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Books by Rick
The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2012)
The Voting Wars Website
NOW AVAILABLE from
Barnes and Noble
Election Law--Cases and Materials (5th edition 2012) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) NOW IN PAPER
Table of Contents
Order from Amazon.com
Order from BarnesandNoble.com
Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Remedies: Examples & Explanations (Aspen Publishers, 2d ed. 2010)
Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Political Activity Law
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Recent Newspapers and Magazine Commentaries
Big Money Lost, But Don't Be Relieved, CNN Opinion, Nov. 9, 2012
A Better Way to Vote: Nationalize Oversight and Control, NY Times, "Room for Debate" blog, Nov. 9, 2012
Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012
Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012
How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012
Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court's Conservatives, Slate, Oct. 26, 2012
Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012
Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012
Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012
Wrong Number: The Crucial Ohio Voting Battle You Haven't Heard About, Slate, Oct. 1, 2012
Litigating the Vote, National Law Journal, Aug. 27, 2012
Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012
Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012
A Detente Before the Election, New York Times, August 5, 2012
Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012
Has SCOTUS OK'd Campaign Dirty Tricks?, Politico, July 10, 2012
End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012
Citizens: Speech, No Consequences, Politico, May 31, 2012
Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012
Unleash the Hounds Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012
Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012
Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times "Room for Debate" blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Holder's Voting Rights Gamble: The Supreme Court's Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate's Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What's the point of disclosing campaign donations? Let's review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did--and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot", Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito's Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the "Separable Preferences" Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia's Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove's New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times "Room for Debate" Blog, Jan., 21, 2010
Read more opeds from 2006-2009
Forthcoming Publications, Recent Articles, and Working Papers
The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, George Washington Law Review (forthcoming 2013) (draft available)
A Constitutional Right to Lie in Campaigns and Elections?, Montana Law Review (forthcoming 2013) (draft available)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review (forthcoming 2013) (draft available)
Fixing Washington, 126 Harvard Law Review (forthcoming 2012) (draf available)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (forthcoming 2012)( draft available)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, Journal of Law and Politics (forthcoming 2012) (draft available)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review (forthcoming 2012) (draft available)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available)
Teaching Bush v. Gore as History, St. Louis University Law Review (forthcoming 2012) (symposium on teaching election law) (draft available)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, Election Law Journal (forthcoming 2011) (draft available)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Aggressive Enforcement of the Single Subject Rule, 9 Election Law Journal 399 (2010) (co-authored with John G. Matsusaka)
The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010)
Constitutional Avoidance and Anti-Avoidance on the Roberts Court, 2009 Supreme Court Review 181 (2010)
Election Administration Reform and the New Institutionalism, California Law Review 1075 (2010) (reviewing Gerken, The Democracy Index)
You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 University of Miami Law Review 465 (2010)
The Democracy Canon, 62 Stanford Law Review 69 (2009)
Review Essay: Assessing California's Hybrid Democracy, 97 California Law Review 1501 (2009)
Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 Florida Law Review 979 (2009)
Introduction: Developments in Election Law, 42 Loyola of Los Angeles Law Review 565 (2009)
Book Review (reviewing Christopher P. Manfredi and Mark Rush, Judging Democracy (2008)), 124 Political Science Quarterly 213 (2009).
"Regulation of Campaign Finance," in Vikram Amar and Mark Tushnet, Global Perspectives on Constitutional Law (Oxford University Press (2009)
More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (working paper, Sept. 2008)
When 'Legislature' May Mean More than''Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 Hastings Constitutional Law Quarterly 599 (2008) (draft available)
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, 102 Northwestern University Law Review 2009 (2008)
Political Equality, the Internet, and Campaign Finance Regulation, The Forum, Vol. 6, Issue 1, Art. 7 (2008)
Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Albany Government Law Review 169 (2008)
Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review 1064 (2008) (draft available)
The Untimely Death of Bush v. Gore, 60 Stanford Law Review 1 (2007)
Category Archives: statutory interpretation
“Constitutional Interpretation and Congressional Overrides: Changing Trends in Court-Congress Relations”
Ryan Emenaker has posted this draft on SSRN. Here is the abstract:
National policy is shaped through frequent interaction between the Court and Congress. The Court devotes the largest portion of its work to applying and interpreting congressional statutes. Congress considers these interpretations in future legislation. The Court’s use of judicial review to nullify acts of Congress is one of the most contentious aspects of this relationship. However, the interaction that occurs after judicial review is often ignored. When trying to understand Court-Congress relations, it is important to note Congress often overrides Court decisions. Historically the Court rarely rules against Congress. From 1791-2010 the Court nullified just 167 acts of Congress — an average of less than one-a-year. However, this type of interaction has rapidly increased. Nearly 60 percent of all federal laws struck down have occurred since 1960. The Rehnquist Court alone is responsible for nearly 25 percent of all nullified federal laws. Understandably, the rapid acceleration in judicial activity has renewed fears of an imperial judiciary. These fears are partly based in the incorrect assumption that policy development ends with judicial review. The results of this study indicate that as the Court has become more active in striking down congressional acts, Congress has increasingly resorted to overriding these decisions. This study also indicates that increased instances of judicial review suggest changing trends in Court- ongress relations rather than signifying judicial finality.
As I told Professor Emenaker, he’s using the term “override” differently than both Bill Eskridge and I do in our work on overrides. When Congress responds to a constitutional holding of the Supreme Court by passing a statute which does not amend the Constitution, I would not count that as an override.
I just received reprints of my piece on statutory overrrides, End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review 205 (2013).
“Statutory Interpretation from the Inside — An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I”
Abbe Gluck and Lisa Schultz Bressman have posted this draft on SSRN (forthcoming Stanford Law Review). This looks to be a top-of-the-pile must read. Here is the abstract:
What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees — on topics ranging from drafters’ knowledge and use of the textual and substantive canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process and the Court-Congress relationship.
Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use — Chevron and the presumption against preemption, for example, but that there are other canons that our drafters know, but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely considers, from the variety of audiences for legislative history, to the way in which the personal reputation of particular agency heads affects delegation decisions, to the fact that drafting conventions depend on the type of statute being drafted and its path through Congress.
All of these findings, and many others, allow us to press for a more precise answer to one of the fields’ foundational questions: that is, what should be the purpose of these canons of interpretation? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized these doctrines using a variety of conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which aim to justify many different types of canons that seem to be doing very different types of work. Do the canons reflect how Congress actually drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely — and does Congress listen? Might the canons, despite how “neutral” some appear, instead be understood to effectuate judicial values that are external to the legislative process — such as advancing constitutional norms or imposing coherence on the U.S. Code? Our study illuminates this variety across the normative bases for the canons also reveals that each set of justifications rests on a very different vision of the judicial power and the Court-Congress relationship.
Anita Krishnakumar has posted this draft on SSRN. Here is the abstract:
How much deference — or what kind — should courts give to longstanding agency interpretations of statutes? Surprisingly, courts and scholars lack a coherent answer to this question. Some legal scholars have assumed that longstanding agency statutory interpretations are treated with heightened deference upon judicial review, and some federal courts have made statements suggesting that this is the governing legal rule. But in practice, federal court review of longstanding agency interpretations — at both the court of appeals and the U.S. Supreme Court — turns out to be surprisingly erratic. Reviewing courts sometimes note the longevity of an agency’s statutory interpretation as a plus factor in their deference analysis, but at other times completely ignore or dismiss an agency interpretation’s longevity. Moreover, judicial rhetoric about the relevance of longevity in the review of agency statutory interpretations is inconsistent from case to case.
What makes this doctrinal incoherence particularly remarkable is that courts usually care much more about the predictability of statutory interpretations and about upsetting settled institutional practices. In fact, in two analogous contexts — judicial interpretations of statutes and historical executive branch practice in the constitutional arena — courts accord strong precedential effect, or a presumption of correctness, to established legal rules. This Article compares federal courts’ chaotic treatment of longstanding agency statutory interpretations with the precedential effect they give to longstanding judicial interpretations of statutes and the historical “gloss” effect that courts give to past executive practice in constitutional interpretation. It argues that longstanding agency interpretations of statutes are equally deserving of heightened judicial deference and that, at the very least, federal courts’ disparate treatment of such interpretations — without acknowledging or justifying the distinction — is troubling. The Article advocates that longstanding agency interpretations should be entitled to precedential effect by reviewing courts and outlines how such an approach might work.
Abbe Gluck has posted this draft on SSRN (William & Mary Law Review). Here is the abstract:
Modern statutory interpretation is a field dominated by court-created legal presumptions. Federal judges have created hundreds of default rules that range from subject-specific presumptions such as the rule that exemptions in the tax code should be narrowly construed to trans-substantive presumptions such as the presumption that ambiguous statutes should not be interpreted to preempt state law. At the same time, the legal status of statutory interpretation methodology remains almost completely unexplored. What are the rules of statutory interpretation? Almost all jurists and scholars resist the notion that they are “law,” despite their judicial source and also despite the fact that analogous interpretive principles like those from contract and constitutional law are, in fact, treated as some kind of law (be it state law, federal common law, “constitutional common law,” or constitutional law); and despite the fact also that even some statutory interpretation rules — notably Chevron and the thousands of legislated rules of statutory construction scattered across the U.S. Code — are already treated as law without justification for the distinction. Meanwhile, the debate that continues to rage in other contexts over the propriety of federal judicial lawmaking has somehow bypassed the world of statutory interpretation.
The resistance to a law-like treatment of interpretive methodology has many possible explanations, including a judicial desire to retain power or flexibility in an increasingly statutory world, or the simple fact that judges cannot reach consensus on what rules they would treat as law in the first place. The resistance also likely stems from the long shadow that Erie has cast on federal judicial lawmaking. But Erie was case for the world of common law, not one for the Age of Statutes. We had Erie, and then we had Chevron, but along the way we had no analogous case for the statutory era — one that directly addresses what kind of authority federal courts have to create decision-making doctrines for the statutory cases that now dominate the docket
Exploring this possibility — that statutory interpretation methodology is some kind of judge-made law — allows for some significant interventions. A common-law conceptualization of interpretive methodology, for instance, implies that Congress can legislate over it, but courts continue to resist that notion. A law-like conceptualization also would seem to imply that the rules of interpretation should receive stare decisis effect, which they currently do not. There is also the possibility that some of the canons might be federal common law, while others might not. Some, for example, might be understood as constitutional law, while others may seem not to be judicial creations at all. The canons typically have not been disaggregated in this manner, despite their centrality in countless cases.
Arpit Garg has posted this draft on SSRN. Here is the abstract:
Although Section 5 of the Voting Rights Act (VRA) is one of the most documented topics in legal scholarship, the academy has missed a crucial reading: a statute with an administrative agency, the Department of Justice (DOJ), entitled to Chevron-style deference. Because the topic is virtually unexplored, this Note is the first to outline how we might understand a deference theory of the VRA. In addition to articulating the theoretical case and exploring the historical evidence of deference in the Supreme Court, this Note offers a descriptive/normative explanation for the Court’s current hostile relationship towards the DOJ on Section 5 voting rights issues, what I term ‘anti-deference.’ Such insights represent the tip of the iceberg for what a deference theory of the VRA might unearth.
Bob Barnes WaPo column: “For nearly 200 years, Fordham law professor James J. Brudney says, Supreme Court justices rarely needed to pick up a dictionary when interpreting the laws that Congress passed. But these days, it is an increasingly common occurrence. And not because the words are getting bigger.”
Andrew-Aaron P. Bruhl and Ethan Leib have written this article for the University of Chicago Law Review. Here is the abstract:
This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model—and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrary view: that elected judges and appointed judges should actually interpret statutes differently. We explain and defend that view and explore some of its implications and limits. We identify categories of cases in which the argument for interpretive divergence is at its strongest. We also show how the possibility of interpretive divergence might illuminate several specific doctrinal problems related to judicial federalism and judicial review of agency action.
Jim Brudney and Larry Baum have posted this draft on SSRN.
The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. Among our findings are (a) while textualist justices are the highest dictionary users, purposivist justices invoke dictionary definitions with comparable frequency; (b) dictionary use is especially heavy in the criminal law area, serving what we describe as a Notice function; (c) dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of dictionary usage reflect a casual form of opportunistic conduct: the justices almost always invoke one or at most two dictionaries, they have varied individual brand preferences from which they often depart, they seem to use general and legal dictionaries interchangeably, and they lack a coherent position on citing to editions from the time of statutory enactment versus the time the instant case was filed.
The Article then conducts a detailed doctrinal review, leading to an innovative functional analysis of how the justices use dictionaries: as way stations when dictionary meanings are indeterminate or otherwise unhelpful; as ornaments when definitions are helpful but of marginal weight compared with more traditional resources like the canons, precedent, legislative history, or agency deference; and as barriers that preclude inquiry into or reliance on other contextual resources, especially legislative history and agency guidance. Ornamental opinions (the largest category) typically locate dictionary analysis at the start of the Court’s reasoning, subtly conveying that the lexicographic method should matter more than other interpretive resources. Barrier opinions would have been inconceivable prior to 1987 but now occur with disturbing frequency: they elevate the justices’ reliance on definitions in a radically acontextual manner, ignoring persuasive interpretive evidence from the enactment process and from agency experience.
Finally, the Article analyzes whether the Court’s patterns of inconsistent dictionary usage, and its tendency to cherry-pick definitions that support results reached on other grounds, distinguish dictionaries from high-profile interpretive resources such as canons and legislative history that have been criticized on a similar basis. We contend that dictionaries are different from a normative vantage point, essentially because of (i) how both wings of the Court have promoted them by featuring definitions frequently and prominently in opinions, and (ii) how dictionaries are effectively celebrated as an independently constituted source of objective meaning (unlike the canons as judicial branch creations and legislative history as a congressional product). Yet our findings demonstrate that the image of dictionary usage as heuristic and authoritative is a mirage. This contrast between the exalted status ascribed to dictionary definitions and the highly subjective way the Court uses them in practice reflects insufficient attention to the inherent limitations of dictionaries, limitations that have been identified by other scholars and by some appellate judges. Further, the justices’ subjective dictionary culture is likely to mislead lawyers faced with the responsibility to construct arguments for the justices to review. The Article concludes by offering a three-step plan for the Court to develop a healthier approach to its dictionary habit.
I am looking forward to reading this!
The final version of Justin Levitt’s important article is now available at the William and Mary Law Review.
Michael Gilbert has posted this draft on SSRN (Minnesota Law Review). Here is the abstract:
Judges claim to resolve ambiguities in initiatives by identifying and giving force to “voter intent,” but scholars reject that on the ground that such intent does not exist. This paper argues otherwise. We can understand the search for voter intent to be a search for the majoritarian interpretation. The interpretation preferred by the median voter has special claim to being majoritarian. Hence my central claim: judges select from plausible interpretations of an initiative the one favored by the median voter. The claim is both positive and normative. I hypothesize that judges do decide this way, in part because of electoral incentives, and I provide reasons to think they should decide this way.
The analysis generates a number of insights. Voter intent, unlike legislative intent, can be conceptualized concretely and identified. Judges who seek the majoritarian interpretation of an initiative must consider the views of all voters, including those who voted against it. In some circumstances, judges who interpret initiatives in light of their career prospects can be understood to act legalistically. Finally, the same electoral accountability that can lead state judges to interpret initiatives in majoritarian fashion has a downside: it can make their constitutional review of initiatives too deferential.
Victoria Nourse has posted this article on SSRN (Yale Law Journal). Here is the abstract:
We have a law of civil procedure, criminal procedure, and administrative procedure, but we have no law of legislative procedure. This failure has serious consequences in the field of statutory interpretation. Using simple rules garnered from Congress itself, this Article argues that those rules are capable of transforming the field of statutory interpretation. Addressing canonical cases in the field, from Holy Trinity to Bock Laundry, from Weber to Public Citizen, this article shows how cases studied by vast numbers of law students are made substantially more manageable, and in some cases quite simple, through knowledge of congressional procedure. No longer need legislative history always be a search for one’s friends.
Call this a decision theory of statutory interpretation. This approach is based on how Congress does in fact make decisions and thus is a positive theory. Normatively, it has the advantage of privileging text without blinding judges either to relevant information or to their duty to implement Congress’s decisions, including Congress’s own decisionmaking methods. It may also have the side benefit of reducing legislative incentives to manipulate the rules or to engage in strategic behavior to induce particular statutory interpretations.
Ethan Leib has posted this draft on SSRN (forthcoming, U Pa. L. Rev.). Here is the abstract:
This paper argues for more attention to citizens’ point of contact with our legal system within local courts – and makes an effort to conceptualize local judges as parts of local governments. Once the paper highlights the role of local courts within the constellation of local government, it offers an argument for why certain forms of “localist judging” are appropriate postures for local judges to take when confronted with hard cases of statutory interpretation. The paper explores the virtues of a type of “intrastate judicial federalism.”
“So I would not have been lying, or even mistaken, had I said in my book review that in Heller Scalia ‘actually resorts’ to ‘legislative history’ in its narrowest sense (‘drafting history’). But I did not say that.”
–The latest missive from Judge Posner in the Posner-Scalia feud.
I have just posted a revised and updated version of this article (forthcoming Southern California Law Review) on SSRN. (The article was recently the subject of this Adam Liptak “Sidebar” column in the NY Times.) Here is the revised abstract:
This Article considers the likely effects of continued political polarization on the relative power of Congress and the Supreme Court. Polarization already is leading to an increase the power of the Court against Congress, whether or not the Justices affirmatively seek that additional power. The governing model of Congressional-Supreme Court relations is that the branches are in dialogue on statutory interpretation: Congress writes federal statutes, the Court interprets them, and Congress has the power to overrule the Court’s interpretations. The Court’s interpretive rules are premised upon this dialogic model, such as the rule that Supreme Court statutory interpretation precedents are subject to ‘super strong’ stare decisis protection because Congress can always correct an errant court interpretation. Legislation scholars also write as though congressional overriding remains common.
In fact, in the last two decades the rate of Congressional overriding of Supreme Court statutory decisions has plummeted dramatically, from an average of 12 overrulings of Supreme Court cases in each two-year Congressional term during the 1975-1990 period to an average of 5.8 overrides for each term from 1991-2000 and to a mere 2.7 average number of overrides for each term from 2001-2012. Although some of the decline seems attributable to the lower volume of Supreme Court statutory interpretation decisions, the decline in overridings greatly outpaces this decline in cases. Instead, partisanship seems to have strongly diminished the opportunities for bipartisan overridings of Supreme Court cases, in which Democrats and Republicans come together to reverse the Supreme Court.
In its place we see a new, but rarer, phenomenon, partisan overriding, which appears to require conditions of near-unified control of both branches of Congress and the presidency. The two recent examples are the Military Commissions Act of 2006, in which Republicans overturned the Court’s statutory interpretation decision in Hamdan v. Rumsfeld on the habeas corpus rights of enemy combatants, and the Lilly Ledbetter Fair Pay Act of 2009, in which Democrats overturned the Court’s statutory interpretation decision in Ledbetter v. Goodyear Tire & Rubber Company on how to measure the statute of limitations period in certain employment discrimination lawsuits. In a highly polarized atmosphere and with Senate rules usually requiring 60 votes to change the status quo, the Court’s word on the meaning of statutes is now final almost as often as its word on constitutional interpretation.
Although political polarization has benefited the Supreme Court’s power relative to Congress in the short term, the longer term power relations are more uncertain. Aside from the statutory interpretation dialogue, Congress interacts with the Supreme Court in other ways, including through Senate confirmation of Supreme Court judicial nominees. The recent partisan realignment of the Supreme Court makes it more likely that a Supreme Court judicial nominee will be filibustered in the Senate, thanks to the increasing willingness of Senators to oppose nominees on ideological grounds and increased partisan polarization in the Senate. The number of Senators from the opposing party of the nominating president voting against Supreme Court nominees is approaching or exceeding the filibuster level. Depending upon how the politics plays out in a possible filibuster of a Supreme Court judicial nominee, we may see either an erosion of the use of the filibuster in the Senate or a compromise which would weaken the power of the judiciary, such as term limits imposed upon future Supreme Court Justices.
Part I of this Article demonstrates that despite the model of Congress-Court dialogue, and Supreme Court statutory interpretation tools premised on dialogue, congressional overridings of Supreme Court statutory interpretation precedents have become exceedingly rare. The effect of this change is to empower the Court over Congress. Part II argues that the steep decline in overridings over the last two decades appears due in large part to increased polarization in Congress and not simply to a decline in the number of Supreme Court statutory interpretation cases. When Congress does override a Supreme Court case, it is now more likely to be a partisan overriding, pushed through in periods of unified government. Part III is more speculative. It considers how polarization in Congress and the partisan realignment of the Supreme Court — a Court in which all the conservative Justices are Republicans and all the liberal Justices are Democrats — may eventually lead to a major confrontation in Congress over the power of the Senate filibuster. That confrontation may leave the Senate, the Supreme Court, or both, looking very different than they are today. Furthermore, partisan realignment has the potential to harm the Supreme Court’s legitimacy in a way which we have not witnessed in modern times.
If you read one response to Justice Scalia’s new book (with Bryan Garner), read this devastating review in The New Republic.
Aside from the merits of the review, it seems to escalate an increasing public tension between Judge Posner and Justice Scalia.
Scott Korb reviews for Slate.
Complex, Fractured Michigan Supreme Court Decision Includes Fight Over Font Size and Substantial Compliance
You can read the opinion here in all of its technical glory (including pictures).
More on what the opinion means for Michigan here.
On the surface, this is a fight about the meaning of 14-point font. But the concurring opinion for three Justices shows how this is really about the Democracy Canon:
CAVANAGH, MARILYN KELLY, and HATHAWAY, JJ. (concurring in part and dissenting in part).
We concur in Justice MARY BETH KELLY’s holding that a writ of mandamus should issue in this matter. As a result of our concurrence on this point, Proposition 4 will appear on the ballot.
However, we strongly dissent from the grave actions taken by the justices supporting the position in part III(A) of Justice MARY BETH KELLY’s opinion. Their decision to depart from 30 years of precedent by abandoning the substantial-compliance doctrine throws Michigan’s electoral process into chaos and disenfranchises citizens from one of the most basic rights of democracy: the right to vote.
The holding of these justices that a mere clerical technicality—which has not and cannot be shown to create any harm whatsoever—could have prevented a referendum vote from taking place, in the face of more than 200,000 citizens who signed the petition to place the referendum on the ballot, is unprecedented and highly disturbing.
That position lacks any sense of the gravity and importance of democracy. Article 1, § 1 of Michigan’s Constitution states that “[a]ll political power is inherent in the people. Government is instituted for their equal benefit, security and protection.”Furthermore, our Constitution provides that “[t]he legislature shall enact laws to preserve the purity of elections” and “to guard against abuses of the elective franchise . . . .” Const 1963, art 2, § 4. MCL 168.482(2) is one of these laws, and it was intended to protect the election process, but four justices have now turned it into a barrier that could prevent a vote from even taking place. Their holding will have a chilling effect on core political
speech, and we cannot join this result. As the Court of Appeals so eloquently stated in Senior Accountants, Analysts & Appraisers Ass’n v Detroit, 218 Mich App 263, 270; 553, NW2d 679 (1996):
The wisdom of the principle of judicial restraint expressed by our Supreme Court in [Attorney General v Ingham Circuit Judge, 347 Mich 579; 81 NW2d 349 (1957)], is self-evident; the notion that our courts may precipitously intervene in the political arena and preempt a vote of the people is inconsistent with both the role of the courts and the principles of our democracy.
We vote to affirm the Court of Appeals and its issuance of mandamus. As stated, we also concur with Justice MARY BETH KELLY’s issuance of mandamus. As a result, Proposition 4 will appear on the ballot. We note that, given Justice MARY BETH KELLY’s finding of actual compliance—which must necessarily encompass substantial
compliance, because actual compliance is a higher standard than substantial compliance—there are four votes that find at least substantial compliance and allow the voters to determine the merits of this proposal. The determination of whether actual or substantial compliance is the proper standard is unnecessary to the decision in this case.
Michigan State Supreme Court wants to delve into the meaning of “point” and “typeface” in deciding whether to kick referendum off ballot for using slightly smaller typeface in heading than prescribed 14 point type.
Looks like a good case to resolve with The Democracy Canon.
Was Chief Justice Roberts Most Unprincipled in Applying the Doctrine of Constitutional Avoidance in the Health Care Case, in NAMUDNO (the Voting Rights Act Case) or in Citizens United?
In my initial post on the health care decision, I stated “Once again, the Chief has manipulated the doctrine of constitutional avoidance to do what he wanted to do in a high profile, important case.”
I hadn’t had a chance to go back and expand on this issue since I wrote that, but Nicholas Rosenkranz’s very smart post has prompted me to do so. Rosenkranz persuasively argues that Roberts’ use of the avoidance canon in the health care case is not your typical application of the canon: rather than apply it, as is typically done, to a textual ambiguity (such as to the question whether a ban on “vehicles” in the park covers bicycles), the Chief applies to to alternative “constitutional characterizations” of an unambiguous law (the health care mandate is either an unconstitutional “penalty” or a constitutional “tax”).
As poor as this analysis is as an application of the avoidance canon, CJ Roberts engaged in two worse applications of the canon in recent years. In the NAMUDNO case, considering the constitutionality of section 5 of the Voting Rights Act, the Court read the Voting Rights Act to allow for a utility district to “bail out” from coverage under the Act, an interpretation that the Chief Justice advanced to avoid the constitutional question whether section 5 was unconstitutional. Unlike the health care case, in NAMUDNO the Court did confront a question about textual meaning (did the Voting Rights Act give the utility district a chance to “bail out” from coverage of the act?). But the unprincipled part of the decision was that the textual meaning advanced by the Chief Justice was wholly unsupported by the text or the legislative history of the Act. I devote about half of my article, Constitutional Avoidance and Anti-Avoidance by the Roberts Court, 2009 Supreme Court Review 181, to demonstrating the truth of this assertion. Below the fold, I’ve included an excerpt from my article explaining why the district court so thoroughly rejected the argument that it should avoid the constitutional question by interpreting the Act to allow the utility district to bail out.
As with the taxing power analysis by the Chief in the health care case, the bailout analysis in NAMUDNO was a total surprise. See Heather Gerken, The Supreme Court Punts on Section 5, Balkinization (June 22, 2009) (“the statutory argument is one that almost no one (save Greg Coleman, the lawyer who argued the case and who is now entitled to be described as a mad genius) thought was particularly tenable because of prior Court opinions.”); Richard L. Hasen, Sordid Business: Will the Supreme Court Kill the Voting Rights Act? Slate (Apr 27, 2009), online at http://www.slate.com/id/2216888/ (“Since there’s no good statutory loophole, the larger constitutional question seems unavoidable.”).
And then there’s Citizens United, the well known case in which the Supreme Court on a 5-4 vote struck down the limits on independent corporate spending in elections. Constitutional avoidance was an issue there too. As I explain in my article, a week after NAMUDNO was issued, the Court announced it would not be deciding Citizens United by the Court’s summer break as scheduled. Instead, the Court set the case for reargument in September (before the start of the new Court Term), expressly asking the parties to brief the question whether the Court should overturn two of its precedents upholding the constitutionality of corporate spending limits in candidate elections. The constitutional issue had been abandoned by the law’s challengers in the court below and was not even mentioned in the challengers’ jurisdictional statement. Moreover, the constitutional question could easily be avoided through a plausible interpretation of the applicable campaign finance statute. Among other things, the the Court could have held that video-on-demand, which requires a cable subscriber to choose to download video for viewing, is not a “broadcast, cable or satellite communication that refers to a candidate for federal office” as defined by BCRA.
When the Court finally issued Citizens United, Chief Justice Roberts issued a separate concurring opinion, the main thrust of which appeared to be to justify not applying the doctrine of constitutional avoidance. He said that the interpretation offered to avoid the constitutional issue simply was not a plausible one. “This approach [of the dissent to apply avoidance] is based on a false premise: that our practice of avoiding unnecessary (and unnecessarily broad) constitutional holdings somehow trumps our obligation faithfully to interpret the law. It should go without saying, however, that we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.”
In my earlier article, I tried to explain why the Court applied a canon of avoidance in NAMUDNO but of anti-avoidance (reach out and decide a difficult constitutional question even if there is a plausible statutory construction to avoid it) in Citizens United. I came up with three possible theories: First, the fruitful dialogue explanation posits that the Court will use constitutional avoidance only when doing so would further a dialogue with Congress that has a realistic chance of actually avoiding constitutional problems through redrafting. On this reading, the Voting Rights Act got “remanded” to Congress because Congress may fix it in ways that do not violate the Constitution, but the corporate spending limits provision of federal campaign finance law perhaps does not deserve remand because the campaign finance laws are not constitutionally fixable. Second, the political legitimacy explanation posits that the Court uses the constitutional avoidance doctrine when it fears that a fullblown constitutional pronouncement would harm its legitimacy. Some evidence supports this understanding. In the same Term that the Court avoided the constitutional question in NAMUDNO, it used the same avoidance canon to narrowly construe a different provision of the Voting Rights Act in Bartlett v Strickland, and it applied constitutional avoidance (in deed if not in name) to narrowly construe Title VII of the 1964 Civil Rights Act in Ricci v DeStefano, the controversial New Haven firefighters case. Each of these cases involved tough questions of race relations whose resolution could harm the Court’s legitimacy. In contrast, campaign finance issues are much lower salience to the public, and are less likely to arouse the passion of interest groups and perhaps the ire of Congress. Third, the political calculus explanation posits that the Court uses constitutional avoidance to soften public and Congressional resistance to the Court’s movement of the law in a direction that the Court prefers as a matter of policy.
The Chief Justice’s application of the constitutional avoidance canon in the health care case fits with the second and third rationales. The Chief could have engaged in the questionable act of avoidance to preserve the Court’s legitimacy. Alternatively, as others have suggested he may be playing the long game, sacrificing a chance to strike down the health care law in order to set new markers on issues including the commerce clause and the spending power.
But what these three opinions have in common is the Chief Justice’s selective manipulation of the constitutional avoidance doctrine for legal and political ends. This does not make the Chief Justice unique as a Supreme Court Justice—far from it. But it hardly makes him the neutral umpire he fancies himself.
The following is a guest post from Abbe Gluck [cross-posted from Balkinization]:
The latest fracas over health reform—the challenge to subsidies for the federal exchanges—offers a long-overdue opportunity to think about how particular features of modern lawmaking might lead to new interpretive presumptions for statutory interpretation. This is the first of series of posts in which I will flesh out that idea. Here, I will focus on the role of the Congressional Budget Office, and how the “budget score” (the budgetary estimate of the effects of legislation) might be a useful tool of modern statutory interpretation, and how it sheds light on the current debate over the federal exchanges.
In a forthcoming article based on an empirical study of congressional drafting (co-authored with Lisa Bressman), we have argued for a new “CBO canon”: An interpretive presumption that ambiguities in legislation should be construed in the way most consistent with the assumptions underlying the congressional budget score on which the initial legislation was based. Both our empirical study and numerous articles in the political science and popular literature substantiate the notion that Congress now drafts in the shadow of the score. In the context of health reform, there was widespread reporting to this effect. As just one of many examples, the New York Times reported in March 2010: “Democrats have spent more than a year working with the nonpartisan budget office… Whenever the budget office judged some element or elements of the bill would cause a problem meeting the cost and deficit-reduction targets, Democrats just adjusted the underlying legislation to make sure it would hit their goal.”
Indeed, I would suggest that the budget score offers better evidence of congressional “intent” than other commonly consulted non-textual tools, including legislative history. This is because, unlike some types of legislative history, the budget score is produced by a nonpartisan office, widely publicized, often debated and usually the focus of many members and staffers. This gives it indicia of reliability that critics of legislative history have often thought lacking for that tool, and yet to my knowledge the Court has never used the score to help resolve statutory ambiguities.
This brings us to the most recent ACA-related scuffle. The ACA’s opponents have raised a challenge to the IRS’s interpretation that the Act allows subsidies not only for those who buy insurance on state-operated exchanges, but also for those who live in states with federally-operated exchanges. The dispute stems from what was most certainly sloppy drafting in the statute—in particular, the separation into two different sections of those provisions concerning the state exchanges and those provisions allowing the federal government to operate an exchange if states are unwilling or unable to do so. (This issue of how courts should construe such hastily-enacted and lengthy statutes is another one that we take up in our forthcoming article and to which I will return in a future post).
In my view, the overall structure of the Act and its legislative history, plus the confirmatory language in the health reform reconciliation bill, amply support the IRS’s position. If more is wanting, however, the CBO evidence makes it a slam dunk. Throughout the debates and reporting over health reform, legislators, the Administration and the media repeatedly discussed and debated the ACA’s CBO score, and at all times that score was based on the provision of subsidies to all qualifying purchasers on the exchanges, regardless of whether those exchanges were operated by the states or the federal government. The “CBO canon” clearly supports the agency’s interpretation.
In a decision released this morning, a federal court declined to issue a temporary restraining order in the DOJ’s NVRA challenge to Florida’s purported purge of noncitizens.
Part of the reason was that the Florida Secretary of State Detzner apparently said that he has abandoned the program (or, at least, the program’s use of a purge list that was wildly inaccurate, including an apparent failure to recognize that Puerto Rican natives are US citizens). But part of the reason was a curious construction of the NVRA, which stops systematic purges within 90 days of an election based on an apparent change of address, but not based on an apparent death or disenfranchising conviction … or, according to the Florida court, apparent noncitizen status. It will be interesting to see whether the government appeals (if only to seek vacatur of an opinion opining on an avowedly abandoned program) on the statutory construction question.
IMO, the 90-day provision exists to reduce the negative consequences of error, and there were (and are) plenty of reasons to be concerned with error here. There are two other lawsuits against the purge program, with legal claims beyond the NVRA; I’ll have more on the purge program more generally in a bit.
U.S. v. Nosal, en banc Ninth Circuit Kozinski opinion:
In its reply brief and at oral argument, the government focuses on the word “so” in the same phrase. See 18 U.S.C. § 1030(e)(6) (“accesser is not entitled so to obtain or alter” (emphasis added)). The government reads “so” to mean “in that manner,” which it claims must refer to use restrictions. In the government’s view, reading the definition narrowly would render “so” superfluous.
The government’s interpretation would transform the CFAA from an anti-hacking statute into an expansive misappropriation statute. This places a great deal of weight on a two-letter word that is essentially a conjunction. If Congress meant to expand the scope of criminal liability to everyone who uses a computer in violation of computer use restrictions —which may well include everyone who uses a computer— we would expect it to use language better suited to that purpose.3 Under the presumption that Congress acts interstitially, we construe a statute as displacing a substantial portion of the common law only where Congress has clearly indicated its intent to do so.
Minds have wandered since the beginning of time and the computer gives employees new ways to procrastinate, by gchatting with friends, playing games, shopping or watching sports highlights. Such activities are routinely prohibited by many computer-use policies, although employees are seldom disciplined for occasional use of work computers for personal purposes. Nevertheless, under the broad interpretation of the CFAA, such minor dalliances would become federal crimes. While it’s unlikely that you’ll be prosecuted for watching Reason.TV on your work computer, you could be. Employers wanting to rid themselves of troublesome employees without following proper procedures could threaten to report them to the FBI unless they quit.6 Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.7
From the dissent:
This case has nothing to do with playing sudoku, checking email, fibbing on dating sites, or any of the other activities that the majority rightly values. It has everything to do with stealing an employer’s valuable information to set up a competing business with the purloined data, siphoned away from the victim, knowing such access and use were prohibited in the defendants’ employment contracts. The indictment here charged that Nosal and his co-conspirators knowingly exceeded the access to a protected company computer they were given by an executive search firm that employed them; that they did so with the intent to defraud; and further, that
they stole the victim’s valuable proprietary information by means of that fraudulent conduct in order to profit from using it. In ridiculing scenarios not remotely presented by this case, the majority does a good job of knocking down straw men —far-fetched hypotheticals involving neither theft nor intentional fraudulent conduct, but innocuous violations of office policy.
The majority also takes a plainly written statute and parses it in a hyper-complicated way that distorts the obvious intent of Congress. No other circuit that has considered this statute finds the problems that the majority does.
Did someone say “SCOTUS”?
Must-read Abbe Gluck and Michael Graetz on the severability argument in the health care case. It concludes:
It’s not clear why the Obama administration has chosen this course. Perhaps it made a strategic choice to raise the stakes of striking down the mandate by asking the court to also invalidate the law’s more popular provisions. Or it may be concerned that, if the mandate alone is struck down, there would not be enough votes in Congress to pass new provisions to compensate the insurance industry for its loss. But as a legal matter, the court should reject the argument.
We believe that imposing the mandate was within Congress’s powers to regulate commerce and that the legislation should be upheld. But if the Supreme Court strikes the mandate down, the rest of the law should stand, and Congress should have to decide what happens next.
Why should an unelected court free the insurance industry from having to do its own political lobbying work in Congress? Why should the court choose whether or not to deny injured and sick Americans health insurance? These crucial decisions must be left to our elected officials, who — unlike the Supreme Court — can then be held accountable for them by the voting public.
Aaron-Andrew Bruhl and Ethan Leib have posted this draft on SSRN (forthcoming, University of Chicago Law Review). Here is the abstract:
Ths Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model – and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrasting view: that elected judges and appointed judges should actually interpret statutes differently. We explain and defend that view and explore some of its implications and limits. We identify categories of cases in which the argument for interpretive divergence is at its strongest. We also show how the analysis might illuminate several specific doctrinal problems related to judicial federalism and judicial review of agency action.
Looking forward to this!
“Either/Or: Professors Zephyr Rain Teachout and Akhil Reed Amar – Contradictions and Reconciliation”
Seth Barrett Tillman has posted this draft on SSRN. Here is the abstract:
The Foreign Emoluments Clauseis a constitutional backwater. So much so, that there is no substantial discussion of this clause in any federal adjudication (although the Office of Legal Counsel has regularly opined on it). Backwaters, however, have an unappreciated and significant virtue. They allow us to discuss our precommitments, assumptions, and methodological positions free from the distractions of the great political issues of the day – issues which naturally tend to divide us in ways which may be unconnected to the merits. Simply put, backwaters allow us to freely debate the merits of contestable worldviews. That is what I propose to do here.
Both Professors Zephyr Rain Teachout and Akhil Reed Amar have discussed the Foreign Emoluments Clause in their recent publications. Amar is an originalist, perhaps the most influential American originalist of the late twentieth century; Teachout, although, perhaps, not an originalist per se, regularly writes in an originalist mode – parsing drafting history, text, structure, precedent, and history – in search of a public (or, perhaps, an intended) meaning contemporaneous with ratification. Both Teachout and Amar might be fairly characterized as left-of-center, but both are also clearly in the academic mainstream. Both Teachout and Amar’s publications are actively cited, if not widely acclaimed, and my own view is that citations and public acclaim vastly underestimate the influence of these two scholars. (However, as do all mere humans, both Teachout and Amar stray into some truly puzzling errors from time to time.) Indeed, there are now several publications that cite both Teachout and Amar.
Interestingly, each takes a position in regard to the Foreign Emoluments Clause which is in clear conflict with the position taken by the other. The stakes here involve more than the contours, scope, purpose, and original public meaning of the Foreign Emoluments Clause (which, in itself, is not an entirely minor thing).
If Amar is correct, then Teachout must be wrong, and it follows that Teachout’s views in regard to congressional power to limit election-related speech and spending are (if not flatly wrong) something that must be carefully reconsidered in light of Amar’s contrary position.
On the other hand, if Teachout is correct, then Amar must be wrong, and it follows that Amar’s views in regard to constitutional structure, intratextualism, and the meaning of coordinate language in other constitutional clauses are (if not plainly wrong) something that must be closely reexamined in light of Teachout’s contrary teachings. This paper will explore that conflict, and, then, I will attempt to reconcile the two positions.
Toby Dorsey has posted this draft on SSRN (forthcoming, University of Richmond Law Review:
When the Supreme Court holds that part of an act is unconstitutional and must be stricken, what does it do with the rest? In almost every case, there is an implicit assumption — shared by every party and every Justice — that the rest of the act should stand, preserving as much of the functionality of the act as possible. In politically charged cases, however, the Court applies this functional assumption to most of the act, but then isolates a few provisions and applies a political preference test to those provisions — preserving those provisions only if Congress would have wanted them preserved. The Court’s political preference test is a test that has not been applied consistently and cannot be applied with any certainty. Accordingly, it may be unconstitutionally vague. Regardless, it is unseemly and unreliable. It is also unwise, because the test as formulated by the Court is so open-ended — its consequences so potentially broad — that every case not only allows, but actually invites, an argument that the Court should strike down an entire act. This leaves the entire statute book fraught with uncertainty, because the Court has left open the possibility in every case that it may strike far more broadly than the Constitution requires if there is a political justification for doing so. The Court should discard the political preference test. If part of an act is unconstitutional, the Court should strike that part, and leave the rest alone.
“This is the strangest statute I have ever seen.”
Chief Justice Roberts, in oral argument today as reported by the NY Times.
Ward Farnsworth Dustin Guzior and Anup Malani have posted this draft on SSRN. Here is the abstract:
What role do policy preferences play when a judge or any other reader decides what a statute or other legal text means? Most judges think of themselves as doing law, not politics. Yet the observable decisions that judges make often follow patterns that are hard to explain by anything other than policy preferences. Indeed, if one presses the implications of the data too hard, it is likely to be heard as an accusation of bad faith – a claim that the judge or other decision-maker isn’t really earnest in trying to separate preference from judgment. This does not advance the discussion, and distracts from the possibility of more interesting explanations. A promising antidote, we believe, lies in empirical study not just of large numbers of judicial decisions collected over time, as previous scholars have done, but of the immediate experience of legal interpretation.
We compile, and here present, rich evidence of what happens when lawyers in training are asked in controlled surveys to distinguish between their policy preferences on the one hand and their own interpretive judgments or predictions about courts judgments on the other. Our findings offer two lessons. First and foremost, they suggest that separating policy preferences from judgments about the meaning of statutes is very difficult. The same is true of preferences and predictions about what courts will do: respondents tend to predict that courts will do what the respondents themselves prefer. The fundamental entanglement of preferences and interpretation raises important questions about the ability of anyone – including judges – to neutrally carry out interpretive strategies meant to generate answers in close cases. Second, however, the results also show that certain ways of framing the interpretive question can reduce the influence of preference on interpretation – though perhaps not its effect on predictions. Instead of simply asking respondents how they would interpret the text of a statute or how the drafters would likely want it applied, it is better to ask respondents how ordinary readers would interpret the statute. This framing of the interpretative question can debias an individual’s interpretation of a statute.
In short, interpretative theories that elevate text alone or give the intent of drafters are both susceptible to contamination by private preferences. To immunize interpretation from these preferences, a theory that asks how ordinary readers would read a statute may be the best prescription.
This looks like a very interesting paper!
Chad Flanders has posted this draft on SSRN. Here is the abstract:
Election law struggles with the question of neutrality, not only with its possibility – can election rules truly be neutral between parties? – but also with its definition. What does it mean for election laws to be “neutral”? This paper examines one form of election law neutrality, what I term “veil of ignorance rules.” Such rules are formed in circumstances where neither party knows which rule will benefit its candidates in future elections.
In my essay, I consider the existence of veil of ignorance rules in two recent election law controversies: the rule that write-in ballots must be spelled correctly (in the Lisa Murkowski Senate race in Alaska), and the rule that a candidate must be a “resident” of the city in which he plans to run for mayor (Rahm Emanuel’s candidacy for Mayor of Chicago). Both rules can plausibly lay claim to being formed in conditions where neither party could know, ex ante, which rule would benefit its own candidates.
Veil of ignorance rules are interesting in their own right, but they also suggest a possible modification in what Rick Hasen has recently dubbed “the democracy canon.” The canon suggests that ambiguous election law rules should be read in a way that maximizes voter choice and voter enfranchisement. But if there are some rules that are neutral, because formed behind a veil of ignorance, they may deserve a type of deference not due to rules that were formed with an eye toward partisan advantage – even if those rules serve to limit voter participation.
Moreover, to the extent that the rules in the Murkowski and Emmanuel cases were neutral, upsetting them means upsetting a prior, legitimate, democratic decision. Voter participation and voter choice (that is, popular democracy) are not the only hallmarks of democratic legitimacy. Legislative decisions can also be democratic. The democracy canon only upholds one conception of democratic legitimacy. It is not, I conclude, the only one that can or should guide us in deciding close election law cases.
I very much look forward to reading this–not only because it discusses the Democracy Canon but also because I am a big fan of Chad Flanders’ work!
Brian Flanagan has posted this draft on SSRN (Oxford Journal of Legal Studies). Here is the abstract:
Many theorists take the view that literal meaning can be one of a number of factors to be weighed in reaching a legal interpretation. Still others regard literal meaning as having the potential to legally justify a particular outcome. Building on the scholarly response to HLA Hart’s famous ‘vehicles in the park’ hypothetical, this article presents a formal argument that literal meaning cannot be decisive of what’s legally correct, one which, unusually, makes no appeal to controversial theories within philosophy of language or literary criticism. If the argument is sound, it follows that an enactment’s literal meaning neither weighs in the determination of correct legal outcomes nor permits the application of a sequencing model, ie a non-monotonic logic, to its interpretation. These implications are considerably more controversial within contemporary legal theory than the idea that a statute’s literal meaning is not necessarily its legal meaning. Yet we see that, given an intuitive notion of legal truth, they follow from it nonetheless.
“In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent.”
Fascinating WSJ article.
Federal District Court Calls Out Supreme Court on Its Shoddy Statutory Interpretation of the VRA in the NAMUDNO Case
From today’s opinion in the Shelby County case, I was gratified (but somewhat surprised) to see the following passage in the district court’s discussion of NAMUDNO:
On appeal, however, the Supreme Court reversed and remanded. In a decision that has since been criticized by some as “a questionable application of the doctrine of ‘constitutional avoidance,’” see Richard L. Hasen, Constitutional Avoidance and Anti-Avoidance by the Roberts Court, 2009 SUP. CT. REV. 181 (2009); see also Ellen Katz, From Bush v. Gore to NAMUDNO:-A Response to Professor Amar, 61 FLA. L. REV. 991, 992-93 (2009) (describing the Court’s “statutory construction” of the bailout provision in Nw. Austin II as “contrived”), Justice Roberts, writing for an eight-justice majority, sidestepped the “big question” of Section 5′s constitutionality by instead resolving the case on narrower, statutory grounds, see Nw. Austin II, 129 S. Ct. at 2508. Specifically, the Court found that the plaintiff-district qualified as a “political subdivision” eligible to petition for bailout — even though it did not register voters and was therefore not a political subdivision as that term is defined in Section 14(c)(2) of the Act. See 42 U.S.C. § 1973l(c)(2) (defining “political subdivision” to include “any county or parish” or “any other subdivision of a State which conducts registration for voting”).
Following up on this post, I was reading Josh Blackman’s post on yesterday’s Supreme Court per curiam opinion. Josh makes an interesting comparison about the Court waiting for Congress to act in the NAMUDNO case compared to this one, and he also highlight the Court’s use of what legislation scholars call the “Dog that Did Not Bark” canon:
It has now been seven years since the ICJ ruling and three years since our decision in Medellín I, making a stay based on the bare introductionof a bill in a single house of Congress even less justified. If a statute implementing Avena had genuinely been a priority for the political branches, it would have been enacted by now.
It is always perilous to judge congressional intent from the Congress’s failure to act.
The Congressional Research Service has issued this report.
An interesting NYT Opinionator column.
The following is a guest post from Anita Krishankumar:
Justice Scalia’s dissenting opinion in Sykes v. United States issued last Thursday, has quickly received a fair amount of buzz in the blogosphere. The buzz is understandable—the Sykes dissent is a Scalia classic: pithy, full of colorful phrases, and entertainingly blunt. But there is more to the opinion than just a few memorable Congress-bashing quotes. Indeed, there seem to me to be at least two related statutory interpretation techniques, or methodological biases, at work in Justice Scalia’s dissent. The first is an intolerance for imprecise statutory constructions that leave courts to engage in messy, case-by-case applications of a statute down the line. The second is a limited, black-and-white view of the reasons why Congress might end up enacting a statute that calls for just such messy, case-by-case judicial judgments in the implementation of a given statute.
I have argued elsewhere that the Supreme Court sometimes employs an “anti-messiness” principle in interpreting statutes—meaning that it deliberately rejects statutory constructions that require case-by-case factual inquiries or judicial judgments that will prove “messy”/complicated/confusing for implementing courts to administer. Justice Scalia is a strong proponent of this interpretive principle and his Sykes dissent very much reflects his commitment to such messiness avoidance. For example, his dissent criticizes the majority opinion on the grounds that “instead of producing a clarification of the Delphic residual clause, [it] produces a fourth ad hoc judgment that will sow further confusion.” In a bit of an I-told-you-so moment, his dissent also points to his opinion in James v. United States, an earlier case interpreting the ACCA’s residual clause, which warned that the Court’s interpretation “permit[ted] an unintelligible criminal statute to survive uncorrected, unguided, and unexplained.” The intervening years, Justice Scalia’s Sykes dissent scolds, have proved that warning correct. In Justice Scalia’s view, one of the Supreme Court’s roles as statutory interpreter is to give statutes a clear, predictable meaning that can be implemented almost automatically, without the need for further judicial line-drawing or clarification. If such line-drawing or clarification become necessary, then the Court’s initial interpretation was by definition inadequate. Hence his admonition in Sykes that “Four times is enough” and his sarcastic observation that “We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.”
Justice Scalia’s Sykes dissent also criticizes the Court, in terms reminiscent of formalist Judge Keen in the Legal Process classic the Speluncean Explorers, for teaching Congress bad habits by tolerating such hopelessly imprecise statutes. “[O]ur indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution,” he complains. But it is worth noting that Justice Scalia’s fair-notice-based constitutional argument is weak in cases involving sentencing provisions, as opposed to cases involving the definition or elements of a criminal offense. There is no uncertainty as to the illegality of the defendant’s conduct in ACCA residual clause cases; what is at issue is the application of a sentencing enhancement to the defendant’s punishment. The fair notice argument carries significantly less weight in this context than in the context of determining what underlying conduct is prohibited.
Notably, Justice Scalia saves his sharpest criticism for Congress itself, and this part of his Sykes dissent has garnered most of the attention in the blogosphere. “Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation,” Justice Scalia accuses, “is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty.” This harangue against Congress seems to assume that the ACCA’s residual clause intentionally was left vague by a Congress that was shirking its duty. The problem with this argument is not that Congress never behaves in this fashion; it surely does in some cases. But Justice Scalia’s dissent paints with a broad brush stroke and ignores the very real possibility that Congress may have had other, less objectionable, reasons for not providing an exhaustive list of the crimes that count for purposes of the ACCA’s residual clause. Perhaps given the large universe of state crimes that present a “serious potential risk of physical injury to another,” Congress was loath to provide a lengthy list within the statute—on the theory that its list almost certainly would leave out some crimes that should be included and that those crimes then would be automatically excluded under an expressio unius argument. Or perhaps Congress genuinely failed to anticipate the confusion that the ACCA’s residual clause would cause for implementing courts. Alternatively, Congress may have made a judgment that courts, which are experienced in evaluating the elements of a crime, are better suited to drawing fine distinctions between specific offenses than is the legislature and may accordingly have left the sorting out of such crimes to judges in the implementation stage. It also is possible that Congress, unlike Justice Scalia, has agreed with—or at least had no significant problems with—the manner in which the Court has applied the residual clause thus far; that is, perhaps Congress is satisfied with the Court’s ad-hoc judgments in James, Begay, and Chambers and has chosen to spend its resources legislating on other matters that it deems more pressing.
Justice Scalia seems to dismiss such possibilities with a glib flip of the hand, claiming that “Congress can quickly add what it wishes” to the statute. But as Justice Scalia undoubtedly is aware, few things happen quickly or easily in Congress. His Sykes dissent thus presents an interesting take on the Court-Congress dialogue: He seems to be advocating that the Court should reject statutory language that requires messy, case-by-case judicial implementation and should seek—through a “void for vagueness” ruling—to force Congress to rework statutes that produce undue messiness in the application (“undue” as defined by Justice Scalia, since no other Justice joined his dissent)—and that it should do so irrespective of how satisfied Congress itself might be with the judiciary’s current implementation of such statutes.
St. John’s University School of Law