Eugene Volokh's Blog, page 2576

Andy Koppelman is Disgusting

(Randy Barnett)

First, Northwestern law professor Andrew Koppelman publishes a paper entitled Why Jack Balkin is Disgusting, simply because Balkin has embraced originalism, which Koppelman finds revolting.  Then, on Salon, he describes the constitutional arguments seemingly being accepted by the Justices on Tuesday to be "silly."   Now this.  Seriously?

Lawyers Who Voted for Obama Want his Health Care Law to be Upheld

(David Bernstein)

That's the gist of this L.A. Times front page article by David Savage, but the headline instead promises

Signs of Supreme Court activism worry Reagan administration lawyers.

It turns out that the only "Reagan Administration lawyers" they are able to quote are Charles Fried and Doug Kmiec, both of whom quite publicly endorsed candidate Obama in 2008.  Kmiec, in fact, was rewarded with an ambassadorship for his service.

The article does note  that Reagan appointee Laurence Silberman voted to uphold the mandate.  But as an appellate judge Silberman is bound to interpret precedent as best he can.  We don't know from his ruling (a) what he would do if he were on the Supreme Court, where he could feel free to interpret precedent as he wished, or ignore it entirely; (b) what he would like the Supreme Court do do; much less (c) whether he's "worried" about "signs of Supreme Court activism."

So all the article tells us is that two prominent  lawyers who endorsed Obama, both of whom by all indications think his health care law was a good idea (Fried authored an amicus brief supporting it, and calls it a "free market alternative"; note to Fried: you don't need a 2,700 page bill, supplemented by thousands and thousands more pages of regulation, to establish a "free market") want it to be upheld.  That's worth a front page article?

An Example of Academic Out-of-Touchedness

(David Bernstein)

The discussion of why liberal and even some conservative (see this hissy fit by Charles Fried) academics were unable to see the plausibility of the constitutional challenge to the individual mandate reminds me of an anecdote from my law school days.

I was at a Federalist Society student conference chatting with a prominent professor.  We got into a discussion of the Takings Clause, and he told me about the various theories of Takings he goes through when he teaches the clause.  Conspicuously absent was any mention of Richard Epstein's theories, even though Epstein was one of the most cited law professors in the country, and had published just a few years earlier a widely-discussed book on the subject.

So I asked this professor whether he covered Epstein's theories at all.  He said, "no, I don't even mention them."  I asked why.  He said, "I don't think anyone takes Epstein's book seriously."  This, mind you, from a professor who was something of a libertarian fellow traveler himself.

Flash forward a year, to my clerkship interviews.  I applied to both Democratic and Republican appointees, but only Republicans gave me interviews.  With one exception, every one of the judges seven or eight judges I interviewed with, including some of the most prominent judges in the country, asked me what I thought of Epstein's book.

Now I'm sure that they asked me this in part because it was pretty obvious that I was libertarian-minded, and this was the most prominent libertarian law book of the day. Still, it was clear from the questions that this book that "no one" was taking seriously in liberal-dominated academia was being taken very seriously among elite conservative jurists.

(As an aside, ironically the one judge who didn't ask me about Epstein's book was Clarence Thomas, who wound up having the book waved at him by Joe Biden at the beginning of his confirmation hearing).

NBC Internal Investigation of the Apparent Gross Mis-Editing of the George Zimmerman 911 Tape

(Eugene Volokh)

Erik Wemple (Washington Post) reports:

NBC told this blog today that it would investigate its handling of a piece on the "Today" show that ham-handedly abridged the conversation between George Zimmerman and a dispatcher in the moments before the death of Trayvon Martin. A statement from NBC:

"We have launched an internal investigation into the editorial process surrounding this particular story."

Here's what appears to be the Today show's version of what Zimmerman said:

Zimmerman: This guy looks like he's up to no good. He looks black.

Here's what appears to be the actual 911 transcript:

Zimmerman: This guy looks like he's up to no good. Or he's on drugs or something. It's raining and he's just walking around, looking about.

Dispatcher: OK, and this guy — is he black, white or Hispanic?

Zimmerman: He looks black.

Unless there's something I'm missing here, the editing seems extremely improper ("high editorial malpractice," in the Washington Post blogger's words). I say this not to opine on the merits of any possible criminal case against Zimmerman; this particular point isn't about him, but about NBC.

A Crime to Use "Any Electronic or Digital Device" "And Use Any Obscene, Lewd or Profane Language" "With Intent to … Offend"?

(Eugene Volokh)

That's what Arizona HB 2549, which was just passed by both houses (though not yet signed by the Governor) provides, in relevant part:

It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use a telephone ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.

I take it that this refers only to speech intended to offend someone who receives it, and not someone who hears about it indirectly. But note the significance of the shift from a telephone to "any electronic or digital device": Telephones are basically one-to-one devices, so a phone call that uses profane language to offend is likely meant only to offend the one recipient, rather than to persuade or inform anyone; but computers used to post Facebook messages or send Twitter messages or post blog items can offend some listeners while persuading and informing others.

So, under the statute, posting a comment to a newspaper article — or a blog — saying that the article or post author is "fucking out of line" would be a crime: It's said with intent to offend, it uses an electronic or digital device, and it uses what likely will be seen as profane language (see, e.g., City of Columbia Falls v. Bennett (Mont. 1991)). Likewise if a blog poster were to post the same in response to a commenter's comment. Likewise if someone posts something in response to an e-mail on an e-mail-based discussion list, or in a chatroom, or wherever else. (Note that if "profane" is read to mean not vulgarly insulting, but instead religiously offensive, see City of Bellevue v. Lorang (Wash. 2000), then the statute would be unconstitutional as well.)

The same would be true if someone posts something lewd in one of these places in order to annoy or offend someone, for instance if he posts a comment on a police-run public discussion page that says something like "the chief of police can suck my dick," to borrow subject matter from a prior Arizona telephone harassment case. And note that, given that case, the speech need not even be about one of the recipients, so long as it's intended to annoy or offend one of the recipients.

Naturally, readers of this blog know that I am no fan of using obscene, lewd, or profane language with intent to annoy or offend people. But, given the First Amendment, the government may not restrict such speech on blogs, e-mail discussion lists, and newspaper Web sites. If the Arizona Legislature wants to apply the ban on telephone harassment to other one-to-one devices, such as text messaging or e-mails sent directly to a recipient, it may well be free to do so. (For more on this, see Volokh, Freedom of Speech in Cyberspace from the Listener's Perspective: Private Speech Restrictions, Libel, State Action, Harassment, and Sex, 1996 U. Chi. Legal Forum 377, parts II.B-.C (1996).) But the just-passed bill has no such limitation, and thus poses the danger of restricting a great deal of speech that is protected by the First Amendment. Thanks to Alan Solot for the pointer.

Liberals, Conservatives, The Mandate, Recess Appointments, and a Testable Hypothesis

(Todd Zywicki)

I have a question prompted by Ken's interesting post commenting on Jonathan's post on the blindness of the academy to the validity individual mandate challenge.

My question based on the debate around the mandate, but also the question of the Cordray and NLRB Recess Appointments (which I've also followed).  On both issues, on the "conservative" side of the fence there was some substantial disagreement–indeed, on these very pages.  Orin argued for the constitutionality of the mandate and John Elwood argued for the validity of the Cordray and NLRB appointments.

On the other hand, are there any prominent liberal law professors who parted company from the liberal orthodoxy on either of these issues?  The closest I've been able to come up with are Jason Mazzone on the mandate and Jonathan Turley on Cordray, but they both seem somewhat heterodox to me generally (perhaps my perception of both is simply incorrect).   Considering that we are only about a dozen bloggers here and were able to generate some internal dissent, doesn't it seem probable that among the hundreds of liberal law professors in the country there might be a few who departed from the group?

And assuming I'm right as a factual matter (I've both Googled, searched my memory, and asked around a bit and I can't recall anyone else on either point), does this help us to distinguish between the Adler and Anderson hypotheses?  As I take it, the Adler hypothesis would be that the group-think of the professoriate caused them to not be able to even think that the challenge to the individual mandate might be unconstitutional.  The Anderson hypothesis, as I take it, would be that the professor could think and recognize that the argument might be valid, but they might refuse to say or otherwise acknowledge the validity of the argument in order to create a fence around what can be considered within the bounds of mainstream argumentation.

So it strikes me that one way to test the hypothesis would be to ask whether there are liberal law professors who might admit privately that the mandate might be unconstitutional but would not do so publicly.  If that is the case, then it tends support the Anderson hypothesis, I think, because it suggests that the real agenda may have been to demonstrate public solidarity behind the incontrovertible nature of the mandate rather than an inability to consider the argument.  Not that anyone would be able to research this systematically–but I have heard anecdotal evidence that this was not uncommon, at least for the mandate (there's been less talk generally, public or private, I suspect, about Cordray although it is mighty big in my world).  Which, if true, I think tends to confirm the Anderson hypothesis.

Huffington Post Unpaid Bloggers Remain Unpaid

(Eugene Volokh)

From Tasini v. AOL, Inc. (S.D.N.Y. Mar. 30, 2012) (thanks to Prof. Ann Althouse for the pointer):

Rather than monetary compensation, the unpaid [Huffington Post bloggers] are offered exposure — namely, visibility, promotion, and distribution, for themselves and their work…. [T]he defendants otherwise made clear to the plaintiffs from the beginning that they never intended to pay content providers such as the plaintiffs for submissions….

[T]he plaintiffs claim that the defendants have been unjustly enriched by generating profit from the submissions of the plaintiffs to The Huffington Post and not paying the plaintiffs for those submissions, while enticing the plaintiffs with misleading promises of exposure….

[But n]o one forced the plaintiffs to give their work to The Huffington Post for publication and the plaintiffs candidly admit that they did not expect compensation. The principles of equity and good conscience do not justify giving the plaintiffs a piece of the purchase price when they never expected to be paid, repeatedly agreed to the same bargain, and went into the arrangement with eyes wide open….

Quite simply, the plaintiffs offered a service and the defendants offered exposure in return, and the transaction occurred exactly as advertised. The defendants followed through on their end of the agreed-upon bargain. That the defendants ultimately profited more than the plaintiffs might have expected does not give the plaintiffs a right to change retroactively their clear, up-front agreement. That is an effort to change the rules of the game after the game has been played, and equity and good conscience require no such result.

I agree, as I argued a year ago, when the lawsuit was filed; I also talked in that post about why plaintiffs shouldn't win under the Fair Labor Standards Act, but no such claim was brought (at least in the lawsuit that led to the opinion to which I just linked).

Legal Elites and Strategic Behavior

(Kenneth Anderson)

Co-Conspirator Jonathan offers a possible explanation for why legal elites, particularly the legal academy and the  elite legal academy, got the Obamacare oral arguments so wrong.  He points to Greg Sargent and Peter Suderman,  and Suderman's discussion carries us onwards to Jonathan Haidt's very interesting work.  I'm not a constitutional law scholar and I've pretty much stayed out of the Obamacare debates, but I am a denizen of the legal academy; it seems to me that what all these folks say by way of explanation is significantly true.  I'd venture one additional thing.

The echo chamber Jonathan describes is certainly true of my experience.  It defines the boundaries of the acceptable world within the academy.  In my experience, it is also true that conservatives and libertarians do have an ability to frame things the other direction, as a function of being a counter-culture.  But isn't a fundamental issue here strategic gaming behavior by legal academic elites who do detect, beyond the echo chamber, political rumblings in broader society that might eventually have effects on legal results in these kinds of society-shaping decisions?  And who therefore attempt to manage outcomes – in the way that elites so often do – by managing the frame of acceptable and unacceptable argument?  (This is, by way, a pretty good way of defining "reactionary" – and one that Stendhal, if one reads the hilarious chapter on the drawing room of the Hotel de la Mole in The Red and the Black, would have understood perfectly. It has been a while since I have mentioned Stendhal here at VC, and you know you miss it – ed.)

Seen from a strategic gaming frame, then, the interest of elite legal academics is not to "predict" the Court, but instead to influence the framing of acceptable and unacceptable opinion and thereby set the boundaries of outcomes.  The function of dismissing this or that is to seek to establish the boundaries, so to speak, of Justice Kennedy's moral world.  And in that case, what purpose is there even to admit the possibility of Co-Conspirator Randy Barnett's opinions?  Admitting that possibility might make prediction more accurate – but it also risks making the prediction more likely to come true.  Far better to treat it as right-wing libertarian craziness, in order to lessen the chance that it might turn out … not to be craziness.

Added:  To be clear, I'm not suggesting a conspiracy theory or bad faith.  I'm just pointing out that if your interest as an elite legal academic is to influence the Court, rather than predict it, then you have an interest in not giving credence to particular kinds of arguments.  That's so irrespective of whether your world-view as an academic can find room for them or not; if your world-view doesn't admit of these kinds of claims then it is not inconsistent with this form of strategic gaming, but rather reinforces it; and if it does, then you do have an inconsistency and have to choose what matters to you more – prediction or influence.  It isn't a claim of conspiracy or bad faith – just an observation about incentives based an a hypothesis about a certain kind of interest.

I'm fairly sure someone said exactly this in the comments to Jonathan's post, but I didn't wade through the 400+ (the VC commentariat is back?!) comments to find out.

My Regblog Analysis of the Individual Mandate Oral Argument

(Ilya Somin)

I recently published an analysis of the individual mandate oral argument for the University of Pennsylvania Regblog site. It goes through all nine justices and assesses their probable views on the mandate based on both their oral argument performance and their previous records on federalism issues:

This week's oral arguments before the Supreme Court shed some new light on how the justices are likely to vote on the constitutionality of the individual health insurance mandate contained in the Affordable Care Act (ACA). Overall, the arguments went well for the anti-mandate plaintiffs. But the ultimate result is still difficult to predict. Four justices seem likely to vote to strike down the mandate, while four others are likely to vote to uphold it. As the Court's key swing voter, Justice Anthony Kennedy could potentially go either way.

The conservative justices zeroed in on the biggest hole in the pro-mandate argument: the likelihood that the federal government's various rationales for the health insurance mandate would also authorize virtually any other mandate. This extension of congressional authority would undermine the basic constitutional principle that federal power is limited. As Justice Antonin Scalia put it, the key question is this: "What is left? If the government can do this, what else can it not do?"

Readers might also be interested in this podcast co-blogger Orin Kerr and I did for the Federalist Society. As the podcast shows, Orin and I continue to disagree about the merits of the case, but there does seem to be a lot of common ground between us on the implications of the oral argument.

Was Hamdan Based on a Mistake?

(Jonathan H. Adler)

Ben Wittes had this interesting post on the Lawfare blog about research by Haridimos V. Thravalos suggesting the Hamdan plurality got its history wrong concerning whether conspiracy could be tried as a war crime.  See also this response from Kevin Jon Heller and Wittes' rejoinder.