The Volokh Conspiracy

Next Monday at 7 AM eastern time (probably rebroadcasting at that time in other time zones), I will be on Stand Up! with Pete Dominick on Sirius XM Satellite Radio, discussing my forthcoming book Democracy and Political Ignorance: Why Smaller Government is Smarter, which will be published by Stanford University Press in early fall (probably September or early October).

Stanford UP has created a website for the book. You can, if you like, preorder the book there. We even have a special coupon code just for Volokh Conspiracy readers that will give you a 20% discount at the Stanford site; the code is S13LAW. OK, actually the code is available to anyone who wants to use it. But at least VC readers will now be the first to find out about it! You can also preorder the book at Amazon, while still being eligible for any price reductions that either Amazon or Stanford UP adopt between now and the publication date.

Sirius Satellite Radio has posted the audio of my recentdiscussion of the Supreme Court with George State University Professor Eric Segall on Stand Up! With Pete Dominick. The audio is available here.

Much of the discussion focuses on general issues of constitutional theory and the extent to which the Supreme Court is or is not politicized, which I recently wrote about in this article. But towards the end, we also talked about the gay marriage cases currently before the Court, including my view that laws banning same-sex marriage are examples of unconstitutional sex discrimination.

After years of resistance, I have finally joined Twitter. Perhaps, as the Borg would say, resistance is futile and assimilation into Twitter is inevitable. For readers who may be interested, my Twitter username is IlyaSomin.

Despite this capitulation, I will not be completely assimilated into the Twitterverse. Given my rational ignorance about pop culture other than sports and science fiction, I won’t be tweeting any celebrity-related gossip. Not even if I somehow turn into the Twitter equivalent of Locutus. Instead, I will most likely be using the account to tweet about my activities elsewhere, such as recent or forthcoming books, articles, speaking appearances, and the like.

At Slate, Matthew Yglesias has an interesting article reviewing all of the Star Trek and many of the movies from the original 1960s series to the present. He especially focuses on the series’ ideology and politics, and its “utopian” vision of the future.

Despite coming at the issue from a very different perspective, I actually agree with much of Yglesias’ analysis. I think he is right that Deep Space Nine had many of Star Trek’s best episodes, that Voyager was the worst of the TV shows, and that the 2009 “reboot” movie (which I criticized here) takes the series in the wrong direction. Most fundamentally, I think we agree that Star Trek is interesting because it takes on serious issues about the kind of future we should want for humanity. That is a big part of the reason we are still talking about Trek almost fifty years after it began.

On the other hand, I have a much more critical perspective than Yglesias on Star Trek’s mostly left-wing politics, which I articulated in this Institute for Humane Studies podcast. As I explain in the podcast, I like Deep Space Nine better than the other series in part because it is more willing to question the Federation’s values, though it ultimately does still endorse them. I also disagree with Yglesias’ view that the economy of Star Trek is post-scarcity, thereby making socialism workable (and indeed the only feasible economic system). As I discuss here, many important goods and services are still limited in the Star Trek universe, including the energy sources that power starships, planetary real estate, a variety of personal services, and – most importantly – replicators. The replicator – the very technology that supposedly eliminates scarcity – is itself scarce; the Federation and its various rivals apparently cannot replicate a replicator.

Even if scarcity were more fully eliminated than in the Star Trek universe, I don’t think it follows that socialism is the only viable response, or that the knowledge and incentive problems that make socialism a menace in our world would suddenly disappear. So long as there are any important scarce goods at all, a government monopoly over them would still be a terrible danger, even if the government were democratic. If scarcity were truly abolished and anyone could have any good or service they wanted at zero cost, there would be no point to socialism, since we would not need government to either facilitate production or redistribute wealth.

Be that as it may, I agree with Yglesias that there is much to admire in Star Trek at its best, and I like some of his ideas for a new Star Trek series. Perhaps a new series will go where no series has gone before and hire him as a consultant.

The Institute for Justice, a leading libertarian public interest law firm that has litigated numerous property rights cases, reports that the Illinois state senate has passed a bill authorizing the use of eminent domain for the benefit of casinos:

The bill passed 32-20 in the state Senate on May 1 and is now being considered by the House Executive Committee. Gov. Pat Quinn has previously vetoed two Chicago casino bills in the past. However, while the governor still has concerns about this new casino bill, he has indicated he could sign, so long as gambling revenue funds education and ethics standards are tightened. (After all, four of Illinois’ last seven governors have gone to prison.) Yet casinos abusing eminent domain apparently hasn’t crossed Quinn’s mind.

As the IJ post notes, takings for the benefit of casino interests have occurred in other states, and often lead to the same sorts of abuses as other “economic development” condemnations of the type upheld by the federal Supreme Court in Kelo v. City of New London. Such takings are routinely used by politically powerful firms to acquire property from the politically weak. They also often destroy more economic value than they create. I discuss these problems in much more detail in this article.

In the aftermath of Kelo, some 44 states passed eminent domain reform laws intended to curb such abuses. But Illinois’ law is one of many that contain major loopholes that prevent them from providing much in the way of meaningful protection for property owners. The IJ post notes that Illinois’ 2006 law rates only a D+ under their grading scale.

Hopefully, the Illinois House of Representatives will reject the Senate bill. The legislation is currently before the House Executive Committee. If the House does not reject the bill, it is possible that state courts would strike it down. In a 2002 decision, the Illinois Supreme Court ruled that the potential economic benefits of expanding the operations of a private business is not a “public use” justifying the use of eminent domain under the state Constitution. As the Court put it (quoting a lower-court dissenting opinion), “the economic by-products of a private capitalist’s ability to develop land cannot justify a surrender of ownership to eminent domain.” At least some takings for the benefit of casino interests could run afoul of this ruling, although the state supreme court did not categorically ban all takings that transfer land to private parties for economic development purposes.

UPDATE: I have made a few stylistic revisions to this post.

This Thursday between 8 AM 9 AM eastern time, I will be appearing on Stand Up! With Pete Dominick, on XM Sirius satellite radio to discuss the major cases of the current Supreme Court term. I will be joined by Professor Eric Segall of Georgia State University. I am not sure exactly which cases we will discuss. But it’s probably a safe bet that the gay marriage cases will be among them, along with Fisher v. University of Texas, the affirmative action case. Since the show lasts a whole hour, we should be able to cover a significant amount of ground.

With Rhode Island and Delaware recently becoming the tenth and eleventh states to permit same-sex marriage and Minnesota likely to soon become the twelfth, now is a good time to reconsider the impact of judicial decisions requiring state recognition of gay marriage. The trend towards gay marriage began in 2003, with a Massachusetts Supreme Judicial Court decision holding that the state constitution required recognition of same-sex marriage. At first, nearly all the states that recognized gay marriage did so as a result of judicial decisions rather than legislation. In this way, it seems clear that the cause of gay marriage benefited greatly from judicial action.

Nonetheless, scholars such as Gerald Rosenberg and Jeff Rosen argued that such litigation harmed the cause of gay rights more than it helped it, because it tended to generate a political backlash, a theory that gained some credence in 2008, when Proposition 8 reversed a pro-gay marriage California Supreme Court decision. In a series of posts written in 2008-2009, I argued that such skepticism was unjustified, and that pro-gay marriage judicial decisions were a major net benefit for the cause of gay rights, backlash notwithstanding.

I think recent events largely vindicate my side of this debate. Since early 2009, the number of states legalizing same-sex marriage has grown from four to a soon-to-be twelve, with most of the recent ones doing so through the legislative process. This undercuts claims that judicial action undercuts political action. Public opinion has rapidly moved in a pro-gay marriage direction, undercutting arguments that litigation would turn the public against the cause. And, of course, the Supreme Court might be on the brink of requiring recognition of gay marriage from some or all of the states that still deny it. That is highly unlikely to have happened absent litigation-driven progress at the state level. Even if the Supreme Court upholds California Proposition 8, it would likely do so only by a very narrow margin that could easily be reversed by future decisions – signalling that the issue is contested in a way that was clearly not the case just 10-15 years ago.

Obviously, some of this progress is the result of long-term trends in public and elite opinion that would have occurred even without litigation. But it is unlikely it would have happened anywhere near so quickly were it not for the example effect of the establishment of gay marriage in Massachusetts and other states where it happened through judicial action. These decisions made gay marriage seem much more thinkable and mainstream than before. They also helped galvanize the gay rights movement. Furthermore, they made the previously radical idea of civil unions seem moderate by comparison, which in turn helped lead to their adoption in ten states that still do not permit full-blown gay marriage. As in the case of the civil rights movement, feminism, the gun rights movement, and property rights activists, among others, judicial action and political action turned out to be mutually reinforcing rather than antagonistic.

The political backlash against the 2003 Massachusetts decision did lead to the enactment of anti-gay marriage constitutional amendments in some thirty states. But for reasons I noted in this 2009 post, that was only a minor setback for gay rights activists. All but one of these states (California) were unlikely to enact gay marriage in the near future anyway. In addition, most of their constitutions are relatively easy to amend, which means that it will not be hard to reverse these amendments when and if public opinion in the state changes.

None of this proves that pro-gay marriage decisions were legally correct. In my view, gay marriage bans violate the federal Constitution because they constitute sex discrimination, and also those state constitutions that contain Equal Rights Amendments. But the correctness of these decisions is separable from their impact. They could be practically effective but legally dubious, or vice versa. Overall, litigation has turned out be a highly effective strategy for gay marriage advocates, whatever you might think about the correctness of their legal arguments.

That does not mean, of course, that litigation is always an effective strategy for all social movements. In order for it to succeed, there has to be at least some amount of preexisting support for the cause among both elite and general public opinion. Efforts to secure recognition of same-sex marriage through legal action flopped in the 1970s, because that base level of support was still lacking. Even where litigation does work, it is usually effective only in tandem with political activism, rather than completely removed from it.

But the recent history of gay marriage does show that litigation can often help advance a cause significantly faster and more effectively than would be the case otherwise. It therefore helps undercut the arguments of revisionist scholars who claim that such action is almost always ineffective, except in cases where the political process is likely to reach the same results on its own.

Co-blogger David Bernstein and I criticized such revisionist arguments in this 2004 article, focusing on the history of civil rights litigation. We pointed out several ways in which litigation can help disadvantaged minorities even when the political majority remains hostile or indifferent. The gay marriage case seems consistent with our theory as well.

At Deadspin, Reuben Fischer-Baum has an interesting piece cataloguing the highest-paid state employees in each of the fifty states. Forty of fifty are coaches, all but one of them in either football or basketball.

As Fischer-Baum notes, this state of affairs is not quite as egregious as it may at first seem. Many of these Division I football and basketball programs generate a lot of revenue for their state universities, and the coaches are often paid out of that revenue rather than taxpayer funds. I would also add that NCAA coaches are among the very few state employees who face a serious risk of being fired for poor performance. Most Division I football and basketball coaches get fired within a few years of starting a new job.

On the other hand, as Fischer-Baum also points out, many of the coaches are paid far more than is justified by their marginal contribution to their universities’ revenue streams, even as the NCAA – supported by state and federal governments – continues to operate a cartel that tries to prevent all financial compensation for the players. I made the case for paying Division athletes here and here.

Finally, the state of Maine deserves special recognition from legal academics. According to Fischer-Baum, the highest-paid state official in the Pine Tree State is a law school dean.

UPDATE: In the original version of this post, I accidentally got Fischer-Baum’s first name wrong (I put “Robert” instead of “Reuben”). Perhaps I subconsciously confused him with the late Bobby Fischer. In any case, I apologize for the error, which has now been corrected.

The Health Care Case: The Supreme Court’s Decision and its Implications - A new book on last year’s controversial Supreme Court decision on Obamacare is now available for pre-order at Amazon. The book is edited by Columbia law professors Nathaniel Persily, Gillian Metzger, and Trevor Morrison, and published by Oxford University Press. It contains essays on numerous aspects of the health care decision by a wide range of scholars, including VC-ers Jonathan Adler, Randy Barnett, and myself. There is also a large number of contributions by leading scholars on the other side of the issue, including Jack Balkin, Jamal Greene, Andrew Koppelman, Gillian Metzger, and Neil Siegel, among others. The Oxford University Press website has a complete table of contents here.

My own contribution to the volume addresses the Court’s analysis of the Necessary and Proper Clause, and explains why the individual health insurance mandate was not “proper” even if it could be considered “necessary.” An earlier version of that essay is available on SSRN here.

A recent Kaiser Family Foundation poll (Kaiser is one of the leading pollsters focusing on health care issues) finds that 42% of Americans are unaware that the Affordable Care Act is still the law of the land. Kaiser reports that that figures includes “12 percent who believe the law has been repealed by Congress, 7 percent who believe it has been overturned by the Supreme Court and 23 percent who say they don’t know enough to say what the status of the law is.” And as both Kaiser studies and other polls reveal, it is likely that many of the remaining 58% do not actually know very much about what is included in the law. If only the Kaiser poll had been published a little earlier, I would have included it in my forthcoming book Democracy and Political Ignorance: Why Smaller Government is Smarter (forthcoming this fall from Stanford University Press).

This kind of widespread ignorance is striking in light of the fact that the ACA has been widely debated for over three years, and information about is readily available from a wide range of sources, online and elsewhere. Some will find the result shocking. But it will not surprise long-time VC readers who know about the problem of rational political ignorance. Much of the public often ignores readily available information about politics and public policy because they find the subject uninteresting and there is little incentive to learn about it just for the purpose of becoming a better-informed voter. For that reason, even people who are by no means stupid can and often do rationally choose to remain ignorant about a variety of political issues. Those who do become relatively well-informed about politics often evaluate political information in a highly biased way, which is also rational, given that truth-seeking may not have been their main objective in following politics. Unfortunately, individually rational behavior often leads to bad collective results when voters take their ignorance and bias to the polls.

Today is May Day. Since 2007, I have advocated turning this date into Victims of Communism Day (though I should note that I didn’t invent the idea). In my very first post on the subject, I outlined the rationale for this step:

May Day began as a holiday for socialists and labor union activists, not just communists. But over time, the date was taken over by the Soviet Union and other communist regimes and used as a propaganda tool to prop up their regimes. I suggest that we instead use it as a day to commemorate those regimes’ millions of victims. The authoritative Black Book of Communism estimates the total at 80 to 100 million dead, greater than that caused by all other twentieth century tyrannies combined. We appropriately have a Holocaust Memorial Day. It is equally appropriate to commemorate the victims of the twentieth century’s other great totalitarian tyranny. And May Day is the most fitting day to do so. I suggest that May Day be turned into Victims of Communism Day….

The main alternative to May 1 is November 7, the anniversary of the communist coup in Russia. However, choosing that date might be interpreted as focusing exclusively on the Soviet Union, while ignoring the equally horrendous communist mass murders in China, Cambodia, and elsewhere. So May 1 is the best choice.

In this 2009 post, I discussed the issue of why the relative neglect of communist crimes matters. In a post last year, I defended the choice of May 1 against other possible alternatives, such as November 7 and August 23, the anniversary of the Nazi-Soviet Pact. To briefly summarize, May 1 is better than November 7 because it does not primarily focus on any one country. It trumps August 23 for the same reason, and also because that date is understandably a time for commemorating Nazi crimes as well as communist ones. The victims of the latter deserve a separate date of their own. If August 23 commemorations do not obviate the need for Holocaust Memorial Day, they also do not eliminate the need for a separate Victims of Communism Day. I also defended the choice of May 1 against the criticism that this date should be retained as a holiday for workers and labor unionists instead.

That said, as I have previously noted, I am not opposed to choosing a different date if we can forge a consensus around November 7, August 23, or some other date, but not May 1. The best possible date for Victims of Communism Day should not be the enemy of the merely good.

My written testimony on the use of drones for targeted killing in the War on Terror submitted for yesterday’s hearing the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights is now available here. You can view the video of the oral testimony (both mine and the other witnesses) here. I will post links to the other witnesses’ written testimony when and if they become available.

UPDATE: The written testimony of all the witnesses is now available here (see list of their names off to the right).

UPDATE #2: A written statement submitted for the hearing by Senator Rand Paul is available here.

A video of my and other witnesses’ oral testimony on the use of drones for targeted killing in the War Terror, before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights is now available here (just click on “webcast”). It was interesting for me to see that there was a broad consensus among the academic and ex-military witnesses on two key points: that the use of drones for targeted killing of terrorists is not inherently illegal or immoral, and that we need stronger safeguards to ensure that we are limiting drone strikes to legitimate military targets. It seems to me that many of the senators who asked questions – both Democrats and Republicans – were also sympathetic on these points. Whether this will lead to appropriate reforms remains to be seen.

I will try to post my written testimony by tomorrow.

UPDATE: You can also watch the hearing at the C-SPAN site here, though there are a few technical problems in that video that I noticed.

UPDATE #2: I do want to clarify one unfortunately ambiguous aspect of an answer I gave to a question by Sen. Michael Lee around 2:07:00 of the video at the Subcommittee website. I mentioned there that the Israeli government government has a judicial review mechanism for considering the legality of targeted killing decisions. I should have made clear that the Israeli system, as outlined in the Israeli High Court of Justice’s 2006 decision on the legality of targeted killing, establishes after-the-fact judicial review rather than judicial review in advance, of the kind contemplated in proposals to create a FISA-like court to review targeting decisions aimed at US citizens in advance. Both Sen. Lee’s question and the part of my answer that mentions Israel were ambiguous on the issue of the timing of judicial review. So I wanted to clarify that point here. As I noted later in my testimony, we cannot and should not simply copy all aspects of Israeli policy in this area, since their strategic situation and political system differ from ours. But we nonetheless should try to learn from their experience.

For those who may be interested, on Tuesday at 4 PM, I will be testifying at a hearing on “Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killing,” held by the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights. My testimony will focus primarily on the issues addressed in this post. You should be able to watch the hearing on C-SPAN and possibly at the Subcommittee’s website linked above.

I was only very recently invited to participate in this hearing, and I am not sure who all the other witnesses will be. But I do know that Prof. Rosa Brooks of Georgetown will be one of them, and that Senator Rand Paul is going to make a statement before the Subcommittee at the start of the hearing.

UPDATE: The complete witness list is now available here. It is as follows:

General James Cartwright
United States Marine Corp (Ret.)
Washington, DC

Farea Al-Muslimi
Sana’a, Yemen

Peter Bergen
Director
National Security Studies Program
New America Foundation
Washington, DC

Rosa Brooks
Professor of Law
Georgetown University Law Center
Washington, DC

Colonel Martha McSally
United States Air Force (Ret.)
Tucson, AZ

Ilya Somin
Professor of Law
George Mason University School of Law
Arlington, VA

As Damon Root notes, The Supreme Court recently refused to consider Ilagan v. Ungacta, an important Public Use Clause property rights case. I wrote an amicus brief on behalf of numerous public interest organizations and law professors urging the Court to take Ilagan and use it as an opportunity to clear up major ambiguities left over after Kelo v. New London, and also as a vehicle for reversing Kelo itself. I discussed the significance of the case in this post:

Ilagan v. Ungacta is a fairly egregious case where land was condemned for the purpose of benefiting a powerful private party, in this case the then-mayor of Agana, Guam, and his family (the new owners of the condemned property). In Kelo v. City of New London, one of the most widely opposed decisions in Supreme Court history, the Court ruled that the Public Use Clause of the Fifth Amendment allows condemnations for virtually any “public purpose,” including transferring property from one private owner to another in hopes of stimulating greater “economic development.” But the Court also noted that government may not “take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.” Unfortunately, neither Kelo nor other Supreme Court decisions have made clear what it means for a taking to be “pretextual.”

[L]ower federal courts and state supreme courts have come up with at least five different approaches to deciding what counts as a pretextual taking....

Ilagan is a great case for the Court to clarify the meaning of pretext because it includes all four possible indicators of pretext identified by various lower court decisions: dubious motives, a highly skewed distribution of benefits, lack of careful planning, and a major private beneficiary whose identity was obvious in advance of the taking...

[T]his case is also a good opportunity for the Court to consider overruling Kelo.... [T]he case for overruling Kelo easily qualifies under the Court’s traditional standards for overruling a constitutional decision: Among other things, the ruling was based on poor reasoning, it has been widely criticized, and its recent nature ensures that it has not yet created much in the way of reliance interests. Most strikingly, the Court should reconsider Kelo because retired Justice John Paul Stevens, the author of the Kelo majority opinion, has publicly admitted that his reasoning was based in part on what he calls an “embarrassing to admit” mistake.

With rare exceptions, the odds against the Supreme Court accepting any particular case are usually long. For that reason, this outcome is not surprising, though it is still disappointing. But we are still going to continue our efforts to persuade the Court to both clarify the meaning of “pretext” and overrule Kelo.