Eugene Volokh's Blog, page 2667
November 21, 2011
My Article on Slippery Slope Issues in the Individual Mandate Litigation
I have recently posted to SSRN a forthcoming article on slippery slope issues in the individual mandate litigation. The article is part of a symposium in Law and Contemporary Problems. Here's the abstract:
The 2010 Affordable Care Act's individual mandate has given rise to one of the most important constitutional disputes in recent decades. The provision in question requires that most Americans purchase health insurance by 2014.
Both sides in the mandate litigation have argued that we will be sliding down a dangerous slippery slope if their opponents prevail. Despite the prominent role of slippery slope arguments on both sides of the case, the extensive academic commentary on the mandate litigation does not yet include a comprehensive analysis of this aspect of the dispute. This article seeks to fill the gap in the literature.
Part I considers the slippery slope arguments against the individual health insurance mandate. I conclude that the federal government's arguments really do lead to an unlimited congressional power to impose almost any mandate. The same result occurs under all three of the government's major arguments for the constitutionality of the mandate: claims that the mandate is authorized by the Commerce Clause, the Tax Clause, and the Necessary and Proper Clause. In addition, there is a substantial likelihood that Congress will take advantage of an unconstrained power to impose mandates for the purpose of benefiting favored interest groups.
Part II provides a similar assessment of slippery slope arguments put forward by defenders of the mandate, focusing on fears that striking it down would lead to the restoration of Lochner, the unraveling of precedents upholding major post-New Deal government programs, and prevent Congress from enacting important regulatory measures in the future. Such logical implications do not arise from the most likely path by which the Court might strike down the mandate: holding that Congress cannot use the Commerce Clause and Necessary and Proper Clause to regulate "inactivity," defined as imposing mandates merely on the basis of one's presence in the United States. Such a decision would leave intact all existing precedents and major government programs. And it would not even come close to restoring Lochner. It is, however, possible that a decision striking down the mandate would lead to incrementally more vigorous enforcement of structural limits on congressional power at the margin.
November 20, 2011
Is a Serial Fabulist Fit to Practice Law?
Stephen Glass, the disgraced writer for The New Republic who penned stories that were too good to be true (and whose exploits inspired the movie "Shattered Glass") wants to be a lawyer. But is a journalist exposed as a serial fabricator fit to practice law? The New York Bar said no. Now, The Recorder reports, Glass is trying California, and his case is going to the state supreme court.
Glass moved to California and passed the bar exam here. But in 2009 the Committee of Bar Examiners declined to certify his moral fitness, noting, like New York, his history of lies. Glass then petitioned the State Bar Court's hearing department, which disagreed with the committee and found the would-be lawyer had the necessary "good moral character." The hearing officer declared Glass' 22 supporting witnesses to be "outstanding" and credible.
The committee took the case to the three-judge review department, which in July, on a 2–1 vote, found that Glass had indeed rehabilitated his moral shortcomings and should be certified for admission to the Bar. Now the Committee of Bar Examiners has successfully asked the state Supreme Court to step in.
"In light of the serious misconduct that occurred, albeit a decade ago, [Glass] did not show in the commission's eyes significant rehabilitation," Grunberg said. "He just hasn't shown that he holds those values that we hold dear."
The question is likely to be decided in early 2012.
Herman Cain's Political Ignorance
Conservative columnist Rich Lowry has an interesting piece on Herman Cain's ignorance about major public policy:
At a meeting with the editors of the Milwaukee Journal Sentinel, Cain was asked whether he agreed with Pres. Barack Obama's handling of Libya. You would think he had been asked who is the president of Ubeki-beki-beki-beki-stan-stan, Cain's joshing description of a prototypical gotcha foreign-policy question. What ensued was the longest five minutes of an editorial-board meeting ever.
Cain paused. Then he asked for a lifeline by trying to confirm with his questioner that President Obama supported the Libyan uprising. He started to say why he disagreed with Obama, but stopped after realizing, "No, that's a different one." He hesitated again. "Got all this stuff twirling around in my head," he explained.
Cain hadn't been asked about an obscure conflict or one distant in time. We're not talking the War of Jenkins's Ear or the Second Peloponnesian War. He seemed to all but have missed that there had recently been a Libyan War that had taxed the capacities of NATO, created an intense conflict with Congress over presidential war powers, teetered on the brink of failure, and divided conservatives....
His typical answer on national-security questions is that he would consult the experts, a thinly disguised dodge. What if the experts are wrong (as they often are) or disagree (as they often do)? Because Cain has no independent knowledge base or bearings, he would be entirely a creature of others on foreign policy.
It's not as though he's a wonk on domestic policy, either. He's tied himself in knots on abortion, contradicted himself on an electrified border fence, and demonstrated an unfamiliarity with the basics of Medicare policy. Even on his signature issue, 9–9-9, he relies on repetition and assertion more than detailed argument.
It's easy to find examples of Democratic politicians who demonstrate comparably egregious ignorance. But that does not excuse Cain. If you want to be president of the United States, you should have at least a basic knowledge of the issues the office is responsible for.
One can argue that Cain will simply bone up on the issues after taking office. But any such expectation is highly unrealistic. Presidents work under tremendous time pressure, especially early in their tenure, which is when they have the greatest chance of implementing major changes in policy. There is little time for study at that point. Most of the public policy knowledge a president uses in office is knowledge he brought there with him.
Cain's defenders could also claim that his ignorance is irrelevant because, once in power, he can just rely on the advice of experts. Obviously, every president must rely on advisers to a great extent. But in order to make effective use of those experts, a president needs to have at least a basic understanding of what they're talking about. That's especially true in the many cases where experts disagree and the president has to decide whose advice to follow.
Cain's shortcomings in this respect are reminiscent of Sarah Palin's troubles in the 2008 election. There is, however, a crucial difference. Palin didn't know that she was going to be nominated for VP until shortly before it was announced. Before 2008, she had little incentive to study national issues; as governor of Alaska and mayor of Wasilla, she only needed to be familiar with local and state policy, which by all accounts she knew reasonably well. By contrast, Cain has been running for president for many months, and presumably knew that he was going to enter the race months before then. Moreover, he also ran for a Senate seat back in 2004. So he has had far more opportunity than Palin did to study up on the basics of national public policy issues. The fact that he hasn't chosen to do so is telling.
As in the case of Palin, there is an important difference between ignorance and stupidity. Cain is a successful business executive, and clearly has more than enough intellectual ability to understand the basics of public policy, including Obama's Libya policy. The problem is not lack of ability, but lack of effort.
What the NYT Article on Law Schools Gets Right
While there's a lot worth criticizing in David Segal's NYT article about law professors and law schools — Matt Bodie covers a lot of good ground in this post at Prawfs — there's an underlying point that I think is both important and correct: Law professors, at especially the "top" law schools, are becoming less connected to the legal profession. As a result, over time, they are less likely to know — and therefore less able to teach — the perspective an experienced lawyer would bring to legal problems.
Richard Posner made this point nicely in his 2007 essay celebrating the life of his late colleague Bernard Meltzer. Posner begins by describing the professional identities of law professors before the 1960s:
Law professors used to identify primarily with the legal profession and secondarily with the university. . . . Law professors in that earlier era were hired after a few years of practice, on the basis of evidence (heavily weighted by performance as a law student) of possessing superlative skills of legal analysis. A law professor was expected to be a superb lawyer and to see his primary role as instructing generations of law students so that they would become good, and some of them superb, lawyers—instructing them by precept but also by example, by being a role model; and the role was that of a practicing lawyer.
That all changes starting in the 1960s, Posner argues: Now law professors identify academics first, and with the legal profession second or not at all. Posner argues that this switch has real costs to students, as law professors who identified with the legal profession served as role models for students who were trying to master the craft of lawyering:
Even at the most intellectually ambitious of the modern law schools, a large majority of students will become and remain practicing lawyers; and there is a good deal more to the practice of law than economics, or philosophy, or feminism, or theories of race. There is the knack of reading cases and statutes creatively, there is a largish body of basic legal concepts that every practicing lawyer should internalize, there is a bag of rhetorical tricks to be acquired along with a professional demeanor, a procedural system to be mastered, a subtle sense ("judgment") of just how far one can go in stretching the limits of established legal doctrines to be absorbed.
Posner then argues that while you wouldn't want every law professor to be completely oriented to the profession, law schools should strive for balance between the profession-oriented legal academics and the university-oriented legal academics.
[The practical lawyer's sense] cannot be the entirety of the modern lawyer's professional equipment, and their inculcation cannot be the entirety of a first-rate modern legal education, because the law has become too deeply interfused with the methods and insights of other fields—and the law schools are still lagging badly in attempting to overcome the shameful aversion of most law students to statistics, math, science, and technology. Maybe at the law schools that have the brightest students only a third of the instruction should be in the traditional mold. But to reach that level the law schools will have to start hiring teachers who identify more strongly with the practicing profession than they do with academia.
I don't know what the right balance is, but I do think that students are best served when their classes are taught by professors with a mix of approaches.
Rare Late-Season Tropical Storm
Just in case you've been wondering where I've been:
Tropical Storm Kenneth has formed in the eastern Pacific Ocean, with forecasters calling it a rare late-season tropical storm. The U.S. National Hurricane Center in Miami said Sunday that Kenneth had maximum sustained winds near 40 mph (65 kph). The storm was centered about 525 miles (845 kilometers) south of Manzanillo, Mexico. Projections show Kenneth moving west out to sea, away from land, over the next several days.
Protecting (the Government's) Right to a Jury Trial
State legislators in Ohio are considering legislation that would enable criminal prosecutors to insist on a jury trial even when a criminal defendant waives that rate and asks for a bench trial. The Cleveland Plain Dealer reports:
Ohio prosecutors want to change the law to give themselves veto power when a criminal defendant chooses to have his case heard by a judge instead of a jury. . . .
"The whole jurisprudence system is based on the jury system," [state legislator Lynn] Slaby said. "Until we do away with juries entirely, it's more fair to have both sides have a right to a jury trial."
As the article notes, this proposal is not revolutionary. Although criminal defendants have a constitutional right to trial by jury, they are not guaranteed the ability to waive this right.
What Should Law Schools Teach? (What Should the NYT Learn?)
Today's NYT has a lengthy front-page article on legal education suggesting that a major problem with legal education is the failure to teach law students how to practice law. There is something to this complaint — some schools and some legal academics do relatively little to prepare their students for practice and there is much relatively worthless legal scholarship — but the article overstates the case, fails to identify workable alternatives, and makes various errors about legal education and scholarship along the way. For instance, the article identifies a philosophy paper, published in a philosophy journal, as an example of how legal scholarship is divorced from legal practice. The article simultaneously harps on the high cost of legal education and suggests more clinical education is a good way to help prepare law students to practice law. Yet the article makes no mention of the fact that clinical education is more expensive than traditional doctrine-oriented classes.
For more on the article, see these comments from Matt Bodie, Brian Leiter, Jason Mazzone, and Larry Ribstein. As Ribstein notes, if one really wants to understand what's going in on legal education, the good and the bad, one's better off reading legal bloggers than the NYT.
Adele Tops the Supremes
Why is there so much bad privacy law, and so many privacy victims? Here's my theory. Privacy advocates exploit that first uncomfortable moment when we realize that technology is changing our world, offering a Luddite illusion that law can prevent uncomfortable change. The result is laws and court rulings on privacy that quickly become quaint.
It's not hard to find support for that view if you compare United States v. Jones, the GPS 4th Amendment case, with an article in today's Washington Post about the rapid spread of license plate readers:
When stored over time, the collected data can be used instantaneously or can help with complex analysis, such as whether a car appears to have been followed by another car or if cars are traveling in a convoy.
Police also have begun using them as a tool to prevent crime. By positioning them in nightclub parking lots, for example, police can collect information about who is there. If members of rival gangs appear at a club, police can send patrol cars there to squelch any flare-ups before they turn violent. After a crime, police can gather a list of potential witnesses in seconds.
…
Arlington police cars equipped with the readers regularly drive through the parking garage at the Pentagon City mall looking for stolen cars, checking hundreds of them in a matter of minutes as they cruise up and down the aisles.
At the same time that license plate readers are spreading across the landscape, companies like Google and Apple are investing heavily in location-based services for smartphones. As a result, we're rapidly losing any expectation that our location is private. These fast-moving technologies make the technique at issue in Jones – whether law enforcement can physically attach a GPS tracking device to a suspect's car – seem almost antediluvian.
Recall the moment that many journalists treated as the critical coup de grace for the government in Jones. Pressing the SG's office about GPS tracking of Supreme Court Justices, Chief Justice Roberts asked, "So your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?" Many reporters and lawyers thought that this question was a killer for the government, likely hoping that the Court will ride to privacy's rescue and impose constitutional constraints on such tracking.
That may be so, but what the Court says about location privacy in Jones is not likely to stand the test of time. It's as caught in the present moment as Adele's "Someone Like You" – and a little less likely to endure. If the case had come up ten years ago, the Court, unthreatened by the location revolution, would likely have accepted the SG's answer — that the FBI could physically follow the Justices' movements in public without causing a constitutional concern, and a GPS device shouldn't be viewed differently. And if the case came up ten years from now, the SG would answer, "Chief Justice Roberts, we don't need to attach a GPS device to your car. We can already track its movements with no warrant in a license plate database that is always getting bigger and more effective. And we already have subpoena access to the third party location-based service providers that you all authorized when you activated your smart phones. Hell, soon, those services are going to merge. People will mount dirt-cheap cloud-connected license-plate reading cameras on their cars as protection against a hit-and-run or road-rage attack — or to help the police find a kidnapper. No one is going to expect privacy in their car's location then."
In 2021, I predict, thirty-somethings will snuggle nostalgically to "Someone Like You," and reminisce about the days when their parents didn't know where they were – while smugly congratulating themselves that their kids will never be able to do the same to them.
And if the Court imposes constitutional restrictions on GPS tracking in Jones? What will be the ruling's fate in 2021? It seems to me that the debate is going to end in one of two ways. Either constitutional restrictions on GPS devices will become a forgotten corner of the law, as law enforcement moves to newer location tracking techniques, or the Court will begin a campaign it cannot win – trying to regulate a host of location technologies in a vain effort to preserve twentieth century notions of privacy.
That's where dumb privacy law comes from.
Photo credits: Thanks to Francis Storr in Flickr and to Amazon.co.uk
November 19, 2011
Three Academic Books on International Law and Counterterrorism
Over at Lawfare, I have posted a new review of three books on international law, war, and counterterrorism, with a particular focus on the changing shape of counterterrorism through drone warfare and targeted killing. The three books are all technical and academic, so not everyone's cup of tea. Sample below the fold.
Noam Lubell, Extraterritorial Use of Force Against Non-State Actors (Oxford 2010)
Kimberley N. Trapp, State Responsibility for International Terrorism (Oxford 2011)
Hew Strachan and Sibylle Scheipers, The Changing Character of War (Oxford 2011)
As the Obama administration winds down the conventional wars that arose after 9/11, Afghanistan and Iraq, the focus of US counterterrorism use-of-force abroad will gravitate more and more toward discrete, "intelligence-driven uses of force" that taken individually, were they not already part of an overall armed conflict against Al Qaeda, might not rise to the level of sustained fighting that constitutes a NIAC. It will be a distinctly minority part of the national security strategy of the United States – as NATO fades in importance and the South China Sea looms – but it, whether through drones or human teams from CIA and military joint special operations, will be the preferred mechanism for using force in cross-border counterterrorism. Other things will alter that in the future, but today, this is more precisely what the changing character of counterterrorism war against non-state actors looks like. It is perhaps time to start talking about the legal standards in jus ad bellum and jus in bello for "intelligence-driven uses of force" in their increasing variety – or what, more colloquially, would be called covert action.
Court Grants Temporary Restraining Order Against Possible Removal of Occupy Boston Encampment
The decision came in Occupy Boston v. City of Boston (Mass. Super. Ct. Nov. 17, 2011); the hearing on the preliminary injunction is set for Dec. 1.
The First Amendment analysis in the decision is quite thin: The court concludes that the plaintiffs have the requisite likelihood of success on their First Amendment claim because their encampment is symbolic expression. But the question isn't just whether the encampment is presumptively protected by the First Amendment — it's whether there are valid content-neutral city ordinances or state laws that permissibly restrict such camping.
By way of analogy, imagine someone came to court asking for an order barring the police from shutting down an unlicensed parade down a busy street. The parade is surely symbolic expression; but the question is whether there's a content-neutral law that nonetheless constitutionally restricts the parade (in the hypothetical, traffic laws coupled with a content-neutral scheme for allowing parade permits in certain places at certain times). And given that Clark v. CCNV (1984) upheld the constitutionality of limits on sleeping in parks, it seems likely that some content-neutral restrictions on Occupy encampments are constitutional (if Boston or Massachusetts do indeed implement such restrictions).
This having been said, two experienced Massachusetts lawyers who are familiar with the case (and who are sympathetic to the result) tell me that Massachusetts state court practice is often to issue such TROs based on highly abbreviated analysis, just to preserve the status quo pending a more thorough hearing. So the decision on the preliminary injunction will presumably go through the First Amendment questions in more detail.
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