Ciceronian Review

Corporate Say So

Earlier in the week, E. Volokh wrote a piece arguing that corporation should have something like the full panoply of Constitutional rights.  In particular, corporations should have full First Amendment rights, due process rights etc.  The substantive argument is that corporations are really just groups of individuals and in the absence of the Constitutional rights, the individuals would be unable (or it would be much more difficult for them) to accomplish their ends.  Corporations are just a group of people who designate another smaller group to act on behalf of the larger.  The piece is well-done, rhetorically.  But it is grounded in conflation and a kind of confusion.  (It is also curious in that it amounts to a justification for divestment programs and boycotts of businesses on political or other ideological grounds.  Not inconsistent, because Volokh is not really a political conservative -- but his argument is adopted political conservatives for whom divestiture and boycott are troubling, if not anathema.)

While corporations are associations, there is no good reason to think that associations should be understood as corporations.  Nor is there reason to think it particularly difficult to distinguish among associations or among corporations.  We have lots of different kinds of corporations, and many more kinds of associations.  Denial of First Amendment rights to commercial corporations does not have any particular implication for other sorts of associations, whether or not one thinks the association rights reduce to member rights.  There are many models of informal associations which effectively project the opinions of adherents, without invocation corporate form.  Boycotts, for example.  As we have single purpose corporations, and corporations with limited lives and limited purposes, and a host of foundations and kinds of non-profits, it is difficult to see why they should all be conflated to a single model, represented by business corporations. 

At the same time, it is inaccurate to describe the political activities of commercial corporations as representative of the views of ownership, or to suggest the political activities reflect anything like a plausible delegation of decisionmaking on the topic.  Set aside the many arguments to the end that ownership should focus on return, or that managerial decisions ought not be available to review or direction by ownership, although I think they would eventually have to be addressed by V.  Look instead for now at the argument that management of commercial corporations can be said to reflect ownership preferences on political issues or to have received some sort of delegation from ownership.  Where would prospective owners gain information about the political views of the directors and senior management?  When is that put up for the shareholders?  How is it reflected in stock pricing?  What the reasoning that suggests that when commercial corporations speak on political issues they do anything other than amplify the preferences of individuals who constitute management?  I would be interested in seeing the studies.

Which returns to the claim that admiting that GM's First Amendment rights are not very important tells us nothing much about the ACLU or RNC or NRA, or NYT.  Otherwise, V. should be arguing that there cannot be legitimate constraints on any association activity -- i.e., there is no basis for distinguishing among associations such as non-profits, etc.  That may be, but I have not seen an argument to that point. 

A final point -- we already deny commercial corporations lots of speech.  Regulation of fraud, for example, limitations on representations of causal effects, requirements of truth telling in connection with issuance of securities.  That is all a bit different from rights of persons -- V. can expound all he likes about the value of laetrile, but SmithKline cannot.  I am not sure how that sort of line can be drawn if we do not accept that commercial corporations have quite limited rights of this kind.

 

Texas Court of Criminal Appeals

As I go, I commend this opinion for your consideration (via Legal Ethics Forum).  It appears that, at least in Texas, there is no problem with the judge and prosecutor having sex while trying a capital case.  And note that almost all of those on the court sat with the judge involved.

The Texas Court of Criminal Appeals is appalling. 

All Gone Long Gone Real Gone Gone

On vacation for a bit.

Grave Robbing Is Not So Bad After All

The first of the defendants in the southern Utah group caught illegally collecting artifacts and rummaging through graves received sentences today.  The US Attorney said that "the public needs to understand that looting artifacts, many considered sacred by Native Americans, from public and tribal lands is simply not going to be tolerated. It is clear that there is a continued need for education on the serious nature of these crimes."   Judge Waddoups may have agreed; it is a little hard to say.  The defendants were guilty of 10 felonies.  The judge is quoted as saying: "I want to express my thanks," Waddoups said to the Redds and their family. "I know this has been a terrible experience for all of you."

The sentence was a small fine for each of the defendants and probation.  That sends a message. 

Dworkin Again

The second piece in Dworkin's essay that annoyed me (annoyance is the right term - there is no theoretical point underlying I think) was in this paragraph:

So the decision marks yet another step in the conservative justices' campaign to ban the most effective means of reducing racial tension in our country. They want to eliminate all vestiges of race-sensitive measures designed to help end racial stratification. They outlawed sensible school assignment plans in Louisville and Seattle that used racial tests.^[10] They hope to overrule Justice Sandra Day O'Connor's Grutter^[11] and now they have all but neutered the disparate impact provisions of the Civil Rights Act. Yes, it would have been unfortunate for the white firefighters who had studied so hard to make them take a new and different test. Sotomayor's panel expressed sympathy for them. But it is also bad—for community harmony and effective municipal service—when a city with a 60 percent minority population fields a police or fire department with few or no minority officers.

Well it is nice that the panel expressed sympathy for them.  In Plessy the justices were nice too.  I don't much care.  I rather doubt it meant much to the firefighters that the panel felt a bit sad about telling them they were out of luck (because of their or someone else's race).  If it did, then I suppose the African American firefighters now are now comforted.  I wouldn't. 

I think the panel ruled correctly, given the law before them.  I found Sotomayor's explanations of her panel decision and en banc decision completely satisfactory.  The Supreme Court decision changed things.

I have difficulty seeing why the racial composition of a fire department is of great import to a community.  I find that story, a bit opaque.  Firemen do not regulate the populace, they do not have extensive interactions with the community.  Dworkin's argument here, a pretty consistent position for him, is ironic in the sense that he seems to have no sense at all of economic strata or the effects of economic position on one's life and experience.  It is just race and sex that count for him, not class.  That is a mistake.

Dworkin

The current issue of the NYRB has an essay by R. Dworkin on the confirmation of Justice Sotomayor.  The greater portion of the essay concerns the content of the hearings, in particular the now well-established practice of nominees and Senators working in tandem to avoid saying anything of interest during or in connection with judicial confirmation hearings.  Everybody loves baseball and never a thought about anything anyone has ever talked about or about anything anyone cares about the courts doing.  So the now-confirmed justice says nothing intelligent about her judicial philosophy and the Senators ask her inane questions.  No different than Roberts or anyone else in a long time.  Dworkin thinks this is bad for the courts and bad for political integrity of the country.  All that matters happens in the dark of vetting and interviews, and the public is handed a completely ridiculous set of stories about what the supreme court justices do.  I agree with Dworkin, and note that it also results in a good deal of outright lying by nominees. 

Dworkin is quite restrained on the popular umpire metaphor.  It is indefensible, and so silly as to be stupid.  A clear sign of intellectual failure.  Cases before the Supreme Court are nothing like calling balls and strikes, and there is no intelligible theory of judicial decision-making at the level which could justify such talk.  They set the rules, and no umpire does that.  But that (ill-tempered rant) is for another day, far off in the future.  Although, I do pause here to wonder what happened to all the originalist theory and analysis when the Supreme Court heard more argument on corporate political speech.  Does anyone really think that there is an originalist account of the First Amendment that would accord corporations any rights under that Amendment?  Really now, will we be giving Microsoft a vote?  That also some other day.

What I started off to comment on are two points in the latter portion of Dworkin's essay.  About two thirds of the way through, he says:

The main bone the Republican senators gnawed during the hearings was Sotomayor's now famous remark that "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." That statement does seem to challenge the myth: if a judge has only to discover the law, and if personal experiences and convictions are irrelevant, what difference could it make whether the judge is a woman and a Latina? It was therefore imperative for Sotomayor, since she had declared that her constitutional philosophy was only fidelity to the law, either to explain away or to abandon her remark. She first said that she meant only that judges should set their personal experiences aside, which appears the opposite of what she had said. Later, on several occasions, she retracted the statement altogether:

My rhetorical device failed. It failed because it left an impression that I believe something that I don't.... It left an impression that has offended people and has left an impression that I didn't intend.

In fact, however, if we substitute "sometimes" for "more often than not," leaving the question open which kinds of cases she had in mind, her remark makes eminent sense. It plainly helps a judge not only in finding facts but in formulating law to be able empathetically to understand the law's impact on people of different kinds. As Justice Ruth Bader Ginsburg told The New York Times, for example, being a woman helps a judge understand the horror of a strip search for a teenage girl.^[7] Being a Latina may give a judge a better understanding of the crucial moral difference between racial discrimination poisoned by prejudice and race-sensitive policies aimed at erasing that prejudice. A judge with that understanding would reach a better interpretation of the Constitution's equal protection clause than a judge without it. No wise Latina would miss the obtuseness of South Carolina Senator Lindsey Graham's observation, for instance, that if he had said a wise white man could make better decisions his career would have been destroyed.

The first part of this is, if meant literally, inane.  The second is obviously wrong.  To suggest that sometimes members of one demographic make better decisions than members of some other demographic -- sometimes the latian gets it right and the Anglo man gets it wrong and sometimes it is the other way around -- is not "eminent sense," it is trivial and embarrassingly obvious.  The only one to dissent is someone who thinks some such demographic is always better (or worse), and none of them are in public life (outside of Zion).  Sotomayor should have walked back from the statement; it is patent that it is just false.  It is also not of any real importance -- she was talking in an informal way to a friendly audience.  What Dworkin is saying next is next to foolishness.  A judge with "a particular understanding would reach a better interpretation of the Constitution" does not mean much here.  A particular understanding either means a theory of interpretation, including substantive normative views -- which will pretty frequently yield a preferred interpretation I would hope -- or he thinks there is some understanding that comes from being Latina (or maybe it is wise Latina), which is hard to take seriously.  Is it Latina but not Latino?  No Puerto Rican (or is it nuyorican?) Pinochet or Castro or .... is that the story?  And I suppose all the white males are of a kind - can't tell the Germans from the Italians.

Dworkin's is a defense we can do without.

Credibility

The Inspector General's report on the SEC investigations (yes, plural) of Madoff is out.  In the tradition of defendant pleads not guilty news reports, the IG found that the SEC's investigations were incompetent.  It is interesting that no internal discipline seems to be involved, or recommended (although have only seen summaries of the report).  How could it be that there is no penalty of SEC incompetence?  The private professionals - lawyers and accountants - are likely facing loss of license and severe financial penalties, so why shouldn't the people whose job it is to ferret out exactly such fraud, and who investigated the ponzi scheme several times without noticing it made no sense, face some sort of discipline?  That, I think, would be an important step in the SEC recovering some credibility.  It would be especially galling for an accounting firm facing SEC inquiries just now to listen to castigation for possible negligence when the agency managed to bungle so badly and apparently does nothing in the way of discipline.

One irony of the report is that one of the attorney's who conducted the incompetent investigation received high ratings for exactly that work.

CIA Needs Better Defense

With AG Holder's announcement of an investigation into CIA interrogation conduct, we get an array of protest.  Most of it falls into either (1) such an investigation is an improper political review of a prior administration's policies, or (2) such an investigation will cause the CIA not to do its job properly in the future because employees will be afraid of after the fact prosecutions.  (Not so much protest along the lines of 'no point to investigating what was legally permissible' which is a bit of surprise to me.  Maybe I missed it.)  The two general lines of argument are remarkably silly for all  the play they get. 

I don't see why CIA agent, who are supposed to tough people risking the health and lives for the good of the country, patriots of the old school who will defend the nation with their lives, are afraid of testifying in front of Congress or the remote possibility of prosecution for crimes.  How hard are these guys, if that is what scares them?  Most high school football players take bigger risks for a much smaller purpose.  And what is the fear?  That like the rest of us, they may get prosecuted for committing crimes?  This is a peculiar piece of argument.  Soldiers get prosecuted for committing crimes.  Even those brave boys of high finance sometimes get prosecuted for committing crimes.  I don't see why CIA folk can't do their jobs perfectly well while living with the risk that if they commit crimes on the job they will be prosecuted.  The prosecution of Mr. Foggo should not cause the collapse of the CIA.  (How he got to the top of that organization remains a mystery to me -- but then I knew him long ago.)  The conduct alleged has been illegal for a pretty long time.  I assume they all or mostly managed high school and college, and so are generally familiar with the idea that one of the things that made Nazis and Communists evil was the use of torture. 

The complaint that an investigation may criminalize policy differences is at least as odd.  Change sin enforcement policies happen all the time.  The economy has not come to a halt because of changes in tax enforcement or securities enforcement policies.  This is not enactment of an ex post facto criminal law, and reading existing statutes differently is not new.  Sometimes the change make more things legal than in the past and sometimes the other way around. 

The argument should be that the alleged conduct at issue is not illegal.  I suppose one could argue that the law does not apply to the CIA.  It is a poor line of argument.  It is stupendously shortsighted.  And it has no legal foundation, at least as far as I can tell.