How norms die: Torture and assassination in American security policy

That’s the title of a paper by Christopher Kutz in Ethics & International Affairs. Kutz argues that that there was a “norm” against torture and assassination in American policy until 9/11. Although these norms were violated from time to time, this was done so surreptitiously, and generally speaking policymakers believed that torture and assassination were off the table as policy options rather than choices that could be subject to moral balancing. (I think he is more likely right about torture than assassination so I will confine myself to torture henceforth.)

Kutz believes that the anti-torture norm is (probably) dead; the best evidence of this is that public opinion polls suggest that most Americans think that torture is now acceptable in limited cases. There is no public pressure to punish the Bush administration torturers. Kutz makes the interesting point that in government the greatest opposition to torture came from the military and FBI where an honor-based ethic prevails. Civilian policymakers overruled or worked around these “professional cadres,” based on a utilitarian approach in a panic atmosphere where the consequences of failing to capture terrorists were thought to be catastrophic.

As I interpret Kutz, the anti-torture norm could prevail as long as there was no major threat to U.S. security. Once this threat materialized, all bets were off. But on this view, the anti-torture norm was not a very strong norm. Torture was just not an issue, it was never thought to be needed, and so anyone who proposed it as a policy would have been regarded as a sadist, and so no one did.

I think Kutz misses another dimension. In the nineteenth century, the Great Powers made a distinction between civilized powers (themselves) and “savages” (the rest of the world). The humanitarian norms that they observed applied only to limited wars among themselves; they were suspended when dealing with tribal groups, which they sought either to wipe our or to subordinate. In the twentieth century, the norms collapsed even among the Great Powers when wars became unlimited.

Thus, as I have argued in various places, what keeps norms in place is a strategy of reciprocity. Great powers fight limited wars with the expectation that peace will return; all sides gain if the war can be kept as a test of strength and a descent into barbarism is avoided. Governments abandon those norms in two cases: (1) when they see themselves as fighting to the death; and (2) when they confront opponents that don’t comply with them themselves. Al Qaeda was a toxic combination of both of these factors.

So another way to see the change in moral psychology that Katz describes is as a recognition that norms thought be universal–at a time (really, only the 1990s) when the United States considered itself fully secure–were in fact restricted to those the United States regarded as “civilized.” (“Terrorist” has become a quasi-synonym for “savage” as that word was used in the nineteenth century: a person who does not follow certain norms that restrict the use of violence.)

Kutz makes another interesting observation; I quote from the abstract:

While democracies surely do better than authoritarian regimes in adopting and internalizing certain kinds of constraints, in part because of a greater sensitivity to public mobilization around normative questions, that same sensitivity makes the long-term survival of these norms precarious. But in a democracy the values and arguments of those cadres [the military, etc.] are susceptible to being undermined by a combination of public panic and the invocation by policymakers of a public interest that can override the claims both of law and pragmatic restraint. Democracy, hence, can be at the same time both fertile and toxic: fertile as a source of humanitarian values and institutions, but toxic to the very institutions it cultivates.

I don’t think this is right. Authoritarian regimes routinely use torture against domestic political opponents; democracies hardly ever do. What the two regimes share is that they place little weight on the interests of people who live beyond their borders.

More on human rights clinics

Marco Simons writes a further response to my Chronicle article, in which I criticize university human rights programs and law school human rights clinics. One of my arguments was that the sponginess of human rights law allows it to be used by clinical professors to rationalize political activism. I did not say that all projects undertaken by human rights clinics are worthless, but I did express skepticism about many of them, which seemed not to teach students legal skills or advance any legitimate public goal.

Simons argues that I’m wrong about this:

And I also know that at least some of my projects led to benefits for clients. One of the cases I worked on was Doe v. Karadzic, which later led to a $4.5 billion jury verdict in favor of survivors of war crimes in Bosnia. Another major project was a Human Rights Watch report on corporal punishment in Kenyan schools, which was then rampant and highly abusive; two years later the Kenyan government banned the practice, and the ban was enshrined in the constitution in 2010. (Actually eliminating it remains a work in progress.)

Karadzic doesn’t have $4.5 billion or (as far as I know) any money. He’s languishing in jail in the Hague while awaiting the verdict in one of those endless trials that international courts specialize in (proceedings started in 2008). I doubt very much that Simons’ clients are going to recover a dime. Meanwhile, the Alien Tort Statute is on life support as judges gradually realize that these purely symbolic judgments are a huge waste of judicial resources.

I was curious about the Kenya example in light of Simons’ parenthetical and I found an article with the plaintive and revealing title, Why Are Kenyan Teachers Still Using Corporal Punishment Eight Years After a Ban on Corporal Punishment? The author surveyed Kenyan school teachers and here is the answer:

[The teachers] considered that the introduction of the ban on corporal punishment in schools had produced an increase in display of bad behaviour by pupils; for example, there was an increase in riots in schools leading to the closure of some schools. It seemed that once pupils knew corporal punishment had been banned they then started breaking school rules which they previously used to accept. The teachers were of the opinion that the use of corporal punishment was the most effective way of disciplining pupils and they argued that since corporal punishment inflicts pain, pupils avoided breaking school rules and displaying bad behaviour to avoid the punishment.

[As a result of the introduction of free primary school education, teachers] now had too many pupils in their classrooms which meant more children to attend to and more school books and papers to grade. In some schools, teachers who had been teaching a maximum of 40 pupils per classroom now had more than 100 pupils in each class. There was no more time to guide and counsel pupils let alone time for individual attention to any of the pupils. Teachers therefore saw corporal punishment as the only and most effective way of controlling the huge numbers of pupils in their classrooms.

The teachers also viewed corporal punishment as useful, especially in instances where a pupil was engaging in dangerous or negative behaviour that had to be stopped immediately for safety reasons.

The observation that parents had authorised teachers to use corporal punishment suggests parents were not informed about the negative effects of corporal punishment. Parents were encouraging teachers to break the law believing it was for their children’s own good.

Prosecution has been viewed as a last resort in instances where corporal punishment continues in schools despite prohibition (Committee on the Rights of the Child, 2006), but law enforcement can play a crucial role in protecting pupils from corporal punishment in schools. This, however, has not been the case in Kenya.

It’s hard to read this and not feel for the Kenyan teachers, who may be right or wrong but are certainly in a better position to understand how to maintain discipline in a 100-child classroom than a bunch of westerner busybodies with their psychological studies. I suspect that few Kenyan schools have armed guards and metal detectors, like in the U.S, or that Kenya has the resources to house troubled and violent children in special facilities as in the West.

Simons helped into existence a law that is not enforced, and that no one pays attention to, most likely because if people obeyed it the result would be riots and general chaos in Kenyan schools. Another victory for the human rights movement.

Why Obama won’t prosecute those responsible for torture

I explain the legal and normative problems with prosecution in Slate.

My colleague Richard McAdams pointed out to me another law that would frustrate prosecution, one that I missed and has not received much attention in the press. The Detainee Treatment Act of 2005 says:

In any … criminal prosecution against an … agent of the United States Government … arising out of the … agent’s engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, … and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such … agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.

42 U.S.C.A. § 2000dd-1.

Mistake of law provides a defense for all CIA agents acting within the parameters of OLC’s legal advice.

ACLU’s Romero on pardoning Bush and others

Anthony Romero, executive director of the ACLU, argues in The New York Times that Obama should pardon Bush and all the others involved in the torture program. Not because he thinks they acted rightly. Quite the contrary: pardons

may be the only way to ensure that the American government never tortures again. Pardons would make clear that crimes were committed; that the individuals who authorized and committed torture were indeed criminals; and that future architects and perpetrators of torture should beware.

The logic is faulty; interrogators who use torture in the future will expect to be pardoned just like their predecessors. Whether you call non-prosecution a “pardon” or not, it amounts to the same thing. But what is most odd is that a civil libertarian believes that the president should tar people as criminals without giving them the benefit of a trial.

Romero, like the supporters of torture, do what people always do when Congress or the courts can’t, or won’t, do what they want. They turn to the president and demand executive action.


The Votes of Other Judges, Part II

The following post was co-written with Adrian Vermeule.

In our previous post, we set out some puzzles about how judges should take into account the votes of other judges. Here, we sketch out some tentative answers.

Imagine that each Justice reads the statute and the briefs, and reaches a preliminary conclusion about the meaning of the statue. The Justice also has a level of confidence (high, low, middling) about her own interpretation. For example, a Justice might believe that the meaning is X with a probability of 0.99, 0.9, 0.6, 0.5, or 0.1 (which is the same as saying that she believes the meaning is Y with a probability of 0.01, 0.1, 0.4, 0.5, or 0.9). A Justice with a high confidence level believes that the statute is clear; a Justice with a confidence level in the neighborhood of 0.5 believes that the statute is ambiguous.

A Justice should update her prior in light of the information that she receives from the other Justices. If voting is sequential, then each Justice should update based on the Justices who voted before her. If voting is simultaneous, then such updating is not possible immediately—but let us suppose that Justices can change their votes in a second round of voting. Each Justice should take into account not only the number of votes for each meaning, but the confidence level of the Justices who cast those votes. A Justice who votes for X with confidence level 0.51 is not as informative as a Justice who votes for X with confidence level 0.9. It may, however, be difficult to gauge confidence level—it is certainly more difficult to gauge confidence level than the vote itself. We can imagine that Justices may try to reveal their confidence level when they cast their vote (“I’m really not sure, but for the moment X seems more plausible to me”). This may not always be the case, but let’s assume it is. Now let’s go to the questions from last post.

(1) If the initial vote reveals a 5-4 split in favor of meaning X, and all justices (sincerely) claim to be confident, then they should all certainly update their views. How they update their views is complicated. If you are confident enough, then you should presumptively not update your views; but if enough people are arrayed against you, and they are confident as well, then you should. But in this example, it certainly seems that each Justice should decide that the statute is ambiguous (by which we mean, she believes that the meaning is X with probability only slightly higher than 0.5).

(2) The second case involves a 5-4 split, where the 5 believes that the statute clearly means X, and the 4 say that the statute is ambiguous. Let’s suppose that this means that the 5 attach probability 0.9 that the statute means X, and the 4 attach probability 0.5 that the statute means X. Given these precise numbers, the 4 should update their views and agree with the 5 (while the 5 should update their views only slightly); but different numbers would yield different results.

(3) This case—where 4 Justices believe the statute clearly means X, 4 Justices believe the statutes clearly means Y, and 1 Justice believes that the statute is ambiguous—raises a question about the difference between the “collective” or aggregate meaning of an opinion, on one hand, and the views of the individual Justices on the other. For an even clearer example, suppose that all Justices believe that the statute is ambiguous but incline toward X (say, confidence level 0.55). If they then observe each other’s vote and confidence level, and also believe that each Justice’s view is independently arrived at, then they should update their belief and conclude that the probability that the correct meaning is X is very high (almost certain), in virtue of the Jury Theorem. Should the Justices unanimously vote that the statute is ambiguous or that the statute is clear? We need to work this through.

We have assumed away some types of strategic behavior. A Justice might deliberately overstate her confidence level in order to influence the votes of other Justices. In response, Justices may rationally place less value on such “cheap talk” than otherwise, depending on how honest they think the other Justices are, which is something that they may learn over time through interactions with each other. Of course, strategic behavior by Justices is a more general problem, hardly unique to this setting. Consider the certiorari process, or the possibilities for strategic behavior opened up by the Doctrinal Paradox (the choice between aggregating judicial votes over discrete issues or aggregating votes over bottom-line judgments).

Another complication is that, even if entirely sincere, a Justice may conceal information by allowing herself to be influenced by other Justices. In the famous herd-voting models, if, say, the first three or four Justices happen to vote the same, then subsequent Justices will imitate them, believing that the collective view is more information than their own. A similar problem can arise with simultaneous voting. However, this is not a problem if Justices can and do credibly reveal their confidence level as well as the outcome they believe is correct.

There is much more work to be done, on all these questions. But our tentative judgment is that the potential costs of such a system, while real, do not necessarily and invariably justify throwing away relevant information — the information contained in the votes of other judges.

The Votes of Other Judges, Part 1

The following post was co-written with Adrian Vermeule.

An earlier entry on this blog discusses the puzzle of King v. Burwell: given that six out of the nine judges to vote on the merits have ruled in favor of the agency, isn’t it difficult to say that the agency’s view is clearly unreasonable? The issue generalizes. Under what conditions should judges take into account the information contained in the votes of other judges? We are currently working on a paper on the subject, and lay out some very preliminary and tentative thoughts here.

The issue generalizes well beyond judges, of course. It arises whenever a multimember decisionmaking body, or a hierarchy of such bodies, has to decide whether a legal standard is clearly satisfied. Disagreement among the voters is itself informative about whether the standard is met.  Thus a famous puzzle about juries, stemming from James Fitzjames Stephen, is whether majority rule can coherently be combined with the reasonable-doubt rule. The argument that it cannot goes like this: Imagine that the jury votes 7-5 to convict the defendant. Doesn’t the close vote itself suggest the existence of a reasonable doubt? Related literature in positive political theory involves the “swing voter’s curse” and strategic voting on juries under unanimity rule. But we will confine ourselves to the judicial setting for now.

The relationship between Supreme Court and the lower federal courts is fertile terrain for these issues. If N courts of appeal say that a statute clearly means X, and another N courts of appeal say that a statute clearly means Y, doesn’t that tend to show, all else equal, that the statute is ambiguous? Or in cases about qualified immunity, if some appellate courts say that a certain rule counts as “clearly established law,” and some say it doesn’t, does that mean it doesn’t? What if the second group says not merely that the rule isn’t clearly established, but that the opposite rule is clearly established?

But let us focus on the cleanest setting — voting within a multimember group of Justices at the Supreme Court. And we will use Chevron examples, in light of King v. Burwell.

Here are some cases of interest:

(1) At the conference after oral argument, five Justices say that the ordinary meaning of the statute is clearly X, four say that it is clearly Y. Shouldn’t all nine update their views and learn from the aggregate information contained in the votes of colleagues? Shouldn’t all entertain the possibility that the vote reveals the statute to be ambiguous?

(2) A harder case: At the conference after oral argument, five Justices say that the statute clearly means X, four say that it is ambiguous as between X and Y. Should the five obtain some information from the votes of the four, albeit not as much as in case (1)? After all, the four do not agree that the statute clearly means X. And how about vice-versa — should the four update their own views, in light of the views of the five?

(3) Four justices say that the statute clearly means X, four that it clearly means Y. The swing justice thinks the statute is ambiguous, so the agency wins. Two puzzles:

(A) What exactly is the judgment of “the Court,” for purposes of the Brand X rules? Is it that the statute is ambiguous, so that the agency may flip back and forth between interpretation X and interpretation Y as future administrations come and go?

(B) If so, is that a sensible result? After all, eight Justices viewed the statute as unambiguous (although they disagreed on its putatively unambiguous content).

So far we have assumed that all Justices are using a common interpretive theory (in the examples, we have assumed that the Justices are all trying to determine the ordinary meaning of the text). But puzzles also arise at the meta-level of competing approaches to interpretation. In case (1), suppose that the five Justices are purposivists who think that purposive sources clearly suggest X, and the four are textualist who think that the ordinary meaning clearly indicates Y (or vice-versa). Does that undermine the argument for ambiguity? Or should all nine Justices recognize that reasonable minds can disagree about the proper approach to interpretation, and then say that the agency has second-order discretion to choose among reasonable interpretive approaches? On that logic, the agency wins as well, not because the statute is ambiguous within any particular interpretive approach, but because there is second-order ambiguity in the choice of interpretive approaches.

The puzzles are endless. Clearly some sort of analytic framework is needed, and basic decision theory supplies one. We sketch out such a framework in our next post.

The Executive Unbound, environmental ed.

From the NYT:

President Obama could leave office with the most
aggressive, far­-reaching environmental legacy of any occupant of the White House. Yet it is very possible that not a single major environmental law will have passed during his two terms in Washington.

Instead, Mr. Obama has turned to the vast reach of the Clean Air Act of 1970, which some legal experts call the most powerful environmental law in the world. Faced with a Congress that has shut down his attempts to push through an environmental agenda, Mr. Obama is using the authority of the act passed at the birth of the environmental movement to issue a series of landmark regulations on air pollution, from soot to smog, to mercury and planet-­warming carbon dioxide.

Reply to critics of my Chronicle piece on human rights programs

In the Chronicle article, I raised questions about whether human rights programs and law school human rights clinics advance legitimate university goals. I found two substantive responses on the Web.

1. Marco Simons argues (“On the off-chance that anyone does think this is a critique worth listening to“) that my view “is rooted in his belief that human rights law, indeed international law in general, is incoherent and useless. Thus he believes that any effort to give students experience in the practice of human rights law is simply political advocacy, because human rights law can be used for any political purpose.

I don’t believe (and have never said) that international law is incoherent and useless. I do think that human rights law is pretty incoherent, but I allowed that a clinic experience could be valuable to students if it teaches them (distinctively) legal skills and generates benefits for a client (or is likely to). So the way to respond to my argument is to show that specific human rights projects satisfy these two criteria. Simons does not offer any examples (though he makes several unintentionally damning comments about other types of clinics in an effort to show that human rights clinics are no worse than they are).

2. Sital Kalantry provides a more substantive response. She makes many points; I will leave readers to evaluate them for themselves. I will only address a couple. Among other things, she argues that

Some projects of IHR clinics do not involve representation of an individual client in a court case. Instead, they are aimed at achieving change for large groups of people through means other than courts. Those tactics require the use of legal skills beyond the traditional set. In the real world, public-interest and human-rights lawyers achieve social change by mobilizing peoples and communities using media or technology. Filing shadow reports with international treaty bodies, holding thematic hearings at the Inter-American Commission on Human Rights, or drafting reports using the moral persuasion that human-rights principles offer can raise the awareness necessary for legal change to occur.

I am skeptical that any of these activities (particularly the last) do make any difference, but my more specific concern is that once clinics start training legal skills “beyond the traditional set,” anything goes. I also suspect that once a clinic (human rights or any other type) decides that it does not need clients, but can represent any group with which it sympathizes, the link to law becomes attenuated, and the temptation to use law school resources for political ends becomes irresistible.

She also says:

He wonders whether a resolution by the Chicago City Council—that domestic violence is a human-rights violation—would reduce domestic violence. The purpose of the resolution on domestic violence is (among other things) to bring the United States closer to its international obligations, including strengthening the enforcement of a recent Inter-American Commission on Human Rights decision that found the United States to be in violation of its obligations to protect domestic-violence victims and their families. But this is precisely why Posner thinks this project is pointless—because it attempts to draw the United States closer to its international law obligations.

I think this project is pointless because it is hard to believe that a City Council resolution without any legal force would have any effect on the level of domestic violence. I don’t see how the resolution brings the United States closer to its international obligations, which do not require all the cities in the United States to pass resolutions saying that they will change their behavior, but in fact requires them to change their behavior. (Exactly what binding treaty obligation requires the United States to reduce the level of domestic violence escapes me, but never mind.)

In a similar vein, she argues:

IHR clinics also “do good” by investigating and exposing human-rights abuses that would otherwise go unnoticed (like the report by the Stanford and NYU clinics describing the impact of drone strikes in Pakistan) and by pressuring governments to change their abusive policies by filing reports with numerous international and regional human-rights mechanisms.

I would accept this argument if the clinics also provided evidence that by exposing human-rights abuses and pressuring governments to change behavior, they regularly caused the governments to change their behavior–and in a way that is required by their treaty obligations rather than someone’s idea about what good policy requires.

Kalantry’s view, which is common among human rights advocates, is effectively that all policy arguments are legal arguments, and any kind of advocacy is legal advocacy. It then follows that when law students make any type of argument that a government somewhere should stop doing something that hurts people or do more to help people, they are engaging in human-rights legal practice for which they deserve academic credit.

Reply to Brian Beutler and Kevin Drum on Obama’s immigration order

Beutler and Drum doubt that Obama’s immigration order will set a precedent that a future Republican can exploit for the purpose of economic deregulation, as I argued in TNR. Beutler seems to doubt that (political) precedents can constrain political actors. Drum thinks that precedents can matter but doubts that they will matter in this case because the Obama order will set precedent for immigration law only.

I confess I don’t understand politics well enough to be able to predict whether Obama’s order will have a large effect or a small effect but I believe it will have some effect. Think, for example, of the centralization of power over regulatory agencies in the OMB under Reagan. Reagan took political heat for that decision but pushed it through not only because he was ideologically committed to deregulation but because deregulation at the time was popular among Democrats as well as Republicans. His successors, who maintained the structure Reagan put into place, did not take political heat. That is how precedent works. But, of course, its influence can be overcome by other factors.

It is easy to predict that in 2017, the hypothetical President Paul will argue that he can deregulate by non-enforcement because that is what Obama did, and Democrats who defended Obama are in no position to criticize him. Would such an argument work politically? One question is whether people are capable of making fine-grained distinctions between immigration enforcement and, say, environmental-law enforcement. Another question is just how different environmental-law enforcement really is from immigration enforcement. People who sift through environmental law will find great pockets of executive discretion, both in the statutes and as a matter of practice. But the influence of arguments like these, taking place in the arena of politics rather than a court of law, is hard to predict.

Against human rights programs in universities

I criticize them (especially law school human rights clinics) in a piece in the Chronicle of Higher Education, available here. My argument is that the political activism that takes place through these programs sits uneasily with university commitments to research and pedagogy. In the case of law school clinics, nearly any form of political activism can be justified as furthering “human rights law” because of the ambiguity of this term. Indeed, the term is, in practice, so capacious that clinics can engage in political activism under the banner of human rights law without teaching students any legal skills.

Make the U.S. More Like Qatar

That’s the headline given to a piece that Glen Weyl and I wrote for TNR. Migration is probably the greatest force for improving the well-being of the very poor, and hence for reducing global inequality. However, migration is extremely unpopular. Native workers fear labor competition, and everyone dislikes foreigners, with their strange ways, and fear that if foreigners settle and become citizens, they will vote their customs into law. (Europeans once assumed that their Muslim immigrants would adopt European attitudes toward women’s rights, personal freedom, and the like, but now fear and dislike them because they have not.)

The Gulf countries have cut this Gordian knot by allowing massive migration while granting migrants few rights and no political freedoms. It is obvious that these two polices are connected. The question is what we should think about them. (We in the US benefit from a similar system, albeit a de facto rather than de jure system, and much smaller on a per capita basis, with our 10 million+ illegal immigrants. By contrast 95 percent of Qatar’s population are migrant workers.)

The overwhelming view among elites, NGOs, and commentators is that the Gulf model is odious. The Gulf states should offer all their migrants the full panoply of human rights (and their citizens as well, presumably). But that’s not going to happen. And it seems likely, based on a comparison of us and them, that the rejection of migrants and the denial of rights are linked. And so the question is unavoidable: who (on a per capita basis) do more for the poorest people in the world: the authoritarian Gulf states with generous migration and no rights, or the democratic, human rights-loving but migrant-excluding West?

Vermeule: A Question about King v. Burwell

[N.B.: the entire post below is written by Adrian Vermeule, both the part in quotes, and the part that comes after it.]

Adrian Vermeule writes in:

Is the following an admissible legal argument? If not, why?

“Under Chevron, let us assume, the government wins so long as the agency offers a reasonable interpretation of statutory meaning, even if it is not clearly correct. The challengers have to show that the agency’s interpretation is clearly wrong, as a matter of the statute’s ordinary meaning.

So far nine federal judges have voted on the merits of the statutory challenge to subsidies on federal exchanges. (The nine comprise the six appellate judges who voted on the merits in King and Halbig; the two district judges in those cases; and one district judge in Oklahoma). To date, six votes have been cast in favor of the government’s position (some on the ground that the agency’s position is reasonable, some on the ground that it is clearly correct). Three votes have been cast against the agency’s view.

In light of these votes, to say that the statute has an ordinary meaning contrary to the agency’s interpretation verges on self-refutation. It implies that the judges in the majority of six can’t read English. It is logically possible that the sample of judges is severely biased in the government’s favor, but it is not actually true. The challengers have had broad latitude to choose their playing fields, and have been unable even to muster a majority of judicial votes, let alone the supermajority that would be necessary to suggest that the statute’s ordinary meaning clearly supports their case.”

Three notes:

(1) An admissible legal argument need not be conclusive, of course. The argument would have to be weighed against other admissible arguments.

(2) The argument, if admissible, would always counsel deference to agencies in Chevron cases where there is a circuit split, other arguments being equal. (Thanks to Abbe Gluck for this observation). I’m fine with that. Is it a problem?

(3) Another implication is that there should be no Chevron cases in which the agency loses by a 5-4 vote at the Supreme Court (and one may make appropriate modifications for other courts). In this setting, the legal rule itself specifies which party should win if reasonable disagreement is present: the agency should win. Accordingly, if a straw vote among the Justices shows a 5-4 split, then all the Justices should update their views; they should realize that there is reasonable disagreement in the case. If so, the agency should win 9-0. Under any other approach, judges in effect throw away valuable information — the information contained in their colleagues’ votes.

An earlier version of this post miscounted the votes, stating them as 5-4 in the government’s favor, instead of 6-3. Jonathan Adler, against interest, graciously corrected the record.

The (real) legal case for bombing ISIS

I put together my thoughts at Slate. Incidentally, in the course of doing research for this piece, I ran across a large number of awfully confident claims that Obama’s decision to ask Congress for consent to use military force in Syria in 2013 meant that he, and possibly no other future president, could ever use military force unilaterally again. It did not take long for these claims to be falsified. All of the quotations below are taken from pieces written back in 2013.

David Rothkopf:

Whatever happens with regard to Syria, the larger consequence of the president’s action will resonate for years. The president has made it highly unlikely that at any time during the remainder of his term he will be able to initiate military action without seeking congressional approval.

Peter Spiro:

President Obama’s decision to seek authorization for military intervention in Syria is a watershed in the modern history of war powers…. The rest of the world can basically forget about the US going to military bat in these kinds of situations if congressional action is a precondition. This is a huge development with broad implications not just for separation of powers but for the global system generally.

Peter Shane:

In seeking congressional authorization, President Obama is thus re-submitting the modern presidency to the kind of “cycle of accountability,” to use Professor Griffin’s phrase, that the constitutional design anticipated. We will strike Syria, if at all, based on a joint determination by both elected branches that should nurture an ongoing sense of joint responsibility to monitor and assess in a careful way whatever consequences ensue.

Jack Goldsmith:

In the NYT today I predicted that the President would be eating his words from the 2008 campaign trail to the effect that he needed congressional authorization for an intervention like the one planned for Syria.  I was wrong, and I am very happy to say that I am now eating my words.

But not me.

President Obama’s surprise announcement that he will ask Congress for approval of a military attack on Syria is being hailed as a vindication of the rule of law and a revival of the central role of Congress in war-making, even by critics. But all of this is wrong. Far from breaking new legal ground, President Obama has reaffirmed the primacy of the executive in matters of war and peace.

Human rights law: A guide for the layperson

The list below has been compiled from the major human rights treaties, which have been ratified by the vast majority of countries.


Equality regardless of race, color, descent, or national or ethnic origin

Right to equal treatment before tribunals

Right to security of person

Right to effective protection and remedies

Right to freedom of movement and residence

Right to leave any country and return to one’s own

Right to nationality

Right to marriage and choice of spouse

Right to own property

Right to inherit

Right to freedom of thought, conscience, and religion

Right to freedom of opinion and expression

Right to freedom of peaceful assembly and association

Economic, social, and cultural rights

Right to form and join trade unions

Right to housing

Right to public health, medical care, social security, and social services

Right to education and training

Right to equal participation in cultural activities

Right of access to any public place or service

Freedom from racial segregation

Prohibition of racist propaganda and organizations

Right of self-determination

Freedom to dispose of own wealth and resources

No deprivation of own means of subsistence

Inherent right to life

Restrictions and rights for anyone sentenced to death

General gender equality clause

Freedom of thought, conscience, and religion Prohibition of arbitrary arrest and detention Right to assembly

Right to privacy of the home

Right to association

Right to privacy of communication

Freedom of movement

Equal enjoyment of civil and political rights regardless of gender

Right of access to court and tribunals (habeas corpus)

Prohibition of torture

Right to vote

Prohibition of ex post facto laws

Freedom to choose residence

Freedom to leave any country

Rights of lawful alien in face of expulsion

Right not to be expelled from home territory

Equality regardless of race

Right to present a defense

Right to form trade unions

Right to counsel

Right to public trial

Right to review by a higher tribunal

Presumption of innocence until proven guilty

Rights regarding trial preparation

Freedom from forced testimony or confession of guilt

Right to establish a family

Prohibition of slavery

Freedom from forced labor

Right to liberty and security of person

Rights of arrested person

Rights for children

Right to a remedy when rights are violated

Right to personal privacy

Prohibition of double jeopardy

Equality regardless of belief/philosophy

Right to remain silent

Right to a timely trial

Equality regardless of political opinion

Right to an interpreter

Equality regardless of language

Right to ‘fair trial’

Right to work for the government


Right to privacy of family life

Minority cultural rights

Right to protection of one’s reputation or honor

Equality of husband and wife within the family

Right to appeal to higher court

Equality regardless of economic status

Equality regardless of nationality

Rights for prisoners


Right of self-determination

General gender equality clause

Right to education

Right to a fair wage

Right to work

Right to highest mental and physical health

Equality in employment promotion

Right to form and join trade unions

Right to establish a family

Right to social security

Right to protection and assistance to the family

Right to culture

Artistic freedom

Right to rest and leisure

Right to housing

Right to favorable working conditions

Right to protection of intellectual property

Right to strike

Right to adequate standard of living

Woman empowerment in labor relations

Right to maternity leave

Prohibition of child labor

Right to food

Right to take part in cultural life

Right to enjoy scientific progress

Legislative equality regardless of gender

Equality for women in political and public life

Prohibition of trafficking and prostitution of women

Equality of the husband and wife in marriage and family relations

Same right to enter into marriage

Same right to freedom in choosing a spouse and entering into marriage

Same rights and responsibilities

Same rights with regards to their children

Same personal rights as husband and wife

Same rights with regards to property

Right to acquire, change, or retain nationality

Equality for women in the field of education

Equality for women in the field of employment

Right to safe working conditions

Right to social security

Woman empowerment in labor relations

Right to maternity leave

Right to social services such as child-care facilities

Special protection during pregnancy

Equality for women in the field of health care

Equality for women in rural areas

Right to participate in development planning

Right to health care

Right to benefit from social security programs

Right to training and education

Right to self-help groups and co-operatives

Right to participate in community activities

Right to adequate living conditions


Prohibition of torture

Protection from extradition to another

State where danger of torture exists

Rights while in custody for alleged offense

Right to communicate with appropriate representative


Right to have national State immediately notified of the custody

Fair treatment in proceedings

Prompt and impartial investigation of an alleged act of torture

Rights for complainants and victims of torture

Right to complain about act of torture

Right to protection

Right to fair and adequate compensation

Prohibition regarding statements made as a result of torture

Prohibition of other acts of cruel, inhuman, or degrading treatment or punishment


Inherent right to life (for children)

Right to a name and nationality

Right to know and be cared for by parents

Right to preservation of identity

No separation from parents against child’s will

Protection from illicit transfer abroad and non-return

Freedom of expression

Freedom of thought, conscience, and religion Freedom of association and of peaceful assembly Right to privacy

Freedom from attacks on honor and reputation

Access to mass media information and materials

Right to physical and mental protection

Right to humanitarian assistance

Right to good health

Right to social security

Right to an adequate standard of living

Right to education

Right to rest and leisure

Protection from harmful employment

Protection from illicit use of drugs

Protection from use of children in drug trafficking

Protection from sexual exploitation and sexual abuse

Protection from torture and other cruel, inhuman or degrading treatment and punishment

Protection from abduction, sale, and trafficking

Protection from all other forms of exploitation

Protection from capital punishment and life imprisonment

Protection of children in armed conflicts

Prohibition of child labor

Best interests of the child as the primary consideration

Rights and duties of parents are respected

Rights for disabled children

Rights for minority children to enjoy own culture

Rights of children deprived of liberty

Rights of children accused of infringing penal law

Prohibition of death penalty


Equality for all migrant workers and their families

Free to leave any State

Right to enter and remain in their State of origin

Right to life

Freedom from torture and cruel, inhuman, or degrading treatment/ punishment

Freedom from slavery

Freedom from forced labor

Right to freedom of thought, conscience, and religion

Right to opinions

Right to freedom of expression

Right to privacy

Freedom from unlawful attacks on honor and reputation

Freedom from arbitrary deprivation of property

Right to liberty and security of person

Right to protection

Freedom from arbitrary arrest or detention

Equal rights as nationals

Freedom from confiscation or destroying of legal documents

Freedom from collective expulsion

Right to protection and assistance by their State of origin

Right to recognition as a person

Rights regarding employment

Equal treatment and benefits as nationals

Rights to form or join trade unions

Rights to social security

Right freely to choose remunerated activity

Rights to medical care

Rights of child

Right to a name, registration of birth, and a nationality

Right to education

Right to learn mother tongue and culture

Right to a cultural identity

Rights upon termination of stay

Right to be informed

Right to liberty of movement

Freedom to choose residence

Right to participate in public affairs of State of origin

Right to political rights in State of employment, if granted Equal treatment with nationals of State of employment

Protection of unity of family

Equality in accessing education

Equality in accessing social and health services

Equality in participating in cultural life

Rights regarding taxes

Rights for family of deceased migrant worked or dissolution of marriage

Rights for arrested migrant workers and their families

Right to be informed about arrest in own language

Right to trial or release

Own State shall be notified of the detention

Right to communicate and meet with authorities in the own State

Right to a court trial

Victims of unlawful arrest or detention have the right to compensation

Right to be treated with humanity

Equal rights as nationals

Rights for accused migrant workers and their families

Right to be separated from convicted persons

Rights for juvenile persons to be separated from adults

Right to be presumed innocent until proven guilty Rights in the determination of criminal charges

Right to be reviewed by a higher tribunal

Freedom from imprisonment for failing to fulfill a contractual obligation

Rights for expelled migrant workers and their families

Rights for frontier workers

Rights for seasonal workers

Rights for itinerant workers

Rights for project-tied workers

Rights for specified-employment workers

Rights for self-employment workers

Rights regarding international migration

Rights to sound, equitable, humane, and lawful conditions

Rights to services to deal with questions


Prohibition of armed forces members aged <18 from taking direct part in hostilities

Prohibition of children aged <18 from compulsory recruitment into armed forces

Special protection for persons aged <18

Armed groups prohibited from recruiting or using in hostilities persons aged <18

Prohibition of the sale of children, child prostitution, and child pornography

Rights of child victims

Right to recognition of vulnerability

Right to adapted procedures to address special needs

Right to be informed of the proceedings and the disposition

Right to have views, needs, and concerns presented and considered

Right to support services

Right to privacy and identity

Right to safety

Right to avoid unnecessary delay in the proceedings

Assistance in recovery

Best interests of the child is the primary consideration


Equal protection and benefit of the law for disabled

Recognition of women and girls with disabilities

Recognition of children with disabilities

Access to public services facilities

Right to life

Right to protection in situations of risk

Access to justice

Right to liberty and security

Freedom from torture or cruel, inhuman, or degrading treatment/ punishment

Freedom from exploitation, violence, and abuse

Right to respect for physical and mental integrity

Right to liberty of movement and nationality

Right to live independently

Right to be included in the community

Right to personal mobility

Freedom of expression and opinion

Access to information

Right to privacy

Respect for home and the family

Right to education

Right to good health

Access to habilitation and rehabilitation services and programs

Right to work

Right to an adequate standard of living

Right to social protection

Freedom to participate in political and public life

Freedom to participate in cultural life, recreation, leisure, and sport


Protection from enforced disappearance

Rights for individual who alleges enforced disappearance

Right to report facts to authorities

Right to protection

Protection from extradition to another State where danger of enforced disappearance exists

No secret detention

Right to information on deprivation of liberty

Right to privacy of personal information

Rights for victims of enforced disappearance

Right to the truth

Right to reparation and compensation

Right to form and participate in organizations that address enforced disappearance


N.B.: some of the rights in this list appear more than once; the reason is that they appear in multiple treaties.


Duke’s New Human Rights Center

I received an email today announcing Duke Law School’s new Human Rights Center, Human Rights @ Duke Law:

Duke Law provides an integrated approach to human rights education, advocacy and scholarship that places students at the intersection of human rights theory and practice, domestically and abroad.

The Center includes a Human Rights Clinic. Its website says:

Types of clinic projects include those that: apply a human rights framework to domestic issues; involve human rights advocacy abroad; engage with international institutions to advance human rights; and/or address human rights in U.S. foreign policy.

Its new director says:

I am committed to enabling Duke Law students to make human rights work in a globalized world.  This means developing clinic projects and practice opportunities that are both innovative as well as reflective of and grounded in sound and rigorous lawyering and legal analysis.  By addressing the role of law and lawyers in engendering social change, the clinic and its students will advance the frontiers of human rights law and advocacy in ways that are smart, strategic, and impactful.

This sort of stuff is hardly unique to Duke. Many law schools have something like it: a Human Rights Center or Program explicitly devoted to advocacy as well as education and research, with a clinic through which students “practice” human rights law under the supervision of a lawyer. The only thing that distinguishes Duke is that they sent me spam about their program.

So I don’t mean to pick on Duke alone when I raise the following questions:

1. How many students actually do become human rights lawyers? Do the numbers justify the resources devoted to human rights centers and programs?

2. Is it appropriate to create centers in a university that combine research/education, on the one hand, and advocacy, on the other. Is it possible that a commitment to advocacy may interfere with research and pedagogical commitments?

3. What does human rights advocacy mean, anyway? Does it mean making claims based on the law, or does it mean making political and ideological arguments? Does it matter what these arguments are, or must they be connected in some way to a law school’s mission?

4. Is there a difference between “human rights” as a moral or political ideal, and “human rights law.” If so, do clinics pay attention to this difference?

5. Should law schools set up clinics that advocate for Christian ethics? Neoconservative ideals? The platform of the Democratic party? Are these missions different in kind  from human rights?

6. Do law schools with Human Rights Programs–and other programs whose missions explicitly combine advocacy with education and research–monitor these programs in order to ensure that they act consistently with the law school’s mission, whatever it is? If so, do they issue public reports with their findings? If they do, I’d like to see them.



How many books on human rights were published in the last month?

By “books on human rights” I mean books with “human rights” in the title. The answer is at least 27, the number offered by Amazon when I checked yesterday. Amazon also offers 1,270 books on human rights that were published in 2013; and 18,960 books on human rights in total. (A spot check indicates a small number of false positives but the search is also underinclusive since it is limited to books with “human rights” in the title.)

Amazon does not sell all books. WorldCat, a large collection of library catalogs, lists 6,516 human rights books from 2013, and 166,891 in total.

But there’s always room for one more.

Marty Lederman’s brilliantly subversive defense of the president’s reliance on the 2001 AUMF

His argument boils down to the following points.

1. The administration’s legal theory is based on a factual predicate that might be correct (“the recent ISIL attacks are not unrelated to the AQ design of 2001, but instead part and parcel of that enemy’s design:  that ISIL considers itself ‘the true inheritor of Usama bin Laden’s legacy’”). “Not unrelated”!

2. The administration adopted a legal theory that was less bad than the one “everyone” (?) expected (“a newly aggressive understanding of the President’s unilateral constitutional power to initiate military operations”). Most important, this theory keeps the ultimate authority in Congress’ hands.

3. Congress and the public support the military operation anyway (“this is a case in which the public and both houses of Congress do overwhelmingly support the President’s contemplated use of air strikes against ISIL, in Iraq and in Syria, but in which the leadership of the House has informed the Administration that the chamber is almost certain not to vote on the operation, for reasons other than substantive disapproval ”).

In sum, “a masterstroke that deftly threaded the needle without disregarding congressional will.”

A masterstroke, indeed. Here are thoughts about each of the points:

1. The president always knows conditions that justify military operations better than the public and Congress does. These conditions include not only the threat to Americans in a direct sense (an ISIS-sponsored terrorist attack on U.S. soil), which is derived from secret intelligence, but all the intricate, semi-secret implications for the security of allies, the proliferation of weapons, the dissemination of violent ideology, and so on—and here, of course, U.S. information about the actual structure of ISIS and its connections with other groups. The key point is that while the truth may ultimately come out, it will come out too late to affect Congress’ and the public’s capacity to stop a war before it begins. No way to sue the president for damages or obtain injunctions if the facts turn out the other way. And wars rarely stop, as we know from very recent experience, when the factual predicates are shown to be false.

2. Given the sort of interpretive latitude that Lederman grants the president, and effective deference to the executive branch’s superior information, the practical difference between a statutory argument and an Article II argument is vanishingly small. If you don’t believe me, sit down and read executive-branch opinions (some of them issued by OLC, some not, and some of them proposed but not officially adopted) on Haiti, Bosnia, Kosovo, Libya, etc. Adopting a “narrow” interpretation, closely tied to the facts and existing statutory authorities, in order to avoid broad legal assertions is meaningful only if the limiting language in the earlier opinions actually block subsequent action (they don’t) and old statutes can be repealed (apparently, they can’t).

3. This is really a political argument, not a legal argument, but it is worth noting that in Lederman’s hand it becomes a precedent that justifies the use of military force when the public and Congress “really” supports it, whether or not Congress acts officially through its voting procedures. Another loophole to be widened in future iterations.

What of the claim that Congress can turn around and take away the president’s authority—the great virtue of a statutory approach? But this would mean assembling a veto-proof majority in both Houses—which is not going to happen. Indeed, the opposite is more likely to happen—as has happened before (above all, Kosovo): Congress will be constrained to “support the troops” and vote for the money they need to continue operations.

You might have noticed that Lederman loaded his post with qualifications (“if this factual predicate is true,” “if that claim is true,” a “tentative case,” etc.), which in fact enhances the effectiveness of his defense. Nothing defuses a thundering jeremiad against the abuse of presidential power like a lawyer’s modest “it’s complicated.”

2001 AUMF? 2002 AUMF? New appropriations statute? Article 2??

Legal scholars are in a tizzy about the legal justification for the war on ISIS. Can’t the administration make up its mind? But Vermeule and I warned you years ago:

The main implication of this contrast is that crises in the administrative state tend to follow a similar pattern. In the first stage, there is an unanticipated event requiring immediate action. Executive and administrative officials will necessarily take responsibility for the front-line response; typically, when asked to cite their legal authority for doing so, they will either resort to vague claims of inherent power or will offer creative readings of old statutes.…

The overall picture of Congress’s role in emergency lawmaking, then, is as follows. Congress lacks motivation to act before the crisis, even if the crisis is in some sense predictable. Thus the initial administrative response will inevitably take place under old statutes of dubious relevance, or under vague emergency statutes that impose guidelines that the executive ignores and that Congress lacks the political will to enforce, or under claims of inherent executive authority. After the crisis is under way, the executive seeks a massive new delegation of authority and almost always obtains some or most of what it seeks, although with modifications of form and of degree. When Congress enacts such delegations, it is reacting to the crisis rather than anticipating it, and the consequence of delegation is just that the executive once again chooses the bulk of new policies for managing the crisis, but with clear statutory authority for doing so.

You could read Lawfare or Just Security every day. Or you could read The Executive Unbound just once.

How could Obama rely on the 2001 AUMF to justify hostilities against ISIS?

Here is Ryan Goodman:

I have previously written that the 2001 authorization does not cover ISIS, and I noted: “As readers of Just SecurityLawfare, and Opinion Juris know, a remarkable consensus of opinion has emerged across our blogs that ISIS is not covered by the 2001 AUMF.”

Yet the White House ignored this remarkable academic consensus. Why? Well, remember the 2011 Libya war when the White House circumvented the War Powers Act by defining “hostilities” to exclude the act of raining down bombs and missiles on hostile troops? This broad interpretation of the 2001 AUMF is effectively a narrowing to nothing of the War Powers Act, henceforth, for all military activity directed against Islamic terrorists in the foreseeable future. Is it still possible to find this surprising?

The simple explanation is that in many settings–Libya, and, one supposes, this one–it is jointly in the interest of the president and relevant members of Congress to avoid a congressional vote that might force those members of Congress (specifically, Democrats right before an election) to go on record with a position that the party demands but their constituents reject.

How Do Bank Regulators Determine Capital Adequacy Requirements?

Ever wonder what the answer to this question is? If so, read my new paper at SSRN. I make four claims:

1. Bank regulators have used a process which I call “norming,” by which I mean choosing capital levels that weed out the worst banks but leave most of them untouched.

2. Norming is self-evidently (as a matter of the theory of financial regulation) a bad way to regulate banks, guaranteed to produce excessively generous rules that allow most banks to take excessive risks.

3. Inadequate capitalization of banks contributed to the financial crisis of 2007-2008.

4. If regulators had been required to use cost-benefit analysis rather than norming, they would have issued stricter capital adequacy rules.

Obama’s treatyish climate agreement

The Times reported last week that President Obama plans to negotiate a non-legal climate agreement with other major emitters so as to avoid a Senate vote that would otherwise be required for a “treaty.” The treaty obligations are somehow both “voluntary” (for the benefit of the Senate audience) and “legally binding” (for the benefit of Obama’s constituents). Times reporters now routinely state that the president is “circumventing Congress” whenever he does something on his own, whether or not the Constitution, precedent, or statutes gives him the authority to do so. So I wrote this Slate piece to explain that President Obama’s approach was not unconstitutional, or even particularly notable. Presidents can make agreements with foreign countries and then engage in parallel play with foreign leaders–conforming to the agreements to the extent they have independent authority to do so. They have done so for decades if not centuries.

I expected that this latest development would be additional grist for the mill of Obama critics who think that he is a “domestic Caesar,” but the outrage seems to have been lost amid the general disintegration of international order.

Adrian Vermeule on Philip Hamburger’s “Is Administrative Law Unlawful?”

Adrian Vermeule writes:

Philip Hamburger’s recent book asks “Is Administrative Law Unlawful?” My answer is “No.” Here it is.

P.S. Mike Ramsey implies that the review is inconsistent with an earlier book, The Executive Unbound.

I deny that consistency is a virtue for academics, but I can’t see any inconsistency anyway. Mike hasn’t grasped the sheer pedantic arrogance of my position (not to be attributed to Eric), which is that only those of us who understand the basic doctrines and principles of administrative law are entitled to debunk them. Philip Hamburger doesn’t seem to understand them, so his attempt at debunking misses the mark. I happen to think that there is a valid debunking, different than Philip’s, but that doesn’t help those who have failed to pass the pons asinorum of the subject.

Do Republican law professors strategically conceal their views?

law professor ideologyThe figure above is from my paper with Adam Chilton, An Empirical Study of Political Bias in Legal Scholarship. I highlight it here because it received a great deal of attention in a recent workshop. It shows that Republican law professors (more precisely, law professors who make net donations to Republican candidates) tend to write a mix of conservative, liberal, and “neutral” papers, while most Democratic law professors write uniformly liberal papers or nearly so. (The numbers on the x-axis refer to the number of conservative papers minus number of liberal papers written by a professor out of a total of five. For example, -5 means that a professor writes five liberal articles; +2 means that a professor writes on net two conservative articles, which could mean three conservative, one liberal, and one neutral article, or two conservative and three neutral articles, and so on.)

What is the explanation for this pattern? I can think of five (which are not all mutually exclusive). (1) Democrats honestly write liberal papers that accurately reflect the world as it is, while Republicans do so only occasionally. (2) Republicans are open-minded and write papers contrary to their political leanings if truth leads them in that direction, while Democrats are ideologues. (3) Republicans who end up in academia are just not politically passionate, while Democrats are. (4) Republicans benefit intellectually from being in an environment where most people challenge their views, while Democrats suffer from herd behavior. (5) Republicans behave strategically, deliberately writing some liberal papers (or entering fields with weak ideological valence) in order to avoid being seen as excessively conservative by colleagues, deans, and students who mostly disagree with them.

In this recent workshop, a number of conservatives in the room argued that explanation (5) was the correct one. Apparently (and this is news to me), law professors sometimes (often?) advise politically conservative applicants for teaching positions to look for topics where conservative principles or methods would lead them to reach liberal conclusions. In contrast, the liberals at the workshop reported that they had not had not been told to mask their ideological leanings in whole or in part. This is anecdotal evidence from just a few people, but it does explain the pattern we observe in our data.

Are Republican law professors cited more often than Democratic law professors?

A number of people asked me this question in light of my paper, An Empirical Study of Political Bias in Legal Scholarship (with Adam Chilton), which I discuss here. To answer this question, we obtained citation data from Gregory Sisk (see this paper for his methodology). The results (the number of articles that cite a specific professor over the last five years, averaged over each group) are below:

Affiliation Mean Citations Median Citations
Democrat 329 251
None 236 164
Republican 492 326

So the answer is “yes” (at a statistically significant level). It is interesting, and possibly puzzling, that non-donors are cited less often than both Democrats and Republicans are. Maybe articles with a political bent attract a greater number of responses, and so professors who do not write them are less frequently cited.

That said, what is the explanation for the more frequent citation of Republican professors? I can think of the following possibilities:

1. Liberal law faculties discriminate against Republicans by implicitly imposing a higher standard for hiring them. Thus, Republicans who are hired are better scholars than Democrats, and hence are cited more often, even if the scholars in the larger pool of potential hires are equivalent in ability.

2. Liberal law professors, being more numerous, write more papers than Republicans do (in aggregate). Because they must find someone to criticize in their papers, they end up citing Republicans frequently. Citations by Republican law professors are divided among the larger pool of Democratic professors, so on a per capita bases the latter are less frequently cited than the former.

3. The most distinctive ideas (whether correct or not) are produced by Republicans because they are better able to resist pressures to conform and to repeat conventional wisdom. Distinctive papers are more likely to be cited than papers that repeat old ideas.

4. Republican scholars cite other Republican scholars more frequently than Democratic scholars cite other Democratic scholars because Republicans, feeling beleaguered in the liberal academy, have a greater sense of solidarity, and help each other out through excessive citation.

Better data would allow one to explore these alternative explanations. I should include the usual caveat that many people doubt the reliability of citations as a measure of scholarly quality or influence.

More on the power to enforce (or not to enforce) immigration law

My latest (and, I hope, last) argument is at Slate. I respond to Douthat and Salam. My initial response to the Douthat column that got the ball rolling was at The New Republic. Both Douthat and Salam responded with ad hominem attacks (Salam later took his down). Douthat’s response is here (he thinks wrongly that Obama can’t reverse his policy, and he’s wrong to say that Obama is “legalizing” illegal immigrants); Salam’s two later responses are here and here.

I left out of my most recent piece for reasons of space one additional point that is worth making: it is wrong to claim that Obama has put into place (“de facto”) the path-to-citizenship law that Congress has refused to pass. Obama has no power to grant citizenship to anyone, and his enforcement authority expires with his term.

July 4 in Chicago: A reply to Reihan Salam

Various commentators seem to be shocked by my claim that the president can refuse to enforce the immigration laws. They think that such an action would violate the Constitution. No lawyer does, aside from a few with idiosyncratic views about the Constitution. Let me see if I can explain why.

Last July 4, I took a stroll along the Chicago lakefront in my neighborhood. As far as the eye could see, ordinary people were setting off fireworks, and not just everyday firecrackers, but what seemed like commercial-grade fireworks that showered sparks on us from high in the air. Numerous police officers stood around and watched. Even though fireworks (beyond smoke bombs and sparklers) are quite illegal in Chicago, no one moved to make an arrest or even issue a warning.

This is a familiar example of executive discretion. Hundreds of people violated the law. The police did nothing about it. Why not? Maybe because they did not have enough resources. Maybe because the mayor thought arrests would be unpopular. Maybe because the police enjoyed the fireworks display. Who knows? It doesn’t matter. No one thinks that the city government behaved unconstitutionally though quite a few citizens complained. (This has been going on for many years.)

Obama’s (apparent) plan not to enforce immigration laws is just another example. His critics have worked hard to distinguish it from run-of-the-mill enforcement discretion that the Constitution places in the executive branch. Reihan Salam makes several attempts.

First, the president can use his law enforcement discretion to “husband enforcement resources” but only to advance the immigration law, and that’s not what he’s doing. But Chicago did not “husband enforcement resources” to advance “fireworks law.” It simply disregarded the fireworks ordinance. It husbanded resources for goals (for example, keeping order) that it deemed more important than stopping people from shooting off fireworks. There is no rule that enforcement discretion is somehow law-specific.

Second, Salam argues that the president can’t do what Congress didn’t intend. Congress didn’t intend to allow the president to give work permits to millions of illegal immigrants. True, but state and city lawmakers didn’t intend to allow Chicago police not to enforce the fireworks law. Or, to draw a closer parallel, to give fireworks permits to thousands of amateurs. The law reveals an intent that is exactly the opposite.

Third, the president can’t prospectively “suspend” the law. (He’s not suspending it–he can’t do that–but never mind.) Here we see a difference. The Chicago police do not announce in advance that it will suspend the law requiring people to obtain a license to shoot off fireworks. That the police are issuing “fireworks permits” hither and yon, akin to Obama’s work permits. But everyone knows that this is the policy. No one has explained why announcement of prospective action–which serves important rule-of-law values by informing the public of policy–is a defect rather than an improvement over the Bush era, where virtually no employer was ever punished for employing illegal immigrants but a policy of non-enforcement was never announced.

Question: How many employers were punished by the Bush administration in 2006 for employing illegal immigrants? Answer: zero. It’s true that he didn’t announce a policy of granting work permits to  illegal aliens. But that was his policy. Why didn’t Salam argue then that Bush was violating the Constitution?

The truth is that a huge number of laws are simply not enforced. An old example that people used to cite are sodomy laws. They were on the books; they were occasionally used against rapists when a jury couldn’t be persuaded that the victim withheld consent. Sodomy laws were virtually never enforced against (otherwise) law-abiding people. All kinds of old laws sit on the books that no one bothers to enforce. And not just crazy old state laws. There are thousands of intricate regulatory laws governing industries of various sorts that are never or selectively enforced.

Environmentalists and other advocates have complained for decades about executive-branch policy (yes, explicit and prospective) of issuing rules under regulatory statutes like the Clean Air Act only if those rules pass cost-benefit tests. This policy was first implemented by Reagan in 1981. The policy is plainly one of under- or non-enforcement of the law, which contains no such cost-benefit test but rather requires strict regulation. Yet I’m guessing that Salam and Douthat don’t see this policy as an example of “domestic Caesarism.” Why not, exactly?

Or if you want still more examples, consider the well-recognized phenomenon of “regulatory forbearance” in banking law where banking regulators decline to shut down a sick bank despite its violation of capital-adequacy regulations because they think it will recover. Or consider the endless statutes that ban “loitering,” “disorderly conduct,” “breach of the peace,” and the like. If police had to literally enforce these laws, we’d all be in jail. So if you wonder why courts never try to force the executive branch to enforce the law, this is why.

All that is different about the immigration example is that it is currently a hot-button political issue. As Salam seems to recognize implicitly as his piece winds down, the president is (or may be) violating a political norm, not a constitutional norm. And for that reason his decision may be a bad idea, and perhaps it will backfire. But that doesn’t make it unconstitutional.

Piketty and Intergenerational Wealth Transfers

Glen Weyl and I wrote a piece for The New Republic on Piketty’s book. Piketty’s book has received a lot of attention for two reasons–the first is that it is rigorous and fascinating; the second is that its focus on inequality resonates with public anxieties about the direction of the market economy.

There is a sensible argument about inequality and there is a dubious one. The sensible argument is that today certain lucky folks–financiers, start-up entrepreneurs who hit the jackpot, top CEOs, and so on–who earn vast incomes, almost certainly far in excess of what is needed to motivate people to generate value for the economy, and in many cases (above all, in finance) even in excess of whatever value they do generate, should pay higher income taxes. Many people think that Piketty’s book makes this argument. But while Piketty endorses this view, or at least seems to, this view is not the distinctive contribution of his book.

The book is called “Capital in the Twenty-First Century,” not “Income in the Twenty-First Century.” Piketty argues that extreme inequality is the result of the accumulation of capital in the hands of the few across generations. And because the rate of return on capital is higher than the “natural” rate of economic growth, inequality can only increase. This argument really is distinctive–it is the distinctive contribution of the book–and it is what leads him to endorse a wealth tax (as opposed to a higher income tax, though he does support a higher income tax as well). This argument is dubious. It rests on implausible assumptions about how super-rich people spend their money, and, most of all, how they transfer it to heirs.

James Morrow, Order Within Anarchy

This book explores compliance with the laws of war, focusing on laws regulating the treatment of POWs, using theoretical models and empirical data. Governments take an instrumental  approach to the law: they follow it when it serves their interest. The major way this can happen is if retaliation by the enemy is worse than any temporary gains from violating the law while the enemy follows it. Thus, a state may violate the law if (1) the law puts it at disadvantage and so it gains from disregarding it even if the enemy does as well; or (2) the law puts the enemy at a disadvantage so it cannot be expected to comply with it. Mutually beneficial cooperation can break down because the rules are unclear, but trying to get them precise in advance is difficult because of uncertainties about future changes in technology and the like.

A good companion book is Isabel Hull’s A Scrap of Paper, which examines the laws of war during World War I. Hull also addresses the laws of neutrality, which create more complex strategic interactions than POW rules do. A belligerent wants to inflict as much harm on the enemy as possible,  including interference with trade with neutrals, but up to the point where the neutrals themselves protest and may join forces with the enemy. The legal rules play an even more limited role than POW rules do. Neutrals have complex attitudes toward the belligerents, and some will tolerate violations of the law of neutrality by one belligerent because of their hostility to the other.

Hull is a historian while Morrow is a political scientist but the books tell a similar tale about governments’ instrumental attitudes toward international law. International law professors, who regard international law from a static, doctrinal perspective, and against all evidence take compliance for granted rather than as a problem that influences how the law is interpreted, could learn a lot from these books.

Would it be lawful for Israel to shut off electricity to Gaza?

Yes, says Avi Bell (updated version here). No, says twelve other scholars in Israel. This is a purely hypothetical question because Israel has expressed no intention of shutting down the flow of electricity into Gaza, and probably wouldn’t gain anything by doing so. But since you asked….

International law does not bar a belligerent from cutting off electricity. Indeed, a belligerent is free to bomb the power plants of its enemy, as the United States has recently done in Iraq and Serbia. Gaza has only a few power plants and receives most of its electricity from Israel. Israel could cut off electricity even if it were not at war with Gaza, just as it could refuse to trade with Gaza. Being at war with Gaza, it could not only shut off electricity, it could blow up Gaza’s plants.

A possible counterargument would be that Israel occupies Gaza. An occupier normally must maintain services for the people living in occupied territory. So one question is whether Gaza is occupied. No: Gaza has its own government and own militia. Yes: Israel controls the borders and can intervene at will. I think the better answer is No–Gaza is blockaded and besieged but not occupied.

But the 12 authors don’t argue that Israel occupies Gaza. Instead, they argue that Israel has certain obligations to Gaza because Israel used to occupy Gaza and since withdrawing has prevented Gaza from developing infrastructure by blockading it. There is an Israeli Supreme Court case that lends credence to this theory, but international law does not. There is no legal authority for the principle that a belligerent that has withdrawn from a country has any obligations toward it that arise from the former occupation. Nor can the authors cobble together a description of the contours of those obligations if they did exist, so even if Israel owed obligations toward Gaza of some sort, it would hardly follow that it cannot cut off electricity if it believed that doing so advanced a legitimate military objective.

I suspect that Israel has sensible political reasons for not cutting off electricity, and so let us hope that this debate remains theoretical.

Piketty, chs. 3-4

These chapters describe changes in the capital/income ratio over time in several countries. A high capital/income ratio means that capitalists gain a large portion of national wealth, signifying inequality  (given that the wealthy own most of the capital). It’s a bit hard to comment on these chapters since they are part of the larger argument in Part 2, but here are some thoughts.

1. Piketty’s main point is that the capital/income ratio in the UK, France, the US, etc., has changed little over the centuries aside from a major dip around World War I and World War II (a minor dip in the US). The message is that capital-driven inequality is alive and well, and not much different from the bad old days of Austen and Balzac.

2. The dip, however, has created the illusion that inequality is getting better–this is what fooled Kuznets. The wars displaced us from long-run trends but only temporarily.

3. It is true that change has occurred–but the change has been in the composition of capital, not its contribution to national income. Agriculture is less important than it was; manufacturing more important. Like the dip, changes in the composition of capital has distracted observers, causing them to overlook the long-term trends in inequality and the role of capital in those trends. These superficial changes in the form that capital takes prevents us from seeing that our society is fundamentally the same as Austen/Balzac’s.

4. It is noteworthy that in recent years, the contribution of housing to the composition of capital has increased dramatically. This has given rise to some debate about whether this is consistent with Piketty’s thesis. I haven’t tried to understand this debate. You can read about it here.

5. Piketty is often most interesting in his sly asides. In a few places, he distinguishes “rent-seeking” or “quiet” capital from “productive” or “risk-taking” capital. I look forward to seeing whether and how he develops this idea. But the implication is that beyond the capital/income ratio, there is a question of when capital is socially good and when it is socially bad.

Here is my last post on Piketty.

Asia’s Cauldron by Robert Kaplan

This book describes the turmoil in the South China sea, where China, the Philippines, Malaysia, Singapore, Taiwan, and Vietnam all vie for control over marine and mineral resources. The book consists of thumbnail sketches of each country’s history, economy, political cultural, and position with respect to the South China Sea, and describes the conflicts that have so far taken place. Kaplan takes a relentlessly realist view, arguing that the source of conflict is China’s rise, and the only way to stop the conflict is to maintain a balance of power, which means that the United States must both accommodate China and resist it.

Kaplan has little to say about international law. In a brief discussion of the Law of the Sea Treaty, he argues that if it weren’t for nationalism, the countries could divide up the resources peacefully. He draws a distinction between emotion and intellect–law fails because it can’t contend with emotion. But it’s an odd thing for a balance-of-powers theorist to say: the balance of powers also depends on states acting in their self-interest rather than succumbing to the fires of nationalism. The real problem with the Law of the Sea Treaty is that it does not divide up resources in a manner that reflects the power of countries in these region, and that is what has caused China to depart from the Treaty and insist on ad hoc negotiations with all the attendant risks. If governments lose control of the nationalism of their populations, all bets are off whether you are a realist or a legalist.

Podcast with Ilya Somin: Did President Obama violate the Constitution in the Bergdahl case?

Ilya says yes (based on what I think is an originalist or textualist interpretation of the Constitution), I say no. A few further comments/questions.

1. Assuming both presidents violated the Constitution, Ilya believes that Obama’s constitutional violations (Bergdahl, Libya) are more serious than Bush’s were (torture, surveillance). Although I said the opposite, I’m not sure. How does one measure the seriousness of a constitutional violation (as opposed to the unwisdom of the underlying action)? Bracketing the harm done by these actions, it seems to me that Bush’s would be harder to defend based on conventional legal reasoning (again, if you assume that the president has no authority to defy Congress), but I’m not sure why. Ilya also thinks Obama’s actions caused more harm to the nation than Bush’s did. I don’t know.

2. Ilya tells a story in which we learn over history that certain policies (torture, surveillance, prisoner exchanges, military interventions) are unwise or presumptively unwise. Congress incorporates this understanding into law. The president, because he is motivated by short-term political considerations, violates the law. This is why Congress should be given the power to control executive action. My view is nearly the opposite. To take one of many examples, I believe that Congress’ policy toward Guantanamo Bay reflects short-term political considerations. Or consider the debt limit conflict.

3. Ilya seems quite certain that the prisoner exchange was unwise as a matter of policy. Based on what? Prisoner exchanges (including exchanges with “terrorists”) have been routine throughout history. I believe that abandoning Bergdahl to his fate with the Taliban would have been a blow to national prestige and, I suspect, morale in the military. What would have been the political reaction if the Taliban had executed Bergdahl and then it leaked out that Obama had turned down an offer to make an exchange?

More on the California teachers case

Judge Treu argues that job security rules in California violate the right to education because “über due process” for teachers threatened with dismissal makes it impossible to fire incompetent teachers. He might reflect on this problem. If a strict scrutiny test is now used to evaluate job security provisions, then henceforth students (and interest groups that use them as vehicles) can challenge every change in the rules–and, I suppose, not only changes to job security rules, but also to the curriculum and all other features of schooling. If a school district decides to reduce the number of music courses to make room for computer science, or vice versa, it will now have to show that the change is tailored to a compelling government interest. Raj Chetty will be dragged out again to show the effect of music or computer science on future income.

Or consider again job security. One of the reasons that employers–and not just public schools, but regular commercial firms, as well as universities and many private schools–offer job security is that employees value it so much. They’re willing to accept a lower salary in return for job security. The employer faces a tradeoff: it loses some ability to control employees, but it saves a lot of money, which it can use for other things. And so with the schools. If California is no longer allowed to offer job security, it will either need to pay teachers more (leaving less money to spend on students) or hire fewer teachers. Is that going to advance education? The court has no idea, indeed doesn’t seem to have given any thought to these issues.

The long and the short of it is that a judge is in no position to make these tradeoffs. If courts demand that schools justify reforms (to say nothing of existing rules) using a strict scrutiny test, seriously applied, schools will be frozen–afraid to make any changes lest they are sued by thousands of disappointed students (no doubt financed by interest groups) who claim that their right to education has been violated.

The Teacher’s Union Case

Vergara v. State of California. I do not believe that this case will be affirmed on appeal; or if it is, I believe that it will be distinguished away to oblivion. Courts have had nothing but trouble trying to enforce “social rights” like the right to an education where those rights exist (in states like California, and in many foreign countries), and generally give up. To see why, consider Judge Treu’s holding that the two year probation period for new teachers results in discrimination against low-income and minority students who end up being stuck with grossly incompetent teachers whose incompetence could not be detected in such a short period. Yet he says that a 3-5 year period–which exists in most other states–would be adequate. Yet is there any evidence that a three to five year period rather than a two year period will enable authorities to screen out grossly incompetent teachers? None that the court cites. Nor does the court consider the benefits of a short period–that it might attract teachers who may otherwise go elsewhere (such as private schools).

Or consider his argument that the last-in-first-out rule (junior teachers are fired before senior teachers if layoffs are necessary) discriminates against low-income and minority students. LIFO systems are common in private industry, probably because, despite its defects, it rewards people who invest in the firm. Moreover, people value job security; if you don’t give it to them, you need to pay them more. The court does not provide any serious analysis of the benefits and cost of this system compared to realistic alternatives.

Finally, if, as the court says, these rules discriminate against low-income and minority students because school authorities funnel the grossly incompetent teachers whom they can’t fire to the weakest schools, isn’t the proper remedy to forbid this behavior directly? The court is never very clear whether it is enforcing a right to education (meaning a right not to be taught by a grossly incompetent teacher) or a right not to be discriminated against (a right not to be taught by a grossly incompetent teacher because you are a minority or are poor).

I don’t think that the California courts want to get into the business of running the public schools.

Piketty, chs. 1-2

I’m meeting with some colleagues over the summer to discuss Thomas Piketty’s new book, Capital in the Twenty-First Century. We’re reading two chapters every week, and I’m going to post my thoughts as we go along. You can think of this as a slow-motion book review.

Chapter 1 provides an overview, and Chapter 2 mainly discusses concepts, so it’s premature to comment on Piketty’s main argument. Indeed, as I go along, I’ll probably need to revise initial impressions in light of later chapters. That said, here are some comments on the first two chapters.

1. Piketty places himself in an intellectual tradition of economists who are concerned with growth and inequality, above all Ricardo, Marx, and Kuznets. Piketty praises each for focusing on these issues, for attending to empirical realities (particularly Kuznets who puts together the first usable data set), and for proposing a theory about the long-term trend of inequality. And he criticizes each for being, well, wrong, and specifically for extrapolating on the basis of inadequate data.

And my first thought is how these comments rebound on Piketty’s own project. One key issue is to what extent can he reliably extrapolate based on his own (much better data). Kuznets was wrong in extrapolating a downward trend in inequality on the basis of his limited data, and so we have to wonder about the basis for extrapolating an upward trend in inequality on the basis of Piketty’s significantly better but still limited data. One notable point is that Piketty extrapolates low long-term economic growth (a key variable in his theory) on the basis of many hundreds of years of history rather than going back to (say) the industrial revolution or later. Is that the right assumption?

2. I suspect, based more on the reviews than on what I have read so far, but partly on that as well, that we will see two Pikettys, or rather two theses:

a. The weak thesis: there is (contra Kuznets) no law that inequality declines with growth; it could go up or down. No one knows.

b. The strong thesis: there is a law that (also contra Kuznets) inequality will increase with growth.

I’m interested to see how this plays out. The weak thesis may contradict some popular right-wing misconceptions but as an academic theory it’s pretty, well, weak. As Piketty acknowledges, Kuznets himself did not consider his own law anything more than speculative. The strong thesis is much more exciting and important, but may end up being just as speculative as Kuznets’.

3. Another issue that I will revisit as I learn more is what exactly we should think about inequality. Piketty is not very clear about this so far. He hints that inequality could lead to very bad outcomes–revolutions, or an oligarchy, or social instability–or maybe it is inherently objectionable. A very old question is whether inequality is worth tolerating for the sake of growth if the bottom rises. Piketty is already clear that we can’t assume that this is the case; nonetheless, we need to know what we think about this before we propose reforms that might improve equality but suppress growth.

4. Finally, I was struck by an interesting observation that Piketty makes in passing about development. He argues that the development success stories–China, South Korea, Japan, and so on–benefited from free trade but not from foreign investment. Meanwhile, foreign investment has actually harmed many countries, especially in Africa and maybe Latin America, because poor members of the public resent foreign wealth in their midst and support populist governments that expropriate foreign investment and destroy the economy. Is there empirical evidence for this argument?, I wonder. If it’s right, it has important implications for how best to help developing countries (namely, don’t invest in them!).

Is government secrecy “presumptively illegitimate”?

Yes, says Jack Goldsmith in a comment on Kinsley’s review of Greenwald’s book on Snowden:

I think Kinsley is also wrong about the normative question of who should decide.  The government should not have the final say about which of its secrets is published. Government action undisclosable to the American public is presumptively illegitimate. We tolerate secrecy to some degree because it is necessary for national security.

He continues:

But in a constitutional democracy where the People ultimately rule, secrecy from the People is aberrant (for they cannot govern what they do not know), and it demands special justification (thus the presumption against its legitimacy).

All of this sounds like it must be right until you think about it for more than a few seconds. In fact, government secrecy is pervasive, and it goes well beyond national security.

For example, the government’s records about everyone’s finances, collected by the IRS and other agencies, are secret. So are medical records for people in Medicaid, Medicare, and the VA hospital system. Employment files for millions of federal employees including military personnel–secret. Public school teachers’ evaluations of our children–secret. Social workers’ judgments about clients–secret. Deliberations of government officials–regulators, legislators, judges–secret. Evidence gathered in criminal investigations never used at trial–secret. Trade secrets and other private information collected by courts and regulators–secret. Algorithms and policies used to decide who to audit and investigate, where to set up roadblocks or hide plain-clothes police officers–secret. Security arrangements in government facilities–secret.

All of this secrecy requires a “special justification,” of course. But so does disclosure. If the government discloses my financial records to The New York Times, it will be asked to provide a justification. Everything the government does needs a (“special”) justification.

Now, to be sure, there are varying levels of secrecy. Sometimes secrets can be discovered through litigation; sometimes they are disclosed for policy purposes; sometimes they are disclosed as a matter of course after the passage of time. Indeed, government secrecy is almost always temporary–sometimes lasting only weeks or months, sometimes lasting years. But as a matter of practice as well as formal law, most of what the government does is secret for the period of time during which it matters, and we seem quite comfortable with that fact.

How can the people “rule” when so much of what the government does is secret? There are several answers. One is that the people can make rough judgments about overall outcomes–the healthiness of the economy, the existence of war, etc.–and cast their votes on the basis of those judgments, without knowing the details of government action that produced them. Another is that because the government is itself composed of people, and those people are autonomous, secret actions that are highly controversial or objectionable are likely to be leaked, or even blocked before they are put into place. A third is that review systems are set up within government. Whether or not the right balance has been struck is a difficult empirical question, and not one that is answered by the slogans of the founders.

Minors illegally entering the United States and the Dream Act

unacc childrenThe New York Times reports an upsurge in the number of unaccompanied minors who are entering the United States illegally across the southwest border. I found the data here, and produced the graph above. The data are through May, and so for 2014 I indicate the actual number as well as an estimate through the end of the fiscal year.

What is the source of this wave of illegal migration? The obvious explanation, documented anecdotally in the Times article, is that people living in (mainly) Central America believe that the U.S. government will not deport minors, based on President Obama’s implementation of the Dream Act criteria and other immigration policies.

The administration blames rising crime rates in central America. But while Honduras remains a very dangerous place, homicide rates peaked in El Salvador and Guatemala years ago, and have been declining over the period in which the migration of unaccompanied minors to the United States rose.

Bond v. United States


The Supreme Court ducked the issue raised by this case–whether there are constitutional limits on the federal treaty power. I wrote about this case in Slate a while back. The question was whether a woman who tried to kill or harm her husband’s lover with some chemicals could be prosecuted under a federal statute that implemented the Chemical Weapons Convention. The majority doesn’t think that Congress intended the statute to reach ordinary criminal behavior–or won’t assume otherwise unless Congress is clear that it wants to disregard the normal division of police powers between federal government and states.

Justice Scalia (along with Alito and Thomas) think that the statute is clear (and maybe it is), and therefore the constitutional question cannot be avoided. And they think that the U.S. government lacks the authority to enter a (non-self-executing) treaty that regulates matters that fall within a state’s traditional police powers. (A self-executing treaty is presumably valid to the extent that Congress independently possesses the authority to regulate domestically.)

Why not? Because if the treaty power is unlimited, then the United States and Latvia could enter a treaty that requires each country to block people from carrying guns near schools. This is not my example but Scalia’s (no joke; see p. 13).

The United States and Latvia have not in fact negotiated such a treaty. Why not? Could it be that countries do not enter into treaties that regulate internal matters because they have no reason to do so?

Scalia does not identify any real treaty that he thinks the U.S. government entered into in order to evade constitutional limits on its powers. Surely, he doesn’t think that the federal government entered into the Chemical Weapons Convention so that it could prosecute people who attack each other with household chemicals.

The unstated target of the opinion is the international human rights treaty. Those treaties ban all kinds of police-powers-related stuff. The Senate ensured that they were not self-executing, but I suppose that the next time Democrats control the government, they could pass laws that implement them. At least in theory, a Democratic sweep could result in ratification of a human rights treaty that bans the death penalty, and then implementation of it through a federal statute. Not likely to happen anytime in the next few decades if ever, but you can’t fault Scalia for failing to think ahead.

Putin’s triumph in Crimea: implications for international law

As the dust settles on the Ukraine crisis, we should ask how it might affect our understanding of international law. Various  theories of compliance with international law must contend with the fact that Russia violated international law and got away with it.

No one has ever argued that countries never violate international law. The argument is always that if they do, they incur a cost above and beyond the costs inherent in the activity that constitutes a violation. Violation of the law itself brings with it special harms to the violator. Is that the case with Russia?

1. Retaliation? The West imposed sanctions on Russia but by all accounts those sanctions were trivial.

2. Reputation? It is possible that Russia’s reputation has suffered. Will countries now be less willing to enter treaties with it? Unfortunately, it is impossible to tell. But Russia recently entered a Eurasian Economic Union. The other two members don’t seem bothered by Russia’s law violations. Nor does China. Or even Germany.

3. Utility losses? Many theories, if taken literally, suggest that Russian officials, perhaps Putin himself, must have overcome reluctance to violate norms that they have internalized because those norms are fair, or network or conformity effects or some such thing exist. Any evidence for this? No, but also hard to imagine how we would find any.

It is simpler to recognize that international legal norms outstripped the interests of countries, and so there was no incentive to uphold them.

Did Putin blink?

Thomas Friedman sums it up:

Putin’s seizure of Crimea has weakened the Russian economy, led to China getting a bargain gas deal, revived NATO, spurred Europe to start ending its addiction to Russian gas and begun a debate across Europe about increasing defense spending. Nice work, Vladimir. That’s why I say the country Putin threatens most today is Russia.

Except that Russia’s economy was not weakened–the stock market was trading in the 1400s before the crisis and is trading in the 1400s today. The ruble is roughly unchanged, a hair lower. No one really knows whether China got a bargain or not; too much depends on unknown contingencies. But it is clear that Russia has benefited from closer relations with China. NATO hardly seems revived, the European countries are in turmoil and divided in their response to Russia, and as dependent on its gas as ever. Defense spending is not likely to increase, but even if it did, Russia would hardly care since it has no plans to invade Poland or Germany, and knows that they have no plans to liberate Crimea or provide military aid to Ukraine.

Against these trivial costs if that is what they are, consider Russia’s gains. It swallowed up Crimea in a flagrant violation of international law; it has ensured that the Ukraine government, whether nominally pro-Western or not, will give great weight to its interests; and, most important, it has sent a credible threat to all its neighbors that they will suffer if they  do not give deference to Russia’s interests, while making clear to the world that the West is weak and divided. Meanwhile, the establishment of the new Eurasian Economic Union is a “diplomatic triumph” for Putin, according to The Economist. And Western countries will seek a return to normalcy in their relations with Russia as quickly as possible, hoping that no one will remember Crimea.

Saying that Putin “blinked” is like saying that the boy who stole a cookie from a cookie jar blinked because he took only one cookie rather than all of them.

Presidential power and national security: the prisoner exchange

A nice illustration of the limits of congressional power. Congress passed the National Defense Authorization Act of 2014, which provided that if the president wants to transfer Guantanamo detainees to foreign countries, he must give Congress 30 days notice, so that it can raise a stink. The president refused to do so before the prisoner exchange since the negotiations took place in secret, and he could not afford the risk that even if he could inform Congress secretly, a leak would occur.

The transfer may have violated the substantive provisions of the statute as well. The statute provides that a detainee can be transferred only if he is no longer a threat to U.S. national security or the transfer is pursuant to a court order. But there was no such court order, and the five Taliban members who were transferred appear to be dangerous people. So much for the statute.

As Marty Lederman notes, the president paved the way with a signing statement that said that the law conflicts with “separation of powers principles.” A nice echo of the Bush administration, and a reminder that the imperial presidency is bipartisan.

The Executive Unbound: Climate edition

In The Executive Unbound, Adrian Vermeule and I argued that the Madisonian system of separation of powers has collapsed, and that the executive is mainly constrained by politics rather than law. The Obama administration has produced striking new examples–almost natural experiments, where it started by seeking a law from Congress then gave up and implemented the policy through executive fiat. First was the Dream Act, which would have legalized certain younger undocumented migrants. Congress refused to pass it, and Obama implemented it anyway by ordering ICE to comply with the rules that were never enacted.

And now it is climate. From the news sources I see, the EPA regulations to be announced Monday create the same kind of cap-and-trade system envisioned by the Waxman-Markey bill, which was also not enacted by Congress. The EPA regulations do not encompass as  wide a range of pollution sources as the bill did, but the legal authority behind them should give EPA the power to issue additional regulations that do just that.

Vietnam likely to join the Philippines’ legal action against China

A lot of puzzles here. China, the Philippines, and Vietnam are parties to the UN Convention on the Law of the Sea, which provides for arbitration in case of disputes under that treaty. The Philippines initiated an arbitration against China in 2013 over the Spratly Islands area. Vietnam now has signaled that it will join that arbitration. The overall goal seems to be to obtain an authoritative rebuke of China’s broad claims over the South China Sea.

China has refused to participate in the arbitration. It has not exercised its right to appoint one of the arbitrators. It declares the arbitration illegitimate. Yet it is bound to arbitrate under the treaty, and the arbitration can proceed without it, as Julian Ku explains. Sean Mirski, writing in The National Interest, argues that nonetheless China fears an adverse judgment:

Yet despite the case’s practical insignificance, China has been frantically—and unsuccessfully—trying to stop it from proceeding. In January 2014, Beijing reached new levels of desperation, and allegedly offered to withdraw its ships from Scarborough Shoal if the Philippines would delay filing its memorial in the case. While that proposal should be viewed with suspicion—after all, Beijing has reneged on deals relating to the shoal before—it is nevertheless an extraordinary offer if true: China was willing to give up control of territory over which it claims sovereignty just to avoid a bit of bad publicity. So while China won the battle for Scarborough Shoal, it may have lost the war, all because Manila was able to find something that Beijing valued even more than the territory: its reputation for complying with international law. To China, its reputation is intimately connected to its long-term growth strategy, and the country cannot afford to advertise its total non-compliance with international law.

We will see. What is odd is that China was free to opt out of compulsory jurisdiction under the UNCLOS. Unlike many other countries, it didn’t opt out when it ratified the treaty. Could it now? I assume so.

Update–It was pointed out to me that UNCLOS parties can opt out of compulsory jurisdiction only with respect to some disputes, and not disputes over EEZ boundaries, sovereignty over islands, and the other matters that are at stake in the South China Sea. China did opt out of the compulsory jurisdiction for the unrelated matters in 2006. So if it loses the arbitration, it can only disregard the judgment. It could also withdraw from UNCLOS.

China v. the Philippines

Philippines summons China's ambassador over South China Sea standoff

The New York Times published an article a few days ago describing the eviction of Philippine fishermen from the waters around Scarborough Shoal by the Chinese coastguard. This is yet another territorial conflict between China and its neighbors. China and the Philippines also dispute the nearby Spratly Islands.

The dispute over the Scarborough Shoal is a bit murkier than the others. Both China and the Philippines claim that they have exercised sovereignty over the area in various ways, going back decades. The Philippines seems to me to have the better argument but I have not looked at the materials closely. Otherwise, the fishing waters clearly fall within the Philippines Exclusive Economic Zone, as they lie within 200 nautical miles of the mainland (or technically the relevant baselines). Here is an academic article that, however, focuses on the Spratly Islands.

One question that arises is why China and its neighbors are suddenly having so many conflicts that are violent or near-violent. The conflicting territorial claims have existed for decades but violence has been sporadic until recently (aside from the China-Vietnam War). M. Taylor Fravel argues that China seeks to “consolidate” its claims by keeping other countries out of disputed areas. That would explain why China reacts aggressively–by sending in ships and planes–typically after the neighbors pass some law or take other actions that make clear that they consider their claims valid. But why are those countries provoking China in this way, and why now?

As Fravel suggests, China’s strategy is one of delay while claiming that the disputes are unresolved. The neighbors, by contrast, claim that there is no dispute and their claims are valid. China’s strategy thus seems more passive. And the reason is surely that time is on China’s side. China has grown more rapidly than all of its neighbors and looks likely to continue to do so for the near future, at least. As it becomes more dominant–both economically and militarily–its neighbors will be in a worse position to counter its claims in their shared waters.

Thus, it’s in the interest of those neighbors to settle the disputes sooner rather than later–so that they can establish populations and structures on, and acknowledged legal title, to these islands; plus to the minerals and fisheries. China will have difficulty dislodging claims backed by possession and variants of it even when it is considerably more powerful. The question of timing remains hard to answer, but it may be that only recently has it become obvious to the neighbors that China’s economic and military dominance will in the coming years allow it to prevail in any of its legal disputes, and so it is best to get those disputes settled sooner rather than later even at the risk of provoking military conflict.

Map and photo from The Telegraph.

The conflict between China and Vietnam: law and power

Earlier this month, China sent an oil rig to waters off the Paracel Islands in the South China Sea (upper left box on the map). Vietnam sent ships to intercept the oil rig, but they were repelled by Chinese naval vessels. In Vietnam, outraged citizens rioted, destroyed Chinese property, and killed some Chinese nationals. China has threatened unspecified sanctions against Vietnam, apparently moving troops to the border, while Vietnam has moved to bring the riots under control.

The Paracel Islands are within Vietnam’s 200 nautical mile Exclusive Economic Zone and on its continental shelf, so minerals in the area belong to Vietnam under the UN Convention on the Law of the Sea, which both Vietnam and China have ratified. What is the basis of China’s claims? In fact, China has never provided an official legal justification for its claims. Two scholars, Florian Dupuy and Pierre-Marie Dupuy (gated), who scoured Chinese sources have suggested the Chinese claims are based on “history”: that China has always controlled the South China Sea, or the islands that dot it. But, as they explained, this type of argument is not recognized under UNCLOS or traditional principles of public international law.

China has not backed down but instead seems to be considering economic sanctions against Vietnam, which is highly dependent on Chinese trade, much more than China is on Vietnam. See this graph.

A terrible decade for the Executive Branch in foreign relations cases before the Supreme Court?

That’s the conclusion of Ingrid Wuerth, writing at Lawfare. And she singles out Chief Justice Roberts as one of the main skeptics of an argument that I made with Cass Sunstein in 2007. We argued that courts should defer to the executive branch on issues touching on foreign relations, just as they do under Chevron and related doctrines in (domestic) administrative law cases. Our argument was normative, based on the executive’s responsibilities and expertise, but we argued that it was consistent with the cases (a widespread view at the time). Wuerth notes that over the last decade the Court  has discounted the executive’s views in numerous cases, including Kiobel, Morrison, Medellin, BG Group, and Zivitofsky, plus some early war-on-terror habeas cases.

All of this raises some interesting questions. One is whether the Court has in fact cut back on executive power or just hasn’t advanced it as much as the executive would like. A rule that the executive always wins is not the same as a rule of broad but not unlimited deference.

But assuming Wuerth is right, what’s the explanation? Some hypotheses:

1. The executive has lost prestige, thanks to its excesses against Al Qaeda, its failures in Afghanistan and Iraq, and perhaps even a perception that it has gone too far domestically.

2. The Court has gained confidence despite declining popularity, maybe because some aggressive decisions have not spurred pack-the-court style backlashes or because the executive and legislative branches are too divided to counter the Court.

3. The anti-executive tendency is the result of temporary partisan alignments. The Court was somewhat more liberal during the Bush administration and so perhaps uneasy with some of his policies; now right-wing justices are looking for ways to undermine Obama.

4. The justices share the public’s view that the U.S. should withdraw from many of its foreign commitments and turn inward. Weakening the executive is a step in that direction.

5. Originalism/formalism/textualism is in the air, and ( as scholars have long agreed) the modern system of executive power does not draw much support from the text of the Constitution or founding-era understandings.

The right to be forgotten

That’s the colorful term in Europe for the right to eliminate unwanted information about yourself on the Web. The European Court of Justice enforced that right Tuesday, holding that a Spanish data privacy authority acted properly to compel Google to remove from its search results links to old articles about a Spanish lawyer’s debt problems.

Jonathan Zittrian criticizes the ECJ’s ruling as being both “too broad” and “curiously narrow” because it could censor the republication of public records and because it does not force the newspaper that Google linked to do take down its own pages. But that’s because the ECJ endorsed a balancing test–your privacy interest versus the public’s interest. It sensibly recognized that people get their information about others by using search engines, not usually by looking back through newspaper websites. Search engines are a greater threat to one’s privacy, while newspapers shouldn’t be forced to respond to complaints about reports when they are just doing their job.

My argument can be found on Slate.

John McCain, Schmittian Humanitarian

It’s a new category in political philosophy. His proposal for rescuing the Nigerian girls, from the Kansas City Star (with my annotations):

‘If they knew where they were, I certainly would send in U.S. troops to rescue them, in a New York minute I would, without the permission of the host country,’ McCain said Tuesday. Referring to Nigeria’s president, McCain added: ‘I wouldn’t be waiting for some kind of permission from some guy named Goodluck Jonathan.’ [!!]

… McCain, the 2008 Republican presidential nominee, said the United Nations’ charter gives the United States, the authority to mount a military rescue of the girls. [Actually, no.]

‘It’s a crime against humanity to kidnap hundreds of young girls,’ McCain said [maybe]. ‘That gives any nation, if they can, the license to stop a crime against humanity [no it doesn't]. That’s the United Nations charter [no, it's not], not John McCain’s policy. It’s the same reason we should have, if we could have, gone in and freed the people of Auschwitz and Dachau.’

McCain said Obama shouldn’t worry about whether the Nigerian government would approve or disapprove of a U.S. military intervention into the country’s affairs. The president didn’t seek approval from Pakistan before he sent U.S. troops into that country to get Osama bin Laden.

‘I would not be involved in the niceties of getting the Nigerian government to agree, because if we rescue these people, there would be nothing but gratitude from the Nigerian government, such as it is,’ McCain said. [Like in Iraq, or maybe Afghanistan?]

And Obama shouldn’t worry about what the Senate and the House of Representatives would say if he exercised his authority as commander-in-chief and sent American troops into Nigeria.

‘If we rescued these young girls, an appetite for that?’ McCain said ‘It’d be at the high point of the president’s popularity.’ [Carl Schmitt would be proud.]


Reply to Coates’ Cost-Benefit Analysis of Financial Regulation: Case Studies and Implications

John Coates wrote a valuable paper criticizing the use of cost-benefit analysis for financial regulations. Glen and I have now written a response, which is posted on SSRN. We make six arguments:

1. The uncertainty of valuations–the major reason Coates cites for his opposition to financial CBA–is not an argument against CBA but a reason to support research to produce better valuations.

2. The “centrality” of the financial system, which for Coates is a reason not to use financial CBA, is in fact a reason for using it. The greater the impact of a proposed regulation, the more likely that an expensive CBA is cost-justified.

3. Against Coates, we argue that the focus on people (rather than things) does not distinguish financial regulation from other types of regulation.

4. Also against Coates, we argue that the speed with which financial markets change does not distinguish it from other types of regulation for which CBA is used (notably, antitrust regulation).

5. Ultimately, the objections that Coates raises to financial CBA are really objections to CBA (in general) or even regulation (in general). They are too broad to single out financial CBA.

6. Alternatives to CBA proposed by Coates–reliance on “expert judgment” or “conceptual CBA”–are either circular or not that different from CBA after all.

All that said, we share Coates’ skepticism about judicial enforcement of financial CBAs, and prefer instead to see development of institutional capacity in the executive branch.

Putin as the “Good Hitler”

I doubt that this Putin defender did Putin any favors by comparing him to the “good” pre-1939 Hitler.

The article attacked [a critic of Putin] as “hell-spawn” and suggested that if Hitler had only stopped in 1939, he would be considered a “good Hitler.”

“One should distinguish the difference between Hitler before 1939 and Hitler after 1939 and separate chaff from grain,” Mr. Migranyan wrote. If Hitler had stopped after the “bloodless” reunification of German lands, including Austria and the Sudetenland, with the mother country, “he would have gone down in the history of his country as a politician of the highest order.”

The analogy here is that Putin is merely unifying Russian lands and not invading foreign countries for predatory reasons, which makes him a great statesman rather than, um, a Nazi.

I have said before that I think that Putin is punishing Ukraine for turning west and in this way issuing a warning to other neighbors. This is realpolitik without ideology. The “good Hitler” view is that Putin is an ideologically committed nationalist who seeks to create a greater Russia. The views are not the same. The nationalist will want to purge Russia’s minorities as well, or at least give them second-class status (or I suppose third-class status to the extent their status is already second-class); and will want to annex Russian-dominated territories of even friendly countries. The pre-1939 Hitler was not good, of course; the Nuremberg laws and Kristallnacht were in the past, and invasion of Eastern Europe and enslavement of Slavs were always part of the plan. He created a dictatorship, slaughtered his political opponents, and bullied his neighbors. Hitler’s militant style of nationalism couldn’t stop at the borders of German-speaking lands. Maybe Russian nationalists too will want to settle Russians in other areas.

Whatever his intentions, Putin has unleashed this virulent, self-destructive style of nationalism. Let’s hope he can (and wants to) put it back in the bottle.

The Yugoslav wars: lessons for Ukraine

My former student Matthew Parish, an expert on the conflict in Yugoslavia, points out the parallels in a very good article. Does the West’s intervention in the Yugoslav civil war provide a basis for a more muscular intervention in Ukraine, or the opposite? That intervention, though late and halfhearted, ultimately restored peace, but it also exacerbated conflict in the short term and may have planted the seeds for further conflict in the long term. Bottom line:

Proxy wars are a common cause of ethnic conflict. Serbia stoked foment in Bosnia and Croatia, as part of a vision for an enlarged Serbia-dominated territory. Russia is intervening by proxy in Ukraine, through support for the militia of a so-called People’s Republic of Donetsk. … The suffering caused by proxy state aggravation of ethnic hostility is immense. Nevertheless the international policymaker must be realistic about what can and cannot be achieved through intervention. Ethnic hostilities, whether between Bosnian Muslims and Serbs, Russians and Ukrainians, or Sunni and Shi’a, once evoked become phenomenally hard to quell. In time the inter-ethnic violence they engender precipitates permanent political changes. Hand-wringing and ineffective western foreign policy instruments, such as sanctions and diplomatic isolation, matter little when weighed against the strategic goals mandated by the Realpolitik of the countries with real interests in the dispute.

This, at its heart, is the most compelling argument against western humanitarian intervention. Humanitarianism is a laudable motive, but no substitute for raw strategic interests. Absent genuine geopolitical interest in another country’s conflicts, the West should stay out of others’ civil wars lest it risks exacerbating them and contributing to chaos through elicitation of false hopes. This may be the most important lesson from the Balkan wars of the 1990s for the ethnic conflicts and civil wars infecting the world in 2014.

Why hasn’t NHTSA advised GM owners to park their cars?

Remember the scandal over the faulty GM ignition switch? If you believe Congress and the press, GM’s Ions and Cobalts are rolling death traps. I argued in Slate that the statistics show they are not. The incremental effect of the faulty ignition switch on the risk of getting killed in an accident is close to zero. Two members of Congress asked NHTSA why it hadn’t told people to stop driving the cars until they’re repaired. In response NHTSA explains:

gm recall

In other words, the cars aren’t dangerous. So to all appearances this really was a classic Kuranian-Sunsteinian availability cascade.



Who’s the hypocrite? South China Sea ed.

Map of South China Sea

Source: BBC

While all eyes are turned to Ukraine and Nigeria, China’s disputes with its neighbors continue to fester. The latest is the ramming of Vietnamese vessels by Chinese vessels in the South  China sea. China claims a big chunk of that body of water–meaning the unoccupied islands on it and the minerals underneath it. The U.S. argues, very plausibly (see map  above), that China’s claim violates the UN Convention on the Law of the Sea, which limits coastal countries to undersea minerals only a few hundreds of miles out rather than the vast distances that China claims. So do China’s neighbors–Vietnam, the Philippines, Malaysia. But the funny thing about the U.S. argument is that the United States itself never ratified UNCLOS, instead declaring some parts of it that it liked “customary international law,” not the rest. So who’s the hypocrite?

No one. Not China, not the U.S. The villain is UNCLOS itself,  which attempts to settle all the world’s maritime disputes in a single multilateral document. (Well, almost all; it punts a few of them.) The problem is that territorial and maritime disputes in different parts of the world are not susceptible to simple principles like equidistance lines and uniform territorial seas and economic zones. They are all local and contextual. And unlike domestic legislation, there is no practical way to amend and update it; it’s frozen in stone. The U.S. probably should ratify UNCLOS but little pieces of the treaty bother important constituencies and so the executive branch has reasonably announced its acceptance of the rules that are not controversial. China should probably not have ratified the treaty, which lays down rules inconsistent with its claims–the treaty not surprisingly favors countries with huge coasts like the U.S. unless, as in China’s cases, other landmasses lie a short distance away–but back in the 1990s it was intent on being a good citizen while it was accumulating power. Now the government has little choice but to selectively violate terms it can’t live with.

Here’s more on the topic.

The New World Order Is Dead

That is the (partial) title of a piece I wrote for Foreign Policy. Every so often I make this argument; it works better when the world seems to be crumbling around us. If the center holds, consider it a prediction. May be lurking behind a pay- or registration-wall.

The argument is that in the 1990s, it appeared that there was emerging a “new world order” characterized by (1) international tribunals (along with the Security Council), (2) human rights, (3) international criminal justice, and (4) free trade and foreign investment protection. This was a liberal order, which led to the question why non-liberal countries would comply with it. In the legal academy, all answers were suggested (“networks,” “internalization,” “naming and shaming” by NGOs, “fairness,” and so on) except the obvious one, which is U.S. power. Countries acquiesced in an order because they feared the consequences of dissent. Now that U.S. power is declining, all the pillars of the new order except trade are collapsing. Odd, too, how in retrospect all those scholars, acting entirely independently and in good faith, seem like the U.S. government’s in-house ideologists.

The U.S. Constitution is too hard to amend

Or so I argue in Slate, provoked by Justice Stevens’ proposal to amend the Constitution so as to reverse various losses he suffered when he served on the Court. Whatever you think of Stevens’ arguments, amendment just isn’t going to happen. There is an interesting question how exactly to measure “amendability.” Here is a good paper on this topic by Tom Ginsburg and James Melton. It is nonetheless clear that the U.S. is an outlier.

Justice Scalia’s counterideological snafu

How is it possible that Justice Scalia and his clerks missed the error in his statement that the EPA had tried to use cost-benefit analysis to justify the regulation at issue in Whitman? How did the other justices and their clerks miss it, too? The answer is that the mistake made no difference whatsoever to the legal analysis. It signifies nothing about anything except that people sometimes make mistakes.

One of the many ironies of the argle-bargle in the press and the blogs–aside from the several listed by Jonathan Adler–is that everyone gets the political valence of the mistake wrong. The narrative is that the mistake exposes once and for all what we knew all along: that Scalia allows his political biases (or even partisan biases) to guide his legal reasoning. But Scalia was objecting to EPA’s use of cost-benefit analysis–a decision-procedure normally favored by conservatives and loathed by most (although not all) liberals–when the statute (in his view) did not allow for it. Scalia’s preferred resolution of this case would have sent the regulation back to EPA for revision, it is true. But it would also have required EPA in the revised regulation to impose stricter controls at greater cost to industry.

Indeed, the majority makes just this point. In response, Scalia denies that his interpretation would lead to overregulation, but I confess I can’t follow his convoluted reasoning. If the EPA, wielding cost-benefit analysis, chose the most efficient regulation, then any other regulation must by definition be less efficient (or I suppose equally efficient, which I think is Scalia’s limited claim, but that also seems quite unlikely). If downstream states are going to reach attainment at higher cost to upstream states, then this cost will be passed on to industry in upstream states. Because statutes are written in broad terms and directed at reducing harmful activity, CBA typically leads to less regulation than that required by a literal interpretation of a statute, not more. That’s why liberals have traditionally been hostile to it.

EPA v. EME Homer City Generation: a cost-benefit presumption?

Many years ago, Cass Sunstein wrote a paper called Cost-Benefit Default Principles, which argued that regulatory agencies are free to use cost-benefit analysis when statutes are ambiguous. EPA v. EME Homer City Generation seems to confirm this thesis, but arguably goes beyond it, at least if you accept Scalia’s argument that the text is clear and clearly forbids EPA to take account of cost. The case may instead stand for the existence of a stronger cost-benefit presumption that entitles a regulator to use cost-benefit analysis unless Congress explicitly forbids it to. Thus, a “gap” is not needed. The justification would be that Congress ought to direct regulators to take account of costs, perhaps that cost-benefit analysis is a quasi-constitutional commitment, so statutes should be “interpreted” as much as possible to avoid conflicting with this commitment.

Cost-benefit analysis as a constitutional commitment, quasi- or other? Could there be a justification for such a claim? Possibly. Consider the longstanding worry that the New Deal regulatory state gave excessive discretion to regulators, and the defunct efforts to rein them in with the nondelegation doctrine. Scalia’s insistence on deferring to the text, however loopy the text might be, is one possible response, but a more realistic one, I think, is rather to confine regulators’ discretion by insisting that they use cost-benefit analysis. The Court did not go quite so far, but took a step in that direction.

Ukraine and the International Criminal Court

Ukraine has asked the ICC to investigate whether the government of President Viktor Yanukovich committed crimes against humanity from November 2013 until the collapse of his government in February. Although Ukraine has not ratified the Rome Statute (and may indeed not be permitted to under its constitutional law), it has take advantage of a provision of that treaty that allows the ICC to investigate crimes in non-member countries that request its aid.

Ukraine should be careful what it wishes for. If the ICC takes the case (which, for various technical reasons, it may not), Ukraine might find itself in a position similar to that of Uganda. Uganda also referred its conflict with a rebel group, the Lord’s Resistance Army, to the ICC, which accepted jurisdiction. But when Uganda tried to settle the conflict under its amnesty law, the ICC refused to withdraw arrest warrants it had issued. Critics now blame the ICC for prolonging the war. Whatever the merits of their criticisms, the Ugandan government is certainly unhappy with the ICC, calling it a tool of imperial powers. For a damning indictment of the ICC’s involvement in Uganda, see this piece by Adam Branch (who also argues that the ICC has helped legitimate Uganda’s repressive government by agreeing to investigate only the rebels).

Similarly, if the ICC gets involved in Ukraine, and issues arrest warrants against Yanukovich and/or his supporters or members of his former government, the Kiev government may be unable to offer terms of settlement that the other side will agree to, while angering the Russians and for that matter everyone who wants to see the conflict end. Here’s betting the ICC will say “thanks but no thanks.”


Conspiracy Theories & Other Dangerous Ideas by Cass Sunstein

There is much of interest in this excellent new book by Cass Sunstein. The preface contains a defense of the different roles of the academic–to challenge conventional wisdom–and the public official, who must often keep his opinions to himself for the sake of operating in a team. People like Sunstein who move between academic and public roles face numerous challenges–both from the public, who see in the academic writings evidence of ideological extremity and from (naive) colleagues, who expect the advocate of (impractical) X to champion it public life even if it would bring down the ship of state. These divergent reactions are difficult to handle; few people handle it as gracefully as Sunstein has. A whole book could be written about those less graceful individuals, many of them also law professors, who traveled between law schools and various recent presidential administrations.

A few comments on Chapter 1, on conspiracy theories, which has received outsized attention:

1. Are conspiracy theories important or are they just little clumps of seaweed in the vast and bottomless ocean of public ignorance?

2. I can’t help thinking that there would be even more conspiracy theories ruining public life if people heeded calls from academics and politicians to become more involved in political debate.

3. Can “cognitive infiltration” (an unfortunate choice of words, I think, with its unnecessary sinister overtones) really work? The idea is that anonymous government agents could penetrate chat rooms and answer craziness with reason. But conspiracy theories seem to answer a deeper need than the desire for truth. N.B.: I suspect that government officials, on their own time, and not as part of formal programs, already do this, leading one to wonder how often Man-Who-Was-Thursday scenarios erupt in these chat rooms.

Like everything Sunstein writes, this book is well worth your time.

Paroline v. United States

A good case for a class on remedies, it features an unusual harm. “Amy,” a victim of child pornography, is emotionally traumatized when she learns that thousands of people view images of her on the web. Paroline is one of those people, and she seeks restitution from him. It’s not entirely clear to me that he even contributed to the harm, but if he did, determining how much money he should pay her on account of that contribution is a challenge. What is unusual about Amy’s injury is that it requires a large number of contributors but above a threshold additional contributors do not increase the harm. Some thoughts on the case at Slate. There is a good academic paper on the topic, making a similar argument, by Jenna Sheldon-Sherman.

Anne-Marie Slaughter: How to save Ukraine

First, attack Syria (?):

It is time to change Putin’s calculations, and Syria is the place to do it…. Equally important, shots fired by the US in Syria will echo loudly in Russia. The great irony is that Putin is now seeking to do in Ukraine exactly what Assad has done so successfully: portray a legitimate political opposition as a gang of thugs and terrorists, while relying on provocations and lies to turn non-violent protest into violent attacks that then justify an armed response.

Second, send covert U.S. troops into Ukraine:

Putin may believe, as Western powers have repeatedly told their own citizens, that NATO forces will never risk the possibility of nuclear war by deploying in Ukraine. Perhaps not. But the Russian forces destabilizing eastern Ukraine wear no insignia. Mystery soldiers can fight on both sides.

Why would this work?

Putin … measures himself and his fellow leaders in terms of crude machismo.

Then maybe a hot-pepper eating contest between Putin and Obama would do the trick?

That’s all I can think of to say. Or you could read Robert Golan-Vilella.

How many ways can a Supreme Court justice say nothing at all?

From Justice Kennedy in Paroline v. United States:

1. A “court should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.”

2. “The required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role.”

3. A “court must assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses.”

4. A court should “set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant’s conduct in producing those losses.”

Kirkland and Ellis Distinguished Service Professor, University of Chicago Law School