Category: Jurisprudence

2

Scottish Referendum and Evolutionarily Fit Legal Systems

Some thoughts in the aftermath of the scottish referendum.

Why do regions want to secede? To some extent, secession attempts imply a desire for different rules than the state provides. From the individual perspective, that of the individual scott, basque, or chechen, this suggests the state’s rules do not give the individual the freedom to do what the individual desires. From the collective perspective, this corresponds to the state not letting the local group determine its conduct the way that the group desires. Thus, from the individual’s perspective it is a question of freedoms and from the collective perspective it is an issue of federalism, local governance.

I’d like to think that the US does not have secessionist regions (like Scotland, the Basque country, Quebec, Catalonia, Chechnya, etc) because it has a legal system that produces enough freedom and welfare that individuals do not feel the desire to secede. This also suggests that the legal system should not be merely optimizing for welfare but for a combination of welfare and freedom (I am not forgetting equality; egalitarianism is a component of welfare). A note of optimism for the scholarly enterprise: Since we have no gauge of freedom, normative legal and economic scholarship is still scratching the surface. Read More

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CJ Katzmann speaks at NYU Law on new statutory interpretation book

Dean Trevor Morrison and Chief Judge Robert Katzmann

Dean Trevor Morrison and Chief Judge Robert Katzmann at N.Y.U. Law School

Robert A. Katzmann, Chief Judge of the Second Circuit, visited New York University Law School last evening to speak on his new book Judging Statutes (Oxford University Press, 2014).

The book grew out of a Madison Lecture Katzmann delivered at the Law School on October 18, 2011. Adam Liptak, of the New York Times, heard the lecture and urged the Judge to expand it into a book.

The format for the well-attended event was an interview by Dean Trevor Morrison followed by questions from the audience. Dean Morrison asked a series of questions concerning statutory interpretation — questions ranging from the importance of presidential signing statements to discerning congressional intent of omnibus legislation covering a vast array of topics sans much, if any, legislative record.

Supreme Court Justice Sonia Sotomayor was among those attending the event at which the Chief Judge autographed books.

 Chief Judge Katzmann was also recently interviewed by Brian Lamb on C-SPAN.

→ On Tuesday September 23rd, the Chief Judge will speak at Georgetown Law School. Here is the schedule for that upcoming event:

4:30 – 5:00 p.m.
  Conversation


  • William M. Treanor, Dean, Georgetown University Law Center
  • Robert A. Katzmann, Chief Judge, U.S. Court of Appeals for the 2nd Circuit

5:00 – 5:30 p.m.
 Panel Discussion

  • M. Douglass Bellis, Senior Counsel, Office of the Legislative Counsel, U.S. House of Representatives
  • Adam Liptak, Supreme Court Correspondent, The New York Times
  • David Vladeck, Professor, Georgetown University Law Center

Remarks
: 

  • David S. Mao, Law Librarian of Congress

 See also Jeffrey Toobin, “Will Textualism Kill Obamacare?,” The New Yorker, Sept. 3, 2014.

4

Posner opinion on same-sex marriage cases — no law clerk drafts needed

Judge Richard Posner

Judge Richard Posner

He is a rara avis – he writes his own judicial opinions (nearly 3000).  Law clerks need not bother with drafts. He writes his own scholarly articles (over 300-plus of them) and erudite books (40-plus). Law clerks need not bother with writing them either.

In a world where judicial “plagiarism” is the accepted norm, Judge Richard Posner is his own man, his own author, and his own thinker. Make of him what you will, but you gotta admire the guy for his hard work, dedication, and integrity.

All of this was made manifest recently in two same-sex marriage cases (Baskin v. Bogan and Wolf v. Walker), which were argued before a panel of the Seventh Circuit on August 26, 2014. The oral arguments in the cases, especially Posner’s interactions with the counsel, have been the talk of the town. In them, Posner minced no words as he cut through the clichéd babble tendered in defense of the state laws therein challenged.

Yesterday, slightly more than a week after those arguments, Judge Posner wrote for the Court in a clear-headed and well-reasoned 40-page opinion.

No cutting and pasting here; no arguments weighed down by the pull of tedious string citations; and no ambiguity of argument. Not surprisingly, the likes of Holmes and Kafka were summoned to buttress the logic of his opinion, this with a dollop of Posner’s own cost-benefit analysis mixed in for persuasive measure. This is not to say, however, that the opinion lacks a good discussion of the relevant case law. Hardly. Rather, my point is that Posner’s work in these cases does not read like some group project or something out of a law school moot court exercise. No! It has style and sophistication.

Now think: could a fresh-out-of-law-school clerk do all that, and in such a short period of time? Probably not . . . unless his name was Richard Posner (on that score, see here).

Speaking of Judge Posner, next month we plan to post a series of pieces on the good Judge, including a post consisting of questions on 26 topics posed to him by 24 noted legal persona (professors, journalists, and judges), replete with his replies to all of them. Stay tuned.

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Knee Defender, Barro’s error, and Surprise Norms

Being a believer in Coase’s irrelevance “theorem” (see corresponding CALI lesson by me), I bring you a peeve springing from a podcast’s discussion of knee defender (a product that prevents the airline seat in front of you from reclining, which led to a recent fight on a plane, the plane’s diverted landing, and the arrest of the fighting passengers), which referenced a pundit’s (Barro‘s) quip that since nobody has offered to bribe him not to recline, little demand for no reclining exists. The podcast was also critical of reclining generally (as it is of warning motorists about speed traps), which raises the issue of hidden, surprise norms.

First on Coase. Bribing someone not to do something that annoys you is completely counterintuitive and counterproductive. It sounds and feels like extortion and perhaps we have an innate intuition against extortion. Maybe a jurisdiction existed, in the history of human development, where it was acceptable and habitual for some to pay others not to engage in annoying activities. However, nobody lives there any more because it got too annoying, since this functioned as an incentive for annoying behavior. How do we get from this point (my anti-extortion exception to acceptable Coasean bargaining) to worlds where ranchers bargain with farmers or quiescent spas with percussionists? I think social interaction follows the golden rule of do unto others as you would have done unto you (I accept gradual moderate reclining especially while napping and am very thankful indeed for speed trap warnings) and polite counterrequests not to recline are easy and possible (and we luckily have judges to protect us against oversensitive cops). Farmer-rancher and spa-percussionist interactions are different in that they happen at the professional level. Ranchers and farmers do not know eachother’s cost-benefit calculus making bargaining acceptable, as I think it is between neighbors with different attitudes about noise or lawn care. That having been said, my sense is that airline seat design seems to be sensitive to the various concerns because it seems to have shifted to minimal reclining in short flights or cramped rows and more reclining in transoceanic flights, where, also, the flight attendants do ask passengers to lift their seats for meals. So, anti-reclining demand seems to be producing results, consistent with Coasean reasoning and contrary to the intuition of Barro. Notice the unusual power of Coase here, since two of his conditions, the clarity of rights and enforceability of bargains, seem to be lacking in the social context of seat reclining (but not in neighborhood lawn care? Or is that why people pay a premium to live in associations? Coase all the way! Is it Lee Fennell or Jay Weiser who discuss premiums paid for association houses? Maybe both.). Perhaps I am wrong on reclining and it is clearly a right, not only because the button is on the handrest of the recliner (rather than the seat back, as the podcast points out) but also and especially since the airlines have banned knee-defender. The airlines also offer some seats with protection against reclining, the bulkhead and the exit row seats (maybe airlines could increase the number of non-reclined-against seats or charge the knee-defender premium for them). Thus, those seeking no reclining can obtain it by taking such seats instead of bribing Barro, buying knee defender, or trying to create a norm against it.

Second on surprise norms. No no no no, thou shalt not spring your righteous surprise norms on me. Western legal and social arrangement rests on the foundation that what is not prohibited is allowed. I can press my recline button and I can blink my brights to oncoming motorists at the cost of flying next to crying babies and driving behind those doing under the speed limit. (But in Sunday’s NY Times magazine, in Branson’s interview, he mentioned that he wants or tried to have his airline move toward children’s cabins, a development for which my ears are praying albeit from behind BOSE noise-cancelling headphones). To my reasoning, a necessary corollary of the rule of law is the non-rule of non-legal norms. When a need for a rule has enough thrust that it alters the law, then we have some warning about it and perhaps the chance to object against its creation. Holding people to a standard of conduct they do not know and to which they may object seems the height of (righteous, meddlesome, antiliberal, puritanical, strike four words) unfairness. (BTW, strike is obsolete litigator legalese for delete, dating from the days where the transcriber would back up the typewriter carriage and type XXXX or dashes over the, thus, struck text. That I could perfectly easily delete the words reveals my affectation here, but ignore that.) I have a sense that when I lived in the east coast a lot more of these surprise norms seemed to exist than here in the midwest and it grated. Or I am a rude boor who belongs in that extinct society above.

So, what is the norm in this blogo-podcast-sphere? Should I reveal that I am commenting on Oral Argument of Joe Miller and Christian Turner or should I leave the podcast nameless because I criticize it somewhat? Since law professors thrive on citation counts, I will presume that they would prefer attribution to marginalization despite that I am not in full agreement with everything they say (and who could possibly expect complete agreement in our milieu of professional debaters of trivialities?). I am very thankful for their podcast adding interest to my driving time and for triggering this post.

I hope no norm against run-on sentences and parentheticals exists in the blogosphere, or I am toast! In my defense, please notice that I could not instead drop notes. BTW, drop a [foot]note is legalese for removing from the main text a diversion or interjection and placing it in a footnote, which reminds me…

6

Further Thoughts on Halbig and Originalism

Since my post on Halbig and originalism drew several great comments (including a response by Larry Solum here), I thought would add some clarifying thoughts.

My point is that recovering the original public meaning of a legal text is often much harder than people care to admit. Historians are more likely than lawyers to say that the meaning of a past event is indeterminate.  Now does this mean that we can never know the original public meaning of something?  No.  Does it mean that we should not try to know?  No.  Originalists, in my view, just tend to be overconfident in what they think they know or can figure out.  If we are having a hard time with something from four years ago (assuming you believe that is the case), then where are we for texts from two hundred plus years ago?

Now the best rejoinder to the specific claim in my post is that a complex statute like the Affordable Care Act is not comparable to constitutional language.  The latter gets more widely discussed and is easier to understand.  That is true to some extent, but I’m not sure it’s a total winner.  People are always surprised at how little Section One of the Fourteenth Amendment was discussed at the time, for example, and you can find examples of statutes that were discussed in far greater detail (the Civil Rights Act of 1964, for example).

 

5

F.F. — Make of him what you will, but . . .

Felix Frankfurter

Felix Frankfurter

I want to recommend a relatively new article in the Journal of Supreme Court History. It is impressively researched, commendably thoughtful, and refreshingly balanced. Before doing so, however, permit me to say a few prefatory words.

It is hard to be fair when writing of those with whom we disagree, and harder still when we dislike their personal manner. Arrogant, argumentative, and devious – these are not the words that fair-minded scholars like to use unless the fit is fair. All of which takes us back in time to this man: Felix Frankfurter (1882-1965).

What to make of him?

As a Supreme Court Justice he was, in Mel Urofsky’s words, “a divisive figure whose jurisprudential philosophy is all but ignored today.” Others have been even less kind in their assessment of the temperament and jurisprudence of the Justice from Vienna. While Cass Sunstein has recently labored to revive respect for Justice Frankfurter and his judicial opinions, that effort may prove Sisyphean (save, perhaps, in a few discrete areas involving federal jurisdiction).

Still, there was more to Felix Frankfurter than the life he led on the Court between 1939 and 1962. The trajectory of his career (fueled by hard work, ambition, and brilliance) is an immigrant-come-to-America success story at its best. His work – first with Louis Brandeis and then on his own – to advance the cause of fair and humane labor practices exemplifies the Progressive movement in its glory. Then there was the role he played early on in helping to launch the ACLU. With a mix of courage and insight, he later called for a retrial for Nicola Sacco and Bartolomeo Vanzetti by way of an impressive lawyer-like article he published in the Atlantic in 1927; the article was thereafter expanded into a small book. And, of course, there is more, much more, which brings me back to that article I alluded to earlier.

Sujit Raman

Sujit Raman

Sujit Raman (the chief appellate lawyer in Maryland’s U.S. Attorney’s office) has just published an engaging and highly informative article. Its title: “Felix Frankfurter and His Protégés: Re-examining the ‘Happy Hot Dogs.’” It captures Felix in all his complexity and does so with objective nuance. With skilled brevity Raman also sketches the story of the Jewish immigrant’s struggle to assimilate, the Harvard Law student’s meritocratic success, the progressive’s desire to improve government when he went to work for Henry Stimson (first in New York and then in Washington, D.C), and then the Harvard professor’s cultivation of the best and brightest, whom he invited to his Sunday teas.

Above all, Sujit Raman’s real story is about Felix Frankfurter’s “greatest legacy,” namely, the “legions of students he trained and nurtured at the Harvard Law School, . . . who, in their own right, shaped the age in which they lived.” Consistent with that objective, Frankfurter’s “avowed intent as a professor was to instill in his students an interest in public service, and from his earliest days, he began collecting recruits for his crusade.” In time, they would come to be known as Frankfurter’s “Happy Hot Dogs” as Hugh Samuel Johnson tagged them.MTE5NTU2MzE2MjE5NDc1NDY3

Could he be snobbish? Yes. Could he be petty? Yes. Spiteful? Yes. Did he delight in manipulating matters from unseen sidelines? Yes again.

Clearly, F.F. had his psychological warts. Yet, when one steps back and beholds the man and this patch of his life work at a detached distance, he stands rather tall. Why?

Now, to cut to the chase: “Frankfurter was one of the New Deal’s intellectual architects as well as one of its most accomplished draftsmen of policy – yet he had no legislative portfolio or any official position in the Roosevelt Administration.” Moreover, adds Raman, “Frankfurter was the New Deal’s principal recruiting agent. He placed his protégés in all levels of government, and consequently his vision was carried forth, albeit indirectly, by his able lieutenants.” In sum, “the New Deal was in many ways the embodiment and culmination of Frankfurter’s life work.”

James Landis

James Landis

In the span of 28 pages (buttressed by 127 scholarly endnotes), Sujit Raman fills in many of the blanks in the Professor-and-the-New-Deal story. While he is cautious not to exaggerate Frankfurter’s role and influence, Raman’s account makes it difficult to deny the remarkable magnitude of Frankfurter’s unique impact on public law and its operation at a crucial stage in our legal history.

True, the “Happy Hot Dogs” story has been told before and from a variety of perspectives (see, e.g.,  here and here). Even so, Mr. Raman does what others before him have not quite done: he tells the story in a concise yet authoritative way and with enough panache to draw the reader back in history for glimpses into the exciting world of F.F. and his adept protégés – the likes of Thomas G. Corcoran (video here), Benjamin V. CohenJames M. Landis, David Lilienthal, and Charles Wyzanski, among others. They were all part of Frankfurter’s network, all “elite lawyers” hand picked because of their ties to F.F. and their “reformist inclinations.”

Whatever your opinion of Felix Frankfurter, his star may yet brighten anew, though probably not in the universe of Supreme Court history and jurisprudence. His true galaxy was elsewhere – in that realm where the “minds of men” move the gears of government to places only once imagined in classrooms in Cambridge.

Ask your librarian for, or go online or order a copy of, Sujit Raman’s illuminating article in volume 39 (March 2014, #1, pp. 79-106)) of the Journal of Supreme Court History. Better still, join the Supreme Court Historical Society. Either way, it will serve you well.

1

Canons as Sayings

My summer-reading highlight for 2014 was Surfaces and Essences, by Douglas Hofstadter and Emmanuel Sander.  The book is primarily concerned with the relationship between analogies and human thought, but it also offers some fun and interesting insights about language along the way.  My favorite such insight had to do with “mutually contradictory proverbs,” i.e., pairs of sayings/idioms that reflect starkly conflicting pieces of advice.  Hofstadter and Sander have collected several of these competing pearls of wisdom, including, for example:

  • Strike while the iron’s hot . . . but then again,  Look before you leap.
  • Two’s company, three’s a crowd . . .  but then again,  The more, the merrier.
  • Opposites attract . . . but then again, Birds of a feather flock together.
  • The pen is mightier than the sword . . . but then again,  Actions speak louder than words.

And if I may add just a few more of my own (I’ve been alertly on the lookout all summer):

  • Be yourself! . . . but then again, When in Rome, do as the Romans do.
  • You never get a second chance to make a first impression . . . but then again, Today is the first day of the rest of your life.
  • #YOLO . . . but then again, #YOLO.

Read More

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Absurd Statutes

I have a question for folks who focus on statutory interpretation.  One of the canons for a court is that unambiguous text will not be applied if it would lead to an absurd result.  Are there any cases that actually refuse to apply clear text because of absurdity?  It strikes me that if a court actually thought the result would be absurd, then they would just find a way to say that the language is ambiguous.

UPDATE:  Thanks for sending examples!

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What Berkshire Hathaway Teaches About Hobby Lobby

Eleven years ago tomorrow, the abortion issue led Berkshire Hathaway, the huge conglomerate Warren Buffett built and now owned by one million different shareholders, to end its shareholder-directed charitable contribution program. Under the program, Berkshire’s board earmarked an amount for charitable giving and then let the company’s class A shareholders designate the charities to which their share went. In twenty-two years, the program distributed $197 million to thousands of different charities.

Berkshire terminated the program on July 3, 2003 because activists boycotted products of one of its subsidiaries to protest giving to organizations they opposed on religious grounds: some designated Planned Parenthood, which facilitates a woman’s choice to abort an unwanted pregnancy, while others gave to Catholic Social Services, which opposes abortions.

Berkshire stood for neither position, of course, because it is a business organization whose mission is to increase its intrinsic economic value, which has nothing to do with religion. Berkshire’s board chose to terminate the program because the boycotts hurt Berkshire’s business and its personnel while offering shareholders only a slight convenience and tax advantage.

The scenario speaks to the debate that erupted this week between foes in the abortion debate thanks to the Supreme Court’s decision in the Hobby Lobby case. The issue in that case, narrower and more technical than accompanying rhetoric suggests, was whether the word persons in a federal statute about religious freedom includes corporations owned by a small number of people with a specific set of religious beliefs. If so, then regulations implementing Obamacare cannot require them to fund birth control devices in conflcit with their religious beliefs.

A majority of the Court concluded that closely-held corporations are persons for the purpose of the statute because they are readily seen as merely a convenient legal form through which individuals do business. The dissent complained that only individuals can have religious beliefs and therefore corporations, whether closely held or otherwise, aren’t persons for purposes of the federal law.

The Berkshire example is instructive on both opinions. Buffett has always boasted that Berkshire, though using the corporate form, adopts a partnership attitude. The shareholder charitable contribution program epitomized this attitude. It gave the decision to the owners, as is done in partnerships and closely held corporations, not the board, the practice in public corporations. Those owners, moreover, were the class A shareholders, a subset of Berkshire’s shareholder body made up of people with larger and older stakes—including hundreds who really were Buffett’s original partners.

Berkshire shareholders, class A and class B, readily agree on a wide variety of business and ownership topics. For example, in a vote earlier this year on the company’s dividend policy, 98 percent ratified the existing—and unusual—no-dividend practice. But put a question about hot-button religious or political  issues of the day such as abortion and expect deep divisions.

Berkshire’s shareholders may be able to act like partners or closely-held shareholders on business issues while the charitable giving program proved they were unable to do so on others. For the Court in Holly Lobby, this perspective supports the majority’s holding about the nature of close corporations while validating the dissent’s appetite for a sharp boundary between them and the typical business organization.

Lawrence A. Cunningham is the author of the upcoming Berkshire Beyond Buffett: The Enduring Value of Values and editor of The Essays of Warren Buffett: Lessons for Corporate America. He teaches business-related courses at George Washington University Law School.

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UCLA Law Review Vol. 61, Issue 5

Volume 61, Issue 5 (June 2014)
Articles

Opinions First—Argument Afterwards Daniel J. Bussel 1194
How the California Supreme Court Actually Works: A Reply to Professor Bussel Goodwin Liu 1246
The Best of All Possible Worlds? A Rejoinder to Justice Liu Daniel J. Bussel 1270
Deprivative Recognition Erez Aloni 1276
Immigration Detention as Punishment César Cuauhtémoc García Hernández 1346
Toward a Theory of Equitable Federated Regionalism in Public Education Erika K. Wilson 1416
The Dark Side of the First Amendment Steven H. Shiffrin 1480

 

Comments

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