Author Archive | Will Baude

DOJ Decides to Mess with Texas

So the big Voting Rights Act news of the day is that the Department of Justice will be asking a court to “bail in” the state of Texas for preclearance under the Voting Rights Act. (This involves a separate provision of the Voting Rights Act, Section 3, codified at 42 U.S.C. 1973a(c).)

Rick Hasen has a long post about the DOJ action and why he thinks it’s important. An excerpt:

[B]ail-in is a lot better than nothing. It could stop Texas’s very tough voter id law, which would require people without id to travel up to 125 miles each way at their own expense to get an id. Student ids are not allowed but concealed weapons permits are. You get the idea.

DOJ doing this shows it will be aggressive in enforcing voting rights. But if DOJ gets bail in, it seems pretty clear, as Lyle Denniston has shown, that Texas will attack this in court, likely ending up at the U.S. Supreme Court if the lower court grants bail in. It will be an interesting choice for Justice Kennedy as to what to do in a case where equal sovereignty is violated, but upon proof of intentional discrimination in voting.

One thing I’d add, though: Hasen seems to assume that if Texas is bailed in and the case goes to the Supreme Court, Justice Kennedy will be the marginal vote. But supporters of bail-in might also want to keep an eye on Justice Scalia. In his Tennessee v. Lane dissent, he wrote:

For reasons of stare decisis, I shall henceforth apply the permissive McCulloch standard to congressional measures designed to remedy racial discrimination by the States. I would not, however, abandon the requirement that Congress may impose prophylactic §5 legislation only upon those particular States in which

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Cutting the Federal Defender Budget: Penny Wise, Pound Foolish

I’m glad Orin posted about the startling impact of the sequestration on the federal public defenders. For those interested in the numbers underlying some of the claims in the Huffington Post story, I thought I would direct readers toward this fact sheet prepared by the Federal Defenders, and entered into the record at yesterday’s Senate hearing.

Two things stood out to me:

1: Eighty percent of the Federal Defenders budget is personnel (page 4), and many of the other costs are fixed, so the vast majority of budget cuts have to come in the form of staff reductions — layoffs, furloughs, failure to replace those who leave. Given the heavy workloads federal defenders have already, that almost inevitably means taking fewer cases.

2: The Federal Defenders are a lot cheaper than the other method of appointing counsel — lawyers appointed under the Criminal Justice Act. There’s a stark table on page 3, but in a nutshell, the Federal Defenders cost around 71% per case of what an appointed attorney does. Because of the constitutional guarantee of appointed counsel, these cases have to be defended either way, but a shortfall in the Federal Defender budget will quickly translate into much bigger costs to the taxpayer in the end.

[UPDATE: I mentioned before, but perhaps ought to mention again, that I am married to an assistant federal defender. My comments are my own, however, and do not reflect the views of the defender organizations or their employees.] [...]

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Federal Court Orders Interstate Recognition of Same-Sex Marriage

As readers of the VC all surely know, the Supreme Court’s decision last month in Windsor struck down Section 3 of DOMA, which restricts the recognition of marriage for purposes of federal statutes. One of the big unanswered questions after Windsor was what would happen to Section 2 of DOMA, and more generally the question of whether states must start recognizing same-sex marriages that were performed elsewhere.

Chris Geidner reports that today a federal district court in Ohio answered “yes,” issuing a preliminary injunction forcing the state to recognize a Maryland same-sex marriage. The court concluded that the Constitution required the state to recognize the marriage, and invalidated an Ohio ballot measure saying that same-sex marriages should not be recognized:

[A]s the United States Supreme Court found in Windsor, there is no legitimate state purpose served by refusing to recognize same-sex marriages celebrated in states where they are legal. Instead, as in Windsor, and at least on this early record here, the very purpose of the Ohio provisions, enacted in 2004, is to “impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”

Obviously, this decision will not be the last word on the issue and may not even be the last word in this case. It also may be foolish to try to analyze these issues as a matter of precedent or logic, rather than as a matter of predicting the general gestalt direction of equal protection law.

That said, two quick thoughts:

— For the most part, the opinion strikes me as a plausible interpretation of Windsor. Windsor did have some discussion of federalism, which wouldn’t necessarily extend to the interstate context. But the opinion also put emphasis on how “the State’s [...]

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Contracts 101 and “Ethicist” Chuck Klosterman

The New York Times’s Ethicist column is infamously awful, but I had generally found that the new columns by Chuck Klosterman were not as bad as they’d been before. Nonetheless, today’s paper featured a howler.

Here’s the question:

I’m on the art-museum board, so that is my preferred artistic donee. An acquaintance repeatedly called me for a donation to the opera. I don’t like opera. I said he should donate to the art museum. He said he’d give to the museum whatever I gave to the opera. We agreed on $10,000 apiece. He called the next four years and offered to make the same deal. I accepted each year. As I was looking through our donor list for unrelated reasons, I discovered he has been giving only $1,000 a year. I sent him an e-mail telling him of my discovery, and he responded, “Nailed me.” As if it were funny. What is my ethical response? Demand my excess back from the opera? Threaten to sue him if he doesn’t pony up to the museum? Gossip?

Klosterman responds, in part:

As for pursuing legal action: I don’t even know how that would work. There was no contract signed. It’s not illegal to persuade someone to donate money to an opera house (it would be different if your acquaintance were operating on behalf of the opera’s board, or if the opera facility didn’t actually exist — but that’s not how you described the transaction).

Klosterman’s answer demonstrates a frequent misconception about contract law, namely that most contracts need to be “signed” to be legally enforceable. That is not the case. For the most part, oral agreements are just as binding as written ones. To be sure, there is a small set of contracts that are generally governed by the “statute [...]

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Thinking Through the Constitutionality of Section 2

Several commenters asked me to expand a bit on the constitutional questions raised by Section 2 of the Voting Rights Act. While I doubt that I can do so with a thoroughness that would satisfy the Volokh commentariat (can anything satisfy the Volokh commentariat?), I thought I’d lay out a few more thoughts. I don’t actually have a strong view on the ultimate answer — it strikes me as a hard case. But here’s how I’d think about it:

The first step is to figure out what is actually protected by Section One of the Fifteenth Amendment, which says “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” The Court has said this applies only to restrictions that are discriminatory on their face or else “motivated by a discriminatory purpose,” which pretty much mirrors the standard from equal protection cases. Section 2 is much broader and turns on discriminatory effects. I don’t know what I think of this — the insistence on discriminatory intent has always seemed a little underproven to me; on the other hand, I haven’t seen a really persuasive coherent alternative theory of discrimination either.

At any rate, however that turns out, the second step is to figure out how far Congress is allowed to expand beyond whatever the answer is to step one. On one hand, you have evidence that Section 2 of the Fifteenth Amendment, like McCulloch, gives Congress a great deal of deference in its choice of enforcement. On the other, you have the textual point Justice Scalia made in Tennessee v. Lane:

One does not, within any normal meaning of the term, ‘enforce’ a prohibition by

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Justice Stevens’s Thoughts on Shelby county

Justice Stevens has not been shy in his retirement about telling us what he thinks about current controversies at the Supreme Court. In an essay at the New York Review of Books (reviewing Gary May, Bending Toward Justice), he discusses the Court’s decision in Shelby County.

I found this passage the most interesting:

The statistics set forth in Roberts’s recent opinion persuasively explain why a neutral decision-maker could reasonably conclude that at long last the imposition of the preclearance requirement on the states that lost the Civil War — or more precisely continuing to use the formula that in 1965 identified those states — is not justified by the conditions that prevail today.

Of course, the next sentence is:

The opinion fails, however, to explain why such a decision should be made by the members of the Supreme Court.

[UPDATE: And here are some thoughts from Josh Blackman, the internet’s biggest critic of the “Justice Stevens Rehabilitation Tour.”] [...]

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What Will Happen to Section Two of the Voting Rights Act?

In a speech today, Attorney General Holder announced that he has “directed the Department’s Civil Rights Division to shift resources to the enforcement of Voting Rights Act provisions that were not affected by the Supreme Court’s ruling – including Section 2.” Section 2 of the Voting Rights Act is the one that nationwide forbids voting practices that have a discriminatory effect. (Exactly how to find such an effect is the subject of a ton of complicated doctrine.)

There was a time when Section 2 was constitutionally controversial. The Court has said that the Constitution is only violated when a voting practice has a discriminatory intent, but Section 2 (which was enacted in its modern form in 1982) sweeps far more broadly, and many violations of Section 2 today are proved without a showing of discriminatory intent. This has led some to question whether Section 2 exceeds Congress’s enumerated powers or violates the 14th and 15th Amendments by effectively forcing legislatures to place too much weight on race in, for example, drawing district lines. Indeed, the Court has repeatedly construed Section 2 narrowly out of concerns about its constitutionality (e.g., in Bartlett v. Strickland; Miller v. Johnson, and various opinions in LULAC v. Perry). These views are also discussed (and criticized) by Chris Elmendorf and Luis Fuentes-Rohwer.

So a natural question to ask is, after Shelby County, is Section 2 next on the chopping block? Neither Shelby County nor Northwest Austin said much of anything about Section 2. They didn’t explicitly call it into question, but they also didn’t emphasize that it was an example of appropriate legislation, nor did the Court say anything like “preclearance is especially unnecessary in light of Section 2.” Instead both cases just said flatly that Section 2 “is not at issue [...]

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The Uncertain Future of the Matthew Shepard Hate Crimes Prevention Act

I do not think it is likely that the federal government will end up charging George Zimmerman with a crime. But if it does, the prosecution may raise several interesting and potentially certworthy constitutional issues. Jonathan has already noted the possibility of revisiting the dual sovereignty exception to the Double Jeopardy Clause. But another important issue is the constitutionality of the Matthew Shepard Hate Crimes Prevention Act, one of the most likely sources of federal charges.

The Act criminalizes “willfully caus[ing] bodily injury to any person … because of the actual or perceived race, color, religion, or national origin of any person,” with no state-action requirement and no other hook triggering federal legislative authority. So far, the few courts to consider the Act’s constitutionality have uniformly upheld it (and here is an opinion from then-DAAG Marty Lederman in favor of its constitutionality). But I am rather skeptical that the Supreme Court would do the same if it took the case.

Under United States v. Morrison, which the Court shows no sign of revisiting, the Shepard Act is unlikely to be justifiable under the Commerce Clause or the Fourteenth Amendment. Morrison rejected “the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce,” as well as the argument that violence by private persons could be prohibited under the Fourteenth Amendment enforcement power.

Instead, the Shepard Act has been defended under the Thirteenth Amendment’s power to pass “appropriate legislation” to “enforce” the abolition of “slavery [and] involuntary servitude.” In the late 1960s, the Court interpreted this power to extend to private race discrimination in housing, in turn relying on historical references to a power to abolish the “badges and incidents of slavery.” In 1971, another case upheld the power to reach [...]

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Why George Zimmerman Didn’t Have a Public Defender

Matthew Yglesias speculates about what would have happened if George Zimmerman had been represented by a public defender. As somebody who knows quite a few public defenders (and — full disclosure — is married to one), I was surprised to see Yglesias describe most public defenders as having “little emotional … investment in winning the case.” It’s been my general observation that many public defenders are extremely passionate, whether about helping their clients, defeating overreaching prosecutors, or both. It’s not a bearable job if you don’t have an emotional investment in it.

That assertion aside, Yglesias’s broader point is to worry that those who are represented by public defenders may have worse outcomes than those with represented counsel because public defenders lack adequate incentives and resources. But some of the research on this is actually quite interesting. Morris Hoffman, Paul Rubin, and Joanna Shepherd wrote a paper arguing that while public defenders’ clients do tend to fare worse than those with private counsel, that may be caused by a selection effect (p.8):

There is a surprisingly large segment of defendants who tend to use the public defender when the charges against them are not serious, but manage to retain private counsel when they are faced with serious charges. We call these defendants “marginally indigent.” … If you are a marginally-indigent defendant, and you know not only that you are guilty but also that there is a very high probability that you will be convicted (for example, your crime was captured on videotape), it is not unreasonable to imagine that you will be less inclined to scrape together the money for private counsel than if, for example, you know you are wrongly accused. Thus, public defenders’ lower effectiveness may simply reflect the fact that, on average, they represent defendants with worse

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A Child’s Instinct for Positivism

A recurring question in the philosophy of law is the relationship between law and morals. The Hart/Fuller debate famously illustrated this: Hart thought that law and morals were conceptually separate, and that a “bad” law was just as much of a law as a good one. Fuller disagreed, and thought truly bad law could not be seen as law at all.

With that background, a friend passes along a recent exchange between his sons that well encapsulates Hart’s positivist position:

William: Daddy, why didn’t we have lunch today?

Henry: We did have lunch, William. Remember we had that chicken?

William: But I didn’t like it.

Henry: But it’s still lunch.

William: Oh. Yeah.

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