McCain or Obama: The Election and Its Implications for the Courts

Earlier today, ACS joined the Federalist Society in presenting McCain or Obama: The Election and Its Implications for the Courts, a debate featuring Ilya Shapiro, a Senior Fellow at the Cato Institute, and Jeh Johnson, a Partner at Paul, Weiss.

Mr. Shapiro spoke first and began by citing polling data that he argued revealed a stark difference between how Obama supporters and McCain supporters view constitutional interpretation. He claimed that McCain supporters tended to favor interpreting the Constitution "as it was written" while Obama supporters prefered an interpretation tending toward "justice and fairness." Mr. Shapiro then presented a quotation from Obama indicating a desire to choose judges who have empathy for other people with vastly different lives, backgrounds and experiences. Mr Shapiro argued that this reflected a desire for "activist" judges who will fail to adhere to the Constititon "as it was written." He suggested that Obama would select judges who look to foreign law for guidance and trample upon property rights. Mr. Shapiro noted that McCain would apply the law "as it was written," and that McCain had previously voted to confirm Ginsburg and Breyer, suggesting a desire to approve qualified nominees, rather than resort to a litmus test.

Mr. Johnson began by noting that he admired McCain's efforts to ban torture. He then described his extensive experience in evaluating judicial nominees and candidates on behalf of the New York Bar Assocication. In Mr. Johnson's view, there should be no ideological litmus test. Furthermore, Mr. Johnson cautioned against approving only nominees who have what has come to be the usual Supreme Court justice resume, as "greatness in a Supreme Court justice dos not always present itself in conventional terms." He noted that while ever current Supreme Court justice had previously served on a Circuit Court, no members of the Supreme Court as constituted in 1954 had served as Circuit Court judges. Mr. Johnson cited the Obama quote that had been previously identified by Mr. Shapiro and noted that would-be judges ought to have some real-life human experience and empathy. Furthermore, he argued that the selection of future Supreme Court justices should be conducted with an eye toward balancing the Court's current composition. What is wrong, he asked, with a judge that can identify with other types of people, particularly given the current Court?

ACS v. FedSoc: Good Samaritan Laws

This post is the next installment in part of an ongoing exchange between Fed Soc and ACS. This installment focuses on Good Samaritan Laws and their potential effects on American culture and the American legal system. To see the FedSoc post, click here.

In response to last Thursday's post on the FedSoc blog, I, too, am going to concentrate on the second type of Good Samaritan laws, which require people by law to assist others if they can do so without risking harm to themselves. So, to take the FedSoc examples, these laws would apply to the neighbors who didn't call the police when the New York woman was being stabbed, but not to the man who jumped down onto the subway tracks to save the teenager having the epileptic fit.
For the most part, I agree with the FedSoc blogger's position. I agree that individual rights are paramount in the American system; I think that having Good Samartian laws would encroach on those rights, as well as present serious administrability issues. But it is important to note that in most places, the sanctions for Good Samaritan law violations are fines, not imprisonment. So the burden to the individual is not quite as alarming as it first appears.
I also disagree with the idea that Good Samaritan laws would have a harmful effect on people's willingness to save others out of goodwill. I don't think the value of saving someone else would be lessened simply because the law required it. We still think policemen are heroic, and they're paid to come to the assistance of others. And in most of the heroic examples listed in the FedSoc post, Good Samaritan laws would not apply, because what made those acts heroic was the degree to which the heroes risked danger to themselves. The value of those acts will not change.
Good Samaritan laws are meant to encourage a lower level of heroism, the kind that might be overridden by an unwillingness to get involved. One of the justifications for codifying criminal laws is to express the mores and values of a society; Good Samaritan laws express a value of action over apathy when someone else is in danger and you can help them without risking yourself. But ultimately, I must agree that in this particular balancing of social welfare and personal autonomy, personal autonomy is a little heavier.

ACS v. FedSoc: Feel the Love

Rick & Rob decided to commemorate the first ACS & FedSoc joint blogging effort by mugging it up — assuming the most awkward treaty handshake poses possible.

This week, Rick & Rob addressed Federalism, Property Rights, and Markets v. Management.

ACS v. FedSoc: States or Federal

In this, our first installment of the ACS-FedSoc semester-long exchange, the ACS and FedSoc media committees will begin with a few broad ideological distinctions between the two groups. Please remember the writers write on their own behalf. For more information click here.

States or Federal

          It seems a common critique of the ACS and left-leaning legal voices that they disregard states’ rights; that they desire an omnipresent and overwhelming federal government. States are powerful engines of progress — in the “progressive” sense. Workers’ compensation, universal health care, and rational climate change policy all began (or are beginning) with bold action from state governments. As Justice Brandeis put it: “[t]here must be power in the States and the Nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). However, states have also served as bastions for discrimination and unequal protection under the law, shielding (or perhaps obfuscating) immoral and fundamentally un-American practices behind the mantra of “states’ rights.” So we are left with a complicated picture: states must be free to serve as democracy’s laboratory, but this freedom cannot be invoked for anti-democratic and unconscionable ends. In that spirit, it seems prudent to assess practical consequences when vesting political power at one or the other level of government.
          Rick points to federal “usurpation” of states’ powers in providing social services as depriving states of the ability to compete for their citizenry. This observation is both deft and daft. Apt in that it accepts the welfare state and admits its desirability to citizens. His comments are marred by an implicit contradiction: social security is premised on the understanding that government is better positioned than individual citizens are to care for the general welfare. The point of social security is to sacrifice choice in the name of financial and social stability.

      To see a FedSoc Member's take on this issue, click here.

ACS v. FedSoc: Markets or Management

Markets or Management

          Citizens resort to the judicial system when other social institutions ignore their needs, and the image of judge as problem-solver is the core of judicial legitimacy in America. Toward strengthening that legitimacy, judges must not excuse inequity by prostrating themselves to the sanctified “market.” In its language of origin, economics, a free market is the optimal mechanism for allocative questions only when it is unimpeded by market imperfections and satisfies certain assumptions. These assumptions are abstractions that cannot be met in the real world (e.g. “perfect information”) and indeed economists look to government to assuage imperfections (securing property rights, combating monopolistic practices, etc.). It therefore is a distraction to claim that belief in the free market preempts judicial decision-making that does not blindly rely upon markets. In fact, the use of judicial power (or the power of any branch of the government) to address market imperfections is an implicit endorsement of market economics and concurrent recognition of the problems in translating theory into practice. A judge may use or manipulate markets in affecting her decision; however, they should never become captive to them: markets are incubated and bounded by state institutions; the legal system is foremost among these.
          While it is certainly fair to say that our political system is riddled with inefficiencies that hamper its ability to address externalities in economic markets, that recognition amounts to nay-saying. Admitting the existence of externalities, who but the government will even attempt to address them? Furthermore, the unfounded association Rick makes between managing the market and price controls is far too narrow a reading. An aggressive program of internalizing social costs would serve to raise the price of most goods (if a polluter must account for his/her emissions, they will increase the price of their good to cover this additional production cost).

      To see a FedSoc Member's take on this issue, click here.

ACS v. FedSoc: Property Rights

Property Rights

     John Locke wrote of natural liberties to “life, liberty, and property,” and economists note that firm and enforced property rights are one of the most critical foundations of growing economy and functioning markets. However, there are cases in which property rights must be abridged or modified. The absolute right of a property owner to exclude all from her land and use it as she sees fit is said to be limited only to the extent that her use interferes with the protected rights of others. Once that limitation may have been clear-cut, but with an expanding scientific understanding of ecosystem interrelation and the dispersed effect of pollutants – along with the recognition of the dramatic effect of proximate land use upon property values – that maxim has become increasingly troubling to apply. There are clear cases in which environmental stewardship, the maximization of social welfare, and human health overwhelms our traditional (and constitutional) presumption that each is the king or queen of their own castle.

       It appears that my responder and I agree on an underlying point: market (read: monetary) valuations of property are often inadequate. It is an economic tautology to say that a homeowner values his land more than the market, else he would sell it. More complex and intractable is the case in which the owner and the market undervalue property, i.e. in cases where land provides vital – but nearly impossible-to-monetize – environmental or ecosystem benefits. Worries over the insufficiency of “just compensation” run quite a bit deeper than putting a dollar sign on “home, sweet home.”

      To see a FedSoc Member's take on this issue, click here.

The above represents my broad views on a few of the central contested points discussed by members of the ACS and FedSoc alike. The instant aim is to provide a backdrop for a conversation that can take place incorporating diverse viewpoints and more nuanced understanding.