The University of Chicago Law School Faculty Blog

The Adjustment Bureau

Spring break is for grading exams but also for skiing and movie-going. My bad judgment was to believe some of the good reviews garnered by The Adjustment Bureau. It's an inept movie that begins with a clever idea but cannot figure out where to go. The conceit, based on a Philip K. Dick story, is that there is a plan for each human, and that when any of us drifts from our plan, a small adjustment is administered by overworked angels (who circulate among us in 1960s’ fedoras and suits) in order to nudge us back on our intended paths. At the start, an angel falls asleep and misses the assigned moment to nudge Matt Damon away from a distracting Emily Blunt, and then our hero proves too headstrong to be nudged back to his path, which involves a rising political career. He discovers the existence and ways of the Adjustment Bureau and rebels against it, so that he and his not-so-intended might live happily ever after. At one point he asks a middle-management angel about the loss of free will and is told that "we" tried that with you guys for several long periods, but each time you botched it (most recently with world wars, depressions, and a holocausts), and so here we are. 

The film is not without its charms.  The angels cannot function without their hats. I took this to be a cute joke about head coverings in some religions and bare heads in others. Indeed, an important angel wears a hat and a scarf - a fun tallit, or an even better, maniple joke. As the film wandered toward its predictable conclusion, I found myself wishing that Damon had asked a better question. Every observed adjustment was a mishap. The adjuster, or angel, tries to cause a coffee spill in order to get a character to head home. A dancer falls and sprains an ankle. Phone lines go dead. Damon is prevented from escaping by an administered trip in a parking garage, and he falls flat on his face. A car crash is summoned to prevent him from finding his love interest. We learn that his father and brother were killed in a car crash in order to adjust Damon's political career. Why, he might have asked, do you guys always use sticks instead of carrots? Why spilled coffees and car crashes instead of lucky coincidences, lottery winnings, and other goodies?

The larger, intellectual question about organized religions is why some encourage humans to fear higher power while others focus on rewards (and others a mix).  The question is an important one for legal systems, and a rich academic literature puzzles over the use of subsidies and taxes, rewards and fines, and more. If the message of the movie had been that a system of behavior control that relies only on penalties is inferior to one that cleverly mixes penalties and rewards, after taking moral hazards and baseline considerations into account, then it might have been a worthy film. 

And then there is the question of why we go to bad movies, and what might be done about that. Films are reviewed, by professionals and by acquaintances, but of course not everyone has the same taste as the reviewer. Netflix famously tackles this with its algorithm, recently improved in response to a substantial prize. It assumes, more or less, that each of us has different but fixed preferences. A quibble about that algorithm is that it is account-specific, rather than person-specific. A family rents movies and then rates the movies in order to help determine Netflix's recommendations for further rentals. Netflix uses the aggregated information to recommend movies to all its subscribers. The first point is that the system might be improved if different members of the household had different rating accounts. The second point is to puzzle over the difficulty of developing such algorithms and recommendations for movies while they are still in theaters. Netflix takes on the easier task of predicting tastes based on a very large number of observations – including the target movie itself. If many viewers submitted their ratings during the first weekend of a movie's run, it is possible that those who waited just a week (or one evening?) would learn a good deal about whether they would like the movie in question. Unfortunately, it is difficult to charge for such a service, and no studio or chain of theaters has much of an incentive to sponsor this pooling and application of information. But given the progress we are making with information markets, and smartphones as networking devices, we will get there one day.

Join me over at Goodreads: On Laissez-faire and Mass Incarceration

I’ve been tracking the budget debates regarding incarceration and I’ve just started a thread over at Goodreads to interactively discuss the puzzling relationship between punishment and economic logics. The major question on the table is how come laissez faire has gone hand-in-hand with mass incarceration? How can these paradoxical notions of liberty co-exist?

Another way to ask this is: What makes the prison budget seemingly impervious to deficit constraints? Although most of the cost of mass incarceration today is borne by states, the case of the federal budget is a perfect illustration. Think about it. We have a Democratic presidential administration that explicitly calls for reducing mass incarceration and has plans to release well-behaved convicts. We have continuing drops in violent crime at the national level. We are about to slash education programs because of our exponential federal deficit. And yet the Obama administration just proposed an 11 percent increase in spending on the federal prison system. What makes that particular budget line impervious?

Join me over at Goodreads if you would like to join in on the conversation...

DOJ Abandons Defense of the 'Defense of Marriage Act': First Thoughts

The Obama administration's announcement today that it will no longer defend the constitutionality of a key provision of the Defense of Marriage Act is a dramatic and completely game-changing legal decision. It is also the right one. 

Five states and the District of Columbia currently license same-sex marriages, and more will follow. New York and Maryland recognize such marriages from their sister states, even though they do not yet perform them.  Yet DOMA forbids the federal government from recognizing these marriages. This discrimination affects same-sex couples on matters ranging from tax-filing status to a same-sex spouse's eligibility for burial in a federally funded veteran's cemetery. The Government Accountability Office has documented "1,138 federal statutory provisions . . . in which marital status is a factor in determining or receiving benefits, rights, and privileges."

The lynchpin of today's announcement was the Justice Department's conclusion that government discrimination against gays and lesbians requires heightened scrutiny under the Equal Protection Clause (whose principles apply to the federal government through the Fifth Amendment's Due Process Clause). Courts grant a presumption of constitutionality to most laws and review them under only "rational basis" scrutiny. But the DOJ concluded that classifications based on sexual orientation are inherently suspect. Following established caselaw, the DOJ examined factors for heightened scrutiny and concluded that it should apply here, for four reasons: 1) there is "a significant history of purposeful discrimination against gay and lesbian people"; 2) "a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable"; 3) gays and lesbians have "limited political power" to protect their interests through the majoritarian political process; and 4) "there is a growing acknowledgment that sexual orientation 'bears no relation to ability to perform or contribute to society.'"  This analysis potentially has implications not just for marriage, but for all government discrimination against gays and lesbians.

Under equal protection principles, laws are not constitutional or unconstitutional in some absolute sense. When a court applies heightened scrutiny, the government is required to advance "important" reasons for keeping the discrimination in place. If the court accepts the reasons, the law is constitutional; if the reasons are insubstantial, grounded in animus or stereotypes, or only weakly connected to some important government objective, the law fails.  

There is a strong, sound tradition of the executive branch defending acts of Congress, even when the administration in power disagrees with them. But it is completely unedifying to see the government's lawyers advance so-called "important" reasons for a law when those reasons are in fact outdated, illogical, hypothesized, or invented post hoc in response to litigation. This is what happened in the case last year where a federal judge struck down the military's Don't Ask, Don't Tell policy.  The judge pointedly noted that it was unavailing and disingenuous for the government to argue that the law advanced "important" interests at the same time that the President and the Chairman of the Joint Chiefs of Staff were publicly asserting just the opposite.

After initially defending DOMA in various ongoing lawsuits, the DOJ has decided it will not engage in this sort of flawed legal argumentation. It is admitting that no important reasons exist for the federal government to refuse to recognize the perfectly valid marriages of same-sex couples from Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and our nation’s capital. For the purposes of its own laws, the federal government has always followed the determination of a state as to whether a person was legally married. It should be no different for same-sex couples.

To argue the contrary, the DOJ would have had to rely on DOMA's 15-year-old legislative history. The 1996 House committee report on DOMA is a remarkable period piece, full of homophobic rhetoric dressed up as public policy arguments that no serious national politician could get away with today. It decries an "orchestrated legal assault being waged against traditional heterosexual marriage," and asserts that Congress must respond by standing up for "traditional notions of morality." Or, as the DOJ puts it more delicately, "the legislative record underlying DOMA's passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships--precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against." The DOJ commendably decided it "cannot defend [DOMA] by advancing hypothetical rationales, independent of the legislative record."

The DOJ's decision is principled, and its legal explanation is well-reasoned.  Today's announcement is the beginning, not the end, of a fascinating new chapter in the legal and political debate over same-sex marriage. 

Steve Sanders

 

Obama's Retrospective

President Obama's recent Executive Order regarding cost-benefit analysis and administrative procedure has drawn criticism both for what it does and for what it does not do.  The Order provides little new guidance on how administrative agencies and the Office of Information and Regulatory Affairs (OIRA) should conduct cost-benefit analysis, and perhaps unavoidably it leaves many pertinent questions unanswered.  But it does issue one significant directive: it requires agencies to formulate plans to perform "retrospective analysis" of existing significant regulations.

NASA v. Nelson Oral Argument Aftermath - What Should the Majority Opinion Look Like?

Earlier today I posted an analysis of yesterday's oral argument in NASA v. Nelson, which focused on the approach that Justice Scalia is likely to take: holding that the Constitution does not protect a right to informational privacy.  As I explained in that post, it does not appear that Justice Scalia has more than two or three votes for his view.  This post will focus on some of the issues likely to arise as the other Justices try to write up an opinion.

The justices who seem open to the idea of a constitutional right to information privacy struggled with the question of what the contours of such a right would look like. (Indeed, it is conceivable that they found the answers of Nelson's counsel to these questions so exasperating that they will come around to Justice Scalia's view of the case.) The circuit courts that have recognized a constitutional right under Whalen and Nixon have done a generally poor job of developing sensible tests to determine when the right is violated.  I would argue that if the Court wants to develop such a test, it should simply track the test arising under privacy tort law.  Namely, for the reasons explained here, the courts should apply a three-prong test: (1) How private is the information being sought or disseminated by the government? (using tort, Privacy Act, and FOIA privacy caselaw as guideposts); (2) Is the government's conduct a clear violation of existing social norms?; and (3) Does the gravity of the harm to privacy interests outweigh the government's interest in obtaining or disclosing the information at issue?  Cases arising under the constitutional right to information privacy need not reinvent the wheel - the issues arising when the government invades privacy are quite similar to those arising when a private actor does so.  The tort test has worked reasonably well for decades, so if the Court wants to recognize such a right, tort cases present a sensible model for developing the contours of the constitutional inquiry.

There was some indication in oral argument that the Court was thinking along these lines.

NASA v. Nelson Oral Argument Aftermath - What Will Justice Scalia Do?

The Supreme Court heard oral argument in NASA v. Nelson yesterday, its first constitutional right to information privacy case in a generation.  The oral argument transcript is here, and SCOTUSBlog has a write-up here.  I analyzed the case earlier here.  Having read the transcript, it seems likely that the Court will reverse the Ninth Circuit and hold that the government may ask open-ended questions as part of a security clearance process for government employees. Beyond that, though, very little is clear.  In this post and a follow-up, I want to highlight some of the interesting issues that emerged in oral argument and suggest ways that some of the justices ought to go, given their apparent inclinations.

Justice Scalia's approach to the case seems fairly straightforward.  Justice Scalia believes on originalist grounds that the Constitution does not protect a constitutional right to information privacy.  He - and the other justices - recognized that the two 1970s Supreme Court decisions invoked by the plaintiffs - Whalen and Nixon - do not squarely hold that the Constitution protects such a right.  Scalia would therefore answer the open constitutional question and hold that limitations on the government's ability to ask its employees and job applicants questions do not arise under the Constitution.  In oral argument, Justice Scalia asked counsel why not simply let Congress decide what sorts of limits ought to constrain the government.  Counsel for Nelson never offered a good answer to this question.  Indeed, as I argued in an earlier post, there are sound reasons to believe that the Federal Tort Claims Act already constrains the sorts of questions that the government can ask as part of the security clearance process.  Constitutional protections seem to represent a belt and suspenders approach for reasons analyzed  For some of the reasons explained in this paper, I think the approach to Nelson suggested by Justice Scalia's questioning is persuasive.

Justice Scalia was active in questioning, but he did fail to go for the jugular after hearing an answer offered by Neal Katyal, who argued the case for the government.   Justice Scalia noted the bizarre nature of Whalen and Nixon, in which the Court assumed, arguendo, that a constitutional right exists before holding that the right was not violated by the government's conduct.  Justice Scalia observed that this is rarely the approach the Court takes and wondered why the constitutional right to information privacy should be any different.  To take a recent example of this question, consider the recent Supreme Court case of Stop the Beach Renourishment, where Justice Scalia's plurality opinion held that there is such a thing as a judicial taking, but also held that the actions of the Florida courts did not amount to a judicial taking.  (Justice Breyer's approach in Stop the Beach Renourishment was to follow the Whalen/Nixon tack - reserving judgment on the question of whether the Constitution proscribes judicial takings).  Katyal stated that the "arguendo" approach made particular sense in the privacy context, where rapid technological developments mean the rules governing privacy should change frequently.  This was Katyal's weakest answer in an otherwise efffective oral argument.  How come?

The Centenarian Who Wasn’t, NASA v. Nelson, and the Constitutional Right to Information Privacy

Approximately thirty years ago, Sogen Kato became involved in an argument with his relatives, and then retreated into his bedroom to sleep.  He never came out.  Evidently none of the family members who shared his apartment went in to disturb him.  This past July, after Kato ostensibly became Tokyo’s oldest living man, Japanese government officials sought to contact him to congratulate him on his longevity.  After being given the run-around by his nervous relatives as to his availability, government officials eventually showed up at Kato’s apartment and discovered his mummified remains in the bedroom.  His reprehensible relatives, who collected more than $100,000 in pension benefits in Kato’s name during his “lifetime,” are in very hot water. 

The constitutional right to information privacy is the law’s equivalent of Sogen Kato.  It has been thirty-three years since the Supreme Court hinted that such a right exists under the Constitution, and the Court has been as silent as Kato in the interim about this subject.  The lower courts have had much more to say, with most circuit courts holding definitively that the Constitution protects a right to informational privacy and developing multi-part tests to determine when it has been infringed.  The D.C. Circuit has expressed skepticism about whether the constitutional right lives on, and the Sixth Circuit has held that until the Supreme Court says otherwise, the constitutional right to information privacy is dead.  On October 5, the U.S. Supreme Court is going to be opening the bedroom door, and considering oral argument in its first constitutional right to information privacy case in a generation, NASA v. Nelson.

In Nelson the Court will take up the issue of whether the constitutional right to information privacy prohibits the Jet Propulsion Laboratories (JPL) from asking open-ended questions about whether longtime JPL employees have done anything that might reflect negatively on their ability to continue performing their jobs.  My view of Nelson, which I develop at much greater length in Reunifying Privacy Law (forthcoming in the California Law Review), is that the Court ought to hold in Nelson that there is no such thing as a constitutional right to information privacy.  My primary basis for concluding that the constitutional right ought to simply go away is that the constitutional right to information privacy is largely redundant with privacy tort law.  Because the Solicitor General decided not to argue that the Supreme Court should follow the Sixth Circuit’s approach, the briefs in Nelson have largely ignored the question of what happens if the Court holds that this constitutional right should disappear.  But it would be very fruitful for the Justices to ask counsel hard questions along these lines next month.  The answer in Nelson itself appears to be that abolition of the constitutional claim would leave the plaintiffs with robust remedies under tort law.

Vernor v. Autodesk: Copyright, Software Upgrades and Secondary Markets

Earlier today, the Ninth Circuit decided an important case about the scope of the first sale doctrine in copyright as applied to computer software. In Vernor v. Autodesk, the court concluded that the documents in question created a license rather than a sale of the underlying software with the consequence that copyright’s first-sale doctrine did not apply. Early commentary—at least of the 140 character kind on Twitter—is largely critical. The case is one of statutory interpretation and, for the Ninth Circuit, figuring out what some of its earlier software cases had said. The case raises some broad issues regarding copyright and secondary markets, but there is a narrower issue regarding software upgrades embedded in the case and that is the one I want to focus on here.

Video: Dean Schill Presented with CHPC's Impact Award for Excellence in Housing

Back in April, Dean Michael Schill was presented with the Impact Award for Excellence in Housing from New York City's Citizens Housing and Planning Council. Dean Schill was recognized for his work as the founding director of NYU's Furman Center for Real Estate and Urban Policy. His acceptance speech is embedded below, and you can find out more about the ceremony here.

Audio: Two Epstein SCOTUScasts

Hat tip to George Best, '97, who alerted us to two Federalist Society SCOTUScasts featuring Richard Epstein, one on Christian Legal Society v. Martinez and one on Bilski v. Kappos.