Author: Gerard Magliocca


Climate Change

One thing I’ve been thinking as the Gulf oil leak continues is how that catastrophe should influence our environmental priorities.  A lot more was written and said about climate change over the past ten years than about the risks of deep-water drilling.  That doesn’t mean that climate change isn’t a real problem, but is it the #1 problem that we face?  And is it being addressed in the right way?

Sometimes I wonder whether climate change is the modern version of strategic arms talks.  During the Cold War, massive efforts were put into negotiations on limiting increases in nuclear weapons.  That was a real problem, but I think now most people agree that those efforts were largely a waste of time.  They didn’t make the world safer.  What made the world safer was a political change that defused the underlying tension.  Nobody today cares that Russia has lots of nuclear warheads or whether they have more than we do.

Similarly, it seems to me that the solution to climate change is the development of a new and inexpensive energy source, not a new and complicated regulatory scheme for emissions.  I have confidence that governments can speed up the development of the hydrogen car.  I don’t have confidence in their ability to construct or administer cap-and-trade in an effective way.


Thoughts on the Gulf Spill

In anticipation of the President’s speech tonight, I thought I’d make some observations about the situation in the Gulf.

1.  When I taught Admiralty last semester, I pointed out to my students that many of the statutes in this area are obsolete.  But, I quickly added, Congress won’t do anything about this until there’s a crisis.  Now we see a slew of proposals to amend the Jones Act, amend the Death on the High Seas Act, amend the Limitation of Liability Act, and overturn the Court’s decision on punitive damages in the Exxon Valdez case.  Maritime law is hot!  Of course, whether this sort of knee-jerk response leads to thoughtful changes is another matter, but overall it’s probably better that these neglected topics just get attention.

2.  The discussion about setting up a 9/11 style Fund (paid for by BP) to address claims arising from the disaster is intriguing.  It seems to me, though, that some new statute will required to make this work.  In particular, I’m not clear on how such a fund would interact with bankruptcy law.  Suppose BP puts $10 billion in escrow for the fund.  Then later they have to file for Chapter 11.  I don’t think that the fund would be immune from other creditors or that litigants would have priority over them (admittedly, though, some of my co-bloggers know far more about this than I do).

3.  A far less important point.  This crisis shows why the AALS Annual Meeting should not require such an early date for setting up panels.  Obviously, I’d like to do this year’s Admiralty Section panel on the spill.  But now I can’t — the deadline for setting up the panel was two months ago.  Granted, AALS can organize a separate one on the issue, but their rigidity with respect to the sections is rather irritating.


Who is Elizabeth Littlefield?

A disturbing trend in the Senate is the growing use of anonymous “holds” to keep nominees from getting a floor vote.  A hold is a threat by a Senator (made privately to the Majority Leader) to refuse a request for unanimous consent and insist on the filing of a cloture petition.  Since this is a time-consuming process, in many instances a hold is successful in blocking the nominee.  What’s worse, nobody usually knows who is placing the hold on a candidate.  Although holds must be disclosed after six days, senators are getting around this by swapping holds back and forth (like a hot potato) so that nobody can be held accountable. As a result, holds can be used as secret bargaining chips to get an extra bridge or a special tax loophole.

This practice is especially pernicious because it tends to focus on mid-range candidates that are not controversial. Take Elizabeth Littlefield, who is the President’s choice to head the Overseas Private Investment Corporation (OPIC).  OPIC is a federal agency that facilitates U.S. investment in underdeveloped countries.  She was nominated in November and approved by the Foreign Relations Committee in April.  She is highly qualified for the position, and I am aware of no objection to her on political or ideological grounds.  Nevertheless, some GOP senator has placed a hold on her and she’s now dead in the water.

This is an outrage.  Hardly any of you have probably heard of OPIC, so why should an excellent nominee with broad support be stymied in secret by a few senators?  The President should stop this nonsense by giving Littlefield and other similar situated candidates a recess appointment as soon as possible.  (Granted, that would only last for a few months, but another recess appointment could be made early next year.)


Punitive Damages in Maritime Law

As the Gulf disaster continues, it is worth thinking about about the potential liability of BP and other parties.  Following the Exxon Valdez disaster, the Supreme Court held, acting in its capacity as a common-law court, that punitive damages in admiralty could not exceed the compensatory damage award.  Justice Breyer dissented from this part of the opinion, explaining that “this was no mine-run case of reckless behavior. The jury could reasonably have believed that Exxon knowingly allowed a relapsed alcoholic repeatedly to pilot a vessel filled with millions of gallons of oil through waters that provided the livelihood for the many plaintiffs in this case. Given that conduct, it was only a matter of time before a crash and spill like this occurred.”

Perhaps some future court will distinguish Exxon from a suit against BP, but the opinion is awfully clear that a 1:1 rule is the law.  Congress, though, is free to change this, since Exxon is not part of the Court’s due process jurisprudence on punitive damages (which treats anything above 10:1 as suspect). Just as Congress may amend the Limitation of Liability Act in response to this crisis, they should also look at the punitive damage question.


Invention . . . meet Necessity

Justice Oliver Wendell Holmes explained (in the Northern Securities Case, a controversial antitrust case) that:

“Great cases like hard cases make bad law.  For great cases are called great, not be reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”

Is this true?  It depends what you mean by “bad law.”  If you mean a decision that does not follow precedent or the usual norms of judicial behavior, then Holmes was probably right.  But creativity is not always a bad thing. Marbury v. Madison, for example, is taught as a “great case” because of the political pressure that the Court faced (Madison boycotted the argument, Jefferson wouldn’t have complied with an order to give Marbury the commission). And Marshall’s opinion was certainly unorthodox.  But was it bad law?  Hardly, if you like judicial review.

I bring this up because I’m now writing an article on “The Obama Generation and the Supreme Court,” which will talk a fair amount about the constitutional challenge to the health care bill.  In looking at past cases where the Court from one generation (e.g., the Old Court in the 1930s) collides with a new generation (the New Deal), you can see that the resulting friction often leads to bad law in the narrow sense that Holmes was talking about, but that tension also generates new ideas that become integral parts of the constitutional culture.

Great cases, therefore, probably make good law about as frequently as they make bad law.


The Hand of God

As the World Cup begins (and a groove on my couch awaits), the thought occurred to me that the Justices are more comparable to those officials rather than (as Chief Justice Roberts famously said) baseball umpires.  Consider the following:

1.  Umpires rarely change the outcomes of a game.  Soccer referees do all the time.  (Just ask Ireland.)

2.  Baseball is a rule-bound game.  Soccer gives the referee lots of discretion (whether to award a penalty kick or not, whether to red card somebody or not, etc.)

3.  Soccer fans frequently accuse the ref of being biased.  You rarely hear that about umpires.

4.  An umpire can have his call corrected by his colleagues.  There is no appeal from a soccer referee’s decision.

Which of these sounds more like a Supreme Court Justice?

P.S.  No Bilski today, in case you were wondering.


Unintended Consequences

Small legal changes often have major unanticipated effects.  Consider the following example:

In 1932, Congress decided to demonstrate its fiscal discipline (during the Depression) by reducing the pension for federal judges by half.  Justice Willis Van Devanter (depicted right) was planning to retire following the presidential election that FDR won.  So was Justice George Sutherland.  They both put off their plans, though, because they couldn’t afford to retire on that reduced pension.

In 1933, Congress restored the pension to its original level, but the damage was done.  The two justices no longer saw their pension as guaranteed and decided to stay on the Court for several more years.  In that place, they were two of the “Four Horseman” who led the charge against the New Deal.  Had they retired in 1933 or 1934, the Court-packing fight would almost certainly have not happened.  (Ironically, an increase in the pension in 1937 helped convinced Van Devanter to retire that summer.)


Indiana Supreme Court

Let me start by saying that you can set your watch to Bud Selig making the wrong decision.  If he doesn’t reverse the ump’s call and give the guy a perfect game, it’s an outrage.  But I digress . . .

There is a vacancy on the Indiana Supreme Court for the first time since 1999 (Ted Boehm, an excellent judge and a terrific lawyer, announced that he will step down this fall).  The process for selecting his replacement is very different from the federal model and is worth talking about.

First, the Indiana Constitutions sets forth eligibility requirements for a Justice.  They must have been either: (1) a member of the state bar for at least ten years; or (2) a sitting state court judge for at least five years.  A commission chaired by the Chief Justice and made up of three political appointees and three attorneys elected by the bar association then screens the applicants and forwards three names to the Governor.  The Governor must pick one of these three nominees, and that person then becomes a Justice.  (There is no role for the State Legislature.)

Would something like this be a good idea at the federal level?  What do you think?


Bankrupt States

First I want to note that we still don’t have an opinion in Bilski.  You would think that means the opinion will either be deeply theorized or incredibly fractured.  Tune in again next week to see if it comes out then.  Now on to the main point.

There are many states right now (most notably California) that are under fiscal stress.  Some people, like Sandy Levinson, argue that this is because those states have dysfunctional constitutions.  This leads me to wonder if a state could be deemed “not republican” under the Guarantee Clause if it goes bankrupt.  Suppose that California came to Congress seeking a loan.  If Congress said, “OK, but only if you amend your constitution to do X, Y, and Z,” that could pass muster under the Spending Clause if the reform proposals were sufficiently related to fiscal issues.  But suppose California just defaulted on its debt.  Would Congress then be justified in putting the state into receivership for some period of time?  An invocation of the Guarantee Clause would not be justiciable, of course, but that doesn’t answer the constitutional question.  What do you think?  Does the Tenth Amendment protect a state’s right to default?

(Given the reaction to my post about vice-presidential ticket splitting, maybe I should just declare this “Crazy Idea Week.”  Some might say, though, that every week is crazy week when it comes to my posts.)


Vice-Presidential Ticket Splitting

The new British Government is the country’s first coalition since World War Two.  This got me to thinking about whether something like that could happen here.  Divided government (one party controls the White House, the other controls Congress) functions like a coalition, but what about divided government within the Executive Branch?

Try this one on for size. Suppose Indiana gave its citizens an independent vote for VP.  In other words, instead of:

Obama/Biden, McCain/ Palin

You would have this:

Obama, McCain, Biden, Palin

As far as I can see, nothing in the Twelfth Amendment or federal law requires that the president and vice-president run on a single ballot.  (Indeed, the Twelfth Amendment requires the electors to take separate votes for President and VP). Thus, any state could experiment with ticket-splitting.  This would, of course, increase the likelihood that one party would win the presidency and the other the vice-presidency.

Now would this create a coalition?  Well, sort of.  A President in that split situation could sideline the VP, but that would be difficult for two reasons.  First, the VP would have an independent electoral mandate.  Second, federal law gives the VP certain responsibilities (a seat on the National Security Council, for example) that cannot be removed by the President unilaterally.  States, of course, sometimes have separate votes for Governor & Lt. Gov. (though in most states the Lt. Gov. has no official function other than succeeding a Governor), and that may be a useful source of information.  But it’s worth thinking about.