Who is the meanest supreme court justice of all time?

Scalia, right? Nope. Scalia barely cracks the top ten, behind Alito, Kennedy, Thomas, and even Breyer. The actual measure is “friendliness” rather than meanness, and these guys have among the lowest friendliness scores, which is the percentage of positive words used by justices in their opinions minus the percentage of negative words. (Negative and positive words taken from here.)

The friendliness score comes from A Quantitative Analysis of Trends in Writing Style on the U.S. Supreme Court, a new paper by Keith Carlson, Michael Livermore, and Daniel Rockmore, and it contains all kinds of other fun stuff, like the influence of law clerks on judicial writing style. The authors are pioneers in the use of textual analysis to analyze supreme court opinions. One of their findings is that opinions of modern justices are a lot less friendly than the opinions of earlier justices. (They are also written at a lower grade level.)

The friendliest justice–by a long shot–is John Jay, reflecting perhaps his experience as a diplomat. But he wrote very few opinions. I’m therefore handing the title to #2, Oliver Ellsworth. And the meanest? William Johnson, who served from 1804 to 1834. According to Wikipedia,

In his years on the Court, Johnson proved to be a very independent mind: while the Chief Justice, John Marshall, was able to steer the opinions of most of the justices in most cases, Johnson still developed a reputation for dissent.

There you go.

Guest Post: More on absolute bans on torture

Guest post by Ryan Doerfler, Bigelow Fellow and Lecturer in Law, The University of Chicago Law School:

I too find the position Eric discusses (absolute prohibition against torture plus judicial leniency for justified instances) puzzling, or at least frustrating.

My sense is that there are two explanations for the position.  The first, which Eric discussed, has to do with incentives or, as I would put it, epistemic reliability (maybe these are the same at the end of the day).  The argument here is an application of the more general argument for rule utilitarianism: Because individuals will overestimate systematically the considerations speaking in favor of particular sorts of action (e.g., torture, lying) if allowed to reason on a case-by-case basis, better to adhere to absolute prohibitions as a bulwark against bad reasoning.  As is obvious, one would have to do the math to determine whether an absolutist regime is preferable to a case-by-case regime in a given instance since there will be errors under both.  The suggestion of judicial leniency in the case of torture indicates that even those advocating an absolute prohibition do not think the math comes out favorably if the prohibition is really absolute.

Thinking about non-repeat players, I guess I do not think of the suggestion as arbitrary.  Plausibly, the tendency to overestimate the considerations speaking in favor of torture are greater in the heat of the interrogation chamber than in the cool of the courtroom.  And, so long as would-be torturers are unaware of the prospect of judicial leniency (plausible, in the case of non-repeat players), one might get decent results under this regime (e.g., one would torture only when the apparent need to torture was so great as to warrant personal sacrifice) without human sacrifice.  This is all speculative, of course, but at least not implausible.  The problem is that, in the real world, would-be torturers are almost all repeat players (or at least members of repeat-play institutions).  Hence, the prospect of judicial leniency would be well known.

The other explanation for the position, I think, has to do with the impulse to preserve both absolutist (e.g., ‘Thou shalt not kill’) and non-absolutist (‘Thou shalt not kill, unless …’) moral intuitions.  My sense is that this impulse has not to do with accuracy or expected outcomes but instead with bedrock intuitions about moral decency or something like that (e.g., a common attitude is that one should cringe at images of killing or torture, even if the killing or torture in question is justified).  That impulse manifests in various places in moral philosophy.  Where it is plainest, though, is in discussions of so-called “dirty hands” cases, i.e. cases in which a particular action is justified but somehow morally problematic, regrettable, etc.

I have always found this idea hard to understand (e.g., If an action is justified, how could it be regrettable?).  But, for whatever reason, it has real popular appeal.  One high-visibility, non-scholarly example is the television show 24.  On the one hand, 24 is written in such a way that the audience can be expected to think of Jack Bauer’s actions as justified (as Justice Scalia said, what jury is going to convict him?).  On the other hand, the show is written such that (and the showrunners are expressly of the view that) Jack Bauer must suffer so that the rest of us can be safe.  I suppose one could interpret this as a metaphor for the psychological costs torturers must incur, which are real.  More plausible, though, is that the underlying attitude is that Jack Bauer in some way should suffer for what he has done, even though what he has done is justified.  Again, I think this is confused.  But it is a pervasive sentiment.  What Jack Bauer does is right … but also wrong.  Good … but also bad.  Alas.

[N.B.: there is an ancient literary and artistic theme that the person who saves the community by breaking its norms must himself be expelled from the community, or otherwise suffer and be made an outcast. This person must be a hero who follows a higher morality and accepts the sacrifice. I think philosophers like McMahan unconconsciously reproduce this logic, not realizing that institutions cannot themselves be designed to permit the exceptional act. In real-life institutions, if you tell agents they will be punished for doing X, and they believe you, they won’t do X. — EP]

Uber and the law of large numbers

An interesting article here in the NYT about the “Uber model.” Uber drivers enjoy flexibility–they can drive whenever they want–partly because the app connects them to customers but mainly because there are so many drivers. People who want rides can get them because of the high probability of a nearby riderless Uber car. The author argues that this model can be applied to many other settings, including legal services and medicine. A doc with a bit of spare time can make himself available via app and you might consult him if you happen to be nearby.

The relevant law here is not the law of taxi or doctor licensing but the law of large numbers. It’s what ensures that someone is nearby when you need him, even though drivers and doctors have all kinds of other unpredictable commitments, given a large enough pool. I tell my students that the most important law in banking regulation is the law of large numbers. It’s what makes it possible for a bank to offer money in a steady way to borrowers when the bank’s own lenders–short-term depositors–might need their money on a moment’s notice. The Uber model is, at bottom, the bank model.

If torture can ever be morally justified, why should the ban on it be absolute?

In the NYT, the philosopher Jeff McMahan argues that torture is almost always morally wrong, but he believes that in certain cases–when it is used to prevent a greater evil like killing or mass killing–it is morally permissible or even morally obligatory. Yet he believes that torture should be banned even then. That doesn’t seem to follow. If McMahan’s moral position is correct, shouldn’t the law permit torture just in those conditions when it is morally permissible, and otherwise ban it?

As far as I can tell, his answer is that morally justified torture may be so rare that it can be safely ruled out by an absolute ban. That may well be right; maybe that is the lesson of the Bush torture debacle. But it does seem puzzling. Consider shooting-to-kill. Shooting-to-kill is also a horrible thing to do to people (worse than all but the most extreme forms of torture), and it is rarely justified. Yet police officers are permitted to shoot-to-kill in order to prevent greater evils. Even after recent events suggesting abuse  and discrimination in police shootings, no one wants to impose an absolute ban on them.

McMahan, like other philosophers (such as Henry Shue, who is mentioned in the piece) who both want to ban torture but believe that it is sometimes morally justified, can’t bring himself to enforce the absolute ban with absolute strictness. Instead, courts should be allowed to exercise leniency. Yet McMahan appears to believe that the agent cannot be excused. Some punishment (a very light punishment?) must be imposed.

But why exactly? Why would you punish (even lightly, as in this famous German case) someone for engaging in a (by hypothesis) morally permissible or even morally obligatory act of torture? The answer seems to be that if you don’t, then other agents will engage in torture that is morally wrong. I confess I have never understood this argument. Doesn’t the logic of it suggest that we should prohibit the police from morally justified shootings because if we don’t, police will engage in morally unjustified shootings?

Or taken from the other side, if leniency is permitted, why shouldn’t we worry that the prospect of leniency will encourage agents to engage in wrongful acts of torture? After all, if non-punishment of morally justified torture will encourage wrongful torture, as McMahan claims, why wouldn’t lenient punishment of morally justified torture also encourage wrongful torture? The effort to split the difference by banning torture but providing for leniency seems arbitrary.

Let’s go back to police shootings. Possibly, torture can be distinguished. One distinction is that police shootings are usually (almost always?) morally justified, whereas acts of torture are almost never morally justified. But do we actually know this? The reason that police shootings are usually morally justified, or seem to be, is that the police are given training, and police shootings are always investigated carefully. There is no comparable institutional infrastructure for torture. Maybe if there were, acts of torture would seem as morally justified as police shootings (although no doubt much rarer).

Arguments like McMahan’s, which are scattered throughout the philosophy literature, always seem to be based on psychological (about how people respond to incentives) and institutional assumptions (about how organizations operate) that are not articulated.

More flip-flops

At Slate. This is based on the paper I’ve written with Cass Sunstein. The Slate piece discusses some surveys that we did (the paper provides more detail). If you have any comments on them (or the paper), please email me. We could do some more surveys if you have ideas.

Foreign Sovereign Immunity & Comparative Institutional Competence

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A Guest Post by Adam Chilton and Christopher Whytock:

Discretion to make political or legal decisions is frequently given to one branch of government based on the belief that it is better suited to make a particular kind of decision than another branch. For example, much of administrative law is premised on the idea that administrative agencies are better positioned to make decisions about how to carry out their missions than judges. When these claims of comparative institutional competence are made, however, they are rarely based on systematic empirical evidence. This is in part because there are rarely opportunities to evaluate what happens when two different branches of government are tasked with making the kind of decision.

 In a paper published last week, Foreign Sovereign Immunity and Comparative Institutional Competence, we empirically evaluate one comparative institutional competence claim by taking advantage of a situation where Congress moved the authority to make a certain kind of decision from the State Department to the courts. That situation was created by the passage of the Foreign Sovereign Immunities Act (FSIA) of 1976.

There is a longstanding principle of customary international law that governments should not be subject to suit in the courts of a foreign country. In 1952, however, the United States adopted a new, restrictive theory of when sovereign immunity should be granted. This paved the way for foreign governments to be sued in American courts over their “commercial activities” (like breaking a contract with an airplane manufacture) but not their “public acts” (like passing legislation that limits what kinds of airplanes are allowed to fly in their airspace).

Of course, whether any particular action taken by a foreign government constitutes a commercial activity or a public action is not always clear. When suits against foreign governments arose, initially it was the State Department that was forced to make these calls. It was not long though before critics began to argue that the State Department was making politically motivated decisions—for example, that immunity was awarded to important countries even though a specific suit was clearly based on commercial activities that should prevent immunity from being granted. In 1976, Congress responded to these criticisms by moving the authority to make foreign sovereign immunity decision from the State Departments to the courts.

To leverage this change in authority, we built a database of immunity decisions made before and after the passage of the FSIA. By controlling for the facts underlying each dispute and the characteristics of the parties involved, we are able gain some traction on how these two different branches of government have made foreign relations decisions. In contrast to previous studies that evaluated a small number of cases qualitatively, our study does not reveal evidence of systematic bias in the State Department’s immunity decisionmaking, while it does identify potential political influences on the courts’ decisionmaking. Although there are admittedly some limitations to our data and approach, these results still challenge the frequently made argument that the State Department is worse at making legal determinations free from political interference than other branches of government. If you want to read more about our method and results, you can find the paper at SSRN.

 

Institutional flip-flops

People constantly accuse politicians, judges, and commentators of flip-flopping on institutional issues. Republicans who objected to filibusters of Bush’s nominees now defend the practice as applied to Obama’s–and the Democrats who defended filibustering then attack it now. Most of the liberal commentators who accused Bush of abusing executive power have now fallen silent, while the earlier Republican defenders of Bush have now, under Obama, discovered the dangers of the imperial presidency. Justices who appeal to the majesty of democratic rule in the course of upholding a statute today turn around and strike down a statute despite majority support for it tomorrow. And so on.

Many flip-flops reflect meaningless political posturing, but so do many of the accusations of flip-flopping. An apparent flip-flop can turn out to be nothing of the sort once one pierces the often sloppy rhetoric. Perhaps real flip-flops can be justified as the result of learning, at least to a limited extent. But beneath the surface, there is much of interest. Flip-flopping can result from an ambiguous or unsettled institutional norm. People are not just posturing but trying to get the norm settled in a way that advances their interests.

Much more can be said, and is said, in a new paper that I have written with Cass Sunstein, available at SSRN.

Reply to Coates on financial cost-benefit analysis

Glen Weyl and I have been going back and forth with John Coates on the question whether financial regulators should use cost-benefit analysis. Weyl and I defended CBA of financial regulation here and here. Coates wrote an article criticizing CBA here. Our response is now posted, as is his reply to our response. Below is our reply to his response to our response to his response to our earlier arguments.

In his (latest) response, Coates usefully narrows the focus to the crucial issue: is there any reason to think that CBA of financial regulation and CBA of other types of regulations (like safety or environmental regulations) are different? Weyl and I agreed with Coates that lots of efforts to perform CBA of financial regulations have been shoddy, but that’s just because the methodology is at an early stage. Early environmental CBAs were shoddy as well, but they have improved greatly over the years, thanks to pressure from the White House, which ultimately forced regulators to enlist economists to help them improve environmental CBA.

Weyl and I think that, on theoretical grounds, CBA should be a lot easier for financial regulations (which are, after all, all about money, with tons of data) than environmental regulations (which involve many difficult-to-monetize valuations). Coates makes the opposite argument. In his latest reply, he makes the following points.

1. Coates rejects our merger guidelines as an example where cost-benefit principles have informed market regulation. His major point seems to be that those guidelines are not themselves instructions to perform CBAs, or the result of formal CBAs that were reviewed by courts, and that they are implemented loosely rather in a rigid way. We just don’t understand the force of this argument. The guidelines are the result of economic analysis (Weyl participated in writing them), and they basically enable the government to do cost-benefit analyses of mergers by creating certain economically informed presumptions. Mergers generate the same kind of problems about cost and benefit estimation that financial regulation does. At a minimum, this suggests that these valuation problems are not insuperable.

Coates also says that academics and practitioners admire the guidelines because they prefer rules (“constrained discretion”) over ad hoc judgments. But there is no reason to think that rules in general are better than discretion. Bad rules are worse than discretion, at least if discretion is used in good faith. The guidelines are good both because they are rules (or presumptions) and they are good rules grounded in economic principles.

2. Coates also repeats his argument that (if we understand it correctly) the natural sciences play a greater role in other forms of regulation than in financial regulation. The merger guidelines example was intended to show that this assumption is false: “market regulation” under the rubric of antitrust law is social science all the way down. But let’s consider his argument from safety regulation: the rear-facing camera. Coates argues that the main issue is one of natural science and engineering, which makes it easy to determine whether a mandate is cost-benefit justified.

A simple response to this argument is just to acknowledge that some kinds of regulation are easier than others. We certainly do not deny that. We do doubt whether the camera mandate is as simple as he says. Everything depends on how people respond to the new technology, and we know that how people respond to new technology is often difficult to predict. And, of course, safety regulations raise difficult issues about valuing human life. But the broader point is that many types of regulation seem easy just because we’ve already advanced down the learning curve. That will be true for financial regulation just as for any other type of regulation.

3. Finally, Coates seems to back off from his claim that financial regulation is special, and to argue that, across all areas of regulation, we need to distinguish between areas of regulation that have what he calls “non-stationary” (which seems to mean rapidly evolving) features and those areas that do not. And so his critique may turn out to apply to regulation of drugs, for example, or regulation of any activity where technology is changing at a rapid pace. Maybe he thinks that non-stationary features dominate the financial system but not other systems, but he doesn’t show this. Weyl and I are much more optimistic, based on recent developments in academic economics, including IO and antitrust, where (to repeat) the object of regulation is an incredibly non-stationary phenomenon–the market itself.

But if Coates is right, what does this mean? He advocates regulation based on “conceptual CBA,” which as far as we can tell, means CBA based on guesses rather than reasonable estimates.  We suspect that a more plausible response to his skepticism is not regulation but deregulation. If the government cannot explain why it is imposing costly constraints on the market, then regulation will be difficult to defend politically as well as legally.

Podcast on Charlie Hebdo and freedom of speech

I discuss this topic with Jonathan Rauch, with Jeffrey Rosen moderating. Rauch and I disagreed about (almost) everything.

1. Should The Times have republished the latest Charlie Hebdo cover?

Rauch: yes, because of its news value.

Me: no, if The Times reasonably feared retaliation against its reporters. I also say that the news value of the cover is minimal because anyone can see images of it on the web.

2. Did European media that failed to republish the offending Charlie Hebdo cartoons act wrongly?

Rauch: not if they reasonably feared retaliation, but still it would have been better if everyone had republished in order to strengthen free speech norms.

Me: not if they reasonably sought to avoid provoking additional violence, against themselves or others.

3. Does the Charlie Hebdo attack show that European hate-speech laws are a bad idea?

Rauch: hate-speech laws cannot be enforced neutrally, resulting in hypocrisy and chilling effects. Hate-speech laws do not improve safety.

Me: if hate-speech laws had been enforced against Charlie Hebdo, then this attack would not have happened. So at a minimum, there is some evidence that they reduce violence. Rauch is right that hate-speech laws cannot be applied “neutrally.” But they can be enforced sensibly, to censor low-value speech that offends groups to the extent that violence may result.

4. Should Europe adopt U.S.-style free-speech law?

Rauch: yes, noting that we have more social peace in the United States than in Europe, and arguing that the First Amendment may account for this. People have no incentive to use violence to force the government to censor offending speech because they know that the First Amendment blocks the government from accommodating them.

Me: [bungling my description of French law, but anyway–] no, the U.S. is an outlier, strongly suggesting that what works for us (or currently works for us) is not ideal for other countries. Specifically, First Amendment law in the United States reflects various pragmatic compromises among groups in a pluralistic society that are different from the compromises that must be made in other countries, which have different groups with different views and interests. Our tendency to think that U.S. law reflects universal principles should be resisted.

5. Will the Charlie Hebdo attacks strengthen freedom of speech in France?

Rauch: yes, as illustrated by the marches and rallies, the outpouring support for Charlie Hebdo.

Me: no, the government will crack down on hate speech in order to reduce violence, and in a (perhaps futile) effort to repair the frayed bond between French Muslims and the state.

The Charlie Hebdo attack and liberty-liberty tradeoffs

Terrorist attacks generate a familiar pattern in public debate. First, conservatives (and often middle-of-the-road types) argue that the government’s failure to stop the terrorist attack shows that counterterrorism policy is too weak. Then, liberals (and often other middle-of-the-road types) argue that we should not strengthen counterterrorism measures if doing so will sacrifice our civil liberties to security. This sets up a debate about security versus liberty. Typically, civil libertarians argue that there really is no tradeoff (an argument I have never understood), or (more plausibly but I think wrongly) that the government will inevitably put too much weight on security and not enough on liberty. An important subtheme, one that resonates with American historical experience and mythology, is that the people who put more weight on security are cowards who sell our liberties too cheaply.

Thus, the rhetoric. In truth, there is liberty on both sides of the equation. People who fear terrorist attacks lose some of their liberty as they avoid airplanes and public places; and the people who die in those attacks lose their liberty along with their lives. Nonetheless, it is undeniable that the civil libertarian position is understood to place greater weight on due process than on security, and that position has very powerful resonance in our society, perhaps because of distrust of the government.

The Charlie Hebdo attack has not followed this pattern for an interesting reason. The attack, both by design and in effect, was targeted at a liberty–freedom of expression. In this respect, the attack is unique among all the terrorist attacks since 9/11, none of which singled out freedom of expression as a target among all the western vices. The planned French crackdown on civil liberties thus sets up a clearer, harder-to-deny, liberty-liberty tradeoff: liberty from surveillance, arbitrary detention, and the like, versus liberty to speak one’s mind. It’s harder for a civil libertarian to argue that “mere” security is at stake, that principled people must oppose stricter counterterrorism measures.

This tradeoff has not yet received much attention, though it is implicit in the debate about whether Charlie Hebdo’s speech was really worth defending. Civil libertarians should ask themselves: if greater censorship in France made the French safer, with the result that they don’t need to give police greater surveillance and detention powers, would they be better off or worse off?

This is the most important policy question that has emerged from the attack. Why has no one asked it?

The Supply Side of Compliance with the WTO

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A guest post by Rachel Brewster and Adam Chilton:

One of the primary questions studied by scholars of international law is whether countries comply with their international legal commitments. For example, scholars study whether countries comply with treaties they have signed that regulate the conduct of war or mandate the protection of human rights.

In most of these studies, the focus is on assessing whether the national government of a given country complies with some obligation. Of course, national governments are comprised of many institutions and, depending on the obligation, different institutions must take actions to comply with international law. A topic that has received little attention, however, is how the likelihood that the country will comply with international law is affected by which particular institution is required to take action on behalf of the national government.

In a recently published paper, Supplying Compliance: Why and When the United States Complies with WTO Rulings (available here), we argue that when the United States loses trade disputes, the particular domestic institution required to act is an important predictor of whether (and when) the U.S. will comply with the ruling. In fact, it was the most important factor.

Our paper empirically studies this topic by analyzing compliance with legal challenges brought against the United States at the World Trade Organization (WTO). The WTO allows members to bring disputes against other members that arguably aren’t complying with various trade agreements. Since the WTO was created twenty years ago, countries from around the world have brought over one hundred cases against the United States. In cases that the United States has lost, different branches of government have been required to take act to cure the violations. For example, the President responded to some complaints by issuing executive orders and Congress responded to other complaints by amending sections of the tax code.

The dataset we built for our project includes all WTO complaints made against the United States before 2012. For each complaint, we tracked down the policy changes that the United States made after the dispute. We also collected data on the characteristics of the countries that filed the complaints and the topics of the disputes. After controlling for a number of variables, we found that the United States was more likely to comply (and to comply more quickly) with a WTO decision when the executive alone could bring the country into compliance than when Congressional action was needed.

Although there are a number of confounding factors that may influence this result, as well as limits to the generalizability of our findings—both of which we discuss in the paper—we think these results suggest that having a complete understanding of compliance with international law requires paying more attention to the specific domestic institutions that are involved.

The case for Uber-regulation

I make the case in Slate, which is that the market for short-term, on-demand car rides is inherently monopolistic. That is in fact why taxi regulation exists, and always has, virtually everywhere. The Slate piece arose from some initial thoughts in this blog post, further stimulated by Ilya Somin’s criticisms of that post. One point of disagreement centers around how to interpret people who consent to and then complain about surge pricing. Somin thinks they are irrational. I think they are reasonably concerned that they are being overcharged. The underlying problem is the high cost of search in this market, as explained in the Gallick & Sisk JLEO paper I cite. There is an interesting sense in which Uber’s disruption of the taxi market replays an earlier disruption in the 1920s when mass-produced automobiles threatened to unravel taxi pricing with the introduction of part-time drivers who skimmed off the best fares.

Tyler Cowen on quadratic voting

Cowen believes that QV would encourage extreme preferences:

I would gladly have gay marriage legal throughout the United States.  But overall, like David Hume, I am more fearful of the intense preferences of minorities than not.  I do not wish to encourage such preferences, all things considered.  If minority groups know they have the possibility of buying up votes as a path to power, paying the quadratic price along the way, we are sending intense preference groups a message that they have a new way forward.  In the longer run I fear that will fray democracy by strengthening the hand of such groups, and boosting their recruiting and fundraising.  Was there any chance the authors would use the anti-abortion movement as their opening example?

There are two possible interpretations of this argument.

First, QV would encourage people with extreme preferences to engage in activities that are disruptive of democracy. But the opposite is more likely the case. The problem with one-person-one-vote-majority-rule is that minorities are shut out unless they can organize. This is why minority groups so often resort to civil disobedience, protest marches, strikes, and boycotts. They can vindicate their preferences in the political arena only by making life miserable for the majority. By contrast, QV allows them to vindicate their intense preferences, and in such a way that partly compensates the majority.

Maybe a more attractive version of this argument is that people with intense preferences would lose the incentive to try to persuade the majority to agree with them. Under QV, they pay them off instead. But the difference between the two systems is marginal along this dimension. The cost of buying votes becomes expensive very quickly; so if persuasion can be effective, then minorities will adopt that strategy instead or (more likely) in conjunction with voting.

Second, Cowen might believe that QV would actually change people’s preferences, causing moderate people to become extreme. There are no good theories about how preferences change, so it is hard to evaluate this claim. Perhaps his idea is that under ordinary voting systems people with extreme preferences who are always outvoted somehow become persuaded that their preferences are wrong and drop them. Maybe. But it is just as likely that they give up on a political system that disregards their deepest commitments and search for extra-legal or disruptive means to vindicate them.

We can’t wish away people with intense preferences, and shouldn’t want to. Indeed, nearly everyone has intense preferences along different dimensions; that is why there is a sense in which our rights-based system, which provides judicial protection to minorities with intense preferences under certain conditions, is supported by the majority. But QV provides a better way to incorporate intense preferences into the social welfare function.

Is opposition to Uber’s surge pricing irrational?

Everyone says it is. Here, for example, is a representative statement from Ilya Somin. The argument is just that unregulated markets are efficient and therefore price caps are inefficient. Somin concludes that everyone opposed to surge pricing is irrational or ignorant.

I don’t oppose surge pricing but I don’t think Somin is right.

1. Although a practice may be efficient, it doesn’t follow that everyone is made better off by it. People rationally oppose surge pricing as long as they value the dollar savings resulting from a price cap more than the extra time they spend waiting for an Uber car or taxi to show up. These people oppose an efficient practice that happens to harm them. What’s so irrational about that? In fact, the contrary view would be irrational.

2. When surge pricing comes into effect, there is an undersupply of cars. This means that Uber has market power. Taxis can’t raise their prices, and Lyft apparently won’t match Uber’s price above a threshold. This means that for the class of people who will pay the surge price, there is no meaningful competition. It doesn’t take much imagination to believe that Uber–which takes infantile pride in its ruthlessness–will charge a price that eats up as much of the consumer surplus as possible, in the process pricing some passengers out of the market.

This is not an argument for banning surge pricing or even regulating it. It’s possible that Uber’s monopoly profits will bring in additional competition, or that the threat of additional competition keeps Uber in line, and that’s what we usually assume in antitrust law, so we let the Ubers of the world charge supracompetitive prices except in egregious circumstances. But people’s efforts to shame Uber into lowering its surge prices may not only be in their self-interest; they may serve social welfare as well.

3. Everyone thinks of Uber as an app that allows drivers and passengers to match. But also think of Uber as an efficient way of cartelizing drivers and obtaining and analyzing the data of passengers so as to maximize revenues. (Can Uber determine your price sensitivity based on past trips? Probably. Does it exploit that information by varying prices by passenger type? Maybe not. Yet.) True, Uber is a better cartel than the taxis. True also, many Uber drivers did not offer services before Uber organized them. But not everything Uber does is by definition a good thing.

Quadratic voting

Glen Weyl has uploaded a new version of his paper, Quadratic Voting (written with Steven Lalley), to SSRN, which now includes the completed proofs. Quadratic voting is the most important idea for law and public policy that has emerged from economics in (at least) the last ten years.

Quadratic voting is a procedure that a group of people can use to jointly choose a collective good for themselves. Each person can buy votes for or against a proposal by paying into a fund the square of the number of votes that he or she buys. The money is then returned to voters on a per capita basis. Weyl and Lalley prove that the collective decision rapidly approximates efficiency as the number of voters increases. By contrast, no extant voting procedure is efficient. Majority rule based on one-person-one-vote notoriously results in tyranny of the majority–a large number of people who care only a little about an outcome prevail over a minority that cares passionately, resulting in a reduction of aggregate welfare.

The applications to law and public policy are too numerous to count. In many areas of the law, we rely on highly imperfect voting systems (corporate governance, bankruptcy) that are inferior to quadratic voting. In other areas of the law, we require judges or bureaucrats to make valuations while knowing they are not in any position to do so (environmental regulation, eminent domain). Quadratic voting can be used to supply better valuations that aggregate private information of dispersed multitudes. But the most important setting is democracy itself. An incredibly complicated system of institutional self-checking (separation of powers, federalism) and judicially enforced constitutional rights try to correct for the defects of one-person-one-vote, but do so very badly. Can quadratic voting do better? Glen and I argue that it can.

Debate with Kenneth Roth about human rights treaties

You can read the debate here. Since having a blog means always having the last word, I add a few further responses to his last entry.

1. I don’t actually advocate the repeal of human rights treaties. It is enough to ignore them, or even just to recognize that they allow almost unlimited discretion because violation of them is unavoidable.

2. Ken argues correctly that the mere fact that a law (for example, the law against murder) is frequently violated is not an argument for repealing the law. But that’s not my argument. I think governments frequently violate human rights law for good reasons–having to do with the limits of their capacity and the rigidity of the law. I don’t think anyone has a good reason to violate laws against murder or rape.

3. Ken recounts a number of anecdotes where he says that treaty ratification led to a change in the behavior of states. I never claim that literally no one pays attention to specific treaty obligations, and several of his examples (the landmine treaty, the European Convention, and so on) go beyond the scope of my claims, which are restricted to the universal human rights treaties. Beyond that, while his anecdotes are compelling, I have seen too many examples of anecdotal arguments falling apart on close inspection to be willing to take them at face value.

4. Finally, in the battle of reductios, Ken argues that I must believe that countries should be permitted to enslave their workers because I reject economic rights embodied in the ICESCR. My actual argument is that if the ICESCR is interpreted as giving migrant workers in Qatar western-style employment rights, that could very well hurt many more people than it helps. In actual fact, the ICESCR is ambiguous, so it is HRW that is urging Qatar to recognize minimum wages or collective bargaining rights. Will this improve the lives of most workers or end up grievously harming many workers because of a reduction in the demand for labor? What bothers me is that HRW thinks or pretends that it knows the answer to this question, but it doesn’t.

Is the “norm” or taboo against torture dead (continued)?

torture bubbleAs I noted a few days ago, Christopher Kutz argues that the anti-torture norm is (or might be) dead. Another way of putting this claim is that the longstanding taboo against torture has lapsed. A practice is taboo if not only it is forbidden but open debate about it is forbidden. Anyone who challenges the taboo will be regarded as tainted or contaminated, as outside the community. Contrary to what we like to think, hundreds of taboos flourish in American society, as many I’m sure as in any of the tribal societies studied by early anthropologists from which the term was adopted. Our taboos surround not only religion, but also race, gender relations, and the treatment of children. Free speech is firmly entrenched in the law but anyone who thinks that one can speak freely about these topics without risking significant social sanctions hasn’t been paying attention. Taboos constantly change (many sexual taboos have lapsed, just in the last few decades), but while they prevail they are extremely powerful.

The process by which taboos break down is mysterious; Kutz doesn’t really explain why the torture taboo has eroded if it has. At least part of the explanation must lie with technological change that causes people to question traditional prohibitions. The invention of modern forms of birth control made many of the taboos surrounding sex, which may at some earlier time have been broadly functional (in the sense of protecting people from the burdens of unwanted children or quelling social conflict), seem nonsensical. Yet the erosion of those taboos (not yet complete) was complicated. People had to be motivated to challenge the taboos and endure social sanctions. Sexual desire is a potent motivation, and eventually the arguments could not be ignored. But if there is no strong incentive to challenge taboos–as may be the case with taboos that don’t ban behavioral anyone really wants to engage in (like cannibalism)–then they are likely to persist.

If the torture taboo is eroding, then the explanation must be different from change in technology. The torture technologies used by the CIA are decades, even hundreds of years, old. And as is common with many taboos, the prohibition was never complete–U.S. government has committed torture before (just as incest takes place despite the incest taboo); what’s new is that torture is openly discussed as a legitimate policy option, by some people. In the 1990s and earlier, the U.S. engaged in torture through proxies, and no one talked about torture used by American combat soldiers in wartime. What seems to have happened is that an unusual configuration of events–the 9/11 attack, the earlier enactment of torture laws that forced the CIA to seek legal cover through a Justice Department opinion, relatively new norms of government openness, and so on–forced torture out into the open, where it could no longer be ignored.

You can see the persistent taboo-like character of torture in the debates surrounding the CIA’s interrogation practices. Many of the critics feel compelled both to argue against torture (“it doesn’t work,” “it violates our values”), and to argue that this argument is unnecessary because torture is plainly wrong or off the table (“it’s not who we are”). But the mere making of the first argument, which often requires elaborate claims about how institutions work, contradicts the second. Torture (unlike, say, cannibalism or incest) then becomes a matter of debate, perhaps like any other policy. The real force of the much-derided ticking time-bomb hypothetical is not that it provides a policy justification for institutionalized torture, but that it explodes the taboo. If you agree that torture may be acceptable in this setting, then you can argue against its expansion to less extreme scenarios only by making complicated empirical and institutional arguments that can be debated by people who have different intuitions.

I wonder whether the prosecutions that the CIA’s critics desire would have the perverse effect, even if they are successful, of further unraveling the taboo. In a court of law, defense lawyers will argue that their clients acted reasonably, and to do so, they will elicit testimony that some interrogation practices that amount to torture are actually effective. Whether or not this testimony is persuasive, the mere fact that it is introduced and debated will help remove torture from the realm of the taboo. Like so many (actually nearly all) police practices, there is just no reliable evidence of efficacy, in one direction or the other, and in such cases courts tend to defer to the judgment of experts. Whatever the outcome of the prosecutions, the efficacy of torture becomes merely an empirical question, deserving of further study perhaps, one about which reasonable people may differ–in which case it can’t be taboo.

This is, I think, what happened in the gay marriage cases, which helped destroy another taboo that until recently was extremely powerful. The importance of the evidence introduced in those cases was not so much that it supported the case for same-sex marriage but that it showed the question of same-sex marriage is an empirical one. Once empirical doubts are recognized, they cannot displace powerful equality norms.

Vermeule replies to Baude: A Pre-Chevron mind?

From Adrian Vermeule:

Thanks to Will Baude for his thoughts on our paper project (see here and here for our puzzles and conjectures). It’s interesting that the proposal for judges to take into account the votes of other judges provokes a kind of instinctive resistance. But it’s not clear what exactly the objection is. Some possibilities:

(1) Will seems implicitly to assume that “textualists” and “purposivists” inhabit different methodological universes, so that judges in one camp would obtain no information from considering the views of judges in the other. That’s not how interpretation works, however. Purposivist judges are certainly interested in text and canons, in part because those things supply evidence of the purposes that a reasonable legislator might have. Conversely, many textualist judges, like Holmes, have been willing to examine legislative history and other extra-textual sources as evidence that might shed light on the ordinary meaning of text.

But even when textualist judges eschew legislative history altogether, that does not mean there is no overlap between their approach to interpretation and that of purposivist judges. Schematically, it is not the case that textualist judges consider sources or arguments {A, B, C} while purposivist judges consider sources or arguments {D, E, F}. Rather closer to the truth is a schema in which textualists consider {A, B, C} while purposivists consider {B, C, D}, or even {A, B, C, D}. This implies that judges in both camps will often gain relevant information — relevant even on their own theories — from observing the votes of other judges, even judges in other camps. And, of course, most judges are not theoretical at all, and just consider all sources and arguments in a sort of promiscuous jumble.

(2) Will also seems to think it important that judges in each camp think their own theory “correct” (Will’s italics). Under the Chevron framework, however, even if I think I am correct, the question I have to answer is whether I think the other person’s view is not only wrong, all things considered, but is actually unreasonable. The whole point of Chevron is to create space for that distinction. It is a symptom of a pre-Chevron mind (sub-Chevron mind?) to conflate these two questions, assuming that if my view is correct, yours must be beyond the pale. There is an interesting, under-explored question whether Chevron implies that agencies should have a kind of meta-discretion to choose among reasonable theories of interpretation. But the fact that proponents of competing views think their views correct will not help us figure that out.

(3) Yet another separate question, which we flagged in our opening posts, is whether and under what conditions it is systemically desirable for a given judge to take any of this information into account. We think that is the critical question for the paper, which will attempt to sift out the conditions under which it is or is not desirable. Will points out that sometimes it is better for decisionmakers not to attempt to consider all available information; certainly that is true. But he seems to assume that throwing away this particular category of information is necessarily desirable in all settings. His confidence in that approach seems to outrun the available evidence and theory, as far as we can see. It’s an interesting puzzle why our proposal provokes such a reaction.

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.

twilight

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.

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