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The Indiana Governor’s Race

Now that Mike Pence is officially Donald Trump’s choice to be Vice-President, Indiana Republicans need to nominate someone else to run for Governor this Fall. I thought I would say something about the three prospects, as I know something about two of them. (One is the Lt. Governor, whom I do not know.)

First there is Congressman Todd Rokita, who is currently my representative in the House.  Congressman Rokita is an alumnus of the law school where I teach, though I did not know him in school.  What I can say, though, is that he’s a dunce who would be unable to serve effectively as Governor. He once called the Affordable Care Act the worst law in American history, evidently deciding that the Fugitive Slave Act was not as bad.  Enough said.

Congresswoman Susan Brooks is also a McKinney Law School alum, and I’ve had the pleasure of meeting her several times.  She’d be a terrific Governor, and I hope the GOP picks her.  She’s smart, practical, and good at building coalitions.

I should add, in the interests of full disclosure, that I gave money to the campaign of the Democratic candidate for Governor, John Gregg, who is also an alum of the law school.  If Brooks is picked I’ll vote for her.  If it’s Rokita or the Lt. Governor I’ll vote for Gregg.

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Mike Pence

Media reports say that Donald Trump will select Indiana Governor Mike Pence as his running mate.  Since Pence is an alumnus of the my law school and I did meet him once, I thought I’d share my views.

Governor Pence is a serious man who takes his faith seriously.  He is very good at speaking clearly on issues where he has strong beliefs. He has not shown a penchant for the nuts-and bolts of administration since becoming Governor, but as Vice President that may not matter.

A more serious objection is that when the state passed a Religious Freedom Restoration Act that was deemed hostile to gays and lesbians, the Governor was totally out of his depth when questioned on the matter.  It was not something he had thought about in depth and so he floundered.  To my mind, this could become a liability in the campaign if you like Trump.  Trump is bound to say more controversial things between now and November, and I suspect Pence will not be good at thinking on his feet to defend those sorts of comments.

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Parliament and Brexit

Now that the Tories have settled on a new Prime Minister, there is a fascinating constitutional question that must be addressed in Britain: Can Brexit be triggered unilaterally by the PM or must there be an Act of Parliament? This is not a trivial matter, because it is unclear whether a majority of MPs would support Brexit if it were put to a vote.  (Let alone the House of Lords.)

The issue is partly about whether prior Acts of Parliament confirm or assume Britain’s EU membership in such a way that only another Act can repeal them. Another issue is whether the power to withdraw from a treaty (which is one way of thinking about Britain’s obligations to the EU) is part of the royal prerogative, which is the power that a PM can exercise without Parliament.  In the United States, the President must get congressional approval for a treaty (either through 2/3 of the Senate or a majority of each House), but he can unilaterally abrogate.  Is this true in the UK?  I’m not sure what the recent precedents say, but we’ll find out.

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FAN 116 (First Amendment News) Farber on Scalia & the Abortion Protest Cases

Professor Daniel Farber

Professor Daniel Farber

The current issue of the Minnesota Law Review Headnotes consists of a symposium on Justice Antonin Scalia. One of the contributors to that symposium is Professor Daniel Farber, whose contribution is entitled “Playing Favorites?Justice Scalia, Abortion Protests, and Judicial Impartiality.” His essay consists of an analysis of Justice Scalia’s views on four abortion protest cases and the First Amendment.

Here are a few excerpts from his introduction:

“[G]iven Scalia’s accusations of partiality in the abortion protest cases, a 2013 statistical study concluded that Scalia himself was far more likely to uphold the speech rights of conservative speakers than liberal ones, though the study has been subject to some methodological criticisms.”

“Taking a closer look at the abortion protest cases can shed light on these disputes over judicial bias in First Amendment cases. It can also shed light on two important aspects of Scalia’s work: his rhetorical style, which regularly featured scathing attacks on the motives or competence of other Justices; and his insistence that his own decision-making adhered to rigorous, objective methods of analysis.”

1199772_630x354“In reexamining the four abortion protest cases, my goal is not to decide whose views of the doctrinal issues were correct. Rather, it is to assess whether Justice Scalia or the majority stepped outside normal bounds in ways that might indicate bias. At the risk of eliminating suspense about the results of the inquiry, there seems to be more evidence of partiality on the part of Justice Scalia in these cases than on the part of his opponents.”

He concludes his essay by noting:

“In these cases involving abortion protesters, Justice Scalia accused the Court of ignoring well-established law in the interest of suppressing speakers with whom the majority disagreed. That was a serious accusation. It involved not only violation of the general judicial duty of impartiality and fairness toward all litigants, but also of the First Amendment’s own imperative of neutrality toward opposing viewpoints. A close examination of the relevant cases suggests little support for this accusation, although it is never possible to say with confidence that a case was completely unaffected by the biases or ideologies of the judges. . . . “

Headline: “Judge Rules Virginia Can’t Force Delegates to Back Donald Trump”

According to a story in the Wall Street Journal “Virginia can’t require Republican National Convention delegates to back Donald Trump, a federal judge in Richmond said Monday, though he made no ruling on whether the party can itself bind its delegates.”

“U.S. District Judge Robert Payne said the Virginia state law requiring delegates who oppose Mr. Trump to vote for him next week at the party’s convention creates ‘a severe burden’ on First Amendment rights.”

“But Judge Payne explicitly avoided weighing in on whether Republican National Committee rules requiring convention delegates to follow the results of their states as dictated by state and national party rules. Judge Payne said he “lacks jurisdiction to adjudicate” the broader unbinding question. . . .”

Bopp Petitions Court in Judicial Elections Free Speech Case  Read More

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Guns and Public Service Announcements–Part II

The last post got a lot of comments, and so I wanted to follow-up.  One line of thought was “What if a local or state government launched a public campaign to discourage people from voting or believing in Islam?  How are those different from discouraging people from owning a gun?”

A couple of responses come to mind.  First, any of these kinds of campaigns could be unconstitutional  depending on what they said.  For example, if the message was “Don’t buy a gun or else . . .,” that would be coercive in a way that would violate the Second Amendment.  Second, something can be very wrong but still constitutional. Third, these rights are not equivalent.  Felons cannot own guns, but felons can (in most states) vote and (in all states) practice Islam.  So you can’t say that they all must be treated equally with respect to the validity of government speech discouraging them.

Let me add one more thought.  Suppose Columbine decided to use public funds for an anti-gun message.  Given the sad history of that high school, would you really say that the town would be prohibited from responding in that way?

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Justice Ginsburg Should Apologize

It is inappropriate for a sitting Justice to take sides openly in a presidential election, as the Justice did in her interview with Adam Liptak yesterday.  Even though it was safe to assume that she was for Hillary Clinton and was not a fan of Donald Trump, she should not say so in the media.  The younger Justice Harlan was right when he stopped voting after reaching the bench, because he said it might affect his impartiality.  Justice Ginsburg is not helping anybody by sounding off.

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Graetz & Greenhouse on the Burger Court

Over at SCOTUSblog, I interviewed Michael J. Graetz and Linda A. Greenhouse in connection with their new book The Burger Court & the Rise of the Judicial Right (Simon & Schuster, 2016, pp. 450).

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Here is an excerpt:

Question: By the end of your book one gets the impression that Justice Powell – the “centrist” jurist – was both the great enabler of the Burger Court’s “counter-revolution,” on the one hand, and the great denier of that very charge, on the other hand. Is that true? What are your thoughts?       

Graetz & Greenhouse: You’re right – Powell’s role was very substantial, to a degree that surprised us. He commanded respect within the Court. His instincts were notably conservative: pro-business, pro-local and state discretion, ready to draw a line against recognizing new rights or handing new remedial powers to the federal courts. He also left a great set of papers (at Washington & Lee), making it easy to trace how often his deepest-held views prevailed and how those views, projected onto the pages of United States Reports, so often trace the story of the Burger Court.

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Berkshire’s Blemishes: Lessons for Buffett’s Successors, Peers, and Policy

Columbia University has published my most recent research paper, available free on SSRN (registration required): “Berkshire’s Blemishes: Lessons for Buffett’s Successors, Peers, and Policy.” Here is the abstract.

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Berkshire Hathaway’s unique managerial model is lauded for its great value; this article highlights its costs. Most costs stem from the same features that yield such great value, which boil down, ironically, to Berkshire trying to be something it isn’t: it is a massive industrial conglomerate run as an old-fashioned investment partnership. An advisory board gives unchecked power to a single manager (Warren Buffett); Buffett makes huge capital allocations and pivotal executive hiring-and-firing decisions with modest investigation and scant oversight; Berkshire’s autonomous and decentralized structure grants operating managers enormous discretion with limited second-guessing; its trust-based culture relies on a cultivated vision of integrity more than internal controls; and its thrifty anti-bureaucracy means no central departments, such as public relations or general counsel.

Delineating the visible costs of Berkshire’s model confirms the desirability of tolerating many of them, given the value concurrently generated, but also reveals ways to improve the model—a few while Buffett is at the helm but mostly for successors. Current reform suggestions include hiring a full-time public relations professional at headquarters and more systematically developing senior executives; suggestions for future reform include enhanced subsidiary compliance resources and separating the identity and personal opinions of top executives from the corporation and its official policy.

Besides helping Berkshire, the review and suggestions will help managers of other companies inspired by Buffett’s unique managerial model and policymakers who should study it. Implications for peers and policymakers include highlighting flexibility in corporate governance, the efficacy of the conglomerate form, and especially the value of strategies that produce long-term thinking among shareholders and managers alike.

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Guns and Public Service Campaigns

I want to get reactions to a thought that I’ve had about the problem of gun violence.  Right now the debate focuses on regulatory policy–under what conditions, if any, should people be able to own or buy guns.  Thus far this has been a dead end in terms of reducing gun violence.

Wouldn’t a better approach be for amenable states or municipalities to spend money on public education campaigns to discourage people from owning guns, much in the way that they do to discourage smoking? This would do nothing, of course, with respect to deranged people who want to kill many.  But there are many more easily preventable gun deaths from suicides, accidents, or domestic violence.  If lawful gun possession went down by, say 10%, many lives would probably be saved.

What are the arguments against this?  One would be that public campaigns like this don’t work.  This could be true– I don’t know what studies about similar efforts to reduce drunk driving and smoking show.  A second objection is that owning a gun is good and should not be discouraged. Here I think the answer is that different states or cities can make their own judgments about that.  People would still be free to buy a gun anywhere, and if they feel strongly that they want to live in a place where gun ownership is celebrated then they can move. (The Second Amendment does not say that the state must pat you on the back for owning a gun.)

Would the First Amendment be violated by government speech that discourages the exercise of a fundamental right?  I think that the answer is no so long as that speech is general.  In other words, forcing gun store owners or abortion providers or liquor stores to lecture customers about the evils of those goods would be deeply problematic.  But if the speech is not done at the point of sale and comes through media (TV, radio, etc.) then I see no First Amendment violation in what amounts to government propaganda.