Verdict Legal Analysis and Commentary from Justia Fri, 31 Jul 2015 04:01:45 +0000 en-US hourly 1 Copyright © Verdict 2013 (Verdict) (Verdict) 1440 Verdict 144 144 Legal Analysis and Commentary from Justia Verdict Verdict no no The Prospects for Presidential Election Reform as the 2016 Campaign Season Gets Underway Fri, 31 Jul 2015 04:01:45 +0000 Arizona Legislature v. Arizona Independent Redistricting Commission. Continue reading →]]> Ballot QuestionFor many folks, next week’s Republican presidential debate in Cleveland—sponsored by Fox News and Facebook and scheduled to air on the Fox News Channel—fully kicks off the 2016 presidential election season. As has been true with past presidential debates, some candidates (those who may be left out of the debate) have complained about the criteria that Fox will use—which include national poll popularity—to determine participation eligibility. The Supreme Court has held that even publicly sponsored debates need not allow all candidates to participate, and (since Fox and Facebook are private rather than governmental actors) there may be even less room to legally challenge the eligibility criteria for this event. But the controversy does remind us, as we enter another presidential election contest, that there are many aspects of the process we use to pick a president that might benefit from reform. In my column today, I provide an update on one very important reform movement—the so-called National Popular Vote (“NPV”) interstate compact plan.

Understanding Where the National Popular Vote Interstate Compact Plan Stands Today and How Partisan Roadblocks May Impede Its Continued Progress

As I have written in a number of columns analyzing different nuances of this concept, the NPV plan—a version of which was seriously floated by a small number of people including me, my older brother Akhil Amar, and also (separately) by Professor Robert Bennett over a decade ago—seeks to permit and encourage various states to sign onto an agreement that would require each signatory state to cast its electoral college votes not for the candidate who garners a plurality of popular votes in that state, but for the candidate who wins the most popular votes nationally. This system, with enough states as signatories, would generally mean that the winner of the presidential contest would be the person who had won the largest number of votes from individual voters nationwide. In that way, the plan would ensure that every voter—regardless of the state in which she lives—would have her vote count equally to that of every other voter in the country. Importantly, the agreement, by its own terms, would not go into effect until a sufficient number of states to comprise a majority of the electoral college—that is, states whose electoral college allotments collectively total 270 or more—ratify it.

When last I wrote on this website about the plan, around two years ago, elected legislatures in eight states (Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, Vermont and California) and the District of Columbia—comprising 132 electoral college votes altogether (almost half the needed 270 votes)—had adopted the idea. Since then, there has been significant, albeit gradual, progress. Two more elected state legislatures, New York and Rhode Island, have adopted the plan, bringing the total number of electoral votes in states committed to the plan to 165, which is over 60 percent of the number needed to bring the proposal into effect. Crossing the halfway mark is a big development. But an even bigger development (that I shall elaborate in the space below) turns out to be an action not by an elected state legislature, but instead by the Supreme Court in last month’s ruling in Arizona Legislature v. Arizona Independent Redistricting Commission. (AIRC).

Understanding the importance of the AIRC case to the NPV plan begins by appreciating that, as I have written a number of times over the years (and as Nate Silver echoed last year), to date only predictably blue (Democratic party) states have joined the movement, and until a red (Republican party) or purple (swing) state joins, it will (as I put the point four years ago) “become increasingly hard to debunk the fear that red state folks have that the National Popular Vote bill is a Democratic scheme rather than a democratic idea.” In fact, people in red states like Texas should want to consider the NPV plan, since under the current system predictably red states get ignored in the election campaign just as surely as predictably blue states do. Moreover, we are at a moment in history in which the traditional operation of the electoral college doesn’t really favor either major political party over the other one very much. (Mr. Silver asserts that the electoral college has actually helped Democrats in the last two elections, even though it hurt them in 2000.) I would add that even if there were reason to believe that a move towards a national popular vote would aid one political party right now, that still would allow for adoption of the plan with an effective date set far in the future—when demographics cannot easily be predicted—if national voter equality is, as I believe, a compelling idea.

But given the hyper-partisan mindsets of many elected officials today, to get red state elected legislatures and governors to see that NPV won’t necessarily hurt their party (and to get blue state elected legislatures and governors to stay committed to the plan if red states do join on) may be hard.

How the Supreme Court’s Recent Ruling About the Use of the Initiative in Redistricting May Suggest a Way Around those Roadblocks: The Textual Meaning of the Word “Legislature”

That is where the Supreme Court’s recent decision comes in: because the Court’s AIRC ruling opens the door to presidential election reform through direct democracy, e.g., the initiative device, the chances for enactment of the NPV plan go up. (I should note that I believed and had written that a state could permissibly join the NPV by initiative even before the AIRC decision, but the majority opinion in that case greatly increases the chances such an action by a state would be allowed by the Court.) In short, the Supreme Court’s decision to uphold initiative power to deal with the problem of partisan gerrymandering for federal legislative districts ought also to mean that initiatives can be used to overcome partisan decisions by elected state officials concerning the electoral college.

I say this because the two reasons Justice Ginsburg’s majority opinion gave to explain why the initiative device was permissible in congressional election regulations apply to presidential election regulations as well. The first deals with the meaning of the word “Legislature” in the relevant provisions of the Constitution. In the AIRC case, the textual question presented was whether the word “Legislature” in Article I, section 4, (the so-called Elections Clause) can mean the people making law directly, or was instead limited to the elected legislature adopting a measure. The AIRC Court said that when, as in Article I, section 4, the Constitution refers to “Legislature” as a body that regulates or makes policy—rather than a body that makes an up-or-down ratification decision (as it does for federal constitutional amendments under Article V of the Constitution) or chooses among particular candidates themselves (as state legislatures did before the 17th Amendment required “direct” election of U.S. Senators) – then “Legislature” includes direct democracy that a state might choose to employ.

The key point is that when Article II (the part of the Constitution dealing with presidential elections) mentions state “Legislatures” in connection with the process for picking electors to the electoral college, it similarly calls upon state “Legislatures” to make laws or regulations. We can see that most easily by comparing the text of Article I, section 4, and of Article II, section 2:

Article I, section 4 provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .” We could reorder the subject and verb of the (crucial) first part of that sentence (without changing its meaning at all) to say: “The Legislature in each State shall prescribe the . . . manner. . . of electing members of Congress . . . .”

Now consider Article II, section 2, which says: “Each State, shall appoint, in such Manner as the Legislature thereof may direct a Number of Electors [to the electoral college]. . .” We could reorder the subject and verb of the (crucial) first part of this sentence (also without changing its meaning in any way) to say: “The Legislature in each State shall direct the manner of appointing members of the electoral college.”

When we lay the two reformulations (which, again, consist of no more than resequencing the words in the two clauses without changing their meaning) side-by-side, the similarity is obvious. The two reformulations are:

“The Legislature in each State shall prescribe the . . . manner. . . of electing members of Congress. . . . ”


“The Legislature in each State shall direct the manner of appointing members of the electoral college. . . .”

There are only two textual differences between these two constitutional authorizations/duties, and neither is consequential. One is the use of the word “prescribe” vs. “direct.” But “prescribe” and “direct” are synonyms (and the AIRC Court actually used them interchangeably.) The other difference is the reference to “elect[ing” members of Congress vs. “appoint[ing]” members of the electoral college. But this difference simply tells us that members of the electoral college need not be elected. Yet in both settings, the constitutionally created role of the “Legislature” is to decide upon the “manner” of the particular selection process. That means deciding upon a policy to regulate a process of picking certain individuals.

Indeed, the textual reading in favor of allowing popular democracy under Article II is even stronger, since the sentence in Article II, section 2 begins not with “the Legislature” of each state, but rather with “[e]ach State”—and there can be no question that the people of a state are that state.

It is true that a state could decide to have its presidential electors (i.e., that state’s contingent in the electoral college) chosen by the elected legislature itself instead of (as is the current practice in all 50 states) by the voters of the state. But this simply means the actual selection of electoral college members by an elected state legislature is one permissible “manner” that may be used; the federal Constitution does not require or prohibit that. In any event (and this is the crux), the power created by Article II is limited to the power to pick the manner, not the power to pick the electors themselves. If a state (by its elected legislature or by the people directly) were to decide to authorize its elected legislature to handpick the presidential electors, that selection would take place by virtue of state law made pursuant to state lawmaking procedures; it would not be made directly under the power Article II creates because Article II speaks only to setting up a selection process, just as the Elections Clause of Article I speaks only to setting up an congressional election process.

For those Justices (and the dissenters in AIRC purported to be among them) who think the meaning of the term “Legislature” at various points in the Constitution should be informed by the interpretation that word has been given elsewhere in the document, it would be hard to reject the use of initiatives in the Article II elector-selection process without overruling AIRC.

The Essentially Similar Purpose (Structuring State-Federal Relations) of the Two Clauses

The second reason the AIRC Court gave for permitting direct democracy is that the history of the Elections Clause did not suggest any aversion to it. The Court said the overriding purpose of the Elections Clause was to distribute power between states and the federal government (and ultimately to give the federal government the power to redo whatever states do). The history and purpose behind the Elections Clause did not suggest any intent to regulate the intra-state relationship between a People and its elected legislature.

The same is true with Article II, section 2. It too was designed primarily to distribute power between state and federal governments (this time to make clear that the federal government could not redo what states do). But, importantly, the history and purpose behind this Clause also does not suggest a primary intent to regulate the intra-state relationship between a People and its elected legislature.

To repeat, many of us thought that Article II presidential-elector-selection processes could properly be adopted via direct democracy initiatives even before the AIRC case. But some language in an opinion joined by Justices Scalia and Thomas in Bush v. Gore gave other thoughtful analysts some pause. Justice Kennedy did not join that concurring opinion in Bush v. Gore, and his decision to join Justice Ginsburg’s opinion in AIRC (which adopted a very different interpretive approach to the meaning of the word “Legislature” at various places in the Constitution) suggests that his decision not to join the Bush v. Gore concurring opinion was quite intentional. In light of the AIRC result and (more importantly) reasoning, initiated reform of presidential elections is on much firmer ground.

Nor is the selection of presidential electors in November the only aspect of the presidential election process that might benefit by initiated reform. Many people lament the timing, sequence and delegate allocations used in presidential primary elections. While those contests are, in some sense, conducted by the political parties themselves, it is ultimately state law that decides what use to make of primary results in the larger presidential selection regime. In later columns during this presidential election cycle, I hope to take up some aspects of the primary process, and suggest how initiatives might be useful to address partisan entrenchment by party officials and elected leaders (and also to coordinate among states the way the NPV plan seeks to do) there as well.

Vikram David Amar is a law professor and the dean designate of the University of Illinois College of Law. Previously, he served as the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
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Blaming the Victims in Greece: Part Two of a Two-Part Series of Columns Thu, 30 Jul 2015 04:01:45 +0000 Continue reading →]]> Greece and EU FlagsIn my most recent Verdict column, I described why the conditions that Europe’s leaders have imposed on Greece are both unreasonable and economically myopic. What is most puzzling, however, is that Greece’s creditors—led by the German government—continue to demand that Greece engage in policies that will make it impossible to pay back its loans. It is a modern version of a debtors’ prison, with punishment being meted out for perceived bad behavior, no matter the fact that the punishment itself precludes making things right.

Today, in the second part of this two-part series, I will first explain how the German-led policy regime is likely to hurt not just Greece’s people, but people across Europe and even in the United States and elsewhere. Then, after describing how the current Greek government is being unfairly faulted for its strategies and policy agenda, I will devote the remainder of the column to an exploration of the misplaced moralism in the Greek crisis, exposing in particular how the arguments from German policymakers amount to blaming the victims of the very policies that they and Europe’s other leaders insisted upon imposing on the Greeks.

How the Greek Crisis Could Affect the Rest of the World

The most immediate victims of the cruel policy regime being imposed on Greece are, of course, the Greek people. Suffering under years of austerity, with measured unemployment rates of 25 percent overall and more than 50 percent for young would-be workers (both of which are surely underestimates), the Greek people elected a government earlier this year that promised to try to mitigate those damaging policies. We now know that Europe’s leaders are completely unwilling to change, and the new policy regime that they are inflicting on Greece is in many ways worse than what existed before.

This new policy regime is a time bomb, which means that there will soon be yet another Greek crisis. When that happens, beyond the predictable claims that (despite having done everything they have been ordered to do) this is still somehow the fault of the Greeks, the economic instability in Europe will worsen. Even now, the other European countries with relatively weak economies—in particular, Spain, Portugal, and Italy—are looking at what happened to Greece and wondering whether they should do what Greece has not yet dared to do, which is to leave the Eurozone.

Those countries with the weaker economies have, after all, been put on notice that Europe’s leaders are pitiless, using the Greek crisis to set an example for anyone else who might consider asking for a reduction in austerity policies. The lesson that those countries might instead learn, then, is that membership in Europe is no longer an especially appealing prospect. Back when it appeared that the stronger countries were trying to integrate Europe in a way that helped everyone, membership looked like a good idea. Now, why would anyone want to join, or to stay? If it were not so disruptive and costly to leave the Eurozone, Greece and others surely would have done so already.

Even serious discussions of a euro breakup are destabilizing, but actually doing it would harm everyone. Germany’s economy would take a hit because it would no longer be able to free-load on the weak currency that (as I described in my most recent column) is making Germany’s economy look artificially strong. The rest of Europe’s economies would also surely be harmed by the proposed or actual exit of one or more countries from the common currency.

And those are only the direct economic effects. Although there are 19 countries that currently use the euro, there are 28 countries in the European Union (EU). One of those non-euro-using countries is the United Kingdom, the government of which has promised to hold a public referendum on whether Britain should leave the EU entirely. Watching the disastrous way in which the Germans have led the EU throughout the current crisis, and the weakness of the French leaders in trying to steer an alternative path, surely will give a strong push to the anti-EU side in that election.

If the UK were to leave the EU, that would be a huge blow to European unity, with political and economic damage sure to follow. But that is not the only way in which Europe could be damaged. Greece itself, now that its elected left-leaning (but very pro-Europe) government has been forced to accept ever harsher policies, will surely see increasing flirtations with truly radical politics. And because economic suffering so often brings out the worst in people, we could expect to see the rise of some very scary right wing, foreigner-bashing demagogues.

In some ways, this parade of horribles could be both good and bad for the United States in the short term. The dollar will strengthen (which has mixed effects), and U.S. investments will be seen as a safe haven from a disintegrating Europe. Still, in a globalized world, it is surely a bad thing when our trading partners are weakened, and it is even worse for the United States when once-stable democracies are pushed toward extremism. The United States has a lot at stake, but Europe’s leaders have made it clear for years that they are willing to ignore advice from the United States, pursuing instead self-destructive policies based on fantasies of their own moral rectitude.

Victim-Blaming and Politics: Demonizing Greece’s Government

One of the more dispiriting aspects of the Greek crisis has been witnessing the sneering contempt that Europe’s leaders heap upon Greece’s government. In part, this is because the 2015 elections in Greece brought to power a party called Syriza, which translates to “coalition of the radical left.” As I explained in a post on Dorf on Law shortly after that election in January, however, the government of Prime Minister Alexis Tsipras has been anything but radical.

Indeed, Tsipras has done everything possible to keep Greece in the Eurozone, and he has never proposed anything remotely leftist during his time in office. His government has simply said that it would be better for Greece—and for all of Europe, including Greece’s creditors—to reduce (but not reverse) the extreme austerity measures under which Greeks have suffered for the past five years. “We’re willing to live under austerity, but not quite such extreme austerity,” is nowhere to be found in Karl Marx’s writings.

Nonetheless, Europe’s leaders have done everything possible to bully, diminish, and blame the Tsipras government. Does that sound like an overstatement? According to a report in The Washington Post on July 13:

During a pivotal meeting with [German Chancellor Angela] Merkel, French President François Hollande and European Council President Donald Tusk, Tsipras at one point received a thinly veiled threat that if he walked away and left the euro, Greece risked going it alone geopolitically, too. According to two officials in Brussels with knowledge of the exchange, the specter was raised of aggression from Turkey—a neighboring nation viewed in Greece as a historic antagonist.

If that report is true, the leaders of Germany, France, and the European Council threatened the leader of Greece, suggesting that they might stand aside if Turkey were to become aggressive. That would be shocking under any circumstances, but it is especially troubling because Greece is a member of the EU and Turkey is not. Suggesting such a thing is simply shocking.

Even the way that the Tsipras government has handled itself has been the subject of constant sniping during the crisis. European leaders and commentators routinely describe the Greek government as “amateurish,” and (as I described in my most recent Verdict column) they suggest that Greece’s leaders have tried to engage in “political blackmail.” That is what psychologists call “projection.”

When the German-led negotiating team, earlier this month, offered a harsh take-it-or-leave-it deal to the Greek government, Tsipras was faced with the possibility of agreeing under extreme duress to a package of policies that directly conflict with the platform on which he was elected. He could have said, “You know what, I’ll just say no,” but instead he gave the Greek people an opportunity to say, “Well, when we elected you, we hoped that Europe would be more reasonable, but that has not happened. We hereby allow you to break your campaign promises, under these new and unfortunate circumstances.” Tsipras thus called for a public referendum.

Nonetheless, this exercise in democracy was widely mocked across Europe. Somehow, asking one’s constituents their views on the matter is not allowed. When the Greek people then said no to Europe’s extreme demands, the subsequent deal offered by Europe’s leaders was inexplicably harsher than the package that they had offered only a week before. Or perhaps it was not inexplicable, because it certainly appears to be gratuitously inflicted punishment for the no vote.

Finally, reports emerged a few days ago that the Tsipras government had engaged in contingency planning during the debt negotiations this summer. In particular, they attempted to be prepared for the possibility of an exit from the Eurozone. This prudence is somehow being described as another example of the Greek government’s perfidy. Yet, as Paul Krugman has pointed out, it would be shocking if the Greek government had not engaged in such planning. Any responsible government should have done exactly what the Tsipras government did.

We have thus reached the point where it is clear that Greece’s government is being held to an impossible standard. If it does something, it is blamed, but if it had not done that very thing, it would surely also be blamed. A government that has tried to pull back even the slightest bit from the European orthodoxy is thus vilified and isolated.

Victim-Blaming and the People: Group Blame and Greece’s Citizens

What is perhaps most upsetting about the Greek situation, however, is the way in which the supposed failings of Greek governments—the current Tsipras government, but also the non-leftist governments before it—are now being used as an excuse to harm the Greek people.

It is easy to see the temptation. Greece claims to be a democracy, and so its people are responsible for the governments that they elect. Therefore, if those governments fail to stem systemic corruption, or fail to collect all of the taxes that are owed (especially by the richest Greeks), then that must ipso facto be the fault of everyone in Greece. They all, apparently, deserve to suffer.

No one, however, could reasonably take such group blaming seriously. The central problem with corruption is that it subverts the rule of law; so if a country tries to elect reformers, but the reformers are corrupted, it is not the people’s fault that they have been betrayed. When countries like Germany supported leaders with (to put it mildly) nefarious agendas, the enlightened view was that the German people are not inherently bad, but that their political system allowed bad men to come to power. The Greek situation is hardly that extreme, but in any case, it makes no sense to say that the Greek people must suffer for the sins of their leaders.

This is especially important because, as noted above, the economic suffering in Greece (and in Spain, Portugal, Italy, Ireland, and elsewhere) is especially concentrated on young people. More than half of the people who should now be building their lives in a thriving economy have instead graduated into a world that has nothing to offer them. They did not elect the series of governments that for decades failed to clean up corruption, or that allowed Greek millionaires and billionaires to shirk their tax responsibilities. Nonetheless, they are now being told that they have no hope, because the most powerful people in Europe are unhappy with Greece’s leaders.

As one American observer noted, in describing his recent conversations with German economists and policymakers, the Germans view this in entirely unsympathetic terms. “Debtors who default, they explained, would simply have to suffer, no matter how rough and even unfair the terms of the loans.” Faced with the argument that the policies being imposed upon Greece now amounted to “a new version of the 1919 Versailles Treaty that would bring in a future ‘chaotic and unreliable’ government in Greece,” these German leaders puzzlingly responded “that they were furious about being compared to Nazis and terrorists.”

There is nothing good about the current situation in Greece. That country’s government has been anything but perfect, of course, but the current crisis was caused not by Greece’s governmental failures. The global economic crisis put Greece in an unsustainable position, and its membership in the Eurozone put it at the mercy of its creditors. Those creditors have, unfortunately, convinced themselves that they are the true victims, and that Greece’s citizens should suffer because of some real, but irrelevant failures of their government. This is not just cruel. It is a recipe for disaster.

(Note: At the end of Part One of this series of columns, I wrote that as part of today’s column, I would “explain a disturbing parallel between the moralizing that Europe’s leaders have used to condemn Greece’s people to years of pain and ideologically similar victim-blaming in the United States.” Because of the length of today’s column, I have decided to move that discussion into a blog post today at the Dorf on Law blog.)

Neil H. Buchanan, a Justia columnist, is an economist and legal scholar, a Professor of Law at The George Washington University, and a Senior Fellow at the Taxation Law and Policy Research Institute, Monash University (Melbourne, Australia). He blogs at, and he is the author of The Debt Ceiling Disasters: How the Republicans Created an Unnecessary Constitutional Crisis and How the Democrats Can Fight Back.
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Were Planned Parenthood Officials Defamed by Misleading Videos? Wed, 29 Jul 2015 04:01:42 +0000 Continue reading →]]> Film ReelPlanned Parenthood is under fire because of recently released videos showing senior officials seemingly stating prices the organization charges for selling fetal body parts. Pro-life lawmakers in Congress have seized on the videos as evidence of wrongdoing, while Planned Parenthood has responded that the impression created by the videos is false—a product of highly selective and misleading editing. Planned Parenthood claims—quite credibly—that its officials were not stating prices to be paid for illegal sales of fetal tissue but for legal defrayment of costs associated with collecting, storing, and transporting such tissue.

The Planned Parenthood videos may raise important questions of public policy regarding abortion, but I will put those matters aside here to focus on an issue that transcends the particular content of the videos. To what extent does defamation law provide a remedy for people who appear in deliberately misleading audiovisual recordings? Although Planned Parenthood officials have raised questions about whether the Center for Medical Progress (CMP)—the organization behind the videos—filed fraudulent corporate and tax information, there does not appear to be any current plan by Planned Parenthood officials to sue the makers or disseminators of the videos for defamation. But that could change, and even if it does not, the issue will likely recur as other self-appointed citizen-journalists post their work online.

Free Speech, Defamation, and Misleading Editing

Since the Supreme Court’s landmark 1964 ruling in New York Times v. Sullivan, state tort law of defamation has been limited by federal constitutional principles. Under New York Times and subsequent cases, a public official or public figure cannot recover for defamation for a merely false statement. The plaintiff must show that the defendant speaker acted with reckless disregard for the truth or worse. Nonetheless, the case law construing the First Amendment still permits core defamation cases to proceed. Deliberately false statements that damage the plaintiff’s reputation can give rise to liability.

What about selective editing? The Supreme Court case most closely on point is the 1991 ruling in Masson v. New Yorker Magazine, Inc. There Justice Kennedy wrote for the Court that the use of quotation marks around statements that the plaintiff did not literally say could be the basis for a successful libel action, so long as the requirements of New York Times were otherwise satisfied. He provided the hypothetical example of “a fabricated quotation of a public official admitting he had been convicted of a serious crime when in fact he had not.”

Does it matter whether the particular quotation is fabricated in its entirety or constructed by selective omissions? It is difficult to see why that distinction should matter.

Suppose Deirdre writes a newspaper article in which she quotes Peter as saying “I committed murder,” when in fact Peter told Deirdre “I never committed murder.” Deirdre should face the same liability as she would face if she wrote that Peter admitted to having committed murder or simply that Peter committed murder. In each case, there is a false statement that causes damage to Peter’s reputation. The deliberate omission of the word “never” is equivalent to a fabrication of the murder admission.

The Masson case involved print, rather than video, but that does not seem like a relevant distinction either. Where the video editing aims at giving the viewer the impression that the persons depicted in the video said something they did not say, it has the same effect as deliberately deceptive print editing. Indeed, the edited video may defame its target more effectively than print because it appears to be a simple record of past events.

Does Simultaneous Dissemination of the Unedited Video Render the Edited Video Protected?

There is, however, one important twist in the Planned Parenthood case. In addition to posting its misleadingly edited videos, CMP has also posted the full, unedited video. Thus, CMP and David Daleiden (the man chiefly behind the videos) could argue that the shorter, edited versions were not meant to mislead but simply to summarize.

Yet that argument should probably fail. For one thing, in addition to the edited and unedited videos, the CMP website contained the statement “Planned Parenthood Uses Partial-Birth Abortions to Sell Baby Parts.” That statement alone could be judged defamatory.

Moreover, even apart from the text, if one version of the video has been intentionally edited to give the false impression that Planned Parenthood sells baby parts (rather than receiving payments in partial defrayment of its costs), and if that video is defamatory standing alone, then the dissemination of the non-defamatory unedited version does not cancel out the defamatory video. To return to our schematic hypothetical example, if Deirdre publishes a defamatory statement that “Peter is a murderer” she cannot escape liability by also publishing a statement saying “Peter is not a murderer.” At most the non-defamatory statement might mitigate damages, as it could reduce the harm to Peter’s reputation.

Finally, traditional tort law recognizes liability for repetition of a defamatory statement. Even if the original posting of the unedited video alongside of the misleadingly edited version somehow eliminated liability for CMP, organizations and individuals who re-posted CMP’s edited video without also posting the unedited version could be liable for the harm caused by what they posted.

Free Speech Protection for Editing

Accordingly, it appears that CMP and other entities and persons could face liability for defamation based on the Planned Parenthood videos. Nonetheless, courts should generally proceed with great caution before finding liability for defamation based on misleading editing.

Although state tort law often provides a remedy for highly misleading as well as outright false statements, there are special dangers for freedom of expression when the misleading is accomplished via editing. Journalists would not be doing their job if they simply dumped all of their raw data into the public domain. Editorial discretion is essential to journalism. Deciding what to exclude from a story is often as important as deciding what to include.

Allowing courts to second-guess journalists’ editorial judgments about inclusion and exclusion would thus pose a grave risk of censorship. In reporting that Donald Trump questioned whether John McCain was a war hero, were journalists under an obligation to report in the same story that McCain had earlier criticized Trump for “fir[ing] up the crazies” with his comments on immigration? If they failed to do so, could they be said to have defamed Trump, by making him look like the sort of person who would launch an unprovoked attack on a war hero? Defamation liability for misleading by omitting context assumes that there is some neutral means of determining what counts as context, but that judgment itself is also an exercise of editorial discretion.

None of this is to say that selective editing could never be the basis for defamation liability. It is to say that courts ought to steer clear of close judgment calls. In the Planned Parenthood case, that might mean letting CMP and others off the hook, but it might not. The federal statute forbidding the sale of organs quite clearly permits defrayment of costs, and the amounts discussed by Planned Parenthood officials in the videos are so low that it is simply false to say that Planned Parenthood profited from sales of fetal organs—as Republican presidential candidates Rick Perry, Rand Paul, and Carly Fiorina nonetheless said in response to the first video that surfaced.

Still, even if one regards the Planned Parenthood videos and associated statements as so far over the line between protected opinion and defamatory false statements of fact that they justify civil liability, in general, it is probably the wiser course for the targets of overzealous citizen-journalists to respond through their own counter-speech. Justice Louis Brandeis famously wrote in 1927 that “the fitting remedy for evil counsels is good ones.” Likewise, in general the fitting remedy for misleading editing is a strong dose of truth.

Michael C. Dorf, a Justia columnist, is the Robert S. Stevens Professor of Law at Cornell University Law School and the principal author of The Oxford Introductions to U.S. Law: Constitutional Law. He blogs at
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Who Is to Blame for the Greek Crisis, the Greeks or Europe’s Leaders? Part One of a Two-Part Series of Columns Tue, 28 Jul 2015 04:01:29 +0000 Continue reading →]]> Greece and EuroThe political crisis in Europe revolving around Greece’s economy is currently on hold. While the Greek people continue to endure Great Depression-level suffering, the months-long standoff between the government of Greece and Europe’s leaders was temporarily resolved by an agreement to negotiate further—an agreement to possibly agree at some point in the future, but only if the Greek government imposes further austerity on its people immediately.

Unfortunately, this latest gambit will almost surely end badly—not just for the Greek people, but for Europe and the rest of the world as well. The American people, too, have much at stake.

As I will explain below, the situation in Greece is economically simple, but politically nasty. Europe’s economic and political institutions—very much dominated by the German government—have willfully made the Greek situation worse. Rather than treating the problems in Greece as a manageable economic challenge, Germany’s leaders (only slightly hindered by some useful resistance from the International Monetary Fund) have instead turned the crisis into a matter of nationalistic scapegoating.

Europe’s political and financial leaders have, in short, used the “European project”—an admirable effort that was based on the idea of making Europe’s diverse peoples a unified whole—to sow bigotry and chauvinistic discord aimed at the Greek people. That is clearly bad for Greece. It could also set back European political unity for decades.

The Simple (Yet Difficult) Economics of a Common Currency

As I noted above, the economic situation in Greece is actually rather easy to understand. More to the point, it is also clear that there is one least-bad path forward, along with one most-bad path to disaster. To this point, the leaders of Europe have made it clear that they are determined to take the wrong path.

Sovereign nations with their own currencies have more options for dealing with economic setbacks than do countries that have no direct control over their monetary systems. When an economically independent country faces a downturn, that country can count on the value of its currency weakening, which tends to reduce imports and to increase exports. That, in turn, puts people at home back to work. But, with some exceptions that are not relevant here, this happens only when the country has a central bank that allows it to happen (and, usually, one that tries to expedite the process).

Joining a currency union, like the euro, changes everything. An individual member of the Eurozone cannot independently decide to allow its currency to lose value because it is tied to other countries that use the same currency, and the European Central Bank might well decide that it does not want to allow the currency’s value to change. Moreover, even if the euro’s value were to change, that would not help a struggling country as much as it otherwise would, because most of the country’s most important trading partners use the same currency.

This means that a country like Greece, when faced with a particularly harsh economic downturn, cannot count on exporting its way out of the slump (as Germany did in the 1990s when its economy was in crisis). Moreover, because its debts are denominated in the euro, Greece cannot use expansionary fiscal policy to end the depression. Its only available policy option is to push down wages domestically, in order to be able to sell goods at lower prices. Decades of research and experience, however, have shown that reducing domestic wages is extremely difficult, and it can only happen (even imperfectly and incompletely) if the country experiences an extremely deep recession or depression.

In the case of a country like Greece, that downturn makes its debt situation ever more difficult to manage, because the country’s GDP continues to decline dramatically in response to the austerity measures. In fact, even though Greece’s government has been collecting more in taxes than it has spent for the past several years (a so-called primary surplus, which excludes interest payments on existing debt), the country’s ratio of debt to GDP has gone up dramatically. This, however, is absolutely not a matter of Greece’s leaders having been fiscally profligate. The debt-to-GDP ratio is up because the denominator (GDP) has plummeted, not because the numerator (debt) has risen.

Europe’s leaders have stepped in over the past few years with a series of financial packages that have required Greece’s government to run large primary surpluses—that is, ever more stringent austerity measures. This has real effects directly on real people, who do not receive payments that they otherwise could have received from their government. Even more importantly, it has real effects indirectly on other people, who suffer because the economy’s downward spiral inflicts pain on everyone.

Greece’s unemployment rates have been in the 25-30 percent range for several years. That is not a typo. Over one-fourth of the people in Greece who seek work have not been able to find it. (In fact, this number is almost certainly understated, because people living through depressions know that seeking work is fruitless.) More shockingly, unemployment among young people in Greece has exceeded 50 percent throughout this disaster.

Debt Renegotiations and German Moralizing Based on Mythical Notions of Inviolable Rules

The least-bad path forward for Greece would be for everyone to admit that the country will never be able to pay its current debts in full, and to renegotiate those loans in a way that would allow the Greek economy to recover, putting its people back to work, and again becoming a positive force in an integrated European economy.

The IMF—which is one of Greece’s most important lenders—openly stated during the worst of the recent political crisis that the only way forward for Greece—and for Europe—was to reduce the country’s debt principal. There would normally be nothing surprising or especially complicated about such a process. Debts are renegotiated all the time. Indeed, the West German government negotiated with its creditors to reduce its debt by one-half shortly after World War II, to allow their country to start over.

The idea of a “fresh start” through bankruptcy is hardly a novel concept, in any modern economy. Even large, successful corporations sometimes renegotiate debts with their creditors, often through bankruptcy proceedings. For example, the remaining U.S. airlines have all used bankruptcy protections (sometimes more than once) to emerge as profitable companies. Although the specifics of bankruptcy laws need to be responsive to different contexts—preventing “deadbeat dads” from using bankruptcy to avoid paying child support, for example—there is no doubt that debt principal is often written down (which is to say, never paid back).

More importantly, everyone knows that loan contracts are not inviolable. Borrowers know it, and lenders know it, too. That is why debt is “rated” by analysts as being more or less likely to be paid off. As a matter of aspiration, loan contracts express what both sides expect to happen, but the idea that any deviation from the strict letter of those contracts is somehow an unheard-of attempt to cheat other people is simply absurd.

Unfortunately, many of Europe’s leaders have decided to turn the current crisis into an attempt to describe the Greek people as a whole as opportunistic leeches. As one American professor recently explained in the pages of The New York Times, Germany’s leaders in particular insist on viewing the situation as a matter of morality. After giving a talk at conference in which he explained why Greece’s situation is so dire, he wrote, “German attendees circled me to explain how the Greeks were robbing the Germans. They [the Germans] did not want to be victims anymore.”

This is especially galling, because the German economy’s current strength is largely based on the weakness of the economies of Greece, Italy, Spain, and others. How can that be? Because, as I described above, the common currency combines the economic fortunes of both rich and poor nations. Had Germany still been using the deutsche mark, normal forces of supply and demand would have strengthened the mark, making Germany less competitive, while allowing the poorer countries to take away some of Germany’s export market share.

Skeptical? This is hardly some far-out theory, and I am by no means the only economist to have made the point over the last few years. In fact, the economist Ben Bernanke stated the point quite clearly just last week: “Germany has benefited from having a currency, the euro, with an international value that is significantly weaker than a hypothetical German-only currency would be. Germany’s membership in the euro area has thus proved a major boost to German exports, relative to what they would be with an independent currency.”

Professor Bernanke is, moreover, hardly a bomb-thrower. He was President George W. Bush’s choice to be the chairman of the Federal Reserve Board, our central bank, a position in which he served from 2006 through last year. His economic work, both as an academic and a policymaker, has been thoroughly mainstream. Bernanke is saying what is obvious to anyone who understands the basic economics here: The Greek situation is not a result of fecklessness by the Greek people. Saying that they should stop “robbing” their creditors is dangerous nonsense.

Greece’s Governments, Like All Governments, Have Made Mistakes. When Is That Relevant?

As clear as the economic story is, however, it turns out that it is always possible to point to actions by Greek politicians as a way to distract people from the larger story. Because the current government of Greece is openly leftist, Europe’s conservative political and financial leaders feel especially free to claim—against all logic—that the situation only got out of hand because the new Greek government (which took office barely six months ago) insisted upon rolling back some of the austerity measures that have immiserated the Greek people for all these years.

It is essential to note that the current government did not try to end the austerity measures under which Greece has been laboring. It agreed up front to continue to run primary surpluses essentially ad infinitum, but it tried to moderate the severity of the austerity measures as a way to break the self-reinforcing downward spiral that the current situation had created. Yet, the all-too-common meme from Greece’s critics was to describe the new government’s negotiating stance as “political blackmail.”

Saying, as Greece’s government did, that the current arrangement needed to change, because it was hurting Greece, but also because it was not actually increasing the likelihood that European lenders would ever be paid in full, was thus somehow viewed as political grandstanding. (Again, what the Greek government was saying has since been confirmed by the very staid IMF.) That it was also the clearly stated will of the Greek people, who had put up with years of suffering that voters elsewhere (certainly including American voters) would never have tolerated, made no difference to Europe’s political and financial leaders.

Beyond blaming of the current government, Greece’s creditors also rolled out a series of other accusations about the supposed dishonesty of Greece’s politicians. Greece supposedly, for example, lied to enter the Eurozone in the first place, providing fake numbers to make its finances appear stronger than they were.

What that story fails to acknowledge is that everyone, very much including the German and French leaders of the European Union at the time, were in on the scheme. Everyone knew that Greece was being allowed into the EU for political reasons, and everyone was willing to avert their eyes. Using that episode now as a reason to punish the Greek people is eerily reminiscent of the famous line in “Casablanca,” where Captain Renault shouts, “I’m shocked, shocked to find that gambling is going on in here!”

Similarly, another claim is that generations of Greek governments have failed to put in place a modern system for collecting taxes. This, again, is true as far as it goes. But again, it is irrelevant to the current situation. Everyone knows that every country’s tax collections will be lower than the amount that would be collected if compliance with the tax laws were perfect. This is called the “tax gap.” In the United States, that gap has been estimated at about 10 percent of the total tax revenue that the federal government collects annually. For most other countries, it is much higher.

The point here, however, is that the countries and institutions that loaned money to Greece knew all of this. They knew that Greece’s tax gap is large, and that it has been for generations. It is perfectly valid, of course, to say that a country could try to collect more tax revenue, as a matter of reinforcing respect for the rule of law, or for other reasons. That, however, is not what is happening here.

Ultimately, current calls for “better tax collection efforts” in Greece are simply a different way to call for intensified austerity. Unless the Greek government can come up with a way quickly to collect large amounts of unpaid taxes from wealthy Greeks—because only wealthy citizens would be unlikely to reduce their spending on Greek goods and services, which would further harm Greece’s economy and increase its unemployment rate—calling on the country to increase taxes now (or, even worse, to cut spending further) is simply to try to force the Greeks to endure deeper austerity. That the excuse for doing so is given a moralistic gloss—“If only you had not tolerated such a large tax gap for all these years, you’d be fine now.”—does not change the underlying reality.

In short, even if one views the current and former governments of Greece as dishonest and uncooperative—charges that have some element of truth, but are being deliberately overblown—that is not currently relevant. Such claims are, instead, largely excuses for refusing to deal forthrightly with the problems at hand. They would, in fact, push the situation in precisely the wrong direction. If Greece is to stay in the Eurozone, it must receive debt reductions. And if it leaves the Eurozone, it will surely default on its own. Greece’s creditors are not going to be repaid in full, either way. The sooner they accept that, the better it will be for everyone, including the creditors themselves.

In my next Verdict column, the second in this two-part series, I will explain how the mismanagement of the Greek crisis harms not only the Greek people, but people everywhere. I will also explain a disturbing parallel between the moralizing that Europe’s leaders have used to condemn Greece’s people to years of pain and ideologically similar victim-blaming in the United States.

Neil H. Buchanan, a Justia columnist, is an economist and legal scholar, a Professor of Law at The George Washington University, and a Senior Fellow at the Taxation Law and Policy Research Institute, Monash University (Melbourne, Australia). He blogs at, and he is the author of The Debt Ceiling Disasters: How the Republicans Created an Unnecessary Constitutional Crisis and How the Democrats Can Fight Back.
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A Lefty Who Hates the Trump Show Mon, 27 Jul 2015 04:01:04 +0000 Continue reading →]]> Debate ConceptDonald Trump’s persistence as a sideshow prevents serious Republican candidates from establishing themselves with the electorate. For that, Democratic insiders are grateful and their Republican counterparts apoplectic. I am far to the left of most Democrats but still take no pleasure in Trump’s idiocy. With the possible exception of late night comedians, we should all look forward to the day Trump finally swaggers back to his customary state of coddled irrelevance.

From income inequality and criminal justice reform to climate change and global insecurity, the country faces a number of complex and important challenges. Of course, the country always faces complex and important challenges, and many people might think the issues we currently confront are no more pressing than those of a randomly selected moment in American history. The challenges of the current era share an essential feature that too many have overlooked, but that goes to the heart of American democracy: Each one calls upon the country to consider anew the fraught relationship between the government and the people.

Criminal justice presents this tension most obviously. By its nature, the criminal law strikes a balance between the competing interests of individual freedom and coercive order. But it is no less the case for the other issues we confront. Because government sets the conditions and creates the incentives that shape the behavior of individuals and businesses throughout the world, government action can make climate change, income inequality, and global insecurity much better or vastly worse, depending on the policies pursued.

So, if any of the nearly two dozen presidential candidates were charged with the solemn obligation to lead the country, how would they translate abstract political philosophy into concrete public policy? Would they encourage criminal justice reform by advancing a more prominent role for the federal government, or would they devolve power to the states? Would they rely on regulation to confront income inequality, or would they trust the hidden hand of the market? Would they expand or contract the administrative state as a possible response to climate change? Would they restrain or enlarge the power of the government to punish the people?

On the world stage, would they trust the dispute resolution mechanisms of international law, or retreat into isolationism? And at every step, would they be rigid ideologues or flexible pragmatists? Fundamentally, these questions call upon the candidates to declare the government’s proper sphere in American life. As the next president confronts the most pressing demands of the day, she or he will, by necessity, recalibrate the relationship between the people and the state.

For that reason, I would like to know how Bobby Jindal would deal with the problem of police–community relations in the inner city, or the practice of solitary confinement in America’s prisons. I would like to know how Scott Walker would respond to the reality of climate change, regardless of whether he believes it is caused by human activity. I would like to know what Ted Cruz envisions as a solution for a level of income inequality unseen since the Gilded Age. And I would like to know how Jeb Bush would address the global insecurity that his brother’s policies helped create.

Frankly, I’d like to know how Hilary Clinton, Bernie Sanders, Jim Webb, and Martin O’Malley would answer these questions too.

It is possible, I suppose, that the president has far less discretion in responding to these challenges than we like to think. Any president, the argument goes, will be forced by factors beyond his control to respond to these issues in more or less the same way, and it is therefore irrelevant whether we attach ourselves to Rand Paul or Hilary Clinton. But anyone who believes this should ask themselves whether, for instance, Rick Santorum would have pressed so hard and invested so much political capital to create and defend a national health care program like Obamacare.

Others will protest that I have asked the wrong question. They seem to believe that any Democrat would be preferable to every Republican, and therefore disarray among the latter is always a cause for celebration among the former. But this view should be reserved for hyper-partisans, and I do not number myself among them. No political party has a monopoly on moral bankruptcy or policy ineptitude, so it is at least worthwhile to ask candidates to make their positions known in the public square, in the hope that the country will benefit from the exercise.

I am considerably to the left of every Republican candidate, and probably every Democrat. Yet I accept what is obviously true: the Republican field includes a number of thoughtful, dedicated leaders who, if elected, would serve the country with vision and integrity. Lindsey Graham, for instance, has distinguished himself in foreign policy, and Rand Paul’s libertarianism has made him a staunch ally of individual liberty. I am quite certain I would not like many of the policies they might pursue or the officials they might appoint, but no one can fairly criticize their commitment to responsible leadership. The same can be said of several other Republicans in the race. I am no fan of Ted Cruz, but I recognize him as a man of intellectual rigor with a clear and principled political philosophy.

And because the race will inevitably be very close, I would like to know their views on the issues we face. I would like the country to reflect, collectively, on the relationship between government power and individual liberty in the context of historic levels of income inequality, gross over-criminalization, mounting threats from climate change, and accelerating global insecurity from a host of state and non-state actors.

But as long as presidential politics cannot rouse itself above the tabloid question of whether Donald Trump is a jackass, this is a conversation we will never have.

Joseph Margulies is a Professor of Law and Government at Cornell University. He is the author of What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013), and is also counsel for Abu Zubaydah, for whose interrogation the torture memo was written.
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Donald Trump Is Entertaining But When Will It End? Fri, 24 Jul 2015 04:01:41 +0000 Continue reading →]]> The White HouseSo far, 500 people have registered with the Federal Elections Commission to run for President of the United States. Needless to say, all but a few of these aspirants lack any chance whatsoever of becoming president. To the surprise of many, Donald Trump has fully registered with the FEC and surfaced as the early leader for the Republicans.

University of Virginia political scientist Larry Sabato, who has a very good crystal balls for predicting presidential contenders and races, has broken the massive GOP want-to-be field into five tiers to establish who is and who is not a viable potential. Professor Sabato’s first tier GOP candidates are (alphabetically): Jeb Bush, Marco Rubio and Scott Walker. Donald Trump, who is currently leading in the polls, ranks in lowest—or fifth—tier by Professor Sabato, who labels Trump a “gadfly.”

Political pundits everywhere are scratching their heads asking what is going on with Trump. How can a clown like Trump be in front of the “serious” GOP candidates? Most blame the news media for giving Trump’s antics too much attention. But much more than media attention is at work in explaining Trump’s success. In fact, Donald Trump has emerged as America’s leading authoritarian political figure, representative of a type of leadership for which many Americans yearn.

I looked closely at authoritarians in Conservatives Without Conscience, and the information I developed and shared in 2006 is equally, if not more, relevant today. Actually, Trump is far more aggressive in his authoritarianism than his predecessors. To understand the Trump phenomenon, it is essential to appreciate political authoritarianism, as well as its limits and boundaries.

Political Authoritarians—The Followers

Americans were introduced to “the authoritarian type” in a 1951 book that was controversial from its publication: The Authoritarian Personality by Theodor W. AdornoElse Frenkel-Brunswik, and Daniel J. Levinson. While the book had its flaws, time has also shown much of the analysis was accurate, if not prescient, in explaining this type of personality. When studying these personalities I discovered the later work of an American-born professor at the University of Manitoba, Bob Altemeyer, whose book The Authoritarian Specter updates, expands upon, and solidifies the work of Adorno’s team.

Altemeyer was extremely helpful in assisting me translate decades of academic works by social science into meaningful material for the general reader. After he saw the interest in my book, I was able to persuade Dr. Bob to summarize some of his own work for the general reader, which he posted online, and it is free. The work is entitled The Authoritarian, and it has been visited by over a half million people. Trump’s candidacy should send more people to read it.

I am only going to briefly summarize the authoritarian types, who can be broadly broken down into “leaders” and “followers.” Starting with the followers, who are more prevalent and who are characterized by their submissiveness to established authorities, a trait that becomes combined with a general aggressiveness toward others. Altemeyer labels these followers “right-wing authoritarians,” and from his studies I developed a laundry list of characteristic and traits consistently found in these people.

Specifically, as I noted in Conservatives Without Conscience, the authoritarian followers are both men and women, who tend to be highly conventional, always and easily submissive to authority, while willing to work aggressively on behalf of such an authority. They tend to be very religious, with moderate to little education, trusting of untrustworthy authorities, prejudiced (e.g., with respect to gay marriage); they are typically mean-spirited, narrow-minded, intolerant, bullying, zealous, dogmatic, uncritical of their chosen authority, hypocritical, inconsistent, prone to panic easily, highly self-righteous, moralistic, strict disciplinarian, severely punitive; they also demand loyalty and return it, have little self-awareness, and are typically politically and economically conservative Republicans.

These are the characteristics and traits of Donald Trump’s followers. They are a special breed of conservatives, many of whom identify themselves as Tea Party Republicans, although there are a few Democrats who fall in these ranks, and would love to see Trump in the White House.

Authoritarian Leaders

With any group of authoritarian followers you will find a few in the ranks who are not only among the loyalist of loyal followers, but who also want to be leaders. They are biding their time. In fact, testing shows one of the reasons they are such good followers is that they believe when they are one day leading, their followers should be as loyal as they have been. These authoritarian leader types, who are typically men, will always have four clear characteristics or traits that distinguish them: They are dominating; they oppose equality; they desire personal power; and they are amoral.

While it may seem I am merely describing Donald Trump, in fact, these essential distinguishing features have surfaced time and again over decades of testing by social scientists, but Trump clearly fits the pattern. In addition, Trump reflects many of the other characteristics or traits that identify the authoritarian leaders, which I similarly spelled out in Conservatives Without Conscience—a point I make here to clarify that I am not making this up with Trump’s arrival as a near perfect authoritarian leader type. Among the additional personality features, these people are usually intimidating and bullying, faintly hedonistic, vengeful, pitiless, exploitive, manipulative, dishonest, cheat to win, highly prejudiced, mean-spirited, militant, nationalistic, tell others what they want to hear, take advantage of “suckers,” specialize in creating false images to sell self, may or may not be religious, and are usually politically and economically conservative and Republican.

It is striking that Donald Trump appears to have all these characteristics. Without question, Trump is the most prototypical authoritarian leader to ever so prominently seek the American presidency, and we have had several authoritarian presidents and vice presidents, most recently including Richard Nixon and Spiro Agnew, followed by George W. Bush and Dick Cheney. But Donald Trump appears to fall within the indicia of the authoritarian leader far more than any of the others. This raises the question of how far a truly authoritarian leader can go in America.

How Far Can an Authoritarian Leader Go in America?

Not surprisingly, authoritarians excel in many fields such as law enforcement, the military, and business. Donald Trump has spent decades developing and harmonizing his authoritarian nature with his intellectual and interpersonal skills, and his efforts have been reinforced by his successes. While others may not take him as seriously as he takes himself, rest assured he knows exactly what he is doing. He has spent his lifetime doing what he is now doing.

Given Trump’s years as a public personality, plus his years hosting an authoritarian reality television shows—“The Apprentice” and “Celebrity Apprentice”—he understands the media better than any of his Republican rivals, and how to play himself publicly. Unlike most candidates, who can be embarrassed into following the rules by exposing foul-play, Trump is going to set the rules this time because he knows he can bully and manipulate everyone necessary to get his way. Trump is thoroughly enjoying being the loose cannon of the GOP 2016 Primary; he is making it up as he goes along. In short, do not look to Trump to restrain himself, nor the media criticizing him as a restraint. Trump knows the American public has less respect for the news media than politicians—while he sees himself as neither, rather a successful businessman who loves his country and wants to fix it for himself and his friends.

The only restraint on Donald Trump will be voters, but Republican voters love authoritarian leaders. Republicans have spent the last seven year portraying President Obama as wishy-washy and spineless, with Trump, of course, claiming he is not even an American nor as smart as he pretends to be. (Otherwise he would produce the transcript of his college grades, as demanded by Trump!) It is difficult to determine exactly how many Republicans are authoritarian followers—thus naturals for the Trump bandwagon—but in discussions with social scientists I have come to believe that somewhere between a quarter and half of registered Republicans are authoritarians, not to mention they are the activist base of the party. While the entire field of GOP presidential candidates evidence varying degrees of authoritarianism, none can top Trump.

In my informal conversations with many people who view themselves as part of the GOP base, Trump is very popular. He is telling them what they want to hear. Trump will not appeal to the Iowa evangelicals who dominate the Iowa caucuses, but if he makes a strong showing in New Hampshire and South Carolina, there will be no stopping him. Many Wall Street big-shots live in Trump’s upscale Manhattan buildings, and they view him as one of their own. Wall Street would not likely try to block him.

As I have watched Trump proceed in 2016, I keep recalling Bob Altemeyer’s troubling observation in The Authoritarian Specter: “If you think [Americans] could never elect an Adolf Hitler to power, note that David Duke would have become governor of Louisiana if it had just been up to the white voters in that state.” While Trump is no Hitler, we have never had as serious and off-the-charts authoritarian leader vying for our highest office.

To cut to the bottom line: I can envision a number of scenarios where Trump could capture the GOP nomination, and they all start with him making respectable showings in New Hampshire and South Carolina. If Trump is going to decide to go home and stop playing the game due to it being a waste of money, it will be after South Carolina. If he is in play at that time, he could win the nomination.

But I can find no scenario in which he could win the White House. Too many voters still remember Nixon, Agnew, Bush, and Cheney, who ranked high on the authoritarian leaders scale, albeit not as high as Donald Trump. Should it happen that Trump wins the GOP nomination, he will surely all but finish the destruction of the Republican Party, which began with the ascendency of the religious right and Southern conservatives leaving the “Big Tent” Democratic Party to make the GOP their unspoken racist home. The authoritarian base of the GOP has been steadily growing, and Trump could test its strength.

Of only one thing am I absolutely certain: Donald Trump will never be President of the United States, so rest easy. Authoritarians remain a minority in America, thankfully.

John W. Dean, a Justia columnist, is a former counsel to the president.
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A Series of Unfortunate Events for “Religious Liberty”: The Religious Freedom Restoration Act to the State RFRAs to the So-Called First Amendment Defense Act Bill Thu, 23 Jul 2015 04:01:01 +0000 Continue reading →]]> Courts and ReligionLong before the Supreme Court held that same-sex couples have a fundamental right to marry in Obergefell v. Hodges, those groups and believers that oppose same-sex marriage were busy lobbying for state legislation and drafting federal legislation to protect themselves from negative consequences if they were to impose their beliefs against same-sex couples. In short, they knew that they were facing the end of an era.

Just shy of 50 years before Obergefell, the Supreme Court held that interracial couples have the same fundamental right to marry in Loving v. Virginia. That decision was greeted with less enthusiasm than Obergefell, as only a small percentage, approximately 20 percent, of Americans supported a right to interracial marriage. In contrast, 42 percent of Americans support same sex marriage—more than double the support for interracial marriage immediately after Loving. (In addition, if you drill down by age, the younger the person, the higher the percentage support for same-sex marriage.)

Thus, believers in what they call “traditional marriage” had realistic premonitions that their desire to keep same-sex marriage at bay in their universes would be challenged. Some states, but far from all, passed a variety of legislation (or in the case of Louisiana, Gov. Jindal pushed into place an executive order) defensively preparing for the Court’s inevitable decision in favor of same-sex marriage. Now some conservative members of Congress have stepped in.

The So-Called First Amendment Defense Act

Enter the unfortunately and misleadingly named federal First Amendment Defense Act (“FADA”). FADA is a bill that would protect individuals, nonprofit, and for-profit organizations that have a “religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.” Think of it as a giant dome above the believers who oppose same-sex marriage that keeps the rule of law at bay.

It is decidedly not a replication of the First Amendment and in fact would be more accurately named the “Unconstitutional Under the First Amendment Act,” as I explain below.

The Background: RFRA to FADA

FADA is being touted as a “religious liberty” bill like the Religious Freedom Restoration Act (“RFRA”), but it is not.

RFRA is a deeply misguided law that instituted sui generis super statutory protection for believers against all laws by imposing a standard on the government that was not part of the First Amendment free exercise cases. Early on, its defenders claimed it just “restored” First Amendment freedoms à la its title, but the Supreme Court has repeatedly confirmed, most recently in Burwell v. Hobby Lobby, that RFRA’s extreme standard is statutory, not constitutional.

RFRA has this feel-good name and exterior and trades on the ignorance of Americans (including most legislators) about the actual standards, i.e., technical legal language, imposed under the First Amendment. It was sold with support by religion and law scholars, and supported by a wide coalition, liberal to conservative. But that was twenty years ago, and as the truth of its extreme content came to the surface, the coalition dissolved.

Despite its inviting exterior, RFRA is a black box of unintended consequences that has invited believers to think of “religious liberty” as a right to impose one’s faith on others. The Hobby Lobby decision is just the most famous application of it as the arts and crafts behemoth obtained the right to exclude coverage of certain contraceptives from its employees’ health plans. In other words, it was good news for conservative Christians with an agenda against contraception, but bad news for female employees whose coverage was put at risk (until the federal government extended the accommodation for non-profits to for-profit companies). In other words, RFRA is a benefit-cost statute—believers benefit while everyone else pays.

The LGBTQ community has been the target and the victim of much of the most recent RFRA activity as the federal model was imported into many states, with a number of states making it even more extreme. The more it has evolved, the less lovely it has appeared.

One of RFRA’s chief defects is that it has created a privileged class that can wield their faith as a sword against others. RFRA’s other chief defect is that it transforms judges into super-legislators by requiring them to consider whether the law being challenged is the “least restrictive means” of achieving the government’s compelling interest for this believer. Courts have embraced this new power with gusto, throwing to the wind the respectful deference of the other branches that was a part of the First Amendment’s free exercise cases. Federal courts now know more than Congress and the President about contraception, more than prison authorities about measures for prison safety involving beard length and hidden contraband and more than the armed forces about military headgear. These RFRA cases in effect reversed the First Amendment decisions in O’Lone v. Estate of Shabazz and Goldman v. Weinberger with nary a nod to the other branches. This is just judicial activism pure and simple.

FADA shares neither RFRA’s universality nor its super strict scrutiny. Rather, FADA would only be good for one set of beliefs, and would replace super strict scrutiny with absolute rights.

How FADA Would Work

FADA creates absolute rights for same-sex marriage opponents. First, there is money. Say a nonprofit runs a soup kitchen and believes that only heterosexuals should marry and have children. If that soup kitchen refuses to feed same-sex couples and families, FADA prohibits the federal government from altering its tax status, disallowing donors’ tax deductions, withholding government funds for soup kitchens, or otherwise diminishing any benefit.

Second, there is accreditation or licensing. Same scenario with a nonprofit soup kitchen turning away same-sex couples and families. The entity can’t lose its accreditation or license for acting in accordance with its beliefs, even if in opposition to the civil rights of the couples and families.

Third, and here is where FADA shares some features of RFRA: (1) the discriminating entity is given a private right of action; (2) the Department of Justice is charged with enforcing this pro-discrimination law against the federal government; (3) the government can be required to pay the discriminating entity’s attorneys fees; and (4) in case a federal court would use common sense and judgment in interpreting the act to find a balance between all those affected, FADA exhorts the courts to interpret it in favor of the believer to the “maximum extent.”

Fourth, unlike RFRA (and its counterpart RLUIPA), under FADA, the discriminating entity need not satisfy any administrative remedies before rushing to federal court.

Finally, and FADA holds this element to the very last line: FADA’s absolute rights can be invoked by not only religious and nonprofit entities, but also by for-profit companies. Therefore, Hobby Lobby could choose not to hire any same-sex couples or to discriminate against them on the basis of wages and benefits.


FADA’s optics are unlike RFRA where members of Congress could hide behind the generic “Religious Freedom Restoration Act” and tout “religious liberty” for everyone without having to ask, know, or care about specific applications of the law. Here, the applications are crystal clear and they are limited to one belief.

To put it into constitutional jargon: FADA is content-based and viewpoint-based. Viewpoint-based laws are subjected to the strictest of scrutiny and presumptively unconstitutional under the First Amendment. FADA’s defenders I assume will argue that it is just another religious accommodation, like the tax-exempt status of religious entities or the exemption for the Native American Church to use peyote. But it isn’t.

It is not like tax exemptions; those are defensible because the federal tax code treats religious and non-religious nonprofits alike. And it is not like the Native American Church exemption for peyote, because that is justified by the federal government on the ground that Native American churches get special treatment due to the separate sovereignty of Native American tribes. Moreover, what is protected by FADA is financial status, not religious observance. Can any of those entities that would choose to embrace FADA credibly argue that receiving federal funds is required by their religious faith? The irony is that for many of the conservative religious organizations opposed to same-sex marriage, there was a time when they eschewed federal funding because it would interfere with their autonomy. Now that they are dependent on federal funds, they have proven their own point.

FADA’s Opponents Should Pay Attention on July 30 to Ensure That the Sneaky Enactment of RFRA in 2000 Does Not Repeat Itself

After RFRA was held unconstitutional in 1997, its supporters lobbied for RFRA II (entitled the Religious Freedom Protection Act). By then, RFRA’s folly was apparent at least to the civil rights, child protection, and land use planning community, so it faced tough going.

Never underestimate the will of legislators pandering to religious entities, however. During the summer of 2000, RFRA’s re-enactment was considered unlikely and hearings were promised for its opponents in September 2000. While RFRA’s opponents left town for the 2000 summer recess, its proponents enacted it in both houses of Congress via “unanimous consent,” i.e., with barely a handful present in each house. Dirty tricks, of course, are a congressional specialty, so no one should be terribly surprised. But RFRA’s opponents were!

FADA has not been an immediate hit across Capitol Hill, so its fate may appear to be unclear, with its sponsors saying they will let it go for now and return to it in September. (Sound familiar?) The conservative Christians who lobbied so hard for the RFRA of 1993 and 2000 (in part to discriminate in housing against LGBTQs), are still in the picture and surely have fond memories of their 2000 coup.

This year, the House goes into recess starting the evening of July 30, and the Senate the evening of August 7. If I were the groups that are lobbying against FADA, e.g., the civil rights and “Nones” groups, I would strongly consider posting folks in the House on July 30 for the entire day. And then again right before the Senate goes out on August 7. Fooled you once, shame on them. Fooled you twice, shame on you.

The Countermoves to Guard Against Discrimination

Unlike RFRA, FADA is not being proposed in a vacuum or echo chamber where the believer is the sole focus. Instead, there is a context: the ones who could be hurt by the believer are clearly identified. To this end, there are two recent developments that protect LGBTQ individuals against discrimination. First, the EEOC ruled that sexual orientation is a category protected under “gender” in civil rights cases. This means the EEOC will be able to file lawsuits against those who discriminate against LGBTQ individuals.

Second, FADA will soon have to compete with the Equality Act, which takes the opposite position and would prohibit discrimination on the basis of sexual orientation in the context of public accommodations, public education, employment, housing, federal funding, jury service, legal protections, and credit.

These developments show FADA for what it is, and it is not a benevolent system to help the needy or the poor. Rather, it is an extreme “religious liberty” bill that violates civil rights. Perhaps Congress can approach it without the mindless feel-good spirit that RFRA engendered as late as 2000. Even more loftily, maybe we can finally think of returning to the actual First Amendment for authentic religious freedom. There has to be a public space where faith cannot be used as a weapon to hurt others.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts,, and statutes of limitations for child sex abuse, Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is
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Based on Sex: The EEOC Rules That Sexual Orientation Discrimination Is Sex Discrimination Tue, 21 Jul 2015 04:01:43 +0000 Continue reading →]]> Air Traffic ControlIn a recent ruling, the EEOC concluded that alleged discrimination against a gay man—because he was gay—constitutes a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964, a federal law banning employment discrimination on the basis of certain protected characteristics. In so doing, the EEOC departed from several early court rulings on this issue, but built on a more recent trend and captured more contemporary thinking about the nature of sexual orientation discrimination.

The Complaint

The complainant, whose name is redacted from the decision, worked as an air traffic controller at the Miami International Airport. Air traffic controllers in the United States work for the Federal Aviation Administration (the “Agency”) and, while protected under Title VII, are also subject to special procedural rules reserved for federal employees.

In 2010, the complainant was given a temporary position as a Front Line Manager (FLM), a better position than the one he otherwise held. During the two-year temporary stint, a permanent FLM position opened up. The complainant did not apply, mistakenly believing that all temporary FLMs were considered automatically when permanent positions became available. He was not selected to fill the permanent position.

Complainant alleged, through an intra-agency process, that he was passed over because he is gay. In formal terms, he alleged both sex and sexual orientation discrimination. The supervisor involved in the selection process, he alleges, had made negative comments about the complainant’s sexual orientation. “We don’t need to hear about that gay stuff,” was the alleged comment when the complainant mentioned that he and his partner went to New Orleans during Mardi Gras. Other mentions of his partner met with the comment that he was “a distraction in the radar room.”

In response to the internal complaint, the Agency did not address the merits. Instead, it ruled that the complainant had not reported the alleged discrimination within the very short 45-day window required for federal agency employees. The Agency also notified the complainant that although he could appeal the sex discrimination ruling to the EEOC, he could appeal the ruling on his sexual orientation complaint only through the intra-agency process. This distinction was based on the Agency’s position that Title VII, which the EEOC is responsible for implementing, does not prohibit sexual orientation discrimination.

In the ruling, Complainant v. Foxx, the EEOC concluded that the agency was wrong on both counts. The complainant had reported the discrimination within the appropriate window of time, and sexual orientation discrimination does violate Title VII. This latter ruling is important, but requires some backstory to appreciate its significance.

Court Rulings on Sexual Orientation Discrimination Under Title VII

Title VII of the Civil Rights Act of 1964 is at the heart of federal anti-discrimination law. It prohibits employers with at least fifteen employees from discriminating on the basis of race, color, religion, sex, or national origin. Sexual orientation discrimination is not included in the list. Early on, several federal courts, both district and appellate, held that the statute’s ban on sex discrimination did not encompass sexual orientation discrimination. Perhaps the most well known of these rulings is from the Ninth Circuit in DeSantis v. Pacific Telephone & Telegraph (1979). These rulings tended to focus on lack of congressional intent, with little by way of analysis about the nature of sex or sexual orientation discrimination (and the ways in which they might be cut from the same cloth).

Other federal anti-discrimination laws exist, but none of them covers sexual orientation discrimination either. The only direct prohibition on sexual-orientation discrimination comes from Executive Order 13087, issued in 1998 by President Bill Clinton, which bans such discrimination in the civilian federal workforce. This order was in response to a long, if little known, history of the federal government’s banning gays from federal civil service jobs. (See the unfortunate relics of that history here.) The executive order left in place the “Don’t Ask Don’t Tell” policy, which prohibited openly gay and lesbian individuals from serving in the military. (This policy was finally repealed as of September 2011.)

Despite those early rulings, many plaintiffs have prevailed in cases in which the essence of their complaint was sexual orientation discrimination or harassment. How?

Title VII prohibits employment actions taken “because of sex.” There have been two types of successful claims drawing on this language:discrimination based on sex stereotyping, and same-sex sexual harassment. These claims are made possible by two key Supreme Court cases.

First, the Supreme Court ruled in Price Waterhouse v. Hopkins (1989), that reliance on sex-role stereotyping can be an actionable form of employment discrimination. In that case, the Court held that a woman was a victim of sex discrimination when her employer denied her partnership in an accounting firm at least in part because she was insufficiently “feminine” in the way she dressed and conducted herself. That decision took on a life of its own—fueling, among other things, claims by effeminate gay men and masculine lesbians that the discrimination they experienced was sex, rather than sexual orientation, discrimination.

Second, in Oncale v. Sundowner Services (1998), the Court considered a claim of same-sex harassment. The federal appellate court had ruled that such a claim could never be cognizable under Title VII, regardless of the circumstances, because it could not satisfy the “because of sex” requirement in the statute. But the Supreme Court reversed, holding that the requirement might be met in one of three ways: (i) with evidence of the perpetrator’s homosexuality; (ii) with evidence that the perpetrator in fact targeted only members of one sex; or (iii) with evidence that the harassment took the form of gender-role policing—à la Price Waterhouse—to punish an employee for failing to live up to traditional gender norms. Oncale has both reinforced the use of Price Waterhouse in sexual orientation claims and fueled separate claims for harassment rooted in homosexual desire or gender-targeted bullying.

Price Waterhouse and Oncale gave teeth to some sexual orientation discrimination claims, but with some illogical consequences. For example, gays and lesbians who conform to gender-role stereotypes are less protected from discrimination than those who transgress them. And those who transgress expectations are sometimes unprotected because courts fear “bootstrapping”—using a cognizable cause of action to remedy a permissible type of discrimination. Moreover, courts have refused to consider the possibility that the very nature of sexual orientation discrimination is animus against people who defy sex-role expectations by being attracted to someone of the same sex.

Legislative Efforts to Amend Title VII

Given those early court rulings, there has been a longstanding effort to amend Title VII to provide express protection against sexual orientation discrimination. Congresswoman Bella Abzug introduced the first bill in 1974, which broadly protected gays and lesbians against discrimination in employment, housing, and public accommodations. Throughout the 1970s and 1980s, similar bills were introduced, but none became law. Over time, as is often the case with civil rights legislation, the proposed bills have become narrower and narrower.

The modern versions of Abzug’s first bill go by the name the Employment Non-Discrimination Act (ENDA). The first version of ENDA was introduced in the Senate by the late Senator Ted Kennedy; hearings were held, but the bill did not make it through the Senate. In 2007, a version of ENDA was passed in the House, but the Senate never voted, and then-President George W. Bush issued an anticipatory veto notice saying, in essence, “don’t bother.”

A 2013 version of ENDA, which would have also prohibited employers from discriminating on the basis of gender identity, was passed by a vote of 64 to 32 in the Senate, but died after that. Nothing of significance has happened since.

Under the narrower approach, transgender discrimination is actionable only if the employer acted on sex stereotypes to punish gender non-conformity. But the EEOC takes the position that any sort of transgender discrimination is sex discrimination because it inherently involves taking gender—and therefore sex—into account. This is true even if the employer’s action simply reflects animus against transgender individuals or a desire to exclude them from the workplace. As I will argue in this column, the EEOC has the better of the argument. Its ruling takes an honest, straightforward look at the nature of transgender discrimination and the natural scope of Title VII’s broad prohibition of sex discrimination in employment.

The EEOC Ruling in Complainant v. Foxx

On this background, the EEOC issued this recent decision, in which it squarely concluded that sexual orientation discrimination violates Title VII as written, without the amendment embodied in ENDA.

In 2012, the EEOC reached a similar conclusion about transgender discrimination. As discussed in more detail here, the EEOC concluded in Macy v. Holder that discriminating against a person who has transitioned from one sex to the other or who assumes an appearance contrary to birth sex is a form of sex discrimination. Prior to that ruling, transgender individuals had met with success in court using the Oncale and Price-Waterhouse theories discussed above. In fact, those precedents are an even better fit for transgender discrimination claims since the very essence of being transgender is expressing gender in a manner that is inconsistent with our expectations given a person’s gender assigned at birth.

What is the basis for the EEOC’s new ruling that sexual orientation discrimination is also a form of sex discrimination?

The ruling starts with the basic observation that Title VII prohibits employers from taking sex into account when making employment decisions and then states immediately that this “applies equally in claims brought by lesbian, gay, and bisexual individuals under Title VII.” The connection between these two observations is the claim that when an employer acts on the basis of sexual orientation, it has taken sex (gender) into account.

The EEOC’s ruling depends on its view that “[d]iscrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms.” There is no way to understand this type of discrimination, the ruling reasons, without reference to a person’s sex. Sexual orientation is, by definition, being attracted to a person of the same sex.

The ruling describes the link between sexual orientation and sex in a variety of different ways. First, “[s]exual orientation is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.” A female employee who is disciplined for displaying a photo of a female spouse, in the example used in the ruling, is being treated differently than would be a male employee displaying a photo of a female spouse. That sort of “but-for” sex discrimination is clearly covered by standard sex discrimination doctrine, as well as by the Court’s explanation in Oncale of how to prove that same-sex harassment is “because of sex.”

Second, “[s]exual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex.” As the ruling explains, courts have had no trouble conceiving of discrimination on the basis of interracial marriage or friendship as race discrimination—an employer takes the employee’s race into account when it displays animus against the employee’s relationship with someone of a different race. Thus, the EEOC ruling explains, one’s association with an intimate partner of the same sex should be understood as sex discrimination.

Third, “[s]exual orientation discrimination also is sex discrimination because it necessarily involves discrimination based on gender stereotypes.” In the EEOC’s view, it is the ultimate gender stereotype to assume that a man must only be attracted to women and vice versa. Heterosexuality is itself a gender norm, enforcement of which in the employment context is prohibited by Price Waterhouse. The idea that “real” men are not attracted to other men is at the heart of sexual orientation discrimination. Is that any different from Price Waterhouse’s view that real women must assume a feminine persona?

The EEOC ruling acknowledges the court rulings to the contrary, but criticizes them for failing to really grapple with the nature of sexual orientation discrimination and for being too focused on Congress’s intent in 1964. But surely Congress did not contemplate same-sex harassment either, and, under the Court’s ruling in Oncale, that is clearly actionable because it is based on an employee’s sex. This, the ruling concludes, is no different. Recognizing sexual orientation discrimination as actionable does not require recognition of a completely new category of discrimination—just a more nuanced understanding of how a person’s sex is taken into account when it happens.

Moreover, the EEOC criticized the oft-repeated observation that Title VII must not extend to sexual orientation discrimination because members of Congress have been trying to amend it through ENDA and its predecessors. But neither the efforts to amend—nor their failure—is relevant. ENDA proponents are responding to court rulings about the meaning of Title VII, rather than offering their own interpretation of the statute. And, as the Supreme Court has recognized, “[c]ongressional inaction lacks persuasive significance because severally equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change.” (Foxx, citing Pension Benefit Guaranty Corp. v. LTV Corp. (1990).)


This EEOC ruling goes, in its words, “where the principles of Title VII have directed.” Will courts follow suit?

Joanna L. Grossman, a Justia columnist, is the Sidney and Walter Siben Distinguished Professor of Family law at Hofstra University. She is the coauthor of Inside the Castle: Law and the Family in 20th Century America (Princeton University Press 2011), co-winner of the 2011 David J. Langum, Sr. Prize for Best Book in American Legal History, and the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009). Her columns focus on family law, trusts and estates, and sex discrimination.
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The Celgard Decision and Lawyer Disqualification Mon, 20 Jul 2015 04:01:05 +0000 Continue reading →]]> Law Books, Scale, JusticeCelgard, LLC v. LG Chem, LTD., No. 2014-1675, 2014 WL 7691765, 594 Fed. Appx. 669 (Fed. Cir. Dec. 10, 2014), is a most unusual lawyer disqualification case. It comes from the Federal Circuit, and it is hot topic for discussion among lawyers. Type “Celgard, LLC v. LG Chem” (with the quote marks) into Google and you get over 5,000 hits—pretty good for a patent law case. One web commentator advises, “This is a potentially very dangerous opinion for patent firms.” The disqualification issue, however, goes far beyond patent cases.

Although the Federal Circuit announced that “[t]his case was not selected for publication in West’s Federal Reporter,” that case is still precedent. Rule 32.1 of the Federal Rules of Appellate Procedure provides that a court of appeals may not prohibit a party from citing an unpublished opinion of a federal court for its persuasive value or for any other reason. In addition, under Rule 32.1(a), a court may not place any restriction on the citation of such opinions. For example, a court may not instruct parties that the citation of unpublished opinions is discouraged, nor may a court forbid parties to cite unpublished opinions even when a published opinion addresses the same issue. Hence, Celgard is precedent for the Federal Circuit and is as relevant for all courts as any federal circuit court opinion.

In Celgard, the Federal Circuit disqualified the international law firm of Jones Day because it was representing Celgard in a patent dispute while it continued to represent Apple (another Jones Day client) in other matters. However, Apple was not a party to the Celgard patent case. Jones Day represented Celgard seeking a preliminary injunction against LG Chem, maker of lithium batteries, for alleged patent infringement. It turns out that Apple uses LG Chem’s batteries in its products.

This appeal came from the Western District of North Carolina, so the Federal Circuit applied the North Carolina Rules of Professional Conduct. Its Rule 1.7(a) is based on the ABA Model Rules of Professional Conduct, which almost every state has adopted by a rule of court.

Rule 1.7(a), governs concurrent conflicts of interest, and prohibits representation when such representation will be “directly adverse” to another client. The court said, “Because Jones Day’s representation here is ‘directly adverse’ to the interests and legal obligations of Apple, and is not merely adverse in an ‘economic sense,’ the duty of loyalty protects Apple from further representation of Celgard.” The court concluded that Apple was “directly adverse” to Celgard in licensing negotiations related to that patent dispute and thus Rule 1.7(a) required disqualification.

What does it mean to be “directly” adverse and “not merely adverse in an ‘economic sense’”? Apple bought a product (lithium batteries) from LG Chem, but that alone should not create a conflict. As one comment noted, “Jones Day argued that it would not be possible for a law firm to anticipate the economic consequences to a non-party client who happened to be in an opponent’s supply chain.” It added, “the implications can be disturbing if read even a bit broadly,” because “[m]any litigations can have economic consequences for a non-party client, even foreseeable ones and here Apple was a client on unrelated matters. The case holds that as a client even on unrelated matters Apple had a right not to see Jones Day appear for another client in a matter in which Apple was not a party because of foreseeable economic harm to Apple.”

The Celgard precedent does not demand nor should it invite such a broad holding. Apple was concerned not merely that it could not buy batteries from LG Chem if Celgard was successful in this lawsuit. After all, Apple could presumably switch to Celgard as a supplier. However, the court noted that Apple faced “additional targeting by Celgard in an attempt to use the injunction issue as leverage in negotiating a business relationship” (emphasis added).

There should be no “direct adversity” under Rule 1.7(a) simply because a law firm’s success in one case will have economic consequences to another client who is in the supply chain. Consider, for example, a Law Firm that represents a local water utility. Law Firm also represents Client A, suing a consumer of the utility’s services. There is no conflict, even if the result of that lawsuit is that the consumer goes bankrupt, and thus it will use less water, thereby causing an economic harm to the local water utility.

If that scenario really creates “direct adversity” under Rule 1.7, every water utility would be a Typhoid Mary, infecting law firms with conflicts willy-nilly. No law firm would be able to represent any client who might buy a product from another client because of the economic ripple effects. Other Typhoid Marys would include any client (let us call it, “T-M” for “Typhoid Mary”) who may lose a customer (or sell less to the customer) if a lawsuit involving that customer would cause the customer to buy less from T-M.

Apple was concerned not merely that it could not buy batteries from LG Chem. After all, Apple could presumably switch to Celgard as a supplier. The court emphasized that Apple faced “additional targeting by Celgard in an attempt to use the injunction issue as leverage in negotiating a business relationship” (emphasis added). Using an injunction as leverage is what created the economic adversity.

The Celgard court made clear that there is no conflict for a law firm simply because another client of the law firm is part of the supply chain. “Jones Day’s representation here is ‘directly adverse’ to the interests and legal obligations of Apple, and is not merely adverse in an ‘economic sense,’ the duty of loyalty protects Apple from further representation of Celgard.” (Emphasis added). The Federal Circuit specifically said that there is no conflict “merely because the client is up or down the supply chain . . . .”

In Celgard, the client (Celgard) knew that its position in that litigation would affect Apple’s legal obligations. In fact, Celgard was negotiating with Apple over the very thing Jones Day was defending—i.e., Celgard was able to use its injunction that Jones Day was defending for business leverage against Apple. That scenario is inapplicable in the water utility example. In short, there is no economic adversity if the law firm is not seeking a remedy against a litigant that affects the obligations or legal rights of another client.

Several years earlier, in Freedom Wireless, Inc. v. Boston Communications Group, Inc., Nos. 2006–1020 et al., 2006 WL 8071423, *3 (Fed. Cir. Mar. 20, 2006), another Federal Circuit case, the Court also disqualified the law firm. In that case, the lawyers “asserted a position that an injunction obtained on behalf of one client, Freedom Wireless, should limit the activity of another client, Nextel. In this situation, a clear and direct conflict of interest has arisen.” (emphasis added.) Celgard applied its earlier learning in Freedom Wireless to a new and unusual set of facts.

What we learn from Celgard and Freedom Wireless, is that a law firm is in a conflict and risks that the court will disqualify it if it represents a client (Client Alpha) in one case and that Client Alpha attempts to use a proposed remedy (typically, an injunction) as leverage in a way that injures another client (Client Beta) if the same law firm also represents Client Alpha and Client Beta. That is what creates the economic adversity.

If one reads Celgard too broadly, it is indeed a potentially very dangerous opinion for patent firms. However, there is no need to do that: there is no conflict simply because a law firm represents a client and the result in that case would make it more difficult or more expensive for another client to purchase a good or a service.

Ronald D. Rotunda is The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, The Dale E. Fowler School of Law. He is coauthor of six-volume Treatise on Constitutional Law: Substance and Procedure (5th ed., Thomson-West, St. Paul, Minn. 2012-2013), and Legal Ethics: The Lawyer's Deskbook on Professional Responsibility (ABA Thomson-West & ABA, 11th ed. 2013), a one-volume treatise on Legal Ethics.
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Some Brief Thoughts About How Much Conservatives Lost in the Recently Concluded Supreme Court Term Fri, 17 Jul 2015 04:01:14 +0000 Continue reading →]]> Supreme Court at NightOne thoughtful explanation of the success enjoyed by the bloc of “liberal” Justices (often combined with Justice Kennedy) this past Term is, as NPR’s Nina Totenberg wrote, “that conservative activists just pushed their agenda too far.” As Yale law professor (and my older brother) Akhil Amar put the point: “Several of the most important [liberal] victories that you see are simply the Court blinking at the extremism of certain [conservative] claims that were being put before it.”

Some people may be tempted to recast this account as meaning that the conservatives did not really “lose” much in the big cases, since the status quo was against them, such that their (unsuccessfully) attempts to disrupt that existing state of affairs didn’t leave them any worse off than they were before. But it would be a mistake to view things that way. To be sure, Obamacare subsidies in federal-exchange states were taking place before the Court affirmed their validity in King v. Burwell. Federal redistricting lines drawn by an independent commission were being employed in Arizona for over a decade prior to the Court’s blessing their use in the Arizona State Legislature v. Arizona Independent Redistricting Commission opinion I wrote about in my last column. And same-sex couples were getting married in (most of) the country before the Court upheld their constitutional right to do so in the landmark Obergefell v. Hodges ruling.

But to see these three rulings merely as aggressive if ultimately unsuccessful attempts by conservatives to undo the status quo is to miss the ways in which these decisions (and others) have left conservative jurists and advocates with bigger problems than they had before these cases were heard. That is because a decision by the Court (or, rather, four or more of its Justices) to take up a case results not simply in an outcome that may or may not change things, but also in an opinion that can change things down the road even when the narrow outcome of the case simply preserves the status quo.

How the Majority Grounded its Decision in Obamacare

Take King v. Burwell. Many were perplexed by the Court’s grant of certiorari. Had the Court not taken review there was every reason to believe there would be no abiding split in the circuits. So the Court didn’t need to hear the case to ensure uniformity. For this reason, many observers thought this was a case where four (conservative) Justices agreed to review with an eye toward reading the Obamacare statute differently from how the administration had. And they failed in that bid. But so what? If you don’t play, you can’t win. And from the conservative point of view, a 6-3 ruling rejecting the plaintiffs’ reading of the statute leaves the implementation of the statute pretty much where it was prior to the lawsuit’s having been filed.

But what this summary ignores is that the majority opinion by Chief Justice Roberts didn’t just reject the dissenters’ reading of the Obamacare statute. Nor did the majority lean on “rules of construction” (such as deference to administrative agency interpretation or deference to reliance by states) that are sometimes used to break ties as between different readings of a statute. No, the majority rejected the dissenters’ essential approach to reading big statutes altogether—holding (reasonably enough to my mind) that many statutes are going to have their textual quirks, and judges shouldn’t be looking to play “gotcha,” but instead should acknowledge that all readings will often tend to make some provisions of the statute seem textually shoddy, so one should choose the reading that best fits with the overall purposes of the statute, as reflected in its overarching textual architecture.

Long after the meaning of Obamacare is put to rest, this approach to giving meaning to congressional statutes could have implications (which may tend to lean in the liberal direction) in many other settings.

The Broad Nature of the Arizona Redistricting Commission Ruling

Let us next consider the Arizona case. As I wrote two weeks ago, the Court could easily have rested its result on a directly applicable federal statute, and avoided making a big constitutional ruling endorsing the use of direct democracy in federal election regulation. Indeed, had the conservative Justices read the federal statute fairly (and thus been willing to concur in the judgment), they could have made the majority look very bad for reaching out and deciding the larger constitutional questions for no good reason. (Had they done this, there is a good chance the majority would have had to back down, and the Court would have come out 9-0, relying only on the statute.)

Instead, the four dissenters rejected the statute’s application (based on reasoning that seems to me quite thin), opening the door to the majority to decide the case “big.” As I explained two weeks ago (and as Rick Hasen has also nicely argued), the majority forcefully rejects a narrow reading of the word “legislature” in the Elections Clause of Article I, in a way that has direct implications for the same word in other parts of the Constitution, such as Article II, which frames state involvement in the electoral college.

Obergefell and Embrace of Substantive Due Process

At first blush, the same-sex marriage ruling in Obergfell might not seem to have made things worse than they were before for the conservatives. True, same-sex marriage wasn’t being allowed in all the states the way it is now. But more and more states (whether voluntarily or on account of lower court pressure) had been going that way. And same-sex couples who got married in states that allowed it were moving to all the states that didn’t. Moreover, Justice Kennedy’s focus on liberty (which is somewhat doctrinally vague and to many observers less-than-rigorous) rather than equality provides ample opportunity for conservatives (and many liberals for that matter) to criticize the opinion and its overall coherence. Relatedly, a focus on liberty leaves people who want religious accommodations from laws that would otherwise require their participation in same-sex marriage proceedings on reasonably firm ground. If the autonomy and dignity of same-sex couples matters, why should not the liberty and deeply held beliefs of religious adherents?

Moreover, it seems that when individuals have a constitutional right based on equality, guaranteeing that equality can often be found to be a compelling government interest that overrides the claims of those seeking exemptions or accommodations. And, of course, a liberty rationale in Obergefell leaves open—in a way that an equality-based rationale would not—questions about whether discrimination against gays and lesbians in things like public employment, housing, jury service, etc. are permissible.

But this conservative-silver-lining perspective is incomplete. A liberty-based majority opinion grounded in so-called “substantive due process” principles might do long-lasting damage to those who would trim back, or at least hold the line on, substantive due process as a constitutionally valid mode of decision. Some detractors have tried with many earlier modern substantive due process milestones—Griswold v. Connecticut, Roe v. Wade, Lawrence v. Texas—to limit them, or explain them in context-specific terms. But Obergefell is another big block in the substantive due process edifice. And when a building reaches a certain size, it becomes a lot harder to convince folks that it should be razed or that seemingly sensible add-ons should not be permitted.

Vikram David Amar is a law professor and the dean designate of the University of Illinois College of Law. Previously, he served as the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
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