Call Me Maybe

I can’t stop thinking about this video (warning, if you have a terrible workplace, this may not be safe for work):

Carly Rae Japsen - Call Me Maybe (Chatroulette Version) from ePlay TV on Vimeo.

Lots of people have linked to it and even written about it. But my mind keeps tracing back to it as the weeks go by. I love the obvious things about the video: the confidence, freedom, and kind heartedness of the dancer, the sheer joy of the viewers, and even the music, which if we’re honest is very hard to dislike even if it doesn’t run toward my usual tastes.

What really has its hooks in me, though, is the way it so crisply reminds us of the fullness of human nature. The guys, many with shirts off, are almost surely online for reasons they’d not discuss with their mothers. And the dancer plays to this prurience, makes a kind of mockery of it. Just as we’re repulsed by the viewers’ intentions, they smile and are won over by the dancer. As that smile crosses the face, we see a kind of openness in them, and we’re won over as we see a fuller picture of them. There’s such optimism in this. People aren’t just creepy, just hateful, just professional, just deviant, just straight-laced, just addicts, just conservative, just liberal, just angelic, just gross, just clean, just thoughtful, just thoughtless. We’re this whole, wonderful bundle of contradictions, and I’ve rarely seen it expressed so succinctly, in a way that makes me feel such unabashed happiness. Kudos internet.

In Defense of Titanic

Titanic is a movie about what it means to save someone and what it means to be saved.  It’s a cartoon, yes, the characters archetypes, if not quite caricatures.  And it’s otherwise easy for some to hate.  In fact, it seems fashionable to show disdain for it.  Doing so misses something important about our openness to art, defined simply as the portrayal, rather than raw transmission, of ideas.  For me a film is a success if it’s authentic and provides a new space, or maybe a new reason, to turn over thoughts.  Is someone actually trying to tell me something, and have they provided space for me — emotionally, intellectually, whatever — to think and feel?  Titanic does.

It wouldn’t be hard to describe the film in an unflattering way:  “A teenaged brat, who all too typically has issues with a controlling mother, gives everything up for a dashing young free spirit who could be a boy-band member and who takes her innocence and saves her life.  The tragedy of the Titanic itself is both eye candy and a mere backdrop for teenagers in love.  There is a ridiculously stereotypical and unredeemable villain and even a chase scene involving a gun.  The dialogue fails to develop instances of complex and real human beings.”

All these things are somewhat true but miss the point.  The cartoon characters that compose the plot are isolations of human tendencies — not false so much as incomplete.  The film is a sketch of emotions and our own conflicting ambitions cast over a transformative event.  The sinking is this one, small funnel through which everything that was before swirls downward to a point, and from which everything emerges as a gift and a matter of pure choice.

It’s not that Titanic makes us actually fret over how to balance comfort and security (Rose’s beginning) against daring, truth, and intentional living (Rose’s end).  No, Cameron never makes us really feel that Rose is throwing away anything important when she leaves wealth and status behind.  Even when she climbs back on board the sinking ship, we surely admire it.  Internal, ethical struggle is not what this movie is about.

One could make a wonderful film that captures the essence of that dilemma, that makes the viewer feel the torment of trading away comfort for freedom.  An easy lesson in the abstract, the singular nature of life and the importance of mustering the courage to throw off our shackles could, in the hands of committed actors, writers, and a director, be felt as horrifically difficult and agonizing.  The obvious abstract lesson, glorified in many lesser films, could be cinematically rendered to show the internal conflict of fear, logic, hope, and desperation that rages in our meat-bound brains.  But Titanic is not a lesser film for not doing this.  

The beauty of the film lies in the passion of its large scale historical depiction and in the very small scale revolution it worked in the lives of Jack and Rose. Rose saved Jack as much as Jack saved Rose.  And against the epic backdrop of the sinking of a massive ship, the event that just makes you wonder what you’d do at the end of all things when all the usual rules die away, we appreciate a life well-lived as consisting both of freedom and of freely chosen but deeply felt obligation.

Freedom and obligation, each seems to be the other’s absence.  That’s true of course. I’m free to choose if I’m not obligated to make a particular choice. And I’m obligated if I’m not entirely free.  But as the opposing forces of the electron and proton draw them together to create the matter of our world, simultaneous obligations and freedoms are essential to the complete human being. 

Our main characters arrive on Titanic as distillations of these pure states.  Jack, seemingly very happy to drift through life beholden to no one, relishes adventure and not knowing even where he will next sleep.  He is the embodiment of the spirit we long for when obligation piles up into a twisted mass of metal, looming large as fully ground and seized gears.  Who wouldn’t want to be absolutely free of obligations?  Happiness, as Hitchcock said, is a “clear horizon.”

Rose arrives with the opportunity to want for nothing.  She is unburdened of choice.  She need have no fear of the panoply of acute and very real dangers that have threatened all the beings from whom she is descended, the poverty, the not knowing, the struggle, the warring tribes, the famine, the battle for survival and violence of the primordial pools.  Her unprecedented security would come at the price of an obligation to accept her place in the complex social structure that makes it possible.  The Jewel of the Sea is everything most people seem to desire all their lives, but it is locked in a box, the manifestation of the quid pro quo. (And the jewel, like the unobtainium in the equally misunderstood Avatar, changes its meaning as the characters change.)

Jack and Rose are incomplete.  Anyone who has experienced the joy of children, of family, of the best of friends, and of honest love can intuitively understand how obligation can enrich a life.  It’s the awesome power of voluntary obligation, to live in part for someone else, that Rose gave Jack.  The special kind of saving that we provide one another in little bits over the course of our lives, it was all channeled into a few hours during which Jack was himself saved by saving Rose.  It probably sounds corny, but I was moved watching Jack find the worth of that something worth dying for.

So too, anyone who has spent weeks in the wilderness, climbing high peaks, crossing deserts, or even lounging on exotic shores understands the kinetic energy of freedom felt in the gut.  As I write this, I’m flying over the Arizona desert, desperately longing to be exploring canyons and climbing mountains, to be in my sleeping bag with hood drawn and looking up at my own breath and the slow stars that are satellites in the pure, dark sky.  One image I always remember from Titanic is the photograph of a young but emancipated Rose in a pilot’s outfit, standing next to a plane.  Also, in that postscript of a scene, ranging over Rose’s memories, there are all around reminders of the family she later made and the implicit constraints and obligations that came with that.  Not least of all these is her own aged body.  Sure, these are symbols, and they are cliché.  But that doesn’t make it false: “This, like many clichés, so lame and unexciting on the surface, actually expresses a great and terrible truth.”

That is my Titanic.  Yes, it’s the backdropped story of hubris, adventure, and terror.  It isn’t Shutter Island. But there at its core is an opportunity for me to think, on a more emotional level, of the integral values that make this precious and all-too-short life worth living.

Dark Sky

About a year and a half ago, I was ready to leave the law school for the day, and so I packed up, glanced outside, and noticed a light drizzle. I ride my bike to and from work, about two miles from my home. I have no real problem being rained on, but if I could wait a few minutes and ride in mist or drizzle, I’d prefer it to riding in what might become a downpour. Glancing at the weather, you get something like this, which gives you a rough probability for rain for the “afternoon” or “evening.” Yes, weather.com does give forecasts in fifteen-minute increments, but I’ve never been a fan — having always been partial to the National Weather Service site and, especially in winter storm season, the forecast discussions.

I wanted an app that would quickly tell me what the chances were for rain, at different intensities, over the next half hour or so. An app that would quickly tell me whether to go home right now or wait it out a bit. I had this idea that you could scrape the NWS radar images, use an algorithm to detect the edges of the colored shapes that are the storms, and extrapolate to predict where the colored shapes would be over the next hour (maybe getting a little fancy by pulling in other data). While weather prediction is very, very hard and especially difficult to get right at particular places, perhaps it wouldn’t be so difficult to get reasonably accurate (for my purposes) forecasts for only an hour in the future.

Needless to say, I never made the app. But Adam Grossman and Jack Turner (no relation) had a similar idea and an absolutely terrific concept for implementing it. They raised money on kickstarter and have now shipped Dark Sky. It’s a fantastic application. Far better than the one I’d had in my head and just beautifully designed to do one kind of thing excellently.

On the iPhone, it comprises essentially two views. In one, you see text that tells you what the temperature and state of precipitation is right now and, below it, what will happen in the next hour. This view also shows a very clever graph. On the x-axis is the time, from now to an hour from now. On the y-axis is the level of precipitation, ranging continuously from none to low to medium to heavy. The yellow curve representing this wiggles to show uncertainty. The more it wiggles, the less confident you should be. Of course, this portrayal elides two distinct concerns: confidence that it will rain at all and heaviness of precipitation. But for the purposes for which you’ll use the thing, collapsing that into one nice graph is somehow perfect.

Just today, I was wondering whether it would rain while I was out for a run. I wanted to know whether it was likely to pour so hard that I needed a sandwich bag to encase my iPhone and whether I should encourage my father-in-law to go out for a walk. The app told me it would continue to rain lightly for a few minutes, not rain for about thirty, and then rain moderately to heavily after that for the rest of the hour. So I grabbed the sandwich bag, encouraged my father-in-law to walk into town (with an umbrella and having thought I could pick him up after the run if need be), and headed out. For the first few minutes, it drizzled lightly. It stopped for the next thirty minutes, and I was drenched for the last fifteen minutes. The app nailed it. Smells like the future.

Roles

Let’s suppose that President Obama has long believed that same-sex marriage is a civil right. What should we make, in that case, of his recent announcement that he believes gays should be able to marry? In my view, the President, no matter how longstanding his opinion, was right, or at least justified, to wait until now to announce it. And further, the Supreme Court ought to wait just a bit longer, if it can, before enshrining that understanding in the constitutional pantheon, as much as it belongs to be there.

First, I should emphasize that it may well be that Obama has only recently come to the personal conclusion that the law ought to recognize such marriages. He may even believe now that there is no federal constitutional right that would trump the many state statutes and constitutional provisions to the contrary. I doubt it, but I don’t mean to imply in what follows that his true, personal beliefs are other than how he has described them.

Instead, I want to emphasize the obligations and considerations in taking a position as a representative. There is and should be a difference between an individual’s wants, even concerning the law itself, and his or her wants for the institution he or she represents. In short, any representative must understand the importance of roles.

As a relatively unimportant assistant professor, I can express wants for my law school or university that I would not and should not express were I the president of the university. That’s not at all because a president must act in craven, political ways. Rather, my role as an individual faculty member includes an obligation to voice my opinions, adding to the menu of options offered up by others that will inform but not determine the ultimate decisions. As president, this option-producing function is not what’s most important. The university president is both a decisionmaker and a representative. He or she must indeed exercise independent judgment, but for the president to say, in this role, that something should happen or should not happen is a statement about the institution’s intentions, not simply his or her own.

When the President of the United States announces what he believes the law requires, he states something much more than a personal view. He has an obligation to represent the People and in doing so to announce not his own opinions on the controversies of the day, but his view of the proper role that the United State should play in understanding and resolving them. Balancing the need to be a good agent of the People (and not only those in your political base) while also being a good leader is the most difficult act that any scrupulous and well-meaning president must undertake. One must simultaneously give voice to those you lead and actually lead them.

“Do you believe in gay marriage?” becomes, when posed to the President, “How does the Executive Branch view the question of gay marriage?” These questions are not hermetically isolated, but they are nonetheless different questions.

The people of the United States have radically changed their mix of views on the sources of, morality of, and acceptability of homosexuality. However one dates this change, from early activism to the AIDS crisis (Philadelphia) is under-appreciated in this regard) to hum-drum, contemporary sit-coms, the normality of homosexuality and the humanity of gays have now been fully revealed to all who participate in popular culture. This has had the effect of encouraging more people to come out of the closet, which has led to more people having friends and family they know are gay, which only reinforces personal perceptions that gays are, in fact, ordinary people like the rest of us.

It’s a virtuous cycle and the engine of the inalterable trajectory of this issue: People who change their minds are changing it in favor of gay marriage. The population most hostile to homosexuality is dying off. The result of these fundamentals has made the ultimate outcome of this “debate” clear for a long time now, and the trend will only accelerate as people rush to get on the right side of history.

And so, the question has been at what point should the President announce his support for gay marriage. Last year, the White House decided not to defend the section of the creepily-titled Defense of Marriage Act that prohibits federal recognition of same-sex marriages performed in states that permit it. That was a statement that the federal government, if the Executive has its way, will bow to the determinations of states on either side of the issue in determining federal benefits. It did not state that the Executive had taken a position on how a state should resolve that question.

With his recent personal “affirm[ation],” the President has expressed that he, in his role, would like to see gay marriage approved, while explicitly suggesting that the question should, for now, be left to the states. This affirmation is, effectively, suggesting that the states should determine not whether but how quickly gay marriage is legalized throughout the nation. And, incidentally, he suggests they should kind of hurry the hell up, lest your state be one of the stragglers that is ultimately cleaned up by federal fiat - Loving v. Virginia style.

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The same is true of Supreme Court justices as is true of the President. The questions they resolve are not identical to the ultimate ones: what does the Constitution require? Rather, a justice must decide what the Supreme Court should do when hit with the question of a law’s legality. Because the Constitution rarely provides clear answers to such questions, it is all the more crucial that a justice understand what role the Court should play and how the Constitution is addressed to that role.

Viewing the Court in this way makes it much clearer why the Court most typically ratifies rather than forges social movements. The “under God” part of the pledge — a red scare-era addition meant to distinguish us from godless communists — seems quite obviously an unconstitutional act of Congress. But that does not mean that the Court had an obligation in the Newdow case to decide as such. While it might have been illegitimate to decide, substantively, that Congress had no sectarian purpose in adding the reference to the Abrahamic deity, punting on standing grounds was probably the better way to permit our society to work out the meaning of the Establishment Clause, that is, the proper role of religious reference and motivations in the public sector.

The choice the Court faces in the gay marriage cases may be more difficult. It would be better if marriage equality won out democratically — if we all owned the decision to be more inclusive. The Court would still be needed to pick up the pieces in a few years, compelling the handful of recalcitrant states as it did in Loving v. Virginia. But its hand may be forced by litigation, such as that in the Ninth Circuit pursued by Ted Olson and David Boies (and countless others, like the rather awesome San Francisco city attorneys).

Perhaps the Court will find a way to let these victories stand while giving the states another couple of years. Honestly, I think that’s all it’s going to take.

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When Obama suggests that the marriage question should be left to the states but that he believes gay marriage should be legal, he has made a profound move. The statement more or less consolidates some of the administration’s existing positions and provides signals concerning the future. It tells us that he believes the role of the federal government should be to remove any federal barriers to marriage equality and that it should encourage states to do the same. It also tells us that the day is coming when the federal government, through the Court, will ratify the changes in public acceptance of gay marriage that are not only ongoing but accelerating. Making such a statement is a weighty responsibility, and the President did nothing wrong if he delayed, even if for a long while, before doing so.

Forward.

Back in the fall of 2007, Wired held a contest to create a new slogan for NASA in lieu of NASA’s internal favorite: “NASA explores for answers that power our future.” Yeah, not so good, but the hive mind of the internet doesn’t always produce spectacular results either. In this case, the top three entries were:

1. Exploring Other Worlds, Understanding Our Own
2. NASA: Explorers Wanted
3. NASA: Bringing the Universe to Your Doorstep

So… not great. My own not-so-great entry was one word with a period that I thought captured the idea that would sell NASA to a budget-minded public. With appropriate typeface and logo-ization, the word would appeal to that innate sense that we’re part of something bigger, part of a progression, that the burden is now entirely on us to take the next giant leap. Simple and yet leaden with the weight of childhood dreams.

Forward.

Well, it got no traction and disappeared among the thousands of other suggestions that people felt strongly about. Today, I’ve been vindicated! There’s no way I could waste such a rare moment. Looks like someone else has seized on the power of that word (and on my preferred strategy of a “getting shit done” message).

While it appears to be just the name of this video, the Obama campaign could do far worse, in my not so valuable opinion, than use this word as an organizing principle. Behind it would be the primary, emotional messages: under control, getting things done, and doing what he says. The action equivalents of confidence, work ethic, and trust, respectively.

I’m not pushing any politics here, just interested in the way sets of positions and compromises can be emotionally bundled.

My favorite tweets

The four tweets I have designated as favorites on Twitter, the first because I teach property law and the others because they are sublime:

@ShitMyDadSays: “‘The dog don’t like you planting stuff there. It’s his backyard. If you’re the only one who shits in something, you own it.  Remember that.’”

@DalaiLama: “Noticing a single shortcoming in ourselves is far more useful than seeing a thousand in someone else. When it is our own: we can correct it.”

@DalaiLama: “The nature of our motivation determines the character of our work.”

@TychoBrahe: “I overheard my son in his room:  ‘I know you’re just fabric and stuffing and plastic,’ he said. ‘But you’ve been a wonderful friend to me.’”

I submit these four tweets alone justify all the social capital invested, sometimes wasted, and diverted into the production of Twitter.

Obamacare

The great attraction of Substantive Due Process as a substitute for more specific constitutional guarantees is that it never means never—because it never means anything precise.

Justice Scalia, Stop the Beach Renourishment v. Florida Dep’t of Envt’s Prot., 130 S. Ct. 2592, 2608 (2011).

The Supreme Court has begun its epic consideration of the “most important case ever” — the one reviewing the constitutionality of Obama’s health care reform.  Under established law, the case is neither difficult nor very interesting.  The challenge is to Congress’s power to impose a (modest and essentially compensatory) penalty on those who do not purchase health insurance as a necessary step to its objective of guaranteeing health insurance coverage for more Americans.  As many, many people have written, this is surely a necessary and proper means for regulating the interstate, commercial markets in health insurance and healthcare in order to ameliorate the severe problems suffered by and imposed on others by the uninsured.  (Whether it is a wise or good means is not a question that the Court has the power to consider.)

I see the case as a kind of constitutional oddity, where we’re just left with jaws gaping, wondering how we got to this point.  The point where the specter of government forcing you to buy broccoli is bandied about as a serious reason to dismantle the post-Great Depression understanding that Congress has power to attempt real solutions to national problems.

The vehemence of the debate is made both possible and inevitable by the uncertainties embedded in the Constitution. The words of the Constitution do not provide absolute constraints on their application.  Congress has the power to regulate interstate commerce and to do all things necessary and proper to regulate interstate commerce.  What’s commerce?  What’s necessary?  What’s proper?

When words have such open texture, there is room to locate within them many different outcomes in concrete cases. If you hate Obamacare, you’re drawn to thinking of it as illegitimate, surely representative of government excess.  And here’s the clause of the Constitution that defines that power, doesn’t grant unlimited power, and so must contain a limit — of some kind, right?

When constitutional or statutory language is unrestrictive, disagreements about how to apply it is played out in a predictable fashion.  Not being able to settle the dispute definitively using language, text, and intention, the debate shifts.  Legitimacy, not correctness, is the criterion for victory.  Tactics in such debates include pointing out the personal inconsistencies of the debaters, breaks with tradition, or slippery slopes.  We saw all this on display in the Obamacare litigation.

While the opinions may well sharply differ from the views their questions implied, the conservative members of the Court insisted: that there just must be some judicially enforceable limit to the commerce power, that personal liberty to refrain from commerce is implicit from an unwritten, vague penumbra of constitutional provisions, including the commerce clause itself and the Tenth Amendment’s reservation of unspecified rights to the states and people, and assertions concerning the unprecedented nature of the individual mandate.

The liberals pointed to the routine nature of commercial regulation, the particularities of this market (impliedly noting that most regulations are particularized for certain markets and that health care is an especially odd market), the history of judicial restraint in reviewing economic legislation, etc.  And many of us have marveled at the suggestion  of unwritten, penumbral individual rights on display in Scalia’s questions, a glaring, personal inconsistency if embraced as doctrine.

Indeed, if the questions reveal his thinking (a big “if” and so I use his name for discussion purposes not to criticize views he has not yet claimed as his own), Scalia has neither precedent nor personal consistency on his side.  But that doesn’t mean he’s wrong here.  He’s using a document that provides few constraints to infer concerns about the extent of federal power that trump concerns about the ability to solve national problems.  

We liberals typically see in the Constitution’s structure and historical development a concern for federally protected individual rights and a gradual realignment in favor of broad federal prerogatives to the detriment of state sovereignty — and the counter-majoritarian uses, rather than elite-protecting ones, of federal courts.  These broad principles lead us to find, in the uncertain language of due process and perhaps other clauses, a right to privacy and more robust protections for criminal defendants and others who are not likely to be able to protect themselves in the political process.

Scalia doesn’t think much of doctrines like substantive due process and the right of privacy that he perceives as unmoored from the constitutional text.  These doctrines, he maintains, provide no limits on judges and permit them to make essentially political judgments on a case by case basis.

But here in the Obamacare cases, as in cases striking down congressional acts in the name of “Our Federalism” rather than specific provisions, Scalia might find his own roving, super-textual mandate for expunging legislation that interferes with economic rights and property.  Indeed, the last couple of decades have seen a wave of conservative attacks on the post-Depression legal order: attempts to restore judicial protections of states rights and individual, economic and property rights.  From Citizens United, to the conservative reaction to Kelo v. City of New London, to efforts to expand the reach of the takings clause, to the effort in Lopez to reinstate commerce clause limits, to the sovereign immunity and anti-commandeering cases, to the subtle shift from suspect classes to suspect classifications in Equal Protection law.  These threads come together in the health care cases.  But only because conservatives have chosen to bring them together.

If Obamacare feels, deeply and intuitively, excessive, as I assume it does for some libertarian-minded conservatives, it’s natural to find it inconsistent with a constitutional scheme aimed to cabin excess.  First, you just assume there must be a “limit” to what Congress can do under the commerce clause, a limit beyond the existing ones (the Lopez limit to commercial activities when aggregating individual activities to find a substantial economic effect) and the protections against rights violations.  But the direction and magnitude of this limit a not specified, a principle beyond “The Federal Government Must Be Limited” is not made clear.  Under such conditions, any use of federal power lies on some vector from the origin, along which we can argue at some point lies “too far.” If we have no principle to tell us what purposes the limit serves and what it demarcates, then for any law we can scan around us, 360 degrees, to find the direction in which their is a downward slope, and we can call it slippery.

So what’s the alternative? Originalism or textualism? No.  Scalia’s right to look at the power-conferring and rights-protecting language of the Constitution and wonder what structure it implies.  It sets out ideas, ideas that reflected and gave birth to practices, and ideas that set the terms of debate.  But absolutely nothing in the clauses themselves provides a definitive answer, even in these very easy cases.  (I don’t mean here to imply I’m providing any kind of rebuke to recent academic writing concerning the various sorts of originalist interpretive theories.  It’s true that I don’t think they work, but this isn’t an argument to that effect.)

What’s odd is not that Scalia does this but that he worries about such odd things.  There’s a reason, for example, to worry that textualist elimination of the right of privacy would unleash governmental power inconsistent with the Constitution’s own structure.  Not only is it a possibility that government could do all kinds of bad things without the protection of judicially enforced privacy rights, it has actually happened.  There are reasons to believe that majority-controlled legislatures filled with culturally and religiously homogeneous legislators might not respect the integrity of the private lives of political minorities.

But what reason do we have to fear that government might force us to engage in unwanted economic transactions that similarly threaten to undermine the anti-authoritarian aims of the Constitution?  Is any actually worried that this law is indeed a stepping stone to one forcing us all to buy broccoli or to exercise?  In a nutshell, what reason is there to think that the political processes, elections and such, aren’t good enough to protect us from such things?  And, most importantly, can you think of any areas where the political processes would indeed fail but where the rights to autonomy contained within and among the Bill of Rights and Civil War amendments would be inadequate to the task?

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Politically, I see Obamacare as an attempt at compromise, an attempt to do something about the millions of uninsured while leaving as much to private markets as possible.  I’m left to scratch my head and wonder what opponents wish to do actually to solve this problem.  Do they understand the extent of problems many Americans have in this market?  Consider this:

[Young people without health insurance] aren’t stupid.  They’re going to buy insurance later. They’re young and need the money now. ….  When they think they have a substantial risk of incurring high medical bills, they’ll buy insurance like the rest of us.

Justice Scalia, at oral argument (emphasis added).  And there it is.

State Action Problems

I’ve finally released a draft of an article I’ve been working on for some time. I encourage, nay beseech you to download it and take a look! In this post, I’ll sketch out the problem, with a bit of background, and my solution. The fuller argument, obviously, is in the article. Here, I hope to use the description of my paper to show the kind of shift in thinking that we expect law students to make in the first year. A goal in law school is to move students from asking whether some bit of law is “right” to thinking more deeply about which institutions get to decide whether it’s right, whether there should be rules governing that decision, and how other institutions should treat the answers. Let’s turn to the problem at hand.

State Action

When you throw someone out of your home for saying something offensive to you, we say that’s your right. When the government throws someone out of a public park for saying something that offends it, we say that it’s violated the speaker’s rights. Why the difference?

In the case of the park, courts say there is “state action,” meaning that the state, the government, has produced the bad consequences. Nearly every prohibition in the Constitution and its amendments applies only to government, not to private citizens. That’s why you generally can’t complain to a court that your neighbor or your (private) boss has violated your “free speech rights.”

Seems easy enough: if some state agent stops me from speaking, takes my property, or treats me differently on account of my race, I can cite the First, Fifth, or Fourteenth Amendments to the Constitution as reasons for a court not to allow it. But if it’s a private citizen who fires me, refuses to invite me over, or divorces me on account of my race, religion, or activism, then the Constitution provides no help. At best, there might be statutes or other types of law to which I could turn. The Civil Rights Act of 1964, for example, prohibits racial discrimination in private hiring. The Constitution, however, does not.

Hard Cases

As is often the case in law, hard cases have destroyed this quaint understanding of state action. Such cases can lead us into nihilism, just accepting that the law on the books provides no real answers in any case in which we’d actually need to consult it, but they can also provide a deeper, richer understanding of what the underlying problem really is.

Take one hard case, perhaps the most famous of hard cases. In Shelley v. Kraemer, the Supreme Court was confronted with the perfect end-run around the Equal Protection Clause. Having struck down racist zoning laws in Buchanan v. Warley, property owners in many areas of the country were left to create their own, private racist zoning schemes. Using a device called a covenant (really just a contract relating to land that, if certain conditions are met, binds not only the parties but those who later purchase the parties’ lands), private landowners agreed with one another to bar African Americans from white neighborhoods. The state of Missouri upheld such a covenant. There was, therefore, no state law and, at the time, no federal law barring such an agreement. The effect was racially segregated zoning, with private actors using the market rather than the voting booth to enforce their racist preferences.

In another case, a private political group (the Jaybird Democrats) in Texas held a private poll to determine which white candidate would run in the actually primary. Unopposed by other whites, this candidate would be assured victory and non-whites practically excluded from holding office. And in yet another hard case, one corporation owned an entire town: streets, shops, buildings, sewage system and all. It, as a private citizen, refused permission to a Jehovah’s Witness to preach on a street corner.

In each of these cases, the Supreme Court found there was state action and that the Constitution applied to prohibit the private actors from discriminating. The reasoning for these decisions is a bit mysterious, and that is the problem with the doctrine. In Shelley the Court pointed to the fact that a state court enforced the covenant, and this enforcement was clearly state action. The obvious problem with that ground is that every legal dispute between private parties concerning private agreements may ultimately be resolved by and enforced by a public court. A private contract is not subject to, say, the First Amendment simply because the contract is the subject of a lawsuit.

In other cases, the Court has pointed to the “public functions,” like operation of a private town, performed by a private party as setting the party apart from most private actors, and using that to justify constitutional regulation. But the line between public functions and things private parties sometimes do is, to put it mildly, an uncertain one.

The Heart of the Problem

Let’s start over. It’s worth it, because understanding these cases actually helps us to see more clearly our legal system as a whole. It’s their very oddity that makes the state action cases such ideal objects for study. Scientists look for phenomena that break the known rules in order to understand the real rules better. That’s what we need to do here.

The first thing to note is that there is a distinction between laws that govern primary behavior, those that provide sanctions for actions, and those that provide rules for recognizing and making laws. H.L.A. Hart called these primary and secondary rules, respectively. This isn’t a very difficult concept: just think of the distinction between a law that prohibits murder and a law that says Congress can’t abridge the freedom of speech. The latter is a law regulating the making of law, a type of Constitutional Law.

The difficult state action cases arise because there’s a problem with the way we usually apply these secondary rules. Normally, the privately made rules of private actors are governed by what I call private Constitutional Law, which includes the ordinary law of contracts — how contracts are made, when they go too far, how they’re interpreted, and so on. And publicly made primary rules, like murder laws and laws creating liability for negligently caused injuries, are governed by public Constitutional Law, which includes, among other sources, the U.S. and state constitutions.

Here’s the thing: each body of Constitutional Law is tuned to govern a particular type of institution. Private Constitutional Law, including the law of contracts, is primarily concerned with ensuring truly voluntary transactions. Public Constitutional Law focuses on the problem of legislators, agents of the public, making law that will bind all the rest of us whether we like it or not. We need protection from public laws that ban speech, because lawmakers may impose this on us without our consent and to serve their own ends. We usually do not need protection (at least, as aggressive protections) from private contracts restricting speech, because the parties to the contract can refuse to consent to such terms. This paper, my earlier paper on the public/private theory of legal systems, and my earlier blog post on the structure of legal systems explain in greater detail how these two bodies of Constitutional Law differ.

The Two-Step State Action Solution

Let’s look at why Shelley, the case of private racist covenants, is so difficult. Formally, we have private actors engaging in private contracting. The private Constitutional Law established by the state’s law of contracts sees no problem with the voluntariness of these contracts. (There’s a wrinkle here that I explore a bit in the paper.) But, of course, the problem in Shelley is not with a single such covenant. It’s the fact that there were a great many of them, so many that there was a virtually uniform rule in lots of neighborhoods that non-whites could not live in the same areas as whites. Private constitutional law is not adequate to deal with this problem. Here, acting in concert, private landowners created a virtual law that imposed obligations on others. They acted as a legislature to create a racist zoning scheme.

In state action cases like Shelley, there appears what I call in the paper a “state action problem.” Private action that amounts to compulsory, public legislation creates a state action problem. (It’s not the only way, but a consequence of my theory is that this is a sufficient condition for finding a state action problem.) When private individuals make law for others, it becomes relevant whether they have acted adequately on those others’ behalf, just as it is for public legislatures. The consent among the contracting parties is a poor proxy for the overall public impact of the law. I say these sorts of laws raise state action “problems” because simple application of ordinary private Constitutional Law would poorly govern the private lawmakers. It’s the wrong set of rules given the lawmaking behavior of the private entities.

But, for a court, identifying a state action problem is only the first step. Other legal institutions may well solve the state action problem — by, for example, legislatively or judicially amending state contract law to provide specific constraints, perhaps even borrowing bits of public Constitutional Law. In the regulation of Homeowner Associations, state courts typically review rules passed by private boards, which look very much like the laws of legislatures, for “reasonableness,” rather than for the far more deferential “unconscionability” of ordinary contract law. This, to at least some extent obviates the need for a federal court to solve the state action problem itself.

So when should a court take it upon itself to solve a state action problem, through the rather blunt technique of pretending the private actor is a state actor and applying the Constitution? I argue that it should do so only when (a) there’s a state action problem that (b) other institutions, like legislatures and state courts, are peculiarly disabled from solving. And when does condition (b) occur? Among other times, when the private actors are using private law to impose disadvantages on “discrete and insular minorities,” groups that are relatively powerless to attract the protection of those other institutions that could solve the problem.

If you’re interested in seeing how this theory explains the apparently erratic state action doctrine and why the presence of racial discrimination seems so determinative, read my paper!

Are There Muppets in Galt's Gulch?

The op-ed by soon-to-be-ex Goldman Sachs employee, Greg Smith, is getting plenty of attention on the internets this morning. Called, “Why I Am Leaving Goldman Sachs,” the letter is a fine exemplar of the genre of bridge-burning parting shots by exiting employees. See also here and here. Smith excoriates the firm for what he says is its shift toward viewing clients only as profit centers, with the success of the client’s investments a distinctly, well not even secondary goal. Clients, it turns out, were often called “muppets.” On Twitter, Andy Borowitz went on a tear, tweeting: “BREAKING Goldman Reassures Clients: ‘All the Other Assholes are Staying.’”

I want to draw attention to one paragraph that captures the essence of the problem here.

What are three quick ways to become a leader? a) Execute on the firm’s “axes,” which is Goldman-speak for persuading your clients to invest in the stocks or other products that we are trying to get rid of because they are not seen as having a lot of potential profit. b) “Hunt Elephants.” In English: get your clients — some of whom are sophisticated, and some of whom aren’t — to trade whatever will bring the biggest profit to Goldman. Call me old-fashioned, but I don’t like selling my clients a product that is wrong for them. c) Find yourself sitting in a seat where your job is to trade any illiquid, opaque product with a three-letter acronym.

In simple terms, Goldman seeks to profit by encouraging clients to enter deals on bad information it provides.

The very reason we like private transactions is that we think people who trade with one another each want what the other has. They’ll be better off if they trade, and, therefore, we’ll collectively be better off. When you buy a car, you value the car more than the money you give to the dealer, and the dealer values the money more than the car. Simple. Here, Smith says, Goldman’s doing two things. It’s conveying information to clients in order to make them value a trade erroneously (erroneously form Goldman’s perspective). Then it’s transacting with them in a way that enriches Goldman but, presumably, impoverishes the client. And there’s no guarantee that Goldman’s gains even outweigh the client’s losses. You’d think the mortgage crisis never happened.

Economists may well suggest that we’re getting an efficient level of bad deals here. That is, clients don’t invest in obtaining more information on their own, because the marginal increase in deal quality that better information would give them is not worth the cost of acquiring it. Maybe, but this is a problem that repeats itself, and one wonders if this is really the best we can do. Your mechanic tells you that you need a new engine. The doctor tells you that you need a surgical procedure. The air conditioning repairman says that you need a new compressor. What do you do?

The simple fact is that our counter-party in each of these scenarios is wearing two hats. There is not one transaction, but two. On the one hand, they are our information agents, meaning that we are relying on them, and often paying them, to produce the information needed to decide whether to engage in a transaction. On the other hand, they are our prospective partners in that very transaction.

The case for regulation, for imposing legal duties on parties that both provide information and profit from our use of the information, rather than allowing the free market to do its thing is greater as the costs of getting a second opinion (in time, effort, and money) go up and as the cost on the agent of acquiring the information it’s withholding or distorting go down. (For a classic discussion of this, see this article by Richard Posner, especially page 21 about fraudulent nondisclosure.) In all of the above cases, there’s significant hassle in acquiring additional information — so much so that people often prefer investing in online systems to distribute information about trustworthiness (like yelp) to shopping engaging in more than one transaction to acquire information.

Now, there are of course costs that would owe to regulation here, perhaps even large ones to the extent we do more than punish outright, conventional fraud. And I’m not trying to make the case for any particular response. (I’m just kind of scratching around in this post.) Rather, I just found this to be an example of one of the many ways that free markets are not really free. They may, or may not, be freer than the alternative. But we are constantly boxed in by the state of our own knowledge, at the mercy of others whether we like it or not.

Clear: An App Object

When I began this blog with a post about the future of applications, I had in mind something like Clear, a new todo app for the iPhone. It, like Flipboard or Twitter for iPad but to an even greater degree, moves away from presenting an interface composed of standard computer-y metaphors. People who use computers all the time understand cursors, menus, dialog boxes, minimizing, windows, and the like. The designer, through these tools, is trying to say, “Use this program like you’ve used other programs that you’ve gradually learned to use or been taught how to use.” Apps of this style scream to the user, “I’m an interface. Just learn which parts of me to select or click in order to request I do something from the list of things I’m able to do.”

Clear is more like a physical object — but not at all in the faux-thing sense (or skeumorphic sense) of Apple’s calendar app, which is made to look but not completely act like a calendar, or the leather stitching in Find My Friends. No, Clear has an intuitive, internal logic and physics. It works more like a fully realized thing. You learn how to use it more like you’d learn how to use, say, an old cash register or a popcorn popper. In Clear, you pull, pinch, and push, and the app responds as if it’s a thing in the world being pulled, pinched, and pushed — but responding in slightly magical but coherent ways. You play with it for a bit, and then you just get how it works. Imagine that.

Clear’s not all the way there, but it’s pushing the boundaries toward App as Object. I’m convinced that the future of applications lies in the design of coherent, complete, functioning things.

[Note: Posting’s slow and going to continue to be slow for the next couple of weeks as I’m deep in article drafting and revising mode. Will post about that when I reemerge.]