Debt bill passes the House

Last major roadblock cleared. From Politico:

With the government running on fumes, Congress and the White House moved quickly Monday toward expanding Treasury’s borrowing authority and putting in motion an ambitious plan promising between $2.1 trillion to $2.4 trillion in deficit reduction over the next 10 years.The hastily-written 74-page bill—never reviewed by a legislative committee and rushed to the floor— cleared the House on a 269-161 vote late Monday. The Senate is poised to act Tuesday—the very day of the threatened default. But passage seems all but certain given the margin in the House and unified support of Senate leaders of both parties.

Read more here.

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UPDATE: Senate passes, Pres. Obama signs debt ceiling bill to avoid default.

The Philosophical Justification for Civic Capitalism

In a forthcoming article in the Emory Law Review, Scott Harshbarger and I address some of the issues that have come out of the recent financial crisis. In the next days and weeks, I'll be blogging about that article. But for now, I want to take a step back and talk about the philosophical justification for the position we advance in that paper. The discussion below doesn't appear in the article -- because of space limitations, we couldn't include it in the text. [NB: this is pretty long]

Dr. Brian Leiter on Why Obama's Choice is Janet Napolitano

Dr. Leiter makes a convincing case for why President Obama's choice to replace Justice Stevens will be Janet Napolitano, the current Secretary of Homeland Security. His reasons from Brian Leiter's Law School Reports:

1. She's a she.

2. She's a Protestant, replacing the last remaining Protestant on the court.

3. She's not yet another Yale/Harvard, "inside the Beltway" nominee, who has done nothing but be a judge or DC lawyer or law professor. She has political experience, as well as prosecutorial experience.

4. She's not an East Coast insider either--she's a "real" Westerner. Geographic diversity!

5. Like Kagan, but unlike Wood (and Garland), she could easily serve 25 or more years on the court given her current age.

6. She has the strong support of the two Republican Senators from Arizona, which will help neutralize Republican opposition.

7. She was confirmed without opposition to her current post--and that wasn't long ago.

8. She's a solid Democrat, but not obviously a liberal--there's little ammunition for the crazy right. She even put people to death as a prosectur in Arizona!

9. She's politically skilled, and, esp. with the support of the Arizona Senators, could likely win over other Republicans.

10. She doesn't have the baggage of Kagan or Wood. In the case of Wood, a long judicial record creates lots of fodder for the right-wing kooks. In the case of Kagan, she has limited experience (she is no John Roberts), a somewhat odd academic career (tenured at Chicago, but then unable to get hired back to the faculty after leaving the Clinton Administration; a visiting stint at Harvard led to an appointment, which was then followed by a successful Deanship, but she's had a relatively limited scholarly output); and even her nomination as Solicitor General produced more than 30 'no' votes in the Senate.

Like Dr. Leiter, I cannot imagine that President Obama would waste a substantial amount of political capital on a nominee whom Republicans will simply not accept. Secretary Napolitano seems to be a safe pick.

10 Reasons to Fear the Health-Care Bill

The problems according to Richard Epstein. The Daily Beast

Federalism Showdown

Idaho governor signs law requiring Idaho AG to sue the federal government if residents are forced to buy health insurance. AP

Give Me Liberty or Give Me Death!

It looks like the incumbents are doing a fantastic job of torpedoing America's confidence in the federal government. From CNN:

A majority of Americans think the federal government poses a threat to rights of Americans, according to a new national poll.

Fifty-six percent of people questioned in a CNN/Opinion Research Corporation survey released Friday say they think the federal government's become so large and powerful that it poses an immediate threat to the rights and freedoms of ordinary citizens. Forty-four percent of those polled disagree.

Of course, there is a bit of partisanship in these number:

The survey indicates a partisan divide on the question: only 37 percent of Democrats, 63 percent of Independents and nearly 7 in 10 Republicans say the federal government poses a threat to the rights of Americans.

Regardless of your political affiliation, however, one feeling is constant throughout the political spectrum:

. . . Americans overwhelmingly think that the U.S. government is broken . . .

Americans tend to get into a revolutionary spirit when they believe their liberty is under siege. Does this mean a drastic shakeup of the federal government is on the horizon? A power shift back to the states? Only time will tell, but times of crisis tend to yield the greatest changes in our system of government.

FOLLOW-UP: Rasmussen Reports polling data shows that only 21 percent of voters believe the federal government enjoys the consent of the governed.

Is Law School Non Partisan?: A follow-up

As I discussed in a previous post, I find the role of partisanship and its potential to hinder insightful debate within a law school atmosphere rather intriguing. Therefore, when I read this New York Times article about how ideology is beginning to play a primary role in the life of former Supreme Court clerks, I expected to be similarly amazed. But I wasn't.

The article discusses how Justices are likely to hire clerks who agree with their political platform, and in turn, the presidential administration is more likely to hire former clerks of Justices that support the administration's political platform. I really want to be shocked that political figures are not actively seeking diverse partisan interests to avoid problems of groupthink, but it seems like that is simply the way the political world functions. While the same may not be true in finance or medicine, in politics, you want people on your side who at least agree with your overall approach to issues, and then they can debate you on more nuanced topics of how to tackle a specific problem. I am trying to follow through with my own thought process and think about what would happen if Obama began hiring all of Scalia's former clerks, but I cannot quite grasp how significant the effect would be.

The most interesting aspect of the article, in my opinion, was the idea that some firms have a tendency to hire more former clerks of either conservative or liberal justices, suggesting that law firms have political leanings as well. The article does not imply that firms are specifically turning candidates away for their political views, but simply notes a general correlation. At the end, the author claims that while these trends may be predictable, they effectively blur the line between law and politics. I guess the real question is whether that line exists, where it falls, and how much it matters in the real world.

Genetic Anti-discrimination Law Takes Effect

On November 21, 2009, the Genetic Information Nondiscrimination Act (Pub.L. 110-233) took effect. From the LA Times:

The most sweeping federal anti-discrimination law in nearly 20 years takes effect today, prohibiting employers from hiring, firing or determining promotions based on genetic makeup. Additionally, health insurers will not be allowed to consider a person's genetics -- such as predisposition for Parkinson's disease -- to set insurance rates or deny coverage. Not since the Americans With Disabilities Act of 1990 has the federal government implemented such far-reaching workplace protections.

The bill was signed into law by President George W. Bush on May 21, 2008.

BCS Update

Senator Hatch has asked President Obama to launch an antitrust investigation into the BCS. CBS Sportsline

I wrote an article last spring detailing the potential antitrust problems with the BCS system. Seems like Congress is getting serious.

The NFL and Rush Limbaugh

Pro-football fans and political pundits alike have been talking about Rush Limbaugh's proposed bid to buy the St. Louis Rams football franchise, but many in the NFL are not too happy with the prospect of Mr. Limbaugh owning a team. In fact, the bid "ran into opposition within the NFL on Tuesday as [Indianapolis] Colts owner Jim Irsay vowed to vote against him, and commissioner Roger Goodell said . . . [his] 'divisive' comments would not be tolerated from any NFL insider." This got me thinking preemptively of the antitrust problems the NFL may run into if an effort to stall Mr. Limbaugh's bid is successful. (For details on the basic antitrust principles I omit for brevity, click here).

Congress granted the NFL an antitrust exemption by passing the Sports Broadcasting Act of 1961. See 15 U.S.C. §§ 1291-95. Sparing a detailed explanation, the Act essentially permits NFL teams to jointly agree to, and negotiate, television deals. Id. § 1291. Yet the provision further states that it does not otherwise limit "the applicability or nonapplicability of the antitrust laws to any act, contract, agreement, rule, course of conduct, or other activity by, between, or among persons engaging in, conducting, or participating in . . . organized professional . . . football." Id. § 1294. Thus, unless I am missing something, general antitrust principles such as the prohibition on anticompetitive group boycotts could ostensibly still apply to many business aspects of the NFL. It must also be noted, of course, that the Supreme Court will soon hear arguments clarifying the latter issue in American Needle, Inc. v. NFL, 538 F.3d 736 (7th Cir. 2008), cert. granted 2009 U.S. LEXIS 4899 (June 29, 2009), where it will review the Seventh Circuit's recent decision that the NFL is a single entity which is fully immune from antitrust liability under § 1 of the Sherman Act. Until this question is conclusively resolved, however, let's discuss the potential implications in this case.

In the modern approach to group boycotts, courts subject defendants who concertedly refuse to deal with a plaintiff to per se condemnation only if the plaintiff can show that the conduct simply has no redeeming merit, and that the group possessed market power or exclusive access to a critical competitive element--otherwise, the conduct should be judged under the sliding scale approach of the rule of reason. See Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 293-95 (1985) (distinguishing cases holding group boycotts subject to per se condemnation to be limited to their facts as concerted refusals to deal “[which] are so likely to restrict competition without any offsetting efficiency gains. . . .”); cf. FTC v. Indiana Federation of Dentists, 476 U.S. 447, 459 (1986) (applying the rule of reason approach because the Northwest factors were not met in a case where members of a dentists’ federation agreed to collectively refuse to provide patient x-rays to insurance companies, preventing them from evaluating the reasonableness of insurance charges, and from implementing other cost containment measures).

Commentators have analyzed whether some of the NFL's current policies would implicate the boycott rules under § 1 of the Sherman Act. But could a boycott of Mr. Limbaugh's bid to purchase the Rams--be it through a players' joint refusal to deal with him, an owners' boycott or otherwise--be subject to antitrust scrutiny? My hunch is that a boycott could be problematic, even under a favorable rule of reason analysis, because it does not seem to have much of an economic motivation. From current rhetoric--and perhaps understandably--the boycott would be based almost entirely on the controversial statements Mr. Limbaugh made regarding Donovan McNabb several years ago.

I invite our readers to chime in on this matter. I am not too sure how a court would resolve it, particularly given the uncertainty in the federal courts on the scope of the NFL's antitrust immunity. Perhaps the forthcoming Supreme Court decision will obviate the need for speculation.

Plot Thickens In Iran

Yesterday, the Iranian government issued its staunchest threat yet toward the people’s rebellion in response to the election results and has concurrently threatened to arrest Mir Hussein Moussavi, the reformist opposition candidate. The “Revolutionary Guards warned protesters Monday that they would face a ‘revolutionary confrontation’ if they returned to the streets to challenge the presidential election results in defiance of the country’s leadership.” Unsurprisingly, as the New York Times reports, the threat has diluted protest turnouts.

Within hours of the warning, several hundred protesters—far fewer than in mass rallies last week—gathered in central Tehran, and police used tear gas and fired into the air to disperse them, news agencies reported.

Curiously however, for the first time in days, the Iranian election-monitoring agency has formerly acknowledged that more than 3 million of the 40 million ballots cast may have been plagued with irregularities. With the world watching, the onus is on the Iranian government to ensure that every vote is counted correctly. But the world is growing steadily impatient.

Want a SCOTUS Clerkship? Better Not Go to AU...

Justice Scalia made a point of shooting down the dreams of an American University Law Student, when he explained why she would likely never have a shot at a Supreme Court clerkship. As the New York Times reports, Justice Scalia--while giving a speech on administrative law at AU Law School--gave this student a short summary of what it really takes to be a Supreme Court clerk: doing extremely well at a top law school. "You can't make a sow's ear out of a silk purse," opined Justice Scalia in explaining why he "[is] going to be picking from the law schools that basically are the hardest to get into."

Justice Scalia admitted, however, that one of his best clerks, now 6th Circuit Judge Jeffrey Sutton, was a graduate of wait for it . . . "The" Ohio State University (Law School). Scalia noted, of course, that he would not have hired Jeff Sutton if he had applied directly. Instead, Judge Sutton "snuck" into his chambers after his Justice, Lewis Powell, resigned before he could begin his clerkship. Scalia's explanation speaks for itself:

"[I] wouldn’t have hired Jeff Sutton. For God’s sake, he went to Ohio State! And he’s one of the very best law clerks I ever had."

Okay. So Justice Scalia does not think it prudent to hire clerks from "non-top" law schools, but one of his best clerks ever was a graduate of (what Justice Scalia considers to be) such a law school? Am I missing something?

I understand the rationale for hiring clerks from the top law schools in the country, but holding a strict myopic view in this regard will (inevitably, I think) cause Judges to miss out on great talent.

Dear President Obama...

Please pick an attorney to replace Justice Souter. I know there's always a lot of pressure to pick an "average American" type for the Court, and I respect that. I can also appreciate that having a diversity of perspectives and life experiences will be beneficial for the Court. But let's not go crazy here. The Court is not a political actor--at the least, it's not political in the way the legislative and executive branches are.

So while I'd fully support Obama's decision to follow Senator Leahy's advice and pick "somebody who has had some real-life experience, not just as a judge," I'm troubled by the implications of these kinds of preferences if taken to their logical extremes. Especially given Sen. Leahy's (and other's) expressed desire to "see more people from outside the judicial monastery." It may sound elitist, but this job is not for anyone--it's for someone trained in the law, who understands the law, and is not picking sides based on outcomes.

I can live with a selection who has "real-life experience" (whatever that means), so long as part of that experience involves the training and background to work with complicated, interesting legal issues on a daily basis.

Justice Souter Retiring

President Obama will have an opportunity to appoint an associate justice to the Supreme Court of the United States. As NPR reports, "Justice David Souter is planning to retire at the end of the Court's current term . . . [but] will remain on the bench until a successor has been chosen and confirmed, which may or may not be accomplished before the Court reconvenes in October."

We will keep you updated as this story develops.

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UPDATE (5-4 @ 7:49 PM)

Politico confirms that it is likely that the White House will announce Justice Souter's replacement within the week.

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UPDATE (5-5 @ 8:49 PM)

Apparently, Justice Souter's replacement will not be nominated within the week.

Judge Orders George W. Bush to Testify

According to the Dallas Morning News, "Judge Martin Hoffman has ordered that former President George W. Bush be deposed in a long-running lawsuit against Southern Methodist University over land acquisition related to the Bush Presidential Library." The testimony will concern "whether SMU officials told him about plans" relating to the land over which his library is to be built "before the university bought the land."

President Bush's lawyers contend that the effort to obtain his testimony is a "publicity stunt," as "it is rare for a sitting or former president to be compelled to answer questions under oath."

Secession?

This article was just too good to let slip through the cracks.

I look forward to any (and all) commentary.

Are We The People They Warned Us About?

Today's rendition of FAD is brought to you by the Milwaukee Journal-Sentinel. This article discusses the coming generational shift from the Boomers and Gen-Xers to the kids who were raised on GI Joe, Teenage Mutant Ninja Turtles, Mighty Morphin' Power Rangers (whatever it is that girls watched from 1980 through 1995 [Care Bears?]), and, most importantly, THE INTERNET!!

Tell us, BBL-uminati: Is the generational shift a potential paradigm shift (away from bigger government) like Prof. Burkee argues, or is it just another example of the recurring cycle of youth being optimistic and then becoming more jaded with age?

Presidential Review of Afghanistan Martial Sex Law

Afghanistan President Hamid Karzai decided yesterday to review a law applicable to "[the country's] Shiite Muslim minority that the United Nations says legalizes marital rape." Astonishingly, "the law, which applies to . . .  19 percent of the country’s 33 million people who are Shiite, says a husband can have sex with his wife every four days unless she is ill." In addition, the law "forbids a woman from working or being educated without her husband’s permission, limits women’s property rights and bars them from leaving home without spousal approval, according to the UN."

Bloomberg reports that Karzai has the staunch approval of the Obama Administration in taking this action.

BCS Antitrust Update

ESPN reported today that the "Senate Judiciary's subcommittee on antitrust, competition policy and consumer rights" will conduct hearings on the potential antitrust issues presented by the BCS system for selecting a national college football champion. Sen. Orrin Hatch of Utah said that "[he] would introduce legislation 'to rectify this situation'" as the system "has proven itself to be inadequate, not only for those of us who are fans of college football, but for anyone who believes that competition and fair play should have a role in collegiate sports."

As I am sure some of our readers are aware, I wrote a piece analyzing the antitrust problems with the BCS a few weeks ago.  Enjoy the update.

AIG...again?

It seems like President Obama doesn't agree with Larry Tribe's analysis. Although the House has already passed a bill directed at recouping the AIG taxes, the AP reports that the Obama administration has some reservations:

The White House said Sunday that using tax law to pry bonuses from bailed-out company executives is "a dangerous way to go" and a Republican senator advised against Congress "grabbing its pitchforks and charging up the hill" in pursuit of the cash.

The article goes on to explain that the concern is constitutional in nature. As Vice President Obama's economic adviser, Jared Bernstein, told the AP:

I think the president would be concerned that this bill may have some problems in going too far — the House bill may go too far in terms of some — some legal issues, constitutional validity, using the tax code to surgically punish a small group . . . [t]hat may be a dangerous way to go.

A lot of this back-and-forth may be mere (political) posturing, but it's interesting to hear these concerns--again--where the tax passed extended beyond AIG itself. Indeed, as TaxProf Blog noted, legal scholars weighing on the issue have suggested that the law would not face any constitutional infirmities. As usual, we'll continue to follow this soap opera.