Site Meter

Category: Jurisprudence

2

Stanford Law Review Online: The Money Crisis

Stanford Law Review

The Stanford Law Review Online has just published an Essay by former U.S. Senator Russ Feingold entitled The Money Crisis: How Citizens United Undermines Our Elections and the Supreme Court. Senator Feingold explains how the Supreme Court decision in Citizens United threatens the integrity of our political process:

As we draw closer to the November election, it becomes clearer that this year’s contest, thanks to the Supreme Court’s 2010 Citizens United decision, will be financially dominated by big money, including, whether directly or indirectly, big money from the treasuries of corporations of all kinds. Without a significant change in how our campaign finance system regulates the influence of corporations, the American election process, and even the Supreme Court itself, face a more durable, long-term crisis of legitimacy.

[In Citizens United,] the Court was presented with a narrow question from petitioners: should the McCain-Feingold provision on electioneering communications (either thirty days before a primary election or sixty days before a general election) apply to this movie about Hillary Clinton? The movie, of course, was not running as a normal television commercial; instead, it was intended as a long-form, “on demand” special.

Yet Chief Justice Roberts clearly wanted a much broader, sweeping outcome, and it is now clear that he manipulated the Court’s process to achieve that result. Once only a question about an “on-demand” movie, the majority in Citizens United ruled that corporations and unions could now use their general treasuries to influence elections directly. Despite giving strenuous assurances during his confirmation hearing to respect settled law, Roberts now stands responsible for the most egregious upending of judicial precedent in a generation. As now-retired Justice John Paul Stevens wrote in his dissent to the majority in Citizens United: “[F]ive Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”

He concludes:

The Court has a clear opportunity. A new challenge from Montana could allow the Supreme Court to reconsider its decision in Citizens United, and at least two justices have hinted that the 2010 ruling is untenable. In granting a stay of a Montana Supreme Court decision upholding that state’s anticorruption laws, Justice Ginsburg, writing with Justice Breyer, found the pulse of the chaos Citizens United has wrought: “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Commission, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’”

Justice Ginsburg is correct. Today’s framework for corruption cannot stand.

Read the full article, The Money Crisis: How Citizens United Undermines Our Elections and the Supreme Court by Russ Feingold, at the Stanford Law Review Online.

Note: corrected for typos

5

Justice McLean on Originalism

“Antiquity has its charms, as it is rarely found in the common walks of professional life; but it may be doubted whether wisdom is not more frequently found in experience and the gradual progress of human affairs; and this is especially the case in all systems of jurisprudence, which are matured by the progress of human knowledge.  Whether it be common, chancery, or admiralty law, we should be more instructed by studying its present adaptations to human concerns, than to trace it back to its beginnings.  Every one is more interested and delighted to look upon the majestic and flowing river, than by following its current upwards until it becomes lost in its mountain rivulets.”

Jackson v. The Steamboat Magnolia, 61 U.S. (20 How.) 296, 307 (1858)

6

More on the Filibuster and Statutes

Yesterday I talked about how current filibuster practice undercuts the super-strong version of stare decisis for statutory precedents.  Let me throw out some other implications of having a supermajority rule to pass most legislation in the Senate.

1.  Sunset provisions look very different if you think that getting a law reenacted or reauthorized will take 60 votes in the upper house.

2.  The presumption of constitutionality that attaches to Acts of Congress may be greater if they cannot be enacted without sixty senators.  Or you cannot say with assurance that there is a political remedy for statutes that are constitutionally problematic.

3.  As I noted in a prior post, severability is less attractive if you think that sixty votes in the Senate are required to replace a severed provision that is critical to the statute.  If the entire Affordable Care Act falls next month, then the filibuster is probably the culprit.

4.  The principle that one Congress cannot bind another is, in reality, not true.  A stacked Congress (one with 60 senators or more on an issue) can entrench its initiatives to a significant extent. Much of the Affordable Care Act, for example, is pretty much immune from repeal by Congress.

2

Stare Decisis and the Filibuster

I’m in idea-testing mode, as I’ve been invited to a Symposium at Notre Dame on “The American Congress:  Legal Implications of Gridlock.”  My first thought was that this was asking panelists to identify solutions for gridlock.  My second thought was that this conference is about the collateral consequences of gridlock.  Pursuing that line of inquiry, I wonder if the “super-strong” presumption of statutory stare decisis should be abandoned for Acts of Congress.

A leading source of gridlock in Congress is the current practice of the filibuster.  Now I’ve written about how that practice is contrary to the Senate’s traditions and should be reformed, but let’s say nothing changes.  In effect, that means that we have a supermajority rule for most legislation.

Courts interpreting statutes, though, do not acknowledge this fact.  They assume that Congress is a majoritarian body.  The most important conclusion that follows from this faulty premise is that stare decisis should be particularly strong with respect to interpretations of federal statutes.  Why?  Well, because Congress can correct an incorrect construction fairly easily.  That point does gloss over the inertia that exists in a majority-rule legislature (committees, party leaders, the executive veto), but I gather that the idea is that this inertia is insufficient to alter the sanctity of statutory precedent. But why should these precedents be treated so respectfully when it takes sixty votes in the Senate to “fix” erroneous decisions?  Granted, this is less difficult than correcting a faulty constitutional opinion, but that does not translate into a “super-strong” rule of stare decisis for federal statutes.

I’ll have more to say about the relationship between the filibuster and interpretation tomorrow.

5

Louis Pollak (1922-2012)

From the federal courthouse comes the very sad news that Senior District Court Judge Louis Pollak has died.  Judge Pollak, a jurisprudential giant, mentor to many, and former dean of both Yale and Penn Law Schools, served on the bench from 1978 until his death.  He will be missed.

 

(Update: The Inquirer’s brief obituary is here, though obviously there is much more that could and will be said.)

Symposium on Brett Frischmann’s Infrastructure, April 24-27

book coverThis week, Concurring Opinions is hosting a symposium on Brett Frischmann’s book, Infrastructure: The Social Value of Shared Resources.  Having long followed and enjoyed Brett’s work, Deven and I are honored to organize the discussion.

The book is described here (OUP site) and here (Amazon). The introduction and table of contents are available here. As the introduction notes,

Viewing foundational environmental and intellectual resources through the infrastructure lens yields interesting insights regarding commons management institutions. In particular, both environmental and intellectual property legal systems construct semi-commons arrangements that create and regulate interdependent private rights and public commons.

The symposium will include contributions from Julie Cohen, Laura Denardis, Andrew Odlyzko, Tim Wu, Marvin Ammori, Timothy B. Lee, Robin Chase, David Isenberg, David Post, Adam Thierer, Rick Whitt, and Barbara A. Cherry.

3

Of Law and Self-Loathing

“I’m a self-loathing law student,” confessed one of the students in my Critical Race Theory seminar this week. Several others immediately owned up to the same affliction. I will stipulate that self-loathing is probably not an affect we all should strive to achieve. But I was heartened anyway.

Twenty-five years ago when I began teaching law, my social-justice-minded students regularly veered from rage and tears at moral wrongs to a defiant hope. They sustained themselves and one another with a faith that the arc of the moral universe is long but it bends toward justice, as Dr. King is thought to have said. And they ultimately placed their trust in law and especially the courts.

My students were not alone. Even by the mid-1980s, many of us lawyers and law professors were still recovering from the collective daze of delight induced by the Second Reconstruction and the Warren and Burger Court eras. Of course, we were already in the throes of affirmative-action backlash and judicial retrenchment; colorblind constitutionalism was shaped before our very eyes; and even as a law student I had studied Harris v. McRae in my equal protection class and learned that the formal declaration of a constitutional right is not the same as the economic security needed to exercise it. Yet the romance, the belief that getting the courts to pronounce a legal right was a mighty blow for justice, lingered on.

Maybe it was the continued influence of the post-war “idea of America as a normative concept,” as Edward Purcell  put it in 1973: the incorporation throughout social and political debate of “terms that were analytically confused but morally coercive – patriotism, Americanism, free enterprise system, mission, and, most grossly, ‘we’re number one.’” In the culture of legal academia, this logic translated into a faith in the jurisprudence of legal process. In my little corner of the world we were all reading Democracy and Distrust and trying to locate neutral principles. The faith that procedural fairness, at least, could be achieved despite a lack of consensus about the good life reinforced a belief in the American rule of law as an unshakable bulwark of democratic fairness. That sentiment was entwined with a professional loyalty to the law: to have gone to law school was in itself a statement about one’s commitment to the law as the royal (I mean “democratic”) road to justice.

So when critical legal studies, feminist legal theory, and then critical race theory hit the academy around this time, the crits (like the Legal Realists before them) were accused of “nihilism” and shown the door. Critical legal theory was not just a disloyalty to the civil rights movement but to the rule of law itself. It was subversive, in those mid-1980s days, to pass around The Hollow Hope  and to insist, as the crits were loudly doing, that “reification” and “legitimation” were basic functions of legal reasoning. The trust that the system works – or, at least, could work if we got it right – was now being dubbed “legal liberalism” by the crits, and being skewered in massively long and ponderous articles about fundamental contradictions. But the critics could be challenged by asking them where their “positive program” was. And they could (sometimes) be silenced by demands that they leave the law altogether.

For the crit project seemed deeply and radically anti-law. We junior professors, reading their work and sometimes contributing to it, felt like outlaws (which brought with it a sense of being dangerous and cool, along with a sense of vulnerability heightened by our lack of tenure and the material consequences of being perceived as a nihilist). At the same time, interestingly, the practice of teaching was not too different for us as it was for our older Legal Process colleagues. It was all about puncturing our students’ illusions, showing them the indeterminacy of legal reasoning and teaching them how to surf on it, questioning the use of words like “fairness.” It was just that we had no shining neutral-principles machine to lift from the bottom of Pandora’s box at the end of the day.

I don’t mean to suggest that legal liberalism and faith in the rule of law as central to the American way ever died. At a conference at Santa Clara Law School last week on race and sexuality, some of the lawyers and academics gathered there bemoaned a “politics of civil rights” that has somehow placed marriage equality at the top of the LGBT agenda. The charge was familiar: too many lawyers and non-lawyers alike believe that “gay is the new black;” that the civil rights movement brought about racial equality and “now it’s our turn;” that if we prove we are just like them, we’ll all be free. The rush to assimilate to mainstream institutions and practices throws under the bus, as usual, those most vulnerable to premature death – those without the racial, economic, and bodily privileges (and/or the desire) to get married, move to the suburbs, and blend in.

What was different was that an alternative position, the “politics of dispossession” as Marc Spindelman named it, was also on the table – not as a stance that made one’s commitment to the law suspect from the get-go, but as an accepted ground for lawyering. When thinking about sexuality we might want to begin, under this politics, not with marriage but with the kids doing sex work on International Boulevard in Oakland, as Margaret Russell pointed out. And, after decades of critical theory, it was taken as a truth in that room — if an inconvenient one — that to do this would mean instantly coming up against poverty, racism, and violence, forms of suffering law is not well positioned to ameliorate.

In this way, lawyering for social justice is a contradiction. Not in the “nihilist” sense, the law-as-a-tool-of-the-ruling-class notion that those who want justice ought to give up their bar cards and go protest in the streets. (My friend Norma Alarcón once identified this romantic position as the desire to “be out in the jungle with Che.”) Rather, the politics of dispossession begins with recognizing that the law is not designed to go to root causes; that fundamental changes in the ground rules, which is what the most vulnerable need, come from organizing;  and that lawyering isn’t useless, but that it looks different if it is prison abolition you want and not a marriage license.

More abstractly, the understanding in that room was that, as Patricia Williams said to the crits in one of the founding texts of critical race theory, law is both inadequate and indispensable in the struggle for justice. Post-legal-liberalism lawyering begins here.

What’s also new is that this commitment to living in the contradiction — accepting the tension between law and justice as a place to work rather than as a source of despair — is increasingly expressed not only by battle-scarred veterans at academic conferences but by law students. The desire to make positive social change has not gone away among my students. They still hope and expect that law can be used in the service of justice. But along with a waning of faith in the courts, they express an increasingly sophisticated awareness of the limits of the law more generally. They know, already, that justice and law are not the same. The task is no longer disillusioning them, but helping them develop the skills for finding what works and what doesn’t.

Okay, so “self-loathing” is probably not the best way to say it. But this wry recognition of the imperfection of law seems to me nevertheless an improvement over the wounded attachment to law as a portal to justice that seemed to mark so many progressive law students a generation ago. As the same student said later in the conversation that day, “That’s my contradiction, and I’m sticking to it.” There’s a wisdom there that’s heartening.

5

Book Review: James’s Fichte’s Social and Political Philosophy

David James, Fichte’s Social and Political Philosophy: Property and Virtue. Cambridge: Cambridge University Press, 2011.

Johann Gottlieb Fichte (1762-1814) is the third most important thinker in the tradition of German idealism (Kant and Hegel vying for most important) which later morphed into Marxism and finally into Frankfurt School critical theory as well as into Rawls’ Kantian constructivism. Though idealism is a central strand in contemporary ethics, it has not has as strong an impact in political and legal philosophy where it has been eclipsed by the social contract tradition of which Kant and, to some extent, Fichte are part. However, it is James’ contention that Fichte’s idealism is indeed relevant to his theory of the state and hence to the idea of a social contract and the further vexing question of the relation between morality and right.

In the interest of clarifying what is at stake in a properly idealist understanding of Fichte’s theory of right, let me say some general things about how idealism plays into the debate. The first thing to say, perhaps is that idealism takes as its main opponent realism, the— perhaps more familiar— idea that the world is a certain way and that we, as subject must both discover and then conform our behavior to the way the world actually is. This is captured in empirical social science or socio-biology by the thought that there is an ideal, or maximally efficient, form social organization can take and it is our task to figure out what that is so that we can model actual social organization on this ideal social organization, stripping away the sorts of things which are extraneous to this efficiency. (The case of property, discussed below, shows that this is no idle comparison.)

Idealism, for methodological as well as ethical reasons, takes the opposite approach, insisting by contrast that we, as social and moral beings, construct the world we live in. That is, the social world is not a function of the arrangements of bodies (to which minds must accommodate themselves) but rather of the attitudes of mind in the sense that the social world is the result of our varying attitudes toward each other. This is captured by the familiar claim to rational autonomy which social contract theorists from Hobbes to Rawls all take as axiomatic, to some extent. The basic point is simply that it is the will itself which constructs the world in its own image. The will of others, not their bodies, is likewise the relevant entity of ethical consideration.

This idealist perspective is usually understood as a moral perspective and is to varying degrees understood as at odds with political philosophy which deals with rights, that is with how bodies are arranged. Liberalism, in the Lockean and at least some of the Rawlsian versions, is concerned to maintain a balance between morality and political organization in the sense that it takes itself to be able to abstract from contentful moral commitment in the service of universalizable commitments about how bodies should be treated. That is, its fundamental commitment is to value neutrality with regard to people’s actions which are outside the purview of security and basic necessity.

It is this sort of liberalism which James believes Fichte challenges. Though James does not put this in terms of idealism, I think it is easy enough to put the argument together from James’ book. On the Lockean view, property is something that belongs to us because we invest it with value. This means that I am free to buy and trade it, once I have made it mine. Fichte’s fundamental argument, which actually fits quite well with the neglected third part of A Theory of Justice, is to say that it is rather property which makes subjectivity possible. Putting it this way makes room for the need for a certain kind of redistribution which is meant to facilitate the adequate development of subjectivity in the first place.

Read More

0

Stanford Law Review Online: Animus Thick and Thin

Stanford Law Review

The Stanford Law Review Online recently published an Essay by Nan D. Hunter entitled Animus Thick and Thin: The Broader Impact of the Ninth Circuit’s Decision in Perry v. Brown. Professor Hunter argues that the Perry decision will have a more far-reaching impact than most commentators have suggested, both in defining the role of animus in equal protection analysis and in establishing the courts’ role in checking popular initiatives that deny rights to minorities:

The only problem with this analysis for marriage equality supporters is that, despite the principle that courts should resolve constitutional disputes on the narrowest possible grounds, the “taking away” portion of the rationale strikes some as too outcome driven and transparently invented for the goal of providing the Supreme Court with a plausible rationale for denying certiorari. From this view, the opinion’s political strength will also be its greatest doctrinal weakness.

I disagree on two counts. First, I read the opinion as being far more nuanced than it has been given credit for, and believe that its elaboration of the role of animus in judicial review is an important contribution to equal protection doctrine. Second, critics are missing a deeper point: the greatest political strength of the Perry opinion lies not in the short-term question of whether the Supreme Court will accept review, but in its contribution to the more enduring issue of how courts can balance their role of serving as an antimajoritarian check on populist retaliation against minorities while also preserving the values of popular constitutionalism.

She concludes:

[A]lthough initially the panel opinion in Perry would affect only Proposition 8, its larger contribution may be the creative way that it addresses the persistent, intractable conundrum of America’s countermajoritarian difficulty. The opinion does this in part by taking animus seriously as one of the criteria for heightened rational basis review and in part by creating a modest curb on popularly enacted state constitutional amendments. If the Ninth Circuit grants rehearing en banc, the opinion will be vacated, but one hopes that its contribution to the evolution of equal protection law will endure.

Read the full article, Animus Thick and Thin: The Broader Impact of the Ninth Circuit’s Decision in Perry v. Brown by Nan D. Hunter, at Stanford Law Review Online.

2

Qualified Immunity and Patent Law

The Federal Circuit just issued an opinion that raises the question of how courts should handle cases where the most difficult issue to resolve is the one that seems like the most logical to address first.  In patent validity cases, it is often true that an invention is not novel (under Section 102) or non-obvious (under Section 103) as required by the statute.  It is also possible, though, that the invention is not patent eligible subject-matter (under Section 101).  But the question of what is a patent ineligible “abstract idea” or “natural phenomenon” is one that courts have struggled with for years, and there is no clear resolution in sight.

The Federal Circuit has now suggested an answer to this problem–just assume that an invention is eligible subject matter if you can say that it is otherwise not patentable.  This would (most of the time) avoid the hard issue while resolving the case correctly.  Even though Section 101 seems like a predicate for patentability, it is not a jurisdictional or standing question, which would have to be addressed first no matter how hard that inquiry is. On the other hand, dodging the subject-matter question makes it less likely than that doctrine in that area will be clarified.

The same problem comes up in qualified immunity cases.  In a typical damage suit against a government official, the court must decide two things:  (1) was the plaintiff’s right violated; and (2) was that right clearly established.  The second question is sometimes easy while the first is hard.  Nevertheless, the Supreme Court tried for a while to insist that lower courts always answer the first question. Why?  To define constitutional rights more clearly. The problem, of course, is that this makes deciding cases more difficult and runs against the standard practice of avoiding constitutional questions when possible. (Now the Court’s position is that it’s a good idea to answer the first question, but it is not required.)

I’m not sure what the right solution is (I tried to write a paper on this once but wasn’t satisfied.)  Sound judicial discretion may be the only sensible answer.