My media column in today's Rocky Mountain News compared how much coverage the News and the Denver Post provided in the pre-inaugural week for the most recent inauguration, versus Clinton in 1993 and Bush in 2001 (which like 2009, featured a change of party). Since the Obama inauguration was said to be "historic," I also examined coverage of two other inaugurations which had some similarities (in terms of obvious historicaly character) with 2009: JFK in 1961, and Reagan in 1981. The results don't provide evidence of a pro-Democratic bias, since Bush 2001 and Clinton 1993 were about equal in quantity of coverage, as measured by the number of staff-written stories. Indeed, the 1961, 1981, 1993, and 2001 inaugurals were about equal in terms of coverage. These were dwarfed by the amount of coverage for Obama 2009.
Saturday, January 24, 2009
My own remarks at the Santa Clara Law Review Symposium on “Big Business and the Roberts Court” focused on two questions. First, what does it mean to say that the Roberts Court is “pro-business? Second, is there evidence of a “pro-business” orientation in the environmental cases decided by the Roberts Court thus far. I noted the usual caveats, of course, particularly the difficulty in reaching any definitive conclusions about the Roberts Court after only three years, and concluded that the environmental decisions of the Roberts Court show no evidence of a purported “pro-business” orientation. A summary of my remarks is below the jump.
Since the publication of Jeffrey Rosen’s NYT magazine article, “Supreme Court, Inc.” – if not even before – claims that the Roberts Court is a “pro-business” court have become quite common. It certainly appears that the Roberts Court is more interested in business-related cases than its predecessors in business-related cases. Such cases, however defined, appear to occupy a greater proportion of the cases accepted for review, a trend no doubt augmented by diminished size of the Court’s docket. As the Court takes fewer cases overall, the same number of business-related cases will occupy a greater share of the Court’s work.
Most of those who charge the Robert Courts is “pro-business” no doubt mean something more, particularly that the Roberts Court has shown itself to be substantively “pro-business” in its decisions. But does this mean that the Roberts Court favors business litigants? Or that the Roberts Court’s decisions embody legal rules that are generally favorable to business interests. These are not the same thing. In the area of antitrust law, for instance, all but one of the cases decided by the Roberts Court involved one business suing another. So it is hardly surprising that a business litigant emerged victorious in each of these cases. Of greater relevance is that a business defendants won in each of these cases, but this does not resolve the matter, for the identity of the litigants in a given case are not necessarily a good proxy for the decision’s broader effects on various interest groups. Some business groups were among those supporting the petitioners in Massachusetts v. EPA, but this hardly shows that the Court’s decision in that case was “pro-business.”
In evaluating claims that the Roberts Court is “pro-business” it is also important to ask the question “compared to what?” Depending upon one’s baseline, the claim that a court is “pro-business” can mean quite different things. Among other things, it is important to consider whether the Court is moving the law in a more business-friendly direction, or simply refusing invitations to expand less business-friendly legal doctrines. There is a difference between eliminating a long-standing cause of action against business defendants and refusing to open the door to a new generation of suits against corporations. Both are, in a sense, “pro-business,” but they are quite distinct.
It is likewise important to consider whether in rendering “pro-business” decisions the Court is itself shifting the law in a pro-business direction or merely ratifying a pro-business legislative deal or administrative ruling. While the former may be evidence of an actual “pro-business” bias, the latter may illustrate nothing more than deference to the political branches, and may only yield “pro-business” outcomes so long as the political branches are sympathetic to business interests. Thus a highly deferential court may seem quite “pro-business” when upholding the decisions of Republican-controlled agencies, but much less so once a Democratic administration is in control. Data showing that the Court often sides with the Solicitor General’s office in business cases could well be evidence that the Court is more deferential to the SG than it is objectively “pro-business.”
Another distinction to keep in mind is whether the Court is adopting business-friendly default rules, or entrenching pro-business rules. So, for instance, there is a meaningful difference between decisions in which the Court adopts a statutory interpretation favored by business interests, and which Congress retains the ability to overturn (as with the Ledbetter case) and decisions in which the Court announces a substantive rule of constitutional law that benefits business (as in some of the punitive damages cases). In the former instance the Court may be doing nothing more than deferring to the legislature on whether to shift the law in a less business-friendly direction. In the latter, the Court is entrenching a substantive rule that will benefit business forever. Insofar as the vast majority of cases in which the Roberts Court has adopted “pro-business” outcomes are of the former variety, this should inform our assessment of the extent to which it is a meaningfully “pro-business” court, particularly as recent political shifts may portend a less business-friendly legislative and executive branch.
With these distinctions in mind, it is worth considering whether there is evidence of a pro-business orientation in the Roberts Court’s environmental decisions to date. Environmental cases may be worth particular attention as, unlike some business-related areas, we may be less likely to see cases in which the justices various ideological commitments are in conflict. That is, if we generally expect conservative justices to be more “pro-business,” we may also expect them to be less sympathetic to environmental regulation, thus making any tilt in the Court’s orientation easier to observe. Of course the usual caveats still apply. The Roberts Court has not considered all that many environmental cases thus far that impact business interests – between 11 and 14 depending on which cases one chooses to count (because some cases, such as Winter v. NRDC don't directly impact business interests), with four more still pending this term. Furthermore, viewing environmental cases as posing business interests on one side and environmental interests on the other is overly simplistic, as many environmental regulatory programs were supported by business and business interests often stand to gain from “pro-environmental’ rulings. Nonetheless, it is fair to say that in most environmental cases, the side we consider to be “pro-business” will be opposite from that advocated by most environmentalist groups. Finally, and perhaps most importantly, whether a given case embodies a “pro-business” outcome is an entirely different question from whether the decision was substantively correct. In my opinion, many of the cases in which business interests lost were correctly decided, but the merits of individual cases was not the focus of the symposium or my remarks.
So, looking at the environmental cases, what do we see? Taken together, the Roberts Court’s decisions in environmental cases show no evidence of a pro-business bias or orientation. The Roberts Court sided with business interests in only five of the eleven cases directly pitting business against environmental concerns (and only six of the fourteen cases if we include those cases in which business interests are only affected indirectly). If we step back from the numbers, and consider the substantive effects of the cases, there is even less evidence of a business-friendly approach. Most of the business wins occurred in relatively narrow cases that had little effect on pre-existing law, while several of the losses are quite dramatic and will have profound effects on economic interests.
Consider the three most significant business “wins” in environmental cases. In Exxon Shipping v. Baker the Court unanimously rejected Exxon’s claim that punitive damage awards were preempted by federal law and confined its holding limiting punitive damage awards to cases arising under the federal common law of maritime. The Court’s decision in NAHB v. Defenders of Wildlife imposed a significant limitation on the application of the Endangered Species Act to pre-existing statutory obligations, but in doing so it affirmed historical agency practice and long-standing lower court decisions on the question. In Rapanos the Court adopted a potentially significant limitation on federal jurisdiction over wetlands lacking a “significant nexus” to navigable waters, but also reaffirmed that U.S. Army Corps of Engineers and Environmental Protection Agency retain substantial authority to define “substantial nexus” so as to reclaim much of the jurisdictional ground that was lost. Insofar as these decisions are ‘pro-business” they are all quite modest. Solid base hits, to be sure, but not home runs.
Contrast the cases in which business emerged victorious with those in which business lost. The most important environmental case decided by the Roberts Court – indeed, one of the most important cases of any sort decided in the past three years – was Massachusetts v. EPA, in which the Court both loosened the standing requirements for litigants seeking greater federal regulation, expanded the scope of the Clean Air Act to cover the most ubiquitous by-products of industrial civilization and virtually required federal regulation of greenhouse gases. As a substantive matter, this case alone is more adverse to business interests than all of the business “wins” put together. Several singles don’t matter all that much if one’s opponent responds with a grand slam.
Yet Mass v. EPA was not the only loss for the business community. The Court rebuffed challenges to the application of environmental laws to various business activities, as in Duke Energy and S.D. Warren, and in others the Court either expanded the government’s ability to impose on business interests or limited the ability of businesses to challenge government regulations, as in BP America Production, John R. Sand & Gravel, and United Haulers. Other environmental cases in which business interests were not directly at issue, such as Wilkie v. Robbins could also be seen as embodying a substantive rule that is adverse to business interests. In Wilkie, for instance, the rejection of a Bivens cause of action for the BLM’s harassment of a ranch owner could well strengthen the hand of government agencies vis-à-vis resource-dependent industries that operate on federal lands.
There is no evidence of a “pro-business” orientation in the environmental cases decided by the Roberts Court to date, but there may be evidence of something else. One thing that is quite striking about the environmental cases is the rate at which the government was on the winning side. The federal or state government was victorious in nearly every case in which business interests lost. The one exception is Mass v. EPA in which the federal government’s position lost, but the cause of greater government regulation nonetheless advanced. Where business interests won, government interests were typically absent, or on the business side. So, for instance, in the NAHB case, the Court adopted the Bush Administration’s interpretation of the Endangered Species Act, and in Exxon Shipping the Solicitor General’s office did not file a brief. Rapanos is certainly an exception to this trend. Yet, as already noted, the decision reaffirmed broad regulatory authority to define the scope of federal jurisdiction. The feds lost in a Superfund case, Atlantic Research, but it is difficult to argue that the federal government’s broader interests were set back by the Court’s decision. The same could be said for the Court’s decision rejecting jurisdiction over a whistleblower suit under the False Claims Act in Rockwell.
In sum, there is no evidence that the Roberts Court has adopted a substantive pro-business orientation in its environmental cases – at least not in those decided thus far. This is a tentative conclusion, however. There are four environmental cases still pending this term, concerning the use of cost-benefit analysis, Superfund liability, the scope of the Clean Water Act, and citizen suits concerning the management of federal lands, and business interests could well sweep the table (though I consider this unlikely). Further, the lack of a pro-business orientation in the environmental context does not mean the Court is not more business-friendly in other areas, perhaps such as preemption or securities litigation. Yet while there are no signs of a business-friendly approach to environmental cases, there are signs the Court tends to side with the government. If such a conclusion is warranted, then whether the Court hands down business-friendly decisions may depend on whether the political branches are or continue to be receptive to business interests.
True, but Obama won by, among other things, promising a net decrease in federal spending. Here he is during the third debate: "what I've done throughout this campaign is to propose a net spending cut.... What I want to emphasize ... is that I have been a strong proponent of pay-as-you-go. Every dollar that I've proposed, I've proposed an additional cut so that it matches."
Obama would have a much better case for Republican deference to his spending plans if he had actually campaigned in favor of the most massive increase in federal spending, ever, instead of as a budget-cutter.
I just happened across this extraordinary paragraph in recent law review article (entitled "Why Judy Norman Acted in Reasonable Self-Defense: An Abused Woman and a Sleeping Man," 23 Buff. Women's Law Journal 65 (2007)), and I thought I'd share it with you all:
The prevailing belief is that individuals are independent, autonomous beings, and therefore, free to leave, to exit, any situation at any time. I disabuse the students in my Violence Against Women class of this notion on the first day by asking them if they have ever stayed in any situation – a job, a school, a living arrangement, a relationship – longer than they should have? And if so, why? I start with my own example. I have stayed at Temple Law School longer than I should have. I dislike the administration, but I like my colleagues, friends and relatives in Philadelphia. I love my apartment, which I could not afford in New York City – where I would prefer to live. The reasons we have for not leaving are an unwillingness to abandon or hurt others, lack of money, lack of alternatives, and the belief that things will get better, e.g. that the current administration will be replaced by an improved model. Students also cite fear of change – the belief that the devil you know is better than the devil you don=t know. In truth, the inability to exit is a common fact in all of our lives.
Now, this was written by a colleague of mine at Temple (as you can tell), Prof. Marina Angel, so I want to be especially respectful of the rule of avoiding ad hominem or
"I (and others) have stayed in particular situations longer than we should have. Therefore, the belief that individuals are free to exit any situation at any time is false."
That doesn't work -- that just proves the proposition "Sometimes people make bad choices," and is irrelevant to the proposition that they don't have, and don't make, choices.
And it is also off if it means to say:
"The belief that individuals are free to exit any situation at any time is false, illustrated by the fact that I would prefer to live in NYC, but I am still in Philadelphia."
I hear this sort of things from friends from time to time, and it infuriates me.
"You know what I really want to do?? I really, really want to chuck it all, leave my job and start a scuba-diving school on the Baja peninsula . . ."
"So why don't you?", I ask.
"Oh, well, you know . . . because I have friends and family here, and all sorts of other ties, and I kinda like my apartment, and it would be such a hassle to move, and . . ."
"So," I say, "you actually don't want to chuck it all and move -- given all the other things about your life, you have chosen to stay where you are. You have a fantasy about another life -- interesting (I didn't know you were so into scuba-diving), but not to be confused with the absence of a choice. You've made your choice: you actually don't want to chuck it all, given everything about your life (your apartment, your family, your job, your friends, your unwillingness to make others mad or unhappy, etc.) at this moment, and pretending otherwise just enables you to avoid responsibility for the choice you're making by pretending that it's imposed on you from above."
I think I can trace the moment that I became a libertarian to discussions like this in my first-year contracts class, when we were discussing "duress" (and again with "unconscionability"), when I heard so many of my classmates echoing Prof. Angel's sentiments on this matter. Perhaps Judy Norman (who killed her abusive husband while he was sleeping) truly "had no choice" -- but you won't persuade me of that, at least, if you begin by saying that that is the general condition of humankind, because it is not. Or to put it differently: if my friend really has no choice about whether to start up the scuba school in Baja, then it's pretty easy (trivial, in fact) to say that Judy Norman had no choice. But the major proposition is so deeply wrong that I remain un-disabused.
Friday, January 23, 2009
Jeffrey Rosen delivered the keynote address at the Santa Clara Law Review symposium on "Big Business and the Roberts Court: Explaining the Court's Receptiveness to Business Interests," which is only appropriate as the conference theme was inspired by his NYT magazine article “Supreme Court, Inc.”
Rosen began noting “Supreme Court, Inc.,” as something of a follow-up to his much discussed article “The Unregulated Offensive,” in which he discussed the alleged “Constitution in Exile” movement (about which we blogged extensively). Both articles were about right-of-center efforts to alter the course of the law. Whereas he once saw these articles as of a piece with each other, he said he now sees that there are larger fissures between the two than he had once appreciated. On the right of the court and in the legal community, Rosen suggested, there is a split between Chamber of Commerce conservatives and libertarian-originalist-states-rights conservatives. The former seek to advance business interests through litigation relying upon statutory arguments, whereas the other has a far more ambitious agenda to limit the size and scope of government on constitutional grounds. Both have market sympathies, but only the former appears to have been at all successful before the Supreme Court.
Rosen took issue with the claim that the lopsided margins in most business cases are evidence of a lack of ideology on the Court. The real lesson of those cases, and the 9-0, 8-1, or 7-2 votes in so many business cases, is that there is a broad ideological consensus on the Court in support of pro-market or pro-business outcomes in most business cases. Yet as Rosen also noted in his talk, insofar as most business-oriented cases involve statutory questions, the focus on statutory text creates the potential for consensus in a given case as justices’ prior ideological or doctrinal commitments. By deferring to Congress and the legislative text, the Court can side step potentially more divisive policy or ideological splits.
Rosen believes the business-oriented conservatives have been largely successful in their legal efforts but there are some notable exceptions. Where the Chamber conservatives have lost – environmental, employment and labor cases – Rosen suggested it is because they have come up against other strong interests and ideological commitments among the justices. So, while most justices may have strong market sympathies, these inclinations may be overridden when they come up against other values (e.g., equality, racial justice, environmental protection) that are more strongly held by at least some of the justices.
Where the Chamber conservatives have been largely successful, the more ideological libertarian-originalist types have seen their efforts bear less fruit on the Supreme Court. While conservative libertarian-oriented public interest legal groups have won some important legal victories, such as on racial preferences, school vouches and interstate wine shipments, the broader project to constrain (if not dismantle) the post-New Deal regulatory state. Their stronger ideological prescriptions got few takers.
Rosen noted the somewhat-famous 1984 debate between then-Professor Antonin Scalia and Professor Richard Epstein on whether courts should aggressively protect economic liberties and constrain federal power. Such efforts would be Lochnerian, Scalia suggested, and he wanted no part of it, whereas Epstein explicitly called fro some measure of “judicial activism” to vindicate a more originalist limited government vision of the Constitution. While Epstein’s libertarian vision was appealing to some – and may have a follower in Justice Thomas – other conservative justices are firmly in Scalia’s camp.
These divisions remain on the right, Rosen noted, but suggested little reason why the libertarian-originalist forces would face more success going forward. Some activists have announced plans to mount constitutional challenges to the federal bailout, but these are unlikely to succeed. So it is likely that, at least until the Court changes dramatically, that the Chamber conservatives will continues to succeed, and the libertarian-originalists to fail. President Obama’s SG, Elena Kagan, may help guide the Court in a less business-friendly direction, though Rosen thought this unlikely. While President Obama could alter the Court's composition, Rosen also thought it unclear whether Obama would nominate a Douglas-style economic populist. Most likely nominees seem to come from the same dominant legal culture that appears in line with the moderately pro-business consensus. Hope for a more populist, less business-friendly justice would have to come from a broader change in the national culture, particularly among legal elites.
Throughout the talk Rosen suggested that the Court has a general market-oriented consensus, which is illustrated by its hostility to "regulation-by-litigation." I would suggest that these are not the same thing. I think Rosen is correct that, as a general matter, the Court has shown a hostility to regulation-by-litigation, and ruled in favor of business in most such cases, but the Court has shown no hostility to regulation, as such, and is not more broadly pro-market. This might explain the Court's deference to the government, and the high rate of business victories in cases in which the SG participates, as well as the failure of plaintiffs who have sought to expand causes of action or use courts as a regulatory tool. So perhaps the Court is not pro-business, as much as it is hostile to regulation-by-litigation.
Related Posts (on one page):
- Jeffrey Rosen's Keynote at "Big Business and the Roberts Court":
- Big Business and the Roberts Court - Panel III:
- Big Business and the Roberts Court - Panel II:
- Big Business and the Roberts Court - Panel I
- Symposium on "Big Business and the Roberts Court":
The third panel at the Santa Clara Law Review symposium on "Big Business and the Roberts Court: Explaining the Court's Receptiveness to Business Interests," featured Vikram Amar (UC Davis), Pam Karlan (Stanford) and yours truly.
Vikram Amar spoke on the implication of changing Court personnel on the Court’s doctrine in the dormant commerce clause and punitive damages context. Thus far, Amar noted, Justices Scalia and Thomas have been unable to woo the Chief Justice and Justice Alito to adopt their methodological originalism in these areas. This not only has implications for business but also, Amar suggested, but perhaps also on the continued viability of originalism as an interpretive methodology.
On punitive damages, Amar notes, the Court does not split along traditional ideological lines, with Justice Breyer (rather than Justice Kennedy) playing the pivotal role. In the Philip Morris case, for instance, Justice Breyer wrote the majority for Justices Kennedy, Alito, Souter and the Chief Justice, whereas Justices Stevens, Ginsburg, Scalia and Thomas dissented, Thomas on the explicit grounds that the Court had no business limiting punitive damages on substantive due process grounds. Justice Thomas and Scalia reject any constitutional limitation on punitive damages, though both were willing to support limits on punitive damages under maritime law in the Exxon Shipping v. Baker, where Congress retains the ability to impose a different rule.
Turning to the dormant commerce clause, Amar noted that Scalia and Thomas (and particularly the latter) take a similarly absolutist view, rejecting the idea that the dormant commerce clause has any textual basis. Justice Scalia is willing to strike down some truly discriminatory measures on stare decisis grounds, but Justice Thomas has said he will not enforce the clause at all. Though the Chief Justice and Justice Alito have differed on application of the dormant commerce clause, neither has shown any inclination to join the Scalia-Thomas originalist position.
In both areas, it may appear that Scalia and Thomas are opposing the constitutionalization of particular rules without textual basis. Yet, Amar noted, the dormant commerce clause operates as a default rule, subject to legislative revision. Just as Congress can alter the limit on punitive damages in maritime law, Congress can authorize state measures that would otherwise violate the dormant commerce clause. Moreover, Amar observed, there is well-over one-hundred years of precedent on the dormant commerce clause upon which Congress has relied in deciding when and whether to authorize state measures that could inhibit interstate commerce. If Scalia and Thomas were truly concerned about preserving Congress’ role, Amar suggested, their strict originalist approach is misplaced.
Pam Karlan sought to compare Caperton v. A.T. Massey Coal Co. with Exxon Shipping v. Baker, two cases involving large punitive damage awards against corporate defendants. In Caperton, a corporate CEO spent approximately $3 million to unseat a pro-plaintiff state supreme court justice in West Virginia so as to secure a favorable verdict in a punitive damages case. The justice who won refused to recuse, and cast the deciding vote in Massey Coal’s favor. Later this term the Court will consider whether this failure violated Caperton’s due process rights.
The efforts Of Massey Coal’s CEO, Blankenship, to buy a favorable court result, Karlan suggested, are similar to the campaign by Exxon to influence the outcome of its litigation efforts by funding academic research raising questions about the reliability and fairness of large punitive damage awards. Such efforts, she suggested, were an equivalent effort to alter the course of litigation, and influence not only a specific case (Exxon’s eventual appeal to the Supreme Court) but how lower courts address similar issues going forward.
Why did Exxon feel the need to fund these studies, Karlan wondered. It must be because otherwise the studies would not have been written (or at least not when they were). This could be because some sorts of studies, such as those involving hiring mock jurors, are sufficiently expensive that they would not otherwise occur. Another possibility is that Exxon’s funding alters the research queue of the experts receiving Exxon funds. If so, Karlan wondered whether this is unethical for academics, for what are our universities paying us for if not (among other things) our independent judgment about what subjects are worthy of academic investigation. [What does that say about symposia like this one? This invitation certainly altered my research queue – alas, there was no massive check attached.]
Interestingly enough, Justice Souter’s majority opinion in Exxon Shipping noted Exxon’s funding of academic research on the consistency and variability of punitive damages awards, in footnote 17, and explicitly disclaimed any reliance those studies. Why did the Court do this? One possibility, Karlan suggested, was because Exxon was a party to the case. But would this mean that the same studies could be considered in another case raising similar issues? Or would the Exxon funding be similarly disqualifying?
Karlan said she did not believe Exxon’s efforts to “seed” the academic research so as to improve its case rise to the level of a due process violation. The Caperton case, on the other hand, raises a more serious due process issue that could require the Court to adopt a legislative-type rule to prevent this sort of abuse and govern potential conflicts-of-interest in state courts going forward. If Blankenship’s actions create a due process problem, the Court will have little choice but to develop a series of legislative-type rules about what is or is not required when parties before elected state courts have contributed to campaigns or election efforts.
I’ll add a post summarizing my remarks later today or tomorrow.
Related Posts (on one page):
The second panel at the Santa Clara Law Review symposium on "Big Business and the Roberts Court: Explaining the Court's Receptiveness to Business Interests," featured political scientist J. Mitchell Pickerill of Washington State University, David Franklin of DePaul University of Law, and moderated by Tracy George of Vanderbilt Law School.
David Franklin opened with the by-now-common refrain that it is still early to reach any firm conclusions about the Roberts Court. That said, Franklin suggested that he believes it is fair to characterize the Roberts Court, thus far, is “business-friendly” – or, at least, “business-defendant-friendly.” His conclusions are based upon looking at the 38 cases during the Roberts Court in which the Chamber participated as an amicus or party at the merits stage. In 28 of these cases, approximately 73 percent, the side advocated by the Chamber was victorious. Also notable, among the 38 cases were 12 unanimous wins and 5 unanimous losses.
The win rate appears to have increased during the Roberts Court. Looking at the “natural Rehnquist Court” – the period from 1994-2005 during which there was no turnover on the Court – there were 76 cases in which the Chamber participated on the merits, but the Chamber had a lower winning rate of just over 60 percent. Thus, for whatever reason, the Chamber has been more successful before the Court in recent years.
Franklin noted that he Chamber is clearly an active participant before the Court, and becoming more so, and is the most active private litigant at the cert stage. Whereas many amicus briefs may be placeholders and basic signaling devices (such as when the existence of the brief is itself a signal, apart from its content), Franklin noted that the Chamber’s briefs tended to be quite legally substantive (and more so than he expected).
In seeking to explain the apparent pro-business sympathies of the Court, Franklin offered some tentative suggestions. First, he noted, the current justices are very “public-law oriented,” with relatively little collective experience on the private bar. Thus, the justices may approach business law cases based upon their experience as “public law” lawyers (judges, government officials, etc.). Among other things, this may result in a general distaste for the use of litigation as a regulatory tool. Thus, insofar as most justices may view state tort law as, primarily, a regulatory mechanism, it could explain many why many of the justices are sympathetic to some level of federal preemption (though, of course, viewing state tort law as a source of "regulatory" requirements with which companies must comply, does not, in itself, answer the preemption question).
Second, Franklin suggested that the Court, by-and-large, prefers clear rules to more flexible or malleable standards. This somewhat-formalist instinct (although resisted by Breyer) could lead the Court to support business concerns for predictability and stability in the law. And finally, he suspects that the justices are somewhat nationalist and have a slight preference for uniformity (perhaps particularly judicially imposed uniformity) over a potentially messy patchwork of state laws and regulations.
Mitch Pickerill also took a quantitative approach to the question of whether the Roberts Court is “pro-business.” His presentation included lots of data on slides, that I hope I am able to capture in this summary.
Going to back to the time of the Roberts and Alito nominations, Pickerill asked what we would have expected from each of these justices? Given their conservative political orientations, we may have expected each new justice to be “pro-business” insofar as this is reflective of a conservative orientation. This is, in fact, what the available data show. Comparing Roberts and Alito with Rehnquist and O’Connor in “union activity” and “economic activity” cases, Pickerill finds that Alito and Roberts are only marginally more “conservative” or “pro-business” in these areas (noting all the usual caveats about size of data set, labels, etc.). Yet while the two justices have only a slightly more conservative orientation than their predecessors viewed individually, the outcomes of these sorts of cases appear to be significantly more “conservative” or “pro-business” on the Roberts Court than on prior Courts, including the Rehnquist Court, and the percentage of the Court’s docket taken up by these cases appears to have increased as well. He also noted that within the set of business cases, the types of business cases considered has changed as well.
Pickerill suggested we might be able to get additional perspective on the potential trends in the Court by looking to regime theory, and a focus on political regimes and political time. From this perspective, Pickerill noted that it is perhaps important that the Democratic Party, and the Clinton Administration in particular, sought to neutralize certain issues that (in their view) favored the Republican Party, such as economic growth and crime. This led to certain policy priorities, such as deficit reduction and trade liberalization, as well as a downplaying of ideological considerations in the selection of Clinton judicial appointments. Thus, Clinton’s Supreme Court appointments, – Stephen Breyer and Ruth Bader Ginsburg – are judicial liberals on many issues, but also relatively “pro-business” compared to other possible nominees. Returning to the data, Pickerill noted that the Clinton Administration did not interrupt – and, in fact, actually contributed to – a longer term trend toward a pro-business orientation. Whether the Obama Administration will take a different approach -- and cause a "regime change" -- remains to be seen.
Taking her prerogative as moderator, Tracey George raised a few questions, including a) whether current economic woes will increase the salience of business cases on the Court, b) whether it is relevant to differentiate between “pro-business” decisions in which the Court upholds “pro-business” legislation and invalidates “anti-business” legislation, c) whether the shrinking docket should affect analyses of the Court, and d) whether the increased “professionalization” should affect analyses of the Court’s approach to business cases.
In response, Franklin suggested that few of the cases involve the question whether the Court should strike down or uphold a statute, but how a given statute should be interpreted, and thought it was too soon to know whether economic concerns will increase the salience of business cases in the courts. He also noted that whatever the effect of the professionalization of the judiciary, the increase professionalization of the Supreme Court bar is likely an important factor. On the issue of the docket size, Pickerill pointed out that quantitative examination of the trends has to be balanced with consideration of individual cases, as the doctrinal and practical cases of individual cases will vary.
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Almost every day, a judge in the United States holds a statute unconstitutional. This power of the judges is known as “judicial review,” and it often seems the central feature of American constitutional law. The authority and scope of this power, however, have long remained unclear, and because historical accounts have tended to suggest that the judges themselves largely developed judicial review, the history has given credence to the view that judges enjoy considerable discretion over the extent and exercise of this power.I think Hamburger is a very interesting writer and I always learn from his work. From the description, I think I will be in considerable agreement with his thesis. For my take on judicial review you can see the (much shorter) Original Meaning of the Judicial Power. Here is the abstract
Law and Judicial Duty presents a very different history and a very different conception of the power of the judges. Drawing upon previously unexplored evidence, Philip Hamburger reveals the familiar notion of judicial review to be largely an illusion produced by modern assumptions, and he shows that what today is called “judicial review” was once understood more simply as part of the duty of judges to decide in accord with the law of the land. His book challenges many modern assumptions about the extent of judicial power, and by exploring judicial duty in its social context, the book raises sobering questions about the nature of law and the possibility of government under law.
In this paper, I refute any claim that judicial review was invented in Marbury v. Madison, or that, because it is contrary to the original meaning of the Constitution, it must be justified by some nonoriginalist interpretive methodology. I will do so, not by discerning the shadowy and often counterfactual "intentions" of the founding generation, but by presenting as comprehensively as I can what the founders actually said during the constitutional convention, in state ratification conventions, and immediately after ratification. These statements, taken cumulatively, leave no doubt that the founders contemplated judicial nullification of legislation enacted by the states and by Congress.I do not claim that my essay can possibly cover the ground of Hamburger's massive study. But I do think our conclusions are similar: judicial nullification was widely understood to be included in the original meaning of "judicial power" to which Article III refers. But the modern conception of "judicial review" goes well beyond this.
In short, I shall demonstrate that the original meaning of the "judicial power" in Article III, included the power of judicial nullification. Many constitutional scholars who do not consider themselves to be originalists nevertheless acknowledge that originalism provides the starting point of constitutional interpretation or at least is a factor to be considered among others. It is equally important that these nonoriginalists are made aware of the substantial evidence that the original meaning of the "judicial power" included the power to nullify unconstitutional laws.
Related Posts (on one page):
- In the Mail: A New Collection of Writings by Bruno Leoni:
- In the Mail: Hamburger's "Law & Judicial Duty":
I pray that coming appointments to our court will not cause the doors of communication and compromise to slam shut. A polarized 4th Circuit would bring no discernible public benefit. At the end of the day, it's not lines of battle; it's not us and them. Americans are in this together, and that includes the courts.Judge Wilkinson is an excellent judge, and I happen to agree with the opinions he expresses in the op-ed. But c'mon, is it too much to expect for the elected branches to do their jobs without judges weighing in? Nominating judges is the President's job, and confirming them is the Senate's. Sitting judges — and especially sitting judges generally affiliated with the opposite party as both the President and the majority of the Senate — have and should have no role in the process. As I said before when criticizing Justice Ginsburg, judges who want judicial independence must see it as a two-way street: If they want the elected branches to stay out of judicial business, they should stay out of the business of the elected branches.
This is the first in a series of semi-live bog posts on the Santa Clara Law Review symposium on "Big Business and the Roberts Court: Explaining the Court's Receptiveness to Business Interests." The morning opened with welcoming remarks from Santa Clara University School of Law Dean Donald Polden. After a warm welcome to the participants and attendees, Dean Polden suggested that in just a few short years the Roberts Court has worked significant changes in certain areas of law important to business. In antitrust, for instance, he suggested the Roberts Court has "dismantled" the architecture of the law through a series of pro-defendant decisions. What causes this? He speculated that there was several possibilities, ranging from the power of corporate money to fund high-powered litigation, the gradual "re-education" of judges and lawyers by the likes of the Olin Foundation, or perhaps just a general change in public opinion or elite consensus.
The first panel consisted of practitioners engaged in Supreme Court litigation: Robin Conrad of the National Chamber Litigation Center (the litigation arm of the U.S. Chamber of Commerce), Brian Wolfman of the Public Citizen Litigation Group, and Sri Srinivasan of O’Melveny & Myers. All three have been heavily involved in business-related cases before the High Court. My write-up of this panel is below.
First up was Robin Conrad who set out to “debunk” the “emerging popular myth of the pro-business bias” of the Roberts Court. Conrad said she has seen “no convincing evidence” that the Roberts Court is “biased” in favor of business, at the expense of fairness or other concerns. She did, however, note the possibility that the Court shares some basic legal values supported by the business community, including uniformity and notice in the legal and regulatory context.
According to Conrad, the fact that court is taking more business cases is not evidence that the Court is “pro-business.” The trend could be an artifact of the Court’s “incredibly shrinking docket,” in which business cases appear to take up a larger share of the Court’s work. This could also be due to the Chief Justice’s expressed interest in unanimity, and a recognition that business cases may be less polarizing or divisive than other types of cases. It could also be “long-overdue course correction” that is making up for the Rehnquist Court’s relative disinterest in business cases.
Turning to the substance of the cases, Conrad noted that in some areas the Court may be more sympathetic to business concerns, but that this could also reflect the Court’s recognition of certain problems, such as the perceived failings of the state tort system. More broadly, while the Chamber has had some success, but this has not been consistent. As noted in the press, the position supported by the Chamber won in 13 of 15 cases in which the Chamber participated in OT06, but only 8 of 15 cases in OT07. She also noted that some cases are more significant than others and that it is hard to reconcile some high-profile business losses, such as Massachusetts v. EPA, with the idea that the Roberts Court is meaningfully “pro-business.” Further, she rejected the idea that the Court is “pro-business” because it has become more conservative, noting that in the vast majority of theses cases have been decided by over-whelming majorities, a bare majority unanimously.
Brian Wolfman expressed the general view that it is “too early to tell” whether there is a pro-business slant. “You need more time and you need more data,” adding it is also important to take into account the role of the government in such cases. Responding to Conrad, Wolfman suggested that a 7-2 or even 8-1 split does not indicate the lack of ideological division. With new justices on the Court, Wolfman suggested, cases that would have been decided 5-4 cases before could now be decided 7-2. He also noted that an important consideration will be how Congress responds to the Court’s business-oriented statutory decisions, and how the Court responds to Congressional corrections, such as the expected passage of a bill to overturn the Ledbetter pay discrimination case.
Wolfman focused the balance of his remarks on preemption, and the reasons he believes congressional preemption of state tort-law remedies is bad public policy. As an initial matter, Wolfman rejected the idea that there is a problem when federal regulatory measures and state tort law overlap, and noted that the Supreme Court has been anything but consistent in its handling of this issue. He challenged the idea that state tort law is equivalent to positive regulation, thereby challenging the idea that federal regulatory standards necessarily conflict with state tort law judgments concerning similar issues. While Congress has considered substantial tort reform, Wolfman rejected the idea that Congress was engaged in implicit tort reform when it enacted various federal regulatory statutes.
Wolfman focused the balance of his remarks on preemption, and the reasons he believes congressional preemption of state tort-law remedies is bad public policy. As an initial matter, Wolfman rejected the idea that there is a problem when federal regulatory measures and state tort law overlap, and noted that the Supreme Court has been anything but consistent in its handling of this issue. He challenged the idea that state tort law is equivalent to positive regulation, and the idea that federal regulatory standards necessarily conflict with state tort law judgments concerning similar issues. While Congress has considered substantial tort reform, Wolfman rejected the idea that Congress was engaged in implicit tort reform when it enacted various federal regulatory statutes. Among other things, he argued that regulatory agencies and the tort system operate in very different ways. Regulatory agencies can impose ex ante restrictions, require information disclosure, and demand immediate corporate responses to emergencies (such as the need to recall contaminated or dangerous products). To the extent that the tort system has a regulatory effect, Wolfman argued, it does so only after many lawsuits and court judgments.
While the tort system and regulatory system may overlap and interact, Wolfman argued the tort system is not a substitute for regulation, nor should the existence of regulation preclude recovery by injured consumers. Indeed, it may be socially optimal for the regulatory system to allow useful products to remain on the market, while still using the tort system to compensate those injured by such products. While the tort system will exert some regulatory pressure, this is a good thing Wolfman argued, noting many products that escaped regulation from a “broken” system, and were later subject to product liability suits. In sum, Wolfman argued that state tort law cannot replace, and should not be displaced by, federal regulation, particularly when Congress has not explicitly expressed its intent to preempt state tort law.
Sri Srinivasan echoed the prior panelists concerns about reaching premature conclusions about the Roberts Court. That said, he offered some perspective on the Chamber of Commerce’s win-loss rates. While acknowledging that the Chamber of Commerce’s participation in a case is a useful proxy for business interest in a case, it is not a perfect proxy. With that qualification, he noted that the Chamber has won approximately two-thirds of the cases in which it has participated as an amicus in the Robets Court. Yet, he noted, the Court appears to be more “pro-government” than “pro-business.”
Looking at which 26 cases during the Roberts Court in which both the federal government (through the Solicitor General’s office) and the Chamber participated as amici, the Chamber does not appear to have all that great of an influence on the Court's decision-making. In the 15 of the 26 cases in which the Chamber and the SG were on the same side, the Chamber won all 15 cases. In the 11 of the 26 in which the Chamber and the SG disagreed, however, the government won and the Chamber lost. Of potential significance, most of these cases (9 of 11) involved employment or ERISA issues. This data would suggest that the SG’s office is more influential than the Chamber, at least in cases where the SG participated as an amicus. [Note: What this data excludes, however, are cases involving direct challenges to government decisions, such as challenges to regulatory agencies.]
The apparent influence of the SG’s office could be particularly important going forward Srinivasan suggested, as many would expect the SG’s office under President Obama to be less hospitable to business interests than has been the SG’s office during the Bush Administration. If so, this would help illuminate the extent to which the Roberts Court has, in fact, been “pro-business.”
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The website of The Atlantic magazine has started a new "Atlantic Business Channel" and I've been asked to contribute. Nothing from me there yet, but Megan McArdle and others are already up and running. You can check it out (and perhaps even bookmark it) here.
In a previous post, I asked whether the Obama administration was likely to prosecute Bush administration officials for authorizing waterboarding after Holder announced that he believed that waterboarding was torture. I concluded that the “chances of prosecution remain slim.” Obama has said that he is reluctant to launch prosecutions and he has considerable discretion to prosecute or not. I was talking about domestic law, but others apparently thought I was talking about international law as well, and have claimed that international law changes the story.
Attention has focused on the Convention Against Torture, which provides:
7(1) The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
(2) These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall be no less stringent than those which apply in the cases referred to in article 5, paragraph 1.
Kevin Jon Heller offers a lucid analysis here. For the sake of argument, let us assume that international law does in fact require some kind of prosecutorial activity. What of it?
Begin by observing that we have two substantive laws that, for present purposes, have equal standing: “you may not torture” and “you may not decline to prosecute torturers.” The first law is domestic (as well as international), the second law is international. People who agree that the Obama administration has no domestic legal obligation to enforce the first law should concede what is obvious to nearly everyone: not all laws are enforced. Putting aside private rights of action, domestic laws are enforced only when there is political motivation to enforce them.
If not all domestic laws are enforced, why should we think that the second law, the international law, will be enforced? Because it is international rather than domestic? In fact, just as in the domestic setting, some international laws are enforced and some are not. While in the case of domestic (federal law), the executive branch decides which laws are enforced and which are not enforced, in the case of international law the decision lies elsewhere, with the relevant international actors, in this case with foreign states. The enforcement of international law, just like the enforcement of domestic law, depends on political will and interest. Foreign states are free to press or not press claims they have as a result of U.S. violations of the torture convention.
The question, then, is whether foreign states are likely to accuse the Obama administration of violating section 7 of the CAT, and to pressure it to come into compliance with the CAT, if it refuses to prosecute. The answer is probably no.
Foreign states have no more incentive to press their Convention Against Torture claims against the Obama administration than the Obama administration has to press domestic anti-torture or war crimes charges against Bush administration officials. International law gives them only self-help remedies for U.S. violations, and few states will want to expend the diplomatic resources on an issue about which they care relatively little—certainly compared to all the other areas of disagreement, such as climate, trade, energy, and security—and about which they are so unlikely to obtain a receptive hearing from the United States. Are foreign states likely to try to embarrass the incoming Obama administration by accusing it of violating section 7 of the CAT? It seems safe to conclude that if the Obama administration chooses not to prosecute and thus to violate CAT, other states will, in essence, “settle” their claims for a price of zero.
Foreign states are in a difficult position, akin to the difficult position of the Obama administration. Just as domestic prosecutions risk exposing the complicity of Democratic politicians in the Bush administration’s interrogation policies, foreign international law claims would risk a similar sort of blowback, exposing and highlighting the routine CAT violations of foreign states. I am not just referring to European complicity in CIA renditions. Putting aside the European countries and a handful of other countries, virtually every state in the world engages in systematic torture of political opponents, suspected criminals, insurgents, and many others. Yet the legal sanctions being imposed on Russia, China, Indonesia, Egypt, and India are zilch. These facts strongly suggest that states do not regard routine CAT violations by other states, to say nothing of section 7 violations, as sufficiently important to warrant the diplomatic resources that would be necessary to remedy them. For this reason, if Obama has strong domestic political reasons for refraining from prosecuting Bush administration waterboarders, international law will not change his mind.
In a later post, I will discuss the possibility that foreign states will prosecute former Bush administration officials who travel abroad.
An amusing short film by Evan Coyne Maloney on Charles Rangel's various creative accounting techniques. I knew about the tax issues but hadn't heard about the 4 rent-stabilized apartments in NYC. Some pretty funny bits, especially the snarky email requesting an interview.
The Washington Times notes today that many of the recipients of federal bailout funds are also major political donors:
Many of the large American companies that received billions of taxpayer bailout dollars by pleading that they didn't have enough money to lend to customers were, at the same time, spending millions of dollars dispatching lobbyists to influence the federal government.
A Washington Times review of lobbying disclosure reports found that 18 of the top 20 recipients of federal bailout money spent a combined $12.2 million lobbying the White House, the Treasury Department, Congress and federal agencies during the last quarter of 2008.
For instance, the government bought $3.4 billion in American Express Co. stock on Jan. 9 as part of an aid package. In the last quarter of 2008, the company spent more than $1 million on federal lobbying.
The print version of the story also included a chart that listed all of the lobbying expenditures by TARP recipients, but I don't see that chart in the on-line story. General Motors spent about $6 million in lobbying funds over the last two quarters of 2008. Although that seems like a lot of money, it is a drop in bucket compared to the payback that they have received.
BB&T were notable (as is often the case) on the chart because they made no lobbying expenditures (and my impression from what I've read is that they apparently were a bank that was strong-armed into taking TARP funds even though they didn't want them).
Meanwhile, the President of Merrill Lynch has been fired from his position at Bank of America as it has been reported that he accelerated "year-end" executive bonuses to get them paid out before the B of A merger became final--and subsequent request for government TARP funds. He also spent $1.2 million to redecorate his office last year. It really does make me wonder sometimes how these guys can sleep at night.
Once the pork-barrel stimulus plan is finalized I expect we'll see a whole new interesting chart on the links between political contributions and stimulus expenditures.
[I warned you I could be shameless about promoting this book of mine . . .]
Maybe everyone already knows this, but it was news to me: the price that Amazon charges for individual books fluctuates (rather widely) from day-to-day. For instance, (and I assume this is generally the case), I've noticed that my book, which lists for $27.95, has been priced as low as $18.45, and as high as $22.75. That's a pretty big swing, percentage-wise.
There are a couple of interesting things about this. It's a very risky strategy, it seems to me. Having the ability to instantly recalculate the price charged for goods can be very efficient, of course, in allowing a merchant to respond to fluctuating changes in demand and fluctuating price points. On the other hand, it is a strategy that can only work well when it's not widely known that it is taking place. It's the opposite, if you will, of those "price guarantees" that many merchants offer -- consumers hate feeling like they've overpaid for goods (even if the dollar amount is relatively small, nobody likes the feeling of having been "stiffed"), and if they are reassured ex ante that they are protected against that risk they will be more likely to part with their money. Conversely, the knowledge that the price might drop at any moment gives them the incentive to defer their purchase -- perhaps indefinitely.
Have I blown their cover? Or was this in the category of common-knowledge factoids that somehow I had just missed picking up?
[And please note -- I am not unaware of the cruel irony that, if I'm right that this isn't widely known, this posting itself might have the perverse effect of reducing everyone's incentive to buy my book by making it more widely known (and thereby giving all you potential purchasers the incentive to defer your purchase . . .). Probably not the greatest marketing strategy, for me -- but chalk this one up to my naive Jeffersonian belief that, in the final analysis, more information is always better than less. Plus, what's a few bucks among friends?]
Related Posts (on one page):
- Obscenity Conviction for Adult-to-Adult Noncommercial E-mail About (Fantasy) Sex With Children:
- And Speaking of My Book:
- Jefferson's Moose Sighting, Washington DC:
- Jefferson's Moose:
- Jefferson and Free Speech:
- Update on Obscenity Conviction:
- More on Obscenity Conviction:
- Obscenity Conviction for Adult-to-Adult E-mail About Sex With Children:
- Buy My Book!!
A reminder to all our Washington DC-and-environs VCers: A week from this coming Wednesday (Feb. 4th) I'm going to be talking at a Cato Institute Book Forum about my book, In Search of Jefferson's Moose: Notes on the State of Cyberspace."It should be an interesting event: Cato has rounded up two outstanding commenters -- Jeff Rosen, whom I'm sure most of you are familiar with from his work on legal subjects in The New Republic and The NY Times and elsewhere (and who has also written widely and well on cyberspace-related issues), and Clive Crook, a Senior Editor at the Atlantic and Washington columnist for the Financial Times (whose work you may not be familiar with, but he's a very sharp guy with a very interesting perspective on US politics and history).
I'm genuinely looking forward to hearing what they have to say. One thing about my book: it's a hard book to talk about to an audience of people most of whom (as I have to assume) haven't (yet!) read the book. The book's about a way of thinking about the Net -- a Jeffersonian way of thinking -- and it doesn't so much try to persuade the reader to engage in that way of thinking as it just plunges in and begins starts thinking about problems that way. If I could explain it in fewer than 200 pages, I would have done so - but I can't. That's why I had to write a book, rather than a blog posting or a law review article, about it. So, knowing that Jeff and Clive (both of whom have read the book) should ensure some kind of push-back on the ideas in the book, sufficient at least to generate some interesting discussion.
You can sign up for the event here (there's also going to be a live webcast available on that page on the day of the event). [Cato events are free, but require pre-registration). Come if you can (and introduce yourself - it's always nice to put faces to names for the people one only knows on the Net).
[And in the buzz-generating department, there's an essay over on Concurring Opinions (in their "Bright Ideas" series) about how I came up with and use the moose metaphor in the book; and Adam Thierer's got a review over at the Technology Liberation Front]
Related Posts (on one page):
- Obscenity Conviction for Adult-to-Adult Noncommercial E-mail About (Fantasy) Sex With Children:
- And Speaking of My Book:
- Jefferson's Moose Sighting, Washington DC:
- Jefferson's Moose:
- Jefferson and Free Speech:
- Update on Obscenity Conviction:
- More on Obscenity Conviction:
- Obscenity Conviction for Adult-to-Adult E-mail About Sex With Children:
- Buy My Book!!
Thursday, January 22, 2009
UPDATE: Here's my favorite comment on the article from the TNR thread:
As a lawyer who went to a state law school but practices with lawyers from both Harvard and Yale, I can say that graduates of both law schools have their heads up their asses, but Harvard lawyers less so.
Investment Guru Meredith Whitney has an article arguing that the banks need to sell off their assets:
America’s banks need to hold a yard sale
A clear lesson learnt from this credit crisis has been to sell and sell early. However, it appears as if US banks are setting out to make some of the same mistakes of the past 18 months all over again. In many instances, those mistakes determined who survived and who did not.
Throughout 2007 and 2008, when I asked managements why they were not more aggressive in disposing of assets, the common answer I received was that they believed current prices were too distressed and did not reflect the true underlying value. Unfortunately, the longer they waited, the less these assets were in fact worth. Such a strategy cost Merrill Lynch and Citigroup more than half of their per share capital. In the case of Lehman Brothers and Bear Stearns, capital all but vaporised. These are just some examples but in reality this applies to too many financial institutions.
Throughout 2008, hundreds of billions of dollars were raised to recapitalise US financial institutions, but this money simply went to plug holes created by holding on to assets with declining values. Until the fourth quarter, monies were raised from willing investors. However, beginning in the fourth quarter with troubled asset relief programme capital created to recapitalise these institutions, US taxpayers became the default investors.
Now, when the average taxpayer finds him or herself overextended, he or she is forced to backtrack and, in situations of duress, sell stuff (otherwise known as a yard sale). In these cases, selling a set of snow skis for $15 or a prized record collection for $10 is not desirable but is necessary. Why should the US taxpayer be forced to fund behaviour that he or she would never have the luxury of indulging in?
Citigroup provides a prime illustration to support this argument. Last Friday, Vikram Pandit, Citigroup’s chief executive, stated: “We are not in a rush to sell assets.” This comes from a company that has incurred more than $51bn (€39bn, £36bn) in writedowns and has called upon more than $45bn in Tarp money from the taxpayer. At a minimum, this seems like a company currently operating under a different rule book from that used by taxpayers. . . .
While it is never pleasant to sell one’s “crown jewels”, the strain of this credit crisis and the overextension of many bank balance sheets will require that they sell what they can and perhaps not what they would like. After all, that is what the average taxpayer would be forced to do.
I think that the US government should have a yard sale too, starting a multi-decade process of selling off public land, perhaps selling a tenth or a hundredth of a percent of holdings every year for a century.
After all, the federal government owns over half of five Western states and over 40% of nine states:
New Mexico 41.8%
It’s time for America to start an annual yard sale of stuff for which the government has little use. This has the ancillary positive effect of reducing excessive government power over its citizens and resources. Does the government really need to own 45% of the state of California?
Tomorrow I will be participating in the Santa Clara Law Review symposium on "Big Business and the Roberts Court: Explaining the Court's Receptiveness to Business Interests." Jeffrey Rosen, whose NYT magazine article "Supreme Court, Inc." no doubt helped inspire the conference, will deliver the keynote address tomorrow afternoon. (We discussed Rosen's article on the VC here.) Additional speakers include litigators and academics including Tracey George (Vanderbilt), Pam Karlan (Stanford), and Vikram Amar (UC Davis), among others.
In my remarks I will raise questions about what it means to say that the Roberts Court is substantively "pro-business," and take a closer look at the various environmental cases decided by the Roberts Court. If the Court is meaningfully pro-business, one might expect that the Court would be hostile to environmental regulation or at least sympathetic to business challenges to regulatory measures. Yet no such tendency is visible in the environmental decisions rendered by the Roberts Court thus far. If there is evidence that the Roberts Court is "pro-business," the evidence must be found elsewhere.
I addressed the broader claim that the Roberts Court is pro-business in Part III of my response to Erwin Chemerinsky's article on the first three years of the Roberts Court. Chemerinsky argued that the Roberts Court has shown itself to be particularly pro-business, and here is a portion of my response.
Dean Chemerinsky is likely correct that, in important respects, the Roberts Court could be seen as “pro-business.” But this is not because the Court has been particularly aggressive in striking down government regulation or erecting constitutional barriers to economic regulation. This is no pre-New Deal Court. Nor is the Court’s apparent solicitude for business concerns particularly rigid or ideological. To the contrary, the results in most business law cases are quite lopsided, and rarely the result of an ideological division on the Court. In this area, 5-4 cases are the exception, not the rule. . . .I look forward to tomorrow's conference and (time-permitting) hope to blog some highlights.
Business-related cases appear to occupy a major share of the Roberts Court’s shrunken docket – over one-third of the cases accepted and argued in each of the past three terms. It also appears that business advocates have had a relatively successful run of late. In OT 2006, for example, the litigation arm of the U.S. Chamber of Commerce filed briefs in fifteen cases, winning thirteen. This may be evidence that the business community has tremendous influence on the Court. Or it may indicate that its attorneys are particularly good at picking winners and marshaling the organization’s resources for those cases in which it can have the greatest impact.
Some call the Court “pro-business” because there is no crusading liberal or “progressive” justice on the Court. There is no justice ready to follow William O. Douglas’ counsel to “bend the law in favor of the environment and against the corporations.” But this, in itself, does not make the Court pro-business, particularly as there are no justices on the Court ready to do the opposite. Rather, most justices appear to approach the majority of business law cases as legal questions deserving of careful legal analysis and resolution in accordance with the dictates of law. With the exception of the punitive damages cases, the Court’s business docket focuses on statutory matters in which Congress retains the upper hand. Most cases require the Court to interpret or apply and enforce legislative accommodations, and leave Congress ample room to correct course. . . .
To the extent the Roberts Court is pro-business, it is so not because it has embraced an aggressive agenda to impose constitutional constraints on the government’s power to regulate economic activity or to rewrite the law to favor business interests. . . . Rather, the Roberts Court can be called pro-business insofar as it is sympathetic to some basic business oriented legal claims, reads statutes narrowly, resists finding implied causes of action, has adopted a skeptical view of antitrust complaints, and does not place its finger on the scales to assist non-business litigants.
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My colleague Johnny Rex Buckles has just posted the following paper on SSRN: Do Law Schools Forfeit Federal Income Tax Exemption When They Deny Military Recruiters Full Access to Career Services Programs? The Hypothetical Case of Yale University v. Commissioner. Here's the abstract:
Most United States law schools prohibit prospective employers who discriminate against students on any of several grounds, including sexual orientation, from utilizing the schools' student recruitment programs conducted by their career services offices. Because homosexuals who disclose their sexual orientation may not serve in the United States armed forces, some law schools at times have limited the channels through which military recruiters may interview students.
In response to the application of these anti-discrimination policies to military recruiters, Congress enacted the Solomon Amendment. The Solomon Amendment eliminates certain federal funding otherwise available to an institution of higher education if it denies military recruiters the same access to its students and campus that other recruiting employers receive.
Although the United States Supreme Court has recently upheld the constitutionality of the Solomon Amendment, another legal issue - one that existing legal scholarship has never considered - remains outstanding. The issue is whether private law schools that have denied military recruiters full access to student recruitment programs have forfeited their federal income tax exemption under section 501(c)(3) of the Internal Revenue Code under the public policy doctrine announced in Bob Jones University v. United States.
This article rigorously analyzes this provocative issue by positing a hypothetical Supreme Court case, Yale University v. Commissioner, in which four opinions written by fictional Supreme Court Justices determine the tax-exempt status of several private, free-standing law schools or their affiliated universities. This format not only facilitates an analysis of the nuances of the public policy doctrine, but also exposes and illustrates the vagaries of the doctrine.
Building on Reforming the Public Policy Doctrine, 53 U. Kan. L. Rev. 397 (2005), this article concludes that the hypothetical case of Yale University v. Commissioner demonstrates that the public policy doctrine should be reformed.
Johnny is more positive about the prospects for salvaging the Bob Jones doctrine than I am, but this is nonetheless a fun and intriguing read.
Band Name Map, a sort of graphic taxonomy, starting with Death, Deadly Things, Religion, Animals, and Badass Misspellings, and working outwards from there. I just think people should pronounce Mötley Crüe the way the umlauts indicate (since they're obviously not just vowel-separating diaereses). Thanks to GeekPress for the pointer.
. . . In a New York Times op-ed today, Pinker speculates that Chief Justice Roberts’s “habit of grammatical niggling” explains his flubbing of the presidential oath. In particular, Pinker supposes that Roberts embraces the “split-verb myth”, which would bar insertion of an adverb between an auxiliary verb (e.g., “will”) and the main verb (e.g., “execute”).
I agree with Pinker that the split-verb myth (as well as its subsidiary rule against split infinitives) is unsound. But Pinker offers no evidence that Roberts in fact embraces the split-verb myth. And a quick review of one of his written opinions—where any niggling is more likely to manifest itself—indicates that Roberts doesn’t. In his Seattle School opinion, for example, Roberts writes of “an injury that the members of Parents Involved can validly claim on behalf of their children” and of “a heavy burden that Seattle has clearly not met” (as well as lots of instances where “are” and other variants of “to be” are functioning as auxiliaries). Indeed, in summarizing the argument of one party, Roberts writes, “Parents Involved members will only be affected if their children seek to enroll in a Seattle public high school”, when the meaning would be clearer in this instance if he had not split the verb: e.g., “Parents Involved members will be affected only if their children seek to enroll in a Seattle public high school.”
Indeed, Pinker’s only supposed evidence that Roberts, a graceful writer, has a general “habit of grammatical niggling” is Roberts’s presumably inadvertent misquote of a Bob Dylan line. . . .
Here is the draft executive order for shutting down Guantanamo. Note this language (emphasis added):
Sec. 3. Closure of Detention Facilities at Guantánamo. The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than one year from the date of this order. If any individuals covered by this order remain in detention at Guantánamo at the time of closure of those detention facilities, they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States.
“Transferred to another United States detention facility”—including an American military facility, an American military facility located in another country?
There is this:
4(c)(5) Consideration of Issues Relating to Transfer to United States. The Review shall identify and consider legal, logistical, and security issues relating to the potential transfer of individuals currently detained at Guantánamo to facilities within the United States and the review participants shall work with Congress on any legislation that may be appropriate.
But that hardly answers the question, indeed, suggests that the answer may be “yes.”
In my last post, I described Durbin’s bill for reforming Chapter 13. Luigi Zingales, a professor at the business school of the University of Chicago, has made the following proposal, which can be treated as an alternative to Durbin’s approach.
Congress should pass a law that makes a re-contracting option available to all homeowners living in a zip code where house prices dropped by more than 20% since the time they bought their property. Why? Because there is no reason to give a break to inhabitants of Charlotte, North Carolina, where house prices have risen 4% in the last two years.
How do we implement this? Thanks to two brilliant economists, Chip Case and Robert Shiller, we have reliable measures of house price changes at the zip code level. Thus, by using this real estate index, the re-contracting option will reduce the face value of the mortgage (and the corresponding interest payments) by the same percentage by which house prices have declined since the homeowner bought (or refinanced) his property….
In exchange, however, the mortgage holder will receive some of the equity value of the house at the time it is sold. Until then, the homeowners will behave as if they own 100% of it. It is only at the time of sale that 50% of the difference between the selling price and the new value of the mortgage will be paid back to the mortgage holder.
Zingales’s plan would help mitigate the three difficulties I identified before.
First, the entire Chapter 13 bankruptcy process, with its costs and delays, would be avoided. Rather than renegotiating the mortgage, in a process that involves the debtor, the judge, the loan servicer, and perhaps others, the mortgage is simply revised “automatically”—though presumably some public official would need to be involved.
Second, the use of housing prices by zip code as a proxy for distress reduces the risk of opportunism by debtors, although it does not eliminate it completely. It nicely captures the problem, which is one of contagion. The implicit assumption is that loss of value of a house as a result of foreclosure is likely to be greater if neighboring houses are also being foreclosed than if the neighborhood is stable.
Third, giving the mortgage holder(s) equity in the house should reduce the incentive of debtors to use the plan opportunistically, since they will only enjoy part of the upside if housing prices recover; therefore, the plan should have less of a detrimental effect on the cost of credit going forward.
This debt-for-equity swap is the most interesting element of Zingales’s plan. In Chapter 11 reorganizations, debt-for-equity is standard operating procedure: equity is wiped out and debtors’ claims are converted into equity interests. Zingales implicitly proposes to transfer this approach to Chapter 13.
Unfortunately, there are some serious grounds for skepticism. Zingales points out that it is not unknown for third parties to have equity interests in houses—universities sometimes provide housing support to faculty in this way (I suspect, however, for tax reasons). But if it were such a great idea, it would be a lot more common.
Consider how this might work. Suppose you are a first-time home buyer, and you would like to buy a $200,000 house. Your bank offers you a $160,000 mortgage, so you must come up with $40,000 as your down payment, which will be your equity. Suppose you say to your neighbor, or some other financial institution, “if you give me $20,000, I will give you a 50% equity stake in my house.” Any takers? An equity interest in someone else’s house is surely a bad investment. You have no idea what that person is doing with his house and you have no control over it even if you do (unless you demand voting rights …). Meanwhile, the other person has distorted incentives: at the margin, he’ll put money in the house that improves its idiosyncratic value for him rather than money that improves its resale value. These equity interests would not be very liquid, either.
So I can imagine very easily mortgage holders saying “no thanks” to the equity interest (indeed, the law would need to be changed to allow banks to accept an equity interest, and think what those interests would do to their balance sheets!). And if you think it is hard to value a MBS now, imagine what it would be like if each security gives you a right not only to a slice of principal and interest but also to some impossible-to-determine upside. (They will be worth more, however, under Zingales’ plan.) I suspect that government-supplied mortgage assistance would be more straightforward and efficient. The Chapter 11 setting is different; there, trade creditors who unhappily end up with some equity shares can sell them immediately to people who are in a position to monitor the firm.
The plan would also probably be hard to swallow, politically. Suppose I have a mortgage of $380,000 and a house worth $280,000 and that houses in my zip code declined by 50 percent. Hence, my new mortgage would be $190,000. If I immediately sold my house, I would get to keep half of the equity, that is, one half of $90,000 or $45,000. The mortgage holder would receive $190,000+$45,000 = $235,000, which is $145,000 less than the original mortgage. To be sure, that is more than the post-foreclosure value of the house ($140,000). The whole idea is to avoid foreclosure with the result that a surplus is created, which is divided between the debtor and creditor—the essence of renegotiation. But I think it would be hard for people to stomach homeowners, especially “flippers,” walking away with a big profit.
Still, the idea is clever, and perhaps some variant would be more plausible. What do readers think? Can it be improved?
The trial of Saddam Hussein was mired in controversy from start to finish. Opponents of the Iraq invasion attacked it from the outset, and many international law experts questioned whether a domestic tribunal, such as that created to try Hussein and other members of his regime, was an appropriate means to prosecute a head of state for his alleged crimes against humanity. Many would have preferred a truly international tribunal, such as the International Criminal Court or a tribunal like that which had been used for the trial of Slobodan Milosevic. Others raised concerns about the tribunal's occasionally chaotic proceedings and its authorization of the death penalty, in accordance with Iraqi law. Such criticisms notwithstanding, it is likely the tribunal will be recognized as a landmark in international criminal law, and not simply because it successfully tried and convicted Hussein for some of the atrocities committed by his regime.
The story of the Hussein trial, from the creation of the tribunal through Hussein's conviction and execution, is told in Enemy of the State: The Trial and Execution of Saddam Hussein by Vanderbilt law school's Michael Newton and my colleague Michael Scharf. Both participated in the development of the tribunal. As a consequence, the book offers a detailed, inside account of the court's creation and its proceedings, including gavel-to-gavel coverage of the trial itself and legal analysis of its decision. The book offers many insights and revelations omitted by contemporary media accounts, and places the tribunal in its broader international law context.
While some disparaged the decision to try Hussein before a domestic tribunal, as opposed to an international tribunal or the International Criminal Court, the book convinced me that such criticisms were misguided. Conducting the trial in an Iraqi court, and relying upon Iraqi law, helped legitimize the trial within Iraq and could serve to reinforce rule-of-law values in the country going forward. There is an inevitable hint of "victor's justice" in any trial of a former head of state, but relying upon a domestic court reduced the taint. The ICC was also not an option because the crimes for which Hussein was tried occurred before the ICC's creation in 2002, depriving that court of jurisdiction, and the tribunal took account of international law principles in its work.
The trial itself was hardly perfect — at times it was quite chaotic, largely due to the defense team's efforts to disrupt the proceedings — but I think it will become a landmark in international criminal law. I suspect it will influence future war crimes tribunals as well. In particular, the tribunal may encourage greater reliance upon domestic war crimes tribunals in lieu of international courts. At present, Michael Scharf is working with the government of Uganda to create a war crimes tribunal for the trial of Joseph Kony and other leaders of the LRA for their atrocities. Because the ICC was explicitly created as a court of law resort, it only makes sense for countries like Uganda to try and conduct domestic trials first. The Iraqi tribunal provides a model for how that can be done, as well as some lessons for what mistakes to avoid. As such, the precedents set by the tribunal are likely to be among the more important legal legacies of the Iraq war.
Harvard psychologist Steven Pinker, who is the chairman of the usage panel of The American Heritage Dictionary, quotes me in an op-ed in today's New York Times. His topic isplit verbs, which I discussed below.
Oaf of Office
On Tuesday, Chief Justice John Roberts joined the Flubber Hall of Fame when he administered the presidential oath of office apparently without notes. Instead of having Barack Obama “solemnly swear that I will faithfully execute the office of president of the United States,” Chief Justice Roberts had him “solemnly swear that I will execute the office of president to the United States faithfully.” When Mr. Obama paused after “execute,” the chief justice prompted him to continue with “faithfully the office of president of the United States.” . . .
How could a famous stickler for grammar have bungled that 35-word passage, among the best-known words in the Constitution? Conspiracy theorists and connoisseurs of Freudian slips have surmised that it was unconscious retaliation for Senator Obama’s vote against the chief justice’s confirmation in 2005. But a simpler explanation is that the wayward adverb in the passage is blowback from Chief Justice Roberts’s habit of grammatical niggling.
Language pedants hew to an oral tradition of shibboleths that have no basis in logic or style, that have been defied by great writers for centuries, and that have been disavowed by every thoughtful usage manual. Nonetheless, they refuse to go away, perpetuated by the Gotcha! Gang and meekly obeyed by insecure writers. . . .
Though the ungrammaticality of split verbs is an urban legend, it found its way into The Texas Law Review Manual on Style, which is the arbiter of usage for many law review journals. James Lindgren, a critic of the manual, has found that many lawyers have “internalized the bogus rule so that they actually believe that a split verb should be avoided,” adding, “The Invasion of the Body Snatchers has succeeded so well that many can no longer distinguish alien speech from native speech.”
Note that the Texas Manual had softened it rule by 1990, which I noted in my review years ago.
Related Posts (on one page):
- Whelan Responds to Pinker:
- Harvard Psychologist Pinker on Split Verbs.
- Miss Thistlebottom Strikes Again: Fear of the Bogus Rule Against “Split Verbs” Mars Oath of Office.
- Obama Takes Oath Again:
Treasury nominee Timothy Geithner had several tax issues that are mentioned in this matter of fact Senate Report.
Among Tim Geithner's chief tax problems are:
Geithner prepared his own return in 2000, 2001, 2002, and 2005. Wednesday Geithner disclosed that he used TurboTax.
1. Geithner’s failure to pay self-employment taxes in the years 2001-2004 on his IMF income.
2. Geithner’s taking a dependent care credit for the costs of overnight camp in 2001, 2004, and 2005.
I wondered how plausible it was that TurboTax wouldn’t prompt Geithner adequately on these issues (there was also a suggestion that he may have been misled by improper advice from a tax preparer, despite the repeated information released from the IMF on his need to pay self-employment taxes).
To explore these issues, I installed both the 2004 and 2005 TurboTax on my new Dell Latitude E4200 (2.25 lb. notebook).
SELF EMPLOYMENT TAXES.
If Geithner’s IMF income were entered from a 1099-MISC (which it wasn’t), the self-employment tax would have been automatically added; he would have had to override it manually to avoid the SE tax.
But that is not how the IMF reported Geithner’s income. They used a W-2, with “NONE” or blanks in all boxes except wages. In both the 2004 and 2005 TurboTax program, if you enter income only from a W-2, it does NOT add that income to schedule C and it does NOT compute a self-employment tax.
So, while technically TurboTax did not make a “mistake,” TurboTax would have neither computed the SE tax automatically, nor would it have prompted Geithner appropriately that he needed to pay that SE tax. In other words, any knowledge of Geithner’s SE liability would not have come from the usual TurboTax guided interview, but rather from the IMF.
OVERNIGHT SUMMER CAMP.
Geithner took a dependent care credit for the costs of overnight camp in 2001, 2004, and 2005. If one takes the normal interview process in TurboTax, it just prompts you for the amount. If you are “Not sure if your expenses qualify,” you can click “Guide Me.” The steps involved in that sub-interview do not ask about camp, but rather covers information about the child and the parents.
Screenshot from 2005 TurboTax
(click once to open, and then again to read)
If, however, you click the button “Learn more about this topic,” then you see a small number of questions and answers, the last of which clearly states that overnight camps do not qualify for the credit. Accordingly, if Geithner were curious about whether these camp expenses qualified, one of the two links he might have clicked would have given him an answer.
Screenshot from 2005 TurboTax
(click once to open, and then again to read)
Again, while TurboTax did not make a “mistake,” TurboTax would not have prompted Geithner specifically about the overnight summer camp. This time, however, the link “Learn more about this topic” would have supplied the correct answer. But if he didn’t click on this link, TurboTax would not have informed Geithner that overnight camp didn’t qualify for the child care credit.
Contrary to the comments of some on the web (via Instapundit), neither of the two major errors in Geithner’s returns that I explored would have been covered by interactive prompts in the 2004 or 2005 versions of TurboTax.
Other tax issues, which I am not commenting on, include these:
1. Geithner’s failing to refile in 2006 and pay back self-employment taxes from 2001 and 2002 after he was audited on that issue for the 2003 and 2004 tax years. He waited until he was nominated to head up Treasury to pay these taxes that the IRS could no longer demand because of the statute of limitations.
2. Geithner’s failing to refile and pay back tax credits for overnight camp in 2001, 2004, and 2005, when he was informed in 2007 (or 2006) by an accountant that his credit for overnight camp was not allowed. Apparently, in 2007 the 2004 and 2005 returns were not quieted by the statute of limitations, though the 2004 return had been previously audited by the IRS.
3. Geithner’s failing to report and pay a 10% penalty on an early withdrawal from a government pension.
Wednesday, January 21, 2009
In the President's Oath of Office, the Constitution used the normal placement for an adverb – “I . . . do SOLEMNLY swear” and “I will FAITHFULLY execute.”
"With a compound verb--that is, one made with an auxiliary and a main verb--the adverb comes between auxiliary and main verb . . . . ”
Because of the bogus rule against split verbs, many modern writers move the adverb from its idiomatic place in the midst of a multiple word verb to earlier or later in the sentence.
That is what Chief Justice Roberts unconsciously did when he moved the word FAITHFULLY to later in President Obama’s oath of office.
OBAMA: I, Barack Hussein Obama, do solemnly swear...
ROBERTS: ... that I will execute the office of president to the United States faithfully...
OBAMA: ... that I will execute...
ROBERTS: ... faithfully the office of president of the United States...
OBAMA: ... the office of president of the United States faithfully...
I discussed split verbs in Fear of Writing, 78 Cal. L. Rev. 1677 (1990), my playful review of the sixth edition of the Texas Law Review Manual of Style:
Unquestionably, the most dangerous advice in the old fifth edition of the Texas Manual was its disapproval of split verbs: “Avoid splitting verb phrases with adverbs . . . . ” In other words, don't place an adverb between the parts of a compound verb. Yet Fowler and Follett (both praised in the Foreword to the Texas Manual) argued that the normal place for an adverb is in the midst of a multiple word verb. Thus the fifth edition of the Texas Manual seemed to have gotten the rule backwards. It prohibited what the experts recommend.
This nonsensical rule against split verbs has caused entire volumes of law reviews to be filled with page after page in which adverbs have been squeezed out of their normal place. Most law professors who have dealt with law reviews recently seem either to have had disputes about the placement of adverbs or, worse, to have adopted the Texas approach, the approach of people who write as if English were a second language. It's frightening to think that the ability of a generation of law professors to recognize their native language has been damaged by one silly book. Before picking up the Texas Manual in 1987, I had noticed that the ability of the law reviews to place adverbs correctly had deteriorated, but I hadn't known the reason.
What was particularly ridiculous about the Texas Manual's rule was that the Manual itself repeatedly split verbs in violation of its own rule, a fact that somehow eluded law review editors policing my prose. The only discursive prose in the entire Manual, a four-paragraph Foreword by Charles Alan Wright, contained six split verbs, for example, “their thought can best be expressed.” The Foreword isn't the only place where the fifth edition violated its own rule. Split verbs were common in its text. I found fifteen violations in just four pages, for example, “what has already been said.” The new sixth edition of the Texas Manual has greatly softened its rule against split verbs. It now states:
Splitting verb phrases with adverbs is permissible if the adverb modifies the verb and not some other part of the sentence.
Note that the Texas Manual doesn't say that split verbs are normal or preferable, language it uses to recommend other constructions. Rather, it says that split verbs are permissible. I get the impression that the authors are consciously lowering their standards by permitting but not recommending split verbs. It would have been better if they had admitted their mistake, published an errata sheet for the fifth edition, and begged the academy to forgive them. But the new rule leaves the status of the old rule in doubt. Are split verbs still suspicious constructions in Texas? I think so. The change from the strict old rule is substantial, but given the fifth edition's culpability for the old rule, some effort should have been made to clarify the Texas Manual's current position. Are split verbs preferable or just permissible?
A much better approach would have been to explain the normal placement of adverbs, as Fowler and Follett do. Follett offers a clear statement of the usual practice for the placement of adverbs. His third rule is: “With a compound verb--that is, one made with an auxiliary and a main verb--the adverb comes between auxiliary and main verb . . . . ” Follett goes on to lament the loss of “instinct about the rhythms of the mother tongue.”
You can perhaps begin to see the superiority of the other book under review here, Webster's Dictionary of English Usage, from Webster's discussion of the folklore of the split verb:
Copperud 1970, 1980 talks about an erroneous idea widespread among newspaper journalists that adverbs should not separate auxiliaries from their main verbs (as in “you can easily see” or “they must be heartily congratulated”). This bugaboo, commentators agree, seems to have sprung from fear of the dread split infinitive. Copperud cites five commentators on the subject, all of whom see no harm in placing an adverb between the parts of a verb, and one of whom (Fowler 1965) prescribes such placement. Fowler (under position of adverbs) has a long and detailed discussion, complete with numerous examples in which the adverb has been improperly (to his mind) shifted so as to avoid the split. Since dividing the auxiliary from the verb with an adverb has been approved at least since Lindley Murray 1795, it would seem that Fowler is justified in calling the avoidance a superstition. [FN48]
There it is. The fear of split verbs is a superstition borrowed from some misinformed newspaper journalists. Respected commentators since 1795 are unanimous in finding it proper.
My reference to Miss Thistlebottom is, as I explained in 1990, an image coined by Theodore Bernstein:
The phenomenon that gives rise to such nonsense as the Texas Manual has been well understood by grammarians. H. W. Fowler was content to call such views “fetishes” or “superstitions.” Theodore Bernstein gave them their most colorful term, Miss Thistlebottom's hobgoblins. For Bernstein, the disapproving schoolmarm, Miss Thistlebottom, represented a composite of the type of person who cared very much about good usage, but didn't know it when she saw it. She had a list of supposed infelicities (probably called “pet peeves”) that had been inherited mostly from an oral tradition.
As I mentioned in an earlier post, a number of bills are floating around Congress that would revise Chapter 13 so as to ease the burden on homeowners. Currently, under Chapter 13, if you own a house with a $250,000 mortgage but only a $200,000 market price, you can’t escape the entire mortgage. Either you lose your house or you emerge from Chapter 13 with (roughly) the same $250,000 secured debt. Durbin’s bill would allow the bankruptcy judge to strip down the mortgage debt to the value of the house. The debtor would be permitted to keep the house as long he accepts a $200,000 mortgage and has an income adequate to pay it off.
Hard-hearted people like me might be tempted to dismiss this bill as a redistribution of wealth from creditors to debtors, one that will just increase the cost of credit in the future, while rewarding irresponsible people to boot. But that would be a mistake. The Durbin bill, or some variant of it, makes good sense.
To see why, one must bear in mind that these are not normal times, and that there are good reasons for allowing homeowners to escape a portion of their debt. Indeed, in the good olde days, this would hardly raise an eyebrow. Suppose that a person borrows $250,000 from a bank, buys a house worth $300,000, and then temporarily loses his job or even experiences a permanent reduction in income. Meanwhile, the value of the house has plummeted to $150,000. The debtor can’t make his mortgage payments, at least for the time being. Should the bank foreclose? No! Foreclosure typically reduces the value of a house by as much as 50 percent, and can reduce the value of neighboring houses as well. If the bank forecloses, it will hold a piece of property worth $75,000, and it is unlikely that it will be able to recover the lost $175,000 from the debtor (impossible in some states). The bank and debtor are better off if they renegotiate the mortgage—say, a new $200,000 mortgage that the debtor can afford on a lower income. Of course, banks had to be careful not to renegotiate too quickly or easily, for then debtors would fake distress in order to obtain better terms. But renegotiation of mortgage loans has always been routine.
Until, that is, the rise of mortgage-backed securities. Now the debtor can only renegotiate with a loan servicer, which passes on the principal and interest payments to thousands of dispersed holders of MBS’s. In theory, the loan servicer has the contractual right to renegotiate loans on behalf of the investors, but it is hardly clear that the servicer has proper incentives to do so, and in any event investors have not been cooperative, perhaps because they do not trust servicers to act in their interests.
Durbin’s bill gives the debtor the option to enter bankruptcy and, in essence, force the investors to accept a renegotiated loan contract. It appears that the new mortgage would be the market value ($150,000, in my example) rather than the foreclosure value ($75,000). Whatever the case, the gains ought to be significant. A debtor who would walk away from a $250,000 mortgage on a $150,000 house may be willing to accept a $150,000 mortgage on the same house, particularly if (as is likely) he values the house more than the market does. That means fewer houses being foreclosed, and potentially an enormous amount of value being preserved.
The bill is far from perfect, however. For one thing, a revision of the law will have prospective effects, and it might raise the cost of credit (though it might not, if debtors are sufficiently risk averse). In addition, bankruptcy is costly and time-consuming, and there just aren’t enough bankruptcy judges for the millions of people who are on the verge of losing their homes. Finally, the forced renegotiation is incredibly crude. Many people will walk away even if allowed to reduce their mortgage to the market value of the house, and others will benefit from the change in the law who don’t need it—and this will raise the cost of credit without producing an offsetting benefit. In my next post, I will examine another approach that may reduce some of these costs.
(1) A retired British colonel, on the BBC no less, says that there has been "no time in the history of warfare when an army has made more efforts to reduce civilian casualties and the deaths of innocent people than the IDF" did in Gaza.
UPDATE: I hadn't noticed the typically "neutral" BBC headline at the beginning of the video: "Israel continues offensive despite UN resolution."
(2) I was going to do a post on the media "narrative" of the Gaza fighting, but I don't think I could do a better job than this post at the Huffington Post, of all places.
One thing to emphasize: during the Gaza fighting, I could tell you day by day approximately how many Palestinians had been killed, because the media so emphasized this point. I don't have a clue how many Afghans have been killed by NATO's actions in Afghanistan, or by the U.S. and its allies in Iraq. And in those cases, if the media did report casualty figures, they would never conflate the deaths of noncombatants with those of "the enemy." The media consistently reported that "___ Palestinians have so far been killed," as if the deaths of Hamas terrorists were just as regrettable as the death of a child who was in the wrong place at the wrong time.
(FWIW, Hamas claims that only 58 of its fighters were killed, and also claims, absurdly, that it killed dozens of Israeli soldiers. The IDF claims that 3/4 of those killed were "Hamas militants." One difficulty is that besides separating civilians from "militants," one has to separate combatant civilians and non-combatant civilians. A "civilian" who stores Hamas weapons in his house, or goes to the roof of a military target when the IAF warns in advance that they plan to bomb it, may be a "civilian" if he isn't officially a member of the Hamas armed forces, but he is not a "noncombatant.")
(3) Leading NGOs performed as usual, advocating not for human rights or international law, but for their own ideological agendas. As usual, NGO Monitor has the scoop.
Marc Garlasco of Human Rights Watch gave a revealing interview to Ha'aretz columnist Amira Hass (who, I'm sure not coincidentally, is the Israeli reporter least likely to ask him any hard questions). If you read the interview closely, you will notice that Garlasco was happy to pass on speculation, rumor, and innuendo about Israeli actions, but says that Hamas's use of civilians as human shields--which was well-documented prior to the recent fighting, and was documented by a variety of sources during the fighting--is not something he's willing to acknowledge without seeing it with his own eyes. "How," he adds, "can anyone trust the Israeli military?"
Sidenote: Oddly enough, Garlasco claims that the U.S. military sends HRW a list of all the bombs it uses in Afghanistan and Iraq, daily. If so, why? Since when does the U.S. reveal military secrets to outside third parties?
B stands for Bear.
When Bears are seen
Approaching in the distance,
Make up your mind at once between
Retreat and Armed Resistance
A Gentleman remained to fight --
With what result for him?
The Bear, with ill-concealed delight,
Devoured him, Limb by Limb.
Another Person turned and ran;
He ran extremely hard:
The Bear was faster than the Man,
And beat him by a yard.
Decisive action in the hour of need
Denotes the Hero, but does not succeed.
A recent glance at Alexander Hamilton's denunciation of John Adams leads me to revise the comments policy. The passage I have in mind is this:
This scrutiny [of some of Adams's writings] enhanced my esteem in the main for his [Adams's] moral qualifications, but lessened my respect for his intellectual endowments. I then adopted an opinion, which all my subsequent experience has confirmed, that he is a man of an imagination sublimated and eccentric; propitious neither to the regular display of sound judgment, nor to steady perseverance in a systematic plan of conduct; and I began to perceive what has been since too manifest, that to this defect are added the unfortunate foibles of a vanity without bounds, and a jealousy capable of discoloring every object.
Ah, they don't make insults like that any more, or at least enough of them. Hence my compromise: I continue to ask that "[c]omments ... be ... civil (and, especially, free of name-calling)." But if you absolutely must insult people, I want to set Hamilton's work as the bar you must clear for that privilege.
The American Bankruptcy Institute has a new "Bankruptcy Townhall" section on its website that collects material on bankruptcy issues of the day. Right now they are featuring a debate on bankruptcy v. bailout of the automobile makers.
More generally, I've found the ABI's website (abiworld.org) to be an excellent resource for bankruptcy news. Also, students who are interested in practicing bankruptcy law should know that they can join the ABI for a reduced rate. Check for info on the website or check with your school's bankruptcy professor for information.
Apparently the European Union is considering requiring Microsoft to remove IE from the versions of Windows that it sells in Europe. This despite the fact, as reported by the Competitive Enterprise Institute:
How would the average user even select a preferred browser in the first place without a pre-installed browser? While OEMs could always pre-install a browser, anyone who wanted to install (or reinstall) a browserless version of Windows from scratch would need to jump through hoops just to get online.
More to the point, Opera’s claim against Microsoft looks downright absurd given the reality of today’s increasingly competitive browser marketplace. Despite IE being bundled with Windows, Firefox has gained significant ground on IE in recent years. Four years ago, IE had 91% global market share, while Firefox hovered around 3.5%. Now, Firefox is almost at 21% market share, and IE recently dropped below 70%.
Firefox’s ascent did not happen because of a mass exodus of users from Windows to other operating systems. To be sure, Windows has faltered a bit as of late, but Firefox has gained the following of a massive number of Windows users who elected to download and install Firefox as a replacement for Internet Explorer. This illustrates that users are perfectly willing to pick their favorite application for a given task, even if that means downloading a third-party app on the Internet. Plenty of other programs, like VLC and Google Desktop, have taken off among Windows users even though these apps largely duplicate the functionality of bundled Windows components.
I just finally switched to Firefox a couple of weeks ago and wish I would've done it sooner. The only problem I seem to have is that sometimes pdf documents won't open correctly. I've tried a couple of things but none of them seem to work as a failsafe. If anyone has any advice, please let me know!
Here's the question: Is the circuit court holding A still binding law in the circuit? Or is it just dicta that is not binding under circuit court internal operating procedures? I get the feeling that I should know this, but off the top of my head I don't (and it's one of those research questions that's relatively hard to query in Westlaw). I'm figuring that some of our super-law-geek VC readers must know. . . .
That's what a Dutch appellate court seems to be saying, in ordering the prosecution of Dutch member of Parliament Geert Wilders. The press release doesn't go into detail about the statements involved, but it does say, "the Court of Appeal considers criminal prosecution obvious for the insult of Islamic worshippers because of the comparisons made by Wilders of the islam with the nazism," and expressly condemns as beyond the pale analogies between the Koran and Mein Kampf. Here's the entire statement:
On 21 January 2009 the Court of Appeal in Amsterdam ordered the criminal prosecution of the member of parliament Geert Wilders for the incitement to hatred and discrimination based on his statements in various media about moslims and their belief. In addition, the Court of Appeal considers criminal prosecution obvious for the insult of Islamic worshippers because of the comparisons made by Wilders of the islam with the nazism.
The Court of Appeal rendered judgment as a consequence of a number of complaints about the non-prosecution of Wilders for his statements in various media about moslims and their belief. The complainants did not agree with the decision of the public prosecution which decided not to give effect to their report against Wilders.
The public prosecution [I assume this refers to the prosecutors' office, whose decision not to prosecute the court is reversing -EV] is of the view, amongst others, that part of the statements of Wilders do not relate to a group of worshippers, but consists of criticism as regards the Islamic belief, as a result of which neither the self-esteem of this group of worshippers is affected nor is this group brought into discredit. Some statements of Wilders can be regarded as offending, but since these were made (outside the Dutch Second Chamber) as a contribution to a social debate there is no longer a ground for punishableness of those statements according to the public prosecution.
The Court of Appeal does not agree with this view of the public prosecution and the considerations which form the basis of this view.
The Court of Appeal has considered that the contested views of Wilders (also as shown in his movie Fitna) constitute a criminal offence according to Dutch law as seen in connection with each other, both because of their contents and the method of presentation. This method of presentation is characterized by biased, strongly generalizing phrasings with a radical meaning, ongoing reiteration and an increasing intensity, as a result of which hate is created. According to the Court of Appeal most statements are insulting as well since these statements substantially harm the religious esteem of the Islamic worshippers. According to the Court of Appeal Wilders has indeed insulted the Islamic worshippers themselves by affecting the symbols of the Islamic belief as well.
Secondly, the Court of Appeal has answered the question whether a possible criminal prosecution or conviction would be admissible according to the norms of the European Convention on Human Rights and the jurisprudence of the European Court based thereon, which considers the freedom of expression of paramount importance. The Court of Appeal has concluded that the initiation of a criminal prosecution and a possible conviction later on as well, provided that it is proportionate, does not necessarily conflict with the freedom of expression of Wilders, since statements which create hate and grief made by politicians, taken their special responsibility into consideration, are not permitted according to European standards either.
Thirdly, the Court of Appeal has answered the question whether criminal prosecution of Wilders because of his statements would be opportune in the Dutch situation (the question of opportunity). According to the Court of Appeal the instigation of hatred in a democratic society constitutes such a serious matter that a general interest is at stake in order to draw a clear boundary in the public debate.
As regards the insult of a group the Court of Appeal makes a distinction. In general the Court determines that the traditional Dutch culture of debating is based on tolerance of each others views to a large extent while Islamic immigrants may be expected to have consideration for the existing sentiments in the Netherlands as regards their belief, which is partly at odds with Dutch and European values and norms. As regards insulting statements the Court of Appeal prefers the political, public and other legal counter forces rather than the criminal law, as a result of which an active participation to the public debate, by moslims as well, is promoted.
However, the Court of Appeal makes an exception as regards insulting statements in which a connection with Nazism is made (for instance by comparing the Koran with “Mein Kampf”). The Court of Appeal considers this insulting to such a degree for a community of Islamic worshippers that a general interest is deemed to be present in order to prosecute Wilders because of this.
The Court of Appeal concludes that the way in which the public debate about controversial issues is held, such as the immigration and integration debate, does not fall within the ambit of the law in principle indeed, but the situation changes when fundamental boundaries are exceeded. Then criminal law does appear as well.
Otherwise, the Court of Appeal emphasizes that this is a provisional judgment in the sense that Wilders has not been convicted in this suit of complaint. The Court of Appeal has only judged whether there are sufficient indications -– at the level of a reasonable suspicion –- to start a criminal prosecution against Wilders. The penal judge who will ultimately render judgment in a public criminal trial will answer the question if there is ground for conviction, and if so, to which extent.
The movie Fitna, which appears to form part of the basis for the prosecution, seems to be available here. If readers can point me to the Wilders statements (preferably in English translation) that form the basis for the prosecution, I'd love to link to them as well — of course, not because I will necessary agree with them (I suppose I might agree with some but not with others, especially if they speak broadly about Islam generally), but because seeing them is necessary to evaluate the merits of the prosecution, and the degree to which the prosecution would threaten free discussion.
Thanks to Anne Jitta for the pointer.
UPDATE: The decision, in Dutch, is here (thanks again to Anne Jitta for that pointer as well). If anyone can point me to an English translation of the decision, I'd be much obliged.
For a perspective on Geert Wilders' thinking, see James Taranto's Wall Street Journal interview with Wilders.
Also, a comment by Dunstan suggests that in the Netherlands, examples of Godwin's Law actually lead to action by The Law. I suspect that Godwin does not approve.
In this week's National Journal poll of leading political bloggers, the Left gives Obama's inaugural speech an A-, and the right gives it a B-. I gave it a B, with the comment, "Excellent use of history, combined with solid patriotism for the 21st century. Some of his policy ideas, including the prominence of the global warming issue, bode ill for America's economic future."
Did the speech meet the public's expectations? From the Left, 86% said "yes." On the right, 46% thought so, and another 46% said "partially." My view: "Yes he did, yes he did! In delivering a prepared speech, Obama ranks at the very top, with Reagan and FDR."
Carolyn Lochhead has an interesting story in the San Francisco Chronicle on the flubbed oath at yesterday's inauguration:
The oath reads: "I do solemnly swear that I will faithfully execute the office of president of the United States and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
In giving the oath, Roberts misplaced the word "faithfully," at which point Obama paused quizzically. Roberts then corrected himself, but Obama repeated the words as Roberts initially said them.
A do-over "would take him 30 seconds, he can do it in private, it's not a big deal, and he ought to do it just to be safe," said Boston University constitutional scholar and Supreme Court watcher Jack Beermann. "It's an open question whether he's president until he takes the proper oath."
The courts would probably never hear a challenge, and some might argue that Obama automatically took office at noon because that's when President Bush left the office. But because the procedure is so explicitly prescribed in the Constitution, Beermann said if he were Obama's lawyer, he would recommend retaking it, just as two previous presidents, Calvin Coolidge and Chester Arthur, did under similar circumstances.
Related Posts (on one page):
- Should Obama Retake the Oath of Office?
- Inauguration Tidbits:
- The Significance of the Flubbed Oath:
- Both the Chief Justice and the President Flubbed the Oath:
- Inaugural Oratory:
Volokh Conspiracy Citations in the Westlaw JLR Database:Here's another year to add, based on running that same search today: 2008, 78 citations. Also, the total for 2007 ended up at 55, about 20% more than the 43 in the database in late January, so the 78 is likely to grow to near 100 when all the issues are done. (Obviously none of this is earth shattering — just kinda interesting for us legal academics.)
By year: 2004, 14 citations. 2005, 22 citations. 2006, 69 citations. 2007, 43 citations. Note that the high number of citations in 2006 resulted in part from the publication of papers from conferences about law blogs, and that the number of citations for 2007 will likely increase in the future because not all journals have posted their final 2007 issues to the database. (Methodology: JLR database queries for "volokh conspiracy" limited to each year.)
Here's the opening paragraph of her 1788 pamphlet urging rejection of the Constitution, signed Columbian Patriot:
Mankind may amuse themselves with theoretick systems of liberty, and trace its social and moral effects on sciences, virtue, industry and every improvement of which the human mind is capable; but we can only discern its true value by the practical and wretched effects of slavery; and thus dreadfully will they be realized, when the inhabitants of the Eastern States are dragging out a miserable existence, only on the gleanings of their fields; and the Southern, blessed with a softer and more fertile climate, are languishing in hopeless poverty; and when asked, what is become of the flower of their crop, and the rich produce of their farms—they may answer in the hapless stile of the Man of La Mancha,” —- The “steward of my Lord has seized and sent it to Madrid.” —- Or, in the more literal language of truth, The exigencies of government require that the collectors of the revenue should transmit it to the Federal City.
I don't share Mrs. Warren's preference for the then-existing Articles of Confederation system over the Constitution, and I think that even at the time those arguments were rightly seen as unsound; but they struck me as worth remembering. The first two clauses strike me as particularly apt.
The pamphlet is often credited to Elbridge Gerry, but as best I can tell it has now been pretty definitively assigned to Mercy Warren. For the many who don't know of her (as I didn't until recently), I should mention that Warren was a leading American playwright of the immediately pre- and post-Revolutionary era, and the author of History of the Rise, Progress, and Termination of the American Revolution (1805), which was at the time one of the leading histories of the subject.
TaxProf (Paul Caron) reports on the most-trafficked law professor blogs, of those that have public SiteMeter rankings. The five top blogs by visitor counts (all numbers are total for 2008) are:
My question: What are the most-trafficked blogs written by academics, not limiting ourselves to law professors (and working in, if possible, people who have public counters but not SiteMeter)? I should note that I'm primarily interested in academic-themed content, but that's much harder to define and measure than the affiliation of the authors, so academic-written blogs are the best proxy I can think of.
UPDATE: A commenter points to Prof P.Z. Myers' Pharyngula science blog, which had about 18 million visitors last year, and the academic linguists' group blog Language Log (one of my favorite blogs), which had about 3.2 million visitors last year. Keep such data coming, folks!
The overruling of Saucier is big news for the world of constitutional torts. The new regime restores the discretion of the "order of battle" to the lower courts to decide the constitutional and qualified immunity issues in the order that they believe is best. From the opinion:
Because the two-step Saucier procedure is often, but not always, advantageous, the judges of the district courts and the courts of appeals are in the best position to determine the order of decisionmaking will best facilitate the fair and efficient disposition of each case. . . . Our decision does not prevent the lower courts from following the Saucier procedure; it simply recognizes that those courts should have the discretion to decide whether that procedure is worthwhile in particular cases.(Sorry, link fixed, and comments, too, I hope.)
Tuesday, January 20, 2009
Of course, late conversions into believers of checks and balances are more than welcome.
Every four years when a new president is inaugurated, I get slightly sick to my stomach. It's not that I don't like the people who are taking office (though I haven't for quite some time), and I do appreciate the U.S.'s unique, long record of peaceful transitions of power.
But what gets me is the pomp and circumstance before and after the actual legal transition of power: the concerts, the inaugural balls, and so forth. This is a republic, not a monarchy, and there is something untoward about spending tens of millions of dollars on inauguration celebrations, which seem to me more appropriate for a coronation of a king than an inauguration of a president. Worse yet, the money comes from various fat cats and special interests who hope to gain special favors from the new administration, and many of the events are dominated by the permanent political class that lives off the labors of the general public--it's almost like they are taunting the rest of us.
This is hardly Obama's doing; to the best of my recollection, it was Reagan who first went overboard with inaugural festivities, just as it was Reagan who had what I consider the most gratuitously lavish "sendoff" in American history when he died. But I think it will be a sign the country is on the right track when a future president takes his oath of office before a few hundred friends, relatives, supporters, and high-level government officials, has a small party in the White House that evening, and then gets to work.
Via Instapundit, I learn that Dr. Sidney Wolfe of Public Citizen has been appointed (under the Bush Administration's watch) to a four-year term on the FDA's Drug Safety and Risk Management Committee, as the "consumer" representative. It's hard to imagine a worse choice.
Wolfe and Public Citizen have the unique distinction of being primary instigators of (at least--these are the ones I'm familiar with) two of the worst junk science episodes in American legal history, the Bendectin and silicone breast implant litigation.
Here are some choice excerpts regarding Wolfe from my article on the breast implant litigation:
On November 9 , Public Citizen publicly called on the FDA to ban implants. Public Citizen released internal documents from Dow Corning and the FDA that showed the company's scientists had implanted a blob of the gel under the skin of 200 rats. Between one-fifth and one-quarter of the rats developed fibrosarcoma, a form of cancer. Public Citizen's president, Dr. Sidney Wolfe, told the media that implants were dangerous and should be banned. Wolfe's comments “sent many women into something of a panic." To calm the furor, the FDA agreed to consider the cancer issue at its November 22nd meeting.There was never any sound scientific evidence linking implants to either cancer or, as litigants (and Wolfe) later alleged, immune system disease. And now there is a substantial body of evidence to the contrary, as there has been for years. To my knowledge, Wolfe not only never apologized for his role in stirring up the litigation but, at least as of 1998, he was still arguing-against the great weight of scientific evidence-that breast implants may pose a significant risk of cancer and immune-system diseases. And Wolfe was a leading opponent of the reapproval of implants by the FDA a few years back, offering his "expert" opinion on other potential health risks from implants, without a trace of embarrassment about his prior advocacy of the cancer and immune system disease theories. (FWIW, I once asked current Public Citizen president Joan Claybrook at a public forum at Georgetown Law Center if the organization had any regrets about its role in the breast implant litigation. Not only did she disclaim any regrets, but she did so in the most arrogant and obnoxious manner of anyone to whom I've ever asked a question (and my question was polite)!)
Although a few FDA employees expressed concern about the implications of the rat studies, Wolfe knew or should have known that fibrosarcoma occurs in rodents in response to the implantation of any large smooth object. No one has been able to demonstrate that this phenomenon, known as solid-state carcinogenesis, occurs in humans. After receiving advice from the National Center for Toxicological Research, the FDA concluded that "the types of tumors seen in the rats would be unlikely to occur in humans, and that, if a human cancer risk does exist, it would be small."....
Linking implants to cancer based on the rat studies was only the first of many unduly alarmist comments made by Wolfe in the course of the breast implant litigation. .... By the Spring of 1991, breast implant plaintiffs' attorneys, Sybil Goldrich and other leaders of anti-implant organizations, and Sidney Wolfe were actively coordinating their attack on implants. In a subsequent interview, Wolfe acknowledged that he intended to help provoke a deluge of lawsuits against implant manufacturers. By June, the "Silicone Clearinghouse," organized by Public Citizen, had thirty-nine member law firms....
In April 1992, the Journal of Plastic and Reconstructive Surgery published a study that showed no link between breast implants and cancer. Two months later, the New England Journal of Medicine published another study reaching the same conclusion. While Wolfe refused to concede that these studies had merit, plaintiffs' lawyers began to shift their resources from cancer claims to claims that implants cause systemic immune system diseases [a cause that Wolfe also joined].
Just got home from watching the Inauguration down at the federal courthouse, and lemme tell you all -- it was F**ing cold out there!!
Putting aside the oath kerfuffle, I thought it was a pretty stirring event. Obama's speech was terrific -- perhaps not Lincoln's Second, or Jefferson's First, in terms of soaring oratory, but a wonderfully crafted speech full of very beautifully-turned phrases. My favorites:
The time has come to reaffirm our enduring spirit; to choose our better history; to carry forward that precious gift, that noble idea, passed on from generation to generation: the God-given promise that all are equal, all are free and all deserve a chance to pursue their full measure of happiness.
A nice conflation of Jefferson's "all men are created equal" and "the pursuit of happiness" with Lincoln's "the last full measure of devotion" from the Gettysburg Address.
And I also liked:
"To those who cling to power through corruption and deceit and the silencing of dissent, know that you are on the wrong side of history; but that we will extend a hand if you are willing to unclench your fist."
A good collection of linked metaphors -- the clinging to power, the clenched first, the open hand of friendship. Nice.
If anyone happens to have a higher resolution version of either photo, but especially the one on the right, I would appreciate receiving it as an email attachment.
Related Posts (on one page):
- Should Obama Retake the Oath of Office?
- Inauguration Tidbits:
- The Significance of the Flubbed Oath:
- Both the Chief Justice and the President Flubbed the Oath:
- Inaugural Oratory:
"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."Here is the transcript (which does not indicate the President pausing to enable the Chief Justice to correct himself):
ROBERTS: Are you prepared to take the oath, Senator?Here is the video so you can judge for yourself:
OBAMA: I am.
ROBERTS: I, Barack Hussein Obama...
OBAMA: I, Barack...
ROBERTS: ... do solemnly swear...
OBAMA: I, Barack Hussein Obama, do solemnly swear...
ROBERTS: ... that I will execute the office of president to the United States faithfully...
OBAMA: ... that I will execute...
ROBERTS: ... faithfully the office of president of the United States...
OBAMA: ... the office of president of the United States faithfully...
ROBERTS: ... and will to the best of my ability...
OBAMA: ... and will to the best of my ability...
ROBERTS: ... preserve, protect and defend the Constitution of the United States.
OBAMA: ... preserve, protect and defend the Constitution of the United States.
ROBERTS: So help you God?
OBAMA: So help me God.
ROBERTS: Congratulations, Mr. President.
Prof. Ken Katkin writes, though with the preface that this is "just for fun":
(1) The 20th Amendment provides that "[t]he terms of the President and Vice President shall end at noon on the 20th day of January...."
(2) Art II., Sec. 1 Cl. 8 provides that "[b]efore he enter on the Execution of his Office, [The President] shall take the following oath...."
(3) President Obama did not take the Oath of Office until about 12:03 pm today, after Vice President Biden took it at about 12:01 p.m. (Yo Yo Ma and Itzhak Perlman were still fiddling at noon).
(4) Therefore, there was a brief window (just after noon) when George Bush and Dick Cheney were no longer President and Vice President, but Barack Obama and Joe Biden also were not yet qualified to enter on the Execution of their offices.
(5) The Presidential Succession Act, 3 U.S.C. sec. 19(a)(1), provides: "If, by reason of ... failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President." Section 19(b) states that the President Pro Tempore of the Senate shall act as President (under the same terms and conditions) if the Speaker of the House fails to qualify.
(6) Neither Nancy Pelosi nor Robert Byrd actually resigned their seats in the Congress. Thus, neither of them qualified to become Acting President under the Presidential Succession Act. Plus, interbranch appointments might be unconstitutional anyhow. See Akhil Reed Amar and Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113 (1995); but see Howard Wasserman, Structural Principles and Presidential Succession, 90 Ky. L.J. 345 (2002).
(7) Section 19(d)(1) of the Presidential Succession Act provides: "If, by reason of ... failure to qualify, there is no President pro tempore to act as President under subsection (b) of this section, then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: Secretary of State ...."
(8) Notably, Section 19(d)(1) does not condition the Secretary of State's assumption of the powers and duties of the office of President on resignation of her current office, nor does elevation of the Secretary of State raise any constitutional issue of interbranch appointment.
(9) The term of office of the Secretary of State does not automatically terminate at noon on the 20th day of January.
(10) On January 20, 2009, Condoleeza Rice was (and is) still the Secretary of State.
(11) Accordingly, from 12:00 noon until 12:01 p.m. (when Vice President Biden took the oath of office and became Vice President), Condoleeza Rice was momentarily the Acting President of the United States, our first African-American President.
I suppose the obvious counterargument is that Secretary Rice also never took the Oath prescribed in Art. II, Sec. 1, cl. 8, and thus was no more qualified than Barack Obama or Joe Biden to act as President at 12:00 noon. But if Secretary Rice was not President from noon to 12:01, then who was?
See also the Washington City Paper blog, which first blogged Prof. Katkin's analysis (though please note that I have Prof. Katkin's permission to reprint his thoughts). To be sure, I think Orin Kerr is right that under the Twentieth Amendment that "the terms of [the incoming President and Vice President] shall then begin" when the outgoing pair's "end at noon on the 20th day of January," so Pres. Obama was probably President starting at noon, even before the oath was taken. But Prof. Katkin's analysis is more fun.
UPDATE: Prof. Katkin now reports that Biden took his oath of office before 12 noon, despite earlier press accounts, so all the above is moot. Another beautiful theory destroyed by ugly fact.
The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.It is true that Article II, Section 1 states the following:
Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."The question is, does Article II, Section 1 impose a condition on becoming President, or is it a constitutional duty that a person who has already become President must satisfy before he exercizes the executive power? Put another way, is a President who has not yet taken the oath still "the President," or is he just some guy who will become the President when he takes the oath?
As a textual matter, I would think that the President who has not yet taken the oath is still the President. In particular, Article II, Section 1 refers to taking an oath before entering "the execution of his office," suggesting that the office of the Presidency is already his before the oath is taken. And the text of the 20th Amendment is unusually precise about the timing: At noon, "the terms of their successors shall then begin." If the new Presidency began when the oath was taken, I would think that the 20th Amendment would say that. So it looks to me that Obama became the President at noon, and that he was supposed to (and did) take the oath before exercising his executive duties, in this case at 12:10. That's my initial sense of it, at least.
Dick Cheney famously advocated strong executive authority, ruing the collapse of presidential power that he witnessed in the era of the Ford administration and the post-Watergate Congress. One of his goals as vice president was to “leave the presidency stronger than we found it.” Did he?
Here’s Jack Goldsmith (quoted in Newsweek article):
“The presidency has already been diminished in ways that would be hard to reverse” and may be losing its capability to fight terrorism, he says. He argues that Americans should now be "less worried about an out-of-control presidency than an enfeebled one.”
And here’s Jack Balkin, disagreeing:
With all respect to Jack, the pendulum hasn't even begun to swing yet. Barack Obama hasn't even taken office. It is a little early to be worried about an enfeebled Obama. Nor is this an accurate assessment of the historical trends.
Indeed, as I've written elsewhere, Obama takes office as probably the most powerful president in American history, in terms of what he can do and how he can project his power both around the world, in the economy and through the new forms of surveillance power that Congress has given him.
And that's really the point: Cheney's mistake was assuming that more power comes through unilateral action and through doing things in secret-- like torture.
But if you want a strong executive, you don't really need to act unilaterally or always in secret. All you have to do is to get Congress to bestow power upon you, which recent Congress's have been more than willing to do, in the AUMF, the Patriot Act, the Protect America Act, the FISA Amendments Act and the Military Commissions Act.
Barack Obama has the opportunity to be a very strong president, not an enfeebled one, in part because he has enormous Congressional grants of power and, given that his party controls Congress, has the opportunity to ask for even more power.
The two Jacks are talking about different things. Jack Goldsmith means the power of the president to act without the say-so of Congress; Jack Balkin means the power of the president to act (that is, to change the status quo) with the authority of Congress. Balkin also appears to believe that Congress will give President Obama whatever he wants. That view may be colored by recent events—the massive grants of power to Ex-President Bush to conduct wars on security terror and financial terror, in recent years by a Congress dominated by the opposite party. But it is not persuasive if one considers the numerous conflicts between President Bush and Congress, and indeed all the other post-Nixon presidents and Congress. “All you have to do is to get Congress to bestow power upon you” is like saying “if you don’t like the people you work with, all you have to do is to get your boss to bestow power upon you to fire them.”
This is not to say that Goldsmith is correct, either. In what way has the presidency been diminished? Bush is very unpopular, but his unpopularity doesn’t seem to have affected people’s attitudes about the office. We need to think about the issue of presidential power more carefully.
1. The constitutional scope of presidential power. Cheney and friends sought to expand the scope of presidential power—in the Goldsmithian sense of making it difficult for Congress, the courts, or other political institutions to prevent the president from doing what he wants to do. The strategy consisted of the making of broad claims about executive power, the commander-in-chief power, the appointments power, and the vesting clause, which, however, were grounded in Clinton-era and earlier precedents. Many of these claims prevailed, others did not, but in most cases—as usually happens—conflict was avoided. The Supreme Court, for example, never got around to repudiating various war powers arguments though it did (pointedly?) ignore them. Congress objected to many of the administration’s assertions while avoiding an impasse by providing legislative authority for what the administration wanted or yielding.
We just don’t know yet whether these assertions of executive power will have a lasting effect on the scope of the office. There are two possibilities. First, the Obama administration may end up citing Bush administration precedents—especially, one suspects, with respect to executive privilege. Even if it does not, some future administration may resurrect them. Second, the Obama administration will repudiate the Bush administration precedents and future administrations will as well. What does seem clear is that there is little public pressure, at least at the moment, to repudiate the Bush administration precedents—in contrast to the period after Watergate when the presidency, not just the president, was brought into disrepute. What is less clear is how much Congress and the courts are going to fight back and whether they have the means and motivation to cut back the powers of the presidency.
2. The willingness of the legislature to grant powers to the president. The Balkinian idea may be interpreted as a claim that Congress is increasingly willing to grant powers to the presidency. To the extent that this is the result of Obama’s particular skills and advantages, it says nothing about the power of the presidency per se. But to the extent that Congress has come to realize that it can accomplish little by trying to manage the presidency, and that it can best satisfy the demands of constituents by yielding power to the presidency, it all comes to the same thing. Presidential power rises not because of a formal increase in constitutional powers but simply because Congress, as a practical matter, has become weak. The supreme irony of the last eight years is that Cheney was pushing on an open door.
However, clearly, Congress did not give Bush everything he wanted, nor did it give everything Clinton or Bush I or Reagan wanted. Perhaps Balkin thinks that these presidents asked for powers they didn’t need, or the implementation of policies that weren’t justified, but that is at best a contestable judgment. When Clinton ignored Congress’s wishes and launched an air attack on Kosovo in 1999, he exercised Goldsmithian power, not Balkinian power. Obama is popular right now, and maybe Congress will give him all he wants. But the honeymoon will end and only then will we discover whether Cheney’s agenda has met with success or failure.
A rare (and tentative) partial dissent from the nearly unanimous judicial view that the Second Amendment does not at all protect gun possession by felons, in U.S. v. Abner, 2009 WL 103172 (M.D. Ala. Jan. 14) (Myron H. Thompson, J.):
Upon consideration of the report and recommendation of the United States Magistrate Judge (doc. no. 31) and the objections filed by defendant Theophilus Quinton Abner (doc. no. 32), and after an independent and de novo review of the record, it is ORDERED as follows:
(1) Defendant Theophilus Quinton Abner's objections (doc. no. 32) are overruled.
(2) The recommendation of the United States Magistrate Judge (doc. no. 31) is adopted as to its result.
* * *
The court adds the following comments:
Abner argues that 18 U.S.C. § 922(g)(1), which prohibits the possession of firearms by those convicted of felonies, is unconstitutional as applied to him. Abner relies on the Supreme Court's decision in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), arguing that such significant and permanent restrictions on his right to possess a firearm in his home, particularly given the importance of defending himself, his property, and his family, cannot survive the scrutiny that opinion mandates for statutes regulating the possession of firearms in the home. Abner, however, has a serious history of violent crime of the highest magnitude, including state convictions for kidnaping and attempted murder. Even though § 922(g)(1) has a strikingly large scope -- a scope that might be arguably called into question by a fair reading of Heller's rationale -- the court does not find, under the particular circumstances presented in this case, a constitutional violation as applied....
[The magistrate judge had concluded, in relevant part: -EV] ... Heller expressly permits the possession of firearms in the home by persons not “disqualified” from the exercise of Second Amendment rights. Indeed, the United States Supreme Court expressly circumscribes its Heller decision to avoid casting doubt on the provisions of § 922(g). Abner asks this Court to regard those statements as mere dicta since those specific provisions were not before the Heller court. While the Court agrees a § 922(g) challenge was not the subject of the Heller decision, the Court rejects Abner's arguments that the statements are essentially irrelevant. On its face, “Heller did not disturb or implicate the constitutionality of § 922(g) and was not intended to open the door to a raft of Second Amendment challenges to § 922(g) convictions.” Indeed, every case found by this Court involving a post-Heller challenge to § 922(g) likewise concludes Heller did not invalidate § 922(g). As there is no guidance post-Heller from the Eleventh Circuit, this Court will join the other courts in its rejection of a § 922(g) challenge under Heller. Instead, the Court will take Heller at its word that it did not cast doubt on the validity of prohibitions like those found in § 922(g).
All Related Posts (on one page) | Some Related Posts:
- Felons and the Right To Bear Arms:
- Interesting Tenth Circuit Concurring Opinion on the Right To Bear Arms and Felons:
- Pipe Bombs Unprotected by the Second Amendment:...
- Massachusetts Trial Court Holds Gun Storage Law Unconstitutional:
- The Second Amendment and Felons:
- Second Amendment as Relevant to Defendant's Right To Sue for Declaration of His Federal Firearms Rights?...
- One More Early Post-Heller Second Amendment Opinion:
- Another Early Post-Heller Second Amendment Case:
- One of The First Post-Heller Second Amendment Opinions:
I can't remember the last time the Chief Justice himself mis-administered the presidential Oath, as Roberts did today. I mean, I'd be nervous if I knew about a billion people were watching me, but his only role was to repeat 35 words prescribed by the text of the Constitution. Add to that President Obama's speaking over Roberts and then awkwardly pausing for Roberts to continue. A portent of an unusually uneasy relationship between the new administration and the federal judiciary?
Jack Balkin reports that Marty Lederman and David Barron have joined the Office of Legal Counsel as Deputy Assistant Attorney General and Principal Deputy Assistant Attorney General respectively. Barron will also serve as Acting AAG pending Dawn Johnson's confirmation as OLC's AAG.
Given these appointments, some readers may be interested in their recent Harvard Law Review article, "The Commander-in-Chief at the Lowest Ebb -- Framing the Problem, Doctrine, and Original Understanding."
Monday, January 19, 2009
Doing well in all the right places — a huge achievement but in some ways a career path without risk to a sense of identity — offered great rewards and appears to have left [Robert] with few doubts about how the world works, or should work, if his legal writings are the measure. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” was his uncomplicated explanation in a 2007 opinion on why Louisville and Seattle could not constitutionally use student assignments to keep their public schools from resegregating after finally having achieved a measure of integration.Can anyone help me draw the link here? I can see arguing that a person who had a lot of success in a grade-and-numbers-focused meritocracy might have a strong belief in grade-and-numbers-focused meritocracy, so much that they would oppose affirmative action. But as far as I can tell, Greenhouse isn't suggesting that. Rather, she appears to be suggesting that Roberts' success makes him overconfident, and that his overconfidence leads him to uncomplicated (which I think it's safe to say here means "overly simplistic") views of hard constitutional problems. But it's hard to see how Roberts' view of the constitutionality of affirmative action supports this: Justice Thomas has the same view, and I don't think Justice Thomas's life has been a story of constant success that left him with few doubts about the world. Maybe the idea is that Greenhouse is so strongly in favor of affirmative action that someone who thinks it is simply unconstitutional must have a quirky life history to explain it?
Finally, in light of the recent articles comparing Obama and Roberts, ranging from Greenhouse's in the New York Times to Dahlia Lithwick's in Newsweek, I should flag my own post drawing this comparison back in August.
UPDATE: Commenter KRS points out that Greenhouse offered similar speculation back in 2007 on the relationship between Roberts' career success and his views on statutory filing deadlines. After the Chief Justice suffered a seizure, Greenhouse speculated:
[M]ight this encounter with illness even change the way John Roberts sees himself, his job or the world?I don't see this speculation as revealing anything about Roberts, but it does seem to help explain the worldview of Greenhouse.
Prof. William H. Chafe, a historian at Duke University, published a book last year, ''Private Lives, Public Consequences: Personality and Politics in Modern America,'' in which he presented portraits of prominent 20th-century Americans, including Franklin D. Roosevelt, the Rev. Dr. Martin Luther King Jr., John F. Kennedy and Bill Clinton.
Professor Chafe argued that trauma or tragedy strengthened them and gave them the qualities of leadership they displayed later in life. Could adversity temper a jurisprudence that critics of the chief justice have discerned as bloodless and unduly distant from the messy reality of the lives of ordinary people who fail to file their appeals on time?
I agree with Glenn that, when it comes to police misconduct, the exclusionary rule is better than nothing. And in my experience as a prosecutor in the late 70's and early 80's the exclusionary rule had a definitely salutary effect on police conduct. But I also agree with Jonah that it is fundamentally wrong to let free those against whom we have proof beyond a reasonable doubt, and also (as Glenn notes) that the exclusionary rule fails to protect those victims of police misconduct against whom no incriminating evidence was uncovered. There being no incriminating evidence to suppress, truly innocent victims of police misconduct have no effective remedy. I also do not think that holding individual officers personally liable for their misconduct is likely to be effective enough given the credibility contest between them and their accusers, coupled with the justified sympathy of the general public for the demands placed on police officers. But there is another alternative that neither Glenn nor Jonah consider.
In my very first scholarly article as a professor--Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice, 32 Emory Law Journal 937 (1983)--I proposed replacing the exclusionary rule with an administrative "court of claims" type system of monetary compensation to victims of police misconduct, whether the claimants are innocent or guilty of committing crimes. Most importantly, it would be police departments, and indirectly taxpayers, and not individual police officers who would be liable for making compensation. If the public wants the whatever increased security results from inadequately constrained police searches and seizures, it can pay for this by compensating the victims of this behavior. If it does not like paying compensation, it can use political mechanisms to impose greater constraints on police conduct. Ultimately, supervisors have a much greater influence on how officers behave than do judges disposing of some future prosecution.
This article is all about deterrence, and compares the actual mechanism by which deterrence is achieved by the exclusionary rule with the deterrence that would be provided by such a system of compensation. I conclude that we have good reason to believe that a compensatory remedy would deter more effectively than exclusion of incriminating evidence. This comparative deterrence analysis is too complicated to summarize in a blog post, but you can read the original here.
Warner Brothers and Fox settled their legal fight over the "Watchmen" movie last week, clearing the way for the movie's release in March.
Fox emerged victorious late Thursday in its effort to get Warner to recognize Fox’s ownership rights on “Watchmen,” a $130 million adaptation of the popular graphic novel series of the same name. Fox stepped forward before shooting even began, saying it owned the rights. The studio filed suit in February after Warner balked.
Terms were not disclosed, and both studios declined to comment on Friday. But people with knowledge of the agreement said Fox could receive up to 8.5 percent of the film’s final theatrical gross after Warner recoups certain costs. (The percentage is lower if ticket sales are poor.) Fox will also get back the $1.5 million it spent developing the movie, and Warner will foot its rival’s multimillion-dollar legal bill.
Fox also pried a public admission from Warner that it had not been greedy. “Warner Brothers acknowledges that Fox acted in good faith in bringing its claims,” a joint statement said. That line was particularly important to Fox, which has come under fire on the Web from “Watchmen” fans who feared that the studio’s efforts would delay the film’s release.
Bush technically has until noon on Tuesday when President-elect Barack Obama is sworn into office to exercise his executive pardon authority, but presidential advisers said no more were forthcoming.(h/t Howard)
Paul Krugman’s column today says that if the Aggregator Bank buys up toxic assets, it will unavoidably overpay, resulting in a windfall for shareholders at the taxpayers’ expense. He says that we should nationalize banks instead. But nationalizing just means buying the banks, and the government can’t buy a bank unless the shareholders are willing to sell. If the government will unavoidably overpay for toxic assets, why won’t it unavoidably overpay for the shares of the institutions that own these toxic assets?
Perhaps, the theory is that if the government announces that it will buy the banks and hence will not buy the toxic assets, the market price of MBS’s will fall drastically—because banks are only unwilling to sell them in the first place because they hope that the government will overpay for them—and thus the banks’, or some banks’, market price will fall to zero. With zero market price, the government doesn’t need to pay anything for the banks; it can just take them over.
But even then, the government has to do something with the MBS’s in its possession. Indeed, it has to do something with the banks in its possession. If it sells the MBS’s and/or the banks, it might end up selling them for less than their market price, with the result that buyers will enjoy windfalls at the taxpayers’ expense. If it holds the MBS’s to maturity, it may lose out on selling opportunities, again at the taxpayers’ expense. Is there any reason to think that a government inclined to pay too high a price for MBS’s when it buys them will know enough to avoid accepting too low a price when it sells them?
Krugman says, “should the government be in the business of declaring that it knows better than the market what assets are worth?” The implicit criticism here—that government officials evaluate assets less accurately than the market does—overreaches, as it undermines Krugman's preferred approach of nationalization as well as the more limited approach of purchasing the toxic assets. The case for nationalization must rest on other considerations.
On this day 201 years ago Lysander Spooner was born on in central Massachusetts. Like de Molinari a century before, Spooner’s ideas were extreme. And though “extreme” usually has negative connotations, recall what Barry Goldwater’s speechwriter, Karl Hess, penned almost 50 years ago: “Extremism in defense of liberty is no vice.”Spooner's influential book, The Unconstitutionality of Slavery, changed Frederick Douglass's mind about the constitutionality of slavery. In this regard, it is a nice coincidence that this year Spooner's birthday falls on Martin Luther King Day.
Spooner, one of the most outspoken abolitionists of his day, advocated for the immediate end to slavery and wrote that the U.S. Constitution was no different than any other contract and thus binding only to those who signed it. A lawyer by training, he ignored related occupational licensing laws and later directly challenged the postal monopoly. Without question he remains a source of inspiration for freedom-fighters today - whether their medium be academia or activism.
It is worth noting that Spooner's No Treason: The Constitution of No Authority was written well after his book on slavery. In the later work, he applied a contract model of actual consent to the Constitution and found its authority wanting. In the earlier work, he employed a hypothetical contract model to the Constitution to show why it should be construed to protect the background rights of the people--among whom included persons held in bondage as slaves. He did not claim that hypothetical consent was the same as actual consent. Instead, he argued that because the consent claimed for the constitution was "theoretical" only, and based on presumed consent and not actual expressed consent, it could not be presumed that anyone consented to a document that violated their natural rights--and the Constitution should not be so construed unless its original meaning was irresistibly clear.
For those who implicitly accept the view articulated in Dred Scott that slaves could not be included in "the People," consider this. One of the clauses of the original Constitution that is taken as referring to slaves describes them in the following way "No person held to service or labor in one state, under the laws thereof." The Fifth Amendment includes the following: "nor shall any person . . . be deprived of life, liberty, or property, without due process of law." As was noted by abolitionist William Goodell, the pro-slavery reading of the Constitution would have the word "person" mean two different things in the same Constitution. At minimum, this undercuts the Supreme Court's decision in Prigg v. Pennsylvania that the Fugitive Slave Act--which clearly denied due process to persons who were claimed to be runaway slaves while residing in a free state--was constitutional. If you read Spooner, Goodell, and others you find the case for the constitutionality of slavery, and all the powers then claimed to protect it, to be remarkable shakey.
While some modern scholars who have discussed Spooner have belittled him as a marginal, it appears that his abolitionist writings were taken quite seriously during his lifetime. Not only did Douglass credit Spooner (and others) with his conversion from the position advocated by William Lloyd Garrison and Wendell Phillips that the Constitution was "a covenant with death and agreement with hell," but Phillips himself was prodded by the reception of Spooner's initial work to self-publish a 90 page reply. Indeed, Spooner's original monograph was 145 pages, and he added another 145 pages in response to Phillips. I have also found that Spooner's arguments were cited in Congress.
In his classic 1951 book, Equal Under Law, Jacobus tenBroek credits Spooner's writings for contributing to the theory of citizenship that led to the first sentence of the Fourteenth Amendment defining citizens as any person born in the United States.
You can find most of Spooner's writing and surviving correspondence at LysanderSpooner.org, and more at Rodrick Long's Molinary Institute. A short article of mine on Spooner's original meaning approach to constitutional interpretation is here. It was after reading Spooner's The Unconstitutionality of Slavery that I eventually became an originalist.
So Happy Birthday Lysander. You are well remembered.
The current idea is to establish an “Aggregator Bank” that will munch up the mortgage-backed securities that banks can’t, or won’t, sell. This is, of course, the original and much-maligned purpose of TARP. Skeptics abound. Here’s Paul Krugman:
Financial institutions that want to “get bad assets off their balance sheets” can do that any time they like, by writing those assets down to zero — or by selling them at whatever price they can. If we create a new institution to take over those assets, the $700 billion question is, at what price? And I still haven’t seen anything that explains how the price will be determined.
I suspect, though I’m not certain, that policymakers are once more coming around to the view that mortgage-backed securities are being systematically underpriced. But do we really know this? And how are we going to ensure that this doesn’t end up being a huge giveaway to financial firms?
The problem is not that MBS’s are hard to value; they shouldn’t be harder to value than anything else. After all, people don’t seem to have much trouble valuing the institutions—the banks, for example—that own them, whose shares they trade, albeit at much reduced price these days; so why should they have trouble valuing the assets these institutions own? The problem is not one of difficulty of valuation, but of the incentives of the banks. Banks apparently hold onto their MBS’s because they would become insolvent or violate minimum capital adequacy requirements if they traded them for paltry sums of cash and/or marked them down to the market value that would be revealed as a result of trading. In the meantime, the banks can hope that the securities will appreciate either because the economy improves or the government intervenes.
If all this is true, the Aggregator Bank will be able to buy up the MBS’s only by “overpaying” for them in the sense of paying more than the expected value of the stream of payments to which the holder is entitled—which the market says is lower than the banks claim. The Aggregator Bank has to pay the banks a premium that will reflect the loss of option value for the shareholders—whose shares would otherwise be worth zero rather than the value of the upside that would come with an economic recovery or other positive change in circumstances. This need not involve enriching bank shareholders, as Krugman suggests, though it could if done poorly—if the Aggregator over-overpays.
What is gained by this exercise? Not increased certainty or the discovery of the “real” value of the MBS’s. It would have to be—if the intervention were to make sense at all—that the MBS’s are worth more aggregated in the hands of the Aggregator than they are in the hands of banks and other investors scattered around the world. How could this be the case?
To see how, consider some of the litigation that has erupted as a consequence of the subprime crisis. This excellent blog, by Isaac Gradman, provides some examples. Debtors and attorneys general are suing loan originators like Countrywide for predatory lending practices, and winning settlements. Under the terms of these settlements, the mortgage loans are modified, with principal and interest reduced. The problem is that Countrywide is now the loan servicer for these loans, so if it agrees to lower payments, as it has, the holders of MBS’s, not Countrywide, incur the loss. Can it do this? A definite maybe! Everything depends on the terms of the contracts between the loan servicer and the MBS holders. The contracts usually say that the loan servicer has to repurchase securities if the underlying loan was predatory, but there appears to be plenty of ambiguity, and indeed Countrywide’s own obligations under the settlement seem to be contingent on its contracts with the investors. And even when predatory lending is not in issue, it is often in everyone’s interests to renegotiate a mortgage loan when the debtor would otherwise default—because the house typically loses fifty percent of its value in foreclosure and would be worth more if the debtor gets to keep it.
But for every loan that has to be renegotiated, there are hundreds or thousands of investors who own securities that share in the proceeds of the loan, and each one of those investors—or a coalition of them if, as I suspect, the contract provides for a voting system—has the de facto right to block the loan renegotiation if they object to it. Even if, in the end, they lose, for the time being they can litigate, and little will happen until all the underlying legal issues are resolved. This creates a massive collective action problem, akin to corporate insolvency, the reason why we have bankruptcy law in the first place. The difference is—and this is crucial—that in your average corporate bankruptcy, where you have thousands of creditors and shareholders and other interested parties, millions or billions of dollars worth of assets will be at stake. Bankruptcy judges can twist arms, ensuring that too much value is not lost while parties squabble. Here, we again have thousands of interested parties, all with de facto “votes,” but now all that is at stake is one person’s home. MBS holders might, in theory, gain if loans are renegotiated but probably believe that since they can’t, as a practical matter, guard their interests in millions of separate loan renegotiations, they do best by blocking all of them—especially in the current political climate that sympathizes with homeowners. It is hard to imagine a more inefficient system.
Two bills try to address this problem. A bankruptcy reform bill would enable bankruptcy judges to cram down mortgage loans in Chapter 13. MBS holders simply would have no way to block loan renegotiations that reduce the value of their securities. This is not necessarily a bad idea, but bankruptcy is always slow and costly.
Barney Frank’s TARP-2 bill would require loan servicers and holders of mortgage-backed securities to revise the terms of their contracts. As Steven Davidoff describes it:
Significantly, the bill also abrogates the mortgage-backed security service agreements between servicers and investors in M.B.S.’s. Many of these agreements had required that in the case of a loan modification, the servicer was required to repurchase the loan. Instead, the bill voids these privately negotiated contractual provisions and allows these servicers to freely modify these loans if (i) the property is owner-occupied; (ii) default has occurred or is reasonably foreseeable and (iii) the servicer reasonably believes in good faith that the recovery on the principal obligation of the remodification will exceed the anticipated recovery on a foreclosure on a net present value basis.
This provision isn’t as crazy as Davidoff thinks it is. If (iii) is really correct, and if individual MBS holders might hold out for a better deal rather than consent to loan modifications under the terms of the contract, then the bill solves the collective action problem. The difficulty is that all of these mushy words (“reasonably foreseeable,” “good faith”) have uncertain meaning, and can be exploited by the servicer to pummel the MBS holders. Servicers will do so to keep the TARP funds coming, though I hope the government realizes that as the price of MBS’s fall, the government will have to send even more funds into the banks that own them, unless of course the whole crazy scheme works and the price of MBS’s rises because of the reduced risk of hold-out.
Anyway, the Aggregator is an improvement on this scheme. Instead of trusting servicers to renegotiate wisely with debtors, with servicers acting as agents for unhappy MBS holders, the government steps into the shoes of the MBS holders and dictates the new terms of the mortgages. The theory behind the Aggregator must be that if the government owns all (or, anyway, enough) of the MBS’s, then any remaining private MBS holders cannot hold out in negotiations to modify loans. No need to force loan servicers and MBS holders to renegotiate and no more litigation between loan servicers and MBS holders. As the primary owner of MBS’s, the government will voluntarily ease the mortgages simply by waiving or relaxing its own contract rights. The theory here is not the TARP-1 view that if the government starts buying, the MBS market will be jerked back to life; it is that the government will break logjams caused by the dispersion of control rights among zillions of investors. Life is so much easier when the government owns everything.
To sum up, it’s not that MBS’s are being “systematically underpriced,” in Krugman’s words. It is that they are worth more together than apart, and only the government is big enough to own all (or enough) of them. That, anyway, is the only way I can make sense of the various reform proposals. If someone has a better theory, I am all ears.
It'll be called Time Zone, or maybe Twentieth Amendment, and it will revolve around the provision that "The terms of the President and Vice President shall end at noon on the 20th day of January." An international incident on inauguration day triggers a constitutional crisis revolving around the fact that the Amendment doesn't tell us what time zone will be the reference point. The old President decides that when the new President is appointed in the Eastern zone, the old President remains in charge in Central and points west, and then his power only ebbs hour by hour rather than vanishing altogether at noon Eastern. High drama ensues. Military forces from different time zones have a tense standoff. The Florida and Kentucky militias skirmish across the time line. Eventually the old President is reduced to staying in a bunker in the Aleut Islands, commanding the tiny remnants of the nation that he has left. It'll sell millions, I tell you, millions.
Sunday, January 18, 2009
O'Gorman is a turning point case in the field of economic due process. One of the last liberty of contract cases, it involved a New Jersey statute regulating the fees paid to local agents by insurance companies. The statute was challenged as a violation of the Fourteenth Amendment's Due Process Clause. Contending that the facts surrounding its origins and operation should be determinative, Justice Louis Brandeis sustained the statute. He found that the presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute” (p. 258). Further, legislative judgment must prevail unless it could be demonstrated that the measure was utterly arbitrary. No such demonstration had been made. The business of insurance, he argued further, is so far affected with a public interest that the state may regulate the rates as a subject clearly within the scope of the police power. He further contended that the Court should cease using the Due Process Clause in a “substantive” manner to second guess the legislature.The vote was 5-4 with Chief Justice Hughes and Justice Roberts tipping the balance. Indeed, the case was originally argued on April 30, 1930, after Hughes replace Taft but more than a week before Hoover nominated Roberts. With the Court presumably divided 4-4, O'Gorman was held over for reargument until October 30th, after which Roberts was able to form a new majority adopting the presumption of constitutionality. (See Barry Cushman's, Rethinking the New Deal Court, p. 76.) Less than two years later, Hoover nominee Cardozo replaced Justice Brandeis who wrote the opinion in O'Gorman. In this way, it was Hoover's nominees who began seriously undermining the Due Process scrutiny of the Progressive Era Court--the approach identified with Lochner v. New York--well before Roosevelt had a chance to appoint anyone to the Supreme Court.
The four dissenters [Van Devanter, McReynolds, Sutherland, and Butler] vigorously propounded freedom of contract, restrictive alteration of the public interest doctrine, and the pressing obligation to check any legislative interference with property. They particularly objected to the idea that the right to regulate business implied the power to trespass on the duties of private management. The majority opinion, however, made clear that the constitutionality of state regulation of the economy should no longer turn on the question of its unreasonableness.
Related Posts (on one page):
- How the New Deal Prolonged and Deepened the Great Depression:
- More on Hoover as Proto-New Dealer:
- Bush is Indeed Like Herbert Hoover - But Not in the Way You Think:
- Does the Financial Crisis Discredit Libertarianism? Round II:
- Anna Schwartz on the Economic Crisis:
- Does the Financial Crisis Discredit Libertarianism?
In the course of a New Republic article analogizing George W. Bush to Herbert Hoover, historian Alan Brinkley perpetuates the long-discredited myth that Hoover failed to stop the Great Depression because he pursued laissez-faire policies:
Herbert Hoover . . . exemplifies the dangers of sticking to one's principles. One of the ablest and most widely admired men in America when he was elected president in 1928, Hoover left office four years later discredited and reviled--a victim of a Depression that he had not created, to be sure, but also a victim of his choice of conviction over pragmatism. Unwilling to challenge the pillars of free-market capitalism, strongly committed to balanced budgets and fiscal prudence, convinced that the natural laws of economics would bring the Depression to a close, he responded to the Depression with such restraint and timidity that had his administration not ended when it did, the entire financial system of the United States might have collapsed.
Far from being "unwilling to challenge the pillars of free-market capitalism," Hoover reacted to the Depression by promoting extensive government intervention. For example, he established the Reconstruction Finance Corporation, a new federal agency that gave massive loans and grants to banks, failing businesses and state and local governments - a policy similar to today's bailouts. He also supported (albeit reluctantly) the enactment of the Smoot-Hawley tariff, a protectionist measure intended to strengthen American businesses by shielding them from foreign competition. Furthermore, he sponsored a massive increase in federal spending on a variety of relief programs. Similar to today's Democratic Congress, Hoover sought to stimulate the economy by increasing federal funding for public works through the Emergency Relief and Construction Act.
Speaking before the 1932 Republican Convention, Hoover boasted that he had rejected the "disastrous" option of doing "nothing" and instead had "met the situation with proposals to private business and to Congress of the most gigantic program of economic defense and counterattack ever evolved in the history of the Republic." In that same 1932 campaign, FDR even denounced Hoover for overspending and promised to enact a balanced budget.
Nor were Hoover's interventionist policies a sudden change of heart caused by the Great Depression. He had advocated extensive increases in government spending and regulation for years, especially during his time as Secretary of Commerce in the 1920s. Even before the Depression began, the Hoover Administration promoted federal intervention in labor relations and massive farm subsidies.
None of this is news to economic historians. By the 1960s and 70s, research by a variety of scholars had shown that Hoover was anything but a laissez faire advocate. Liberal historian Joan Hoff Wilson's 1975 book Herbert Hoover: Forgotten Progressive is a good summary of the evidence. It is surprising that an outstanding historian like Brinkley would ignore this body of research.
Brinkley is right, however, to suggest that Hoover's policies were similar to Bush's. Like Hoover, the Bush administration responded to an economic crisis with a policy of bailouts. Also like Hoover, Bush sought to push the GOP towards big government policies long before any economic crisis had occurred. Under Bush, the GOP massively increased domestic spending and federal regulation. Bush also, in his own words,"use[d] the mighty muscle of the federal government" to incentivize financial institutions to issue mortgages to borrowers with dubious credit qualifications - an interventionist policy that helped cause the current crisis.
After Hoover left office, New Dealers used the myth of his supposed adherence to laissez-faire as a justification for discrediting free market policies. Today, we are seeing the creation of a similar myth about Bush. The truth, however, is almost the exact opposite of the myth.
The fact that Hoover and Bush pursued interventionist policies doesn't in and of itself prove that free markets are the way to go. Perhaps Hoover and Bush simply chose the wrong kinds of interventions. Nonetheless, the myth of Hoover as laissez-faire advocate was an important rhetorical prop for supporters of big government policies in the 1930s. Hopefully, it is not too late to forestall the creation of a similar convenient myth about Bush today.
UPDATE: It's worth noting that FDR strongly denounced Hoover for being overly interventionist during the 1932 campaign. He attacked what he called the GOP's "reckless and extravagant spending" and warned against Hoover's tendency to conclude that "we ought to center control of everything in Washington as rapidly as possible." The later liberal Democratic view of Hoover as a laissez-faire advocate is a post-New Deal invention. When Hoover was actually in office, most Democrats realized that he was an interventionist, and many criticized him for it.
Related Posts (on one page):
- How the New Deal Prolonged and Deepened the Great Depression:
- More on Hoover as Proto-New Dealer:
- Bush is Indeed Like Herbert Hoover - But Not in the Way You Think:
- Does the Financial Crisis Discredit Libertarianism? Round II:
- Anna Schwartz on the Economic Crisis:
- Does the Financial Crisis Discredit Libertarianism?
I simply must go - Baby, it's cold outsideHere are the full lyrics (as sung by Lee Ann Womack). Here's a video of the Montalban-Williams performance, as well as a more recent film version.
The answer is no - Oh baby, it's cold outside
This welcome has been - I'm lucky that you dropped in
So nice and warm - Look out the window at that storm
My sister will be suspicious - Please but your lips look so delicious
My brother will be there at the door - Waves upon a tropical shore
My maiden aunt's mind is vicious - Oh but your lips look delicious
Well maybe just a half a drink more - Never such a blizzard before
The Inaugural Oratory post below has gotten some criticism for the author's use of "from whence." One blog admonishes, "I don't mean to misundere[s]timate you, David, but there is no such thing as 'from whence.' 'Whence' means 'from where.'" I too had long taken a similar view, and this is apparently a common view, judging by this column.
But the Oxford English Dictionary cites examples of "from whence" from Dryden, Dickens, and Swinburne. Even those not blessed with free OED access can do a quick search through Project Gutenberg to find examples from Shakespeare, Dickens, and who knows how many others. To be sure, "from whence" isn't the phrase I'd choose as a stylistic matter. But it's hard to see under what meaning of "there is no such thing" one can say "there is no such thing as 'from whence'" (unless "there is no such thing as" is an odd way of saying "I don't like").
Now doubtless this can lead us to the usual debates about descriptivism and prescriptivism. But I wonder whether we might finesse those debates here using the sheer volume of evidence that "from whence" has been used by great English writers. Here's my argument, which I think should be sufficient to support my point, though not necessary: If someone can point to evidence that a phrase was used as standard in edited text by Shakespeare, Dickens, Dryden, and more, then that phrase is presumptively permissible unless its critics can point to some authority of comparable credibility that explains why the phrase is incorrect. Surely even prescriptivists would want to see evidence that a prescription is authoritative, rather than deferring to any prescription that anyone happens to pronounce.
I should also add that abstract logic of the "it's redundant" sort can't count, because redundancy is not itself a sign of linguistic error. For instance, "null and void" may be redundant, and may be poor style as a result, but there's nothing incorrect about it. What's more, standard usage sometimes requires redundancy: "I am typing" conveys the identity of the actor twice — in the "I" and the "am" — but it's not therefore nonstandard, and in fact the less redundant "am typing" is what is highly nonstandard. (Not so in other languages, in which one can avoid redundancy of the "I am typing" variety, but that just shows that the standard in language is a function of usage, not of abstract logic.)
Finally, I should stress again that none of this resolves whether "from whence" is elegant or not (or for that matter the separate question of whether "from whence" is an apt way of saying "from which" in contexts where there's no sense of movement or origination). The American Heritage Dictionary, for instance, reports,
The construction from whence has been criticized as redundant since the 18th century. It is true that whence incorporates the sense of from: a remote village, whence little news reached the wider world. But from whence has been used steadily by reputable writers since the 14th century, most notably in the King James Bible: "I will lift up mine eyes unto the hills, from whence cometh my help" (Psalms). Such a respectable precedent makes it difficult to label the construction as incorrect. Still, it may be observed that whence (like thence) is most often used nowadays to impart an archaic or highly formal tone to a passage, and that this effect is probably better realized if the archaic syntax of the word — without from — is preserved as well.
And this may well be wise advice (though it's not clear, given the dictionary's own evidence, that plain "whence" is much more archaic than "from whence"). But that's a different matter from the question whether a certain usage is wrong (which I take it is what was meant by "there is no such thing").
Ben Sheffner, over on Copyright & Campaigns, has a nice piece on the efforts of record industry lawyers to overturn an order providing for live Internet coverage of a court hearing next Thursday in one of the RIAA's lawsuits asserting copyright infringement against the operator/user of a peer-to-peer file-sharing system (RIAA v. Tenenbaum). The case (quoting from the court's order):
. . . like many others now before the Court, is one for copyright infringement under 17 U.S.C. § 106. The Plaintiffs are some of the nation's largest record companies. The Defendants in these consolidated cases are individual computer users — mainly college students — who, the Plaintiffs claim, used "peer-to- peer" file-sharing software to download and disseminate music without paying for it, infringing the Plaintiffs' copyrights. Many of the Defendants have defaulted or settled, largely without the benefit of counsel, subject to damages awards between $3,000 and $10,000
District Judge Nancy Gertner had granted a motion, filed by the Berkman Center at Harvard (which is representing the defendant), allowing a webcast operator, Courtroom View Network, to stream Thursday's proceedings live on the Berkman Center website. The RIAA has filed several "extraordinary writs" — for mandamus and prohibition — seeking to overturn the order.
I should say, to begin with, that I'm generally a big fan of live broadcasts of court proceedings; in fact, I think we should do more demanding of our public officials that they provide such access routinely. [I clerked at the Supreme Court back in 1993, and it annoyed me then, and it annoys me still, that live broadcasts of Supreme Court proceedings are not made generally and widely available] And I should also say that I'm not a huge fan of the record labels' campaign against individual file-sharers (Sheffner views it a little more positively). But whatever position you take on these matters, this really is not a pretty sight. What are they afraid of? Here's what the record labels put in their papers:
Petitioners [the labels] are concerned that, unlike a trial transcript, the broadcast of a court proceeding through the Internet will take on a life of its own in that forum. The broadcast will be readily subject to editing and manipulation by any reasonably tech-savvy individual. Even without improper modification, statements may be taken out of context, spliced together with other statements and rebroadcast as if it were an accurate transcript. Such an outcome can only do damage to Petitioners' case.
How tone deaf are these guys? An industry that is so completely out of touch with its customers is not long for this world. The RIAA, I grant you, is in a tough spot regarding file-sharing, and it has taken (as it has every right to take) a hard line on the law in the battle against file-sharing. But come on, guys. "Statements will be taken out of context"!! No!! I hate to be the one to tell you this, but: Welcome to the 21st century. Yes, the tapes will be all over the Net, and people will do all sorts of things with them, some hilarious, some idiotic, many in between. Yes, some of that will make the record labels (and their lawyers) look like fools. We have a name for that: "free speech." It is, by and large, a really good thing. Plus, people seem to enjoy engaging in it. Why not try to figure out how you, too, can play in this new space? You don't have enough thumbs for all of the holes in this dike, and we, the public, are justified in finding your efforts to do so contemptible.