Tom Friedman can't see the elephant (or smell the rotting pig)

Sandy Levinson

Jack, among others, has commented on Tom Friedman's column in the Sunday New York Times calling for a third-party in 2012. Friedman quotes Stanford political scienitst Larry Diamond: "We basically have two bankrupt parties bankrupting the country." Friedman sounds like James Madison in condemning those now "leading" our country for a basic lack of republican virtue (as in "Republican Form of Government," not maximizing the interests of the Republican Party, which the Madison of the Federalst almost certainly would have regarded--like the Democratic Party--as a basically wicked "faction"). There is much to agree with in the column, and I think it's altogether possible that we will have a four-party election in which David Petraeus will be the Republican candidate, Sarah Palin will represent the Tea party, Barack Obama the Democrats, and Michael Blomberg (with Evan Bayh) the Friedmanite "responsible centrists."

But why can't Friedman connect the basic dots and realize that he is simply regurgitating one aspect of early 20th century Progressivism, i.e., the denunciation of wicked politicians and the valorization of elites ostensibly committed to the "common good" instead of the "interests," without recognizing what at least some Progressives, including Woodrow Wilson and Teddy Roosevelt (who are, interesting enough, very high on the enemies list of Glen Beck, who might well run as Palin's vice president), that we have a radically defective Constitution? Indeed, that period brought us a number of important constitutional amendments, including the 17th Amendment that at least some Tea Partiers are trying to repeal in order to give selection of senators back to state legislatures.
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Posted 10:58 AM by Sandy Levinson [link] (4) comments

The Tea Party: Puppet or Windup Toy?

JB

Glenn Reynolds informs us that he told us so: the Tea Party is the result of an Army of Davids self-organizing, routing around traditional power centers,"tak[ing] on big institutions who would rather not listen to them, and win[ning]". Jonathan Rauch at the National Journal marvels at the Tea Party's ability to organize without central leadership.

Meanwhile, in her New Yorker piece "Covert Operations," Jane Mayer points out that various Tea Party organizations are well funded by anonymous contributions from wealthy and powerful industrialists, while Frank Rich of the New York Times, in his "Billionaires Bankrolling the Tea Party," points out the role of Freedom Works, and the many rich and powerful interests that are using the different strands of the Tea Party for their own ends, while Paul Krugman chimes in with a similar assessment.
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Posted 6:50 AM by JB [link]

The Senate Confirmation Process

Gerard N. Magliocca

The following is an op-ed of mine that appears in today's Indianapolis Star. While this is a small piece of the problem that Jack discussed yesterday, I think that it's important.

Posted 7:55 AM by Gerard N. Magliocca [link]

The Senate Must Be Reformed

JB

Tom Friedman argues that there will be a third party candidate in 2012 because people are sick and tired of the two-party system. His concern?

a president who won a sweeping political mandate, propelled by an energized youth movement and with control of both the House and the Senate — about as much power as any president could ever hope to muster in peacetime — was only able to pass an expansion of health care that is a suboptimal amalgam of tortured compromises that no one is certain will work or that we can afford (and doesn’t deal with the cost or quality problems), a limited stimulus that has not relieved unemployment or fixed our infrastructure, and a financial regulation bill that still needs to be interpreted by regulators because no one could agree on crucial provisions. Plus, Obama had to abandon an energy-climate bill altogether, and if the G.O.P. takes back the House, we may not have an energy bill until 2013.

But all of these half measures resulted not from lack of political will or from a bankrupt two party system, but from the Senate's ridiculous rules, including the filibuster, which requires 60 votes to pass anything. With the filibuster, the likes of Ben Nelson (Mr. Cornhusker compromise) and Joe Lieberman (who depends heavily on support from insurance companies) decide national policy. Without the filibuster, one needs only 50 Democrats plus the Vice-President to pass reform legislation in the Senate. Without the filibuster, the stimulus is larger, heath care reform includes different (and likely better) compromises, and the financial regulation bill has teeth. Change the Senate rules, and American democracy works again--hardly perfectly, for it has many many other problems besides--but far better than it has for the last two decades.

The problem, as I have said over and over again since Obama's election, is the Senate. It has been for some time. If we want to save American democracy, the Senate has to be reformed.
Posted 9:00 AM by JB [link]

Punishment and the Constitution in 2020: Luck or Law? The (Uneasy) Constitutional Case Against Indeterminate Sentencing

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

Dan Markel

Nearly forty years ago, Judge Marvin Frankel famously spotlighted attention on the uncabined discretion available to judges in sentencing matters, writing that "[t]he almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law." At the time, such "unchecked and sweeping" powers belonged not only to federal judges but also state judges who similarly operated with little structure or appellate review to guide sentencing choices. As we all know now, Frankel’s policy entrepreneurship helped create the conditions for sentencing reform at the federal level and across many states over the subsequent four decades.

What is less well-known, however, is that trial judges in the majority of states in this nation still operate without any meaningful structure or appellate review to guide sentencing choices. Indeterminate sentencing -- by which an offender can face an increase in punishment simply for having a surly demeanor or for having been suspected of charges that were never brought -- is a design that still prevails around the several states. Perhaps less disconcerting (to some) but no less odd (to many), a defendant can receive a reduction in punishment from that which would otherwise be given because the judge knows the defendant goes to church or has done some form of community service in the past.
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Posted 6:00 AM by Guest Blogger [link]

Fix Medicare's Bizarre Auction Program

Ian Ayres

Crosspost from Freakonomics:

Here’s a piece co-authored with auction guru Peter Cramton, a professor of economics at the University of Maryland:

Fix Medicare’s Bizarre Auction Program

By Ian Ayres and Peter Cramton

Harry Truman once quipped, “Give me a one-handed economist! All my economists say, ‘On the one hand, on the other’” Often even a lone economist has difficulty making a recommendation. While true on certain matters, there are many issues where economists do agree about the right and wrong course of action. A case in point is competitive bidding for Medicare supplies.

Economists and other auction experts agree that using administrative prices from 25 years ago to set Medicare prices is a bad idea, and that a much better approach is to price Medicare supplies in competitive auctions. That is not surprising. What is surprising is the degree of consensus that Medicare’s shift to auctions is fatally flawed and must be fixed for the Medicare auctions to succeed in lowering costs while maintaining quality for medical equipment and supplies.

For the last ten years, the Centers for Medicare and Medicaid Services has been testing an auction approach that is incredible in the inefficiency of its flawed design. This policy brief lays out a number of weaknesses with the auction procedure but it is sufficient to focus on the interaction of just two:

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Posted 3:20 PM by Ian Ayres [link]

Bodies, Borders, and the National Security Sovereign

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

John T. Parry

In “America and the World, 2020,” one of the essays in The Constitution in 2020, Harold Koh suggests that before 2001, the executive branch was “checked by an energetic Congress and overseen by a searching judicial branch,” and there were no such things as “law-free zones, practices, courts, or persons” (316). He follows these claims with a catalog of some of the George W. Bush administration’s post-9/11 claims about expansive executive authority over national security issues.

There is no question that the Bush administration had a strong conception of itself as a “national security sovereign.” But Koh’s phrasing suggests that this conception was a new thing in American law and politics – that before 2001, the president was constrained and hemmed in by the other branches and by a pervasive rule of law.

I want to contest that claim from the perspectives of the law of international extradition and the practice of irregular rendition as they existed before the “war on terror.” Extradition traditionally has been an area – like immigration – in which the executive branch enjoys enormous discretion over the movement of bodies across borders and in which federal courts tend to defer to executive action. Thus, Second Circuit Judge Jon O. Newman wrote in LoDuca v. United States (1996) that, if there were no federal extradition statute, “the Executive Branch would retain plenary authority to extradite.” Plenary authority, that is, to seize people and expel them from the United States without process so that they can face criminal proceedings in another country. Statements of this kind – and there are many in the federal reports – indicate that extradition provides a useful way to get at the nature of the national security sovereign today and to say a bit about the kind of national security sovereign we might have in 2020.
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Posted 6:53 AM by Guest Blogger [link]

Selling My Addiction

Ian Ayres

Crosspost from Freakonomics:

An unusual auction began late yesterday on eBay. I’m selling my “right to regain weight.” Why would anyone in their right mind be willing to pay me cash to buy this right? What does this even mean?

It’s simple. The winner of the auction wins the rights to receive any forfeitures on my stickK weight maintenance contracts over the course of the next year. As I say in the eBay item description:

Following the auction’s close (and as soon as I receive payment from the auction winner), I will designate the winner as the recipient of any forfeiture payments made on my www.stickK.com maintenance contracts for the next 52 weeks.

Any week during this 52-week period where

(i) I fail to report to stickK my progress on the contract;

(ii) I report that my weight is above 185; or

(iii) My referee, Barry Nalebuff (Yale game-theorist and Ayres coauthor), reports that my weight is above 185 lbs

the auction winner will receive $500.

So, I’m selling the right to receive any and all stickK forfeitures during the next year. I’m auctioning my stickK contracts. Since I’m putting $500 at risk each week, the auction winner will receive somewhere between $0 and $26,000.

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Posted 2:10 PM by Ian Ayres [link]

Information Empowerment and Social Control

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

Wayne A. Logan

It is safe to assume that in 2020, like today, a significant majority of the nation’s convicts will be subject to community supervision of some kind, not prison or jail. If the recent past serves as a guide, the correctional regime that they experience will be heavily information-based.

Convict information, assembled and disseminated to communities, played a linchpin role in what was arguably the defining social control innovation of the late twentieth century, sex offender registration and community notification (RCN) laws. The laws, now in effect nationwide and sweeping up roughly 700,000 individuals, utilize two distinct yet complementary information-based strategies. With registration, targeted individuals must provide identifying information to governments in the hope of instilling a surveillance effect (hence deterring recidivist misconduct) and enabling police to investigate reported sexual offenses. With community notification, this information is spread among communities, in the hope of empowering families and individuals with information to take self-protective measures against sexual abuse and to help police monitor registrants.
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Posted 6:08 AM by Guest Blogger [link]

Fired By Software

Frank Pasquale

There's a very interesting piece by Mike Elgan called "Pre-Crime Comes to the HR Dept." After describing new technology designed to predict applicants' and employees' future behavior, he concludes:

Following the current trend lines, very soon social networking spiders and predictive analytics engines will be working night and day scanning the Internet and using that data to predict what every employee is likely to do in the future. This capability will simply be baked right in to HR software suites.

When the software decides that you're going to quit, steal company secrets, break the law, post something indecent on a social network or lie on your expense report, the supervising manager will be notified and action will be taken -- before you make the predicted transgression.

Like Danielle Citron's piece on Technological Due Process, Elgan's article discloses the troubling consequences of these trends. As he points out, unlike normal legal proceedings, in personnel actions "You don't get to 'face your accuser.' You can be passed over for hiring or promotion based on what kind of person you are or what they think you might do in the future. You don't have to actually violate company rules, and they don't have to prove it."
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Posted 4:01 PM by Frank Pasquale [link]

More Doubt About the "Scholarly Impact" Ranking

Brian Tamanaha

In a recent post I raised several doubts about the validity of the new "Scholarly Impact" Ranking. My basic argument is that citation counts are a poor measure of "scholarly impact." Exhibit A in support of my argument came this week in the announcement that Harvard Law Professor Annette Gordon-Reed was awarded a MacArthur Fellowship:

Annette Gordon-Reed has an important new honor to add to her long list of recent accolades: a MacArthur Fellowship, sometimes called the "genius award." In 2010 she was awarded the National Humanities Medal. In 2009, her latest book The Hemingses of Monticello: An American Family won the Pulitzer Prize, the National Book Award, the George Washington Book Award, and she was also awarded a Guggenheim Fellowship.

Compare the above (remarkable, spectacular) achievements with Professor Gordon-Reed's citation count (from 1/1/2005 to present): 25.

Obviously there is something wrong with relying upon citation counts to measure "scholarly impact."
Posted 10:57 AM by Brian Tamanaha [link] (6) comments

The Constitution in 2020 and the Secret Sentence: Rethinking Collateral Consequences

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

Gabriel “Jack” Chin.

Since the 1970s, the central characteristic of the U.S. criminal justice system has been mass incarceration, which involves more people being imprisoned for longer periods of time. As to prison sentences and other traditional forms of punishment, such as probation, and fines, current constitutional doctrine accommodated the changes reasonably well. A defendant is entitled to counsel in connection with a criminal prosecution, including sentence issues, and, when pleading guilty, to notice from the judge of the potential imprisonment, probation and fine. In addition, criminal punishments are fixed at the time the conduct occurs; criminal codes provide for a maximum term of imprisonment for particular offenses, for example, which cannot be lengthened ex post facto, even if the legislature decides that penalties were too low. Some, including me, agree with Justice Kennedy’s famous 2003 speech to the American Bar Association which concluded that “Our resources are misspent, our punishments too severe, our sentences too long.” Yet, in terms of determinability and notice, the Constitution regulates imprisonment and fines in criminal cases reasonably fairly: What you see is what you get.

However, even with the unprecedented imprisonment rate, the most lasting social effects of criminal convictions are not about prison. Most of the 1.1 million or so people convicted of a felony each year—sixty percent—never go to prison. They receive straight probation or probation plus some time in jail. Misdemeanor convictions are even less likely to result in incarceration. In addition, even those convicted of felonies and sentenced to prison receive an average term of less than five years. Even now, then, the vast majority of people convicted of a felony will spend all or almost all of their lives out of the direct control of the criminal justice system—not in prison, and not on probation or some other form of supervision.
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Posted 6:31 AM by Guest Blogger [link]

The (Still) Unaddressed Threshold Question: What is the “War on Terror” Anyway?

Guest Blogger

Jonathan Hafetz

More than nine years after 9/11, central questions underpinning America’s “war on terror” remain unresolved: who is the enemy, what connection must a person have to it, and, more fundamentally, what is the legitimate scope of the conflict itself. Although these issues have arisen in habeas corpus challenges to military detentions at Guantánamo and elsewhere, that litigation has yet to provide definitive answers. With respect to the president’s legal authority to hold “enemy combatants,” the Supreme Court has held only that the president may, under the 2001 Authorization for Use of Military Force, detain Taliban and al Qaeda soldiers who engage in combat against U.S. or allied armed forces in Afghanistan—a limited ruling that does not begin to address the expansive assertions of global-wide war powers by the former and current administrations.

A recent suit, Al-Aulaqi v. Obama, takes on another facet of the “war on terror”—the controversial practice of targeted killing. The suit, brought by the ACLU and Center for Constitutional Rights, challenges the placement of a U.S. citizen, Anwar Al-Aulaqi, on a “kill list,” thereby subjecting him to the use of lethal force without charge, trial, or conviction. The suit’s core argument—that the extrajudicial killing of al-Aulaqi violates the Constitution—rests on the proposition that al-Aulaqi, an alleged al Qaeda leader in Yemen, is outside the legally recognized parameters of armed conflict. “The United States,” plaintiff argues, is “not at war with Yemen, or within it.” As such, dehors armed conflict, ordinary constitutional norms apply.

The administration defends only in cursory fashion its targeting killing policy and theory of armed conflict underlying it. Here, moreover, the administration misstates the law: contrary to its assertion, the Supreme Court in Hamdan v. Rumsfeld did not determine that there was a non-international armed conflict with al Qaeda beyond the borders of Afghanistan.

The government’s argument for dismissal focuses instead on why the district court should duck the critical question regarding the scope of the armed conflict: lack of standing (the suit was filed on Anwar al-Aulaqi’s behalf by his father); state secrets (because litigating whether the U.S. plans to kill one of its citizens would require disclosure of military and intelligence activities directed at combating terrorism); and the political question doctrine (because judges are unfit to decide whether and in what circumstances the United States’ armed conflict with al Qaeda might extend beyond the borders of Afghanistan and Iraq).

The courts may ultimately decline to address the merits in al-Aulaqi. A resolution on non-justiciability grounds, however, would only help perpetuate the legal uncertainty over targeted killing, much as the habeas litigation has failed to resolve basic questions over the president’s military detention powers. In the end, one legacy of the “war on terrorism” may be the judiciary’s failure to address the question at the heart of all the litigation this “war” has spawned.

Jonathan Hafetz is Associate Professor of Law at Seton Hall University School of Law. You can reach him by e-mail at jonathan.hafetz at shu.edu.
Posted 6:00 AM by Guest Blogger [link]

How Majoritarian is the Supreme Court?

JB

Rick's post on FDR and the Supreme Court raises several important theoretical questions. But to discuss them we must separate out two different issues:

1. Does the Supreme Court, over time, stay in sync with the national political coalition? (this is not necessarily the same thing as "popular opinion.")
2. Is it easy or costless for politicians to directly punish the Court if it strays from the wishes of the national political coalition?
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Posted 4:24 PM by JB [link]

How Constrained Is the Supreme Court By "Popular Political Majorities?"

Rick Pildes

In recent years, many scholars and popular commentators have argued that the Supreme Court cannot and does not stray too far from “mainstream public opinion.” If it does, larger political forces bring the Court back into line; the Justices, knowing this, do not wander far. One of the central eras of historical experience that purportedly demonstrate this view is the dramatic confrontation between the Court, FDR, and the New Deal, in which the Court ultimately backed down from its constitutional resistance to the constitutional vision underlying the New Deal.

I've written an essay reviewing Jeff Sheshol's engaging new book, Supreme Power, in which Sheshol revisits the 1937 Court/FDR confrontation. My reading of that book, along with other material about the era, has convinced me that the conventional story about this crucial era is much too simple, and that the Court has far more latitude to act in countermajoritarian ways than is recognized in much of the recent literature that argues the Court is heavily constrained to reflect only "mainstream majoritarian views." Here's one paragraph from that essay; the full essay is here:

[C]onsider the aftermath of the confrontation: who won the Court-packing fight? The conventional wisdom among constitutional academics, focused narrowly on the Court itself, is that FDR lost the battle, but won the war, since the Court (assisted by 7 FDR appointments between 1937-43), acceded to the New Deal’s constitutionality. But FDR’s legislative assault on the Court destroyed his political coalition, in Congress and nationally, and ended his ability to enact major domestic policy legislation, despite his huge electoral triumph in 1936. As a Fortune magazine poll in July 1937 put it: “The Supreme Court struggle had cut into the President’s popularity as no other issue ever had.” National health-care, the next major item on FDR’s agenda, faded away. The progressive domestic policy agenda did not recover until 1964. Reflecting back, FDR’s second Vice President, Henry Wallace, observed: “The whole New Deal really went up in smoke as a result of the Supreme Court fight.” No rational politician, looking back at FDR’s attempt to bring the Court into line, other than through the ordinary appointments process, is likely to repeat FDR’s efforts.
Posted 11:15 AM by Rick Pildes [link]

Constitution 2020: Prison Conditions and the Eighth Amendment

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.


Sharon Dolovich

If constitutional protections for the most disenfranchised and marginalized in American society are to be reinvigorated, a broader scope is required for Eighth Amendment protections for prisoners than current law allows. True, governing Supreme Court precedent—specifically Farmer v. Brennan[i]—stands squarely in the way of any such constitutional renewal. But given Farmer’s flimsy motivating premises, state officials should resist defining their own constitutional obligations on its terms. For this same reason, Farmer could be readily and justifiably overruled by a future Court, which should have no more compunction in abandoning that precedent than it would in overruling Plessy v. Ferguson were that now discredited case still on the books.
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Posted 6:24 AM by Guest Blogger [link]

Surveillance State Accelerates: Fusion Centers and Beyond

Frank Pasquale

Danielle Keats Citron and I have recently posted our draft article on "fusion centers" (forthcoming in the Hastings Law Journal). As we state in the abstract:

A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security.

We began our work by holding (along with Priscilla Regan of GMU) a roundtable on fusion centers in April, 2009. Citron convened a panel on fusion centers at AALS in New Orleans. Since then, we've repeatedly found ourselves astonished by the pace of advances in domestic intelligence operations. In roughly reverse chronological order:

1) The Obama administration is now pushing for "Congress to require all services that enable communications — including encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook and software that allows direct “peer to peer” messaging like Skype — to be technically capable of complying if served with a wiretap order." The insistence on a "backdoor" here recalls the UAE/Saudi ban on Blackberrys---not exactly regimes the US should be emulating. Julian Sanchez and the ACLU provide more background.
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Posted 1:16 PM by Frank Pasquale [link]

Constitution 2020: Randomization, Policing, and Citizenship

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

Bernard E. Harcourt

In a new piece titled Randomization and the Fourth Amendment, Tracey Meares and I propose to remodel Fourth Amendment protections along the lines of the randomized checkpoint search in an effort to reduce police discretion, distribute more evenly the burdens of policing, and begin to remedy the problem of racial discrimination that plagues the criminal justice system in the United States. The current Fourth Amendment model ends up denying full citizenship rights to most members of targeted communities and imposing on them all the costs of policing. Our model, based on the random checkpoint evenly distributed throughout society, is a vision for the Constitution in 2020.
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Posted 6:22 AM by Guest Blogger [link]

The Tea Party in Political Time

Gerard N. Magliocca

The two most significant political events of 2010 are the enactment of health care reform and the rise of the Tea Party. These developments are, of course, related. To think about how the landscape will look after November, it would be helpful to put the Tea Party in some context.
Posted 8:38 AM by Gerard N. Magliocca [link]

A Skeptical View of Constitution Worship

Guest Blogger

Constitution Day lecture, Johns Hopkins University, Sept. 16, 2010

Michael Klarman

We are here today to celebrate Constitution Day, and, more importantly, my daughter’s 10th birthday; I am grateful to all of you for joining us on that occasion. Teymura, my daughter, feels deeply honored.

It is so great to be back in Baltimore. I grew up here, as those of you with acute accent detection capacities can probably tell from my genteel “Balmur” brogue. My brother and I grew up in a house just 3-4 blocks from the Pimlico racetrack, where we spent much of our childhood. I graduated from Poly in 1976. My dad was a public health economist here at Hopkins and my dad’s second wife, Mary Klarman, was an epidemiologist in the school of public health. I can’t count how many Hopkins lacrosse games my brother and I were dragged to while growing up.

More importantly, I grew up a huge Baltimore Orioles fan, dating back to the days of Frank and Brooks Robinson, Boog Powell, and Jim Palmer.

Indeed, I remained an avid Os fan until about 2000, when I finally was no longer able to stomach what Peter Angelos was doing to the team. Sending Mike Mussina to the dreaded Yankees was the final straw for me, and at that point I became a Red Sox fan–for reasons too complicated to go into here. Judging from the crowds at Camden Yards when the Sox are in town, I would say that most Baltimoreans made the same choice.

Anyway, it’s a thrill to be back home, and I thank Joel Grossman very much for the invitation, which I fear he may regret after he hears what I have to say.

I am going to make 4 points today. These points are going to be fairly critical of the phenomenon that I will call constitutional idolatry. Some might even call these remarks disrespectful of the Constitution, though I don’t believe that to be the case.
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Posted 6:34 AM by Guest Blogger [link]

The Challenges of “Quality of Life” Policing for the Fourth Amendment

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

Susan A. Bandes

The central tenets of current Fourth Amendment doctrine-- the primacy of the warrant, the insistence on individualized suspicion, and the importance of subjecting police practices to judicial review—sometimes look like answers to the pressing questions of an earlier era. Although safeguards like the warrant and the exclusionary rule continue to play a vital role, for significant categories of police activity they are ineffectual or beside the point.

The standard Fourth Amendment framework assumes a court-centric criminal justice system whose role is to resolve individual disputes between the state and individual defendants. It relies on judicial authorization of individual searches and after-the –fact judicial exclusion of evidence to limit police illegality. This case by case framework is an inadequate response to policing as an instrument of pervasive social control. It is proving inadequate to grapple with burgeoning arrests for minor “quality of life” offenses (minor traffic infractions, loitering, trespass, open container) that afford police nearly unlimited discretion to pick and choose whom to arrest. It is further challenged by aggressive maintenance order policing of entire neighborhoods that relies on extensive stop and frisk activity as well as quality of life arrests. (Maintenance order policing targets “broken windows” neighborhoods--areas with high physical and social disorder—on the theory that addressing visible signs of disorder will decrease more serious crime.)
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Posted 6:22 AM by Guest Blogger [link]

Irrational expectations

Sandy Levinson

A common criticism of members of Congress, one I'm embarrassed to say I've made myself at times over the years, is that many members vote for bills they haven't read in full and/or cannot explain when someone at a "town meeting" asks about Section 547(d)(3) of a many-hundred page bill. I have come to the conclusion that any such expectation is irrational.
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Posted 7:01 PM by Sandy Levinson [link] (35) comments

The Upside of Irrationality

Ian Ayres

Crosspost from Freakonomics:

Another pleasurable summer read for me was Dan Ariely’s The Upside of Irrationality. Put simply, the book is an impressive achievement. It interweaves Ariely’s compelling personal narrative with what seems like dozens of his own super-interesting academic experiments. Ariely explains how his own struggle with being severely burned as a youth put him on the path to being one of the world’s premier behavioral economists.

His previous book, Predictably Irrational, relied a bit on his burn story to motivate some of his academic studies. But Upside is more revealing. It lets you see what makes Ariely tick, and how he comes up with testable hypotheses. The fact that he could write this book without the help of a gifted writer like Dubner makes the accomplishment all the more stunning. It’s one thing to have somebody else profile how you think. But it’s a higher degree of difficulty to write about yourself — especially if you’re an economist. Gearheads normally can’t write interesting analytic autobiographies. But Ariely has.

I’m not, however, a fan of the title. Ariely says that the book is going to show how irrationality is sometimes a good thing. He argues, for example, that we irrationally mispredict the true trauma of divorce: “[A] divorce is often less devastating to a married couple than either member might anticipate.” (Kindle 2410) If we were more rational, more people would split up. The upside of irrationality to society, he suggests, is that it keeps us together more than hyper-rationality would.

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Posted 4:05 PM by Ian Ayres [link]

Equality and Access to Counsel

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

Darryl Brown

One of the great frustrations of constitutional law’s regulation of criminal adjudication is the failure of Gideon and Strickland to result consistently in states’ providing indigent defense counsel of sufficient quality to assure accurate adjudicative outcomes and a plausibly fair process. The problem with Gideon’s guarantee of counsel is that it is an unfunded mandate to state governments (who often delegate the duty to local governments). Courts are loathe to regulate state funding decisions, and yet states are politically loathe to fund indigent defense sufficiently. The problem with Strickland’s guarantee of adequate representation is that it is designed only as a post-conviction, hindsight assessment of counsel’s performance. In that form, it is deliberately deferential both because of the difficulty of retrospectively assessing a lawyer’s performance and the sunk costs of a completed adjudication process.
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Posted 6:18 AM by Guest Blogger [link]

Why Weimar?

Sandy Levinson

Not for the first time, some readers have objected to my analogizing contemporary American politics to Weimar. Do I really believe that we have a Hitler in our future, for example? The answer is no. So why not find a "nicer" analogy, perhaps Paul Krugman's "banana republic" or something similar? One reason that Weimar is the best analogy to discuss is simply that the greatest social theorists of the early 20th century, Max Weber, Franz Neumann, Otto Kircheimer, and, yes, Carl Schmitt, all addressed the situation facing German after World War I. Weber died before the Weimar Republic fully developed, but his writings on German politics, and his fear about plebescitarian politics, were certainly prescient, as former Chicago Law School Dean and Stanford President Gerhard Casper argued about three years ago, when he talked about the caesarist aspects of our presidentialist system.

As it happens, I spent the day today celebrating the 50th anniversary of the Social Studies program at Harvard, in which I was a tutor during 1967-68. The essence of that program is an intellectual confrontation with the greatest social theorists of the past, including Weber (and Adam Smith, Marx, Durkheim, Tocqueville, and Freud). No analogy is perfect, obviously, whether it is to Munich, Vietnam, or whatever. No one should think there is a one-to-one correspondence between the United States in the 21st century and Germany following defeat in a catastrophic war (which became, of course, the prelude to an even more catastrophic war). But it is whistling past the graveyard, I believe, to pretend that there are no similarities at all, and, as already suggested, the advantage of looking closely at Weimar is precisely that it drew the attention of unusually acute social analysts. To repeat once more, anyone who can read Schmitt's critique of the Weimar Parliament without thinking of the contemporary United States Congress, particularly the egregious Senate--E. J. Dionne, a graduate of the social studies program, was a speaker today and noted that he would actually favor abolition of the Senate (something he has said in one of his columns for the Washington Post)--is simply deluding him/self. No one could possibly take the Senate seriously as a "deliberative body," for precisely the reasons brilliantly set out by Schmitt. And, I must say, Schmitt's analysis is far deeper (and more depressing) than that set out by Thomas Mann and Norman Ornstein in their accurately named The Broken Branch, where they ultimately plead for a return to civility by members of Congress. That is like pleading for a return to Madison's notion of civic virtue as set out in the Federalist Papers. It's never going to happen because of fundamental transformations in the society, which began literally within a few years of the adoption of the Constitution (i.e., the rise of the party system, which Madison in 1787 simply saw as a recipe for "factionalism") and continuing on today with the ever-further-development of what Marx recognized as the dynamo of a capitalist economy that would destroy stable cultures and polities that stood in its way. That's the meaning of globalization. And none of these thinkers could have foreseen the development and implications of modern mass media and networks like Fox who have no compunction about employing and building up the power of fascists who exemplify a pure will to power.

Come to the Caberet....
Posted 10:33 PM by Sandy Levinson [link] (5) comments

Implicit Bias and the Fourth Amendment

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

L. Song Richardson

My vision for constitutional law in the area of criminal justice in 2020 relates to race, policing and the Fourth Amendment. I envision a future in which courts acknowledge and take into consideration the complexity of race and its effects on police behavior rather than denying its influence or dividing the police into conscious bigots on the one hand and non-racists on the other. In order to realize this vision, courts must broaden their conception of Fourth Amendment reasonableness to include consideration of the effects of implicit (unconscious) racial biases on police behavior. (For a fuller discussion, see my forthcoming article in the Minnesota Law Review here).
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Posted 6:14 AM by Guest Blogger [link]

Weimar America

Sandy Levinson

In today's New York Times, Paul Krugman writes of the ever-increasing slide toward what he views as a Latin America "banana republic." There is much to his analysis, but let me suggest that we are better advised to look at Weimar Germany during the 1920s (rather than, say, contemporary Mexico or Argentina) to understand our present political situation.
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Posted 10:09 AM by Sandy Levinson [link] (33) comments

Constitutional Regulation of the Police in 2020

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

David Sklansky

What should constitutional regulation of the police look like in 2020? One way to think about that question is to ask how things have changed since the 1960s, when modern constitutional criminal procedure began. To a surprising degree, criminal procedure today still operates within the framework constructed by the Warren Court: the doctrine mainly consists of elaborations, extensions, limitations, and modifications of Mapp v. Ohio, Miranda v. Arizona, Katz v. United States, and Terry v. Ohio. All of these cases responded to the challenges of the times, as the Court perceived them, and the oldest of the series—Mapp v. Ohio—turns fifty next year. So now is a good time to take stock.
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Posted 6:08 AM by Guest Blogger [link]

A Constitutional Puzzle—Or the Limits of Textualism?

Jason Mazzone

Article V sets forth the mechanisms for amending the U.S. Constitution. Article V creates two routes by which amendments may be proposed: Congress may itself propose constitutional amendments by a two-thirds vote of both houses. Alternatively, if two-thirds of the state legislatures ask for it, Congress must call a convention for the purpose of proposing amendments. Article V also creates two routes by which proposed amendments may be ratified: by the legislatures of three-fourths of the states or by conventions in three-fourths of the states.

Article V contains the following substantive limit on the use of the amendment mechanisms:

[N]o State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

So here is a puzzle: How many states does it take to ratify an amendment reducing the vote of Wyoming in the Senate to one vote?
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Posted 1:10 PM by Jason Mazzone [link]

DADT: The President, the Senator, the Judge—and the General

Jason Mazzone

According to the Constitution of the United States there are three branches of federal government: the legislature, the executive, and the judiciary. In recent weeks, representatives of all three branches have weighed in on Don’t Ask, Don’t Tell (DADT). The President has pushed for repeal. The Senate on Tuesday took up (but failed to advance) a repeal provision that has been approved by the House. A federal judge in California held DADT unconstitutional.

This—whether one likes the ultimate result or not—is how our federal government works: Congress enacts legislation; the President enforces federal laws unless and until they are repealed; the courts review the constitutionality of legislation.

Consider, then, this news report about the President’s effort to repeal DADT:

In that effort, he [President Obama] had won the support of his top Pentagon leaders, Defense Secretary Robert Gates and Admiral Michael Mullen, the chairman of the Joint Chiefs of Staff.

And this one about the Senate’s vote on Tuesday:

Ahead of the vote, President Barack Obama’s choice to lead the Marine Corps cautioned against repeal. “My primary concern with proposed repeal is the potential disruption to cohesion that may be caused by significant change during a period of extended combat operations,” Gen. James Amos told the Senate Armed Services Committee.

Question: What’s wrong with this picture?

Answer: There is no military branch of government.
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Posted 9:15 PM by Jason Mazzone [link]

Private Action and Health Care Reform

Gerard N. Magliocca

I want to thank Jack and everyone here for inviting me to post on a semi-regular basis. Let's start with what I've dubbed the "private action" argument against the constitutionality of the individual health insurance mandate. Today Randy Barnett posted a draft of his forthcoming article defending this view. My post is not a response to his paper, as I have not read it yet, but reflects my current thinking about what is a difficult issue.
Posted 5:31 PM by Gerard N. Magliocca [link]

Justice Scalia's Originalist Sins

David Gans

Supreme Court Justice Antonin Scalia is famous for being a stickler about the words of the Constitution, often castigating his colleagues for failing, in his opinion, to honor what the Constitution’s text actually provides. But Justice Scalia tends to apply this approach selectively, or not at all when it comes to the Fourteenth Amendment. Earlier this year, in McDonald v. City of Chicago, he backed away from the text of the Privileges or Immunities Clause, refusing to honor the words of the Fourteenth Amendment that explicitly safeguard substantive fundamental rights. Indeed, before the argument in McDonald, Justice Scalia went so far as to call the Privileges or Immunities Clause, “flotsam,” constitutional trash; so much for honoring the Constitution’s text. Then, when the Court decided the case, Justice Scalia agreed that the Fourteenth Amendment protects an individual right to bear arms, but relied for that conclusion on substantive due process – the doctrine he loves to hate in other contexts – rather than follow the Fourteenth Amendment’s text. Now, Justice Scalia argues we should also disregard the text of the Fourteenth Amendment’s broad guarantee of the equal protection of the laws.
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Posted 2:21 PM by David Gans [link] (3) comments

Doubts about the New "Scholarly Impact" Ranking

Brian Tamanaha

A new law school ranking is out which purports to objectively measure the “scholarly impact” of the “Top 70” law faculties. The ranking has generated a great deal of interest and commentary among legal academics. Reflecting this interest, their paper has been downloaded over a thousand times in little more than a week (earning a high rank for number of SSRN downloads within two weeks of posting). While the authors concede that their study, which extends Brian Leiter’s ranking of the top 25 law faculties, has limitations, they assert that it is superior to the US News ranking.

The US news ranking might well be garbage, as many law professors complain, but it is not a persuasive reason in favor of the new ranking system to assert that it is superior to garbage. If we are to take it seriously, it must constitute a valid way of measuring what it purports to measure: “scholarly impact.” I will raise a few doubts about the validity of this new ranking system.

A core theme of their paper is that several law faculties are treated unfairly by the US News Academic Reputation rating. “Based on Scholarly Impact Scores,” the authors write, “several law faculties appear to be significantly under-valued law schools.” For example:

Presumably due to its recent entry on the scene, the University of St. Thomas (Minnesota) is the most dramatically under-valued law school among the top 40 in scholarly impact. The University of St. Thomas enters into the First Tier at #38 in the Scholarly Impact Ranking, while being ranked by U.S. News in the Third Tier.

The authors of the study, it bears noting, are professors at St. Thomas. I sympathize with their frustration. St. Thomas has an excellent faculty (I have visited the school, and two dear friends of mine, leading scholars in their respective fields, are on their faculty.).

What the authors fail to mention, however, is the reverse implication of their contention. For every law faculty that is under-valued, there must be a law-faculty that is over-valued. This raises uncomfortable questions. Are the authors claiming that their faculty has a greater “scholarly impact” than, say, the law faculties at Iowa, Alabama, San Diego, William & Mary, Fordham, Florida, Wake Forest, Wisconsin, Boston College, Tulane, etc.? (just a few of the 150 or so law faculties that score below St. Thomas).

A more dramatic example will help illustrate my point. Cal-Irvine, a brand new law school, is ranked 9th by the “scholarly impact” study. Would the authors say that the Cal-Irvine faculty (impressive as it is) has a greater “scholarly impact” than the law faculties at Cornell, Duke, Michigan, Pennsylvania, UCLA, Virginia, Vanderbilt, Texas, Georgetown, Minnesota, Illinois, etc.? (all ranked below Cal-Irvine).
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Posted 11:00 AM by Brian Tamanaha [link] (12) comments

The Fourth Amendment in 2020

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

Christopher Slobogin

Over the past 200 years, the Fourth Amendment’s guarantees have been construed largely in the context of what might be called “physical searches”—entry into a house or car, a stop and frisk of a person on the street, or rifling through a person’s private papers. But today, with the introduction of devices that can see through walls and clothes, monitor public thoroughfares twenty-four hours a day, and access millions of records in seconds, police are relying much more heavily on what might be called “virtual searches,” investigative techniques that do not require physical access to premises, people, papers or effects and that can often be carried out covertly from far away. This technological revolution is well on its way to drastically altering the way police go about looking for evidence of crime.
The Supreme Court’s interpretation of the Fourth Amendment has both failed to anticipate this revolution and continued to ignore it.
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Posted 7:59 AM by Guest Blogger [link]