July 27, 2012

Moving Intellectual Property’s Focus from Creating More Goods to Enabling a Good Life

Cross-posted from the American Constitution Society (ACS) blog.

The intellectual property world is in an uproar about Judge Richard Posner’s salvo this month against United States patent law. In a piece in The Atlantic, Judge Posner argues that there are too many patents in America. He observes that patents can hamper innovation, just as they can incentivize it, and that they may be unnecessary to induce innovation in many industries.

Judge Posner is widely regarded as one of the fathers of law and economics. Many associate the movement with the idea of strong property rights, including strong intellectual property rights. Judge Posner intervenes to tell us that this understanding is wrong, that patents must only be granted where they in fact induce innovation. Judge Posner argues that the pharmaceutical industry is a “poster child for patents” because patents allow it to recoup the high cost of testing drugs for safety and efficacy. 

I want to pick up where Judge Posner leaves off. Pharmaceutical companies may be the poster child for patents, but even here, there are important additional questions about patents. A patent on a medicine gives the holder a twenty-year exclusive right to produce that medicine. Because medicines are central to humanitarian concerns, we need to think about not only how the law incentivizes their initial creation and testing, but also how the law affects what medicines are created and how they are distributed. Why does our patent system produce multiple drugs to treat erectile dysfunction, but few to treat malaria and tuberculosis? Does the globalization of our intellectual property law through the World Trade Organization make it too difficult for poor people in the developing world to access generic versions of life-saving medicines?

In his short piece, Posner addresses market failure, but not the moral failure to distribute life-saving drugs to millions in the developing world who need them. In my book, From Goods to a Good Life: Intellectual Property and Global Justice, just out this summer from Yale University Press, I argue that intellectual property law should be founded on a vision of a just society, not just the narrow goal of simply producing more products demanded by the marketplace. Children with AIDS, and their families, nine out of ten of whom live in Sub-Saharan Africa, lack the market power to induce the inventions needed to save their lives.

My book looks broadly at intellectual property, not just with respect to patents in medicines, but also in other areas such as popular culture.

Let’s turn away from medicines to consider one of the most valuable literary intellectual properties today: Harry Potter. J.K. Rowling and Warner Bros. own the trademarks and copyrights in the series. Yet the Harry Potter experience extends well beyond their official offerings, with real-world Quidditch Leagues and even a World Cup with witches and wizards holding brooms arriving from across the world.

Last month I was a volunteer counselor at a Harry Potter Girl Scouts camp. While Rowling has abided literally hundreds of thousands of fan-fiction stories based on her characters posted on the Internet, she and Warner Bros. have at times sought to stop some fan activity, and under a dominant economic analysis, they may be within their rights to do so. “Only if the parodist is seeking to ridicule the original work,” Posner has argued, “is a market transaction infeasible and an involuntary taking therefore justifiable.” That is, where the user is not making fun of the original work, there is no “fair use” of the Potter characters and story details, under a law and economic analysis. But are kids attending these camps dressed as their favorite character really ridiculing Harry and Hermione? Rather than parody, fan activity is better understood as paying homage to the original works and their creators. We need to apply a broader cultural and social lens, in addition to economic analysis, to our intellectual property laws that affect human freedom in many dimensions today.

The fundamental failure in the economic story of intellectual property has to do with information’s role in cultural life and human flourishing. It is odd that the area of law most closely focused on Dickens, Rowling, Star Trek, Lost, Gershwin, and Prince is indifferent to understanding these creative works and their relationship to society. Culture is not just a set of “inputs” necessary for further innovation. Culture is the sphere in which individuals participate, create, share ideas, and enjoy life with others. Active participation in the cultural sphere promotes learning and qualities central to a well-functioning democracy, especially critical thinking and communal engagement. Cultural works engender empathy for the other and foster mutual understanding. My book turns to social and cultural theory to more fully explore the deep connections between cultural production and human freedom.

Read the Introduction to the book and Chapter 7: An Issue of Life or Death. Buy the book here. For more information, see here.

July 24, 2012

Can A Lower Federal Court Effectively Provide Protection Against Prosecution? A Mississippi Abortion Law Raises the Question

Cross-posted from Justia's Verdict.

In the column below, I analyze a ruling last week by a Mississippi federal district judge granting a preliminary injunction in a case involving a controversial Mississippi law regulating abortion clinics.  The case raises important questions about abortion access, and also about the power of federal district court judges.

Some Background on the Mississippi Law and the District Court's Action

The law in question, Mississippi House Bill 1390, requires that all physicians in the state who work with abortion clinics meet certain requirements.  In particular, all Mississippi abortion physicians need be board-certified in obstetrics and gynecology and, in addition, must enjoy admitting and staff privileges at a local hospital.

Currently, the Jackson Women's Health Organization ("the Clinic") is the only abortion clinic located in Mississippi, and the two doctors there who offer the majority of the Clinic's abortions are not authorized to admit patients, nor do they have staff privileges, at any local hospital; in order to comply with the Act, they have since applied for such prerogatives.

The Mississippi law is controversial both politically and legally, largely because if the Clinic's abortion specialists are not able to obtain local hospital admission and staff privileges, then most women in Mississippi who seek abortions would have to leave the state, often at a significant cost of time and money, to obtain abortion services.  If this turns out to be so, then arguably the Mississippi law would impose an "undue"-and thus an unconstitutional-burden on women patients, according to the Supreme Court's 1992 watershed Planned Parenthood v. Casey ruling.

But an ultimate determination of the Mississippi law's constitutionality is far down the road.  For now, the Clinic filed suit to obtain protection from the federal district court to allow the physicians at the Clinic to continue to provide abortions even as they seek to satisfy the law's requirements.  As the District Court judge observed, "Plaintiffs' [] primary contention is that they face the uncertainty of criminal or civil prosecution for operating the Clinic out of compliance with state law."

The defendant state officials have said that they have no present plans to prosecute the plaintiffs for non-compliance, and have promised not to do so until all the administrative proceedings-during which the physicians are seeking to comply with the law-have run their course.  But the defendants have declined to promise that they will not, sometime down the road, choose to prosecute the plaintiffs for operating the Clinic during the period in which Plaintiffs seek, but do not yet enjoy, admitting and staff privileges.

Without resolving the underlying merits of the lawsuit (i.e., the constitutional questions it raises, such as whether Mississippi's law violates the undue burden standard, either on the law's face or as applied to the Clinic), the federal district court judge understandably wanted to protect the Clinic physicians from suffering consequences from the actions that they are undertaking now, while they seek to obtain the privileges that would allow them to comply with the law, and while the law's constitutionality has not been resolved one way or another.

Accordingly, the federal district court issued an order that that required the Plaintiffs "to continue to seek admitting privileges-as they said they would-[but that also] enjoin[ed] Defendants from exposing Plaintiffs to criminal or civil penalties for continued operation."  Held the district court:  "The Act will be allowed to take effect, but Plaintiffs will not be subject to the risk of criminal or civil penalties at this time or in the future for operating without the relevant privileges during the administrative process." (Emphasis added.)

Can the District Court Really Protect the Plaintiffs From Subsequent Prosecution?

The district court's course of action seems like a reasonable way to proceed until more is known about whether the two physicians at issue will obtain the required privileges, and/or whether the law will be deemed unconstitutional after more inquiry.  But what if a higher court-the U.S. Court of Appeals for the Eleventh Circuit, or the U.S. Supreme Court-finds that the law is plainly constitutional, such that the district court made a mistake in blocking its enforcement in any way?

If this were to happen, then the higher federal court would lift the district court's injunction, going forward.  But what about the plaintiffs' actions that were taken during the time when the injunction was in effect?  Are the plaintiffs still protected from prosecution by the district court's order?

Put another way, if a district court tells you that the actions you are about to take are immune from prosecution, should you be able to rely on that immunity, even if it turns out that the district judge provided it based on a flawed legal premise?  After all, if you can't trust a district court judge's word about when you are safe, whose word can you trust?

It turns out that the Supreme Court precedent on this question is far from clear, and that at least one liberal lion of the Court has suggested that reliance by a party on immunity that is wrongfully accorded to it by a district court may be foolhardy.

Of course, in light of such reliance, the prosecution may choose never to prosecute, but some intimations from members of the high Court suggest that it would be the prosecution's (and perhaps ultimately the jury's) call. These intimations thus suggest that constitutional notions of due process and fairness don't foreclose prosecution.

A Key High Court Discussion of This Issue in Edgar v. MITE Corp.

Precisely this kind of question arose, albeit not in the abortion setting, thirty years ago in the 1982 Edgar v. MITE case, which involved an Illinois statute that tried to regulate corporate takeover offers. MITE Corp. challenged the constitutionality of the Illinois statute on the ground that the statute unduly burdened interstate commerce, and was thus preempted by federal law.

On February 2, 1979, MITE obtained a temporary injunction from a federal district court ordering the Illinois Secretary of State to refrain from invoking the provisions of the Illinois statute to block MITE's intended takeover of another company.  Accordingly, on February 5, in violation of the provisions of the Illinois statute and in seeming reliance on this injunction, MITE published its takeover offer in The Wall Street Journal.

On February 9, 1979, the district court entered a judgment declaring the Illinois statute unconstitutional; as a result, the court enjoined for the indefinite future the Secretary of State from enforcing the Illinois statute against MITE.

The U.S. Court of Appeals for the Seventh Circuit then affirmed the district court's ruling, such that the injunction against enforcement going forward remained intact.

However, the Illinois Secretary of State sought review of the constitutionality of the statute in the U.S. Supreme Court, and the Court granted review. Some members of the Court addressed the issue of the immunity provided (or not provided) by lower-court injunctions only within a larger debate about whether the case was moot.  If moot, the case would, of course, have to be dismissed, as there would be no live legal issue.

Justice Stevens wrote separately, stressing that, in his view, the case was not moot because Illinois might still prosecute MITE for conduct that had been undertaken while the preliminary injunction was in effect. (Justice Stevens's view in this case was surprising, given his "liberal" reputation on the Court during his last two decades there.)

The late Justice Thurgood Marshall, joined by the late Justice William Brennan, strongly disagreed. They argued that the case was in fact moot because there was no longer a takeover offer on the table, and that a federal court injunction-even if it is a preliminary injunction-ought to be understood as conferring complete immunity for acts undertaken while the injunction was in effect.

Justice Marshall's approach would give federal judges the power to grant complete immunity from punitive sanctions to persons who desire to test the constitutionality of a state statute.

But Justice Stevens rejected this approach, contending that (regardless of the wisdom of this rule) "federal judges have no power to grant such blanket dispensation from the requirements of [what turn out to be] valid legislative enactments."

The Problem with Justice Stevens's Position: How Far Does Its Logic Go?

Several aspects of Justice Stevens's position are not entirely clear. First, Justice Stevens says at various points that federal courts lack the power to block the prosecution of a state statute found to be valid.  Was his view inspired only by federalism worries (as some of his broader language suggests), or do federal courts also lack the power to block prosecutions under a federal statute?

Second, Justice Stevens does not limit his argument to preliminary injunctions-which means that it might also apply to permanent injunctions and declarations of unconstitutionality issued by the district court after full-blown trials and other adjudications. Stevens bluntly opines that a federal declaration of unconstitutionality "reflects [no more than] the opinion of the federal court that the statute cannot be enforced."

As a result, Justice Stevens would, at some level, leave plaintiffs in the very Catch-22 that they sought to avoid by seeking judicial help in the first place: Give up an activity that they believe (and a district court agrees) is constitutionally protected, or risk criminal prosecution down the road if the district court's ruling on its constitutionality is reversed.

This Catch-22 would continue until the Supreme Court decisively affirmed the issuance of the injunction (or denied review)-and indeed, might even continue through the entire statute of limitations period!

After all, what if the Court overruled its own precedent and later held the statute constitutional?  Under Justice Stevens's logic, perhaps backward-looking prosecutions could be brought even then.

The Problem With Justice Marshall's Position: Where Do Courts Get The Power to Immunize Conduct Proscribed by a Valid Criminal Statute?

On the other hand, Justice Marshall never really answers Justice Stevens's complaint: Where do federal courts get the power, in the first place, to immunize illegal conduct under a statute that is eventually validated as being good law?

Congress could probably give the federal courts this power directly, on the ground that it is "necessary and proper" to facilitate access to the courts.  Or, Congress could make reliance on an injunction a complete defense to federal crimes (though not to state crimes). But Congress hasn't availed itself of either option. (Many states, in contrast, have followed the Model Penal Code to create a defense to state crimes when the defendant has relied on a judicial ruling.)

So where do federal courts get the power to confer this immunity, if not from Congress? If the power comes from anywhere, it must come directly from the Constitution itself.

A Possible Constitutional Source for Federal Courts' Power to Immunize

One possible constitutional source for federal courts' power to immunize is the Due Process Clauses of the Fifth and Fourteenth Amendments.  Due process means, among other things, that you can't be prosecuted unless you've been provided adequate notice that your actions are criminal.  And a contrary judicial ruling, upon which you relied, could undermine any claim that you did get proper notice.

The Supreme Court has seemed sensitive to this concern when it has reversed its own earlier position on a particular act's criminality.  In cases such as James v. United States, it has held that Due Process means that the feds cannot punish someone for doing an act that the Court had earlier held, in other cases, to be non-criminal.

One could imagine applying this logic to say that when a defendant has obtained a permanent injunction against enforcement of a statute, he cannot be punished for violating that statute. Indeed, reliance on a permanent injunction that you yourself obtained may be thought to be more reasonable than reliance on an early case involving other parties. (Reliance on a preliminary injunction is much trickier, since the injunction itself does not make any final determination of constitutionality-finding, at most, only a "likelihood" of success on the merits.)

But James and similar precedents could also be limited, on several grounds, to exclude their application to lower federal court injunctions.  First, it's important to note that the Supreme Court, while allowing reliance on its own rulings, has been loath to allow reliance on lower federal court rulings.

To cite one example from another setting, in a case decided a few years ago, Bowles v. Russell, a district court judge mistakenly told a habeas corpus petitioner that he had 17 days to file a notice of appeal, when the statute provided for a 14-day window.  The petitioner filed the appeal on day 16, inside the time period that had been told to him by the district court but outside the 14-day time period provided for in the statute, and the Supreme Court ruled the appeal invalid, effectively holding that even though the petitioner might have relied on the district court's mistake, he was not protected in that reliance, and his appeal was lost.

Second, it may be worth mentioning that the James line of cases dealt with judicial determinations of the meaning of federal criminal statutes, not their constitutionality. If a statute gives fair warning that certain conduct is criminal, then that may, in the Court's eyes, be enough to render such conduct prosecutable-even if the statute is enjoined for a while by lower courts. In United States v. Lanier, for example, the Court used language suggesting that it might take this view, finding a due process problem only when someone is prosecuted for "conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope." (Emphasis added.) The Court, in other words, may decide that statutory warning is always fair warning.

Is the Power to Immunize Part of a Federal Court's Inherent Article III Power?

Some others may argue, however, that there is another source, besides the Due Process Clauses, for federal courts' power to immunize: It is simply Article III of the Constitution, which endows federal courts with the power, in the first place, to resolve "cases that arise under the Constitution."

Along with this power, this argument would run, comes adequate power to ensure access to the federal courts. Very few people can wait months and years to vindicate what they believe to be their constitutional rights. Yet waiting for a final Supreme Court ruling (or denial of review) in a particular case will typically take months or years. If plaintiffs must wait that long to rely on a ruling-before they can safely perform the acts they have wanted to perform all along-then they may not bother to bring their cases in the first place. Instead, they may simply forgo their desires, and perhaps their rights, and forget about challenging the statute at all.

The issue that the Supreme Court has so far left unresolved-of whether a Supreme or lower federal court injunction can be relied upon to confer immunity from prosecution-ought to be definitively answered, one way or the other, so that litigants know where they stand.

It may well be that, as a practical matter, the federal and state prosecutors are unlikely to "reach back" and prosecute persons who acted at a time an injunction was in effect. But, on the other hand, some prosecutors might well be tempted to do so, especially when it comes to politically-charged matters, like abortion in Mississippi (the conflict with which this column began.) Accordingly, Congress and/or the federal judiciary should clarify things so that people can know how much-or how little-injunctive relief is really worth.




July 7, 2012

The Top 10 Things to Take Away From Last Week’s Supreme Court Obamacare Ruling

Cross-posted from Justia's Verdict.

Last Thursday’s landmark Supreme Court Obamacare ruling and its aftermath offer some key lessons for all of us, neophytes and veterans alike, who follow the Supreme Court.  Some teachings are forceful reminders of things we already knew (or should have known); others break new ground.  Here are my candidates for a “Top 10” list:

10. The Media Does a Poor Job of Predicting Supreme Court Results

The majority of mainstream media coverage of the anticipated ruling during the last few months seemed to assume that major parts of the law, especially the so-called individual mandate, would be struck down, and that the key question was whether other parts of the statute would remain intact.  Many of these assumptions derived from the tenor of the oral argument.  But it turns out Chief Justice Roberts said nothing at oral argument that was inconsistent with his ultimate decision to uphold the mandate.  Nor was prediction the media’s only gaffe; in their rush to get the headline out early, both CNN and Fox News misread the opinions and embarrassingly reported that the Court had struck down the mandate.

9.  Intrade Users Do a Poor Job of Predicting Supreme Court Results

In the weeks leading up to the ruling, the online predictions marketplace,, forecast a 70%–80% likelihood of Supreme Court invalidation of the mandate.  That was up from the 50%–60% Intrade range that had prevailed immediately following the oral argument, and way up from the 30% range that we saw before oral argument.  All of these forecasts proved to be too high, suggesting that Intrade—though it might do a good job with elections—may not be such a good mechanism for Supreme Court prognostication.

8. The Supreme Court Suffers More Problematic Leaks Than We’ve Been Willing to Admit 

One reason Intrade investors (and it’s not clear that a gigantic amount of money ever traded hands) may have bet that the mandate would be struck down was the report of rumors beginning in May that Justice Kennedy, in particular, had voted against the government in the conference after oral argument.  Leaks from the Court before a decision is announced are probably not unprecedented, but they are rare, and should be troubling.  So too should be the post-decision leaks of the past five days indicating that Chief Justice Roberts changed his position during the last few months.  Putting the questions of whether he did so, and if so, why, to one side, the Court is not served if its Justices and staff are so frustrated by forthcoming or past results that they feel the need to share those results with outsiders and to circumvent confidential Court processes, especially so soon after the events in question took place.

7. Justice Kennedy Is Not the Only Justice About Whom We Should Care in Big Cases 

Over the last year—indeed, the last six years—Justice Anthony Kennedy has most consistently been in the majority in hotly contested 5-4 rulings.  Chief Justice Roberts, on the other hand, has been in dissent in many significant criminal procedure decisions.  But in the Obamacare case that defined this term—and perhaps this decade—for the Court, Roberts ruled and Kennedy lost.  It is not an exaggeration to say that the Affordable Care Act case was—in terms of the number of people affected, the amount of money involved, and the symbolic, political and institutional stakes on the line—bigger than all the other seventy-some cases the Court decided this year put together.

6. Chief Justice Roberts Is Not Likely to Vote With the Liberals Consistently

It would be unwise to think that Chief Justice Roberts will side with the so-called “liberal” Justices in controversial cases very often; he remains a solidly conservative jurist whose vote in the Obamacare matter may, in some respects, free him up for the rest of his tenure on the Court to follow his conservative instincts, because the Obamacare ruling will have a long-lasting effect of immunizing him from the charge of partisan cronyism.

5. The Commerce Clause Doctrine That Got Made, While Symbolically Significant, May Not Be Terribly Meaningful

The position of the five Justices (Chief Justice Roberts, along with Justices Scalia, Kennedy, Thomas, and Alito) who opined that Congress cannot, under the Commerce Clause, regulate “inactivity”—but instead must limit itself to regulating preexisting economic activity—would seem to make states’ rights folks happy.  But this new Commerce Clause doctrine—in addition to making little sense—will not likely change the world very much.  As these five Justices pointed out, Obamacare’s regulation of inactivity was unusual if not unique, so there aren’t going to be a lot of other already existing federal statutes that are subject to attack on the ground that they regulate inactivity.  And going forward, Congress can always formally tie its regulation to an economic activity if it is careful.

For example, with respect to Obamacare itself, Congress could have said, not that everyone is mandated to procure insurance or else pay money into the Treasury, but rather than anyone lacking insurance who enters onto a roadway or into any place of business shall pay money into the Treasury.  Voila!  Regulation of activity.  The very ease of creating such alternative regulatory forms is why so many of us found it unthinkable that the activity/inactivity line  should doom Obamacare;  when the question is how, rather than whether, Congress can accomplish something, the doctrinal lines should be clearly and sensibly drawn by the Court in advance, lest federalism rulings devolve into judicial “gotcha” games.

So the real issue in this case was not what effect a requirement that Congress stick to regulating activity only would have in the future; the real issue was whether such a requirement would kill Obamacare itself, a law that was passed when no reasonable mind could have anticipated the Court would impose such a “Simon Says” requirement.  But since Obamacare survived (because five Justices found Congress’ taxation power sufficient, irrespective of Commerce Clause power), the activity/inactivity line isn’t worth losing much sleep over.

4.  The Spending Clause Doctrine That Got Made Could Be Big

By contrast, the new Spending Clause doctrine that got made in the Obamacare case—preventing Congress from discontinuing all Medicaid monies to states that refused to agree to new, expanded coverage—might be a bigger deal.  There are at least two possible ways to read the Court’s new Spending Clause gambit.  First, the Court might be saying that if Congress is ever going to reserve for itself the right to fundamentally alter a federal-state cooperative fiscal deal, it has to be much more explicit at the front end to warn states that they should not expect and rely upon continued funding under terms identical or similar to the initial deal.  If so, that ruling (like the Commerce Clause ruling) is but a legislative drafting guide for Congress for the future (albeit one that might impair Congress’ power to revise existing programs that have been around a while.)

The second possibility is that no matter how explicit Congress’ warnings are, Congress might not be able to rewrite conditional spending deals with states when states in fact have relied on past allocations to their significant detriment.  If Congress is required to maintain deals that it no longer likes, even when it has been crystal clear up front about the possibility that it might radically change funding formulas, simply because states are addicted to the federal funding, that would indeed suggest meaningful new, substantive, limits on Congress.  Such a doctrinal path may be defensible if federalism and protecting states from federal “coercion” are to remain meaningful goals, but it is certainly a new path that was not signaled very clearly in past Court rulings.  There are, to be sure, slippery slopes down such a path, but that (as I have argued about Congress’ power to regulate inactivity) need not be an insurmountable problem.

3. Hypocrisy in the Doctrine of Federalism Remains a Big Problem 

When we put the Commerce Clause and Spending Clause parts of the outcome together, we see that even within a single case, there is a lot of intellectual inconsistency in the federalism doctrine.  A majority of the Court rejects Congress’ power to regulate inactivity because that power presents slippery slopes.  But the same majority (plus two) accepts new limits on Congress’ ability to withdraw funds to states, even though those new limits will require difficult line-drawing.

In the Commerce Clause setting, a majority rejects that idea that the healthcare and healthcare insurance markets have unusual or unique qualities, legitimizing a mandate in those fields but not elsewhere.  And in placing limits on Congress’ ability to withdraw Medicaid funding, that same majority highlights how unusual, perhaps unique, the healthcare and Medicaid programs are.

In the Commerce Clause arena, a formalistic line between activity and inactivity is seized upon.  In the Spending Clause arena, formalism concerning whether a state technically has a choice over acceptance of funding that comes with new strings is rejected, in favor of a more functional analysis of whether states are in fact coerced because of their past reliance.  And so forth.

I personally think that formalistic approaches to federalism that are not undergirded by workable functional theories are unhelpful, but my main point here is that this area of law continues to lack a clear analytic framework that can be used to explain and predict results.

2. Congress Dodged a Bullet, and Should Be More Careful in the Future

Let’s face it:  the Court came within an eyelash of striking down the heart of the biggest federal regulatory law in decades. One reason for this is that five Justices, perhaps because the momentum of the litigation overwhelmed its analytics, embraced faulty reasoning—that was not really grounded in text, history, structure or precedent—in construing the Commerce Clause, and that some Justices seem unwilling to give clear notice in advance to Congress of the technical rules they are willing to impose on the legislative branch in federalism rulings.  But another reason is that Congress does not—and does not even seem to try to—take federalism limits on its powers seriously when it passes legislation.  Why no extensive hearings during Obamacare on the constitutional basis for the mandate?  Why no testimony (which I think would have been available) from leading conservative scholars before enactment suggesting that the mandate would be permissible? Why no explanation from Congress in the record showing there were ways in which it could have formally regulated activity to reach the same result? And why, if the mandate’s fiscal effects on individuals were clear for all to see (as they were), did Congress play games by avoiding the use of the word “tax” for a revenue-raising measure housed in the Internal Revenue Code and implemented by the Internal Revenue Service?  The federalism cases of the past 20 years make one thing clear: a large number of Justices are quite willing to enforce the Tenth Amendment, and Congress should not be so cavalier if it wants to avoid getting burned.

1. Chief Justice Roberts Was the Big Winner in This Ruling 

In giving Congress the benefit of the doubt and upholding the key aspects of Obamacare under the Taxation power clauses, while at the same time cutting back on established understandings of Commerce Clause power and Spending Clause power, Chief Justice Roberts claimed the current Supreme Court as his own, and began to build for himself a legacy of greatness.  Roberts was able to: 1) make some conservative law, consistent with his instincts about federalism; 2) do so in the context of a result that makes it hard for President Obama and others who differ from Roberts’s basic constitutional outlook to complain; 3) do so in a manner that enhanced the credibility of the Court as an independent, non-partisan arbiter.

He was also able to get 7 votes (including two Democrat appointees) to join in to invalidate under the Spending Clause the Medicaid expansion conditions of the Affordable Care Act, the only part of the Act that was trimmed back.  If the Court is going to strike down even a part of the most thoroughly vetted Congressional legislation of the modern era at a time of hyperpartisanship, how refreshingly healthy and remarkable to have a cross-ideological coalition of Justices doing it.

Importantly, Roberts was the only Justice who agreed with every single important thing the Court decided in the case.

None of these accomplishments is diminished by the fact that Roberts might have changed his mind since his initial post-argument stance.  There is nothing wrong with changing one’s mind as a Justice; it says nothing bad about his motivations, but rather only that he came to see the case differently the more he thought about the issues and arguments.  If anything, there should be more mind-changing after oral argument and the initial vote; remember, the draft opinions don’t circulate until later, and it is upon reading the opinions (and additional scholarly commentary that might not have been analyzed before argument) that Justices should decide which ones they really agree with.  Sometimes you think you have a bottom-line position, only to learn that “it won’t write.”

When we widen the focus to make historical comparisons, we see that Chief Justice Roberts shares, or at least appreciates, the instincts of some of his most revered predecessors.  Take John Marshall, whose two most enduring opinions are McCulloch v. Maryland and Marbury v. Madison.  Roberts’s opinion was similar to McCulloch (in which the Court decided Congress had the power to charter the Bank of the U.S.) in making clear that Congress’ powers are finite but broad, and that Congress must be given the benefit of the doubt so long as its objectives are legitimate and sincere, and the means it uses are likely to advance those objectives. Roberts’s ruling was similar to Marbury (the case known for cementing the Court’s competence to declare federal statutes invalid when they run afoul of the Constitution), in that the Marbury ruling allowed Marshall to move constitutional law toward his own ideological sympathies while reaching an immediate result that avoided a direct political confrontation with a President (Thomas Jefferson) who opposed Marshall’s constitutional vision.

Not all chief justices have been successful at pivotal moments in avoiding altercations with oppositional presidents.  Chief Justice Roger Taney (who authored the infamous Dred Scott ruling) picked, rather than passed up, fights with Abraham Lincoln.  And Chief Justice Charles Evans Hughes could not stop his Court from demolishing huge chunks of President Franklin Roosevelt’s early agenda.  Like these two men, Roberts was already Chief Justice when a watershed election swept a reform-minded president into the White House.  But unlike these two earlier chiefs, Roberts—following the lead of John Marshall—found a way to stand his intellectual ground without provoking a battle royal with the Chief Executive.

July 5, 2012

Professor Imwinkelried's Top Ten Paper on SSRN

King Hall has a rich tradition of outstanding and innovative legal scholarship.  Our faculty members' papers can be downloaded at (Social Science Research Network).

Professor Ed Imwinkelried's paper, "THE EPISTEMOLOGICAL TREND IN THE EVOLUTION OF THE LAW OF EXPERT TESTIMONY: A SCRUTINY AT ONCE BROADER, NARROWER, AND DEEPER," is currently listed on SSRN's Top Ten downloaded list for: LSN: Evidence (Criminal Procedure) (Topic).  View the abstract here:

Congrats, Professor Imwinkelried!


July 3, 2012

New Faculty Member, New Books

Congratulations to Professor Rose Cuison Villazor, an exciting new addition to the King Hall faculty, on her just-released book titled Loving v. Virginia in a Post-Racial World: Rethinking Race, Sex, and Marriage.

Here is the book description: In 1967, the U.S. Supreme Court ruled that laws prohibiting interracial marriage were unconstitutional in Loving vs. Virginia. Although this case promotes marital freedom and racial equality, there are still significant legal and social barriers to the free formation of intimate relationships. Marriage continues to be the sole measure of commitment, mixed relationships continue to be rare, and same-sex marriage is only legal in 6 out of 50 states. Most discussion of Loving celebrates the symbolic dismantling of marital discrimination. This book, however, takes a more critical approach to ask how Loving has influenced the "loving" of America. How far have we come since then, and what effect did the case have on individual lives?

Professor Villazor's book is now available on Amazon.

As previously mentioned on this blog, Professor Madhavi Sunder also has an outstanding new book out.  The UC Davis News Service just named From Goods to a Good Life one of the campus's top picks for summer reading.

Congratulations to the authors!

July 2, 2012

Googling the Future of the Voting Rights Act

Cross-posted from JURIST.

Enacted in 1965 and reauthorized several times since, the Voting Rights Act (VRA) has long been regarded as the capstone of our nation's civil rights architecture. The VRA's core provisions have, however, come under sharp criticism from commentators and jurists who consider them outmoded or even unconstitutional in a society that is far more racially tolerant than it was in 1965. Defenders of the VRA argue that it remains necessary because contemporary racial prejudices or the lingering effects of past discrimination represent ongoing barriers to the political aspirations of minority voters and candidates.

Beyond riling up the already converted, neither side has made much headway in this debate. Progress has been slowed by difficulties in measuring the severity and geography of contemporary racial prejudices, and the extent to which they shape voters' decisions. Most scholars believe that survey-based measures of overt racial prejudice underestimate contemporary prejudice, because survey respondents do not want to be seen as racist or to see themselves as racist. Psychologists have developed alternative measures of "implicit bias" or "racial resentment" that do not require survey respondents to cop to being racist, but other scholars dispute the scientific [PDF] or normative [PDF] validity of these metrics. And whatever one makes of the metrics, they have not yet yielded a fine-grained picture of the geography of racial discrimination, which is necessary to resolve current controversies about the VRA.

My purpose in writing this commentary is not to describe the contours of seemingly intractable debate, but to argue that answers are finally at hand — thanks to path-breaking new research on the geography of discrimination. Seth Stephens-Davidowitz, a doctoral student in economics at Harvard, is deploying publicly available information to measure the frequency with which Google searches use the "n-word" in each of the nation's 210 media markets. (It turns out that most searchers who used the n-word were looking for derogatory jokes about black people.) He shows [PDF] that in relatively prejudiced regions, then-candidate for president Barack Obama substantially underperformed relative to his expected vote share.

I argue here that Stephens-Davidowitz's research is likely to be the nail in the coffin of Section 5 of the VRA, which requires jurisdictions in certain regions of the country to "pre-clear" changes to their election laws with the US Department of Justice or the District Court of the District of Columbia. But even as it hastens the demise of Section 5, Stephens-Davidowitz's work should greatly strengthen Section 2 of the Act, which applies nationally and which prohibits election laws that "result" in minority voters having "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."

The Coming Demise of Section 5

Section 5 of the VRA requires so-called "covered jurisdictions" — mostly states in the Deep South, plus a few states and localities elsewhere — to obtain the federal government's approval before implementing changes to their election laws. The feds must deny approval if the change would make minority voters worse off, or if it was motivated by a discriminatory purpose. The burden of proof is on the jurisdiction seeking pre-clearance. Section 5 was originally a temporary measure but it has been extended several times, most recently in 2006 for another 25 years.

The constitutionality of the latest extension first reached the US Supreme Court in 2009. The Court used some interpretive acrobatics to avoid the constitutional question for the time being — while signaling that Section 5 may well be struck down as an improper exercise of congressional enforcement authority under the Fourteenth and Fifteenth Amendments unless Congress takes steps to improve the fit between Section 5's reach and the occurrence of actual constitutional violations.

The problem, as some judges and commentators see it, is that Congress in extending Section 5 did not even try to improve its constitutional fit. The "coverage formula" for determining which jurisdictions are subject to Section 5 continues to be based on election returns from the 1970s and state practices in the 1960s and 1970s. Nor did Congress update the "bailout provisions," which determine whether a jurisdiction may escape from Section 5's coverage.

Defenders of Section 5 argue that the coverage formula is constitutionally adequate because it captures most of the former Jim Crow South, where intentional racial discrimination in the electoral process is likely to be worse than in other states. They also point out that adjudicated Section 2 violations have disproportionately occurred in covered jurisdictions, as have judicial findings concerning racial appeals in campaigns and related indicia of intentional discrimination by the electorate as a whole. But there are deep and, among empiricists, widely appreciated problems with drawing inferences about the extent of legally proscribed behavior from plaintiff success rates.

Enter the Stephens-Davidowitz study. With his Google-based measure of discrimination in hand, it is a trifling task to rank states or media markets by the resident population's animosity toward African Americans. Moreover, the powerful linkage between discrimination so measured and voting behavior means that a Voting Rights Act which targeted the worst-offending regions could be defended as a permissible response to the problem of election outcomes that are unconstitutional because of the racial basis for the electorate's verdict. (Elsewhere I have explained at length why election outcomes are unconstitutional if the winning candidate would not have prevailed but for racially biased votes. For a variety of reasons such constitutional violations cannot be remedied by the courts in litigation about a particular election, but they can, and should, be tackled by Congress through prophylactic legislation such as the VRA.) Also, racially discriminatory shenanigans by elected officials — the type of behavior that Section 5 was clearly meant to stop — are no doubt more likely to occur where the electorate is especially prejudiced.

A quick glance at Stephens-Davidowitz's ranking of the states reveals that there is, in fact, a positive correlation between covered status and anti-black prejudice. But the correlation is not impressive. West Virginia ranks first by racial animus but is not covered. Indeed, six of the top ten states by racially charged Google searches fall outside the reach of Section 5. In addition to West Virginia, the uncovered states of Pennsylvania, Kentucky, Michigan, Ohio and New Jersey have the dishonor of placing in the top 10.

But the more fundamental point is this: Congress can only be expected to craft a coverage formula tailored to the incidence of intentional discrimination if there exists a normatively acceptable and reliable method of ranking geographic regions by their residents' propensity to discriminate. This undertaking, which not long ago seemed nearly impossible, is now within easy reach of the concerned legislator. (To be sure, the relevant congressional subcommittee would have to commission additional work by Stephens-Davidowitz or others to obtain Google-metrics of discrimination against non-black minorities.)

This past May, the US Court of Appeals for the District of Columbia Circuit rejected the latest constitutional challenge to Section 5 on a 2-1 vote. Judge Stephen Williams, dissenting, would have enjoined the states from enforcing Section 5 unless or until Congress revises the coverage formula. The DC Circuit gave no indication that it was familiar with Stephens-Davidowitz's work (which was featured in the New York Times shortly after the court's decision). But I have little doubt that the Supreme Court will take the case and adopt Judge Williams's position, and I fully expect that at least some of the Justices in the majority will rest their argument on Google. It's conceivable that portions of Section 5 will be left operable, but I am no longer optimistic.

Should the Supreme Court demand that Congress update the coverage formula, this will be tantamount to invalidating Section 5 outright. In the current political environment, it's hard to imagine the necessary bipartisan coalition agreeing to a fix.

The Revitalization of Section 2

The implications of Stephens-Davidowitz's work for Section 2 of the VRA are much brighter. To repeat, Section 2 applies nationally, and requires minority plaintiffs to prove that the challenged electoral structures prevent them from "participat[ing] in the political process and elect[ing] candidates of their choice" on equal terms with other voters. What it means for an electoral structure to have this effect is not entirely clear, and in recent years Section 2 has suffered a string of narrowing interpretations at the hands of an increasingly conservative Supreme Court. The constitutional avoidance canon has been a mainstay of these decisions.

Most Section 2 cases have been brought by plaintiffs seeking the creation of electoral districts in which minority voters would have more influence or representation than they do under the status quo. As a threshold matter, such plaintiffs must show that voting is "racially polarized," meaning that members of the plaintiffs' racial group tend to prefer different candidates than do members of other racial groups. However, Section 2 does not require plaintiffs to demonstrate a recent history of unconstitutional racial discrimination by the government so elected, or that the remedy they seek would undo unconstitutionally discriminatory state action or prevent new instances of governmental discrimination going forward. Courts and commentators have therefore doubted whether Section 2 is a "congruent and proportional" response to constitutional violations (the legal standard for enforcement legislation under the Fourteenth Amendment and probably the Fifteenth Amendment).

Stephens-Davidowitz's work is incredibly important to the future of Section 2, for a couple of reasons. First, it establishes that anti-black animus remains a powerful force in the voting booth today. Across the nation as a whole, "between 6.7 and 10.7 percent of white Democrats did not support Obama because he was black." This is a shocking finding. In a high-profile presidential election, in which voters have vastly more information about the candidates' nonracial attributes and policy positions than they do in congressional, state and local elections, and in which voters are cued to rely on their partisan identities by the ballot itself, roughly 10 percent of white Democrats defected from their party's candidate. The effect of racial animus on support for black candidates in down-ballot races is almost surely greater. Insofar as Section 2's constitutional justification lies in racial discrimination by the electorate, as I have argued, the findings of Stephens-Davidowitz show that Section 2 responds to a real and substantial constitutional problem.

Stephens-Davidowitz's research will also help to solve one of the central doctrinal and practical difficulties in litigating Section 2 cases: establishing a nexus between "subjective discrimination" — i.e., decisions that would have been different had the race of persons considered by the decisionmaker been different — and the barrier to minority political participation that's at issue in the case.

The circuit courts have split on whether Section 2 plaintiffs must trace the electoral inequality at issue to subjective racial discrimination, either by conventional state actors or by the majority-group electorate. Most courts nominally adhere to the causation requirement, but as Professor Jim Greiner observes [PDF], they often subvert it in practice through aberrational burden-shifting rules. In a recent article I argued that Section 2 plaintiffs should be required to make the causation showing, albeit subject to a relaxed evidentiary standard. But, as several readers pointed out, I didn't say much about what kinds of evidence ought to suffice or how that evidence might be obtained.

The Holy Grail for implementing the causation requirement is a measure of societal discrimination that's reliable, tied to voter behavior, geographically specific and low-cost for plaintiffs to produce. With such a measure in hand, the courts could create truly sensible evidentiary presumptions and burden-shifting rules. For example, they might presume that racially polarized voting is caused by racial prejudice in locales that rate "worse than average" on the measure of societal discrimination, but by socioeconomic differences in other areas. (Such presumptions should be rebuttable.)

Stephens-Davidowitz's Google-based metric of anti-black discrimination fits the bill precisely. It is replicable, it explains otherwise puzzling disparities in voter behavior, it is specific to each of 210 geographic regions, and it appears to be cheap to produce and update. To be sure, there is a lot of additional work that could be done to validate the measure vis-à-vis non-presidential elections, and to create and validate analogous measures of anti-Latino, anti-Native American and anti-Asian sentiment. Nor is Stephens-Davidowitz's approach the only promising way to measure or proxy voter discrimination. But his work represents a huge leap forward, and has genuine potential to revolutionize Section 2 litigation.