Roundup: What Are People Saying About H.R. 347

Earlier this month, Obama signed H.R. 347 into law after it received an overwhelmingly positive vote in Congress. The bill is officially called the Federal Restricted Buildings and Improvement Act of 2011. You can read the text of the law here. Controversially, the law permits criminal prosecution of whoever “knowingly enters or remains in any restricted buildings or grounds without lawful authority.” The law defines “restricted building or grounds” as the White House, the Vice President’s official residence, any building where a “person protected by the secret service is or will be temporarily visiting,” and, most alarmingly, any place designated as the location of “a special event of national significance.”

These last two clauses, while likely facially constitutional, potentially allow government officials the authority to capriciously disperse any protest. Virtually any protest held in Washington D.C. could be dispersed on the basis that a Senator may intend to visit the grounds in the near future. Furthermore, could pro-life groups be forbidden to protest outside the venue of a speech of a prominent pro-choice advocate on the basis that his speech is an event of national significance?

Representative Justin Amash, one of only three “nay” votes in the House, wrote on Facebook: “Current law makes it illegal to enter or remain in an area where certain government officials (more particularly, those with Secret Service protection) will be visiting temporarily if and only if the person knows it's illegal to enter the restricted area but does so anyway. The bill expands current law to make it a crime to enter or remain in an area where an official is visiting even if the person does not know it's illegal to be in that area and has no reason to suspect it's illegal.”

The broad language of the bill has been attacked in the media by the left and the right. Slate has advised readers not to believe government officials who defend the anti-protest bill as a “small tweak of the existing law.” Judge Napolitano, writing for Fox News asked “Can the Secret Service tell you to shut up?” and concluded that the legislation denied protesters the First Amendment guarantee of “useful” political speech.

Eugene Volokh has offered a muted defense of the bill. Volokh offers in the law’s defense that it applies only to those who knowingly enter and remain in a restricted building - those who accidentally enter a restricted area are protected from prosecution. He also points out that the most offensive provisions of the law are only slightly changed restatements of the existing 18 U.S.C. § 1752, which was made into law in 2006. Volokh states that “the law has been in place for six years, through two administrations, without (to my knowledge) a vast amount of abuse.” However, even Volokh admits that “perhaps the reference to “special event of national significance” is too vague. . . . [and p]erhaps there are ways to let the Secret Service do its job while that would still robustly protect speech. . . .”

Martinez v. Ryan: Monstrosity or Mouse?

This week the Supreme Court issued its opinion in Martinez v. Ryan. By a 7-2 vote, the court held that: 

Where, under state law, ineffective-assistance-of-trial-counsel claims must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

Previously, a claim that has been defaulted by a state court cannot be raised in federal habeas, absent a narrow exception for situations that were external to the inmate—of which attorney error was not one. In so holding, the Court explicitly refused to answer the question that it had actually granted certiorari on, which was whether there is a right to the effective assistance of counsel in an initial review habeas corpus proceeding—that being a proceeding in which a specific claim cannot be raised at any prior time. While the Court’s narrow holding did not provide a new right, it does provide a potential remedy for inmates receiving ineffective assistance of post-conviction counsel.

While criticizing the majority decision, dissenting Justice Scalia labeled the decision a “monstrosity”, and lamented the major impact that the ruling would have on both the states and the court system. Post Martinez, he argues that states would be insane to not provide inmates with post-conviction counsel, because a failure to do so acts as a free pass to federal habeas. His is also distressed with the amount of time that courts will have to dedicate to this new issue.

But, is this an accurate view of the impact of Martinez? For all practical effect, a close reading of the opinion reveals that it may have limited practical scope. By not creating a right to post-conviction counsel, most inmates in non-capital cases will still proceed pro se. Claims of ineffective assistance of counsel, as noted by the majority, are nearly impossible to establish without the benefit of an attorney. So, now inmates without counsel may be able to bring a claim that would be previously defaulted, but the chance that they will be able to establish it is slim. Those that do receive counsel for their post-conviction claims still face a nearly impossible burden. They will have to be able to establish that both their trial counsel and post-conviction counsel provide ineffective assistance under the standard outlined in Strickland v. Washington. This requires both establishing deficient performance and prejudice, and is a difficult burden to meet even one, let alone twice.

Martinez poses an number of interesting questions going forward, but it appears that while it will, at the very least, result in a pleading revolution based upon this new remedy, the practical effect may be slight. Only time will tell.

Does Mad Men get it right?

No one can deny that Mad Men is one of the best television shows of the past decade. Still, although I’ve seen many episodes, I could never really get into it. Every time I watched Mad Men, I found myself boiling with an inexplicable sense of indignation. Perhaps this feeling was partly induced by the rampant racism, sexism, and ethnocentrism that are so central to the show’s story. And perhaps I simply couldn’t relate to any of the characters. But what really makes me uncomfortable is that the show’s portrayal of the 1960s is – to a large extent – realistic.  

In an online discussion for the Wall Street Journal’s Speakeasy blog, Former Solicitor General Walter Dellinger reported finding parallels between Mad Men and his early days in law. He was particularly struck at how well the show demonstrates the prevalence of daytime drinking as well as how it deals with changing gender roles on the 1960s. In addition, Dellinger mentioned in an interview with American Lawyer that “Mad Men also shows a 1960s world of closeted homosexuality and casual anti-Semitism, and gets those just right, too.”

Dellinger is obviously a huge fan. However, he does concede that “[t]he most serious criticism of the show is that while it takes a stance of disapproving of the benighted ways of that era, it also undeniably takes great pleasure in portraying them.” This criticism explains my biggest problem with Mad Men. In many ways, it’s written is such a way as to idealize the 1960s, and it does not do enough to demonize the social inequalities that were so prevalent during that era. Every time I watch the show, I feel compelled to smoke, drink, and treat women as inferior beings. While I’m kidding about the latter of these, the show does have the potential to make viewers complacent with the economic, social, and cultural environments of the 1960s.

On the other hand, considering how realistic Mad Men actually is, it does highlight how far we’ve come in the area of civil rights. This is not to say, of course, that we still don’t have a long way to go. But it does show progress and may even educate those who were unaware of how large the gap actually was. While watching Mad Men may occasionally disrupt my moral compass, I do realize that we no longer live in the 1960s. The last fifty years has brought some extraordinary changes in civil rights jurisprudence. And while I am ecstatic to see these changes, I must admit that I am bit disappointed about letting go of the age-old tradition of day drinking.  

The Conscientious (Patriotic) Objector

Ask anyone close to Lt. Col. Couch and they will tell you how perfect a fit the Marines are for him. Lt. Col. Couch is a devout Anglican who holds religion central to many of his beliefs. “[On my moral compass], my magnetic north points to Christ.” A firm pro-life advocate, he believes that “millions have been murdered by the hands of abortion.” He carries over his respect for human life to his military dealings – while soldiers are engineered to kill, they must still follow a certain code of ethics. 

Mohamedou Ould Slahi, known at Guantanamo (GITMO) as Detainee # 760, had allegedly steered Ramzi bin al-Shibh and three of the 9/11 terrorist hijackers, Mohammed Atta, Ziad Jarrah, and Marwan al-Shehi, to Osama bin Laden. Bin al-Shibh was one of the mastermind planners behind the attack.

In August of 2003, Couch accepted a lead prosecuting role and was assigned a post in the Office of Military Commissions in Arlington, Virginia. There he was given files on several Guantanamo detainees, one of which was Detainee # 760.

Tired of analyzing case summaries through a bureaucratized web of politics, Couch made his first visit to Guantanamo in October of 2003. His own case on Slahi pointed to some fishy behavior. After a few difficult months, Detainee #760 had repeatedly refused to give in to interrogation tactics. Then mysteriously, he started spilling.

“After a while, I just couldn’t keep up with him because things were coming out every day. He was giving like a ‘Who’s Who’ of al Qaeda in Germany and all of Europe.” Couch was confused. “I’ve got in the back of mind what I had seen on that first trip. And I’m thinking, okay, why is he being this prolific? What’s going on? You know, is it physical coercion?”

A colleague hinted to Couch that interrogation methods used on Slahi had been elevated. He had been moved on to the “varsity program,” the nickname given to the Special Interrogation Plan authorized by Secretary of Defense Donald Rumsfeld for the so-called stubborn detainees. As Couch dug deeper, he corroborated his initial suspicions. This is what he found.

When Slahi was being relocated to Guantanamo, he was thankful, “this is America not Jordan, and they are not going to beat you,” he expressed at his detention hearing.

Around May of 2003, just about the time when Detainee # 760 was spilling a great deal of information, Slahi was exposed to what Couch believes to be torture. Not-so-coincidentally the recording equipment began to malfunction when Slahi reports to have been beaten, exposed to extreme temperatures, and abused sexually.

“I was very hurting,” states Slahi’s diary, “for my hands were locked to the floor and I could not stand. Mary was touching me with her sexual parts all over and talking dirty. I am not willing to talk in details about that ugly happen.”

For the next few months, he was physically and psychologically threatened. On July 17, 2003, a masked interrogator mentioned to Slahi that he had had a dream about detainees digging some graves. In the dream, he recalled “a plain, pine casket with [Mr. Slahi’s] identification number painted in orange [being] lowered into the ground.”[i] The same interrogator three days later falsely informed Slahi “that his family was ‘incarcerated.’ ”

Slahi was often threatened for his life. Next, Slahi was taken to a physician, a “doctor who was not a regular doctor [but] part of the team,” he distinctively recalls. “He was cursing me and telling me very bad things. He gave me a lot of medication to make me sleep.” He tolerated for a few weeks but could take it no longer – he broke: “…because they said to me, either I am going to talk or they will continue to do this.”

Couch stopped digging. “For me, that was just, enough is enough. I had seen enough, I had heard enough, I had read enough. I said: ‘That’s it.’ ”

A debate ensued May of 2004 between Colonel Couch and his then-superior chief-prosecutor Army Colonel Bob Swann. Couch had made it clear that he was morally against the techniques and methods being used at Guantanamo and therefore was refusing to partake in the prosecution of any detainees at GITMO.

When Couch asked Swann to cite legal precedent excusing the 1994 treaty’s mandate over methods of torture, he was immediately asked to hand over Slahi’s files.

Although Couch was taken off Slahi’s case, he continued his prosecution of other high-profile detainees.

The Iron First Holds Flowers

Across the world, authoritarian leaders worry that Arab Spring fever will infect their citizenry. In an effort to inoculate themselves against the ire of democracy-seeking public, many leaders are finding utility in tightly-controlled elections—allowing them to legitimize their governments with referendums and contests whose outcomes are pre-ordained.

In Syria, elections were used a tool to quell uprising against President Bashar al-Assad’s increasingly brutal and repressive regime. In the midst of a civil war that (by some reports) has left over 7600 civilians dead, Assad’s government proposed a new draft of the Constitution.  Facially, the proposal provided for the establishment of opposition parties, while still leaving the chief executive with broad-ranging and largely unchecked powers. On February 26, 2012, the same day in which at least 59 civilians were killed, state-sponsored media reported 57% of voting-eligible Syrians went the polls to vote on the proposed constitution—which passed with almost 90% affirmative vote.  Western Diplomats in Damascus estimated actual turnout at around 5%, however, with many voters intimidated by the presence of the Assad regime. Dismissing the elections as “cynical,” U.S. State Department Spokeswoman Victoria Nuland explained that “the referendum that they put forward is ridiculous in that it requires that the state approve any of these patriotic opposition groups." Time will tell whether Assad’s constitutional referendum, along with recent calls to label opposition forces “terrorists,” will succeed in capturing the narrative of legitimacy—and ultimately deter foreign intervention.

The great power to the north, Russia, undertook elections of its own on March 4^th .The contest decided who would hold the country’s Presidency for the next six years,  and was closely followed after protests in the wake of December’s Duma (parliamentary) elections. In the Presidential election, and as expected, current Prime Minister Vladimir Putin coasted to victory with 63% of the vote, tearing up as he addressed his supporters during his election night victory speech. International media and human rights groups have been quick to point out election violations, however, with the head Organization for Security and Cooperation in Europe (OSCE) observer Tonino Picula concluding that "[t]here was no real competition, and abuse of government resources ensured that the ultimate winner of the election was never in doubt." Illustrating this point was an Associated Press video appearing to show a ballot box being stuffed at a polling station in Dagestan.  In the day following the election, some 20,000 protesters flocked to Moscow’s Pushkin Square to call for Putin’s resignation. They were met by 12,000 police dispatched to restore order, with hundreds of violent detainments reported by the Guardian. Although it is unclear the trajectory these protests will take, Putin’s Kremlin has been notoriously strict in cracking down on civil unrest.

It’s whether such stagecraft will help pacify, or only intensify, public outcry for democratic representation. It is clear, however, that the faux election is becoming a go-to tool of iron-fisted leaders seeking the appearance of reformers. Drawing back the curtain and exposing this election engineering, while publicly pushing for meaningful reform to election administration, are among the increasing-needed roles for media outlets and human rights groups alike. 

A New Round of School Finance Litigation Underway

The Texas Constitution pays explicit homage to Thomas Jefferson’s educational ideal that the “diffusion of knowledge” is a necessary component of a free society:

A general diffusion of knowledge being essential to the preservation of liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.

Despite this constitutional guarantee of a funded public school system, the Texas Legislature has repeatedly failed to create or maintain a viable school finance framework.

In late 2005, the Supreme Court of Texas warned that the state’s school finance system was “drift[ing] toward constitutional inadequacy.” The governor responded by calling a special legislative session during which state lawmakers enacted a plan to address the issues diagnosed by the Court. In the wake of the economic downturn, however, the continuing deficiencies of the system became clear. The 81st Legislature’s “fix” in 2009 was to plug the multi-billion dollar gap in the public education budget with federal stimulus funds, effectively punting the problem to the next biennium.

Faced with dearth of quick fixes in 2011, the 82nd Texas Legislature again avoided the underlying issues and slashed the public education budget by $5.4 billion. Meanwhile, the Rainy Day Fund—the state’s savings account—contains over $6 billion in idle funds. This legislative evasion has had far-reaching consequences, including teacher layoffs and local attempts to raise property taxes, but many school districts are left with few if any options to raise further revenue because they already taxed at the maximum allowable rate. Moreover, both the legislature and the Texas Education Agency have continued to tighten curriculum and performance standards. For the first time, a new standardized testing scheme expressly aims to “increas[e] postsecondary readiness of graduating high school students,” despite only 1 in 4 high school graduates scoring above the state-defined threshold for college readiness on the SAT or ACT. For a state that seems to be yearning for a Santorum candidacy, these new standards would appear to be the height of snobbery.

While the combination of budget reductions and stringent standards may have been enough to send the system into a tailspin, districts have also had to contend with a ballooning and increasingly diverse student population. The number of school-aged children has grown at four times the national rate over the past decade, and 60% of all students now come from economically disadvantaged households. School districts simply can’t keep up.

All of this has triggered a new round of potentially historic litigation. To date, four major lawsuits have been filed by various coalitions of schools. Two of these involve mostly property-poor districts represented by MALDEF and Equity Center. Another suit was filed by a group of property-rich districts. The fourth and arguably most significant case includes a diverse collection of plaintiff districts that collectively represent more than 1.5 million Texas children, including some of the largest districts in the state. This suit was recently joined by another plaintiff group of pro-charter school parents.

Fundamental change to the school finance system is long overdue. Many of the issues in these cases were previously addressed by the Supreme Court yet failed to be remedied by the legislature. The various plaintiffs represent a substantial swath of the state’s school districts and bridge the demographic rifts that often divide the legislature—urban/rural, rich/poor, etc. At this point, Texas lawmakers have established an unmistakable record of failing to revamp the system with any lasting measure of change. It is therefore incumbent upon the Supreme Court to heed the lessons of the past and issue the strongest possible mandate on the legislature to address this crisis with a qualitatively significant overhaul of public school financing.

Dallas County District Attorney Craig Watkins and the Death Penalty

Dallas County District Attorney Craig Watkins is a perplexing public figure to follow.  First elected in November 2006, he quickly gained widespread accolades for creating the Conviction Integrity Unit within the District Attorney’s Office, which reviews and re-investigates post-conviction claims of innocence using forensic testing.  

Despite this tremendous success, he has been entirely unable to steer clear of controversy.  Very few have attacked him over his conviction integrity work. Rather, Watkins, a Democrat, has been accused of firing prosecutors for partisan reasons (reminiscent of Bush’ U.S. Attorney firing controversy), paying family members out of campaign funds, and struggling with decisions to investigate and prosecute alleged criminal activity by Dallas County constables.

Even in light of his tumultuous history in office, I was surprised by the most recent story that came out in the news: Watkins’ great-grandfather was executed by the state of Texas in 1932.  In and of itself, this is little more than a fascinating item to note in Watkins’ biography.  However, the impact of his revelation is worth consideration: Watkins is again reconsidering his views on the death penalty [link’s behind a paywall, sorry!].

District Attorney Watkins entered office with “a lifelong opposition” to the death penalty, according to the Dallas Morning News.  Soon after taking office, he indicated his willingness to seek the death penalty in capital cases, and by 2010, he stated that he ceased having moral concerns about capital punishment.  Following the disclosure about his great-grandfather, Watkins told the Associated Press in an interview that the system of capital punishment in Texas needs to be reviewed.

At first blush, it’s refreshing to have one of Texas’ district attorneys—who are well known for their propensity to push for severe punishment—willing to take a thoughtful approach to the issue of the death penalty.  The evidence in recent years about the great likelihood of Texas executing an innocent person as well as the considerable research showing the racially disparate impact of the death penalty is troubling, if not for constitutional reasons, certainly for moral ones.  My initial instinct is thus to praise Watkins for grappling with the same issues that I do about the death penalty and doing so in the public eye.

On the other hand, Watkins’ ambivalence about the death penalty implicates one of the major concerns held by those who oppose (or question) the death penalty: that it will be imposed in an arbitrary and capricious manner.  There are quite insidious concerns about arbitrariness, such as greater incidences of death sentences based on race or sex.  It’s also troubling that a district attorney might pursue the death penalty in one case because he or she strongly supports it and the next year, not pursue the death penalty in an identical case because of his newfound opposition. 

This isn’t at all to say that I think Watkins should maintain his support for the death penalty rather than vacillate from support to opposition.  The road to reform is not often a straight one.  Instead, I hope, one day, he can look to his own indecisiveness about the death penalty and the impact it has had on capital cases in Dallas County and cite it as one of many reasons why he anchors himself in the camp opposed to the death penalty.

Campaign Finance and a Possible Solution to Citizens United v. FEC

Electing a candidate of your choice, and publically supporting your political beliefs are at the core of civil liberties. However, with the increasingly more rapid rise of powerful fundraising organizations thanks to recent court cases, navigating an efficient way to allow the arena of political free speech to flourish while also not being dominated by those most flushed with cash has become a hot point for activists.

The Supreme Court case, Citizens United v. FEC, has received a wave of negative attention for its linking of political speech to money in overruling portions of the Bipartisan Campaign Reform Act (BCRA) that put limits on certain types of expenditures. Citizens held that, because money is essentially the only way to effectively diffuse political speech, to limit the amount of expenditures a person or corporation makes in promoting their own beliefs—as opposed to contributions directly to a candidate—is an impermissible limit of free speech, and therefore a violation of the First Amendment.

In Citizens, the Court acknowledged that while there was an important interest attempting to limit corruption, independent expenditures did not pose the same threat of quid pro quo corruption that direct contributions to a campaign did. The Court ruled that the threat of possible corruption that expenditures posed was less important than the chilling of political speech that the regulation being litigated posed. The Court, however, upheld limits for direct contributions.

A 2010 D.C. Court of Appeals case, SpeechNOW.org v. FEC, clarified and continued Citizens’ holding by making clear that an organization, officially a “political action committee (PAC),” that was formed only for independent-expenditures—again, meaning that the PAC would only spend under their own discretion, not contribute money directly to a campaign—could raise an unlimited amount of money as long as the PAC didn’t work in concert with a campaign (whatever that means, and no one really seems to know).

The FEC officially designations Super PACs as Independent-Expenditure PACs, but that is a lot more boring to type out than “Super PACs.” So, hello, Super PACs.

Perhaps the most common critique of these decisions goes something like this: money isn’t speech, and corporations aren’t people with First Amendment rights that we should be worrying about. Therefore, limits on the amount of money spent by Super PACs should be limited in order to prevent corruption.

Now, I don’t like the way campaigning has been altered by the rise of the modern Super PACs. Candidates are forced to be full-time fundraisers, whether they are in or out of office.

However, I don’t think the answer to overruling Citizens is to deny here that, at least from a functionalist view, political speech does equal money spent to get the message out. Further, while I’m not arguing that corporations aren’t people, we actual people do have a right to assembly.

This right to assembly is an extremely important right for civil liberties. It is an individual right that gives us the constitutional support to come together as groups to promote, protest, and express our views. This right, paired with the reality of the role money plays in promoting political speech, suggests that attacking the absolute basics of the idea that money is speech in the campaigning world may not be the most sound course to take to defeat Citizens.

Instead, I think looking to different types of approaches is needed to defeat Citizens, as promoted by several constitutional scholars may be the solutions. Generally, these approaches fall into two categories: first, litigation strategies centering around attacking the Court’s reasoning as an impermissible overruling of a content-neutral restriction of free speech; and second, looking towards different types of public financing regulation. 

Lawrence Lessig, in particular, promotes many different solutions to the campaign finance problem along the second vein described above. Perhaps most radically, he suggested a new Constitutional Convention that would create an amendment to overturn Citizens. Additionally, he suggests new ways of organizing public financing. However, with the Republican filibuster of the DISCLOSE Act, legislation aimed at defeating Citizens United, legislation may not be the most efficient means to defeating the Court’s extreme protection of independent expenditures. 

Instead, I think the solution to Citizens may be found in the long history of content-neutral/content-based distinction in free speech jurisprudence. Limits on expenditures apply to conservative and progressive groups alike. They are, inherently, content-neutral. Content-neutral restrictions on free speech have been upheld in a variety on contexts as long as the state interest is strong enough. Specifically, the Supreme Court held in Ward v. Rock Against Racism, that content-neutral restrictions on free speech may be upheld if those restrictions, “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant government interest, and that they leave open ample alternative channels for communication of the information.”

In Citizens, the court essentially dismissed the idea that state interest in preventing corruption was “significant” enough in the context of expenditures to satisfy this content-neutral test; however, the Court did held that in terms of direct contributions, the interest was strong enough.

Time, and this election may be enough to show the Court’s failure in its distinguishing expenditure limits from contribution limits. In the 2010 election in Texas alone, in the wake of Citizens, a study by Texans for Public Justice demonstrated a twelve percent increase in PAC spending. Current projections for the 2012 elections are even more steep and obvious.

The Super PAC supporting New Gingrich’s campaign, for example, Winning Our Future is being kept afloat by one family, the Adelsons. If Gingrich were to be elected as the Republican nominee (an unlikely event at this point, to be sure), any court or person would be hard pressed to demonstrate how the infusion of wealth in this manner doesn’t rise the exact same corruption concerns as direct contributions do. 

You Keep Using That Word, I Do Not Think It Means What You Think It Means: How the GOP Became the (Mostly) Boys Who Cried ‘Rape’

The Republican Party has a big problem with rape.

I’m sorry. I made a mistake there. Let me start over.

The Republican Party has a big problem with understanding the meaning of the word rape.

There, that’s better.

Their problem is that they all seem to think that the definition of “rape” is “Obamacare.”

Take for instance the testimony of Dr. C. Ben Mitchell, a biomedical ethics professor at Union University, who testified at Republican Rep. Darrell Issa’s all-male, all-religious hearing on the secular issue of birth control for women. He called Obamacare’s mandate that insurer’s provide birth control for women “nothing less than the rape of the soul.”

Or take Republican Virginia Delegate Bob Marshall, Republican Virginia State Senator Dick Black and Republican Oklahoma State Representative Charles Key who recently submitted an amicus brief to the Supreme Court saying that Obamacare’s individual mandate is “not regulation of voluntary commercial intercourse; it is more akin to forcible economic rape.” See? There’s that word again.

Let’s put aside for the moment the more Birth-of-a-Nation-y aspects of the GOP’s willingness to throw the word “rape” around so flippantly with regards to the singular achievement of the country’s first black president. Suffice it to say, I don’t recall Bill Clinton — who introduced a similar healthcare plan, and who actually was guilty of some degree of sexual misconduct — ever being called a rapist.

Instead, and at the risk of going completely mad, let’s carry the GOP’s position to its logical extreme. Anyone who watched Wednesday’s Arizona debate saw the candidates fall all over themselves to declare which one wants to help rape victims the least. The exchange I have in mind is this one:

JOHN KING: It's an issue on which all of you have criticism on the Obama administration, it's an issue on which some of you have also criticized each other.

Governor Romney, both Senator Santorum and Speaker Gingrich have said during your tenure as governor, you required Catholic hospitals to provide emergency contraception to rape victims.  And Mr. Speaker, you compared the president to President Obama, saying he infringed on Catholics' rights.  Governor, did you do that?


MITT ROMNEY: No, absolutely not. Of course not.  There was no requirement in Massachusetts for the Catholic Church to provide morning-after pills to rape victims. That was entirely voluntary on their report. There was no such requirement.

You know, because when a woman is forcibly assaulted resulting in an unwanted pregnancy, which she must make the difficult decision to terminate, the real victim is the hospital.

But let’s finish that thought. According to the Republican Party, Obamacare is rape. According to the Republican Party, rape victims shouldn’t have access to birth control.

Deductive reasoning should apply here. Sorry you got Obamacare-raped GOP, but it looks like you’re going to have to carry this healthcare reform baby to term.

Economic Analysis of the Law and the Civil Rights Perspective

This semester I finally had the chance to take Economic Analysis of the Law here at UT Law School.  In this class we examine different legal policies from an economic standpoint in order to determine how best to maximize social welfare.  In order to make the analysis work we have to start with certain assumptions about human behavior.  Among other things, we assume that people make rational decisions, and that they attempt to maximize their individual welfare.  These assumptions are certainly not always true, but they simplify the world into a system that is useful when predicting behavior in the real world.

In general the civil rights crowd tends to be hostile to this merging of law and economics.  We tend to see rights as intrinsic to human life, and therefore outside this economic system.  To a certain extent I agree.  After all, it seems impossible to put a price on the freedom of speech.  But while you can’t sell your freedom of speech, you can let the government borrow it for a while.

As lawyers we voluntarily forfeit our freedom of speech whenever we take on a new client.  We must respect attorney-client privilege and remain loyal to our clients no matter what our individual political preferences may be.  We accept these restrictions on our rights because we feel they are less valuable than our client’s right to fair representation.  In situations like these you could say that rights are being traded.  Even if there is no money involved, it is clear that one right is valued more highly than the other.  Once we acknowledge that some rights are more valuable than others, putting specific prices on them is just a matter of working out the details.

While a full adoption of the law and economics school of thought is probably unnecessary, we should at least be prepared to think strategically about our options and how best to protect civil rights and civil liberties when they are challenged.  Often times protecting one person’s right requires the forfeiture of another person’s right.  We should make an effort to balance these interests rather than blindly supporting the creation of rights wherever they can be found.  In some instances this may mean reducing them to a variable in an equation.  In others it might just mean taking some time to consider the consequences of our policies, whether they are intended or not.