Eugene Volokh's Blog, page 2578
March 30, 2012
District Judge Strikes Down State-Law Limit on Permanent Resident Aliens' Owning Guns
The case is today's Fletcher v. Haas (D. Mass. Mar. 30, 2012), and it holds that the ban violates the Second Amendment because "permanent resident aliens are among 'the people' for whom the Second Amendment the United States Constitution provides a right to bear arms."
Now Up at Opinio Juris Blog: Harold Koh Statement on Syria
My confreres at Opinio Juris tell me that Harold Koh, Legal Adviser to the State Department, has given OJ the text of his address on Syria at the on-going annual meetings of the American Society of International Law (ASIL) with a request to post it. The speech was (updated, sorry) on-the-record; the text is now up at OJ, and here is the opening:
Statement Regarding Syria
Harold Hongju Koh
Legal Adviser, U.S. Department of State
American Society of International Law Annual Meeting
March 30, 2012
It is my honor to speak here again at the annual meeting of the American Society of International Law. A year ago, I spoke before this audience about the international legal basis for the United States' military operations in Libya. In that same spirit of openness and dialogue, I am grateful for the opportunity to engage so many distinguished international lawyers in this room about the very serious challenges we face in Syria today.
Let me divide my comments this morning into three: First, what, precisely, is happening in Syria? Second, what are the U.S. government and the international lawyers within it doing to address the crisis? And third, by what legal principles should this crisis be assessed and lawfully and effectively addressed?
The Problem of "Science Mismatch"
Some of the most significant recent work on affirmative action concerns a phenomenon called "science mismatch". The idea behind science mismatch is very intuitive: if you are a high school senior interested in becoming, for example, a chemist, you may seriously harm your chances of success by attending a school where most of the other would-be chemists have stronger academic preparation than you do. Professors will tend to pitch their class at the median student, not you; and if you struggle or fall behind in the first semester of inorganic chemistry, you will be in even worse shape in the second semester, and in very serious trouble when you hit organic chemistry. You are likely to get bad grades and to either transfer out of chemistry or fail to graduate altogether.
This idea was first advanced by Dartmouth psychologist Rogers Elliott (and coauthors) in 1996, and using data from several Ivy League schools, he demonstrated that, indeed, attrition rates from the sciences were highly associated with comparatively lower academic preparation, which in turn was highly associated with receiving an admissions preference. His data suggested that a given student was far more likely to achieve a science degree if she attended a school where her pre-college credentials were close to the median science student.
Virginia psychologists Frederick Smyth and John McArdle provided an even stronger demonstration of these points in a 2004 article. Making use of the same data Bowen & Bok used in Shape of the River, they were able to compare similar students who were interested in "STEM" fields (an acronym for science, technology, engineering and math), and who attended schools with either similar peers, somewhat more prepared peers, or much more prepared peers. Smyth and McArdle found strong evidence of science mismatch. Among their key conclusions: had all the black and Hispanic students in their sample enrolled at schools where their credentials were close to the class-wide averages, then 45% more of the women minorities, and 35% more of the men minorities, would have completed STEM degrees.
Duke economists Peter Arcidiacono, Esteban Aucejo, and Ken Spenner last year completed a study that looked at a number of ways that differences in admissions standards at Duke affected academic outcomes. In one of many useful analyses they did, they found that 54% of black men at Duke who, as freshmen, had been interested in STEM fields or economics, had switched out of those fields before graduation; the comparative rate for white men was 8%. Importantly, they found that "these cross-race differences in switching patterns can be fully explained by differences in academic background." In other words, preferences – not race – was the culprit.
In research conducted by FTC economist Marc Luppino and me, using data from the University of California, we have found important peer effects and mismatch effects that affect students of all races; our results show that one's chances of completing a science degree fall sharply, at a given level of academic preparation, as one attends more and more elite schools within the UC system. At Berkeley, there is a seven-fold difference in STEM degree completion between students with high and low pre-college credentials.
As is always the case with affirmative action, ironies abound. Although young blacks are about one-seventh as likely as young whites to eventually earn a Ph.D. in STEM fields, academically strong blacks in high school are more likely than similar whites to aspire to science careers. And although a U.S. Civil Rights Commission report in 2010 documented the "science mismatch" phenomenon in some detail, President Obama's new initiative to improve the nation's production of scientists neither recognizes nor addresses mismatch.
Unlike my research on law school mismatch, science mismatch has been the subject of little media attention and hardly any academic dispute. In fact, I am unaware of any research that directly disputes any of the studies described above. (If readers know otherwise, please advise.) In other words, there appears to be a strong consensus on the existence of a mismatch problem among all those who have actually studied the interaction of affirmative action and degrees in STEM fields. Across the country, it is plausible that science mismatch undermines the careers of tens of thousands of promising scientists. Yet I am aware of no university that has either acknowledged the problem or taken direct steps to address it.
Science mismatch is, of course, relevant to the general affirmative action debate in showing that preferences can boomerang on their intended beneficiaries. But it also has a special relevance to Fisher v. University of Texas. The university's main announced purpose in reintroducing racial preferences in 2004 was to increase "classroom" diversity. The university contended that, even though over a fifth of its undergraduates were black or Hispanic, many classrooms had no underrepresented minorities. It sought to use direct (and very large) racial preferences to increase campus URM numbers and thus increase the number of URMs in classes that lacked them. But science mismatch shows that this strategy, too, can be self-defeating. The larger a university's preferences, the more likely it is that preferenced students will have trouble competing in STEM fields and other majors that are demanding and grade sternly. These students will tend to drop out of the tough fields and congregate in comparatively less demanding ones. Large preferences, in other words, can increase racial segregation across majors and courses within a university, and thus hurt classroom diversity.
More tomorrow.
The Court's Legitimacy
Following up on Jonathan's post below, I'm not terribly worried about warnings from the left that a ruling against the ACA will undermine the Court's legitimacy.
Who, after all, is going to lead the charge against the Court? Liberal journalists like Linda Greenhouse and Dahlia Lithwick, whose human capital is invested in covering the Court? The fraternity of elite liberal lawyers who served as Supreme Court clerks, for whom undermining the Court's legitimacy means undermining the value of their own prized credential? Liberal constitutional law professors, who are as invested as anyone in the Court's significance? (It's hard enough to get people to read one's latest article on "A Kantian/Weberian Approach to the Fourth Amendment" when the Court is as important as it is now!) Liberal activist groups and think-tankers, who still treasure the Court's rulings on abortion, due process rights for terrorism suspects, term limits, and more, and who hope that a future Court will recognize a right to gay marriage? Liberal Congressmen, when Congress' popularity rating is well below the Court's, and who have hardly shown themselves to be constitutional scholars? (Not to mention that journalists like Lithwick are on record suggesting that it's "weird" for members of Congress to be considering the constitutionality of legislation. "Isn't it a court's job to determine whether or not something is, in fact, constitutional?" wrote Lithwick.)
At most, a ruling against the ACA will have the same effect as Bush v. Gore or Citizens United, or Roe v. Wade and Boumediene for that matter; a fair amount of caterwauling, with the Court as an institution remaining unscathed.
UPDATE: I probably should add that I'm not at all sure the Court should have the level of legitimacy it currently has. I think the other branches of government were meant to, and probably should, play a significantly larger role in constitutional decisionmaking than they currently do. But as a positive matter, I don't see the ACA litigation as a threat to that legitimacy.
FURTHER UPDATE: Oh, and of course, why undermine the Court's legitimacy when your side is one appointment away from taking it over?
Congratulations to Maureen Ohlhausen
Congratulations to Maureen Ohlhausen, who was unanimously confirmed for a seat on the Federal Trade Commission. Maureen worked with me as Deputy Director of the Office of Policy Planning at the FTC when I was Director then took over as Director. A great choice and I am happy for both Maureen and the Commission.
March 29, 2012
A Takings Claim Even Environmentalists Could Love
Among the cases up for consideration at the Supreme Court's conference on Friday is Arkansas Game & Fish Commission v. United States, which seeks review of an interesting takings case out of the U.S. Court of Appeals for the Federal Circuit. In short, the case concerns whether the temporary flooding of property can constitute a taking for which compensation is required under the Fifth Amendment. A divided panel of the Federal Circuit said no, holding that flooding can only effect a taking if it constitutes "an actual permanent invasion of the land, amounting to an appropriation of and not merely an injury to the property." As the petitioners and various amici notes, and Judge Newman argued in dissent, this is a difficult holding to square with prior Court decisions that temporary takings can be compensable.
Environmentalist groups are not usually very sympathetic to takings claims. Most such groups adamantly oppose compensation for regulatory takings, often out of fear that a compensation requirement would make environmental regulation too costly. Environmentalists have also been late to consider the potential environmental consequences of eminent domain. This case, however, presents a clear example of how enabling the federal government to evade the Fifth Amendment's compensation requirement can facilitate environmental harm, and it does so without raising the sorts of regulatory takings claims that typically give environmentalists such fits.
The substantive argument in this case is that the flooding of land is the sort of physical occupation that can constitute a taking, even if it is only temporary. The land at issue in this case is a wildlife management area. The repeated flooding of this land by the U.S. Army Corps of Engineers has caused substantial damage and destroyed valuable wildlife habitat. Were the flooding recognized as a taking — albeit a temporary taking — the Army Corps might be less quick to flood such lands in pursuit of other policy goals. Undeveloped land, such as wildlife habitat, is already more vulnerable to governmental expropriation than is more developed land because it's cheaper. But if the government does not have to pay for the temporary occupation of such land at all, it's cheaper still. The Court does not often agree to hear takings cases from the Federal Circuit, but given all the patent cases its heard in the past few years, perhaps it's time for a slight change of pace.
Citizens United or Kelo?
In my contribution to the NRO symposium Ilya mentions below I address the claims made by liberal commentators that the Supreme Court would sacrifice its own credibility were it to strike down the individual mandate.
Commentators aghast at the possibility that the Court may invalidate a key portion of President Obama's signature legislative accomplishment have suggested that doing so will undermine the Court's credibility. They suggest that a decision striking down the mandate would be another Citizens United or, worse, Bush v. Gore. Given the mandate's unpopularity, this is a hollow threat. If anything, the justices should be more wary of another Kelo, of upholding an assertion of government power that most Americans find repugnant. This is not to suggest the justices should base their decision on popular opinion, for the Constitution should be their guide. It is, however, to suggest that the Court's credibility is at risk when it fails to constrain unconstitutional assertions of government power.
It's also worth noting that many of those concerned with the Court's institutional credibility in this case are strangely mute when the Court is poised to invalidate statutes or other government policies with which they disagree. If invalidating significant legislation were such a threat to the Court's legitimacy, the Court takes a much greater risk when it strikes down national security legislation embraced by the President and adopted by a bipartisan congressional majority (as it did in Boumediene), than when it strikes down an unpopular and unprecedented statute adopted on a party-line vote. Whether or not it was correctly decided, Boumediene stands as the most aggressive exercise of judicial review of a national security measure enacted by Congress in the nation's history — and it is a far better poster-child for judicial "activism" (if we must use that word), than anything the Court is likely to do here.
District Court Denies Motion for New Trial in Obsidian Finance Group, LLC v. Cox — Next Stop, the Ninth Circuit
Some of our readers have been following Obsidian Finance Group, LLC v. Cox, the libel case in which our local counsel Benjamin Souede and I are representing defendant Crystal Cox. As you may recall, the Nov. 30 opinion in that case concluded, among other things, that only members of the institutional media are entitled to certain First Amendment libel law protections; that is one of the decisions that we are challenging with our motion for new trial. We filed a motion for a new trial in the district court, and on Tuesday the court denied the motion, issuing a long opinion on the subject. We will now be appealing to the Ninth Circuit.
If you're interested, here are the trial court documents:
Our Memorandum in Support of the Motion for New Trial.
The Electronic Frontier Foundation's Amicus Brief in Support of the Motion for New Trial.
The plaintiffs' Opposition.
Our Reply.
The Inconsistency Between the Constitutional Arguments for the Mandate and Medicaid in the ACA
Now that Eugene has given me the electronic keys to this Conspiracy, I could not resist getting involved in the now-legendary discussion of the ACA…
There is a serious inconsistency between the government's arguments for the mandate and for the Medicaid expansion. In a nutshell, these arguments make opposite assumptions about the effect of financial duress on states' ability to execute their policy preferences. Defending the mandate, the government says states are individually incompetent to regulate insurance, because the first state to adopt generous rules would be inundated with the sick, and forced to abandon its policy. This is a basic race to the bottom story and has been around in Commerce Clause cases since the New Deal.
Crucially, the argument takes financial realities as dispositive: states cannot realistically choose to experiment with medical insurance individually because it would be ruinous. The economic effects mean that states do not really have the power to choose individual regulatory regimes.
Yet turning to the Spending power, the government ask us to believe that states can realistically turn down federal medicaid funds, though it would be at least as ruinous if not more. Either the prospect of massive losses makes a states ability to pursue a certain course illusory or it does not.
Incidentally, these two cases are not equal in that in that in the former, the ruinous consequences are a result of the market, in the latter a result of calculated federal efforts to make the offer unrefusable.
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