Georgetown Law Faculty Blog

Norman Birnbaum on The Strange Silence of Günter Grass

Our colleague Norman Birnbaum has this piece at the Nation online.

Privacy: A Right to Defend (Rev. Robert F. Drinan)

Father Drinan has an editorial in the Boston Globe about the recent FISA decision.

Supreme Court Clerkships and Women's Opportunity

By Emma Coleman Jordan

Today's NYT provides a look at the clerkship hiring records of the Justices.  Linda Greenhouse reports that although women represented almost 50% of law school graduates in 2005,only 7 of the 37 clerkships went to women for the 2006-7 term that begins on October 2.  The coming term will be the first time since 1994 that the number of women clerks has been in the single digits.

In a review of the number of women hired by each Justice in the seven hiring periods since 2000, the Times rank orders the Justices as follows.

Breyer 54%
Ginsburg 46%
O'Connor 46%
Stevens 44%
Thomas 39%
Souter 36%
Rehnquist 28%
Roberts 22%
Alito 13%
Kennedy 11%
Scalia 7%

Faculty have been working very hard over the last few weeks to provide letters of recommendation to judges at every level.  Do we have a role in reducing the number of women who are recommended for "feeder" Circuit clerkships?  What role do faculty play in seeking out and mentoring our most able women to participate in the clerkship tournament?  Are the number of women law school graduates declining enough to produce this effect?  Is this just a statistical anomaly?  What are the major factors responsible for this decline in the number of women who have the opportunity to serve in these highly coveted, career-shaping jobs?

Rashomon II: NYT Reports Review of 1,850 Page file of Duke Lacrosse Rape Case

by Emma Coleman Jordan

Today the NYT reports the results of its review of Duke Lacrosse Rape Prosecutor Nifong's  investigative file.  The story begins to look more like a modern day Rashomon, as I discussed in an earlier post "The Virtue of Patience: Duke Lacrosse, Rape and the Rashomon Effect".

Patience is still in order, as this complex story unfolds.

Balkin on Originalism:

Larry Solum recommends Jack Balkin's new article Abortion and Original Meaning. Although I must resist the temptation to read it until next week, on the basis of its abstract and Jack's blogging I recommend it as well. There is a reason my first article defending originalism, and the chapter on originalism in Restoring the Lost Constitution, is entitled: "An Originalism for Nonoriginalists."  Jack blogs about his new paper here.  You can post your comments on his blog where he can read them.

Here is the abstract.

This article argues that the debate between originalism and living constitutionalism offers a false dichotomy. Many originalists and their critics improperly conflate fidelity to the original meaning of the constitutional text with fidelity to how people living at the time of adoption expected that it would be applied. That is, they confuse original meaning with original expected application.

Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application. This general approach to constitutional interpretation is the method of text and principle. This approach is faithful to the original meaning of the constitutional text, and to its underlying purposes. It is also consistent with the idea of a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles in their own time. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices characteristic of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees. It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition.

The article applies this method to the most contentious constitutional issue of our generation-- the constitutional right to abortion. It concludes, contrary to conventional wisdom, that the constitutional right to abortion is consistent with the original meaning of the Fourteenth Amendment, and, in particular, its prohibition on class legislation that is embodied in the Equal Protection Clause.

The article criticizes Roe v. Wade's original trimester system, arguing that there are actually two rights to abortion instead of one. Finally, it explains how courts might have better implemented the constitutional guarantee of the two rights to abortion in ways that are more respectful of democratic politics.

As Larry likes to say "download it while it's hot."

Not All Birds of a Feather Flock Together: DOD takes Aggressive Pro-consumer Stance on Loans to Soldiers

By Emma Coleman Jordan

Recently, the Department of Defense took the unusual position of urging aggressive pro-consumer protections for predatory loans extended to service men and women.  In a new report, link here, DOD called for drastic federal restrictions on the types of loans that can be made to military personnel. 

The DOD study documents the fact that some lenders have concentrated their  predatory practices, which I have discussed in an earlier post, in the areas near military bases.  The Defense Department argues that our fighting men and women cannot protect themselves against predatory practices such as payday loans, car title loans, income tax refund anticipation loans, and imprudent loans made to servicemen and women whose income could not possibly support repayment.

A virtually fixed point of division between libertarian economic thinkers and their progressive critics is the disagreement about the role that government should play in regulating consumer credit.  For many years, before risk-based pricing became firmly installed in the market, libertarians argued against interest rate ceilings and direct government control of the terms of consumer credit, beyond disclosure.

The libertarian economic view, exemplified in the work of economists Milton Friedman and Gary Becker, is that price regulation of credit works to the disadvantage of the least creditworthy borrowers.   They argue that if you try to cap interest rates to protect borrowers with poor collateral or bad credit histories from the exhorbitant rates charged by creditors who would otherwise serve the riskiest end of the market; these creditors will simply withdraw and thus reduce the amount of legal credit available to borrowers who need it the most.  This will in turn push these borrowers into the illegal markets run by loan sharks and organized crime. 

The other side of this argument has been made by pro-consumer moderates and progressives alike.  They argue that borrowers who have nowhere else to turn, should not be subject to predatory terms.  So,  progressives, like me, have long supported government regulation of interest rate ceilings, invalidation of contractual waivers of legal rights, and direct limits on the enforceability of loans made to borrowers who the creditor reasonably knows have no ability to repay the loan.  These are just and even required.  In a market economy in which the model of arms length bargaining simply does not apply for those with the least bargaining power; government serves to provide a necessary restraint on the imbalances of economic bargaining power common between creditors serving the poorest niche and their customers.

Now, the DOD joins the pro consumer side of this argument with its view that “a clear, unambiguous rate ceiling is justified given the high fees, interest and other charges associated with loans to Service members reviewed in this report, and the impact of those predatory loans on military readiness and troop morale."  In addition, it urges that car title loans, payday loans using postdated checks written on bank accounts should be prohibited per se.

DOD calls for the following federal legislative reforms:
□ Interest rate cap of 36% for all military borrowers
□ Uniform price disclosure for all loans, except mortgages
□ Prohibit lenders from using checks, access to bank accounts and car title pawns as security for obligations
□  Prohibit provisions in loan contracts that require Service members and family members to waive their rights to take legal action.

□   "Waiver is not a matter of 'choice' in take-it-or-leave-it contracts of adhesion. "

So, the DOD must be given credit for recognizing that the very least  men and women who are willing to die for their country deserve in recognition of their sacrifice is to have the government protect them from predatory lending practices. 

Now the only question I have is, if this is good for soldiers, which it is, then why isn't it also good in  general for the poor who are not soldiers?  Why rely upon military exceptionalism for soldiers who are mostly poor, and not provide the same protection for their poor relatives back home?

Universal Accession to the Geneva Conventions? But What about the CIA?

This just in from the International Committee of the Red Cross:

For the first time in modern history an international treaty has achieved universal acceptance. The recent accessions by the Republic of Nauru and the Republic of Montenegro to the 1949 Geneva Conventions confirm the status of these conventions as the most widely accepted international treaties and represent a landmark in the development of protection for victims of armed conflict. . . . Nauru acceded to the four Geneva Conventions on 27 June and Montenegro on 2 August, bringing the number of States party to these instruments to 194.

Perfect timing, isn't it, for the Administration and Congress to now enact a law authorizing the CIA to violate the Geneva prohibition on "cruel treatment" of detained persons?

Judge Posner's Lament About the Rule of Law

In today's Wall Street Journal, Judge Richard Posner laments the fact that the federal courts are available to adjudicate whether the President's chosen methods of fighting the war on terror are consistent with the Constitution and laws of the United States. (Thanks to Howard Bashman for the link.)

Referring to what he obviously views as the misguided decisions of the Supreme Court in Hamdan and Judge Taylor in ACLU v. NSA, Posner complains that "we are boxed in by our revered 18th-century Constitution as interpreted by the Supreme Court." He further objects that the majority of the Hamdan Court was "unsympathetic to arguments that our understanding of certain provisions of the Constitution needs to be revised to meet contemporary needs." He hopes that the Court will eventually "bow" to the President's judgment, but warns that "we cannot wait for that to happen." Presumably this is a not-so-veiled suggestion that Congress should attempt to strip the federal courts of jurisdiction to hear claims challenging the legality of the Executive's conduct.

Regardless of its merits, Judge Posner's complaint is slightly off-the-mark in one important respect:  The Court in Hamdan did not rule that the President's commissions were inconsistent with an 18th-Century Constitution -- it ruled that the commissions violated statutes enacted by a 20th-Century Congress (and a treaty ratified by a 20th-Century Senate), with the approval of 20th Century Presidents. And although Judge Taylor's decision was largely based on the Fourth Amendment, the central and clear problem with the NSA program (which Judge Taylor also emphasized, albeit not as much as she should have) is that it is in violation of another statute, FISA, which was carefully enacted, over a long period of time and after extensive deliberation and investigation of past abuses, by yet another (late) 20th-Century Congress, with the approbation of two late-20th-Century Presidents.

The courts in these cases, in another words, are merely requiring the Executive branch to follow the law enacted by the political branches. Why on earth should Congress seek to strip the courts of the power to ensure that its own enactments are honored? Judge Posner does not say. (He obviously is not fond of those statutes, enacted as they were decades before 9/11/01; but if he's right that they're obsolete, why is the proper remedy not a legislative (and public) debate about whether and how to amend them to respond to modern exigencies?)

Judge Posner's principal complaint is that it is "strange" to "confid[e] so momentous an issue of national security to a randomly selected member of the federal judiciary's corps of almost 700 district judges, subject to review by appellate and Supreme Court judges also not chosen for their knowledge of national security."

Of course, it is not "strange" at all to give federal courts the jurisdiction to adjudicate whether the President is abiding by duly enacted laws in times of war. As countless Supreme Court cases challenging Executive conduct during war will attest, that has been the ordinary course of things since the founding. What would be strange, and fairly unprecedented, would be for Congress to attempt to strip the courts of such power, and thereby allow the President free reign to mangle or ignore congressionally enacted statutes as he sees fit.

Contrary to Judge Posner's suggestion, the courts in these and related cases are not simply second-guessing the President on "issues of national security," such as by overturning his judgments as to the extent of a threat or the efficacy of an Executive response to the threat.   It's not as if five Justices of the Supreme Court, or Judge Taylor, disagree with the President on the nature of the Al Qaeda threat, on how effective the NSA surveillance program would be at detecting terrorists, or at how efficient it would be to convict detainees under the President's military commissions. Indeed, there's no reason to think that the judges would not substantially agree with the President on all such factual assessments.

Instead, these courts were attempting to vindicate the judgments that Congress has made, in conjunction with the President, on questions relating to the proper balance between addressing an external threat and preserving constitutional, statutory, and treaty-based protections of individuals.

It appears not even to occur to Judge Posner that perhaps the Executive's judgments during a time of war might occasionally be less than ideal, not only with respect to preserving individual rights, but also with regard to how to best defeat the enemy -- and that the Executive's judgments will be most suspect, and least reliable, where they are made and implemented in secret, and in the heat of battle, and are not subject to the ordinary checks and balances of our constitutional system. It is conceivable, mind you, that, left to his own devices, a President might actually make poor decisions concerning how best to prosecute a war. (Just hypothetically speaking, of course.) There is, in other words, some practical value in prosecuting a war "by the books," i.e., in accord with the rule of law. Or so our "18th Century Constitution" presumes, anyway. As Justice Kennedy explained in Hamdan, the Constitution's structure of war powers  stresses "the importance of standards deliberated upon and chosen in advance of crisis, under a system where the single power of the Executive is checked by other constitutional mechanisms":

Where a statute provides the conditions for the exercise of governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches.  Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis.  The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment. . . . If Congress, after due consideration, deems it appropriate to change the controlling statutes, in conformance with the Constitution and other laws, it has the power and prerogative to do so.

[UPDATE: I should clarify that Judge Posner does not expressly advocate unchecked Executive authority. In this Op-Ed and in other places, he has proposed a new statute that would theoretically minimize potential abuses of warrantless surveillance, "without judicial intervention, by rules limiting the use of intercepted communications to national security, requiring that the names of persons whose communications are intercepted (and the reasons for and results of the interception) be turned over to executive and congressional watchdog committees, and imposing draconian penalties on officials who violate civil liberties in conducting surveillance." This is certainly a proposal worthy of serious consideration in Congress. Three questions, however: (1) Why exclude judicial review to ensure that the President at least abides by such requirements? (2) This Administration would never agree to provide Congress with "the names of persons whose communications are intercepted (and the reasons for and results of the interception)" -- indeed, they would likely contend that such a requirement is unconstitutional. Therefore either the Posner proposal would be a nonstarter (because of a veto threat), or there would be a good chance of Executive nonenforcement. (3) Until the day that Congress enacts such a law, and the Executive abides by it, what is wrong with permitting the courts to hold the President to the laws that are currently in place?]

Would Adam Smith be a Blogger?

by Emma Coleman Jordan

A question that surely comes to mind immediately for anyone who reads the voluminous outpouring of bloggopinion by influential academics is: Is blogging a waste of valuable time?  From The Economist we now have at least one set of arguments to answer that question.  The magazine tackles that issue in a recent article, “The Invisible Hand on the Keyboard: Economists’ Blogs” Here

The Economist examines the behavior of the ultimate pool of "rational" utility maximizers, elite academic economists.  We can assume that this subset of academics has internalized the lessons of Adam Smith's "invisible hand" and are therefore the most skilled at figuring out what is in their personal best interest.  So, their choices offer a natural experiment that provides useful data that helps us to figure out the answer to the question: why would highly regarded economists, such as Nobel prize winner Gary Becker and the founder of law and economics, Richard Posner, spend time writing for nothing?

The pros and cons of blogging, as calculated by leading bloggers on economic topics, are:

Reasons to Blog

• Amplifies intellectual influence

• Instantaneous pooling (correction) of ideas, opinions, facts, images and scholarship

• Natural extension of teaching function

• Reduces the barriers of access to the best minds

• Amplifies marketing of books, lectures, academic status

• Enhances the reputation of both the individual professor and the university itself

Reasons Not to Blog

• Loss of time for traditional publishing

• Loss of time available to earn consulting fees

• Reduces the competitive advantage of being a member of an elite school faculty

• Exposes flawed thinking to worldwide criticism, even ridicule

Take a look at the following for yourself. 

Selected Econobloggers Links

Becker-Posner, Univ. of Chicago  link
Brad DeLong , University of California, Berkeley  link
Greg Mankiw , Harvard  link

What do you think?  Your comments are welcome

Better living through public service (by Sasha Volokh)

I know what's on everyone's mind these days: Incoming Treasury Secretary Henry Paulson.  Specifically, why would a CEO of Goldman Sachs want to be (1) Treasury Secretary, (2) in the last two years of an administration (3) that doesn't have the coziest relationship with the Treasury Department?

My colleague Marty Ginsburg has two possible explanations: (1) perhaps he's public-spirited?, and (2) section 1043.

Here's what §1043 of the Internal Revenue Code (26 U.S.C. §1043) says (my translation into English):

Suppose you take a position in the Executive Branch.  To comply with federal conflict of interest rules, you have to get rid of some of your property -- say, stock in companies that do business with the Treasury.  Normally, you would have to sell the offending property -- and pay tax on your capital gain.  This could come out to a hefty chunk of change for people who have a lot of their wealth tied up in unrealized capital gains (i.e., assets that have gained a lot in value since they acquired them).  But thanks to §1043, you get to instead use your capital gain to buy new, non-conflicting property, for instance a diversified fund approved by the Office of Government Ethics, tax-free!

Section 1043 was passed in 1989, in the days of Bush, Sr., apparently to make wealthy people more willing to go into government.  Now I know what you're thinking: Can I, too, save by becoming Treasury Secretary?  To answer your question, let's work through an example.  Suppose you bought (or got as compensation) stock for $100 million.  We law types call $100 million your "basis."  Now it's worth $500 million.  If you sell the stock, you realize a capital gain of $400 million.  Normally, when you sell the stock, the gain is also "recognized," i.e., taxed.  Section 1043 allows you to avoid recognition if you buy $400 million of other stuff.

The tax code is clever, though.  Your $400 million unrecognized gain sticks around, and goes to reduce your basis on your new property.  Even though you bought your $400 million of stock at a price of $400 million, your basis is now considered to be $0.  One day, if you sell your new stock, you'll still have to pay tax on that $400 million (plus whatever extra gains you've had since then).  So the recognition of your capital gain has only been delayed, not avoided.

Bottom line:  Suppose you're perfectly happy with your portfolio, and (rather than holding it until you die, when you'll get some beneficial tax treatment) plan to sell some day in the future.  If you become Treasury Secretary, you can rejuggle your portfolio, but when you sell in the end, you haven't saved any money.  So what's the point?  I suspect that, if you're the CEO of Goldman Sachs, you're not perfectly happy with your portfolio.  In particular, you're heavily invested in Goldman Sachs stock, and would prefer to diversify.  Even if you think Goldman Sachs will do fine, you're risk averse and would rather not have too many eggs in one basket.  But to diversify is to sell, and to sell is to pay tax.  So if you're in that sort of position, becoming Treasury Secretary lets you do what you'd like to do -- diversify -- without getting penalized.

More seriously, talking about §1043 allows us to talk about the "lock-in" effect of capital gains taxation generally -- i.e., why do we have a system that taxes transactions, and thus discourages efficient portfolio reshuffling and diversification, rather than taxing capital gains as they happen?  See, e.g., George R. Zodrow, Economic Analyses of Capital Gains Taxation: Realizations, Revenues, Efficiency and Equity, 48 Tax L. Rev. 419, 467 (1993).  Why can't we all be Henry Paulson?  But that more serious discussion is a topic for another post.

Thanks, Marty!  (Cross-posted on The Volokh Conspiracy.  See also this New York Times article, Paul Caron's discussion on TaxProf Blog, and this Bruce Bartlett op-ed.)