Al-Bihani: 113 Pages Denying Rehearing (While Basically Granting It)

Steve Vladeck

This morning, the D.C. Circuit (finally) denied the petition for rehearing en banc in Al-Bihani v. Obama, its first post-Boumediene decision on the merits in a Guantanamo habeas case, and one that engendered a fair amount of criticism for its rather desultory treatment of whether international humanitarian law had any bearing on the government's detention authority under the 2001 Authorization for Use of Military Force (the panel said no, even though the government hadn't taken such an extreme view). [I've written before about some of the issues with the decision, and co-authored one of the amicus briefs in support of rehearing.]
Posted 11:11 AM by Steve Vladeck [link] (23) comments

Update on UVa

Sandy Levinson

Readers may recall that Virginia Attorney General Kenneth T. Cuccinelli, II, a rabid right-winger eager to use his office for political advancement, issued draconian "Civil Investigative Demands" to the University of Virginia with regard to the research on global warming of a former professor at UVa who has long since departed for Penn State. The University resisted the demand on both technical and broad constitutional grounds. Today Judge Paul M. Peatross, Jr. of the Sixteenth Judicial Court of Virginia issued a six-page letter completely dismissing the CIDs issued by Cuccinelli on the ground that he shown no objective "reason to believe" that the University in fact possesses any "materials relevant to a false claims law investigation" and that he also did not state "the 'nature of the conduct' with sufficiency to satisfy the requirement of the statute." I.e., the Attorney General is not given power by the statutes of Virginia to enage in what is the equivalent of a sweeping general warrant based on nothing more than his own ideological zeal and belief (even if sincere) that something was amiss. The CIDs were dismissed "in their entirety without prejudice," which means that Cuccinelli can presumably take another bite of the apple if he can come up with plausible evidence supporting his ideological zealotry. At that point, the profound questions involving Prof. Mann's academic freedom (and, even more certainly, the freedom of each and every one person who has communicted with him and comes under the terms of the remarkable CIDs) might well become relevant, though Judge Peatross went out of his way to offer a narrow and basically technical decision. (Among other things, the Virginia AG has no jurisdiction to investigate alleged fraud with regard to federal, as against state, grants.)

This is a good day for civil liberties and academic freedom, though it does remain to be seen whether it really brings the case to an end, given Mr. Cuccinelli's patent zealotry and his disregard for academic autonomy. (Recall that Prof. Mann has been the subject of at least two investigations by his academic peers, both of which found no substance to the allegations brought against him by anti-global warming zealots.)
Posted 4:43 PM by Sandy Levinson [link] (33) comments

Thoughts on Legal Education

Jason Mazzone

There is a lot of talk these days about what law schools teach. There is also a lot of talk about who teaches in law schools. Both conversations center on the relative importance of theory versus practice. Are law schools academic departments of universities that should be staffed with researchers pursuing knowledge? Or are law schools professional schools that should be staffed with practitioners who train students to perform legal work?

These conversations are not new. But they have taken on increased importance in the past few years with the 2007 Carnegie Report calling on law schools to provide more training to their students in practical and ethical skills and with the downturn in hiring of law school graduates.

Most law schools provide a mix of theory and practical skills. And most law schools have some teachers who are academically focused and other teachers who are more practice oriented. (In some schools, this division corresponds to differences in rank and title, with the academics the professors and the practice-oriented teachers called clinical faculty or instructors. In other schools, everyone is a professor.) Virtually all law schools also have lawyers or judges who teach part time as adjuncts; they usually cover the nitty-gritty of legal work.

Those who take a position on what law schools teach and who teaches in law schools typically call for a recalibration of this theory-practice mix. Mostly, like the Carnegie report, the recommendation is for less theory and more practical skills. But some observers think the current balance is fine: legal education, they say, provides a broad education in the law and specific practical skills are learned on the job. (A few observers think law schools should emphasize more not less theory.)

These debates strike me as too narrow. Rather than think in terms of what law schools do and who staffs them, we should think more broadly about the law school and the university.

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Posted 11:12 AM by Jason Mazzone [link] (40) comments

Never Pay a Speeding Ticket Again?

Ian Ayres

Crosspost from Freakonomics:

A couple weeks ago, I became briefly fascinated and somewhat appalled by the appearance of a new Internet business that offered a sort of insurance against speeding tickets. In return for an annual fee of $169, ticketfree.org promised to reimburse you for the costs of up to $500 in moving violations. Its webpage enthused:

• We don’t promise that you won’t get a ticket; we just promise that you won’t have to pay for it.


• Never pay another ticket again. Period!


• Never pay late fees on tickets.


• Never worry about speed traps or radar while driving.


• Never need an expensive ticket lawyer.


• Never have a take a day off work to fight a ticket.

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Posted 10:49 PM by Ian Ayres [link]

Same-sex marriage, Ken Mehlman, and the race against the clock

JB

Former Republican National Committee Chair Ken Mehlman's decision to come out as gay provides a convenient moment to discuss a problem I've been wresting with in thinking about the prospects for success in Gill (the challenge to DOMA) and Perry v. Schwartzenegger (the challenge to California's Proposition 8 ban on same-sex marriage).

Readers of this blog know that I have been skeptical of federal challenges to state marriage laws at this time, arguing that marriage equality advocates are about 10 years away from a good chance of success in the Supreme Court,and that it is better to try to win victories in state legislatures and state courts and change national public opinion.

The problem is that because of Gill and Perry v. Schwarzenegger, we do not have that luxury anymore. These cases--or others like them--will wend their way through the federal courts. (By the way, the Justice Department, to my knowledge, has not yet decided whether to appeal Gill. It has 60 days from August the 18th.)
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Posted 3:12 PM by JB [link]

False Marking in Patent and Copyright Law

Jason Mazzone

Section 292 of the Patent Act provides for a civil penalty for falsely marking a good as patented. It says:

Whoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article, the word “patent” or any word or number importing that the same is patented, for the purpose of deceiving the public ... shall be fined not more than $500 for every such offense.

Section 292 is a whistleblower provision. It allows anybody (without regard to personal injury) to bring a lawsuit and retain half of the collected penalty with the other half going to the United States.

A 2009 decision by the U.S. Court of Appeals for the Federal Circuit greatly increases the incentive to avoid section 292 liability. In Forest Group Inc. v. Bon Tool Co., the Federal Circuit held that each individual article that is falsely marked constitutes an “offense” within the meaning of section 292. Previously, lower courts had grouped multiple articles of the same product together as a single false-marking offense. This meant that the manufacturer of a falsely-marked product faced only a total possible fine of $500, regardless of how many individual articles were wrongly marked as patented. Following the decision in Forest Group, the manufacturer who falsely marks a product as patented can face fines in the millions of dollars, depending on the number of individual articles produced.

There is a lesson here for copyright law.

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Posted 9:00 AM by Jason Mazzone [link] (10) comments

Architecture, Law, and Innovation

Marvin Ammori

Yesterday, I was chatting with a law scholar whose research focuses on innovation. He told me that, on his desk, at the top of his short stack of new books to read, is Barbara van Schewick's celebrated new book, Internet Architecture and Innovation. I wasn't very surprised: it seems everyone interested in Internet law and policy or innovation is talking about the book. Harvard's Larry Lessig recommended it in the New York Times; Cardozo's Susan Crawford, formerly a top White House advisor, recommended it in an op-ed; Brad Burnham, a venture capitalist who was an early investor in Twitter and Flikr, praised it on his blog; and MIT engineering professor David Reed, and co-author of the original end-to-end arguments, endorses the book on its jacket.

So I wanted to flag this book even for those among you who tend not to read the latest book on Internet policy, but who would be interested more broadly in an important book on law, economics, architecture, and innovation.

I have already posted a longish review of the book for a general audience, on my (only sometimes-updated) personal blog. Mainly I explain why general readers should not be scared of an academic book--something about which I needn't worry for law professors and law students.

The framework and arguments of the book have broader applicability to legal thinking, even beyond Internet issues.

First, it's the best example of a "law and architecture" book. A few years ago, Larry Lessig published a paper called "The New Chicago School." The paper (playfully) built on the "Chicago School," a school of legal analysis grounded in economics. Lessig's "new" school proposed four categories of constraints on human behavior--law, economics, norms, and architecture. He developed the importance of the last, architecture, in his seminal book about software and the Internet, called Code. By architectural constraints, Lessig meant "the world as I find it": walls are a constraint on snooping, the weight of large objects is a constraint on stealing. (Of course, economics is also at play; if I had enough money, in theory, I could buy the wall and tear it down, or hire strong thieves. But for most of us, that's not a realistic option.) He discussed how markets and law interact with, and shape, online architecture to yield particular constraints on individuals, or to enable particular liberties. For the Internet, architecture is even more malleable than in the real world; you can add or remove a "wall" to affect snooping with just a few key strokes. We can architect "cyberspace" (in the language of 1999) or the technologies of the Internet to promote certain social values, like free speech, innovation, or privacy. Or we can architect the technologies to undermine those values.

Barbara's book is the best analysis built on an analysis of architecture, economics, and law. She analyzes how the original architecture of the Internet--built according to particular, open design principles--promotes one particular, important value, innovation.

Second, the book is interdisciplinary of necessity, incorporating deep insights from computer engineering (Barbara has a phd in computer science), law (she is a law professor at Stanford), management science, and economics. Since she is expert in all these areas, she can see and make connections that other scholars, focused in one discipline, will overlook. And since she is writing for so many different audiences, her book is fascinatingly informative for all of us who wondered how the Internet actually works.

Finally, her economic analysis of innovation is among the most interesting law and economics analysis I've come across. It rests on the leading research in innovation economics and succeeds in disproving several economic arguments previously considered conventional wisdom to some economists, especially those discussing telecommunications. Her framework clarifies thinking on the one monopoly rent theory as well as assertions on where competition should and should not lead to optimal public interest outcomes--using the example of competition among cable and phone companies, which, she proves, should not ensure an open Internet, despite industry arguments to the contrary.

And the website for her book is here.
Posted 11:19 AM by Marvin Ammori [link] (16) comments

McDonald v. Chicago and Bill of Rights Uniformity

Jason Mazzone

Justice Stevens’s dissenting opinion in McDonald v. Chicago is remarkable for many reasons. This post focuses on Stevens’s argument that provisions of the Bill of Rights need not apply in the same way everywhere. The Justices in the majority did not fully come to terms with Stevens’s claim. Understanding Stevens’s argument and assessing its implications require reading McDonald through the lens of some earlier cases in which Stevens also wrote about Bill of Rights uniformity.

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Posted 9:05 AM by Jason Mazzone [link] (17) comments

Our undocumented heritage

Mary L. Dudziak

Scholars Paul Finkelman, James Anaya and Gabriel J. Chin discuss birthright citizenship on Huffington Post:

Under the Fourteenth Amendment, children born in the United States are citizens, even if their parents are not. Inspired by Arizona's new (and partially suspended) law regulating unauthorized immigration, Senators Mitch McConnell, John Kyl, John McCain, Lindsey Graham, Representative John Boehner, and other Republican leaders have proposed considering amending the Constitution to deny citizenship to children born in the United States but whose parents are undocumented.

As law professors we oppose the proposed change, not only for historical and legal reasons, but also on deeply personal grounds. We are the face of the children of illegal aliens, people who are not just abstractions but parts of the human mosaic of the American nation. As it happens, all three of us are the grandchildren of individuals who entered the United States without authorization. From our perspective, the proposal is unwise.

They go on to tell the stories of the way their grandparents came to the United States. Continue reading here.

I can add to this history. My fraternal grandmother came to the United States from Poland, and later worked for many years in the papers mills in western Massachusetts. When she arrived at Ellis Island, she was a teenager traveling alone. She pretended to be a member of a family arriving legally, and gave a false name. If she had not done that, she most certainly would have been excluded from the country as likely to be unable to support herself. She and my grandfather had four children, all of whom served in the U.S. military. Her grandchildren and great grandchildren include school teachers, a nurse, a veterinarian, a former chef, and even a hydro-geologist. The stories of our families show that the history of "illegal aliens" is an essential part of the story of America.

Share your story.

Cross-posted from the Legal History Blog.
Posted 12:00 PM by Mary L. Dudziak [link] (73) comments

Justice Stevens's Triumph

Jason Mazzone

In the Supreme Court’s 2009 Term, now-retired Justice John Paul Stevens was in the minority more frequently than any other Justice. Yet the 2009 Term also represented the near-triumph of Justice Stevens’s position on the role of the Supreme Court vis a vis the state courts in criminal cases.

Stevens has long argued that in exercising its power to control its docket the Court should not review criminal cases in which the only alleged error is that the state court granted the defendant stronger protection than the Court’s own precedents require. With two exceptions, the 2009 Term was consistent with Stevens’s approach.
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Posted 11:45 AM by Jason Mazzone [link] (7) comments

"Structural problems need structural solutions"

Sandy Levinson

This is Pimco CEO Mohamed El-Arian, quoted by Tom Friedman in this morning's column in the Times. I will forego any extended comment, other than to make the entirely predictable (for me) point that Friedman (and almost everyone else) almost wilfully ignores the extent to which the US Constitution is one of the most formidable "structural problems" that face us today. Thus he concludes his column with what can only be described as the sheer fantasy of "the presidentn tak[ing] America's labor, business, and Congressional leadership up to Camp David and not com[ing] down until a grand bargain for taxes, trade promotion, energy, stimulus, and budget cutting that offers the market some certainty that we are moving together--not just on a bailout but on an economic rebirth for the 21st century. 'Far chance,' you say [indeed!!]. When then I say get ready for a long phase of stubborn unemployment and anemic growth." So the question is this: Why is Friedman, a very smart guy, willing to make a fool of himself by offering such a ludicrously fanciful suggestion (which, among other things, simply wishes away the existence of political parties and the rational calculations that party leaders make about what best serves their own interests--which, for Republicans, is sure as hell not giving President Obama the kind of political victory that Friedman is suggesting) even as he utterly fails, week after week and month after month, even to hint that something is grievously wrong with our basic constitutional framework. EJ Dionne is willing to call for the abolition of the Senate (something I don't actually favor, though I'd prefer it to continuing the present Senate). Tom Friedman, along with the rest of the Times crew, including the Nobelist Paul Krugman, would never find the purloined letter because it is right in front of them (and, of course, it's so unlikely, as even I recognize, that anything can be done about that particular 800-pound gorilla).
Posted 11:11 AM by Sandy Levinson [link] (26) comments

The Roberts Court and the State Courts

Jason Mazzone

Thank you to Jack for inviting me to blog here. I teach Constitutional Law, American Legal History, and Intellectual Property Law, and I will mostly post on topics in those areas.

For the past three years, I have been working on several interrelated projects examining the role of state courts in applying federal law. Since Justice Brennan’s 1977 Harvard Law Review article on “State Constitutions and the Protection of Individual Rights,” there has been a lot of academic attention to state court interpretations of state constitutional provisions. How state courts apply federal constitutional and statutory law has been less studied. I will discuss some of my past work on this issue in future posts.

My current project involves research on patterns of Supreme Court review of state court decisions. I am compiling detailed information on such things as how many cases from the state courts the Supreme Court has decided since 1790; how reversal rates have varied over time; which kinds of federal issues the Court has reviewed and how the types of cases have changed over time; which state courts have been reviewed most often; and the Court’s voting patterns in deciding cases on review from the state courts.

With the Roberts Court now at five years there is enough data to draw some conclusions and make some predictions about its orientation towards state courts. The bottom line is that compared to its predecessors, the Roberts Court is reviewing fewer cases from the state courts but reversing a higher percentage of them. In other words, the Roberts Court is intervening only to correct the most serious errors by the state courts.
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Posted 2:30 PM by Jason Mazzone [link] (6) comments

"reinventing government"

Sandy Levinson

Jonathan Mahler has an interesting profile of New York Democratic gubernatorial candidate Andrew Cuomo in this past Sunday's New York Times Magazine. Apparently one of his mantras is the need to "reinvent government," a theme that was, of course, very popular during the Clinton Administration and articulated especially by Al Gore. But the 800-pound gorillas, for anyone who takes the notion seriously, are obviously the respective constitutions of the United States and New York. How can one have a serious conversation about "reinventing government" without broaching the desirability of serious constitutional change? Rick Lazio, the Republican candidate, had actually tossed out the idea of eliminating the New York Senate, which would, obviousy, require a major amendment of the New York constitution. Since it is literally unthinkable that members of the New York Senate would vote themsevlves out of cushy jobs, it would also require a constitutional convention, which the New York Constitution (unlike the United States Constitution) allows the electorate to call. (There is no procedure in New York for initiative and referendum.) The Times, unfortunately, is opposed to such a convention, even as it has called on the electorate in effect to vote "all the bums" out of the Senate and start afresh. The head of New York's "Common Cause" has a good letter opposing the Times editorial.

Unfortunately, Lazio (a long-shot in any case) has chosen to demagogue the Lower Manhattan mosque rather than press what "reinventing government" might really require. That's a shame.
And, of course, even as polls show increasing contempt for Congress (and for both parties), no "serious person" suggests that the fault may be less in the personal defects of Mitch McConnell than in a constitutional system (including the provision that allows the Senate seeming carte blanche to pass its own rules, including the filibuster) that allows McConnell, who is behaving entirely as "rational-choice" political scientists would predict, to obstruct, obstruct, obstruct.

Indeed, given that there is a possibility (though I think slim) that Republicans could get the Senate back in November (or, more precisely, January), this is the pefect time for the President of the Senate, Joe Biden, to announce that he will rule, when the new Senate convenes, that the Senate is not a continuing body and can therefore change its filibuster rule by a simply majority vote. So if the Republicans benefit, so be it. (So long as the filibuster rule is in place, there's certainly no reason for the Democrats to engage in "unilateral disarmament," should they be in the minority. The point is to get rid of it--or at least significantly modify it--for both parties.)

Labels: In

Posted 11:40 AM by Sandy Levinson [link] (11) comments

"nothing that would stand up in court"

Sandy Levinson

I could not help notice a line in today's New York Times full-page editorial about the war in Afghanistan referring to allegations that President Karzai's brother is up to his neck in the drug trade. According to the Times, the response from Washington is that there is "nothing that would stand up in court," so, presumably, we are not bringing great pressure on President Karzai to do something (drastic) about his brother. What is ironic, of course, is that the United States is currently trying at Guantanamo a now-23-year-old for an alleged killing of a U.S soldier when he was 15, before a military court and apparently using a "confession" obtained under conditions that would instantly get it thrown our of a "real court" in the U.S. The Times article, incidentally, notes that this is the first military trial for acts committed by an under-18 "soldier" since World War II.

It wouldn't shock me if the then-15-year old actually did the act alleged, though one could still get into a sustained conversation about the standards of liability imposed on "child soldiers" (and whether, for example, eight years in Guantanamo might be "'suffering enough" (to paraphrase Gerald Ford's famous phrase as he pardoned Richard Nixon) re punishment). But, frankly, it would surprise me even less if President Karzai's brother is indeed the drug-dealer that he is widely reported to be. But for him, the Administration (or at least some anonymous Washington insider not named by the Times) is quite scrupulous in looking for evidence that "would stand up in court.' "Equal justice under law" indeed.
Posted 12:30 PM by Sandy Levinson [link] (74) comments

Charter Schools and Integration

Martha Minow

After decades of struggles over the legality and political viability publicly-funded vouchers to pay for private, including religious, schooling, the contemporary school reform embracing parental choice is charter schools. As the states (and some cities) authorize the distribution of public funds to groups of teachers, parents, community members, nonprofit organizations or businesses to design and run schools, the hope of better schooling is coupled with the possibility of self-segregation. Studies indicate that charter schools generate either more or less racial and ethnic diversity than neighborhood schools.
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Posted 9:22 AM by Martha Minow [link]

Defending The Indefensible: The Defense Of Marriage Act

Guest Blogger

Alan B. Morrison

Much has been written about two recent decisions, one striking down the section of the Defense of Marriage Act (DOMA) that denies federal benefits to same sex couples, who are legally married under the laws of their state, that are available to opposite sex married couples (Gill v. OPM), and the other invalidating California Prop 8’s elimination of the right of same sex couples to marry, which the California Supreme Court had upheld just months before (Perry v. Schwarzenegger). In both cases the federal court found that the distinction between same sex couples and opposite sex couples in the context of marriage to be wholly irrational. Although in some respects the cases raise similar legal issues, the actual operation of DOMA not only does not advance any legitimate interest in its discrimination against same sex married couples, but it actually undermines two important federal policies.
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Posted 9:08 AM by Guest Blogger [link]

Social science and equality

Martha Minow

Should social science influence how we construe equality protections under the Constitution, statutes and regulations Social science?

Social science studies of single-sex schools point in competing directions. The attitudes and cultural presuppositions of the researchers permeate their questions and interpretations. Gender gaps in achievement do not begin to approach the gap in school performance between economically advantaged and economically disadvantaged students. Social science studies of race and schools has a longer history.
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Posted 8:44 AM by Martha Minow [link]

Gender and "Separate but Equal"

Martha Minow

After long periods when the best education was reserved for boys and men, it seemed an advance for girls and women to develop distinct educational opportunities. Over time, co-education prevailed in public schools largely due to cost factors, but "separate but equal" historically justified elite and private single-sex education. Recently, single-sex public schools and classrooms within schools are on the rise. Between 1995 and 2007, public single-sex schools multiplied from a handful to hundreds, and public schools introduced hundreds of single-sex classrooms.

A few single-sex public school programs have long histories and mirrored elite private single sex schools in quality. Yet historically, even when offered as brother-and-sister schools, single-sex education involved more prestige and resources at the all-male institutions. When Philadelphia in 1836 created Central High--restricted to boys--it generated demand for a similar selective and rigorous public high school for girls. The district as a result created Girls' High to offer a separate public high school intended to be comparable to Central--but as their very names suggest, Central had more pride of place, more financial resources, more alumni given longer history, and wider and deeper social networks. Seeking the best education, Susan Vorchheimer challenged the exclusion of girls from Central High, and a federal District Court in 1975 agreed with Vorchheimer after identifying disparities between the schools. Finding the education at each comparable, the court nonetheless rejected the exclusion of girls from Central High because the district provided no coeducational option for students seeking a rigorous public school education. The Court of Appeals reversed, denying any constitutional violation, and the Supreme Court in 1977 let stand the Court of Appeals rejection of an equal protection challenge to the exclusion of girls from Central High. (A Pennsylvania state court later found Girls' High and Central High unequal in terms of resources, teacher qualifications, and subjects available for instrution, and directed that Central High admit girls and it is now co-ed. Girls' High officially is open to boys but no boy has ever attended).
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Posted 10:57 AM by Martha Minow [link]

Same Sex Marriage and Brown v. Board of Education

Martha Minow

Because Brown v Board of Education made "separate but equal" unconstitutional and inadequate, it's tempting to use the phrase to challenge domestic partnerships in states that ban same-sex marriage. Calling it "separate but equal status" for intimate partners is a way of saying it is an unacceptable second best.

Yet in some ways, it is odd to apply the "separate but equal" locution here where integration--mixing of people in one setting--is not the goal; organizing the official recognition for intimate partnerships is.

Nonetheless, in other ways, the invocation of Brown v. Board is just right: redressing status differentials enforced by exclusion can best be accomplished through inclusion. Where the symbolic communication of status is at issue, even starting from scratch, it is difficult to ensure equal status and regard for parallel distinct institutions. Where we are not starting from scratch but dealing with an historic practice--marriage, whose origins reach back too early in human history even to name a starting date--the creation of a distinct alternative and refusal of access to the long-established rite carries a less-than-equal message. So did the after-thought creation of a separate law school for black students in the shadow of the long established all-white University of Texas Law School; so did separate elementary schools for black students.

Are there any circumstances where separate can be equal? Gender-based separate schools do come to mind, and I will explore that topic in my next post.

Martha Minow is Dean and Jeremiah Smith, Jr. Professor of Law, Harvard Law School. Her most recent book is In Brown's Wake: Legacies of America's Educational Landmark (Oxford University Press 2010)
Posted 12:11 PM by Martha Minow [link]

Podcast on the constitutionality of health care

JB

Last week the Federalist Society sponsored a panel at the Southeastern Association of Law Schools conference on the constitutionality of the new health care act. The participants included Randy Barnett (Georgetown), David Kopel (Independence Institute), Gillian Metzger (Columbia), and myself. Bradley A. Smith (Capital University) was the moderator. You can listen to a podcast of the event here.
Posted 11:15 AM by JB [link]

VerGoogle's Plan to Lochnerize the Internet

Frank Pasquale

There has been a lot of insightful commentary on the new Verizon/Google framework proposal; Marvin Ammori's post is a good place to start. Here are my "two cents" on the larger implications of this move from business cooperation to lobbying alliance.

1) The companies' CEOs have stated that, in their view, "A provider that offers a broadband Internet access service complying with [basic net neutrality] principles" should be able to "offer any other additional or differentiated services" free of net neutrality regulation. The key question here is the quality and cost of the "broadband Internet access service complying with [net neutrality] principles," as compared with the "additional services" that can be offered without net neutrality. In the best case scenario, most people use the compliant service for most traffic, and run "additional services" on top of it in order to access special content/apps. Unfortunately, I think it's far more likely that the net-neutrality-compliant service will gradually decline in quality, so that it's vestigial (like public broadcasting) or a poor program for poor people (ala Medicaid).
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Posted 11:11 AM by Frank Pasquale [link]

Mark Tushnet Interview on the Constitution, the Judiciary, and Elena Kagan

Marvin Ammori

We all know and love Mark Tushnet. Extraordinarily influential scholar. Towering intellect. Amazing teacher. Balkinization blogger. And an extremely nice and generous person.

So I wanted you to know he recently sat for an interview with the law students of Nebraska's American Constitution Society, and the podcast is available here. It's a great interview, especially relevant for law students and scholars, but also for a general audience.

Professor Tushnet discusses how to interpret the constitution, the role of judicial review in explicating and enforcing constitutions, the interaction between politics and the judiciary, his personal and professional thoughts on Elena Kagan, the importance recent president have placed on judicial appointments, and whether judicial experience matters for a Supreme Court nominee.

The national ACS organization also posts its own video and audio podcasts here. Discussions of UNL's podcast series are available here and here.
Posted 9:33 AM by Marvin Ammori [link] (6) comments

A Reverse Auction to Conserve Kilowatts

Ian Ayres

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Posted 7:37 PM by Ian Ayres [link]

Confirmation Battle: Justice Thurgood Marshall and Justice Elena Kagan

Martha Minow

During the recent Senate confirmation hearings, the questions raised about Justice Thurgood Marshall frankly astonished me. I wrote this recent op-ed, published Sunday in the Boston Globe, and would welcome other people's interpretations of the questions raised at the hearings about Justice Marshall's work and legacy.
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Posted 2:33 PM by Martha Minow [link]

About the Verizon/Google "Deal" on Net Neutrality

Marvin Ammori

Yesterday, Bloomberg reported that Verizon and Google have made a deal on network neutrality policy they'd like to see in America. That deal (surprise!) is Google can get special privileges on Verizon's network. The Huffington Post splash page mocks Google's slogan: "Don't Be Evil" with an asterisk. Asterisk: "unless it's profitable." Josh Silver called it the end of the Internet as we know it.

I want to explain why I think this deal matters, and why it doesn't. And it might not be for the reasons you think.
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Posted 12:28 PM by Marvin Ammori [link]

The Fourteenth Amendment and the RTFM Principle

Mark Tushnet

Republican proposals to "examine" the idea of birthright citizenship under the Fourteenth Amendment have been met with outrage from liberals. I have views on the merits of the interpretive question, but they're irrelevant here. What's of interest to me is the form that liberal opposition has taken -- an invocation of the core interpretive principle RTFM as conclusive. (When you're setting up some new electronic equipment, the first thing you ought to do is Read The ... Manual.)
Posted 8:49 AM by Mark Tushnet [link]

Turning a trial judge’s weakness into strength

Andrew Koppelman

The following appears today (in slightly edited form) on the New York Times Subject to Debate website, along with contributions from Kenji Yoshino and Eugene Volokh:


Today’s federal district court decision striking down California’s same-sex marriage ban may or may not be upheld on appeal. But it shows why it matters what district courts do, even though the Supreme Court will have the last word. That Court may uphold state bans on same-sex marriage, but the district court’s opinion will make that harder to do.

District Judge Vaughn Walker turned in a virtuoso performance, taking the obvious weaknesses of his position as author of an opinion that was sure to be appealed, and turning them into strengths.

District court conclusions of law always get examined anew by the appeals courts, first the federal Courts of Appeals and, if it can be persuaded to take the case, the Supreme Court. There’s no reason to feel confident that there are five votes on the Supreme Court to legalize same-sex marriage throughout the United States. (When I try to count the votes of which I’m sure, I have trouble getting to one.) District courts do, however, get to find facts. And appellate courts, because they don’t get to see the witnesses and assess their credibility, are supposed to accept the facts as the trial court found them.

So if the Supreme Court reverses the district court’s decision that same-sex couples have a right to marry, it will have to do it in the teeth of Walker’s factual findings that same-sex marriage is good for gay people and the children they raise (one out of five same-sex couples in California are raising children), that there are no discernible differences between same-sex and opposite-sex couples, that “domestic partnerships” offer fewer benefits than marriage and irrationally stigmatize same-sex relationships as inferior, that recognition of same-sex couples’ right to marry does no detectable harm to heterosexual marriages, and that the campaign for Proposition 8, which outlawed same-sex marriage in California, relied on prejudice and vicious antigay stereotypes, such as the idea that gay people are dangerous to children.

Judge Walker carefully avoided resting his holding on any controversial proposition of law, such as the idea that gay people should be regarded as a specially protected minority under the Fourteenth Amendment. Instead, he relied on law already laid down by the Supreme Court. He held that Proposition 8 lacked a rational basis, because the “facts” that were invoked in its defense were manifestly false. His job was made easier by the remarkable incompetence of Proposition 8’s defenders in managing their listed expert witnesses, most of whom never testified at all. An appeals court that wants to ignore his findings of fact – something that can be done only if the trial court’s findings are plainly erroneous – will find very little support in the record.

The Supreme Court gets to say what the law is. But it has to accompany its judgment with a reasoned opinion. I don’t envy the judge who has to write the opinion overturning Walker’s decision, while treating these findings of fact with the deference that is normally appropriate for appeals courts.
Posted 10:47 PM by Andrew Koppelman [link]

Posting A Guide to the Network Neutrality Discussions at the FCC

Marvin Ammori

Politicians always claim their policies will help the average American, but you can’t always believe them. They face political pressures, walking a fine line between pleasing the powerful and serving average voters. A common tactic in walking this line is serving the powerful while trying to fool the public.

This is common because the powerful--say, in banking, oil, tobacco, insurance, military, media, cable, and telecom--have well-trained lawyers and lobbyists who monitor the details of laws, and who can't easily be fooled by public relations. But few of us are expert enough, or even have the time, to review the details of the many laws affecting our lives. Fewer of us have lawyers on payroll protecting our interest in Congress and federal agencies. So powerful lobbyists can strategically hide their giveaways in obscure legislative details using "magic words" called terms of art that have specialized legal meaning understood by only few experts but not understood by the public (or even most Congressmen). And then politicians can sell a law to the public as a great victory while glossing over the details.

Today, the Federal Communications Commission is in meetings with large corporations to discuss rules for an open Internet. While all of us rely on an open, free Internet in our daily lives, to communicate with loved ones, to learn the news, to debate politics, to organize for or against a cause, and even just to book travel, buy books, and check our finances, few of us understand the legal rules ensuring (or not ensuring) the Internet’s openness.

As a result, since I am a scholar on this issue who spent years in DC advocating for net neutrality, I post a detailed guide to the details debated in the current net neutrality discussion. With this guide, you will not need a well-heeled lobbyist to let you know if the FCC Chairman’s public relations potential campaign is true. You will know for yourself if the Chairman has preserved an open Internet or buckled to political pressure from the largest corporations when he, like any politician, claims his policies will help the average American.
Posted 12:30 PM by Marvin Ammori [link]

Why Is American Politics So Polarized?

Rick Pildes

There have been a great deal of popular writing of late, including a number of posts on this blog, that has spoken of the seeming dysfunction of America's political institutions, given the hyperpolarized nature of partisan politics that now structures the way our policymaking institutions operate (or fail to operate). In light of all this commentary, readers might be interested in an article I recently posted on SSRN, forthcoming in the California Law Review, entitled Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America. Here is the abstract:

Politics as partisan warfare: that is our world. Over the last generation, American democracy has had one defining attribute: extreme partisan polarization. We have not seen the intensity of political conflict and the radical separation between the two major political parties that characterizes our age since the late 19th century. Within Congress, the parties have become purer and purer distillations of themselves. The parties are now more internally unified, and more sharply differentiated from each other, than anytime over the last 100 years. Moreover, this polarization is not limited to those in office. Over the last generation, there has been a dramatic ideological and partisan sorting of voters as well. A center in America’s governance institutions has all but disappeared.

This article explores the causes of this polarization. Are the causes relatively contingent and short-term ones, so that it is possible to envision this structure of extreme partisan polarization changing, perhaps if certain institutional changes were made in the way American democracy and elections are designed? Or are the causes deep-rooted and structural ones, so that the appropriate conclusion is that this extreme partisan polarization is likely to be the ongoing structure of American politics and democracy for the coming years, regardless of any efforts that might be made to diminish this polarization? In particular, the article explores three potential causes of this polarization, which I label Persons, History, and Institutions.

"Persons" refers to the view that polarization is a reflection of particularizing polarizing personalities of various recent political figures, including Presidents. This view is reflected in the longing for the "statesmen" of past decades, who forged political breakthroughs across party and ideological lines to enact major policy initiatives. "History" describes the view that large-scale historical and transformative forces in American politics account for the modern structure, coherence, and polarization of the Democratic and Republican parties of today. The specific historical processes involve the end of the 20th Century one-party monopoly on the American South, which began with the 1965 enactment of the Voting Rights Act; the destruction of that world eventually led, by the 1990s, to the South having a system of genuine two-party competition for the first time since the Civil War. How much does the dramatic re-organization of American democracy entailed by that transformation account for the structure of partisan conflict today? "Institutions" refers to more discrete structures that organize democracy: the structure of primary elections, gerrymandering, campaign finance, and the internal rules that allocate power to political leaders in the House and Senate today. How much do these specific institutional features contribute to polarization, and in what ways, if any might they be changed to diminish it?

To foreshadow, the article concludes that the major cause of the extreme polarization of our era is the historical transformation of American democracy and America's political parties set into motion by the 1965 Voting Rights Act. Thus, perhaps the extreme polarization over the last generation should not be seen as aberrational (indeed, the pre-1965 structure of parties is the one to view as aberrational). This polarization, for better or worse, might be the "mature" structure of American democracy. As such, it is likely to be enduring, despite the best efforts of Presidents and reformers to transcend the extreme polarization of recent years.

This article was presented as the 2010 Jorde Lectures at the University of California at Berkeley Boalt Law School (fall 2009), and at Princeton University (spring 2010). Commentary on the article was provided by Sean Wilentz (History Dept., Princeton) and David Kennedy (History Dept., Stanford), Michael McConnell (Law School, Stanford), Nolan McCarty (Politics, Princeton) and Paul Frymer (Politics, Princeton). The California Law Review is publishing all of this commentary, along with the Jorde Lecture article.
Posted 10:07 AM by Rick Pildes [link] (157) comments

George Packer on the Senate

Sandy Levinson

Everyone should read George Packer's piece in the current New Yorker (though it's possible you need to be subscriber to get it), on "The Empty Chamber: Just how broken is the Senate"? The answer is very. The filibuster is only part of the problem. The article begins with the lunatic Senate Rule XXVI, paragraph 5, which requires unanimous consent for any committees to hold hearings after two in the afternoon when the Senate is in session. If senators were in fact required to be in the chamber, this would pass the minimum rationality test. But, since they are not, it is truly and utterly lunatic, serving only to give yet another arrow to obstructionists who want to destroy the capacity of the Senate to operate (and, most certainly, to engage in the kind of oversight for which committee hears are necessary). Then there are holds.... Packer also focuses a lot on the personalities of the people (particularly hard-right Republicans).

Packer sugggests that there is very little hope for the "constitutional option" to change the filibuster rule at the beginning of the next session, since too many senior Democrats like it (so they can make sure that Republicans can't pass their own programs when the time comes).
No sane country designing a constitution today would establish an institution like the United States Senate. The fact that we are suffer under it is the best illustration of what political scientists call "path dependance," the ability of bad decisions in the past (recall that James Madison hated the "Great Compromise" that brought us the Senate, which should give reverential "originalists" at least some pause, or, at least, they should explain why the Senate is any more legitimate than the 3/5 Compromise that entrenched the power of slaveowners, the other "Great Compromise" that made the Constitution possible).

Once again, I am reminded of Carl Schmitt's great writings on the Weimar Parliament during theh 1920's. No one seriously believes tht the Senate is any longer a forum for genuine "debate," which, among other things, requires the possibility that someone will actually change his or her mind as a result of some persuasive argument made by someone else, independent of polticial party. No one shows up, most of the time, and when they do show up they read speeches drafted by staff (who are often even more ideologically driven than their ostensible bosses). I am, of course, grateful that the Senate was able to pass (inadequate) health and financial regulation bills, but they are incapable of confronting any of the other challenges that face us.

Who can be optimistic about the future of this country? (I challenge, incidentally, our right-wing friends who participate in the discussion to name the particular Republican or libertarian they wish to take the helm, unless, of course, they are true anarchists who believe we can do without government at all.)
Posted 3:50 PM by Sandy Levinson [link] (42) comments

Judge Preserves Constitutional Challenge to Individual Mandate

JB

Today Judge Hudson in the Eastern District of Virginia refused to dismiss Virginia's constitutional challenge to the individual mandate for failure to state a claim.

The court rejected arguments that the state of Virginia lacked standing to challenge the individual mandate and that it was barred by the federal Tax Anti-Injunction Act, which requires people challenging tax laws to seek a refund rather than pursue an injunction. The court also held that because the legal questions posed by the challenge were novel, and there were no controlling circuit court or Supreme Court precedents, it would proceed to a consideration of the merits.
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Posted 12:25 PM by JB [link]