Eugene Volokh's Blog, page 2651
December 14, 2011
Jedediah Purdy on the Roberts Court's Revival of "Lochner"
Several readers forwarded to me a link to a recent article in Democracy by Professor Jedediah Purdy, with requests to comment on it.
The basic thrust of the piece is to argue that the Roberts Court has become "the judicial voice of the idea that nearly everything works best on market logic, that economic models of behavior capture most of what matters, and political, civic, and moral distinctions mostly amount to obscurantism and special pleading."
It's a well-written piece, and provides the best concise account of liberal concerns about the Roberts Court's trajectory as I've seen. So go ahead and read it, and then come back here for my comments.
Back already? Okay, a few, non-comprehensive comments. First, Purdy inevitably compares the Robert Court's jurisprudence to "Lochner"; inevitably because, as I've noted before, modern liberals for decades have habitually (and to my mind, tendentiously) analogized any attempt by the courts to in any way limit legislative regulatory economy to Lochner. Purdy makes some effort to acknowledge revisionist scholarship about Lochner, but ultimately repeats various myths, including the myth that the Court defended "laissez-faire" and "unfettered industrial capitalism." For a dissection of this myth, see chapters 1 and 3 of Rehabilitating Lochner. In short, not even the most radical free marketeers on the Court, Brewer and Peckham, defended anything remotely approaching the laissez-faire jurisprudence advocated by the likes of treatise writer Christopher Tiedeman. I could quibble about some other historical inaccuracies, but let's move on.
Second, Purdy attributes the Court's controversial Citizens United and Sorrell opinions to a version of economic libertarianism holding that (1) "the distinction between politics and markets, or principles and interests, is spurious"; (2) there is no publicly accepted measure of value except willingness to pay; and (3) therefore, "elections and other institutions should come to resemble markets as much as possible."
I disagree. The purpose of the Court's First Amendment jurisprudence is not to prevent the redistribution of economic power form rich to poor, as Purdy would have it. Rather, the point is to ensure that the government can't restrict the free flow of information because that is how governments abuse their authority in favor of those already in power and their special interest cronies. It's one thing to allow the government to regulate the economic activity of IBM, or AFSCME. It's another for the government that runs a massive special interest state to either decide who gets to speak (e.g., academics, newspaper editors, bloggers, "public interest groups") and who does not (for-profit corporations and unions), or to decide what the content of one's speech will be (see Boy Scouts of America v. Dale). So there is a libertarian rationale for the Court's jurisprudence, but it's not a narrowly economic rationale, much less a rationale favoring a particular distribution of wealth.
Finally, and relatedly, Purdy's objection to the Roberts Courts' First Amendment jurisprudence seems to be that it inhibits the ability of the democratic populace to redistribute wealth and power more equitably, and the Court may do so even more in the future if the Court limits the scope of Congress's Commerce power in the Obamacare case. The odds, however, are very much against the Roberts Court putting any significant limitations on government power. Even during the so-called Lochner era, when there was much broader intellectual and popular support for limited government, the Supreme Court's occasional rulings invalidating legislation were generally a mere sideshow to an ever-growing regulatory state.
Nevertheless, Purdy does illustrate for the reader the traditional Progressive/liberal mindset favoring increased government regulation because such regulation will result in more democratic outcomes, which in turn means more downward redistribution. I didn't see, however, any defense of the notion that republican democracy inherently, or even typically, works to the advantage of the downtrodden at the expense of the powerful. Todd and Ilya could speak to this better than I, but modern political science and economic literature raise grave doubts about this assumption. Among many other problems, the wealthy, well-educated and well-connected have huge advantages in the political process.
Malkiel Reviews Models.Behaving.Badly — and I Ask, When and How Did You First Learn the EMH?
The Santa Futures markets suggest that I am likely to receive Emanuel Derman's Models.Behaving.Badly come Christmas morning. I am looking forward to it, more so after reading the great Burton Malkiel's review in today's Wall Street Journal (perhaps behind a paywall, but maybe not). Malkiel speaks highly of the cross-disciplinary erudition that runs through the book — and its underlying criticism of financial economic theory as offering itself as physics when it is really something like The Imitation of Physics — a metaphor and a simulacrum:
Trained as a physicist, Emanuel Derman once served as the head of quantitative analysis at Goldman Sachs and is currently a professor of industrial engineering and operations research at Columbia University. With "Models Behaving Badly" he offers a readable, even eloquent combination of personal history, philosophical musing and honest confession concerning the dangers of relying on numerical models not only on Wall Street but also in life.
Mr. Derman's particular thesis can be stated simply: Although financial models employ the mathematics and style of physics, they are fundamentally different from the models that science produces. Physical models can provide an accurate description of reality. Financial models, despite their mathematical sophistication, can at best provide a vast oversimplification of reality. In the universe of finance, the behavior of individuals determines value—and, as he says, "people change their minds."
In short, beware of physics envy. When we make models involving human beings, Mr. Derman notes, "we are trying to force the ugly stepsister's foot into Cinderella's pretty glass slipper. It doesn't fit without cutting off some of the essential parts." As the collapse of the subprime collateralized debt market in 2008 made clear, it is a terrible mistake to put too much faith in models purporting to value financial instruments. "In crises," Mr. Derman writes, "the behavior of people changes and normal models fail. While quantum electrodynamics is a genuine theory of all reality, financial models are only mediocre metaphors for a part of it."
This is not a new critique; it is the core of that made by George Soros and his theory of "reflexivity" of markets; the core of criticisms made by social theorists of market relations. But coming from Derman's special place in finance, it carries special interest, and I look forward to immersing myself in it and giving my own assessment of the book. Of interest from Burton Malkiel — I own most if not all of the successive editions of A Random Walk Down Wall Street — is his criticism of Derman's presentation of the Efficient Market Hypothesis (or Model):
Nevertheless, Mr. Derman is perhaps a bit too harsh when he describes EMM—the so-called Efficient Market Model. EMM does not, as he claims, imply that prices are always correct and that price always equals value. Prices are always wrong. What EMM says is that we can never be sure if prices are too high or too low.
The Efficient Market Model does not suggest that any particular model of valuation—such as the Capital Asset Pricing Model—fully accounts for risk and uncertainty or that we should rely on it to predict security returns. EMM does not, as Mr. Derman says, "stubbornly assume that all uncertainty about the future is quantifiable."
The basic lesson of EMM is that it is very difficult—well nigh impossible—to beat the market consistently. This lesson, or "model," behaves very well when investors follow it. It says that most investors would be better off simply buying a low-cost index fund that holds all the securities in the market rather than using either quantitative models or intuition in an attempt to beat the market. The idea that significant arbitrage opportunities are unlikely to exist (and certainly do not persist) is precisely the mechanism behind the Black-Scholes option-pricing model that Mr. Derman admires as a financial model behaving pretty well.
Perhaps this is all that the EMH ever meant for Malkiel and other leading sophisticates of finance theory: "What EMM says is that we can never be sure if prices are too high or too low." Put that way, it is a demure theory, a sweet theory of downcast eyes and modest mien. But I have two doubts. One is simply that this is not what I took away from the general presentation of it by leading finance theorists in the 1980s, when I first learned it in classes at Harvard Law School and sitting in on classes at Harvard Business School and sitting in on my undergraduate girlfriend's econ classes. Perhaps I misunderstood drastically, but it seemed to be regarded as a much stronger proposition than that. Indeed, in the hands of my law school corporate finance professor, it was not an empirical proposition so much as a logical one because it described the necessity of an equilibrium system and then imputed it to the real world, Dr. Pangloss-style. As a former philosophy student, it troubled me as a logical move, but what did I know about finance?
Second, even if the leading finance theorists had some more modest theory than I took from my professors, as applied in the world at large, it did take on the characteristics of an a priori theorem grounded in logical necessity. Like many subtle theorems applied mechanically, and without practical skill, it took on a life of its own and became its own authority. One reason for this is that the version of the EMM that Professor Malkiel proffers above is purely a skeptical one — the inability to know. To have application in the real world, it has to be converted from a proposition in skepticism to a positive proposition about a realm of bounded rationality; in making that move, however, we have gone a far, far distance in what we are proposing we might know and, moreover, we are apt to forget that the rationality of equilibrium applies only within bounds. There is a reason that each time I read papers on the foundations of the EMH, I think mostly of my first classes in Skepticism and Rationality, not economics; it appears that Derman (like Soros) has that same reaction, more or less.
So I am not sure I agree with Professor Malkiel that Derman is overly harsh on the EMH as preached and applied in the world. I think its strength — its epistemic status — has gone up and down in waves over the decades, and of course part of that is reflected in the successive discussions of it in Professor Malkiel's own book (and I should add that his last book on practical investing is the only one I've ever handed to my daughter). So let me put it to our readers:
What year did you first learn the EMH, what was the disciplinary setting (undergrad econ or business, grad econ, B-school, law school, etc.), and what was the strength of the proposition (not just the usual weak, semi-strong, strong, but its epistemic status — empirical thesis or logical corollary of equilibrium). And does it appear to have been re-stated and re-formulated over the course of your awareness of it? Comments are open.
What about Full Faith and Credit?
Before we dive deeper into the federal cases I blogged about this morning, I thought it would be helpful to clarify a point featured in several comments. Namely, isn't the Full Faith and Credit Clause involved here somewhere? The answer is: not very much, and certainly not enough to make the problem go away.
The Constitution provides that "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." The clause has some application in this area, but it doesn't force states to recognize marriages from other states for several reasons.
First of all, even though the Clause mentions "public acts," it has not been interpreted to apply to statutes (like a law stating which marriages are valid) or marriage licenses with the same force it has for judicial proceedings. Relatedly, states have traditionally refused to give effect to another state's statute if they think doing so is against their "public policy," and this has been thought to be okay under the Full Faith and Credit Clause.
Moreover, even if the clause did normally require states to give effect to foreign legislation (or if the parties somehow get a judicial judgment based on their same-sex marriage), the clause delegates substantial power to Congress to decide what "effect" those acts, records, and proceedings have. And Congress has explicitly provided (in that other section of DOMA that I said wasn't very important) that "No State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State . . . or a right or claim arising from such relationship." (For lots of fascinating history demonstrating Congress's power under the Full Faith and Credit Clause, I recommend Steve Sachs's Full Faith and Credit in the Early Congress.)
Now, some of these points are controversial. There are scholars (like my own law school's dean, Larry Kramer) who argue that Section 2 of DOMA is unconstitutional and that the Full Faith and Credit Clause requires greater interstate recognition of marriage. Steve Sanders has made a similar argument under the Due Process Clause. But that's not the state of judicial doctrine today, so the interstate disagreement about same-sex marriage is still something that courts have to deal with unless and until that doctrine is radically changed.
To sum up: Yes, there are some federal rules about interstate recognition of marriages. But those rules give states enough leeway that there's still a great deal of state disagreement, which is all that matters for purposes of my argument. If you want to know more about this, there is a ton of recent scholarship on Full Faith and Credit, some of it cited in the paper.
SOPA-Rope-a-dope
Critics of the Stop Online Piracy Act (H.R. 3261) have had an impact. A manager's amendment has been offered by Lamar Smith, R-TX, the Judiciary Committee chairman. I was critical of the first version. Here's my take on the new version.
This version contains several provisions aimed at the security concerns raised about the first version. The new bill insists that it is imposing no technology mandate and that it should not be construed to impair the security of the domain name system or the network of an ISP that receives an order. And it whittles away at the original requirement that ISPs must "block and redirect" visitors to pirate sites. Now, the ISPs are only obliged to block those efforts, not to redirect the subscribers to an alternative site that warns against piracy. ISPs also get a safe harbor that allows them some assurance that they don't have to redesign their networks to carry out the blocking.
Unfortunately, the new version would still do great damage to Internet security, mainly by putting obstacles in the way of DNSSEC, a protocol designed to limit certain kinds of Internet crime. Today, it's not uncommon for crooks to take over Internet connections in hotels, coffee shops and airports — and then to direct users to fake websites. Users sent to a fake banking site are prompted to enter account and password data, which is used to loot the account. DNSSEC prevents such attacks by giving each website a signed credential that must be shown to the browser by the domain name system server before the connection can be completed.
That's a great idea, but crooks will predictably try to override it. Their best bet is to claim that the website doesn't have a signed credential – a claim that will be plausible at least during the transition to DNSSEC. What should a browser do if a website says it doesn't have a signed credential yet? The site might be telling the truth, or it might be a fake site backed by a DNS server that's been tampered with. To find out, the browser needs to ask a second DNS server, and if that server doesn't give an answer, a third and a fourth server until it gets an answer. That's the only way to keep criminals from blocking the real DNS credentials and offering their own.
Unfortunately, the things a browser does to bypass a criminal site will also defeat SOPA's scheme for blocking pirate sites. SOPA envisions the AG telling ISPs to block the address of www.piracy.com. So the browsers get no information about www.piracy.com from the ISP's DNS server. Faced with silence from that server, the browser will go into fraud-prevention mode, casting about to find another DNS server that can give it the address. Eventually, it will find a server in, say, Canada. Free from the Attorney' General's jurisdiction, the server will provide a signed address for piracy.com, and the browser will take its user to the authenticated site.
That's what the browser should do if it's dealing with a hijacked DNS server. But browser code can't tell the Attorney General from a hijacker, so it will end up treating them both the same. And from the AG's point of view, the browser's efforts to find an authoritative DNS server will look like a deliberate effort to evade his blocking order.
The latest version of SOPA will feed that view. It allows the AG to sue "any entity that knowingly and willfully provides …a product … designed by such entity or by another in concert with such entity for the circumvention or bypassing of" the AG's blocking orders.
It's hard to escape the conclusion that this provision is aimed squarely at the browser companies. Browsers implementing DNSSEC will have to circumvent and bypass criminal blocking, and in the process, they will also circumvent and bypass SOPA orders. The new bill allows the AG to sue the browsers if he decides he cares more about enforcing his blocking orders than about the security risks faced by Internet users. Indeed, the opaque language about "another in concert with such entity" makes perfect sense in the context of browser extensions. It allows the AG to sue not just browsers but also add-ons with this feature.
OK, that's the law. Now imagine you are Microsoft, or Google, or Apple, or Mozilla. The DNSSEC guys come to you and ask you to implement DNSSEC. It won't increase your revenue, they admit, but it will make the Internet much safer for your users. You want to be a good internet citizen, so you think maybe you should devote some precious code-writing resources to the cause. But first you ask your lawyers whether they foresee any problems.
"Well, yes," they'd have to say. "If you add code to the browser that implements DNSSEC, you'll have to add code that circumvents criminal hijackings of the DNS system. And that code can be declared illegal by the Attorney General pretty much whenever he likes. You can litigate about it, of course, but if you lose, the AG can shut down all shipments of your browser until it's been revised to the satisfaction of his staff and their advisers in Hollywood."
Faced with that advice, would you implement DNSSEC?
Neither would I.
In fact, I wouldn't even allow the DNSSEC guys to write an extension that implemented their protocol. And so, by poising a sword of Damocles over the browser companies, SOPA will kill DNSSEC.
Let's hope that the opposition to SOPA hasn't punched itself out against the first version of the bill, because this version is badly in need of a knockout punch.
Calabresi & Rickert Respond to Whelan on Originalism and Sex Discrimination
Earlier this month, I posted on Steven Calabresi and Julia Rickert's new paper, "Originalism and Sex Discrimination." Published in the Texas Law Review, this article makes an originalist argument that gender discrimination, such as the exclusion of women from VMI, is unconstitutional.
This is an important article, which has already received notice from Lawrence Solum and Jack Balkin, among others. It was also subject to a lengthy critique by Ed Whelan on NRO's Bench Memos in five parts: 1, 2, 3, 4, and 5. Calabresi and Rickert have written a response to Whelan which I am posting here. It begins below and the continues after the jump.
[UPDATE: Ed Whelan has a brief rejoinder here.]
Steve Calabresi & Julia Rickert Response to Ed Whelan
We recently posted an article on SSRN entitled "Originalism and Sex Discrimination," which has now been published in the Texas Law Review. We argue in our article that the Fourteenth Amendment outlaws all systems of caste from the Black Codes to European feudalism to the Indian Caste system. We also argue that after the ratification of the Nineteenth Amendment in 1920 giving women the right to vote, it was constitutionally correct to read the Fourteenth Amendment's ban on caste as outlawing sex discrimination with respect to civil rights. Our position is that originalists reading the text of the Fourteenth Amendment today need to synthesize it with the text of the Nineteenth Amendment. We believe that the political right to vote which the Fifteenth Amendment extends to men of any race, and which the Nineteenth Amendment extends to women of all races, is at the apex of the Constitution's hierarchy of rights while civil rights, which the Fourteenth Amendment protects form the base of the pyramid. Children, aliens, and former felons have civil rights under the Fourteenth Amendment, but they do not have the political right to vote. No group, however, in our opinion can be granted political rights without also acquiring civil rights under the Fourteenth Amendment.
In five posts on National Review, Ed Whelan, who is one of the most acclaimed conservative legal thinkers and activists of his generation, disagrees with our view. Whelan agrees to assume along with us that the Fourteenth Amendment outlaws systems of caste, as a matter of original meaning, but he disagrees with us that traditional laws that banned married women from owning property, entering into contracts, or working as lawyers or bartenders set up a system of caste even if the Fourteenth Amendment bans systems of caste. Whelan also argues that the Nineteenth Amendment ought not to be read synthetically with the Fourteenth because doing so renders the Fourteenth Amendment superfluous. Whelan makes many additional arguments which we will try to address below, but this is the gist of his argument.
One of the principal criticisms of originalism that has been levied in recent years by Richard Posner, Cass Sunstein, and Jack Balkin and many others is that Scalia-style originalism cannot explain the extension in the 1970's of the Equal Protection Clause to ban sex discrimination. The best that originalists allegedly can do is to promise not to overrule sex discrimination cases that under originalism were wrongly decided in the first place. Posner, Sunstein, and Balkin say originalism cannot explain not only the Supreme Court's sex discrimination decisions; it also cannot explain Brown v. Board of Education (barring segregation in schools), Loving v. Virginia (ruling anti-miscegenation laws unconstitutional), or the incorporation of the Bill of Rights. We disagree. Michael McConnell has made a prominent originalist argument defending Brown v. Board of Education although not Loving v. Virginia. Akhil Amar showed in The Bill of Rights: Creation and Reconstruction how originalism leads to incorporation of the Bill of Rights. Our mission is to show that originalism leads to Justice Ginsburg's opinion in United States v. Virginia (the VMI case). In so arguing, we do not seek to justify or to make any excuses for Roe v. Wade – a case which Professor Calabresi thinks is wrongly decided. Professor Calabresi regards Roe as the worst Supreme Court decision of his life-time because the question of when life begins during the first trimester of pregnancy is a political question which should be left to elected legislatures and elected executive officials to sort out. In Professor Calabresi's view, the role of the federal courts under our Constitution is not to act as agents of social change. The power of judicial review is as Justice Scalia believes a power to ratify decisions already made in the constitutional text, or in our tradition, or at a minimum where there is an Article V consensus of three-quarters of the States. The adoption of the Nineteenth Amendment in 1920 reflected an Article V consensus of three-quarters of the States. Ms. Rickert agrees that federal courts should not be the agents of social change, but she does not think that legislatures have the power to limit the freedom of some by calling whatever they want a human being and insisting that it be protected. Calling a single cell a human being doesn't even pass rational-basis scrutiny in her view. Additionally, she feels strongly that the Constitution permits courts, in appropriate cases, to consider scientific evidence (even social science) when applying constitutional rules.
Let us turn then to Whelan's first argument which is that sex discrimination is not a form of caste because being a woman does not make one a member of a hereditary caste. Some children of women will be men and they will not inherit their mother's lower social status. This point is true as far as it goes, but it overlooks: 1) the fact that women do literally inherit their sex from their parents; and 2) the fact that sex is an immutable characteristic. We would not say that every immutable trait one inherits from one's parents is, when legislated upon, a sign of the presence of caste, but we think an effort to give greater property, contract, and employment rights to those with blond hair and blue eyes would be quite suspect under the Fourteenth Amendment. It is an historical fact that women could not generally vote until 1920 and many laws and constitutional provisions that were passed prior to 1920 remain binding law. It is also an historical fact that women were denied equal property, contract, and employment rights until the 1960s and 1970s. One need not be a feminist to conclude that there is something very odd about a legal regime built on the idea that women can be trusted to vote for President, Senator, and Governor, but that women cannot be trusted to make contracts, own property, or be employed in professions ranging from the practice of law to being a bartender. Whelan says that laws that disadvantage women and limit their choices are not stigmatizing, but we think he is obviously mistaken there.
In a related disagreement, Whelan takes issue with our evidence that the word "caste" was used by some to describe the status of women at the time the Fourteenth Amendment was being debated. We provided examples of this to show that sex-as-caste is not a modern invention. Whelan suggests this evidence is of no value because the speakers must have been trying to worm their way into protection under the Fourteenth Amendment. But there are statements, though not in our article, that Whelan may find more persuasive because they were made prior to the Civil War, for instance, an 1859 statement by John Bingham (recently brought to our attention by Prof. Gerard Magliocca): "I protest, against the attempt to mar that great charter of our rights, almost divine in its conception and in its spirit of equality, by the interpolation into it of any word of caste, such as white or black, male or female. . . ." We do not point to such evidence to show that everyone in the nineteenth century thought women were a caste; rather, we think it shows that there is nothing about the definition of caste in the nineteenth century that makes it inherently inapplicable to women. (And, contrary to one of Whelan's assertions, we provided a number of nineteenth-century dictionary definitions of "caste." See footnote 72.)
Professor Calabresi thinks that the question whether sex discrimination is a form of caste is a question of objective social meaning. What matters is not what we or Whelan think constitutes caste but what a majority of Americans in three-quarters of the States think. According to Calabresi, Article V tells us that new constitutional law can be made only where three-quarters of the States are in consensus. There was a consensus of three-quarters of the States in 1920 that sex discrimination as to political rights should be constitutionally proscribed. Ms. Rickert disagrees that an Article V consensus should be required in order for the Supreme Court to find that something is a form of caste. She thinks that a form of discrimination either is or is not a form of caste and that the justices of the Supreme Court ought to say as much when they are deciding cases.
Professor Calabresi thinks that it is also relevant to our understanding of caste that the Civil Rights Act of 1964 barred sex discrimination in employment and that in the 1970s the federal government admitted women for the first time at prestigious national military academies like West Point and Annapolis. He thinks this congressional action further eviscerates the State of Virginia's position in the VMI Case. Professor Calabresi notes that in its Eighth Amendment caselaw, the Supreme Court regularly does a head count of the fifty States in trying to figure out whether certain applications of the death penalty have become cruel and unusual even though they were originally allowed. In doing this the Court claims it is not a social change forcing agent but that it is merely applying a current national consensus. Professor Calabresi thinks the objective social meaning of the Fourteenth Amendment's ban on caste must be found not in ours or Whelan's personal views but in the fabric of enacted law. We both agree with U.S. Supreme Court Justices Sutherland, Van Devanter, McReynolds, and Butler in Adkins v. Children's Hospital in 1923 that sex discrimination as to civil rights became impermissible once the Nineteenth Amendment was adopted in 1920. The majority in Adkins correctly read the Fourteenth Amendment so as to synchronize it with the Nineteenth.
Whelan argues second that under our reading of the Constitution, the Fourteenth Amendment becomes superfluous. If granting racial minorities and women the right to vote in the Fifteenth and Nineteenth Amendments was sufficient to give them equal civil rights then why did we ever need the Fourteenth Amendment in the first place? There are several responses to Whelan on this. First, the Fourteenth Amendment protects the civil rights of important people who are not voters such as children, aliens, and convicted felons. Second, it is the Fourteenth Amendment that outlaws caste so without that Amendment it would be legal to set up non-racial and non-sex based castes as was done in Europe, with feudalism, and in India, with the caste system there. Third, we do not think the Fifteenth and Nineteenth Amendments standing alone would have protected the civil rights of African-Americans and women. It is the synthesis of the no-caste rule of the Fourteenth Amendment along with the Fifteenth and Nineteenth Amendment's designation of race and sex as suspect classifications that renders the Black Codes and the unequal treatment of women as to civil rights unconstitutional. The Constitution needs to be read holistically. Clauses in one part of the document inform the meaning of clauses in other parts of the document and later adopted clauses "amend" everything that went before them. Whelan's view that sex discriminatory laws should be upheld if there is a rational basis for them reflects the New Deal Supreme Court's view that the Constitution should be trashed as exemplified in Wickard v. Filburn or United States v. Carolene Products especially in Footnote 4. The New Dealers barred judicial review generally in social or economic matters unless the Bill of Rights was violated or unless the rights of a discrete and insular minority were violated. Since women are not discrete and insular, Justice Felix Frankfurter had no trouble saying in the 1948 case of Goesaert v. Cleary that Michigan could prohibit women from being bartenders because there was a rational basis in support of the law. We think Justice Rutledge's dissent in Goesaert, joined by Justices Douglas and Murphy, is more compelling. From the Adkins decision in 1923 until its overruling in 1937, the Supreme Court's caselaw recognized the transformative effect of the Nineteenth Amendment on the Fourteenth. The only period of time in the ninety-one years since the ratification of the Nineteenth Amendment when sex discriminatory laws were routinely upheld was in the twenty-three years between Goesaert in 1948 and Reed v. Reed in 1971. We are not fans of Lochner v. New York and are ourselves influenced by the New Dealers' constitutional principles but not to the extent of overlooking the transformation wrought by the Nineteenth Amendment.
This leads us to a final point of disagreement with Whelan, at least for now, which is his claim that the Nineteenth Amendment "only" gave women the right to vote and not other political rights like the right to hold office or to sit on juries. Again, we disagree. As Professor Vik Amar has written, jurors vote on cases just as voters vote for politicians. It is clear that the Nineteenth Amendment's literal ban on all-male juries would seem to be implicated. But the language of the Nineteenth Amendment goes even farther than that. The Amendment says "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex." The use of the verb "abridge," which is read sweepingly when it is used in the First Amendment context with its overbreadth doctrine, is to us telling. Not only can States not deny the right to vote on the basis of sex, they also cannot even abridge or burden the right to vote on the basis of sex. It seems to us that a ban on women running for office would "abridge" or "burden" the power of their votes on account of sex. We thus think the Nineteenth Amendment did secure to women all political rights. Whelan's discussion of this issue also criticizes as insufficient our evidence that the Nineteenth Amendment was understood by those who voted for it to have implications beyond guaranteeing women the vote. But he ignores entirely our evidence that the Nineteenth Amendment was viewed by both its supporters and opponents as a continuation of the Reconstruction Amendments: Opponents warned that the Nineteenth Amendment would bring on a "second Reconstruction," while supporters urged swift passage of a measure they believed should have become part of the Constitution when the Thirteenth, Fourteen, and Fifteenth Amendments were adopted. If women had been guaranteed the vote in 1868, would Whalen still contend that the Fourteenth left them out?
Whelan also argues that the Nineteenth Amendment did not, as we claim, return the Constitution to sex neutrality by excising the word "male" in Section 2 of the Fourteenth Amendment. He argues that if a state passed a law denying everyone over 75 the vote, Section 2 of the Fourteenth Amendment would, even today, punish states on behalf of the disenfranchised men but not the disenfranchised women. But we are convinced that the Nineteenth Amendment, which prohibits both denials and abridgements of the right to vote based on sex, does not countenance punishing states for denying men the vote but not for denying women. Also on the topic of Section 2, Whalen says that he does not understand our assertion that it was difficult to read Section 1 as prohibiting all forms of sex discrimination as to civil rights when Section 2 itself discriminated against women as to political rights. The reason, as we explain in our article, is that laws preventing women from making contracts and being lawyers were not so clearly arbitrary when the Constitution itself seemed to say that women were less fit for decision-making than men.
Whelan concludes by scolding us for applying Fourteenth Amendment equal protection doctrine to the federal government even though the Fifth Amendment has no equal protection clause. Whelan is right to complain about Fifth Amendment substantive due process, but he never asks whether Congress has the enumerated power to discriminate on the basis of sex in the first place. The federal law requiring that only men age 18 or older, and not women, must register for the draft is an exercise of congressional power to pass laws that are necessary and proper for carrying into execution its power to raise armies. Surely it would not be "necessary and proper" for Congress to draft an all-African American or an all white army? Wouldn't we say that the content of the Necessary and Proper Clause had been altered by the synthesis into the Constitution of the Fourteenth and Fifteenth Amendments. Likewise, with all-male draft registration, the Nineteenth Amendment should affect our conclusion as to what means are necessary and proper and which means are not. Unless there is some respect in which the federal government ought to be treated differently from the States with respect to race or sex discrimination, we think such legislation is disallowed.
Finally, we see nothing in the VMI article that Whelan cites that calls into question the statements a VMI spokesman made to Ms. Rickert about the successful integration of the school. That article nowhere indicates that the course of study at VMI (i.e., the curriculum) or the "adversative method" have been altered by the presence of women. Justice Scalia feared that the experience of men at VMI would be fundamentally altered by the presence of women, and Whelan has not shown that those fears have been realized. We take no position on the propriety of VMI's recent choice to evaluate women's and men's physical fitness with reference to different standards of athletic performance, but we do want to make clear that we have never taken the position that women on average are as large and muscular as men on average. Regarding the draft, it may well be that more men than women can meet the physical requirements of combat troops, but to exclude all women from having to register for selective service while requiring all men to register makes little sense, particularly when the article on VMI that Whelan points to shows that a fair percentage of college-aged women can physically outperform a fair percentage of college-aged men. Furthermore, we do not think the constitutional ban on sex discrimination works exactly the same way as the constitutional ban on race discrimination. Just as the Black Codes differed from European feudalism and the Indian Caste system, so too does sex discrimination differ from race discrimination.
We should add that we dedicated our article to Justices Scalia and Ginsburg because we admire them both. We think Scalia-style originalism is consistent with the outcome in VMI.
Saudi Arabia Not Yet Ready to Enter the 18th Century
The Daily Mail reports:
A woman convicted of practising magic and sorcery has been executed by Saudi authorities.... The London-based al-Hayat daily ... quoted Abdullah al-Mohsen, chief of the religious police who arrested the woman, as saying she had tricked people into thinking she could treat illnesses, charging them $800 (£500) per session.
If this was fraud, it should be punishable as fraud. But it seems pretty clear that she was punished not for stealing money from people by lying, but for what the legal system views as the independent crime of witchcraft or attempted witchcraft.
UPDATE: Some commenters expressed some skepticism about the Daily Mail but other news sources say much the same; see, for instance, this AP story and this South Asia News Agency story (though the latter doesn't have the fraud details). Also, I forgot to thank Prof. Howard Friedman (Religion Clause) for the pointer.
State Senator "Said He Would ... Consider Legislative Action If Lowe's Doesn't Apologize to Muslims and Reinstate Its Ads [on 'All American Muslim']"
So reports the Detroit News. "[H]ome improvement giant Lowe's" apparently decided "to yank its ads from the 'All American Muslim' reality TV show after complaints from a conservative Christian group." This is leading to public criticism, but also to the legislator's threat.
Yet it seems to me that every company has the First Amendment right to disassociate itself from TV programs, newspapers, magazines, and the like that it finds objectionable. To be sure, the First Amendment has been held to apply less strongly to commercial advertising than to other speech, and in particular the Court has held that the government may outlaw ads that state a discriminatory preference for prospective employees or, presumably, customers; see Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations (1973), which the Court has also cited favorably since then. Ragin v. New York Times Co. (2d Cir. 1991) has also held that the Fair Housing Act may impose liability for housing advertising campaigns that don't include any black models because of "a race-conscious decision" on the advertisers' part, though the Supreme Court hasn't spoken to the question. But I take it that there's no claim here that Lowe's is trying to deliberately chase away Muslim customers (as opposed to in the real estate context, where it is more plausible that some advertisers might have consciously wanted to have fewer blacks moving into their developments).
Rather, the claim is that Lowe's is refusing to advertise on a program that sends a positive message about Islam in America. And that decision not to support a particular ideological message — whether motivated by Lowe's management's disagreement with the message, or just a decision that this message is too controversial for Lowe's to endorse — strikes me as part of Lowe's First Amendment prerogatives. And of course the analysis would be the same if an advertisers wanted not to advertise on a pro-Scientology program, or on a pro-atheism program (think a militantly anti-religious and advertiser-supported version of Penn & Teller's Bullshit), or on an evangelical Christian broadcasting network. Likewise, some jurisdictions ban discrimination in places of public accommodation, including stores, based on political affiliation; but advertisers have the right to refuse to advertise in pro-Republican or pro-Democrat or pro-Communist or pro-Nazi magazines.
This reflects, I think, the advertiser's right to be free from associating with, and from funding, political, religious, and ideological messages, which strikes me as a matter that is entitled to full First Amendment protection rather than just the more limited protection offered to commercial speech. Note that United States v. United Foods, Inc. (2001) held that producers were entitled to refuse to even pay money towards a commercial advertising campaign with which the producers' names weren't even associated. It strikes me as even more clearly true that producers are entitled to refuse to pay money towards funding an entertainment program with an ideological message, especially when the producers' names would be associated with the program.
This having been said, the exact constitutional scope of antidiscrimination law as applied to commercial advertisers is not fully clear, and United States v. United Foods, Inc. is itself in some tension with Glickman v. Wileman Brothers & Elliott, Inc. (1997), which United Foods distinguished but didn't overrule; perhaps a court will conclude that any proposed Michigan "legislative action" against Lowe's in this case is thus constitutional. But I doubt that it would be so seen, and I don't think that it should be so seen.
As to the merits of Lowe's action, it's hard to tell for sure without having seen the program. But if the program simply depicts American Muslims as ordinary Americans who go about their lives as both good Muslims and good Americans — much as other programs depict American Jews and American Christians the same way — then it seems to me that the campaign to shut off advertising to the program does reflect religious intolerance, and Lowe's should be faulted for giving in to the campaign. Still, I think that it's Lowe's constitutional right to do so.
By the way, note the takeaway practical lesson for businesses, for better or worse: The smart move for advertisers is not to advertise in the first place on programs that might prove politically or religiously controversial, especially if the programs are likely to have relatively small audiences. The decision not to advertise can be made for many possible reasons, and it will be hard to create much outrage about such a decision, even if the suspicion is that the advertiser doesn't want to be associated with (say) a show that depicts Muslims as normal Americans. But once the advertisement is bought, the decision to advertise is visible, and may alienate one segment of customers. And any decision to pull the advertisement will also be visible, and will thus alienate another segment of customers. So an economically rational advertiser will likely choose not even to experiment with advertising on programs such as this, since any experiment will be very expensive to back out of. Thanks to Ed Grinberg for the pointer.
What Does the Federal Government Do?
So states have different rules about who can get married, and states also have different rules about which state's law to look to when a same-sex couple moves around the country. Now it's time to answer the question some of you have been patiently waiting with: what does the federal government normally do about this? As I've noted, outside of the DOMA context, the federal government usually looks to state law, and surely there must be other areas where state law differs. So what do the feds do?
The answer is ... it's an even bigger mess! Notice that as a matter of legal theory and doctrine the question we're asking here isn't necessarily marriage-specific. Rather, it can be asked more generally as: "when federal law relies upon state law, what's the system for choosing which state's law?" In the twentieth century, federal courts have adopted at least three different approaches to this problem.
One approach is based off of a choice-of-law classic called Klaxon v. Stentor Electric Manufacturing (I've always loved the name of this case, and it may be the real reason I got into conflicts in the first place). Klaxon is the rule that the courts apply to the similar problem in diversity cases. It says that you apply the same choice-of-law rule as would be applied by a state court in the state where the district court is physically located. If you sue in the federal district of New Jersey, you apply New Jersey choice-of-law principles; if you sue in the southern district of New York, you apply New York choice-of-law principles. It has nothing to do with where any of the actions in the case took place — it's just about where the plaintiff decides to bring the lawsuit.
As I said, this is the law in so-called diversity jurisdiction, which features cases that are brought entirely under state law, but which nonetheless get to federal court. It's designed to make the federal court imitate the equivalent state court as closely as possible. Some courts have also applied this rule to cases brought under federal law, which would include the marital choice-of-law situation we're talking about here.
A second approach is for federal courts to make up their own choice-of-law rule as a matter of so-called "federal common law." The good news is that this gets you away from the weird formalism of the Klaxon rule. The bad news is that now the federal court has to come up with a rule. And within this approach, federal courts have come up with all sorts of different rules for marriage.
For example, in Tatum v. Tatum, an old Ninth Circuit case about life insurance for a federal employee named Erwin Tatum (who had a somewhat exciting romantic life, for a postal worker), the court summarized the state of disagreement about the life insurance statute as follows (with citations omitted):
Under similar conditions, the adjudicated National Service Life Insurance Act cases have produced differing conclusions. One point of unanimity is that state law will govern. But there exists little agreement as to what state law is applicable. Some would view the law of the place of marriage as controlling; others would be guided by the law of the domicile of the parties, either at the time of the marriage, or when the alleged claim accrues; another court has declined to resolve the matter.
This was over fifty years ago, and things haven't gotten much clearer! Some courts follow their own ad hoc rules, some look to one of the Restatements. So this approach is really a welter of sub-approaches.
Finally, the third approach is to sort of give up on using state law after all. This is the least common solution (hence the point that marriage is usually a creature of state law) but it's a thread that some courts return to. Commenter "Andy Grewal" summarizes this attitude pretty well:
That is, if a federal statute generally refers to marriage under state law, but SSM is not what Congress had in mind when it used the term "marriage," then SSM should not qualify under the federal statute whether recognized in a the couple's home state or not. On the flip side, if Congress intended to reach marriages of any sort when it (e.g.) refers to a married couple in the tax code, the fact that the residence state does not recognize a same-sex couple's marriage should not disqualify the couple from the federal statute.
So in at least two cases, federal courts have done something like this. One is an old case called Borax, where the Second Circuit held that a couple was married for purposes of the tax code even though the man's prior divorce was invalid under state law. Judge Friendly (one of Orin's favorite judges) dissented. Another is Adams v. Howerton, a Ninth Circuit case that actually deals with same-sex marriage. But the case is from 1982, so it was easy for the court to say that the "ordinary, contemporary, common meaning" of the word "marriage" meant only opposite-sex marriages. That would be a much more debatable claim today!
So federal courts are all over the place. The Supreme Court has never resolved this issue and individual circuits waffle back and forth between different approaches. Discovering these sets of federal cases, and learning how little people knew about them, inspired me to write my paper. In some more posts, I'll explain which approach I think should be used.
Court Denies Motion to Provide Access to Social Networking Sites in Civil Discovery
The decision by the Pennsylvania Court of Common Pleas is Arcq v. Fields (Dec. 8), and it distinguishes Largent v. Reed (blogged about recently here) on the ground that the party seeking discovery lacked a sufficient good-faith basis for requesting access to the private portion of the other side's social networking accounts. In Largent, and in other cases, the party seeking discovery saw the public portion of her adversary's Facebook account, and therefore had a basis to conclude that there may be relevant information in the private portions of the account. In Arcq, by contrast, the party seeking discovery made a blanket request for access to all of the other side's social networking accounts, and yet didn't know if his adversary even had any such accounts. The court in Arcq concludes that because the moving party did not first see the public portion of his adversary's site, he lacks a good-faith basis to believe that there is relevant evidence in the private portions and therefore the motion to access the social networking sites is denied.
Thanks to Dissent for sending on a copy of the opinion.
Selling Swipes from Unlimited Subway Card Isn't Larceny, Court Rules
If you buy a card that allows you unlimited access to a city subway system, and you then sell swipes from your card to let others access the subway system on your card, are you guilty of theft? No, says the New York Court of Appeals in People v. Hightower (Dec. 11), because you legitimately own the access that you are selling:
The Authority was not deprived of the unknown amount of money that defendant accepted from the subway rider because it never owned those funds.
In People v Nappo (94 NY2d 564 [2000]), we held that the State was not the "owner" of uncollected taxes within the meaning of the statutory definition of the term because "taxes due were not the property of the State prior to their remittance" (id. at 566). Here, the unknown amount of money paid to defendant could have been due and owing to the NYCTA, but as was the case in Nappo, the NYCTA never acquired a sufficient interest in the money to become an "owner" within the meaning of Penal Law § 155.00 (5). In Nappo, we recognized that once a trustee has collected the funds, then they can be said to be the property of the ultimate recipient: "the State may be deemed the 'owner' of 'collected' but unremitted sales taxes"(id. at 567). Here, as in Nappo, "defendant[] w[as] not in possession, by trust or otherwise, of monies owned by the [NYCTA] (id.).
The People argue that defendant deprived the NYCTA of a portion of its business and therefore he is guilty of petit larceny. We have held that taking away a portion of a person or entity's business through extortion constitutes larceny (see People v Spatarella, 34 NY2d 157, 162 [1974]). However, we decline to extend that reasoning to these facts because here we must assume that the NYCTA voluntarily transferred this valid MetroCard in a manner consistent with its ordinary course of business by selling the card and receiving the price it set. By contrast, in Spatarella, the victim was compelled to give up a business customer (who, unlike the uncollected taxes in Nappo, was already within his "control" and "possession") to one of the defendants when that defendant threatened the victim with physical injury.
Accordingly, there is no basis upon which the petit larceny charge in the accusatory instrument can be upheld.
The New York Times adds (h/t: Blake Reid):
A spokeswoman for the district attorney's office in Manhattan, which argued against the appeal, said the office would continue prosecuting cases of MetroCard frauds using other laws. "Selling a swipe is still illegal," the spokeswoman, Erin Duggan, said.
Those convicted of similar schemes who had been charged with petty larceny can now appeal those decisions. But prosecutors do not expect many appeals, since the punishment, usually brief community service or a day in jail, is relatively light.
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