Saturday, July 04, 2015
Wine, Soda Pop, and Law Schools - More on "Law Review Lift (Drag)"
Some time this month I will get to a relatively more serious topic, like textual opportunism, but for right now I'm still fiddling around with Al Brophy's ranking system.
So that I don't bury the lead, let me say up front that I have played some simple-minded statistical games with Al's data. What I come up with is that, among academics, "brand," as with soda pop, means a lot, and it is relatively sticky and independent of what is going on with the students.
I also think it's pretty obvious that there is a relationship between the "brand" and student data (i.e. high correlations between any ranking system and LSAT scores, for example). What got me interested, however, as I noted a few days ago, was the differential when Al included or didn't include a different and interesting stat: how often the school's main law review (not its faculty) got cited. My intuition is that what other profs think about placing articles in a school's review (based on my own experience) is a lot like the peer reputation score, except that it does measure a revealed preference (i.e., when you rank "peer reputation" as a participant in USNWR, it doesn't cash out to anything; placing an article does!)
The problem with all of these systems, in which we are "ranking" something with many complex factors (like wine) is that the judgment is qualitative, even if it looks quantitative. Often it's qualitative simply because it's qualitative (e.g., "peer reputation"), but even when it's fully quantitative it's qualitative because of the judgments one makes in weighting the quantitative factors. I was once a partner in a big law firm. Our partnership agreement called for compensation to be determined by a committee, which in turn used a list of factors like "billable hours," "service to the firm," "client responsibility," etc. Every two years the committee turned out a ranking that set your compensation relative to all the other partners. Similarly, if you aren't a hermit during early March of each year, you hear about a double ultra secret committee in Indianapolis deciding which of the "bubble teams" gets into the NCAA basketball tournament. Same thing. Recent results? Body of work? Bad losses? Good wins?
In any event, I played with Al's data and made some scatter plots and regressions in Excel, all of which follow the break.
Friday, July 03, 2015
Agency Practice and Agency Statutory Interpretation
I say farewell to this month of blogging at Prawfs by posing a question about judicial deference to federal agencies. The question is: What role does agency practice play in limiting an agency's interpretive discretion?
Thursday, July 02, 2015
The Grim Discrepancies of Capital Punishment
I'm sorry to bid farewell to Prawfs readers on a grim note, but recent legal developments in the aftermath of Glossip might be of interest.
Followers of the Boston Marathon Bombing trial may recall the discontent in Massachusetts over the death sentence for Dzhokhar Tsarnaev. For people living in an abolitionist state, this outcome from the federal system--while, of course, legal--was quite a shock.
Today's news bring a similar shock to Hawaii, which abolished the death penalty in 1944. As I learned during my sabbatical at University of Hawaiʻi at Mānoa, Hawaii houses more than a third of its inmates out of state, on the mainland. Hawaii's former governor, Neil Abercrombie, was elected partly based on his promise to bring the inmates home, and found that doing so was more difficult than he expected.
General Jurisdiction After Daimler
In Daimler AG v. Bauman and Goodyear v. Brown, the Supreme Court held that corporations do not subject themselves to general--or "all purpose"--jurisdiction simply by conducting continuous business in a state. Instead, a corporation's contacts with a state are only sufficient for general jurisdiction if they are so "constant and pervasive" as to render the corporation "essentially at home." But Daimler and Goodyear left open some important questions about general jurisdiction--for example, whether a corporation that registers to do business and appoints an agent for service of process in a state consents to general jurisdiction there.
The U.S. Court of Appeals for the Federal Circuit is poised to decide that question in Acorda v. Mylan and AstraZeneca v. Mylan, two patent cases coming out of the District of Delaware. As I've written about, personal jurisdiction is generally not an issue in patent infringement cases because defendants are usually subject to specific jurisdiction in the forum state (i.e., defendant sells the accused product in the forum state, and that contact gives rise to plaintiff's claim). However, Acorda and AstraZeneca are pharmaceutical patent cases governed by the Hatch-Waxman Act, so the specific jurisdiction analysis is more complicated. (For the record, I believe Mylan is subject to specific jurisdiction in Delaware in both of these cases, but the focus of this post is general jurisdiction).
The question in Acorda and AstraZeneca is whether, after Daimler, registering to do business in Delaware constitutes consent to general jurisdiction, as the Delaware Supreme Court decided long before Daimler. See Sternberg v. O'Neil, 550 A.2d 1105 (Del. 1988). The district judges split on the question; Judge Stark held in Acorda that Mylan consented to general jurisdiction, while Judge Sleet reached the opposite conclusion in AstraZeneca. I agree with Judge Stark that Daimler did not "sub silentio,  eliminate consent as a basis for jurisdiction." In other words, Daimler addressed non-consensual submission to general jurisdiction through contacts, not through consent.
The cases are currently being briefed at the Federal Circuit (which granted interlocutory review), and will likely be argued in the fall.
A Legal Black Hole Springs a Leak?
A federal district judge in Minnesota recently ruled unconstitutional significant portions of that state’s system for detaining sex offenders after they’ve served their criminal sentences. The fundamental defect, according to the judge, was that the state had made it essentially impossible for anyone to get out, as illustrated by the fact that no one ever had. The opinion only hints at the more basic questions of whether we should create such a black hole in the first place and, if so, who should we throw in.
Playing With Al Brophy's Alternative Law School Rankings - Student Centered vs. Student/Scholarship Centered Results
I have all sorts of analytic issues with law school rankings - e.g., reputation means a lot, but it really is based on feedback loops and is really, really sticky; linear rankings by number hide the fact that it's a bell curve on things like reputation, and linear differences in the middle of the pack don't mean much). But it's still interesting navel gazing, and makes a big difference (I think) in professional and academic careers.
Yesterday, Al Brophy (UNC) posted an update to his alternative to USNWR, Ranking Law Schools, 2015: Student Aptitude, Employment Outcome, Law Review Citations. He uses three variables, entering median LSAT score, employment outcomes (JD required; no school-funded jobs; no solo practitioners), and citations to the school's main law review. That latter one is interesting because it doesn't measure the scholarly influence of the school's faculty, but instead the school's brand for purposes of law professors placing their articles.
Al did two analyses, one using only the student variables (LSAT and employment - the "2 var" rank) and one using all three (the "3 var rank"). His Table 2 shows the relative 2 var and 3 var rank for each school, but his comparison are all as against USNWR. I was interested in "law review lift" versus "law review drag." So I made a list from Al's Table 2, arbitrarily taking a difference of ten or more as the cutoff.
After the jump, you can see a list of schools whose ranking with their law reviews improves by ten spots or more (law review lift) or whose ranking drops by ten spots or more when the law review gets included (law review drag). I'll leave it to you to theorize about meaning, if any.
When does labor law violate the Takings Clause?
In Horne, the Court held 8-1 that the government committed a per se taking when it required raisin growers to set aside a percentage of their crop each year for the government to take and dispose of as it wanted. It was a taking even though: the burden on raisin growers was originally part of a much larger New Deal economic policy; growers could, and often did, get something in return (namely, the net proceeds from the government’s sale of the raisins after certain deductions were taken), and; raisin farmers could have avoided the burden by simply getting out of the raisin market entirely. This got me thinking: what would happen if the Court extended its Horne Takings analysis to another area of massive New Deal economic policy – labor law. And in particular, to the collision of “right to work” statutes with the federal requirement that unions provide non-members of the bargaining unit with the same goods and services they offer to paying members. I’ve written before on just this collision, but if the Court overturns Abood in Friedrichs v. CTA we’ll have a de facto “right to work” regime for all public-sector employees, making this puzzle worth a second look.
Wednesday, July 01, 2015
A Minor, Albeit Fruitless, Suggestion for the Supreme Court's Schedule
As a Canadian, I have long felt that the way people in wintry climes deal with the weather is not so much by displaying unusual hardiness, and more by forgetting utterly each spring just how bad winter is and not remembering it until the next winter rolls around. (The same, I find now, holds true for summers in the Deep South.) I feel rather that way about the end of Term of the Supreme Court each year.
I assume that it would be possible for Congress to redraw the Court's schedule to require it to operate on a continuing basis, with the continual rolling out of decisions, including those in "big" cases, rather than ending each year with a single, overpacked issuance of "blockbuster" opinions. I'm sure I'm wrong on some of the details, but I do believe the Canadian Supreme Court's schedule works closer to that than to the American model. This scheduling change would not do away with all of the aspects of the mighty "end of Term" that disturb me--which, alas, I will not detail here, or at least not right now--but I think it would help. I am less certain that it would be within Congress's power, but it would not be a bad thing either if it required the Court to issue opinions (or to DIG the case, hold it over for reargument, or otherwise deal with it) by a date certain after oral argument in each case, putting the whole institution on something like the ten- or twelve-day deadline regime that Justice White used to insist on for his clerks as they wrote opinion drafts. It might not suit the Justices' plans for Aspen, Vienna, or wherever else they care to spend their summer, but obviously that is of little concern to anyone but them.
Both rules, I think, would mitigate, although hardly eliminate, some of the worst by-products of the Court's intersection with politics. Aside from having other matters on their plates, however, I imagine that the political branches see some benefit to them in having blockbuster releases around the same time that incumbents and challengers are on the hustings, giving them a windmill to tilt at and an occasion for fundraising. If for no other reason, I doubt that they have much incentive to propose or insist on any changes to the current schedule. Too bad!
Although I will decline for now to list the things that disturb me about the end of Term and the commentary that surrounds it, I will make one observation: I find it distressing that much of the academic commentary around the end of Term, including academic commentary written for the public, is aimed at the goal of reducing or eliminating the multiple or alternative meanings suggested by any major decision of the Court--indeed, as I observed in an article last year, at rendering some of those meanings "unutterable"--rather than proliferating them. Of course there are many good or understandable reasons that this should be so, as well as the many bad and understandable reasons for it. But I still find it distressing, and I wish that more academics, when it comes to rendering judgments on contemporary events, operated on something like the semi-apocryphal schedule suggested by Zhou Enlai.
NYU's landuse victory & the "Public Trust" Doctrine
For those of you who love either land-use law arcana or NYU, yesterday brought good news. NYU finally prevailed before the New York Court of Appeals on the question of whether it could develop four parcels of land (two pocket parks, a playground, and a dog run) that had been previously used as public spaces but that had been formally mapped as parts of West Village streets by NYC. Opponents of NYU's "2031 Plan" (an ambitious program of building extra classroom and housing space around Washington Square) argued that, because these four parcels had been used as parks by the public, they had been implicitly dedicated as parks under the "public trust" doctrine, a New York state law doctrine requiring state legislative approval for local governments can convert parkland to non-park uses.
The "public trust" doctrine, so understood, strikes me as a bizarre exception to the most basic principles of local government law, an exception that the state courts stumbled into by conflating local governments with private donors. As I suggest after the jump, it provides a nice illustration of how court-created doctrines, invented purely for policy purposes, outlive the reasons that give them birth. I might be mistaken, however, and I'd welcome any efforts to defend what strikes me as a mindless legal atavism.
Trend in Tax Law Scholarship
Hello to the PrawfsBlawg community! I am a tax law scholar new to PrawfsBlawg blogging, and will explore what I perceive to be an increasingly prominent trend in tax law scholarship. Fields of scholarship, of course, have trends. This makes sense, as scholars exist in a community of thinkers. While each individual may be creating her own scholarship, she is undoubtedly influenced by the community of thinkers of which she is a part. As the community moves in a certain direction, this move inevitably influences each scholar’s own thinking, further solidifying the trend.
This inclination toward trends is of course true in tax law scholarship, as in other fields. For quite some time, tax law scholarship (like many other fields) has been influenced by law and economics. As a result, scholars have spent many years thinking about how to make the tax system more efficient. Now, I believe that tax law scholarship seems to be undergoing a new trend, toward thinking more about tax law through the lens of administrative discretion and administrative law. As recent conferences such as the Junior Tax Scholars Workshop and Law and Society reveal, panels addressing administration of the tax law have become a mainstay at tax law conferences. Indeed, as another indication of this trend, Dan Shaviro recently noted that the NYU Tax Policy Colloquium papers this past year exhibited a somewhat unexpected shift away from economics and toward administration.
What might be explaining this trend? What administrative issues are ripe for examination? Where might this scholarship be going? As someone working on a new paper regarding administrative simplifications and the tax law (with Josh Blank), I am quite interested in these questions. I’ll spend some of my next posts exploring this increasingly prominent trend in tax law scholarship.
It is July already, which means we all have to start thinking about how far behind we are on our summer projects.
But it also means we get to welcome a new set of guests. For July, that means returning players Jeffrey Lipshaw (Suffolk) and Robin Effron (Brooklyn) and first-timers Leigh Osofsky (Miami), Catherine Smith (Denver, whose amicus on the constitutional rights of children was cited by the majority in Obergefell), and Heather Whitney (Bigelow Fellow, Chicago).
And we say goodbye and thank you to Corinna, Hadar, Seth, Aaron, and Megan, who helped maked June one of our busiest and most-visited months. They may be sticking around for a few days for a few final words.
And another reminder that we are always looking for guests, so please email Paul or me if you are interested in guesting in the coming school year.
Marriage and Other Favored Unions
So we have a fundamental right to same-sex marriage. In the most obvious way, the Court’s holding was good: if the state is going to privilege a particular association (here, marriage), it should not discriminate against persons who try to take advantage of it. Fair enough. But in another way both the government’s favored treatment of marriage and especially the majority’s decidedly not-postmodern love letter to that particular form of association (Alito’s comment that the majority’s vision of liberty “has a distinctively postmodern meaning” notwithstanding) should give us cause for pause. There is another area where the state has favored a particular type of association over others: labor unions, which have been favored over other types of worker organizations. That preference has not worked out well for workers; we would do well to think more about whether the story of state preference for marriage will turn out the same.
Flesch Reading Ease and Flesch-Kincaid Grade Level
I looked at Flesch’s own website. That's him over there. He rated average readability scores.
Consumer ads in magazines 82
Movie Screen 75
Reader's Digest 65
Sports Illustrated 63
New York Daily News 60
Atlantic Monthly 57
Wall Street Journal 43
Harvard Business Review 43
New York Times 39
New York Review of Books 35
Harvard Law Review 32
Standard auto insurance policy 10
You can have Microsoft Word calculate this for you. You need to complete the spell and grammar check. I did it to my new article. It is called “Lexical Opportunism and the Limits of Contract Theory.” The University of Cincinnati Law Review is going to publish it. Its Flesch reading ease score was 38.3. It ranked at 12th grade. That is better than the Harvard Law Review! It is about the same as the New York Times.
This blog post rates 76.8. It is at the reading level of somebody in the 4th grade. It is like reading Movie Screen or a consumer ad. But not Green Eggs and Ham. Green Eggs and Ham gets 100 in reading ease. It is 0 on the Flesch-Kincaid Grade Level.
I do so like green eggs and ham!
Thank you, thank you, Sam-I-am.
Tuesday, June 30, 2015
Saving Greece via Crowdfunding?
A peppy and refreshing story is making headlines today: a 29-year-old shoe salesman from London has started an IndieGoGo campaign to help Greece pay its 1.6-billion-Euro debt to the IMF.
For the campaign itself, click here.
I'm curious to hear what colleagues who teach European Union Law think about all this.
Strange Bedfellows #12: Closing Thoughts on The Science of Learning
This post is part of the Strange Bedfellows series.
In this guest blogging series, I’ve had fun identifying connections between canonical cases not ordinarily taught together. But is it any more than a parlor game?
For a teacher with years of familiarity with the cases, it can be invigorating to rearrange the furniture—and students always benefit from an invigorated teacher. The fear is that giddily wandering away from the orthodox doctrinal silos might create an obstacle for students who need to know and apply the orthodox solutions to problems. I’m convinced that when handled properly, exposure to these strange bedfellows actually leads to better comprehension of the orthodox approach. This is primarily because a semester with a healthy amount of unexpected (but valid) juxtapositions will inevitably take advantage of two strategies favored by researchers into the science of learning: interleaving distinct but related topics, and repeated exposures spread over time.
The silo approach (a unit on the Commerce Clause, followed by a unit on the Spending Clause, and so on) presumes that it would be unduly confusing for students to shift gears, hurting their comprehension. But studies show the opposite: interleaving the presentation of related but distinct topics results in better mastery of each topic. Learners understand the relationships among silos better, and also—perhaps unexpectedly—they understand each silo better.
The Link between Writing Style and Elite Consensus: Obergefell v. Brown
In his typically thoughtful post on Justice Kennedy's prose in Obergefell, Paul offers the following tongue-in-cheek advice to the Justices' clerks:
Before this opinion came out, I used to joke that all of Kennedy's current and former clerks should conspire together. Each should send him a copy of the Court's opinion in Brown v. Board of Education with a suggestive little note along these lines: "I reread this recently and thought of you. What a great opinion--short and simple with little grand emotion!"
Paul's point is that simplicity beats attempts at grandeur in prose when marking grand occasions, because grand words generally, if not inevitably, fail to capture the gravity of the moment.
Paul is surely correct, but I think that he underestimates the difficulty of achieving a simple style in the face of four dissenting votes. Warren could write a plain and dignified opinion because he had no need to respond to, or distract from, angry dissents with hand-waving citations to Confucius and Cicero. It is easier to achieve plain, stately prose when your colleagues are not spewing invective from the sidelines (Scalia) or offering dozens of pages of legalistic reasons crying out for response (Roberts). To offer plain, abstract statements and nothing more in the face of such opposition would seem insolent at worst and ham-handed at best.
Unanimity, not writing style, was Warren's great achievement. Warren struggled to get the votes of Stanley Reed, Fred Vinson, and Tom Clark, the Court's Southerners, precisely because he knew that the rhetorical power of the opinion hinged on its being the voice of a united Court and united national elites, North and South. In our polarized times, Kennedy did not have that option of achieving such unanimity. Our elites are divided over same-sex marriage, whereas the elites of the 1950s were solidly against Jim Crow in public schools. In the face of dissenting colleagues reflecting a dissenting public, Kennedy had to offer more than a simple manifesto of Roman simplicity. That the result is less rhetorically satisfactory and nationally unifying than Brown says more about the fractured times in which we live than about Kennedy's prowess as a writer.
Promising Signs of Foot-Voting in Communist China?
Citizens of Communist China, of course, lack the power to cast a meaningful ballot. But could they ever get a meaningful right to vote with their feet, by choosing to reside in a jurisdiction (city, town, county, district, province, etc.) that competes for their affiliation with respect for rights, decent services, low(er) pollution, and the like?
Such foot-voting has hitherto been suppressed by limits on information, limits on citizen mobility (i.e., the hukou system), and centralized control of the part cadres who run Chinese ostensibly "local" governments. But some hope-inducing cracks are beginning to show. The top two Chinese universities, Peking and Tsinghua, are accusing each other of poaching each other’s students with competitive offers of financial aid. Students who take the gaokao tend to be well-informed about China’s elite schools, so, if the Party leaders of rival universities fight with each other for recruits, then students’ foot-voting for the rivals could be a meaningful move towards – well, not democracy, but something better than the monopolistic oligarchy now governing the country.
An unusual role
During Monday's SCOTUSBlog opinion-announcement LiveBlog, a reader asked about how often Justice Thomas assigns opinions. And I realized that the answer is "not very often." Given seniority and the ideological/jurisprudential position of the various justices, Thomas only assigns the opinion if he is in the majority and the Chief, Scalia, and Kennedy (the three justices senior to him) are not. And that just does not happen very often. Thomas is in agreement (at least as to judgment) with the Chief 69% of the time, with Scalia 77 % of the time, and Kennedy 65 % of the time. And then he assigns only if he also has four of the justices who are junior to him (with whom, other than Alito, he agrees far less often) going along with him.
And I then realized that one of his rare assignments was Walker v. SCV. And he gave the opinion to Breyer, which is an interesting move. Ron Collins argued that Thomas's vote in this case may have been influenced by his unique perception of a racist symbol such as the Confederate Flag and how the First Amendment should treat such symbols. (Dahlia Lithwick and Garrett Epps made a similar point about Walker in a podcast and Epps wrote about it in the Atlantic). If so, one might have expected Thomas to keep the case for himself, precisely so he could talk about that unique symbol and how it might have affected the First Amendment analysis. Or we might have expected him to keep the case simply because he so rarely gets to assign.
Anyway, another unique feature of Walker, a case which could have some long-ranging effects.
Some movement in Alabama
Monday, June 29, 2015
So how are you doing after Glossip?
This is the question I’ve gotten all day long. I feel like a widow at a funeral, with well-wishers stopping by to pay their respects and offer condolences. Thank God I wore black.
For the record, my take on Glossip is that the Justices upheld the use of midazolam in executions because they wanted to. This shouldn’t come as new news (after all, this is how many, if not most Supreme Court decisions are made) but let’s just take a moment to call a spade a spade. The law didn’t make them do it. The facts didn’t make them do it. Indeed, both cut the other way, as Sotomayor’s dissent shows in painstaking detail.
For those who want the Cliff’s Notes version of this 127-page decision, the ruling in Glossip had two bases: (1) the district court didn’t err in finding that midazolam was likely to render a person insensate to pain; and (2) in any event, the petitioners didn’t meet their burden of showing a known and available alternative to midazolam.
The Most Dangerous Precedent (or, A Silly Extravagance)
In today’s concurrence to Glossip v. Gross, Justice Scalia identifies a precedent that “has caused more mischief to our jurisprudence, to our federal system, and to our society than any other that comes to mind.”
The villain is Trop v. Dulles, 356 U.S. 86 (1958), which held that it was unconstitutional to strip a native-born American of his 14th-Amendment-provided citizenship as punishment for briefly deserting his military post while serving in Morocco in 1944. (“He had been gone less than a day and had willingly surrendered to an officer on an Army vehicle while he was walking back towards his base.”) The mischief arises from a passage frequently quoted from Chief Justice Warren’s plurality to the effect that the Cruel and Unusual Punishment Clause “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
Let’s leave aside that the Trop language is a tolerable paraphrase of Weems v. United States, 217 U.S. 349 (1910), which rejected an originalist approach to the Eighth Amendment to hold that fifteen years of hard labor for falsifying a public document was unconstitutional. Has Trop caused more mischief “to our society” than any other case that Justice Scalia can think of? Even if you disagree with the Trop language, at worst it means that a handful of persons can successfully challenge an extraordinary criminal sentence, and that a larger handful can make colorable but unsuccessful challenges to theirs. This is worse for society than any other case that the justice has decried? Than the decisions mandating a right to abortion, to sodomy, to same-sex marriage, or to coeducation at the Virginia Military Institute? No, society is most harmed by jurisprudence that prevents the government from getting as close as it possibly can to the very edge of cruel and unusual punishment.
In a post from last week, I argued that some fire-breathing dissents can be worth teaching in an introductory Con Law class. But now that Justice Scalia has declared, in his Obergefell dissent, that one should expect “separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression,” I need to add a note of caution. A silly extravagance like the overblown attack on Trop v. Dulles can teach students lessons that I would prefer not to impart: that it’s more important to sound good than to be correct (long live truthiness); that consistency is the hobgoblin of small minds; that picking your battles is for suckers; and that once you’ve risen to a prominent place in your profession, nobody can stop you from phoning it in. These lessons may have bits of truth to them, but I’d rather focus on others.
(Apologies for shooting fish in a barrel, but since we're talking about the quality of legal prose...)
Two thoughts on Paul's post about the prose in Justice Kennedy's Obergefell opinion:
1) If you had asked me as of 9:57 a.m. Friday, I would have predicted the vote would be 6-3, with the Chief joining the majority. And at least part of the reason I thought he would join the majority was to keep the opinion away from Kennedy--either by writing it himself or giving it to Justice Ginsburg--so as to get a narrower, less flowery, clearer, likely more Equal Protection focus.
2) Judge Posner's opinion, while a blast to read (at least if you agree with his conclusions), was criticized in some circles as similarly not placing itself within the ordinary (he uses "conventional") doctrinal framework. He did not commit to a standard of review, not resolving the fundamental rights questions, using cost-benefit balancing analysis that was neither heightened nor strict scrutiny, while insisting that the difference was semantic more than substantive. Posner's opinion is noteworthy for the way it tears apart (and makes fun of) the state's arguments in support of SSM bans. But Posner departs from the typical judicial style as much as Kennedy does.
Standing in the Arizona Redistricting Case: Some Initial Observations
There's much to be said about standing in Arizona State Legislature v. Arizona Independent Redistricting Commission. The Arizona Legislature, the Court held, had Article III standing to sue to remedy the "deprivation" of "its alleged prerogative to initiate redistricting."
Justice Ginsburg's standing decision for the Court is an important precedent for "an institutional plaintiff asserting an institutional injury." Writing in dissent, Justice Scalia would have held that Article III courts have no business deciding "suits between units of government regarding their legitimate powers." Coleman v. Miller, which seems to the contrary, was, in Justice Scalia's view, "a peculiar case that may well stand for nothing."
Now that Coleman's peculiar no longer, what's next for institutional standing? I'll offer some initial observations.
Southern California Law Review on "Religious Acommodation in the Age of Civil Rights"
Not that it would be of much interest to anyone. I mean, it's not like it's been in the news much lately. But I commend to readers the new issue of the Southern California Law Review, which contains a number of interesting articles, of distinctly varied views, on this topic, stemming from a conference at Harvard Law School last year. A link to the Law Review page is here. Alas, the articles are kind of interspersed with other recent material in the journal, but the titles are pretty clear. I haven't read all the articles in it yet, but I can at least recommend those I have read, by Rick Garnett, John Inazu, Andy Koppelman, Steve Smith, and Mike Helfand. Other papers from the conference, published in the Harvard Journal of Law and Gender, can be found here. (I don't know how they determined which article would go in which journal.) Again, I have not read everything in that issue, but can highly recommend the articles by Mark Tushnet and Tom Berg.
A propos of John Inazu's article, I will just note that I think both Hobby Lobby and the next storm of religious accommodation cases and controversies make the question of pluralism an especially important one. In particular, I think it is the best source of ideas for those of us who continue to believe that there is an important role for religious accommodation (without prejudging here the limits of that accommodation), and who may want to find new language and arguments both to explain that view and to offer an alternative to some of the recent memes that have gained some popularity around these issues. It's not as if nothing has been written on the subject of pluralism before, but I think the subject is due to undergo something of a revival. I hope to write in that vein in the next little while, and I know John has a lot more to say on the subject.
A Hallmark of an Opinion: Justice Kennedy's Writing Style and How Much--or Little--it Matters
Although I think I disagree with him on some aspects of his post, I very much appreciate that Richard's post on Justice Kennedy's opinion in Obergefell doesn't simply line up on one side or the other of the usual "tastes great"/"less filling" debate on Kennedy as writer (or editor--I don't know how much Kennedy writes versus edits, although in the "big cases" the chambers voice is quite consistent). My sense is that Richard is positively disposed as far as the writing in Obergefell is concerned, whereas I opt for the "less filling" side. But Richard's post is mostly concerned with saying some more interesting things about the opinion and judicial opinion writing more generally. Let me try--mostly--to do the same thing here. I want to ask whether and how much it matters that Kennedy tried to write an opinion for "the people" instead of a more specialized audience. I conclude that the answer is: not much. An opinion on a deeply personal hot-button issue of this sort will attract attention regardless of how it is written, and a ruling that one favors on such an issue will receive praise regardless of how poorly written it is. Kennedy's continual striving after deep emotional affect in opinions of this kind is not only poorly accomplished, but mostly needless.
Texas responds to Obergefell
Texas Attorney General Ken Paxton has issued a non-binding opinion letter about implementation of Obergefell. Paxton concludes that 1) county clerks and their employees retain religious freedoms that may allow them to opt-out of issuing licenses to same-sex couples, but it will be fact-dependent and 2) State judges and county justices of the peace may similarly seek an opt-out, depending on the facts. The county clerk in Bell County followed the letter to announce that her office would issue licenses to same-sex couples, with individual employees able to seek an opt-out. Josh Blackman has detailed thoughts; Josh argues that this becomes a matter of staffing, rising to a constitutional problem only if no one in the office is willing to issue licenses to same-sex couples or if there are excessive delays or administrative difficulties.
I believe Josh basically has it right, although I would offer a few caveats.
U.S. Hostage Policy and the Need for a "Czar"
Yesterday, I attended a memorial service celebrating the life of Warren Weinstein, the father of a dear friend of mine. As was widely reported, Warren was an aid worker who was killed in a U.S. drone strike last January after being kidnapped in Pakistan and held captive by al Qaeda for more than three years. Many people spoke at the memorial about how remarkable Warren was--a true humanitarian, a great intellectual, a devoted family man, a generous mentor, and a loyal friend. Warren will be sorely missed by those who knew, loved, and respected him.
Barbara Mikulski, the senior U.S. Senator from Maryland, was among the speakers at the service. Sen. Mikulski, together with Sen. Cardin (Md.) and Rep. Delaney (Md.), have worked closely with the Weinstein family through this terrible ordeal. Sen. Mikulski discussed the policy changes that have come about in part because of Warren's tragic death. As discussed here and here, President Obama announced a policy overhaul last week that (1) authorizes the government, families, and third parties to communicate with captors; (2) ensures that families who pay ransoms will not face criminal charges; and (3) reorganizes the government's hostage recovery efforts.
While a step in the right direction, Sen. Mikulski believes that more should be done for the families of hostages. To that end, legislation has been proposed in both the House and Senate to create a "hostage czar" charged with coordinating and directing governmental efforts to secure the release of U.S. hostages held by terrorist groups. For families like the Weinsteins, knowing that someone in the government is waking up every day focused exclusively on bringing their loved ones home would go a long way.
Obergefell in Haiku
At McSweeney's, Daniela Lapidous has helpfully condensed each of the opinions in Obergefell to a haiku. Chief Justice Roberts, for example:
I support you all
No, really, I do, but this
Isn't our problem
For the rest, see The SCOTUS Marriage Decision in Haiku. (Hat tip to Leah Lee.)
Strange Bedfellows #11: Subsequent History Surprises
This post is part of the Strange Bedfellows series.
Most Constitutional Law classes discuss how the system can correct its mistakes. If one branch or level of government errs, others can respond, pushing the substance of the law to a new equilibrium. Teaching the subsequent history of anti-canonical cases is one good way to demonstrate this point. Constitutional amendments erased Dred Scott and Pollock, later court decisions overruled Lochner, the Pregnancy Discrimination Act made Geduldig largely irrelevant, and the Georgia Supreme Court held that the sodomy statute upheld in Bowers v. Hardwick violated the state constitution. To show how SCOTUS does not always have the last word, my casebook includes short units called “Flash-Forwards” that tell the rest of the story (or at least some of it). Once students are attuned to possibilities outside the courtroom, they can have a good classroom discussion about what a concerned citizen, legislator, or executive branch official might do in response to a troubling court decision.
It is less common to spend time on the subsequent history of cases that are canonical—the ones considered good law, never overruled. As usually presented in casebooks, Cooper v. Aaron (1958), Palmore v. Sidoti (1984) and United States v. Carolene Products (1938) are all cases where the Court got things right, guiding the system to a proper equilibrium. But in each of these cases, the victory promised in the canonical opinion played out differently on the ground, with the results for the prevailing party being less than advertised. The subsequent histories of these canonical cases could in theory be as deserving of class time as the subsequent histories of anti-canonical cases—the basis for a discussion about the value of a court victory.
But I confess that I have not had the stomach to tell my students about some of them. Which of these would you put into your casebooks, and which stories would you save for the teacher’s manual?
The Machinery of Death Lives to Kill Another Day
The Supreme Court has just issued its decision in Glossip v. Gross, a petition on behalf of Oklahoma inmates along the familiar lines of tinkering with the machinery of death. After the Court found the three-drug protocol constitutional in Baze v. Rees, many executions stopped because the first drug in the trio became scarce (partly because European countries, disgusted with our retention of the death penalty, stopped exporting it.) As a solution to the problem of not being able to kill people, Oklahoma has introduced a substitute, the anesthetic Midazolam. This morning's decision sides 5:4 with the state, finding that the inmates have not proven that using Midazolam would violate the Eighth Amendment, nor shown an alternative method.
I hope that Corinna, who has blogged knowledgeably and extensively about various aspects of the decision, will chime in soon enough with interesting commentary. I just want to add a few words about the futility of this entire litigation avenue, which is based on perpetuating a farce for symbolic reasons.
As you, gentle readers, probably already know, the reason death row inmates and their attorneys have to resort to the "tinkering" line of arguments stems from the post-Gregg convention that the death penalty is constitutional in principle, and therefore there must be a constitutional way to administer it. The problem is that, in the search for such a way, we have tried and abandoned several methods. As Austin Sarat shows us in Gruesome Spectacles, there really is no good way to kill people: approximately 3% of all executions are botched. The line between an execution that "went well" and one that didn't becomes remarkably blurry with the modern, pseudomedical ways to kill people. Still, there are enough documented lethal injection cases in which things did not go as planned to remind us that, no matter how clean and medical they appear, all of these methods will essentially fail to achieve the impossible distinction between death and suffering.
But moreover, can we really say that an execution that "went as planned" is a victory? I remember telling students, who argued a version of Glossip last spring in moot court, that using the sentence "the execution was successful" was grating on my nerves (and surely of those of others who are uncomfortable with state-sanctioned killings.) You can't divorce death from suffering: death is suffering. And it is clinging to the farce that the two are separable that makes court decisions on this matter farcical as well. Today's decision complains about "activists" that have made the drug scarce--as if it is their obligation to mitigate the harm. It also finds that the inmates have not offered a better solution to the state, as if they should wrap the executioner's ax with velvet: "here, this might be more comfortable for me."
What would happen if we let go of the assertion that there must be a way to kill people? If we let go of incessant litigation about the technologies of death? If we let go of the immensely costly post-conviction mechanism in which death row attorneys, completely out of options that invoke a true fundamental conversations about the heart of the matter, have to juggle chemicals and contraptions arguing that no, this one ain't good enough, either?
(I should say: I don't fault litigators one bit for engaging in this chatter. You do what you can with what you have to zealously defend your client. The abolitionist movement contains multitudes, and it is okay to fight for one's client's life by any means necessary while others continue to tackle the death penalty itself.)
The tenor of today's decision, which clings to the moral imperative to kill people in the face of medical and scientific evidence that doing so is truly not possible without flukes and silences the truth behind the farce, that death and suffering are inseparable regardless of whether the executions is regarded as technically "botched", further supports my conclusion from the last couple of years of this, namely, that the death penalty will not, itself, be executed. It will die a slow, costly death from a chronic disease--much like the inmates at San Quentin.
Sunday, June 28, 2015
Rhetoric and Reason in Obergefell
It’s not the most important thing about Obergefell—or even the second most important—but it’s noteworthy that rhetoric played a remarkably overt role in the Court’s opinions, particularly in the sharp criticisms leveled by the dissenting justices. I offer a few thoughts below. By way of disclosure, several years ago I clerked for Justice Kennedy, author of the Obergefell majority.
Is the question moot?
Immediately following Obergefell, Nebraska moved in the Eighth Circuit to lift the stay of a district court injunction invalidating the state's ban. In its motion, Nebraska argued that the case is moot because the Attorney General has certified that he will comply with Obergefell and no longer enforce the Nebraska ban. The motion cites to cases (from the Eighth and Seventh Circuits) holding moot challenges to laws that had been declared unconstitutional in a separate case by a controlling court. It also argues that this case is not capable-of-repetition-yet-evading-review, because the state's promise to comply with Obergefell means no one in Nebraska will be denied a license.
This argument seems wrong to me, at least as the state presents it. The government's promise not to enforce a law is generally not sufficient to moot a case (without implicating C/R/Y/E/R). A state can moot a case by repealing a state law, but Nebraska has not done so (and likely will not). The cases Nebraska cites are not on point, because Nebraska's marriage ban has not been declared unconstitutional. The bans in other states have been declared unconstitutional in a decision that, as binding precedent, likely will result in Nebraska's ban being declared unconstitutional. But that is different than a declaration as to Nebraska's law.
I did find one case (not cited by Nebraska), Christian Coalition of Alabama v. Cole (11th Cir. 2004), holding that a constitutional challenge to state judicial canons was moot as a result of precedent from a different state. There, the state judicial ethics commission represented that it would not enforce a canon in light of SCOTUS precedent declaring invalid a similar judicial canon from Minnesota, mooting a challenge because there was no threat of any judicial candidate being sanctioned. This case suggests that Nebraska is correct. Moreover, in asking whether voluntary cessation has mooted the case, courts link the possibility of a renewed enforcement back to standing. Given Obergefell and Nebraska's commitment to abiding by it, a new couple initiating a challenge to its ban likely would be held to lack standing (unless actually denied a license). In the absence of any indication that the plaintiffs in the pending action will be denied a license because of the AG's representation, perhaps the case has indeed become moot.
Sentencing, Vagueness, and Facial Invalidation in Johnson v. United States
In a rare decision that will earn plaudits from both the defense bar and many government attorneys, Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act is unconstitutionally vague. Enjoying a kind of personal vindication, Justice Scalia wrote for the six-justice majority and so got to turn several of his prior dissenting opinions into the holding of the Court. By contrast, Justices Kennedy and Thomas would have found simply that the statute didn’t apply to this defendant. Finally, Justice Alito dissented on grounds partly endorsed by Kennedy and Thomas.
I’ve covered Johnson before. In short, I’ve basically argued that the Court’s repeated interactions with the residual clause are what rendered it vague. That explains why, for nearly 30 years, the allegedly vague residual clause has been able to function on such a massive scale, including during numerous trips to the Court. Only recently has there been any serious interest in finding the residual clause to be vague, for only after the clause had generated repeated judicial opinions did that vagueness come to exist.
So that means that I tend to agree with important features of both the majority and the dissent in Johnson: the majority is right that the residual clause is vague today, but the dissent is right that the vagueness is the judiciary’s own doing. This raises the question: what to do about it?
Saturday, June 27, 2015
More on SSM in Alabama
According to WSJ, Alabama Attorney General Luther Strange (who remains under a district court injunction not to enforce the state ban), announced "While I do not agree with the opinion of the majority of the justices in their decision, I acknowledge that the U.S. Supreme Court’s ruling is now the law of the land." Although the Association of County Commissions yesterday recommended that probate judges wait for further word from either SCoA or Judge Granade, probate judges in many parts of the state declined to listen, including in Birmingham and Mobile. Four counties have refused to issue licenses to same-sex couples and eight are not issuing licenses at all.
Always read beyond the headline
Admit it. How many of you see this headline--Alabama judge: Marriage ruling worse than segregation decision--and thought Roy Moore was talking about Brown?
More of what happens next (Updated)
A follow up to this post and more details:
1) According to this story, Roy Moore is being . . . Roy Moore. He said Obergefell was worse than Plessy; continued to insist that there is no such thing as same-sex marriage in the Constitution; and he "can't say" whether same-sex marriages will happen in the state. This story shows Moore going even further around the bend, now accompanied by his wife, a conservative activist: Moore insists the Court not only lacked authority to issue the ruling, but that Ginsburg and Kagan should have recused, calling into question the validity of the decision. There is a good chance that someone in Alabama is going to be held in contempt.
2) But the same story indicates that Alabama Governor Robert Bentley said he disagrees with the decision, but he would "uphold the law of the nation and this is now the law."
Critical Theory and Ideological Drift: Normal, Mutual, and Potentially Productive
It takes a while--a very long while, sometimes--for serious analyses of a new Supreme Court opinion on a socially contested issue, let alone one often cast as the contested issue of our times, to shake out and emerge from the welter.
There is a kind of common pattern to events. First comes the unstinting praise, the joy and relief, the casual forgetting of inconvenient predictions--and, on the other side, outrage, defiance, scorn, calls for constitutional amendment, the campaign posturing, and so on. Perhaps a few voices emerge, a couple centrist and a couple radical, with serious critiques, but they are rare and rarely heard. Certainly, given the usual divvying up of sources in news stories between the representatives of liberal conventional wisdom and those of conservative conventional wisdom, those views rarely gain any hearing outside limited niches. People who support the outcome but question some of the reasoning, or much of the writing, are also often understandably wary of speaking too early. They do not want to spoil the moment, or be misunderstood as not supporting the cause. They also fear professional obloquy for going against the consensus; they know that in the academy as elsewhere, one is generally better off being conventional or silent on such matters rather than taking the risk of unconventionality. Or--somewhat like me--they think of profound wrongs and injustices done to the group served by the opinion, weigh the little wrongs of the opinion against the greater good gained and joy felt, and are reluctant to seem like spoilsports, even though they know that this is surely not a sound academic consideration. A conventional wisdom emerges and solidifies. The discussion that follows later may be more credible and thoughtful, but now faces an uphill battle.
Friday, June 26, 2015
What happens next?
I still have not had a chance to read Obergefell, but I wanted to throw together a quick post on what is happening in the decision's immediate aftermath. This Slate piece collects responses from governors and AG's in several states; in ten states, the executives announced that they would immediately implement the decision and begin issuing licenses, which happened almost this morning and afternoon in a few places (includes photos).
Other states appear ready to at least demand that the process run its course. As a commenter on my earlier post noted, Mississippi's A/G, Jim Hood, told circuit clerks not to issue licenses; he said "the Supreme Court's decision is not immediately effective in Mississippi until the Fifth Circuit lifts the stay" on a district court injunction, which Hood suggested might take longer than many expect. This is inartfully stated, but actually correct. The Court's actual mandate is not directly binding on anyone in Mississippi with respect to anyone in Mississippi, who were not parties to the case. Hood overstates it, however, in that any new couple could initiate a new lawsuit against Hood and a circuit clerk and obtain an injunction in light of Obergefell as binding precedent. In any event, it should not take long--the attorney for the plaintiffs has already indicated his plan to file a motion to lift the Fifth Circuit stay, which should be immediately granted.
And what about Alabama, my favorite bastion of procedural nuance? No official word yet. The probate judge in Pike County announced that he would no longer issue marriage licenses to anyone, insisting that the state law empowering probate judges to issue licenses uses the word "may," giving the judge the discretion whether to issue licenses (so long as he does not discriminate). The Alabama Association of County Commissions recommended that probate judges accept applications but delay issuing licenses until resolution of both the Supreme Court mandamus and the stayed federal injunction. I expect the federal plaintiffs to quickly lift ask Judge Granade to lift her stay of the injunction, against a defendant class of all probate judges in favor of a plaintiff class of all same-sex couples; doing so will immediately bind all probate judges to issue licenses on equal terms to all couples. And I imagine someone will ask the Supreme Court of Alabama to vacate its mandamus, since its reasoning has been superseded and cannot stand after Obergefell. And if the court declines, look for someone to ask SCOTUS to stay the injunction, if not to summarily reverse it.
Two Cheers for Obergefell
Today’s decision in Obergefell raises an interesting conflict between constitutional substance and constitutional process – or, put another way, the conflict between recognizing that a change is due and bringing about that change in the right (meaning democratic) way. On the whole, as I explain after the jump, I regard Obergefell as a minor setback for gay and lesbian equality, but probably an inevitable and necessary one.
Obergefell and the Future of Polyamorous Marriage
In The Future of Polyamorous Marriage, Gwyn Leachman and I examined the complicated relationship between the same sex marriage struggle and the future struggles of underserved sexual communities. As we argue there, the "spillover" effect of rights on subsequent movements can be ambiguous: on one hand, it opens the door for future arguments as an incremental step on the path to change, and on the other hand, it may generate difficulties based on how movements situate themselves.
The oral arguments in U.S. v. Windsor were a case in point: Ted Olson argued there that gay and poly marriage differ in that the first one targets status and the second, behavior. The distinction struck us as very unconvincing, but when we looked at the legal doctrines, we were able to point out possible paths and obstacles for poly activists.
Today's decision in Obergefell v. Hodges adds an interesting data point--not so much in the opinion of the court, but rather in the Chief Justice's dissent. As he argues, "It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage".
To which many advocates of legal recognition for poly families might answer, "you say it like it's a bad thing". But is Roberts right to point out that the entire decision applies to poly families with equal force? I suspect that antagonists of poly marriage will argue that the fundamental right to marry differs from the arguably non-fundamental right to marry more than one person at a time. And given Olson's argument in Windsor, I expect some of these antagonists to be gay marriage proponents (though in the aftermath of their total victory, they may be less afraid of what they might perceive as an unsavory association). For reasons that Gwyn and I point in our article, there may be snags in the legal arguments about equal protection, too--whether it's made on the basis of sex or sexual identity. I don't think I'll see poly marriage in my lifetime, but I wonder if I'll at least witness some forms of legal recognition extended to poly partners. Thoughts?
Chevron's Magical Disappearing Act?
I want to add a few words to Adam Zimmerman's post here on Chevron and King v. Burwell and Chris Walker's post at Yale JREG on the same topic. There's something that yesterday's blockbuster cases share: Neither one relies on the Chevron doctrine to uphold the government's statutory interpretation.
As Adam and Chris discuss, Chevron made a brief appearance in King when the Court explained it did not apply because the interpretive question had "deep 'economic and political significance.'" In Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., yesterday's decision interpreting the Fair Housing Act, the Court didn't apply Chevron and didn't even explain why. And that's surprising because, as I discussed here yesterday, HUD had promulgated a rule addressing the interpretive question before the Court.
What accounts for Chevron's magical disappearing act in Texas Department?
Johnson v. U.S.: Has SCOTUS Lost Its Appetite for Sentencing Enhancements and Risk?
Amidst the good news that are not this blog's topic, about which you can read here and here, the Supreme Court also decided an important sentencing case, Johnson v. U.S.
The case involves the federal Armed Career Criminal Act, a habitual offender law that provides a sentencing enhancement upon committing the third violent offense. The residual clause of the law defines "violent offense" as any offense that “involves conduct that presents a serious potential risk of physical injury to another.”
In Johnson's case, the sentence was enhanced because his third offense was possession of a firearm (Johnson is a felon, and the firearm in question was a sawed-off shotgun. If you want more background, Johnson was being monitored for belonging to a white supremacist organization and being a source of concern re terrorism, and confessed to some pretty scary plans in that regard--so you can be sure that this decision is not about his niceness).
The initial question put before the court was whether possession of a firearm fits the definition in the residual clause, but the Supreme Court asked the parties to brief on a broader issue: the definition of "violent offense" itself. Today, the Court sided 8-1 with Johnson, finding that the definition of "violent offense" was too vague and did not provide sufficient warning about conduct, and framing its argument in a way that bodes well for those of us concerned about the "new penology", the language of risk, and the retrenchment of punitive opinion against violent offenders.
For those of you who are inexplicably here rather than at SCOTUBlog, here is the 103-page opinion in Obergefell. Kennedy for five; dissents from each of the Chief, Scalia, Thomas, and Alito.
Thursday, June 25, 2015
“An Antidemocratic and Largely Foreign Conspiracy”
In my last post, which considered whether abolitionist sentiment should matter to the Justices’ decision-making in Glossip, I noted that part of that sentiment (a good deal of it, actually) is coming from nation-states that have long been abolitionist. Here I’ll expand on that theme, and connect it up with the title of my post, which unfortunately comes from one of the amicus briefs in Glossip.
As most people know, Europe is almost entirely abolitionist (indeed, in all of Europe, only Belarus still has the death penalty, and it’s so close to Moscow that it’s hard to think of it as Europe). And Europe isn’t abolitionist-light—it’s as committed to abolitionism as the United States is to its death penalty. Abolishing the death penalty is a requirement for EU membership, and in 1998, the EU made worldwide abolition a centerpiece of its human rights agenda, declaring that it would “work towards universal abolition of the death penalty as a strongly held policy view agreed by all EU member states.”
These guys are not fooling around. It was the EU that sponsored UN Resolution 62/149, adopted by the UN General Assembly in 2007, which declared that “the death penalty undermines human dignity” and called for all nation-states to institute a moratorium as a first step towards abolition. The vote was 104 nations in favor, 54 against, with the United States leading the dissenters.
The point here is that European abolitionism has been around for a long time, a lot longer than the current snafu over lethal injection drugs, and these countries are Dixie Chicks serious about abolishing the death penalty worldwide. So when the market for thiopental experienced upstream supply problems, and when thiopental’s producer (Hospira) moved its production plant from North Carolina to Italy for reasons that had nothing to do with any of this, is it any wonder that Italy, then Great Britain, and then the EU as a whole, saw an opportunity, and seized it, to put the damper on death penalty drugs?
For decades, EU governments had tried, and largely come up short, to influence the United States with their anti-death penalty views. To borrow a line from my paper with Jim Gibson, it turns out that the best way for European governments to export their abolitionist norms was to stop exporting their drugs.
What’s wrong with that?
Chevron After King v. Burwell
As Richard already observed today, in King v. Burwell, the Court upheld the government's interpretation of the Affordable Care Act to allow people to get subsidies on healthcare exchanges created by the federal government. Chris Walker has a nice post at JREG discussing the case.
Fair Housing and the Federal Executive
Today's decision in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc. "acknowledges the Fair Housing Act's continuing role in moving the Nation toward a more integrated society." That requires, the Court held in an opinion by Justice Kennedy, recognizing disparate impact liability under the FHA.
The Court thus joined the Secretary of Housing and Urban Development, who had already interpreted the FHA to encompass disparate impact. HUD's regulation, as Justice Kennedy noted, had influenced the court of appeals in Texas Department. Going forward HUD will continue to play a role in shaping disparate impact law under the FHA. All of which raises a question I've written about before: What role does the Executive Branch have in shaping property lawmaking?
The question may seem a strange one. We don't usually think of the federal Executive when we think about property lawmaking. But we should. Why? Look no farther than the three opinions in Texas Department. Each acknowledges the Executive's role and has a different view of it.
I think the Court got it right in King v. Burwell, but I don't have anything to say on the merits. But I do want to briefly comment on how the majority explained its cert grant and some underlying procedure in the case.
On p. 7, at the end of Part I, Chief Justice Roberts, having summarized the decision of the lower court (the Fourth Circuit), says "[t]he same day that the Fourth Circuit issued its decision, the Court of Appeals for the District of Columbia [reached the opposite conclusion in a different case." The implication is that the Court granted cert for its typical reason--to resolve this circuit split. Sup. Ct. R. 10(a).
But that description is incomplete and arguably inaccurate. Two months after both circuit panels issued their opinions and two months before the Court granted cert in King, the en banc D.C. Circuit vacated that panel decision and granted rehearing en banc. As a result, at the time the Court conferenced and granted cert in King (in November), there was no circuit split, only one court of appeals decision interpreting the statute to allow for subsidies on all exchanges. In fact, the government used this to argue against cert in King, an argument the Court obviously rejected in taking the case.* The majority opinion does not even drop a footnote to give the bigger picture.
[*] Once SCOTUS granted cert in King, the D.C. Circuit held the Halbig appeal in abeyance, pending King.
Is Judicial Restraint More of a Method, or an Effect?
Today’s King v. Burwell face-off between Chief Justice Roberts and Justice Scalia illustrates a difference in emphasis between these two mavens of judicial restraint.
For Scalia, judicial restraint primarily means adherence to a neutral method of decision-making. If courts scrupulously follow that proper interpretive method, then they are engaged in judicial restraint—no matter the practical consequences.
For the Chief Justice, by contrast, judicial restraint is more about the destination than the journey. If court rulings are having the practical effect of demolishing plans or sowing confusion, then they are unrestrained—no matter their method.
Singletons in film
Much deserved praise is being heaped on the new Pixar film Inside Out, which is setting all sorts of box-office records and gaining all sorts of critical acclaim. It has earned praise for (finally) featuring a lead female character (arguably 3 of them) who is not a princess, who likes sports, and who seems like a typical kid. It is a comprehensible visualization of how emotions and the brain genuinely work--the producers consulted with neuroscientists, psychologists, and other smart people, who have talked about what the film captures. And it makes parents cry about their children (especially daughters) growing up.
I want to mention one side point, which is not central to the story or its consequences, but still worth noting: Riley, the 11-year-old lead character, in whose head the action takes place, has no siblings (I hate the term "only child" and find "singleton" better, if essentializing). And this is presented in the film without remark or commentary. This is a story about a "typical" preadolescent girl who is happy, good natured, well-adjusted, close with her parents, has friends--all traits not associated with the stereotype of the spoiled or lonely singleton (all of which have been debunked, but which still carry cultural resonance). What she experiences in the film--as she becomes moody and isolated--is depicted as the ordinary work of ordinary emotions and growing up. And I was happy to see that the filmmakers did not feel the need to throw in an annoying younger brother, either for comic relief or to create a "complete" family.
Parents and one child can a family, with a happy child, make. I just like to see pop culture catch up with that idea. Or better yet--not even have to mention it.
Strange Bedfellows #10: Why So Tense?
This post is part of the Strange Bedfellows series.
A few blockbuster cases remain for SCOTUS to decide this term, and given the current make-up of the Court, this means a high likelihood of fire-breathing dissents. Teachers—and particularly casebook authors—need to decide which lessons, if any, to draw from these dissenting opinions. For myself, I always like to spend some time on at least a few throughout the semester, for what they teach us about the substance of the law and about the art of advocacy.
The substantive lesson comes in large part from considering which cases provoke verbal fireworks and which do not. At the outset, constitutional law is more likely than other legal subjects to provoke heat, and within the Con Law canon some topics provoke more flame wars than others. The flamer is trying to signal that something important is happening, so a suitable question for the class can be “why are they so upset?” This is especially valuable when a case that seemingly involves low stakes provokes what seems like a rhetorical overreaction, as in Caperton v. Massey Coal (2010) (judicial recusal) or BMW of North America v. Gore (1996) (punitive damages).
The advocacy lesson is equally important. The rhetoric in court opinions is worth teaching to law students not as literary criticism for its own sake, but as a model of lawyerly writing. Since we tend not to assign actual briefs to our students written by lawyers, their main exposure to persuasive legal writing takes the form of opinions written by the lawyers on the bench we call judges. When an opinion exhibits a style that deviates from the mean, it can be a good opportunity to discuss whether it was effective, and whether students should pursue a similar tone in their own submissions. My students may just be telling me what I want to hear, but they usually say that bluster turns them off—even though really good bluster can be pretty exciting. Good opinions for this kind of discussion include Justice Scalia’s dissents in Planned Parenthood v. Casey (1993) and US v. Virginia (1996), and Justice Blackmun’s self-involved hand-wringing in Casey and DeShaney v. Winnebago County (1989).
As a casebook author, I faced the question is how much to leave in. For Caperton (discussed in an earlier post in this series), I retained almost all of the dissents of Chief Justice Roberts and Justice Scalia, largely because both strive for Biblical stature in way that skeptics might consider borderline clownish. To demonstrate that the majority's constitutional rule (mandating judicial recusal when there is an objectively perceivable probability of bias) would be unworkable, Chief Justice Roberts posed a list of forty questions that would need to be resolved in future cases. Think forty days and forty nights, or forty years in the wilderness. Most casebooks seem to edit down the list; you get the point pretty quickly. But I decided to keep the whole thing (four pages worth)—because it is revealing to ask students during class how many of them actually read all forty. The honest ones will admit they skipped it, just as I did the first several times I read the opinion. The overblown Roberts dissent presents a good opportunity to discuss when less is more.
As for Justice Scalia’s Talmud-quoting dissent in Caperton, I kept it largely for his last sentences, which were these: “The relevant question, however, is whether we do more good than harm by seeking to correct [state courts] through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.” (emphasis added) Anytime somebody tells you the answer to a contested legal question is obvious, or that a question answers itself (as in the inexplicable Goesaert v. Cleary (1948), discussed in an earlier post), it’s time to reach for your revolver.