December 27, 2008
Saturday Evening Review: Oxford Handbook of Law and Politics
The Oxford Handbook of Law and Politics, edited by Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira (Oxford University Press, 2008), is a 832 page tome described by the publishers as providing a
comprehensive survey of the field of law and politics in all its diversity, ranging from such traditional subjects as theories of jurisprudence, constitutionalism, judicial politics and law and society to such re-emerging subjects as comparative judicial politics, international law, and democratization. The Oxford Handbook of Law and Politics gathers together leading scholars in the field to assess key literatures shaping the discipline today and to help set the direction of research in the decade ahead.
How does a ConLaw Prof assess whether she needs yet another "handbook" on the general field of law with an interdisciplinary focus, priced at $ 150?
A good place to start is the table of contents, which is available on the OUP site (either US or UK). It's an impressive roster of authors, although some of the names will be less familiar to law school academics who eschew political science scholars. The scope is predictably wide, but perhaps less predictably has a definite US-focus, despite the four chapters (less than 10% of the book) on International and Supranational Law. The section entitled "Sources of Law and Theories of Jurisprudence" looks especially enticing for any ConLawProf, with chapters on Positivism (Jules Coleman), Natural Law (Robert George),
Rights Liberalism (Matthew Kramer), Formalism and Its Discontents (Frederick Schauer), Feminist Theory (Judith Baer), and Race and Legal Theory (Sheila Foster and Robin Lenhardt).
But a TOC (and the publisher's promotion materials) only provide a glimmer. What one really needs, is a review. And of course, not simply one review, but several of them, preferably by scholars and colleagues one can trust (as opposed to the anonymous postings on on-line book seller sites).
Luckily, the Law and Politics Book Review (which I've previously mentioned here), has a Symposium here on the book, also available as the 2008 Winter issue of LAW & COURTS (Volume 19, No.1), available as pdf from site here. It's a series of five short reviews of the book, although Jeffrey Staton, one of the reviewers states, a handbook is actually a "series of review essays," and so in his review Shaping the Field?, he is "reviewing a collection of reviews." He says that the "real success of the volume" is its potential to "start productive conversations among scholars in the various subfields" that is law and politics: "Although the essay writers do not really engage each other directly, I think the best way to view the handbook is as an invitation to readers to flesh out implicit conversations in the essays." It is Stanton's personal reflection, however, that provides the highest compliment for the book:
Some of the most intellectually stimulating moments on the job occur at faculty workshops or job talks where the research subject is outside your area. Learning that someone else thinks about a particular research problem in roughly the same way as you think about an analogous yet distinct research problem is exciting and reassuring. But it is even better when you see someone work through a problem in a way that provides material assistance to your own struggles. In large part, the handbook serves this purpose. I am anxious to get to work on my own research in light of what I have read from other scholars. I am also excited about the opportunity to reach out to people outside my subfield in an effort to collaboratively advance shared research questions.
Wendy Martinek of Binghamton University is less impressed and seemingly less stimulated. Indeed, she cogently criticizes the entire enterprise of the interdisciplinary nature of law and politics scholarship. In her review, Interdisciplinarity in Legal Scholarship, she argues that
Even a casual reader of the [Oxford Handbook's] chapters on law and economics (Kornhauser), law and psychology (Tyler), and law and history (Tomlins) – all of which appear in Part IX “Interdisciplinary Approaches to Law and Politics” – will come away with some sense of what might reasonably be seen as an economic or psychological or historical approach to the study of some aspect or aspects of law. But we can consider these interdisciplinary approaches only by assuming that law is a separate discipline. Setting aside the study of and training in the actual practice of law, however, I respectfully submit that law is not a separate discipline unto itself. There is no unique theoretical focus or particular methodological tool that demarcates law from other disciplines. And scholarship that examines law through the lens of only one discipline – no matter how finely crafted and insightful – cannot be properly understood as interdisciplinary.
Martinek's "setting aside the study of and training in the actual practice of law" is an intriguing caveat. Is that the difference between ConLawProfs who teach in law schools vs. ConLawProfs who teach in other parts of the university or in non-US law schools/departments that are not devoted to professional "training" in the same manner?
Thomas Keck of Syracuse also contributed to this review symposium and I was especially anxious to learn his thoughts since I've used his excellent book, The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (U Chicago, 2004), in my own work several times. In his review, Law, Politics, and Political Science, he writes that the Oxford Handbook is "fabulous" with something for everyone in the law and courts "community," and adds:
despite my repeated efforts to prepare for this essay by focusing on the chapters most relevant to my own research on the Supreme Court and American constitutionalism, I kept getting distracted by excellent chapters on comparative and international law, particularly the contributions by Kim Lane Scheppele (on extralegal emergencies), Karen Alter (on the European Court of Justice), Tom Ginsburg (on the global spread of judicial review), and Ran Hirschl (on the worldwide judicialization of politics).
Yet Keck has some stinging criticism of the ten-volume series, Oxford Handbooks of Political Science, of which this volume is a part. His bottom line is that the law and courts subfield is not well represented in the other nine volumes in the Oxford series, much to the detriment of those volumes.
Lisa Hilbink of University of Minnesota, approaches the Handbook from her perspective as a "comparativist" in a field "long dominated by scholars of a single court in a single country – namely the U.S. Supreme Court." Hilbink's review, From Comparative Judicial Politics to Comparative Law and Politics, is an important argument for rethinking the limited scope of many ConLaw courses and casebooks. I'm a huge advocate of expanding coverage to include the lower federal courts, even in a US-focused conlaw course, so I find Hilbink's comments "spot-on." As for the Handbook, Hilbink concludes it risks "reproducing some of the existing pathologies of the law and courts subfield":
Reading the chapters in the “Comparative Judicial Politics” section of the OHLP, I was struck by three things: first, the almost exclusive focus on high courts and constitutional decision-making in the countries of study; second, a tendency to discount the relevance of factors in any way internal to law or legal institutions; and third, a limited and limiting view of politics as narrowly instrumental.
Hilbink's review supports her points and can be extended beyond the "comparativist" perspective. Her review gestures toward answering the question that many students in law schools ask their ConLawProfs, in various guises but which can be reduced to a query such as "so, the Justices just do whatever they want?"
Finally, Malcolm Feeley of UC-Berkeley School of Law (Boalt Hall), in his review, Whither Public Law Scholarship? An Assessment of an Assessment of the Field, has several things of interest to add. Refreshingly, he admits that at one time he was rather " dismissive of encyclopedia and handbook entries. This changed markedly after I’d written my first such entry." Having written a few of these myself (and repeatedly vowed not to write more), Feeley's reminder of the difficulty of such pieces is a good one. Feeley also provides an admission:
I must confess I have not read all 774 pages and all forty five entries (excluding index and front matter). But I have skimmed and dipped in here and there – reading most of the essays that are both closest to and farthest away from my areas of interest, and reading as well the volume’s four introductory and three concluding essays. I feel moderately confident in assaying the HANDBOOK as a whole, and in underscoring my conclusion: the editors and authors have done well for the field.
Feeley not only provides some incisive analysis, but also points the way forward:
my suggestion as to what to do with the volume: Get your department to order the volume – or if you can afford it, order it yourself. When it arrives, place it on departmental reserve and invite public law graduate students and would-be public law graduate students to read it. Arrange a schedule; select two or three essays at a time, and meet in the student lounge to discuss them. Eventually work your way through most if not all of the volume. It should be a rewarding experience not only for the students but for you as well. What you can do in this process is what the authors of the entries did not do enough of – engage the different entries with each other. . . . The combination and permutation of the various ideas in the entries invite a host of interesting possibilities. You get the idea.
I've gotten the idea. Although rather than students, why not colleagues? Anyone up for a reading group next semester?
December 26, 2008
Rossi on the Nondelegation Doctrine
Here's an excellent and concise (4-page) encyclopedia overview of the nondelegation doctrine by Jim Rossi (Fl. State) for the Encyclopedia of the Supreme Court of the United States. Take a look.
December 23, 2008
Liptak on Bush v. Gore
But now, as the petitioner leaves the national stage, Bush v. Gore is turning out to have lasting value after all. "You're starting to see courts invoke it," said Samuel Issacharoff, a law professor at New York University, "and you're starting to see briefs cite it."
For example, reports Liptak, the Sixth Circuit just last month cited the case several times in a unanimous opinion upholding the lower court's denial of defendants' motion to dismiss a case challenging Ohio's touchscreen voting machines under the Equal Protection Clause and substantive due process.
The full opinion is here; here's a bit of what the court pulled from Bush v. Gore:
The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. It must be remembered that the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.
White House Bails Out Automakers with TARP Funds
The problem, as several have noted, is that automakers are not (obviously) "financial institutions" under the TARP, and they therefore do not (obviously) qualify for a TARP bailout. Eric Posner at the Volokh Conspiracy surveys the landscape here; Randy Picker at the U. Chicago Law School Faculty Blog posts, with links, here and here.
TARP defines "financial institutions" this way:
any institution, including, but not limited to, any bank, savings association, credit union, security broker or dealer, or insurance company, established and regulated under the laws of the United States or any State . . . .
Automakers not included. (And note that the White House effort targets GM, not GMAC, which might have put the program more obviously within TARP limits.)
Add to this that Congress declined to pass a bailout bill for automakers. This alone, of course, says nothing about Treasury's authority under TARP, but it strongly suggests Congressional intent not to bailout the automakers.
So where does the White House get authority to use TARP funds to bailout automakers? Here's perhaps a clue, from VP Cheney's interview with Chris Wallace on Sunday:
These aren't normal circumstances. We're in the midst of the worst financial crisis in recent memory. I think it's a good package. I think, you know, we talk about the Congress being critical. They had ample opportunity to deal with this issue and they failed. The president had no choice but to step in.
If Cheney's comments reflect the administration's legal analysis--admittedly a significant "if"--all this talk about whether the automakers fit the definition of "financial institution" is irrelevant: The administration bailed them out using emergency, "Schmittian" powers--see Rick Hills's post last week on PrawfsBlawg--and simply used the TARP for cover. Hills, summarizing Vermeule:
There is no point in searching for a "legal" answer -- in the sense of parsing the text or legislative history for either a formal or purposive answer to the question. Instead, one simply has to decide which decision-maker has the power to decide when the rule runs out -- that is, determine the shape of the "exception," in Schmitt's term.
But the Schmittian approach doesn't fit well here, where the administration had to rely upon a Congressionally authorized funding program (because Congress, not the executive, has the power of the purse). We've seen this administration stretch its own inherent Article II powers in reponse to an emergency, but here we have the administration playing fast and loose with Congressional action in an area--spending--that's exclusively within Congress's bailiwick.
And finally--and paradoxically--the administration's automaker bailout seems to lend credence to the claim that the TARP runs afoul of the nondelegation doctrine: If TARP can be so stretched, it seems there are no Congressional standards in the bill at all. If that's so, Congress improperly delegated lawmaking authority. It seems as though the administration has created its own Constitutional Catch-22: Any reliance on TARP creates a nondelegation problem.
But even if the administration's action violates the Constitution, it's not clear that there's a judicial remedy. As some have asked: Who would have standing to challenge the automaker bailout, anyway?
Cheney on Constitutional Powers of the President
Chris Wallace interviewed Vice President Dick Cheney on Fox News Sunday this week; links to the video and the transcript are here. Not much new here, but Wallace's gentle questioning allowed Cheney to set it all out in one place. Here are some highlights:
On the financial bailout and the President's bailout of the automakers:
I think, you know, we talk about the Congress being critical. They had ample opportunity to deal with this issue and they failed. The president had no choice but to step in.
On comparative exercise of Article II powers, in historical context:
I mean, the fact of the matter is that, especially given the kind of conflict we're faced with today, we find ourselves in a situation where I believe you need strong executive leadership.
What we did in this administration is to exert that kind of authority. We did it in a manner that I believe and the lawyers that we looked to for advice believed was fully consistent with the Constitution and with the laws of the land. And there's, I say, ample precedent for it.
If you think about what Abraham Lincoln did during the Civil War, what FDR did during World War II, they went far beyond anything we've done in the global war on terror.
But we have exercised, I think, the legitimate authority of the president under Article 2 of the Constitution as commander in chief in order to put in place policies and programs that have successfully defended the nation.
On Presidential powers relative to Congressional and Judicial authorities:
WALLACE: If you could conceptualize it for me, sir, what do you think are the powers of the president relative to Congress and relative to the courts during war?
CHENEY: Well, I think in wartime, when you consider his responsibilities as commander in chief, clearly that means command of the armed forces.
It also, when you get into use of forces in wartime, means collecting intelligence. And therefore, I think you're fully justified in setting up a terror surveillance program to be able to intercept the communications of people who are communicating with terrorists outside the United States.
I think you can have a robust interrogation program with respect to high-value detainees. Now, those are all steps we took that I believe the president was fully authorized in taking and provided invaluable intelligence which has been the key to our ability to defeat Al Qaida over these last seven years.
WALLACE: This is at the core of the controversies that I want to get to with you in a moment. If the president during war decides to do something to protect the country, is it legal?
CHENEY: General proposition, I'd say yes. You need to be more specific than that. I mean — but clearly, when you take the oath of office on January 20th of 2001, as we did, you take the oath to support and defend and protect the Constitution of the United States against all enemies, foreign and domestic.
There's no question about what your responsibilities are in that regard. And again, I think that there are bound to be debates and arguments from time to time, and wrestling back and forth, about what kind of authority is appropriate in any specific circumstance.
But I think that what we've done has been totally consistent with what the Constitution provides for.
The president of the United States now for 50 years is followed at all times, 24 hours a day, by a military aide carrying a football that contains the nuclear codes that he would use and be authorized to use in the event of a nuclear attack on the United States.
He could launch a kind of devastating attack the world's never seen. He doesn't have to check with anybody. He doesn't have to call the Congress. He doesn't have to check with the courts. He has that authority because of the nature of the world we live in.
. . .
CHENEY: Well, they have, for example, said — passed the War Powers Act. The War Powers Act is still in force out there today. That requires him to grant certain notifications to the Congress and give them the authority to supersede those by vote, if they want to, when it comes to committing troops.
No president has ever signed off on the proposition that the War Powers Act is constitutional. I would argue that it is, in fact, a violation of the Constitution, that it's an infringement on the president's authority as the commander in chief.
It's never been resolved, but I think it's a very good example of a way in which Congress has tried to limit presidents' authority and, frankly, can't.
On the Terrorist Surveillance Program:
WALLACE: Let's drill down into some of the specific measures that you pushed — first of all, the warrantless surveillance on a massive scale, without telling the appropriate court, without seeking legislation from Congress.
Why not, in the aftermath of 9/11 and the spirit of national unity, get approval, support, bring in the other branches of government?
CHENEY: Well, let me tell you a story about the terror surveillance program. We did brief the Congress. And we brought in...
WALLACE: Well, you briefed a few members.
CHENEY: We brought in the chairman and the ranking member, House and Senate, and briefed them a number of times up until — this was — be from late '01 up until '04 when there was additional controversy concerning the program.
At that point, we brought in what I describe as the big nine — not only the intel people but also the speaker, the majority and minority leaders of the House and Senate, and brought them into the situation room in the basement of the White House.
I presided over the meeting. We briefed them on the program, and what we'd achieved, and how it worked, and asked them, "Should we continue the program?" They were unanimous, Republican and Democrat alike. All agreed — absolutely essential to continue the program.
I then said, "Do we need to come to the Congress and get additional legislative authorization to continue what we're doing?" They said, "Absolutely not. Don't do it, because it will reveal to the enemy how it is we're reading their mail."
That happened. We did consult. We did keep them involved. We ultimately ended up having to go to the Congress after the New York Times decided they were going to make the judge to review all of — or make all of this available, obviously, when they reacted to a specific leak.
But it was a program that we briefed on repeatedly. We did these briefings in my office. I presided over them. We went to the key people in the House and Senate intel committees and ultimately the entirely leadership and sought their advice and counsel, and they agreed we should not come back to the Congress.
There's much more here, too. This is no Frost-Nixon interview, but it's well worth a look.
December 22, 2008
The Fourth Senate Seat? Colorado!
In my previous post about vacant US Senate seats here, I neglected the Colorado position expected to be vacant courtesy of Obama's selection of Ken Salazar as Secretary of the Interior - - - a choice that has some environmentalists less than pleased.
As for the replacement to be appointed by Colorado Governor Bill Ritter, Jr., there are "candidates aplenty" as the Washington Times phrases it here. Among those being mentioned by the NYTimes in its "handicapping": Representative John T. Salazar (the soon-to-be-ex Senator's brother), as well as other possibilities here.
December 21, 2008
The Sunday Reader: Ni Aolain and Gross on the Crisis Executive
Professors Fionnuala Ni Aolain (U. Minn. and U. Ulster) and Oren Gross (U. Minn.) recently posted on ssrn A Skeptical View of Deference to the Executive in Times of Crisis, forthcoming in the Israel Law Review. The piece is a response to arguments for extraordinary executive powers during crises, and particularly to those in Eric Posner and Adrian Vermeule's Terror in the Balance: Security, Liberty, and the Courts. (I posted last month on Posner and Vermeule's article on extraordinary executive powers in the current financial crisis here.) The pair has taken an interesting and important comparative approach in their prior work together--see Gross and Ni Aolain, Law in Times of Crisis: Emergency Powers in Theoretical and Comparative Perspective--but this article is a rather straight-forward response to assumptions and arguments in Posner and Vermeule's book. It's well worth a look; I highly recommend it to profs and students as a primer on the issues, with the authors' other work (linked above and below) to explore the issues further.
Ni Aolain and Gross first address the claim that "civil libertarians assume governments do not act rationally when they choose to aggrandize their crisis powers . . . ." They argue that this is not only an "intellectual cheat," but that civil libertarians recognize "that there are benefits to the community and to particular groups within it when emergency powers are activated." The authors:
Most notably emergencies present opportunities to legislate which may not easily arise again. . . . [I]t is not by co-incidence that we find massive legislative enactments being produced in a period of days or weeks. . . . Both [the Prevention of Terrorism Act in the United Kingdom in 1974 and the USA Patriot Act] were massive in scope and content and neatly illustrate two points. First, that extreme events put pressure on the state to respond and that that rejoinder invariably results in legislative outcomes which are produced in circumstances vastly different from the normal. Second, that such legislative enactments are broad and deep in scope.
Next, they take on Posner and Vermeule (and other supporters of extraordinary executive powers in crises) for overemphasizing the benefits--and not adequately addressing the costs--of extraordinary executive powers. Particularly, there are unaccounted for long-term effects upon legal systems and social structures; finances, reputation, and physical structures; "repression by the state and the mobilization of violent actors in the emergency law context"; and inability to undo the emergency once it has begun.
Third, the authors argue (contrary to Posner and Vermeule and others) that there is not a zero-sum exchange between civil liberties and security; instead the two go together: Security simply cannot be effective without concern for civil liberties and human rights. And finally they argue that extraordinary powers too often mean extra-constitutional powers, "straying outside agreed constitutional boundaries, or stretching such boundaries to diminish the status and role of other branches in times of crisis." This is so because emergency powers lose sight of the "relationship between duration and emergency."
Ni Aolain and Gross make a good case on these points against extraordinary executive authority in a crisis. And they make a strong case for the importance of these issues: They worry that the U.S. experience post-9/11 might be exported--that other democracies might similarly take up the same kinds of extraordinary powers that our own President claimed in the war on terror.
This article is a wonderful primer on the issues: It provides the big-picture points clearly and concisely, leaving the details for the authors' other work (also on their ssrn pages here and here, except their book, linked above). I highly recommend it for anyone teaching or studying extraordinary powers in crises.