Earth 1 and Earth 2.

So the New York Times published a story about how movie executive Harvey Weinstein has allegedly been sexually harassing women for many years. I could link to a number of other news reports about other powerful men allegedly doing similar things. Without resorting to Google, Bill O'Reilly and Roger Ailes lost their positions at Fox News recently for similar allegations. Moreover, I think everybody knows about the allegations against Bill Cosby by now.

Don't buy the myth

As is my custom, I did not look at the news Monday morning before I walked to work. So I was in a good mood when I passed the security guard in lobby of the building where I work. My mood got even better when I noticed the guard had set out sugar cookies with pink frosting. When I asked why the cookies were out, the guard said they were to remind folks that October is breast cancer awareness month. I took a cookie and ate it. It was delicious.

More nitwittery on Twitter, this time concerning the Supreme Court

If my post yesterday were not enough evidence that I need to stop looking at Twitter, I think today's post will provide proof beyond a reasonable doubt.

The Supreme Court giveth but do they also take away?

As 2016 comes to an end and the presidency of Donald J. Trump about to begin, a lot of liberals I know are very worried about what the Supreme Court will do once President Trump appoints a successor to the late Justice Antonin Scalia. They should not be too worried.

Why not? First, the two obvious choices for next Supreme Court justice are both awesome. Appointing either of us to the Supreme Court will rectify the eight-year injustice that we like to call President Obama’s inexplicable failure to name us to the federal bench.

48 years ago today (most likely)

Moderately reliable sources on the Internet, i.e. Wikipedia, say that on this date in 1967, Thurgood Marshall was sworn in as a Supreme Court Justice. He was, of course, the first African-American appointed to the Supreme Court. His appointment, like the Civil Rights Act of 1964, the Voting Rights Act of 1965, The Age Discrimination in Employment Act of 1967, the Fair Housing Act, and the creation of Medicaid and Medicare, is one of the reasons we should he happy that Lyndon Johnson was President.  But I digress.

Is Oklahoma ok?

The Sigma Alpha Epsilon chapter at the University of Oklahoma was shut down this week after a video of members of the fraternity chanting racial slurs hit the Internet.  CNN's story about the incident is here.

The CNN story has a number of quotes from University of Oklahoma President David Boren, a former Oklahoma governor and senator.  President Boren is quoted as saying that it was "unbelievable that this could have possible occurred" with OU students and that "Sooners are not racists. They're not bigots." I hope that is true but some might suggest that the video indicates otherwise.

Some advice for the Supreme Court

Now that the Supreme Court is done working until October, perhaps some of the justices will hit the beach for some rest and recreation. If so I hope they read this NPR report on some of the best and worst beaches when it comes to water pollution and the accompanying public health threats like hepatitis, dysentery, and stomach flu. Those threats are also known as the hat trick of a bad vacation.

In the unlikely event you come here for breaking news.

The Supreme Court found DOMA unconstitutional in a 5-4 decision. You can read the opinions and dissents here. Mr. Torvik's prediciton is at least half right.

Judge Posner is unstoppable. He cannot be stopped.

I was thinking this morning about Samuel B. Kent, a former judge for the United States District Court for the Southern District of Texas. He was famous for writing opinions and orders that took lawyers to task over the way they handled cases before him. For example, see this opinion which speculates that the submissions the judge received were done in crayon as a way of saying the lawyers on the case were stupid.

The Tyranny of Contract

The Supreme Court today issued another opinion (American Express v. Italian Colors Restaurant) making it harder to sue in federal court after you've "agreed" to arbitration and "agreed" to waive any authority to pursue a class action. This kind of case—strengthening arbitration clauses and weakening class action privileges—is what people point to as exemplifying the "pro-business" bias of the Roberts Court. I've pushed back on that argument before, but today I want to push back a little the other way.

Specifically, I want to push back on the idea that these decisions are admirable as vindicating the "liberty of contract." A good example of that argument is made by graysilverback-blawger Walter Olson, who hails today's decision as "a victory for freedom of contract."

I do not think today's decision and the others like it are a victory for any kind of freedom or liberty of contract. I think they are better understood as furthering a pernicious tyranny of contract. No one—and I mean no one—negotiates a credit card or cell phone or cable television contract. This is true for consumers and it is true for small businesspeople. These are take-it-or-leave it arrangements, so the only option is to vote with your feet and sign on with a competitor. But it is no surprise that all the options impose these same onerous terms and waivers because in the final analysis no consumer or small businessperson will ever choose a credit card or cell phone based on finely printed dispute-resolution procedures. We choose on price and features, full stop. Anyone sophisticated enough to understand the effect of these provisions is sophisticated enough to know there is no choice but to accept them.

That is not to say that the Supreme Court's decisions in these cases are necessarily wrong to enforce these provisions. I am suspicious of the "effective vindication" doctrine that was at issue in today's case because it is a judicially crafted exception to rather clear federal legislation. And the objectives the plaintiffs' bar seek to vindicate can be achieved the old fashioned way: through legislation.*

So these decisions can be defended in terms of judicial modesty, and as consistent applications of basic interpretative principles. But it goes way too far, I think, to celebrate them as a triumph for freedom. The existence of these contracts is best understood as a market failure. They have the effect—undisputed in today's opinion—of making it cost prohibitive for people to prove violations of their statutory rights. It may well be wise of the Supreme Court to say, "this is not our problem." (Or, as Justice Kagan put it, "too darn bad.") But let's not pretend that individual freedom was actually increased as a result.

UPDATE: Walter Olson points out on Twitter that "grayback" is apparently an obscure insult, which was not my intent. I meant "silverback," which is to say that Mr. Olson is like a gorilla and that is not at all offensive. In seriousness, I was ineffectively just referencing the fact that he's been blogging about the law longer than just about anyone.


*FOOTNOTE: The chances of such legislation getting passed are undeniable small, for much the same reason that the companies are able to impose these terms in the first place. The companies each have billions on the line, and the consumers have literally pocket change at stake. So there are public choice problems. But another way of looking at this is just that Congress is "pro-business" too.

Whatchu talkin'bout Perfessor?

I have been reading The Passage of Power: The Years of Lyndon Johnson, Robert A. Caro's fourth volume in his biography of former President Lyndon Baines Johnson. It is fantastic as are the other three volumes that have been published so far.

On page 352 of the book there is a scene in which President Johnson gets angry at Horace Busby. Mr. Busby was a longtime aide of President Johnson. What had Mr. Busby done?  He had questioned the conclusions reached by two economists on President Johnson's staff, Kermit Gordon and Walter Heller. Unlike Mr. Busby, Mr. Gordon and Mr. Heller did not work for President Johnson before he became president. Instead, Mr. Gordon and Mr. Heller were brought into government by President Kennedy. President Kennedy favored hiring people from Harvard because he felt "you can't beat brains."

Laughing at gay marriage

As we did with the Obamacare oral arguments, the Gillette-Torvik blog has the final tally on who got the most laughs during the two days of Supreme Court oral argument on the same-sex marriage cases.

Line by proxy

When I first read that people were already in line to hear the Supreme Court oral argument about same sex marriage, I thought that some hardcore law fans were camped outside the Supreme Court.  However, as the New York Times makes clear, at least some of the people in line are not interested in the case.  Intead, those folks are proxies hired by companies that pay people to stand in line.  Mr. Torvik and I have missed out on yet another business opportunity.

David Boies makes a prediction

Mr. Boies has not argued the case for legalizing gay marriage to the United States Supreme Court yet but he is already predicting how the Supreme Court will rule on the issue.  Mr. Boies tells USA Today that he will win the appeal and get the support of more than 5 justices.  Mr. Boies declined to say he would get the support of more than 6.  I guess we should give Mr. Boies credit for not basing his prediction on the questions at oral argument.

Upon further reflection, Justice Stevens still thinks he is right.

The Wall Street Journal Law Blog reports that retired Supreme Court Justice John Paul Stevens is still unhappy about being on the dissenting end of two cases from the 1990s.  However, Justice Stevens is not just sitting there wallowing in defeat.  Instead, Justice Stevens is proposing an amendment to the Constitution.

Strange math and strange predictions

George Mason University School of Law professor Ilya Somin has a post about how little coverage is being paid to the possibility that President Obama or Mitt Romney will get to pick a Supreme Court justice during the next four years.  Professor Somin writes

. . . this election could have a huge impact on the future of the Court. Even if a reelected Obama gets to relace two liberal justices with younger liberals or Romney gets to replace two conservatives with younger conservatives, that will still have a profound impact. There’s a big difference between a justice who is likely to be around for only a few more years, and one who could well serve for thirty years or more. Given increasing life expectancies, a justice who is in his or her early fifties when appointed could easily serve until 2050 or even later.

Note the could in the first sentence.  It might or might not have "a huge impact on the Court."  Perhaps that unknown is why few are discussing it.  However,  let's assume that the two appointments occur and that they do so in 2014 before both parties are gearing up for the 2016 presidential election.  Professor Somin assumes that these new justices might serve beyond the year 2050.  A fifty-year-old appointee in 2014 would have to serve until they are 88 in order to still be on the court in 2050.  Since professor Somin is assuming that Supreme Court justices serve until they are 88, which Supreme Court justices will be 88 during the next presidential term?

"[J]udges are ill suited to resolve social problems."

Dahlia Lithwick has a column at The Nation entitled, "One Nation by and for the Corporations." The unsurprising thesis is that the courts, most notably the Supreme Court, are bought and paid for by business interests. According to Lithwick, this campaign is insidious and damaging:

There is ample language in the Court’s recent rulings to demonstrate that judges are ill suited to resolve social problems, that such efforts should be constrained and monitored and fundamentally mistrusted. But it’s one thing to trim the sails of the judicial branch; it’s quite another to transfer power that once rested with the judiciary directly back to groups that hold power already. Whether it’s through forced arbitration, limited class certification, shifting burdens of proof or other subtle tricks, the Court has gone beyond locking out litigants and well into the realm of aiding and abetting powerful corporate interests.

It is ironic to see that the liberal position has become that judges are ill-suited to solve social problems. But perhaps judges are ill-suited to resolve social problems only when their resolution is favored by conservatives. Or perhaps, as some say, liberals should not hate the players, but rather hate the game (even though they made up the rules).

Is Chief Justice Roberts a playmaker?

Garrett Epps, a law professor at the University of Baltimore, has a piece at the Atlantic entitled "Does Scalia Still Mater?".  The answer according to Professor Epps is—SPOILER ALERT—no.  Someone needs to tell Richard Posner, Bryan Garner, and Justice Scalia that they can stop their feud. 

Bryan Garner is not rude.

The ABA's website has the transcript of an interview that Bryan Garner did with Justice Kagan. I was pleased to learn that—like all good Americans—Justice Kagan majored in history in college and that she continues to read a lot of American history. Sean Wilentz, Richard Hofstadter, and Edmund S. Morgan are among her favorites. I have not read anything by Mr. Hofstadter but Mr. Morgan is a fantastic historian as is Mr. Wilentz. 

Reader(s)™ might recall that Mr. Torvik and I recently discussed Mr. Garner's claim that Justice Scalia is the "Most Principled Justice."  Mr. Garner made this claim in the course of marketing a book that he wrote with Justice Scalia.  To recap, I think that the whole idea of a Most Principled Justice is ridiculous, Mr. Torvik disagrees and also thinks that the choice of Justice Scalia as Most Principled Justice is not a "ridiculous choice." 

Dred Scott trivia

The Dred Scott decision (1857) is, of course, an abomination of the common "law." Among other travesties, it includes Chief Justice Taney's remark that blacks were "at that time [of the Founding] considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race and . . . had no rights or privilege but such as those who held the power and the Government might choose to grant them." This remark is all the more terrible for being true.

Here's the trivia. Dred Scott was represented at the Supreme Court by one George Ticknor Curtis, who had formerly been the United States commissioner charged with the enforcement of the Fugitive Slave Law in Boston. There were two dissenting opinions in the Dred Scott case, including a very long one by Justice Benjamin Robbins Curtis—the brother of Dred Scott's lawyer. Although this presents a clear conflict of interest, there is no record that anyone objected or moved for Justice Curtis to recuse himself.

Shortly after the Dred Scott decision, Justice Curtis permanently recused himself—he resigned in disgust.