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I’ll be participating in a program tomorrow at noon at the Cato Institute on the question, “Did Lack of Consumer Protection Cause the Crisis?”  Info is here.  Participants include Janis Bowdler, National Council of La Raza; Thomas Durkin, Former Economist, Federal Reserve Board; Ed Mierzwinski, U.S. PIRG; and myself.  Moderated by Mark A. Calabria, Director, Financial Regulation Studies, Cato Institute.

Former federal judge Michael McConnell, of Stanford University, considers the constitutionality of the so-called “Slaughter Solution” — a proposal to allow the House to pass both the Senate health care bill and proposed reconciliation amendments in a single vote.

To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the “exact text” must be approved by one house; the other house must approve “precisely the same text.”

These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 “the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.” These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.

The process of publishing a law review article usually involves rounds of edits.   After the article is accepted, the author will submit the article to begin the editing process.  The journal will suggest changes; the author will respond; the journal will suggest more changes; the author will respond, etc.   Journal editors and authors alike sometimes wonder, what’s the best number and type of rounds of edits?   This is a particularly tricky question for student editors because normally they are only on their journal for two years.  Editors  learn all about the process and then graduate, leaving them less able to reform practices based on their experience.

Here’s my take.   In an ideal world, there could be different procedures for different articles and different authors.  But if a one-size-fits-all answer is needed, I think the best approach is to have two-and-a-half rounds of edits.    The first round should be the big-picture round.  The journal should suggest changes or improvements to the overall argument, flow, and organization of the article.   The author should then respond, making changes as necessary.  The second round should be the detail round.  The journal should suggest changes or improvements to specific sentences, words, and citations.  The author should then respond.   Finally, I think it’s helpful for the journal to send the author one last quick round as a courtesy just to help look for typos, wrong words, and other objective errors (the last “half” round, as this can be pretty quick).

Some journals do this, and I think it works quite well.  One of the keys is to have clear roles for each rounds of editing.  Sometimes journals don’t have clear roles for different rounds.  Sometimes you’ll just get back-and-forth process that covers the same ground as prior rounds.  I think this tends to create more work than is necessary, at only marginal benefit.  In my view, the better approach is to dedicate individual rounds of edits to different aspects of the article.  That way, once a round is over, that part of the article is settled.

Perhaps the extreme example of the back-and-forth process is the editorial process followed by the Harvard Law Review, at least when I published with them in 2005.  The HLR is the most prestigious law review, and if you’re lucky enough to get an offer from them, you take it.  But in my experience, the editorial process was completely unlike the process at any other journal.  The HLR editors were super smart and worked incredibly hard.  But there were six or seven rounds of edits, each quite free ranging in subject and scope, as different editors had a crack at the piece.  I was totally exhausted by the end, and there was a lot of wasted effort in the process.  By the later rounds, the editors were suggesting changes to changes made by prior editors that themselves had altered changes made by even earlier editors.  The edits led to a nicely polished article, and I was happy with it.   At the same time, I remember thinking that I could have written an entirely new article just in the time I spend working on the edits to that one.

Anyway, as I said, there is no one perfect way to structure rounds of editing.  Different approaches will work better for different authors and different articles.  But I’ve personally found the two-and-a-half rounds approach described above works best.

According to the Complaint in EEOC v. Pollard Agency, filed last week, the Pollard Agency fired an employee for “wearing a headscarf to cover her hair, which is a sincerely held religious belief as required by her faith.” The EEOC argues that this violates the duty of religious accommodation under Title VII of the Civil Rights Act of 1964 (as amended in 1972).

I think the EEOC is likely right, if its discussion of the facts is correct. Title VII requires employers to provide reasonable religious accommodations, by (1) giving religious employees special exemptions from generally applicable job requirements (2) if the requirements interfere with an employee’s “religious observance and practice” and (3) such an exemption doesn’t impose “undue hardship on the conduct of the employer’s business,” 42 U.S.C. § 2000e(j). Exemptions from dress codes, such as no-hat rules, requirements that everyone wear pants (which some religious groups object to, when applied to women), and the like, are a classic example of reasonable accommodations, since an employer can generally grant them without an undue hardship.

Indeed, police departments may generally insist that officers not deviate from the required uniforms:
In the City’s view, at stake is the police department’s impartiality, or more precisely, the perception of its impartiality by citizens of all races and religions whom the police are charged to serve and protect. If not for the strict enforcement of Directive 78, the City contends, the essential values of impartiality, religious neutrality, uniformity, and the subordination of personal preference would be severely damaged to the detriment of the proper functioning of the police department. In the words of Police Commissioner Sylvester Johnson, uniformity “encourages the subordination of personal preferences in favor of the overall policing mission” and conveys “a sense of authority and competence to other officers inside the Department, as well as to the general public.”

Commissioner Johnson identified and articulated the police department’s religious neutrality (or the appearance of neutrality) as vital in both dealing with the public and working together cooperatively. “In sum, in my professional judgment and experience, it is critically important to promote the image of a disciplined, identifiable and impartial police force by maintaining the Philadelphia Police Department uniform as a symbol of neutral government authority, free from expressions of personal religion, bent or bias.” Commissioner Johnson’s testimony was not contradicted or challenged by Webb at any stage in the proceedings....

As a para-military entity, the Philadelphia Police Department requires “a disciplined rank and file for efficient conduct of its affairs.” Commissioner Johnson’s thorough and uncontradicted reasons for refusing accommodations are sufficient to meet the more than de minimis cost of an undue burden.

But this rationale, I think, generally flows from the special nature of policing, which probably doesn’t apply to the typical commercial security guard.

For more on religious accommodations, including ones related to headscarves, see these posts from the past few years. Thanks to Religion Clause for the pointer.

A quibble about an item from the Pi Day site, which I’ve seen quoted in a few places:
Pi is an irrational and transcendental number meaning it will continue infinitely without repeating.

That pi is an irrational number does mean it will continue infinitely without repeating. For all rational numbers, and only rational numbers, the decimal representation of the number will at some point start repeating and keep repeating, e.g., 3.1415926926926926926.... (If you’re wondering about a number such as 2.5, it’s actually 2.50000000...., or for that matter 2.49999999....)

But that pi is a transcendental number doesn’t quite “mean[] it will continue infinitely without repeating.” It’s true that all transcendental numbers are irrational, and therefore will indeed continue infinitely without repeating. But not all irrational numbers are transcendental, so a number’s being transcendental means something more than that it continues infinitely.

An irrational number (say, the square root of 2) is merely a number that can’t be represented as a ratio of two integers. But a transcendental number is a number that can’t be represented as a solution of any polynomial with integer coefficients: Square root of 2 is thus irrational but not transcendental, because it is a solution of the polynomial x^2–2=0. Pi is indeed transcendental, as is its soulmate e; but it would have been more precise to say,
Pi is an irrational number, meaning it will continue infinitely without repeating, and is also transcendental [possibly followed by a definition].

UPDATE: The same quibble applies to the CNN story, which says “Mathematicians know that pi is irrational — it cannot be represented as one number divided by another — and transcendental, meaning it is not algebraic. That means, theoretically, that its digits will continue on indefinitely without ending in repetition — in other words, the digits won’t suddenly continue infinitely as 5s after 3 trillion digits ....” The “That means” is precise as to the “irrational” part, but I think it doesn’t adequately capture the meaning of “transcendental, meaning it is not algebraic.”

March 14, Pi Day.  3.141 ... also, of course, the return of daylight savings time.  I regret the lost hour, and the sense of weird jet lag, and it would be great if there were any sun rather than a third day of rain, but still, light in the evening!  Life can go on.  I’m increasingly an Aztec by religious conviction, I’m afraid, and every winter I fear that the Fifth Age of the world has ended and the sun will return no more.  So DST is almost like ... an Aztec ritual!  The kindler, gentler, non-human-sacrificial New Fire Ceremony.

Update:  With the approach of spring, I was temporarily seized with the milk of human kindness (kindler, gentler, non-human-sacrificial ...).  Oh heck, I’m an Aztec.  New Fire Ceremony.  You know where this is going.  We must get with the program.

Today’s L.A. Times print edition carries an article with the headline, “Challenging a judicial norm,” and the subhead, “A justice’s wife may test impartiality standards by starting a ‘tea party’ group.” (The online version has a different headline and a slightly different subhead.) The article is about Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, who has just founded Liberty Central Inc., a conservative activist group.

Of course, Justice Thomas is not the only judge to have had a spouse in a prominent political role. Ninth Circuit Judge Stephen Reinhardt’s wife, Ramona Ripston, has just stepped down from being head of the Southern California ACLU. Third Circuit Judge Jane Roth’s husband was a U.S. Senator; Third Circuit Judge Marjorie Rendell’s husband is a governor. So I’m not sure that there’s really a judicial norm that judge’s spouses should stay out of politics, whether partisan politics, advocacy group politics, or public interest litigation (itself a form of politics, at least when done effectively).

And while the matter hasn’t to my knowledge arisen as to the U.S. Supreme Court, that might have chiefly been a matter of small numbers and the recency of women’s substantial participation in politics, rather than of any consciously accepted norm. All but three Supreme Court Justices have been men. Until recently, women haven’t been involved either in partisan or ideological politics at nearly the level we see now. And it makes sense that of the few male Justices who have served during an era when men their age have wives who might be interested in politics, only one has had a wife who was indeed interesting in that sort of thing. At the circuit judge level, the numbers are just much greater, as are the numbers of female judges whose husbands are interested in politics.

What we have here is the inevitable result of the growing equality of women, the resulting growing tendency of lawyers to marry lawyers (and lawyers are disproportionately likely to go into politics), and the general tendency of people to marry others like them. It makes sense that many judges these days are women whose husbands are of the profession, social class, and cast of mind that makes them want to go into politics. It makes sense that many male judges have wives who are likewise likely to be interested in politics. And of course since spouses are supposed to help each other (and much such help is entirely legitimate), the success of one may yield more opportunities for the other.

Nor does this strike me as particularly pernicious or dangerous: Judges have plenty of political and ideological predispositions that they bring to the job from their earlier lives, and of course they have judicial philosophies that often make them in sync with particular political groups. That too is inevitable, and the fact that a spouse (or a child) has a high-profile political position doesn’t add much, I think, to those existing predispositions. In particular, I don’t think that the desire to remove any such mild additional influence of the judges justifies limiting the lives of the judge’s spouses and children. Virginia Thomas, like Ramona Ripston, should be free to go where her beliefs and talents take her, without having her spouse’s job cripple those ambitions.

It’s true, of course, that in some situations a judge might have to recuse himself because of a spouse’s or child’s involvement in a case. Judge Reinhardt, for instance, had always recused himself, if I’m not mistaken, in cases involving the Southern California ACLU. But those should generally be relatively rare situations, and limited to the family member’s actual involvement in a case and not just the family member’s political or ideological sympathy or alliance with a party.

And whatever people might think about the bottom line, I’d just be happy if discussions of this issue as to the Thomases would likewise discuss the Ripston/Reinhardts, the Roths, and the Rendells.

UPDATE: I originally said that Judge Reinhardt recuses himself from ACLU cases; his policy actually appears to be that he recuses himself from cases involving the ACLU of Southern California, so I corrected the post accordingly.

Over at BLT, Tony Mauro has this interesting report of a forthcoming New Yorker interview in which Justice Stevens says he hasn’t made up his mind yet whether to retire at the end of the Term.

Do songwriters understand behavioral economics better than law professors?  They might.  Liam Delaney and Alex Tabarrok have been suggesting songs for “the behavioral economics songs hall of fame.”  Delaney nominates “The Yeah Yeah Yeah Song” by the Flaming Lips.  Tabarrok suggests Chris Smither’s “Hey, Hey, Hey” for these lyrics:

Pretty soon you’re gonna ask me,
How come the life you lead,
Doesn’t make you very happy,
Or satisfy your needs,
You talk about your needs as though
You know just what they are,
When in fact to really know them,
Is like traveling to a star,
It takes so long you die along the way,
So I say hey, hey, hey.

These two are not alone. (Just see the comment thread on Tabarrok’s post.)  Perhaps some songwriters understand aspects of human behavior better than us academics.  [Perhaps?!?Is there any question? –ed.]

At Time.com, Christopher Hayes suggests that blame for America’s recent economic decline should be principally directed at “the bright and industrious minds who occupy the commanding heights of our meritocratic order.” According to Hayes, the elites who are “supposed to make sure everything operates smoothly” have become increasingly corrupt and incompetent. Hayes makes a strong case, or at least Gallop does, that public trust in these elites continues to wane:  

For more than 35 years, Gallup has polled Americans about levels of trust in their institutions — Congress, banks, Big Business, public schools, etc. In 2008 nearly every single institution was at an all-time low. Banks were trusted by just 32% of the populace, down from more than 50% in 2004. Newspapers were down to 24%, from slightly below 40% at the start of the decade. And Congress was the least trusted institution of all, with only 12% of Americans expressing confidence in it.

Unfortunately, the second half of the essay goes downhill, as Hayes tries to prove that two of the primary causes of these institutional failures are concentration of power and the erosion of transparency and accountability.

His main example of why erosion of transparency and accountability are now lowering public trust in elites – the sexual abuse scandals of the Catholic Church - actually works against his argument. The Catholic Church has been secretive and hierarchical for going on 10+ centuries now. If anything, the Catholic Church of the 1970s – when Gallop started tracking public confidence in elite institutions – was more secretive and hierarchical than today’s version. Also, in previous eras, the former victims of childhood abuse were more reticent to share their experiences, in part because they encountered stronger social pressures from family and church members to keep quiet. Of course, the rising levels of transparency and accountability within religious institutions/communities have been a good thing, but they don’t do much for Hayes’ argument.

In his next example, Hayes’ pivots to go after another favorite target of the left: CEO pay. For the sake of argument, I’m willing to concede that rising CEO pay levels might contribute to ”concentration of power.” However, in making this shift, Hayes conveniently drops the part about transparency and accountability, I suspect because he knows that the general public has access to more information about CEO salaries and other internal corporate business matters than they did 35 years ago.

Hayes then loses track of his argument altogether,  to go after yet another favorite target of the left:  

Take the problem of climate change. It’s beyond our ability to recognize the imperceptible upward creep of global temperatures, so we must rely on the authority of those who are doing the highly complicated measuring. But at a moment when we desperately need élites and experts to use their social capital to warn the populace of the dangers of catastrophic climate change, skepticism is rising. A comprehensive Pew poll released in October found that only 57% of respondents think there’s evidence of warming (down from 71% last year), and just 36% think it’s because of human activity (down from 47%). This is the danger of living in a society in which the landscape of authority has been leveled: it’s not there when you actually need it.

In other words, rather than carefully build a coherent and complete argument, Hayes tosses out two weak examples, and then immediately rushes the stage, grabs a microphone, and begins preaching his faith. I would argue that one cause of public distrust in elite institutions is the inability of many elites to understand their own limitations. As the Washington editor of The Nation, Hayes is a bit of a media grandee, himself. An excellent writer, he is able to partly disguise the logical weaknesses of his essay with smooth, rhythmic prose. After watching him make such a flimsy effort at proving his own points, though, I wonder if he just tosses out the same groupthink explanations for every political question he considers. And, if so, what does that say about our elite institutions?

©2010 PoliGazette. All Rights Reserved.

Hadi Ghaemi and Aaron Rhodes of the International Campaign for Human Rights in Iran urge the United Nations Human Rights Council to take a stand against the blatant repression undertaken by the Iranian government. But they acknowledge that so far the UN has done more to support the Iranian government than its victims:

The new session of the U.N. Human Rights Council began on March 1. A failure of the world’s most influential human rights body to deal with the abuse of human rights in Iran will be interpreted by Tehran as a green light for the government’s brutal policies that could result in more executions of political prisoners....

While atrocities since June have horrified people around the world, leading to demonstrations by more than 50,000 people in 110 cities last summer, Iran seems, astonishingly, to be strengthening its standing in the Human Rights Council.

The 47 member states have shown no willingness to hold a special session, as many international human rights experts have recommended, nor have they supported the idea of a special U.N. envoy to look into the situation, and to press Iran to abide by its commitments....

The failure of the Human Rights Council to take serious action to condemn Iran’s human rights abuses, and the election of Iran to the Human Rights Council itself, will be deeply disillusioning for the reform and human rights movement in Iran. It could destroy their faith in the international human rights system, for which many have sacrificed their freedom and security, and for which many have died. It will give legitimacy to hanging political prisoners, and more will be hanged.

But this issue is not just about Iran. It is about the capacity of the U.N. system to protect human rights. If Iran’s grave abuses are ignored and if Iran assumes a place on the council, the council will be further weakened. Other dictatorial regimes will be emboldened to repress their citizens.

Ghaemi and Rhodes attribute the Human Rights Council’s failure to take a stand against Iran to concern that doing so might derail negotiations to reign in Iran’s nuclear program. However, those negotiations have achieved little or nothing in any event. The real cause of Iran’s successes in the United Nations are traceable to deeper weaknesses of international human rights law.

Both the content and enforcement of international human rights law are heavily influenced by authoritarian states who have a strong interest in using the system to protect and legitimize their own oppressive practices. John McGinnis and I have discussed these issues in detail in two academic articles (see here and here).

Far from seeking to protect human rights, the HRC (whose membership includes numerous dictatorships), often passes resolutions intended to facilitate repression (see e.g. here and here). Iran itself has been a member of the HRC in the past and, as Ghaemi and Rhodes point out, is likely to succeed in its efforts to become one again. Even the UN’s Universal Declaration of Human Rights — the most important international human rights law agreement — includes repression-facilitating elements introduced at the behest of the USSR and its totalitarian allies.

The bottom line is that the main weaknesses of the international human rights system are structural. By giving so much influence to the very sorts of governments that human rights law is supposed to constrain, it actually empowers oppressors much more than victims. In the short run, liberal democratic governments should work to limit the scope of the system and and prevent its pernicious elements from overriding their own domestic law, a point McGinnis and I emphasized in our articles linked above. In places like Iran, progress in protecting human rights probably depends on action by liberal democracies and internal dissidents acting outside the confines of the UN system. Liberal democracies cannot and will not always prioritize the promotion of human rights. But they have fewer perverse incentives on these issues than dictatorships do.

In the long term, we should explore the possibility of establishing international human rights bodies that exclude illiberal regimes from membership. That may be the only way to create a Human Rights Council that isn’t just a committee of wolves pretending to guard the chicken coop while they gobble up the chickens.

Can the House vote to adopt a rule which “deems” that a particular bill has been passed, even if that particular bill has not been passed? If so, are there any limits to the adoption of House rules which eliminate voting on bills? For example, could the House at the start of a session adopt a rule which states that there will be no voting by individual members, and that the House during the next two years will “deem” to have been passed whatever the Speaker of the House deems to have been passed? Is the question justiciable?

I don’t have a fully-formed opinion on these topics, and would welcome well-informed comments. Please stick to this issue, not to the merits of the legislation. The most relevant constitutional text would seem to be the following:

Article I, sect. 1: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article I, sect. 5: Each House may determine the Rules of its Proceedings, . . .

Article I, sect. 7: Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill

Also seemingly relevant would be INS v. Chada (1983), which rejected the position that a section 7 cases present a non-justiciable political question. The practice at issue in Chada, the one-house veto, was far more established by practice and by statute than is the Slaughter Solution of “deeming” an unenacted bill to have been enacted.