Topic: Law and Civil Liberties

Rapid Reaction: Supreme Court Nominee

Merrick Garland is the safest, least ideological nominee President Obama could have made, which means that the president wants to put pressure on Senate Republicans more than he wants to energize his base.

Chief Judge Garland is assuredly a liberal vote on the most controversial, culture-war issues, but he’s just as surely the most moderate Democratic-leaning jurist under consideration on cases that fly under the radar.  But as I said last month, in this hazy, crazy, bizarre election year, this Supreme Court seat should remain vacant until the American people can decide whether they want to swing the balance of the Supreme Court, possibly for decades.

Scalia was one of four conservatives on the Court, who, when joined by Justice Anthony Kennedy, formed a majority crucial for enforcing the First and Second Amendments, federalism, the separation of powers, and other constitutional protections for individual liberty.   If he’s replaced by a progressive jurist – or even a ‘moderate’ one – all that comes crashing down and there will be no further check on the sorts of executive abuses that have only increased under a president who thinks that when Congress doesn’t act on his priorities, he somehow gets the authority to enact them regardless.

Disrupting Political Assemblies: Preserving the Liberal Tradition

The shouting down of speakers at public meetings, a well established phenomenon at universities, seems to be making a comeback in American political culture generally. Last Friday, I and perhaps 100 others attended a speech given by veteran Senator Orrin Hatch (R-Utah) before the Washington, D.C. lawyers’ chapter of the Federalist Society at Tony Cheng’s restaurant in Chinatown. Sen. Hatch spoke on current legal controversies, and as he approached his discussion of the current vacancy on the Supreme Court, about eight persons, evidently at a prearranged signal, rose to their feet and began chanting slogans at the top of their lungs. The disrupters went on drowning out the senator for some time, refusing to stop or leave on request. (A news account is here.)

In the age of social media it was unlikely those taking part would remain anonymous, and indeed within hours the group responsible was boasting of having shut down a senior GOP Senator at one of his events. That group, whose staffers talked on Twitter of their role in the episode, turned out to be Generation Progress, a group whose Wikipedia entry notes that respectables such as Pres. Barack Obama, Sens. Elizabeth Warren and Tammy Baldwin, the League of Women Voters, and Ambassador Samantha Power have cooperated in its activities. Indeed, Gen Progress is a 501(c)(4) affiliate of the very well established left-leaning Center for American Progress with its 2013 budget of $40 million. Call it a new model think tank.

Marketplace Lending: Regulation Ahead?

The Consumer Financial Protection Bureau (CFPB) recently announced that it would start accepting consumer complaints about marketplace lending.  Marketplace lending, previously known as “peer to peer” or “P2P” lending, emerged in the aftermath of the financial crisis.  A combination of tightening credit markets and low interest rates created a perfect marriage between consumers looking for loans and investors looking for profit.  In its first incarnation, peer to peer lending served as an online matchmaking service, allowing prospective borrowers to post requests for loans to be reviewed by individuals willing to make those loans.  “Peer to peer” referred to the fact that the lenders were ordinary people, just like the borrowers.  The loans are non-recourse, meaning that if the borrower fails to repay, the lender is simply out of luck.  Although these would appear to be risky loans, in fact, the default rate has been surprisingly low: 4.9 percent at market-leader Prosper as of the end of 2014, and 5.3 percent at the other leader, Lending Club, during the period between Q1 2007 and Q1 2015.

The loans have performed so well that the market quickly attracted institutional investors and more sophisticated business models.  As the two leading providers of marketplace loans today, Prosper and Lending Club use the same (somewhat complex) model.  The companies issue notes to investors that are obligations of the issuing company. Simultaneously, WebBank, a Utah-based FDIC-insured bank, originates a loan which is sold to the company. The company pays for the loan with the proceeds from the sale of notes to investors. The loan is disbursed to the borrower. The borrower repays the funds in accordance with the terms of the loan. And the payments from the borrower are used to pay the purchasers of the company’s notes. The payment of the notes is explicitly dependent on the borrower’s repayment of the loan.

Since marketplace lending has gained momentum, there have been concerns about its regulation – expressed both by those who worry that it’s completely unregulated (not true, but there have been no new regulations specifically targeting the industry), and by those–like me–who worry that its innovation will be smothered while the industry is still in its infancy.

Judge Posner’s “Politicized” Supreme Court

In today’s Washington Post, the Seventh Circuit’s Richard Posner, the most prolific judge the country has ever seen, has again gone to print to tell us that the Republican Senate majority’s decision not to consider any nominee to fill Justice Antonin Scalia’s empty seat until after the fall elections reminds us “that the Supreme Court is not an ordinary court but a political court, or more precisely a politicized court, which is to say a court strongly influenced in making its decisions by the political beliefs of the judges.” Say this for Judge Posner: From his earliest days as a font of law and economics wisdom through his many phases since, he has never ceased to interest us. Whether those iterations have accurately grasped the issue at hand is something else.

Here, as a descriptive matter, Posner is certainly right in noting that justices seem often to be strongly influenced by their political beliefs, however much they may invoke the self-protective “the law made me do it” pose, as he notes. But his claim is deeper, bordering on the normative: “This is not a usurpation of power,” he writes, “but an inevitability.”

Most of what the Supreme Court does—or says it does—is “interpret” the Constitution and federal statutes, but I put the word in scare quotes because interpretation implies understanding a writer’s or speaker’s meaning, and most of the issues that the court takes up cannot be resolved by interpretation because the drafters and ratifiers of the constitutional or statutory provision in question had not foreseen the issue that has arisen. (emphasis added)

By way of example, Posner continues, the drafters “did not foresee or make provision for regulating electronic surveillance, sound trucks, flash-bang grenades, gerrymandering, child pornography, flag-burning or corporate donations to political candidates.”

True, there’s a vast world that the Framers did not foresee, everything from the telephone to the Internet and far beyond. But their purpose was not to anticipate such particulars but to invoke the immutable principles by which future controversies concerning those unforeseen matters might be resolved. And that, precisely, is what Posner calls into question:

Police Misconduct — Worst Case in February

Over at Cato’s Police Misconduct web site, we have identified the worst case for the month of February.  It was from Champaign, Illinois and involves several incidents regarding Officer Matt Rush.

Last month Precious Jackson filed a lawsuit against Rush and the City of Champaign for excessive force when Rush arrested her.  According to the lawsuit, Rush’s actions caused Jackson to lose her unborn baby.  Jackson also says that she begged to be taken to a hospital but that Rush and the other officers on the scene ignored her pleas and took her to the jail instead.

Local news agencies report that the City of Champaign has settled several similar lawsuits involving Rush to the tune of $320,000.  In 2014, Police Chief Anthony Cobb actually fired Rush for lies in police reports and omitting important details in the incidents he was involved in.

A labor arbitrator overturned the police chief’s discipline and reinstated Rush to his job.  

Innocents Behind Bars

This week Howard Dudley was released from prison after serving 23 years.  He was accused of sexually assaulting his 9-year old daughter, but the daughter now recants her testimony from the 1992 trial. When ordering Dudley’s release, the judge said he was convinced that her earlier testimony was false.  Moreover, the government is supposed to provide the defense with evidence in its possession that tends to indicate that the accused is innocent.  (Lawyers call that “Brady material” after the name of a landmark case on the subject.)  In this case, the judge noted that Dudley was never given copies of reports that showed wildly inconsistent and improbable stories of the alleged assault that his daughter related to social services employees.

The problem of innocents behind bars received lots of attention in January and February as a result of the popular Netflix series, Making a Murderer.  The primary reason the documentary grabs your attention is that Steven Avery finds himself accused of an awful crime shortly after he is released from prison for a crime he did not commit.  The police department that conducted a sloppy investigation in the first case is then shown to be sloppy (and perhaps corrupt) in the second case.  In this podcast interview, I discuss Making a Murderer and the problem of innocents behind bars with Shawn Armbrust of the Mid-Atlantic Innocence Project.  (Spolier alert if you have not yet seen the Netflix documentary, which I do think is well worth your time).

In the fall, Federal Appellate Court Judge Alex Kozinski was here at Cato to reiterate his view that there is an epidemic of Brady violations in the U.S. and that there are more innocents behind bars than most people want to believe. 

Leading Campaign Finance “Reformer” Would Stop You from Spending Money on Your Own Campaign

UC-Irvine’s Rick Hasen is undoubtedly the leading law professor who advocates restricting money spent on political speech (well, it’s between him and Harvard’s Lawrence Lessig). In an interview with Ron Collins that was posted on the popular legal-academic blog Concurring Opinions this morning, one of Hasen’s comments stuck out:

I would not allow a self-funded candidate to contribute/spend in the aggregate more than $25,000 on his or her own campaign.

This is remarkable. I mean, Hasen’s general approach of overturning Citizens United and restricting how much anyone can donate to any group that engages in election-related speech is par for the course on that side of the debate. As is, unfortunately, the exemption for “bona fide press entities” – whatever that means: I’m sure Hasen has balancing tests that distinguish Sheldon Adelson-owned Las Vegas Review Journal from the blog of Adelson’s Venetian/Palazzo casino – and government-financed campaigns (yes, the solution to the “money-in-politics problem” is to have the government control the money).

But to say that you can’t spend money on promoting yourself for public office… words fail. (This proposal likely wouldn’t even stop Donald Trump, by the way, depending on the specifics of the relevant legislation: most of his personal “contributions” have come in the form of loans that are supposed to be repaid out of the donations that he takes in.)

If the point of campaign-finance “reform” is to prevent corruption, how is it possibly corrupting to spend your own money on yourself?

Moreover, Hasen goes on to endorse overturning “the part of Buckley [v. Valeo, the 1976 case that heralded the modern camapign-finance regime] that rejected individual spending limits.” That means that campaigns would be limited in how much they could spend, regardless of how much money they raise in whatever increments from however many donors.

Unbelieveable. Wouldn’t it be healthier for our democracy just to remove all campaign-donation limits then have instant disclosure of donations beyond a certain threshold? (There needs to be a threshold because of the potential threat of intimidation and harrassment – see, e.g., the fallout from California’s Prop 8 campaign, where disclosure didn’t even make sense in the first place because a referendum initiative can’t be corrupted.)

Let the voters decide how much they care who gets how much funding from what source.