Category: General Law


Presidential Censure

In the wake of the President’s executive order on immigration, at least one Republican member of Congress has called for a Censure Resolution declaring the President’s conduct either unlawful or wrong.  (I’m not sure which.)  The precedent for this during Andrew Jackson’s presidency, which I talked about in my first book, is very problematic given that only the Senate censured the President, Jackson protested that the resolution was unconstitutional, and the resolution was later repealed by the Senate.

Here’s a broader question.  Is there any limit on Congress’s power to pass a joint resolution that does not create binding law?  In other words, can Congress pass any resolution that just gives its opinion?  Suppose they want to say that the police officer in Ferguson should have been indicted?  Or that Bill Cosby is a rapist?  Or that Putin is not the legitimate president of Russia?  One thought is that resolutions like these are purely symbolic, and so there are no constitutional limits.  But you could say that these statements might matter (for instance, in a civil suit brought against a named person, or in some diplomatic negotiation).  If that is true, though, how does one articulate the limits on Congress’s expressive rights?  Does the President need to denounce one that goes too far?  Should courts not allow such statements to go before a jury?

Image Group Legal Academia 07

Legal Academia LinkedIn Group

I created a new LinkedIn group called Legal Academia for legal academics to share useful links, posts, scholarship, events, etc. Shameless-self promotion is welcomed — as long as what you promote is good.

Who Can Join?

Anyone can join — non-academics can join too if you want to follow along.

How Do You Join?

Go to the group’s page: Legal Academia . Just click the join button at the top of the page.

Who Can Post?

The forum will be moderated so that all posts will be by legal academics about their work, blog posts, conferences, and scholarship.  Administrators can post about law school events or notable happenings or issues.

What Topics Can You Post On?

Posts are not restricted to those about legal academia.   This forum might hopefully grow into a hub of information about notable activity in the blogosphere, scholarship, and elsewhere.  Please don’t promote every single blog post you write, but if you have written something noteworthy, please share it.   Please feel free to share the work of others too.

Why Join?

Academics have not embraced LinkedIn as much as they have Twitter, but there are some really great things about LinkedIn’s platform.  It is a way to get work noticed and read by practitioners.  Posts, although short, are not subject to Twitter’s Draconian character limit.  There’s a lot less noise on LinkedIn, so the forum can be a more focused place for promoting and discussing scholarship and information relevant to the academy.

In your settings, you can have a daily digest or weekly digest of the postings to the group emailed to you — or nothing at all.

So please join the Legal Academia LinkedIn group.  And please post, as the group won’t succeed if I’m the lone one posting.   Please don’t be bashful about pointing out new things that you’ve written.  That’s what this forum is for — to help everyone publicize and get more people reading and engaging with scholarship and academic discussion.  Thanks!


Law’s Influence Protecting Wealth Growth

Thomas Piketty in Capital in his path breaking book, Capital the Twenty-First Century, by citing to a vast array of data demonstrates that over the long haul capital grows more rapidly than income or the economy generally – his formula is r>g. Starting from that premise, Shi-Ling Hsu in The Rise and Rise on the One Percent: Getting to Thomas Piketty’s Wealth Dystopia, shows the role law plays in distributing wealth. For Hsu, “Piketty [is] missing a huge piece of the puzzle: the role of law in distributing wealth.” The essence of Hsu’s article is that he shows how, in making and administering law, our legal system has failed to focus on the impact law has on levels of economic inequality. Instead, all too often, the focus of the law and the law making is exclusively on the effect on the private interests that would be directly affected by the legal issue presented. He then demonstrates how, absent a specific and systemic focus on economic inequality, law allows, and frequently promotes, the growth of economic inequality.

Hsu starts with the low hanging fruit of the Great Recession. Preceding it was broad financial deregulation that allowed the huge economic bubble to grow and then, of course, burst when it was no longer sustainable. That deregulation provided the financial industry to gain tremendous short term gain without risk ultimately to itself but that laid to waste the economy of the U.S. and much of the world triggering the Great Recession. In one long paragraph, Hsu summarizes a broad array of corporate and finance laws that were enacted in a very short time to set the stage for the crash. He says there is a now a consensus that “the crisis would not have occurred but for some misguided or feckless legal policy. The financial crisis was, at least in the United States, clearly a product of lawmaking. Lax regulation (or probably more accurately, encouraged) excessive risk taking.” In sum, “a large number of finance professionals took unwise risks that were made possible by one or more legal moves toward deregulation.”

Looking back, these laws were disasters just waiting to happen. We can now ask, what were law makers thinking when they deregulated the financial industry? But at the time of their enactment, there appeared to be close to consensus that these changes would allow economic growth to blossom with minimum risk because the invisible hand of the market would restrain undue risk: The risks would be “rational” because capitalism is all about the allocation of private risk. The Great Recession demonstrated beyond peradventure that the “rational actors,” shielded from the downside of the risks they take, will exercise little or no limit to the risks they will take because that maximizes their upside. That is, of course, how bubbles form, grow and then collapse. For the law to allow this to happen is completely irrational social policy. Even assuming that the risks remain private it is simply wrongheaded to shield actors from the downside consequences of the systemic risk they create while allowing them to capture the upside. Despite the disaster of the Great Recession, the Chicago School macroeconomic paradigm continues to prevail so at best reforms have been muted, if not stifled. For example, banks can still securitize and therefore off load the downside risk that mortgages they issue will not be paid. Piketty with the help of subsequent developments of his work, such as Hsu’s, may help overcome the shortsightedness of prevailing microeconomic economic ideology that has done away with macroeconomic analysis of the economy writ large.

As described by Hsu, the externalities generated by the extreme levels of risky behavior allowed and encouraged by macroeconomic theory were imposed on the American people generally, not on those who created the risk. “In 2008 and 2009, nearly nine million Americans lost jobs. . . . Between 2007 and 2010, nine million Americans slipped into poverty. Even those in the lower ninety-nine percent keeping their jobs, their contractions were more severe than it was for the one percent. For them, housing equity accounts for a much larger fraction of household wealth, and the slow rebound in housing prices has dampened their recovery.” Those externalities included much of the business world beyond the financial sector. When the bubble finally burst, businesses outside the financial sector suffered because the credit necessary to run their operations dried up. To save the financial system, the government, and therefore the American people, assumed the private downside risk from those who created it without imposing any costs on its perpetrators. So, the wealthy suffered less than the people generally and they quickly bounced back from any losses they suffered by snaring almost all the economic since the Great Recession ended. “[F]rom 2009 to 2012, an astonishing ninety-five percent [of total income gains] accrued to the top one percent of earners.”

Hsu identifies the underlying fault with how laws are structured, analyzed and operate: The legislatures do not focus on the broader externalities when considering new laws or amendments to existing laws. “[T]he focus of finance and corporations law is to regulate relations among private parties – investors, directors, managers, and perhaps, under the guise of bankruptcy law, creditors. Securities laws are concerned with protecting the integrity of the market. . . .[T]here is little sense in the law that the finance industry and corporations impose externalities upon a broader society, despite their capacity to redirect the flow of trillions of dollars. . . . [L]awmaking and legal scholarship in the area of finance and corporations law seem to be based predominantly on the notion that the only truly interested parties are private ones.”

A shortcoming of Piketty’s is that he limits his description of capital to things – cash, stock, real and personal property. While it has those physical aspects, capital really is power – social, economic and political power. In terms of law, organized private interests push for and get the legislation they seek. Citing Mancur Olson’s The Rise and Decline of Nations, Hsu describes how, “Over time, special interest groups form, they secure enough above-normal wealth, and what is left over is below-normal wealth for everybody else. Once special interests groups gain a foothold, their influence over policy grows, and their gains at the expense of society cumulate.” Organized wealth gets a seat at the policy-making table but also, in part because of the influence of money in politics, influences who the policy makers are at that table and that determines how policy comes to be defined.

Having laid out why law helps capital by protecting it and helping it to grow using the example of corporate and financial law, Hsu then goes on to describe several areas of law beyond corporate and financial law that promote capital growth.. Some examples that Hsu pick are surprising. For example, Hsu demonstrates how adding “grandparenting” exceptions when new legal regulations are enacted protects and enhances the capital of the “grandparents.” Antitrust law, one might think, should work against the protection and expansion of incumbent wealth. But Piketty demonstrates how the legal interpretation of antitrust law has come to have the opposite effect. To prove a violation, there must be a demonstration of a negative effect on consumers. So, if consumers are not directly hurt by the challenged activity of the defendants, then the regulated parties are protected from liability even if their activity exacerbates inequality by protecting the growth of private wealth. Another example is electric utility regulation. As the law has evolved, it has come to focus on protecting the return on private capital rather than the need to provide electric services for the entire community. Guaranteeing a return on invested capital, allows it to grow unimpeded. Hus also describes some areas of law where wealth obviously is protected and enabled to grow unimpeded. The specialized tax treatment of the oil and gas industry is a good example of that.

Obviously, Hsu cannot in a single paper describe how law generally tilts to favor capital. What he does give us is a way to analyze law by demonstrating the effect – positive, negative, or neutral – law has on economic inequality. Piketty proposed new, macroeconomic approaches to be developed in a revived data-driven study of political economy. Hus takes us a step further by showing that, in the study of law an important but generally missing element, is the need to study the impact law has on economic inequality.


The Maverick – A Biographical Sketch of Judge Richard Posner: Part I


Below is the first installment in a multi-part series of posts on Seventh Circuit Judge Richard Posner. The first two installments consist of an unconventional biographical profile of the Judge. These posts will be followed by a series of posts consisting of the Judge’s candid and often unexpected responses to numerous questions I posed to him along with those of 24 noted legal figures. In the process, Judge Posner bursts into the breach with frankness about his views on privacy, the exclusionary rule, NYT v. Sullivan, intellectual property rights, law and economics, constitutional interpretation, legal education and scholarship, and the politicization of the judiciary. With Posnerian resolve, he also speaks of his own life, his onetime thoughts on being a Supreme Court Justice, his cherished feline, and even his favorite rock stars. Given all that, we selected “Posner on Posner” as the title for this series.

Note: Some links will open only in Firefox or Chrome but not in Safari. 


A man[’s] . . . thinking should be

cosmopolitan and detached. He should

be able to criticize what he reveres and loves.

                                                – Oliver Wendell Holmes, Jr., February 4, 1901

He is like no other. Cool, calm, and calculating (in a methodical sense, that is). To watch him, one might think him shy, if only because of the way he averts his blue eyes when speaking. His complexion is fair (sun sensitive), which makes for a striking contrast to the dark suits he often dons. His appearance is ordinary, highlighted only by a blue Oxford linen shirt and wide-framed rectangular glasses. He speaks in a measured manner and while his voice can be monotonic, his oral style can fluctuate from serious to humorous. At times, his expression is flat, though once and a while a chuckle erupts, prompted by some folly he underscores or some hypocrisy he exposes while discussing this or that point or person. His public conversations with others can seem singular; they smack of a man thinking aloud.

Candor is his calling card, print is his preferred medium, and the moves of the mind are his raison d’être. One is reminded, in a fleeting philosophical sense, of Ludwig Wittgenstein. The “atypical . . . manner and character” of both men only adds to the resemblance. That said, there is one big difference: He is no parlor philosopher; he is a man who lives to transform ideas into action.

To some, he is an irritating gadfly. To others, he is a cold-blooded pragmatist. To many, he is an enemy of liberalism, while to many others he is a foe of conservatism. To more sensitive types, his economics-grounded “thinking is inevitably without compassion and often cruel.” To more cerebral types he is “our most prominent rationalist.” To those whose world is divided along uncompromising ideological lines, his views on the Second Amendment are horrendous and tyrannical, even if he is quite libertarian when it comes to legalizing marijuana, “cocaine, heroin, methamphetamime, LSD, and the rest of the illegal drugs.” To still others, he is a mental maverick gunning for any kind of specious arguments (especially self-righteous ones) that pass for gospel. And to yet others, he is the only one who dares to describe law as it is here on mortal earth rather than how it might be in some utopian salon. In that realist respect, there is even a Machiavellian streak in him.

He is, to be sure, an acquired taste. Even to those who know him, there is a distant quality about his personality. Perhaps because of that, those who know him appreciate his wit and playfulness all the more. Not one to hand out a diplomatic compliment, merit is the measure that rules his life.

Past as Prelude

Richard A. Posner, Harvard Law Review photo

Richard A. Posner, Harvard Law Review photo

He is Richard Posner. At 75, the New York City born jurist shows no signs of slowing down. If anything, his cerebral game is as good or better than it was in 1959 when he graduated summa cum laude from Yale College at age 20 (he was an English major with an avid interest in Yeats) or when he graduated first in his class from Harvard Law School in 1962 (he was President of the Harvard Law Review). 

His credentials as a young man all signaled future greatness – law clerk to Justice William J. Brennan (1962-63 Term), assistant to Commissioner Philip Elman of the Federal Trade Commission (1963-65), and assistant to Solicitor General Thurgood Marshall (1965-67). In that capacity and others, he wrote some 40 briefs and argued ten cases before the Supreme Court. The cases he argued were:

  1. Consolo v. Federal Maritime Commission (1966) (audio here)
  2. Accardi v. Pennsylvania Railroad Co. (1966) (audio here)
  3. United States v. Von’s Grocery Co. (1966) (audio here)
  4. First National Bank v. Walker Bank (1966) (audio here)
  5. Illinois Central R. Co. v. Norfolk & W.R. Co. (1966) (audio here)
  6. Honda v. Clark (1967)(audio here)
  7. United States v. Arnold, Schwinn & Co. (1967)
  8. Will v. United States (1967)
  9. Volkswagenwerk Aktiengesellschaft v. Fed. Mar. Comm’n. (1968)
  10. National Broiler Marketing Association v. United States (1978) (Frank H. Easterbrook was on the brief for the government on the other side)

Posner also served as general counsel on President Johnson’s Task Force on Communications Policy (1967-68). Soon enough the legal academy beckoned him, first as an associate law professor at Stanford (1968-1969) and later as a professor at the University of Chicago Law School (1969-1981). It was during that time that at age 34 he published his momentous work, Economic Analysis of the Law (1973) (now in its 9th edition).


The virtual Posner

As if all of that were not enough, “Posner augmented his professional life . . . found[ing] Lexecon Inc., a [profitable] consulting firm that tried to put into practice [his law and economic] theories. A large portion of Lexecon’s early business, when he was still a partner, was advising companies as to whether their competitive practices would run afoul of antitrust laws.” In late October of 1981, after his time in the legal academy, Posner then pursued a judicial path as a Ronald Reagan appointee to the Seventh Circuit. In the process, he traded wealth for fame – not what one typically expects from a unapologetic cost-benefit capitalist.

One more thing: In 2006 the ever-colorful Judge stared as an avatar in Second Life, an online virtual community.

The Brennan Clerkship

I was a little disappointed in the Supreme Court. I had a

more elevated opinion of it as a law student than it merited.

                                                                            Richard Posner

To return to his clerkship with Justice Brennan: It came to him via Paul Freund (1908-1992), the famed Harvard professor of constitutional law. In those days it was customary for certain law professors to select law clerks for some of the Justices, this even without a prior clerkship. Young Posner (age 23) was one of Freund’s two picks.

Once he arrived in Washington, D.C., Posner went to work on a variety of jobs for Justice Brennan. It has been reported that during that time he “wrote up an opinion arguing the reverse of Brennan’s [initial sense of the] decision.” Things worked out, nonetheless, and the clerk’s opinion proved “so compelling that Brennan and the Court changed their minds and adopted it.” That unanimous opinion, replete with 83 footnotes, was Sanders v. United States (1963), a habeas corpus case.

Posner also had a hand in writing another habeas case, Fay v. Noia (1963). And then there was NAACP v. Button (1963), a First Amendment civil rights case he authored. For Harry Kalven (1914-1974), the renowned First Amendment scholar, the Button opinion was an important one. “The Court,” he wrote in The Negro and the First Amendment (1965), “offers a generous view of the range of First Amendment protection, a view which seems to me to be indisputably correct although the Court had never previously been given an appropriate occasion for announcing it.” Kalven found it “exciting” that the opinion appeared to break “new ground.”

In a 2013 interview Posner reminisced about his clerkship at the Court: “The most significant experience of my clerkship was happening to work on a case assigned to Justice Brennan, an antitrust case called United States v. Philadelphia National Bank (1963) [the vote was 5-1-2 with Justice White not participating and Justice Harlan dissenting]. And working on that greatly stimulated my interest in antitrust law, and my time in Washington after the clerkship – I was there for another five years – I was mostly concerned with antitrust issues. So that was, I’d say, the most significant experience I had at the Supreme Court.”

Four Brennan-Posner opinions – there is a certain irony here, namely, that these opinions were written by a law clerk who when he became a judge refused to permit his own law clerks to write his judicial opinions. Then again, as Judge Posner once quipped, “Life is full of surprises . . . .”

judgeposner_2010Mind Games — A Multidimensional Man

Richard Posner is a man of the mind. He welcomes the challenges of complexity; he takes pride in showing the hollowness of legal abstractions; and he loves to simplify the complex without leaving it senseless. Speaking in a soft but nonetheless deliberate tone, he delights in exposing babble masquerading as legal argument, and can be rather relentless when counsel persists in being evasive (see, e.g., here).

In a legal world divided, on the one hand, by jurists who demand the rigidities of rules in matters of interpretation, and jurists who, on the other hand, insist on the flexibility of standards, Posner readily sidesteps ideological boundaries. As he sees it, such disputes are better understood as psychological in character than logical in nature. He prefers a more pragmatic contextual approach. To draw upon his own words in MindGames Inc. v. Western Publishing Co. (2000): “some activities are better governed by rules, others by standards.” Thus, in MindGames the Court declined to be bound by a 1924 rule regarding new businesses and lost profits.

Another Posnerian trait: He is not oblivious to the obvious, even when others are. And he does not hesitate to speak sternly when the circumstances warrant it, as in a class actions case (Eubank v. Saltzman) involving a lawyer who took far too many liberties. There, Posner used the opportunity of the controversy to demonstrate the factual oddities and ethical problems with the case, this while offering several learned yet pragmatic observations about this body of the law and its efficient operation. He did much the same in another class action case (Redman v. Radio Shack Corporation) in which he was quite critical of a settlement that offered Radio Shack customers about $830,000 worth of coupons while offering the lawyers who negotiated it $1 million. He was equally outspoken in a recent copyright case (Klinger v. Conan Doyle Estate, Ltd.). And his edgy wit and probing reasoning were much apparent in a pair of recent same-sex marriage cases (Baskin v. Bogan and Wolf v. Walker) in which he was particularly hard on the counsel for the state during oral arguments in those cases.

Color him with many stripes. Posner relishes the study of economics; he savors the lure of literature; he delights in clearing the air polluted by scandalous politics; he enjoys applying his free-market thinking to explain the various economic crises of our time; he relishes the chance to confront head on those issues that bedevil cultural critics; and he loves his life in the law (be it jurisprudence, antitrust, intellectual property, regulatory law, patent law, labor law, criminal law, or constitutional law). In a world increasingly bereft of public intellectuals, he rises from the lifeless ashes like a modern-day Phoenix. True to that cerebral calling, Posner has personal opinions, often controversial, on everything from sexual behavior to judicial behavior and beyond to subjects as diverse as terrorism, global warming, aging, moral and literary theory, and even the risks of catastrophic harm due to an asteroid colliding with the earth.

Unconventional Appeal Read More


The President’s Executive Order on Immigration

I want to discuss the way in which critics of the President’s Executive Order are making their case, as I think at least one of the arguments raises a genuine dilemma that I keep coming back to in my recent research. Here are some ways of thinking about why what the President did is wrong (if you believe that):

1.  He does not have the statutory authority to issue the order.

Presumably, a slew of lawsuits will be filed on this question.  I have no idea what the answer is, but that will get sorted out by the courts.

2.  He does have the legal authority to act, but doing so is a political mistake.

Maybe, but that will also be proven with time.  If a Republican wins the White House in 2016 (0r in some future election assuming that no new statute is passed), then the order could be reversed.

3.  He does have the legal authority to act, but he should not use that authority because the only legitimate way to do what he did is through legislation.

This is an argument that folks like David Brooks seem to be making, and I find this much more interesting.  Why should this only be done through legislation?  Because executive action in this respect is unprecedented?  Because major policy changes should always be done via statute?

The reason I ask is that I do think that there are “legal but unconstitutional” actions, and I’ve talked about them in prior posts.  (A simple example is when presidential electors in a state decide to vote for someone other than the person who won that state.  They can do that, but the voters would throw a fit.)  I think that this situation arises, though, only when there is extensive precedent against exercising a legal power (basically, a sort of desuetude) or there is a powerful norm that makes the legal action suspect.

Is there a norm that says presidents should not undertake “major” changes via executive orders that are lawful?  I’m not sure.  President Truman’s Executive Order desegregating the armed forces was a very big deal, but that was not done via statute.  Affirmative action at the federal level is, to a large extent, based only on executive orders.  There may be more examples.  Do they cover the immigration case?



The Grand Jury in Ferguson

Up until now, I have not had anything to say about the events in Ferguson. I’m not an expert on policing or racial profiling, and sometimes you have to know your limitations. But I am fascinated by the deliberations of the grand jury, which are a throwback to another time.

The most common phrase that goes with “grand jury” nowadays is “ham sandwich.”  Not so here.  Ordinary citizens are carefully considering whether an indictment or “true bill” should issue in a controversial case.  This is what the Framers had in mind when they wrote the grand jury into the Fifth Amendment, and they were drawing on a rich colonial and British tradition of grand juries shielding people from wrongful accusations or expressing the community’s view on a criminal prosecution.

The trouble now is that this only works when the case reaches an astronomical level of visibility.  In ordinary cases, an information is at least as good, if not better, at serving the functions of a grand jury (especially when combined with some form of prosecutorial accountability.)  This may explain even ardent supporters of incorporation seem uninterested in reversing Hurtado and making the grand jury requirement applicable to the states.



Vanderbilt Law Review, Volume 67, Number 6

On February 21, 2014, the Vanderbilt Law Review, with the generous support of the American Trust and Estate Counsel Foundation, hosted a symposium entitled, “The Role of Federal Law in Private Wealth Transfer.” The following ten articles and five comments by distinguished authors explore, for the first time in an analytically probing and comprehensive manner, the increasing federalization of private wealth transfer.

Jeffrey Schoenblum, The Role of Federal Law in Private Wealth Transfer: Introduction, 67 Vand. L. Rev. 1531 (2014).

James E. Pfander & Michael J.T. Downey, In Search of the Probate Exception, 67 Vand. L. Rev. 1533 (2014).

Mark L. Ascher, Federalization of the Law of Charity, 67 Vand. L. Rev. 1581 (2014).

Melanie B. Leslie, Is Federalization of Charity Law All Bad? What States Can Learn from the Internal Revenue Code, 67 Vand. L. Rev. 1621 (2014).

Lawrence W. Waggoner, The Creeping Federalization of Wealth-Transfer Law, 67 Vand. L. Rev. 1635 (2014).

John H. Langbein, Destructive Federal Preemption of State Wealth Transfer Law in Beneficiary Designation Cases: Hillman Doubles Down on Egelhoff, 67 Vand. L. Rev. 1665 (2014).

Naomi Cahn, Probate Law Meets the Digital Age, 67 Vand. L. Rev. 1697 (2014).

David Horton, The Stored Communications Act and Digital Assets, 67 Vand. L. Rev. 1729 (2014).

Ronald J. Mann, A Fresh Look At State Asset Protection Trust Statutes, 67 Vand. L. Rev. 1741 (2014).

Steven J. Horowitz & Robert H. Sitkoff, Unconstitutional Perpetual Trusts, 67 Vand. L. Rev. 1769 (2014).

Joshua C. Tate, Perpetuities and the Genius of a Free State, 67 Vand. L. Rev. 1823 (2014).

Laura A. Rosenbury, Federal Visions of Private Family Support, 67 Vand. L. Rev. 1835 (2014).

Adam J. Hirsch, Disclaimers and Federalism, 67 Vand. L. Rev. 1871 (2014).

Reid Kress Weisbord, Federalizing Principles of Donative Intent and Unanticipated Circumstances, 67 Vand. L. Rev. 1931 (2014).

Jeffrey Schoenblum, Strange Bedfellows: The Federal Constitution, Out-of-State Nongrantor Accumulation Trusts, and the Complete Avoidance of State Income Taxation, 67 Vand. L. Rev. 1945 (2014).

Alyssa A. DiRusso, Pro and Con (Law): Considering the Irrevocable Nongrantor Trust Technique, 67 Vand. L. Rev. 1999 (2014).


FAN 41 (First Amendment News) Three Harvard Law Review essays discuss Justice Breyer’s free speech jurisprudence

  • Judge Breyer has a unique zig-zag style. Ralph Nader (confirmation hearing statement, July 15, 1994)
  • I do not rest my conclusion upon a strict categorical analysis. – Justice Stephen Breyer (concurring in United States v. Alvarez, June 28, 2012)
  • The single most important area of Breyer’s work on the Court has been his opinions on the First Amendment, in which he has developed a unique and pathbreaking approach to issues of freedom of speech. — Paul Gewirtz (Yale Law Journal, 2006)
Justice Stephen Breyer

On the one hand . . . but then on the other

When it comes to free speech, he is darling of the Liberal Left . . . or some on the Left, or of some on the Left in the legal academy, or of those on the Left who abhor rulings such as Citizens United v. FEC (2010) and McCutcheon v. FEC (2014). To others, he is the Justice who got the First Amendment right (albeit in dissent) in cases such as Holder v. Humanitarian Law Project (2010) and Garcetti v. Ceballos (2006). Many of those same defenders shy away from their praise when it comes to opinions such as the one Justice Breyer authored in Randall v. Sorrell (2006).

In his pragmatist approach, one will readily discern the vernacular of ad hoc balancing, of  “competing constitutional concerns” or “First Amendment interests . . . on both sides of the legal equation.” Mindful of such concerns, he asks: Are the “restrictions on speech disproportionate when measured against their speech-related benefits”? And why? What is the purpose of such balancing? He responds: to “facilitate a conversation among ordinary citizens that will encourage their informed participation.” To that end, government may limit speech in the supposed service of “preserving a democratic order” or for the purpose of promoting and protecting  “collective speech.” In this way an others, and dating back to his 1997 concurrence in Turner Broadcasting System, Inc. v. FCC II, Stephen Breyer has set out to rewrite First Amendment jurisprudence.

In light of his two decades of service on the Supreme Court, I thought I would offer some background information on how the Justice has decided First Amendment free expression cases (29 are listed below), his thoughts on free speech generally, and how scholars and lawyers have viewed his jurisprudence in this area. A sketch of all of that is set out below by way of select references to various sources.

HLR Essays in Honor of Justice Breyer 

The November issue of the Harvard Law Review has a collection of essays in honor of Justice Stephen Breyer’s twenty years of service on  the United States Supreme Court. The following three essays concern the Justice’s free speech jurisprudence:

Let me pose a hypothetical

Let me pose a hypothetical: “Candidate Smith — we can only give him $2,600 — has a lot of supporters.”

Active Liberty: Justice Breyer on Free Speech

In his 2005 book, Active Liberty: Interpreting our Democratic Constitution, Justice Breyer devoted a chapter (pp. 39-55) to the question of free speech.

Roberts Court Era: Justice Breyer’s Majority or Plurality Opinions in Free Expression Cases

In what follows, S indicates that a majority of the Court sustained the First Amendment claimed whereas D means that it was denied.

Separate Opinions: Below is a list of separate opinions authored by Justice Breyer in free expression cases decided during the Roberts Court era:

a pensive moment

the pensive pragmatist

Justice Breyer’s Pre-Roberts Court Opinions: Selected Cases 

First Circuit Free Expression Opinions Read More


The Flawed Foundations of Article III Standing in Surveillance Cases (Part IV)

In my first three posts, I’ve opened a critical discussion of Article III standing for plaintiffs challenging government surveillance programs by introducing the 1972 Supreme Court case of Laird v. Tatum. In today’s post, I’ll examine the Court’s decision itself, which held that chilling effects arising “merely from the individual’s knowledge” of likely government surveillance did not constitute adequate injury to meet Article III standing requirements.

The Burger Court

It didn’t take long for courts to embrace Laird as a useful tool to dismiss cases where plaintiffs sought to challenge government surveillance programs, especially where the complaints rested on a First Amendment chill from political profiling by law enforcement. Some judges took exception to a broad interpretation of Laird, but objections largely showed up in dissenting opinions. For the most part, early interpretations of Laird sympathized with the government’s view of surveillance claims.

Read More


The Supremes’ Category Mistake Plus Magical Money Thinking

In Citizens United, the Court made a category mistake: Because money effects speech, money is speech. Last term the Court extended that mistake in Harris v. Quinn: Money is speech even if there is no other speech. This post will see how far this category mistake plus the Court’s magical money thinking goes.

In Harris v. Quinn, the Court struck down the “fair share” agreement provision in the Illinois law providing for union representation of home health care workers as a violation of the First Amendment. The “fair share” provision provides: “When a collective bargaining agreement is entered into with an exclusive representative, it may include in the agreement a provision requiring employees covered by the agreement who are not members of the organization to pay their proportionate share of the costs of the collective-bargaining process, contract administration and pursuing matters affecting wages, hours and conditions of employment.”

Nothing in this provision requires the non-member to do think, say or do anything vis-à-vis the union in terms of membership or participation in the organization. Indeed, the non-member could be engaged in a raucous and potentially effective campaign to get rid of the union and the union would have no basis to take action directly, or indirectly through the employer, to retaliate against someone who was a real pain in the side of the union. There is simply no connection between the non-member and the union other than that the service fee is deducted from the worker’s pay by the employer and forwarded to the union.

Payment for services rendered does not generally trigger free speech or association rights. For example, when I buy my latte at Starbucks I am surely economically supporting the company. But is my purchase a free speech expression for, or association commitment, to Starbucks? I might buy my next latte at Argo Tea. What does that mean in terms of my free speech or association rights other than I paid money because I like lattes? Let’s take the example to a legal context. Suppose I voted for Mitt Romney and now want to claim that my paying my federal income taxes violates my free speech and association rights because that payment is speech in favor of the policies of President Obama: My money going to the federal government is coerced speech. Without regard to tax payer standing, it is absurd to think that my First Amendment objection would be paid any heed at all. Another example, suppose someone who owns a condo or coop apartment loses an election to be on the building’s board of directors. Would anyone give any weight to the claim that being forced to be a member of the building’s association and paying assessments if you own an apartment in the building interferes with the member’s First Amendment rights to speak or associate? Don’t laugh: This is an era in which laughable arguments gain traction if the political winds blow in the right direction, witness the claim that Obamacare was beyond the power of Congress

After Citizens United, it is clear that the Court treats money as speech when it wants to reach a constitutional result that otherwise is improbable. In other words, the Court engages in magical thinking about money and speech. In Harris, the payment of the fee is declared to be speech and a forced association that the state cannot mandate. That is as absurd as me refusing to pay taxes because Obama is the President. But it gets worse when we put Harris together with Shelby County v. Holder, where the Supreme Court struck down a provision of the Voting Rights Act of 1965 because it violated its newly created “equal sovereignty” rights of the states. The essence of the equal sovereignty concept is that Congress is limited in the exercise of its otherwise valid powers if it does not treat all the states equally. Thus, for the present Court, the “fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States.” Sure, Alaska’s equal sovereignty rights would have been violated if it was admitted to the Union with only one Senator because the population is so small. But, until Shelby County and is immediate predecessor by the Roberts’ Court, Northwest Austin Municipal Utility District Number One v. Holder that was the very limited scope of this right of equal state sovereignty.

So, how would the magical thinking that money is speech from Harris apply to the equal sovereignty right of the states in Shelby County?  In other words, let’s put the fact that the payment of money is constitutionally protected together with the principle of equal sovereignty.  People in states like Illinois where I live, pay a lot of taxes to the federal government but, in return, get per capita much less money coming back from the federal government than what the federal government pays per capita to some other states, for example, Mississippi or Alabama. Is the fact that the federal government is not paying an equal per capita in benefits to Illinois that it pays to Alabama violate the rights Illinois? Does the State of Illinois have a constitutional claim, just as the States were found to have a valid claim in Shelby County? Why would not the magical thinking that money is speech apply? The politics in these states that are treated so well do bend in the same direction as the politics that appears to drive the Court. So, is this a stronger case than Harris where there was no speech other than the money? Should the claim I just made up, that boggles even my mind, stop Lisa Madigan, Illinois Attorney General from trying it out? Yes, of course, because the magical thinking and category mistakes made by the Court are the result of the winds of politics blowing in one direction.

It is impossible to teach constitutional law as an area of traditional law. As Judge Posner says judges in general act as rational actors and they only reach policy questions when the legal rules run out. But the major share of the very limited docket the Supreme Court picks for itself to decide are cases where the rules have run out. Maybe it has always been true, but the Roberts Supreme Court seems to be particularly inept at even keeping up the pretense that it is law, not politics, that they are making. I keep reminding myself, and my students, to respect the institution despite the decisions it makes.