The Volokh Conspiracy

I’d like to second Eugene Volokh’s report on the frustrations Andy Pincus experienced in sending letters to the editor of the New York Times.  I’m not much for sending such letters, since I think the effort futile.  But a friend once persuaded me to join her in a letter to the Times disagreeing with an op-ed that had appeared there.  The letter did ultimately appear, just as the Mayer Brown letter in Eugene’s story did.

As in Eugene’s story, our letter was heavily edited, and the editing leached all the color and attitude out of the letter, leaving simply a husk that blandly recited our disagreement with the op-ed.  It was like replacing a real, full-blooded Scalia dissent with the notation “Justice Scalia dissents.”

I thought at first that it was a matter of space, and I suggested edits to restore some color while staying within the same number of words.  Nothing doing.  Our new letter to the editor, which might more aptly have been called a letter by the editor, could not be changed.  It appeared in the form chosen by the editors of the NYT.

I puzzled over the policy.  After all, if the NYT didn’t like our views — and it didn’t — why not  just ignore them?  Why give us a forum, then neuter our expression?  I concluded that the policy was a throwback to a day when the NYT set not just the news agenda but the acceptable range of responsible opinion.  The NYT published letters to show that it tolerated some dissent, and in so doing it gave respectability to the dissent it tolerated.

But the imprimatur of the NYT was so valuable in those days that it had to be rationed.  To fulfill its role of defining responsible opposition on as many issues as possible, the NYT edited letters down to their nub.  I suspect that no harm was intended when the practice began, but once the NYT started editing the letters heavily, taking out the persuasive parts was an irresistible temptation.  Few complained, and their complaints, in any event, were not published, not even as letters to the editor.

Now, of course, very few people who dissent from the views of the NYT really think it matters whether their dissents are acknowledged on the Letters page of the NYT.  The Times’s ability to define the range of legitimate debate has vanished. But still the old policies lumber awkwardly on, zombie relics from the golden age of mainstream media.

It will all be gone soon.  So, Andy , I suggest that you treasure the experience of being edited into mush by the Letters page of the New York Times.  Like those of us who’ve taken an overnight sleeper train or eaten at an Automat or bought a new Detroit automobile with real tailfins, you’ve now had an experience whose power your children will never quite understand.

UPDATED:  To leave Eugene out of the actual editing experience. And fix a broken link.

My earlier post on Judge Vinson’s opinion seems to have caused a lot of confusion, so I thought I would try again to express my concerns with Judge Vinson’s opinion a bit more clearly.

The core problem, I think, is that Supreme Court doctrine has strayed far from the original meaning of the scope of federal power granted by the Constitution. Today’s constitutional doctrine permits a scope of federal power that is much broader than the original meaning of the Commerce Clause and Necessary and Proper clause would allow. When interpreting the scope of federal power, then, you need to decide what you will follow: The original meaning or case precedents. As I read Judge Vinson’s opinion, he mixes the two. Judge Vinson jumps back and forth between purporting to apply Supreme Court precedents and purporting to interpret the Commerce Clause and Necessary and Proper clause in light of its original meaning. Judge Vinson spends about half of the legal analysis on original meaning and about half of the legal analysis on precedent, and he seems to treat both as important. In the critical passage on the Necessary and Proper clause, on page 62–63, Judge Vinson relies primarily on original meaning, specifically Federalist No. 33.

Thus, for example, on page 60, Judge Vinson rejects one of the arguments of amici on the ground that the result of the amici’s argument “would, of course, expand the Necessary and Proper Clause far beyond its original meaning, and allow Congress to exceed the powers specifically enumerated in Article I. Surely this is not what the Founders anticipated, nor how that Clause should operate.” And critically, on Page 62–63, Judge Vinson writes that the mandate cannot be constitutional because “[i]f Congress is allowed to define the scope of its power merely by arguing that a provision is ‘necessary’ to avoid the negative consequences that will potentially flow from its own statutory enactments, the Necessary and Proper Clause runs the risk of ceasing to be the ‘perfectly harmless’ part of the Constitution that Hamilton assured us it was [in Federalist No. 33], and moves that much closer to becoming the ‘hideous monster [with] devouring jaws’ that he assured us it was not.”

If you are an originalist, as many VC readers seem to be, this is a very appealing argument. If you’re a libertarian, as many VC readers seem to be, this is also a very appealing argument. But there’s a technical problem here that I want to draw out: Judge Vinson is only a District Court judge. Under the principle of vertical stare decisis, he is bound by Supreme Court precedent. See, e.g, Winslow v. F.E.R.C., 587 F.3d 1133. 1135 (D.C. Cir. 2009) (Kavanaugh, J.) (“Vertical stare decisis — both in letter and in spirit — is a critical aspect of our hierarchical Judiciary headed by ‘one supreme Court.’”) (citing U.S. Const. art. III, § 1). And when Supreme Court precedent conflicts with original meaning, Judge Vinson is bound to follow the former. Of course, that doesn’t mean a District Court can’t discuss the original meaning of a constitutional provision in his opinion. But where the original meaning and case precedents conflict, the judge is stuck: Because he is bound by Supreme Court doctrine, the judge has to apply the doctrine established by the Supreme Court and has to ignore the original meaning.

If you’re going to take that view, I think you have to confront the doctrinal test that the U.S. Supreme Court offered in a majority opinion just a few months ago in United States v. Comstock:

[I]n determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.

It seems to me that when the Supreme Court says that this is what “we look to see” when determining if a power falls within the Constitution, then that is a doctrinal test to which a trial judge is bound under the principle of stare decisis. That’s especially true when a Justice wrote a concurring opinion treating it as a doctrinal test, and no one corrected him. At the very least, this is language worth mentioning to explain why it’s not a test you’re think you’re bound to as a trial judge. But Judge Vinson doesn’t even mention this language. Instead, he focuses on Alexander Hamilton and Federalist No. 33. Given the gap between the original meaning of the scope of federal power and the case precedents, I don’t think this approach is persuasive for a District Court judge to take.

In Commentary; an excerpt from the introductory paragraph:

I note considerable chatter among conservatives about the dangers of Muhammad ElBaradei.... I am hardly one to romanticize ElBaradei or to underestimate the difficulties of dealing with him. But what do his critics propose we do anyway?

Boot, I should note, is generally a pretty conservative commentator himself.

The Himalyan Times and other sources (e.g., this Nepalese publication) report. Wow.

The soldier, Bishnu Shrestha, is receiving various honors (and rewards) from the Indian government and others. Thanks to InstaPundit for the pointer.

UPDATE: Commenters pointed out that some other stories report the incident as being less dramatic; see this Telegraph (India) story (15 robbers, but some armed with revolvers and not just knives, Shrestha was defending a woman from robbery and not rape, and he injured three), and this Times of India story (30 robbers, some armed with guns, defense from robbery and apparently “manhandl[ing]” with no mention of rape, injured three). Who is right and who is wrong I leave to others, though “wow” remains appropriate under any version.

A colleague of mine at Mayer Brown — Andy Pincus, generally a liberal fellow and a big fan of the New York Times — reported to me an interesting fact about the New York Times letter-to-the-editor policy, and I thought it was worth mentioning.

Pincus represents the petitioner in AT&T v. Concepcion, a pending Supreme Court case regarding the Federal Arbitration Act. The question in the case is whether it violates the Act for California to refuse to enforce arbitration clauses that don’t permit either class arbitrations or class actions in court, but include incentives that help plaintiffs vindicate their own individual claims. (The briefs are here.)

Three weeks after oral argument, the New York Times editorialized against Pincus’s position, and asserted that “courts applying law of at least 19 other states have reached the same conclusion as California, including five federal appeals courts.” Pincus and his co-counsel sent a letter to the editor addressing this and other statements in the editorial (complying with the Times’ 150-word limit). Two sentences read:

The Times is just wrong in asserting that 19 states ruled arbitration agreements like AT&T’s unenforceable. Courts in six of those states upheld AT&T’s provision; courts in four others upheld agreements less fair than AT&T’s.

A week passed with no response. In the meantime, the Times published a letter from counsel for the other side expressly agreeing with the editorial (“As your editorial correctly explains ....”). Still, no opposing views appeared.

Then the Times did get back to Pincus, asking for approval of an edited version of the above sentences:

You assert that 19 states ruled arbitration agreements like AT&T’s unenforceable. Courts in six of those states upheld AT&T’s provision; courts in four others upheld agreements less fair than AT&T’s.

This revision deleted the statement that the Times was wrong in its interpretation of the views of 19 States on the issue. Pincus responded that the revision was unacceptable and suggested a slight modification to soften the sentence in question (substituting “The Times incorrectly asserts” for “The Times is just wrong”).

The Times (emphasis added): “We cannot say ‘incorrectly’ because that is the province of corrections, in which case I would forward the letter to the corrections editor and it could not be considered as a letter. We prefer to consider your letter a clarification on the editorial. OK to go with what I sent?”

Pincus: “Our letter’s key point is that the editorial was wrong in what it said about the cases. I’m happy to think about other ways to say that — but it is the key point.” Too bad, said the Times: “In that case, I think you should forward the letter to Carla Robbins, the deputy editorial page editor, for possible correction. We won’t be able to consider it as a letter.” And that was that.

Pincus didn’t seek a “correction” because it seems unlikely that the Times would have issued a correction with regard to matters of opinion about interpreting judicial opinions (and of course corrections appear in a generally little-read section; letters to the editor appear on the editorial page). He wanted to argue to readers that the Times was wrong, not persuade the corrections editor of that (since such persuasion was highly unlikely). Yet the Times policy appears to say that such arguments that the Times is wrong are off-limits to the editorial page.

Now the Times is of course entirely free to publish or not publish any letter to the editor it wishes; and naturally, it can publish only a small fraction of those it receives. Still, it seems to me that a “no saying we’re wrong” policy with regard to letters to the editor is not a wise exercise of editorial judgment. And in any case, readers might find it useful to know that this is indeed the Times policy.

A reader asked how he can report errors in Google Scholar (especially in court opinions that are hosted on Google, rather than just linked to by Google). I did some asking, and learned from Chris Hundt that the form is here. To report errors in Westlaw and Lexis, see here.

For those who may be interested, I will be appearing on the Fox Business Network today at 5 PM eastern time, to discuss the recent district court decision striking down the individual mandate.

And for those who will try to use this as evidence that I have somehow sold out to the vast right-wing conspiracy, I will only point out that I have done many interviews with left-leaning media as well, including several public broadcasting stations. I have also appeared at events sponsored by liberal groups such as the ACS, and written for liberal publications, including the LA Times and the New York Times (at their online Room for Debate Blog).

High School and College Students might be interested in the Summer Seminars hosted by the Foundation for Economic Education especially for those interested in learning more about Austrian economics.  Info is here.

I ran my DNA through the “EuroDNACalc” program and got the following results:
NORTHWEST EURO: Maximum Likelihood Estimate=20% Interval=[0, 53]
SOUTHEAST EURO: Maximum Likelihood Estimate=44% Interval=[4, 81]
ASHKENAZI JEWISH: Maximum Likelihood Estimate=36% Interval=[14, 60]

From a different source on 23 and Me, it appears that approximately 60% of people who have sent their DNA sample to the company and who share some of my genes identify themselves as Ashkenazim, and 40% do not. So it seems pretty clear that I have a substantial admixture of non-Ashkenazic European genes, which, among other things, helps explains my blond-haired blue-eyed paternal grandmother, and my blue-eyed maternal grandfather. (What’s not clear to me is whether EuroDNACalc is accounting at all for my possible non-Ashkenazic Jewish ancestry, as 23 and Me results suggest that my paternal ancestors were expelled from Sicily in 1492).

Also of interest, 23 and Me calculates where the “center” of your DNA is on a world map. My wife and I were in almost exactly the same place (somewhere in the Northwestern Near East, near as I can tell), even though her family is from Iraq, and mine from Eastern Europe. She has a bit more DNA that originated in the East, and I have a bit more from Europe.

Interesting stuff.

In an addendum to his post below, Orin writes “the existence of nonzero limits [on federal power] in no way implies the existence of major limits.” Fine. But this does not mean that the limits on federal power that survive Raich are only “symbolic,” nor does it mean that Judge Vinson is wrong. It is hard to see how a holding that would only prohibit a single federal enactment adopted in the nation’s 200-plus-year history constitutes a “major limit” on federal power. The federal government is hardly limited, and yet invalidating the individual mandate would not threaten any other past or present exercise of federal power.

I also think Orin’s argument that the individual mandate must be constitutional under existing precedent because dissenting justices argued that such precedents allow the federal government to regulate “virtually anything” is problematic. First, Orin is relying upon the opinions of dissenting justices, when the majority opinion in Raich maintained that limits on federal power remained. Second, the argument assumes what is at issue: Whether the failure to purchase government-approved health insurance is an activity that can be regulated. In other words, one of the questions in the case is whether inactivity is anything at all, or the absence of something that can be regulated. I agree with Orin that Raich is a problematic precedent, but I am not convinced it controls the outcome of this case.

for “the self defense of themselves and others.”  Here’s the bill.

The measure is known as an act “to provide for an individual mandate to adult citizens to provide for the self defense of themselves and others.”

Rep. Hal Wick, R-Sioux Falls, is sponsoring the bill and knows it will be killed.  But he said he is introducing it to prove a point that the federal health care reform mandate passed last year is unconstitutional.

At the Weekly Standard blog, Cheryl Miller asks whether the repeal of Don’t Ask Don’t Tell will lead to the return of ROTC programs to elite university campuses [HT: here]. In recent years, university officials have defended the exclusion of ROTC from campus as a way of countering the military’ discrimination against gays and lesbians, and have vehemently denied that they are antimilitary. With the end of DADT, that obstacle to ROTC should be removed.

As Miller points out, the Pentagon may have reasons for its own for choosing not to establish ROTC programs at some elite schools. And there are those in the military who strongly dislike elite academia. Thus, some schools might not get ROTC programs any time soon even if university administrators support the idea. Still, nothing prevents university officials from announcing that they would now welcome the return of ROTC programs if the military is interested. President Obama urged them to do just that in his recent State of the Union speech.

The same point applies to law schools. After having lost a Supreme Court case over the issue, law schools were forced to permit military recruiters to interview on campus as a condition of receiving federal funding under the Solomon Amendment. In the aftermath of this legal defeat, most law schools admitted recruiters, but continued to emphasize that they were doing so under duress. Some also adopted various “ameliorative practices” required by the American Association of Law Schools, and designed to emphasize their opposition to the presence of military recruiters. Both the AALS and individual schools should repeal the varous ameliorative practices and officially indicate that they now voluntarily welcome military recruiters on the same basis as other interviewers. As recently as May 2010, the AALS emphasized that its opposition to military recruiters should not be interpreted as “antimilitary,” but was instead merely an effort to oppose discrimination against gays and lesbians. The time has come to live up to those principles.

For reasons I outlined here, I think that it was wrong to exclude ROTC and military recruiters even while DADT was in force, despite the fact that I also believe that that policy was a serious injustice. Regardless, with DADT on its way out there is no longer any plausible reason for universities to exclude either ROTC programs or military recruiters.

UPDATE: The Harvard Crimson, Harvard’s main student newspaper, just published an editorial calling for the return of ROTC to campus [HT: Harvard student and Crimson writer Yair Rosenberg:

Just as DADT represented an outdated prejudice directed toward gay American citizens, the absence of ROTC now stands as a relic of an outdated bias against the American armed forces. When ROTC was expelled from Harvard in 1969, military enlistment was mandatory, as was ROTC participation on countless U.S. campuses. Today, absent its prior objectionable compulsory and discriminatory policies, ROTC deserves recognition as a legitimate pre-professional track at Harvard. The university supports pre-law, pre-med and pre-business activities on the part of its students; it should support pre-military study as well. Further, the same access to Harvard’s student body that is granted to recruiters for countless career paths should be given to the U.S. military....

We remind those who would oppose this move that President Faust and other Harvard administrators have repeatedly predicated the return of ROTC upon the repeal of DADT. Thus, should the university backtrack on its public commitment, its political credibility will be greatly impaired, as will Harvard’s ability to influence future legislation with similar pronouncements.

Baltimore Code § 3–501 to –503 — just enacted a year ago — provides that any organization that primarily provides pregnancy-related services but not abortion or certain kinds of birth control “must provide its clients and potential clients with a disclaimer substantially to the effect that the center does not provide or make referral for abortion or birth-control services.” Friday, a district court held this to violate the First Amendment right to be free of compelled speech, see O’Brien v. Mayor & City Council of Baltimore (D. Md.).

The court concluded that the law does not regulate commercial speech (correct, I think, since it applies to organizations that provide free counseling as well as those that sell products or services), that it is not narrowly tailored to a compelling government interest in preventing fraud (also correct, I think, especially in light of cases such as Riley v. National Federation of the Blind), and that it was viewpoint-based (more doubtful, but the result might well be the same even if the requirement wasn’t characterized as being viewpoint-based). Thanks to Mike Chittenden for the pointer.

UPDATE: I neglected to mention the strongest argument against the decision — that it constitutes a regulation of professional-client speech, where some speech compulsion (as well as some speech restriction) is permitted; compare, for instance, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (plurality), which dismissed a First Amendment challenge to a disclosure requirement with just the following discussion: “All that is left of petitioners’ argument is an asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician’s First Amendment rights not to speak are implicated, see Wooley v. Maynard [a leading compelled speech case], but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State. We see no constitutional infirmity in the requirement thatthe physician provide the information mandated by the State here.”

Unfortunately, the Court has never provided any clear rule about when and how the government may regulate individualized advice, whether about medicine, psychiatric problems, law, accounting, finance, or what have you. So it’s not clear whether the sort of counseling at issue in this case — not the practice of medicine, though perhaps akin to some sorts of psychiatric and medicine counseling — would be subject to extra disclosure requirements, and just what disclosure requirements could be required.

According to the The New York Times, only about 13% of the people who waste their free time by contributing to Wikipedia are women.

I agree with Ilya that “Judge Vinson’s analysis of the Necessary and Proper Clause is a big improvement on Judge Henry Hudson’s performance in the recent Virginia ruling striking down the mandate.” Judge Hudson opinion was pretty embarrassing on the Necessary and Proper Clause issue, while Judge Vinson gives the issue much more attention. At the same time, I think Judge Vinson’s argument on the Necessary and Proper Clause is not persuasive, and in this post I wanted to explain why.

To understand Vinson’s argument, you need to realize that conservatives and libertarians have been complaining for many decades that Commerce Clause doctrine has left Congress essentially unlimited power. Between Wickard v. Filburn and Gonzales v. Raich, conservatives and libertarians have complained, the federal government can justify pretty much anything. Remember how Justice Thomas began his dissent in Raich, with emphasis added:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–-and the Federal Government is no longer one of limited and enumerated powers.

Of course, the holding of Raich was that Congress could in fact regulate this under the Commerce Clause. Thus, in the view of Justice Thomas, existing Commerce Clause doctrine gave the federal government the power to “regulate virtually anything.” According to Justice Thomas, existing Commerce Clause doctrine establishes a “Federal Government [that] is no longer one of limited and enumerated powers.”

Now let’s return to Judge Vinson’s analysis of the Necessary & Proper Clause. The words of the relevant Supreme Court cases point to an extremely broad power, and Judge Vinson is supposed to be bound by those words. But Judge Vinson concludes that these words can’t be taken at face value because “to uphold [the mandate] via application of the Necessary and Proper Clause would [be to] . . . effectively remove all limits on federal power.” Page 62. He writes:

[T]he Commerce Clause limitations on the federal government’s power would definitely be compromised by this assertion of federal power via the Necessary and Proper Clause. . . . .

The defendants have asserted again and again that the individual mandate is absolutely “necessary” and “essential” for the Act to operate as it was intended by Congress. I accept that it is. Nevertheless, the individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be “proper.”

This might work as a Supreme Court opinion that can disagree with precedent. But Judge Vinson is just a District Court judge. And if you pair Justice Thomas’s dissent in Raich with Judge Vinson’s opinion today, you realize the problem: Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way. Remember that in Raich, the fact that the majority opinion gave the federal government the power to “regulate virtually anything” was a reason for Justice Thomas to dissent. In Judge Vinson’s opinion, however, the fact that the government’s theory gave the federal government the power to “regulate virtually anything” was a reason it had to be inconsistent with precedent.

Obviously, I’m not arguing that Judge Vinson was bound by Justice Thomas’s dissent. Rather, my point is that Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases.

Anyway, I realize this argument will only resonate with readers who care about binding precedent, which at times seems like a vanishingly small group of readers. But it does seem to be the weak link in Judge Vinson’s opinion for the three of us who are interested in whether the decision is correct under existing law.

UPDATE: I closed the comment thread, as it featured the same commenters making the same comments that they have each made several dozen times before.

ANOTHER UPDATE: My co-blogger Ilya Somin defends Judge Vinson by pointing out that the Supreme Court’s majority opinions insist that the federal government does not have completely unlimited power. Ilya’s argument is unpersuasive because the existence of nonzero limits in no way implies the existence of major limits. The current state of Commerce Clause doctrine is that there are certain largely symbolic limits on federal power but those limits are relatively minor: As Justice Thomas put it, Congress can regulate virtually anything.  Judge Vinson says that this cannot be the law because it would make the federal government too powerful. But Judge Vinson does not consult existing doctrine before declaring the principle, and that’s the problem: If you take existing doctrine seriously, it readily fits the mandate under the Necessary and Proper clause.

The New York Times Room for Debate Blog, where various Conspirators have served as discussants one time or another, has a very interesting discussion on whether and in what respects the financial crisis might have been avoided.  It’s a good short read. From the introduction:

Last week, the Financial Crisis Inquiry Commission, after reviewing thousands of documents, issued a report, which explained the causes of the financial unraveling, the role of government and the banks, and the aftershocks of the crisis. The 10-member commission, however, split along party lines, with the six Democrats voting to adopt the report and its findings, and the four Republican members issuing two dissenting reports.  On NPR, Keith Hennessey, one of the Republican commissioners, said that the disagreement could perhaps be boiled down to one statement in the majority report: “We conclude this financial crisis was avoidable.”

The report, majority and dissents, is well worth reading as well.  I agree with some of the criticisms that it is too much narrative history and too little analysis, but there’s still value in creating a record of what happened for its own sake.

What are the books specifically about the financial crisis 2007–2009 that that you would put on the genuinely short list for reading?

It turns out (fixing dinner tonight in my otherwise furnished and lovely temporary apartment here at the Very Great UVA Law School, where I am visiting for the semester, and where my colleagues this term have greeted me with warmth and cordiality) that I should not have ... assumed the can opener.

Today’s Florida district court ruling that the individual mandate is unconstitutional is by far the best court opinion on this issue so far. Judge Roger Vinson provides a thorough and impressive analysis of the federal government’s arguments claiming that the mandate is authorized by the Commerce Clause and the Necessary and Proper Clause, and explains the flaws in each. He had already rejected the government’s claim that the mandate is constitutional because it is a tax in a previous ruling. So far, all three federal courts that have considered the tax argument have rejected it, instead ruling (in my view correctly) that the mandate is a penalty.

This is perhaps the most important of all the anti-mandate lawsuits because the plaintiffs include 26 state governments and the National Federation of Independent Business.

One of the best parts of today’s opinion is Judge Vinson’s critique of the federal government’s argument that the mandate is constitutional under the Commerce Clause because the Clause gives it the power to regulate “economic decisions”:

The problem with this legal rationale, however, is it would essentially have unlimited application. There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort. The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that — when aggregated with similar economic decisions — affect the price of that particular product or service and have a substantial effect on interstate commerce. To be sure, it is not difficult to identify an economic decision that has a cumulatively substantial effect on interstate commerce; rather, the difficult task is to find a decision that does not....

The important distinction is that “economic decisions” are a much broader and far-reaching category than are “activities that substantially affect interstate commerce” [which Supreme Court precedent allows Congress to regulate]. While the latter necessarily encompasses the first, the reverse is not true. “Economic” cannot be equated to “commerce.” And “decisions” cannot be equated to “activities.” Every person throughout the course of his or her life makes hundreds or even thousands of life decisions that involve the same general sort of thought process that the defendants maintain is “economic activity.” There will be no stopping point if that should be deemed the equivalent of activity for Commerce Clause purposes.

Judge Vinson has a similarly compelling answer to the government’s claim that choosing not to purchase health insurance is an “economic activity” because everyone participates in the health care market at some point:

[T]here are lots of markets — especially if defined broadly enough — that people cannot “opt out” of. For example, everyone must participate in the food market. Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market. Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile — now partially government-owned — because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business....

As Vinson explains, both the “economic decisions” argument and the “health care is special” argument ultimately amount to giving Congress the power to mandate virtually anything, and therefore conflict with the text of the Constitution and Supreme Court precedent. I addressed both arguments in more detail here. Judge Vinson also notes that the scenarios he raises are not merely a “parade of horribles,” but have a realistic basis, a point that I discussed in this recent post.

Turning to the Necessary and Proper Clause, Judge Vinson concedes that the individual mandate is “necessary” under existing Supreme Court precedent, but argues that it isn’t “proper” because the government’s logic amounts to giving Congress virtually unlimited power. I think this is exactly right; Vinson’s analysis is actually very similar to my own in this post (which is not to even suggest that he got the idea there).

Vinson also notes that the mandate probably runs afoul of the five part test recently outlined by the Supreme Court in United States v. Comstock, though he ultimately does not base his ruling on this point. I advanced a similar interpretation of Comstock and its implications for the mandate case in this article (pp. 260–67). Overall, Judge Vinson’s analysis of the Necessary and Proper Clause is a big improvement on Judge Henry Hudson’s performance in the recent Virginia ruling striking down the mandate.

Unlike Judge Henry Hudson in the Virginia case, Judge Vinson ruled that the mandate is not “severable” from the rest of the health care bill, and therefore invalidated it in its entirety. I think this may be somewhat too sweeping. However, Vinson is on strong ground in ruling that the mandate cannot be severed from the bill’s provisions forcing insurance companies to cover people with preexisting conditions. As he emphasizes, the federal government itself has repeatedly stressed this point in the litigation.

Finally, Judge Vinson rejected the 26 states’ argument that the funding provisions of the bill are unconstitutionally “coercive.” I may have more to say on this issue in a later post.

As I have often noted in the past, this decision is just another step in an ongoing legal battle. Ultimately, the issue of the individual mandate will be resolved by the courts of appeals and probably by the Supreme Court. Still, Judge Vinson’s ruling is a victory for opponents of the mandate. It’s also extremely well-written, and thereby provides a potential road map for appellate judges who might be inclined to rule the same way.

UPDATE: Co-blogger Orin Kerr takes Judge Vinson to task for holding that the mandate is not “proper” because it leads to unlimited federal power. Orin claims that this is is inconsistent with the “words” of Supreme Court precedent, citing a dissent by Justice Thomas in Gonzales v. Raich. However, the words of actual Supreme Court precedent repeatedly emphasize that Congress’ power is not unlimited. For example, in United States v. Lopez, the Court emphasized that ““The Constitution . . . withhold[s] from Congress a plenary police power that would authorize enactment of every type of legislation.” In its most recent Necessary and Proper Clause decision, United States v. Comstock, the Court similarly stated that there is no reason to “fear that our holding today confers on Congress a general ‘police power, which the Founders denied the National Government and reposed in the States’” (quoting United States v. Morrison); the Court emphasized that the regulation it was upholding was “narrow” in scope. Gonzales v. Raich itself gives Congress virtually unlimited power to regulate “economic activity,” but does not address the issue raised by the mandate case. Thus, if Judge Vinson is right that the federal government’s argument for the mandate would give Congress unlimited power, then the mandate indeed conflicts with the words of Supreme Court precedent.

Orin is also wrong to suggest that Vinson “used a first principle to trump existing Supreme Court caselaw.” Vinson in fact discussed those precedents, including Raich, in great detail, and noted how the individual mandate case is distinguishable from them (e.g. — the discussion of Raich on pp. 36–44 of his opinion).

As I have argued elsewhere, both Comstock and Raich give Congress vastly greater authority than is actually authorized by the Constitution. But going way too far down this road is not the same as authorizing completely unlimited congressional power. At the very least, it certainly isn’t what the words of the relevant Supreme Court precedents say they have done.

UPDATE #2: I have corrected an unfortunate typo in the title of this post.

UPDATE #3: In an update to his post, Orin insists that Judge Vinson failed to consider existing precedent, which in Orin’s view imposes only “symbolic” limits on congressional power. All I can say is that Vinson in fact discusses current precedent in great detail and explains why it doesn’t cover the mandate case. Moreover, nowhere does that precedent state that the remaining limits to federal power are purely symbolic and would not strike down any significant congressional policies. Thus, if Vinson is correct in concluding that the argument for the individual mandate would give Congress unconstrained authority to mandate anything it wants, then the mandate really is contrary to existing precedent. At the very least, existing precedent certainly doesn’t require upholding the mandate. I discussed the relevant precedent in more detail here, here, and here.

Washington Times:

White House officials said that sort of “surpassingly curious reading” called into question Judge Vinson‘s entire ruling.

“There’s something thoroughly odd and unconventional about the analysis,” said a White House official who briefed reporters late Monday afternoon, speaking on condition of anonymity.

Hmm. I think it’s a bit curious that the White House would send an “anonymous” official to criticize the ruling of an Article III judge, and surpassingly curious that a gaggle of reporters would agree to respect the aide’s anonymity in exchange for the “anonymous” quotes.
Shouldn’t the reporters either tell the official to go on the record, or refuse to take part in a “briefing” that amounts to simply a colorful attack on an unfavorable opinion?

I’ve pointed out several times before that contrary to mythology created by leftists (e.g., Juan Cole) and paleoconservatives who dislike both right-of-center Israelis and American neoconservatives, the latter are not “Likudniks” and the former are not “neocons.” [“Short and sweet, the Likud is not neoconservative, and neoconservative foreign policy, while pro-Israel and hawkish, is otherwise not much like Likud’s.”]

At the heart of neoconservative ideology is the use of American hard and soft power to promote democracy around the world. With the prominent but lone exception of Natan Scharansky, meanwhile, Israeli right-wingers not only have shown little interest in democracy in the Arab world, they positively fear and oppose it, believing that the Arab “street” is (and is inherently) far more hostile to Israel than is the governing elite, particularly in Egypt and Jordan.

And, indeed, the op-ed pages are currently filled with neoconservatives calling for the U.S. to take the side of pro-democracy demonstrators in Egypt (e.g.), while the Likud-led Israeli government is calling for stability and preserving Mubarak’s power.

The great neocon-Likud conspiracy was always a product of fevered imaginations, helped along, too often, by a large dollop of anti-Jewish prejudice, or at least a willingness to play to such prejudice.

The decision from the Northern District of Florida is available here. In brief:

1. The 26 states lose on the argument that the mandate for drastically increased state spending under Medicaid is unconstitutional. State participation in Medicaid always has been voluntary, and remains so. The states did not argue that the revisions to the Medicaid grant program violate the 4-factor test in S.D. v. Dole as to when conditional federal grants to states are permissible.

2. The plaintiffs win on the individual mandate. The individuals plaintiffs, and the National Federation of Independent Businesses have standing to challenge the mandate. So do Utah and Idaho, at the least, because of state statutes forbidding health insurance mandates. According to original meaning, “commerce” was trade. Citation to Randy Barnett. Even the modern precedents require “activity” as a predicate for commerce clause regulation. Discussion of the pre-Revolution boycott of tea, in protest against the Stamp Act; surely the new Constitution did not empower Congress to mandate the consumption of tea. The decision not to purchase health insurance is not an “activity.” Congress cannot use the commerce power to mandate the purchase of broccoli or General Moters automobiles. (Contra Chemerinsky’s cited argument that Congress can mandate automobile purchases.) The health insurance mark does not possess unique characteristics to justify a mandate. Characterizing the refusal to purchase health insurance as a regulatable economic activity would violate “the non-infinity principle” (a Kopel/Reynolds term, not the court’s) that the commerce clause does not give Congress the power over almost everything.

If it has the power to compelan otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actualtransaction is itself “commercial and economic in nature, and substantially affectsinterstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest thatCongress could do almost anything it wanted. It is difficult to imagine that a nationwhich began, at least in part, as the result of opposition to a British mandate givingthe East India Company a monopoly and imposing a nominal tax on all tea sold inAmerica would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failingto engage in commerce, the enumeration of powers in the Constitution would havebeen in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended. See id. at 592 (quoting Hamilton at the New York Convention that there would be just cause to reject the Constitution if it would allow the federal government to “penetrate therecesses of domestic life, and control, in all respects, the private conduct ofindividuals”) (Thomas, J., concurring).

3. Necessary & proper does not save the mandate. The mandate fails at least 2 of the 5 factors from Comstock. Necessary and proper is not an independent source of power, but rather an authorization of additional means for ends which are themselves among the enumerated powers.

Here, the “essential attributes” of the Commerce Clause limitations on the federalgovernment’s power would definitely be compromised by this assertion of federalpower via the Necessary and Proper Clause. If Congress is allowed to define the scope of its power merely by arguing that a provision is “necessary” to avoid thenegative consequences that will potentially flow from its own statutory enactments, the Necessary and Proper Clause runs the risk of ceasing to be the“perfectly harmless” part of the Constitution that Hamilton assured us it was, andmoves that much closer to becoming the “hideous monster [with] devouring jaws”that he assured us it was not.

4. The mandate is not severable from the health control act. Defendants themselves have argued forcefully that the mandate is absolutely essential to the entire regulatory scheme. There is no severability clause. The mandate is tightly integrated into the entire act.

5. No injunction. Declaratory relief is sufficient, especially since there is a presumption that the federal government will comply with judicial decisions.

6. The entire act is declared void. According to Cato’s Ilya Shapiro, this means that the federal government (presuming that it will obey the law) must immediately stop enforcing the entire health control law. Of course the 11th Circuit might grant a stay, and Judge Vinson might also do so, but as of right now, there is no stay.

Just got a copy of this new book from Prof. Dan Drezner (yes, it’s real). An image, and an excerpt (some paragraph breaks added):

Some realists would go further, arguing that, in the end, human-zombie alliances of convenience would be just as likely to emerge as human-human alliances. As previously noted, many zombies in the canon start out possessing strategic intelligence, making them more than capable of recognizing the virtues of tactical agreements with some humans.

Some zombie studies scholars might object at this point, arguing that flesh-eating ghouls can neither talk nor develop strategic thought. Even if they did not, though, realists would point to Romero’s zombies for empirical support. Even in Night of the Living Dead, Romero’s ghouls demonstrated the capacity for using tools.† In each of his subsequent films, the undead grew more cognitively complex.

The zombie characters of Bub in Day of the Dead and Big Daddy in Land of the Dead were painted with a more sympathetic brush than most of the human characters. Both Bub and Big Daddy learned how to use firearms. Bub was able to speak, perform simple tasks, and engage in impulse control—that is, to refrain from eating a human he liked. Big Daddy and his undead cohort developed a hierarchical authority structure with the ability to engage in tactical and strategic learning. In doing so they overran a well-fortified human redoubt and killed its most powerful leader. It would take only the mildest of cognitive leaps to envision a zombie-articulated defense of these actions at the United Nations.

By the end of Land of the Dead the lead zombie character and the lead human character acknowledge a tacit bargain to leave each other alone. This is perfectly consistent with the realist paradigm. For zombies to survive and thrive, they must avoid losing their brains — like humans, they also must adapt to the rigors of anarchy in world politics. While some emerging zombie governments might pursue radical anti-human policies at first, the anarchical system would eventually discipline a moderation of views.

In a world of sophisticated zombies, alliances between human states and zombie states are possible. Indeed, any government that tried to develop a grand coalition targeting the undead would immediately trigger the security dilemma. Realpolitik states could exploit any move toward an idealistic global war on zombies by creating temporary alliances of convenience with emerging ghoul governments.

A more passive strategy would be to encourage what John Mearsheimer labels “bait and bleed” and “bloodletting” strategies. In these instances, realist states would try to foment conflict between anti-zombie states and the ghouls themselves, profiting at the relative losses incurred by both sides.

Realists would advocate noninterference in how zombie states treated their own living and undead populations.* In the end, realists would conclude that there would be little intrinsic difference between human states and zombie states. Human beings have an innate lust for power in the realist paradigm; zombies have an innate lust for human flesh. Both are scarce resources.

Regardless of individual traits, domestic institutions, or variations in the desire for living flesh, human and zombie actors alike are subject to the same powerful constraint of anarchy. Both sets of actors would engage in strategic opportunism to advance their interests in anarchy. The fundamental character of world politics would therefore remain unchanged. In the end, realists would caution human governments against expending significant amounts of blood and treasure to engage in far-flung anti-zombie adventures — particularly blood.

—–
† The very first zombie we see in Night of the Living Dead uses a rock to break into Barbara’s car.
* Some realists would no doubt warn against the power of a “human lobby” to blind governments from their national interests.

A trial court in New Jersey said it could be, but the New Jersey Supreme Court has said no:

During a primary contest for State Senate, opponents of candidate Brian Stack issued campaign flyers criticizing him for previously hiring a person with a criminal conviction, plaintiff G.D. One campaign flyer stated that G.D. was “a DRUG DEALER who went to JAIL for FIVE YEARS for selling coke near a public school.” G.D. filed a lawsuit alleging defamation, violation of privacy, and other related torts, and named as defendants the Hudson County Democratic Organization and certain individuals, as the purported authors and distributors of the flyers. Defendants assert truth as a defense. G.D. had been convicted of second-degree possession with intent to distribute cocaine and sentenced to a five-year prison term. Thirteen years later, he successfully petitioned for the expungement of his criminal record. Defendants reason that G.D.’s conviction was a public fact maintained as a public record long before the expungement and that the publication of that fact during a political campaign was a legitimate exercise of their free-speech rights and did not violate G.D.’s reasonable expectation of privacy.

G.D. counters that the record of his conviction was expunged and, therefore, his conviction — as a matter of law — is deemed not to have occurred. G.D. submits that, after the expungement of his record, the pronouncement that he was
convicted of a crime was simply false and the dissemination of the expunged information violated his privacy rights....

It is true that under the expungement statute, as a matter of law, an expunged conviction is “deemed not to have occurred,” N.J.S.A. 2C:52–27. But the expungement statute does not transmute a once-true fact into a falsehood. It does not require the excision of records from the historical archives of newspapers or bound volumes of reported decisions or a personal diary. It cannot banish memories. It is not intended to create an Orwellian scheme whereby previously public information — long maintained in official records — now becomes beyond the reach of public discourse on penalty of a defamation action. Although our expungement statute generally permits a person whose record has been expunged to misrepresent his past, it does not alter the metaphysical truth of his past, nor does it impose a regime of silence on those who know the truth.

Sounds exactly right to me. I’m also pleased that the New Jersey Supreme Court rejected the argument — also made in an amicus brief by the Electronic Privacy Information Center — that publicizing people’s now-expunged criminal convictions is tortious under the “disclosure of private facts” tort. “This case,” the court reasoned, “deals with public acts, a guilty plea and sentence in a public courtroom, and public facts, court records available to the public over many years. We hold that the expungement order did not and could not create a reasonable expectation of privacy in matters so long in the public domain.”

I blogged a year ago about the intermediate appellate court’s decision in this case.

The Federalist Society’s recent Faculty Conference included an interesting panel on Conservative and Libertarian Alternatives to Originalism, ranging from natural law theories to libertarian approaches to Burkean methods. John O. McGinnis moderates, and the speakers include Patrick Brennan, David Bernstein, Brian Fitzpatrick, and myself. It’s a very “meta” discussion, especially in the Q&A.

Check out the information here if you are interested.

In State ex rel. DeWine v. Burge (Ohio Sup. Ct. Jan. 27), a judge vacated defendants’ criminal convictions many years after they had been convicted by a jury:

In 1994, a jury convicted Nancy Smith and Joseph Allen of numerous sex offenses involving children enrolled in the Lorain Head Start Program. In the Lorain County Court of Common Pleas’s sentencing entries for Smith and Allen, the court noted that they had appeared in court for sentencing “after having been found guilty” of the various offenses. The sentencing entries did not specify the manner of the convictions–that Smith and Allen had been found guilty by a jury. Smith and Allen were both sentenced to lengthy prison terms. On appeal, the Court of Appeals for Lorain County affirmed the convictions and sentences.

In 2008, Smith filed a motion for reconsideration of her sentence. In 2009, Allen filed a motion for resentencing. The defendants claimed that their August 1994 sentencing entries did not comply with Crim.R. 32(C) and thus did not constitute final, appealable orders. Appellee, Lorain County Court of Common Pleas Judge James M. Burge, who succeeded the judge who had sentenced the defendants to prison, granted the motions and vacated the convictions and sentences. Judge Burge ruled that the court’s jurisdiction included “the preparation of a corrected sentencing entry or, in the court’s discretion, a resentencing.” On June 24, 2009, Judge Burge entered judgments of acquittal pursuant to Crim.R. 29(C) for both Smith and Allen, discharged them and ordered the Lorain County Sheriff’s Department to remove them from the
sex-offender registration and notification system.

Judge Burge’s judgment was apparently based on the view that “the evidence [was] insufficient to sustain a conviction of such offense or offenses” (since that’s what Rule 29 provides for). Judge generally may grant such verdicts even “after [a jury] returns a verdict of guilty,” though usually this happens immediately or very shortly after the jury verdict. But in this case, the Ohio Supreme Court held that Judge Burge lacked jurisdiction to enter such a verdict.

Reader Paul Kasman asks: Does this reversal of a judicial acquittal violate the Double Jeopardy Clause? After all, generally speaking acquittals cannot be reversed, and can’t even be appealed by the government. But here there would be no Double Jeopardy Clause violation, it turns out. United States v. Wilson (1975) holds (to quote a later case characterizing it), that “When a jury returns a verdict of guilty and a trial judge (or an appellate court) sets aside that verdict and enters a judgment of acquittal, the Double Jeopardy Clause does not preclude a prosecution appeal to reinstate the jury verdict of guilty.” Here’s the Supreme Court’s reasoning on the matter, from Wilson itself:

Continue reading ‘Reversal of Judge’s Acquittal of Defendant, When the Acquittal Was Entered Despite a Jury Verdict’ »

News here, involving protests by Common Cause and other groups of a meeting sponsored by the Koch Brothers.

Although votes were cast on November, the race for juvenile court judge in Hamilton County, Ohio, has yet to be resolved. At last count, one candidate led by 23 votes, but a slightly higher number of miscast ballots were counted, and several hundred more remain in dispute. As I noted here and here, the election has spawned litigation in both federal and state court raising both state law and federal equal protection claims.

Last week, the U.S. Court of Appeals for the Sixth Circuit weighed in with Hunter v. Hamilton Country Board of Elections, concluding 2–1 that the Board’s decision to count some miscast ballots but not others may have violated 14th Amendment’s Equal Protection Clause as applied to ballot counting in Bush v. Gore.  As OSU’s Ned Foley explains here, this decision is likely “the most significant application of Bush v. Gore in the decade since that precedent was decided,” and (if not overturned or modified by the Sixth Circuit en banc or the Supreme Court) could influence how other courts handle future election challenges, particularly those involving challenges to election official decisions to count some ballots but not others.

One of the central issues in the case is whether the Hamilton County Board of Elections offered a sufficient justification for deciding to count some ballots cast at the wrong precinct due to errors by election officials, but not others.  As Judge Moore’s majority opinion explained, “the Board exercised discretion, without a uniform standard to apply, in determining whether to count miscast ballots due to poll-worker error that otherwise would have been invalid under state law.” Judge Rogers’ concurring opinion did not subscribe to this analysis and urged greater deference to state officials.  As Foley notes, this opinion offers an alternative approach some courts may elect to follow, and a further reason this case could prove important should we face yet-another round of election litigation next year.

Beyond the court’s application of Bush v. Gore, the case raised the issue of how state and federal courts should address potentially competing interpretations of federal law.  In an earlier decision, the Ohio Supreme Court, in clarifying Ohio’s rules governing provisional ballots, was fairly dismissive of the federal constitutional claims and asserted that Ohio courts were not bound by federal district court interpretations of federal law.  This earned a slight rebuke  from the Hunter majority: “It is not for the state court . . . to resolve the equal-protection claim previously filed and still pending in federal court.”  These issues, the Sixth Circuit held, “were not properly before the Ohio Supreme Court because they were not presented there.”  As a consequence, there was no basis for the Sixth Circuit to defer to the Ohio Supreme Court’s resolution of the issue.

Judge Rogers, concurring in the judgment, viewed the Ohio Supreme Court decision somewhat differently.  Noting that the Ohio Supreme Court had sought to explain how local election officials could comply with the relevant district court order, he wrote:

This was a commendable exercise of discretion in a constitutional system where federal and state courts are independent of each other. State courts and lower federal courts need not, and should strive not to be, in conflict. The law and the public interest support tailoring of federal equitable relief so as to conform as closely as possible to the Ohio Supreme Court’s interpretation of Ohio election law.

While the state courts cannot control the enforcement of a federal court order enforcing federal law, the state courts may properly direct state officials responsible for carrying out the order on the choice of options consistent with the order. This is what the Ohio Supreme Court has done, and it appears to have done so in a thoughtful and deferential manner.

For these reasons, Judge Rogers urged the district court to make a greater effort to conform any further ordered relief to the Ohio Supreme Court’s resolution of the relevant state law claims.

[NOTE: I have corrected an error in the title and the post.  I wrote “probate judge” when I should have written “juvenile court judge.”]

Greg Mankiw points to recommended reading by Robert Shiller (and, apparently, Karl Rove).  The book?  Adam Smith’s The Theory of Moral Sentiments.

The book’s resurgence does not surprise me.  Certainly not from Shiller who, with George Akerloff, gave us the intriguing book Animal Spirits.  Shiller is of course not indifferent to the core point raised by TMS as well as the famous reference to Keynes, which is that “affect” matters in economics.  From Karl Rove, I’m not quite sure.  I’m curious as to what relevance, if any, Professor Mankiw thinks that TMS has today.

I’ve written about the importance of TMS before here at Volokh.  Smith himself believed that you could not really understand, or for that matter hope to see in action, the market operations and effects of The Wealth of Nations without a concomitant “moral psychology” of human beings.  The constitutive moral psychology of sociability was, for Smith, a predicate for the social institutions of the market that make up The Wealth of Nations.  He believed that the two books, and the two accounts of human affective traits and market institutions based around the commodification of affections within a marketplace were what made market institutions possible, or at least stable.

The commitment to a psychology of market-making human beings that is more than simply “thin” rational self-interest is not the same as urging that markets need morally “better” people, which, come to that, we are not likely to get.  The point of TMS or what I would hope is a turn toward economic foundationalism that takes affect and moral psychology seriously is not exhortation, windy or otherwise.  It is not prescriptive; it is, rather, descriptive in its assertion that stable and successful market institutions are constituted around social practices — legal, personal, affective, sociable — that presume not thin rationalism but instead a much thicker affective parts.

The term “moral psychology” here is a term of art; it refers not to morality in the right and wrong sense, but instead to the affections that invite to sociability.  Shiller, in the discussion linked by Professor Mankiw, refers to “empathy” as being the general quality that Smith means.  He notes that the term had not yet entered the English language.  But that is probably not quite it, not in our modern use of the word.  Smith version of social virtues is not precisely the ability to feel as another feels, but to put oneself in the reciprocal condition and make judgments, including moral judgments of how to behave, on the basis of reciprocal fellow-feeling.  I don’t think that is precisely the emphasis on “feeling” straight-up that we normally associate with our modern use of empathy.  It is less a question of emotion and more a question of judgment.

Yet the preceding paragraph, while one that would not discomfit Smith, is one that must likely discomfit the economists who walk among us.  It is attentive, after all, to all the contingent if not irrelevant things, affect rather than rationality, and the nuances of how we use words by seeking to apply a certain analytic sense to matters of sensibility.  It is not, to say the least, social science.  Nevertheless, it would not be beyond Adam Smith to channel Marx and even Freud and suggest that perhaps the insistence upon so much ahistorical social science has a certain amount of “veil of ideology” attached to it  Or, if you prefer, the return of the repressed.

This is not wild-eyed revisionism and the belief (one that arises in manias and panics  when Things Fall Apart) that somehow economic theory is up for grabs.  Even if it lends itself to the sort of thing that justly causes the professional economists to roll their eyes, of course it’s not, or not necessarily that.  Professor Mankiw’s texts should continue to sell as well as ever and may we all study them, including law students.  But it is not beyond the pale to suggest that, for example, at some crucial points economic theory crossed from the empirical description of efficient markets in particular markets under particular conditions to a panglossian, deductive assumption about the nature of necessity and a necessity of nature.

The economic theorists I know seem to believe that the solution for the difficulties of rationalist economics is to introduce behavioralism.  It is of course profoundly important.  But it is also insufficient.  Smith’s point, after all, is that intentions matter beyond mere behavior.  If rationalism is too thin a conception of human beings in markets as social systems, so is behaviorism; it is thin in a different way, the one that says that one can read everything off the surface.  The biggest divide that ought to preoccupy economics as a methodological question, it seems to me, is not between rationality and actual behavior, but instead between methods that are deliberately minimal, thin, and superficial as to human beings, and those that presume — as Smith does — that what we see as markets takes as foundational a thicker view of humans.

And a thicker view in two distinct senses, giving rise to two additional methodological lenses:  moral psychology, the psychology of intention, on the one hand, and the social theory of legitimacy of institutions, whether of Weber or Durkheim or Marx or others, on the other.  The reductionism of both rationalism and behaviorism — reading off the surface — has its point and far from me to deny its value.  But the point of TMS, and presumably why it is resurgent among dissatisfied congniscenti, is that the observed social institutions that we call markets do involve thicker human beings than that, and necessarily so.

There is a problem in the foundations, I take Shiller to say, and as things stand, the foundations matter today rather more than they did.  There is therefore a contribution, and a major intellectual one, to be made to the foundations of economics by the humanities, the philosophy of value and valuation, and moral psychology.  The recovery of intellectual history that would re-locate economics within a larger tradition of social theory and philosophy, for example.

Problem is, outside of philosophy and particularly the philosophers of value — Elizabeth Anderson, for example — or certain social theorists — Zygmunt Bauman, for another — the remainder of the humanities does not have much to offer here.  It should, but it doesn’t.  As Bauman once put it in a superb essay, it has sawed off intellectual branch it was sitting on and, as I would put it, lost the ability to apply analytic sense to sensibility.  It won’t recover it any time soon.  It’s a pity for the humanities, of course — but also a pity for economics.

(ps. Law has something of its own to contribute.  We are used to re-thinking law in terms of economics.  It seems frankly strange in today’s intellectual environment to think that there might be something methodological the other way around.  I mean as method, not as the substantive fact that markets depend upon legal assignments of rights, property, liability, etc. — I mean method and concepts in law that can be used to inform economics as a discipline in the way that law and economics as a subject takes economics to inform law.

An example of this would be agency and particularly the notion of a fiduciary.  The notion of a fiduciary as a status that a person holds can be explained, if one likes, in reductionist economic terms of obligations to behave in the following ways or incur liability.  What the law tells us, however, is that this is frankly insufficient to describe what we mean by the word itself.  The term cannot be reduced, without leaving out a crucial part of its content, into purely act-consequence formulations; the internalization of a certain status, leading to a certain form of judgment, is part of what the law of agency means by fiduciary.  It is a thicker description of an agent than is built into the territory of what it means to be a fiduciary, and that is so even when people fail in their duties and incur sanctions.)

This recent TV performance by Rep. Jack Kingston (R-GA) is quite embarrassing. The worst part is, I doubt he’s embarrassed by it.

CNN reports that the Transportation Security Administration has decided it will no longer approve applications from airports seeking to replace TSA screeners with private contractors. This is an abrupt reversal from the agency’s alleged “neutral” stance it announced just several weeks ago.

TSA chief John Pistole said Friday he has decided not to expand the program beyond the current 16 airports, saying he does not see any advantage to it.

Though little known, the Screening Partnership Program allowed airports to replace government screeners with private contractors who wear TSA-like uniforms, meet TSA standards and work under TSA oversight. Among the airports that have “opted out” of government screening are San Francisco and Kansas City. . . .

“If airports chose this route, we are going to work with them to do it,” a TSA spokesman said in late December.

But on Friday, the TSA denied an application by Springfield-Branson Airport in Missouri to privatize its checkpoint workforce, and in a statement, Pistole indicated other applications likewise will be denied.

“I examined the contractor screening program and decided not to expand the program beyond the current 16 airports as I do not see any clear or substantial advantage to do so at this time,” Pistole said.

CNN reports that Rep. John Mica (R-FL) plans to investigate the TSA’s abrupt change in policy.

The primary policy justification for the individual mandate is that it reduces the costs of preventing insurers from denying coverage for preexisting conditions. It reduces, but does not elminate, these costs because the mandate is too small to provide an adequate incentive for healthy uninsured or under-insured to purchase mandated coverage.

This past week Merrill Mathews had an op-ed in the WSJ noting Sen. Ron Wyden’s efforts to allow states to opt out of the individual mandate as early as 2014 and explaining that there are alternative ways of achieving the mandate’s aims.

It is important to understand that the mandate is merely a clumsy way to fix a bigger problem in ObamaCare: the requirement that insurers accept anyone who applies regardless of medical condition.

Congress could mitigate that moral hazard by restricting individuals buying their own coverage—employer-based plans already accept all new employees—with a pre-existing medical condition to obtain or change coverage only during a six-week, annual “open season” enrollment period. Or they could pay an increased premium the longer they wait to get coverage, or both. Those options would not eliminate gaming, but they might reduce it.

If Congress eliminated the mandate, people would not have to buy the government-qualified coverage—unless they wanted government subsidies in the exchanges. That would free up employers and health insurers to offer coverage that employees and consumers want, rather than what the government demands. And if Congress restricted the requirement that insurers accept anyone to those inside exchanges, that would permit the market to function outside the exchange.

I don’t have any brilliant suggestions for how President Obama should handle the situation in Egypt. But history and economic theory do give us some insight on why the revolt against the government started so suddenly and unexpectedly. They also highlight the danger that any regime that replaces incumbent dictator Hosni Mubarak might turn out to be much worse than he is.

I. Why the Revolt was Such a Surprise.

It seems likely that the revolt against Mubarak came as a surprise to him, and also to Western intelligence agencies, including the Israelis, who are renowned for their capabilities in this field and have obvious incentives to keep close tabs on events in Egypt. Why was everyone so surprised?

A key reason is that citizens of oppressive regimes have strong incentives to keep anti-government opinions to themselves. As a result, many who oppose the government might hesitate to say to to pollsters, foreign journalists, and anyone else who might potentially reveal their views to the authorities. As I have previously emphasized here, here, and here, this makes it very hard to gauge the true level of opposition to the government. Indeed, even the regime itself might underestimate the true extent of its own unpopularity, which may be one reason why Mubarak was caught flatfooted.

As economist Timur Kuran showed in a brilliant 1995 book on this kind of “preference falsification,” regimes that rely on repression to inhibit expression of opposition opinion can rapidly collapse if the public perceives that the reins have been loosened. Once a few people start protesting openly and the government does not react as forcefully and effectively as everyone expects, protests can quickly snowball and spread, as more and more people begin to believe that it’s safe to express antigovernment opinions openly. This is what happened in Eastern Europe and the USSR in 1989–91, in Tunisia a couple weeks ago. It may also account for current events in Egypt, as protests rapidly grew once police and security forces failed to suppress their initial manifestations a few days ago. By their very nature, such occurrences are difficult to predict, since they rely on a combination of random events and relatively modest relaxation of vigilance on the part of the regime.

II. Why the New Regime Might be Worse than the Old.

There is a long history of revolutions against repressive governments resulting in takeovers by groups that are even more oppressive. Czar Nicholas II, who slaughtered thousands and significantly repressed opposition movements, was overthrown only to be supplanted by the communists, who slaughtered millions and permitted no opposition at all. Batista, the run of the mill Cuban dictator, was replaced by the mass murdering Fidel Castro, who both killed many more people and made Cuba far more economically backward than before. The repressive Shah of Iran was replaced by the even more repressive Ayatollah Khomeini.

What these cases have in common is that the illiberal forces were much better organized and prepared to seize power than their liberal democratic rivals. A secondary factor was the illiberal strain in Russian, Cuban, and Iranian public opinion, which gave the new regime broader support than it might have had otherwise (though, contrary to popular mythology, the vast majority of Russians did not support the Bolsheviks in 1917). Under oppressive governments, rational political ignorance and irrationality are even more of a problem than in democracies, since the regime inhibits the free flow of information. This makes people even more susceptible to dangerously irrational ideologies than they would be otherwise.

Both of these danger signs are very much present in Egypt. As political scientist Barry Rubin, an expert on Arab politics, points out, the best-organized opposition in group in Egypt is the radical Islamist Muslim Brotherhood. If they manage to seize power, the resulting regime is likely to be even more repressive than Mubarak’s, especially when it comes to women, non-Muslims, and liberals. Rubin also notes that Egyptian public opinion is far from liberal:

[W]hat do Egyptians really think? According to a recent Pew poll, they are extremely radical even in comparison to Jordan or Lebanon. When asked whether they preferred “Islamists” or “modernizers,” the score was 59% to 27% in favor of the Islamists. In addition, 20 percent said they liked al-Qaeda; 30 percent, Hezbollah; 49 percent, Hamas. And this was at a time that their government daily propagandized against these groups.

How about religious views? Egyptian Muslims said the following: 82 percent want adulterers punished with stoning; 77 percent want robbers to be whipped and have their hands amputated; 84 percent favor the death penalty for any Muslim who changes his religion.

The Pew poll Rubin cites is this one. He does misinterpret one question. The 59% who said they preferred fundamentalists to “modernizers” is not 59% of the entire sample, but merely of the 31% who say they perceive a conflict between these two groups in Egypt. We don’t know what the other 69% of Egyptian Muslims believe on this issue. Nonetheless, the overall picture of Egyptian public opinion is a disturbing one. In addition to the points cited by Rubin, it’s also worth noting that 54% of Egyptians say they favor legally mandated sex segregation in the workplace, and that the survey might underestimate the extent of sympathy for Al Qaeda, Hezbollah, and Hamas. Some Egyptians might have been reluctant to express such views so long as Mubarak seemed firmly in control, since all three groups were enemies of his regime.

None of this definitively proves that radical Islamist forces will soon take over Egypt. The Mubarak regime might yet survive, perhaps sans Mubarak himself. Even if it does not, it’s possible that more liberal forces will somehow prevail. But it does suggest that an Islamist takeover is a serious threat, and that repressive forces are better positioned to seize power than their rivals for much the same reasons as in 1917 Russia and 1979 Iran.

It is reasonable to point out that this sad state of affairs is in part the result of longstanding US support for the Mubarak regime, which has repressed liberal opposition and allowed radical Islamists to pose as the only viable alternative. Of course this critique of US policy assumes that there was a viable liberal alternative to Mubarak that we could have supported instead, which is far from clear. Mubarak might have been the lesser of the available evils. But even if US policy does deserve a share of blame for Mubarak’s repression, that only makes it all the more imperative that we do what we can to forestall the rise of an even worse government.

UPDATE: It seems like most of the commenters are focusing on the very brief discussion of US foreign policy in my last paragraph and using it as an occasion to rehash well-worn debates about the history of US policy in the Middle East (e.g. — whether the US was wrong to ally with various Arab dictators, and whether doing so helped cause the 9/11 attacks). I’m not going to delete comments on these issues. But it seems to me that it would be better for readers to focus on the main points I make in the post rather than rehash arguments that have already been debated ad nauseum elsewhere.

Wow, who could have possibly predicted that the Credit CARD Act’s rules that limit non-interest fees and the ability to raise interest rates when a borrower’s risk changes would result in “record high” interest rates (other than me, of course, when I testified to the Senate Banking Committee in 2009 that the act would result in higher interest rates and other than the sponsor of the law, who has acknowledged that it has resulted in higher interest rates but has decided for the rest of us that higher rates is a good thing)?  Even more amazing, it appears that these restrictions on risk-based pricing has hit poor credit risks even harder than less-risky consumers.

Interest rates are now hovering near record highs, at an average rate of 14.72%. And if your credit is bad enough, you could even end up with a rate as high as 59.9% APR.

That’s because while the CARD Act helped crack down on certain fees and requires more disclosures, it didn’t cap every credit card holder’s worst enemy: interest rates.

Sure, the new rules prevent banks from raising most interest rates retroactively, but there’s no limit on the rates they can charge new customers.

“Rates are going up because card issuers know that once you get a card they can’t raise the rates, so they’re raising rates on the front end to ensure they get the revenue from that interest,” said Beverly Harzog, credit card expert at Credit.com.

I should add that, of course, this is not a “record high,” because rates were much higher in the 1970s and 1980s before deregulation led to lower rates.  But they do seem to be the highest in recent memory.

I mentioned a few weeks back that Josh Wright and I had authored an amicus brief in support of cert in the case of Wine Country Gift Baskets.com v. Steen.  For those who are interested, in the brief we cite a brand new working paper by Jerry Ellig and Alan Wiseman on the positive impact for consumers of allowing greater online competition in wine sales.  The most recent version of that working paper is now available here.