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U Delaware Chaplin Tyler Lecture

I’m honored to be giving this lecture at my alma mater, and thanks go to Charles Elson for the opportunity and Kim Ragan for organizing the event.  It’s the first in the book tour that will take me to many other great universities with thanks to many more wonderful colleagues nationwide.  More details as they are finalized.

Poster U Delaware-page1

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FAN 28.1 (First Amendment News) — The First Amendment in the Era of ISIS

This is beyond anything we’ve seen.

                                  — Chuck Hagel, Aug. 21, 2014

The Threat

→ Defense Secretary Chuck Hagel told reporters at the Pentagon: “They are an imminent threat to every interest we have, whether it’s in Iraq or anywhere else.”

Secretary of Defense Chuck Hagel

Secretary of Defense Chuck Hagel

“Asked if the hardline Sunni Muslim organization posed a threat to the United States comparable to that of the attacks of Sept. 11, 2001, Hagel said it was ‘as sophisticated and well-funded as any group we have seen.'”

→ According to a report in The Hill, ISIS, also known as Islamic State, “has long threatened to carry out a catastrophic attack on American soil, with a spokesman recently boasting that the militant group would fly its flag over the White House.”

Senator Jim Inhofe (R-Okla.) Now is in “the most dangerous position we’ve ever been in.” ISIS members, he added, are “rapidly developing a method of blowing up a major U.S. city and people just can’t believe that’s happening.” 

imagesRecruiting in the U.S.? 

→ “The director of the FBI visited Colorado this week and detailed how the terror organization ISIS is recruiting Americans to take up their cause.It’s not just the recruitment of Americans that’s concerning to the FBI, it’s the method of recruitment — the Internet. FBI Director James Comey said how they are recruiting new members is getting the attention of the U.S. government.” [Source: CBS News]

James Comey: “We have seen an emergence since I was last in government of the people we call home grown violent extremists.” [Source: CBS News]

The Law

The Newseum in Washington, D.C.

The Newseum in Washington, D.C.

“When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” — Schenck v. United States (1919)

→ See also: Dennis v. United States (1951) (“In each case [courts] must ask whether the gravity of the `evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”)

→ See also: Yates v. United States (1957) (re “advocacy of actions” versus advocacy in the abstract).

“the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio (1969)

 Everyone agrees that the Government’s interest in combating terrorism is an urgent objective of the highest order. . . .  Plaintiffs’ complaint is that the ban on material support, applied to what they wish to do, is not ‘necessary to further that interest.’ The objective of combating terrorism does not justify prohibiting their speech, plaintiffs argue, because their support will advance only the legitimate activities of the designated terrorist organizations, not their terrorism. . . .  We are convinced that Congress was justified in rejecting that view.  . .  . We see no reason to question Congress’s finding . . . ” — Holder v. Humanitarian Law Project (2010)

→ See also: Geoffrey Stone. Perilous Times: Free Speech in Wartime (2004)

→ See also Richard A. Posner, Not a Suicide Pact: The Constitution in Time of National Emergency (2006) and Posner, Countering Terrorism: Blurred Focus, Halting Steps (2007)

→ See generally “Symposium, Free Speech in Wartime,” 36 Rutgers Law Journal 821-951 (2005) (contributors: Geoffrey Stone, Earl Maltz, Ronald Collins & David Skover, Adrian Vermeule, Leonard Niehoff, Floyd Abrams, David Strauss, Nadine Strossen, Eric Foner, David Rabban, and Raymond Solomon).

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PASPA, Uniformity Requirements, and the “Equal Sovereignty” Principle

Fans of federalism and/or sports betting were likely disappointed to see the Supreme Court deny cert last month in Christie v. National Collegiate Athletic Association.  The case involved the constitutionality of the federal Professional and Amateur Sports Protection Act of 1992, which generally prohibits the licensing, promoting, and authorization of sports-betting activities in all states except for Nevada (and a few other states to a lesser extent).  One of the challengers’ claims involved the so-called “equal sovereignty” doctrine, most recently recognized by the Court in Shelby County v. Holder.  PASPA, the challengers argued, was functionally indistinguishable from Sections 4 and 5 of the Voting Rights Act, in that it unjustifiably treated some states differently from others.  Therefore, invoking the authority of Shelby County (and the Court’s other “equal sovereignty” decisions), the challengers claimed that PASPA had to go.***

The Third Circuit upheld PASPA and thus rejected the challengers’ “equal sovereignty” claim.  The court had a number of things to say about Shelby County and the VRA, including this:

[T]he VRA is fundamentally different from PASPA.  It represents, as the Supreme Court explained, “an uncommon exercise of congressional power” in an area “the Framers of the Constitution intended the States to keep for themselves . . . the power to regulate elections.”  Shelby County, 133 S. Ct. at 2623, 2624.  The regulation of gambling via the Commerce Clause is thus not of the same nature as the regulation of elections pursuant to the Reconstruction Amendments.  Indeed, while the guarantee of uniformity in treatment amongst the states cabins some of Congress’ powers, see, e.g., U.S. Const., art. I., § 8, cl. 1 (requiring uniformity in duties and imposts); id. § 9, cl. 6 (requiring uniformity in regulation of state ports), no such guarantee limits the Commerce Clause.  This only makes sense: Congress’ exercises of Commerce Clause authority are aimed at matters of national concern and finding national solutions will necessarily affect states differently; accordingly, the Commerce Clause, “[u]nlike other powers of [C]ongress[,] . . . does not require geographic uniformity.” Morgan v. Virginia, 328 U.S. 373, 388 (1946) (Frankfurter, J., concurring).

I find this argument puzzling.  The first half of the paragraph sets forth the proposition that Commerce Clause regulation is different from Reconstruction Amendment regulation; the second half then defends this proposition by noting that the Commerce Clause, unlike other provisions of Article I, does not contain an explicit “uniformity” requirement. The problem is that Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment also lack “uniformity” requirements, and those provisions—as we know from Shelby County—still trigger application of the “equal sovereignty” principle.  So, Shelby County actually seems to undercut rather than support the Third Circuit’s “Commerce-Clause-Lacks-a-Uniformity-Requirement” claim.

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Some Textual Questions

I was rereading the Constitution the other day, and two things stuck out this time that I had not thought about before.

1.  Article I, Section 3 says “each senator shall have one Vote.”  But Article I never says that each Representative shall have one vote.  I wonder why.  Perhaps because the Senate was new, the Framers felt the need to clarify the role of a Senator.  Representatives, by contrast, were more familiar and thus everyone knew that each one would get one vote.

2.  When addressing impeachment, Article I, Section 3 also says that anyone removed from office shall “be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”  Does this mean that an indictment is a requirement?  In other words, if a state wanted to proceed by information against an impeached and removed official, can they do that?

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FAN 28 (First Amendment News) — The Demise of Stare Decisis?

Professor Randy Kozel

Professor Randy Kozel

Start here: “Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis.” Okay, so much for the gospel regularly taught in law schools.

But there is another gospel — the one actually practiced by judges. (Somewhere the old Florentine grins.)

Now consider this: “[W]ithin the First Amendment context, there is no such presumption. When the Court concludes that a precedent reflects a cramped vision of expressive liberty, adherence to the past gives way. Unfettered speech, not legal continuity, is the touchstone.”

So contends Notre Dame Law School Professor Randy Kozel in a draft of an article titled “Second Thoughts About the First Amendment.” As his research reveals, “in recent years the Court has marginalized its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has rejected its past decisions on corporate electioneering and aggregate campaign contributions. And it has revised its earlier positions on union financing, abortion protesting, and commercial speech.”

And why? What accounts for this purported demise of stare decisis? “The best explanation for this phenomenon,” say Professor Kozel, “is the role of free speech in the constitutional order. The Court’s tendency is to characterize affronts to expressive liberty as dangerous steps toward governmental repression and distortion. From this perspective, it is little wonder that the Court eschews continuity with the past. Legal stability may be significant, but official orthodoxy seems like an excessive price to pay.”

And is all of this a problem? Here is how the former Kozinski-Kennedy law clerk turned law professor answers that question: “Yet the Court’s practice raises serious questions. Departures from precedent can be problematic, especially when they become so frequent as to compromise the notion of constitutional law as enduring and impersonal. If the doctrine of stare decisis is to serve its core functions of stabilizing and unifying constitutional law across time, the desire to protect expressive liberty must yield, at least occasionally, to the need for keeping faith with the past.”

With a guarded measure of nuance, Professor Kozel adds: “For some, this state of affairs may be unobjectionable. There is no denying that robust expression is a core tenet of American legal and political culture. Still, there is something to be said for stare decisis, even when continuity comes at a hefty price.”

→ Of course there is more, much more in this thoughtful work-in-progress. I urge readers to take a look at it and send along your thoughts. Who knows, it might even make for an interesting topic for a future First Amendment salon?

Speaking of that salon, I may soon have some news on that front. Stay tuned.

Another great quote from Justice Jackson

[T]he very essence of constitutional freedom of press and of speech is to allow more liberty than the good citizen will take. The test of its vitality is whether we will suffer and protect much that we think false, mischievous and bad, both in taste and intent.

– Justice Robert Jackson, in-chambers opinion in Williamson v. United States (1950):

→ Hat tip to Eugene Volokh

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Disclaimers & Promissory Estoppel

Imagine that, rather than because of his speech, but for no reason at all, University of Illinois Chancellor Wise decided not to present Prof. Salaita’s appointment to the Board of Trustees. Also assume that the facts are as they’ve been publicly described – there is no documented backchannel communication assuring that the appointment was a “rubber stamp,” and the Board had no knowledge of the offer’s existence before the summer. Finally, assume that the Illinois Chancellor has not failed to forward on a hiring proposal to the Trustees since, say, 2010.

These assumptions strip away the political and constitutional questions,* and leave us with a clean problem: does an express reservation of authority in an offer of employment make it unreasonable to rely on it, where the current institutional practice is for such authority to be confirmed later? Dorf thinks “no.” I, and Steven Lubet, think “yes.”

In my first post, I cited a number of cases in which promissory estoppel claims by prospective faculty members under circumstances like these were denied, including some that rested on the conclusion that the ultimate authority lay with the Board of Trustees.  This post continues that research.  I have found no cases directly on point in Illinois. Nor have I found a single case outside of Haviland v. Simmons where a plaintiff successfully asserted a PE claim under these circumstances.  In addition to the cases I cited in the original post, see also Drake v. Medical College of Ohio, 120 Ohio App.3d 493 (1997) (representation by college president that a faculty member would be hired and trustees would be a “rubber stamp” didn’t give rise to PE Claim);  Broderick v. Catholic University, 365 F. Supp. 147 (D.D.C. 1973) (representation of prospective wage equality in president’s letter not reasonably reliable in light of several factors, including reservation of power to Trustees).  Of the dozen or so cases I have found in this vein, Oja v. Blue Mountain Community College, 2004 WL 1119886 (D. Ore. 1994) comes closest to the Salaita facts:

 

“Defendants argue that McCarrell, the interim president, stated in the June 18, 2002 letter to plaintiff that McCarrell would recommend that the Board agree to employ plaintiff. I agree with defendants that a close reading of the letter and the contract show that McCarrell did not agree to employ plaintiff but rather stated that he would recommend that the Board employ plaintiff. This is indicated by contract’s blank signature line for the Chair of the Board.
Plaintiff knew that Board approval was legally required, but argues that this as a mere formality. Plaintiff cites alleged statements by Shea to the effect that the job was secure, which Shea denies. Assuming Shea did make such statements, casual or unauthorized comments cannot create a binding employment agreement. See Butler v. Portland General Elec. Co., 748 F.Supp. 783, 792 (D.Or.1990)aff’d sub nom. Flynn v. Portland General Elec. Co.,958 F.2d 377 (9th Cir.1992) (table, text in Westlaw). The promissory estoppel claim fails because it was not reasonable for plaintiff to believe that he had a binding contract with Blue Mountain based on McCarrell’s statement that McCarrell would recommend plaintiff’s employment to the Board.”

Now this isn’t precisely on point. The letter to Salaita did offer employment, subject to the condition listed.  So it’s a better case for reliance than Oja. But the similarities are otherwise striking, including the alleged side representations of security. There is also a line of cases in which  general disclaimers of intent to contract in university policies defeat promissory estoppel claims.  See Ishibashi v. Gonzaga University, 101 Wash. App. 1078 (2000). That said, contract authorities (like Farnsworth and Perillo) state that some courts have given promissory estoppel relief notwithstanding disclaimers of intent to be bound, especially where the disclaimers are general (in an employment manual) and the promises specific. There’s a case like this in every casebook, and they tend to turn on how unjust the conduct ends up feeling.  See, e.g., Spooner v. Reserve Life Ins. Co., 47 Wash. 2d 454, 287 P.2d 735 (Wash. 1955) (denying relief).

Given this caselaw, and the general trend against promissory estoppel I earlier identified, the best thing that Salaita would have going for him – in the unlikely event that he were to litigated in federal or state court** – are the side representations and academic custom. The question of whether parol evidence is barred in PE cases is notoriously complex. In Illinois, PE can’t defeat the statute of frauds, and it would be a further complex issue to decide whether the writing – which is not signed by the ultimate authority to be charged – satisfies the statute, as Larry Cunningham has pointed out.  My own gestalt is that the side representations would not be admissible,though if they were in writing they might be more likely to color the court’s analysis.

As for custom and practice, I agree with everyone who has said it is relevant.  But, as a district court stated in dismissing evidence of custom of providing a six year tenure clock,

Custom is an area of contract law through which the courts must travel prudently. Only upon a clear showing of custom, nigh universally understood, should a court impose obligations based on custom . . . This Court will not enforce contractual obligations based on a custom which at best finds only tenuous support in the facts.” Marwill v. Baker, 499 F.Supp. 560 (D. Mich. 1980).

*As I originally wrote, I think that there are serious constitutional infirmities in the University’s position, as well as substantial academic freedom arguments. Rescinding the offer was a bad decision.

**Mike Dorf’s assumption that federal courts will exercise supplemental jurisdiction over the promissory estoppel claim assumes that the University of Illinois isn’t immune under sovereign immunity.  Cf. Kaimowitz v. Board of Trustees of Univ. of Illinois, 951 F.2d 765 (7th Cir.1991) (holding that it is immune unless certain exceptions are met). I think this issue would turn on whether the PE recovery is seen as a “present claim” or not, but I’m not an expert.

 

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Vice Presidential Proxy Voting

96px-Joe_Biden_official_portrait_cropThere have been a few stories recently speculating on how the Senate would function if the November elections resulted in a 50-50 split between Republicans and Democrats.  The standard answer is that that Joe Biden would have to spend a lot more time on Capitol Hill to cast his tie-breaking vote.  While the practice has always been that a vice-president must cast his Senate vote in person, I wonder if that should be changed.

There are good reasons for not allowing proxy voting by House and Senate members.  You might think part of the duty of being a member is to show up and cast votes.  Verifying the accuracy of proxy votes could also be a problem, especially if an absent member is ill or in some remote place.  Likewise, permitting proxy voting might give party leaders more power than they already possess by effectively delegating votes to them.  (In this respect, you might say that voting in Congress is simply non-delegable.)

The Vice-President, though, is a different kettle of fish.  He isn’t really a member of the Senate.  He is only one person, so establishing the truth of his proxy should be easy.  He will always vote the Administration line, so there is no risk that the Senate Majority Leader will get more discretion as a result of the VPs proxy.   Moreover, the VP often needs to be elsewhere (on a diplomatic mission, in a national security council meeting), such that subjecting him to the whims of the Senate schedule could be a problem.  Why not let him vote by proxy?

I should add (on a related note) that a 50-50 Senate tie could expose the fact that there is no procedure in place to deal with an ill or incapacitated vice-president.  Suppose the VP has a stroke and cannot function for months.  Then all of the ties would be actual ties.  (Proxy voting would reduce but not eliminate this problem–no proxy could occur if the VP was in a coma.)  I do not believe that the Senate was equally divided during one of the periods (prior to the 25th Amendment) where we had no vice-president at all, but I’m not sure.

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Steven Salaita’s Promissory Estoppel Claim is Weak

Not a good fact for PE claim: Salaita's tween that "Zionists: transforming 'anti-semitism' from something horrible into something honorable since 1948"

Not a good fact for PE claim: Salaita’s tweet “Zionists: transforming ‘anti-semitism’ from something horrible into something honorable since 1948″

Mike Dorf has written something about the Steven Salaita case which I can’t agree with. Acknowledging that Professor Salaita had no actual contract with the University of Illinois, Dorf turns to promissory estoppel:

“Like many other states, Illinois law offers protection to people who, in reasonable reliance on an offer that falls short of a fully enforceable contract, take actions to their detriment. The Illinois Supreme Court affirmed this principle of “promissory estoppel” as recently as 2009, in the case of Newton Tractor Sales v. Kubota Tractor Corp.

Salaita has an almost-classic case of promissory estoppel. He was told by Illinois that trustee approval was essentially a rubber stamp, and in reliance on that representation he resigned from his prior position on the faculty of Virginia Tech.

To be sure, a party who sues for promissory estoppel rather than suing under a formal contract typically only recovers to the extent of his reliance, rather than in strict accordance with what he expected to gain under the contract. But here, there is no real difference between what contract law calls the reliance interest and the expectancy interest: By giving up his position at Virginia Tech, Salaita gave up a job in which he had academic freedom; thus, recognition of his promissory estoppel claim should mean that Illinois must afford him academic freedom.”

Mike is an enormously decent person, and he knows more about constitutional law (and debate!) than I ever will. But if Mike really believes that Salaita has a strong case for promissory estoppel recovery, well, he’s wrong.

 The Illinois Supreme Court’s last statement on promissory estoppel is Newtonwhich endorses the Restatement (2nd) of Contracts Section 90.  (Notably, Newton recognized that there a live cause of action for PE in Illinois, but the case strongly suggests that the issue had been in doubt — as of 2009!) The elements of promissory estoppel are consequently familiar:

 “A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.”

Let’s take them one by one, as if this were a law school exam.

1.  There was a promise, but it didn’t unambiguously assure employment. It did so contingent on board approval. There are tons of cases out there (including some from Illinois, e.g., Board of Education South Stickney School District No. 111, Cook County v. Murphy, 56 Ill.App.3d 981 (1978)) holding that under the Rst.2d, a promisee can’t estop a promisor’s denial of obligation when the promisor lacked legal authority to conclude a bargain. Under the facts as they’ve been reported, the offer letter was sent by Brian Ross, U. of I.’s interim dean of the College of Liberal Arts and Sciences, and explicitly stated that it was contingent on final board approval.

2.  Would the promisor reasonably expect the promise to induce action? Salaita knew the Interim Dean lacked the authority to make a promise that could be relied upon. Dorf argues that Salaita was told by “Illinois” that Board approval was a rubber stamp. But that’s a figure of speech: Salaita was told by the same person who wrote the letter, who, again, lacked decisional authority. (At least, based on what’s been reported.) If an agent tells you that he doesn’t have authority but that his principal will surely back him up, is it reasonable to rely on that representation? I think probably not.  In the classic PE case of Hoffman v. Red Owl, the promisor is bound by an agent’s promises in part because the principal knew about them. What did the relevant University executives know about the hire before the letter was sent out? It’s my impression that at most universities, Department chairs are approved to hire someone, and the President/Board don’t know who until the final package arrives on their desks.  The only winning case that I can find on facts remotely like this one is Haviland v. Simmons, 45 A.3d 1246 (Rhode Island 2012). In Haviland, “upper echelon of Brown’s administration—including the Dean, the Provost, and the Interim President” made promises, and Brown was thus “precluded from denying that its administrators had the authority to provide plaintiff with employment security because the University has failed to produce any probative evidence establishing that those officers lacked such authority.” Is that the case here? 

3.  Can injustice be avoided only by enforcement of the promise? I teach this provision as a catchall – a way for courts to avoid enforcement if they dislike plaintiffs and permit it if they do. Here, I think a court would focus heavily on the language in the letter and inquire about relevant practices at the University. How many times have job offers been extended only to have met board resistance? How much does the court think that a university’s right to control who works for it is trumped by the benefits of academic freedom. (This obviously ties the injustice prong into a first amendment analysis.) My gut feeling is that unlike many liberal law professors, who increasingly treat Israel as a pariah, and who think that there’s “clearly only one defensible side to take on this case,” elected state court judges in Illinois might not think that justice requires enforcement of this non-contract claim. Those tweets would make mighty fine campaign fodder. 

Why am I so skeptical when Mike Dorf is not? I think it’s largely because I’ve read alot of promissory estoppel cases, and a lot of promissory estoppel articles. And the consensus is that over the last generation, promissory estoppel has waned as a theory of recovery. As Bob Hillman famously concluded, it’s a “remarkably unsuccessful” cause of action, which, in my experience, is brought largely in weak cases as a last-ditch shot to push through to discovery and thus motivate settlement.  I think that most contracts professors spend time on the doctrine these days largely because it’s so darn fun — the facts are wonderful! — but not because it’s a regular part of the business lawyer’s arsenal. Promissory estoppel cases are losers. This case would be a loser.  See, e.g., Awada v. University of Cincinnati, 3 Ohio Misc.2d. 100 (1997) (particle group promises of employment not binding); Daniel v. University of Cincinatti, 116 Ohio Misc. 2d 1 (2001) (reliance on faculty promises not reasonable given final trustee approval);Suddith v. Univ. of S. Miss., 977 So.2d 1158  (Miss.Ct.App.2007) (no injustice when after-acquired information about candidate changed president’s mind).

Now, nothing said here in any way suggests I know a thing about the first amendment claim’s merits.  I don’t.  Professor Salaita might have a good constitutional claim, or under some other regime of law. And I agree with Steven Lubet that a settlement is the modal outcome. But, to be snarky, Dorf is right: it’s “an almost-classic case of promissory estoppel.” A weak one.

 

Update: Mike Dorf responds.  My reply follows after the jump:

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“Congress” Versus “the Congress”

Since it is the weekend, let me offer this rather trivial observation about the constitutional text:  The Constitution appears to take a stylistically erratic approach to the word “Congress,” sometimes introducing it with the definite article “the,” and at other times introducing it without any article at all.  Looking at this GPO edition of the document, I count 22 references to “the Congress” and 3 references to “Congress” in the first seven Articles, along with 12 references to “the Congress” and 12 references to “Congress” in the subsequent amendments.  There is also one reference to “a Congress” in the Vesting Clause of Article I, although that one makes pretty good sense to me in context.

(By the way, I have no doubt that someone has made this observation before, but the topic turns out to be frustratingly difficult to Google, so I’m unable to provide a reference.  If you have addressed the issue previously, though, feel free to let me know, and I’ll be sure to give credit where credit is due.)

Some of these “Congress”/“the Congress” discrepancies might well be justified, but others seem to me pretty obviously inconsistent.  Compare, e.g., Article I, Section 10, Clause 2 (“No state shall, without the Consent of the Congress…”), with its immediately ensuing clause, Article I, Section 10, Clause 3 (“No state shall, without the Consent of Congress…”).  Compare also the Enforcement Clause of the Thirteenth Amendment (“Congress shall have power to enforce this article by appropriate legislation”), with the Enforcement Clauses of the Fourteenth Amendment (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”) and Fifteenth Amendment (“The Congress shall have power to enforce this article by appropriate legislation.”).  So unless there are some deep and subtle messages that I’m supposed to be picking up on, these (and other) discrepancies look to me like the product of accidental oversight.

All of which prompts from me one question and one observation:  The question, which I pose for those more learned than I, is whether it was ever customary, at least in a colloquial sense, to refer to the Constitution’s legislative branch as “the Congress” rather than just “Congress.”  And if so, when did customs change?  I don’t normally say things like: “I wonder if the Congress will shut down the government,” or “I’m looking forward to those debates in the Congress this week,” and I don’t often hear other people using formulations of this sort.  (But see these examples.)  On the other hand, the original Constitution’s heavy reliance on the term “the Congress” makes me wonder whether practices were different earlier on.  (Also, for whatever it’s worth, both “the Congress” and “Congress” make regular appearances in the Federalist Papers.  But that’s the full extent of my meager primary-source research on this vitally important subject.)

The observation, which I offer mainly to myself, is that it’s really, really tough to put together a written document that is totally lacking in stylistic inconsistencies.  That such inconsistencies appear in the constitutional text itself—a short text, whose provisions have been carefully reviewed and edited by lots of smart people—seems to me a pretty good indicator that small-scale deviations of this sort are virtually impossible to eliminate altogether.  That’s something I’m going to keep in mind the next time I find myself fretting about stylistic inconsistencies in my own work.  (E.g., “Did I accidentally use the un-hyphenated ‘decisionmaking’ in Part I, while later using the hyphenated ‘decision-making’ in Part VI???”)  Not that I shouldn’t try to be consistent, but to the extent that I do end up erring, at least I’m not alone…

A Pithy Rendering of the New Political Economy

I remember reading Raymond Geuss’s The Idea of a Critical Theory in graduate school and finding it a clear, compelling work. Geuss reflects on the book in a recent essay, offering the following summation of our economic predicament:

What the 1980s and 1990s had in store for us. . . was the successive implementation of a series of financial gimmicks which created financial bubbles and allowed the illusion of increasing growth for the majority of the population to be maintained for a while. . . . [T]he system began to collapse in 2007 and 2008. Catastrophe was averted only by a bizarre . . . set of political interventions in the Western economies–interventions that have correctly been described as “socialism for the rich”: defaulting banks and failing industries were propped up by huge public subsidies, private debts were taken over by the state and profits continued to flow to private investors. This structure, which certainly bears no similarity whatsoever to the ways in which proponents of “capitalism” have described their favored arrangements, seems to give us the worst of all available worlds. . . .

[T]he forms of economic regulation that had been introduced during the Great Depression of the 1930s and had stood the West in good stead for over forty years were gradually relaxed or abolished during the 1980s. Social welfare systems that had gradually been developed came under pressure and began to be dismantled; public services were reduced or “privatized”; infrastructure began to crumble. Inequality, poverty and homelessness grew.

Thus the current trend of corporate profits without widespread prosperity.

One of the very few contemporary economists up to responding to these trends is Mariana Mazzucato, who teaches that any account of value extraction has to be premised on an account of value creation. I’ll be blogging on her work’s relevance to IP, tax, and other policy over the rest of the month. For now, I highly recommend her contribution to the panel “How to Change the Post-Crash Economy,” at the RSA.