Category: Current Events

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Berkshire’s 2014 Annual Meeting

Among delightful things I did last week in Omaha was lunch with Bloomberg reporter Noah Buhayar on Thursday ahead of Saturday’s meeting of Berkshire Hathaway shareholders.  Noah wrote several stories in which he kindly quoted me. Here are highlights.

1. Coke Pay.  On Berkshire’s abstention from voting on whether to support or oppose Coca-Cola’s executive pay plan, which other Coca-Cola shareholders challenged and which Buffett considered excessive, Noah correctly quoted what I said Thursday as follows:  “People like to raise tricky issues at the Berkshire meeting, and that’s probably the trickiest one.  You’ve got to decide when you’re going to throw that weight around.” That’s pretty much the answer Buffett and Munger gave on Saturday.  (See Noah’s piece referencing Coke here.)

2. Shareholder Activism.  On Charlie Munger’s remarks about shareholder activism being bad for America–and the responses of two activists–Noah quoted me from a Sunday morning follow-up interview:  “As iconoclastic and unusual as Berkshire Hathaway is, it represents big, corporate America on this issue of activism.  Munger perceives activist investing as making corporations more like commodities than complex, social institutions that over time can contribute value.” (See Noah’s piece on this topic here.)

3. Stock Picking to Business Building. On Buffett’s move from picking stocks to building companies:  “He became famous as a stock picker, and that reputation still dominates in the public image.  He was very good at doing that, but that has not been the definition or content of Berkshire in recent years.”  (See Noah’s piece on this big shift at Berkshire here and my elaboration of it here.)

4. Mood and Continuity.  I predicted on Thursday: “The mood at the meeting will be celebratory, with the stock near an all-time high. Topics at the gathering are often similar from year to year.  From one meeting to the next, the big thing that changes is size. Everything’s bigger.” (See Noah’s piece referencing the celebratory mood here.)

Plus ça change, plus c’est la même chose. And it’s a good thing too.

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Town of Greece v. Galloway and Institutional Withdrawal

Every so often, the Supreme Court seems to be doing something other than clarifying the principles of constitutional law to guide the resolution of future cases.  Instead, it may be doing little more than sketching the terms for institutional withdrawal from a field of social action.

Yesterday’s decision in Town of Greece v. Galloway, which allowed a town supervisor to pick someone to solemnize town meetings even though it is highly likely such statements will turn out to be sectarian, bears all the hallmarks of a hasty retreat.  First, there is the monumental move of describing the chosen prayer-givers as private speakers, subduing Establishment Clause objections by resorting to free speech ideas (I will note that Free Exercise language is sprinkled liberally throughout the opinion, but no one seriously claimed that one must have a right to speak at government functions in order to worship in a meaningful way).  Recall that when public school officials tried the private speech argument in the school prayer (Lee v. Weisman) and football prayer (Santa Fe Indep. Sch. Dist. v. Doe) cases, the Justices rejected it out of hand.  Now, the Court likes the argument in a prayer case. The main difference cited is that those cases involved children and this one involves adults, but fear of coercing children should hardly extinguish the objections of adults, who might very well need to be present for the people’s business.  We are quickly informed that adults in the religious minority must buck up (more on this in a moment).

Second, as some commentators have observed, the ruling gives very little by way of guidance to judges who must determine when the Establishment Clause has been transgressed (and when the Speech Clause has not).  It appears that the Court may be giving up on the idea that sectarian expressions must be guarded against, once you have an honest to goodness public forum. Even if a citizen isn’t forced to attend town meetings, does she have a right to be free from offensive prayer at court proceedings and other government-sponsored events?  Is the Court really going to start drawing fine lines between government settings (apart from schools), identifying ones that present an inherent risk of improper proselytizing?  Doubtful.

Third, if the answers to these questions are: probably not, then the Court may simply be giving the appearance of leaving serious questions open for litigation, but in fact be effectively insulating a certain kind of religious politics, i.e., over prayer, from judicial review.  Once the state creates a public forum, we are told it can’t censor the content of the expression that follows to ensure it is “generic or nonsectarian.”  Doing so would interfere with the invisible hand that governs the marketplace of ideas and often now trumps Establishment Clause concerns.

Since at least the Warren Court, legal liberals have believed that an alert judiciary policing the religious sphere helps keep the peace.  But conservatives learned a very different lesson over the years.  After decades of organizing against the mythical wall of separation between church and state, conservatives–and the jurists that represent their views–have arrived at the conviction that judicial involvement has marginalized people of faith and silenced them, while rendering the courts politically vulnerable.  The resolution in Town of Greece is best understood in this light of backlash politics and institutional withdrawal.

Prayer has been the single most visible issue, both real and symbolic, contributing to conservative counter-mobilization.  So if Engele v. Vitale represented the high point of judicial involvement in religious matters, and if Lee v. Weisman and Santa Fe Indep. Sch. Dist. v. Doe were holding pattern cases, Town of Greece finally absorbs and unleashes those political lessons with a vengeance. It does so by returning prayer issues back to the rough and tumble of ordinary politics. Outside of the school context, it seems that much is permissible by way of “ceremonial prayer” (but why leave it at “ceremonial” prayer?).  Justice Kennedy’s opinion tells us as much.  First, religious minorities who do not hear their religious leaders at government events are told to toughen up, for “[a]dults often encounter speech they find disagreeable.”  Once again, the resort to free speech rhetoric is undeniable: religious objectors are treated like hecklers who should not be given a veto over the religious majority.  An objector’s remedy is one of self-help, just like anyone who is confronted by objectionable speech on the streets: to remain and try to ignore the offending religious speech or leave the gathering.  Justice Kennedy suggests, in a hopeful way, that no one will think any less of you either way.  If you exit, your “absence will not stand out as disrespectful or even noteworthy.” Staying won’t be “interpreted as an agreement with the words or ideas expressed.”

Second, citizens are explicitly warned not to run to court and make too much out of single invocations that go too far.  This is more language seeking to insulate prayer from further litigation.  A judicial remedy might be available only if a litigant demonstrates “a pattern and practice” of ceremonial prayer being used to “coerce or intimidate others.” It might be a problem if government officials directed audience members to pray, or “singled out dissenters for opprobrium,” or allocated “benefits and burdens” on the basis of participation in prayer. In “the general course,” however, mere exposure to unwanted or insulting religious ideas would not make out an Establishment Clause violation.

Will blurring the rules in an attempt to get the courts out of prayer disputes work to reduce religious strife?  I’m not as confident as Justice Kennedy that reduced judicial attention to government-organized prayer will diminish antagonistic politics. At best, it may displace conflict from the courts to local communities and disperse conflict regionally.  In fact, it may very well intensify the activity of legal liberals.  For one thing, we will now see redoubled efforts by religious minorities and nonbelievers to test whether these “public forums” springing up truly are open to all faiths (or those with no faith at all), or are actually shams.  In other words, will the Muslim, the atheist, the devil worshipper, the Odinist, and the Wiccan really be permitted to solemnize town meetings?  If they are not, will their exclusion be done on a content-neutral basis?  The people of Greece really did bend over backwards, apparently never once turning someone down who wanted to solemnize a town meeting.  What happens when citizens decide that only a Christian solemnization is appropriate for the occasion?  Under limited public forum rules, the government is accorded some leeway to determine the purpose of the forum; on the other hand, viewpoint discrimination presumably can still be a problem.

Second, we will surely experience a resurgence of prayers at legal proceedings and other government-sponsored events.  Those situations, too, will continue to be tested in the courts. The re-writing of doctrinal rules (what happened to the endorsement test?) incentivizes further government-religion partnerships through creative use of the public forum doctrine.  A public forum need no longer be a physical space in the traditional sense, but could be a metaphorical pot of money or now, a moment in the agenda when one might speak or pray.  Each time this strategy is judicially approved, it removes the state from constitutional responsibility over the religious activity that subsequently occurs.  At some point, this strategy of recharacterizing Establishment Clause issues as simple Speech issues must reach a logical limit.  Just not yet.

Will clashes over prayer become more intense or less so?  Will there be fewer religion cases in the courts?  Time will tell.  But one thing is apparent: the Supreme Court no longer wishes to be blamed for taking God out of the public square.

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Tribune of the People

bostonglobe-504oped_tsaiCLRYesterday, the Boston Globe published my piece proposing the creation of a new national office dedicated to the protection of civil and human rights. I wanted to give a little more context to the idea here, beyond what the op-ed format allowed.

The basic idea is that we need a single national figure to instantiate rights and defend them consistently. For a variety of reasons, our existing political-legal structure fails to do this robustly and consistently. Enforcement of civil and human rights is fractured among multiple bodies with narrow mandates (U.S. Department of Justice, U.S. Commission on Civil Rights), all of which are captured by party politics. Those in the trenches know how much a general commitment to rights, along with which rights to promote, can vary wildly depending on which party controls the White House. Amicus briefs offer only an ad hoc solution, because such writings are driven by interest group concerns, which can be quite distorting, and don’t carry the kind of institutional weight that government briefs do (if they are read at all by judges, as opposed to their clerks). All of these factors reinforce the idiosyncratic way in which relevant law, including international and comparative law, is presented to jurists.

Historically, presidential agendas have at times aligned with the goal of promoting civil or human rights. But case study after case study underscores how challenging this can be. The bureaucratic politics, party dynamics, and reputational hurdles can be daunting to navigate for anyone who might want a president to take vigorous action on behalf of individual rights.

The idea I have proposed is adapted from one presented by a group of experts based at the University of Chicago in the immediate post-World War II period. At the time, the group–led by the visionary Robert Maynard Hutchins (Chancellor of the University of Chicago and former Dean of Yale Law School) and the fiery Giuseppe A. Borgese (professor of Italian literature)–hoped to inspire the creation of a world constitution. Many later found the overall project too utopian. But whatever one thinks of such strong internationalist proposals, the project allowed Americans to reflect deeply on what ailed American constitutional self-governnance.

Perhaps the most penetrating critique that emerged from the working group’s many meetings involved separation of powers. They believed Americans had become slavish followers of Montesquieu, by insisting that institutional functions had to be strictly distinguished in the name of ensuring political liberty. But strict separation was a disaster: American politics had been consumed by paralyzing party politics and bureaucratic dysfunction, utterly incapable of dealing with urgent problems. Members of the Chicago group turned separation of powers orthodoxy on its head by offering reforms that retained some measure of institutional distinctiveness, but also dramatically increased the overlap of functions.  For example, they thought it wise to give a president explicit constitutional authority to initiate legislation and to serve as Chief Justice of the Supreme Court.

These mid-century reformers felt comfortable injecting greater energy into government in part because they had a strong belief in rights. The Tribune of the People idea encapsulates that commitment, as it was intended to be an office charged with defending “the natural and civil rights of individuals and groups against violation or neglect” by government. The Chicago group tried to design an office that would “neither be a duplicate or retainer of the President in office, a Vice-President in disguise, nor his systematic heckler and rival.”  A Tribune should be “truly the spokesman for real minorities, not the exponent of a second party.”

In a sense, other countries heeded this call, while Americans have largely forgotten the conversation. Today, there are a number of analogues worth studying. Countries that have a national figure dedicated to the enforcement of rights include Albania, Argentina, Armenia, Azerbaijian, Bulgaria, Columbia, Costa Rica, Estonia, France, Guatemala, Norway, Peru, Poland, Portugal, and Serbia. Each of those countries has a Defender of Rights, Commissioner for Human Rights, or Chancellor of Justice. There exists a U.N. High Commissioner for Human Rights, who recently weighed in on Oklahoma’s bungled execution by lethal injection, but has no real power to influence rights development here.

So it seems it is well past the time to consider whether we are doing all that we can institutionally to protect civil and human rights.

 

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Methods of Execution and the Search for Perfection

113px-The_deathThe recent botched execution by lethal injection in Oklahoma raises a point that I often discuss with my Torts students.  The evolution of capital punishment is largely a futile search for a humane way of killing people.  I say futile because every execution method can go wrong or become stigmatized in a serious way.

Back in the day, executions were supposed to be horrible.  (Consider the Cross, burning at the stake, boiling in oil, drawing and quartering, etc.)  Once people decided that this was torture, then society moved through different options, each of which was considered as a progressive or liberal improvement at the time.

1.  Beheading:  The condemned does not see the ax falling on his head, and it was all over after one blow.  Except when it took several blows because the executioner was a klutz.  That was then a really painful death.

2.  Hanging:  No need to cut anything or shed blood.  Except if the rope was too short (then the head got ripped off).  Or if the rope was too long, people took a long time to die in agony.

3.  Firing Squad:  The condemned can wear a blindfold and it should be over quickly.  Unless the firing squad does a poor job.

4.  The Guillotine:  This was a big improvement over an ax.  It makes far fewer mistakes and is relatively painless.  Once it got associated with the Terror of the French Revolution, though, that was off the table.

5.  The Electric Chair:  When it was introduced, “Old Sparky” was supposed to be a great improvement.  After all, it was a machine and did not involve cutting.  Except when the voltage was too high and burned people, or too low and didn’t kill.

6.  The Gas Chamber:  Hitler’s Germany made this technique impossible to use again.

7.  Lethal Injection:  That was supposed to be painless and foolproof.  Except when the IV is not done correctly or the chemicals are administered in the wrong proportions.

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Self-Defense and the Fourteenth Amendment

negroes_with_guns-01

Dance and sing you black creatures

of Mother Africa.

Move to the sound of the drums

of your forefathers.

Hold on to your drums and beat

them in defiance of the slavemaster and

let their thundering sound awaken those who sleep.

–Mabel Robinson Williams, Transition (1966)

 

Mabel Robinson Williams passed away last week.  Williams may have been most famous for being married to Robert F. Williams, the controversial former head of the NAACP in Monroe County, NC, but she was an intriguing theorist and fierce activist in her own right.  She recalled that her father slept every night with a pearl-handled pistol under his pillow in case the Klan’s night riders attacked.  As an adult, she served as Secretary of the local NAACP, co-founded a newsletter called The Crusader, organized a mutual aid society called CARE, and helped run Radio Free Dixie.  Mabel called herself a “co-warrior” and “helpmate” to Robert, even as she served as a nurse’s aid and later operated a day care.  When her sons joined a picket against a segregated swimming pool, she sat in the car with guns, keeping one eye out for armed whites.  She and other female members of a rifle club trained to protect their families against the Klan.  Once, Mabel came out of her house with a shotgun and chased off deputies trying to arrest her husband.

Husband and wife worked together on Negroes With Guns (1962), which articulated a theory of self-defense of constitutional rights.  The Williamses “did not advocate violence for its own sake,” nor did they urge “reprisals against whites.”  Instead, they argued that armed self-reliance was compatible with the tactics of peaceful protest promoted by Martin Luther King, Jr. to promote legal change (but they blamed proponents of non-violence for inflexibility in demanding that blacks renounce their right to self-protection).  In their view, armed self-defense was justified because of a “breakdown of the law” in failing to protect black families from armed whites.  As they tell it, Brown v. Board of Education unleashed not only generalized racial unrest in the South, but also a wave of violence directly against NAACP members and their allies.  “[T]here was no such thing as a 14th Amendment to the Constitution in Monroe, NC,” because local officials refused to enforce the law and protect the life, liberty, and property of black families.  Federal and state officials, too, were nowhere to be found.  In fact, many in the community believed that state and local officials were conspiring to deprive black Americans of their constitutional rights. Black self-defense filled this gap in the constitutional order.

Any limited theory of armed self-defense became greatly complicated by the pair’s embrace of Marxist revolutionary ideas about the worldwide liberation of the oppressed.  Negroes With Guns predicted a day when racial violence in the United States became so pervasive that “non-violence will be suicidal in itself.”  It cited with approval the legacy of John Brown favoring the “righteous use” of weapons to “destroy those things that block [the American Negro's] path to a greater happiness in life.”  Linking armed tactics with revolutionary ends blurred the lines between constitutional preservation and constitutional usurpation–a recurring problem that faced all black power groups during this period.  In theory and practice, it became difficult to draw clear lines between self-defense and the armed instigation of foundational change.

After a protest turned unruly and Robert Williams was charged with kidnapping a white family (he claimed to be protecting the family from a mob), the pair fled.  While in exile in China, Robert briefly held the Presidency of the Republic of New Afrika, founded by the followers of Malcolm X after his assassination.  Professor Pero Gaglo Dagbovie recounts that in later years, Mabel became a community historian and keeper of an oral tradition of the Black Power period.  This tradition includes not only the major events that transpired during a tumultuous period of American history, but also popular interpretations of the law.

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Contested Ideas About Consent

One of the challenging things about studying popular constitutionalism is that theories of power, community, and tactics can be all jumbled together.

For instance, from what I can gather, Cliven Bundy appears to be a rancher who holds a strong, individualist view of property rights and espouses a theory of government in which the local somehow trumps the national (and likely the state as well).  Tactically, he favors the use of private force in defense of constitutional rights and powers (he also believes that he is entitled to the assistance of local and state authorities to resist the federal government).  For now, his statements justifying the use of force seem to be limited to repelling invasions of property (his cattle, money) and personal security (his body, the safety of his family), so they can be plausibly defended on self-defense grounds (in natural law or other ethical terms, not based on statute or a written constitution).  His vague call for a “range war” muddies his claim to principled use of extralegal tactics and opens him up to charges that he is advocating organized violence against the state, so you can bet his next words and actions will be carefully scrutinized (recall that John Brown was tried for insurrection, and black nationalists were often accused of such crimes).

What’s harder to figure out is Bundy’s theory of consent.  Every popular constitutionalist must present a coherent theory of consent to rebut arguments that simple lawlessness is being advocated.  Secessionists favored the “compact theory” of consent, which holds that each state agreed to the formation of the U.S. Constitution and that each state could withdraw its consent.  Abraham Lincoln and defenders of the Union rejected this approach, saying that the people in the several states gave their consent and that only the people as a whole could dissolve the bonds of political community.

John Brown argued that groups of Americans (slaves, freedmen, and abolitionists) joined by their conviction and shared tragedy could disaffiliate from the existing form of government without committing treason.  From there, group-based theories of consent flourished.  Modern black nationalists and white separatists argue that racial or ethnic identity provides the basis for giving or withdrawing consent.  Typically, disgruntled Americans signal their disaffiliation through a public act: meeting in convention and signing a public declaration.

What makes sovereign citizens and their ilk different is that they often argue that each individual has the power to withhold the consent of the governed. For many observers, this is a theory of consent that descends into anarchy.  There is also a more selective, and sometimes mysterious, quality to the extent of their disaffiliation. Often, such figures “declare independence” when pressed, during criminal trials or litigation over taxes or property rights. Others, without any prompting, file documents in traditional government offices announcing their unorthodox legal views, sometimes over and over again.

Bundy has said he “respect[s] the federal government” but also that it “doesn’t have its place in the state of Nevada . . . and Clark County, and that’s where my ranch is. The federal government has no power and no ownership of this land.” Unless someone sees an open and notorious act of disaffiliation from the federal government, at this point it looks like he is engaged in selective (issue by issue?) rejection of jurisdiction, backed by an account of political structure that is clearly subversive but not fully implemented.

The task of ascertaining one’s constitutional theory is further complicated when more mainstream figures start using the language of popular sovereignty.  It can be hard to figure out how much an elected official believes and how much the official is simply catering to attitudes that are perceived to be widely shared by constituents.  See, for example, this candidate for Governor of South Dakota, who favors state nullification of unjust federal laws, admires Bundy, and shares his belief that sheriffs are the highest law enforcement officials in the land.  Lora Hubbel plainly has not disaffiliated from state government, holds radical localist views of government, supports extralegal tactics, and holds the federal government in antipathy (but it’s unclear whether she believes she owes allegiance to the U.S. government).

So, the next time you hear a political aspirant, activist, or lawyer deploy arguments about popular sovereignty, ask that person: (1) what is the basis for making such claims; (2) what tactics are justified; and (3) to what government(s), exactly, does he or she owe allegiance?

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“Clear Eyes, Full Hearts, Vote No.”

120px-Floodt~1According to The New York Times, that’s the message that Northwestern is sending to its football players, who vote Friday on whether to form a union.  While the University and its boosters are not doing anything improper in expressing their anti-union views, many of the arguments that they are advancing are nonsense.  Free agency in professional sports and allowing professionals in the Olympics were both met with similar objections that they would ruin the purity of the sport.  Instead, they made both sports better for the fans and fairer to the athletes.  The same would be true if the Northwestern players vote yes.  If nothing else, that would force the NCAA to start getting serious about making reforms.

I’ll add one other note.  Students on campuses around the country protest on behalf of many causes here and abroad when they feel that people are being exploited.  When it comes to football and basketball players on their own campuses, though, you don’t hear anything.  I guess that cuts too close to home.

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Corporate Leadership and Politics

Recently there was a brouhaha over the hiring (and then firing) of Brendan Eich, the CEO of Mozilla.  In 2008, Eich gave a personal contribution to the campaign for Proposition 8, the California constitutional amendment banning same-sex marriage.  Same-sex marriage supporters responded to Eich’s hiring with criticism and threats of a boycott before the company essentially rescinded the offer.

While you can look at this case as an example of free speech or intolerance (or both–there is plenty of intolerant free speech), I want to suggest that this sort of thing is an unintended consequence of Citizens United.  In a world where corporations can give large sums to political campaigns, the political views of a company’s CEO are highly relevant.  Suppose the new head of Microsoft was a fervent supporter of [some cause or candidate] and decided to back [some cause or candidate] with $1 billion from the company’s cash hoard.  People on the other side of that issue would have every reason to organize against that person as the CEO.  Now it is unlikely that a publicly-traded company would pick a political activist as its leader, and the Board of Directors (not to mention shareholders) would probably take a dim view of such large political contributions. But I can understand where the concern would come from.

I am not saying that this is why Eich was raked over the coals.  In his case, people were attacking him for his past behavior, not for what he might do in the future.  But they could have been worried about the future.

 

 

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There & Back Again: John Rizzo & Yuri Nosenko

John Rizzo gave thirty-four years of service as an attorney for the Central Intelligence Agency, serving with distinction under eleven directors and rising to acting general counsel.  Yuri Nosenko, who died in 2008, was a lieutenant colonel in the KGB, a Soviet defector, and suspected double agent.

RizzoNosenkoWhat do they have in common?  A late night, one-on-one, vodka-soaked discussion of Nosenko’s three years of unremitting torture by Rizzo’s employer. The torture produced nothing, neither confirmation that Nosenko was a Soviet mole nor confidence that he was not.  In his new memoir, Company Man, Rizzo asserts that this meeting left an indelible impression on him as a young lawyer. But just how did he put that experience to use when he evaluated the legality of the “Enhanced Interrogation Program” that landed on his desk in the CIA General Counsel’s office after 9/11?

His answer is not found in his memoir.  But he did give an answer last week, when I asked him this question at an outstanding symposium on the future of national security law held at Pepperdine Law School.  The conference was organized by Professor Greg McNeal ably assisted by 3L Shelby Doyle and her team of student editors at the Pepperdine Law Review.

Comrade Nosenko’s story, and Mr. Rizzo’s answer, follow after the break. Read More

Latour on Agnotology

Bruno Latour reminds us of a rather important development in modern times: the ascent of an “unlearning” industry. He sheds new light on the “marketplace of ideas” metaphor:

[I]n the United States alone something like a billion dollars . . . is being spent to generate ignorance about the anthropic origin of climate mutations. In earlier periods, scientists and intellectuals lamented the little money spent on learning, but they never had to witness floods of money spent on unlearning what was already known. While in times past thinking critically was associated with looking ahead and extracting oneself from an older obscurantist past, today money is being spent to become even more obscurantist than yesterday! “Agnotology”, Robert Proctor’s science of generating ignorance, has become the most important discipline of the day.

Doubt can be a profitable product.