Saturday, December 6, 2008

Damage Caps and Medical Malpractice Litigation: VI

Ok, one last posting on cap design, before I move on to the impact of caps on physician supply. As I noted previously, when California adopted the first non-econ cap in 1975, it set the level at $250,000, without an inflation adjustment. That approach has anchored subsequent debates over non-econ caps. Most state damage caps are not indexed for inflation, so their impact becomes stricter over time.

If the California non-econ cap was inflation adjusted, it would have been $855k in 2003, and $970k in 2007. The next table shows how not adjusting for inflation affects the impact of the California cap at various points over time. The first four rows estimate the payout reduction in tried cases if the cap had been set at the level that applied during the specified year. The last four rows estimate the payout reduction into the future, using two different assumptions about the inflation rate.

To summarize the last several postings, cap design is usually ignored, but it makes a big difference in cap impact. The moving parts include the absolute cap level, whether the cap is on non-econ damages or total damages, whether it affects all or only some cases, and whether it is inflation-adjusted or not.


Academics and the Obama Administration: The Washington Post has a front-page article indicating that several Yale Law faculty members are among the many academics who think a job in the Obama Administration might be worth seeking:
  Yale law professor Dan Kahan said several of his colleagues are for the first time considering leaving their perches for Washington.
  "You know how Obama always said, 'This is our moment; this is our time?' " Kahan said. "Well, academics and smart people think, 'Hey, when he says this is our time, he's talking about us.' "

"Worthwhile Canadian Initiative":

No, it seems legit, according to the New York Times Nick Kristof, though "earnest and dull" -- spreading salt iodization throughout the world. Thanks to JustOneMinute for the pointer.


Coldplay Copyright Infringement?

Guitarist Joe Satriani has asserted in a complaint filed on Thursday that substantial portions of his 2004 song "If I Could Fly" were copied by Coldplay in its song "Viva La Vida." Judge for yourself:

Of course, you can't really tell, from a comparison of the songs, whether or not there's been infringement; as in all copyright infringement cases, any similarities between the songs are not enough, standing alone, to constitute infringement (no matter how similar the two compositions might be), because the plaintiff has to prove not only that the songs are "substantially similar" to one another, but also that Coldplay actually copied from Satriani's song (i.e., that the similarities aren't due to coincidence, or independent development, or from both artists copying from some third source . . .).


"Obama unveils 21st Century New Deal": has the story about Obama's proposed Economic Recovery Plan. As best I can tell, the plan is to create 2.5 million jobs through public spending on rebuilding schools, government buildings, and roads.

Was Bill Ayers a Terrorist?

He says no:

I never killed or injured anyone.... In 1970, I co-founded the Weather Underground, an organization that was created after an accidental explosion that claimed the lives of three of our comrades in Greenwich Village. The Weather Underground went on to take responsibility for placing several small bombs in empty offices — the ones at the Pentagon and the United States Capitol were the most notorious — as an illegal and unpopular war consumed the nation.

The Weather Underground crossed lines of legality, of propriety and perhaps even of common sense. Our effectiveness can be — and still is being — debated. We did carry out symbolic acts of extreme vandalism directed at monuments to war and racism, and the attacks on property, never on people, were meant to respect human life and convey outrage and determination to end the Vietnam war.

Peaceful protests had failed to stop the war. So we issued a screaming response. But it was not terrorism; we were not engaged in a campaign to kill and injure people indiscriminately, spreading fear and suffering for political ends.

There is no doubt, however, that at least under current law, he would be considered a terrorist. Here is a definition of terrorism in U.S. law (22 USC 2656f(d)f(2)) (there are others as well but similar):

the term “terrorism” means premeditated, politically motivated violence perpetrated against non-combatant targets by subnational groups or clandestine agents

The Weather Underground was a subnational group; exploding bombs is an act of violence; government offices are non-combatant targets (the Weather Underground also bombed banks); and the use of violence had the political goal of ending the Vietnam War. "Screaming response" or no, this was terrorism.

Under current law, Ayers was a terrorist. This definition is not idiosyncratic; similar definitions can be found in the laws of foreign countries and in international treaties. Ayers seems to think he ought to be excused for violence because his motives were good, but that is the excuse that terrorists always offer—that their political goals justify their use of violence—and naturally the legal definition could not permit such a defense without subverting itself, or turning every terrorism trial into a debate about whether the political ends of the defendants are "good" or "bad" from a moral or political perspective.

Though Ayers is right that the he was a sideshow to the campaign, the term “unrepentant terrorist” seems accurate. Worse terms would be even more accurate.

The op-ed is written carefully; one detects the touch of a lawyer or perhaps an author with lawyerly instincts. Ayers says that he never killed or injured anyone and that he co-founded the Weather Underground in 1970, which “went on to take responsibility for placing several small bombs in empty offices.” The natural question that arises is whether the Weather Underground actually did more than what it took responsibility for, and whether Ayers, as its co-founder, is responsible for those unnamed acts, or other acts that occurred prior to the founding of the Weather Underground in 1970. Anyone with even casual knowledge of the days of rage and the other antics of the Weathermen (the term used prior to the founding of the Weather Underground in 1970), and the various disputes involving what the Weather Underground did and did not actually do (as opposed to what it “took responsibility for”), might wonder what Ayers is not telling us, and whether Ayers considers himself responsible for the many injuries and deaths (of his own “comrades” who accidently blew themselves up in a Greenwich Village townhouse prior to the founding of the Weather Underground) even if he did not inflict them with his own hands. Ayres did not first enter the scene when he co-founded the Weather Underground in 1970, as uncareful readers might surmise.

The op-ed is a stupid piece of work; what it says about Ayers I leave to the reader.


Should the Pardon Power Be Amended?

Rep. Jerrold Nadler is proposing to amend the Constitution to restrict the President's pardon power. Rep. Nadler is apparently concerned that President Bush will pardon members of his own administration involved in the development of counterterrorism and detainment policies who may have broken the law. Brian Kalt observes:

the most interesting thing about Nadler's proposal is how diametrically opposed it is to the Framers' conception of the pardon power. This is not a criticism of Nadler's proposal as such—by definition, constitutional amendments are inconsistent with the constitutional provisions that they are trying to change. But it is striking, and illuminating.

Kalt's whole post is worth reading. Among other things, it reminds us that the question of whether a President should be able to pardon members of his own administration is not new. After debating the question, the Framers concluded that this was not too great a power to give the President, despite the potential for abuse. Recent Presidents have certainly use the pardon power in inappropriate ways, but I don't think this justifies amending the Constitution.


Bill Ayers Speaks: In the op-ed page of the New York Times: "In the recently concluded presidential race, I was unwillingly thrust upon the stage and asked to play a role in a profoundly dishonest drama. I refused, and here’s why."

  UPDATE: It's interesting to compare this to what Ayers wrote years ago in his memoirs, reviewed here in 2001 by Timothy Noah of Slate.


Hamburger’s Law & Judicial Duty. Part 4: Evidentiary Issues.

In my fourth selection from the introduction of Philip Hamburger’s Law and Judicial Duty, Hamburger raises some of the evidentiary issues:

The judicial authorization of judicial review and its intimations of judicial power are only plausible because the most significant evidence appears to be missing. Although many cases of judicial review occurred after the adoption of the U.S. Constitution, the evidence of earlier cases seems weak. As Edward Corwin explains, "[t]he capital difficulty consists in the paucity of the evidence."

In fact, the problem is not so much evidentiary as conceptual. The trouble arises from the very notion of judicial review, which is a concept so tightly focused on modern concerns that it renders many of the early decisions almost irrelevant. If judicial review is today considered prototypically a review of legislation, then early decisions about executive and judicial acts do not appear very central. Similarly, if judicial review is associated with cases, then other types of decisions, such as resolutions and advisory opinions, seem anomalous.

The assumption that the historical inquiry must be a search for judicial review further narrows the evidence by reducing it to a matter of precedent. The difficulty of finding evidence of judicial review in the 1780s or earlier has appeared to suggest that the American judges must have subsequently developed this power, and it therefore seems necessary to find the precedents with which they established it. Many scholars therefore largely ignore the judicial determinations that were not cases, and on the assumption that judicial review could only have been established by the highest court of a state or the nation, the scholars even tend to discount state and especially lower court cases. Actually, the determinations of the most lowly of courts are the best evidence of what men took for granted, and one of the great pleasures of this study has been to locate some of these humble and therefore all the more revealing decisions. In pursuit of precedent, however, most commentators focus on familiar and elevated sources—on cases, federal courts, and especially the U.S. Supreme Court. . . .

All of these evidentiary problems (including the scarcity of precedents and the difficulty of sorting a limited number of cases) can be avoided here because, although the precedents for judicial review remain difficult to discern, the evidence about law and judicial duty turns out to be abundant. A simple shift in focus from judicial review to judicial duty is all that is necessary to bring the evidence into view. With this conceptual adjustment, what was previously little more than an evocative blur becomes an expansive and well-defined landscape, filled with vivid details. The evidence in such ways thus requires a change in paradigm—a return from the modern notion of judicial review back to the old, forgotten ideal of judicial duty.

The very label "judicial review" is misleading, for it suggests both too little and too much. Judges had an office or duty to decide in accord with the law of the land in all of their decisions, not merely when engaged in "review," and the phrase "judicial review" therefore describes only a fraction of the instances in which judges were bound by their duty and only some of the instances in which judges determined that customs or acts were unlawful. At the same time, the phrase suggests too much, for it alludes to judicial power without reference to judicial duty and thus lends itself to discussion of a power broader than the duty. In fact, although judges understood that in doing their duty, they enjoyed a power to enforce constitutions and protect rights, they ordinarily conceived of this power in terms of their duty and did not understand the power to extend any further.

A concept as familiar as judicial review may be difficult to put aside. Certainly, some readers will attempt to understand the argument here in terms of judicial review—as if the point were simply that judicial review was older and slightly different than usually assumed. The evidence, however, leads away from notions of judicial review, and to understand the history, it is necessary to follow the evidence.

Monday: Part 5: The Common Law Concepts of Law & Judicial Duty


The Nixon-Burger Tapes:

Tony Mauro reports on a just-released Nixon White House tape containing a conversation between President Nixon and Chief Justice Warren Burger. It's interesting stuff. The audio itself should be available here.


Quantum of Solecism,

courtesy of the excellent Language Log.


David Schleicher Guest-Blogging:

I'm delighted to say that we'll be joined this coming week by Prof. David Schleicher from George Mason University School of Law (say, haven't I heard of that law school before?). Prof. Schleicher teaches local government law and civil procedure, and writes about these things as well as his main focus, election law.

A few months ago, I read Prof. Schleicher's fascinating Why Is There No Partisan Competition in City Council Elections? The Role of Election Law, 23 J. L. & Politics 419 (2007), and thought our readers would enjoy learning about Prof. Schleicher's arguments -- arguments about why big city local elections do not feature much partisan competition, and about why this is a problem for scholarly understandings of how parties operate, for localism, and for cities themselves. I'm much looking forward to Prof. Schleicher's posts.


National Association of Scholars Conference:

I've long been a member of the NAS, and the January 9-11 conference in D.C. -- The Changing Landscape of Higher Education -- sounds very interesting. I can't make it, but if you're a conservative, libertarian, moderate, or even liberal academic, you should seriously consider it.


Congratulations to Commenters logicnazi and nn489,

both of whom were quoted in Why Are Only Bad Acts Good Sentencing Factors?, 88 B.U. L. Rev. 1109 (2008). Their posts came in the Sentencing and Military Service thread. The author of the article apparently found the issues raised by that thread particularly interesting, and used the commenters' views as samples of certain kinds of arguments that people have made.


Friday, December 5, 2008

Lindsay Lohan Violated Facebook's Terms of Service by using the name Lindsay "Ronson" instead of Lindsay Lohan, the Los Angeles Times reports. I believe the U.S. Attorney's Office in LA has jurisdiction to prosecute this one, too.

Interior Department's New Rule on Firearms Possession in National Parks:

The Department's fairly detailed discussion is here. An excerpt:

[Previous] regulations generally prohibited visitors from possessing an operable and loaded firearm in areas administered by [the National Park Service and the Fish and Wildlife Service] unless the firearm is used for lawful hunting activities, target practice in areas designated by special regulations, or other purposes related to the administration of federal lands in Alaska....

[T]he Department's final rule amends the regulations to allow individuals to carry concealed, loaded, and operable firearms in federal park units and refuges to the extent that they could lawfully do so under non-conflicting state law.... [T]o the extent that a state's law recognizes licenses issued by other States, including the applicability of reciprocity agreements, the final rule would similarly recognize such reciprocal authorities.

There are FAQ's here. Some excerpts from that:

Q: Won’t visitors and wildlife be endangered by allowing concealed firearms in parks and refuges?

A: No. The final rule continues to maintain existing regulatory provisions that prohibit poaching, unauthorized target shooting, and other illegal use of firearms. Additionally, individuals authorized to carry firearms in a park or refuge will continue to be subject to all other applicable state and federal laws. We have no reason to believe that law-abiding citizens who carry concealed firearms will disregard these prohibitions and use their firearms for illegal purposes. Moreover, the final rule does not affect existing rules limiting the possession of loaded rifles or shotguns.

Q: Aren’t parks and refuges already safe places? If so, why allow people to carry concealed firearms?

A: America’s national parks and refuges are often safe places to visit, and our law enforcement officials are working to the best of their abilities and resources to maintain visitor safety. However, we also recognize that current statistics show an alarming increase in criminal activity on federal lands managed by the Department of the Interior, especially in areas close to the border and in lands that are not readily accessible by law enforcement authorities. In these circumstances, we do not believe it is appropriate to refuse to recognize state laws simply because a person enters the boundaries of a national park or wildlife refuge, or because there is a lesser chance that a visitor will be harmed or potentially killed by a criminal in a national park unit or wildlife refuge.

Thanks to John Hollingshead for the pointer.


The Al Marri Grant: I was glad to see the Supreme Court grant cert in Al Marri: This is an important issue and clarity is needed, no matter what way the Court eventually rules.

  One catch is that I assume the Court would likely dismiss the case without a decision if the incoming Obama Adminstration decides to detain Al Marri on some ground other than that he is an "enemy combatant." And it's hard to see why the new Administration wouldn't do that. My recollection was that Al Marri was about to go to trial on credit card fraud charges in federal court before he was transfered to military custody. Unless there are some procedural issues that I'm not thinking of, he can go back to being so charged.

  UPDATE: Commenters point out that the charges against Al Marri were dismissed with prejudice, so the old charges could not be reinstanted. Instead, some new charges would need to be filed. The rest of this post assumes that the government has evidence to support charges for some other crime.]

  That would seem to be the obvious preference for the new Administration. They should charge Al Marri in federal court and try to get a conviction with a long sentence to avoid these questions for as long as possible. Such a choice would reinforce to the Justices that there's a new Executive Sheriff in town; it would look good to the world; it would make civil libertarians happy; it would keep Al Marri off the streets; and it would avoid litigation a battleground that the new administration didn't choose and presumably would rather have avoided in the first place. Perhaps these issues will come up again down the road, but maybe they won't: No need to fight a battle like that now.

  Incidentally, one interesting question is why the Court granted now if they knew (as they must have) that the new Administration might take a different course. One reason is that the grant forces the new Administration to act soon. Another possibility — and this is one I will have to think about — is that a change in the Administration's view could let the Court GVR, "grant vacate and remand," taking the lower court decision off the books for now in light of the SG's change of position.

Supreme Court takes another detainee case:

Here we go again. According the The New York Times:

The case concerns Ali al-Marri, the only person on the American mainland being held as an enemy combatant, at the Navy brig in Charleston, S.C. Mr. Marri, a citizen of Qatar, was legally in the United States when he was arrested in December 2001 in Peoria, Ill., where he was living with his family and studying computer science at Bradley University.

Eighteen months later, when Mr. Marri was on the verge of a trial on credit card fraud and other charges, President Bush declared him an enemy combatant, moving him from the custody of the Justice Department to military detention. The government says Mr. Marri is a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system.

The case, which will probably be argued in the spring, will present the Obama administration with several difficult strategic choices. It can continue to defend the Bush administration’s expansive interpretation of executive power, advance a more modest one or short-circuit the case by moving it to the criminal justice system.

In July, the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., issued a fractured decision in the case. In one 5-to-4 ruling, the court ruled that the president has the legal authority to detain Mr. Marri.

But a second, overlapping 5-to-4 majority of the court ruled that he must be given an additional opportunity to challenge his detention in federal court. An earlier court proceeding, in which the government had presented only a sworn statement from a defense intelligence official, was inadequate, the second majority ruled.

The issue of the President's power to detain enemy combatants under the post-9/11 congressional Authorization to Use Military Force was decided in the President's favor in Hamdi v. Rumsfeld in 2004. But the Court also said that detainees must be given a hearing to challenge their designation.

The difference between this case and Hamdi and the other detainee cases appears to be that al-Marri was seized while lawfully residing in the United States. Hamdi was captured on the battlefield in Afghanistan. Jose Padilla, another detainee held as an enemy combatant (and later tried and convicted) was captured upon arrival at the Chicago airport, but in connection with his activities in Afghanistan. Al-Marri's attorneys are apparently arguing that the circumstances of his case are beyond the detention authority granted to the President in the AUMF and that, consequently, he must either be tried or released.

I haven't read the briefs yet but it's hard to see how the location of his capture would make much of a difference to the Court. If indeed the President has the power to detain people he designates as enemy combatants under the AUMF, as the Court held in Hamdi, al-Marri is entitled to a status-review hearing but not a trial. The government's claim, after all, is that he is acting in concert with Al Queda. The AUMF allows the President to use force, including detention, against any person or organization "he determines" is connected with 9/11. It contains no geographic restriction on where that force may be used and no requirement of a connection to any traditional "battlefield." Indeed, Hamdi was a citizen held in South Carolina after being captured abroad, facts which made no dent in the President's power to detain enemy combatants. But the executive power is now on a losing streak in these war-on-terror cases, so bets are off.

As for the position of the Obama administration in the case, will this be another test of the Orin postulate that all things criminal and reckless under the Bush administration will now be necessary and proper under the enlightened one?

UPDATE: Find links to the briefs at SCOTUSBlog here.


Obama and international law

Ken Anderson has been working up a head of a steam about the incipient hypocrisy of Democrats who are quietly adopting Bush administration positions, or moderate variants thereof, after having spent eight years calling these very positions idiotic & criminal & similar things—also known as the Orin postulate. I had thought Anderson premature in his outrage—so far, he’s pointed mainly to NYT articles and the like which he thinks are setting the stage—but now erstwhile Obama supporters have begun to worry about the same thing, with respect to a range of issues, including torture, international law, and the war in Iraq. The evidence remains slim, but it is growing; it includes the machinations of Democratic senators, signals from the Obama administration about Iraq troop withdrawal, and—most of all—appointments of Clinton-era officials. Virtually everyone has forgotten that the Clinton administration took a pretty casual approach to international law and, while it did not torture people, had little compunction about rendering terrorist suspects to countries where they would likely be tortured. You might think that Clinton was less contemptuous of international law than Bush was (though this is less clear than it might seem), but this is at best a matter of degree, and a clean break, “change,” does not seem to be in the cards.

Lawyerly talents will be harnessed to the rationalization process—what was illegal under Bush turns out not to be illegal under Obama because of some subtle variation in the structure of the project (which itself will be used to prove that the Obama administration takes the law more seriously—why else, after go to the trouble of rationalizing law-breaking?). Obama defenders will also seize on subtleties in timing and emphasis to inflate the differences between the two administrations. We already hear that Obama will support the Law of the Sea treaty while Bush did not (in fact, he did), or that Obama will take a climate treaty more seriously than Bush (maybe, but the Bush administration committed itself to greenhouse-gas reductions at Bali). It will be of great interest to see how the Obama administration approaches the International Criminal Court. Here, too, the Bush administration has been willing to work with the institution without signing America up. Will Obama go farther? This will be a key test. The ICC offers little material advantage to the United States unless you subscribe to “international rule of law” arguments that we will all be safer when international legal institutions are stronger. Obama could face a fight from the military and the security agencies, especially if the latter understand that harsh interrogation will continue to occur. Are the speculative gains worth these real political costs, or will Obama’s advisors remember Clinton’s gays-in-the-military debacle and decide that a better use of Obama’s political capital lies elsewhere?

If so, Obama supporters have already prepared themselves with the “second-term” argument (for example, here, but more so in conversation). Obama has his hands full now and will accomplish his spectacularly progressive international law agenda in his second term when he needn’t fear electoral sanctions—I mean, when he has built up overwhelming majorities of progressive Democrats in both houses. Maybe. But think about the last few two-term administrations. Bush II, Clinton, and Reagan were all far more ideologically ambitious in their first terms than in their second terms. The second term was, in each case, devoted to damage control and compromise, in large part necessitated by the ideological excesses of the first term. As for Obama, we will have to wait and see.


DO NOT SEE "AUSTRALIA" Avoid Australia--not the continent, the movie. To see why, go to this link on Rotten Tomatoes and read all the negative reviews--something I did not do before wasting 3 hours of my life. They summarize quite well how bad this film is. My two favorite lines are these: "Within five minutes, Australia seems headed for trouble. It gets there and stays there." & "Really, you don't want to sit through this." As usual, you can count on the opposite of Roger Ebert's opinions being the case. I hope whatever the other positive reviewers were smoking is legalized soon. On that idea, see Ethan Nadelmann's op-ed, Let's End Drug Prohibition, in today's Wall Street Journal.


Damage Caps and Medical Malpractice Litigation: V

On to cap design. We’ve got 24 different cap variations, reflecting the dynamics in each of the 31 states that have damages caps. What is the impact of these variations on payout? Is a non-econ cap of $250k twice as strict as a cap of $500k? How should one compare the impact of a total damages cap with a non-econ cap?

To sort this issue out, we applied each of the 24 caps against the same set of tried and settled cases from Texas. This allows us to assess the comparative severity of each cap. To be sure, the impact of each cap is dictated by the mix of cases to which it is applied -- so we cannot say what the impact of any given cap will be in any given state. More bluntly, that means we’re not saying that if a state adopts a particular cap, the figures in the table accurately predict the percentage impact on payouts in that state. Put another way, your mileage may vary.

The next table lists the state caps from most to least strict, based on percentage reduction in mean allowed verdict. It also shows the predicted reduction in mean payout in tried cases, settled cases, and all cases. The ranking of caps by verdict impact is similar, but not identical, to the ranking by payout-based impact. Across all states, the predicted impact in verdicts is larger than the predicted impact on payouts in tried cases, and the predicted impact on payouts in tried cases is larger than the predicted impact in settled cases.

As this table reflects, damages caps vary widely in stringency. At the high end, Louisiana’s $500k total damages cap reduces mean allowed verdicts by 76%, payouts in tried cases by 65%, and payouts in settled cases by 41%. At the low end, Wisconsin’s $750k cap on non-econ damages reduces verdicts by 28%, payouts in tried cases by 16%, and payouts in settled cases by 8%. The Texas cap, which varies based on number and type of defendants, is equivalent in overall effect to a simple $336k (1988$) non-econ cap, and is thus slightly less stringent than Oklahoma's $300k cap.

Total damages caps have an especially large effect on allowed verdicts. The total damages caps in Louisiana ($500k), New Mexico ($600k), Indiana ($1.25M), Nebraska ($1.75M) and Virginia ($1.95M) have a greater impact on allowed verdicts and (less sharply) post-verdict payouts than any of the non-econ caps, even though the non-econ caps often have much lower levels. However, the Nebraska and Virginia total damages caps are comparable to a $250k non-econ cap in their effect on payouts in settled cases. The lower effect on payouts in tried cases is because the large verdicts which are affected by these total damages caps tend to receive large haircuts. The lower effect on settled cases is because settled cases tend to be smaller than tried cases.

Finally, the relationship between cap level and cap impact is complex, and depends on various features of cap design. Focusing only on cap level, a cap of $250k reduces payout across all cases by 20.9%. Increasing the cap to $350k reduces payout across all cases by 16.9%. Increasing it again to $500k reduces payout to 12.8%. A further increase to $650k reduces payout by 12.6% -- virtually the same impact as the cap of $500k.

Tomorrow, more detail on cap design, including the impact of adjusting cap level for inflation.


Amicus Briefs at the Cert Stage: Over at Slate, Adam Chandler has an interesting essay on the use of Supreme Court amicus briefs at the cert stage. (In English, those are written legal arguments filed by "friends of the court" — that is, folks other than the litigants themselves — on whether the Supreme Court should take a case.)

  By way of background, such briefs are almost always in support of the petition. They are designed to get a law clerk's attention and make the dispute appear more nationally important, and therefore increase the chances the Court will grant cert. In particular, amicus briefs make the stack of briefs that the clerk receives more formidable: They send a message to the clerk writing the pool memo that says "this one is important and probably has a chance, so set aside some time for it." Plus, amicus briefs are identified in pool memos: Their arguments are usually summarized in in a short paragraph after the arguments of the parties. For these reasons, cert-stage amcius briefs can increase the chances that the Court will "flag" the petition as something unusually important. Almost no one files amicus briefs against certiorari, as it would very likely backfire: Such a brief would tell the Court that you think the case is so important that you've written in to keep the Justices out, which only makes them more interested.

  Some stats from the essay:
  Between May 2004 and August 2007, nearly 1,000 private organizations filed cert-stage briefs. Only a few make it a habit—just 16 groups filed eight or more early-bird briefs a piece. Ten of those top amici serve business interests and conservative causes. They include the Products Liability Advisory Council, the Pacific Legal Foundation, and the National Association of Manufacturers. And the king of the amici, the U.S. Chamber of Commerce, filed 55 briefs over the period studied, or about 17 each year.
  Among the top 16 cert-stage amicus filers, the National Association of Criminal Defense Lawyers is the only one that might be considered a liberal interest group. It ranked second to the Chamber of Commerce with 33 briefs. The American Civil Liberties Union tallied just two cert-stage amicus briefs during the three years under review.
  I wonder if cert-stage amicus briefs might be a good project for some of the law school clinics that are cropping up and are looking for cases. It's less sexy to write a cert-stage amicus brief than a merits brief, of course. But such briefs can have a recognizable impact by explaining the stakes of a case in a way that petitioners themselves often can't.

Ninth Circuit denies en banc review of DADT case:

Last May a panel of the Ninth Circuit called into question the constitutionality of "Don't Ask, Don't Tell," the federal law under which the military discharges personnel known to be gay. The panel did not actually hold DADT unconstitutional but announced a heightened scrutiny standard applicable to the policy based on the Supreme Court's decision in Lawrence v. Texas. It then remanded the case to the district court for further fact-finding to determine whether the policy could survive the heightened scrutiny. Orin, Eugene, and I offered some thoughts about the decision in a series of posts at the time.

Now the Ninth Circuit has refused to hear the case en banc, with six judges dissenting. In his dissent, Judge O'Scannlain emphasized the narrow context and reach of Lawrence. Judge Kleinfeld, in a separate dissent, emphasized the traditional deference due to Congress and the President in military matters. Finally, Judge Kozinski pronounced himself agnostic on the merits but believed the case was important enough that it should be heard by the full court.

The question now, as back in May, is what happens next. At this point, the case would go back to the district court for factual development and final decision on the merits. Alternatively, the Supreme Court could accept review of the case if the Bush and/or Obama administration decide to press it.

Left to its own devices, I doubt the Obama administration would pursue the case at this point, but would prefer to preserve its options -- political and legal -- for the future. Obama himself opposes DADT and might like to see it held unconstitutional, but I'm guessing he'd rather not have the issue take center-stage via a showdown in the Supreme Court in the immediate future. I also doubt the current court would hold DADT unconstitutional, and a ruling in favor of it might actually politically entrench it for a few more years. Others have also expressed doubts about the Obama Justice Department pushing the case to the Supreme Court.

On the other hand, if the Bush administration decided to file a cert petition the Obama DOJ would be put in the difficult position of having either to defend the constitutionality of a policy the President opposes on the merits or withdrawing the petition in the early weeks of his presidency. The latter course would also present public-relations problems reminiscent of the early days of the Clinton administration. But withdrawing a cert petition might not be as politically risky as it seems because the Ninth Circuit hasn't actually held that DADT is unconstitutional.

Indeed, some factual development in the district court showing the weaknesses, inconsistencies, and harm caused by the policy might be helpful in laying the groundwork for a legislative repeal of DADT in Congress before the Supreme Court ever has a chance to hear the case -- years down the road. Additionally, Obama will need time to establish his bona fides as a tough Commander-in-Chief -- for example, by bombing a country or two, or by supporting the limited use of "enhanced interrogation" techniques or broader domestic surveillance, or by delaying his 16-month timetable for Iraq withdrawal -- before he can push legislatively for what will be a controversial change. He will need the acquiescence if not the support of the Joint Chiefs of Staff for such a change and he won't get that until he establishes some credibility with them. The Ninth Circuit's decision to kick the can back to the district court, rather than address it with the weight of the full court, may buy some needed time.


SSM bill dead in NY for 2009:

The warring factions of New York Democrats have finally struck a deal to allow them to gain control of the state senate. According to the Daily News, one casualty of the deal is same-sex marriage, which has already passed the state assembly, but which will not get a senate floor vote next year after all:

A bill to legalize same-sex marriage will not be brought to the floor of the Senate for a vote this year. [Senate Minority Leader Malcolm] Smith will announce that he does not believe the measure has sufficient votes to pass - a statement that is at this point undoubtedly true, although it's unclear how long that will last if, as Democrats are hoping, the prospect of being in the minority leads to mass GOP retirements.

This means that, at least for another year, and possibly for the entire session or even until such time as more Republicans are defeated in the state senate, New York will continue to permit its same-sex couples to cross the border into Massachusetts, Connecticut, or Canada to get full official marital recognition at home -- but will not allow them to get married in their own state.


Hamburger’s Law & Judicial Duty. Part 3: Implications for Judicial Power.

In my third selection from the introduction of Philip Hamburger’s Law and Judicial Duty, Hamburger suggests that misunderstandings of the history of judicial review tend to lead to a more expansive view of judicial power. If judges established their own power of review, “this would seem to leave them with an extraordinary discretion over the liberty of their fellow Americans.”

Implications for Judicial Power

The history of how judges developed "judicial review" has consequences for judicial power. By shifting the constitutional authority for judicial review from the Constitution to the judges, the history appears to imply that the judges enjoy control over the scope and exercise of judicial review—thus leaving them power over their own role in enforcing the Constitution.

Initially, the history of judicial review seemed to call into doubt the legitimacy of judicial review, for if the framers "intended the Court to have the power, why did they not provide for it?" On such assumptions, some commentators almost a century ago charged the judges with "usurpation." Fifty years later, many scholars still treated judicial review as a debatable proposition," and they thereby questioned the authority of judicial expositions of the Constitution, arguing that all branches of government enjoy a power of interpretation. . . .

Judicial power, however, has come to seem less troubling than it did to earlier generations, and commentators therefore increasingly assume that the judicial creation of judicial review was but a singularly important example of an inevitable judicial discretion over constitutional law. Abandoning the word "usurpation," they propose that even if judicial review lacks much authority in the U.S. Constitution, it has a broad basis in judicial power and American society. Alexander Bickel writes that "the power of judicial review … cannot be found" in the constitution and that therefore "the institution of the judiciary needed to be summoned up out of the constitutional vapors, shaped, and maintained;" but " [i]f any social process can be said to have been 'done' at a given time. and by a given act, it is Marshall's achievement … in the case of Marbury v. Madison."' Less confident that the Chief Justice somehow accomplished so much in a single case, other scholars combine judicial creativity and public acquiescence to overcome the absence of authority in the U.S. Constitution. As put by Eugene Rostow, judicial review "stands now, whatever the Founding Fathers may in fact have meant, as an integral feature of the living constitution, long since established as a working part of the democratic political life of the nation." Although perhaps not "the intention of the Founding Fathers," it is “part of the living constitution."

With this attribution of judicial review to the judges, the history of judicial review gives legitimacy to a broad judicial control over the extent and exercise of judicial power. Justice Jackson argues that "[s]ince the power was not disclosed by the instrument, it follows that it was not limited or regulated by it" and concludes that "[w]hen the power should come into play" and "by what caution and safeguards it would be hedged" were matters left to evolution of what we know as 'Judicial Supremacy."' . . .

The judicial discretion implied by the history becomes especially clear from the claims that judges can vary their enforcement of constitutional law. Building on Justice Harlan Fiske Stone's suggestion in Carolene Products that the judges can adopt different degrees of "judicial scrutiny," Learned Hand argues that "nothing in the United States Constitution … gave courts any authority to review the decisions of Congress," and that since this power is not a logical deduction from the structure of the Constitution but only a practical condition upon its successful operation, it need not be exercised whenever a court sees, or thinks it sees, an invasion of the Constitution. . . .

The weakness of the constitutional authority has left the judges to analyze their power in terms of political theory. If the U.S. Constitution did not authorize judicial review, "the function must be supported by... other reasons," and with this sense that judicial review rests on functional justifications, Bickel concluded that "there will . . . be instances when it seems justifiable to exercise judicial review more vigorously against the states than the federal legislature or executive, and instances calling for less vigor as well"—the latter being times for prudence and what Bickel called the "passive virtues." The theory invited by the apparently weak constitutional authority for judicial review has thus appeared to suggest that judges should adjust the severity of their review in accord with a wide range of considerations, including the judges' institutional competence, the danger from different levels of government, the importance of different types of rights, and the political circumstances of different social groups. In one version or another, this sort of political theorizing has been the preeminent mode of analyzing judicial review for half a century, and after being intimated by Hand and Bickel, and elaborated by Jesse Choper and John Hart Ely, it has become profoundly influential.

The history of judicial review thus creates an opening for an expansive judicial power. If judges established their power of review on their own authority, they would appear to have control over the character and exercise of the power, and this would seem to leave them with an extraordinary discretion over the liberty of their fellow Americans.

Tomorrow: Part 4: Evidentiary Issues


Damage Caps and Medical Malpractice Litigation: IV

Today, I want to focus on cap design. But first, one clarification from yesterday. Of course, we should expect caps on non-economic damages to hit those with large non-economic damages harder. How much harder is a different question – particularly when past studies that have addressed that issue have used verdicts (and not payouts) to study that point. The problem with using verdicts is that even without a damages cap, defendants in our dataset don't pay what juries award. So, using verdicts instead of payouts gives you a inflated/misleading answer about the effect of the cap (both in the aggregate, and on specific plaintiff categories). That's why the aggregate figures for cap effect (37% reduction in verdict dollars v. 27% reduction in payout dollars on a far-smaller base) look the way they do. In dollar terms, the damages cap "takes away" $156M in verdict dollars, but only $60M in actual payout dollars.

To make it easier to see that point, I’ve re-done the tables from my last posting, to include the impact on both verdict and payout.

In each instance, the cap has a larger impact – sometimes much larger – on verdicts than on payouts. So, those who are basing their hopes (or fears) regarding the overall impact of a non-econ cap on their perception of what will happen to the largest/most salient verdicts should moderate their expectations.

I'll post later on cap design.


Thursday, December 4, 2008

I Really Should Be Working On Exams rather than trying to find the single cheesiest Lawrence Welk clip on YouTube, but hey, that's what the Internet is for, I guess. Anyway, here's the current pick, amidst tough competition:
If you can find something even cheesier, provide the link in the comment thread.

Amusing Statistic:

From Crossing Wall Street:

Total Democratic Presidential Votes Since 1932: 745,407,082

Total Republican Presidential Votes Since 1932: 745,297,123

Of course, this weighs recent elections, in which more votes were cast, more heavily than older elections. I haven't checked the data, though they link to a spreadsheet with the data, which you folks can easily check if you'd like. Thanks to Prof. Brad Smith for the pointer.


Damage Caps and Medical Malpractice Litigation: III

Ok, so today I will be much shorter, and start right up with our findings. I ended my last post with a bunch of points, including our estimation that the Texas cap will reduce payouts in tried cases by 27%, and settled cases by 18% (assuming no change in the volume and mix of cases). In dollar terms, that corresponds to a reduction of $60M in payouts for tried cases, and $780M in settled cases. (For reasons that the paper outlines, these figures are in 1988$ -- to get to 2008$, multiply by 1.83 – and you get $110M, and $1.47B.

Whose hide do those savings come out of? Predictably enough, it is claimants with non-economic damages that exceed the cap – and the greater the percentage of one’s award that is non-economic and above the cap, the larger the impact. Payouts in tried cases are larger than in settled cases, and size does matter: 47% of the tried cases (and 18% of the settled cases) have paid non-economic damages that exceed the cap.

Who has paid non-economic damages that exceed the cap? We have demographic information on age, employment status, and whether the plaintiff is deceased or not. The following table shows how payout is affected, in the tried and settled cases, for various groups defined by these categories.

The table shows that some types of cases (death cases, cases in which the plaintiff is unemployed, and cases in which the plaintiff is elderly) had higher aggregate and per-claim reductions in payout. The reduction is larger in tried cases than in settled cases – which makes sense, since as noted above, the payouts in settled cases are smaller. This means that fewer cases are over the cap, and those that are have a smaller “haircut” from the cap. The differences are statistically significant for per-case mean reductions in tried cases, comparing death with non-death (23% v. 12%), and unemployed with employed (19% v. 11%) – but not for elderly v. adult-non-elderly (19% v. 14%).

The next table provides a finer breakdown for adult, non-elderly plaintiffs.

There is a striking gap between the 53% aggregate reduction in payout for unemployed deceased plaintiffs, versus 17% for employed deceased plaintiffs or 15% for employed non-deceased plaintiffs. The gap for unemployed non-deceased plaintiffs v. employed non-deceased plaintiffs is more modest (24% v. 15%). Within the death and non-death groups, the per-case mean differences are not significant -- perhaps due to small sample size, but they become so in the last comparison, between unemployed deceased plaintiffs and employed non-deceased plaintiffs (31% v. 9%).

To summarize, the Texas cap hits hardest those with large non-economic damage awards – and those plaintiffs are disproportionately likely to be deceased, unemployed, and perhaps elderly.

My next post will address how “tweaking” cap design affects the impact. Stated differently, it will address which of the 31 states has the most severe and least severe cap -- and how a $250k flat cap compares to a $1.75M total damages cap in terms of its impact on payouts.


Hamburger’s Law & Judicial Duty. Part 2: The Logic of Judicial Review.

In my second selection from the introduction of Philip Hamburger’s Law and Judicial Duty, Hamburger examines the questionable logic of “judicial review.”

The Logic of Judicial Review

The implication of the history—that judicial review has its authority from the judges—troubles some distinguished scholars of constitutional law, who respond that a more grounded sort of authority can be discerned in the logic underlying judicial review. Rather than attempt to give a full historical account, these scholars examine salient points in the history—usually 1803 and 1787—to draw attention to the logical assumptions from which judicial review can be derived. Yet in pursuing the logic that might support a new judicial function, these scholars miss the more traditional and general logic of judicial duty, and in relying on texts from 1787 and 1803, they seem to suggest that the judges still had to elicit and give shape to the inchoate logic. In both ways, the scholarly observations about the logic exacerbate rather than put to rest the history's implication that the judges authorized their own power to hold acts unconstitutional.

The pursuit of the logic underlying judicial review is familiar from the standard approach to teaching Marbury v. Madison—an approach that rests on the significance of deciding cases. Marshall argued in Marbury that when judges decide cases, they have "to say what the law is," for "[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule," and "if both the law and the constitution apply to a particular case . . . the court must determine which of these conflicting rules governs the case." Generations of law students have been taught from these words to regard judicial review as the logical outcome of cases, and with this approach to Marbury lawyers can understand the decision as derived from premises discernible in law. Judicial review thus becomes a conclusion of law—even if one that Marshall had to spell out and establish in a decisive precedent.

Although this pursuit of Marbury’s logic can locate analytical foundations for judicial review, it does not make much of a dent in the history of judicial review or its implication that the authority for this power came from the judges themselves. One difficulty is that by relying on a case that postdates the Constitution, such analysis suggests that the judges still had to develop and give substance to the logic of judicial review. A deeper problem is that the study of Marbury’s logic focuses on what is necessary for deciding cases and thus does not adequately explore Marbury’s allusions to the traditional ideals of law and judicial duty. It is true that, in order to decide their cases, judges must expound the law. Yet while it is important to understand when a judge must decide a constitutional question, this does not resolve how he should do so or what has the obligation of law, and by compressing these profound questions into the reasoning about deciding cases, the scholarly treatment of Marbury’s logic tends to omit much of the logical and historical depth. Marshall understood the importance of these more basic questions, and although he did not bother with detailed answers, he gave two fleeting hints. As to law, he asked, "[i]f an act of the legislature, repugnant to the constitution, is void …. does it constitute a rule as operative as if it was a law?" With respect to duty, he said that the court must decide which of the conflicting rules—the law or the constitution—governs a case, and he then explained, "[t]his is of the very essence of judicial duty." Marshall thus briefly alluded to the pair of ideas that occupy so much of this book, but because he could take them for granted, he made no effort to explain them. Not recognizing the depths of what Marshall simply assumed, scholars of judicial review miss the logical and historical foundations provided by the ideals of law and judicial duty, and they therefore end up concentrating on Marshall's more explicit but less fundamental point about deciding cases. The inquiry about Marbury’s logic thus not only focuses on a case that postdates the Constitution but also largely bypasses the old, foundational ideals that would allow one to understand the degree to which Marshall was engaged in very traditional judicial reasoning. In both ways, rather than displace the suspicion that judicial review derives from the judges, the inquiry about Marbury’s logic makes Marshall's opinion seem an act of intellectual prowess in which he and his brethren largely established their own power. . . .

Tomorrow: Part 3: Implications for Judicial Power.


Happy Repeal Day! The 75th Anniversary of the End of Prohibition:

Radley Balko has an excellent article on tomorrow's upcoming 75th anniversary of the repeal of prohibition by the Twenty-First Amendment. He notes some important parallels between the failures of Prohibition and those of today's very similar War on Drugs. The sobering facts are almost enough to drive me to drink:

It did reduce overall consumption of alcohol in the U.S., but that reduction came largely among those who consumed alcohol responsibly. The actual harm caused by alcohol abuse was made worse, thanks to the economics of prohibitions.

Black market alcohol was of dubious origin, unregulated by market forces. The price premium that attaches to banned substances made the alcohol that made it to consumers more potent and more dangerous. And, of course, organized crime rose and flourished thanks to the new market created by the 18th Amendment and the Volstead Act.

So hospitalizations related to alcohol soared. And so did violent crime. Corruption flourished, as law enforcement officials in charge of enforcing prohibition went on the take, from beat cops all the way up to the office of the United States Attorney General...

There's no question that drug prohibition has been every bit the failure alcohol prohibition was. Nearly 40 years after the [Controlled Substances Act of 1970] passed, we have 400,000 people in prison for nonviolent drug crimes; a domestic police force that often looks and acts like an occupying military force; nearly a trillion dollars spent on enforcement, both here and through aggressive interdiction efforts overseas; and urban areas that can resemble war zones. Yet illicit drugs like cocaine and marijuana are as cheap and abundant as they were in 1970. The street price of both drugs has actually dropped—dramatically—since the government began keeping track in the early 1980s.

The main difference between the two prohibitions is that one was enacted lawfully, and once it became clear that it had failed, we repealed it (and government revenues soared with new alcohol taxes). As the drug war has failed, the government merely claims more powers to fight it more aggressively.

Radley also notes that the one saving grace of Prohibition was that it was clearly constitutional, adopted through the amendment process rather than by dubious overextension of Congress' power to regulate "commerce . . . among the several States" under Article I of the Constitution. When Prohibition was enacted, few jurists or legal scholars doubted that a constitutional amendment was required to give Congress the power to ban all sales of alcohol, including those that occurred within the territory of a single state. That consensus - which traces its origins back to the Founding era - is an important strike against the modern view that Congress has unlimited authority to control anything and everything through the Commerce Clause.

By contrast, the War on Drugs has culminated in decisions such as Gonzales v. Raich, which, as I explained in this article, gives Congress virtually unlimited authority to regulate any activity using its Commerce Clause power, whether the activity has any meaningful connection to interstate commerce or not.

Constitutional federalism is just one of the many casualties of the War on Drugs. Of course it's not as important as the thousands of deaths, hundreds of thousands of broken lives, and tens of billions of wasted dollars. But it's worth noting nonetheless.


Hamburger’s Law & Judicial Duty. Part 1: “Judicial Review.”

The best law book I read this year is Philip Hamburger’s Law and Judicial Duty, recently released by Harvard Press. At 700 pages, it is a thorough examination of the history of judicial duty to apply superior law, a duty that has as one of its offshoots the courts’ obligation to strike down executive, legislative, and judicial actions that violate higher laws.

After making an exceedingly impressive study of early English and American authorities, Hamburger argues:

The evidence reveals the importance of the common law ideals of law and judicial duty. It shows that these two ideals, taken together, required judges to hold unconstitutional acts unlawful. In pursuing the evidence, therefore, this book cannot focus on a distinct power to hold acts unconstitutional, but rather must more generally study the nature of law and of judicial office as understood by common lawyers.

He has kindly allowed me to quote at length from the introduction to the book in several posts over the next few days.

Hamburger first suggests that “judicial review” is a modern concept that tends to obscure the nature of the historical evidence and leads to what I would call the “heroic” view of Marbury v. Madison.

According to the conventional version of this history, the American people in the 1770s and 1780s discovered the principle of popular power and thereby invented written constitutions. The people, however, apparently did not foresee how their constitutions should be enforced. Fortunately—so the story goes—the judges discerned the possibility of enforcing constitutions in their cases, and they made some fitful experiments in this direction in the 1780s and then more confidently in the 1790s. Although they could draw upon earlier, English and colonial traditions, they had to develop the mechanism of reviewing enactments for their unconstitutionality, and they most decisively settled the authority of this new power in 1803 in Marbury v. Madison. Evidently, although the people created their constitutions, the judges had to complete the creation of American government by developing and finally establishing their own most significant power.

Even the most familiar stories, however, can turn out to be misleading, and few stories about America are as misleading as that about judicial review. The history and its implications rest on the fragile assumption that there is little evidence of judicial review from the decade and a half after 1776—this being the basis for concluding that American judges must have created this power. The evidence admittedly is meager if one looks for a concept of judicial review—a concept of a judicial power to hold statutes unconstitutional. Yet if one does not look for something so modern, there is much evidence—not of a power of judicial review, but of a duty of judges to decide in accord with the law of the land. The evidence thus reveals the history of judicial review to be largely an illusion produced by modern assumptions, and in its place the evidence supplies another, much broader history—that of law and judicial duty.

The History of Judicial Review

For more than a century, much scholarship has been done within the framework of what is here called "the history of judicial review." This scholarship tends to be very learned, and it is frequently relied upon here, but the framework itself must be questioned. It will soon be seen that eighteenth-century judges did not understand themselves to have a distinct power of review and that it is therefore misleading to inquire about their conception of such a power. . . .

The most popular version of the history focuses on Marbury v. Madison. This version acknowledges that by 1803 state and federal judges had already experimented in holding statutes unconstitutional, and it recognizes that after 1789 they could draw on the Constitution's incomplete hints about judicial power, but it emphasizes that in 1803, in Marbury. Chief Justice John Marshall gave judicial review the force of an unimpeachable precedent of the U.S. Supreme Court. Marshall would thus seem to have been the founding father of judicial review, and his opinion in Marbury its authorizing text.

Of course, there are less implausible variations on the theme of judicial self-authorization, and some identify earlier origins, but without displacing the suggestion that the judges themselves established their power of review. . . .

Whether in looking back to 1803, 1787, the earlier years of the 1780s, the colonial period, or the eternity of natural law, these different versions of the history of judicial review all leave the impression that American judges established this power for themselves. These judges could draw on past experience, and they therefore did not have to construct judicial review out of whole cloth, but because they had so little direct authority in their constitutions, they evidently had to develop and institute their review of acts for their constitutionality, and they thus appear to have provided the authority for their own greatest power.

More to come . . . .


Creative Commons: Over at Carrollogos, law prof Michael Carroll makes the case for supporting Creative Commons.

Patenting Patent Trolling:

As many of you know, "patent trolls" are parties that buy up issued patents for the sole purpose of using the patents offensively to collect licensing fees (or, failing that, to sue for infringement) from 3d parties. There's been lots of writing about the phenomenon over the past several years and about what it says about the (sorry) state of our current patent system.

In a new wrinkle, it appears that Halliburton, Inc., has filed a patent application claiming a patent for the process of patent trolling! Pretty cheeky!!

Here's the actual application at the PTO website. According to the WSJ law blog, Halliburton claims that it does not intend to "apply the technique offensively" -- i.e., it's not trying to monopolize the business of patent trolling -- but rather it "intends to use any patent that may issue from this application defensively to discourage entities that engage in such tactics."

There is, incidentally, approximately 0% chance that the patent will be granted. For one thing, it's very hard to see how Halliburton would establish that is has come up with a "novel" process (as required for the issuance of a patent), and in any event, the recent decision by the Federal Circuit Court of Appeals in In re Bilski almost certainly renders inventions like this one (and other "business method" patents the PTO has been handing out in recent years) unpatentable. [In Bilski, the court held that a process is "patent-eligible" if "(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing." Hard to see how patent trolling methods fit the bill . . .

[More commentary on this patent filing is here at and patently-o]


Argument for Incorporation of the Second Amendment Against the States

is foreclosed by Seventh Circuit precedent, and late 1800s Supreme Court precedent, rules the district judge in NRA v. City of Oak Park & City of Chicago:

In this instance our Court of Appeals has squarely upheld the constitutionality of a ban on handguns a quarter century ago in Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th Cir. 1982). And in reaching that conclusion, Quilici relied on the Supreme Court's decision in Presser v. Illinois, 116 U.S. 252, 265 (1886):

It is difficult to understand how appellants can assert that Presser supports the theory that the second amendment right to keep and bear arms is a fundamental right which the state cannot regulate when the Presser decision plainly states that "(t)he Second Amendment declares that it shall not be infringed, but this ... means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government...."

In doing so, Quilici rejected arguments (1) that later Supreme Court decisions that had incorporated other Bill of Rights provisions into the Fourteenth Amendment had effectively overruled Presser and (2) that the entire Bill of Rights had been implicitly incorporated into the Fourteenth Amendment to apply to the states.

To be sure, as the just-quoted language reflects, both Cruikshank [an 1876 Supreme Court case] and Presser long antedated the more modern jurisprudence of implied incorporation that began with the initial suggestion in Gitlow v. New York, 268 U.S. 652 (1925), that the First Amendment was brought into play against the states via the Fourteenth Amendment, and then continued with selective incorporation thereafter. But Heller deliberately and properly did not opine on the subject of incorporation [or non-incorporation] of the Second Amendment (after all, that question was not before the Court)....

This Court should not be misunderstood as either rejecting or endorsing the logic of plaintiffs' argument — it may well carry the day before a court that is unconstrained by the obligation to follow the unreversed precedent of a court that occupies a higher position in the judicial firmament.

This is an eminently plausible position for the district judge to take, in light of the Supreme Court's old precedent but especially the Seventh Circuit's much newer precedent. We'll see what the Seventh Circuit does, and in particular whether it too thinks the Supreme Court late 1800s cases are binding or whether it agrees with Nelson Lund's Anticipating the Second Amendment Incorporation: The Role of the Inferior Courts that they foreclose only incorporation via the Privileges or Immunities Clause, but do not foreclose incorporation via the Due Process Clause:

I conclude that the lower courts, though not the Supreme Court, are probably barred by precedent from finding that the right to keep and bear arms is protected by the Fourteenth Amendment’s Privileges or Immunities Clause. Part III shows that existing Supreme Court precedent points very strongly in favor of incorporation under substantive due process. Part IV argues, on the basis of existing precedent, that the inferior courts need not wait for the Supreme Court to reach this conclusion. They can best perform their role in our hierarchical judicial system by treating the Supreme Court’s modern incorporation jurisprudence as law. If they do, they should conclude that the right to keep and bear arms is protected against infringement by the state governments, just as it is protected against the federal government.

We'll also see what the Ninth Circuit does in Nordyke v. King, which will be argued on January 15. And of course we might also see in due time what the Supreme Court does with this, given that it is of course free to reexamine its old precedents. I think the Court should hold that the Second Amendment applies to the states, but it might be quite a while before the Court gets the case.

Thanks to Gene Hoffman for the pointer.


NYU Law School's New Curve: See it here, at Leiter's. As best I can recall, NYU's requirement that professors cannot give more than 5% of the class a C+ or below has been in place for a number of years. I don't know about the B- grades, though, which are limited under the new curve to 4-8% of the class. The overall curve is somewhat more generous than what most schools use, mostly because the bottom of the class is treated unusually generously: In a class of 100, only 4 people are required to get grades of B- and everyone else can get a B or higher. (Of course, whether that happens depends on whether professors "max out" the curve, which may or may not be common --I don't know.)

Interesting Conclusion to the Trinity Racist Post Controversy:

I posted about the controversy a month ago; to recap, quoting from a Hartford Courant story,

More than 200 Trinity College students, faculty and staff rallied on campus Monday in response to a racially offensive comment posted on an online message board....

The comment, posted anonymously on a website called TrinTalk, disparaged minority students and said their admission to the college correlated with a drop in the rankings of "our fine Trinity." TrinTalk is not affiliated with the college....

I referred to the incident, and criticized a sociology professor who responded that "If the college wishes to end hate on campus, ... it could, by changing its policies to not admit students who are intolerant, increasing student and faculty diversity, and making diversity a central goal" (the Courant's paraphrase, but I confirmed its substantive accuracy).

Well, here's the interesting twist, according to The Trinity Tripod:

Lynda Ikejimba '09 announced that she was responsible for the racist post ....

"I am the person responsible for the outrageous, despicably racist post published on the TrinTalk website," wrote Ikejimba in a campus-wide apology email. "And I am a black woman. I am writing to apologize to all of you for what I have caused."

Explaining that she had hoped to set up a social experiment mirroring the satire of A Modest Proposal by Jonathan Swift, Ikejimba said, "In my experience at Trinity, race relations have not been optimal. Those who have been here long enough can recall the incidents that stand out the most, but often there are more minor unreported events that ultimately shape our time here.

"Over time, significant efforts have been made to reshape the culture for the better, with the establishment of the Campus Climate Committee, and a surge in the number of accepted minorities, to name two examples. In my mind, the metamorphosis begged the question of how students feel about Trinity finally shedding some of its legacy [...] For this reason I wrote in the TrinTalk forum, under the guise of someone very resistant to the transformation [...] These ideas notwithstanding, I realize now that what I did was incredibly stupid and wrong, and far from the shadow of any resemblance of literary work, the idea was ill-conceived and its execution was horrendous."

Ikejimba ended with, "I asked whether the remake of the face of our school was genuine, and the answer was a resounding 'yes', but I deeply regret that the answer came at the expense of your dignity. I am very ashamed of the pain I have caused the students, faculty, staff, and administration, and I hope this apology brings some sense of relief." ...


Some Good Copyright Mojo:

The Center for Social Media recently released what it calls a "Code of Best Practices in Fair Use" that, in its words, "clarifies the fair use of copyrighted materials for teaching and learning, putting an end to copyright confusion for educators." That's a bit hyperbolic -- but it is a very interesting, and very well-put-together, document that's both (a) a terrific summary of the law of fair use, and (b) an excellent set of principles, or rules of thumb, to guide those who are using copyrighted material in educational contexts about when they can (or can't) assert that they're making "fair use" of that material.

There's something of a "political" slant to this, it should be noted. The document is, explicitly, trying to arm educators so that they will assert their fair use privileges, more vigorously than they have done in the past, all as part of a campaign to re-invigorate the doctrine. [James Boyle's new book, "The Public Domain" -- which I haven't yet read, but which I suspect (knowing Boyle's other work) is well worth reading and which is on my nightstand -- and Larry Lessig's "Remix" are both part of this movement as well]. Over the last decade or so, probably largely as a result of well-publicized lawsuits by the RIAA and others, lots of institutions, including educational institutions, have become terrified of the prospect of being targeted in a copyright infringement suit, and have adopted policies that are timid (or worse) in regard to the use and re-use of copyrighted material in the classroom or in the general scholarly or educational endeavour, and this little document is designed -- well-designed, imho -- to reverse that trend. Worth a look, if you've ever found yourself concerned about using copyrighted material in your teaching or writing.


Why Isn't Ohio's Indoor Smoking Ban Reducing Smoking?

In 2006, Ohio voters approved a ban on smoking indoors, including bars and restaurants. The ban took effects in December 2006. One would think that the prohibition would reduce smoking rates, right? After all, the prohibition increases the costs of smoking quite significantly for many smokers (particularly in the winter). Yet according to this story, the smoking rate in Ohio has increased by three percent since 2007. What gives?


AG Mukasey Says No Pardons Necessary:

The NYT reports that Attorney General Michael Mukasey does not believe the Bush Administration needs to consider whether to pardon officials who were involved with the development of interrogation policies.

Mr. Mukasey, whose nomination as attorney general last year was threatened by his refusal to say whether he considered waterboarding to be torture, said the lawyers who authorized the surveillance and interrogation programs had done so in the belief that they were following the law.

“In those circumstances,” he said, “there is no occasion to consider prosecution, and there is no occasion to consider pardon.”

“If the word goes out to the contrary,” he said, “then people are going to get the message, which is that if you come up with an answer that is not considered desirable in the future you might face prosecution, and that creates an incentive not to give an honest answer but to give an answer that may be acceptable in the future. It also creates some incentive in people not to ask in the first place.”


About-Face on Torture?

Are key Senate Democrats moderating their unequivocal opposition to the use of torture or less-severe coercive interrogation techniques? Glenn Greenwald thinks so. In particular, he notes that Senators Dianne Feinstein (who is the incoming Senate Intelligence Chair) and Ron Wyden had previously insisted that the CIA comply with the Army Field Manual when conducting interrogations, and even co-sponsored legislation to write this limitation into law. Now, however, both are indicating a more flexible stance.

If Senators Feinstein and Wyden have indeed altered their positions -- and Greenwald makes a pretty strong case that they have -- this would be consistent Orin's postulate that Democrats must now be more supportive of broad executive power now that a Democrat will occupy the White House. We'll have to see whether Republicans who took a permissive view of the Bush Administration's interogation policies also have a change of heart.


Mother in Labor Ticketed When Husband Drives in Breakdown Lane:

What a cruel, heartless cop, right? That's the way the story is written.

But wait. If you read the story carefully, when the cop pulled the husband over, he was attending to a car in the breakdown lane, where the husband was driving illegally (albeit allegedly with the permission of cops he encountered previously). In other words, the husband was endangering the cop's life. And the couple turned down the officer's offer of an ambulance. Why? Well, when you get to the last paragraph, you find out that the baby wasn't born until five hours later. If it's a true emergency, call 911 and meet the ambulance at the next exit!

As I've pointed out before, the fact that a woman is in labor is no excuse for unsafe driving.


Wednesday, December 3, 2008

Damage Caps and Medical Malpractice Litigation: II

Yesterday, I reviewed some background on damages caps. Today, I want to focus on the effect of damages caps on payouts. Of course, payouts are not the only thing worth studying, as the comments to my first posting reflect. Access to medical services might well be affected by a cap. So might malpractice premiums – at least that was the hope/expectation of those who proposed caps to deal with the malpractice (premium) crisis. And, don’t forget defensive medicine, which affects total spending on health care. But, for right now, I want to focus on actual payouts.

What does past research find about the effect of damages caps? The results are mixed, but most of the studies find that caps do reduce payouts – typically by between 15% and 35% -- although some find no effect whatsoever. You can find a review of the literature, with references to the underlying studies here, in Section II.

There are at last four different ways of studying how damages caps affect payouts. One can:

1. Compare payouts in states with and without damages caps. This can be done either at a case-level, or using aggregate insurer payouts.

2. Obtain case-level verdicts and estimate how a particular damages cap will affect payouts.

3. Obtain payouts in tried and settled cases from a state without a cap, and estimate how a damages cap will affect payouts.

4. Compare payouts before and after a cap is adopted in a single state or across multiple states.

Each of these approaches has been used by researchers, and each has their own mix of advantages and disadvantages.

For example, the first approach implicitly assumes that all states with caps have the same cap. This is clearly incorrect, as yesterday’s posting made clear. So, if a comparison finds no difference in payouts between cap and non-cap states, it might be because caps have no effect on payouts, or it might be because a very restrictive cap in one state had a big effect, but less restrictive caps in other states had little/no effect -- and averaging results across all states with caps obscures the fact that there was a difference in payouts, but only in the state(s) with more restrictive caps.

The second approach looks more straightforward, but it has its own complexities. For example, if payouts don’t correspond to verdicts, applying the cap to the verdict gives you a misleading impression of the real impact of the cap. For example, if it turns out that defendants don’t actually pay what the jury awards, then a straightforward application of the cap will substantially overstate the cap’s impact – giving the cap credit for “taking away” money that isn’t being paid to begin with.

In an earlier article, we found that defendants generally don’t pay what juries award – and the larger the verdict the larger and more likely the “haircut.” Overall, only 46% of the amount awarded by juries is actually paid. The most important factor explaining verdict haircuts is the amount of insurance coverage. If the doctor has $500,000 in policy limits, it doesn’t seem to matter whether the jury awards $500,000, $1,000,000, or $5,000,000. The insurer will pay $500,000, and that will usually be the end of the dispute. Above-limits payouts are uncommon, and when they occur, they are virtually always paid by the insurer. (More discussion of those subjects is saved for another day).

The third approach, which is the one we use in this paper, has the virtue of relying on actual payouts (instead of verdicts), but one needs to make a series of assumptions in order to do the estimation. The main weakness of this approach (apart from the plausibility of the necessary assumptions) is that it is a static snapshot: it takes cases to which the cap doesn’t apply, and assumes the same cases will be brought post-cap. That’s a pretty strong assumption – particularly if what we are interested in is the impact of a damages cap on payouts by defendants. Consider three possibilities:

1. the cap makes some cases insufficiently remunerative, so they are not brought – decreasing the volume of cases;

2. the cap changes the economics of some (but not all) cases, so some cases are dropped, but other cases( that used to be insufficiently remunerative) are now worth pursuing, and they take the place of the cases that are dropped – meaning the volume of cases stays the same;

3. the cap makes malpractice cheaper, and so doctors take less care and injure more people – increasing the volume of cases.

The first two effects are likely to be realized, if at all, in the short-run, while the third is likely to be realized, if at all, in the long-run. It is hard to know how to sort out this issue in the abstract. Even though the third approach will not provide a clear answer as to the dynamic consequences of a non-econ cap on defendant's payouts, it does have one important advantage -- it tell us what the impact of a cap will be from the perspective of the current group of plaintiffs – and if you’re at all interested in the distributional consequences of a cap, that’s worth analyzing.

The final approach is the best way to do these kinds of studies, but the data to do so is generally not available. (We anticipate doing one of these studies around 2011, since that is the earliest the necessary data will be available).

Regardless of which approach one uses, there are additional complexities to be dealt with, such as determining when a cap actually went into effect. That problem is harder than one might think: how should one handle a cap while it is under constitutional challenge in the state courts? How should one handle a cap that was in effect for a while, and then struck down? The answer to both questions will depend on one’s sense of the factors that influence insurer behavior. For example, to what extent do insurers discount their expectations regarding cap effects by their expectations of when and whether the cap will be upheld? Do they hold up settlement of cases until it is clear whether the cap will be upheld, or settle them with the expectation the cap will be upheld – or struck down – or something in-between?

One final difficulty, which is common to all four approaches, is the problem of obtaining data. When money is transferred from defendants to plaintiffs, it is almost always the result of a settlement – and it is extremely hard to obtain case-level information on settled cases. It is somewhat easier to obtain case-level information on tried cases, but trials are rare, and, as noted above, the jury verdict does not necessarily indicate the actual payout. The most common source of information on jury verdicts (commercial jury verdict reporters) are systematically skewed toward larger verdicts – and they usually don’t contain information on payouts.

Researchers have used different strategies to address this problem. Some have simply used information on verdicts, while cautioning readers as to the limitations of this approach. Others have obtained information on payouts in tried and settled cases from individual insurers, the National Practitioner Databank, or state closed claims databases. Several states maintain such databases, but not all of them are public. For example, Illinois has a database of all malpractice claims dating back to 1980, but the enabling statute prohibits public release of the information, even if it is de-identified. A slightly dated list of such databases, which is Table 1 in this article, is reproduced below.

The National Association of Insurance Commissioners is working on developing guidelines for states that are interested in creating their own databases. Not surprisingly, one of the flashpoints has been the degree of confidentiality of the reported information. Physician groups have generally opposed public release of the information, even on a de-identified basis. That said, the American Society of Anesthesiologists has used closed claims to identify areas likely to lead to malpractice claims, and to improve the quality of the services they deliver.

In our study we rely on the Texas closed claims database, which includes case-level information on all commercially insured closed medical malpractice claims in which there was a payout > $10,000 nominal. More detailed information is available on cases in which the payout was greater than $25,000 nominal. The database is updated annually, and currently includes the years 1988-2005. The data is here. ("Closed Claim Data"

As my posting from yesterday indicates, the Texas non-econ cap varies from $250,000 to $750,000, depending on the number and type of defendants. The Texas cap is not indexed for inflation.

This post has once again gone on longer than I intended, so I’ll just summarize our findings, and provide some more detailed analysis tomorrow. We find that

• The Texas cap reduces the mean (median) "allowed verdict" (the allowable portion of the jury award, plus interest) by 37% (36%). The mean allowed verdict drops from $1.28M to $800k.

• The Texas cap reduces the mean (median) predicted payout in jury verdict cases by 27% (23%). The mean payout drops from $696k to $512k. The reduction in mean payout ($184k) is substantially smaller than the reduction in the mean allowed verdict ($480k). In total, the non-econ cap reduces adjusted verdicts by $156M, but predicted payouts by only $60M.

• Settled cases account for 97.5% of the cases and 95% of the dollars in the dataset. Predicted aggregate payouts in settled cases decline by 18%. The mean settlement payout declines from $313k to $257k. The total reduction in payout is on the order of $780M.

• The non-econ cap has a disparate impact across plaintiff demographic groups, with the larger percentage reductions borne by deceased, unemployed, and (likely) elderly plaintiffs, relative to non-deceased, employed, and non-elderly plaintiffs.

That’s enough for today.


Is Heller like Roe v. Wade? A reply to Judge Wilkinson:

Fourth Circuit Judge J. Harvie Wilkinson, III, is the author of a forthcoming article in the Virginia Law Review, Of Guns, Abortions, and the Unraveling Rule of Law. Wilkinson criticizes the Supreme Court's decision in District of Columbia v. Heller, and argues that the majority opinion is wrong for the same reasons that Roe v. Wade was wrong: both cases violated "judicial values," such as deference to legislative decisions, avoidance of political thickets, and federalism. The draft article has attracted much favorable attention from the media, including the New York Times, Washington Post, Associated Press, and George Will.

In a working paper now available on SSRN, Nelson Lund and I critique Judge Wilkinson's equation of Heller and Roe. Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson, III argues that Judge Wilkinson's analogy between Roe and Heller is untenable. The right of the people to keep and bear arms is in the Constitution, and the right to abortion is not. Contrary to Judge Wilkinson, the genuine conservative critique of Roe is based on the Constitution, not on judicial "values." Judge Wilkinson, moreover, does not show that Heller's interpretation of the Second Amendment is refuted, or even called into serious question, by Justice Stevens' dissenting opinion.

After addressing the Roe analogy, our article examines Judge Wilkinson's stated rules of judicial restraint. We contend that Judge Wilkinson himself does not adhere to the "neutral principle" that he claims to derive from "judicial values." Under the principle of judicial restraint that he articulates, many now-reviled statutes, including the Jim Crow laws of the twentieth century, should have been upheld by the courts. The article suggests that Judge Wilkinson does not accept the consequences of his own supposedly neutral principle, preferring instead to endorse or condemn Supreme Court decisions solely on the basis of his policy preferences. Although the Wilkinson article is couched in the language of judicial restraint, it amounts to an endorsement of judicial lawlessness.


Criminal Libel in Colorado, Again in the News:

Two stories from the past month. ABC News reported yesterday:

A man [J.P. Weichel] accused of making unflattering online comments about his former lover and her attorney on Craigslist has been charged [in October] with two counts of criminal libel....

The case began when a woman told Loveland police in December 2007 about postings made about her between November and December 2007. Court records show posts that suggested she traded sexual acts for legal services from her attorney and mentioned a visit from child services because of an injury to her child.

Police obtained search warrants for records from Web sites including Craigslist before identifying Weichel as the suspect. Weichel shares a child with the woman....

And from The Pueblo Chieftain a month ago:

Prosecutors this week invoked an arcane, seldom-used statute to charge a Pueblo County man for allegedly disseminating false information about someone.

Robert Ezekiel Tafoya, 51, was charged with one felony count of criminal libel, according to court records. Convictions for the offense are punishable by up to 18 months in prison for first-time offenders....

District Attorney Bill Thiebaut said Tafoya used modern technology, in this case computer programs, to alter pictures of his accuser.

“The investigation showed that the defendant pasted pictures of the face of one person onto the body of other persons and published or disseminated the pictures electronically to others,” Thiebaut said. “We believe it impeached the reputation (of his accuser) and those pictures were being used to ridicule her.” Thiebaut would not elaborate on the relationship between Tafoya and his accuser, or what the doctored photos depicted, except to say that they cast Tafoya's accuser “in a compromising position.”

For more recent items from other states, see this Reporters' Committee for Freedom of the Press page.

Colorado is one of the substantial minority of states that still has criminal libel laws. Many people have argued that criminal libel laws are unconstitutional, but the Supreme Court has never so held. The Court's most recent decision about this, Garrison v. Louisiana (1964), required that in cases on matters of public concern about public figures a defendant couldn't be held liable unless the prosecution could prove that the defendant knew the statement was false, or was aware of a high probability that it was false. I'm pretty sure, given later cases, that the same would be true in cases on matters of public concern about private figures. But the Court has not gone further to hold that all criminal libel laws are per se impermissible, and it also has not spoken to what could be done when the statement is false and on a matter of purely private concern, which the statements in these cases likely qualify as being.

The Colorado Supreme Court has held that its current criminal libel statute was constitutional, at least as to statements on matters of private concern, and has even said that it was constitutional to place on the defendant the burden of proving truth. See People v. Ryan, 806 P.2d 935 (Colo. 1991). I think the court was wrong about the current statute, because the statute is unconstitutionally overbroad even as modified by the court decision: (1) It punishes even negligent or reasonable mistakes of fact about private figures on matters of public concern — speech that, under Gertz v. Robert Welch, may not be punished — and (2) it improperly leaves the defendant with the burden of proving truth in private figure/public concern cases, which is unconstitutional under Philadelphia Newspapers v. Hepps. But obviously the Colorado courts disagree with me on this.


University Associate V-P of Human Resources Sues Over Firing Based on Anti-Gay-Rights Newspaper Article:

Here's the Complaint, in Crystal Dixon v. University of Toledo. Here's the article itself:

I read with great interest Michael Miller’s April 6 column, "Gay Rights and Wrongs."

I respectfully submit a different perspective for Miller and Toledo Free Press readers to consider.

First, human beings, regardless of their choices in life, are of ultimate value to God and should be viewed the same by others. At the same time, one’s personal choices lead to outcomes either positive or negative.

As a Black woman who happens to be an alumnus of the University of Toledo’s Graduate School, an employee and business owner, I take great umbrage at the notion that those choosing the homosexual lifestyle are "civil rights victims." Here’s why. I cannot wake up tomorrow and not be a Black woman. I am genetically and biologically a Black woman and very pleased to be so as my Creator intended. Daily, thousands of homosexuals make a life decision to leave the gay lifestyle evidenced by the growing population of PFOX (Parents and Friends of Ex Gays) and Exodus International just to name a few. Frequently, the individuals report that the impetus to their change of heart and lifestyle was a transformative experience with God; a realization that their choice of same-sex practices wreaked havoc in their psychological and physical lives. Charlene E. Cothran, publisher of Venus Magazine, was an aggressive, strategic supporter of gay rights and a practicing lesbian for 29 years, before she renounced her sexuality and gave Jesus Christ stewardship of her life. The gay community vilified her angrily and withdrew financial support from her magazine, upon her announcement that she was leaving the lesbian lifestyle. Rev. Carla Thomas Royster, a highly respected New Jersey educator and founder and pastor of Blessed Redeemer Church in Burlington, NJ, married to husband Mark with two sons, bravely exposed her previous life as a lesbian in a tell-all book. When asked why she wrote the book, she responded "to set people free… I finally obeyed God."

Economic data is irrefutable: The normative statistics for a homosexual in the USA include a Bachelor’s degree: For gay men, the median household income is $83,000/yr. (Gay singles $62,000; gay couples living together $130,000), almost 80% above the median U.S. household income of $46,326, per census data. For lesbians, the median household income is $80,000/yr. (Lesbian singles $52,000; Lesbian couples living together $96,000); 36% of lesbians reported household incomes in excess of $100,000/yr. Compare that to the median income of the non-college educated Black male of $30,539. The data speaks for itself.

The reference to the alleged benefits disparity at the University of Toledo was rather misleading. When the University of Toledo and former Medical University of Ohio merged, both entities had multiple contracts for different benefit plans at substantially different employee cost sharing levels. To suggest that homosexual employees on one campus are being denied benefits avoids the fact that ALL employees across the two campuses regardless of their sexual orientation, have different benefit plans. The university is working diligently to address this issue in a reasonable and cost-efficient manner, for all employees, not just one segment.

My final and most important point. There is a divine order. God created human kind male and female (Genesis 1:27). God created humans with an inalienable right to choose. There are consequences for each of our choices, including those who violate God’s divine order. It is base human nature to revolt and become indignant when the world or even God Himself, disagrees with our choice that violates His divine order. Jesus Christ loves the sinner but hates the sin (John 8:1-11.) Daily, Jesus Christ is radically transforming the lives of both straight and gay folks and bringing them into a life of wholeness: spiritually, psychologically, physically and even economically. That is the ultimate right.

Crystal Dixon lives in Maumee.

The university apparently agrees that Dixon was fired because of the article, but argues that the firing was justified:

A letter from [University of Toledo President Lloyd Jacobs] to Ms. Dixon said her public position was in direct contradiction with university values and told her that her position "calls into question your continued ability to lead a critical function within the administration as personnel actions or decisions taken in your capacity as associate vice president for human resources could be challenged or placed at risk. The result is a loss of confidence in you as an administrator."

Ms. Dixon cited her 25-year career in human resources in which she has hired and recommended the hiring of both homosexual and heterosexual people based on their qualifications.

"To say that I cannot have a personal opinion regarding the practice of some humans and not be effective in my job as a human resources leader is preposterous given my track record for the past 25 years," she said.

Matt Lockwood, a UT spokesman, said yesterday the university welcomes dissent and input from others and the exchange of ideas, but her public expressions called into question her ability to do the functions of her job.

"Certain jobs within a public institution have restrictions on what those people in those jobs can express," he said.

The University of Toledo is a state-run university. Three questions:

(1) Is the University's position constitutionally permissible, on the grounds that "the employee's interest in expressing herself on this matter [was] not be outweighed by [some] injury the speech could cause to 'the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees'" (the so-called Pickering balance)?

(2) Is the University's position professionally and ethically proper, or should public employers -- and especially universities, even when it comes to administrative employees -- have more tolerance for public debate on such issues?

(3) If the University's action is proper, then it suggests that pretty much any public speech that suggests that homosexuality is immoral could lead to a public employee's being fired, at least if the employee does something related to human resources (which would presumably include employees who are simply middle managers, and not just vice presidents of human resources). After all, it's pretty clear that Dixon wasn't fired for some especially rude way of putting her views, and that she couldn't have avoided the firing by just using different words -- it was the public expression of the views that was the cause of the firing.

Given this, how should people who share Ms. Dixon's religious views, and who are trying to figure out how militantly to fight against pro-gay-rights causes, react? Of course, you might think the answer is "change your views, and accept homosexuality as perfectly proper." But let's assume that those who oppose homosexuality continue to disagree with you on that. What should a reasonable person in their shoes do, faced with the prospect that expressing their views -- and quite likely expressing any opposition to pro-gay-rights policies, when the opposition rests on a claim that homosexuality doesn't merit legal protection of various sorts -- is becoming a firing offense as to a large range of jobs?

It does seem pretty clear that at least some of the progress of gay rights -- not all, but some -- is coming at he expense of the freedom (whether or not constitutionally protected freedom) of people who hold anti-gay religious views. Doubtless many who support gay rights understandably think this a fair tradeoff, especially when the rights are the rights of public employees, which have long been constrained (and in my view quite reasonably constrained) in certain ways. But what should be the reaction of those who oppose homosexuality on religious grounds, and care a good deal about their and their coreligionists' ability to express their views and act in accordance with those views in their private lives?

Thanks to Religion Clause for the pointer.


Inauguration Housing Swap:

We have a very nice two-bedroom, furnished, in-law suite with all the amenities, and no in-laws or other guests in January. We live a ten minute walk from the Pentagon City metro, which is 2 metro stops from D.C., within walking distance of three malls and many restaurants.

We're willing to consider offers of a housing swap: our suite for the inauguration in exchange for, say, your Tel Aviv area apartment for a month this Summer, or your beach house in Virginia Beach for a couple of weeks. Make an offer to me at deliotb at aol dot com.

Los Angeles Times, USA Today Run Editorials Opposing Lori Drew Verdict: Today both the Los Angeles Times and the USA Today are running editorials against the government's prosecution of Lori Drew under the Computer Fraud and Abuse Act. The Los Angeles Times editorial is titled "Government as CyberBully," and it argues that Judge Wu should grant our motion to dismiss:
  [T]he prosecutors' interpretation of Section 1030 would "criminalize the everyday conduct of millions of Internet users." The government should be particularly wary when the allegedly criminal activity is speech, even when that speech leads to something as tragic as Megan's death. Websites can and should do a better job of responding to cyber-bullying and other abuses of their terms of service, rather than relying on the federal government to do it for them. Wu reserved judgment when Drew's lawyer asked him to acquit Drew of the charges before the jury began its deliberations. He should grant that motion now.
The USA Today's editorial is titled "MySpace case bends the law":
  Drew wasn't convicted of driving someone to suicide or showing criminally poor judgment, but of violating the Computer Fraud and Abuse Act, which makes unauthorized use of a computer a crime.
  The law was written in the 1980s to deter computer hackers and has been revamped several times, but this was the first time it was used to punish cyberbullying. To find a way to charge Drew, prosecutors might have stretched the law too far and made potential criminals out of millions of Americans.
  Any Internet surfer is familiar with the ritual it takes to join many websites, including social networking ones such as MySpace, which is where the bullying occurred. You're presented with legalese known as the "terms of service" and asked to accept them. Most people never bother to read them, but by clicking "Yes" or "I accept," you've crossed a legal threshold. If you violate those terms — even if you have no clue what they are — you're not just breaking the website's rules, you also might be committing a criminal act. Drew was convicted of violating MySpace's terms of service.
  This could create millions of "criminals," because Internet users commonly violate terms of service for valid reasons. For example, people worried about identity theft or online predators often join websites under fake names, a practice explicitly prohibited by some websites, including MySpace.
  It's absurd to think that prosecutors busy with real crimes will comb the country looking for people who violate website policies, but it's a little less outlandish to imagine that a politically motivated prosecutor could take advantage of an overly broad law.
  . . . . [S]ince the Missouri tragedy shows how dangerous cyberbullying can be, it makes sense to update harassment laws to attack it directly. That could provide a way to hold the next Lori Drew liable — without making potential criminals of innocent people in the process.
  (Incidentally, click here for a prescient law review article that foresaw the governemnt's theory in the Drew case five years ago and explained the problems with such a theory.)

  In an effort to achieve balance, the USA Today has also run an essay in favor of the Lori Drew prosecution by Nick Akerman, an attorney at Dorsey & Whitney who appears from his firm bio to have built a civil practice relying on broad constructions of the Computer Fraud and Abuse Act. (Akerman is the co-chair of the Computer Fraud and Abuse Practice at the firm.) As far as I know, Akerman is the only self-described "expert" on the Computer Fraud and Abuse Act who actually supports the government's theory in the Drew prosecution. Akerman tries to make the case for the prosecution here.

  As an advocate in the Drew case, I'm certainly pleased by these editorials. It's not every day that two of the most important newspapers in the country take your client's side in litigation. And as a scholar of computer crime law, I'm also pretty amazed: I can't say I ever expected the LAT and the USA Today to run editorials on the proper construction of 18 U.S.C. 1030 -- and to get it right!

Crime Victims Right Petition in the Eleventh Circuit

Yesterday Ifiled a mandamus petition in the Eleventh Circuit, asking that borrowers who were overcharged on loans be recognized as "crime victims" under the federal Crime Victims' Rights Act. The petition seeks restitution and other rights in the criminal justice process. The petition challenges a ruling by U.S. District Judge Elizabeth A. Kovachevich of the Middle District of Florida on November 21, 2008, that borrowers on loans from Coast Bank were not “crime victims” of Phillip Coon’s criminal conspiracy because they were not specifically listed in the criminal charges against him. The petition contends that, because the borrowers suffered financial losses from the fraud, they are “victims” entitled to the protections of the federal Crime Victim’s Rights Act. The petition could produce the first appellate court decision deciding who is a “victim” under the law. The petition has important implications for the protection of victims’ rights in the prosecution of federal financial crimes.

The borrowers’ petition arises out of a plan by Coon to “skim points” off of residential mortgage loans in Florida from 2004–07. On November 5, 2008, Coon pled guilty to the scheme in U.S. District Court in Tampa. A group of 112 borrowers of these loans then filed a motion with Judge Kovachevich to be recognized as “victims” of his crime of conspiracy because they had to pay extra on their mortgages because of the crime. Judge Kovachevich denied the motion because the government’s charges only specifically listed Coast Bank, Coon’s employer, as the victim of the crime.

In the petition filed yesterday, I explain that the borrowers suffered financial harms because they became legally obligated to pay the point that Coon skimmed off the loan and had to pay interest on the point. The petition cites documents showing that Coon received more than $1.1 million from his crime, which he used to buy overseas vacations, fine wine, expensive jewelry, a $20,000 piano, and other luxury items. The petition states that “while Coon was enjoying the high life on his ill-gotten gains, the borrowers were all paying interest on the money financing it.” The petition seeks restitution for the borrowers.

This could be a nationally significant case that will set the precedent for whether people who harmed by financial crimes have rights in the process. In my view, the borrowers here lost real money as a result of Coon’s crime – they should have their rights as crime victims respected.

The borrowers’ other attorney, Alan Tannenbaum of the Sarasota, Florida, law firm of Levin Tannenbaum, explained in a statement released yesterday that “These borrowers lost tremendous amounts of money because of Coon’s scheme. They deserve restitution for the high-life Coon was enjoying.” Also quoted in the statement was Shane Smith, an attorney for the borrowers with Levin Tannenbaum, who noted that the borrowers rights stem from the Crime Victim’s Rights Act, a law passed by Congress in 2004 to protect crime victims in federal cases.

The National Crime Victims Law Institute, based at the Lewis and Clark Law School in Portland, Oregon, has taken an interest in the case. NCVLI is expected to file shortly a “friend of the court” brief in support of the victims. The brief will argue that crime victims should be able to receive the same access to the appellate court as criminal defendants and other litigants. NCVLI Executive Director Meg Garvin, Esq stated: “NCVLI hope to establish in this case the same rights for crime victims in the appellate process that all other Americans receive in appellate courts.” 
 The petition asks for a decision from the Eleventh Circuit by December 16, 2008. A copy of the petition can be found here.


American Law and Economics Association Annual Meeting

The American Law and Economics Association is holding its annual meeting May 15-16 at the University of San Diego. The deadline for submission is January 9th, but it is hoped that most people will submit papers by mid-December.

The annual meeting is a lot of fun. In past years (and this year as well, I assume), panels last about ninety minutes, and three people present papers and take questions from the audience. Panels cover the standard fields—contracts, torts, intellectual property, and so forth. One doesn’t have much time for questions but participation at the conference is a good way to get exposure for one’s work and to learn about the work of others.

To present, you must submit your paper, which is screened by an area organizer. You don’t have the option to put together your own panel, as you can at other conferences. Although for some panels relatively few papers will be accepted because of the large number of submissions, this is not the case for panels in all fields, and my impression is that area organizers try to make sure that younger scholars have a chance to present their work. In recent years, organizers have increased the number of panels, so that more people can present their work (albeit to smaller audiences). Even if you don’t want to present a paper, participation in the conference is a good way to meet and get to know other scholars in your field. Students and fellows who are interested in an academic career in law and economics should attend if they can.

To submit a paper, or to obtain additional information about the ALEA, go to the ALEA website.

A Little Short on Specifics, No?

The New York Times editorializes in favor of "sound gun-control laws." Which ones? "Reasonable gun-control laws," which can now be enacted following the "gun lobby"'s defeat in November. (No word on the success of the "gay lobby," "abortion lobby," "women's lobby," and so on.)

I'm all for sound and reasonable gun-control laws. Who wouldn't be? By definition, they are sound and reasonable, not the unsound and unreasonable kind that I oppose. (I should note that nearly everyone supports some gun control laws that they see as sound and reasonable, if only, say, bans on violent felons' possessing guns, or if you really insist on minimalism, bans on violent felons' possessing guns in prison.) Now if only the Times tells us exactly what those laws are -- all I see in the editorial is a quote from President-Elect Obama about "keeping AK-47s out of the hands of criminals," and nothing beyond that -- then we might have a conversation. I'd prefer a conversation on the substance, but even a conversation on the political question on which the Times is focusing would require some specifics. It's hard to gauge voters' likely reactions to proposals that aren't identified.

Oh, and here's the closing paragraph:

We hope the trend [of the NRA's supposed political failures] continues. To fight crime and keep Americans safe, this country needs sound gun-control laws. To pass those laws as president, Mr. Obama will need strong Congressional support.

Thanks very much for the enlightening observations!


The Story of the Schechter Poultry Case:

Economist Steven Horwitz has a fascinating post on the history behind the Schechter Poultry case, the 1935 Supreme Court decision that struck down the National Industrial Recovery Act - the most extensive attempt at economic central planning in American history. As I explained in this post, the NIRA established production codes, price controls, and wage controls for nearly the entire nonagricultural economy, in effect establishing a government-enforced cartel for every industry. The NIRA and related New Deal statutes greatly increased unemployment and may have prolonged the Depression by up to seven years. Unlike most of the other controversial Depression-era Supreme Court decisions, which split the justices along ideological lines, Schechter was unanimous. Even liberal justices like Louis Brandeis recognized that Congress had exceeded its authority under Article I of the Constitution and voted to strike NIRA down.

This much I already knew from the research I did for my article on constitutional change in the 1930s. What I did not realize until I read Horwitz's piece is that the Schechter brothers ran afoul of NIRA in large part because their butcher shops followed the Jewish laws of Kashrut. Some of the food preparation practices required by Jewish law violated NIRA regulations; ironically, Horwitz notes, the deviations from Kashrut imposed by the government reduced the quality of the Schechters' product and imposed additional health risks on their customers. As Horwitz also points out, the prosecution of the Schechters and the press coverage thereof had a significant anti-Semitic component. Anti-Semitism was, of course, common in pre-World War II America and was probably exacerbated by the Depression, when many blamed the economic crisis on the supposed machinations of Jewish industrialists and financiers. Horwitz writes that "[c]overage of the case . . . was highly tinged with the standard anti-Semitism of the time, especially because the Schechters were right out of Jewish central casting, being immigrants with their Eastern European cadences and traditional Jewish dress. It was the Jewish rubes of Brooklyn against the high powered WASP lawyers of the northeast corridor." Fortunately, it was the rubes who prevailed in the Supreme Court.

In addition to exemplifying the dangers of expanding government power in times of economic crisis, Schechter also illustrates how economic liberties and limits on government power protect unpopular minority groups.

UPDATE: Historian Eric Rauchway criticizes Horwitz's post here. Horwitz has a compelling response. If anything, the Rauchway post makes the NIRA poultry regulations seem even more repellent, by noting that the people who wrote them were union bosses who had previously used violence to try to drive the Schechters and other competitors out of business. This post relied on by Rauchway for most of his argument is also wrong to suggest that the Court's decision in Schechter was driven by anti-union animus. The opinion was written by moderate Republican Chief Justice Charles Evans Hughes, who had supported pro-union legislation during his term as Governor of New York in the early 1900s. It was also joined by pro-union liberal justices such as Brandeis.

UPDATE #2: Historian, Andrew Cohen, author of the post relied on by Rauchway for much of his evidence writes to point out that he did not mean to suggest that the Schechter decision was based on generalized hostility to unions, but on the justices' distaste for the violent tactics of the particular unionists who wrote the poultry regulations. Fair enough. Even this narrower claim is suspect, however, since the justices surely realized that their decision would have the effect of invalidating the NIRA as a whole, not just in cases where the regulations were written by especially violent unionists. Thus, it is unlikely that their decision was based primarily on the characteristics of these specific unions.


Tuesday, December 2, 2008

Chambliss Wins in Geogia, Holding on to Contested GOP Senate Spot: Looks like the Democrats won't get to 60 in the Senate. Here's the news from Georgia's runoff election:
  With 96 percent of the state’s precincts reporting in the runoff election, [incumbent Republican Saxby] Chambliss had 57.5 percent of the vote, and his Democratic challenger, Jim Martin, 42.5 percent. The margin was far greater than the three percentage points that separated the two men in the Nov. 4 election, when neither won the required 50 percent. Many of the Democrats who turned out last month in enthusiastic support of Barack Obama apparently did not show up at the polls on Tuesday. . . .
  A little more than two million people voted in the runoff, compared with 3.7 million on Nov. 4.

Speech Before the Penn Libertarians:

Readers in the Philadelphia area may be interested to know that I will be giving a speech tomorrow for the University of Pennsylvania Libertarians at 8:30 PM in Houston Hall, Rm. 314, at the University of Pennsylvania, 3417 Spruce Street. I will be speaking on the topic of "Political Strategy for Libertarians," discussing ways that we can work to promote libertarian ideas and limit the power of government in the current difficult political environment. I intend to focus on both the political process and nonelectoral strategies (e.g. - public interest litigation). I will also reiterate the reasons why I think that the Libertarian Party is a poor vehicle for promoting libertarianism.

This will be my first-ever speech to a predominantly undergraduate audience. It should be an interesting event.

Related Posts (on one page):

  1. Speech Before the Penn Libertarians:
  2. Lessons of the Libertarian Party's Most Recent Failure:

Damage Caps and Medical Malpractice Litigation

Thanks Eugene, for inviting me to join the conspiracy – and thanks to those who welcomed me in advance of my actually doing anything to deserve such treatment. To be sure, as a former employee of the Federal Trade Commission, the whole conspiracy thing is a bit disconcerting. Thankfully, this particular conspiracy is to promote (rather than restrain) trade – this time, of ideas.

Yesterday’s Wall Street Journal had an op-ed on the virtues of caps on non-economic damages in medical malpractice cases. Non-econ caps are ground zero in the debate over medical malpractice reform.

To proponents, non-econ caps are a silver bullet, simultaneously targeting frivolous lawsuits, excessive damage awards, run-away juries, and high medical malpractice premiums. To critics, non-econ caps are both ineffective (since they will not lower malpractice premiums or the cost of health insurance coverage) and unfair (since they reduce damage awards to the most severely injured, and disproportionately affect women, children, and the elderly).

I’ve spent the past few years doing a series of empirical papers on medical malpractice, with several co-authors from the University of Texas (Charlie Silver, Bernie Black, and Bill Sage), and Georgetown (Kathy Zeiler), including a forthcoming paper in the Journal of Legal Analysis estimating the impact of such caps. So, I thought I’d join the Conspiracy by highlighting some of our findings, in this and other works, which call into question/complicate some of the claims in the WSJ editorial.

Today, I'll provide general background on damages caps. Tomorrow, I'll address the impact of damages caps on verdicts and payouts in tried cases, and payouts in settled cases. After that, I'll address the issue of damages caps and access to medical services. Finally, I'll turn to the larger social policy issues raised by damages caps.

Let me start with some general background. In malpractice cases, one can recover two types of compensatory damages: economic, and non-economic. Economic damages are things like lost wages and medical expenses. Non-economic damages are less concrete, and include things like pain and suffering, loss of enjoyment of life, loss of consortium, and the like.

Non-economic damages have been a frequent target of tort reformers, beginning with the successful campaign to adopt a cap on such damages as part of the Medical Injury Compensation Reform Act (“MICRA”) enacted by California in 1975. Over the intervening years, campaigns have been fought to enact damages caps in numerous states. The campaign to enact such caps is usually triggered by a malpractice "crisis,” marked by sudden and dramatic increase in malpractice premiums.

Several states have enacted non-econ caps only to see them struck down by the state Supreme Court. This is what happened in Illinois twice in the past several decades, and we are waiting to see whether it will happen again — although I wouldn't bet on it this time around.

Although it is common to speak of non-econ caps as a unitary entity, they actually come in numerous varieties, reflecting the design choices of each individual state legislature. Consider a couple of the moving parts:

  • What should the dollar level of the cap be set at?

  • Should the dollar level of the cap be indexed for inflation?

  • Should the cap vary by the number and type of defendants? For example, should doctors have a lower cap than hospitals? What about a case in which there are both types of defendants? Should separate caps apply to each?

  • Should the cap cover non-economic damages, total damages, or both?

  • Should there be a separate cap on punitive damages (which are rare in malpractice cases against doctors and hospitals, but less so in cases against nursing homes)?

  • Should the cap only cover medical malpractice, or should it apply more broadly?

  • Should cases in which the plaintiff is deceased have a different cap level than those in which the plaintiff is not?

At present, 31 states have caps on non-economic damages or total damages or both. (I exclude caps on punitive damages to keep things simpler). The Table below provides a brief summary of the cap that is in effect in each state, sorted by cap type and level.

Thus, there are 24 different variations among the 31 states that have adopted a damages cap. The most popular cap is the flat $250,000 cap chosen by California, and since copied by four other states. Those looking for a deep principle of justice explaining the logic of this cap level should prepare themselves for disappointment: as this first-rate student note carefully documents, the level of the California cap was quite arbitrary. As part of her research, the author emailed the principal legislative sponsor, and asked him why they settled on $250,000, and received the following response:

The theory was that you could never really and adequately compensate for pain and suffering, no matter how much money you provided. Money just doesn’t do it. But $250,000 (in addition to meeting the medical and other needs of the patient), properly invested to the extent that it elevated the quality of life over and above the post-injury status, was thought to be enough to do that job.

That’s enough for my first-ever blog posting. Tomorrow, I'll address how damages caps affect payouts, including their interaction with plaintiff demographics.


Foreperson in Drew Jury "Always" Reads Terms of Service, Feels Jail May Be Appropriate for "Lazy" People Who Don't: As I noted below, the forewoman in the Lori Drew case has been speaking to the press. Here's what she told Kim Zetter of Wired:
  "Trust me, I was so for this woman going away for 20 years," Valentina Kunasz told Threat Level. "However, on the harsher felony charge, it was very hard to find her guilty on the specific [evidence] given to us."
  Kunasz said despite all the debate outside the courtroom about the prosecution's use of an anti-hacking statute to charge Drew for violating a website's terms of service, jurors never considered whether the statute was appropriate. However, she said she agrees with the idea that users who violate a website's terms of service should be prosecuted.
  "The thing that really bothered me was that [Drew's] attorney kept claiming that nobody reads the terms of service," she said. "I always read the terms of service.... If you choose to be lazy and not go though that entire agreement or contract of agreement, then absolutely you should be held liable."
  Should they be punished with a federal prison sentence?
  "I guess that's an option for debate," Kunasz said. "When it's gross circumstances of someone killing themselves.... "
  I'll withhold comment under the circumstances, except to note that this post by Zetter on the chances that the verdict will survive appellate review is also worth reading.

Charles Gibson Interviews President Bush: The transcript is here. The most interesting part -- and also the part that has drawn the most press attention -- is the discussion of the role of intelligence failures in the invasion of Iraq:
GIBSON: You've always said there's no do-overs as President. If you had one?
BUSH: I don't know -- the biggest regret of all the presidency has to have been the intelligence failure in Iraq. A lot of people put their reputations on the line and said the weapons of mass destruction is a reason to remove Saddam Hussein. It wasn't just people in my administration; a lot of members in Congress, prior to my arrival in Washington D.C., during the debate on Iraq, a lot of leaders of nations around the world were all looking at the same intelligence. And, you know, that's not a do-over, but I wish the intelligence had been different, I guess.
GIBSON: If the intelligence had been right, would there have been an Iraq war?
BUSH: Yes, because Saddam Hussein was unwilling to let the inspectors go in to determine whether or not the U.N. resolutions were being upheld. In other words, if he had had weapons of mass destruction, would there have been a war? Absolutely.
GIBSON: No, if you had known he didn't.
BUSH: Oh, I see what you're saying. You know, that's an interesting question. That is a do-over that I can't do. It's hard for me to speculate.

Will Bush pardon officials involved in controversial war-on-terror tactics?

Such a pardon would be a generous Christmas gift to the Obama administration, which appears to want to avoid prosecutions. It would greatly disappoint a lot of Obama supporters, but these people could not blame Obama for pardons issued by Bush. At the same time, Bush would protect loyal administration officials. So a pardon would seem to be win-win, at least for the people who have power—who are about to have power or about to have had it.

Why does the Obama administration (appear to) want to avoid prosecutions? A number of possibilities, none of them very clear:

1. The legal cases are not strong, either as a matter of formal law or taking into account the likely response of a jury. Courts would need to convict low-level agents who argue that they received assurances that their actions were lawful and high-level officials who argue that their legal interpretations were made in good faith. Convictions in neither case are impossible but are likely to be difficult. Another difficult problem will arise over how confidential information, with possible national security implications, may be handled. And will a jury convict officials who violated the law because they believed that national security so required? Still, police who violate the law are often prosecuted; why not administration officials? At a minimum, one might argue, criminal investigations are necessary to get the facts straight.

2. The incentives for future lawyers and agents will be bad. Jack Goldsmith and others have argued that agents have become highly risk-averse, refusing to take actions that promote security because of the fear that the actions, even if lawful, will give rise to legal risk. The costs to suspects of investigation and trial are just too high, whereas the benefits of aggressive security-promoting actions are likely to be incremental, and tending to the good of society rather than the good of the agent. On this view, however, the real culprit is Congress, which insists on regulating national security agents rather than giving the president a free hand. Elsewhere Goldsmith has argued that the Bush administration should simply have asked Congress for authorization rather than broken the law, if that is what it did. On this view, Obama should prosecute Bush administration officials and just ask Congress to change the laws so that next time round, the president and his agents won’t be constrained.

3. A trial would put the match to the powder keg of the culture wars and explode Obama’s stated aspiration to lead in a bipartisan, middle-of-the-road way. The likely defendants are linked to powerful Republicans in Congress, in the courts, in the press, and elsewhere, and will appear as sympathetic figures to millions of Americans (remember Oliver North?). The Obama administration would risk appearing weak on national security as well as vindictive, and these are risks that are unlikely to be outweighed by realistic political gain. If trials result in acquittals (see #1) or minimal penalties, the prosecutions will themselves look like bad-faith, politically motivated efforts to humiliate political opponents over policy disagreements—indeed, this argument will be advanced by defense lawyers and likely find a home in the minds of some jurors. And if Obama subsequently seeks a freer hand from Congress in order to address some new security crisis (see #2), the effect will be multiplied tenfold. Trials that pit the government against its political opponents usually end badly for the government, if not with legal defeats then with pyrrhic victories that are political defeats. Meanwhile, Obama might worry that convictions would strengthen the hand of Congress in national security matters and weaken traditional executive-branch claims to priority in this area (#2, again). Does he really want such an outcome?

So Obama supporters should probably root for Bush to issue pardons. Bush might be just ornery enough to refuse.

Related Posts (on one page):

  1. AG Mukasey Says No Pardons Necessary:
  2. Will Bush pardon officials involved in controversial war-on-terror tactics?

The Lori Drew Jury: The St. Louis Post Dispatch has a story drawn from an interview with the forewoman of the jury in the Lori Drew case. An excerpt:
  The forewoman of the jury that convicted Lori Drew of misdemeanors for cyber bullying said Monday that a majority of the panel favored a felony conspiracy verdict that could have sent her to prison.
  Most jurors believed a felony conviction would send a message that Internet sites should be better regulated for fraud, the forewoman, Valentina Kunasz, said in a telephone interview.
  But four jurors would not be convinced, Kunasz said, blocking a felony verdict.
  "I would have liked to see this lady go to jail to change the way Internet sites are run," said Kunasz, 25, a former hairdresser who lives in Los Angeles County.
  . . .
  Kunasz described herself as among eight jurors who believed that Drew acted maliciously.
  "I didn't think she intended to have this girl kill herself," Kunasz said. "But she knew she was suicidal, depressed and taking medicines, and still continued to pursue this act."
  It didn't matter much whether Drew typed the messages to Megan, or whether it was Sarah or Grills, Kunasz said. Drew didn't stop it, and that was malicious.
  "What is a 47-year-old woman doing egging on her child and employee to do this?" the juror asked.
  Four holdouts on the 12-member jury believed that Drew set up the MySpace page to learn what Megan was saying about Drew's daughter, not to harm her, Kunasz said.
  "I wish that those four other jurors would have had a different opinion," she said. "But they thought what they thought, and they were entitled to that."
  None of the other jurors could be reached for comment. . . .
  Kunasz said the jurors rejected three felony charges — unauthorized access of a computer with the intent of using interstate communication to inflict emotional distress — because they did not find the messages on specific dates tied to the charges to be particularly malicious.
  Instead, they found Drew guilty of misdemeanor versions that required prosecutors to prove only that the computer access was unauthorized.
  Kunasz said the jury could not consider the final message from "Josh" to Megan — "The world would be a better place without you" — because it was sent via an instant message program outside MySpace and wasn't "interstate" communication. "It would have been helpful if it could have been considered," Kunasz said.
Thanks to How Appealing for the link.

Hedgpeth v. Pulido: Today the Supreme Court handed down a decision in Hedgpeth v. Pulido on the standard for reviewing errors in jury instructions: Should such errors be subject to harmless error review — that is, an assessment of how serious the error was before the conviction is overturned — or are such errors "structural errors" that automatically lead to the overturning of the conviction?

  In Lara v. Ryan, 455 F.3d 1080 (9th Cir. 2006), the Ninth Circuit had taken the view that such errors were structural. In the case below, Pulido v. Chrones, the Ninth Circuit applied Lara and stated that the error was structural and therefore the conviction had to be overturned. Judge O'Scannlain of the Ninth Circuit wrote a "special concurrence" in that case that argued Ninth Circuit caselaw had gone awry and needed correction:
I agree with the majority that our recent decision in Lara v. Ryan, 455 F.3d 1080 (9th Cir.2006), compels us to affirm the district court's grant of habeas relief. I write separately, however, because I believe this circuit's instructional error jurisprudence cries out for review, preferably by our court sitting en banc, or if not, by the Supreme Court. . . . I believe that Lara should be overruled to correct our erroneous instructional error jurisprudence-if not by our court sitting en banc then, in due course, by the Supreme Court. Until that happens, I have no alternative but to concur in the opinion of the court.
  The Supreme Court granted cert, and the defendant conceded that the Ninth Circuit had applied the wrong standard: It should have been harmless error, not a structural error test. The defendant argued that the Supreme Court should affirm the Ninth Circuit anyway, because it had basically applied the harmless error standard in substance even if it had applied the wrong standard in form.

  Today the Supreme Court vacated the judgment of the Ninth Circuit by a vote of 6-3 in a short per curiam opinion, and remanded so the Ninth Circuit could apply the proper standard. It didn't look like the Ninth Circuit had applied the proper standard, so the Court called for a do-over.

  Justice Stevens dissented, joined by Justice Ginsburg and Souter, on the ground that while the Ninth Circuit had formally erred, the decision basically applied the right standard and in any event wasn't worth the Supreme Court's time:
[T]he court’s misnomer was inconsequential . . . . The Court of Appeals’ decision therefore did not warrant this Court’s review and does not now merit a remand to require that court to repeat its analysis. In my opinion, the interest in expediting the conclusion of this protracted litigation outweighs the interest in correcting a misnomer.
. . .
Because the District Court’s analysis was correct and the Court of Appeals’ result was substantially the same, I think this Court’s decision to remand for the purpose of obtaining a third analysis of the harmless-error issue is a misuse of scarce judicial resources. I would therefore affirm the judgment of the Court of Appeals.
  I haven't followed this case until today, and I just did a quick skim of the materials this morning. But based on my quick read of the Ninth Circuit opinion below, it seems pretty clear that the Ninth Circuit applied a structural error test. Indeed, the premise of the two concurrences in the case are that the panel was obligated by Lara to follow a structural error test. Stevens's dissent alludes to a fair point that the case was a questionable case to grant: If the outcome of the case was likely the same under either standard, why take the case and add delay before the petitioner's habeas petition is granted? Why not wait for another case? At the same time, I found the majority's reasoning persuasive that this was something for the Ninth Circuit to correct: Having agreed to take the case, the Court was right to vacate the judgment and remand. With that said, I would hope the Ninth Circuit will act on the remanded case quickly, to minimize the delay in Pulido's case.

The Secular Right Blog:

Some of our readers might be interested in checking out the recently established Secular Right blog, which seeks to demonstrate that atheism and secularism are compatible with being on the political right. Among the contributors are Heather Mac Donald of the Manhattan Institute (who wrote a much-debated article on atheism and conservatism in 2006), John Derbyshire, Walter Olson, and Razib Khan.

Although one of the four contributors (Olson) is more libertarian than conservative, the main focus of the blog seems to be on the latter. After all, few doubt that one can be both an atheist and a libertarian. Many of the most influential libertarian thinkers of modern times were atheists or agnostics (e.g. - Milton Friedman, F.A. Hayek, and Ayn Rand). Although there are also some highly religious libertarian intellectuals, including some of my co-bloggers here at the VC, few if any libertarian theists doubt that an atheist can be just as much a libertarian as they are.

With conservatism, the issue is much more contestable. On balance, I think it logically possible for a person to hold conservative views on political issues for reasons that have no connection to religion. However, many conservatives do seem to believe that there is a close connection between their political views and their religious ones; some also hold that one can't be a "real" conservative without also being religious. Prominent conservative writer Richard John Neuhaus wrote a well-known 1991 article in First Things, "Can Atheists be Good Citizens?" arguing that atheists not only can't be conservative, but cannot even be "good citizens" at all (unfortunately, I haven't been able to find this famous article online, perhaps because it dates to the pre-internet era). Of course close connections between religion and political ideology can be found elsewhere on the political spectrum as well, as witness the example of Marxist "liberation theology." In the modern US, however, conservatives are more likely to emphasize such connections than either libertarians or liberals.

Ultimately, whether conservatism is compatible with atheism depends to some degree on one's definition of "conservative." If to be conservative means to hold right-wing positions on various political issues, then atheists can be just as conservative as anyone else. If, on the other hand, conservatism is defined in part by having a religious foundation for one's political views (as Neuhaus, among others, contends), then they can't.

UPDATE: As commenters point out, Neuhaus' article arguing that atheists can't be good citizens is available here.


Monday, December 1, 2008

Atheist Sign Included in Holiday Display on Public Property:

An atheist sign proclaiming that "Religion is but myth and superstition" has been included in a holiday display on public property in Olympia, Washington. The display at the Washington state capitol building also includes symbols put up by religious groups.

I'm not convinced that this sign is a good way to promote atheism. Passers-by who are not atheists themselves are likely to find it more offensive than persuasive. As a legal matter, however, I think that atheist groups should have the same rights to put up displays on public property as religious groups do. I don't object if theists are allowed to put up creches, menorahs, and so forth on public property so long as agnostics, atheists, and others are accorded similar privileges.


Welcoming Prof. David Hyman:

I'm delighted to report that Prof. David Hyman of the University of Illinois law school will be joining us as a co-blogger. David directs the Epstein Program in Health Law and Policy, and focuses his research and writing on the regulation and financing of health care. He teaches or has taught health care regulation, civil procedure, insurance law, law and economics, professional responsibility, and tax policy.

While serving as Special Counsel to the Federal Trade Commission, David was principal author and project leader for the Improving Health Care: A Dose of Competition report (2004). He also wrote Medicare Meets Mephistopheles, a satiric examination of the Medicare program, which was selected by the U.S. Chamber of Commerce/National Chamber Foundation as one of the top ten books of 2007.

David is a member of the American Law Institute, an adjunct scholar at the Cato Institute, and an M.D. as well as a lawyer. Welcome, David, to our merry band!


How Private Property Rights Saved the Pilgrims from Starvation - An Underappreciated Thanksgiving Lesson:

Thanksgiving may be over. But it's not too late to learn one of the less-appreciated lessons of the First Thanksgiving back in 1621. As economist Benjamin Powell explains, the Pilgrims were saved from starvation because they replaced collectivism with private property rights:

Many people believe that after suffering through a severe winter, the Pilgrims’ food shortages were resolved the following spring when the Native Americans taught them to plant corn and a Thanksgiving celebration resulted. In fact, the pilgrims continued to face chronic food shortages for three years until the harvest of 1623. Bad weather or lack of farming knowledge did not cause the pilgrims’ shortages. Bad economic incentives did.

In 1620 Plymouth Plantation was founded with a system of communal property rights. Food and supplies were held in common and then distributed based on equality and need as determined by Plantation officials. People received the same rations whether or not they contributed to producing the food, and residents were forbidden from producing their own food. Governor William Bradford, in his 1647 history, Of Plymouth Plantation, wrote that this system was found to breed much confusion and discontent and retard much employment that would have been to their benefit and comfort. The problem was that young men, that were most able and fit for labour, did repine that they should spend their time and strength to work for other men’s wives and children without any recompense. Because of the poor incentives, little food was produced.

Faced with potential starvation in the spring of 1623, the colony decided to implement a new economic system. Every family was assigned a private parcel of land. They could then keep all they grew for themselves, but now they alone were responsible for feeding themselves. While not a complete private property system, the move away from communal ownership had dramatic results.

This change, Bradford wrote, had very good success, for it made all hands very industrious, so as much more corn was planted than otherwise would have been. Giving people economic incentives changed their behavior. Once the new system of property rights was in place, the women now went willingly into the field, and took their little ones with them to set corn; which before would allege weakness and inability.

Once the Pilgrims in the Plymouth Plantation abandoned their communal economic system and adopted one with greater individual property rights, they never again faced the starvation and food shortages of the first three years. It was only after allowing greater property rights that they could feast without worrying that famine was just around the corner.

UPDATE: It's worth noting that, contrary to some modern mythology, Native American tribes that relied on agriculture also usually used private property rights to stimulate production. Claims that native peoples were opposed to private property rights or had no conception of such a thing until the Europeans came, are for the most part PC myths.

UPDATE #2: For a more detailed account of the role of property rights in saving the Pilgrims, see this 1999 article by Tom Bethell.


NBER Announces that Jan. 2008 was the First Declining Month in the Recession.

The NBER (National Bureau of Economic Research) has declared an official recession that started with January 2008's decline.

Some of the press has been incorrectly reporting that, according to the NBER, the recession is now over a year old.

This is a misunderstanding of how the NBER reports, in part fueled by the NBER’s own ambiguous language. The NBER just announced that December 2007 was the peak month, an economic expansion month, while January 2008 was the first declining month of the current recession. They in effect concluded that the economy in December 2007 was not in recession, but was expanding.


On January 4, 2008, I analyzed employment data and wrote that “we are probably already in a general recession (or will be in one by August at the latest),” and that “I would put the chances of a recession in 2008 at perhaps 75-90%.”

I was more cautious in my wording than I felt because my view was at odds with 98% of top money managers at the time:

If the past is any guide to the future--and anyone doing backtesting knows that it often isn’t--then we are probably already in a general recession (or will be in one by August at the latest).

This conclusion is consistent with some work I did last summer showing that since World War II, substantial housing declines always preceded or coincided with recessions: Since World War II, there have been three sharp housing price declines (in real dollars):

the 1947-48 housing price drop, preceding the Nov. 1948 – Oct. 1949 recession,

the 1979-82 housing price drop, preceding the July 1981 – Nov. 1982 recession (and also coincident with the Jan.-July 1980 recession), and

the 1989-91 drop, associated with the July 1990 - March 1991 recession.


1. A recent survey of top money managers, CNBC’s Trillion Dollar Survey, found that 98% of the 60 experts surveyed put the chances of a recession in 2008 at 50-50 or less. As someone with far less expertise than they, I would put the chances of a recession in 2008 at perhaps 75-90%. While (social) science does not work by consensus, a wise person should probably give more weight to the opinions of 59 of the 60 experts than to my opinion (shared by only one of the 60 experts surveyed by CNBC.

Here is part of this week's NBER news release announcing the recession:

The Business Cycle Dating Committee of the National Bureau of Economic Research met by conference call on Friday, November 28. The committee maintains a chronology of the beginning and ending dates (months and quarters) of U.S. recessions. The committee determined that a peak in economic activity occurred in the U.S. economy in December 2007. The peak marks the end of the expansion that began in November 2001 and the beginning of a recession. The expansion lasted 73 months; the previous expansion of the 1990s lasted 120 months.

A recession is a significant decline in economic activity spread across the economy, lasting more than a few months, normally visible in production, employment, real income, and other indicators. A recession begins when the economy reaches a peak of activity and ends when the economy reaches its trough. Between trough and peak, the economy is in an expansion.

Because a recession is a broad contraction of the economy, not confined to one sector, the committee emphasizes economy-wide measures of economic activity. The committee believes that domestic production and employment are the primary conceptual measures of economic activity.

The committee views the payroll employment measure, which is based on a large survey of employers, as the most reliable comprehensive estimate of employment. This series reached a peak in December 2007 and has declined every month since then.

From the somewhat ambiguous NBER language, you can see why some reporters seemed to interpret December 2007 as the first down month, rather than the last up month in a 73-month economic expansion that peaked in December 2007.


Does the "Example Effect" of Gay Marriages Made Possible by Pro-Gay Marriage Court Decisions Increase Support for Gay Marriage?

Gay rights advocates often claim that pro-gay marriage court decisions increase public support for gay marriage through the "example effect" of giving heterosexuals an opportunity to observe happily married gay couples. People who see or better still, personally know, gays who benefit from being able to marry are likely to become more sympathetic to gay marriage than they were before. Since pro-gay marriage court decisions allow gays to marry in states where they would not be able to otherwise, they presumably contribute to opinion-altering example effects.

I think there is something to the example effect argument. But there is a reason why I didn't include it in my litany of reasons why pro-gay marriage court decisions help advance the cause of gay rights: I fear that the effect may be overblown.

Lots of surveys show that personal acquiantance with gays is correlated with support for gay marriage. For example, a recent Pew survey shows that 55% of those who have gay friends or relatives support gay marriage, compared to only 25% of those who don't. This data may support the example effect thesis. However, it is not clear which way the causation runs. It could be that heterosexuals who are already more tolerant are more likely to establish friendships with gays than those who are less so. Moreover, gays are more likely to "come out" to tolerant acquiantances than homophobic ones.

Other survey data suggest that the legalization of gay marriage in Massachusetts and Connecticut has not increased public support for it. Today, 55% of Americans oppose gay marriage and 36% support it, statistically identical to the 57-35 margin that existed in early 2001 (two years before the Massachusetts decision). There is, therefore, little evidence that the example effect of gay marriage has increased support for the practice, at least so far.

The history of interracial marriage, to which the gay marriage struggle is often analogized, is also a case in point. Interracial marriage was legal in many northern states throughout the Jim Crow era. Yet there is little if any evidence suggesting that this fact diminished public opposition to interracial marriage during most of that time. Jim Crow-era black public figures who married whites, such as Frederick Douglass and Jack Johnson, were widely reviled for doing so, sometimes even by other African-Americans. Their examples had little positive influence on public opinion.

More generally, the way one reacts to the existence of gay marriages depends in large part on one's preexisting views. A person supportive of gay rights is likely to applaud the sight of married gay couples. A homophobe is likely to to consider it offensive and perhaps become even more virulent in his opposition to the practice. This is part of the more general phenomenon that people tend to interpret new political information in ways that reinforce their preexisting views.

That said, it may be that example effects will influence public opinion in a pro-gay marriage direction in the long run. There is some evidence that support for gay marriage has increased in Massachusetts since the state instituted it in 2003, even if it hasn't had the same effect nationally. I doubt, however, that the effect will be as great as many people think.


Lauren Slater's Essay [on a Loss of Sexual Interest].

Via Althouse and Reynolds, comes an odd N.Y. Times essay by Lauren Slater. What I found slightly disturbing was not the overall argument about her [lack of interest] in sex, but her two primary confessional stories:

I met and fell in love with my husband for his beautifully colored hair, his gentle ways, his humor. We were together many years, and so sex faded. Then we decided to marry.

Predictably, almost as soon as the engagement ring slid onto my finger, I fell in love with someone else. I fell madly, insanely, obsessively in love with a conservative Christian man who believed that I, as a Jew, was going to hell. We fought long and hard about that, and then had sex. This is so stupid, it pains me to write about it.

And yet this affair, I sensed, was necessary for me to move forward with my marriage. It was a test. I believed, but could not be sure, that just as sex had cooled for my soon-to-be husband and me, it would cool with this man, with any man, no matter what or whom — in which case my fiancé was the person I wanted to marry.

Except suppose I was wrong? Suppose there was someone out there with whom I could have passionate sex the rest of my life? So I continued with my conservative Christian, and we had fantastic, obsessive sex while the whole time I waited to see when (or if) this affair would run out of fuel. I prayed that it would, so I could marry the man I loved.

Actually, I never had intercourse with this man, though we did just about everything else. He did not believe in sex before marriage. Therefore, when my fiancé asked me if I was “having sex” with someone (why was I coming home at 3 a.m.?), I could answer “no.” On the Christian man’s end, when his God asked him if he was having sex with someone, he also could answer “no,” and so we both lived highly honest, righteous lives filled with perpetual sex.

But then the inevitable happened. Sex with this man turned tepid, then revolting. While the revolting part was particular to this crazy relationship, the tepid part was wholly within my experience and proved, for me, that there is no God of monogamous passion. Thus freed from the tethers of this affair, I returned to the gentle arms of my pagan husband.

I wonder if Slater's husband agreed with her that "this affair . . . was necessary for me to move forward with my marriage."

My first orgasm happened decades ago when I was 19, in a rooming house with a broody bad boy who had a muscular chest and a head roiling with glossy curls. We both loved the Grateful Dead. Every time I slept over, we woke in the mornings and listened to “Ripple,” the clearness of the music, the pure simplicity of it, affirming for me again and again that I was part of a people, a species, capable of creating great beauty.

We’d gone out all summer before the start of our respective freshman years: Not once did he ask me for intercourse, even on our last night together. The very absence of his question underscored its implicit presence. When?

I confided to my roommate that we had not yet done the deed. Hers was a pause of shock. I was afraid. I didn’t want to bleed. Sheer fear of that plunging pain is what held me back.

Instead of telling my would-be lover the truth, I made up an elaborate lie. I was raped. Too traumatized to have sex. I needed more time.

Remembering this now, for the first time in a long time, I do not judge myself. I consider it a great deal to ask of a relatively newly minted woman that she offer her intact body up for this frankly difficult deed.

I also find it interesting that shame, an emotion that’s supposedly deeply rooted in the human limbic system, untouched by time or class, is in fact very much subject to time, class and culture, too. In the 19th century, to be raped was to be shamed, forever. In the late 20th century, to be a virgin was to be shamed. And so I lied, to save my skin.

Except one time, on a May night, through the open window, warm liquid breezes poured over our naked bodies, and then he touched me just so and I tipped into the orgasm and was grasped. This was different from whatever I’d achieved on my own. This was softer, gentler, full of a wide-open love, a deep falling-down love. When it was over, I hated him. I hated that man (that boy, really). The intimacy was too much, too wrenching and shameful.

I wonder how the young man felt about spending a summer of intimacy without sex with Slater, not requesting sex in part because of her lie about having been raped, and then being actually hated at the end of the summer because Slater suddenly felt "a deep falling-down love" for him with which she was uncomfortable.


"The 2008 ABA Journal Blawg 100"

list is now up, and we're of course delighted to be included. The ABA Journal people are soliciting reader votes for the favorite blogs in each category.


Do Pro-Gay Marriage Court Decisions Harm the Cause of Gay Rights?

University of San Diego lawprof Michael Rappaport has a thoughtful response to my post arguing that pro-gay marriage court decisions advance gay rights despite the fact that they have inspired a major political backlash.

In my original post, I argued that these decisions are a net benefit to the cause of gay marriage for three reasons:

1. They have established gay marriage in two states (Massachusetts and Connecticut) where the political process was unlikely to do so in the near future.

2. The anti-gay marriage state constitutional amendments enacted in their aftermath occurred in states that would not have adopted gay marriage in the foreseeable future anyway. Moreover, most of these amendments will be easy to reverse if public opinion continues to move in a pro-gay rights direction.

3. Putting gay marriage on the political agenda has brought newfound legitimacy to civil unions, which seem more moderate by comparison, and now enjoy widespread support even among conservatives.

Michael doesn't completely reject these points. But he does note a countervailing consideration: people are likely to view a pro-gay marriage court decision as less "legitimate" than a similar legislative measure, and might therefore resist it more. He also suggests that the recent uptick in support for civil unions is the result of a long-term trend of reduction in homophobia rather than the pro-gay marriage court decisions.

On the first point, Michael may be right to some extent. However, it's important to remember that the choice gay rights advocates face is not one between enactment of gay marriage through the legislative process and enactment through court decisions, but rather between court decisions and no gay marriage at all for many years. Even if enactment through the legislature is the best option from their point of view, a pro-gay marriage court decision is still better than nothing. Moreover, I doubt that the anti-gay marriage backlash would have been significantly smaller if Massachusetts had enacted gay marriage legislatively. Lots of polling data shows that public attitudes towards controversial court decisions are mostly results-oriented rather than driven by "legitimacy" considerations (Terri Peretti's book compiles much of this evidence). For example, pro-lifers overwhelmingly oppose Roe v. Wade and pro-choicers overwhelmingly support it, with very few people, for example, taking a pro-choice position yet believing that Roe was wrongly decided.

Michael's second point undoubtedly has a lot of validity. Much current support for civil unions (and gay marriage as well) is indeed the result of long-term trends. However, longterm trends cannot explain the major, sudden surge in support for civil unions that occurred in 2003-2004, in the immediate aftermath of the Massachusetts Supreme Court decision mandating gay marriage. They also cannot explain the apparent decline in conservative activist opposition to civil unions over the last few years. Recall that conservative activists were strongly opposed to the creation of civil unions in Vermont in the late 1990s, at a time when gay marriage was just beginning to get on the political agenda.

Overall, Michael is right to suggest that pro-gay marriage court decisions carry some costs for gay rights advocates. But those costs are likely outweighed by the benefits.


Amendments to Federal Rules of Criminal Procedure: Lawyers who practice criminal law in the federal courts should know that today the latest round of amendments to the Federal Rules of Criminal Procedure go into effect. You can find the amendments here, and an excerpt from the Judicial Conference Report that explains the amendments here. Thanks to my co-author Nancy King, special reporter to the Advisory Committee on the Federal Rules of Criminal Procedure, for the reminder.

"[Tax Prof] 1, IRS 0":

A small victory, but a victory nonetheless, for my friend, fellow Kozinski clerk, and former UCLA colleague Victor Fleischer. Congratulations!


Myths About Supposed Court Action About President-Elect Obama's Supposed Ineligibility:

A bunch of people have asked me what's up with the Justices supposedly ordering President-Elect Obama to produce documents related to his eligibility for the Presidency. (As I noted below, I have no reason to doubt his eligibility, but here I'm just trying to rebut one claim about the Justices' supposed action on the subject.) Here's a sample of what I'd gotten, from the "Amazing Facts" blog:

SCOTUS tells Obama to show proof of Natural Born Citizenship
Supreme court ruling on Obama's eligibility for presidency

Court Of The United States (SCOTUS) Justice David Souter has agreed that a review of the federal lawsuit filed by attorney Phil Berg against Barack Hussein Obama II, et al., which was subsequently dismissed for lack of standing is warranted. SCOTUS Docket No. 08-570 contains the details....

Except this is not a fact, amazing or otherwise; the Court did not tell President-Elect Obama anything; the Supreme Court is not "ruling" on the subject except insofar that it has a certiorari petition before it (like thousands of certiorari petitions are filed before it each year); and Justice Souter has not agreed to anything. The docket sheet makes clear that all we have is a filed petition, a filed application for a preliminary injunction that was denied by Justice Souter, and a "[r]esponse due December 1, 2008" — a notation that simply marks the date by which any response should be filed, and imposes no obligation on anyone to file a response. Anyone can file a petition. All we have here is action by some litigants, not by Justice Souter.

(Note that parties routinely decline to file a response to a petition for certiorari, and those petitions are routinely denied in the absence of a response. If a Justice is inclined, he can call for a response, which is a signal to the respondent that at least one Justice thinks the petition has merit; and the Court almost never grants an unresponded-to petition without first calling for a response. But there has been no call for a response in this case, and I don't expect there to be any such call.)

Likewise, this other case simply involves an application for a stay denied by Justice Souter, refiled and resubmitted to Justice Thomas, and referred to the Court by Justice Thomas — something that is not uncommon, to my knowledge, with second stay requests, and that generally leads to a prompt denial by the Court at the relevant conference (in this instance, the December 5 conference). Search for "referred to the court denied" & date(> 1/1/2000) in Westlaw and you'll find 782 such instances this decade; "referred to the court granted" & date(> 1/1/2000) yields only 60, which should tell you how little you can read into the fact of the referral.

I wouldn't even be posting about this if it weren't for the several messages I've gotten on the subject; but given those messages, I thought I'd try to clear the matter up as best I can.

Related Posts (on one page):

  1. Referrals to the Entire Court of Lawsuits Challenging President-Elect Obama's Eligibility:
  2. Myths About Supposed Court Action About President-Elect Obama's Supposed Ineligibility:

Correction About Natural-Born Citizen Law:

I'm afraid that I made a legal error in a conversation I had with a Chicago Tribune reporter several weeks ago, and the error understandably made its way into print. Now that I realize I've made this error, I need to try to correct it. Just to make things clear up front, I have no reason to doubt that President-Elect Obama was born in Hawaii, and is therefore a natural-born citizen. The legal issue I discussed here is a based on the purely hypothetical question of what would be the law if President-Elect Obama were not born within the U.S. Nonetheless, I commented on this hypothetical question, in a way that I now believe was incorrect, so I think I need to correct my error.

The relevant passage is in a Chicago Tribune story from Oct. 30, 2008:

Any person born in the U.S. automatically is a "natural born citizen," said University of California Los Angeles law professor Eugene Volokh.

Even if a person is born outside the United States, ... [a]t the time Obama was born, the law stated that a person would be considered a "natural born citizen" if either parent was a citizen who had lived at least 10 years in the U.S., including five years after the age of 14 — in other words, 19.

Dunham was three months shy of her 19th birthday when Obama was born. But subsequent acts of Congress relaxed the requirement to five years in the U.S., including just two years after the age of 14, meaning Dunham could have been 16 and still qualified even if Obama was born in another country, Volokh said. Congress made the law retroactive to 1952, doubly covering Obama.

Any legal challenge would have to argue that Congress can't make someone retroactively a citizen at birth, and prove Obama was born outside of the U.S. after all.

My error came in misreading the last sentence in 8 U.S.C. § 1401(g):

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of Title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 288 of Title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date;
I foolishly read the last sentence as applying to the entire provision, § 1401(g); but the last sentence refers to the "proviso," and thus just to the clause that begins with "Provided." Public Law 89-770 enacted both the "Provided" and the last sentence mentioning the "proviso," without repeating the first clause — this supports the view that the "proviso" refers only to the "Provided" clause.

Moreover, the change to "at least two of which were after attaining the age of fourteen years" was made by Public Law 99-653, Nov. 14, 1986, which was enacted after the "Provided" clause and the last sentence were added: "SEC. 12. Section 301(g) (8 U.S.C. 1401(g)) is amended by striking out 'ten years, at least five' and inserting in lieu thereof 'five years, at least two.'" Two years later, the Immigration Technical Corrections Act of 1988, Public Law 100-525, Oct. 24, 1988, provided:

(r) EFFECTIVE DATES. — INAA [the Immigration and Nationality Act Amendments of 1986 (Public Law 99-653)] is further amended by adding at the end the following new section:
"SEC. 23....
"(d) The amendment made by section 12 shall apply to persons born on or after November 14, 1986.
So, as I now read 8 U.S.C. § 1401, "a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States" before Nov. 14, 1986 is a natural-born citizen only if the citizen parent "was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years" — the same rule that was in place in the early 1960s. See also United States v. Flores-Villar, 497 F. Supp. 2d 1160, 1162-64 (S.D. Cal. 2007) (taking the same view and concluding the change from ten years/five years to five years/two years only applied to people born after 1986), aff'd, 536 F.3d 990 (9th Cir. 2008) (so assuming but not discussing it in detail); Rico-Ibarra v. Mukasey, 281 Fed. Appx. 694, 695 n.1 (9th Cir. 2008) (not precedential).

I stress again that I post this only to correct what I now think was my legal error. I am certainly not trying to assert that this law even applies on the actual facts (as opposed to the hypothetical discussed at the end of the newspaper article).

Please let me know whether my correction is itself incorrect, though I hope I've gotten it right this time.


Krugman on the Great Depression:


But I think it’s worth pointing out why Ms. Shlaes thinks the New Deal was destructive of employment: namely, that it raised wages. Funny she should mention that — because the effect of wage changes on employment was the subject of a whole chapter in Keynes’s General Theory.

And what Keynes had to say then is as valid as ever: under depression-type conditions, with short-term interest rates near zero, there’s no reason to think that lower wages for all workers — as opposed to lower wages for a particular group of workers — would lead to higher employment.

Suppose that wages across the US economy had been, say, 20 percent lower than they actually were. You might be tempted to say that this would make hiring workers more attractive. But to a first approximation, prices would also have been 20 percent lower — so the real wage would not have been reduced. So how would lower wages lead to higher demand for labor?

Well, the real money supply would have been larger — but the normal channel through which this might increase demand, lower interest rates, was blocked by the zero lower bound. Yes, there would have been a slight Pigou effect: real private sector wealth would have been higher, because cash under the mattress (or wherever) was worth more. But on the other hand, real debt burdens would also have been higher, probably exerting a contractionary effect. Overall, there’s no good reason to think that lower wages would have helped raise employment.

And once you realize that, the whole argument that FDR prolonged the Depression by sustaining wages evaporates.

I'm no expert on Keynes, but I can't make heads or tails out of what Krugman is saying. My understanding of Shlaes is this: If the government forces wages to rise above market wages, for example by instituting minimum wage laws or encouraging unionization through government intervention (both of which the government did in the 1930s, first through the NIRA and then through the NLRA and FLSA), unemployment will result. Imagine, for example, that the government passed a law tomorrow dictating that as of January 1, everyone with a job will get a 20% raise, but employers are not required to retain any employees. Undoubtedly, some individuals will retain their jobs, but many others will be laid off. If the new wages are thereafter applied to new employees, employers will hire far fewer workers. Let's say the government on January 2 realized it made a big mistake, and restored the status quote ante. Does Krugman really believe that this backtracking would not lead to a "higher demand for labor?"

More generally, Krugman's recent blog posts suggest that he thinks that the New Dealers were operating within some sort of methodical Keynesian framework. In fact, the New Dealers believed all sorts of nonsense: that the U.S. was suffering from "overproduction;" that productivity followed wages, rather than vice versa; and, perniciously, that low-wage industries should be shut down, because these "parasitic" industries employed "defective" workers (often immigrants or African Americans) whose low wages showed that they were not capable of competing in a modern labor market, and were dragging down wages for everyone else.

So, for example, when the NIRA's cotton wage code led to massive unemployment in the industry, the Cotton Code Garment Authority bragged about the reduction of the use of "sweated, underpaid workers" in the garment industry. The Authority said it was necessary "to remove thousands of these substandard workers," who were "replaced by fewer, but far higher paid and more productive wage earners."

With regard to minimum wage laws, as economic historian Bruce Shulman has pointed out,

if the FLSA imperiled any southern jobs, the President and other New Dealers assumed only substandard jobs were at risk and bade them good riddance.... Stable family employment and high family wages mattered more to federal authorities than did the total number employed. One of the perceived evils of low southern wages was that they made a man unable to support his family and force his wife and children to work.

In short, the New Dealers' policies were designed to keep private sector unemployment high, at least in the short term, from a combination of economic ignorance, lack of concern for the short-term fate of the lowest echelon of workers, and political considerations (screwing the "conservative" rural South).

(I have a draft paper coauthored with Tim Leonard of Princeton that touches on some of these issues, but it's not ready to be circulated.)


Best Christmas Albums:

Give me your recommendations for your favorite Christmas albums that are worth checking out, preferably ones that aren't as obvious as Elvis's Christmas Album or Frank Sinatra. In particular, I'm looking for albums that will hold up to repeated listening over time.

A few of my favorites: Joe Williams "That Holiday Feeling", Tony Bennett "Snowfall," Ella Fitzgerald, and Oscar Peterson (great version of "God Rest Ye Merry Gentlemen"). Right this this moment I am listening to Dianne Reeves's Christmas album for the first time, which is just marvelous.


Is This the "Most Conservative Court Since the Mid-1930s"?

In a forthcoming essay in the Wayne Law Review, "The Roberts Court at Age Three," Dean Erwin Chemerinsky makes the fantastic claim that the Roberts Court "is the most conservative Court since the mid-1930s." In the paper, he explains what he means:

What does it mean to say that the Court is more conservative than its predecessor Courts, the Rehnquist, Burger, and Warren Courts? It is notably more conservative on the issues that in our society today are often the litmus tests for ideology: abortion and race. I also believe that it will be much more conservative on issues of separation of church and state, but they have not yet been presented to the Roberts Court. Also, it is a Court that, overall, is very pro-business. The one area where the Roberts Court has not been conservative is in its rulings against the Bush administration’s actions as to the Guantanamo detainees. But this is because Justice Kennedy has joined Justices Stevens, Souter, Ginsburg, and Breyer in these cases.
I believe Chemerinsky is wrong in nearly every particular. The Court's alleged rightward shift resulting from the confirmations of Chief Justice Roberts and Justice Alito has been greatly overstated, as decisions like Boumediene, Kennedy v. Louisiana, and Massachusetts v. EPA make clear. Even the claim that the Court is particularly "pro-business" is problematic, as we've discussed on this blog before.

The editors of the Wayne Law Review asked me (and others) to respond to Chemerinsky's essay. My contribution, "Getting the Roberts Court Right: A Response to Chemerinsky" is now on SSRN. While I think Chemerinsky makes some interesting observations, as in his discussion of the Court's shrunken docket and the role of Justice Kennedy, his "most conservative" claim is completely unsustainable. The Roberts Court is moderately more conservative than some of its recent predecessors on some issues, but it remains quite "liberal" on others. Particularly because Justice Kennedy is the swing vote on so-many ideologically charged cases, the Court's conservatism is quite inconsistent. I further note that any assessment of the Roberts Court, at this point, is necessarily tentative, as the current roster of justices has not yet sat together for even three full terms.


Sunday, November 30, 2008

Unconstitutional Residential Picketing Ban:

The Press-Enterprise reports on this new ordinance:

The Church of Scientology's concerns about protesters outside their Gilman Hot Springs base led Riverside County Supervisor Jeff Stone to seek and gain approval Tuesday for county restrictions on picketing in residential neighborhoods....

[T]he ordinance ... forbids demonstrators from coming within 300 feet of a home they are targeting in unincorporated Riverside County....

Stone said that protesters can still present their message, but at a safe distance that prevents violence.

"We need to do what we can locally to allow people to have freedom of expression but not provide a bully pulpit for hate," he said....

Stone described mask-wearing protesters who have appeared in recent months outside Scientology's Golden Era campus off Gilman Springs Road as "hatemongers." ...

While the Supreme Court has upheld ordinances that ban all picketing in front of a residence, the Court has struck down an injunction banning picketing within 300 feet of a residence, and other courts have (in my view quite correctly) concluded that a 300-foot zone is too wide. Here's an excerpt from Klein v. San Diego County, 463 F.3d 1029 (9th Cir. 2006), which rejected a facial challenge to such an ordinance, but strongly suggested that such ordinances will be unconstitutional in many applications:

[In] Madsen v. Women's Health Center, Inc., 512 U.S. 753, ... the Court considered an injunction that prohibited picketing within 300 feet of the residence of abortion clinic employees. The Court noted, again, that the house is the “last citadel of the tired, the weary, and the sick.” Id. at 775 (quoting Frisby v. Schultz, 487 U.S. at 484). It found, however, that the 300-foot prohibition was “much larger” than the zone of protection provided in Frisby. It held that the ordinance burdened more speech than necessary to protect the government's interest because “limitation[s] on the time, duration of picketing, and number of pickets outside a smaller zone could have accomplished the desired result.” Such measures would both protect residents from being a captive audience in the home and protect picketers' First Amendment rights. [fn4] Thus, the Court found this provision of the injunction to be unconstitutional.

[fn4] Madsen does not necessarily foreclose the County's argument that its 300-foot zone is proper. In Madsen, the Court was reviewing the constitutionality of an injunction, which must be “no more burdensome ... than necessary” to protect the government interest. In contrast, a generally applicable ordinance must be “narrowly tailored” to the government's interest. The standard governing ordinances is less stringent than the standard governing injunctions, although neither the Supreme Court nor this court has articulated a practical distinction between the two standards.

The combined teaching of Frisby and Madsen is that the government's interest in residential privacy does not trump all other rights. The government certainly has a significant interest in preventing picketing that renders the targeted resident a captive audience to the picketers' message. But the right to residential privacy does not encompass a right to remain blissfully unaware of the presence of picketers. See Murray v. Lawson, 138 N.J. 206 (1994) (“[K]eeping [picketers] at such a great distance, thereby rend[er]ing [the resident's] awareness of the picketing most unlikely as a practical matter, is unnecessary to protect [the resident's] residential-privacy interest”).

Thus the district court erred when it stated that residential occupants are entitled to “an unencumbered enjoyment of the tranquility and privacy of their homes.” Instead, residential picketing ordinances must carefully balance two valid and competing interests: the right of residents not to be captive audiences to unwanted speech and the right of picketers to convey their message. Residential picketing ordinances require a more nuanced approach than the one implied by the district court's formulation of the right to residential privacy.

Even though we disagree with the district court on this point, we nonetheless affirm its conclusion that Plaintiffs cannot state a valid facial challenge to the County's ordinance. The ordinance is problematic in several aspects: The 300-foot ban imposed by the County will, in many cases, put picketers farther away from the targeted residence than they would be under those ordinances that have been deemed constitutional by other courts. See Thorburn v. Austin, 231 F.3d 1114, 1120 (8th Cir.2000) (upholding an ordinance that prohibited picketing within fifty feet of the targeted resident's property line, but that allowed picketing on the sidewalk across the street from the targeted residence); Douglas v. Brownell, 88 F.3d 1511, 1520-21 (8th Cir.1996) (upholding an ordinance that banned picketing in front of the targeted house and one house on either side, but that permitted picketing on the sidewalk across the street from the targeted residence); see also Kirkeby v. Furness, 92 F.3d 655, 660 (8th Cir.1996) (striking down an ordinance that banned picketing within 200 feet of a targeted residence); Murray (striking down an injunction that banned picketing within 300 feet of the targeted residence). [fn5] In addition, the ordinance imposes a one-size-fits-all approach to residential picketing, which in some cases will allow picketing directly in front of the targeted home if the home is situated on a large lot, but will put the picketers several lots away from the targeted audience if the residence is situated on a small lot. Moreover, as in Madsen, the ordinance does not consider more limited restrictions, such as limitations on the number of picketers, the time of day, or the duration of picketing.

[fn5] In defending its ordinance, the County points to the California Court of Appeal's decision in City of San Jose v. Superior Court, 32 Cal.App.4th 330 (Ct.App.1995), which upheld an ordinance banning picketing within 300 feet of a targeted residence. We believe City of San Jose wrongly characterized the right at issue -- it concluded that residential picketing is “highly offensive conduct,” a “disfavored activity not entitled to a high level of First Amendment protection.” Contrary to the California court's characterization, the United States Supreme Court has called public issue picketing on streets and sidewalks “an exercise of ... basic constitutional rights in their most pristine and classic form.” Carey v. Brown, 447 U.S. 455 (1980). Moreover, Frisby and Madsen make clear that residential picketing enjoys First Amendment protection. While Frisby noted that targeted picketing is inherently intrusive on residential privacy, it did not suggest that, where the two clash, the right to residential privacy necessarily trumps the rights of picketers. That is to say, residential picketing is not the black sheep of the First Amendment family.

Despite the problematic aspects of the ordinance, we cannot say that the ordinance is unconstitutional in every application, primarily because the ordinance did not have an unconstitutional effect in the test case that led to the instant suit. A correct interpretation of the ordinance would have allowed Plaintiffs to picket on the sidewalk or street directly in front of Caires's home, or anywhere else in the neighborhood, because Caires's home was set back more than 300 feet from the street. Thus, for all practical purposes, had the officers correctly interpreted the ordinance, the ordinance would have had no impact on the Plaintiffs' right to picket at Caires's residence. Had a Frisby ordinance been in place in the County, Plaintiffs would have been pushed farther away from the residence than they were under the County's ordinance. Courts have accepted ordinances that prohibit picketing directly in front of the targeted resident's home. See, e.g., Frisby, 487 U.S. at 483 (“[O]nly focused picketing taking place solely in front of a particular residence is prohibited.”); Vittitow v. City of Upper Arlington, 43 F.3d 1100, 1105 (6th Cir.1995) (noting that “any linear extension beyond the area ‘solely in front of a particular residence’ is at best suspect, if not prohibited outright”). Because the ordinance functions as a more narrow prohibition than the one at issue in Frisby in some circumstances, we cannot say that the ordinance is unconstitutional in every application. Plaintiffs' claim is therefore not appropriate for a facial challenge.

Related Posts (on one page):

  1. "County Supervisors Back Away from Anti-Picketing Measure":
  2. Unconstitutional Residential Picketing Ban:

Fortune-Telling Ban Violates the First Amendment:

So a federal district court held last month, in Gryphon's Nest Gifts, Inc. v. Parish of Livingston. This is the latest in a line of such cases, and thus not surprising, but I thought it was worth noting. The opinion relies chiefly on earlier precedent, so the First Amendment logic underlying it might not be clear from reading the opinion alone; fortunately the Law and Magic Blog had a post last year that laid out more of this.

Thanks to Religion Clause for the pointer.


Saudi Arabia's Accolade:

Last week, the New York Times profiled The Accolade, an all-girl rock band from, of all places, Saudi Arabia.

They cannot perform in public. They cannot pose for album cover photographs. Even their jam sessions are secret, for fear of offending the religious authorities in this ultraconservative kingdom.

But the members of Saudi Arabia’s first all-girl rock band, the Accolade, are clearly not afraid of taboos.

The band’s first single, “Pinocchio,” has become an underground hit here, with hundreds of young Saudis downloading the song from the group’s MySpace page. Now, the pioneering foursome, all of them college students, want to start playing regular gigs — inside private compounds, of course — and recording an album.


Sunday Song Lyric: Ray Davies was impressed by American Thanksgiving. So much so, he wrote a song about it. "Thanksgiving Day" was initially released on a benefit EP of the same name, and then Davies' solo album Other People's Lives. Here's a bit of the lyrics:
Are you going on Thanksgiving Day
To those family celebrations?
Passing on knowledge down through the years
At the gathering of generations

Every year it's the same routine
All over, all over
Come on over, it's Thanksgiving Day
Here are the full lyrics, and a video of Davies explaining and performing the song.