tag:blogger.com,1999:blog-14532624297388087782024-03-05T15:17:27.307-05:00BISHOP MADISONOccasional Commentary on Political Economy in a Free SocietyAlan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comBlogger337125tag:blogger.com,1999:blog-1453262429738808778.post-84299033608547861682021-06-06T16:34:00.007-04:002021-06-07T10:54:17.167-04:00Requiem for a Lightweight: How NCAA Continues to Distort Antitrust Doctrine, 56 Wake Forest L. Rev. _____ (2021) (forthcoming)<div class="separator" style="clear: both; text-align: center;"><span style="text-align: justify; text-indent: 48px;"><br /></span></div><div class="separator" style="clear: both; text-align: center;"><span style="text-align: justify; text-indent: 48px;">To download the latest version of this paper, go to<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3854852"> </a></span><span style="text-align: justify; text-indent: 48px;"><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3854852">this link</a></span><span style="text-align: justify; text-indent: 48px;"><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3854852">.</a> </span></div><div class="separator" style="clear: both; text-align: center;"><b><br /></b></div><div class="separator" style="clear: both; text-align: center;"><b>Abstract</b></div><p class="MsoNormal" style="text-align: justify; text-indent: 0.5in;">The Supreme
Court speaks rarely about the meaning of the Sherman Act.<span style="mso-spacerun: yes;"> </span>When the Court does speak, its pronouncements
have particular resonance and staying power among jurists, scholars and
enforcers.<span style="mso-spacerun: yes;"> </span>NCAA v. Board of Regents of
the University of Oklahoma was such a case.<span style="mso-spacerun: yes;">
</span>There the Court assessed agreements reducing the output and increasing
the prices of televised college football games.<span style="mso-spacerun: yes;">
</span>After announcing that restraints imposed by sports leagues are exempt from
<i>per se</i> condemnation, the Court went on to invalidate the challenged
agreements under the Rule of Reason because they produced significant economic
harm without offsetting benefits.<span style="mso-spacerun: yes;"> </span>In so
doing the Justices also addressed restraints not before the Court, opining that
members of the NCAA may collectively restrict the level of compensation that
universities provide student athletes.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify; text-indent: 0.5in;">Announced almost
four decades ago<i>, NCAA</i> and its rationale have exerted substantial
influence on Sherman Act doctrine, enforcement policy and scholarly discourse
well beyond the context of sports leagues.<span style="mso-spacerun: yes;">
</span>Later this term, in NCAA v. Alston, the Court will revisit the antitrust
propriety of collective limitations on the compensation schools pay student
athletes.<span style="mso-spacerun: yes;"> </span>There the Court will review
the Ninth Circuit’s condemnation of NCAA regulations restricting the value of
education-related benefits, such as post-graduation scholarships, that schools provide
student athletes in addition to tuition, room, board and other costs of
attendance.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify; text-indent: 0.5in;">While antitrust
scholars and practitioners disagree about the merits of the Ninth Circuit’s
decision, all hope the Court will clarify the extent to which the NCAA may
limit student athlete compensation.<span style="mso-spacerun: yes;"> </span>This
essay contends that <i>Alston </i>also presents the Court with an opportunity
to address more fundamental questions.<span style="mso-spacerun: yes;">
</span>That is, the case offers the Court a chance to correct <i>NCAA</i>’s
erroneous application of the <i>per se</i> standard and derivative errors the
Court committed when conducting rule of reason analysis, errors that
reverberate throughout Sherman Act jurisprudence. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify; text-indent: 0.5in;"><span style="mso-spacerun: yes;"> </span>In particular, the essay demonstrates that <i>NCAA</i>’s
sports league exemption from the ordinary <i>per se</i> standard contradicts
basic antitrust principles.<span style="mso-spacerun: yes;"> </span>Moreover,
the rationale for the exemption turned partly on the Court’s (correct)
assertion that some horizontal restraints can overcome market failures and
enhance interbrand competition.<span style="mso-spacerun: yes;"> </span>Recognition
of these potential benefits undermined the Court’s otherwise broad articulation
of the <i>per se</i> rule that purportedly created the need for such an
exemption in the first place.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify; text-indent: 0.5in;"><span style="mso-spacerun: yes;"> </span>Failure to condemn the restraints before it
as unlawful <i>per se</i> also distorted the Court’s pronouncements regarding
how to conduct rule of reason analysis.<span style="mso-spacerun: yes;">
</span>For instance, the requirements for establishing a <i>prima facie</i>
case should depend upon the nature of redeeming virtues a restraint might
produce.<span style="mso-spacerun: yes;"> </span>However, courts, agencies and
scholars have read <i>NCAA</i> as holding that proof that a restraint produces
prices exceeding the non-restraint baseline necessarily establishes such a
case, even when the restraint may overcome a market failure.<span style="mso-spacerun: yes;"> </span>Moreover, lower courts, agencies and the
Court itself have read <i>NCAA</i> as endorsing a “Quick Look” approach in some
rule of reason cases, allowing plaintiffs to bypass any requirement to
establish anticompetitive harm.<span style="mso-spacerun: yes;"> </span>Finally,
the Court’s approach to rule of reason analysis lent credence to the dubious
assumption that benefits produced by challenged restraints necessarily coexist
with harms, bolstering the equally dubious less restrictive alternative test.<span style="mso-spacerun: yes;"> </span>Hopefully, the Court will take this
opportunity in <i>Alston</i> to correct these errors and ensure a more coherent
Section 1 jurisprudence that better reflects the teachings of modern economic
theory.<o:p></o:p></p><p class="MsoNormal" style="text-align: justify; text-indent: 0.5in;"><br /></p>Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-21045876790577673962020-08-07T23:34:00.002-04:002020-08-07T23:35:25.337-04:00Happy National Lighthouse Day!<div class="separator" style="clear: both; text-align: center;">
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Today is National Lighthouse Day! In 1989 Congress designated this day for annual celebration of the "Act for the Establishment and Support of Lighthouses, Beacons, Buoys and Public Piers," enacted into law on August 7, 1789. (Go <a href="http://www.lighthousefoundation.org/national-lighthouse-day/">here</a> for the text of the original Act.) To help celebrate the occasion, here are some photos of Ram Island Ledge Light, in Casco Bay, Maine. An <a href="http://bishopmadison.blogspot.com/2013/08/some-photos-of-ram-island-ledge-light.html">earlier post on this blog</a> recounts some history behind the creation of this lighthouse and includes some additional photographs.</div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi7-1u4JLO98Y5nHu9-GHBFAmJfxclKFejAS4lV75EYL3rpt9dq-QtybjzMm9ePl7_aTr9aHsYw2bb-tdm9CMLrnFDsSMX4pTR0lb1oAltWTAbXboc2qSGlS6gnWh9TeHl9JYwc9KfUUqk/s1600/Ram+Island+Ledge+Light+Framed+By+Rock+Sculptures+2016+b.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="720" data-original-width="960" height="240" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi7-1u4JLO98Y5nHu9-GHBFAmJfxclKFejAS4lV75EYL3rpt9dq-QtybjzMm9ePl7_aTr9aHsYw2bb-tdm9CMLrnFDsSMX4pTR0lb1oAltWTAbXboc2qSGlS6gnWh9TeHl9JYwc9KfUUqk/s320/Ram+Island+Ledge+Light+Framed+By+Rock+Sculptures+2016+b.jpg" width="320" /></a></div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjPGcrhogdqvyWAMjm81uQrn_t5dQsHE1yvdc65WeAMgyx07P6t4hL3F4ywjdxkDFg50uMXtgPrp-Yg9vXX2XJ0IVSqHtt7_99KIMZsKtF_f7whIGZEdUc35ct_JOnQgK6ie7FJlAzwfRE/s1600/Sailboat+Ram+Island+Ledge+Light+in+Background.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="314" data-original-width="582" height="172" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjPGcrhogdqvyWAMjm81uQrn_t5dQsHE1yvdc65WeAMgyx07P6t4hL3F4ywjdxkDFg50uMXtgPrp-Yg9vXX2XJ0IVSqHtt7_99KIMZsKtF_f7whIGZEdUc35ct_JOnQgK6ie7FJlAzwfRE/s320/Sailboat+Ram+Island+Ledge+Light+in+Background.jpg" width="320" /></a></div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjLQ4xkIiX70Cm6d5rHX9iy5X5AoKwhRdilLn52omUqA0ELtzSobBjZMcUNfV993UWRPz5qCmUlhlabF6eKKBGmyFAJuhxQ2DcK_swHhhF08hUmVtktg5rjbuCIkr5fu3xs1yi6qgaUttA/s1600/Ram+Island+Ledge+Light.PNG" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="591" data-original-width="398" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjLQ4xkIiX70Cm6d5rHX9iy5X5AoKwhRdilLn52omUqA0ELtzSobBjZMcUNfV993UWRPz5qCmUlhlabF6eKKBGmyFAJuhxQ2DcK_swHhhF08hUmVtktg5rjbuCIkr5fu3xs1yi6qgaUttA/s320/Ram+Island+Ledge+Light.PNG" width="215" /></a></div>
Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-75481186379619827312020-07-31T23:59:00.002-04:002020-08-01T01:11:32.664-04:00Winston Churchill Inspects Coastal Defenses, July 31, 1940<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjZDi1WYUACLmTStpzbx-nH__tfaT6xT_d_srqkNhF9XWS4SMLciECsmtiGS8yOvyiflGFbnbXF3zYxVWQ9_IgkV13CjMtOs7W01iAnO_9IZ7pX_ubV0_ocwsgk3p70WbsT9T-8yP_IN6E/s640/Winston+Churchill+July+31+1940+Tommy+Gun.png" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="640" data-original-width="624" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjZDi1WYUACLmTStpzbx-nH__tfaT6xT_d_srqkNhF9XWS4SMLciECsmtiGS8yOvyiflGFbnbXF3zYxVWQ9_IgkV13CjMtOs7W01iAnO_9IZ7pX_ubV0_ocwsgk3p70WbsT9T-8yP_IN6E/s0/Winston+Churchill+July+31+1940+Tommy+Gun.png" /></a></div>
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Winston Churchill inspected British coastal defenses several times during the summer of 1940. France had capitulated on June 25, 1940, and many Britons expected a German invasion by autumn or before. <span style="text-align: left;">This visit took place 80 years ago, on July 31, 1940, just two weeks after Adolph Hitler issued Directive 16, ordering the German military to prepare an invasion of England. </span> Here Churchill examines a U.S.-made Thompson submachine gun, also known as a "Chicago Typewriter," because of the weapon's popularity with Chicago gangsters. Nazi propagandists tried to exploit the image as evidence that Churchill was himself a gangster and reckless warmonger, dropping leaflets on England featuring the image. (<i>See</i> <a href="https://europeancollections.wordpress.com/2014/04/02/world-war-2-propaganda-2/">here</a>) The effort apparently failed, along with Hitler's attempt to convince the British People to pressure their government to make a separate peace. </div>
Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-71040515426427244392020-06-23T22:54:00.000-04:002020-06-24T01:31:28.671-04:00Happy Birthday to Continental T.V. v. G.T.E. Sylvania, 433 U.S. 36 (1977)!<div style="text-align: justify;">
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgg3CKKfcvqTxgjSMxr-k15gqUIXgTxQdWiV2LYQhg_RckCqzitAolcXxiVZoeU_W50oz2Pj15c_qLbJvOvYZONyaj2KTE0_WNZDp-zwgK9taBw1Z2DAJzLv-gkl3fmE9kMHpUfwQDSiis/s1600/800px-US_Supreme_Court_Justice_Lewis_Powell_-_1976_official_portrait.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1040" data-original-width="800" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgg3CKKfcvqTxgjSMxr-k15gqUIXgTxQdWiV2LYQhg_RckCqzitAolcXxiVZoeU_W50oz2Pj15c_qLbJvOvYZONyaj2KTE0_WNZDp-zwgK9taBw1Z2DAJzLv-gkl3fmE9kMHpUfwQDSiis/s320/800px-US_Supreme_Court_Justice_Lewis_Powell_-_1976_official_portrait.jpg" width="246" /></a></div>
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<b>Got his way! </b></div>
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Today is the 43rd anniversary of the Supreme Court's decision in Continental T.V. v. GTE Sylvania, 433 U.S. 36 (1977). The decision overruled United States v. Arnold Schwinn & Co., 388 U.S. 365 (1967). <i>Sylvania</i> also<i> </i>reflected a sea change in both the Supreme Court's normative account of the Sherman Act and the type of economic theory the Court would employ to implement that vision when determining whether challenged agreements were "in restraint of trade" within the meaning of the <a href="http://bishopmadison.blogspot.com/2015/07/happy-birthday-to-sherman-act.html">Sherman Act</a>. While the decision dealt with a garden variety non-price vertical restraint, <i>Sylvania</i>'s rationale had potentially major implications for various facets of antitrust law and policy. This post discusses what was at stake in <i>Sylvania</i>, the Court's resolution of the dispute as well as the potential implications of that resolution. </div>
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1. Readers will recall from a <a href="http://bishopmadison.blogspot.com/">recent post</a> that <i>Schwinn</i> had condemned as unlawful <i>per se </i>vertical exclusive territories and reservations of customers. The decision had announced an exception, however, in those cases in which such limitations appeared in a consignment agreement, pursuant to which the manufacturer retained title to the product until its distribution to a purchaser. The Court had also affirmed the district court's finding that Schwinn's consignment agreements including such restrictions were not unreasonable restrictions on competition. The Court concluded that Schwinn faced significant rivalry from other brands and that the firm had adopted such restrictions as part of a larger effort to fend off such interbrand rivalry. Unfortunately the Court did not explain how such restrictions could advance interbrand rivalry or why the legality of such restrictions should turn on the passage of title. Finally, the Court did not mention the foundational decision in Northern Pacific Railway Co. v. United States, 356 U.S. 1 (1958), which had articulated the standard governing when courts should condemn a given category of restraint. <i>Northern Pacific Railway</i> had held that <i>per se</i> condemnation was only appropriate if the category of restraint in question <i>both </i>produced<i> a </i>pernicious effect on competition<i> and, </i>in addition<i>, </i>lacked redeeming virtues<i>.</i></div>
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2<i>. Schwinn's per se</i> rule was a manifestation of the so-called "inhospitality tradition" of antitrust. During this era, courts and the enforcement agencies were greatly suspicious of so-called "non-standard contracts," that is, agreements that constrained the discretion of purchasers after passage of title. As <a href="http://bishopmadison.blogspot.com/2014/12/robert-bork-and-transaction-cost.html">previously explained</a>, neoclassical price theory had no efficiency-based explanation for such agreements. Thus, scholars, courts and agencies naturally concluded that such agreements, which undeniably restricted competitive rivalry, were efforts to obtain or exercise market power. Moreover, the Court also saw antitrust regulation as a tool for enhancing the "freedom" of traders from contractual limitations on their autonomy. In Albrecht v. Herald Co., 390 U.S. 145 (1968), for instance, the Court condemned as unlawful <i>per se</i> <i>maximum</i> vertical price fixing, which <i>reduced</i> consumer prices, because such agreements would "'cripple[] the freedom of traders and thereby restrain their ability to sell in accordance with their own judgment.''" <i>Id</i>. at 152 (<i>quoting</i> Kiefer-Stewart Co. v. Seagram & Sons, Inc., 340 U.S. 211, 213 (1951)). <i>See also</i> Alan J. Meese, <i>Economic Theory, Trader Freedom and Consumer Welfare: State Oil v. Khan and the Continuing Incoherence of Antitrust Doctrine</i>, 84 Cornell L. Rev. 763 (1999) Taken together, neoclassical price theory and a normative commitment to trader freedom combined to drive judicial expansion of various <i>per se</i> bans condemning conduct previously analyzed under a fact-intensive and forgiving rule of reason. <i>See </i>Alan J. Meese, <i>Price Theory, Competition and the Rule of Reason</i>, 2003 Illinois L. Rev. 77, 124-34.</div>
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3. The inhospitality approach was not confined to vertical cases In United States v. Topco, 405 U.S. 596 (1972), the Court condemned horizontal restrictions that were ancillary to the formation of a joint venture among independent grocery chains. The joint venture created numerous private label products which it distributed to member stores, which competed against large national chains who had created and advertised their own private label products. The agreement creating the venture assigned each member an exclusive territory within which only it could distribute the venture product. Relying on the work of Robert Bork, the defendants contended that such exclusivity could allow members to recapture the benefits of investments they made promoting the venture's product and thus enhanced interbrand competition <i>vis a vis</i> the giant chains. As a result, they said, such restrictions could produce redeeming virtues, thereby thwarting <i>per se</i> condemnation under the <i>Northern Pacific Railway</i> standard. The Supreme Court rejected this argument. however. Although the Court quoted the <i>Northern Pacific Railway</i> standard with approval, it opined that the Sherman Act was the "Magna Carta of Free Enterprise," and that the restrictions before it interfered with each member's "freedom to compete" however it saw fit. Thus, concern over the autonomy of traders precluded the Court from recognizing the promotion of interbrand competition as a redeeming virtue.</div>
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4. Before <i>Schwinn</i>, Sylvania, which at the time had a one percent share of the market,<i> </i>revamped its system of distribution in an effort to reverse flagging T.V. sales. Among other things the firm included so-called "location clauses" in its distribution agreements. These clauses specified the location(s) from which dealers could sell Sylvania products after title had passes and precluded such dealers from employing a different location without Sylvania's consent. Sylvania terminated Continental T.V. after the latter opened a new store in Sacramento over Sylvania's objection. Continental challenged this termination, claiming that the agreement limiting the locations from which it could sell was unlawful <i>per se</i>. The district court agreed, and instructed the jury to find for Continental if it found the existence of such an agreement governing products whose title had passed, without regard to whether the agreement was reasonable.<br />
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5. Sylvania appealed to the Ninth Circuit, which reversed in an <i>en banc</i> decision. <i> See</i> 537 F.2d 980 (9th Cir. 1976) (<i>en banc</i>). The court did not dispute that <i>Schwinn</i> condemned vertical exclusive territories or restrictions on the customers to whom dealers would sell. However, it sought to distinguish <i>Schwinn</i> on two grounds. First, the court emphasized that compared to Schwinn, Sylvania was a relatively small participant in the relevant market, with a market share that grew from one percent to five percent after it adopted the challenged restraints. Second, the court claimed that a location clause was less restrictive of competitive rivalry than the restrictions condemned in <i>Schwinn, </i>thereby suggesting a different application of the<i> per se </i>rule<i>.</i></div>
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6. The Ninth Circuit's decision was not unanimous. Judge Browning, among others, dissented. Among other things, he contended that <i>Schwinn</i> rested upon concern for the autonomy of dealers, independent of the economic impact of the restraints. As a result, he said, the majority's effort to distinguish <i>Schwinn</i> was not successful, because location clauses limited dealer autonomy as well. To bolster this argument, he quoted <i>Topco</i>'s assertion that the Sherman Act was the Magna Carta of Free Enterprise and thus protected the freedom of individual traders to ignore agreements limiting their economic autonomy. <i>See</i> 537 F.2d at 1015.</div>
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7. Continental T.V. sought review of the Ninth Circuit's decision in the Supreme Court. <i> </i>The Court almost said no<i>. </i> A grant of <i>certiorari</i> requires four votes. Justice Rehnquist was recused, leaving only eight available votes. Initially the Court balked, with only three justices (Brennan, Powell and Stevens) voting to grant review. However, Justice Powell (pictured above) asked that the case be relisted and then lobbied two colleagues --- Justices White and Stewart --- for the necessary fourth vote. He also threatened to issue a dissent if his colleagues voted to deny <i>certiorari</i>. Andrew Gavil's excellent historical work details this process, based upon a review of Justice Powell's papers. <i>See</i> <a href="https://heinonline.org/HOL/Page?handle=hein.journals/antitruma17&id=1&collection=journals&index="><i>Sylvania</i> <i>and the Process of Change in the Supreme Court</i>, 17 Antitust 8 (Fall 2017)</a>. Among other things Professor Gavil concludes that it is unclear "why Powell became such an active, persistent and vocal advocate for using <i>Sylvania</i> to reconsider <i>Schwinn</i>."<br />
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8. The case featured a dispute between leading members of the Harvard School of Antitrust. For instance, Lawrence Sullivan co-authored Continental T.V.'s brief in the Supreme Court. Sullivan's credentials were impeccable. He received his J.D. from Harvard in 1951 and held a Chair at the University of California at Berkeley. His leading treatise on antitrust would appear that same year. <i>See</i> Lawrence Anthony Sullivan, Antitrust (1977). This work was a classic manifestation of the Harvard School approach to antitrust The book acknowledged Sullivan's intellectual debt to Joe Bain, Donald Turner and Philip Areeda, all faculty at Harvard and members of the Harvard School. Turner, of course, had authorized the case again Schwinn and had co-authored the government's brief in the Supreme Court. The book's four page survey of the "Literature of Antitrust" did not mention the work of Chicagoans Robert Bork, Harold Demsetz, Yale Brozen or Lester Telser. Instead, these pages invoked the work of Joe Bain, Donald Turner, Phillip Areeda and Carl Kaysen While Sullivan mentioned Richard Posner's 1974 casebook, he attributed its content to "an economic point of view and, indeed, a very particular one, representative of the 'Chicago School," a point of view which is narrower, especially in its approach to vertical issues, than either the law itself or most industrial organization economists would countenance." <i>See id</i>. at 14-15. Sullivan also cited work by scholars who advocated more interventionist antitrust policy than the Harvard School.</div>
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9. Petitioner's brief sought reversal of the decision below, relying unapologetically on <i>Scwhinn</i>. In so doing, the brief emphasized the importance of the freedom of traders.<br />
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"Independent small businessmen who have made an investment of capital, energy and hope in their own enterprises, ought to be able to make their crucial decisions as to where to sell and what price to charge for their own merchandise, free of coercion, collusion or exclusionary practices. That is what the free enterprise system, which the Sherman Act protects, is all about."<br />
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<i>See</i> Brief for Petitioner in Continental T.V. v. G.T.E. Sylvania, 433 U.S. 36 (1977), No. 76-15 at 38-39.<br />
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The challenged restriction was not collusive or exclusionary, thereby suggesting that Sullivan and his co-authors believed the location clause was coercive. Indeed, the same brief asserted 20 pages later that rule of reason scrutiny of such restraints would countenance "administered judgement about the ideal development of outlets across the nation" and result in "paternalistic overreaching." (<i>Id</i>. at 58.)<br />
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10. Sullivan's was not the only voice of the Harvard School, however. Donald Turner also co-authored a brief, this time on behalf of the Motor Vehicle Manufacturer's Association as <i>Amicus Curiae</i>. The brief contended that <i>Schwinn</i>'s <i>per se</i> rule was not justified and should be overruled. Among other things the brief recognized what the government and Court had ignored in <i>Schwinn</i>, namely, that such restraints could counteract the propensity of dealers to free ride on each others' promotional efforts and help ensure optimal promotion by a manufacturer's dealers. </div>
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11. In an opinion by Justice Powell, the Court chose Turner's version of the Harvard School over Sullivan's. The Court could have simply affirmed on the basis articulated by the Ninth Circuit. Indeed, Justice White's concurrence advocated just such an approach. <i>See</i> <i>Sylvania</i>, 433 U.S. at 59-71 (White, J. concurring). However, the Court, per Justice Powell, rejected the Ninth Circuit's logic. Among other things he agreed with Continental T.V. that there was no meaningful economic distinction between location clauses, on the one hand, and the restrictions invalidated in <i>Schwinn</i>, on the other. As a result, he said, the Court could only affirm the judgment below if it overruled <i>Schwinn</i>.<br />
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12. The Court also criticized the distinction <i>Schwinn</i> had drawn between vertical restraints that were part of consignment agreements and those that accompanied outright sales. Both restraints, the Court said, had identical effects on competitive rivalry, and there was no reason the Sherman Act should treat one restraint more favorably than the other merely because of the form of the transaction. Thus, the Court said, the Sherman Act should either condemn all such restraints outright or subject all to fact-intensive rule of reason scrutiny.</div>
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13. The Court then proceeded to determine which unified standard should apply. The Court chided <i>Schwinn</i> for its abupt and unexplained departure from United States v. White Motors, 372 U.S. 253 (1963), which had declined to condemn similar restraints because it know too little about their economic impact, including the propensity to produce redeeming virtues. The Court also chided <i>Schwinn </i>for failing to mention or apply the <i>Northern Pacific Railway</i> test for <i>per se</i> condemnation. Rule of reason was the default position, Justice Powell said, and the Court could only condemn a type of restraint as unlawful <i>per se</i> if the proponent of such treatment met the "demanding standards" of the <i>Northern Pacific Railway</i> test. The plaintiffs could not satisfy these standards, he said. </div>
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14. The Court recognized, of course, that location clauses and exclusive territories reduced intrabrand competition. During the inhospitality era, such realization would have sufficed to condemn a type of restraint. However, partly due to Turner's amicus brief, the Court rejected price theory's account of such restraints. <i>See</i> Gavil, <i>Sylvania and the Process of Change</i>, 17 Antitrust at 16-17 Instead, the Court turned to what modern scholars call Transaction Cost Economics. Invoking Robert Bork's 1966 article on horizontal and vertical ancillary restraints, the Court noted that manufacturers wished to maintain intrabrand competition as needed to distribute their products. <i>See </i>Robert H. Bork, <i>The Rule of Reason and the Per Se Concept: Price Fixing and Market Division</i>, 75 Yale L. J. 373 (1966). The Court also noted that, "because of market imperfections such as the 'free rider effect,'" a "purely competitive market" might not produce various services necessary to protect the manufacturer's goodwill and ensure proper distribution of its product. <i>See Sylvania</i>, 433 U.S. at 55. The Court also rejected the plaintiff's claim that expenditures on advertising were socially wasteful because they simply accentuated product differentiation and thus enhanced manufacturers' market power. <i>See Sylvania</i>, 433 U.S. at 57, n. 25 (rejecting contention that "a large part of the promotional efforts resulting from vertical restrictions does not socially valuable information about product availability, price, quality, and services"). Such restraints could overcome such market imperfections, ensure a more efficient level of promotional expenditures and thus enhance interbrand competition. This reasoning, of course, replicated the Chicago School's account of such restraints found in Bork's 1966 work, Richard Posner's 1976 monograph as well as a 1975 article by Posner. <i>See</i> Richard A. Posner, Antitrust: An Economic Perspective (1976); Richard A Posner, <i>Antitrust Policy and the Supreme Court</i>: <i>An Analysis of the Restricted Distribution, Horizontal Merger and Potential Competition Decisions</i>, 75 Columbia L. Rev. 282 (1975). (<i>See also </i><a href="http://bishopmadison.blogspot.com/2012/12/robert-bork-antitrust-revolutionary.html">here</a>) (describing how <i>Sylvania</i> Court embraced Bork's economic account of such restraints). The transaction cost account of such restraints also undermined the petitioner's claim that such restraints were necessarily coercive, given that non-standard agreements the overcome market failures are presumptively voluntary. <i>See</i> Alan J. Meese, <i>The Market Power Model of Contract Formation: How Outmoded Economic Theory Still Distorts Antitrust Doctrine</i>, 88 Notre Dame L. Rev. 1291 (2013).</div>
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15. At this point one might be tempted to conclude that changed economic theory alone accounted for the reversal of <i>Schwinn</i>. Certainly such a change was <i>necessary</i>. However, it was not sufficient. After all, Bork's work had been in the public domain for over a decade. As noted above, the <i>Topco</i> defendants had expressly contended that the challenged restraints were ancillary and might produce redeeming virtues because they could encourage members of the venture to invest sufficient resources in promotion, invoking Bork's 1966 article. But of course the Court had rejected that argument, reasoning that the autonomy of individual traders was of paramount concern, regardless of the potential favorable impact of such restraints on interbrand competition. As noted above, Judge Browning had invoked <i>Topco</i> to support his view that <i>Schwinn</i> rested upon a strong concern for the autonomy of traders. </div>
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The <i>Sylvania</i> Court expressly rejected Judge Browning's argument, however. According to the Court:</div>
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"Competitive economies have social, political as well as economic advantages, but an antitrust policy divorced from market considerations would lack any objective benchmarks. As Mr. Justice Brandeis reminded us: 'Every agreement concerning trade, every regulation of trade, restrains. To bind, to restrain, is of their very essence.'"</div>
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<i>Sylvania</i>, 433 U.S. at 53, n. 21 (<i>quoting</i> Chicago Board of Trade v. United States, 246 U.S. 231, 238 (1918)).<br />
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16. Of course, the Sherman Act had remained unchanged since 1967, when the Court announced <i>Schwinn</i>. But the composition of the Court had changed considerably. Chief Justice Warren and Justices Douglas, Fortas, Clark and Black, who were members of <i>Schwinn</i>'s 5-2 majority, had left the Court, as had Justice Harlan. Chief Justice Burger, and Justices Marshall, Rehnquist, Powell, Blackmun and Stevens had since joined the Court. All but Marshall had been appointed by Republican Presidents. All but Marshall and Rehnquist, the latter of whom had recused himself, joined the majority opinion overruling<i> Schwinn</i>. These five justices apparently embraced a different normative conception of the Sherman Act than those who had joined <i>Schwinn</i>, <i>Topco</i> and <i>Albrecht</i>, for instance.<br />
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17. Like all decisions, no matter how momentous, <i>Sylvania </i>left several questions open. Indeed, the Court qualified its holding in two important respects. For instance, the Court purported to distinguish the non-price restraints before it from horizontal restraints such as those condemned in <i>Topco. </i>The Court also distinguished non-price vertical restraints from minimum resale price maintenance, purporting at least to reaffirm the <i>per se</i> rule against the latter. According to Professor Gavil, Justice Powell had to grant such concessions to retain five votes for his majority opinion. Shortly after the decision, however, contemporary commentators wondered if these distinctions would survive future cases. For instance, if the propensity of a restraint to overcome a market failure and induce promotion qualified as a redeeming virtue in the vertical context, there was no apparent reason to reject a similar conclusion simply because a restraint is, like so many beneficial restraints, horizontal. <i>See</i> Martin Louis, <i>Restraints Ancillary to Joint Ventures and Licensing Agreements: Do Seally and Topco Logically Survive Sylvania and Broadcast Music?. </i>66 Virginia L. Rev<i>. </i>897 (1980). Only time would tell whether whether the Court would take <i>Sylvania</i>'s rationale to its logical conclusions in other doctrinal contexts. </div>
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Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-82964999015098962252020-06-12T23:59:00.002-04:002020-06-13T00:02:28.765-04:00Happy Birthday to United States v. Arnold Schwinn & Co., 388 U.S. 365 (1967)!<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg55t06C-PCuVtJNHGJOzFzhLD8TzI327EVrjxhvfb6cbH5yympmTsWMxfUfy_gUbWP_8IWySO2pjyYl_t3UCROG1cEeFoA4rsWyhgS5tkTwCHri0XlDe3SAtfvEMD2Q-6oyam7BQkqb6s/s1600/Robert+Bork.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="360" data-original-width="305" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg55t06C-PCuVtJNHGJOzFzhLD8TzI327EVrjxhvfb6cbH5yympmTsWMxfUfy_gUbWP_8IWySO2pjyYl_t3UCROG1cEeFoA4rsWyhgS5tkTwCHri0XlDe3SAtfvEMD2Q-6oyam7BQkqb6s/s320/Robert+Bork.jpg" width="271" /></a></div>
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<b><i>Vox Clamantis in Deserto</i> (<i>circa</i> 1966)</b></div>
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Fifty-three years ago today the Supreme Court released its opinion in United States v. Arnold Schwinn & Co., 388 U.S. 365 (1967). The decision banned exclusive territories and other non-price intrabrand restraints as unlawful <i>per se,</i> unless the manufacturer that obtained the restrictions retained title to the products governed by the restraint. <i>Schwinn</i> exemplified the inability of expert enforcement agencies to absorb recent insights from lower court decisions and evolving economic theory necessary to understand the actual economic impact of non-standard contracts. This post describes the jurisprudential background of <i>Schwinn </i>as well as the role (or not) that evolving economic theory played in motivating and informing the decision.</div>
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1. The Sherman Act prohibits contracts "in restraint of trade of trade or commerce among the several States." In Standard Oil v. United States, 221 U.S. 1 (1911), the Supreme Court held that the Act prohibits only those agreements that restrain trade "unreasonably." (For a detailed summary of the <i>Standard Oil</i> decision, go <a href="http://bishopmadison.blogspot.com/2011/05/happy-birthday-standard-oil-v-united.html">here</a>.) A restraint was unreasonable, in turn, if it produced monopoly or the consequences of monopoly. The Court defined these negative consequences as higher prices, reduced output and/or reduced quality. The Court also identified two categories of unreasonable agreements. Those unreasonable because of their "nature or character," and those unreasonable because of the "surrounding circumstances." Modern courts refer to restraints in the first category as "unlawful per <i>se</i>." Courts assess restraints that are not unlawful <i>per se </i>under a fact-intensive Rule of Reason.<br />
<b><br /></b>2. Contracts are unlawful <i>per se</i> if they are part of a category of agreements that: (1) produce a "pernicious effect on competition" and, in addition, (2) "lack any redeeming virtues." <i>See </i>Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5-6 (1958). When implementing this standard, the Court has effectively equated a pernicious effect on competition with any reduction in rivalry between the parties to the restraint. As a result, the outcome of the application of this standard almost always turns on whether restraints in the given category could produce "redeeming virtues." <i>See</i> <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=909241">Alan J. Meese, <i>Price Theory, Competition and the Rule of Reason</i>, 2003 Illinois L. Rev. 77, 96.</a> Both mergers and naked price fixing extinguish competitive rivalry. But mergers survive <i>per se</i> condemnation because they may produce redeeming virtues.</div>
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3. During the 1950s and 1960s, the nation's expert enforcement agencies condemned non-price intrabrand restraints, both horizontal and vertical, regardless of the market position of the parties. For instance, the FTC challenged exclusive territories obtained by Sandura, a struggling manufacturer of vinal floor covering products. <i>See</i> Sandura Co. v. FTC, 339 F.2d 847 (6th Cir. 1964). The Department of Justice challenged exclusive territories and reservations of customers obtained by the White Motor Company. <i>See </i>White Motor Co. v. United States, 372 U.S. 253 (1963). Both agencies claimed that such restraints reduced rivalry (as they certainly did) <i>and</i> could not produce redeeming virtues, with the result that both deserved <i>per se</i> condemnation.<br />
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Such restraints would later become known as non-standard contracts, because they did more than just mediate passage of title between buyer and seller. <i>See</i> Oliver E. Williamson, <i>Assessing Contract</i>, 1 J. L., Econ. & Org. 177, 185-188 (1985) (distinguishing "classical market contracting" from "nonstandard contracts" such as tying, franchise restrictions, customer and territorial restrictions, minimum rpm and exclusive dealing). The agencies' condemnation of these and other non-standard contracts flowed naturally from the dominant economic framework of the time, so-called Neoclassical Price Theory. As the late Oliver Williamson explained, Price Theory only recognized technological efficiencies. By their nature, these efficiencies, such as economies of scale, arose solely within the boundaries of a firm. This incomplete and erroneous account of efficiencies precluded economists from recognizing that non-standard contracts that limited the discretion of trading partners after passage of title could produce cognizable benefits. Such agreements all reduce competitive rivalry one way or the other. Because economists and others could not imagine any beneficial consequences of such restraints, they naturally inferred that firms entered such agreements in an effort to obtain or exercise market power. Put in legal terms, such agreements had a pernicious effect on competition and lacked any redeeming virtues. <i>See Northern Pacific Railway Co</i>. The result was the so-called "Inhospitality Tradition" of antitrust law, whereby courts and agencies presumed all non-standard agreements unlawful and very rarely allowed rebuttal of this presumption. <i>See</i> Oliver E. Williamson, <i>The Economics of Governance</i>, 95 Amer. Econ. Rev. 1, 5 n. 8 (2005) (describing origins of this term) (<i>citing</i> <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=846607">Alan J. Meese, Intrabrand Restraints and the Theory of the Firm, 83 N.C. L. Rev. 5 (2004)</a>)</div>
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4. Beginning in 1960, economists and law professors began to push back against Price Theory's account of non-standard contracts. In 1960, Lester Telser famously argued that minimum resale price maintenance could prevent a manufacturer's dealers from free riding on each others' promotional expenditures and thus ensuring appropriate expenditures on advertising and promotion. Six years later, Robert Bork (pictured above) contended that exclusive territories were properly understood as ancillary restraints. <i>See</i> <a href="https://digitalcommons.law.yale.edu/fss_papers/3159/"><i>The Rule of Reason and the Per Se Concept: Price Fixing and Market Division II</i>, 75 Yale L. J. 373 (1966)</a>. This under-appreciated article rehabilitated William Howard Taft's doctrine of ancillary restraints, giving the doctrine economic content within a normative framework of wealth maximization. <i>See</i> United States v. Addyston Pipe & Steel Co., 85 F. 271 (6th Cir. 1899). Bork also invoked Ronald Coase's conclusion that business firm are simply a particular form of contractual integration and opined that partial contractual integration could perform the same function as complete integration. <i>See</i> Bork, <i>Price Fixing and Market Division</i>, 75 Yale L. J. at 384, n. 29 (<i>citing</i> Ronald H. Coase, <i>The Nature of the Firm</i>, 4 Economica (n.s.) 318 (1937)). <i>See also</i> <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2529703">Alan J. Meese, <i>Robert Bork's Forgotten Role in the Transaction Cost Revolution</i>, 79 Antitrust L. J. 953 (2014)</a>. Fully-integrated manufacturers naturally engaged in profit-maximizing advertising and promotion without incurring antitrust liability. However, some manufacturers might choose to rely upon independent dealers to distribute their products. Granting such dealers an exclusive territory, Bork said, would allow dealers to capture the benefits of their promotional investments, thereby inducing such dealers to engage in the same amount and type of promotion as a fully-integrated firm. (For additional elaboration of Bork's contributions to Antitrust thinking, <i>see</i> <a href="http://bishopmadison.blogspot.com/2012/12/robert-bork-antitrust-revolutionary.html">here</a>).<br />
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5. Even before Bork's breakthrough lawyers were making similar arguments about the propensity of such restraints to produce redeeming virtues. In <i>White Motors</i>, for instance, the defendants contended that exclusive territories would ensure that "dealers who have spent valuable time 'pre-selling' a customer --- <i>i.e</i>., softening him up for a White sale instead of a GM or Ford sale --- will not lose the legitimate reward of their labor to another White dealer who jumps territorial boundaries at a strategic moment and snatches away the pre-sold customer." Sandura echoed these contentions in an amicus brief filed in <i>White Motors</i>. The company described its efforts to recruit new distributors in an effort to reverse competitive failure. Such distributors, it said, would have to do "an extensive job of promoting [the product]" and "pay for the bulk of advertising and other promotional expenditures." (p. 8) Exclusive territories, the company said, would ensure that dealers could capture the benefits of such investments. <i>Id</i>.<br />
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6. These arguments thwarted the agencies' efforts to extend the <i>per se</i> rule to these restraints. In <i>White Motor </i>the Court refused to the declare the challenged restraints unlawful <i>per se</i>. Although the Court did not expressly mention the problem of free riding, it did opine that such restraints "may be allowable protections against aggressive competitors or the only practicable means a small company has for breaking into a staying in business." <i> Id.</i> at 263. The Court thus rejected the Department's claim that such restraints could never produce redeeming virtues, because it did "not know enough about the economic and business stuff out of which these arrangements emerge to be certain." <i>Id</i>. at 263. Instead, it remanded to the district court for additional findings on this question. Shortly thereafter, in <i>Sandura</i>, the Sixth Circuit rejected the FTC's contentions. The court observed that "distributors are unwilling to engage in extensive advertising and promotion of a product if the final sales may be made by another distributor." As a result, it said, the "closed territories made for the vigor and health of Sandura, increasing the competitive good that flows from interbrand competition, without any showing of detriment to intrabrand competition." Thus, the court said, the Commission's finding that the practice was "without justification or redeeming virtue," was "without support in the evidence." In his 1966 article, Bork instanced <i>Sandura</i> as the lower court decision that "came nearer to the mark" at understanding the rationale of such restraints than other lower courts that had also rejected <i>per se</i> condemnation. <i>See</i> Bork, <i>Rule of Reason and the Per Se Concept</i>, 75 Yale L. J. at 433.<br />
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7. A neutral observer in 1967 may have reasonably predicted that the Supreme Court would soon expressly adopt the reasoning of <i>Sandura</i> and hold that non-price intrabrand restraints were subject to rule of reason scrutiny. But then came <i>Schwinn</i>. The government claimed that Schwinn had imposed exclusive territories on its wholesalers and also prevented retailers from reselling Schwinn's products to unapproved dealers. The trial court found that exclusive territories at least were unlawful <i>per se</i> with respect to those products to which Schwinn no longer retained title. By contrast, when Schwinn <i>did</i> retain title, as with a consignment agreement, such restraints survived <i>per se</i> condemnation and were instead analyzed under the Rule of Reason. After conducting such an analysis, the court held that the United States had failed to prove that Schwinn's consignment agreements were unreasonable.<br />
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The United States appealed, hoping to overturn the trial court's determination that the consignment restraints were not unreasonable. Schwinn did not cross-appeal, thereby leaving in place the district court's <i>per se</i> condemnation of exclusive territories governing the disposition of products after title had passed. Two antitrust all stars helped draft the government's brief: Donald Turner, a Yale-educated economist on leave from Harvard Law School and leading the Antitrust Division, and Richard Posner, a recent Harvard Law School graduate in the Solicitor General's office. The brief claimed that the restrictions were unreasonable because they limited price competition between wholesalers and retailers without producing any offsetting benefits. To bolster the claim that no benefits were present, the brief contended that: "integration into distribution may sometimes benefit the economy by leading to cost savings, agreements to retail prices or impose territorial restrictions of limited duration or outlet limitations of the type involved here have never been shown to produce comparable economies." (p. 50).<br />
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8. It should be noted that the opinion of the Antitrust Division of the Department of Justice was not unanimous. Instead, Oliver Williamson, a young economist serving as a special assistant to Donald Turner, objected to the Turner/Posner position. In 1999, Williamson conceded that, despite his objection, he did not have an alternative theory that explained such restraints. <i>See</i> Oliver E. Williamson, <i>Some Reflections</i>, in Firms, Markets and Hierarchies, 32, 32 (Glenn R. Carrol and David E. Teece, Editors) (1999). It thus does not seem that Williamson invoked the reasoning of Bork's very recent article on the subject. Unfortunately Turner and Posner persisted despite Williamson's objection.<br />
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9. Schwinn's own brief asserted that it adopted its system so as to "encourage local sales effort by small retailers, including local advertising, salemanship and all forms of promotional advertising, as a competitive weapon against the heavy competitive advertising of large, well-financed mass merchandisers (<i>i.e.</i>, Sears, Wards, etc.)." (p. 94). It did not, however, contend that dealers would refuse to promote Schwinn's products without exclusivity. Schwinn mentioned <i>Sandura</i> once in its 114 page brief, and then only as part of a long string cite of decisions that had declined to condemn non-price restraints as unlawful <i>per se</i>.<br />
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10. In a lengthy and sometimes confusing opinion, the Court abandoned <i>White Motors</i> and implicitly rejected the logic of <i>Sandura</i>. Even though Schwinn had conceded the issue, the Court reached out to opine that exclusive territories are unlawful <i>per se</i>. The Court did not mention the <i>Northern Pacific Railway</i> test for <i>per se</i> illegality or the concept of redeeming virtues. Nor did it take issue or even allude to arguments made in <i>White Motor</i> and <i>Sandura </i>that such restraints could encourage dealers to expend sufficient resources on promotion. Instead, the Court's brief analysis of the question invoked Dr. Miles v. John D. Park & Sons, 220 U.S. 373 (1911), which had banned minimum resale price maintenance. Exclusive territories and other limits on resale, the Court said, were analogous to minimum rpm and should suffer the same fate. <i>See Schwinn,</i> 388 U.S. at 378.<br />
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11. It may be difficult to fault the Schwinn Court for failing to recognize and incorporate Bork's analysis. At the same time, decisions such as <i>Sandura</i> pointed in the right direction. Moreover, the Court would subsequently expressly ignore Bork's analysis in United States v. Topco, 405 U.S. 596 (1972).<br />
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12. Nonetheless, Schwinn still prevailed. After a lengthy exegesis, the Court finally turned to the question actually before it, <i>viz</i>., whether the intrabrand restrictions obtained via consignment agreements were unreasonable. In three paragraphs, the Court affirmed the district court's holding rejecting the government's rule of reason case. <i>See Schwinn</i>, 388 U.S. at 380-82. Among other things, the Court noted that Schwinn's market share was declining in the face of stiff competition, including from mass merchandisers, the agreements allowed dealers to carry competing brands of bicycles, and consumers had access to bicycles sold to numerous competitors. At the same time, the Court's analysis left the reader wondering how, exactly, the restraints themselves helped bolster Schwinn's competitive position <i>vis a vis</i> rivals.<br />
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13. The <i>Schwinn</i> opinion sowed the seeds for future critiques. For instance, the Court did not articulate the methodology it employed to determine whether restraints are unlawful <i>per se</i>. Nor did the Court explain why that (unexplained) methodology treated the passage of title as dispositive. Finally, the Court's rule of reason analysis rested in part on an assumption that furthering interbrand competition is a redeeming virtue, thus raising the possibility that other restraints that might produce such benefits would thereby avoid <i>per se</i> condemnation.<br />
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Stay tuned for "the rest of the story."</div>
Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-51411158873055256552019-08-07T23:46:00.000-04:002019-08-07T23:46:36.461-04:00Happy National Lighthouse Day! <div class="separator" style="clear: both; text-align: justify;">
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In honor of National Lighthouse Day, here are some recent photos of Ram Island Ledge Light, near Portland Harbor and Peaks Island, Maine. For other photos on this blog of the same lighthouse go <a href="http://bishopmadison.blogspot.com/2013/08/some-photos-of-ram-island-ledge-light.html">here</a> and <a href="http://bishopmadison.blogspot.com/2018/08/happy-national-lighthouse-day.html">here</a>. Stay tuned for some additional photos later in the week.</div>
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<br />Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-52771172511988452242018-08-29T23:40:00.002-04:002018-08-29T23:40:35.032-04:00Contra Chemerinsky on "Original Intent:" Why the Constitution’s Original Meaning Does Not Preclude a Female President <div style="text-align: justify;">
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<b>Explained Why the Constitution is Binding</b></div>
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<b>Rejected "Original Intent" in favor of "Original Public Meaning"</b></div>
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<b>Qualified to Be President Under Article II, Sec. 1, cl. 5</b></div>
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In a <a href="https://www.sacbee.com/opinion/op-ed/article216681530.html">recent Op-Ed</a> in the Sacramento Bee, Erwin Chemerinsky, the Dean of Berkeley Law School, criticizes Judge Brett Kavanaugh, President Trump's nominee for the U.S. Supreme Court, for his adherence to originalism as a method of interpretation. Invoking Chief Justice John Marshall's statement that "the Constitution must be adapted for ages to come," Chemerinsky claims that "orginalism is bad for justice." He elaborates as follows:</div>
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"If constitutional interpretation must follow the specific intentions of the framers, the results often will be unacceptable. . . . For example, Article II refers to the President and the Vice President as 'he.' The framers undoubtedly intended that those holding these offices would be men."<br />
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Chemerinsky is wrong in three different ways. First, he badly misdescribes the methodology of originalism. Second, election of a female president would in no way contradict the original meaning of the Constitution. Third, originalism does not prevent adaption of the Constitution to new circumstances. </div>
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<b>First</b>, proponents of originalism expressly and repeatedly <i>reject</i> the "specific intentions of the framers" as the goal of interpretation. Instead, originalism seeks to discern and enforce the "original public meaning" of statutory and constitutional texts. More than two decades ago, Justice Antonin Scalia (pictured above), delivering the Tanner Lecture at Princeton University, rejected the claim that judges should "give effect to the 'intent of the legislature.'" Instead, he said, Judges should seek the objective meaning of the text that the legislature actually enacted. Thus, he quoted with approval the statement by Justice Holmes, subsequently approved by Justice Robert Jackson, that "[w]e do not inquire what the legislature meant; we ask only what the statute means." <i>See</i> Antonin Scalia, <i>A Matter of Interpretation</i>, 16, 23 (Princeton 1997). <i>See also</i> Oliver Wendell Holmes, <i>Collected Legal Papers</i>, 207 (1920), <i>quoted</i> in Schegman Bros. v. Calvert Distillers Corp., 341 U.S. 384, 397 (1951) (Jackson, J., concurring). In the same lecture, Justice Scalia endorsed the very same approach to constitutional interpretation. <i>See</i> Scalia, <i>A Matter of Interpretation</i>, at 38 ("What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, <i>not what the original draftsmen intended</i>.") (emphasis supplied).<br />
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The original meaning approach to Constitutional interpretation follows directly from the rationale for treating the Constitution as binding on future generations, a rationale that Chief Justice John Marshall (pictured above) articulated in Marbury v. Madison, 5 U.S. 137, 176-77 (1803). According the Marshall:<br />
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"That the People have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness, is the basis upon which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it be frequently repeated. The principles, therefore, so established are deemed fundamental. And, as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.<br />
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This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop there or establish certain limits not to be transcended by those departments.<br />
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The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those powers may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purposes are those powers committed to writing, if these limits may at any time be surpassed by those intended to be restrained?"<br />
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. . . . The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable whenever the legislature shall choose to alter it.."<br />
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Thus, the Constitution is binding because the People, the ultimate repository of sovereignty, adopted it, enacting permanent, fundamental principles that both empower but also limit the Congress, the President, and Judges. Judges who invoke the Constitution as the source of their authority must adhere to the document as written, thereby enforcing the instrument's fundamental and permanent principles. To do so, of course, Judges must discern what the document meant <i>to those who possessed and exercised the authority to bind others,</i> namely, the People. Refusal to enforce such principles because a judge considers them "unacceptable" repudiates the only legitimate source of judicial authority and is thus lawless.<br />
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<b>Second</b>, there may well be instances in which enforcing the original meaning of the Constitution produces results with which most Americans might disagree. Happily, the gender of the President is not such an instance, with the result that outstanding candidates such as Nikki Haley, pictured above, are eligible.<br />
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It may well be that the Framers and Ratifiers assumed or even intended that Presidents and Vice Presidents would be male, Protestant landowners. But they did not enact these assumptions or intentions into law. Article II, Section 1, Clause 5 of the Constitution, aptly known as the "Qualifications Clause," defines the qualifications for holding the office of President. </div>
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"No person, except a natural born citizen, or a citizen of the United States, at the time of the adoption of this constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and have been fourteen years a resident of the United States."</div>
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Under the "plain meaning" of this provision, women, Catholics, and/or merchants, all of whom are "persons," are eligible to be President. Had the Framers and Ratifiers wished to exclude women, they could have included a clause limiting the Presidency to men, in the same way they precisely limited the office to certain citizens of the United States and persons 35 or older. They did not, however, include any such restriction. </div>
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What, though, about the use of the pronoun "he" to describe the length of the President's term in office, for instance? ("He shall hold his office during the term of four years[.])" Does this use create an additional qualification, outside the qualifications clause? Of course not. </div>
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It is standard English convention to employ purportedly "masculine" pronouns to refer to a category of persons that includes both men and women. In these circumstances the apparently masculine pronoun in fact functions as a generic pronoun, akin to "they." <i>See e.g</i>. R.W. Burchfield, <i>The New Fowler's Modern English Usage</i> (3d ed. Oxford) ("From the earliest times until about the 1960s it was unquestionably acceptable to use the pronoun <i>he</i> (and <i>him</i>, <i>himself</i>, <i>his</i>) with indefinite reference to mean anyone, a person (of either sex)."); Oliver Strunk and E.B. White, <i>The Elements of Style,</i> 60 (1979) ("The use of he as pronoun for nouns embracing both genders is a simple, practical convention rooted in the beginnings of the English language. <i>He</i> has lost all suggestions of maleness in these circumstances.") (emphasis in original). None of this is to say that "he" <i>always</i> functions as a generic pronoun. The actual meaning will always depend upon context. The most relevant context, of course, is the actual definition of the President's qualifications, which employs the generic term "person," instead of "man." In short, use of the <i>potentially and commonly</i> generic pronoun "he" did not alter the plain meaning of "person" in the Qualifications Clause.</div>
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Indeed, Justice Scalia and Brian Garner addressed the original meaning of the pronoun "he" in Article II, in their leading text on legal interpretation:<br />
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"In the Constitution the President is referred to many times with the pronouns he, him, and his. These references, by common grammatical understanding, refer to a President of either sex."<br />
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<i>See</i> Antonin Scalia and Brian Garner, <i>Reading Law: The Interpretation of Legal Texts</i>, 129 (2012). They cite, for instance, Peter Bullions, <i>The Principles of English Grammar</i> (13th Ed. 1845) ("[T]he masculine term has also a general meaning, expressing both male and female, and is always to be used when the office, occupation, profession, etc., and not the sex of the individual, is chiefly to be expressed.").</div>
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In the same way, Latin employs masculine nouns or pronouns to refer to groups that include both men and women. Indeed, the front page of Berkeley Law School's own website <a href="https://www.law.berkeley.edu/alumni/">repeatedly refers</a> to the school's "Alumni," the plural form of a Latin second declension masculine noun. In so doing, the school presumably does not mean to exclude its female graduates!</div>
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<b>Third</b>, the original meaning approach to interpretation in no way prevents adaptation of the Constitution "for ages to come." As <a href="http://bishopmadison.blogspot.com/2013/03/">previously explained on this blog</a>, the Constitution does not necessarily enshrine particular results. Instead, as Marshall explained in <i>Marbury</i>, the document often articulates fundamental and permanent<i> principles</i>. Thus, as the Supreme Court explained more than eight decades ago, changes external to the Constitution can compel courts to sustain legislation once deemed unconstitutional or invalidate legislation once thought perfectly constitutional. </div>
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"While the meaning of constitutional guarantees never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within their field of operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted not to the <i>meaning</i>, but to the <i>application </i>of constitutional<i> </i>principles<i>, </i>statutes<i> </i>and ordinances<i> </i>which<i>, </i>after giving due weight to the new conditions, are found clearly not to conform to the Constitution of course must fail."</div>
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<i>See</i> Village of Euclid v. Amber Realty, 272 U.S. 365 (1926).<br />
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More recently Justice Scalia explained that changes in technology, external to the Court, can require changed application of the Fourth Amendment's ban on unreasonable searches. The common law principles that animate the Amendment remain constant and unchanged, <i>e.g.</i>, police can only hold a suspect so long as reasonably necessary to bring the individual before a magistrate for a probable cause determination. While that period may have been 72 hours in 1791, the reasonable period today, the Justice said "is obviously a function of helicopters and telephones" and thus, he said, 24 hours. <i>See</i> County of Riverside v. McGlaughlin, 500 U.S. 44, 62 n. 1 (1991) (Scalia, J. dissenting). <br />
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In short, Originalism survives Dean Chemerinsky's critique entirely unscathed. </div>
<br />Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-17144062482057025202018-08-07T23:59:00.000-04:002018-08-08T00:00:56.375-04:00Happy National Lighthouse Day! <div class="separator" style="clear: both; text-align: justify;">
Today is National Lighthouse Day. In honor of the day, here are photos taken by your humble blogger of four lighthouses in Casco Bay, Maine.</div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgyhNHfCX0ybSOGXQ7ZM7nJY6MmYjDivAyR56k_1S8Cut2XUIQuej4OeUPJ-SntnefN7lAlMaiOqgPsgyAi0srWWbQblGLmuS6lyfUj0ucmFo-9BULWzO_KJnZrtdhcg6QNoonArEmP8Lk/s1600/Portland+Headlight+July+28+2017b.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="503" data-original-width="552" height="291" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgyhNHfCX0ybSOGXQ7ZM7nJY6MmYjDivAyR56k_1S8Cut2XUIQuej4OeUPJ-SntnefN7lAlMaiOqgPsgyAi0srWWbQblGLmuS6lyfUj0ucmFo-9BULWzO_KJnZrtdhcg6QNoonArEmP8Lk/s320/Portland+Headlight+July+28+2017b.jpg" width="320" /></a></div>
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<b>Portland Headlight</b></div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhv7CMNZCWd5HJDijryGfw1zESorDZk6t2_v162TrNC5J6Rs9i9AVMdIVip0zmz2mOEime-FnA8FiDma5Coc7l_Achch5jd69jrxFg-Z9WyFxIRazuVk6GcTCXa1KZMh0X7t-SsfZh-nnI/s1600/Ram+Island+Light+July+28+2017.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1200" data-original-width="1600" height="240" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhv7CMNZCWd5HJDijryGfw1zESorDZk6t2_v162TrNC5J6Rs9i9AVMdIVip0zmz2mOEime-FnA8FiDma5Coc7l_Achch5jd69jrxFg-Z9WyFxIRazuVk6GcTCXa1KZMh0X7t-SsfZh-nnI/s320/Ram+Island+Light+July+28+2017.jpg" width="320" /></a></div>
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<b>Ram Island Ledge Light</b></div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjG4Chtp_9fPfxHOSvXRTxGMCf3pHlEcfbWj15Wjy6x5IypKsPmZGRg5SqaiA8Ud_Mvz44yWDXSvxftQY4sTaXTv4CS49w4MVinVbTrVLDNIzQl3RO_PYHLQP7GbylKCveu6jV2Zq1PBTk/s1600/Halfway+Rock+Light+2011aa.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="241" data-original-width="238" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjG4Chtp_9fPfxHOSvXRTxGMCf3pHlEcfbWj15Wjy6x5IypKsPmZGRg5SqaiA8Ud_Mvz44yWDXSvxftQY4sTaXTv4CS49w4MVinVbTrVLDNIzQl3RO_PYHLQP7GbylKCveu6jV2Zq1PBTk/s1600/Halfway+Rock+Light+2011aa.jpg" /></a></div>
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<b>Halfway Rock Lighthouse</b></div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiFeN1HxuP-wD_CYDYjGvgVNP3kB4tCTNf1Rie7YTKYtlFZAOhm9QvH94ttp-d4fTQvq5wv4fZgMFSmzndwuTMNnQ-y3FjZZFZYuSSn6RE15FiX_Cdg-7NNLuU0_c50SGQoPQJJaD_Obog/s1600/2008+Small+Light+Portland+Harbor.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="479" data-original-width="719" height="213" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiFeN1HxuP-wD_CYDYjGvgVNP3kB4tCTNf1Rie7YTKYtlFZAOhm9QvH94ttp-d4fTQvq5wv4fZgMFSmzndwuTMNnQ-y3FjZZFZYuSSn6RE15FiX_Cdg-7NNLuU0_c50SGQoPQJJaD_Obog/s320/2008+Small+Light+Portland+Harbor.jpg" width="320" /></a></div>
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<b>Spring Point Ledge Lighthouse</b></div>
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For information on the history of Ram Island Ledge Light and some additional photos, go <a href="http://bishopmadison.blogspot.com/2013/08/some-photos-of-ram-island-ledge-light.html">here</a>. For additional photos and information on Portland Headlight, go<a href="http://bishopmadison.blogspot.com/2009/07/portland-headlight-in-action-july-2008.html"> here</a>.</div>
Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-3679244928316565142018-07-10T18:31:00.000-04:002018-07-10T18:33:50.438-04:00Contra Laurence Tribe, Why Overturning Roe v. Wade Will Not Authorize States to Mandate Abortion<div style="text-align: justify;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">In a <a href="https://twitter.com/tribelaw/status/1013375536133963776">recent tweet</a> in anticipation of President Trump's nomination to fill the latest Supreme Court vacancy, Professor Laurence Tribe claims that overruling Roe v. Wade, 410 U.S. 113 (1972) would be a "two-sided coin" because it would both empower states to ban abortion but also authorize states to <i>require</i> individuals to abort an unborn child. Here is Tribe's tweet, which is no longer pinned to the top of his twitter feed:</span></div>
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<span style="font-family: "times" , "times new roman" , serif; font-size: large; line-height: 107%;">“Too few people realize
that Roe v. Wade is a two-sided coin.<span style="mso-spacerun: yes;"> </span>It
protects a woman’s liberty to choose *whether or not* to bear a child.<span style="mso-spacerun: yes;"> </span>Relegating that choice to the state isn’t a
PRO-LIFE move but an ANTI-LIBERTY move.<span style="mso-spacerun: yes;">
</span>If a state can say “stay pregnant!” it can also say “abort!” <o:p></o:p></span></div>
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<span style="font-family: "times" , "times new roman" , serif; font-size: large; line-height: 107%;">At first glance, this
argument might have superficial appeal.<span style="mso-spacerun: yes;">
</span>If <i style="mso-bidi-font-style: normal;">Roe</i> created a “liberty to
decide whether to give birth,” that liberty would presumably include both the liberty to abort an unborn child and the liberty to give birth.<span style="mso-spacerun: yes;"> </span>Hence, it would seem, repudiation of <i style="mso-bidi-font-style: normal;">Roe</i> would eliminate any constitutional
obstacles to a state requirement that pregnant women abort an unborn child.<o:p></o:p></span></div>
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<span style="font-family: "times" , "times new roman" , serif; font-size: large; line-height: 107%;">Tribe's analysis is critically incomplete<i style="mso-bidi-font-style: normal;">.<span style="mso-spacerun: yes;"> </span>Roe</i> did more than recognize a
liberty to decide whether to give birth and thus a right to abort.<span style="mso-spacerun: yes;">
</span>The Court also held that protection of the
unborn child (what the Court called "prenatal life") during the first two trimesters of pregnancy does not advance a compelling
state interest that justifies overriding this right. While the Court referred to the interest in "prenatal life" as "important and legitimate," it held that the state interest
in the unborn child’s life only becomes <i>compelling</i> when the child is capable of
surviving outside the womb, a period the Court equated with the third trimester of
pregnancy. <span style="mso-spacerun: yes;"><i>See Roe</i>, 410 U.S. at 162-63. During this third trimester, the Court said, a state can ban all abortion, "except when it is necessary to preserve the life or health of the mother." <i>Id</i>. at 163-64.</span><o:p></o:p></span></div>
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<span style="font-family: "times" , "times new roman" , serif; font-size: large;"><span style="line-height: 107%;">Thus, the modern Court could
jettison <i style="mso-bidi-font-style: normal;">Roe</i> in one
of two ways.<span style="mso-spacerun: yes;"> </span>First, it could (as Tribe
assumes) hold that the </span><span style="line-height: 107%;">"liberty" declared in the 14th Amendment does not include the "liberty to decide whether to give birth," thereby</span> thereby
freeing states to regulate childbearing as they saw fit. Second the Court could leave <i>Roe</i>’s definition of liberty entirely
intact, but hold, contrary to <i>Roe</i>, that
protection of "prenatal life" before viability does in fact serve a compelling
interest, as Justice Byron White explained over three decades ago. <i>See </i>Thornburgh v.
American College of Obstetricians, 476 U.S. 747, 795, n .3 (1986) (White, J. dissenting) (“The
point is that the specific interest the Court has recognized as compelling
after the point of viability — that is, the interest in protecting “potential
human life” — is present as well before viability, and the point of viability
seems to bear no discernible relationship to the strength of that
interest. Thus, there is no basis for
concluding that the essential character of the state interest becomes
transformed at the point of viability.”); <i>id</i>. at 795 ("The governmental interest at
issue here is in protecting those who will be citizens if their lives are not
ended in the womb. The substantiality of this interest is in no way dependent on the probability that the fetus may
be capable of surviving outside the womb at any given point in its development,
as the possibility of fetal survival is contingent on the state of medical
practice and technology, factors that are in essence morally and
constitutionally irrelevant. The State’s
interest is in the fetus as an entity in itself, and the character of this
entity does not change at the point of viability under conventional medical
wisdom. Accordingly the State’s
interest, if compelling after viability [as <i>Roe</i>
held], is equally compelling before viability."). Indeed, Justice Kennedy<i>, </i>who would later co-author the joint opinion in Planned Parenthood v. Casey, 505 U.S. 833 (1992), apparently agreed that <i>Roe</i> was erroneous in the first interest precisely because it held that protection of prenatal life before viability was not a compelling interest. <i>See </i>Webster v. Reproductive Health Services, 492 U.S. 490, 519 (1989) (Rehnquist, C.J., joined by White and Kennedy, JJ.) (“[W]e do not see why the State’s interest in protecting potential human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability bur prohibiting it before viability.”).</span><br />
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<span style="font-family: "times" , "times new roman" , serif;"><span style="font-size: large;">This latter approach seems to this blogger to be the far more likely course, as it would
follow naturally from the assertion by the Joint Opinion in <i>Casey</i> that any error in <i>Roe</i> would "go only to the strength of the state interest in fetal protection, not to the recognition afforded by the Constitution to the woman's liberty." </span><span style="font-size: large;"><i>See id</i>. at 858
(opinion of O’Connor, Kennedy and Souter, JJ.); <i>see also id</i>. at 871 (“The
weight to be given this state interest, not the strength of the woman’s
interest, was the difficult question in <i>Roe</i>.”).</span></span><br />
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<span style="font-family: "times" , "times new roman" , serif; font-size: large; line-height: 107%;">To be sure, both
approaches would “overrule <i style="mso-bidi-font-style: normal;">Roe</i>,” in
the sense of restoring to the states the authority they possessed for nearly two centuries to restrict abortion. However, only the first approach
could conceivably leave states free to require a woman to abort an unborn
child.<span style="mso-spacerun: yes;"> </span>Under the second approach, by
contrast, a state ban on live birth would remain presumptively invalid, just as such a ban is presumptively invalid under the <i>Roe</i>/<i>Casey</i> regime.<span style="mso-spacerun: yes;"> </span>Indeed, such a ban would only survive
constitutional scrutiny (just as it would survive scrutiny under the current regime) if a state could identify an entirely different compelling state interest that somehow justified overriding the right to give birth. A state would also have to convince the Court that such a ban is narrowly tailored to advance that supposed compelling interest. This blogger is not aware of any compelling interest in state-mandated destruction of "prenatal life." In any event, and as already noted, such a compelling interest, if it exists, would also justify state-mandated abortion under the current <i>Roe</i>/<i>Casey</i> regime, with the result that the prospect of state-mandated abortion does not support a preference for the current regime over the second approach sketched above.</span></div>
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<span style="font-family: "times" , "times new roman" , serif; font-size: large; line-height: 107%;">Whatever arguments there may be for retaining the <i>Roe/Casey </i>regime, the specter of state-forced abortion is not one of them.</span></div>
Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-85490460002482545602018-07-04T13:25:00.000-04:002018-07-04T13:25:55.467-04:00Happy Independence Day! <div class="separator" style="clear: both; text-align: center;">
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To honor Independence Day, here are some reminders, from the campus of the College of William and Mary, of our nation's struggle for independence. </div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhINdS0QxqNYR8XJtLeKz6ONhUl-_JmxnioDVskKj4bvCTfzel_3cXuhfXqCdbtGzb_pFfPXrZms-DBows5Oyk3ZufPjFjoNuxKUwPxpDJ02Kel_xJ1t9nf06GxdXpk6QqwCYvY2DNE0L4/s1600/Thomas+Jefferson.PNG" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="692" data-original-width="308" height="400" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhINdS0QxqNYR8XJtLeKz6ONhUl-_JmxnioDVskKj4bvCTfzel_3cXuhfXqCdbtGzb_pFfPXrZms-DBows5Oyk3ZufPjFjoNuxKUwPxpDJ02Kel_xJ1t9nf06GxdXpk6QqwCYvY2DNE0L4/s400/Thomas+Jefferson.PNG" width="177" /></a></div>
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Wrote The Declaration</div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhdRN1eKRoI4owH_TqG3WX6fX-E7hNpJxqBXFa2Zr0W5vI6-pE4U0eYYNRBj5XoJ24P0LFyMPDNTnxDlpholJ89AL8revrXzNePC1shFMpbLN2d0-HM-kQrZEqwKgn0uA2VWormfwKyJZM/s1600/Monroe.PNG" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="874" data-original-width="392" height="400" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhdRN1eKRoI4owH_TqG3WX6fX-E7hNpJxqBXFa2Zr0W5vI6-pE4U0eYYNRBj5XoJ24P0LFyMPDNTnxDlpholJ89AL8revrXzNePC1shFMpbLN2d0-HM-kQrZEqwKgn0uA2VWormfwKyJZM/s400/Monroe.PNG" width="178" /></a></div>
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Hero of the <a href="http://bishopmadison.blogspot.com/2015/12/today-is-239th-anniversary-of-battle-of.html">Battle of Trenton</a></div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjz66NsTnCum6EhuS7PyIY86QUrHBemgZtUhHE3Ww8omc9ZQ5QaswR09DaKELtJKpcn3PUO2W_nPE0Jfh9OPxaoyH1nBTjWqL2COaG0oMxoVHv7h91Yubxn1HI8jF5BQrfj_KyhWB5U9iA/s1600/Mashall+and+Wythe.PNG" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="801" data-original-width="618" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjz66NsTnCum6EhuS7PyIY86QUrHBemgZtUhHE3Ww8omc9ZQ5QaswR09DaKELtJKpcn3PUO2W_nPE0Jfh9OPxaoyH1nBTjWqL2COaG0oMxoVHv7h91Yubxn1HI8jF5BQrfj_KyhWB5U9iA/s320/Mashall+and+Wythe.PNG" width="246" /></a></div>
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Captain in the Continental Army (left)</div>
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Thomas Jefferson's Teacher. Signed Jefferson's Most Famous Work (right)</div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgGaN3UGlmmIN4H6rr3RPBlySuWlRsPEZua8Fyf0LqnUVbeI1JG3hMz8LpHMHIJusYgLmzCMKELvDyrZghs1tRzYzHzS69af_WIccZxKDodA70PuoPGQ16arPXkH5kdgwpRxzrdE9UzHfU/s1600/French+Memorial.PNG" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="839" data-original-width="465" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgGaN3UGlmmIN4H6rr3RPBlySuWlRsPEZua8Fyf0LqnUVbeI1JG3hMz8LpHMHIJusYgLmzCMKELvDyrZghs1tRzYzHzS69af_WIccZxKDodA70PuoPGQ16arPXkH5kdgwpRxzrdE9UzHfU/s320/French+Memorial.PNG" width="177" /></a></div>
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Memorial to the French Soldiers Who Died in the Siege of Yorktown</div>
Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-84625552669653967302017-01-10T13:57:00.001-05:002017-01-10T14:01:59.072-05:00Statues in the Snow, William and Mary 2017<div class="separator" style="clear: both; text-align: center;">
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<b>Thomas Jefferson</b></div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiBXrcMW9y3gCSRqnDtjxyDJiCTwiaNTh83gomk_5EqkCmnEnfWk24lCeOdADJCb0UITXhifhqxhPzu818lo_pmrbEchdx5G0iCANxuIP8yv0kAeRO8avFxRWVfoeU9Icv1MCsjhmVaR20/s1600/Marshall-Wythe+Williamsburg+Snow+2017.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="400" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiBXrcMW9y3gCSRqnDtjxyDJiCTwiaNTh83gomk_5EqkCmnEnfWk24lCeOdADJCb0UITXhifhqxhPzu818lo_pmrbEchdx5G0iCANxuIP8yv0kAeRO8avFxRWVfoeU9Icv1MCsjhmVaR20/s400/Marshall-Wythe+Williamsburg+Snow+2017.jpg" width="316" /></a></div>
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<b>John Marshall and George Wythe</b></div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-9Eld063Yt46CVCg7UOWsJSgBozSibSA9kkgc6mlMnloUFUBzfgDUcMXHkPJq_hicIMWU8N3J-2o1E-oHSeeakXaAWNGug7HGgfjR8izA1HfgoeAogSkBg-hzfCqbBIsIyxENB1XWbjQ/s1600/Lord+Bottetourt+Wren.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="400" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-9Eld063Yt46CVCg7UOWsJSgBozSibSA9kkgc6mlMnloUFUBzfgDUcMXHkPJq_hicIMWU8N3J-2o1E-oHSeeakXaAWNGug7HGgfjR8izA1HfgoeAogSkBg-hzfCqbBIsIyxENB1XWbjQ/s400/Lord+Bottetourt+Wren.jpg" width="300" /></a></div>
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<b>Lord Botetourt</b></div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiYtMISuTk3EdRkmOAI1i3l5sMUlvzi9IfE7rQ4YfmfrrZjITspvHacgkG6hrGeYh7OwfOKZPiziyYPJtf64XK3Zk032CMSh2sYQYmy0i4bXbLse-vTpBNGvHz3DBEUFpcb-D8beJI2XOQ/s1600/James+Monroe+Statue+William+and+Mary+2017.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="300" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiYtMISuTk3EdRkmOAI1i3l5sMUlvzi9IfE7rQ4YfmfrrZjITspvHacgkG6hrGeYh7OwfOKZPiziyYPJtf64XK3Zk032CMSh2sYQYmy0i4bXbLse-vTpBNGvHz3DBEUFpcb-D8beJI2XOQ/s400/James+Monroe+Statue+William+and+Mary+2017.jpg" width="400" /></a></div>
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<b>James Monroe</b></div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgDxP5sWcwLtABT_sanMvX4UdlLA4ba1eg7ZJCa3YgB6lJbLUlMbroLMyNaPveJSzSohCKFm5Lk__Vd-r3gYknl4J-MqRztJ4VEz7REu320QFwdLcU6CKI6QhBQa7Nk5D8FzYvrnxYxu1o/s1600/James+Blair+Williamsburg+Snow+2017.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="400" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgDxP5sWcwLtABT_sanMvX4UdlLA4ba1eg7ZJCa3YgB6lJbLUlMbroLMyNaPveJSzSohCKFm5Lk__Vd-r3gYknl4J-MqRztJ4VEz7REu320QFwdLcU6CKI6QhBQa7Nk5D8FzYvrnxYxu1o/s400/James+Blair+Williamsburg+Snow+2017.jpg" width="307" /></a></div>
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<b>James Blair</b></div>
<br />Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-58888573071226974582017-01-08T17:05:00.000-05:002017-01-08T17:05:45.329-05:00On The Senate's Unchanged Discretion to Refuse to Consider Nominees<div style="text-align: justify;">
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiImZkrtcFP47q0PthoVfj_oP8fZNcG7Lckbstjo0IyxOvaxEONYGq5rGZM2UIc9fp09ihviE1hDbpyTo_vD2-HMMatpsWvBqP7ypi1m19b6pZba9FY6KiemEIYMxWXE13GVdlyksp5mYM/s1600/Vice+President+Joe+Biden+Photo.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiImZkrtcFP47q0PthoVfj_oP8fZNcG7Lckbstjo0IyxOvaxEONYGq5rGZM2UIc9fp09ihviE1hDbpyTo_vD2-HMMatpsWvBqP7ypi1m19b6pZba9FY6KiemEIYMxWXE13GVdlyksp5mYM/s320/Vice+President+Joe+Biden+Photo.jpg" width="256" /></a></div>
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<b>Principled But Wrong</b></div>
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The Republican National Committee <a href="https://www.gop.com/biden-senate-democrats-should-give-trumps-supreme-court-nominee-a-vote/">is touting</a> Vice President Joe Biden's assertion that Senate Democrats should not obstruct consideration of President-elect Trump's nominee for the U.S. Supreme Court. In particular, the RNC is highlighting the Vice President's following statement, made during a <a href="http://www.pbs.org/newshour/updates/grow-donald-time-adult-biden-says-pbs-newshour-interview/">lengthy interview</a> on PBS. </div>
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“[T]he Constitution says the president shall nominate, not maybe could maybe can. He shall nominate. Implicit in the constitution is that the
senate will act on its constitutional responsibility, will give its advice and
consent. No one is required to vote for
the nominee, but they, in my view, are required to give the nominee a hearing
and a vote. It’s been my policy since I’ve
been in the United States Senate.”<o:p></o:p></div>
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This blogger gives the Vice President significant credit for taking the same position with respect to the next President's nominee as he took with respect to President Obama's nominee, Judge Merrick Garland, for the same seat. The Vice President is to be commended for adhering to principle, even when such adherence could disadvantage the objectives of his own party. At the same time, this blogger respectively disagrees with the Vice President's assertion that the Constitution somehow requires the Senate to provide any particular form of consideration to a President's nominee for the Supreme Court. Instead, <a href="http://bishopmadison.blogspot.com/2016/03/on-senates-absolute-discretion-to.html">as previously explained on this blog</a>, the Constitution confers upon the Senate absolute discretion to refuse to consider nominees to the Supreme Court or, for that matter, any other office the appointment to which requires Senate consent. (S<i>ee also</i> <a href="http://bishopmadison.blogspot.com/2016/05/more-on-senates-absolute-discretion-to.html">here</a>). The decision whether and how much to consider a particular nominee is in its nature political and thus a decision for which Senators are accountable to the their constituents, and not the Constitution. <i>Cf</i>. Marbury v. Madison, 5 U.S. 137 (1803) (distinguishing between the exercise of certain powers, subject to legal constraint, and the exercise of "political" powers, the results of which "are only politically examinable").</div>
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None of this is to say that the Senate <i>should</i> decline to consider any particular nominee to the Supreme Court. However, the Constitution has nothing to do with this question. The GOP should refrain from republishing unconvincing constitutional arguments, particularly arguments that Republican Senators properly rejected when they declined to consider the nomination of Judge Garland. The Constitution has not changed since that time. </div>
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Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-7908187051487320862016-05-21T15:45:00.002-04:002016-05-21T15:46:08.427-04:00More on the Senate's Absolute Discretion to Refuse to Consider Presidential Nominees<div style="text-align: justify;">
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In an <a href="http://www.theatlantic.com/politics/archive/2016/05/senate-obama-merrick-garland-supreme-court-nominee/482733/">excellent essay in the Atlantic</a>, Michael D. Ramsey, the Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego, demolishes claims that Article II of the Constitution somehow requires the Senate to hold hearings and a vote on President Obama's nominee to the Supreme Court, Chief Judge Merrick Garland. As Ramsey points out, the text of Article II does not mention hearings or a vote, so any such requirement must be found "by implication." </div>
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Ramsey makes three arguments rebutting claims that the Constitution somehow implies such a duty. </div>
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First, several other provisions of the Constitution provide that one branch may propose actions subject to the approval of another. For instance, the President may propose treatises subject to the Senate's consent. None of these provisions, with one exception, has been read to require any sort of process before the second body refuses to act. The exception is the so-called "presentment clause" (Article I, Section 7), which provides that the President has only ten days to veto a bill and, if he does so, must given his reasons in writing. As Ramsey puts it: "The framers knew how to require formal action if they wanted to; they just chose not to require it in the appointments clause (and elsewhere)." </div>
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Second, Article I, Section 5 of the Constitution expressly empowers the Senate to: "determine the rules of its proceedings." While the Senate could adopt a rule requiring formal proceedings before rejecting a nominee, it has not done so. </div>
<div style="text-align: justify;">
<br /></div>
<div style="text-align: justify;">
Third, Article II's appointments clause governs the nomination and possible appointment of <i>all </i>"officers of the United States," including lower court judges and countless executive branch officials. Any requirement of a hearing and a vote would therefore also apply whenever the President nominates an individual to such a position. And yet, the Senate has often declined to provide a hearing or vote to nominees for such offices. (For instance, Jonathan Adler <a href="http://www.nationalreview.com/bench-memos/432030/biden-blocked-more-roberts">has explained</a>, the Senate declined to consider over two dozen of President George W. Bush's nominees to various United States Courts of Appeals, including one John Roberts.) Here Ramsey responds to the claim that the Supreme Court is somehow "different" because the Constitution expressly requires Congress to create this body. As Ramsey explains, there is no constitutional requirement that the Supreme Court contain nine Justices. Instead, Congress sets the number of Justices and has, over the years, set the number at six, seven, nine or ten justices. (This blogger notes that the Court that decided Marbury v. Madison, 5 U.S. 137 (1803) consisted of six justices, while the Court that decided Gibbons v. Ogden, 22 U.S. 1 (1824) included seven.) Declining to consider or confirm a ninth justices does not prevent the Court from performing its constitutional role.<br />
<br />
The Atlantic essay is a streamlined version of Ramsey's arguments on this question. For his elaboration on these arguments on the <a href="http://originalismblog.typepad.com/the-originalism-blog/">Originalism Blog</a>, go <a href="http://originalismblog.typepad.com/the-originalism-blog/2016/04/i-debate-erwin-chemerinsky-on-the-senate-and-judge-garlandmichael-ramsey.html">here</a>, <a href="http://originalismblog.typepad.com/the-originalism-blog/2016/03/law-professors-letter-on-supreme-court-appointmentsmichael-ramsey.html">here</a>, <a href="http://originalismblog.typepad.com/the-originalism-blog/2016/03/an-exchange-on-the-senates-advicemichael-ramsey.html">here</a> and<a href="http://originalismblog.typepad.com/the-originalism-blog/2016/02/adam-white-on-the-senates-duty-to-vote-on-nomineesmichael-ramsey.html"> here</a>. Go <a href="http://bishopmadison.blogspot.com/2016/03/on-senates-absolute-discretion-to.html">here</a> for this blogger's own take on this question.<br />
<br /></div>
Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-29564953564708501182016-05-21T12:06:00.002-04:002016-05-21T12:07:24.543-04:00William Galston on President Obama's Choice of Reform over Recovery<div style="text-align: justify;">
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In a <a href="http://www.wsj.com/articles/how-obamas-economy-spawned-trump-1462313951">superb op-ed</a> in the Wall Street Journal, entitled "[h]ow Obama's Economy Spawned Trump," <a href="http://www.brookings.edu/experts/galstonw">William Galston</a> of the Brookings Institution contends that the weak economic recovery that began in 2009 fueled the popular discontent that begat the presumptive Republican nominee. While Galston gives the President credit for securing passage of the 2009 "stimulus package" and formulating the "bailout" of General Motors and Chrysler, he also contends that the President had no follow up plan for bolstering the recovery which, <a href="http://bishopmadison.blogspot.com/2016/01/should-candidates-and-voters-be-more.html">as previously explained on this blog</a> (s<i>ee also</i> <a href="http://bishopmadison.blogspot.com/2015/07/job-growth-still-weak-like-recovery.html">here</a>), has been exceedingly slow. Instead, Galston says, the President chose to spend his scarce political capital on securing passage of the so-called "Affordable Care Act" and regulatory efforts to combat "Global Climate Change." Had the President remained focused on nurturing the recovery, Galston says, he could have expended his political capital on advocating and securing additional deficit spending on various infrastructure projects, such as highways, thereby further stimulating the economy and bolstering the recovery.<br />
<br />
Galston's trenchant analysis bolsters the adage that those who ignore the lessons of history are doomed to repeat it. This is not the first time that a President facing a deep recession has chosen reform over recovery. In 1933, Franklin Delano Roosevelt secured passage of the National Industrial Recovery Act, his administration's central economic recovery plan. Among other things the NIRA imposed so-called "codes of fair competition," along with above-market minimum wages and requirements that firms recognize and negotiate with labor cartels also known as unions. As John Maynard Keynes explained in a <a href="http://newdeal.feri.org/misc/keynes2.htm">letter to the New York Times</a>, the NIRA's wage and price fixing provisions were tools of "Reform and probably impeded recovery." Subsequent analysis has verified Keynes' prediction, finding that the NIRA's wage-fixing provisions in particular, while furthering what Keynes called "redistribution," also helped deepen and lengthen the Great Depression by several years. (<i>See </i><a href="http://bishopmadison.blogspot.com/2014/02/the-minimum-wage-as-economic-alchemy.html">here</a> and<i> </i> <a href="http://bishopmadison.blogspot.com/2011/12/ptolomey-thought-sun-revolved-around.html">here</a>) If Galston is correct, then President Obama, too, chose reform over recovery, with negative consequences for the nation's overall economic well-being.<br />
<br />
At the same time, Galston overstates his case in a couple of ways. First, he likely overstates the impact of the initial stimulus package. For one thing, the $800 Billion package was spread over several years, thus constituting a very small share of overall GDP each year. Indeed, in 2009, Galston himself <a href="http://www.brookings.edu/research/opinions/2009/01/29-obama-galston">opined</a> that some of the package's proposed projects would "take effect slowly over many years, muting their stimulative consequences." Like <a href="http://www.washingtonpost.com/wp-dyn/content/article/2009/01/28/AR2009012802938.html?hpid=opinionsbox1">Martin Feldstein</a>, Galston proposed allocating stimulus funds to immediate military spending (see also here discussing Feldstein's proposal.). Moreover, as this blog <a href="http://bishopmadison.blogspot.com/2009/01/keynes-comethwhat-are-we-stimulating.html">explained at the time</a>, the net impact of the 2009 package was likely smaller than its nominal price tag, insofar as some such deficit spending simply displaced debt and resulting spending that states would have incurred anyway. (<i>See</i> <a href="http://web.stanford.edu/~johntayl/2011_pdfs/The_2009_Stimulus-Two_Years_Later-2-16-11.pdf">this testimony</a> by John Taylor at Stanford, who summarizes research finding such a displacement effect.) Second, <a href="http://bishopmadison.blogspot.com/2011/06/14-billion-flop-president-of-united.html">as previously explained on this blog</a>, any claim that the auto bailout was worth the cost does not survive scrutiny. All in all, however, Galston makes a powerful point. It would be ironic indeed if the President choice of reform over recovery leads to the election of a President hostile to those reforms.<br />
<br /></div>
Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-12356143141971894222016-04-30T20:54:00.000-04:002016-04-30T20:54:27.823-04:00Chicago Bears Draft DeAndre Houston-Carson!<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEia-pHdMns2Y2XiSPpLKnTny19smWyJY64B7QhA77jAeFJX2DRUGIWULa_9G_f0QTzWrgabMSWmj-GlRRM5I7fx6t1-CnaaJ6ZHLn2rHOR6-aeLrg9jC-nQoOp9NtCu5foyC17Xaph_MLQ/s1600/DeAndre+Houston-Carson+William+and+Mary.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="278" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEia-pHdMns2Y2XiSPpLKnTny19smWyJY64B7QhA77jAeFJX2DRUGIWULa_9G_f0QTzWrgabMSWmj-GlRRM5I7fx6t1-CnaaJ6ZHLn2rHOR6-aeLrg9jC-nQoOp9NtCu5foyC17Xaph_MLQ/s320/DeAndre+Houston-Carson+William+and+Mary.jpg" width="320" /></a></div>
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<div style="text-align: center;">
<b>Future Bears Co-Captain?</b></div>
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<div style="text-align: justify;">
The Chicago Sun-Times <a href="http://chicago.suntimes.com/sports/in-round-6-bears-take-william-mary-s-deandre-houston-carson/">reports</a> that the Chicago Bears have chosen William and Mary safety DeAndre Houston-Carson in the 6th round of the NFL draft. Carson, a co-captain, is pictured above at the coin toss before the Tribe's thrilling <a href="http://bishopmadison.blogspot.com/2015/11/tribe-prevails-over-duquesne-in.html">52-49 victory</a> over Duquesne in the first round of the FCS playoffs this last fall. The William and Mary Sports Blog, which anticipated that Houston-Carson might be drafted, <a href="https://wmsportsblog.com/2016/04/25/wm-nfl-draft-preview-deandre-houston-carson-luke-rhodes/">summarizes his extremely impressive career</a>, which included 293 tackles, 10 interceptions, 9 punt or kick blocks and consensus first team FCS all American honors. Congratulations to Houston-Carson, and to the Bears for making such a great pick! </div>
Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-69604150017353808922016-04-30T20:33:00.004-04:002016-07-08T14:11:01.341-04:00Occupational Licensing, the Criminal Law and Vocational Liberty<div style="text-align: justify;">
<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhkXpHB78cmCnkKi0M935jfZBP1ZYxCrGrf99WwEcbWYfLBlV59icCRn3VeVpKgPMn4crI9qC_9czZz2ZU5Wjn0ccA6w7eJaE-rb3KT20y_Ihquok_J0Z2CwsFyds6fAhkrpX_uBtGFKGo/s1600/Milton+Friedman+Portrait.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhkXpHB78cmCnkKi0M935jfZBP1ZYxCrGrf99WwEcbWYfLBlV59icCRn3VeVpKgPMn4crI9qC_9czZz2ZU5Wjn0ccA6w7eJaE-rb3KT20y_Ihquok_J0Z2CwsFyds6fAhkrpX_uBtGFKGo/s320/Milton+Friedman+Portrait.jpg" width="286" /></a></div>
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<div style="text-align: center;">
<b>He Told You So</b></div>
<br />
A <a href="http://blogs.wsj.com/economics/2016/04/26/where-just-a-misdemeanor-could-keep-you-out-of-a-job/">story</a> on the Wall Street Journal's "Law Blog" highlights a <a href="http://www.nelp.org/news-releases/report-states-fall-short-in-reducing-job-licensing-barriers-for-workers-with-conviction-records/">study</a> by the National Employment Law Project demonstrating one of the many perils of occupational licensing statutes, namely, that many such statutes needlessly exclude individuals with a criminal record, including some with misdemeanors, from employment in the field in question. According to the story, about one in four Americans works in a profession that requires a state license, and nearly one third of Americans have a criminal record. While some states (<i>e.g. </i>Minnesota), ignore convictions for offenses unrelated to the licensed occupation in question, others invoke unrelated convictions to bar individuals from a licensed occupation, sometimes declaring such convictions evidence of the sort of "moral turpitude" that requires such exclusion.<br />
<br />
As a result of these restrictions, perhaps millions of Americans cannot pursue the vocation of their choice in some states, thereby undermining basic occupational liberty, preventing countless voluntary transactions, and depriving society of the productive services of talented individuals. To be sure, some of these restrictions may serve valid public purposes, as when a state bars convicted bank robbers from driving armored cars. However, many such restrictions do not, as when, for instance, a state bars an individual convicted of marijuana possession from serving as a manicurist, landscape worker, make up artist, travel guide, bar tender, taxidermist or animal trainer. (<i>See </i><a href="http://ij.org/report/license-to-work/tables/table-1-number-of-states-that-license-102-lower-income-occupations/">here</a> for a list of 102 occupations to which some or all states limit entry.)<br />
<br />
At the same time, this anti-liberty "synergy" between the criminal law and occupational licensing is just one negative facet of a legal regime that grants states nearly limitless authority to prevent individuals from pursue their chosen vocation. As Milton Friedman explained more than half a century ago, many such statutes infringe the basic human freedoms to engage in voluntary wealth-creating transactions, while simultaneously protecting incumbent producers from competition, reducing output and increasing prices. <i>See</i> <b>Milton Friedman, Capitalism and Freedom</b> 137-160 (1962). Thus, Friedman contended, society should adopt a very heavy presumption against such regulation. <i>See id</i>. at 144. These conclusions, of course, followed ineluctably from basic economic science. Even some progressives, <a href="https://www.whitehouse.gov/sites/default/files/docs/licensing_report_final_nonembargo.pdf">including the Obama Administration</a>, have finally conceded Friedman's point that occupational licensing wreaks significant harm on the economy. Unfortunately these same progressives still maintain their ideological and <a href="http://bishopmadison.blogspot.com/2014/02/the-minimum-wage-as-economic-alchemy.html">anti-scientific</a> support for <a href="http://bishopmadison.blogspot.com/2012/12/president-obamas-strange-critique-of.html">other intrusive regulations of labor markets</a>, thereby weakening the sort of intellectual milieu necessary to true reform. (Indeed, the same National Employment Project supports the anti-liberty and anti-wealth measure known as the "minimum wage.") <br />
<br />
The National Employment Law Project identifies a serious problem, namely, numerous unjustified abridgments of personal liberty. These results come as no surprise to those who have long internalized Friedman's lessons. However, Friedman also provided the best solution to this problem, <i>viz</i>., a wholesale embrace of economic science and the resulting elimination of the vast majority of occupational licensing statutes, period. Nibbling around the edges by altering the interaction between the criminal law and unjustified occupational licensing is at best, a half-measure. </div>
Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-3072870384291521362016-04-30T20:33:00.003-04:002016-07-08T14:10:43.632-04:00Occupational Licensing, the Criminal Law and Vocational Liberty<div style="text-align: justify;">
<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhkXpHB78cmCnkKi0M935jfZBP1ZYxCrGrf99WwEcbWYfLBlV59icCRn3VeVpKgPMn4crI9qC_9czZz2ZU5Wjn0ccA6w7eJaE-rb3KT20y_Ihquok_J0Z2CwsFyds6fAhkrpX_uBtGFKGo/s1600/Milton+Friedman+Portrait.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhkXpHB78cmCnkKi0M935jfZBP1ZYxCrGrf99WwEcbWYfLBlV59icCRn3VeVpKgPMn4crI9qC_9czZz2ZU5Wjn0ccA6w7eJaE-rb3KT20y_Ihquok_J0Z2CwsFyds6fAhkrpX_uBtGFKGo/s320/Milton+Friedman+Portrait.jpg" width="286" /></a></div>
<br />
<div style="text-align: center;">
<b>He Told You So</b></div>
<br />
A <a href="http://blogs.wsj.com/economics/2016/04/26/where-just-a-misdemeanor-could-keep-you-out-of-a-job/">story</a> on the Wall Street Journal's "Law Blog" highlights a <a href="http://www.nelp.org/news-releases/report-states-fall-short-in-reducing-job-licensing-barriers-for-workers-with-conviction-records/">study</a> by the National Employment Law Project demonstrating one of the many perils of occupational licensing statutes, namely, that many such statutes needlessly exclude individuals with a criminal record, including some with misdemeanors, from employment in the field in question. According to the story, about one in four Americans works in a profession that requires a state license, and nearly one third of Americans have a criminal record. While some states (<i>e.g. </i>Minnesota), ignore convictions for offenses unrelated to the licensed occupation in question, others invoke unrelated convictions to bar individuals from a licensed occupation, sometimes declaring such convictions evidence of the sort of "moral turpitude" that requires such exclusion.<br />
<br />
As a result of these restrictions, perhaps millions of Americans cannot pursue the vocation of their choice in some states, thereby undermining basic occupational liberty, preventing countless voluntary transactions, and depriving society of the productive services of talented individuals. To be sure, some of these restrictions may serve valid public purposes, as when a state bars convicted bank robbers from driving armored cars. However, many such restrictions do not, as when, for instance, a state bars an individual convicted of marijuana possession from serving as a manicurist, landscape worker, make up artist, travel guide, bar tender, taxidermist or animal trainer. (<i>See </i><a href="http://ij.org/report/license-to-work/tables/table-1-number-of-states-that-license-102-lower-income-occupations/">here</a> for a list of 102 occupations to which some or all states limit entry.)<br />
<br />
At the same time, this anti-liberty "synergy" between the criminal law and occupational licensing is just one negative facet of a legal regime that grants states nearly limitless authority to prevent individuals from pursue their chosen vocation. As Milton Friedman explained more than half a century ago, many such statutes infringe the basic human freedoms to engage in voluntary wealth-creating transactions, while simultaneously protecting incumbent producers from competition, reducing output and increasing prices. <i>See</i> <b>Milton Friedman, Capitalism and Freedom</b> 137-160 (1962). Thus, Friedman contended, society should adopt a very heavy presumption against such regulation. <i>See id</i>. at 144. These conclusions, of course, followed ineluctably from basic economic science. Even some progressives, <a href="https://www.whitehouse.gov/sites/default/files/docs/licensing_report_final_nonembargo.pdf">including the Obama Administration</a>, have finally conceded Friedman's point that occupational licensing wreaks significant harm on the economy. Unfortunately these same progressives still maintain their ideological and <a href="http://bishopmadison.blogspot.com/2014/02/the-minimum-wage-as-economic-alchemy.html">anti-scientific</a> support for <a href="http://bishopmadison.blogspot.com/2012/12/president-obamas-strange-critique-of.html">other intrusive regulations of labor markets</a>, thereby weakening the sort of intellectual milieu necessary to true reform. (Indeed, the same National Employment Project supports the anti-liberty and anti-wealth measure known as the "minimum wage.") <br />
<br />
The National Employment Law Project identifies a serious problem, namely, numerous unjustified abridgments of personal liberty. These results come as no surprise to those who have long internalized Friedman's lessons. However, Friedman also provided the best solution to this problem, <i>viz</i>., a wholesale embrace of economic science and the resulting elimination of the vast majority of occupational licensing statutes, period. Nibbling around the edges by altering the interaction between the criminal law and unjustified occupational licensing is at best, a half-measure. </div>
Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-82241199322605727922016-04-27T13:50:00.001-04:002016-05-12T15:10:57.642-04:00Did the Harvard Placemats Abridge Free Speech? Why Great Universities Should Not Take Political Positions <div style="text-align: justify;">
<br />
In an interview with the Weekly Standard's William Kristol, Lawrence Summers, President Emeritus of Harvard University, decries what he calls "creeping totalitarianism" on many of America's college campuses. (Go <a href="https://www.youtube.com/watch?v=N81HGMQriPk">here</a> for a video of the full interview.) Examples, he said, include calls [by students at Yale] to fire faculty who question university policy as well as Harvard's "us[e] of placemats in the dining hall to propagandize about what messages students should give their parents about Syrian refugee policy[.]" Explaining why he believes these actions were problematic, Summers invokes basic free speech principles, namely, that the "answer to bad speech is different speech [and] not shutting down speech."</div>
<div style="text-align: justify;">
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<div style="text-align: justify;">
Summers is certainly correct to decry both the particular events described above as well as the anti-academic trend that these events exemplify. At the same time, this blogger respectfully suggests that Summers has identified two analytically distinct issues. To be sure, firing someone for expressing disagreement with University policy abridges the sort of free expression that public universities are obliged to protect and that many private universities (<a href="http://bishopmadison.blogspot.com/2016/02/yale-really-does-protect-free.html">including Yale</a>) promise to protect. Those who call for such termination instead of engaging in counter-speech thereby ignore the basic premises of a free society that inform the protection that a university accords free expression. <br />
<br />
Ironically, even the Harvard administrators responsible for conceiving and distributing the place mats in question conceded, in a <a href="http://links.mkt3495.com/servlet/MailView?ms=MTI1MTg3MDAS1&r=MTE2NzExNzQxNTg5S0&j=NjQzNTUxOTc4S0&mt=1&rt=0">letter of apology</a>, that distribution of place mats contravened "academic freedom." However, distributing placemats containing political messages does not in the view of this blogger abridge free expression or contradict academic freedom. On the contrary, the propagation of centrally-approved political messages left members of the Harvard community (and everyone else) perfectly free to express their disagreement with the messages in question or, for that matter, with the decision to create and distribute such mats in the first place. Many, including Harvard's Undergraduate Council and College Republicans, did exactly that (<i>see</i> <a href="https://drive.google.com/file/d/0By8LSX6DBUaHd1B0dFV2TzB2bEU/view?pref=2&pli=1">here</a> and <a href="https://www.facebook.com/HarvardGOP/photos/pcb.1052584841428767/1052583414762243/?type=3&theater">here</a>), without suffering any penalty, whether formal or informal. As Justice Brandeis <a href="http://www.firstamendmentcenter.org/madison/wp-content/uploads/2011/10/Brandeis_dissent_Ruthenberg.pdf">explained</a>, those who wrote and ratified the First Amendment believed that "liberty was the secret of happiness and courage the secret of liberty" and that "an inert people" was the "greatest menance to freedom." Freedom implies the courage to exercise it, even in the face of dominant opinion. <br />
<br />
None of this is to say that the distribution of such placemats was appropriate. Such distribution offended a different but related principle, namely, that universities should not take political or ideological positions, even if taking such positions leaves members of the community entirely free to disagree. Nearly five decades ago, a University of Chicago Committee chaired by Harry Kalven <a href="https://provost.uchicago.edu/sites/default/files/documents/reports/KalvenRprt.pdf">explained</a> why great universities should remain politically and ideologically neutral:<br />
<br />
<div class="MsoNormal">
"To perform its mission in the society, the University must sustain
an extraordinary environment of freedom inquiry and maintain an independence
from political fashions, passions and pressures. A university, if it is to be true to its
faith in intellectual inquiry, must embrace, be hospitable to, and encourage
the widest diversity of views within its own community. It is a community, but only for the limited,
albeit great, purposes of teaching and research. It is not a club, it is not a trade association,
it is not a lobby. . . . . A great university should not, therefore, permit itself to be diverted from its mission into playing the role of a second-rate political force or influence."<o:p></o:p><br />
<br />
By taking political or ideological positions, then, a university short-circuits the process of inquiry, discussion and engagement that furthers the pursuit of truth and its dissemination in the classroom. One might also add that, by rejecting neutrality and wading into social or political disputes, a university discourages individuals who might disagree with these positions from joining the university community in the first place, thereby reducing the extent of ideological and political diversity at such institutions. Moreover, a university that takes such positions implies that there is an <i>academic </i>answer to<i> </i>vexing political or social controversies. While the results of academic inquiry can of course inform public debate, such results can rarely settle such debate. A university that suggests otherwise misleads the public (perhaps inadvertently) and, by trafficking in political or ideological disputes, undermines the perceived credibility and academic integrity of its own scholars, by signaling that politics, not free inquiry, drives their research. This can be so even if, as often happens, administrators, and not scholars, determine a university's official position on (non-academic) matters of the day. As the Kalvin Report properly explained, a "great university's . . . prestige and influence are based on integrity and intellectual competence" and not upon things like "political contacts or influential friends." While taking political positions may further the short term interest of a university or those who lead it, taking such positions will, over the longer run, compromise the institution's reputation for integrity and intellectual competence, thereby (properly) weakening its influence and prestige.</div>
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Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-85673474254192951022016-04-22T10:23:00.003-04:002016-04-22T10:23:53.805-04:00We Need More Reagan, Not Less<div style="text-align: justify;">
<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjwsRU8IUGSdA8t53gw9GOFN4tDuD3H28s-7yIu-ruWxbAHgHhkWNnMcjG63_W5hWm6bLpfl0VcvzNWaIsYVE995SouZ-CEmZ1x0S9tcMeqBmBPjb1tJiDC3kyYvHSUKiWB-nyw7v3zg8Y/s1600/Reagan+Explaining+Tax+Relief.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="211" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjwsRU8IUGSdA8t53gw9GOFN4tDuD3H28s-7yIu-ruWxbAHgHhkWNnMcjG63_W5hWm6bLpfl0VcvzNWaIsYVE995SouZ-CEmZ1x0S9tcMeqBmBPjb1tJiDC3kyYvHSUKiWB-nyw7v3zg8Y/s320/Reagan+Explaining+Tax+Relief.jpg" width="320" /></a></div>
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<div style="text-align: center;">
<strong>Had A "Reaganite" Plan</strong></div>
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<strong>Executed the Plan</strong></div>
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In a <a href="http://www.nytimes.com/2016/03/25/opinion/the-post-trump-era.html?_r=0">recent op-ed</a>, David Brooks claims that what he calls the "post-Trump" Republican party will have to reject Reaganism in favor of a new organizing philosophy. While Brooks admits that the "Reagan orthodoxy" was "right for the 1980s," he also claims that this template is "increasingly obsolete." In particular, Brooks claims that: "[t]he Reagan worldview was based on the idea that a rising economic tide would lift all boats. But that's clearly no longer true." Analogizing to Thomas Kuhn's work on scientific revolutions, Brooks observes that today's Republicans "are still imprisoned in the Reaganite model . . . ask Reaganite questions [and] propose Reaganite policies." Because the Reaganite model no longer works, Brooks says, conservatism is in a crisis state and must develop a new model. Among other things he suggests that conservatives turn away from economic theory and embrace Sociology because, in his words: "Homo economicus is a myth and conservatism needs a worldview that is accurate about human nature."</div>
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Brooks' assessment of modern Republican ideology rests upon a crucial assumption, namely, that a robustly rising economic tide does not lift all boats. However, he offers no evidence to support this assumption. To be sure, the current economic recovery has left out millions of Americans. Some cannot find jobs and others must work two or more part-time jobs to make ends meet. Total employment rose a mere 10 percent from 2009 through 2014. Median household income, is <a href="http://www.statista.com/statistics/200838/median-household-income-in-the-united-states/">still below</a> what it was in 2008, and poverty rates are <a href="http://www.statista.com/statistics/200463/us-poverty-rate-since-1990/">still higher</a>. In 2015, the United States experienced its <a href="http://www.cnsnews.com/news/article/terence-p-jeffrey/us-has-record-10th-straight-year-without-3-growth-gdp">10th straight year of economic growth below 3 percent</a>, apparently a record, though not the sort of record that any country brags about. (GDP growth in 2015 was<a href="http://www.bea.gov/newsreleases/national/gdp/2016/gdp4q15_3rd.htm"> 2.4 percent</a>.)</div>
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Still, these data shed no light whatsoever on the "Reagan worldview," or the usefulness of "Reaganite policies" derived from economic theories assuming that human beings are rational actors that respond to incentives. In March, 1983 President Reagan, who had majored in Economics, <a href="http://www.nytimes.com/1983/03/06/us/reagan-in-oregon-forecasts-powerful-economic-recovery.html">predicted</a> that his policies across-the-board tax cuts (<a href="http://bishopmadison.blogspot.com/2010/08/john-f-kennedy-radical-supply-sider_08.html">inspired by John F. Kennedy</a>), reduced regulation and free trade would produce an economic recovery that would be "powerful and sustained." (The second photo above depicts President Reagan signing the Economic Recovery Tax Act of 1981.) He was correct. Between 1983 and 1988 (inclusive), the economy grew at an annual average rate of 4.6 percent, more than twice the rate of growth during this most recent recovery. During the same period median real household income rose 10.9 percent and rose another 1.8 percent in 1989. The economy added 17,913,000 jobs, increasing total employment by 20.1 percent, twice the rate of the current recovery. Exports skyrocketed as more productive U.S. industries won new markets abroad. Tax relief allowed Americans in all economic classes to keep more of their income. Rules indexing the standard deduction and tax brackets for inflation preserved the value of the deduction and protected low and middle income taxpayers from the sort of "bracket creep" that had pushed Americans of modest means into higher tax brackets in the late 1970s. A significant portion of the tax burden <a href="http://www.jec.senate.gov/public/_cache/files/9576a929-37b4-497c-9b06-4bf3481f9f0a/the-reagan-tax-cuts-lessons-for-tax-reform-april-1996.pdf">shifted</a> from the middle class to those in the "top one percent" of the income distribution. <br />
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None of this is to say that the Reagan recovery improved the lives of each and every American. Still, the difference between that recovery and the most recent one is stark indeed. It is little wonder that, less than two years into the Reagan recovery, the American people resoundingly reelected President Reagan <a href="http://uselectionatlas.org/RESULTS/national.php?year=1984">in a landslide</a>, <i>i.e.</i>, 49 of 50 states and nearly 59 percent of the popular vote. In so doing the voters rejected former Vice President Mondale's platform of higher taxes, Trump-like economic protectionism and more intrusive federal regulation. The economy continued to grow into 1990, thus constituting the <a href="http://www.heritage.org/research/reports/2001/03/the-real-reagan-economic-record">longest peacetime expansion in U.S. History</a>.<br />
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This blogger believes that most Americans would be thrilled by an economic recovery similar to that which occurred between 1983-1990. Any decision to reject the "worldview" that helped produce that recovery should be based on sound argument and hard evidence, not cavalier speculation. We need more Reagan. Not less. </div>
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Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-30724238128428077062016-03-05T20:38:00.000-05:002016-03-06T10:07:18.804-05:00On the Senate's Absolute Discretion to Refuse to Consider Nominees <div class="separator" style="clear: both; text-align: center;">
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<b>Still Waiting For A Hearing . . .</b><br />
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<b>Denied 32 Nominees a Hearing </b></div>
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In an <a href="http://www.nytimes.com/2016/03/04/opinion/joe-biden-the-senates-duty-to-advise-and-consent.html?ref=opinion&_r=0">op-ed</a> in yesterday's New York Times, Vice President Joe Biden contends that Article II, Section 2 of the Constitution imposes a "constitutional obligation" on the Senate to provide "advice and consent" with respect to any nominee to the Supreme Court that the President submits. This requirement, according to the Vice President, includes meaningful "consideration" of such a nominee as exemplified by "meetings," "hearings," and/or "votes." This requirement to consider such a nominee, the Vice President says, "is written plainly in the Constitution that both Presidents and Senators swear an oath to uphold and defend." The Vice President also claims that failure to consider such a nominee is an "unprecedented act of obstruction." </div>
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1. The Vice President is wrong on both counts. Neither the Constitution's text nor historical precedent requires the Senate to provide such "consideration" to a nominee. Indeed, the Vice President himself, while chairing the Senate Judiciary Committee, repeatedly declined to consider Presidential nominations that were governed by the very same constitutional text that he now claims "plainly" required such consideration. The power to provide "advice and consent" is a discretionary, political power, which the Senate may exercise or not in whatever manner it deems appropriate. <br />
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2. Article II, Section 2 of the Constitution provides as follows:</div>
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The President "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States." </div>
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The text plainly empowers the President to nominate, at his discretion, possible Supreme Court justices, ambassadors, public ministers and consuls<i>, </i>and other "officers of the United States."<i> </i>The text also requires, in a straightforward and unambiguous way, Senate "advice and consent" (sometimes called "confirmation"), before the President may appoint such a nominee to the office in question. The clause does not, however, mention or impose any <i>duty </i>to consent to such nominations or, for that matter, to consider the nomination in any particular way. The Vice President's assertion to the contrary is just that, an assertion, which attempts to transform a requirement of Senate consent before appointment into a constitutional mandate of an (unspecified) amount and type of "consideration" before granting or withholding such consent. Far from "plainly" requiring such process, the language of Article II, Section 2 simply does not bear this construction, which would assign the phrase "with the advice and consent" two entirely different functions. As Ed Whelan <a href="http://www.nationalreview.com/bench-memos/432361/biden-senate-role-vacancy">explains</a> over at Bench Memos. "the Constitution says nothing about how the Senate should go about exercising its <i>power</i> to advise and consent-or-withhold consent, and it thus leaves the Senate entirely free to exercise that power as it sees fit." In the same way, it should be added, the Constitution leaves the President entirely free to determine how to go about deciding whom to nominate in the first place. <i>See</i> Public Citizen v. Department of Justice, 491 U.S. 440, 467-89 (1990) (Kennedy, J. concurring) (explaining that Congress cannot regulate the process employed by the President to determine whom to nominate to federal office).<br />
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3. Of course, historical practice can in some instances give meaning to ambiguous constitutional provisions. However, even if the language of Article II, Section 2 were ambiguous, and it is not, historical practice contradicts the Vice President's reading of this provision as well as his claim that refusal to consider a nominee during the next several months would constitute "an unprecedented act of obstruction." For instance, according to <a href="http://www.au.af.mil/au/awc/awcgate/crs/rl33225.pdf">this 2009 report</a> by the Congressional Research Service, Henry Stanberry (pictured above), whom President Andrew Johnson nominated to the Supreme Court in 1866, received no hearing, no committee vote, and no Senate vote. George E. Badger, nominated by President Fillmore in 1853, also received no hearing or Committee vote. Worse yet, the Senate never even referred his nomination to the Judiciary Committee but instead simply voted to "postpone" consideration of his nomination, to which it did not return. In the same way, the Senate also refused to refer the 1861 nomination of Jerimiah Black to the Judiciary Committee, and the Senate declined to proceed to a vote on his nomination. Even these examples of purported "obstruction" seem relatively minor compared to the experience of President Tyler, whose nominations for a single seat on the Supreme Court repeatedly failed to obtain Senate approval, <a href="http://www.pewresearch.org/fact-tank/2016/02/26/long-supreme-court-vacancies-used-to-be-more-common/">resulting in a vacancy of 841 days</a>. </div>
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4. Those who prefer more modern examples need look no further than the current Chief Justice of the United States, John Roberts, Jr. President George H.W. Bush nominated Mr. Roberts to an open seat on the U.S. Court of Appeals for the District of Columbia Circuit in January, 1992. Judges of that court, are, like all federal judges, "officers of the United States." Such nominations are therefore subject to the same Article II, Section 2 that governs Supreme Court nominations. If this constitutional text "plainly" obliges the Senate to "consider" Supreme Court nominations, then it must also require the same consideration for other nominees. However, the Senate Judiciary Committee, chaired by then-Senator Biden, refused to consider the nomination of Mr. Roberts. This was not the only such example. As Jonathan Adler <a href="http://www.nationalreview.com/bench-memos/432030/biden-blocked-more-roberts">reports</a>, the Judiciary Committee also refused to consider the nomination of <a href="https://www.law.virginia.edu/lawweb/faculty.nsf/FHPbI/1145759">Lillian BeVier</a> to a seat on the U.S. Court of Appeals for the Fourth Circuit, for which President Bush nominated her in October, 1991. Again, there was no hearing, no committee vote, and no Senate vote. Indeed, after reviewing a different report of the Congressional Research Service, Marc Thiessen <a href="https://www.washingtonpost.com/opinions/how-biden-killed-john-robertss-nomination-in-92/2016/02/25/c17841be-dbdf-11e5-81ae-7491b9b9e7df_story.html">concludes</a> that Senator Biden's Judiciary Committee "killed 32 Bush [nominees] to the federal bench without giving them so much as a hearing." If Vice President Biden's current interpretation of Article II, Section 2 is correct, then he violated his oath of office 32 times during that period. There is, of course, an alternative and more persuasive account of the Committee's actions, and one that does not impute any such violation to then-Senator Biden, namely, that the Senate was exercising its constitutional authority to decline to consider such nominations.<br />
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5. In Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice John Marshall explained that the Constitution vests the President "with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience." Marshall continued that "the subjects [of such powers] are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive." According to Marshall, the power to nominate officers of the United States was just such a power "to be exercised by the President, according to his own discretion." The Senate's power to advise and consent is also such a power, committed to the discretion of the Senate and subject only to the constraints of politics and conscience. To be sure, discretion vested in the Executive, Legislative or Judicial branch can be subject to abuse. However, as Joseph Story explained nearly two centuries ago:<br />
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"It is always a doubtful course to argue against the use or existence of a power from the possibility of its abuse. It is still more difficult by such an argument to ingraft upon a general power a restriction which is not to be found in the terms in which it is given."<br />
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<i>See</i> Martin v. Hunter's Lessee, 14 U.S. 304, 344-45 (1816). Story was of course speaking of the meaning of Article III, and the possibility that the Supreme Court might abuse its authority to review a state court's construction of federal law. However, his argument is perhaps even stronger in the context of Article II, where both the President and the Senate are, unlike the Courts, subject to political constraints. In a constitutional republic, the remedy for abuse of the power to nominate and/or to advise and consent resides at the ballot box, and not the imposition of an <i>ad hoc</i> extra-constitutional "restriction which is not to be found in the terms in which [the power] is given." </div>
Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-8856843402922671142016-02-29T17:53:00.000-05:002016-02-29T17:55:49.334-05:00On the Miniscule Chance That a Run By Michael Bloomberg Will Precipitate a Constitutional Crisis <div style="text-align: justify;">
Billionaire and former New York City Mayor Michael Bloomberg is <a href="http://www.cnn.com/2016/01/23/politics/michael-bloomberg-president-2016/">reportedly</a> considering running for President as an independent. In a <a href="http://www.latimes.com/opinion/op-ed/la-oe-0225-ackerman-12th-amendment-bloomberg-20160225-story.html">recent Op-ed</a>, Bruce Ackerman argues that such a third party run could "plunge the country into a constitutional crisis." Ackerman envisions a scenario in which Bloomberg wins enough states that no candidate earns a majority of the nation's 538 electoral votes. Absent such a majority, Ackerman explains, the <a href="http://constitutioncenter.org/interactive-constitution/amendments/amendment-xii">12th Amendment</a> requires the newly-elected House of Representatives to select the President, from among those three candidates that earned the most electoral votes. The Amendment also provides that the delegation of each state casts a single vote, and requires a majority vote of 26 states to elect a President. If no candidate receives such a majority, then the individual recently elected Vice President assumes the Presidency as acting President, unless that individual received less than a majority of the electoral votes cast, in which case the Senate elects the Vice President/Acting President. Ackerman opines that such a process with degenerate into a "free-for-all," characterized by "desperate efforts," "melodrama" and political maneuverings pursuant to a process that the People find "utterly mysterious," leading them to "turn away in despair." The original 12th Amendment, Ackerman says, "can't cope with the realities of modern politics." If Mr. Bloomberg is a true patriot, Ackerman says, he will not allow "personal ambition" to "throw the United States into a grave constitutional crisis."</div>
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The scenario that Ackerman imagines, while theoretically possible, is highly unlikely. For one thing, a single significant third party candidacy has <i>never</i> prevented a major party candidate from obtaining a majority of electors. Indeed, the 12th Amendment has come into play exactly once, in 1824, when <i>four</i> significant candidates (Andrew Jackson, John Quincy Adams, William Crawford and Henry Clay) received 99, 84, 41 and 37 electoral votes respectively. If history is any guide, a third party run by Mr. Bloomberg will no more result in invocation of the 12th Amendment than did such runs by Theodore Roosevelt, George Wallace, or Robert M. Lafollette, all of whom won electoral votes.<br />
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More fundamentally, Ackerman's analysis does not come to grips with one of the "realities of modern politics," namely, the Republican Party's <a href="https://www.washingtonpost.com/news/the-fix/wp/2014/11/05/its-all-but-official-this-will-be-the-most-dominant-republican-congress-since-1929/">dominance of the House of Representatives</a>. The GOP currently maintains a 247-188 margin in the House, with many Democratic seats concentrated in large single states such as California, New York and Illinois. More importantly, <a href="https://www.govtrack.us/congress/members/">Republicans currently hold majorities among the House delegations of 33 states</a>. Three other delegations are evenly split and thus could conceivably swing Republican in 2016 or, if they remain split, vote for the Republican candidate upon invocation of the 12th Amendment. It seems fanciful to assume that eight or more such states will choose Bloomberg over a Republican nominee for President. To be sure, the 12th Amendment provides that <i>newly-elected</i> House members would elect a President if the provision is invoked. However, given that only a <a href="http://www.pewresearch.org/fact-tank/2014/11/03/for-most-voters-congressional-elections-offer-little-drama/">handful of House races are competitive</a>, the chance that Republicans will emerge from the 2016 elections with majorities of less than 26 House delegations seems highly remote. Thus, far from assuring a constitutional crisis, a run by Mr. Bloomberg could increase the chance of a Republican President come 2017. Mr. Bloomberg can run for President with his patriotism intact.</div>
Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-88134163587489087132016-02-23T13:07:00.002-05:002016-02-23T13:28:29.507-05:00Yale Really Does Protect Free Expression (For Now) <div style="text-align: justify;">
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<span style="font-family: inherit;">A recent </span><a href="http://www.economist.com/news/united-states/21689603-statement-heart-debate-over-academic-freedom-hard-say" style="font-family: inherit;">essay</a><span style="font-family: inherit;"> in the Economist magazine addresses efforts to curb free speech on college campuses around the country. According to the piece, students at 72 colleges have demanded that universities curtail free expression in one way or another. The essay also notes that the University of Chicago has rejected such efforts and </span><a href="https://provost.uchicago.edu/FOECommitteeReport.pdf" style="font-family: inherit;">reaffirmed its commitment</a><span style="font-family: inherit;"> to "free, robust, and uninhibited debate and deliberation among
all members of the University’s community."</span></div>
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<span style="font-family: inherit;">Fortunately Chicago is not standing alone. As the Economist reports, the Chicago statement has inspired similar or identical statements by a growing number of institutions, including <a href="https://www.princeton.edu/main/news/archive/S42/84/36I47/index.xml?section=topstories">Princeton</a>, the <a href="http://host.madison.com/wsj/news/local/education/university/regents-approve-resolution-supporting-free-and-offensive-speech-on-uw/article_93fc3c92-716e-5e4f-b7b5-03e38f3f7b5b.html">University of Wisconsin</a>, <a href="https://www.purdue.edu/purdue/about/free-speech.html">Purdue University</a>, <a href="https://www.american.edu/facultysenate/upload/AU-FACULTY-SENATE-RESOLUTION-ON-FREEDOM-OF-ACADEMIC-EXPRESSION-FINALv3.pdf">American University</a>, <a href="http://www.chapman.edu/about/administration/chancellors-office/statement-on-free-speech.aspx">Chapman University</a>, <a href="https://www.thefire.org/wssu-general-faculty-resolution-chicago-principles/">Winston-Salem State</a> and <a href="http://web.jhu.edu/administration/provost/initiatives/academicfreedom/AcademicFreedomatJohnsHopkins.pdf">Johns Hopkins</a>. (Click on each respective institution in the previous sentence for a link to the relevant policy statement.) Like Chicago, some of these institutions are private and thus not subject to the First Amendment. Nonetheless, each believes that protection for Freedom of Expression is essential if a University is to play its fundamental role of facilitating the search for truth.</span></div>
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<span style="font-family: inherit;">The Economist also notes that support for the Chicago position is "not universal." In particular, the Economist cites Yale University as an example of a university that has purportedly declined to embrace the Chicago approach. The essay concedes that a 1974 report of a Yale committee --- the famous <a href="http://www.yale.edu/sites/default/files/files/freedom1975.pdf">Woodward Report</a> --- extols the "right to think the unthinkable" and "discuss the unmentionable." Still the essay notes that one member of the Committee that prepared the report dissented and that a minority of those surveyed at the time expressed skepticism about whether certain forms of free expression should be tolerated. The essay also claims that the report, "when read in full . . . is confused."</span><br />
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<span style="font-family: inherit;">Closer inspection, however, reveals that the Economist's characterization of Yale's official position on Freedom of Expression is unwarranted. Instead, Yale's policies, contained in the Woodward Report, are for all intents and purposes identical to those contained in the Chicago statement. For instance, the Woodward Report, which begins with a quote from Milton's <a href="https://www.dartmouth.edu/~milton/reading_room/areopagitica/text.shtml">Areopagitica</a>, provides that:</span><br />
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“The history of intellectual growth and discovery clearly
demonstrates the need for <i>unfettered
freedom</i>, <i>the right to think the
unthinkable</i>, <i>discuss the
unmentionable</i>, <i>and challenge the
unchallengeable</i><b>.</b>” (emphases added here and below)<o:p></o:p></div>
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The Report also recognizes that Freedom of Expression
supersedes other important values, including harmony, civility and mutual
respect. Thus the Report provides as
follows:</div>
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“<i>Without sacrificing its central purpose, [the University] cannot make
its primary and dominant value the fostering of friendship, solidarity,
harmony, civility, or mutual respect<b>. </b></i>To
be sure, these are important values; other institutions may properly assign
them the highest, and not merely a subordinate priority; and a good university
will seek and may in some significant measure attain these ends. But it will never let these values, important
as they are, override its central purpose.
We value freedom of expression precisely because it provides a forum for
the new, the provocative, the disturbing, and the unorthodox.” <o:p></o:p></div>
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The report also makes it clear that each individual who
voluntarily enters the Yale community thereby takes on the obligation of
protecting Freedom of Expression, “above all.”<br />
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"By voluntarily taking up
membership in a university and thereby asserting a claim to its rights and
privileges, members also acknowledge the existence of certain obligations upon
themselves and their fellows<i>. Above all, every member of the university has
an obligation to permit free expression in the university</i>. No member has a right to prevent such expression.”<br />
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<span style="line-height: 107%;">The Report recognizes that there are "</span><span style="font-family: "times new roman" , serif;"><span style="line-height: 17.12px;">slurs or epithets" that "n</span></span><span style="line-height: 17.12px;">o member of the community with a decent respect for others should use" and that individual members of the community have "ethical responsibilities" to refrain from certain forms of expression. This language, while certainly correct, may well be the source of the "confusion" the Economist alleges. However, this language does not ambiguate or detract from the Report's endorsement of unfettered free expression. Instead, after noting these "ethical obligations," the Report expressly "</span><span style="line-height: 17.12px;">reject[s]" the "</span><span style="line-height: 107%;">argument that behavior which violates these social and ethical
considerations should be made subject to formal sanctions" as well as "the argument
that such behavior entitles others to prevent speech they might regard as
offensive." Allowing such institutional or private censorship, the Report says, would contradict the "conviction that the central purpose of the university is to foster the free access of knowledge." As a result, the report concludes "</span><span style="line-height: 107%;">even when some members of the university community fail to meet their
social and ethical responsibilities, the <i>paramount obligation</i> of the university
is to protect their right to free expression. This obligation can and should be
enforced by appropriate formal sanctions." Such "</span><span style="text-indent: 0.5in;">secondary social and ethical
responsibilities," the Report concludes, "must be left to the informal processes of suasion, example and argument." </span></span><br />
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<span style="font-family: inherit; text-indent: 0.5in;">In sum, the Woodward Report, issued more than four decades ago, is a classic articulation of the virtues of Free Expression in the University context and an unqualified rejection of calls to censor speech, even speech that is offensive. Like <a href="http://www.firstamendmentcenter.org/madison/wp-content/uploads/2011/10/Brandeis_dissent_Ruthenberg.pdf">Justice Louis Brandeis</a>, </span><span style="text-indent: 48px;">the Report recognizes that the expression of noxious ideas that all good people will reject out of hand is a possible but unfortunate byproduct of robust protection for free expression. Presumably the authors of the Report also believed that members of the community have an ethical obligation to denounce and condemn such speech. </span><br />
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<span style="font-family: inherit; text-indent: 0.5in;">To be sure, support for Free Expression was not unanimous at the time within the Yale Community. One member of the twelve person committee that drafted the Woodward Report dissented, and numerous members of Yale community apparently disagreed with portions of the Report. But then <a href="http://chicagomaroon.com/2015/01/09/land-of-the-free/">the main student newspaper at the University of Chicago</a> objected to the Chicago statement. S</span><span style="font-family: inherit; text-indent: 0.5in;">uch dissent, itself an example of Free Expression, does not undermine the clarity of Yale's or Chicago's commitment. Perhaps more to the point, </span><span style="font-family: inherit; text-indent: 0.5in;">Yale has codified the Woodward Report in its "Undergraduate Regulations." (</span><i style="font-family: inherit; text-indent: 0.5in;">See</i><span style="font-family: inherit; text-indent: 0.5in;"> </span><a href="http://yalecollege.yale.edu/sites/default/files/files/URs%202015-2016%281%29.pdf" style="font-family: inherit; text-indent: 0.5in;">here</a><span style="font-family: inherit; text-indent: 0.5in;">, pp. 47-49). The same regulations prohibit faculty, staff or students from interfering with the "orderly conduct" of a lecture, meeting, or "other public event." (<i>See id</i>. at 49).</span><br />
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<span style="font-family: inherit; text-indent: 0.5in;">It thus appears that the Economist has inadvertently misinterpreted Yale's policies on Free Expression. Instead of diverging from Chicago's recent statement, the Woodward Report presaged it. </span><span style="font-family: inherit; text-indent: 0.5in;">Indeed, Yale is not alone in anticipating Chicago's statement. A little more investigation reveals that, while not "universal," support for Freedom of Expression within American Higher Education is perhaps broader than many suppose. </span><span style="font-family: inherit; text-indent: 0.5in;">Here in Virginia, for instance, three universities --- George Mason, William and Mary, and the University of Virginia --- have received the very highest rating for protection for Free Expression from the <a href="https://www.thefire.org/">Foundation for Individual Rights in Education</a>, a non-profit organization that </span>“defends and sustain individual rights at America’s colleges
and universities” <span style="font-family: inherit; text-indent: 0.5in;">Many other major universities have also received FIRE's very highest rating, including UNC Chapel-Hill, Arizona State University, Carnegie Mellon, the University of Florida, the University of Pennsylvania and the University of Utah, (<i>See</i> <a href="https://www.thefire.org/spotlight/?x=&y=&speech_code=Green&submit=GO">here</a> for a full list of schools that have received FIRE's highest rating.) </span><br />
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<span style="font-family: inherit; text-indent: 0.5in;">Of course, formal policies do not always suffice to protect Freedom of Expression or other liberties. Even the <a href="http://www.constitution.org/cons/ussr77.txt">1977 Soviet Constitution</a> --- 177 articles long --- included protections for "freedom of speech, of the press, and of assembly" (Article 50) as well as "freedom of conscience" and the right "to profess or not profess any religion, and to conduct religious worship or atheistic propaganda." (Article 52) As Judge Learned Hand famously <a href="http://www.providenceforum.org/spiritoflibertyspeech">explained</a>, in a 1944 speech to over a million citizens: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it." In the same way, no university policy, no matter how eloquent or widely embraced when adopted, can ensure continued robust protection for Free Expression, unless there is sufficient support for this value within the relevant community. Those who hope to preserve Free Expression in America's colleges and universities must do more than invoke standing policies authored generations ago. They must, in addition, continually affirm and defend the paramount value of freedom of expression. In this spirit, universities may wish to sponsor programs or workshops for incoming students explaining the origin and rationale for robust protection of freedom of speech on campus as well as any alternative perspectives on the matter. </span><br />
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Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-7960373786156853382016-02-16T10:14:00.000-05:002016-02-16T10:19:40.194-05:00Justice Scalia, Rest in Peace<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg11VNqkeXb5sjv8w1FuWvTQaUicCpxP3j44SO0oEfd0iwLxrrvaK97E4To-s1046A1S3JbYN1PoHug-ks34EsErBFal3QnJAMc17tf7OLnhv_7svao1FJ888lk7pFfcbwNhlxEDJ7O8SI/s1600/Justice+Scalia+Official+Photo.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg11VNqkeXb5sjv8w1FuWvTQaUicCpxP3j44SO0oEfd0iwLxrrvaK97E4To-s1046A1S3JbYN1PoHug-ks34EsErBFal3QnJAMc17tf7OLnhv_7svao1FJ888lk7pFfcbwNhlxEDJ7O8SI/s320/Justice+Scalia+Official+Photo.jpg" width="240" /></a></div>
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Justice Antonin Scalia died unexpectedly over the weekend. Individuals who often disagree about fundamental legal and political questions have offered effusive praise for the Justice, filled with superlatives such as "<a href="http://www.libertylawsite.org/blog/">giant of jurisprudence</a>," "<a href="http://www.bloombergview.com/articles/2016-02-14/the-scalia-i-knew-will-be-greatly-missed">great man</a>," "<a href="http://www.nytimes.com/2016/02/13/opinion/antonin-scalia-conservative-legal-giant.html?_r=0">legal giant</a>," "<a href="http://www.slate.com/articles/news_and_politics/jurisprudence/2016/02/antonin_scalia_was_a_truly_great_supreme_court_justice.html">one of the greats</a>," "<a href="http://www.theatlantic.com/politics/archive/2016/02/what-made-antonin-scalia-great/462837/">great</a>," "<a href="http://www.theatlantic.com/politics/archive/2016/02/what-made-antonin-scalia-great/462837/">legal giant</a>." (again), "<a href="http://www.usatoday.com/story/news/politics/2016/02/14/statements-supreme-court-death-justice-scalia/80375976/">legal titan</a>," and "<a href="http://www.law.virginia.edu/html/news/2016_spr/scalia.htm">deeply principled</a>." </div>
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Those who are familiar with Justice Scalia's life and work are not surprised by these encomiums. The Justice was deeply and fiercely committed to the
Rule of Law. He knew that departure from the original meaning of the Constitution or ordinary legislation gave judges and others a license to exercise
arbitrary and illegitimate authority over their fellow citizens. Through sheer force of intellect, profound learning, wit and powerful expression, he changed the way that lawyers and judges interpret and thus apply legal texts in our constitutional republic. As a Judge and then a Justice he worked tirelessly to discern and apply the meaning of statutes and constitutional provisions that governed the cases before him, rendering great service to our constitutional republic in the process. He did all of this with an abiding faith in the
American People and their ability to govern themselves through law, both ordinary and constitutional, that compels officials, including judges, to heed the People’s
will. His work and personal example inspired countless individuals to defend the Constitution and the Rule of Law. His death leaves an enormous void in our Republic and in the lives of so many individuals who loved and admired him. </div>
Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-70792006568052613052016-02-06T23:58:00.002-05:002016-02-07T14:54:33.450-05:00Tribe Chalks Up 17th Win in Williamsburg <div class="separator" style="clear: both; text-align: center;">
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj-YFD2LRBIQfdpKQtRxAPR1anqPLK25TpLTSL-y_Qt3R7BLtaP00rsw2mjAPrJh6vsnc-t4mqEq8Suv-lEdt3_OIb6DHvb1MUH3gbwy2GWh6JzJsvdeLUsSn7j3fLNJ-qeQCRo1_yd42A/s1600/Final+Score+William+and+Mary+v+Delaware+2016.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="173" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj-YFD2LRBIQfdpKQtRxAPR1anqPLK25TpLTSL-y_Qt3R7BLtaP00rsw2mjAPrJh6vsnc-t4mqEq8Suv-lEdt3_OIb6DHvb1MUH3gbwy2GWh6JzJsvdeLUsSn7j3fLNJ-qeQCRo1_yd42A/s320/Final+Score+William+and+Mary+v+Delaware+2016.jpg" width="320" /></a></div>
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<strong>Comfortable Margin</strong></div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjUtWBzJw5KyDpddPdPs4KERIijnlYJnrZvie3K-DTifSi16r8AXtZ5xudV5hgtMb9FuArG0d5xBMCkekvTJE0kLErLJWPjZlvNVT0b3dh8BtIjV8GetPlcUM2l1wqij8v1ufORZxkBXcs/s1600/Tribe+Prewitt+Tarpey+Three+Pointers.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="302" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjUtWBzJw5KyDpddPdPs4KERIijnlYJnrZvie3K-DTifSi16r8AXtZ5xudV5hgtMb9FuArG0d5xBMCkekvTJE0kLErLJWPjZlvNVT0b3dh8BtIjV8GetPlcUM2l1wqij8v1ufORZxkBXcs/s320/Tribe+Prewitt+Tarpey+Three+Pointers.jpg" width="320" /></a></div>
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<strong>Powerful Three Point Duo</strong></div>
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William and Mary continued its march to a third straight 20 win season today, handily defeating the University of Delaware 90-64 before 6,028 fans --- the most this year --- in Williamsburg. The Tribe sank thirteen three point shots, including two each by Terry Tarpey (pictured above on the left) and Omar Prewitt (pictured above on the right). Prewitt scored 21 points, leading a balanced scoring attack that left five Tribe players in double figures. Tarpey also snagged 11 rebounds, and Sean Sheldon added 8. (Go <a href="http://espn.go.com/ncb/boxscore?gameId=400833123">here</a> for the game's box score.)<br />
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The Tribe now sits in sole possession of second place in the CAA, with a 17-6 record (9-3 in conference play), just one game behind the UNCW Seahawks. Even before today's win, William and Mary stood 34th in the <a href="http://espn.go.com/mens-college-basketball/rpi/_/sort/RPI">RPI power rankings</a>, ahead of Arizona, Michigan and Indiana, for instance. With <a href="http://www.tribeathletics.com/schedule.aspx?path=mbball">six games left</a> in the regular season, three potential games in the <a href="http://caasports.com/tournaments/2016_caa_men_s_basketball_championship">CAA tournament</a>, and a possible bid to the NCAA tournament beyond that, the Tribe seems poised to match or exceed the 24 wins it earned in the <a href="https://en.wikipedia.org/wiki/1948%E2%80%9349_William_%26_Mary_Indians_men%27s_basketball_team">1948-49 season</a>, when the team finished second in the Southern Conference, behind North Carolina State.. (That season's schedule included games against the Norfolk Naval Air Station, Quantico Marines, Langley Field, and the Little Creek Amphibious Base.)<br />
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The Tribe takes on Hofstra at William and Mary Hall this Thursday, February 11 at 7:00 PM. Go Tribe! </div>
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Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.comtag:blogger.com,1999:blog-1453262429738808778.post-35910318142951099172016-02-05T22:31:00.001-05:002016-02-05T22:31:15.544-05:00William and Mary BOV Announces Charter Day Extension of President Reveley's Appointment<div class="separator" style="clear: both; text-align: center;">
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<b>Reason to Celebrate!</b></div>
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Today William and Mary celebrates the 323rd anniversary of its <a href="file:///C:/Users/ajmees/Downloads/UA77.1977.13_20140416.pdf">Royal Charter</a>, issued by King William and Queen Mary in 1693. The charter provides that the College shall consist of "one President, six Masters or Professors, and an hundred scholars [students] more or less." The Charter named James Blair, selected by the General Assembly of Virginia, as the College's first President, "during his natural life." Bishop James Madison, for whom this blog is named, served as President of the College from 1776-1812. </div>
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Blair and Madison are tough acts to follow, but W. Taylor Reveley III has proved himself a worthy successor to these leaders. Earlier today Todd Stottlemyer, '85 and Rector of the College and William and Mary, announced that the College's Board of Visitors has unanimously extended the appointment of Taylor Reveley as President of William and Mary until June, 2018. <a href="http://www.wm.edu/news/stories/2016/wm-board-extends-contract-for-president-reveley.php">Here</a> is the complete announcement.<br />
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Rector Stottlemyer's announcement rightly notes that President Reveley's leadership "has been crucial to the University's sustained excellence." He took the helm in early 2008 and has presided during a time of great financial challenge to higher education in general and William and Mary in particular. Along with Rector Stottlemeyer, former Rector Trammel, and others, President Reveley helped conceive, develop and execute a new financial model for the College, in the form of the <a href="http://www.wm.edu/sites/wmpromise/excellence/index.php">William and Mary Promise</a>. Recently <a href="http://www.wm.edu/news/stories/2015/william--mary-board-extends-wm-promise.php">extended</a> by the Board of Visitors, the Promise helped ensure that entering students would experience predictable tuition bills while simultaneously enhancing affordability for low and middle income families and generating stable revenue necessary for important investments in academic excellence. As a result, the College continues to provide an excellent and accessible education. At the same time, President Reveley and others conceived and launched the College's most ambitious fundraising campaign, <a href="http://www.wm.edu/news/stories/2015/william--mary-launches-campaign-to-raise-1-billion.php">For The Bold</a>, with a goal of raising $1 billion, about a third of which will be devoted to scholarships. He also established a strategic planning process, under the auspices of the University's Planning Steering Committee, to ensure a more transparent assessment of the College's objectives and a more rational allocation of resources between such objectives. In short, the College is fortunate that he has agreed to extend his service as President.<br />
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This blogger would be remiss if he did not mention one more notable achievement, namely, the designation of the College's current mascot. After a grueling process that produced <a href="http://www.wm.edu/about/mascot/background/finalists/index.php">five finalists</a>, President Reveley chose the Griffin, as recounted in <a href="https://www.youtube.com/watch?v=BZzPwofDnQA">this video</a>. No wonder the mythical creature is clapping! </div>
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Alan Meesehttp://www.blogger.com/profile/08005988559868702868noreply@blogger.com