as usual, my sympathies lie with letting the mistakes that can be made, be made by elected representatives who at least can be held accountable when they declare that it is simply a fact that two plus two equals five.
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LAW: Get Well Soon, Justice Ginsburg
The nature of the Supreme Court - life tenure, the fact that most Justices tend to live long and step down only when illness or death forces the issue, and the enormous stakes in each new Justice's selection - tends unavoidably to set political commentators into full circling-buzzard mode at the first word that a Justice might be ill enough (or, in Justice Stevens' case, simply old enough) to make a vacancy imminent. Tom Goldstein argues that Justice Ginsburg's surgery for pancreatic cancer shouldn't trigger that reaction, despite her age, her prior history with cancer (which apparently makes chemotherapy impossible) and the fact that pancreatic cancer has a famously high and fast mortality rate (think of Gene Upshaw, who died days after his diagnosis). As Goldstein notes, that mortality rate is largely because the disease is rarely detected early, and Justice Ginsburg caught a break in being diagnosed early (as was the case for Steve Jobs).
Of course, as a Supreme Court practitioner, Goldstein has a vested interest in defending a sitting Justice (that's true of me as well), so take it with a grain of salt; but his point is well-taken as far as not jumping to conclusions. We should all wish Justice Ginsburg good health and the freedom to retire or not on her own terms, politics aside. And yes, I know that given the passions the Court arouses and the life-and-death issues it handles, that can be hard at times to do sincerely, but making the effort is itself good for your mental health if you spend too much time in the arena of political blood sport.
All that said, obviously the Obama Administration and Senate Republicans alike need to be thinking ahead to the possibility that her illness at least increases the odds of a vacancy this year, and political commentators being what they are, we can't help but speculate. Goldstein's own site had a list up last week of four possible names - Seventh Circuit Judge Diane Wood, Second Circuit Judge Sonia Sotomayor, Harvard Law Dean (and Solicitor General nominee) Elena Kagan, and Michigan Governor Jennifer Granholm. Three things are clear at this early stage. Number one, if Justice Ginsburg's slot ends up being the first one filled, whether this year or later, the departure of the only remaining female Justice would make it politically impossible for Obama not to pick a woman, hence the names on that list. Number two, whoever it is better have their taxes in order. (I think it's safe to say that for partisan purposes, Republicans would salivate at Granholm, a politician with no judicial experience and a disastrous economic record in Michigan; as a lawyer, I'd rather see someone with actual, proven competence/excellence as a judge and/or lawyer, a point I made repeatedly during the Harriet Miers debate). And number three, to the extent that any nominee is at all controversial, Senate Republicans are going to have to decide if their longstanding principled stand in favor of bringing judicial nominees to a vote - there was no opposition at all to Justice Ginsburg, and no effort to filibuster Justice Breyer - will end up getting discarded, given (1) the prevailing sense that Republican disarmament on this issue has been unilateral and specifically that (2) Obama himself voted against Chief Justice Roberts and voted to filibuster Justice Alito, and is therefore uniquely poorly positioned to demand Senatorial deference to his selections. It's premature as well to make that decision (my own longstanding view is that it's legitimate to use the filibuster to slow down a nomination long enough to gather information and muster political opposition, but not to wholly deny a floor vote), but if there's a vacancy during Obama's presidency, it will surely arise.
January 28, 2009
BASEBALL: The Ethics of Cornering A Thin Market
Jack Marshall at the Hardball Times, after defending in general how Scott Boras does his business, argues that he's violating legal-ethical duties to his clients:
Imagine you are a lawyer who is retained by a parent to sue a school district in a sexual molestation case. You believe you can win and are pretty sure that you have a chance to break the bank and take almost all the assets of the district. Now another client comes to you wanting to sue a school in the same district to get damages for a horrible injury sustained by her child on a defective jungle gym. You can’t take the second case. If you achieve the objective of the first client, there won’t be money left for the second one. If you achieve the goals of one, you can’t possibly achieve the goals of the other.
If the Yankees were the team most likely to contest the Dodgers for Manny Ramirez, in the event that New York did not wrap up Teixeira, Boras was undermining his own client's bargaining power by helping Teixeira reach an agreement with New York. If the Angels signed Sabathia, as was a realistic possibility, it would have made the team an unlikely bidder for Teixeira or Ramirez. Sports commentators, talking heads and bloggers sensed this, speculating that Boras might "steer" Teixeira to an East Coast team to keep open a West Coast landing place for Manny. But Boras cannot ethically manipulate one client's fate to benefit another. For a lawyer, doing so is grounds for bar discipline; for a non-lawyer, it is simply disloyal and wrong.
Read the whole thing. I'm not sure how I come out on this - it's an interesting argument, and it passes the test of being true at a fundamental level - for example, an agent representing Varitek might reasonably have chosen to argue that he was, specifically, a better investment than Rodriguez; representing both, Boras cannot do that. On the other hand, the pond at issue here is so small that if you never represent two players with possibly competing interests, you'd hardly be able to represent more than about 10 players.
LAW/POLITICS: Second Circuit: Second Amendment Doesn't Apply To The States Unless The Supreme Court Tells Us Otherwise
Setback for the Constitutional Right To Bear Nunchaku
The United States Court of Appeals for the Second Circuit, the federal appeals court sitting in Manhattan, rejected this morning a legal challenge by an attorney convicted on Long Island of possession of nunchaku, or chuka sticks, who argued that the Second Amendment protects his right to bear these traditional Okinawan weapons.
The court's decision, however, did not address whether the Second Amendment protects a right to have nunchaku in your home, as it instead disposed of the legal challenge on the considerably more significant grounds that the Second Amendment is not "incorporated" as a restriction on state government by the Fourteenth Amendment:
It is settled law... that the Second Amendment applies only to limitations the federal government seeks to impose on th[e individual] right [to keep and bear arms recognized in Heller]. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment "is a limitation only upon the power of congress and the national government, and not upon that of the state"); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding "that the Second Amendment's 'right to keep and bear arms' imposes a limitation on only federal, not state, legislative efforts" and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006). Heller, a case involving a challenge to the District of Columbia's general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present the question of whether the Second Amendment applies to the states). And to the extent that Heller might be read to question the continuing validity of this principle, we "must follow Presser" because "[w]here, as here, a Supreme Court precedent 'has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.'" Bach, 408 F.3d at 86 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989))...Thus, N.Y. Penal Law ss265.00 through 265.02 do not violate the Second Amendment.
I will leave it to the Second Amendment scholars to discuss the proper reading of Presser; suffice it to say that judicial conservatives who argued that the Fourteenth Amendment does not incorporate the whole Bill of Rights into prohibitions against the states lost that fight years ago, and it will be an ironic twist if liberal champions of incorporation (including the new Justice Department) suddenly rediscover skepticism about the doctrine to protect state-level gun controls. Conservatives as well will face the issue of how to square the weight of pro-incorporation precedent with arguments for reconsidering the doctrine and limiting its further expansion. But make no mistake: sooner or later the Supreme Court is going to have to return to the issue, and its decision will have vast impact on whether Heller becomes a limitation on state and local gun controls or remains limited to federal gun control.
It also remains to be seen, given the novelty of the weapon involved, whether the Supreme Court will be interested in taking up this question in this case, if a certiorari petition is filed, and what position Obama's Justice Department will take if one is and it is asked by the Court to weigh in. Stay tuned.
January 18, 2009
WAR/POLITICS: Vetting Not Included
One hopes the new Administration's homeland security policy will be less porous than its inauguration invite list:
One of the religious leaders invited to address Barack Obama’s inaugural prayer service Wednesday heads an Islamic group named by federal prosecutors as a co-conspirator in a terrorism-fundraising trial in Texas.
There are two possibilities here. One is that the Obama people simply didn't check out Ms. Mattson's background, which seems doubly implausible given that she spoke at the Convention in August. The other is that they have deliberately taken sides against DOJ's view of the Holy Land case (that's surely how the targets of that investigation will view the invitation - as a vindication that their activities are no longer frowned upon), and implicitly against the broader project of Justice's efforts to shut down the laundering of funds through Islamic charity groups inside the U.S. That's a very dangerous signal indeed.
Posted by Baseball Crank at 10:21 PM | Law 2009-13 | Politics 2009 | War 2007-12 | Comments (1) | TrackBack (0)
January 12, 2009
LAW: Billable Hourly
The American Lawyer continues that hardy perennial of legal journalism, "the death of the billable hour is at hand!", with a look at some clients ditching hourly billing in the UK. But even the article admits that replacing the billable hour requires swimming against the tide in the UK:
In the United Kingdom, lawyers and clients have never had the same all-consuming obsession with hourly billing as their American peers. Still, over the last 20 years hourly rates have become the dominant currency here as well...
As I have argued before here and here, while it's true that lawyers and clients alike tend to despise hourly billing (albeit for different reasons), at the end of the day, (1) it persists because you can't replace it without alternatives that have serious potential problems of their own, and (2) no matter how creative lawyers may be in proposing alternative billing structures, they will only catch on if clients provide the impetus for change, which in turn will happen only if clients are comfortable that they are able to meaningfully evaluate the cost-effectiveness of lawyer services, which most clients can do with hourly bills from long experience. The vast amounts of ink spilled on this topic every year almost always fail to grapple with those basic dynamics.
Edmund Burke, the great conservative theorist, famously remarked that "[a] state without some means of change is without the means of its conservation," and that's as true in the law or any business as it is in government or culture - an attitude that all change is always bad is a very dangerous one. But the fact remains that in trying to change any entrenched practice, you have to start by asking why things are the way they are and how your proposed alternative is going to deal with those conditions. We'd all love to see the hoary old billable hour interred, but legal journalism that advocates change in the industry without grappling with those realities doesn't end up accomplishing very much for the profession of law.
January 9, 2009
LAW: Nice Try
The Ninth Circuit rejects the Unabomber's lawsuit to get his bomb-making materials and manuals back. I'm sure that was a tough call.