Blog

I have now visited five Presidential Libraries–Johnson, Ford, Carter, Bush 41, and Clinton (42?). The first four I visited followed a familiar pattern. The exhibits begin with the President’s childhood, his growth, how he met his wife, how he entered government, and how he rose through the ranks. Halfway through you get to the Presidential election. Then you have a number of exhibits about the Presidents 1, or 2 terms. At the end, there is a focus on what the President did after he left the White House.

But the Clinton Library was very, very different. The museum begins with his inauguration in 1993. There was only a brief discussion of his 1992 campaign. Then the museum goes on to break down each of the 8 years of his presidency. But lacking was any meaningful exploration of Bill Clinton as a person. On the third floor, after you see everything else, you find 3 small cases with some relics from Bill Clinton’s childhood, including his Boy Scout Card and some childhood photos. There is also a small case about Hillary Rodham Clinton’s childhood, leading up to Yale. That’s it. There was virtually nothing about Chelsea Clinton growing up in the White House other than a few scattered photos. I found the decision to avoid talking about the President’s childhood–which must have been deliberate–fascinating. I spoke with a Professor at the University of Arkansas at Little Rock, and he agreed that it was a deliberate move.

The other interesting element of the museum was how they covered the impeachment and the Lewinsky affair. As you may expect, the entire impeachment was spun as a political vendetta by Newt and the right wing conspiracy. Entirely lacking was *any* discussion of why they sought to impeach him. Monica’s name was mentioned twice, and it referenced a “relationship” with the President. That’s it. No details about sex. I understand this is the President’s museum, but it is still operated by the National Archives and I would hope they would hold some slightly higher standards.

Beyond that, the museum was fairly bland. Nothing too interesting on the legal front. There was nothing about Justices Ginsburg or Breyer. Though we did see Chief Justice Rehnquist (sans stripes) swear in WJC.

There were several exhibits about the Brady Bill.

 

My favorite part was an AK-47 inside a cage. So poignant.

 

And FMLA:

 

And the failed Health Security Act:

 

Although it really downplayed the “failed” part, especially involving First Lady Hillary Clinton.

President Clinton proposed a bill to assure health insurance for all Americans. After heated debate, the proposal was defeated by its opponents through aggressive advertising and charges of “big government.”

You don’t say!

But they did have the original “Health Security” card the President used in his State of the Union address.

From this picture, I see that barricades were placed in front of open-air monuments during the last government shutdown as well.

Somehow, the museum tied together President Clinton’s affirmative action program and Grutter v. Bollinger. Not quite sure how that fits.

Also lacking from the discussion of “The Gay Community” was the Defense of Marriage Act. The exhibit downplays Don’t Ask, Don’t Tell, which apparently didn’t work as the President designed.

The exhibit on impeachment began with jeremiad against conservatives, blaming talk radio and the internet for creating a “combustible climate.”

And, it turns out, there was absolutely nothing to Whitewater!

Next we get to the evil, evil Ken Starr.

When the Independent Counsel State was reauthorized, however, a judicial panel dominated with conservative Republicans replaced Fiske with Kenneth Starr, a conservative activist who had never before prosecuted a case and who had already shown a bias against the President. Starr repeatedly expanded his mandate–from Whitewater to the White House Travel Office and eventually into President Clinton’s relationship with Monica Lewinsky.

This is the statute reauthorizing the independent counsel.

The Independent Counsel Statute was a “potent political tool” and “None of these efforts yielded a conviction for public misconduct.” Just the impeachment of the President.

And about that impeachment, which the exhibit insists there was “no constitutional or legal basis” for.

And then, don’t you know, he is acquitted!

This is the closest we get to any details on what happened with Monica.Again, it only says his “relationship” with Ms. Lewinsky.

Finally on the 3d floor, we got to personal exhibits.

Here is Hillary Rodham at Yale Law School Moot Court.

And Hillary’s report card for 2nd Grade. The teacher’s comments read:

Some help needed. 1. Reading too rapidly orally. 2. Keeping belongings neat.

This is Bill Clinton’s notice of appointment as an Assistant Professor of Law at the University of Arkansas, at an annual salary of $14,706.

Here is Professor Clinton, teaching some class about (1) Individual ownership, (2) competition, (3), Profit, and (4) Production for Market Economy.

 

The Times, focusing on the lack of gridlock in many state houses controlled by a single party, illustrates why divided government and gridlock is good.

The trend toward one-party control of statehouses has made the states a testing ground for party policies in an era of gridlock in Washington.

Colorado, dominated entirely by Democrats, approved limits on ammunition magazines, background checks on private gun sales and in-state college tuition for some illegal immigrants, and expanded mail-in voting. Wisconsin, held solely by Republicans, sharply limited collective bargaining rights for most public sector workers, reduced early voting and expanded school vouchers. In both states, recall elections followed, and in Wisconsin thousands of protesters marched for weeks around the Capitol, while some counties in Colorado called for secession.

“The last two years were the most active policy-making years in states in years,” said Tim Storey, an elections analyst at the National Conference of State Legislatures. “And in some places I think voters may be saying, ‘Well, wait a minute, I think we need divided government or maybe some more balance here.’ ”

Using Colorado as an example, gridlock and divided government forces compromise:

In Colorado, where the Democrats won full control in 2012, there has already been fallout. Two Democrats were removed in recall elections in 2013, cutting the party’s hold on the State Senate to a single vote, and Gov. John W. Hickenlooper, a Democrat, is fighting for political survival in a tight race with Bob Beauprez, a Republican. In the State Senate, Republicans have targeted eight seats in the hope of gaining some say — though by no means complete control.

“It shortens the rudder,” Senator Bill Cadman, the Republican minority leader, said of the prospect of divided government. “You can’t take massive turns in extreme directions when the legislature’s balanced.”

North Dakota has a constitutional rule that requires a supermajority of its state courts to invalidate a statute, on both state and federal constitutional claims. So a decision with 3 votes to invalidate a law under the federal constitution is not sufficient–you need 4. Will Baude questions whether such a rule is permissible in light of due process and doctrinal preemption. I pose a related question, in light of my work on State Judicial Sovereignty.

Say Congress wasn’t happy with decisions like North Dakota, which it considers frustrating the supreme law of the land, and passes a law that only a majority vote is needed in all state courts to invalidate a law based on a federal constitutional claim. Would that law be constitutional? (I’ll assume for the moment that there is no independent reason why the North Dakota statute, on its face, is unconstitutional.)

There are a few layers to this question. First, would Congress have the enumerated powers to enact such a law. In the case of ensuring that state courts do not frustrate federal constitutional rights, Section 5 of the 14th Amendment, coupled with the Necessary and Proper Power, would probably be the strongest basis for such a law. It’s unclear if it would meet the “Congruence and Proportionality” standard from Boerne v. Flores, but I’ll assume for the moment that it does.

Second, would such a decision intrude upon what I’ve called “state jurisdictional sovereignty,” which entails the the autonomy of the states to vest their state courts with jurisdiction, subject to the strictures of the federal constitution? Historically, Congress has taken virtually no action to control how the state courts are structured. One of the primary outliers are mandatory jurisdiction statutes, which force the state courts with competent jurisdiction to hear federal claims. These are almost certainly constitutional. But the law I proposed in this post would do something different. Rather than force state courts of competent jurisdiction to entertain federal causes of action, this law would provide a rule of decision that impacts state jurisdictional law. Even if such an approach may be necessary to protect federal rights, it is unclear if it is proper, under NFIB, as it intrudes on an area of law long reserved to state autonomy–design of the state courts.

Third, would this law impose on what I’ve called “state judge sovereignty,” which places a limit on the federal government’s power to regulate the state courts, based on the anti-commandeering principle. Even though federal judges are bound by the supremacy clause, the state legislators who vest their courts with jurisdiction, and rules such as the North Dakota rule, are not. This law would directly impact the ability of the legislators–or in the case of a constitutional referendum, the people themselves–to manage their own courts. It would also force judge sto comply with the federal rule, over the state rule. I suppose a related question, was whether Congress could pass a law that requires state legislatures enact laws only by a super-majority. Granted, the issue of invalidating a law under the federal constitution is different from enacting state laws under the police power, but the commandeering aspect of the law remains. Here, the Congress is telling the state legislators how to do their jobs of governing. This seems to be a distinctly local function, that unless they are violating the constitution, is beyond the purview of federal authority.

I don’t think such a law would be valid. (By the way, if you are screaming at me that the state jurisdictional statutes are preempted, please read my article where I argue that jurisdictional statutes, unlike other state laws, are different, and cannot be preempted in the same manner due to the sovereignty of the states to design their own judicial system).

 

In Smithsonian Magazine, Justice O’Connor writes about the tradition of the judicial robe, and how she made her own “modest addition” of a neck doily.

Remarkably, this similarity among our judges and justices is purely a matter of tradition. There are no rules that dictate what judges or justices must wear on the bench, nor is there even a common source for Supreme Court robes. The court’s internal correspondence suggests that, in the 19th century, the justices all wore black silk robes from a single tailor. By the 20th century, other materials were often used and judges selected their robes from those available to college graduates and choir singers. For the most part, we have all chosen to wear a very similar style of black judicial robe.

Of course, there have been a few exceptions, intentional or otherwise. In the marshal’s office records of the court, there is a note that in 1969, Justice Hugo Black “returned to the Bench” without his robe on and sat on the bench for the remainder of the court session, departing with his colleagues. But there’s no record of whether something happened to his robe or he just forgot to put it on. And Chief Justice William Rehnquist added gold stripes to one arm of his robe. It was an unannounced departure: He simply surprised us with the change one morning. He said he had recently seen a Gilbert & Sullivan opera in which the lord chief justice wore a robe with gold stripes. Our chief asked the seamstress at the court to sew some on his own robe. I myself made a modest addition to the simple black robe by choosing to wear a white judicial collar.

Don’t be so modest!

InTrade, the powerful prediction market, ran into serious legal troubles. Despite operating in Ireland, the Commodities Future Trading Commission (CFTC) asserted jurisdiction over InTrade, and alleged that they operated as a commodities broker. The company ultimately flirted on the brink of insolvency in the face of a federal prosecution.

But now, the WSJ reports that the Founders of InTrade have taken another stab at prediction markets–but this time, there is no money involved.

Founders of political wagering site Intrade are back with a new forum for electoral prognosticating, minus one big thing: the wagering.

Pivit, a web and mobile application, is launching prediction markets this week for the midterm U.S. elections. …

Intrade involved buying and selling investment contracts tied to events like elections. But the once-popular site closed its market in 2013 after regulatory pressure on online gambling and when it found what it called “financial irregularities.”

Pivit’s contracts are based in percentages, not dollars. Participating doesn’t require any money or pay out any rewards. Instead, the new market aims to attract people with rankings of the best predictors.

How will the market operate in the absence of financial incentives? (This is a problem we have faced with FantasySCOTUS, which until this year didn’t offer cash prizes. Now, we offer cash prizes, but there is no buy-in, so there is little skin in the game).

Researchers say that nonmonetary incentives can bring people into a market, but doing so could still prove more difficult.

“It’s an obstacle. A lot of markets have offered play money and people haven’t shown up,” said Robin Hanson, associate professor of economics at George Mason University, who has studied prediction markets.

David Rothschild, an economist at Microsoft Corp.’s Microsoft Research, who has studied Intrade, pointed to the success of social media such as Twitter Inc. and Facebook Inc., which offered no monetary incentive to participate and drew millions of users. “There are ways to work with incentives to make people treat it almost as real as money and to be honest in their opinions,” he said.

Here’s how it will work:

Pivit will set initial percentages for individual events—a measure of how likely they are—by using a mix of polls and other factors, determined by a complex algorithm. Like a stock market, the percentages will move rapidly— up to 10 times a second—based on people’s opinions and Pivit’s own algorithms, which will adjust prices to encourage trading, much like a market maker does in financial markets.

Pivit’s app works by creating markets in which people say whether they think an outcome is more or less likely than the current prediction level. People are rewarded when they predict an outcome, and the percentage likelihood moves in their direction.

The are partnering with CNN to display predictions:

The initial midterm markets will be available via CNN’s website, in a partnership with the news organization. The best predictors will be publicly ranked by CNN.

I’m excited to see how they do with the midterms.