One approach would say that if you think that a particular method of judging is right and a nominee does not conform to that method, then that person should not be confirmed.  Under this premise, though, you would probably have to oppose most of the judges nominated by a President of the other party (at least [...]]]> A question raised by the Sotomayor nomination that is an issue for all judicial nominees is what standard should be used to determine whether someone is too extreme or “outside the mainstream” to be confirmed. (For purposes of discussion, let’s exclude issues about ethical problems or a lack of credentials.)  The main problem that I have with these confirmation fights is that I don’t know what standard is being applied.

One approach would say that if you think that a particular method of judging is right and a nominee does not conform to that method, then that person should not be confirmed.  Under this premise, though, you would probably have to oppose most of the judges nominated by a President of the other party (at least in an era, like today, where the parties differ sharply on how judges should judge).  The burden of proof would be on the President to persuade a senator from the other party that a given nominee shares (to a sufficient degree) that senator’s world-view.  (Maybe this is only true for circuit judges and Supreme Court Justices, who have more interpretive latitude and power than district court judges).

Another approach would ask whether the nominee has views that are an outlier in comparison only to those who do share the President’s outlook on judging.  In this case, the assumption would be that the President should get his choice unless the nominee’s views are rejected by a significant number of her “fellow-travelers.”  That requires a more diligent analysis of the nominee’s record, as it is often obvious whether somebody shares your judicial method, but it ’s harder to show that her attitudes are significantly different from those who follow a similar approach.

Which standard you choose makes a difference.  For example, Ed Whelan (over on “Bench Memos”) has written a number of critical posts about the nomination of Goodwin Liu for a seat on the Ninth Circuit.  (As I mentioned in a prior post, I know Goodwin and think that his selection is excellent).  Whelan seems to be using Standard #1 — he is not convinced that the nominee shares his judicial philosophy and is therefore skeptical about confirmation.   I think that I am using Standard #2 — I am not persuaded that Professor Liu’s views are inconsistent with how most Democrats (including the President) see the role of judges.

Now this does not answer the question of which standard is better, though I would point out that Standard #2 does show more respect for the fact that the President is elected in part because people share his view of how judges should act.  Moreover, if you adopt Standard #1 I don’t see on what grounds you can complain about the rejection of your favored nominees on ideological grounds.

If they’re looking for ideas, there’s always this.

Karlan starts by discussing three established trademark doctrines:  (1) genericism, (2) confusion; and (3) tarnishment. Genericism refers to a mark that becomes synonymous with the type of good that it marks (e.g., aspirin) and loses its distinctiveness.  Confusion refers to the fact that a mark owner may enjoin the use of a similar mark that is likely to cause consumer confusion.  And tarnishment refers to a mark owner’s power to enjoin the use of a similar mark that creates unwholesome associations harmful to the brand.

First, Karlan argues that originalism [...]]]> These are two topics of interest to me, but they are rarely yoked together.  Pam Karlan, though, does so in a terrific essay called “Constitutional Law as Trademark,” which is at 43 U.C. Davis L. Rev. 385 (2009).

Karlan starts by discussing three established trademark doctrines:  (1) genericism, (2) confusion; and (3) tarnishment. Genericism refers to a mark that becomes synonymous with the type of good that it marks (e.g., aspirin) and loses its distinctiveness.  Confusion refers to the fact that a mark owner may enjoin the use of a similar mark that is likely to cause consumer confusion.  And tarnishment refers to a mark owner’s power to enjoin the use of a similar mark that creates unwholesome associations harmful to the brand.

First, Karlan argues that originalism should be understood as a generic term because it “has become a blanket term describing constitutional interpretation, rather than a distinctive form of a generic practice.” This is largely true, given that Jack Balkin now says that he is an originalist and reaches totally different results from other originalists (not to mention the disagreements among conservative originalists about what they are doing).

Second, she says that the debate over the meaning of Brown in Parents Involved involves confusion because “the Chief Justice and Justice Thomas were engaged in confusing those members of the public who consume their opinions over the provenance or source of their arguments.  They were claiming to be the successors in interest to the lawyers from the NAACP Legal Defense Fund who ‘made’ Brown.”  Now this is more debatable, of course, but her point is that if you think Brown was an anti-caste opinion and not an anti-classification opinion, then these efforts to “confuse” people about Brown must be rebutted.

Finally, Karlan argues that the debate over same-sex marriage is an example of tarnishment.  Opponents of that reform are claiming that “marriage” would be devalued if the definition is changed.  She then says “trademark scholars have expressed skepticism about permitting tarnishment claims because of the threats to free expression, particularly in cases that involve noncommercial uses of a mark, so too, should one view this tarnishment-of-marriage skeptically.”  This last point is true but incomplete– you’d be hard-pressed to find courts that rejected tarnishment claims on First Amendment grounds (the non-commercial proviso is a bit a red herring, since trademark law does not apply to a commercial use).  The tarnishment analogy is a good one, but I think it leads to the opposite conclusion (at least until people no longer feel that permitting same-sex marriage is tarnishment).

Two ships, one under sail (The Mary Troop) and the other mechanical (The Pennsylvania), were in a dense fog.  An Act of Congress and an Act of Parliament provided that when in fog a sailing ship should sound a foghorn while under way and a bell while at rest.  The Mary Troop was under way but decided to sound a bell instead of a foghorn.  The ships collided and a lawsuit was brought.  The [...]]]> The Pennsylvania is one of the most significant cases in American maritime law, but most lawyers have never heard of it.  I want to introduce you to the decision, because it sheds light on an important question in torts–when should a party’s negligence be presumed the “but for” cause of an accident.

Two ships, one under sail (The Mary Troop) and the other mechanical (The Pennsylvania), were in a dense fog.  An Act of Congress and an Act of Parliament provided that when in fog a sailing ship should sound a foghorn while under way and a bell while at rest.  The Mary Troop was under way but decided to sound a bell instead of a foghorn.  The ships collided and a lawsuit was brought.  The Pennsylvania was found negligent for going too fast in the fog.  The issue of interest here was whether The Mary Troop’s negligence in not complying with the statutory requirements was (at least in modern parlance) a but-for cause of the accident and thus should lead to the imposition of divided damages (the maritime doctrine holding that when both parties were at fault the plaintiff recovered 50% of its damages).

The problem, as is often true in accidents, is that The Pennsylvania could not meet its burden of proof to show that if it had heard the proper signal (a foghorn) the accident would have been avoided.  Basically, this was an impossible burden to meet under the circumstances.  The Supreme Court held, however, that but for cause should be presumed when a safety statute designed to prevent certain kinds of accidents is violated and then that kind of accident occurs.

What’s interesting is that this rule is usually attributed to Cardozo’s opinion in Martin v. Herzog, which was written more than forty years after The Pennsylvania.  Herzog involved a buggy that did not have its headlights on at night and got into an accident.  A state statute provided that you had to have lights on at night while driving.  Proving that the accident was caused by the lack of lights was a problem.  Cardozo reasoned, though, that causation should be presumed because a violation of a safety statute was involved. He did not cite The Pennsylvania.  That is not surprising, as common-law courts were not inclined to cite admiralty decisions.  But this is just one of many areas when maritime law got to the right answer first.

UPDATE:  The cite is 86 U.S. (19 Wall.) 125 (1873).

Doesn’t that allow a minority to filibuster notwithstanding the formal time limits?  For example, I’ve seen a suggestion that somebody could introduce the United States Code as an amendment.  In the absence of unanimous consent, that amendment would have to read in its entirety.  (And would take forever).  Now somebody could raise a point of order against the amendment, but can they do that before it’s read?  And if so, does debate on the point of order count [...]]]> I’d like to raise an issue for those who know more about Senate procedure than I do.  As I understand the way reconciliation works, the time for debate on a bill is strictly limited.  There is, however, no limit on the number of amendments that can be offered.

Doesn’t that allow a minority to filibuster notwithstanding the formal time limits?  For example, I’ve seen a suggestion that somebody could introduce the United States Code as an amendment.  In the absence of unanimous consent, that amendment would have to read in its entirety.  (And would take forever).  Now somebody could raise a point of order against the amendment, but can they do that before it’s read?  And if so, does debate on the point of order count as a debate on the bill or a debate on the amendment?

When I was in law school, John Langbein said that the rules of an adversarial criminal trial were unworkable if everyone pressed them to their limits.  The criminal justice system, he said, only works because most defendants don’t have the wherewithal to do that.  The Senate is similar.  Any determined group of Senators can find a way to use the rules to block this bill if they think it is in their political interest to do so.

1.  One amusing moment was when Justice Scalia asked whether the right to bear arms is “implicit in the concept of ordered liberty,” the test from Cardozo’s opinion in Palko v. Connecuticut, and pointed out the most nations don’t guarantee gun rights.  That was a criticism of the Palko test, but I thought were weren’t supposed to look at foreign law to interpret the Constitution.  (Maybe he meant that because Palko permits such an inquiry [...]]]> The oral argument in today’s case about the incorporation of the Second Amendment was dull (at least based on the transcript).  It is clear that the Court will extend Heller to the States and that the Privileges or Immunities Clause will be ignored (maybe Justice Thomas will write separately).  Having said that:

1.  One amusing moment was when Justice Scalia asked whether the right to bear arms is “implicit in the concept of ordered liberty,” the test from Cardozo’s opinion in Palko v. Connecuticut, and pointed out the most nations don’t guarantee gun rights.  That was a criticism of the Palko test, but I thought were weren’t supposed to look at foreign law to interpret the Constitution.  (Maybe he meant that because Palko permits such an inquiry that standard is incorrect, but then again it doesn’t require looking at foreign law.)

2.  Justice Stevens’ suggestion that the Second Amendment should not be incorporated jot-for-jot is a bad idea.  The fact that the Sixth Amendment jury right is treated that way (on the unanimity issue) is not an example to follow; it is an exception that should be eliminated.

3.   The Court will probably not say anything new about the scope of the Second Amendment in the opinion.  More litigation to come!

Consequently, I was very disappointed by the statement released by Senator Jeff Sessions (R), the ranking member of the Judiciary Committee.  Of particular note was the Senator’s assertion that Professor Liu is “far outside the mainstream of American jurisprudence,” which was followed up by the not-so-reassuring claim that “his record will be examined carefully and fairly.”  The idea that Professor Liu or his scholarship is exceptional for anything other than excellence is absurd.

Moreover, I don’t know [...]]]> Last week the President’s nominated Goodwin Liu, a professor at UC-Berkeley, for a seat on the Ninth Circuit.  I went to law school with Goodwin, and he is exceptionally smart, thoughtful, and fair-minded. Though we do not approach constitutional issues in a similar way, he would be a superb judge.

Consequently, I was very disappointed by the statement released by Senator Jeff Sessions (R), the ranking member of the Judiciary Committee.  Of particular note was the Senator’s assertion that Professor Liu is “far outside the mainstream of American jurisprudence,” which was followed up by the not-so-reassuring claim that “his record will be examined carefully and fairly.”  The idea that Professor Liu or his scholarship is exceptional for anything other than excellence is absurd.

Moreover, I don’t know what the mainstream of American jurisprudence is, unless that is supposed to mean “Think like Justice Kennedy.”  (And if you believe that is the appropriate standard for judges, think again). In truth, there are two currents in the mainstream–liberal and conservative.  For example, Chief Justice Roberts and Justice Alito are mainstream conservatives, while Justice Sotomayor is a mainstream liberal. Anyone who fits that category should be confirmed by the Senate unless a valid issue is raised about that candidate’s integrity or experience.  Professor Liu easily passes that test.

Unfortunately, there are many organizations and lawyers inside the Beltway whose existence and ability to sustain themselves through fundraising is predicated on stirring up judicial confirmation fights. Since there are not enough Supreme Court nominations to go around, these groups now target circuit nominees. Both sides of the political divide are guilty of this behavior, and they ought to knock it off.

With respect to this pick (as with every Court nomination), the President will need to make a political calculation.  In this case, part of the choice comes down to “Does he want a smooth confirmation?” or “Does he want to pick a fight with Republicans and excite his base?”  The selection of Kagan would not fulfill the latter goal, as far as I can see, thus her selection makes sense only if the President wants to calm the waters.  And that depends to a [...]]]> Yesterday, Tom Goldstein kicked off this year’s speculation about who the next Justice will be (assuming that Justice Stevens retires, which seems highly likely).  His view is that Solicitor General Elena Kagan will get the nod.  I think this is probably wrong.

With respect to this pick (as with every Court nomination), the President will need to make a political calculation.  In this case, part of the choice comes down to “Does he want a smooth confirmation?” or “Does he want to pick a fight with Republicans and excite his base?”  The selection of Kagan would not fulfill the latter goal, as far as I can see, thus her selection makes sense only if the President wants to calm the waters.  And that depends to a large extent on what happens with health care, which is too close to call.  If the health care bill fails, then the President will need something for his base and Kagan would probably be out of luck.  If health care passes, though, then her chances go up.

Even assuming that Kagan’s nomination makes political sense, I think there is a valid case to make against her on the merits.  First, a sitting SG that reaches the Court must recuse herself in many cases during the first year or two of her tenure because of her involvement in the certiorari petitions.  Thus, there may be a significant short-term cost to picking her that would not be true for a sitting judge or an elected official.

Second, I’m not clear that Kagan has been a good Solicitor General.  You could make a decent case that her handling of Citizens United, from the point of  view of those who don’t like the decision, was slapdash both in the initial argument and in the way the issues were framed on reargument.  As the outcome of that case is dear to progressives, I wonder how they will view her lawyering skills upon closer scrutiny.  (To be fair, you could say that no matter what she did the outcome would have been the same, but I’m not sure about that.)

My sense is that this is not a positive development.  Since the grant of certiorari discretion in 1925, it has become axiomatic that the Supreme Court is not [...]]]> Other than Citizens United, the most interesting trend of the Supreme Court’s term thus far is the increasing use of summary reversals (in other words, a decision on the merits without full briefing or argument). These are not cases where the Court is just doing a GVR (“Grant, Vacate, and Remand”) in light of a recent decision. Instead, they must be situations where the Justices think that the lower court was so wrong that only a brief per curiam opinion is necessary for reversal and that adding the case to its docket would be a waste of time.

My sense is that this is not a positive development.  Since the grant of certiorari discretion in 1925, it has become axiomatic that the Supreme Court is not in the error correction business.  But that’s what summary reversals are.  If the legal issues involved are sufficiently important to merit the Court’s attention, then they should also be significant enough to deserve full briefing and argument.  Many lawyers criticize the Court for not taking enough cases, but I don’t think the summary reversal procedure is what they had in mind.

Things are more ambiguous with respect to legal interpretation.  The Attorney General would take some political heat if he rejected an opinion of the Office of Legal Counsel (OLC), and the President would take [...]]]> One interesting facet of the health care debate is the political authority being wielded by civil servants.  For example, every time a new version of the legislation is proposed, there is a pause while the Congressional Budget Office (CBO) determines how much the plan will cost.  This “score” ends up being quite important, as many Senators will not support a bill that costs more than a certain amount.  Nevertheless, they are not in a position to challenge the CBO’s numbers, as their independent determination would be dismissed as nothing more than politics.

Things are more ambiguous with respect to legal interpretation.  The Attorney General would take some political heat if he rejected an opinion of the Office of Legal Counsel (OLC), and the President would take even more heat for rejecting the legal views of the Justice Department.  Nevertheless, it would not be beyond the pale for that to happen because the political costs might be tolerable, in a way that would not be true if a President or Attorney General tried to defy a federal court order.  The latter reflects a constitutional principle and the former does not –probably because it is an intra-executive-branch dispute.  (Of course, the OLC is led by a political appointee, but until recent years it was seen as a nonpartisan institution.)

How does the Senate fits into this equation?  Rulings on Senate procedure are normally made by the parliamentarian, a civil servant, who advises the presiding officer about what should be done.  The presiding officer is formally free to disregard that advice, but the Vice-President has not exercised his authority to do so since 1975.  One could say that this abdication to the parliamentarian is now so settled that a contrary action should be deemed out of bounds.  I am not clear, though, about the political costs of rejecting the parliamentarian’s advice.

The reason I raise this point is that, if the Senate Democrats use the reconciliation process to pass health care, the parliamentarian could become a household name.  (He’s Alan Frumin, and has been in office since the 1990s).  If he makes some favorable rulings on the points of order that the Republicans are sure to raise, that will put Joe Biden in the hot seat.  Will he feel bound by those rulings?  Or will he overrule any decisions that mess up the President’s proposal by excluding them from reconciliation and subjecting them to the sixty-vote cloture rule?  And if he does that, how will the country react?   Will anyone care?

There is one major exception to that pattern, and it’s the subject of my forthcoming book on William Jennings Bryan and the Populists (hopefully coming to a store near you in September). Bryan (depicted on the right) was another young and charismatic leader who came along in a time of economic distress and political turmoil.  But [...]]]> Readers of this blog know that I have repeatedly asserted that President Obama’s election in 2008 marked a generational transition in accord with a theory of constitutional change set forth in my book on Jacksonian Demoracy.  Basically, the idea is that every thirty years or so the established party system falls apart, there is a realigning election, and a new movement, after overcoming intense opposition, creates a new governing philosophy.

There is one major exception to that pattern, and it’s the subject of my forthcoming book on William Jennings Bryan and the Populists (hopefully coming to a store near you in September). Bryan (depicted on the right) was another young and charismatic leader who came along in a time of economic distress and political turmoil.  But he lost the crucial 1896 election (and in 1900 and 1908), in part because he scared a lot of people.  The result was a backlash against his policies that reset the constitutional baseline in a totally different direction (Jim Crow, liberty of contract, etc.)

Is it possible that Obama is another Bryan?  (Not from a personal standpoint, but from a political one).  My initial take was, “No, because Obama won.”  Consider, though, the following hypothetical.  Suppose that Bryan had won in 1896 and his presidency turned out to be a disaster.  In 1898, the Republicans regained control of Congress with the help of a new grass-roots movement that mobilized against Bryanism.  And in 1900, the GOP captured the presidency as well and, energized by these new citizen activists, embraced far more conservative policies than they had followed before 1896.

The only difference between this and what actually happened is that Bryan was stopped (and the backlash took hold) before he won.  But that isn’t much of a difference.  And it suggests that the Populist example is worth considering more carefully for clues about how this Presidency will unfold.  Since most Presidents at the start of a realignment run into problems, one cannot conclude that the Obama Administration will fail and provoke an even more intense counter-reaction from the Tea Party.  But that outcome is possible.

REFORMING THE FILIBUSTER

Gerard N. Magliocca*

Filibusters are a necessary evil, which must be tolerated lest the Senate lose its special strength and become a mere appendage of the House of Representatives.[1]

Senator Robert C. Byrd

The House of Lords is not the watchdog of the constitution; it is Mr. Balfour’s poodle.[2]

David Lloyd George

The most troubling countermajoritarian difficulty in modern constitutional law is Rule Twenty-Two of the United States Senate.[3] Forty-one Senators, who may represent less than forty-one percent of the population due to the malapportionment of the Senate, can veto most legislation [...]]]> I thought I’d try an experiment.  Yesterday I mentioned that I’m working on an Article about the filibuster. Below the fold is the introduction of that paper.  I welcome any and all feedback.

REFORMING THE FILIBUSTER

Gerard N. Magliocca*

Filibusters are a necessary evil, which must be tolerated lest the Senate lose its special strength and become a mere appendage of the House of Representatives.[1]

Senator Robert C. Byrd

The House of Lords is not the watchdog of the constitution; it is Mr. Balfour’s poodle.[2]

David Lloyd George

The most troubling countermajoritarian difficulty in modern constitutional law is Rule Twenty-Two of the United States Senate.[3] Forty-one Senators, who may represent less than forty-one percent of the population due to the malapportionment of the Senate, can veto most legislation and presidential nominations by refusing to invoke “cloture” and thereby allow debate on those matters to end.[4] Though the filibuster is woven into our political folklore and critical to the legislative process, few legal scholars have examined the practice.[5] That is surprising because the presumption that a supermajority is required for action in the Senate is a recent development that casts a shadow over democratic self-government.[6]

This Article evaluates the tradition of unlimited debate in the Senate and argues for a change in Rule Twenty-Two that would turn the cloture vote into a suspensory rather than an absolute veto.[7] Put another way, forty-one Senators should only be able to extend debate on legislation or nominations that reach the floor for a year within a given Congress.  This proposal, which is patterned on the power of the British House of Lords to block most bills passed by the House of Commons from becoming law for up to a year, would strike a better balance between a majority’s right to govern and a minority’s right to be heard.[8] A suspensory veto would also bring the Senate back to its traditional practice, which allowed a determined majority to get its way except at the end of a Congress when claims of undue haste were more legitimate.[9]

The primary reason why cloture should be reformed is that unlimited Senate debate is now just a legal fiction.[10] Under the “two-track” legislative calendar instituted in the 1970s, a refusal to vote for cloture does not lead to extended debate–it leads to no debate.[11] The Senate Majority Leader almost always removes the disputed bill from the floor (or does not bring it forward in the first place) and moves on to other business.[12] Since it is impractical to end the two-track system because of the Senate’s aversion to the unpredictable and unpleasant schedule that would be created by round-the-clock speeches, there is no deliberative basis for the current cloture rule.[13] On the other hand, solicitude for minority rights and a desire to stop statutes from being rushed through the Senate without appropriate scrutiny suggest that getting rid of cloture entirely would be wrong.  Ironically, the House of Lords, which is the least studied or respected legislative body in any major democracy, offers the best procedural solution.[14]

Convincing people that the filibuster should be turned into a suspensory veto is one thing; convincing the Senate to adopt this idea is something else.  Public pressure did force the adoption of the initial cloture rule in 1917, but that may not be enough this time.[15] In some cases the Senate responds only to institutional pressure.  For instance, when reformers sought to end the power of one-third of the Senate to control Native American policy by rejecting tribal treaties, the House of Representatives refused to appropriate funds for those treaties and forced the Senate to back down and agree that the Tribes should be regulated by ordinary legislation.[16] When progressives failed to get the Senate to take up the Seventeenth Amendment, which changed how its members were chosen, nearly two-thirds of state legislatures petitioned for a constitutional convention and the Senate gave way.[17] And when internationalists in the 1940s wanted to make sure that a Senate minority could not repeat the mistake of rejecting the League of Nations, the House passed a constitutional amendment abolishing the traditional treaty ratification process and the Senate accepted the idea that a congressional-executive agreement passed by a majority of each House of Congress could be the legal equivalent of a treaty.[18] Getting cloture reform may require this kind of robust action again.

Part I traces the development of the filibuster and argues that the current version is inconsistent with the majoritarian tradition of the Senate and serves no legitimate purpose.  Part II makes the case for a suspensory veto by examining how concerns about the lack of democracy within Parliament led to the creation of a similar rule for the House of Lords.  Part III explores past episodes where the Senate was strong-armed into giving up its prerogatives and provides some suggestions on how that could be done for cloture.

[1] Gregory J. Wawro & Eric Schickler, Filibuster:  Obstruction and Lawmaking in the U.S. Senate 7 (2006).

[2] Roy Jenkins, Mr. Balfour’s Poodle:  Peers v. People 10 (1954) (attacking the absolute veto held by the House of Lords prior to the Parliament Act of 1911).

[3] See Alexander M. Bickel, The Least Dangerous Branch:  The Supreme Court at the Bar of Politics 16 (2d ed. 1986) (coining “countermajoritarian difficulty” to describe judicial review); see also Standing Rules of the Senate, Rule XXII, Part 2 (stating that on most questions whether a Senate debate “shall be brought to a close . . . shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn”).

[4] See U.S. Const., art I, § 3, cl. 1 (“The Senate of the United States shall be composed of two Senators from each State . . .”).  The structure of the Senate is clearly contrary to the Supreme Court’s “one-person, one-vote” decisions.  See Reynolds v. Sims, 377 U.S. 533, 574 (1964) (rejecting the federal analogy to the apportionment of state legislatures because “[t]he system of representation in the two houses of the Federal Congress is one ingrained in our Constitution, as part of the law of the land.  It is one conceived out of compromise and concession indispensable to the establishment of our federal republic.”).  It is also possible that forty-one Senators can represent more than fifty percent of the population, thus one cannot say that the filibuster is always countermajoritarian.  Of course, judicial review is not always countermajoritarian either.  The Court sometimes strike down state statutes that are contrary to the views of a national majority.

[5] See Sarah A. Binder & Steven S. Smith, Politics or Principle?:  Filibustering in the United States Senate 1 (1997) (“Perhaps no feature of legislative procedure has received more attention–and less scrutiny–than the Senate filibuster.”); Fisk & Chemerinsky, supra note 4, at 183 (“[L]egal scholars have paid only limited attention to the filibuster.”); Michael J. Gerhardt, The Constitutionality of the Filibuster, 21 Const. Comment. 445, 446 (2004) (“[V]ery few legal scholars have devoted serious attention to the filibuster.”); cf. Mr. Smith Goes to Washington (Columbia Pictures 1939) (glamorizing the filibuster).

There are exceptions to the cloture rule, most notably in the “reconciliation” process that governs bills involving the budget.  See 2 U.S.C. §§ 907 b, 907 d (2004); Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 Stan. L. Rev. 181, 215 (1997) (“Under congressional legislation governing the budget, all budget reconciliation legislation is considered under procedural rules that strictly limit the time for debate and other procedural delay.  Reconciliation bills cannot be filibustered because the time for debate is strictly limited by statute.” (footnote omitted)).

[6] See Wawro & Schickler, supra note 1, at 157 (“In the contemporary Senate, with the exception of budget legislation and other bills where statutory requirements restrict minority obstruction, it is safe to assume that a 60% majority is generally necessary to adopt major legislation.  In the pre-cloture Senate, no such assumption appears appropriate.”); Fisk & Chermerinsky, supra note 4, at 199 (stating that “from the late 1920s until the late 1960s, the filibuster became almost entirely associated with the battle of civil rights” and was not used on other issues); Gerhardt, supra note 5, at 452 (pointing out that Senate liberals opposed the filibuster on principle during the civil rights era).

It should be noted that the President can circumvent filibusters of his nominees to some extent by making a recess appointment.  See U.S. Const., art. II, § 2, cl. 3 (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”).

[7] This Article assumes that Rule 22 is constitutional, or at least that no court would dare invalidate a longstanding internal Senate rule.  See U.S. Const., art. I, § 5, cl. 2 (stating that “[e]ach House may determine the Rules of its Proceedings . . .”); Fisk & Chemerinsky, supra note 4, at 243 (“History strongly suggests that allowing Congress to implement a supermajority voting rule is constitutionally acceptable.”); Gerhardt, supra note 5, 449 (2004) (“This Essay concludes that the filibuster is best understood as a classic example of a nonreviewable, legislative constitutional judgment.”).

[8] See Parliament Act, 1949, 12, 13, & 14 Geo. 6, c. 103 (Eng.) (providing that the House of Commons may enact legislation over the objection of the House of Lords–within a given Parliament–after a one year delay); Parliament Act, 1911, 1 & 2 Geo., c. 35 (Eng.) (providing that money bills may be enacted by the House of Commons over the objections of the Lords after just a one month delay).  Part II explains how this rule emerged in Britain and why that history is pertinent for the ongoing debate about Senate cloture.  See infra text accompanying notes —.

[9] See Binder & Smith, supra note 5, at 6 (“Taking advantage of the constitutionally mandated adjournment of Congress on March 4 of the odd-numbered years [prior to the Twentieth Amendment], senators perfected the art of exploiting the rules at the end of the session to block action on measures they opposed . . .”); Fisk & Chemerinsky, supra note 4, at 195, at 195 (“The early filibusters were largely unsuccessful in blocking legislation; almost every filibustered measure before 1880 was eventually passed.”).  As Part I explains, a majority with intense preferences almost always prevailed because it could credibly threaten to end obstruction through a ruling by the presiding officer; a predecessor to the “nuclear option” that is discussed in the modern Senate.  See Wawro & Schickler, supra note 1, at 11 (arguing “that mutability of the Senate’s rules was an important constraint on obstructive behavior in the 19th century.”); Martin B. Gold & Dimple Gupta, The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster, 28 Harv. J.L. & Pub. Pol’y 205, 260-61 (2004) (explaining how a Senate majority could invoke cloture by tabling a ruling by the presiding officer that any further debate on a pending motion is out of order); infra text accompanying notes —.

This Article takes no position on whether the cloture rule can be amended by a majority or whether Rule Twenty-Two’s statement that a two-thirds vote is required to invoke cloture on a rule change controls.  Compare Gerhardt, supra note 10, at 445 n* (concluding that the nuclear option “is illegal and constitutes an unfortunate breach of the Senate’s heretofore unbroken practice of amending its rules in strict accordance with its rules”), with John C. Roberts, Majority Voting in Congress:  Further Notes on the Constitutionality of the Senate Cloture Rule, 20 J.L. & Pol. 505, 507 (2004) (“[T]he Cloture Rule, and therefore the filibuster rule itself, are in fact subject to the will of a simple majority of the Senate at any time.  I argue that this is true both as a matter of Senate practice and of constitutional principle.”).  I also do not address whether, if a two-thirds vote is required, that is an unconstitutional entrenchment of cloture.  Compare Fisk & Chermerinsky, supra note 4, at 185 (stating that Rule Twenty-Two “impermissibly entrenches the views of today’s Senate by dictating rules for future Congresses”), with Gerhardt, supra note 5, at 448 (“Article I contains no explicit or implicit antientrenchment principle that would preclude the Senate from adopting procedural rules that carry over from one session to the next and may only be altered with supermajority approval.”).

[10] See Fisk & Chemerinsky, supra note 4, at  184 (“The modern filibuster, by contrast, has little to do with deliberation and even less to do with debate.  The modern filibuster is simply a minority veto, and a powerful one at that.”); see also Binder & Smith, supra note 5, at 1 (“According to conventional wisdom, the right of unrestricted debate in the Senate helps moderate extreme legislation, blocks passage of measures opposed by a popular majority, and is inseparable from the origins and traditions of the Senate.  Such claims are, in fact, mostly myth:  there is scarce theoretical or empirical support for much of the received wisdom about the Senate filibuster.”).

[11] See Fisk & Chemerinsky, supra note 4, at 201 (“In response to repeated civil rights filibusters, Majority Leader Mike Mansfield developed a system whereby the Senate would spend the morning on the filibustered legislation and the afternoon on other business.”); Gold & Gupta, supra note 10, at 252-53 (“By 1975, the Senate had implemented a “two-track system” for considering legislation, which allowed the Senate to continue to work on all other legislation on one track, while a filibuster against a particular piece of legislation is theoretically in progress on the other track.”(internal quotation marks omitted)).

[12] See Wawro & Schickler, supra note 1, at 259-60 (“If the supporting coalition behind a piece a major legislation is not large enough to invoke cloture, the legislation is not likely even to make it to the floor.”); Fisk & Chemerinsky, supra note 4, at 203 (“A credible threat that forty-one senators will refuse to vote for cloture on a bill is enough to keep that bill off of the floor.”).

[13] See Binder & Smith, supra note 5, at 216 (“Party leaders–trying to cater to their members’ frequent requests for a more predictable and family-friendly (let alone fundraising friendly) schedule–are unlikely to want to enforce round-the-clock filibusters at the expense of creating a logjam of important legislative business.”); see also Wawro & Schickler, supra note 1, at 262 (“[I]t is the choice of a majority not to engage obstructing senators in a war of attrition.”).

[14] See, e.g., The Federalist No. 63, at 430 (James Madison) (Jacob E. Cooke ed., 1961) (calling the House of Lords a “hereditary assembly of opulent nobles”); see also Walter Bagehot, The English Constitution (Cosimo Classics 2007) 95 (1873) (stating that the House of Peers was inferior because “[t]he qualities which fit a man for marked eminence, in a deliberative assembly, are not hereditary, and are not coupled with great estates.”); Jenkins, supra note 2, at  55 (quoting Winston Churchill’s view that the Lords was a “one-sided, hereditary, unprized, unrepresentative, irresponsible absentee”).  Most of the hereditary peers were finally removed from the House of Lords in 1999, see House of Lords Act, 1999, c. 34 (UK), and now most of its members are lifetime appointees, see Life Peerages Act, 1958, 6 & 7 Eliz. 2, c. 21 (UK).

[15] See Robert Mann, The Walls of Jericho:  Lyndon Johnson, Hubert Humphrey, Richard Russell, and the Struggle for Civil Rights 79 (1996) (stating that Woodrow Wilson “shamed senators into enacting a cloture rule” after a filibuster blocked a bill to arm merchant ships); Gold & Gupta, supra note 10, at 217 (describing public outrage at this end-of-session filibuster by eleven isolationist Senators).

[16] See U.S. Const., art. II, § 2, cl. 2 (stating that “two thirds of the Senators present” must concur to ratify a treaty); Antoine v. Washington, 420 U.S. 194, 201-02 (1975) (describing this struggle in the 1860s and 1870s); Act of Mar. 3, 1871, 16 Stat. 544, 566 (codified as 25 U.S.C. § 71) (“No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty . . . .”).

[17] See Gerard N. Magliocca, State Calls for an Article Five Convention:  Mobilization and Interpretation, 2009 Cardozo L. Rev. de novo 74, 79-81 (describing this showdown over the Seventeenth Amendment).

[18] See Bruce Ackerman & David Golove, Is NAFTA Constitutional? 89-96 (1995) (describing how the Senate relinquished its treaty monopoly during the mid-1940s); see also John Milton Cooper Jr., Woodrow Wilson:  A Biography 506-59 (2009) (recounting the Senate debate over the Treaty of Versailles).

“Although we usually call reward and punishment the two hinges upon which all government turns, yet I could never observe this maxim to be put in practice by any nation except that of Lilliput . . .  And these people thought it a prodigious defect of policy among us, when I told them that our laws were enforced only by penalties, without any mention of reward.  It is upon this account that the image of Justice . . . [has] a bag [...]]]> This is the last in my series of posts on rewards.  I want to give a nod to Nate, who pointed out to me that the first society to rely heavily on rewards as a regulatory tool was Liliput (as described in Gulliver’s Travels:

“Although we usually call reward and punishment the two hinges upon which all government turns, yet I could never observe this maxim to be put in practice by any nation except that of Lilliput . . .  And these people thought it a prodigious defect of policy among us, when I told them that our laws were enforced only by penalties, without any mention of reward.  It is upon this account that the image of Justice . . . [has] a bag of gold open in her right hand, and a sword sheathed in her left, to show she is more disposed to reward than to punish.”

Where would an open bag of gold be useful for us?  My research is focusing on areas where enforcement of a particular legal regime is especially weak.  When we look at tax collection, illegal immigration, or copyright law for example, the current regulatory approach of sanctions and voluntary compliance isn’t working all that well.  Now that could be because we really don’t want to enforce the law in these areas (especially with respect to immigration), but it could also be because we are using sticks instead of carrots.

Blogging will be light for the next few weeks, as I’m working on an article about the filibuster and need to put through a set of changes on my book.

“She was good, not brilliant; useful, not ornamental, and the mother of 15 children.”

Perhaps it’s a good thing that the tradition of putting epitaphs on tombstones has largely died out.  (With the important exception of Mel Blanc, who has “That’s All Folks” on his.  Now that’s worthwhile.)

It is easy to make the case against price controls, even in an emergency.  They lead to shortages because the incentive to stock the price-controlled good is reduced and consumer demand does not reflect scarcity. Nevertheless, people tend to be very critical, for example, of gas stations that jack up prices at [...]]]> The double-blizzard in DC (described this morning as “The Ice Planet Hoth”) raises the issue of price gouging and rationing.  I always teach price gouging in my Unfair Competition class because it helps students think about the question of when market practices should be regulated.  Every state, after all, gives its attorney general some kind of power to bring an action under some circumstances against merchants who charge “exorbitant” prices.  Why is this appropriate?

It is easy to make the case against price controls, even in an emergency.  They lead to shortages because the incentive to stock the price-controlled good is reduced and consumer demand does not reflect scarcity. Nevertheless, people tend to be very critical, for example, of gas stations that jack up prices at the pump following a hurricane or stores that raise prices of necessities after an earthquake.

One possibility is that a local store or gas station, in effect, becomes a monopoly under extreme conditions (a natural or man-made disaster) and thus price gouging statutes are a kind of antitrust scheme (albeit an arbitrary one–since these state statutes rarely define what an unfair price is and are enforced bluntly after the fact).  Another thought is that we only care about unfair prices when the good in question seems really important.  Many of these statutes only cover gas or food, for instance.  Or perhaps the issue is that society wants a rationing scheme in emergencies but doesn’t want to bear the administrative costs, so we resort to jawboning by state officials and a few prosecutions to enforce a rationing norm.

One significant decision for a reward is whether it should be what I’ll call “ex ante” or “ex post.”  In other words, the state could say “We will give you a specific sum if you do something.”  Or the reward could be structured as: “If you do something, then we will give you a reward.”  The former usually involves a more specific valuation (a bounty or a subsidy), while the latter tends to be more indefinite (salvage or a medal).  Another important issue is whether the reward [...]]]> I want to continue my discussion of rewards as a regulatory tool by focusing on: (1) the traits that rewards can have; and (2) how transaction costs affect the decision to choose rewards rather than property rights or sanctions.

One significant decision for a reward is whether it should be what I’ll call “ex ante” or “ex post.”  In other words, the state could say “We will give you a specific sum if you do something.”  Or the reward could be structured as: “If you do something, then we will give you a reward.”  The former usually involves a more specific valuation (a bounty or a subsidy), while the latter tends to be more indefinite (salvage or a medal).  Another important issue is whether the reward will be a lump sum, a percentage, or some bundle of benefits.  Once again, valuation difficulties play a significant role in this decision, as the % reflects greater uncertainty about how valuable a particular action (such as a qui tam suit) should be.

As for transaction costs, my sense is that the state chooses rewards when transaction costs are especially high.  Most people agree that liability rules are superior to property rights when the costs of bargaining are relatively high.  Multiply that problem and you get rewards.  In many reward situations, the problem is that the state cannot identify the object of the desired regulation.  For example, punishing vessels that do not rescue distressed vessels (salvage) is virtually impossible because the distressed ship and crew may be . . . er . . . unavailable to identify any wrongdoers or hard-pressed to do so even if they saw somebody who took a pass on helping them.  When it comes to a bounty, the problem is similar — many of the people that have valuable information about crimes do not want to come forward because they are fearful.  And it is hard for the state to find them.

This leads me to my final post, which is to ask where we should be using more rewards in public policy.