Adrian Vermeule and I finally finished and posted our paper at SSRN. It started out as a few blog posts wondering whether a judge can deem a statute “clear” if other judges who have interpreted it disagree about its meaning. See here, here, and here.

A new paper, at SSRN:

The financial crisis of 2007-2008 exposed gaps in the law that authorizes federal agencies to provide emergency liquidity support. This essay describes the ways in which legal constraints hampered response to the crisis, proposes reforms that would make possible a unified and strong response, and criticizes the Dodd-Frank Act for weakening, rather than strengthening, the crisis-response agencies.

The Naturalization Act provides:

And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.

Michael Ramsey argues that this language “strongly supports” the view that Cruz is a natural born citizen. Congress’ approach is “consistent with the eighteenth-century English parliament’s view that it could define natural born subject as it pleased (and indeed could tinker with the definition for policy reasons).” Or, as he puts it, a “natural born citizen” means “entitled to citizenship by whatever statute was in effect at the time of the person’s birth.”

But this is circular. Under Ramsey’s definition, the Naturalization Act provides that “the children of citizens of the United States [born on foreign soil] … shall be considered as entitled to citizenship by whatever statute was in effect at the time of the person’s birth”—namely, the Naturalization Act itself! The definition swallows its own tail.

The Naturalization Act uses a legal fiction as so many statutes do. Consider the Dictionary Act, which provides that the word “person” includes a corporation unless the context indicates otherwise. The Dictionary Act presupposes that the ordinary meaning of person is someone with a physical body and a beating heart. If the ordinary meaning of the word person encompassed corporation, then the Dictionary Act definition would not be necessary. People would read “person” to mean “corporation” without having to be told to. The Dictionary Act in this way is consistent with, and at some future point could be taken as evidence for, the proposition that the ordinary meaning of person excludes corporations. (By the way, over time courts came to refer to a non-corporate person as a “natural person,” again reinforcing the idea that we put natural before a term to refer to the regular or normal, as opposed to technical, usage.)

Similarly, the Naturalization Act assumes that “natural born citizen” does not include foreign-born children of Americans. That’s why it’s necessary to redefine this term to include foreign-born children. Enacted shortly after the Constitution was ratified, the law assumes that ordinary readers of the Constitution would have interpreted “natural born citizen” to mean only those born on American soil.

Michael Ramsey, in his excellent article on the meaning of “natural born citizen,” argues that the founders likely used that term with British precedent in mind. In a series of statutes, Parliament redefined the common-law definition of “natural born subject”—which meant born on UK territory, with some minor exceptions—to encompass people born on foreign territory to a British father, a necessary elaboration in an era when large numbers of British subjects spent years abroad roaming around in service of foreign-born British monarchs while spawning offspring. Blackstone discusses this history; the founders read Blackstone; ergo the founders likely had Blackstone in mind when they agreed on the term “natural born citizen,” replacing subject with citizen but preserving the meaning of “natural born.”

But did the population at large? Most people weren’t lawyers, fewer still read Blackstone, and in the current version of originalism—of which Cruz is an enthusiastic adherent—the relevant question is the “public meaning” of the Constitution when it was ratified. I checked Samuel Johnson’s dictionary, which does not contain an entry for “natural” but does include “nature.” The most pertinent of the definitions is “the regular course of things.” Citizenship, in the regular course of things, came to those who were born on U.S. territory. The complex process known as “naturalization”—by which an alien becomes a citizen after jumping through various hoops—reinforces this idea. People who are not citizens in the regular course of things (by birth on U.S. territory) can become citizens through operation of law.

The Constitution withholds the presidency from those who are “naturalized,” reserving the prize only for those whose citizenship is natural. The vast majority of Americans at the time who were not naturalized aliens were citizens of the various states because they were born in the states. Citizenship in “the regular course of things” would mean citizenship by virtue of birth on U.S. territory.

My argument would be strengthened if the practice in the states in the eighteenth century was to require people born abroad whose parents were U.S. (and/or state) citizens apply for naturalization. I am not aware of evidence in either direction.

The major presidential candidates refused to answer Savage’s survey of their views about executive power. Why not? They did in 2011 and 2007. The survey was designed from the beginning to force candidates to acknowledge limits on their power if elected. Savage, like most commentators, has persuaded himself that Americans think that presidents have too much power. He made his name by documenting Bush-era executive-power abuses, and he has just published a book about Obama’s abuses as well. But it seems to be dawning on him that Americans want limits on executive power only when they don’t like the president in office. Today, Republicans complain about presidential power; eight years ago, Democrats complained. The opposition is tactical, skin-deep, which is why serious limitations on executive power—either self-imposed in response to public opinion, or imposed by the other branches—will not take place anytime soon. Americans want a strong president to solve their problems, and the candidates know this.

Him: campus speech is under assault by clueless university administrators.

Me: blame the students.

It’s a nice place, but the Internet is a bit spotty.

I was wondering whether this film would really be able to explain collateralized debt obligations, cdo-squareds, credit default swaps, and all the rest, as the reviews suggested. When I explain these things to students, I need to write out diagrams showing cash flows, and then spend more time explaining why people created them, how they worked, and what went wrong. It takes a long time and is pretty boring. The movie’s approach was to put a woman in a bubble bath who spends 10 seconds explaining what one of these instruments was (I forget which one–the woman in the bubble bath was distracting), and to use a Jenga set as a prop for a CDO. Occasionally, celebrities were brought out to explain things. Anthony Bourdain says that a CDO-squared has something to do with reusing old Halibut in a fish stew. Even Dick Thaler, who makes an appearance, let me down. He says that the hot hand fallacy explains the financial crisis (it doesn’t–and apparently it has been debunked anyway). I suspect Thaler was happy enough to read the script, whatever it happened to say, so he could appear in a movie and meet Selena Gomez.

The movie’s creators faced a problem. How do you make a compelling story about the financial crisis for moviegoers who wouldn’t know a CDO from a cabbage. The brilliant solution was to pretend to explain what these concepts were rather than to explain them, so that the viewer would not be distracted from the glittering images and sharp dialogue by the nagging sense that he has no idea what is going on. The violation of the normal customs of movie making–including the breaking of the fourth wall by the actors–would enhance the viewers’ sense that what they were seeing was really true, and not only true but important enough to risk a collapse in verisimilitude which is normally maintained by keeping the fourth wall intact.

The relationship between the movie and reality is bewildering. The movie is based on Lewis’ nonfiction book, but only loosely–with most (but not all) of the characters’ names changed so as, I suspect, to allow the film makers to invent colorful details about them (various humanizing traumas, etc.). Lewis’ book itself, while apparently accurate in the details, gives a deeply misleading interpretation of the financial crisis that fits his crowd-pleasing template of eccentric outsiders versus complacent suits. If Lewis’ book was misleading, the movie is a CDO-squared version. Short it.

From Bloomberg View:

Turns out, though, their accident rates are twice as high [for driverless cars] as for regular cars, according to a study by the University of Michigan’s Transportation Research Institute in Ann Arbor, Michigan. Driverless vehicles have never been at fault, the study found: They’re usually hit from behind in slow-speed crashes by inattentive or aggressive humans unaccustomed to machine motorists that always follow the rules and proceed with caution.

I discuss in Slate.

Be sure to watch this video first.

The Times article describing the legal deliberations prior to the bin Laden raid mentions four lawyers: the CIA’s general counsel; the NSC’s legal adviser; the Joint Chiefs’ legal adviser; and the Pentagon general counsel. All of them, of course, did what executive-branch lawyers do: identify the most convenient legal categories needed for permitting the executive action.

More interesting, the OLC–which would normally be called upon to render the final opinion–was not included. Not just the OLC, but the entire Justice Department was frozen out. Why? Could it be that the OLC was less than cooperative when the White House sought a legal rubber stamp for the Libya intervention in 2011? Has the OLC been demoted for its insubordination?

Read this review; it is the best thing written about Harper Lee’s new-old novel. Bottom line:

The 1950s editorial decision not to shepherd a revised Watchman to publication is more questionable than the decision to publish the first draft in 2015. It might not have been as popular as Mockingbird, but it would have been a better novel.

Something like this. Perhaps, Justice Stevens could be classified as a traitor (to his party–he was appointed by Nixon Ford but in later years voted with the Democratic appointees–which is not the same thing as saying that he was a bad justice, of course). Among the loyalists, Scalia and Alito vote in a less consistently partisan manner than the other four.

The table is based on my previous posts: here, here, and here.

Define partisan independence as the ratio of cross-party agreement to cross-party disagreement. Partisan independence is highest for those who both frequently disagree with co-partisans and frequently agree with counter-partisans. Kennedy and Roberts lead the pack. In the second group are Scalia and  Alito. Thomas now clusters with the Democrats. While Thomas often disagrees with co-partisans, he also often disagrees with counter-partisans–the two tendencies cancel out.

Here is another angle on the relationship between partisan identity and agreement on the supreme court. Three clusters appear. Kennedy and Roberts are most likely to vote with counter-partisans–in their case, the Democratic justices. Thomas (a cluster of one) is least likely to vote with counter-partisans. The remaining justices–the four Democrats, Scalia, and Alito–fall in the middle. As before the 2014 term seems to magnify trends that are perhaps (with the benefit of hindsight) partly discernible in earlier years. Data from Scotusblog.

This graph shows that Republican-appointed justices disagree among themselves more often than Democrat-appointed justices, who march almost in lockstep. What accounts for the striking acceleration of the trend this year? While some of the most polarizing cases have not yet been decided, I’d be surprised if the final cases make much difference in the pattern. Data source: Scotusblog.

You probably didn’t know there was a law against manipulation. But I argue that you can find an anti-manipulation principle buried in the common law. I make this argument in a comment on Cass Sunstein’s paper Fifty Shades of Manipulation, his defense of libertarian paternalism against critics who argue that libertarian paternalism is “manipulative.”

Or, maybe I should have asked: Have the Republicans on the court become less ideological?

The numbers in the second and third columns are averages derived from Scotusblog (scroll down to the bottom). The last column is the second column divided by the third, so >1 means greater agreement with co-partisans.

Roberts and Kennedy are more likely to agree with the Democrats than with the other Republicans. I don’t think this has happened before. Last year, Roberts agreed with his co-partisans 88.8% of the time, and his opposite-partisans 81% of the time. For Kennedy, it was 86.8% and 82.25%. The Democrats and Thomas follow the ideologically polarized pattern of prior years.