Monday, June 30, 2008

Too Dumb to Vote

Today's Washington Post reports on voters in Flag City, Ohio, one of whom would kind of like to vote for Obama, but is troubled because all his neighbors tell him that Obama was born in Africa, is possibly gay, is a Muslim racist, and refuses to recite the Pledge of Allegiance. The profiled voter finds it "impossible to figure out what's true," especially since his neighbors are "good people, smart people."

Sad, isn't it? All of these people get a vote equal to yours or mine. In fact, in the Presidential election, their vote is worth a lot more than mine, because they live in a swing state, and I live in DC, where Obama will get 90% of the votes and mine won't matter a whit.

Democracy is a difficult system, but it's hard to see what else to do -- it's the worst system, except for all the others, as Churchill said. I don't see any superior alternative. Mark Twain once hypothesized a society where everyone can vote, because the Constitution guaranteed universal suffrage, but some people get more votes than others, based on wealth and education. That probably wouldn't work either (not to mention its violation of the Equal Protection Clause).

So unfortunately we just have to accept that we've put our nation's fate in the hands of people who are unable to distinguish fact from fiction as to even the most basic things. (They probably think there's no law requiring people to pay income tax, too.)

I guess the best solution in to bring in an army of sociologists and psychiatrists to figure out what makes these people form certain beliefs (in my untrained way I would put this particular case down to your basic racism). Then we need to figure out how to fight the smears.

Friday, June 27, 2008

Smart Aleck

By the way, in critiquing Chief Justice Robert's silly dissent in this week's standing case, I neglected to mention what he obviously regarded as his best shot. You will recall that the case involved potential plaintiffs who sold their legal claims to "aggregators," who sued the defendants and remitted any proceeds to the original claimants. The aggregators received a fee, but the fee was not dependent on the amount recovered in the lawsuits. Therefore, the dissenters argued, the aggregators had no interest in the lawsuits and so lacked standing to sue.

As I observed before, all nine Justices appear to agree that the aggregators standing would have been clear if only their contract with the original claimants had provided that the aggregators could retain one dollar out of the proceeds of a successful lawsuit. The Chief Justice's response? That makes no difference, because "Article III is worth a dollar."

What does that even mean? Have smart-alecky, snarky remarks taken the place of legal analysis? Apparently they have. The Chief Justice, that cool hipster, also said, "When you got nothing, you got nothing to lose." Bob Dylan, Like A Rolling Stone, on Highway 61 Revisited (Columbia Records 1965).

The Dylan quote at least has some meaning. "Article III is worth a dollar" leaves me baffled. There's a difference between smart remarks and cogent rebuttal.

Thursday, June 26, 2008

Go Get Your Gun

I'll be driving up Connecticut Avenue in the good old District of Columbia tonight -- that is, if I can make it through the barrage of gunfire.

Yes, the Highest Court in the Land has decreed that D.C.'s ban on gun ownership is unconstitutional. The Second Amendment ("A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"), the Court determined, protects an individual right to gun ownership and is not limited to protecting participation in state militias against federal interference, notwithstanding the hint in the amendment's preamble.

As I've mentioned a couple of times, I don't really have a dog in this fight. It seems to me there are good arguments on both sides. As today's majority observes, it's possible to view a preamble as stating a purpose but as not limiting the force of a text's operative provision. There are eighteenth-century indications that the "militia" was all able-bodied males, who were expected to keep their own arms and to report for duty with them when called. There is much writing that hints at an individual right to keep arms for purposes of self-defense, as well as for the defense of the state.

On the other hand, as the dissent observes, that preamble has to mean something. There are indications that "to keep and bear arms" was a specialized term of art meaning to posses arms and use them for military purposes. Some history suggests a particular focus on the possibility that the federal government would interfere with state militias. And in the one prior case that most closely examines the Second Amendment, the Court said that it has the "obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces" and that "It must be interpreted and applied with that end in view."

So I really think this case could have gone either way. That's why it is just so drearily predictable that the case would end up 5-4 with the conservatives on one side and the liberals on the other, and Kennedy, the swing Justice, casting the deciding vote. Couldn't just one of the liberals have decided that, even though liberals like gun control, the Constitution provides an individual right that must be respected? Or couldn't even one of the conservatives have applied the constitutional text with more sensitivity to the intergovernmental purpose suggested by the preamble? It would be nice to think that something other than the Justices' ideological predilictions has at least something to do with determining the outcome. But, I guess not.

Thank goodness, at least, that those conservatives are protecting us from judicial activism!

Monday, June 23, 2008

Standing in Quicksand

Late June, when the Supreme Court ends its annual term, is the usual time for badly reasoned, hastily written decisions. Today's dissent in Sprint Communications v. APCC Services, joined by an embarrassingly substantial number of Justices, continues this fine tradition.

Today's case revisits one of my longstanding interests, the arcane doctrine of "standing to sue." The basic point is that you can't bring a lawsuit unless you're affected by the defendant's challenged behavior. You may be upset that the government is tapping phones without warrants and holding prisoners in Guantanamo Bay without judicial oversight (well, until recently), but you can't sue to claim that these actions are illegal unless you can show that your phone is being tapped or that you are being held at Guantanamo. Suits by well-meaning strangers are forbidden.

Today's case presents a curious variation on the usual fact patterns of environmentalists complaining about harm to areas they've never visited or parents complaining about racial discrimination at schools their children don't attend. In today's case, the plaintiff was suing for good old money -- it just wasn't exactly the plaintiff's money.

The case concerned the fees charged by payphone operators to long-distance carriers for calls made using access codes or 1-800 numbers. When the carriers don't pay, the operators have to sue to collect these fees, and because the fees are too small and numerous to be worth the trouble, the operators have taken to assigning their claims to "aggregators" for suit. The aggregator buys up many of these claims, sues on them, and then (by contractual agreement) remits the proceeds to the payphone operators. The aggregator gets paid a fee, but the fee is not based on success or failure in the lawsuit.

The law has long permitted assignment of monetary claims, and assignees have long been recognized as having standing to sue. Indeed, in 2000, the Supreme Court reaffirmed this rule, in a "qui tam" case, which involves the United States effectively assigning a portion of a claim of its own to a private party. The Court held that qui tam plaintiffs have standing.

But here's the question: does this standing exist if the assignee has contractually agreed to give back 100% of the money gained by suing to the assignor?

Fortunately, five Justices had the good sense to say yes. Surveying cases from over the centuries, the Court determined that this form of suit has in fact long been permitted and saw no good reason to change.

But four Justices dissented. Adhering firmly to formalism, they inisisted that if the plaintiff is obliged to give back 100% of the proceeds, it has no interest in the suit and therefore no standing.

Now, apart from the fact that I think justiciability doctrine is mostly a lot of purposeless nonsense anyway, this dissent seems even more absurd than usual.

The dissent admits that assignees normally have standing to sue. The dissent accepts the Supreme Court's 2000 reaffirmation of this principle. The only problem, the dissent says, is that in this case the assignee has agreed to give back 100% of the lawsuit proceeds and retains no interest in the outcome.

Well, as the Court points out, if one really believes that, then all the parties would need to do to arrange for a lawsuit that everyone would recognize as valid would be to agree that the assignee plaintiff is entitled to retain one dollar of the proceeds in the event the lawsuit succeeds.

Even the dissent admits this! (Page 8 -- "Perhaps it is true that 'a dollar or two' . . . would give respondents a sufficient stake in the litigation.")

I'm sorry, but once this is admitted, surely anyone could see that the dissent is utterly pointless? The dissent says that "the ease with which respondents can comply with the requirements of Article III is not a reason to abandon our precedents." Again, I'm sorry, but the law should not turn on meaningless distinctions. The whole trend of the law over centuries is to eliminate meaningless, formalistic requirements. We could require plaintiffs to say "pretty please" when filing their complaints, and if that were the tradition I'm sure some fusty old judges would say that the ease with which it could be done is no reason to abandon the rule, but it is precisely the reason.

The law should turn on real distinctions, not pointless ones. It's one thing (and usually, a pointless enough thing) to say that people can't sue if they aren't personally affected. But to say that potential plaintiffs are allowed to sell their claims, and the assignees are allowed to sue on them, and even that the assignees are allowed to give back most of the proceeds to the original potential plaintiffs, but only if the assignee gets to keep at least a dollar of the claim, would be pointless beyond description. And that's what the dissent says.

There will always be some people whose fondness for following rules leads them to act supremely foolishly when they can't perceive that the rules are causing an absurdly silly result. But one would hope there would be fewer than four at a time on the Supreme Court. Thank goodness that at least there were fewer than five.

Saturday, June 21, 2008

Private Money

Much tut-tutting over Barack Obama's decision not to accept public funding for his general election campagin. Well, there is some basis for it -- Obama did almost, if not exactly, say previously that he would take public funding if his opponent did the same (what he actually said was that he would "aggressively pursue" an agreement with his opponent to use public financing).

But really, I am a little perplexed. I was never too impressed with Democrats who complained when George Bush rejected public financing for primaries. Public financing is not a command, it's a bargain -- the public will agree to finance your presidential campaign if you agree not to spend more than the designated amount. Take it or leave it -- there's no obligation to accept the bargain. So accusations by Democrats that there would be something nefarious about a Republican's refusing to take public funding (likely because he could raise more privately) always struck me as underwhelming.

But for Republicans to complain when a Democrat doesn't take public financing is absurd. Republicans are against public funding! They don't like public provision of anything that could be done privately. Their stance should be that public financing of campaigns is a huge, wasteful, government giveaway that should be abolished.

Oh, wait, that is their stance: here's George Will two years ago calling the likely abandonment of public funding by the 2008 presidential candidates "unalloyed good news." He called the prospect "delicious."

So forgive me if I sense just a little hypocrisy in Republican criticism of a Democrat for raising his campaign money from the private sector. I didn't think much of the criticism when it came from Democrats, and when it comes from Republicans, it's really too much.

Tuesday, June 17, 2008


Returning to our normally scheduled programming, today I wanted to point out a little-noted feature of the political convention schedule: the Democrats are going first.

Not a big deal, you might think. Somebody has to go first. But let's think about it from a game-theoretical perspective.

We already know who the presidential nominees are (barring a meteor strike), but each of them has one big decision to make, that is traditionally announced at the conventions -- their vice presidential choice. And the Dems have to go first.

This puts the Obama campaign at a disadvantage. McCain gets to make his veep choice knowing who Obama picked. Obama has to choose without knowing who McCain will pick.

It's not the hugest disadvantage, perhaps, but it is something. Most notably, in an election that is already pushing demographic boundaries, McCain gets to decide whether to pick a woman after learning whether Obama picked a woman. Similarly, McCain gets to decide whether to pick someone young, southern, with executive experience, with private sector experience, and so on, after learning what Obama did. Probably McCain will have a master list of possible veeps that is keyed to possible Obama veeps.

This isn't the first time the Dems get the short end of the convention schedule. In 2004, you may recall, the convention schedule was so inconvenient for the Democrats that Senator Kerry considered not formally accepting the nomination at the Democratic convention. The problem was that the Democratic convention was five weeks earlier than the Republican one, and that meant that Kerry had to live on his limited public financing for five weeks longer than President Bush. That's probably not what did him in, but it didn't help.

Democrats: think strategically! It's important to choose the right convention date.

Monday, June 16, 2008

Santa Fe Report

Sorry for the lack of recent content, faithful readers -- my girlfriend and I were on vacation in Santa Fe, New Mexico. What a great spot! The weather was splendid -- mid 80s, sunny, and dry every day -- and to complete the perfect picture, the East coast had a heat wave while we were gone. We did lots of great tourist stuff and the food was good too.

For you vacation planners, here's the breakdown (note that not everything is in Santa Fe itself -- some stuff is an hour or two away):

Tent Rocks National Monument (really cool hike with unique scenery)
Bradbury Science Museum (in Los Alamos) (history of A-Bomb)
Art galleries on Canyon Road
Santa Fe History Path (that's not the official name, but it goes from town up to the Martyrs' Cross, with plaques about Santa Fe history along the way -- good to do in the early morning)
10,000 Waves spa

Very Good:
Loretto Chapel (with the famous staircase)
Georgia O'Keefe Museum
Rio Grande Gorge Bridge (near Taos NM)

Santa Fe Cathedral
State Capitol
Fine Arts Museum

Not as Good as the Hype:
Bandelier National Monument (OK, but not that exciting)
Taos Pueblo (near Taos NM)
Taos (excellent for art shopping but a tad dull, really, with kitchy museums)

Frankly You Could Skip:
Palace of the Governors (the history walk was better)

Recommended restaurants:
Coyote Cafe
Santa Cafe
Guadalupe Cafe

Blogging will resume. We thank you for your patience.

Monday, June 2, 2008

Supreme Complacency

A few years ago, in the case of Clark v. Martinez, the Supreme Court, speaking through Justice Scalia, proclaimed that a single term in a statute cannot have different meanings in different cases. Thus, if a statute says, "if facts A or B apply, result C must follow," then C must have the same meaning in cases involving A as in cases involving B. Anything else, the Supreme Court said, would be "novel" and "dangerous."

In response, I wrote an article showing that giving a single statutory term different meaning in different contexts (a practice I called "polymorphic" interpretation) is certainly not novel -- I gave about a dozen concrete examples where courts, including the Supreme Court, had done exactly that -- and I also suggested that it isn't dangerous either, but rather, in certain cases, it is the best and most appropriate approach to statutory interpretation.

A decision today by the Supreme Court shows that my article has had the impact that most scholarship has on the Court's decisions -- which is to say, none. Today the Supreme Court had to interpret a statute that forbids engaging in certain financial transactions involving the "proceeds" of certain unlawful activity. The question was whether "proceeds" means only the profits of the unlawful activity, or whether it could include the gross receipts.

Four Justices said it meant "profits," four said it meant "gross receipts" and one (Justice Stevens, noted for often being the odd man out throughout his long career on the Court) said that it could mean "profits" for some kinds of unlawful activity and "gross receipts" for others, depending on the nature of the activity. This last suggestion was criticized in the main opinion (by Justice Scalia, naturally) as inconsistent with the Clark v. Martinez prohibition against such interpretation.

Hmmm . . . it's almost as though Justice Scalia and those who joined him today don't know that Clark's suggestion that there is something "novel" about polymorphic interpretation has been thoroughly debunked. Well, probably, they don't. They're busy people and can't review everything that's happening in the scholarly journals.

I did get one thing right, though. In today's opinion, Justice Scalia points out that Justice Stevens joined Clark v. Martinez. But as I observed in my article, the Justices don't seem to regard themselves as bound by the interpretive methodology. I pointed out that Justice Stevens had previously joined polymorphic opinions and I doubted that he would stick to the "unitary" rule of Clark. And he didn't. And trust me, the others won't either, when they get to a case where polymorphism will suit them better.

And One More Thing . . .

In my previous post about George Will's statement that "most improvements make matters worse because most new ideas are regrettable," I forgot to mention the greatest government regulation ever: the Do-Not-Call list. That one regulation improved my life at least 1% all by itself. Talk about your good new ideas.