Nov 11, 2011 Jack Beermannadlaw
Composer Arnold Schoenberg famously once quipped that “the middle way is the one that surely does not lead to Rome.” The idea behind this thought, I gather, is that intellectual compromise does not lead to the truth. John Manning’s recently published article, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1940 (2011), proves Schoenberg’s principle wrong, at least with regard to separation of powers. In this article, Manning, the Bruce Bromley Professor of Law at Harvard Law School, persuasively demonstrates that neither extreme in current debates about separation of powers is correct, and that a true understanding of separation of powers in the United States requires a more nuanced view of the subject than either extreme is willing to undertake. In my view, Manning’s article is the best published American law review article about separation of powers. It states a coherent theory of separation of powers clearly and elegantly, and it explains, just as clearly and elegantly, exactly why separation of powers extremists on both sides are wrong. The only problem I have with the article is that at the time I first read it in draft, I was working on my own separation of powers article, and Manning stole, improved and expanded upon much of my thunder.
There is too much of value in this article to capture in a brief review, so I focus on two aspects, namely Manning’s disagreement with the extremes in separation of powers and the middle way that Manning charts, based on his view that separation of powers in the United States embodies a constitutional compromise. Along the way, I explain what Manning means by “ordinary interpretation” and how that differs from the interpretive methods employed by separation of powers extremists on both sides.
Manning’s article confronts and refutes the two extremes we find today in separation of powers analysis. On one side is the formalist insistence on strict separation of powers doctrine that reads each of the Constitutions three Vesting Clauses as assigning a defined sphere of governmental power to a particular branch and applies a broad “strict separation” principle when a particular procedural or structural provision does not apply. This methodology is usually associated with expansive views of the President’s power to execute the law free from congressionally imposed restrictions on appointment, removal and direction of federal officials and is exemplified by Justice Scalia’s dissent in Morrison v. Olson and my colleague Gary Lawson’s view, published in an important article written together with Patricia Granger, that the word “proper” in the Necessary and Proper Clause imports strict separation norms into the Constitution.
On the other side lies the functionalist approach that eschews strict application of structural constitutional limits in favor of a doctrine designed to “ensure that Congress has respected a broad background purpose to establish and maintain a rough balance or creative tension among the branches.” Ironically, the functionalists also place primary reliance on the Necessary and Proper Clause, which they read to grant Congress wide ranging authority to rearrange government institutions and reallocate power in pursuit of legitimate federal goals.
The heart of Manning’s critique of separation of powers extremism is his demonstration that both formalism and functionalism depend on overarching theories of separation of powers that are not actually embodied in the Constitution. This is where the concept of “ordinary interpretation” enters the picture. As Manning explains, in recent decades, the Supreme Court has shied away from broad purpose-based statutory interpretation methodologies. This is based on the recognition that statutes are the product of compromises that make it unrealistic to assume that the legislature as a whole would favor non-textual applications that advance a court’s view of the statute’s underlying purposes. Manning imports this understanding into the realm of constitutional separation of powers principles. As Manning explains:
the intricate detail within the constitutional structure in fact reflects the fruits of quite particular compromises over how to divide and structure the various powers. No overarching theory of separation of powers can explain the document’s many elaborately specified procedures. (P. 1973)
Manning supports this view by pointing out that, contrary to the practice in most state constitutions, the Framers chose not to include a general separation of powers clause in the Constitution. In Manning’s view, this is consistent with the way the Framers thought about it—separation of powers under the United States Constitution is the result of faithful application of the document’s numerous procedural and structural provisions and not based on an overarching theory. The Framers did not conceive of separation of powers in a more absolutist way because, as Manning explains, their design involved a careful compromise between separation and checks and balances.
What about the extremists’ reliance on the Necessary and Proper Clause? Manning answers both arguments the same way—reading the Necessary and Proper Clause to either require or rule out strict separation assumes that the Framers hid an “elephant in a mouse hole,” concealing a fundamental constitutional principle in obscure language.
Manning’s critique of the extremists foreshadows the middle way that he charts for separation of powers analysis under the U.S. Constitution. The first principle of separation of powers, with which I wholly agree, is that the Constitution’s highly specific structural and procedural provisions ought to be honored and enforced. Those are the easy cases. The hard cases are those that arise outside the purview of any particular clause where resolution has significant ramifications for the distribution of power within the government. The best example of this is removal of executive officials. The strict separationists derive, from the Necessary and Proper Clause and the Vesting Clause of Article II, an overarching separation of powers principle that the President should have unlimited power to remove all officials involved in the execution of the law. Manning doesn’t see it that way but he doesn’t rule out some limits on Congress’s power to restrict removal even though there is no specific constitutional clause that addresses the matter. The solution, says Manning, should be arrived at through a process of ordinary interpretation, deriving principles from the particular constitutional provisions that grant and shape the relative powers of Congress and the President, rather than by applying an overarching theory of separation of powers.
One great virtue of Manning’s portrayal of separation of powers is that it is much closer to the Supreme Court’s jurisprudence than either of the extremes. Rarely, if ever, does the Supreme Court act in accordance with an overarching theory of separation of powers that requires either strict separation or pure functionalism. Rather, separation of powers law under the United States Constitution involves relatively strict application of the Constitution’s procedural and structural provisions (not including the Vesting Clauses), and when no such clause applies, as Manning explains, the preferred decision methodology is to draw structural inferences via a careful consideration of the relationship “between the Vesting Clauses and the more precise clauses that, with them, create the constitutional structure.” This is “ordinary interpretation.”
I heartily recommend this article to anyone interested in separation of powers or administrative law more generally. While the middle way may not lead to Rome, it does lead to a better understanding of the structure of government in Washington, D.C., as demonstrated in this excellent article by John Manning.
Nov 9, 2011 Isabel Grantequality
Over the past decade in Canada, and particularly over the past five years, we have seen an increase in the number of prosecutions of nondisclosure of HIV status. Most of these cases are prosecuted as aggravated sexual assault, our most serious sexual offence, punishable by life imprisonment. Unlike sexual assault generally, there has been a dearth of literature in Canada addressing this issue from the perspective of its impact on women.
This is an exceptionally difficult issue for the feminist legal movement. On the one hand, prosecutions of nondisclosure could be seen as protecting the sexual autonomy of women who are often the victims of men who fail to disclose their HIV-positive status. Expanding the notion of fraud negating consent could be seen as empowering women to choose the circumstances in which they consent to sexual activity. However, women are also potential accused persons in these cases. Sex workers, immigrant women and poor women may be particularly at risk of criminalization for failure to disclose. Recently a 17 year old girl in Edmonton was named publicly and charged with aggravated sexual assault for not disclosing her status to two men. Rates of HIV are increasing in young women in Canada and we need to ask whether criminalization, in the long run, will protect women from HIV or further marginalize and isolate this already highly stigmatized group.
Alison Symington takes on some of these difficult issues in her chapter in this forthcoming book on Sexual Assault edited by Professor Elizabeth Sheehy. Symington takes as her starting point the view that “any use of coercive legal powers by the state (whether within the criminal justice or public health systems) must be evaluated on its ability to prevent further HIV infections and/or promote care, treatment and support for [persons living with HIV/AIDS], in line with the best available evidence and human rights standards.”
Symington demonstrates that it is not self-evident that criminalization protects women nor that it decreases the transmission of HIV, particularly considering that most transmissions occur during the acute stage of the virus, often before the individual knows he or she is HIV-positive. Symington argues that the trend towards over-criminalization may be a result of “a state-sponsored AIDS panic” rather than sound social policy, reminding us of increased scientific knowledge about the efficacy of condom use and anti-retroviral therapy in reducing transmission risks to extremely low levels. Women must be given the physical and economic resources to be able to disclose their status without facing the risk of violence or other harm. While criminalization may give some women a small measure of justice, Symington asks “what message does that send to women and the public generally about their role in sexual relationships, about sexual assault and violence against women, about dependency and agency at the root causes of women’s vulnerability to both violence and HIV, including poverty, discrimination and myths about women’s sexuality?” She looks at the issue from the perspective of agency and empowerment, pointing out that myths of women as passive sexual actors are implicated in the issue and arguing that, in an ideal world, both partners in a sexual relationship, should make their own autonomous decisions about sexual behaviour and take steps to protect themselves from risks. The stigma and fear surrounding HIV often seem to further public beliefs that persons living with HIV must carry all of the responsibility to protect their partners through disclosure and should be imprisoned if they fail to do so, whether or not HIV is actually transmitted.
Symington also expresses concern about the damage done to sexual assault prosecutions generally by equating HIV nondisclosure with sexual assault. She notes the racial and heterosexist bias demonstrated in the Canadian prosecutions to date, and the stereotypes and stigma that such systemic discrimination perpetuates. She points out that other sexual assault cases are much less likely to succeed on the basis of women’s uncorroborated evidence than areHIV non-disclosure cases and shows that while both are prosecuted as sexual assault, very different dynamics are at play. As well, she details several reasons why criminalizing HIV non-disclosure may actually be counterproductive to transmission prevention efforts, including increasing disincentives for people to find out their status; and contributing to public misunderstanding of transmission risks and stigmatization of people living with HIV.
Symington does not make clear whether she believes criminalization is ever appropriate – for instance, in the difficult cases of those individuals who demonstrate a pattern of total disregard for the safety of their sexual partners, despite the efforts of public health authorities. Most HIV/AIDS advocacy groups recognize a narrow but necessary role for criminal law. Determining where the line should be drawn is a challenge currently before the Supreme Court of Canada in a case from Manitoba and one from Quebec.
Symington’s arguments and discussion are nuanced and powerful. However, her starting point – that any use of coercive legal power must be evaluated on its ability to decrease HIV transmission – is likely to be challenged. Many would argue that the purpose of sexual assault law is protect the physical and sexual integrity of (primarily) women. The fact that these purposes conflict may be a further reason Symington urges us to re-consider sexual assault as the appropriate tool to use in these cases.
Symington concludes that “forging strategic linkages between the analysis and advocacy work on HIV and on violence against women may be a critical next step in advancing the criminal law in a more logical and effective direction.” It is hoped that advocacy groups will take up this challenge. The significant public health problem of nondisclosure needs a more nuanced response than the blunt tool of widespread criminalization.
Nov 7, 2011 Paul Horwitzconlaw
Ashutosh Avinash Bhagwat,
Details: Specific Facts and the First Amendment (2011), available at
SSRN.
Imagine two speech scenarios. In the first, a noted scientist publishes a paper offering specific, detailed, and accurate empirical evidence concerning the genetic structure of a rare and fatal disease. Few people suffer from the disease, and even fewer will understand the paper, but it represents a great leap forward in understanding the underlying nature of the disease. The paper does, however, include patient information that is supposed to be confidential under federal privacy laws. In the second, a newspaper published a letter to the editor by a local crank charging that the climate change movement is a worldwide conspiracy in which scientists are deliberately lying to the public. The letter is a poorly supported rant. Which speech deserves greater protection under the First Amendment?
Although he would offer some protection to both, Ashutosh Bhagwat argues, in a new working paper, Details: Specific Facts and the First Amendment, that the second speech—the false, unhelpful work of what Holmes would have called a “poor and puny anonymity”—deserves more protection than the paper that may revolutionize understanding and treatment of a variety of genetically based disorders, a Nobel Prize in waiting. His answer is not outrageous, and some may find it unsurprising. But even recognizing that the question exists is important.
Bhagwat is riding at the crest of a wave. The status of facts under free speech law is of increasing interst to various leading First Amendment scholars. They include Frederick Schauer, whose paper Facts and the First Amendment I reviewed here some time ago; Eugene Volokh, who has written on similar issues in his article Crime-Facilitating Speech, 57 Stan. L. Rev. 1095 (2005); Robert Post, who in a forthcoming book discusses the place of knowledge-generation within First Amendment law; and Mark Tushnet, whose recent paper on the Stolen Valor Act discusses “the constitutionality of regulating false statements of fact.” Bhagwat’s paper, with its focus on true rather than false statements, makes a valuable contribution to this emerging literature. But its value lies in its very existence as well as its substance. When this many leading scholars zero in on an issue, that is good evidence of a problem of some kind.
Part of the problem in this area lies with the kinds of sweeping generalities that often festoon First Amendment opinions. A classic example is Justice Holmes’s statement that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Another is the Court’s statement, in Gertz v. Welch, that “under the First Amendment, there is no such thing as a false idea.” Still other generalities are not mere rhetoric, but powerful doctrinal rules. Thus, the central rule of modern First Amendment doctrine is that government may not regulate speech on the basis of its content; and an increasingly important area of First Amendment law is government speech doctrine, whose exclusion of government speech from the strictures of the First Amendment has taken on a vast scope in recent years. These tropes and rules are grounded in sound intuitions. But in leveling so much speech, they leave profound complications concerning the value and nature of factually detailed speech unaddressed. Bhagwat’s paper represents an effort to bring First Amendment law back to reality.
Bhagwat helpfully lays out several areas in which factually detailed speech may raise First Amendment concerns: 1) the public disclosure of personal details, such as newspapers’ publication of the identity of sexual assault victims; 2) the publication of “detailed instructions for criminal or dangerous behavior,” such as a manual on committing and concealing murders that is later used as a how-to guide by a killer; 3) the publication of scientific and technical details, such as a computer code that enables one to circumvent the encryption of DVDs and make them available for unlicensed copying; and 4) the publication of military and diplomatic secrets, as in the Pentagon Papers or Wikileaks cases. In all these cases, Bhagwat writes, “the fundamental problem posed is whether factual speech, containing very specific details . . . , is fundamentally different for First Amendment purposes from more abstract literary, artistic, or political/ideological speech.”
Bhagwat argues that to answer this, we need to know what key First Amendment value we are seeking to advance. His answer, like that of Robert Post, James Weinstein, and others, is that “the primary . . . function of the Free Speech Clause of the First Amendment is to facilitate political dialogue, and more generally, to enable the process of democratic self-governance in the United States.” The value of factually detailed speech must be determined in light of how, and how much, it contributes to public discourse.
That value will vary depending on the information involved. For example, “speech concerning scientific and technical details will often play a central role in democratic discourse.” So may some military or diplomatic secrets. On the other hand, “personal details and instructions for criminal or dangerous behavior . . . seem to have far less to do with the political sphere.” They may matter in particular contexts, but on the whole, the relationship of such specific details “to any form of self-governance is tangential at best, and even where the relationship exists, it is often less direct than with respect to pure ideas”—no matter how idiotic the idea.
The need to consider the context of specific speech involving factual details is ultimately unavoidable, Bhagwat argues. But it can proceed on a sounder footing than we have today. Under current law, “the same doctrinal rules that apply to regulations of ideas apply to the regulation of details.” That makes for an awkward fit, because “laws seeking to directly suppress details will almost always be content-based,” given that they will single out precisely the details that need to be suppressed, and will thus face a heavy burden. But, as is often the case in First Amendment law, “when faced with such regulations, courts have tended to twist or even ignore that doctrine” in order to respond to the particular exigencies of a case.
Bhagwat argues that reform must start by recognizing that “not all details are created equal. Some factual speech is central to the process of self-government, and so deserving of the highest constitutional solicitude, while other such speech is far more peripheral.” In each case, the court must begin by considering a mix of factors, such as “whether the speech was a part of public discourse, and the extent of the public interest in that speech.” Factual details that lie within the core of public discourse should be vigorously protected. “Factual details outside that core,” on the other hand, should undergo intermediate scrutiny. That test, which is designed to “analyze regulations of speech which has some substantial value, but which clearly falls outside the core of the First Amendment’s protections,” will allow courts to weigh the value particular factual details for public discourse against their potential harms. And it will be more forgiving than the test used for some forms of opinion or advocacy, such as speech urging the violent unlawful overthrow of the government, because it will not insist that the speech be highly likely to cause imminent harm.
As with most First Amendment reform pieces, the value of Bhagwat’s piece lies less in the outcomes it recommends—judges do a reasonably sensible job already, and the changes he would like to see aren’t that dramatic—than in its capacity to better explain our intuitions, enhance judicial transparency, and offer guidance in future cases. Even so, I have some bones to pick with it. Bhagwat’s focus on particular kinds of restrictions on factually detailed speech gives us something more than the trees but something less than the whole forest. In particular, he neglects three questions that may yield less of an immediate doctrinal payoff, but have a greater relationship to the doctrinal and epistemological difficulties that seem to plague the courts in this realm. First is the question of institutional allocation: the key issue with respect to factually detailed speech may not be how much of it should be regulated, but who regulates it. Second, Bhagwat’s suggestion that much factually detailed speech is less valuable to public discourse and self-governance than pure opinion speech is questionable. Opinions may constitute the surface of public discourse, but they rest on a foundation of facts. Opinions are plentiful and cheap; good facts are hard to come by. As important as the question of how much we should protect factually detailed speech, then, may be the question of how we protect the generation of factually detailed speech. Finally, and on a related point, it is worth asking how we can encourage the production of facts, and how Bhagwat’s approach contributes to the maintenance of sound incentives to produce facts.
What these questions have in common is that they suggest the need to make room in the First Amendment for certain kinds of institutions and institutional practices, despite First Amendment law’s apparent hostility toward ontent discrimination. The courts may like to say that there is no such thing as a false idea, but universities—including public universities—could not survive without the ability to conclude that some thinkers are shoddy and their ideas lousy. In the long run, the facts generated by this disciplinary process can be far more important to public discourse than any single letter to the editor written by a local crank; if we don’t tend to their development and protection, democracy will become idiocracy. The best way to do so may be to recognize the role played in public discourse and the First Amendment by specialized institutions. Although First Amendment law does a good deal along these lines in practice, it has little to say about it in theory. Given his focus on the government as censor, neither does Bhagwat. Over the long haul, however, these questions may be both more important than the question what to do with a hit man’s manual, and more deeply connected to the problems that confront current First Amendment theory and doctrine.
That said, simply by putting the spotlight on the issue of factually detailed speech, Bhagwat has rendered a great service. Although his focus on the government’s censorial role may leave a good deal of terrain to be explored, he deals clearly and well with the issues within the scope of his paper. This is a leading contribution to the emerging literature dealing with the epistemological crisis of the First Amendment.
Nov 4, 2011 Steve Vladeckcourtslaw
As is abundantly clear from the Supreme Court’s June 2011 decision in Stern v. Marshall, the debate over the propriety of non-Article III federal adjudication tends to reduce to the classical divide between separation-of-powers formalists and functionalists. Thus, Chief Justice Roberts’s opinion for the 5-4 majority, in the course of holding that non-Article III bankruptcy courts could not constitutionally exercise jurisdiction over certain kinds of state-law counterclaims, repeatedly trumpeted the need zealously to protect Article III prerogatives from even the smallest encroachment. In contrast, Justice Breyer’s dissent harped on the real-world efficiency that such adjudication promoted, criticizing the majority for failing to appreciate how much its decision would likely slow down (and further complicate) bankruptcy litigation by requiring the intervention of district courts before final judgment in a far greater number of cases. As Breyer explained, “a constitutionally required game of jurisdictional ping-pong between courts would lead to inefficiency, increased cost, delay, and needless additional suffering among those faced with bankruptcy.”
For those, like Justice Breyer, who are taken by the functional case for non-Article III adjudication, Lawrence Baum’s new book, Specializing the Courts, couldn’t come at a better time. Indeed, although Baum’s monograph consciously sidesteps the debate over the constitutionality of non-Article III adjudication, there are obvious—if not compelling—parallels between his comprehensive treatment of the causes and consequences (and pros and cons) of judicial specialization and the functional case for at least most non-Article III federal courts.
As Professor Baum explains, it is inapt to distinguish between “generalist” and “specialist” courts. Instead, Baum suggests that there are two axes of specialization: “Judge concentration” and “case concentration.” (P. 7.) The former occurs when individual judges focus all of their work on a specific set of cases with limited substantive range; the latter occurs when cases in a particular field are assigned to a limited number of judges. So, for example, bankruptcy courts have high judge concentration, but low case concentration, since bankruptcy judges only hear bankruptcy cases, and yet the substantive range of legal questions they confront therein is remarkably broad. On the flip side, the Foreign Intelligence Surveillance Court (FISC) has low judge concentration but high case concentration, since its judges only devote a small chunk of their time to hearing FISA applications, but every FISA application must go before the FISC.
The utility of breaking out the different forms of judicial specialization in this manner comes in Baum’s comprehensive assessment of the causes and consequences of judicial specialization, which embraces a far wider class of cases than we might otherwise have thought existed. As he suggests, different motivations explain why policymakers might opt for higher judge concentration as compared to higher case concentration, and vice-versa. The bulk of his monograph is devoted to a study of the different causes and consequences of specialization in four major fields: foreign policy and internal security; criminal cases; government-involved economic litigation; and private economic litigation. Separate from the normative conclusions Baum draws from these studies, merely putting all these examples together into one condensed volume is an immensely useful contribution to existing literature.
But the real gem of Baum’s volume is chapter seven, when he turns to the lessons learned from the examples that the heart of the book surveyed. For example, with regard to the causes of specialization, Baum concludes that the motive that has had the greatest impact on the creation of specialized courts is “an interest in shaping the substance of judicial policy.” (P. 207.) Yet “[o]fficials in the three branches do not regularly consider whether their goals would be advanced by increasing or decreasing the level of specialization in each field of policy.” (P. 210.) Moreover, Baum suggests that “[d]iffusion has played a major part in the growth of judicial specialization,” such that the existence of some specialization has often been one of the principle justifications for additional specialization. This all leads to perhaps the most significant—if unsurprising—conclusion concerning the causes of specialization, i.e., that “judicial specialization has been a byproduct of other goals rather than an end in itself.” (P. 213.)
As for the consequences, Baum argues that “the effect of judicial specialization . . . [is] contingent both on the form that specialization takes and on other attributes of specialized courts and the situations in which they operate.” (P. 218.) Thus, Baum identifies three conditions that “foster the impact of judicial specialization on the substance of policy” (P. 221.): the selection of judges “whose own attitudes give them a commitment to a particular policy orientation”; “the existence of strong incentives for judges to lean in favor of one side in a field rather than its competitor,” which are more prevalent where there has been judicial specialization; and the “bundling of specialization with other provisions that favor the desired policies,” that is, where the creation of the judicial specialization comes part-and-parcel with new substantive policies that appear designed to effectuate a particular outcome. (P. 225.) When various combinations of these three conditions are present, Baum concludes, judicial specialization, whether for better or worse, is more likely to achieve its goals.
Professor Baum is hardly the first to tackle the subject of judicial specialization. But beyond its accessibility and readability, Baum’s volume makes a significant contribution to the literature in at least two distinct respects. First, “no study has considered the sources and growth of specialization as general phenomena.” (P. 27.) Instead, most prior work has focused on particular examples of judicial specialization in the federal and state levels, ranging from studies of the work of the U.S. Court of Appeals for the Federal Circuit and the Tax Court to normative or empirical analyses of “problem-solving” state courts, such as drug courts, homeless courts, and so on. Baum’s monograph is unique as a systematic attempt to gauge comprehensively both the causes and consequences of judicial specialization. As a result, his analysis is not specific to any particular example or even to specialization at the federal vs. state levels.
Second, Baum’s volume is significant to the extent it allows us to aggregate the causes and consequences of judicial specialization. Although there may be separate functional justifications for different kinds of specialized judges and/or courts, Baum’s volume should empower those who would seek categorically to argue for or against the merits of judicial specialization to cover the subject with one brush.
The harder question, which Baum himself assiduously avoids, is how the merits of judicial specialization dovetail with the legal constraints on such adjudication. But given the well-documented difficulties of applying formalist methodology to the question of non-Article III adjudication, Baum’s volume may have a lot to say about the pros and cons of the functional case for non-Article III courts in general, and the bankruptcy courts in particular. In that vein, consider Justice Breyer’s dissent in Stern, which argued that one of the critical factors to consider in deciding when non-Article III adjudication would be appropriate is “the nature and importance of the legislative purpose served by the grant of adjudicatory authority to a tribunal with judges who lack Article III’s tenure and compensation protections.” Allowing bankruptcy courts to adjudicate “core” state-law counterclaims, Breyer wrote, “plays a critical role in Congress’ constitutionally based effort to create an efficient, effective federal bankruptcy system.”
But Breyer’s dissent fails to articulate a key point on which Baum’s volume harps: the efficiency of allowing bankruptcy courts to resolve “core” state-law counterclaims only follows from the efficiency of allowing bankruptcy courts to resolve core federal bankruptcy claims in the first instance. For those who believe that functional considerations should enter into play, Baum’s book should remind us that the real questions to ask in these cases are (1) what the legislature’s goal was in creating the judicial specialization at issue; (2) whether the relevant expansion of adjudicatory power is necessary to vindicate that goal; and (3) whether judicial specialization is ultimately preferable to allowing similar disputes to be resolved by generalists. If those are the relevant inquiries, then Justice Breyer’s analysis seems at least somewhat incomplete.
More generally, Baum’s book may speak to those who have, quite legitimately, critiqued current jurisprudence for failing to articulate coherent principles. Justice Scalia’s Stern concurrence, for example, complained that “something is seriously amiss with our jurisprudence in this area,” noting that “[t]he sheer surfeit of factors that the Court was required to consider . . . seem to have entered our jurisprudence almost randomly.”
Baum’s splendidly concise volume should be useful to all students of the courts, whether political scientists or lawyers, judges or academics. But those who seek a more coherent theory on which to predicate the values (and, perhaps, constitutionality) of non-Article III federal courts may find in particular that Baum’s book could lead the way.
Nov 2, 2011 Adam Rosenzweigtax
David Hasen,
Tax Neutrality and Tax Amenities, __
Fla. Tax Rev. __ (forthcoming 2011), available at
SSRN.
As with many areas of law, a canon of sorts has grown up around the field of international taxation. Pursuant to this canon, income disappearing “through the cracks” of the international taxing regime, and the resulting loss of tax revenue, has been singled out as one of the single largest problem plaguing the international fiscal order. This has led to concerted efforts to recapture this disappearing tax base through multiple types of enforcement or punishment, most famously through a blacklist campaign led by the OECD against so-called uncooperative tax havens.
What may surprise some, however, is that this canon appears to rest primarily on a single, somewhat dated, premise arising from the public finance literature: that of tax “neutrality” – or the idea that the tax law should not change where and how capital invests around the world as compared to what would occur absent taxes. Neutrality, it was argued, was the sine qua non of the international tax regime in that it would prevent “distortions” to international capital flows, thus maximizing worldwide efficiency; increased worldwide efficiency would mean increased worldwide growth, making all countries better off – the supposed common goal of all. Given that neutrality would benefit the entire worldwide tax regime, the argument went, it was appropriate or even necessary to punish countries which did not adopt “neutral” policies in their tax laws as well. Even critics of this approach seemed to base their analysis in neutrality terms, effectively ceding the battleground before a shot was fired.
Notwithstanding its canonical status and intuitive appeal, a small but growing chorus has begun to question the dominance of the “neutrality” paradigm as the driving force behind international tax policy. David Hasen adds a powerful and persuasive voice to this chorus in his forthcoming article Tax Neutrality and Tax Amenities. In this article, Hasen takes on the idea that tax neutrality is desirable – or even feasible – in the context of cross-border capital flows among sovereign countries by taking seriously the concept of tax sovereignty, that is, the idea that each country raises revenue to provide for its own public goods. Once the impact of capital flows on tax revenue, and thus public goods, is taken into account, Hasen argues, there is no way to analyze the efficiency loss of capital flows out of one country without also taking into account, among other things, potential efficiency gains arising from increased tax revenue in the other.
Although an open economic system analysis such as this is not novel, what is new is Hasen’s attempt to explicitly incorporate the efficiency benefits of public goods – which he refers to as “tax amenities” – into the international tax policy analysis. Doing so fundamentally challenges what we think of as neutral or whether neutrality even has any purchase in this context. From the introduction of the paper:
[I]t is not clear that the concepts of tax neutrality and tax distortion in the international setting are meaningful. If it is impossible to articulate a neutral baseline, it would seem impossible to justify normative claims about the value of minimizing actual departures, that is, “distortions,” from whatever is taken as the baseline. (P. 4.)
This key insight represents a direct assault on the conceptual underpinnings of neutrality as the intellectual basis of the international tax regime itself because including tax amenities into the neutrality analysis in this manner creates a fundamental and potentially fatal endogeneity problem in defining a normative tax baseline: (1) any claim to sovereignty by a state necessitates collection of revenue, to pay for the tax amenities necessary to exist as a sovereign state, such as roads, bridges, and electricity, (2) these tax amenities in turn increase the returns to capital in that country, thereby changing the worldwide efficient allocation of capital. Put differently, without a fixed baseline, there can be no way to tell what a “distortion” from the baseline is. From the paper:
Because levels of funding for tax amenities affect the absolute rate of return to factors of production in each jurisdiction, tax-induced adjustments to tax revenues, no less than changes in the relative supply of and demand for factors of production, will affect the productivity of those factors, and indeed in ways that diverge between the affected jurisdictions. (P. 20.)
From this perspective, the validity of prescriptive claims based solely on the rhetorical or normative strength of neutrality, from either a first best or second best standpoint, must be called into question. Instead, Hasen adopts an alternative approach, analyzing whether improvements to a given allocation of capital and tax amenities may be possible using an empirically identified starting point (in this case, 1980 United States GDP). What Hasen demonstrates rather convincingly is that, in an open system, improvements could arise either from neutrality or redistribution, or both, depending on (among other things) the marginal return to capital and the marginal return to public goods in different countries.
In addition to this extremely important and insightful point, Hasen undertakes a larger, more ambitious, goal in this paper, namely, to craft a comprehensive alternative model through which to analyze international tax law. The paper does not necessarily address all of the questions that logically follow, however. For example, if gains from tax amenities are possible, why can’t countries borrow against them to provide the tax amenities, especially if capital is so mobile? Further, several of the ultimate prescriptions discussed in the paper appear to differ only slightly from many of the prescriptions arising under the neutrality regime, making the ultimate payoff somewhat less grand than the premise. Notwithstanding these points, however, the paper is an extremely thoughtful and valuable contribution to this emerging strand of the literature.
Oct 31, 2011 Anne Marie Lofasoworklaw
For over a century, the default job-termination rule in the private sector of the United States has been at-will employment, under which an employer can discharge its employees for any reason, good or bad, or for no reason at all. Although the common law as well as state and federal statutory law has chipped away at this default rule, at-will remains the default standard in every U.S. state except Montana, which has adopted a just-cause discharge standard. These default rules—at-will and just cause—have framed the legal debate over what role the law should play in regulating individual job security.
Professor Arnow-Richman astutely observes that this debate has been framed too narrowly. She notes that a “just cause rule provides only a weak cause of action to … those workers who can prove in court that they were fired for purely arbitrary reasons.” After all, job insecurity has been on the rise. The unemployment rate for the past three or four years has risen dramatically from 4.4 percent in December 2006 to a high of 10.1 percent in October 2009, with a current unemployment rate hovering at 9.1 percent. Given the “profound” changes in the employment paradigm over the past half-century, which includes a rise in short-term and contingent labor, and given that today’s workers are most likely to lose their job for economic reasons—a good reason—then perhaps we need “a fundamental shift in the goals and focus of employment termination law.”
I will put it another way. The law has been good at eliminating some of the bad reasons for firing workers. The National Labor Relations Act prohibits employers from discharging workers because of their union or other protected concerted activity. Title VII prohibits employers from discriminatorily discharging workers because of race, color, national origin, religion, and gender. Other state or federal civil rights statutes prohibit employers from discharging workers because of age, disability, and sexual orientation, to name a few. Some states prohibit employers from discharging workers for reasons that violate a clearly defined public policy. Others forbid employers for firing workers in bad faith. But no state has ever prohibited an employer from discharging a worker for economic reasons, even though such termination, from the workers’ point of view, can be just as devastating as a job termination for any other reason. In each case, job loss results in lost income, lost self-esteem, and lost friendships, to name a few losses. And job loss resulting from a plant closing or mass economic dismissal can, in some ways, have even greater social costs than job loss resulting from discrimination. After all, a plant closing could ruin a town that depends on that plant for its livelihood—think Youngstown and the steel mill closures of the late 1970s. Mass economic dismissals can have rippling effects in communities—rises in crime rates, rises in divorce rates, and rises in poverty levels, just to name a few.
Professor Arnow-Richman’s solution is a universal ‘pay-or-play’ system of employment termination:
Under such a system, employers would be obligated to provide workers advance notice of termination or, at the employer’s election, continued pay and benefits for the duration of the notice period. This system would allow employees a degree of income continuity, enabling them to search for new employment or, in the event the employer elects severance pay, to invest in training. (P. 37.)
Such a system focuses on a different set of goals, implied promises, and obligations from just cause. Whereas just cause focuses on the goal of job retention, pay-or-play focuses on job transition. Whereas just cause assumes a workplace paradigm that promises long-term employment, pay-or-play assumes a more realistic workplace paradigm that includes long-term employability. And whereas just cause imposes on the employer the obligation of justifying its discharges, pay-or-play imposes on the employer the obligation of supporting re-employment of its workers, either through just notice or severance pay.
This is a brilliant solution to the problem of unemployment. Professor Arnow-Richman has opened the door through which all of us must now peer. But the solution still does not go far or deep enough. Notice and its substantive analogue, severance pay, are but minor burdens to place on employers. As government studies on the WARN Act have explained, advance notice of a plant closure or mass economic dismissal has very little if any negative impact on businesses but does result in a salutary effects on those making the transition from paid job to job loss. And who, in these circumstances after all, is in a better position than the employer to give such notice?
While Professor Arnow-Richman’s article shifts the debate, much more reform is needed to the problem of job insecurity. We should be talking about many other procedural solutions—advance notice, information, consultation, negotiation, and even co-determination. Why not obligate employers to give workers financial information? Wouldn’t this help workers to understand that they may be fired or that they may be asked to take a pay cut? Perhaps workers would choose the pay cut over the mass termination. This is where consultation and bargaining comes in. Isn’t it more efficient to bargain over the problem than to allow employers to make unilateral decisions without input from those who have the most at stake—the workers who may lose their jobs?
More controversially, we must not fear the substantive solutions to these problems either. Currently, there is no claim-right to severance pay; there is no right to a job; and there is no right to a particular job. We—meaning those of us who have worked for long enough—have only a limited “right” to unemployment benefit of limited duration. If we truly care about job transition, then the logical extension of Professor Arnow-Richman’s argument is a right to “a” job, though not necessarily a right to “the” job that we want. Until we shed the fear that talk of rights to jobs necessarily entails an end to, rather than a bolstering of, capitalism, we will never have the debate we need to live in the kind of country that allows all of us become part authors of work lives—autonomous, dignified workers.
Oct 28, 2011 Kimberly Ferzancrim
The implications of determinism have long bedeviled our responsibility practices. If one starts with the premise that human beings are not “uncaused causers” but rather are comprised of beliefs, desires, values, and reasons that are themselves unchosen, then one begins to wonder how we can be responsible for our actions. Although compatibilists believe that responsibility is possible even if determinism is true, hard determinists believe that we are determined and that blame and punishment cannot be reconciled with that fact. Because individuals do not choose who and what they are, hard determinists maintain our current punishment practices are completely unjustified as criminals do not – indeed, cannot – deserve to be punished.
Enter Saul Smilanksy. In his marvelously playful and thoroughly convincing article, Smilansky questions exactly what will happen in a hard deterministic world. The answer may surprise you – punishment will have to give way to “funishment.”
Smilansky challenges the reader to take seriously hard determinism’s claims on us as a society and what we would actually have to do if hard determinism were true. The problem begins with criminals. Even if free will is an illusion, criminals are real, and there will still be criminals. Society will have to do something with them, even if it is true that criminals do not deserve punishment. So, because there will be fewer criminals than law-abiding citizens, the criminals will have to be segregated. (Smilanksy can be read as presupposing recidivism, though one could also argue that society would abandon criminal law per se and replace it with a purely preventive system of incapacitation. The latter possibility would still place the same demands on society and support Smilanksy’s reductio.) Because the criminals do not deserve hard treatment, however, the conditions will need to be favorable. Moreover, because society is removing these individuals from society for society’s benefit, the criminals will need to be compensated (just as society can’t take your property for its benefit, etc.). And so, where and how criminals live will have to be pretty nice, pretty nice indeed. Specifically, Smilanksy argues that although “fun-zones” would need to be as secure as prisons, they would otherwise need “to resemble five-star hotels, where the residents are given every opportunity to enjoy life.” (355). Smilanksy argues that “no effort and no expense should be spared” and claims that “opulent entertainment” would be required. (355-56).
One can imagine how this story unravels. The nicer the fun-zones become, the more attractive they become. The more attractive they become, the more people find crime will pay (one way or the other). And soon, you have law abiding citizens who hate criminals all the more not only because crime is rampant and their safety undermined but also because criminals have a strong claim to tax dollars for their fun zones. Smilanksy concludes, “Hard determinism is, in practice, self-defeating.” (361).
This is a tremendous piece of legal scholarship. As I read this piece, part of me was transported as I was when I read Ursula K. LeGuin’s “The Ones Who Walk Away from Omelas.” This article is not, however, a short story where the message is clear from the fiction. It is a rigorously argued piece of philosophical work. At each and every stage at which the reader might balk – be it why there is such a demanding claim on citizens to turn prisons into fun zones, to why crime would be attractive, to the merits of a practical reductio, Smilansky painstakingly makes the case for each step in his argument. It is a wonderfully accessible piece for the novice and a must-read for expert. Criminal law theorists simply have to read it. And, among us compatibilists, we will blame you if you don’t.
Oct 26, 2011 Alyssa DiRussotrustest
Should charitable trusts be perpetual and should such philanthropy benefit from generous tax subsidies? Professor Ray D. Madoff of Boston College Law School addresses what are perhaps the most fundamental questions of charitable trust law in a surprisingly accessible and engaging article. The article reads less like legal scholarship and more like a good story, perhaps owing to the fact that it relies upon her book, Immortality and the Law (Yale Univ. Press 2010).
Professor Madoff opens with a character sketch of Leona Helmsly, the “queen of mean,” who harnessed the tax benefits supporting philanthropy to fund an eight-billion-dollar trust for the benefit of dogs (in addition to funding a comfortable twelve-million-dollar fund for her own aggressive terrier). She explains the role of tax expenditures in supporting such donations and invites her reader to question whether the benefits from such a system are worth its costs.
The article explains not only the current rules benefiting perpetual charitable trusts, but the evolution of those rules and the historical limitations and restrictions that were the norm until fairly recently. Professor Madoff illuminates how some degree of mistrust and desire to control or limit philanthropic trusts shadowed perpetual charitable trusts for quite some time, making the substantial liberality they enjoy today no longer something one should take for granted.
After laying this foundation (no pun intended), Professor Madoff takes on what are arguably the two biggest policy questions in the law of philanthropy: first, should charity benefit from tax subsidies, and second, should charities be perpetual? Many other scholars, of course, have debated and will debate these central queries in substantial detail. Much of this scholarship is heady analysis with a level of sophistication and complexity that it invites discussion from experts well-versed in the intricacies of the third sector and tax policy. What Professor Madoff does instead is empower the novice to join the conversation.
The article explains, concisely and clearly, how the income tax charitable deduction and the estate tax charitable deduction function as tax expenditures. Using specific examples with numbers and simple math, she shows how the federal tax system works largely like a matching grant program for wealthy taxpayers. Professor Madoff next highlights how the preferences of wealthy Americans, particularly their fondness for private foundations and educational institutions, can skew governmental funding of charity from what may be mainstream priorities.
Having challenged the tax benefits charities enjoy, Professor Madoff takes on the other 800-pound gorilla of philanthropy: perpetuity. Again using simple math and straightforward examples, Professor Madoff demonstrates how perpetual private foundations doling out minimal contributions throughout time (while bleeding administrative costs) fail to address societal needs the way immediate and direct contributions would. She prompts the reader to consider how the law might be improved to provide better support for the true goals of philanthropy, rather than the hubris or whims of individual donors.
What is novel about Professor Madoff’s article is not its content, but its delivery. Its value lies in its potential to engage law students or even novices to philanthropy with the key questions of the genre. Law students in particular seem to view charitable trusts with a bit of a rosy glow, and this tasty morsel of an article may provoke them to challenge those assumptions. (I may assign it myself as required or recommended reading in my Wills class in connection with our unit on charitable trusts.) The article also has potential to inspire undergraduates or those in non-legal disciplines to engage with the major policy questions of philanthropy law. Even for a reader without significant grounding in charitable trust law, this is an article one can access, digest, and even like lots.
Oct 24, 2011 James E. Pfandercourtslaw
Scott Dodson,
Hybridizing Jurisdiction, 99
Calif. L. Rev. __ (forthcoming 2011), available on
SSRN; Scott Dodson,
Mandatory Rules, 61
Stan. L. Rev. 1 (2008).
I recall quite clearly when, as a rookie law professor some years back, it occurred to me to wonder why we accorded so much weight to questions of jurisdiction. What was so special about making sure the amount in controversy really exceeded the statutory threshold or that the citizens, apparently from different states, were really so? Why regard jurisdiction as an especially favored defense; one that the courts must raise on their own motion and that the parties may mount at any time, even for the first time on appeal or when they have consented to the court’s jurisdiction or have invoked it themselves? What about the well-known waste of resources associated with jurisdictional failure? In my search for better understanding, I approached a senior colleague who explained that some things were just too well settled to question. After kicking the issue around for a while, I moved on to another project, concluding that jurisdiction was (as Mark Twain reportedly observed) too various for me.
Happily, at least for those who (like me) enjoy a good jurisdictional puzzle, others have decided to tackle the varieties of jurisdictional experience. In fact, over the past ten years or so, a group of mostly junior scholars have done much to broaden our understanding of the nature of jurisdiction. Instead of thinking of jurisdiction as a monolith, as I did, these scholars have taught us to think of jurisdiction more as a bundle of sticks (to borrow that construct from our property colleagues). Jurisdiction may have a number of different legal characteristics and not all of them need to apply to all issues that touch the power or ability of a court to adjudicate a claim. Merits and jurisdiction, though placed in separate boxes by jurisdiction casebooks, often blend in practice.
Among the most productive assessments of jurisdictionality have come from Scott Dodson. In his Stanford Law Review article Mandatory Rules, Dodson demonstrated that many rules of law outside the jurisdictional box share features (such as non-waivability) in common with jurisdictional rules. He thus came to ask when should a rule simply be regarded as mandatory and when should it have the other characteristics that we associate with jurisdictional law, such as the requirement that courts raise the issue on their own motion. Applying this set of ideas to the familiar problem of state sovereign immunity, Dodson provides a useful way to organize our thinking about some of the arbitrary stops and starts that have come to characterize immunity law. While the Court has often treated all invocation of state sovereign immunity as jurisdictional, Dodson shows that the doctrine might be better regarded as a mandatory rule that the states may waive or forfeit either formally or through conduct in litigation.
Dodson has continued to interrogate the construct of jurisdiction in his forthcoming article in California Law Review, Hybridizing Jurisdiction. There, he returns to his argument against the simple dichotomous view of jurisdictional and non-jurisdictional rules, urging instead a hybrid form of doctrine that would allow courts and parties to regulate jurisdiction (and thereby tame it to some degree). Dodson’s approach provides a new set of conceptual possibilities (and new names to boot) with which lawyers and courts can begin to break down and better understand jurisdictional problems. Dodson gives us incorporated hybridization, linked hybridization, and indirect hybridization, the better to understand the way non-jurisdictional elements may usefully creep into jurisdictional doctrine. Whether his nomenclature will catch on remains to be seen, but he has a knack for framing the issues in a way that allows us to conduct a more nuanced analysis. For example, Dodson shows that jurisdiction often depends on the way courts find jurisdictional facts, but the adversary process and the complications of discovery often shape the factual record and influence the jurisdictional determination (thereby making it less purely jurisdictional). One appealing feature of the work is its generality: Dodson’s approach provides insights into such wide-ranging jurisdictional problems as the timing rules for appeals and the prudential aspects of mootness doctrine.
Dodson does not stand alone in his engagement with the elements of jurisdictionality. Much of the interest in the topic, in fact, has grown out the Court’s own attempt to offer a better account of the difference between jurisdictional rules and others. One oft-criticized case from 2007, Bowles v. Russell, woodenly insisted on treating time limits as a jurisdictional barrier to appellate review, despite the strong factual case for an equitable extension of the deadline that the lower courts had accepted. Other judicial decisions have attracted jurisdictional inquiries. In an earlier piece in the genre, Laura Fitzgerald posed the question, Is Jurisdiction Jurisdictional?, in connection with an assessment of the jurisdictional ideas reflected in the Rehnquist Court’s embrace of state sovereign immunity. Similarly, Evan Lee was moved to examine jurisdiction and the merits in reacting to the Supreme Court decision eliminating so-called hypothetical jurisdiction in Steel Co. v. Citizens for a Better Environment.
The work of these scholars suggests something of a revival of scholarly interest in the field of federal jurisdictional law, born of current legal controversies. I have sometimes speculated that the prison camp at Guantanamo Bay has done more to spark an interest in jurisdiction and the reach of habeas corpus than all of the brilliant outpourings of Hart and Wechsler. Inquiries into the nature of jurisdiction suggest that somewhat more mundane decisions can trigger scholarly engagement as well. Whatever its origins, the revival offers a lesson in the importance of youthful energy to vital scholarship. Almost by definition, new scholars must question and re-think the most basic assumptions of their field. In the case of jurisdictionality, the revisionist project has been a most fruitful one indeed. Dodson has been a careful and constructive reviser.
Oct 21, 2011 Bill Brattoncorp
The GW Center for Law, Economics & Finance, under the leadership of the redoubtable Lisa Fairfax, last spring held its first Junior Faculty Business and Financial Law Workshop. I was one of the old fogies called in to do commentary. It was a successful event. The papers were strong and I was glad of the opportunity to acquaint myself with their authors.
One of the papers has loomed particularly large in the memory—From Graham-Leach-Bliley to Dodd-Frank: The Unfulfilled Promise of Section 23A of the Federal Reserve Act, by Professor Saule T. Omarova of North Carolina Law.
You can see from the title that to take up this paper is to journey into the darkest jungles of banking regulation. Prior to 2008 this was a subject matter of which I was blissfully ignorant. Since then it’s been a forced march through the law and economics of systemic risk and safety and soundness. (I now regularly check into the websites of the Federal Reserve and the Bank for International Settlements.) But, still not having been asked to teach the banking course, I remain hazy on many regulatory nuts and bolts.
That’s where this paper comes in. Professor Omarova takes a sustained look at section 23A of the Federal Reserve Act, a piece of Depression-era legislation that regulates financial relationships between banks and affiliates within holding company structures. The idea is to make sure that the bank, with its deposit insurance subsidy, does not in turn subsidize risky business undertaken elsewhere in the holding company. Section 23A, as originally enacted, worked in tandem with the Glass-Steagall prohibition on investment banking by banks. The paper shows how the section’s operation changed materially when Graham-Leach-Bliley dismantled the wall of separation, and changed again in the wake of the financial crisis.
The operator is the Federal Reserve and the modus operandi is exemption from the section’s operation at the application of a regulated bank. Professor Omarova takes us through decades of Federal Reserve exemption orders. It is amazing stuff. For example, we see Citibank go the well repeatedly. It acquired little nonbanks that churned out subprime mortgages and then, claiming administrative cost savings, subsumed them into the bank (and its subsidy) with the Fed’s blessing. Starting in 2007, as the Fed tore up its own rulebook to spread liquidity, it granted section 23A exemptions of enormous magnitude. Finally, with Dodd-Frank the Congress amended the section, extending its reach.
It is all very complicated, but Professor Omarova makes it intelligible. The journey proves well worth the effort. The author is to be congratulated for digging up the details on this crucial zone of administrative practice and holding the results out for public inspection. The faults are laid bare for all to see. But Professor Omarova is much too astute to cast easy stones. We are told to take the occasion to rethink the whole, asking ourselves what we want out of banking regulation. Unfortunately, as we work our way to that sensible conclusion, we see that the occasion was not taken in the run up to Dodd-Frank.
