Archive for the ‘Uncategorized’ Category

Blogging Holiday

posted by Gerard Magliocca

I’ll be in New Zealand for the next three weeks, so no blogging until after I get back. I’ll be too busy trying to keep Gollum from stealing the precious.

I’m happy to add that the Bingham book (which is definitely not the precious) is now done, except for some clean up of the Introduction and Conclusion that I’ll take care of when I return.  In May I should be ready to circulate the draft to experts in the field for their feedback.

  April 16, 2012 at 2:16 pm   Posted in: Uncategorized   Print This Post   No Comments

African Elections in 2012 on the World Stage and in the Classroom

posted by Janai S. Nelson

Teaching U.S. election law in the shadow of a presidential election is an election law professor’s dream. There is no better backdrop for the material or more engaging context to capture student interest in the subject.  However, as I also teach a comparative election law course that examines election law issues internationally, I had a difficult time deciding which to offer this fall in light of the seemingly record number of presidential and legislative elections this year.  On no other continent is this cloudburst of elections more evident than in Africa.  The concentration of African elections is owing  not just to Africa having more countries and democracies than any other continent; rather, the combination of the Arab spring and the happenstance of calendrical synchronicity has yielded a mother lode of elections on the continent.  Africa is evidence that, against many odds, democracy is at work. In the United States, democracy works in large part because of deeply entrenched historical values and a multiplicity of modern interests that depend on democratic institutions.  Indeed, in much of the Western world, democracy enjoys a worn expectation as a successful form of governance.  In modern Africa, however, democracy increasingly prevails because the lion’s share of its inhabitants is moving steadfastly and stubbornly against authoritarianism and the one-party state in hopes for a fairer, freer, and more equal form of government.  Simply put, democracy in Africa grows from the same soil of revolution and idealism that nourished the seeds of U.S. democracy nearly three centuries ago.  For those of us interested in the study of democracy, Africa is a place to watch in 2012. Read the rest of this post »

  April 13, 2012 at 10:48 am  Tags: African elections, Comparative election law, democracy, democracy building, run-off elections, teaching election law  Posted in: Uncategorized   Print This Post   No Comments

The Yale Law Journal Online: I Say Dissental, You Say Concurral

posted by Yale Law Journal

The Yale Law Journal Online has just published I Say Dissental, You Say Concurral, by Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit and attorney James Burnham. In the essay, Kozinski and Burham examine the trend of “dissentals” and “concurrals,” through which circuit judges write dissents from, and concurrences in, orders denying rehearing en banc. Although many have disparaged the practice, Kozinski and Burnham argue that dissentals and concurrals have become “an established and useful part of the appellate process.”

Preferred citation: Alex Kozinski & James Burnham, I Say Dissental, You Say Concurral, 121 YALE L.J. ONLINE 601 (2012), http://yalelawjournal.org/2012/04/10/kozinski&burnham.html.

  April 12, 2012 at 9:00 am   Posted in: Uncategorized   Print This Post   One Comment

The Buzzword of the Year: “Multistakeholder”

posted by Peter Swire

Greetings to Concurring Opinion readers. I thank the editors for inviting me to guest blog. I am looking forward to the opportunity to write more informally than I have done for a long time. I am out of the administration, and don’t have to go through the painful process of “clearing” every statement. And I am focusing on researching and writing rather than having clients. So the comments are just my own.

I suspect I’ll be writing about quite a range of privacy and tech issues. Many of my blog-sized musings will likely be about the European Union proposed Data Protection Regulation, and the contemporaneous flowering of privacy policy at the Federal Trade Commission and in the Administration.

From the latter, I propose “multistakeholder” as the buzzword of the year so far. (“Context” is a close second, which I may discuss another time.) The Department of Commerce has received public comments on what should be done in the privacy multistakeholder process. (My own comment focused on the importance of defining “de-identified” information.)

Separately, the administration has been emphasizing the importance of multistakeholder processes for Internet governance, such as in a speech by Larry Strickling, Administrator of the National Telecommunications and Information Administration.

Here’s a try at making sense of this buzzword. On the privacy side, my view is that “multistakeholder” is mostly a substitute for the old term “self regulation.” Self regulation was the organizing theme when the U.S. negotiated the Safe Harbor agreement with the EU in 2000 for privacy. Barbara Wellbery (who lamentably is no longer with us) used “self regulation” repeatedly to explain the U.S. approach. The term accurately describes the legal regime under Section 5 of the FTC Act – an entity (all by itself) makes a promise, and then it’s legally enforceable by others. As I have written since the mid-1990’s, this self regulatory approach can be better than other approaches, depending on the context.

The term “self regulation”, however, has taken on a bad odor. Many European regulators consider “self regulation” as the theme of the Safe Harbor, which they consider weaker than it should have been. Many privacy advocates have also justifiably said that the term puts too much emphasis on the “self”, the company that decides what promises to make.

Enter stage left with the new term, “multistakeholder.” The term directly addresses the advocates’ issue. Advocates should be in the room, along with regulators, entities from affected industries, and perhaps a lot of other stakeholders. It’s not “self regulation” by a “selfish” company. It is instead a process that includes the range of players whose interests should be considered.

I am comfortable with the new term “multistakeholder” for the old “self regulation.” The two are different in the way that the new term includes more of those affected. They are the same, however, because they stand in contrast to top-down regulation by the government. Depending on the facts, multistakeholder may be better, or worse, than the government alternative.

Shifting to Internet governance, “multistakeholder” is a term that resonates with the bottom-up processes that led to the spectacular flowering of the Internet. Examples include organizations such as the Internet Engineering Task Force and the World Wide Web Consortium. Somehow, almost miraculously, the Web grew in twenty years from a tiny community to one numbering in the billions.

The term “multi-stakeholder” is featured in the important OECD Council Recommendation On Principles for Internet Policy Making, garnering 13 mentions in 10 pages. As I hope to discuss in a future blog post, this bottom-up process contrasts sharply with efforts, led by countries including Russia and China, to have the International Telecommunications Union play a major role in Internet governance. Emma Llansó at CDT has explained what is at stake. I am extremely skeptical about an expanded ITU role.

So, administration support for “multi stakeholder process” in both privacy and Internet governance. Similar in hoping that bottom-up beats top-down regulation. Different, I suspect, in how well the bottom-up has done historically. The IETF and the W3C have quite likely earned a grade in the A range for what they have achieved in Internet governance. I doubt that many people would give an A overall to industry self-regulation in the privacy area.

Reason to be cautious. The same word can work differently in different settings.

  April 10, 2012 at 10:30 pm  Tags: internet governance, multi-stakeholder process, Privacy  Posted in: Cyberlaw, Privacy, Privacy (Consumer Privacy), Uncategorized   Print This Post   No Comments

The Preacher and the Pragmatist: Remembering Derrick Bell

posted by Angela Harris

I’m now old enough to have lived through several moral panics over critical race theory. There was that culture-wars-era (remember those days?) one over whether critical race theorists were destroying the legacy of the Enlightenment by publishing first-person anecdotes; there was the one about whether critical race theorists were anti-Asian and anti-Semitic for criticizing extant standards of “merit” in the context of affirmative action in higher education; connected with that, there was that flap over whether Richard Delgado’s skin was the same color as Richard Posner’s (young people, I swear I am not making this up! Google it!); and, of course, there was that time Jeffrey Rosen blamed O.J. Simpson’s acquittal on, you guessed it, critical race theory.

These are reduced days, and the most recent moral panic over CRT cannot compare in either grandeur or silliness. Still, I experienced a moment of nostalgia when video recently surfaced on YouTube of a sweetly young Barack Obama, then a student at Harvard Law School, introducing Professor Derrick Bell at what appears to be a rally. The tagline attached to the video refers to “radical racist Derrick Bell,” and a related video shows Soledad O’Brien frantically riffing off some clearly inadequate notes as she tries to defend critical race theory as a mainstream academic literature (watching her, I had the urge to shout encouragingly, “EPA!”). The “gotcha” moment that follows shows Bell explaining to an interviewer his sympathy with W.E.B. DuBois’s concept of “the wages of whiteness”: the idea that anti-black sentiment has been so hard to eradicate in American society because it serves the function of keeping poor and disempowered white people content with their lot, willing to identify with elite whites based on the symbolic community of race rather than making common cause with poor folks of other backgrounds based on economic interest.

Seeing Bell explaining this argument in his characteristically soft, courtly voice, and thinking about the juxtaposition of Bell and Obama, made me think about the preacher and the pragmatist. Not Bell as preacher and Obama as pragmatist, but the preacher and the pragmatist within Bell himself.

What’s true in the characterization of Bell as a radical is, of course, his thoroughgoing rejection of America’s official liberal pieties about race, the most important of these being the faith that racism either has already disappeared or could very soon, probably in our grandchildren’s generation (if we could just get rid of affirmative action, or fully implement it, depending on whether you skew right or left).  Bell is probably most famous for two concepts: the idea of “interest convergence” and the conviction that “racism is permanent,” and both – especially the second – were and continue to be deeply emotionally upsetting to many. Interest convergence is the idea that black people (about and to whom Bell largely spoke) will only experience improvement in their material condition to the extent that white people as a group believe that it serves their own interests. The idea that racism is permanent links back to DuBois and undermines another liberal faith: the idea that racism is peripheral rather than central to American society. The Bell who believed racism is permanent also believed that the American social contract is founded on racial identity, that Americanness and whiteness are too bound up in one another to ever be teased apart.

This side of Bell counseled pragmatism rather than idealism, rejecting King’s “I Have a Dream” speech in the most brutal terms. Under this view, the best strategy for black people is to appeal to white self-interest for moderate reforms; and we will never be post-racial as long as there is an America. Bell was accused of nihilism for taking this position. Yet there was another Bell too, a preacher in addition to a pragmatist.

Re-reading his book Confronting Authority, I get the sense that Bell was not an easy colleague, and not because of his personal style. Bell was always warm, gentle and mild-mannered, funny, and dedicated to dialogue even with those with whom he bitterly disagreed. He never came across as the stereotypical Angry Black Man. But he had the discomfiting habit of trying to live up to his principles and expecting everyone else to, too. His account of his personal strike against Harvard Law School – his decision to take leave unless and until a qualified black woman was hired to the full-time tenure-track faculty – is the best example. Like Peter Singer, the philosopher who tries to get affluent people to use their money and privilege on behalf of the worst-off instead of benefitting their friends and family, Bell was always taking an uncomfortable but principled stand and making you have to explain to yourself why you couldn’t do the same. This Bell was an idealist, not a realist. His answer to those who criticized his “permanence of racism” thesis was similarly disconcertingly idealistic: One fights against racism, even though we know it to be permanent, simply because it is the right thing to do, because we have a moral responsibility to do so. Preachers’ kids sometimes grow up to be odd people in this way: trying to live as God wants us to live rather than making the accommodations to social norms and physical and mental comfort that the rest of us do. I have no idea whether Professor Bell was a preacher’s kid, or whether he considered himself religious, but this aspect of his thought and life has that same unnerving quality.

In his book A Secular Age,  Charles Taylor argues that a signal social division of our time is between those who feel that the pleasures and pains of this world are all there is, and those who feel that there is something more. Derrick Bell placed himself on both sides of the divide. He was both a preacher and a pragmatist, deeply principled and deeply strategic. Both sides of him were uncompromising. People like that are seldom easy company, but they challenge us in a useful way: not only with their ideas, but with the shape of their lives.

  April 9, 2012 at 2:15 pm  Tags: critical race theory, Derrick Bell  Posted in: Articles and Books, Civil Rights, Culture, Current Events, Race, Uncategorized   Print This Post   One Comment

Death Penalty Repeal and the Age of Innocence Projects

posted by Janai S. Nelson

Yesterday, the State of Connecticut took a critical step toward joining a handful of states whose recent death penalty repeals were motivated by unsettling evidence of innocent people on death row.  The post-midnight Senate vote following animated testimony in favor of a bi-partisan repeal bill was a close 20-16.  Republican Representative Smith stated that one of his main concerns with Connecticut’s death penalty is the record of DNA exonerations.  Not surprisingly, innocence held moral sway.

As counsel on a death penalty appeal early in my legal career, I witnessed the moral impropriety of a death sentence based on rife prosecutorial misconduct and set against a gnawing backdrop of actual innocence.  The defendant, Delma Banks, Jr., fortunately prevailed in having his death sentence commuted in an impassioned opinion delivered for the majority by Justice Ginsburg in Banks v. Dretke.  Despite this rare instance of habeas relief, Mr. Banks still faces the threat of a death sentence in a new trial.  Like many other death row cases, Mr. Banks’s retrial is based on stale evidence and questionable prosecutorial tactics.  Although the pursuit of innocence claims was foreclosed years ago, Mr. Banks’s case now exists in a climate of growing recognition of wrongful convictions.  Indeed, the trailblazing work of the Innocence Project and its many spinoffs has slowly permeated the national consciousness with the haunting whisper that the state sometimes kills innocents on death row. Read the rest of this post »

  April 6, 2012 at 10:26 am  Tags: Banks v. Dretke, Connick v. Thomas, criminal justice, Death penality, Delma Banks, Innocence Project  Posted in: Uncategorized   Print This Post   2 Comments

In Memoriam: Gil Noble

posted by Janai S. Nelson

Gil Noble (February 22, 1932- April 5, 2012) was a legendary journalist, civil rights activist, and humanitarian.  He passed away earlier today at the age of 80.  Mr. Noble was most noted for his Emmy award-winning weekly public affairs program Like It Is on ABC.  Premised on reporting, analyzing, and discussing news through the lens of the black experience in America, Like It Is was an important and valued source of information in many communities for over four decades.  As the distinguished host of the show, which ran from 1968-2011, Mr. Noble gave scholars, intellectuals, activists, and everyday folk an opportunity to “tell is like it is” in a forum where their views would be held up to scrutiny but taken seriously.  I had the honor of appearing on Mr. Noble’s show years ago and have never forgotten the power of his presence and the gentleness of his soul.  He gave us news like it is and also like it should be—guided by the insight of a person of grace and abundant humanity.

  April 5, 2012 at 8:33 pm   Posted in: Uncategorized   Print This Post   No Comments

Bingham and the Catholic Church

posted by Gerard Magliocca

Like most Protestants during the nineteenth century, Bingham wasn’t crazy about the Pope.  In 1870, he denied the charge that he wanted to “persecute Rome on account of the peculiar religious notions” of the Vatican, which was an odd way of defending yourself against religious bias.  He said in the same speech that, in contrast to his belief in “free governments, free churches, free schools, free Bibles, and free men,” Catholic doctrine was “an attempt to fetter the freedom of conscience; it is an attempt to fetter the freedom of speech; it is an attempt to fetter the freedom of the press.” Despite his distaste for the Holy See, Bingham held that “religious belief, of whatever character, ought to be tolerated, that error itself ‘may be tolerated’ in the words of [Jefferson] ‘where reason is left free to combat it.’”

I guess this is my Easter message, though that wasn’t my intent when I started writing this post.

  April 4, 2012 at 9:57 pm   Posted in: Religion, Uncategorized   Print This Post   One Comment

No Mistake in Simkin v. Blank Divorce Agreement

posted by Lawrence Cunningham

A divorcing couple whose assets included a Madoff ponzi scheme account must abide by the terms of their contract, the New York Court of Appeals unanimously ruled today in the closely-followed case of Simkin v. Blank. As we noted here, the couple’s 2006 divorce agreement allocated a Madoff brokerage account to the husband and fairly apportioned all other marital assets. The husband sought to rescind the deal under the doctrine of mutual mistake; the wife disputed making a mutual mistake and said the divorce setting warranted special deference to the contract.

The court sided with the wife on both points, resting in part on the general contract law of mutual mistake and in part on the specific context of a divorce settlement agreement. The court makes the case look easy, though as my previous posts and the litigation history suggests, it was a bit tougher than the court made it seem.

The court may wish to discourage any copycat suits arising from the Madoff scam, whether divorce settlement agreements or otherwise. But there is at least a little wiggle room based on the facts that the court makes pivotal, especially the express terms of the agreement and the reality that the account did have value when the contract was formed, though not once the scheme unraveled.

Following are the highlights of the opinion (citations omitted): Read the rest of this post »

  April 3, 2012 at 6:10 pm   Posted in: Uncategorized   Print This Post   3 Comments

Rules v. Standards Across Constitutional Rights

posted by Erica Goldberg

I’ll admit my bias: I desire for the law to be clear and elegant. In law school, I preferred rules over standards (this has relaxed somewhat with age). Part of what drew me to the legal academy was the opportunity to produce scholarship that closes logical loopholes in jurisprudence, unifies inconsistent doctrines, and harmonizes precedent. At the margins, I’d often rather the law be more clear than more “correct.”

This bias may stem from an innate personality attribute (some of us are foxes and some are hedgehogs), or a belief that clarity promotes the rule of law. It is also likely that my initial area of interest and scholarship, First Amendment law, influenced my approach. An abundance of fact-bound inquiries and totality of the circumstances tests would eviscerate the spirit of free speech protected by the Amendment. First Amendment law is not without its balancing, but most of us have internalized the idea that judges are not generally permitted to decide which speech of private citizens has value and which speech does not. The First Amendment reflects a deep fear that those in power will dictate community values. Clear rules are necessary to prevent corruption of the doctrine, and the slope is considered very slippery. These clear rules are what led eight Justices on the Supreme Court to decide that the Westboro Baptist Church has the right to spew their simultaneously incoherent and pointedly hateful message, and for the same eight Justices to hold that depictions of animal cruelty are protected speech. These rules are why we can burn the flag as symbolic speech.

In teaching Criminal Procedure, I have repeatedly been struck by the fact that this sort of clarity is sorely lacking from cases concerning restrictions on criminal prosecution. It’s easy to come up with hypos for Crim Pro, because it’s so often unclear how a new fact pattern will be decided by the Court. Do suspected terrorists deserve their Miranda rights? Surely, they do. Miranda was intended as a bright-line test for suspects receiving custodial interrogation. Yet, somehow, both Senator McCain and the Obama administration feel that the decidedly narrow public-safety exception to Miranda may apply to this entire class of people.

Read the rest of this post »

  April 3, 2012 at 11:18 am   Posted in: Constitutional Law, Criminal Procedure, Uncategorized   Print This Post   7 Comments

Viewpoint, Voting, and Structuring the Electorate

posted by Janai S. Nelson

I am delighted to join the blogging community of Concurring Opinions for the month of April.  Thanks to Solangel Maldonado and Daniel Solove for their gracious invitation.

Denying voting rights to citizens with felony convictions has gotten a bad rap. The reason it’s not worse is because that rap is based on only half the story.  Anyone familiar with the complexion of our prison population knows that felon disfranchisement laws extend striking racial disparities to the electoral arena.  Less known, however, is that citizens with felony convictions are excluded from the electorate, in part, because of perceptions about how this demographic might vote or otherwise affect the marketplace of ideas.  In other words, citizens with felony convictions are denied the right to vote because of their suspected viewpoint.

Picking up on this point earlier this year, Michael Dorf highlighted a dispute between Republican presidential candidates Mitt Romney and Rick Santorum about which of them held the most conservative position concerning the voting rights of citizens convicted of a felony.  Inventing a criminal persona named Snake, Dorf queried what issues might provoke such a person to vote: Lower protections for private property or public safety? Redistribution of public resources from law enforcement to education, health, or recreation?  Elimination of certain criminal laws?  I can fathom many other lawful motivations for voting.  However, as Dorf points out (and decidedly rejects), the underlying objection to allowing citizens with felony convictions to vote is based on an assumption that, if they could vote, they would express self-serving and illegitimate interests. In other words, the viewpoint that felons would express through voting has no place in the electoral process.

I have always assumed that my viewpoint was precisely what I and other voters are supposed to express at the ballot box.  Whether that viewpoint is shared, accepted, condoned or vehemently disdained and abhorred by others is irrelevant to the right to vote.  Not so for citizens with felony convictions.  This group of citizens is presumed to possess deviant views that justify their exclusion from the electorate and the denial of a fundamental right. Read the rest of this post »

  April 3, 2012 at 9:37 am  Tags: Constitutional Law, Election law, equal protection, felon disfranchisement, First Amendment, prisoner's rights, right to vote, voting qualifications, voting rights  Posted in: Administrative Law, Civil Rights, Constitutional Law, Courts, Culture, Current Events, Election Law, Law and Humanities, Race, Uncategorized   Print This Post   14 Comments

The Reliability of Drug Sniffing Dogs

posted by Erica Goldberg

Of the many things that make my Criminal Procedure students cynical about the Supreme Court, perhaps the most frustrating is that the Court has refused to quantify the probable cause standard. The Supreme Court’s grant of certiorari last week in Florida v. Harris gives the Court the perfect opportunity to at least place probable cause within some numerical band.

Harris is a particularly good vehicle for making the probable cause standard less fuzzy. In Harris, the Florida Supreme Court confronted the issue of when a dog’s positive alert gives the police probable cause to search a vehicle. Unlike in most assessments of probable cause, which involve informants or suspicious seeming individuals, police have data that quantifies the accuracy of drug sniffing dogs. A dog’s field history includes its rate of false positives, when a dog alerts to the smell of drugs that are not actually present in the vehicle. The Florida Supreme Court held that a dog’s field history must be introduced as part of the probable cause inquiry. If the lower court’s opinion is upheld, the Supreme Court should tell us what sort of false positive rate is too unreliable to permit a full search of a car.

Courts consistently and expressly eschew technical conceptions of probable cause in order to provide police officers with flexibility to exercise their judgment in unfolding situations. In addition, courts focus on whether an officer has a reasonable belief that a suspect has committed or is committing a crime. This metric allows for probable cause to be found in situations where one reasonable officer might assess an 80% likelihood that a suspect is driving drunk, for example, even if another reasonable officer might think there is only a 40% likelihood. We might be tempted to assume the courts require that a reasonable officer be able to believe a crime has been committed by greater than a 50% likelihood, but this has not been made explicit.  All officers must prove to a court assessing a vehicle search is a reasonable ground for belief of guilt.  Further, when a court is making a probable cause determination for itself in determining if a warrant should issue, it must decide only if there is a “fair probability that contraband or evidence of a crime will be found in a particular place.”  What is a fair probability?

In the context of drug detection dogs, where we have actual data on reliability, assigning a numerical value to probable cause — or at least to the maximum false positive percentage upon which an officer can rely — would add much needed clarity to Fourth Amendment law. It also does not undermine police officers’ ability to use their intuition, because the event precipitating a search is not an officer’s informed judgment, but the alert from a dog.

Read the rest of this post »

  April 1, 2012 at 12:16 pm   Posted in: Constitutional Law, Criminal Law, Criminal Procedure, Uncategorized   Print This Post   11 Comments

The Private Prison Industry on Tilt

posted by andré douglas pond cummings

Last month, I posted several times on the profit motive flow of the private prison industry.  To follow up here, nobel laureate economist Paul Krugman weighed in this week on the privatization of prisons (amongst other areas, including education) in the New York Times by describing the role of lobbyists in influencing and creating legislative policies that impact American lives. In his opinion piece Lobbyists, Guns and Money, Krugman details the activities of ALEC (American Legislative Exchange Council), a self described non-partisan lobbying organization, and its massive emerging influence.  Krugman describes ALEC as follows:

“What is ALEC? Despite claims that it’s nonpartisan, it’s very much a movement-conservative organization, funded by the usual suspects: the Kochs, Exxon Mobil, and so on. Unlike other such groups, however, it doesn’t just influence laws, it literally writes them, supplying fully drafted bills to state legislators. In Virginia, for example, more than 50 ALEC-written bills have been introduced, many almost word for word. And these bills often become law.

Many ALEC-drafted bills pursue standard conservative goals: union-busting, undermining environmental protection, tax breaks for corporations and the wealthy. ALEC seems, however, to have a special interest in privatization — that is, on turning the provision of public services, from schools to prisons, over to for-profit corporations. And some of the most prominent beneficiaries of privatization, such as the online education company K12 Inc. and the prison operator Corrections Corporation of America, are, not surprisingly, very much involved with the organization.”

Based on the last sentence of Krugman’s description “And some of the most prominent beneficiaries of privatizations, such as . . . the prison operator Corrections Corporation of America, are, not surprisingly, very much involved with the organization,” he received a tense response letter from the Corrections Corporation of America (CCA) trying to force a retraction for things that Krugman did not actually say.

The CCA claims that it does not, and never has lobbied for increasing prison sentences or developing new areas for detention (like criminalizing immigration). The CCA letter claims that “CCA does not and has not ever lobbied for or attempted to promote any legislation anywhere that affects sentencing and detention — under longstanding corporate policy.”

Krugman is dubious about this claim, as am I. CCA employs dozens of lobbyists and spends millions of dollars per year lobbying legislatures around the United States in connection with promoting its business interests. CCA was in the news just last month after it sent letters to 48 states offering to buy the state’s prisons in exchange for a 20 year agreement to pay CCA to warehouse the state’s prisoners and contractual agreement to keep the prisons filled at 90% capacity.

A private prison company contractually obligating a state to keep its prisons filled to 90% capacity seems to me to be an attempt to influence sentencing and detention policy for profit.

  March 31, 2012 at 7:40 pm   Posted in: Uncategorized   Print This Post   9 Comments

Realism, severability, and inertia

posted by Edward Hartnett

There was a fair bit of discussion at the severability argument about injecting a dose of realism into the Court’s severability doctrine, taking into account the difficulty of overcoming Congressional inertia. 

Any decision finding that any part of a statute is unconstitutional means that the law will not operate as Congress intended.  And no matter what decision the Court makes on severability, Congress has the power to correct, either by repealing provisions the Court leaves standing or re-enacting provisions that the Court refuses to sever from the unconstitutional provision.  So, in a sense, what we are really talking about is the establishment of a default rule, that is, what happens in the absence of action by Congress to fix the statute after a judicial decision finding part of the statute unconstitiutional. 

But that default rule matters a lot because of Congressional inertia.  So if the Court wants to move in the direction of realistically considering Congressional inertia, perhaps it should be considering what decision on severability is most likely to elicit a response that could overcome Congressional inertia. Viewed from that perspective, wouldn’t the position of the amicus – severing the individual mandate from the rest of the statute so that everything survives except the mandate – fit the bill?  Insurers would presumably kick and squawk, but aren’t they precisely the ones in the best position to overcome Congressional inertia?

  March 30, 2012 at 7:25 am   Posted in: Uncategorized   Print This Post   3 Comments

Invalidating Entire Acts: Marbury and Missouri

posted by Edward Hartnett

As someone who had argued for the Court to follow Judge Sutton’s lead and sever any unconstitutional applications of the individual mandate from the constitutional applications of the individual mandate – thereby rejecting a facial challenge to the individual mandate – it was disappointing to hear the Court taking quite seriously the possibility of refusing to sever anything – thereby concluding that nothing in the entire ACA survives.

I’ve been thinking what such an approach would have meant in the earliest big cases in which the Supreme Court held that Congress had violated the Constitution.

How about Marbury?  There, the Supreme Court concluded that the mandamus provision of section 13 of the Judiciary Act of 1789 violated the Constitution.  Imagine if it had concluded that this constitutional flaw meant that nothing in the Judiciary Act of 1789 survived.  That would mean that the lower federal courts created by that Act would have to close up shop.  It would also mean that the Supreme Court itself would have to do the same, because while the Constitution requires the creation of a Supreme Court, without the Judiciary Act of 1789, there would have been no basis on which to organize one – including such basic matters as how many justices would hold the Court.

But that’s different.  After all, the mandamus provision of section 13 was a relatively minor part of the Judiciary Act of 1789, not the heart of the Act. 

So how about the next big one, Dred Scott.  There, the Supreme Court concluded that section 8 of the Act of March 6, 1820 – the section of the Missouri Compromise that banned slavery north of 36 degrees, 30 minutes — was unconstitutional.  Surely the limit on the spread of slavery was at the heart of the Act, no?    And wouldn’t this be a perfect example, at least for those opposed to the spread of slavery, where half a loaf (a new slave state without the geographic limit on slavery) would be worse than nothing?  Imagine if this meant that the entire Act of March 6, 1820, was unconstitutional: Goodbye State of Missouri.

  March 29, 2012 at 2:43 pm   Posted in: Uncategorized   Print This Post   No Comments

Extracurricular Learnin’

posted by Khiara M. Bridges

This week at my law school, I presented a chapter of my book to students as part of a brown bag lunch series in which various members of the faculty lecture on disparate topics of interest. When I was invited to participate in the series at the beginning of the semester, I happily agreed to do so – in part because, as a junior professor, I happily agree to everything. (Dean: “It would be really helpful if you sat on three more committees, taught two more classes, and did some light janitorial work a couple of days out of the week. Can you do it?” Me: “Absolutely!”) However, I also agreed to do the lecture because I felt no pressure. First, I knew that it would take very little effort for me to prepare a 45-minute lecture on my book because … well, I know my book; I’m not exaggerating if I describe myself as “conversant” in this thing on which I labored for five good years of my adult life. Second, I didn’t feel any pressure in accepting the invitation because the lecture was to be attended by students, and I was pretty darned certain that students weren’t going to attend. The talk was scheduled for the end of March. I figured students would be more interested in 1) prepping for their classes, 2) outlining in anticipation of their exams, and 3) being sad puddles of anxiety and despair. I assumed that any interest that they had in anything that I had to say about my book would take a backseat to those more important pursuits. I honestly thought that the lecture hall would be filled with the person who organized the event, a gunner or two, and a cricket that would make cricket sounds at appropriate intervals. So, imagine my surprise when I entered the room and it was filled to capacity….

Yes: some students undeniably came for the “light refreshments” that had been advertised on the poster announcing the event. (And those students were not disappointed: on the refreshment table, I saw glimpses of fresh fruit and tongs – tongs! – with which to retrieve said fruit.) But, they stayed. They listened intently. And they asked really insightful questions during the fifteen minutes reserved for Q&A. Some even asked me follow-up questions via email.

And, apparently, this type of thing happens all the time in the law school; several students told me that there was an event last week involving a former federal judge that was so well attended that they ran out of chicken wraps! Moreover, that there would be chicken wraps available for consumption was a fact about which students were unaware prior to their arrival. Students attended the event because they wanted to hear a federal judge talk about her experiences. This is remarkable.

But, why do I find this remarkable? Perhaps because it is completely at odds with my approach to law school. I never attended anything extracurricular when I was in law school. During those three years, I could be found in class, in the library, or in an empty corridor pulling myself together. (I was a very nervous law student.) This is especially unfortunate because I was in law school – in New York City – when the country was reeling from the events of September 11, 2001. (In fact, I was in Federal Income Tax on September 11, 2001. My professor was lecturing about the concept of stepped-up basis as the Twin Towers fell a couple of miles away.) The law school was peppered with fora on national security, and the Patriot Act, and Article II powers. And I didn’t attend anything.

What a shame! They say that youth is wasted on the young. Well, law school is wasted on law students – at least when they don’t take advantage of the incredible opportunities surrounding them.

So, kudos to those students who maintain enough perspective to realize that the education that happens in the classroom is only a fraction of the education that is available to them. And next time, I hope that the organizers order enough chicken wraps so that those perceptive students are properly rewarded for their insight.

  March 28, 2012 at 7:52 pm   Posted in: Law School, Uncategorized   Print This Post   One Comment

Paul Clement and Justice Kennedy

posted by Edward Hartnett

Early on, there were predictions that the government would win by a lop-sided margin.            

When I read Paul Clement’s brief, I began to predict that the individual mandate would not survive.  It is masterful, weaving together themes of federalism and liberty, revealing the dangers to accountability of allowing regulated industries to be bought off by mandating purchases of their products, and pointing to other markets that share features with the health (insurance) market.  He was masterful again at oral argument, giving what Tom Goldstein at scotusblog calls “the best argument I’ve ever heard.”  Indeed, I had the impression that if he were not there yesterday, things would be looking better for the government.

His linking of federalism and liberty plays right into Justice Kennedy’s wheelhouse, as Kennedy’s questioning made clear.  And the accountability point seemed to trouble Kennedy, too, as he mused:

“If the Congress has alternate means, let’s assume it can use the tax power to raise revenue and to just have a national health service, single payer.  How does that factor into our analysis?  In the one sense, it can be argued that this is what the government is doing; it ought to be honest about the power it’s using and use the correct power.  On the other hand, it means that since . . . Congress can do it anyway, we give a certain amount of latitude.  I’m not sure which way the argument goes.”

Kennedy may yet be persuaded that the health care and health insurance markets are unique (noting that “the young person who is uninsured in uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries”).  But Chief Justice Roberts and Justice Alito – Justices that some predicted would uphold the mandate — didn’t seem to be buying that argument.  To the contrary, their questions about cell phones for emergency services and burial insurance pushed against the uniqueness of health care and health insurance.

I was never persuaded by some recent claims that Justice Scalia would somehow be in play, so his hostility to the mandate was not surprising.  Interestingly, he suggested tying this case to the anti-commandeering principle of New York v. United States and Printz.  Just as those cases rely on the sovereignty of the states as an element of the constitutional structure, so, too, he suggested reliance in this case on the limited nature of federal power as an element of the constitutional structure, noting that the 10^th Amendment reserves power not simply to the states, but to the people.

I was somewhat surprised at how little help the Justices who seem to accept the government’s position provided in building a bridge for Justice Kennedy.  There was certainly some, but Justices Breyer and Sotomayor talking about the political safeguards of federalism was hardly calculated to bring Kennedy to their side.  I was briefly heartened to hear Justice Kagan mention that this is a facial challenge, and that perhaps the case would look different if it were an as-applied challenge by Christian Scientists, but this was hardly enough to vindicate my hope that the Court might follow Judge Sutton’s lead and uphold the mandate on its face, while leaving open as-applied challenges.

A couple of thoughts on other posts:

I was gratified to see Jennifer’s “cookie” suggestion, because I had tumbled to the same possibility last night. 

But I am not persuaded by Nicole’s argument that the challenger’s concession that mandating the purchase of insurance at the point of purchasing medical care would be constitutional shows “a complete lack of understanding about how insurance works.”  Sure, it wouldn’t make sense to have people buy insurance “at the moment of the cancer treatment, or the auto accident, or the home fire.”  But most medical care is far more routine – and far less expensive – than these calamities.  If the person who shows up for such routine care (the check-up, the eye exam, the dental exam, the high fever caused by a readily-treatable infection, the cut needing a couple of stitches, the sprained ankle needing an x-ray, the visit to get a prescription for contraceptives) were told exactly what the PPA tells them now even if they never show up for care – that is, buy insurance or pay a penalty — insurance risk pools could work.  Indeed, virtually everyone would soon have the obligation to buy insurance or pay the penalty.  If health “insurance” were like other forms of insurance, and protected only against things that we thought unlikely to happen during a term of coverage, this point would be more obvious: requiring health insurance at the time of purchase of health care services would be akin to requiring auto insurance at the time of purchase of a car.  But the point is obscured, I think, because we cover routine maintenance with health “insurance.”

  March 28, 2012 at 9:44 am   Posted in: Uncategorized   Print This Post   6 Comments

Cookies and the Affordable Care Act

posted by Jennifer Hendricks

No, this is not a post about how the government is going to force you to buy cookies, even if that would be better than broccoli. It’s about how I came to realize that the minimum coverage provision is doomed: because one of the first things I learned as a litigator was that judges like to give a cookie to each side.

Until last week, I thought the individual mandate stood a chance of being upheld. Specifically, I thought that Justice Scalia might have enough intellectual honesty to stick to the logic of his Raich concurrence and vote to uphold the law.

But last week, the liberal blogosphere started lighting up with dire warnings about the ACA’s expansion of Medicaid, which is on the chopping block tomorrow. “You think the argument against the mandate is radical,” they intoned, “but look at this threat to the spending power.” This Supreme Court is so radical, the argument runs, that it is poised to declare the modern administrative state unconstitutional, in the absence of any split in the lower courts or even any plausible argument based on precedent.

That’s when I realized that Medicaid is the cookie for the left, and the only reason for the cert. grant on that issue was to make the Court look moderate when it strikes down the rest of the ACA. Of course, it only takes four to grant cert. But the Cookie Principle is also useful when four are trying to win over a fifth Liberals ought to stop raising the hue and cry that will make the Court seem restrained when it “only” strikes down minimum coverage.

  March 28, 2012 at 12:47 am   Posted in: Constitutional Law, Health Law, Supreme Court, Uncategorized   Print This Post   5 Comments

Jurisdiction and lawyering; reducing risks of paradox and impasse

posted by Edward Hartnett

Thanks for inviting me to guest-blog on the ACA Supreme Court arguments.

To my mind, the most striking aspect of today’s argument was how little support there seems to be for characterizing the Anti-Injunction Act as jurisdictional.  The question of whether to characterize the Anti-Injunction Act as jurisdictional is important precisely because if it is jurisdictional, courts have to consider the issue.  If it is jurisdictional, it doesn’t matter that the government failed to raise the issue in the court of appeals.  If it is jurisdictional, it doesn’t matter that the government affirmatively argues that the Anti-Injunction Act is not a bar to this litigation.

On the other hand, if the Anti-Injunction Act is a non-jurisdictional claims-processing rule, the government forfeited the issue by failing to raise it in the court of appeals, and lost any hope of regaining it by affirmatively arguing that the Act is not a bar to this litigation.  Either would be enough; both would be belt and suspenders holding up the pants of this case.

Scott suggests that “if the government loses, its refusal call the mandate penalty a ‘tax’ may be a historically colossal lawyering failure.”  Maybe.  But if the Anti-Injunction Act is a claims-processing rule, this is a failure that could not be remedied at oral argument, but would have had to have been preserved throughout the litigation, from district court through court of appeals to Supreme Court.  And good lawyering often involves considering the client’s broader interests, not simply winning this individual case – a point I think lawyers may overlook too easily. It seems to me that the Obama administration decided a long time ago that it was in the nation’s best interests – and perhaps Obama’s own re-election interests– to get a decision sooner rather than later. 

This point about lawyering – that it often involves considering the client’s broader interests, not simply winning this individual case – is illustrated by another aspect of the Solicitor General’s argument today.  Having decided to take the position that the Anti-Injunction Act does not bar this litigation, he could have taken the easiest route to that conclusion and argued that the Anti-Injunction Act is a non-jurisdictional, claims-processing rule.  Viewed that way, the government would have the power to waive any objection based on the Anti-Injunction Act.  Moreover, there is precedent supporting that approach: the Helvering v. Davis case that Chief Justice Roberts kept referring to in which the court reached the merits of a challenge to the Social Security Act in reliance on the government’s waiver of the Anti-Injunction Act.  301 U.S. 619 (1937).  But the Solicitor General refused to take that route, despite considerable prompting, because of his concern about how that might come back to haunt the government in other cases.

As I heard the argument today, it seemed that the Solicitor General made little headway on this point.  Only Justice Breyer indicated real support for viewing the Anti-Injunction Act as jurisdictional.  Chief Justice Roberts, as well as Justices Scalia, Alito, and Kagan seemed quite skeptical of that view, as did (to a lesser extent) Justices  Kennedy and Sotomayor.  And Justice Breyer strongly suggested that Anti-Injunction Act, despite being jurisdictional, would not bar the litigation, because Congress did not label the penalty a tax, while Justice Ginsburg likewise suggested no bar, without a need to reach the question of jurisdiction.

One of the things that I have contemplated about this case – with its welter of cross-cutting issues involving the Anti-Injunction Act, the Commerce power, the Tax power, and severability – is the possibility of a voting paradox or even a judgment impasse. 

Imagine, as to the Anti-Injunction Act, if six justices viewed the Act as jurisdictional, and five justices viewed the penalty as a tax within the meaning of the Anti-Injunction Act.  One might think that this would mean dismissal under the Anti-Injunction Act.  But not if the three who viewed the Act as non-jurisdictional were not the same people as the four who viewed the penalty as not a tax: in that case, the vote on whether to dismiss or not would be seven to two against dismissal.  This voting paradox now seems unlikely given the scant support for treating the Anti-Injunction Act as jurisdictional.

Given the apparent lack of support for dismissing on the basis of the Anti-Injunction Act, the risk of a judgment impasse also seems greatly reduced.  If dismissal on the basis of the Anti-Injunction Act had more support, that would be a bigger risk.  Imagine, for example, if two justices voted to dismiss the action on the basis of the Anti-Injunction Act, and the remaining seven split four to three regarding the constitutionality of the individual mandate.  No judgment would command a majority, and the court would face a judgment impasse.

I’m not sure we are out of the woods on these risks yet.  But one possible upside to today’s rather one-sided argument is that these risks seem reduced.

  March 27, 2012 at 12:21 am   Posted in: Uncategorized   Print This Post   No Comments

Illinois Law Review, Issue 2012:2

posted by University of Illinois Law Review

University of Illinois Law Review, Issue 2012:2

Please see our website for past issues

Articles

Homogeneous Rules for Heterogeneous Families: The Standardization of Family Law When There is no Standard Family – Katharine K. Baker (PDF)

Legal Sources of Residential Lock-Ins: Why French Households Move Half as Often as U.S. Household – Robert C. Ellickson (PDF)

Sealand, HavenCo, and the Rule of Law – James Grimmelmann (PDF)

David C. Baum Memorial Lecture on Civil Rights and Civil Liberties

Citizens United and Conservative Judicial Activism – Geoffrey R. Stone (PDF)

Notes

Bargaining for Salvation: How Alternative Auditor Liability Regimes Can Save the Capital Markets – Hassen T. Al-Shawaf (PDF)

Analysis Paralysis: Rethinking the Courts’ Role in Evaluating EIS Reasonable Alternatives – J. Matthew Haws (PDF)

The Real Social Network: How Jurors’ Use of Social Media and Smart Phones Affects a Defendant’s Sixth Amendment Rights – Marcy Zora (PDF)

  March 26, 2012 at 4:37 pm   Posted in: Civil Rights, Constitutional Law, Family Law, First Amendment, International & Comparative Law, Law Rev (Illinois), Supreme Court, Uncategorized   Print This Post   No Comments

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