"Declare Victory and Get Out?" The Future of the AUMF

Stephen Griffin

Today the Senate Armed Services Committee is conducting a hearing into the future of the September 2001 AUMF.  Over at the informative Lawfare blog, the two options on offer are to replace it with an authorization tailored to the new circumstances of a dispersed war against many different terrorist groups or, in the words of Steve Vladeck and Jennifer Daskal in yesterday's NYT, to "declare peace" and get out.  In a world in which we did not have to contend with political parties, I would favor the latter option.  What my book Long Wars and the Constitution calls the "9/11 War" against al-Qaeda and the Taliban is overdue for a breathing space in which we can assess it from a distance.  Presidents Bush and Obama certainly haven't helped -- try to recall a fundamental policy statement in which either president set forth meaningful criteria for success or failure.  It's as if the presidents don't want the war to end.  Why might that be?  In Long Wars, I reject answers based on eighteenth-century theories about presidential motivation.  In other words, it's not because they are power-hungry or want to expand the so-called "imperial presidency."

My title is a reference to Vietnam.  There may have been a moment during that war when key elements in both parties could have supported leaving South Vietnam, even knowing that this may have eventually guaranteed victory by the North.  In addition, there is plenty of evidence we are now in a sort of post-Vietnam moment in which a war-weary public and substantial elements in both parties are questioning the purpose and costs of a permanent war against a now ill-defined terrorist threat.  Hence declaring victory or peace or both is more realistic than many in the DC village might concede.

Yet the logic of the argument I present in Long Wars urges caution, since we still must contend with polarized political parties.  This means concretely that President Obama knows he will be blamed for any future terrorist attack, when it succeeds or fails.  That means to create the kind of breathing space we need, members of Congress would have to agree to, yes, blame themselves as much as the president in the case of a future terrorist strike.  Or move beyond the politics of blame.  Is this beyond them?  If you think so, this counsels either reworking the AUMF along the lines suggested by Professors Chesney, Goldsmith and Waxman or at least staying with the current AUMF and admitting we want the president to do everything he can to protect us.  If you (and I'm really talking to Congress here) can bring yourself to trust that the government is doing everything it can to prevent another terrorist strike and hence not go looking for someone to blame when it happens, we can all create a breathing space for peace together.  If, however, you want to retain the option to blame the president and the executive branch, then you will have to give them the power to prevent those attacks.  The best way to do this is openly and democratically.  But if you can't bring yourself to do this, the president will remain in the same position, responsible for now covertly preventing an attack in a way that may result in a constitutional crisis in the future.  That's the dilemma past presidents have faced, given the dysfunctional structure of what I call the post-1945 constitutional order.


Posted 11:55 AM by Stephen Griffin [link] (14) comments

David Ignatius can't connect the dots, either

Sandy Levinson

David Ignatius is simply the latest leading pundit who demonstrates an incapaity to connect the dots relevant to his own analysis.  In a column in the May 16 Washington Post, he says many altogether correct things.  Writing of the current scandals, he says, "What should frighten the public is not the federal government’s monstrous power but its impotence....."  The only thing that Congress can do is engage in highly partisan "investigations" most of which simply can't be taken seriously (such as the sudden emergence by non-libertarian Republicans as stalwart defenders of the press after earlier behaving like mad dogs with regard to "security leaks" and demanding that no stones be left unturned in efforts to catch leakers."  No doubt there is some criminal stupidity worth investigating vis-a-vis the IRS, but equally worth investigating, of course, iw the ability of big money to game the IRS system by corrupting our political system and getting tax exemption for doing it.  No doubt the response of the cowed IRS will be shutting down any serious investigation of 501(c)4) groups at all, so that the American taxpayer can in effect subsdizaie our own further descent into plutocracy. 

What Congress cannot do, in any serious sense, is to legislate about the problems that face us.  There are, lf course, many explanations, but surely a part of the explanation must be our 18th-century Constitution drafted by people who had literally no comprehension of what the American political process would fairly quickly become and foisted on us a byzantine system of "checks and balances" that allow well-located veto groups to make a sham of our pretense to being a "democracy" or, more seriously, to be able to confront the most serious problems that face us.  It's so much easier for peoplel like Mr. Ignatius to complain that there's too much bickering in Washington and that we need more "adults" who can take charge.  I see no reason to open this to comments since, as should be obvious, I'm clearly not making anything resembling a new point, but simply venting, once more, at the remarakble blinkers that even our best pundits (as Mr. Ignatius often is) seem to wear whenever they write about the dysfunctionalities plaguing the American political system.

UPDATE:  The lead story in today's NYTimes is "An Onset of Woes Raises Questions on Obama Vision," by Peter Baker.  Its theme is his inabilty to "master his own presidency," though there is one glimpse of recognition that he may be  confronted "by partisanship and forces beyhond his control."  It never occurs to Mr. Baker (or, for that matter, any of the NYTimes' political reporters) that one of those "forces" is the Constitution itself.  And President Obama, as a well-trained Harvard lawyer, was, one suspects, never asked to question any of the structural features of the Constitution even as he got probably the best legal education available on how to analyze cases decided by the United States Supreme Court.  I've compared myself on earlier occasions to Paul Revere or Cassandra.  Perhaps a better comparison is Noah--don't you see the rainclouds accumulating?--but, alas, I can't build an ark because the problems facing us have to confronted collectively--rugged individualism is useless, unless you're a bitter-end survivalist who looks forward to nuts and berries--or not at all.  A truly cogent "vision" would be altogether too scary, so better to pretend that the failings are Presidential detachment or Republican perfidy (both of which may well be part of the problem, to be sure) instead of anything more basic.

Posted 11:46 PM by Sandy Levinson [link]

Meaningless Arithmetic

Mark Tushnet

Posted 12:13 AM by Mark Tushnet [link]

Northwestern Symposium on Martin Redish

Andrew Koppelman

My Northwestern Law colleague and friend Martin Redish has been hugely influential in the free speech area.  His work has been cited by the Supreme Court a number of times, and he is probably more influential than any other scholar in transforming the Court’s approach to commercial speech and campaign finance.






Posted 7:10 PM by Andrew Koppelman [link]

3D Printers and Guns

Gerard N. Magliocca

The State Department's order (or "request") to takedown software that would let people print guns on a 3D printer raises some fascinating issues.  The Government wants to see whether making this software available violates certain arms export statutes, in part because 100% plastic guns would be very hard for airport security to detect.

At the outset, this strikes me as a futile gesture.  100,000 downloads occurred before the takedown was ordered.  Foreign websites such as Pirate Bay have the files and are making them available.  The horse isn't just out of the barn--it's left the farm.  Moreover, I'm not sure what the legal basis for this order (or "request)" is.  Is it clear that the possession or manufacture of a plastic gun is unlawful?  Legislation has been introduced in Congress to ban 3D printed guns, which suggests that currently they are not banned.  If it is legal to own one, then why it is illegal to tell others how to produce their own?

Moreover, there could be a Second Amendment question lurking here.  Suppose I have a disability that makes shooting a gun difficult.  Still, I want one to protect my home.  3D printing would (in theory) let me design a gun that is customized such that I could fire it.  Do I have a fundamental right to do that? Would a total ban on 3D printed guns place an unreasonable restriction on me?


Posted 11:30 AM by Gerard N. Magliocca [link] (64) comments

The CIA and Drone Strikes

Stephen Griffin

One of the main themes of my forthcoming book Long Wars and the Constitution is that we can gain insight into the unconventional and seemingly novel “war on terror” by looking closely at the history of the cold war.  This approach is especially helpful now in assessing the charges being leveled against the CIA because of the ongoing drone war being carried out in multiple countries under the auspices of the September 2001 AUMF.  It is doubtful anyone is entirely happy with the results of the drone war and the civilian casualties that are its foreseeable consequences.  But the drone war illustrates several things at once about the relationship between the “9/11 War” (my preferred term for the “war on terror”) and the cold war.

Read more »
Posted 5:13 PM by Stephen Griffin [link] (7) comments

How “Robust” is Appellate Review of Courts-Martial?

Eugene R. Fidell

Labels: courts-martial, military justice, sexual assault

Posted 11:07 AM by Eugene R. Fidell [link]

John Bingham and Racial Preferences

Gerard N. Magliocca

With the Court's decisions on racial preferences and on the Voting Rights Act looming, I was mulling over something that I found in a letter that John Bingham wrote in 1877.  When the briefs were being written in the University of Texas case, I was asked by some attorneys whether Bingham said anything about the subject that they could use.  I said no.  Upon reflection, though, I suppose he he did say one thing that was interesting.

The letter was written to President Rutherford B. Hayes while Bingham was serving as the American Ambassador to Japan.  Bingham was commenting on the charge that Hayes was selling out the freed slaves by withdrawing Union troops from the South (or, more accurately, to their barracks) following the resolution of the disputed presidential election of 1876.  Here is what he said:

"Surely you have surrendered no right nor have you done any wrong in seeking by peaceful means to restore the unity of the Republic, the supremacy of the Constitution and "the equal protection of the laws" to all the people of every State and especially to the enfranchised colored people, who are the wards of the nation.  There is nothing in all that you've said or done so far as I am advised which gives color of excuse for the charge made against you, that you have betrayed or that you intend to betray, the colored citizens of the Union, and leave them naked to their enemies."

Posted 10:49 AM by Gerard N. Magliocca [link] (115) comments

Announcing Long Wars and the Constitution

Stephen Griffin

Books on war powers face some challenges.  In my experience, the general debate over war powers since Vietnam is fairly salient.  I can’t count the number of times non-lawyers as well as well-informed law professors have asked me, for example, “Whatever happened to declarations of war?”  War powers is a freighted subject and people understandably tend to have strong opinions.

I also reject what might be called the “presumption of equal relevance” – the idea that each use of presidential war power, especially in the nineteenth century, is equally relevant to the circumstances we face today.  I largely agree with the “1950 thesis” that Truman’s commitment of troops to Korea without authorization from Congress marked a sharp break in our constitutional tradition.  But the crucial point is not so much the power Truman asserted but rather that he had new state capacities and resources available to him (and all post-World War II presidents) that were not available to prior presidents.  The critical variable of state capacity has been mostly ignored in previous studies of presidential war powers.  Once we take it into account, it will alter our perspective and understanding of the use of war powers since 1945. 

Read more »
Posted 4:31 PM by Stephen Griffin [link] (9) comments

Why Everyone Should Read Jack Goldsmith, "The Trust Destroyer"

Sandy Levinson

Another must-read piece, also, like Steve Coll's New Yorker essay, a review of Mark Mazzetti's The Way of the Knife:  The CIA, a Secret Army, and a War at the Ends of the Earth, is Jack Goldsmith's "The Trust Destroyer," in the current New Republic.  Goldsmith (a friend and sometime colleague at the Harvard Law School) is usually thought of as being on the more conservative side of the spectrum from Coll, but their take on the book, and on the deficiencies of the Obama presidency--again, this is relevant to Mary Dudziak's critique--is remarkably similar.  The Administration is obsessed with secrecy and fundamentally unwilling to work with Congress (perhaps understandably, in terms of contemporary partisan politics), and the cost is (justified) erosion of trust in the presidential apparatus, including Obama himself.  Should we have a genuinely public debate about what forms new congressional legislation might take with regard to regulation of drones and the use of special forces in countries with which we are not at war, I'm not positive how I'd come out, but I agree with both Goldsmith and Coll that the quality of our democracy is being eroded by the coy nature of such debate as occurs, where an Administration official makes a speech, at Oxford, Harvard, or wherever, or the President says something cryptic at a news conference, or, most notoriously, someone leaks the "White Paper" without, however, publicly addressing what many of us view as its near-bizarre notion of "imminence" with regard to justifying assassination. [UPDATE:  A major theme of Steve Griffin's fine new book, which I happily blurbed, is that we have never truly thought through the legal doctrines required to justify what has become basically common practice since Truman's intervention in Korea.  Steve emphasizes not only the changing nature of the challenges facing the US and its presidents, but also, crucially, the remarkably enhanced capabilities that presidents have in their capacity as "commanders-in-chief."  In addition to weaponry that even Truman, who "dropped the Bomb," could not have envisioned, there is also the creation of "special operating forces" and the parallel airforce now apparently under the control of the CIA.

With regard to the White Paper's relianceon "imminence" as a justification for targetted assassination, I think it'w worth noting that the ABA rules of professional conduct, which in many states permit lawyers to disclose confidences when "imminent" danger is presented by a client, are interpreted far more restrictively.  That's not meant to be a knock-down argument.  Back in the days when I taught professional responsibilty, I suggested that a corporate attorney who realized that his clients were violating certain environmental laws and therefore posed a danger to people, even if not "imminently," should still feel at least a permission, and perhaps even a duty, to disclose.  Consider the West, Texas explosion in this regard, where the company storing ammonium nitrate seems, on the face of it, to have engaged in flagrantly negligent, if not outright criminal, misconduct.  This simply illustrates the potential value of a genuine public debate about the meaning of "imminence" and whether we are/should be willing to apply the same definitions to fat-cat lawyers for banks or chemical companies and to suspected terrorists. 
Posted 4:04 PM by Sandy Levinson [link] (10) comments

Erie Railroad v. Tompkins and the New Deal Constitution

JB

Last week Richard Epstein and I were on a panel at AEI on the New Deal Constitution, commemorating the 75th anniversary of the decisions in Erie Railroad v. Tompkins and United States v. Carolene Products.  The video is available here.  Michael Greve kicks it off with a fifteen minute introduction to the two cases; Richard's talk begins about 14:30, and my talk begins about 24:55.  I discussed both Erie and Carolene Products in my talk; in this blog post, I will say a few words about Erie.

Erie is often associated with the New Deal, because it resulted in a kind of federal judicial restraint.  Henceforth, federal courts had to defer to state common law decisions in diversity cases. Nevertheless, in my talk, I pointed out that Erie's connection to New Deal ideas was quite contingent.  If Erie had been decided in 1948, after Darby and Wickard, rather than in 1938, the course of history might have looked very different.  It might not have seemed all that important to overrule Swift v. Tyson, and Erie might have come out the other way.

Justice Brandeis objected to federal common law in part because federal judges could make regulatory decisions through federal common law that Congress itself could not make through its enumerated powers.  But that would no longer have been true after Darby and Wickard. Between 1942 and 1995, it was generally assumed that Congress's regulatory powers were plenary.  And even after 1995, it is still generally thought that Congress has wide-ranging powers to regulate economic activity, which might encompass large swaths of tort, contract, and property law.

Another motivation for the decision in Erie was that New Deal liberals (and some of the Justices) did not like the conservative and anti-labor features of federal common law in 1938. But the Wagner Act and a host of later federal statutes and regulations would have eventually preempted many of these federal common law decisions.

Perhaps equally important, federal statutes and regulations also preempted many of the state common law rules that Erie assumed would control in diversity cases-- including the common law rules at issue in Erie itself, which concerned railroad safety. So the long term result of the New Deal was that many of the issues that Erie assumed would be handled by state common law were ultimately controlled by federal courts construing federal statutes and regulations.  (See Sam Issacharoff's recent paper on SSRN on this point.)

Not only was Erie not particularly necessary to the New Deal Revolution, but the case it overruled, Swift v. Tyson, could fairly easily have been adapted to the regulatory purposes of the New Deal.  If the Court had retained the rule of Swift v. Tyson, federal common law would not have stayed conservative for long. It would probably have changed with new judicial appointments. The federal courts and the Supreme Court, staffed by New Deal liberals, would have gradually created a federal common law of tort and contract that would have harmonized with New Deal values.  For example, liberal federal judges like Black, Douglas, Brennan, and Marshall would probably have created a liberal version of federal common law in areas like products liability, just as liberal judges on the state supreme courts did.

In this alternative scenario, conservatives in Congress might have responded to liberal federal common law decisions with federal tort reform statutes and conservative judicial appointments designed to limit or overturn these decisions. Both the liberal innovations and the conservative responses would have have further nationalized tort law. Because of Erie, however, tort reform occurred state by state and conservatives on the federal courts were mostly limited to procedural reforms like limiting federal class actions.  Whether you think this is a good thing or a bad thing, the point is that deciding Erie in 1938 had path-dependent effects that shaped how modern tort law developed.  Today tort law is taught in first-year courses as a state common law subject. But without Erie, it might increasingly have been viewed as a course about federal law and more closely integrated with federal statutory and administrative regulation.

Finally, it's worth noting that the debate over federal common law in Erie presents a very different set of problems than we face in debates over federal common law today-- for example, in debates over whether customary international law is federal common law.  The federal common law of Swift v. Tyson was non-exclusive.  Under the rule of Swift v. Tyson, both the federal courts and the state courts could have their own common law rules of tort and contract.  But the federal common law that people fight about today normally displaces state law to the contrary.



Posted 12:50 PM by JB [link]

Must We Be Faithful to Original Meaning?

JB

I've posted my latest article, "Must We Be Faithful to Original Meaning?" on SSRN. The essay came out of a May 2012 conference on Living Originalism held at Hebrew University in Jerusalem. It expands on some of the arguments I made in the book for my version of original meaning originalism. The essay closes by discussing a few analogies between different versions of originalism in American legal theory and different theories of Biblical and Talmudic interpretation in Jewish law. Here is the abstract:

* * * * *


This essay responds to essays written for a symposium on Living Originalism that will appear in the Jerusalem Review of Legal Studies. It expands and develops the book's argument for fidelity to original meaning.

First, the essay explains why interpretive fidelity requires, at a minimum, fidelity to the basic framework -- the Constitution's original semantic meaning and the Constitution’s choice of rules, standards, and principles. This is a hypothetical imperative, not a categorical one. If Americans want to follow the plan of their Constitution, this is the least that fidelity requires. But they need not continue to do so. As they did with the Articles of Confederation, Americans could reject their present Constitution through a new act of constituent power. The argument assumes, however, that Americans are not deluded or disingenuous in asserting that they continue to accept their Constitution as amended.

Second, the article argues for a "thin" theory of original meaning that both leaves room for and necessitates constitutional construction by subsequent generations. To be sure, framework originalism makes use of background context to infer some aspects of original meaning that are not explicitly stated by the text, but it limits these inferences to those necessary to make sense of the basic framework and its economy of delegation and constraint.

A "thin" account of original meaning makes the best sense of Americans' actual practices of constitutional development. It is also the most consistent with the democratic legitimacy of an ancient constitution over time. A theory of original meaning that is too thick will increasingly undermine democratic legitimacy as time goes on. It will fail to make use of the institutional capacities of later generations to adapt government to technological, social and economic change. The problems of the increasing democratic deficit of originalism over time and of the limited institutional capacities of adopters are best solved by a thin theory of original meaning, which leaves ample room for constitutional construction.

The essay concludes by comparing different theories of originalism -- including Living Originalism -- with different theories of Jewish law that explain or justify disagreement or change over time. An important difference must be noted at the outset: According to Jewish tradition, the Torah is the word of God, and therefore cannot be mistaken, while a political constitution is the work of fallible human beings.

Nevertheless, the different rabbinic solutions to (or explanations of) disagreement and change in the Talmud correspond to different positions in American constitutional scholarship. The argument of Living Originalism, it turns out, is closest to the position of Rabbi Moshe Shmuel Glasner (the Dor Revi'i), who argued that while the Written Law does not change, the Oral Law must be dynamic in order to "not to tie the hands of the sages of every generation from interpreting Scripture according to their understanding."


Posted 4:55 PM by JB [link]

The Left's Failure and the Mismatch Effect

Jason Mazzone

Brian Tamanaha's essay, "The Failure of Crits and Leftist Law Professors to Defend Progressive Causes" is characteristically provocative. Here is one especially interesting nugget from Brian's essay:

Black and Hispanic graduates, moreover, appear especially burdened by law school debt. Ninety-five percent of African American graduates take on debt for their legal education, substantially above the percentage of white graduates who do so (81%). A study of graduates from the class of 2000 found that a much smaller percentage of black (4.5%) and Hispanic (6%) law students graduated from law school debt-free than did whites (17.3%) and Asians (19.9%). The median debt of blacks ($72,000) and Hispanics ($73,000) was higher than that of whites ($70,000) and Asians ($60,000). Half a dozen years out, fewer blacks (17%) and Hispanics (28.9%) had paid off their student debt as compared to whites (37%) and Asians (46.8%).

I immediately wondered how the above claim relates to Richard Sander's account of mismatch in legal education: the phenomenon that (as Sander presents it) race-based affirmative action ends up placing Black and Hispanic students in law schools where they perform worse academically than they would if they attended (in a race-blind system) less competitive schools, with negative career outcomes as a result. Sander doesn't say much about debt in his article, except for the following:

Anecdotal evidence suggests that many law schools try to minimize the size of their internal black-white gap by competing vigorously for black candidates, both by “wining and dining” strong prospects and by offering those prospects generous financial aid. More systematic data from the AJD study shows that blacks in the 2000 cohort of graduates received about three times as much in grants and aid from their law schools as did students of other races. It is reasonable to suppose that in a race-blind system, race-based financial aid would decline (though I would argue that recruiting more blacks into the system as a whole remains a valid and important goal). It is certainly possible that a decline in aid for blacks, if it occurs, could discourage some black applicants. On the other hand, Hispanic law students currently receive far less scholarship aid than blacks (even though Hispanic law students tend to come from less affluent backgrounds) but apply to law school in very similar proportions to their numbers among college graduates.

How do we reconcile Tamanaha and Sander to figure out exactly what the impact of "mismatch" is on the debt load of minority (here, meaning Black and Hispanic) law school graduates? I would have thought that if law school scholarships are heavily based on merit rather than need, a minority applicant would end up with a larger tuition break--and better odds of paying off any loans--by attending Average Law School rather than Elite Law School. Thus, affirmative action would drive up debt. On the other hand, if, as Sander suggests, Elite Law School is willing to pay a very high premium for a minority candidate, affirmative action should reduce the debt incurred by minority graduates. Perhaps we need information about the distribution of debt figures (rather than simple averages) -- but do readers have thoughts on the financial impact of affirmative action?      



Posted 4:49 PM by Jason Mazzone [link] (7) comments

Why everyone should read Steve Coll's review in the New Yorker: A point on Mary's side

Sandy Levinson

Anyone interested in the more ominous side of the Obama presidency, where it is reasonable, as Mary Dudziak has recently suggested, to focus more on the contingency of who is President than on the deep structures established by the Constitution, should read Steve Coll's review in the current (May 6) New Yorker of two recent books on the rise of targetted assassinations (and much else) by Mark Marzetti (The Way of the Knife) and Jeremy Scahill (Dirty Wars).  The single most depressing line is a (purported) quote of the President made during a Situation Room meeting in which a member of the Joint Chiefs of Staff questioned the rise of a parallel airforce controlled by the CIA:  According to Marzetti, Obama said, "The C.I.A. gets what it wants."  (One assumes that this was a performative utterance, expressing Obama's own preferences, rather than a merely descriptive statement made by a man lamenting that he did not have the power, as President of the United States, to prevent the CIA getting "what it wants.")  Were this a statement of George W. Bush, I presume that many people would be up in arms (so to speak).  Coll suggests that the message of the two books, and much contemporary journalism, is that the Obama Administration, far more than its predecessor Bush Administration, has adopted a policy of  cold-blooded assassination without any public disclosure, save for the "White Paper," of even the general criteria, let alone the specifics, that have resulted in de-facto capital punishment for an undisclosed, by obviously non-trivial, number of America's enemies.  (At one point, the CIA claimed, preposterously, that there was no collateral damage in the drone attacks, that everyone attacked was in fact an enemy, a position similar to that taken in Vietnam during Operation Phoenix.)  The Obama Administration's position is ultimately "Trust Us" (and accept the fact that we're leaving a legacy of remarkably unconstrained powers, at least in conventional terms where we look to courts, Congress, or an informed press to supply some constraints). 

Coll ends his review with a discussion of the remarkable documentary The Gatekeepers, in which five former directors of the Israeli Shin Bet, certainly no shrinking violets when it comes to conducting wars on terror, all express their reservations about Israeli policy.  One hopes that Obama has seen the movie and has genuinely wrestled with its arguments.  If he hasn't, then that would even more justify the criticism directed at him by Mary, since, obviously, even I cannot possibly blame the Constitution should that be the case.  If he has seen the movie, then I would like him to assess it in his next news conference. 

Like Mark Tushnet, I find myself genuinely ambivalent about drone attacks.  I suspect that they are often less destructive of human life than conventional warfare.  But the Obama Administration simply has not encouraged or, more to the point, participated in the kind of systematic discussion that we need, as an ostensibly free people, before so enthusiastically adopting this new model of warfare.  I happened to listen to an NPR segment driving home about the history of the ban on chemical weapons.  From a coldly ratioonalist point of view, it is not clear why use of chemical weapons is so much worse than other weapons designed to kill and maim people.  But there does appear to be a strong international convention against their use, and we may find ourselves (unwisely, I think) intervening in Syria because that almost mystical "red line" has seemingly been crossed.  How, at the end of the day, do we decide what is acceptable and unacceptable as means of killing, maiming, and otherwise destroying the lives of people?  Cf. the Boston Marathon event, which certainly killed and maimed using very primitive weaponry indeed. 
Posted 7:50 PM by Sandy Levinson [link] (59) comments

The Health Care Case -- The Book!

Nate Persily

Oxford Press has just published The Health Care Case: The Supreme Court's Decision and Its Implications, which I edited along with Gillian Metzger and Trevor Morrison.  Many Balkinization bloggers have contributed chapters.  The Table of Contents appears below:



Posted 6:17 PM by Nate Persily [link]

Defining "the recess"

Gerard N. Magliocca

The Noel Canning case addressing the President's recess appointment power should be the star of the next Supreme Court Term, assuming that certiorari is granted.  I want to raise the following question about the panel opinion's interpretation of "the recess" to mean only an intersession recess.

One other provision of the Constitution refers to "the recess."  It is in Article One, Section Three, and describes what would happen (prior to the Seventeenth Amendment) if a Senator died or resigned.

"[I]f vacancies happen by resignation, or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies."

This other use of "the recess" could point to a textual problem with the panel opinion.  It would mean that the Constitution imposed a federal definition of "recess" on state legislatures. If Connecticut said that intrasession breaks were recesses, or did not subdivide its legislative meetings into sessions at all, then that either would not be valid for purposes of a Senate appointment or would make a hash of the constitutional language.  Note also that Art. I, Sec. 3 refers to "the next meeting" of the legislature, not "the next session," which can support the intrasession interpretation.

Now you could say two things in response.  First, in practice all of the interim appointments of Senators prior to 1913 probably were intersession, for the simple reason that intrasession breaks would probably have been too short to make it worthwhile to name an interim person.  Second, "the recess" could mean different things in these provisions, one about states and the other about the Senate.  All of this is well worth exploring in more detail.
Posted 5:46 PM by Gerard N. Magliocca [link] (2) comments

A Reconstruction of Conventional Understandings of Jurisprudence

Brian Tamanaha

The Third Pillar of Jurisprudence: Social Legal Theory, available here.

The abstract:

Jurisprudence is generally thought to consist of two main classical rival branches — natural law and legal positivism — followed by a bunch of modern schools — legal realism, law and economics, critical theory, legal pragmatism, etc. In this essay I argue that three main branches of jurisprudence have existed, and battled, for centuries, not two, but the third goes unrecognized as such because it has traveled under different labels and the underlying connections have been clouded by various confusions. The core insights and focus of this third branch, what I call “Social Legal Theory,” trace in a continuous thread from Montesquieu, through historical jurisprudence, sociological jurisprudence, and legal realism, up to the present. This third branch, I argue, provides a contrasting/complementary perspective, in conjunction with natural law and legal positivism, which rounds out the full range of theoretical angles on law: natural law is normative; legal positivism is analytical/conceptual; and social legal theory is empirical. (Among a number of clarifications, I answer the common objection that empirically-grounded theories are not sufficiently theoretical.) The conventional jurisprudential narrative is redrawn in this essay in a way that exposes unseen connections among theoretical schools and brings into focus critical issues about the nature of law that currently are marginalized by natural law and legal positivism.

Posted 12:48 PM by Brian Tamanaha [link]

A Leftist Critique of the Left

Brian Tamanaha

"The Failure of Crits and Leftist Law Professors to Defend Progressive Causes," available here.

The abstract:

Future generations will look back at the first decade of the twenty-first century as a pivotal time when a huge economic barrier was erected to encumber the path to a legal career. The symbolic announcement of this barrier rang out when annual tuition crossed the $50,000 threshold, now exceeded at a dozen or so law schools. Including fees and living expenses, it costs well in excess of $200,000 to obtain a law degree at most of the nation’s highly regarded law schools and at a number of non-elite ones as well. Law schools thus impose a formidable entry fee on anyone who wishes to follow what, until recently, has long served as a means of upward mobility and access to power in American society.

The pricing structure of legal education has profound class implications. High tuition will inhibit people from middle-class and poor families more than it will deter the offspring of the rich with ample resources. Law school scholarship policies, for reasons I will explain, in effect channel students with financial means to higher ranked law schools, reaping better opportunities, while sending students without money to lower law schools. A growing proportion of elite legal positions will be held by people from wealthy backgrounds as a result. For students who rely on borrowing to finance their legal education, the heavy debt they carry will dictate the types of jobs they seek and constrain the career they go on to have.

Liberal law professors often express concerns about class in American society — championing access to the legal profession and the provision of legal services for underserved communities. Yet as law school tuition rose to its current extraordinary heights, progressive law professors did nothing to resist it. This Article explores what happened and why.

This is offered in the spirit of critical legal studies — as a critical self-examination of the failure of leftist law professors. The Crits were highly critical of complacent liberal academics of their day, arguing that they had a hand in perpetuating an unjust legal system; here I charge liberal legal academia — including the Crits — with perpetuating the profoundly warped and harmful economics of legal education. What follows will offend many of my fellow liberals. It may even lose me some friends. Liberal law professors must see past their anger to reflect on whether there is a core truth to my arguments, to take personal responsibility for what has happened, and to engage in collective action to do something to alter the economics of our operation. If not, the current economic barrier to a legal career may become permanent.




Posted 12:37 PM by Brian Tamanaha [link]

Judging the Case Against Same-Sex Marriage

Andrew Koppelman

Posted 8:26 AM by Andrew Koppelman [link]

Both Mary and I are right

Sandy Levinson

I appreciate Mary Dudziak's thoughtful post on the legitimate disillusion with aspects of Barack Obama's presidency.  I think it is a disgrace, for example, that he so completely capitulated to the well-off complainers about relatively modest delays in air travel while he has remained basically silent about the insane sequester cuts that are affecting those who do not regularly engage in air travel.  Far better for the "sequester" to be considered on an "all-or-nothing" basis than allow Republicans and scared Democrats to cherry-pick those relatively few aspects of the sequester that impinge on those at the relative top of the class structure (including, I must confess, well-paid law professors like me who fly a lot).  I also think that it is fair to criticize Obama (or, for that matter, to praise him) for certain foreign policy decisions given the relative autonomy that American presidents may have in that domain, or in making certain kinds of military decisions. 

That being said, I continue to think that Maureen Dowd's criticism of Obama for failing to play sufficient hardball vis-a-vis the background-check bill is mistaken.  The President has far less practical power with regard to domestic legislation.  Would it really make sense, for example, for the President to threaten Mark Begich, whose re-election to the Senate is essential if Democrats are not to be rendered irrelevant after the 2014 election, because he is cautious about putting his re-election in jeopardy by voting for a bill that a) would, at best, be only marginally helpful in helping to reduce violence attached to guns; and b) would very likely not be passed by the House.  Critics are basically asking the President in effect to place Begich's re-election in jeopardy by asking (or imposing pressure on him) to engage in a "grand gesture" that would not only risk his re-electionbut also would probably not eventuate in actual legislation.  The reason for the latter is the bicameralism that is an important part of the Constitution.  Its purpose (and function) is to make it harder to pass legislation, which means, among other things, that a member of either house of Congress must calculate the actual odds that the other house will be receptive.  Jimmy Carter many years ago successfully put pressure on Democrats in the House to support some energy reforms that then went nowhere in the Senate, which, quite understandably, angered the House members who went out on a limb. 

As it happens, I support bicameralism in a polity as large as the US (or, for that matter, even Texas, though not, e.g., any state smaller than New Zealand, which functions just fine with one House of Representatives), though I despise the principle of equal representation in the Senate.  But we should be aware that even the best bicameral systems (far better than our own) may impose costs as well as benefits.  In any event, we should be able to combine both "personal" sorts of criticisms of the kind that Mary offered with the more "structural" ones that I emphasize.  It is altogether possible that if everyone were making structural arguments, I would feel compelled to point out that individuals and other contingencies are important as well, as Mary correctly suggests.  But, to put it mildly, I don't think there's an excessive emphasis on structural argument in our contemporary discourse. Just read every single one of the Times' or Washington Post's stable of columnists, of all political persuasions.  So until one of those worthies does indeed connect the dots, I will continue to complain about the partial nature of their often otherwise helpful analyses. 


Posted 12:49 AM by Sandy Levinson [link] (36) comments

It’s time for liberals to stop making excuses for Obama

Mary L. Dudziak

Sandy Levinson took Maureen Dowd to task for her column last week, “No Bully in the Pulpit,” which criticized President Obama for failing to pull the votes together to get the gun control bill through the Senate.  “Now it's Maureen Dowd who can't connect the dots,” he said. 

She thinks he should have played hardball with the holdout Democrats and attempted to recruit more Republican support.  In particular, he shouldn't have left the cajoling up to Joe Biden.  For her, it's always personalities, and never structures, that explain the American political system.  So she's my latest candidate among Times' columnists who simply cannot connect the dots between political outcomes and the structures established in the Constitution.

For Sandy, “the egregious outcome is best explained by our egregious Constitution and the allocation of voting power in the Senate.”

Sandy is, of course, right that structure matters.  But Dowd is also right that a president’s effectiveness in using the powers of his office also matters.  Other presidents have faced structural barriers to achieving their goals.  Some presidents have been more successful than others at moving forward in the face of opposition. Structure alone does not determine political outcomes. 

The more we explain away failures during Obama’s presidency as the inevitable consequence of political structures, the more we put off an urgent analysis of the failures of the president himself.  And the more we put off the political work that liberals and progressives need to engage in: marshaling our own efforts against a president we once supported. 

We have a liberal president who has used his powers to institutionalize and legitimize targeted killing, but who was unable to use a powerful political moment – the aftermath of the Sandy Hook shootings – to get gun control through the senate, who has escalated the rate of deportations, and who is silent as prisoners appear to try to kill themselves at Guantánamo, a prison he promised to close.  With no substantial push-back from the left, the direction of compromise is of course toward the right.  And so, if we are to focus on structure, the absence of more powerful progressive opposition becomes its own feature of the broader political structure.  As liberals remain hopeful and wait, the only meaningful political push-back is from the right.
   
In his second term, Obama won’t need to worry about electoral consequences, of course, but he should be worrying about his legacy.  It won’t be long after the 2016 election that we will turn to assessing the Obama presidency.  At that point, we will tally up the successes and the failures, of which gun control is surely one.  But the time for liberal and progressive pundits and intellectuals to voice their disappointment in this presidency is now, when a chorus of criticism from formerly loyal supporters might serve as a wake-up call before this truly becomes a lame-duck administration.  It’s time for liberals to stop making excuses for Obama, but instead to hold him accountable.
Posted 3:00 AM by Mary L. Dudziak [link] (25) comments

Guantanamo as a "Political Prison"

Mark Tushnet

Posted 2:54 PM by Mark Tushnet [link]