Feb 13, 2013

Scalia: “Wearing whatever hat you want is part of the freedom of justice.”


Justice Scalia told Nina Totenberg:

“Wearing whatever hat you want is part of the freedom of justice,” Scalia said, referring of course to his black inauguration cap. His hat was a replica of Lord Chancellor of England Thomas More’s hat worn in a portrait from 1527 and was a gift from the Thomas More Society. “I’m ashamed you didn’t recognize it,” Scalia told NPR’s Nina Totenberg, who was interviewing him for the Smithsonian Associates event.

Scalia also discussed another justice who liked to wear interesting hats — the late Chief Justice William Rehnquist. “I always thought he should have worn a chain,” Scalia remarked.

Update: My friend Madison Kitchens writes in to make a very important point about hats and freedom–a point that Justice Scalia, a frequent foe of the 9th Amendment, should appreciate the irony of.

As Randy Barnett wrote in a 1991 article in the Valparaiso Law Review, the very nature of the 9th Amendment is defined by the absurdity of having to state that a man should have a right to wear the hat of his choice.

This open-ended conception of rights is illustrated by a fascinating exchange that occurred during the debate in the House over the wording of what eventually became the First Amendment proposed by the House Select Committee.  At one juncture in the debate, Representative Theodore Sedgwick criticized the committee’s inclusion of the right of assembly on the grounds that ‘it is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called into question; it is derogatory to the dignity of the House to descend to such minutiae. . . .” 18 Representative Egbert Benson replied to Sedgwick that: “Me committee who framed this report proceeded on the principle that these. rights belonged to the people; they conceived them to be inherent; and all that they meant to provide against was their being infringed by the Government.” 19Sedgwick then responded that:

if the committee were governed by that general principle, they might have gone into a very lengthy
enumeration of rights; they might have declared that a man should have a right to wear his hat if he
pleased; that he might get up when he pleased, and go to bed when he thought proper …. 

Notice that Sedgwick was not denying that one had a right to wear one’s hat or go to bed when one pleased.  To the contrary, he equated these inherent rights with the right of assembly which he characterized as ‘self-evident’ and unalienable.” 21 Indeed, Representative John Page’s reply to Sedgwick made this explicit ‘[L]et me observe to him,” said Page:

that such rights have been opposed, and a man has been obliged to pull off his hat when he
appeared before the face of authority; people have also been prevented from assembling together
on their lawful occasions, therefore it is well to guard against such stretches of authority, by
inserting the privilege in the declaration of rights.

Sedgwick’s point was that the Constitution should not be cluttered with a potentially endless list of trifling rights that “would never be called in[to] question” 23 and were not “intended to be infringed.” 24 Sedgwick’s argument implicitly that the ‘self-evident, unalienable,’ and inherent liberty rights retained by the people are unenumerable because the human imagination is limitless.  It includes the right to wear a hat, to get up when one pleases and go to bed when one pleases, to scratch one’s nose when it itches (and even when it doesn’t), and to take a sip of Diet Coke when one is thirsty.
So yes Justice Scalia. Wearing a hat of your choice is indeed part of the freedom of justice–but this is a right nowhere enumerated.

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Feb 13, 2013

Should Law Reviews Consider Race When Selecting Articles?

Update: Several updates below, including a comment from another EIC at a Tier I Law Review, and a former anonymous member of the California Law Review.

I recently discovered that Scholastica, a competitor to Expresso in the electronic journal submission process, allows authors to submit demographic information, including an author’s gender identity, sexual orientation, race, and a box to explain “economic hardship and diversity” (it suggests “Additional comments that demonstrate diversity (for example; socioeconomic, status, geographic region, race, ethnicity, gender, etc.”). Dave Hoffman also blogged about it at Concurring Opinions.


While Scholastica stresses that this information is optional, three journals–California Law Review, U.C. Davis Law Review, and the Boston College Law Review–“ask” authors to submit this demographic information. (A slight bit of irony. Expresso is based out of the Berkeley Electronic Press. The California Law Review, the flagship law review of the UC System, based at Berkeley, has opted out of using Expresso).

I contacted each of the three journals and asked for an explanation of how they are using this demographic information.

I haven’t received a response from Boston College (I would be happy to post one). The response from U.C. Davis was reassuring. The response from U.C. Berkeley was not.

The editor from the U.C. Davis Law Review told me that they are only collecting the data to get a sense of who is submitting to the journal, and would only consider “general statistics instead of knowing how each author responded.” In other words, they would receive aggregated statistics of who is submitting to the journal, but would not look at each individual author’s demographics. She reassured me that they would not use these demographic factors during article selection.

The Editor in Chief from the California Law Review was more evasive with her answers. I paste the complete exchanges at the end of this post below the jump, but I will summarize them here.

First, the EIC described a holistic approach to selecting articles where they are committed “to discovering and promoting less established scholars that may not yet have the cachet to catch the notice of other top law reviews.” As an author at a not-top law school, I agree with that goal. It would seem easy enough to determine which authors lack this cachet. Take a look at the C.V. and previous law review placements. But here the journals veers off. She noted, “Each articles board uses available information in different ways, but ultimately our mission is to publish the best legal scholarship possible and we believe that maximizing the information that our editors have access to increases the quality of our selections process.”

Specifically, the EIC writes, “added information about our authors helps us to get a better sense of what impact, if any, publishing with CLR might have.” I assume she meant that the “added information” was race, gender identity, and sexual orientation. This led me to the think that the journal can fact use race, as one of many factors, in a holistic approach (call it Grutter rather than Gratz).

I asked her to clarify in a subsequent email, and her response again was vague.

CLR has never had a “blind” selection process and few, if any, law reviews purport to use blind submissions. Each articles board has to decide how, if at all, they will use additional information about an author or his or her scholarship on a case-by-case basis.

She also noted that the journal looks at “secondary factors.”

In trying to achieve that mission, we consider secondary factors–like all journals–of whether an author has published with us before or recently, whether we’ve published in that particular area of scholarship already in the current volume, and, perhaps uniquely to CLR, whether publishing with us would have an impact on the author’s career.

I can’t tell from her email if race can be one of the “secondary factors,” but based on the full context of the email, in response to my questions about race, I would infer it is (you can read the complete email below).

Whether race is actually used, I cannot say, but the EIC’s two responses do not foreclose that possibility. In fact, her decision not to answer the question directly (in contrast with the U.C. Davis Law Review), even when I gave her another chance to answer directly, leads me to believe that this may have happened. A clear, non-lawyerly “yes” or “no” answer here would have been preferred.

The related question is whether an author who declines to submit this information will be penalized. The EIC says no:

We only have one cycle’s worth of data and even that is fairly limited because many authors chose not to provide additional information. Again, that choice has no bearing on whether and how we consider a piece.

This is only true if race is not used as a plus factor. Because, by simple logic, if some authors with certain demographics are given a plus factor, assuming a fixed number of articles to publish in a volume, authors who choose not to submit that information cannot get that plus factor (and not getting a plus factor is no different than a minus factor). I doubt this will matter much at a single journal, but I can imagine if this practice catches on, the problem may be magnified.

One additional issue. Because the California Law Review is housed at a public institution in California, it is subject to Prop 209. Prop 209, enacted in 1996, bans the consideration of race in public employment. The 9th Circuit upheld Prop 209 as constitutional. Recently, the 6th Circuit struck down a similar provision passed my Michigan. (Disclosure: I clerked on the 6th Circuit when that case was argued).  Michigan has already filed for cert. With Fisher coming down the pike, Prop 209 may soon become the law of the land.

The relevant section is (a), which provides “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” I am not familiar enough with the contours of Prop 209, but to the extent that the journal at a state school, which would seem to be “in the operation of . . . public education,” considers race when selecting articles, there may be a conflict with Prop 209. [Update: A colleague mentioned that if any symposium authors are paid honorariums, and those authors were selected with race as a consideration, the payment may implicate the “public employment” provision of Prop 209.]

I hope that other journals do not follow this lead, and perhaps the California Law Review reconsiders this policy.

The complete emails below the jump.

Update: Dave Hoffman writes at Concurring Opinions:

As several commentators noted (most in private emails, because they are afraid of negative consequences in the submission market), a very disturbing aspect of Scholastica’s new submission process is that it appears to facilitate and encourage law reviews to use sexual orientation, race, and gender in selection decisions.  Josh Blackman has investigated, and written a very useful follow-up post which I hope you all will read.

My own view is that whatever the merits of law reviews giving “plus” points to authors at less prestigious schools,* providing plus points on account of race, gender, and sexual orientation is a terrible, terrible practice, especially if the plus points are awarded in an opaque manner by a largely unsupervised student board at an instrumentality of the state. Scholastica appears to take the position that it’s just giving journals what they want here.  Would it feel the same way if journals were planning to use sexual orientation and race as negative factors?  (Which, from a certain perspective, is exactly what they may be planning on doing.)

Update 2: An Editor-In-Chief from a Tier I Law Review that is moving to Scholastica writes in to tell me they requested that Scholastica remove the question that asks for this demographic information. The EIC also assured me that the journal never uses race in any way when selecting articles. This is reassuring.

We’ve never used demographic information to select articles in the past. We don’t ask for it, we don’t utilize it, when it’s offered we don’t retain it. Our move to Scholastica hasn’t changed that. Our first instinct was to simply remind authors that the box is labeled “optional,” and that they should feel free to disregard it. But one of our editors pointed out that some authors may be troubled even by the prospect of leaving the box blank, fearing that doing so would be frowned upon and may place the author at a disadvantage.

We contacted Scholastica this afternoon. They were remarkably responsive and cooperative (as they’ve been since we first began working with them). They agreed to simply remove that box from our interface, and assured us that the change would happen within a day or two.

We shifted to Scholastica specifically because we believed it would lead to a better experience for our authors. We believe it provides tools that will allow us to reduce our turnaround time, better track expedite requests, and improve continuity throughout the publication process. It would be disappointing if that move alienated or frustrated the very group we meant to better serve.

This is very reassuring. The mere fact that the demographic information is asked for creates a negative stigma about leaving it blank. I’m glad to see Scholastica is fixing this problem.

Update 3: A commenter who claims to have been a former member of the California Law Review writes in to say that race, gender and orientation have been used during the article selection process for some time.

As someone who worked on CLR several years ago, I can say with some confidence that consideration of race, gender, and orientation in the article selection process is nothing new and not exactly a secret. I have never been particularly comfortable with this fact, and find the lack of transparency in the current EIC’s responses unfortunate.

This confirms my suspicion of why the EIC was so obtuse with her answers. I would wager that other schools also do this, albeit secretly. If this is such an important interest, journals should be transparent about it, and perhaps release a diversity policy to articulate why and how this process is being used. It is perhaps fortunate that Scholastica put the question out in the open by asking authors for it directly.

Update 4: An EIC of a journal writes to tell me that they requested that Scholastica no longer ask for the demographic information for submissions to their journal, and Scholastica pretty much complied (as much as feasible). As it stands now, NYU and California still ask for this information.

Just a quick update. Scholastica has made the change we requested.It’s a little complicated because of the way their interface works–authors first select the journals they want to submit to and then are asked to provide information (name, manuscript title, and–before tonight–diversity info). As you know by now, there are two journals that have explicitly stated that they want that information–Cal and NYU. If an author’s list includes either of those journals, they’ll still be asked for optional diversity info, with an attached note making clear which journals are asking for that info. If, on the other hand, an author submits only to Iowa, they will no longer see that box at all–we don’t want that info and don’t want Scholastica asking authors for it on our behalf. In fact, authors can submit to as many Scholastica journals as they want and not see that box–as long as they don’t include Cal or NYU on their lists.

It’s not a perfect solution, but I hope it shifts the focus to where (in my opinion, at least) it should have been from the start–on the journals who ask for that information and incorporate it in their selection decisions, not on the service that conveys that request.

In other words, the demographic information is not requested unless NYU and California are selected. If one of those two are selected, you receive an additional warning above the box concerning the Demographic information that reads:

Optional Demographic Information

You are seeing this section because you are submitting to California Law Review.

This journal allows authors to provide optional demographic data. Any answers will be shared only with California Law Review.

Interestingly, Boston College and U.C. Davis were on that list. Now they are no longer on the list. But added to the list is NYU

Some journals hosted on Scholastica request optional demographic information (e.g. race, gender, sexual orientation, etc.) from authors when they submit a manuscript. Optional demographic data collected in the manuscript submission form will be made available to journal editors only, and optional demographic data will be stored with the manuscript submitted to that journal. Journals which do not request optional demographic information at the time of submission will not have access to this data. Authors are not required to submit optional demographic information in order to submit a manuscript to a journal on Scholastica. The choice to request this data is made explicitly by the journal, and use of the data is entirely the responsibility of the journal collecting the data. Scholastica will store the data on the journal’s behalf and allow journals to collect and analyze data, but Scholastica will not sell, trade, or transfer an individual’s personal information to any third party or entity.

Journals who allow authors to submit demographic information:

  • California Law Review
  • New York University Law Review

I’m glad Scholastica updated the feature so quickly. I’m also glad U.C. Davis and Boston College dropped off the list. Curious why NYU joined. But not surprising that Cal remains.

Update 5: Boston College Law Review writes in. They had requested the information, but “disabled the demographic information module last week in response to concerns from the academic community.”

(1) How long have you been collecting this information?
The Boston College Law Review only very recently switched from ExpressO to Scholastica, on February 1st. Consequently, we had also only been collecting demographic information for that short period of time.
(2) Why did you decide to ask for it?
The current Editorial Board of the Boston College Law Review is interested in examining the diversity of our scholarship (and our membership) over time. We thought that collecting voluntarily disclosed demographic information from those who submit manuscripts to us could help us better assess the characteristics of those whom we publish and could prove useful to future Editorial Boards. We disabled the demographic information module last week in response to concerns from the academic community.
(3) Have you ever released statistics, or do you have plans to release them?
We have no plans to share the data we collect publicly, especially because the collection of this data is so new.
(4) Is this information used in the article selection process?
We do not rely on the demographic information (or an author’s choice not to share it) in our article selection process.  Our decision to collect demographic information is not intended to signal any change from the way we have conducted article selection in the past.

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Feb 13, 2013

Ted Cruz v. Chris Brown





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Feb 13, 2013

What year did “we win our independence”?

In Rand Paul’s Tea Party response to Marco Rubio’s Republican response to President Obama’s State of the Union, he offered this rhetorical point:

What America needs is not Robin Hood but Adam Smith. In the year we won our independence, Adam Smith described what creates the Wealth of Nations.

Of course, the Wealth of Nations was published in 1776.

But did we “win” our Independence in 1776? Certainly that was the year independence was declared, but the Colonies waged a Revolutionary War against Britain for Independence that lasted till 1781 when Cornwallis surrendered, and really till 1784 when the Articles of Confederation ratified the treaty of Paris.

At what point did the United States of America “win” Independence? Is independence based on what Americans thought? Or what foreign powers thought? France did not formally recognize the United States as a sovereign nation until December 1777.

In my article Original Citizenship, I answer a somewhat related question–when did citizenship of the United States of America begin. I argue that the United States of America continued as a sovereign stretching back from the ratification of the Constitution, through the Articles of Confederation, beginning with the Declaration of Independence. The signing of this great charter–and to be more precise, when people learned about its signing–was the moment citizenship of the United States began (I also consider the Lockean notion of consent theory where people were able to reject entrance to this compact).

So, perhaps inadvertently, Rand Paul was right. If Independence is a factor of American citizenship–whether other nations recognize it or not–then 1776 was the right answer.

Paul also had this ode to the “entire Bill of Rights.” Lest we forget the lonely Third Amendment:

We are the party that adheres to the Constitution. We will not let the liberals tread on the Second Amendment!

We will fight to defend the entire Bill of Rights from the right to trial by jury to the right to be free from unlawful searches.

We will stand up against excessive government power wherever we see it.

We cannot and will not allow any President to act as if he were a king.

We will not let any President use executive orders to impinge on the Second Amendment.

We will not tolerate secret lists of American citizens who can be killed without trial.

And, citations to Montesquieu. Alas, no Blackstone or Locke.

Montesquieu wrote that there can be no liberty when the executive branch and the legislative branch are combined. Separation of powers is a bedrock principle of our Constitution.

And he mentioned the Canning NLRB case!

We took the President to court over his unconstitutional recess appointments and won.

If necessary, we will take him to court again if he attempts to legislate by executive order.

Congress must reassert its authority as the protector of these rights, and stand up for them, no matter which party is in power.

Congress must stand as a check to the power of the executive, and it must stand as it was intended, as the voice of the people.


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Feb 13, 2013

FantasySCOTUS Predictions: Affirmative Action, Corporate Torture, Dog Sniffing, and International Wire-Tapping

the-tenThe Supreme Court has only decided nine cases this term, and is on pace to decide at least sixty-five more. In this column, the FantasySCOTUS Prediction Tracker will offer predictions for four of the biggest cases argued so far:

Fisher v. University of Texas at Austin

With almost 400 predictions, Fisher v. University of Texas at Austin is heading towards a reversal of the 5th Circuit, with 61% of members predicting a reversal. This prediction is significant at a 99% confidence level (+/-8.26). Because Justice Kagan has recused, a 4-4 tie will affirm the lower court.


Affirmative Action, at least as we knew it under the Michigan Affirmative Action cases, is not long for the world.

Justice Prediction SMR Significant
Roberts 82.7% Reverse 1.316 Yes (0.148)
Scalia 91.4% Reverse 1.450 Yes (0.155)
Kennedy 69.5% Reverse 1.104 No (0.135)
Thomas 88.1% Reverse 1.398 Yes (0.152)
Ginsburg 92.2% Affirm 0.179 Yes (0.069)
Breyer 88.1% Affirm 0.262 Yes (0.083)
Alito 86.3% Reverse 1.372 Yes (0.151)
Sotomayor 91.1% Affirm 0.186 Yes (0.070)


All are statistically significant except for Justice Kennedy. The conservative justices are significantly above that predictions would follow the expected default majority, while the liberal justices are significantly below what predictions would follow their expected default minority opposition. In other words, these numbers reflect a statistically significant retrenchment between the ideological camps on the Court.

Prediction: A significant likelihood of reversal.


Kiobel v. Royal Dutch Petroleum

Kiobel, which was reargued from last year, considers whether Royal Dutch Petroleum, a corporation, can be held liable under the Alien Tort Statute for violation of the laws of nations.


With over 400 votes, it looks like the Supreme Court will scale back corporate personhood for purposes of liability under international law. Over 76% of predictions expect the Supreme Court to affirm the Second Circuit. This prediction is significant at a 99% confidence level (+/-5.47).

Justice Prediction SMR Significant
Roberts 71.3% Affirm 0.946 No (0.11)
Scalia 67.5% Affirm 0.895 No (0.11)
Kennedy 74.9% Affirm 0.986 No (0.11)
Thomas 68.0% Affirm 0.901 No (0.11)
Ginsburg 55.3% Affirm 2.019 Yes (0.27)
Breyer 57.6% Affirm 2.104 Yes (0.27)
Alito 65.5% Affirm 0.868 Yes (0.11)
Sotomayor 54.3% Affirm 1.981 Yes (0.27)
Kagan 53.0% Affirm 1.933 Yes (0.26)

Here, the high significant SMRs for the liberal justices indicate a high likelihood that they will join the conservative justices in an affirming majority. Indeed, there is even the possibility we get a 9-0 opinion to affirm, however on very narrow grounds to reach a consensus position. However, Alito’s SMR that is statistically significantly below 1 indicates that Alito may hold out from agreeing with the other justices in the majority. This will likely not be a divided 5-4 opinion, as some may have anticipated.

Prediction: A near-certain likelihood of affirmance, with a strong likelihood that eight Justices may join the majority, with Justice Alito writing separately.

Florida v. Jardines

Does a drug sniffing dog smelling the front door of a suspected grow house without a warrant violate the Fourth Amendment? The FantasySCOTUS nose knows.


This canine case has over 130 predictions with 61% of members predicting the Supreme Court will affirm the Florida Supreme Court, and find there is no violation of the 4th Amendment. This prediction is significant at a 99% confidence level ((+/-9.09)).

Justice Prediction SMR Significant
Roberts 50.4% Affirm 0.642 Yes (0.15)
Scalia 49.6% Affirm 0.807 No (0.17)
Kennedy 63.6% Affirm 0.853 No (0.17)
Thomas 46.5% Affirm 0.633 Yes (0.15)
Ginsburg 58.1% Affirm 3.687 Yes (0.66)
Breyer 59.7% Affirm 3.531 Yes (0.65)
Alito 48.8% Affirm 0.486 Yes (0.13)
Sotomayor 60.5% Affirm 3.500 Yes (0.65)
Kagan 58.1% Affirm. 3.438 Yes (0.64)

In this case, the low SMRs for Roberts, Thomas, and Alito seem to indicate that they are likely to hold out from joining Scalia and Kennedy in a majority. However, the extremely high SMRs for the liberal justices indicate that they are highly likely to form a majority with Scalia and Kennedy.

Prediction: The Court will affirm the Florida Supreme Court, and find a violation of the Fourth Amendment, but with an unlikely alignment of Justices centered around Justices Scalia and Kennedy.

Clapper v. Amnesty International

Clapper presents a complicated fact pattern in which attorneys for Amnesty International allege that federal agents may have listened to their conversations with clients abroad. Though, this case turns on whether Amnesty has Article III standing to seek prospective relief because they have offered no evidence that any surveillance actually took place.


The Second Circuit ruled against James Clapper, the Director of National Intelligence. FantasySCOTUS predicts that the Supreme Court will not give the government a round of applause, and rule in favor of Clapper. With over 100 votes, 61% predict an affirmance.

Justice Predictions SMR Significant
Roberts 50.4% Affirm 0.909 No (0.21)
Scalia 49.6% Affirm 1.143 No (0.24)
Kennedy 63.6% Affirm 1.208 No (0.25)
Thomas 46.5% Affirm 0.896 No (0.21)
Ginsburg 58.1% Affirm 2.360 Yes (0.43)
Breyer 59.7% Affirm 2.260 Yes (0.42)
Alito 48.8% Affirm 0.688 Yes (0.19)
Sotomayor 60.5% Affirm 2.240 Yes (0.41)
Kagan 58.1% Affirm 2.200 Yes (0.41)

In this case the high significant SMRs for the liberal justices indicate a high likelihood that they will join the conservative justices in an affirming majority. However, Alito’s SMR that is statistically significantly below 1 indicates that Alito would hold out from agreeing with the other justices in the majority.

Prediction: The Supreme Court will affirm the lower court, and rule in favor of Amnesty International with a broad coalition of Justices, with Justice Alito most likely to write separately, or perhaps Justice Alito is assigned to write a narrow coalition opinion.

Make your predictions today!

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  • (1) Grand Prize: one (1) $300 Visa gift card to each Team Participant
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-This post was co-authored by Corey Carpenter




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Feb 13, 2013

The Housing Bubble and the Higher Education Bubble

Duke LawProf Paul Carrington offered some interesting history lessons about law school reform in the 1970s, including some thoughts from then-White House staffer, and future Senator Daniel Patrick Moynihan:

The third year of legal education is a waste of time that raises the cost of legal services. Better to cut the third year, according to the study, and to shorten the path to law school with the admission of students who have completed only three years of college. That way, only five years of higher education would be needed to become a lawyer.

“I still think those are pretty good ideas,” Carrington said Saturday during a public hearing sponsored by the ABA Task Force on the Future of Legal Education. Proposals for a two-year legal education are back in the news today amid calls to reduce the cost of law school to reduce the burden for graduates struggling to find jobs. The task force, created last summer, heard from more than a dozen speakers during the ABA Midyear Meeting in Dallas. Its aim is to issue a report by the fall and bring its recommendations to the policy-making ABA House of Delegates in February 2014.

Soon after his study was completed, Carrington told the task force, he had a chance encounter at O’Hare International Airport with Daniel Patrick Moynihan, then a White House staffer. Moynihan observed that the guaranteed student loan program was “a national disaster” that would drive tuition through the roof, causing higher education to get drunk on borrowed student money.

Last week in property class I covered mortgages, and offered a discussion on the subprime mortgage crisis. I took some time to explain to the students the similarities between the housing bubble and the higher education bubble (grossly oversimplifying).

Fannie Mae sought to give home mortgages to anyone, regardless of how poor their credit was. This led to subprime lending (what some dubbed predatory) where people who had no prospect of paying back the mortgage were given lots of money. This guaranteed lending led to increases in the price of what properties were worth. This market could only sustain itself so long as the prices of housing continued to increase, and interest rates were kept low. Once the housing prices plummeted, and the interests rates were increased, the bubble burst, and the entire market imploded. People walked away from home mortgages, because it was cheaper to default. The federal government had to bail out Fannie Mae, and countless houses were left abandoned on the market for foreclosure.

This is a forecast of what will happen with student loans.

As Moynihan wisely observed decades ago, Sallie Mae (Fannie’s student-loan-lending sister) will guarantee mortgages to anyone, regardless of whether or not they will be able to pay it back (measuring likelihood to repay a home mortgage is substantially easier than measuring likelihood to repay a student loan). Similarly, guaranteed lending, as Moynihan remarked, drives tuition through the roof.  This market can only sustain itself so long as graduates can continue to obtain jobs that allow them to make ends meets with their debts. My friend Jim Chen observed that “Law graduates need an annual salary equal to two thirds of their law school debt to make law school viable.” However, if this trend ends (and signs are, that is is probably on its way out), and graduates can no longer pay off their debts, the entire market will fall apart.

However, unlike defaulting mortgages, graduates can’t walk away from the loans because the debts are not dischargeable in bankruptcy. This loan continues after death.

The reactions from my students were interesting. A number of the students were quite aware of the situation, and one cited recent articles in the New York Times. This was reassuring. Many other students had absolutely no idea. This was troubling.

I explained to them that student loan debt was not dischargeable in bankruptcy, a thought that many of them had never considered. I also told them that if they need extra money during the year, that it was better to go into credit card debt (which can be discharged in bankruptcy) than take unsubsidized student loans (that cannot be discharged, and collect interest during law school).

This will not end well for students and schools.

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Feb 13, 2013

President Obama’s (Formerly) Secret Embargoed Executive Order

In his Commentaries on the Laws of England, William Blackstone famously wrote of the Emperor Caligula, he “wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people.” A core tenant of the Rule of Law is that laws are known to those who are affected by it. Laws that are not known cannot be law.

During President Obama’s State of the Union Address, he announced that he had signed an Executive Order concerning cyber-security.

That’s why, earlier today, I signed a new executive order that will strengthen our cyber defenses by increasing information sharing, and developing standards to protect our national security, our jobs, and our privacy.

If you hadn’t heard about this executive order earlier (I hadn’t), it’s not your fault. No one had!

In fact, the President signed it in the White House privately, and asked the White House Press Corps not to report on it. In effect, this executive order, which has the force of law, was to be “embargoed” until the State of the Union.

Andrew Kaczynski has the story:

Shortly before 4:20 p.m. Tuesday, the White House emailed reporters that President Obama had signed a highly anticipated Executive Order aimed at protecting cyber security.

The order — setting up new programs aimed at stopping online espionage and terrorism — was already the law of the land, signed by the president. But it was also secret.

The document was “embargoed until delivery of the President’s in the State of the Union address” — despite the fact it had already been signed.

Such embargoes — imposed unilaterally, rather than agreed-upon — are not binding on news organizations, which weigh the urgency of the news against the headache of, for instance, being dropped from the White House’s distribution list.

Is anyone else troubled by this? Embargoing the fact that a new law has been created–and a unilateral executive order at that!

What makes this troubling is that the law seems to have gone into effect once the President signed it.

The new order appears, however, to have taken effect immediately; Vietor didn’t respond to a follow up question about when the order took effect.

For a period of five hours, there was a law on the books that no one knew about, and the President told the Press not to report on it. And the press complied, with nary an objection, save BuzzFeed’s ex-post-post. I wonder what other similar requests the press honors.

If reporters are asked not to report on troop movements or something classified, or the travels of the President which could impact national security, I get that. But this was an executive order!

Of course, this is trivial. No one was really impacted by the executive order during this five-hour interregnum. No one was harmed by it. This was done purely to preserve the dramatic aspect of the President announcing it for the first time at the State of the Union.

This isn’t like a Steve Jobs keynote, where the “Oh one last thing” is reserved for the presentation. An executive order that has the force of law isn’t like a new iPad, that needs to be kept secret for rhetorical flair. It is a law.

Oh, by the way, guess who the last President to pull such a move was.

Keeping White House executive orders secret is far from unprecedented, but usually concerns actual secrets. In 2002, the Bush White House signed a controversial executive order allowing for warrantless surveillance on those suspected of terrorism

At least that order had the pretense of concerning national security.

As a libertarian, I am seriously concerned about the unitary executive precedents Obama is setting, and how a future Republican President will rely on, and expand on them–my hope is that it won’t be much worse, but I am doubtful.

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Feb 13, 2013

Obama’s State of the Union and the Constitution

Following my usual tradition, I did not watch the address, but I did read the transcript.

The President only mentioned the Constitution once in his opening sentence, quoting President Kennedy, on his constitutional duty to delivery the state of the union:

Fifty-one years ago, John F. Kennedy declared to this Chamber that “the Constitution makes us not rivals for power but partners for progress…It is my task,” he said, “to report the State of the Union – to improve it is the task of us all.”

He mentioned the Affordable Care Act (not ObamaCare, which he has said is a term he prefers):

Already, the Affordable Care Act is helping to slow the growth of health care costs.

I’ll let the fact checkers deal with that one.

Today, the Senate passed the Violence Against Women Act that Joe Biden originally wrote almost 20 years ago.

And SCOTUS found part of it unconstitutional 13 years ago in United States v. Morrison.

As we do, we must enlist our values in the fight. That is why my Administration has worked tirelessly to forge a durable legal and policy framework to guide our counterterrorism operations. Throughout, we have kept Congress fully informed of our efforts. I recognize that in our democracy, no one should just take my word that we’re doing things the right way. So, in the months ahead, I will continue to engage with Congress to ensure not only that our targeting, detention, and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.

But Due Process for drone strikes does not include judicial process, of course.

Next, POTUS turned to the right to vote.

But defending our freedom is not the job of our military alone. We must all do our part to make sure our God-given rights are protected here at home. That includes our most fundamental right as citizens: the right to vote. When any Americans – no matter where they live or what their party – are denied that right simply because they can’t wait for five, six, seven hours just to cast their ballot, we are betraying our ideals. That’s why, tonight, I’m announcing a non-partisan commission to improve the voting experience in America. And I’m asking two long-time experts in the field, who’ve recently served as the top attorneys for my campaign and for Governor Romney’s campaign, to lead it. We can fix this, and we will. The American people demand it. And so does our democracy.


The Constitution grants no right to vote, or to anything else. The Constitution places limits on what government can do. Various amendments (15th, 19th, 24th, and 26th) prevent the government from limiting the franchise in certain manners–race, gender, poll taxes, age. Indeed, because the Constitution does not grant a right to vote, I would say it is pre-existing, or as Obama phrased it, “God-given.” Yes, Obama recognized that the right to vote is a natural right from God. The next time I tell someone there is no right to vote in the Constitution, and they scoff at me, I will turn to this.

Next, POTUS turned to the Second Amendment.

Of course, what I’ve said tonight matters little if we don’t come together to protect our most precious resource – our children.

It has been two months since Newtown. I know this is not the first time this country has debated how to reduce gun violence. But this time is different. Overwhelming majorities of Americans – Americans who believe in the 2nd Amendment – have come together around commonsense reform – like background checks that will make it harder for criminals to get their hands on a gun. Senators of both parties are working together on tough new laws to prevent anyone from buying guns for resale to criminals.

A brief search could not show up any other State of the Union where the Second Amendment was mentioned by name. Boy have we come a long way since Chief Justice Warren Burger called the Second Amendment a “Fraud.”

Though, the proof will be in the pudding, as Obama’s proposals will not be limited to strengthening background checks.

Police chiefs are asking our help to get weapons of war and massive ammunition magazines off our streets, because they are tired of being outgunned.

With the militarization of police forces, and SWAT teams executing no-knock warrants by knocking down doors with flash grenades, this is not a problem.

Obama referenced, indirectly, a quasi-constitutional issue: the Filibuster. It seems he already presaged that the Senate will hold up any vote on gun control laws. So he stressed over and over again that there should be a vote, citing by name victims of gun violence.

Hadiya’s parents, Nate and Cleo, are in this chamber tonight, along with more than two dozen Americans whose lives have been torn apart by gun violence. They deserve a vote.

Gabby Giffords deserves a vote.

The families of Newtown deserve a vote.

The families of Aurora deserve a vote.

The families of Oak Creek, and Tucson, and Blacksburg, and the countless other communities ripped open by gun violence – they deserve a simple vote.

He closed by noting that his laws would not be perfect,but it would do something.

Our actions will not prevent every senseless act of violence in this country. Indeed, no laws, no initiatives, no administrative acts will perfectly solve all the challenges I’ve outlined tonight. But we were never sent here to be perfect. We were sent here to make what difference we can, to secure this nation, expand opportunity, and uphold our ideals through the hard, often frustrating, but absolutely necessary work of self-government.

Not much deep constitutionalism, but a bit.

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Feb 13, 2013

Commercials During the State of the Union

A number of companies got plugs from the President during the State of the Union.

Caterpillar is bringing jobs back from Japan. Ford is bringing jobs back from Mexico. After locating plants in other countries like China, Intel is opening its most advanced plant right here at home. And this year, Apple will start making Macs in America again.

At schools like P-Tech in Brooklyn, a collaboration between New York Public Schools, the City University of New York, and IBM, students will graduate with a high school diploma and an associate degree in computers or engineering.

What is this publicity worth?

Of course, Poland Spring totally missed an opportunity to capitalize on #Watergate.

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Feb 13, 2013

Caption Contest: What Did the President Say to the 6 Justices at the State of the Union?

So what did the President and Justices say to each other?


The Chief is thinking, “He better not gloat.”


The Chief is thinking: “OK, here he comes. Act cool.”


Chief: Mr. President. Long time no see! At least one of us got the Oath right this time.

President: Good to see you Chief. I hope coming here wasn’t too taxing for you.

Chief Muttering Under his Breath: Enjoy Affirmative Action and the Voting Acts while you can…



Obama, turning around: What did you say?

Chief: Oh, nothing.



President: How are you doing Tony? I hope you’re still not mad at me.

Kennedy: Yeah, whatever. Go say hi to Ruth, already.

AMK has a real Dick Cheney thing going in this picture. RBG is hiding somewhere between Kennedy and Breyer.

Update: LOL. WaPo reports that the Ruth-Sandwiching was intentional.

Starting only a few minutes into the speech, Ginsburg began doing that telltale head nod-and-jerk motion. Even raucous applause and standing ovations at various points in the speech didn’t rouse her.

Justice Stephen Breyer, seated to Ginsburg’s left, valiantly gave her subtle nudges when she looked in danger of pitching over. And at one point, it looked like Breyer and Justice Anthony Kennedy, seated on her right, had wedged her in between them to keep her upright.


President: Ruthie, I’m so glad you stuck around for my second term. 

Ginsburg: Mr. President, I will be around for some time to come. Now come here and give me a hug!

This picture made me let out a huge AWWWW. RBG looks so happy. And in the background is retiring Clerk Bill Suter.



But what’s the deal with Justice Ginsburg’s lace black gloves?

Update: WaPo reports on RBG’s jabot fashion:

Ginsburg, who was seated in the first row, arrived looking ready for a party — sporting a glamorous gold statement necklace over her black robe and a pair of what looked like black mesh gloves.


President: Stevie, how’s it going?

Breyer: Eh, same old, same old. I haven’t been robbed at machete-point this year, so that’s cool. And fewer people think I’m Justice Souter now.



Breyer: Mr. President, while I have you for a moment, may I ask a hypothetical question. Assume for the moment…

Obama, dashing away: Sonia!!!!



President: Sonia! It’s so good to see you. And thanks for swearing in Biden. It was rough for him to wake up so early after pregaming all night, but I understand your book signing was a big deal.

Sotomayor: You know, I sold more copies of my book than Clarence. I heard Clarence read it, but skipped the chapter about Yale Law School.



President: That’s fantastic. So how do you like living in D.C.?

Sotomayor: Loving it. I’m bringing the East Village to U-Street. 



Obama: Elena! How are you doing?

Kagan: Fantastic. I’ve been waiting my entire life to be a Justice. Thank you so much Mr. President. I am so grateful.



Obama: Oh really? Nice job voting against my health care law…


Kagan: Well if I was still the Solicitor General, I wouldn’t have needed to reach for water during my argument.

President: Yeah, at least Verrilli choking wasn’t caught on camera


Kagan: LOL.


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