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The Constitutional Convention Countdown

Scene_at_the_Signing_of_the_Constitution_of_the_United_StatesLast week the Michigan Legislature voted to call for a constitutional convention under Article V to propose a Balanced Budget Amendment.  This means that 34 states have now issued such a call.  Or maybe it’s less than that.  Let me explain.

The problem is that some states have repealed their prior calls for a Balanced Budget Amendment.  Thirty-four is the right count only if none of those repeals are valid.  But are they valid?  I think it’s up to Congress.  Coleman v. Miller held that Congress gets to decide whether a state has ratified an Article Five Amendment.  During Reconstruction, Congress counted some states as “yes” votes for the Fourteenth Amendment (e.g., Ohio) even though they had repealed their ratification. Coleman concluded from this precedent that the question of state ratification was a political question.  The same logic applies, in my view, as to whether a state has asked for a constitutional convention.

Giving Congress discretion over this question, of course, does not answer the question of whether a state repeal is valid.  There are good reasons to think that a state should be able to issue a repeal of a convention summons.  Insisting on the opposite view would mean that one legislature could bind all of its successors, which is generally a no-no in Anglo-American law. On the other hand, the Fourteenth Amendment precedent takes the opposite stance–those repeals were not allowed.  It’s fair to say, though, that Congress will probably bend over backwards (as long as Democrats control the Senate anyway) to find a way to not count in enough states for a constitutional convention.

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Thoughts on Driesen’s The Economic Dynamics of Law

David Driesen’s book, The Economic Dynamics of Law, offers a powerful new approach to law and policy analysis.  Like many others, Professor Driesen critiques neoclassical law and economics and the application of conventional cost-benefit analysis (CBA) to various areas of law and policy.  Unlike most others, however, Professor Driesen develops an alternative.

Professor Driesen emphasizes a host of broad framing points, the implications of which are not fully understood, generally and especially within conventional law and economics.  I take the following points to be, for the most part, uncontroversial (even if their implications are not fully understood).  Most people will agree that we live in an incredibly complex, dynamic world consisting of many interdependent, complex evolving systems; that law shapes these systems and critically how these systems change or evolve over time; that path dependencies make some changes irreversible and others incredibly costly to unwind; that law is necessarily normative as are the path setting consequences of law; that law operates as a framework that shapes but does not fully determine what people do.

The implications of these framing points demand serious attention, however, because they are too easily misunderstood or simply assumed away to make analysis tractable.  For example, the implications of the fact that preferences are endogenous and that law and the systems structured by law shape preferences are not fully accounted for in law and economics.  It is admittedly difficult to take such complications into account, and so the more tractable move is to assume preferences are exogenous and that law’s objective is efficient satisfaction of existing preferences.  Professor Driesen explains the errors in such a move.  Tractability is a poor excuse for failing to engage with reality and the normative stakes of law’s dynamics.  The fact that law shapes preferences and beliefs means that we cannot avoid confronting questions about how law shapes who we are and who we can even contemplate being.

Professor Driesen thus places analytical emphasis on law’s role in setting paths or choosing directions for society rather than determining outcomes or optimizing resource allocations.  He advances two broad normative commitments — avoiding systemic risk and providing opportunities for economic development.  He defines each and develops means for analyzing them that goes beyond conventional CBA.  As others have commented on the relationship of his approach and CBA, I’ll leave that aside.  With regard to systemic risk, I had two questions for Professor Driesen:  First, how would he deal with intergenerational issues?  He touches on CBA’s use of discount rates in the climate change context and how “CBA’s results depend on the policy views of the economist conducting the analysis,” but I didn’t fully understand what alternative he offered.  Second, what about systemic benefits?  Simply put, I wondered whether there is a symmetrical point to be made about systemic benefits.  I discuss related issues in my book, Infrastructure:  The Social Value of Shared Resources (Co-Op symposium), and connect the commitment to the idea of a social option, but it also ties into North’s adaptive efficiency argument, which Professor Driesen discusses.  Systemic benefits may be a broader way to think about his second normative commitment concerning opportunities for economic development, but it is hard to say because that commitment gets much less attention in the book.  Perhaps opportunities for economic development should be extended to include human development and Driesen’s approach could incorporate some of the ideas and lessons from Sen’s Capabilities Approach.  Certainly, many of the framing points noted above are also central to the CA project.

I was a little disappointed that the second normative commitment received less attention.  Much of the law is focused on opportunities for (human and) economic development.  Many of the applied chapters (e.g., contract, property, IP) seem to focus on it, but those chapters seemed mostly descriptive and backwards looking, with Professor Driesen saying something like, “Hey, wait a minute!  What’s really happening in these areas is dynamic change over time, with bounded rationality, …, it’s not classic law and econ!”  I would like to see more analysis of how Professor Driesen’s approach could better reconcile these areas of law with the second normative commitment he identified.

On IP, let me just say that I agree with Professor Driesen – IP scholars certainly think a lot about dynamic change.  He is right that we need to pay much more attention to path setting and how IP laws, for better or worse, shape the paths available and the paths taken.  This was a theme I explored in Intellectual Infrastructure, chapter 12 of my book.  In fact, many IP scholars are now working on this subject.

Let me end with a brief cautionary note on Professor Driesen’s appeal to macroeconomics.  I agree with him that legal scholars who employ economics tend to rely heavily on microeconomics and ignore macroeconomics.  He is also correct, in my view, when he suggest that overreliance on microeconomics, or at least certain aspects of it, has often sustained unrealistic assumptions, ideological commitments (sometimes hidden beneath the veneer of objectivity), and bad results.  I would only caution Professor Driesen that the same might be said of macroeconomics.

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On Norms and Analysis

            Michael Livermore views my book as either challenging the normative foundations of law and economics or as offering a set of proposals to improve cost-benefit analysis (CBA). The book advocates goals, namely systemic risk avoidance and opportunity creation, and a focus on the shape over change over time that challenge the normative foundations of law and economics, i.e. static allocative efficiency. It also commends an analytical technique, economic dynamic analysis, to improve the economic analysis of law, but intends this technique to improve all economic analysis of law, not primarily CBA. By conflating analytical and normative questions and reducing all economic analysis to CBA, Michael makes it hard to properly understand either the normative or the analytical debate.

The question of whether avoidance of systemic risk and keeping open a reasonably robust set of economic opportunities constitutes a more important goal for society than allocative efficiency requires a normative discussion not focused on questions of technique. (See Martha McCluskey’s post in this symposium). The only glimmer of normative discussion that Michael offers casts doubt on his apparent preference for efficiency as a goal. He agrees with me that government should not be viewed as a master allocator of resources. But the goal of achieving allocative efficiency flows from viewing government as a master allocator of resources. And it is this goal that motivates proposals for use of CBA as an analytical technique. This is, reducing all costs and benefits to dollar terms in order to compare them on a single metric, however morally dubious and technically difficult, does serve the goal of optimal resource allocation. It’s a lot of wasted effort for many other kinds of goals. Read More

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FAN.9.1 (First Amendment News) — McCutcheon Wins: Supreme Court strikes down aggregate limits law

Only minutes ago the U.S. Supreme Court handed down its ruling in McCutcheon v. FEC, the aggregate limits campaign finance case.

Link to opinion is here.

Vote to Reverse:  5-4 (sustaining First Amendment claim)

Plurality Opinion:  Chief Justice John Roberts (joined by Justices Scalia, Kennedy & Alito)

Concurring Opinion: Justice Clarence Thomas (would overrule Buckley)

Dissenting Opinions: Justice Stephen Breyer joined by Justices Kagan, Ginsburg, & Sotomayor.

The issues before the Court were: (1) Whether the biennial limit on contributions to non-candidate committees, 2 U.S.C. § 441a(a)(3)(B), is unconstitutional for lacking a constitutionally cognizable interest as applied to contributions to national party committees; (2) whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. § 441a(a)(3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest; (3) whether the biennial limits on contributions to non-candidate committees are unconstitutionally too low, as applied and facially; and (4) whether the biennial limit on contributions to candidate committees, 2 U.S.C. § 441a(a)(3)(A), is unconstitutional for lacking a constitutionally cognizable interest.

Commentary: SCOTUSblog (Amy Howe): “The Court rules in the Chief’s opinion that the aggregate limits do not further the permissible government interest in preventing quid pro quo corruption or the appearance of such corruption.”

 Lawyers: Supreme Court

For Appellant Shaun McCutcheon: Erin Murphy (lead counsel) & Paul Clement

For Appellant RNC: James Bopp, Jr. (NB: Though the NRC brief was prepared by Mr. Bopp, Ms. Murphy argued the case for both McCutcheon and the RNC)

For Senator Mitch McConnell (amicus): Bobby Burchfield 

For Appellee: Solicitor General Donald Verrilli, Jr.

Oral Arguments 

Resources & Related Materials 

  • Lower Court opinion (per Judge Janice Rogers-Brown) (argued by James Bopp, Jr., for Appellant)

Selected Supreme Court Briefs

  • Cert. Petition of Shaun McCutcheon & RNC (James Bopp, Jr., counsel of record)
  • Merits Brief of Appellant RNC (James Bopp, Jr., counsel of record)
  • Merits Brief of Appellant Shaun McCutcheon (Michael T. Morley, counsel of record)
  • Reply Brief of Appellant Republican National Committee  (James Bopp, Jr., counsel of record)
  • Amicus Brief of Sen. Mitch McConnell (Bobby Burchfield, counsel of record)
  • Amicus Brief of the Cato Institute in support of the Appellant (Ilya Shapiro, counsel of record)
  • Amicus Brief of Thomas Jefferson Center for the Protection of Free Expression and the Media Institute in support of the Appellant (J. Joshua Wheeler, counsel of record)
  • Brief of Appellee FEC (S.G. Donald Verrilli, Jr., counsel of record)
  • Amicus Brief of Brennan Center for Justice in support of Appellee (Daniel Kolb, counsel of record)
  • Amicus Brief of Americans for Campaign Reform in support of Appellee (Charles Fried)
  • Amicus Brief of Democratic Members of the U.S. House of Representatives in support of Appellee (Paul M. Smith, counsel of record)
  • Amicus Brief of Representatives Chris Van Hollen & David Price in support of Appellee (Seth Waxman, counsel of record)
  • Amicus Brief of Professor Lawrence Lessig in support of Appellee (Douglas T. Kendall, counsel of record)
  • For Additional Briefs, go here (ABA site)

Books, Symposia & Articles

  • SCOTUSblog Symposium on McCutcheon (forthcoming, 2014) (contributors: Jan Witold Baran, Richard Hasen, Burt Neuborne, Ilya Shapiro, & Fred Wertheimer)
  • SCOTUSblog Symposium on McCutcheon (Aug., 2013) (contributors: Erwin Chemerinsky, Ronald Collins, Robert Corn-Revere, Joel Gora, Justin Levitt, Tamara Piety, David Skover, & Adam Winkler)

Now you can insist on control of your material. You can insist on veto power over everything; down to casting and choice of directors and script approval, you can insist on all those things. J.K. Rowling insisted on all those things. And J.K. Rowling got all those things because there were enough people interested in that. Now if you’re not J.K. Rowling, and you insist on all those things, the studios are not going to be very interested or less studios will be interested in it so you’ll get less money or none at all. Or alternatively, you can not insist on everything and you can just sell them the book and what they do with it is what they do with it and you have to live with it. You no longer have approval over anything, you no longer have…you know what I mean? And those are the two extremes. In between of course there’s a vast area of shades of gray.

— George R. R Martin

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George R. R. Martin on Copyright, Inheritance, and Creative Control

He cares much more about French dynastic history than you do.

He cares much more about French dynastic history than you do.

This is Part 3 of the interview I did with George R. R. Martin in  2007.  For background and part 1, click here.  For Part 2, click here. For the audio file, click here.

HOFFMAN: Yeah, but you just generally right. The trope something that really speaks to folks. I guess maybe that raises a question about your fans generally. You’ve obviously got a huge fan base and I’ve been reading a little bit about them. One question that comes up a bunch of different times is fan fiction and what do you think about fan fiction?

MARTIN: I’m opposed to fan fiction.

HOFFMAN: Why?

MARTIN: Well number one, its copyright infringement and it can potentially endanger my copyrights and my trademarks if I were to allow it. Also, yes maybe it’s a gesture of love that they love your characters and they love your world and all that but it’s not the kind of gesture of love that I really want. And for aspiring writers and some of these people, sure it’s a wide range of fan fiction writers, some who are terrible. Some of them are actually talented writers. I think for the talented writers it’s particularly tragic because they should be doing their own material.

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FAN.9 (First Amendment News) — Sunstein on Sullivan & its “Dark Side”

In the wide-open, robust, and uninhibited world of the First Amendment, nothing is sacred, not even the hallowed opinion in New York Times, Inc. v. Sullivan (1964). Case in point: Justice Antonin Scalia’s originalist reservations about Justice William Brennan’s constitutional handiwork in that landmark case. But alas, the conservative jurist is not alone. Enter the sometimes liberal Harvard Law Professor Cass Sunstein, who has recently authored an op-ed titled “The dark side of the First Amendment” (Bloomberg, March 26, 2014).Unknown

Some two decades ago, in his Democracy and the Problem of Free Speech, Professor Sunstein labeled the Sullivan case as “one of the greatest cases of modern free speech law.” Even so, he made it clear in that book and in later works that his understanding of the Sullivan principle was a cabined one. Later, in an August 21, 1995 review essay in The New Republic, he spoke of the question of causation, among other things. There Sunstein maintained that “it isn’t necessary to demand proof of causation before encouraging greater responsibility on simple prudential grounds.” In that regard, he argued that cultural questions should not be confused with constitutional ones when it comes to questions of causation. It is against that backdrop that we return to his views on Sullivan, which are at once somewhat laudatory and at the same time rather cautionary.

On the occasion of the 50th anniversary of Sullivan, Sunstein writes: “amid the justified celebration, we should pay close attention to the dark side of New York Times vs. Sullivan. While it has granted indispensable breathing space for speakers, it has also created a continuing problem for public civility and for democratic self-government.” (emphasis added).  Later on in his op-ed, he was more modest in his critique: “False accusations are hardly new. But New York Times vs. Sullivan can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S.” (emphasis added). Having said all of that, in the end he conceded that “the Court got the balance right” in Sullivan. What are we to make of this?

A few preliminary responses, first my own, and then some from a colleague. If I read him correctly, Professor Sunstein seems to be saying that constitutionally speaking Sullivan is a good thing, but culturally speaking it is not, or may not be so wonderful. Fair enough, for general discussion purposes anyway. That said, it must be remembered that we pay a price for liberty. So much for the constitutional side of the equation. On the cultural side, however, Sunstein seems to make his case on the back of a weak causation claim (recall: “it isn’t necessary to demand proof of causation . . . .”). That leads me to wonder: Is it unreasonable to expect that any meaningful cultural critique of Sullivan be related in some actual sense to questions of proof of causation? In other words, should cultural critiques be oblivious to what science can tell us, or at least suggest to us? Granted, one might understandably deplore the state of “discourse” in modern America.  But faulting Sullivan is another matter. More importantly, what is sorely missing from Professor Sunstein’s cultural critique is a critique of the culture writ large. By that measure, Sullivan may make for a convenient scapegoat, but little more, at least standing alone.

By way of another look, American University law professor Stephen Wermiel, who co-authored the seminal biography of Justice Brennan and more recently co-authored a book on Sullivan and its legacy, offered the following comment on Professor Sunstein’s article:

“Professor Cass Sunstein joined the fiftieth anniversary celebration of New York Times v. Sullivan, but bemoaned the ability of “talk show hosts, bloggers and users of social media” to “spread ugly falsehoods in an instant,” adding to “a climate of distrust and political polarization.” But Sunstein’s concerns lay too much blame on the shoulders of Sullivan. That unanimous ruling did not create a society in which free-flowing criticism, replete with occasional falsehoods, is rampant. That culture already existed; Sullivan only helped to fit it all into a robust constitutional democracy. To the extent that Sunstein’s criticism turns on the proliferation of instant means of communication, he gives too little weight to the access that victims of social media have to respond. Moreover, Justice Brennan, the author of Sullivan, was not alone in his belief that society benefits from “robust and wide-open debate.” It was, after all, the more judicially modest Justice John Harlan who 1971 observed that the ability of society to handle the cacophony of free speech is a sign of strength, not weakness.”

Returning to the constitutional side of the ledger, in his latest book (Conspiracy Theories and other Dangerous Ideas) Professor Sunstein further elaborates on his ideas about the virtues of “minimalist” judging, which makes one wonder if he would have indeed signed onto what Justice Brennan wrote in Sullivan. My guess: no.

Watch your calendar: The petition in Elane Photography, LLC v. Willock is scheduled to be considered at the Court’s April 4th Conference.

Note: I plan to have immediate and updated postings re McCutcheon v. FEC, the campaign finance First Amendment case now awaiting a ruling from the Supreme Court.

Journalists & “qualified First Amendment privileges”

Joel Kurtzberg of Cahill Gordon & Reindel has just filed a cert. petition in the case of Risen v. United States in which two issues are presented: (1) Do journalists have a qualified First Amendment privilege when subpoenaed to reveal the identity of confidential sources in a federal criminal trial?, and (2) should a federal common law privilege be recognized under Federal Rule of Evidence 501 to provide protection to journalists who are subpoenaed to reveal the identity of their confidential sources in a federal criminal trial? Read More

[If] you read some fantasy, the magic is omnipresent. In Harry Potter the magic is omnipresent, a primarily magic universe. They got magic for everything there. Every time you turn around there’s a new magic thing that’s popping up. A magic hat or a magic sword or a spell to solve something. Because magic is so omnipresent, you don’t have to [resort] to mundane ways to…solve a murder mystery. “Who murdered Joe? Well we’ll just give him the truth spell and he’ll tell us who murdered Joe,” or “We’ll just cast this other spell and open the veil of time and we’ll be able to see who murdered Joe.” If those options exist then it’s very difficult to write a traditional John Grisham type novel or a detective novel or anything that depends on evidence and all that because there are all these magical ways of getting it.

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Lawyers in Westeros

An uncomfortable chair in a modern partner's office?

An uncomfortable chair in a modern partner’s office?

This is Part 2 of the interview I did with George R. R. Martin in  2007.  For background and part 1, click here.  For the audio file, click here.

 HOFFMAN: Are there lawyers in your books that are just in the wings off stage that haven’t yet appeared?

MARTIN: That’s an interesting question. I hadn’t really considered that until I started reading those links that you sent me. There are certainly laws but are there special classes of advocates who make their living by interpreting those laws? My inclination is probably not because the laws my books are administered by lords. In some ways it’s government as much for men than law. We like to say our government in the United States is a government of laws not men. In some ways the Seven Kingdoms I think is the reverse. There is basis of a law but also a lot depends on who is interpreting it and who is sitting in the Lord’s seat, who is sitting on the Iron Throne and how they settle these disputes.

HOFFMAN: Well those are ultimate questions but I think in two places one could have imagine lawyers and one of them again will be this church trial because there were church lawyers in the ecclesiastical church system there were lawyers who specialized in canon law. And the second one was at least twice I can think of in the books there’re trials by combat. And I don’t really know what the other alternative would be but I assume would be trial by jury – the path that Tyrion did not choose both times. And I was thinking –

MARTIN: Well he does choose in the first…in the second…second of his two trials, he is being tried – it’s not by jury – it’s by lord. There’s no jury of his peers, no twelve people that are randomly picked but there are three lords sitting on his case and hearing the evidence.

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ROUNDUP: Law and Humanities 04.01.14

Welcome to the first Law and Humanities ROUNDUP post. Here are some items I hope you will find of interest.

LSA

The Law and Society Association (LSA) Meeting, one of the most important conferences in the area of Law and Humanities, takes place May 29-June 1 in friendly Minneapolis, Minnesota. This year’s theme centers on the role of law and legal institutions in sustaining, creating, interrogating, and ameliorating inequalities. The 2014 Program invites participants to explore and consider three questions:

  • How can Law and Society scholarship contribute to unearthing and understanding inequalities?
  • How can Law and Society scholarship contribute to the critical interrogation of discourses of equality and inequality and help to reveal what is at stake in these concepts?
  • What impact can we expect these scholarly contributions to have on the persistence of these inequalities and on public discourse about them?

You can check out the preliminary program, register, and find hotel information here. Early registration ends April 15 (with 50 percent refunds available through that date. You cannot obtain any refunds after April 15).

If  you have always thought about writing legal fiction, check out this announcement from Alafair Burke at Hofstra Law.  Professor Burke, who writes the Ellie Hatcher novels, along with two other best-selling lawyer authors, Lee Child (who writes the Jack Reacher thrillers) and Marcia Clark (author of the Rachel Knight series) will be judges of a crime fiction competition being offered by Hofstra Law and Mulholland Books. The rules are simple, and include this one: Your story must feature a lawyer as a main character. Read the rest of the rules here. Deadline for entries is May 1, 2014.

UCLA English professor Eric Jager has published another interesting title: Blood Royal: A True Tale of Crime and Detection in Medieval Paris (Little, Brown), available in hardcover, audio, and ebook formats.  Here’s the description of the book from the publisher’s website.

A riveting true story of murder and detection in 15th-century Paris, by one of the most brilliant medievalists of his generation. On a chilly November night in 1407, Louis of Orleans was murdered by a band of masked men. The crime stunned and paralyzed France since Louis had often ruled in place of his brother King Charles, who had gone mad. As panic seized Paris, an investigation began. In charge was the Provost of Paris, Guillaume de Tignonville, the city’s chief law enforcement officer–and one of history’s first detectives. As de Tignonville began to investigate, he realized that his hunt for the truth was much more dangerous than he ever could have imagined. A rich portrait of a distant world, BLOOD ROYAL is a gripping story of conspiracy, crime and an increasingly desperate hunt for the truth. And in Guillaume de Tignonville, we have an unforgettable detective for the ages, a classic gumshoe for a cobblestoned era.

Dr. Jager’s previous book, The Last Duel, about trial by combat in medieval France, (in this case, over whether a noblewoman’s claim that she had been raped was true), was nominated for the Crime Writers’ Association Gold Dagger Award and adapted for a BBC documentary in 2008.

 

I’m looking to tell a story here and hopefully an entertaining and engrossing story. I’m not looking to do a study of socioeconomic systems or legal systems or any of these things so the really scholarly works, copious footnotes, and things like that, are less useful to me in some ways.

— George R. R. Martin

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The Law of the Game of Thrones

Game-of-Thrones-game-of-thrones-17629189-1280-720In 2007, I did an interview with GRRM as a part of CoOp’s then vibrant “Law and Hard Fantasy” series.  (Yes, I know I’ve let it drop for half-a-decade, but new interviews are now coming out.)

Given the new-found fame of the Game of Thrones, I decided to have the interview transcribed for those of you who don’t want to listen.  Thanks to Temple’s Danielle Pinol who did the work.  I’m going to provide the transcript in three parts.  Here’s part I, about the roots of sovereign power in Westeros.  Part II talks about lawyers and magic. Part III will talk about fantasy literature more generally.

 

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Research Help at the Minnesota Historical Society

I want to thank everyone at UVA who responded to my post asking for help in looking at Justice McReynolds’ papers.  Now I have a similar request for any student in Minneapolis.  Justice Butler’s papers (though there are not many) are held by the Minnesota Historical Society.  I would like someone to look at the collection, give me a sense of what’s there, and photograph some or all of the documents.  If anyone is interested, then please email me at gmaglioc@iupui.edu.