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Supreme Court Facilitates the "Tort Reform" Bait And Switch

[ 22 ] June 26, 2008 |

Yesterday, many conservatives managed to work themselves into a lather about a plausible interpretation of the Constitution with exceptionally few real-world consequences. I noticed much less outrage about the Court’s opinion in Exxon Shipping v. Baker, which read the justice’s public policy preferences into the law with considerably less textual support in order to protect poor, defenseless Exxon in the light of the Exxon Valdez spill. (Four justices held that the corporation was not liable at all.)

The majority argues that the potentially arbitrary nature of punitive verdicts requires a fairly strict upper limit, with punitive damages virtually never permitted to exceed a 1-1 ratio with compensatory damages damages. However, the fact that punitive damages will vary to some degree is an inevitable consequence of the American system of relying on torts rather than regulation to create disincentives for corporate behavior. Limiting punitive damages with an arbitrary upper end — even in what, as even the usually sympathetic Breyer notes, were quite unusual circumstances — makes punitive damages a highly ineffective means of constraining bad behavior. That would be fine if people who agreed with the majority wanted to move to a more European-style regulation-based system, but needless to say that won’t happen.

The key to the case is that Scalia and Thomas, who haven’t joined past attempts to find limits on punitive damages in the constitutional text (and still disagree with these holdings), joined this time, presumably because of the majority’s reliance on maritime law. In dissent, however, Stevens points out quite compellingly that the limits on compensatory damages in maritime law make arbitrary upper bounds on punitive damages even less appropriate.

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Court Finds Individual Right to Bear Arms

[ 15 ] June 26, 2008 |

The only real suspense about D.C. v. Heller was 1)how exactly the right to bear arms was defined and 2)what the lineup would be. The D.C. gun ban was clearly doomed. Scalia writing the lead opinion made a broader coalition less likely, and indeed the Court split 5-4, along typical ideological lines. And yet, based on a quick scan, Scalia’s opinion wasn’t exceptionally broad — while striking down the D.C. ban it emphasized that the reasonable regulation of gun ownership was permissible.

Stevens’s lengthy and detailed dissent, meanwhile, immediately conceded that the Second Amendment conferred an “individual” right in some sense, but argued that text and history compelled the conclusion that — given the constitutionally stated purposes of the right the D.C. gun ban was a reasonable restriction of the right. Breyer’s dissent, as you might expect, was more pragmatic, focusing on what he claims to be the reasonableness of the ban.

More on the decision later.

Major League Chutzpah Of The Week

[ 94 ] June 26, 2008 |

Mr. Ralph Nader — in a good position to speak on such issues, having earned 0% of the votes of African American women in 2000 while successfully achieving his goal of handing the election to George W. Bush and all — lectures Barack Obama for “talking white.” Uh-huh.

I can’t resist quoting Mike Tomasky:

Third, and most of all, I kept noticing in 2000 that most of the people who lectured me on how corrupt Gore was and how Nader was the courageous choice were people for whom the outcome of the election, on a personal level, didn’t really matter. Some were young people, whose idealism is to be admired but who were by and large demographically insulated from some of the harsher realities of American life. But most were older, white, left bourgeoisie, tenured and cocooned in the carapace of self-righteous satisfaction, whose own lives wouldn’t change much one way or the other no matter which party won. In fact, if anything, Bush’s elevation was good for them personally, because they wouldn’t suffer directly from federal budget cuts and were probably in a bracket that benefited from his tax cuts (as was I, but at least I had the sense to vote against my own interests). Among people who were directly affected by which candidate won, Nader was seen as the ornament of frippery that he was. I promise you, you could not have gone to the corner of Lenox Avenue and 145th Street in October of 2000 and found four Nader voters. And at that intersection and the many others in America like it, by my lights, the moral case for Nader crumbles to dust.

The Eighth Amendment and Sexual Assault

[ 18 ] June 25, 2008 |

Today’s decision in Kennedy v. Louisiana is a fairly typical Eighth Amendment case. The relevant textual language — “nor cruel and unusual punishments inflicted” — can evidently accommodate multiple outcomes in any case sufficiently interesting to get to the Supreme Court, and this case is no exception. The Court’s four more liberal members and the moderate conservative found that the Eight Amendment categorically bars the death penalty for cases of sexual assault “where the crime did not result, and was not intended to result, in death of the victim.” The Court’s four doctrinaire conservatives dissented.

One interesting aspect of Alito’s opinion, however, is the particular way in which he made his argument. One could imagine an argument to the effect that the text of the Eighth Amendment as originally understood did not prohibit the death penalty for the rape of a child. This would be true, but given what kinds of punishments would be permitted by an originalist analysis would prove too much, and indeed even Scalia has said that cruel and unusual punishment is an area where he is a “faint-hearted” originalist who would not actually hold flogging for minor property theft to be constitutional. Instead, Alito takes on Kennedy’s standard analysis of whether there is a national consensus against the death penalty for the sexual assault of children. Here, Kennedy’s case is pretty strong, given that the few states with such statutes are clear outliers (this is roughly the same number of states that didn’t provide lawyers for criminal defendants at the time of Gideon). Alito attempts to explain this away:


…dicta in this Court’s decision in Coker v. Georgia, 433 U. S. 584 (1977) , has stunted legislative consideration of the question whether the death penalty for the targeted offense of raping a young child is consistent with prevailing standards of decency. The Coker dicta gave state legislators and others good reason to fear that any law permitting the imposition of the death penalty for this crime would meet precisely the fate that has now befallen the Louisiana statute that is currently before us, and this threat strongly discouraged state legislators—regardless of their own values and those of their constituents—from supporting the enactment of such legislation.


The claim that legislators would have been prevented from pursuing laws they strongly favored because of mere dicta in an opinion is, however, highly implausible. In the wake of Furman, for example, some people (including the Chief Justice) believed that the death penalty was effectively abolished although only 2 of the 5 majority justices held the death penalty categorically unconstitutional — but this didn’t stop a majority of states from quickly passing new death penalty statutes despite little knowledge of whether such laws would be upheld. In the case of abortion, legislators have passed laws that were clearly unconstitutional under contemporary doctrine, such as the federal Partial Birth Abortion Ban Act, the states that have passed abortion bans after Roe, and the states that continued to pass abortion restrictions after Akron. Alito’s claim that mere dicta intimidated states into not passing legislation they otherwise preferred and that Supreme Court precedent did not explicitly prohibit is highly implausible, and (if one accepts the standard being applied) Kennedy’s assessment is much more credible. If the Court’s opinion in Coker ran counter to strong sentiment, we would have expected a significant number of legislatures to immediately test the boundaries of the Court’s opinion; needless to say, this didn’t happen.

Alito also makes an argument that there is no reason to assume that murderers achieve a unique level of moral depravity, which on its face is more reasonable:

Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?

Fair enough as far as it goes. However, there’s another way of approaching this: to question whether the death penalty should be applicable in cases of felony murder. A categorical prohibition on the death penalty for people who did not intend to cause the death (or their personal actions could not foreseeably have caused) of another person seems the better way of resolving the conflict to me.

A Meme Expands

[ 0 ] June 25, 2008 |

djw — who thankfully encouraged me to a see a rare screening of L’Eau Froide at a tiny theater in Seattle — will be especially happy with this addition…

Court Rules Against Death Penalty for Sexual Assault

[ 0 ] June 25, 2008 |

In a 5-4 opinion written by Kennedy, the Court has ruled that the Eight Amendment makes the death penalty unconstitutional in cases where the defendant did not intend to cause death. More when I have a chance to fully read the opinion.

Incorporating the Second Amendment

[ 6 ] June 25, 2008 |

Given the credible assumption that Scalia will be writing the Court’s likely-to-be-a-landmark 2nd Amendment opinion in Heller, Mike O’Shea claims that this is “great news for those who are mainly concerned with the Second Amendment as a limit on federal gun control” but “somewhat ambiguous news — at least in the short term — for those who hope for the incorporation of the Second Amendment as a check on state and municipal governments.”

The Court, of course, doesn’t even need to address the question of incorporation to strike down the D.C. Ban, and they may choose to avoid the question. But I would be absolutely shocked if the Court declared that the Second Amendment did not apply against the states. With the rare exception of Thomas (whose questioning of incorporation doctrine seems tied to the particular nature Establishment Clause), no conservative since Harlan left has seriously questioned the application of most of the Bill of Rights to the states. And it is unlikely indeed that Scalia would simultaneously find broad individual right to purchase and posses firearms in the Second Amendment but would simultaneously claim that this right is not “implicit in the concept of ordered liberty.” As O’Shea says, what he wrote in A Matter of Incorporation can easily be explained away as a narrow reference to the Second Amendment as originally understood (i.e. before the Fourteenth Amendment), and that’s what’s going to happen.

Good, If All Too Quixotic

[ 15 ] June 25, 2008 |

Dodd and Feingold to filibuster the House’s awful FISA bill in the Senate. And Reid is co-sponsoring an amendment stripping the bill of the provisions providing retroactive immunity for corporations who illegally violated the privacy of their customers.

I wish I could disagree with Jonathan Zasloff:

Presumably, [Obama] will vote for Harry Reid’s amendment stripping retroactive telecom immunity from the bill. The Republicans will filibuster it. Then Reid, showing the spinelessness that has distinguished his term as Majority Leader, will pull the amendment. Then Dodd and Feingold will try to stop ending debate.

What does Obama do?

If he votes to filibuster, then he looks foolish because just last week he supported the House bill, with a weak statement that was really beneath him. If he does this, then he’s “flip-flopped in four days.” (Not as agile as McCain, of course, but that never matters according to the Beltway press.). But if Obama votes to end debate, then he plays along with Republicans and further infuriates the base (and by the way all those who believe in accountability). Either way, he does not look good.

I suspect he will vote to end debate. And that will leave a very bad taste in the mouths of many Democrats. One might even call it “bitter.”

I actually wouldn’t be surprised if Obama voted against cloture, using the fact that he nominally opposed the retroactive immunity provisions as a justification. The problem is that unless the vote is decisive, such a vote wouldn’t actually matter. The time for Obama to stop the bill would was to persuade the House leadership to prevent it from coming to a vote.

Clash of the Third-Rate

[ 9 ] June 25, 2008 |

Apparently all the Mariners needed was a trip to Shea Stadium, which suddenly turned R.A. Dickey into Phil Niekro. (And it’s hard to even bring up Wright being out of the lineup, given that Tatis was 3-4.)

Saletan Follow-Up

[ 23 ] June 24, 2008 |

To add a couple things to Bean’s post below, there’s another glaring flaw with respect to Saletan’s argument here:

One of this country’s greatest achievements is its separation of legality from morality, so that individuals can hold themselves to a higher standard, as they see it, without forcing it on everyone else.

I don’t actually agree with the claim that relatively libertarian social policies represent the “separation of legality from morality”; liberty and the right of consenting adults to arrange their relationships as they see fit are important moral values too. But that aside, Saletan’s point has some merit when it comes to drugstores that refuse to sell condoms; if they want to let other drug stores, gas stations, convenience stores, etc. take the profits I don’t really care. But when it comes to prescription contraceptives, however, that’s a different matter. Saletan’s ode to “the separation of law and morality” omits the obvious fact that some pharmacies in rural areas are in the position to significantly burden the access women have to oral contraceptives because they have been granted a highly profitable state-granted licence. When the state gives pharmacists a monopoly over the distribution of some drugs, it can also place reasonable restrictions on the ability of pharmacists to deny contraceptives to women based on their personal beliefs. If Saletan wants to argue that this isn’t reasonable he can (although I wouldn’t agree), but either way the state is implicated. There’s no “separation of law and morality” when the state places some individuals in the role of gatekeeper.

In addition, to repeat what I’ve said before I also reject the idea that pharmacists who deny oral contraceptives to women are acting on “principle”, unless the principle being applied is “having it all ways.” It would be an act of principle for a pharmacist to resign, or not accept a state-granted licence, because fulfilling their responsibilities would conflict with their moral beliefs. The High Moral Principle involved in wanting to get paid even though you’re not willing to do your job is much less obvious.

More on Hoyt and MoDo

[ 5 ] June 24, 2008 |

What Digby said. Especially this:

These negative “feminine” stereotypes not only perpetuate noxious myths about female and gay leadership abilities in the culture at large, they consistently favor the right wing authoritarian philosophy. Dowd always says she’s speaking truth to power, but her obsession with “playing with gender” actually serves power very, very well. She and her editors may be so dazzled by puerile cutsiness like “Obama is like an anorexic starlet,” to even know that she’s being partisan, but that doesn’t mean she isn’t. It plays perfectly into the way Republicans have run elections since Reagan. If she and her editors don’t know she’s doing this then they are too stupid to be working for the paper of record.

…and what Amanda said.

Avoiding College Athletic Peonage

[ 50 ] June 24, 2008 |

Although I assume not enough players will go to make a significant dent in the system, like Matt I would hope that some aspiring basketball players will choose to go to Europe and actually get compensated for their services rather than be grossly exploited by the NCAA. The system in which everyone is allowed to profit as much as they can from college athletics except the players whose skills actually create the market is bad enough. But the collaboration of the NBA and NFL makes it even worse; at least players who are ready should have options to play at another professional level, including the league itself. (I’m still amazed by sportswriters who not only defend the NBA’s new restrictions on high school players being drafted but claim it’s actually in the interest of the athletes.) The exploitation of baseball players in college is far less severe, not only because the teams are not as profitable but because players have a viable professional option.

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