ProfessorBainbridge.com

Discussing Disney

There's a number of bloggers over at Conglomerate discussing the oral argument before the Delaware Supreme Court in the Disney-Ovitz executive compensation case.

Elizabeth Nowicki observes:

The points made by appellants’ counsel (as I recall) include: 1.  The directors had the obligation to meet together (as a group) and deliberate together on the decision to fire Ovitz.  By failing to do so, the directors breached some duty, per se.

I tend to sympathize with Larry Ribstein's point that:

I would hope that, after its mistake in Van Gorkom, the court now recognizes how wrong it would be to insist on excessive procedures, including requiring a meeting in order to satisfy due care duties.  And clearly that shouldn't matter for good faith purposes under 102(b)(7).

Yet, it is important to recognize that corporate law's insistence that boards of directors act collectively has a sound basis. Indeed, the very existence of the board of directors is predicated on the superiority of group as opposed to individual decision making. Or so I argued in my article Why a Board? Group Decisionmaking in Corporate Governance:

Abstract: The default statutory model of corporate governance contemplates not a single hierarch but rather a multi-member body that acts collegially. Why? This article reviews evidence that group decisionmaking is often preferable to that of individuals, focusing on evidence that groups are particularly likely to be more effective decisionmakers in settings analogous to those in which boards operate. Most of this evidence comes not from neo-classical economics, but from the behavioral sciences. In particular, cognitive psychology has a long-standing tradition of studying individual versus group decisionmaking. This article contends that behavioral research, taken together with various strands of new institutional economics, sheds considerable light on the role of the board of directors. In addition, the analysis has implications for several sub-regimes within corporate law. Are those sub-regimes well-designed to encourage optimal board behavior? Two such sub-regimes are surveyed here: First, the seemingly formalistic rules governing board decisionmaking processes turn out to make considerable sense in light of the experimental data on group decisionmaking. Second, the adverse consequences of judicial review for effective team functioning turns out to be a partial explanation for the business judgment rule.

Indeed, in that article, I even went so far as to venture a defense of the Van Gorkom decision:

… the Van Gorkom court arguably created a set of incentives consistent with the teaching of the literature on group decision making. The decision disfavors agenda control by senior management, penalizes boards that simply go through the motions, and encourages inquiry, deliberation, care, and process. The decision strongly encourages boards to seek outside counsel and financial advice, which is consistent with evidence groupthink can be prevented by outside expert advice and evaluations. Even the court’s criticism of the board’s willingness to take action after a single meeting is consistent with suggestions that a “second-chance meeting” also helps prevent groupthink. As such, the oft-repeated law and economics critique of Van Gorkom appears overblown. Contrary to what most law and economics scholars have asserted, there is a rational basis for the seemingly formalistic procedures mandated by that opinion.

According to Elizabeth, plaintiff's (i.e., appellant's) counsel also argued that:

Chancellor Chandler erred in placing the officers within the protection of the business judgment rule presumption.

In my treatise, Corporation Law and Economics, I argued that officers should get the benefit of the BJR:

It is reasonably well-settled that officers owe a duty of care to the corporation. It is less well-settled that officers get the benefit of the business judgment rule. Under the ALI PRINCIPLES, the rule applies to both directors and officers. [ALI Principles § 4.01.]

Judicial precedents are divided, however. [Compare Galef v. Alexander, 615 F.2d 51, 57 n.13 (2d Cir. 1980) (holding that the business judgment rule “generally applies to decisions of executive officers as well as those of directors”); FDIC v. Stahl, 854 F. Supp. 1565, 1570 n.8 (S.D. Fla. 1994) (holding that the rule “applies equally to both officers and directors”) with Platt v. Richardson, 1989 WL 159584 at *2 (M.D. Pa. 1989) (holding that the rule “applies only to directors of a corporation and not to officers.”). At least one court claims that the former view is the majority position, rejecting an argument that “the business judgment rule applies only to the conduct of corporate directors and not to the conduct of corporate officers” on grounds that it was “clearly contrary to the substantial body of corporate case law which has developed on this issue.” Selcke v. Bove, 629 N.E.2d 747, 750 (Ill. App. 1994).]

Most of the theoretical justifications for the business judgment rule extend from the boardroom to corporate officers. Many corporate decisions are made by officers, for example, who are likely to be even more risk averse than directors. Accordingly, insulation from liability may be necessary to encourage optimal levels of risk-taking by officers. Just as the board of directors is properly regarded as a production team, so is the so-called top management team. Accordingly, internal team governance may be preferable to external review. In sum, the better view is that officers are eligible for the protections of the business judgment rule.

Alito's Chances

Despite the party line vote in the Judiciary Committee and paltry announced Democratic floor support, Tradesports is still predicting that Alito will be confirmed, albeit with less than 60 votes. FWIW.

Alito Vote

Even though the latest CNN poll indicated the American people support Samuel Alito's nomination to the Supreme Court, and the same poll indicated that barely a third would support a Democrat filibuster, all of the Democrats on the Senate Judiciary Committee have voted against Alito.

The politicization of the confirmation process the Democrats began when they first turned bork into a verb thus continues.

Of course, the confirmation process has become so politicized precisely because our courts have become so politicized. We have allowed nine old men and women in robes to elevate themselves into a super-legislature in which they exercise privileges they deny to our elected representatives.

I wonder what the founders would think of our modern Supreme Court as it happily goes about the business of, as Justice Scalia put it, "Day by day, case by case, ... designing a Constitution for a country I do not recognize." My guess is that many of them would agree with Judge Bork that the courts have taken sides in the "struggle between the cultural or liberal left and the great mass of citizens who, left to their own devices, tend to be traditionalists. The courts are enacting the agenda of the cultural left." And even among those founders who would take the other side of the culture wars (Jefferson?), there might be some who would recognize that their cherished checks and balances are breaking down as the Court becomes less and less accountable. (Quotes taken from Richard Neuhaus' review of Bork's latest book: Coercing Virtue: The Worldwide Rule of Judges.)

Clinton on Post-1968

Blogger Mark Stricherez interviews Bill Clinton on the changes in the Democratic party post-1968. And then offers some post- interview thoughts. This one, which speaks to the role of values in elections, struck me as especially interesting:

Mr. Clinton's best point was his last one: that Republicans cannot win by running solely on cultural conservatism. He's right about that. Witness the failed gubernatorial campaign of Jerry Kilgore, who ran on support for the death penalty and little else. Kilgore offered no positive program for voters or even anything substantative. Very few candidates running in a close race can win by running on cultural issues. Consider the counter-example of President Bush. He ran in 2000 on a campaign that featured reform of the public schools, and it helped him get elected. Then before the 2004 race, he signed the Medicare prescription drug benefit, and it helped him win re-election. There's a pattern there.

Alito to be confirmed but with less than 60 votes

According to Chris Masse's RSS feed (for which I don't know how to provide a permanent archival link):

Judge Alito has lost the support of some moderate Democratic Senators. TradeBetX/TradeSports/InTrade now predicts that he won't get over 60 votes ?though, the exchange stands on its prediction that he'll get at least 51, and that's enough to make the trick.

Update: Don Luskin has this comment: "That means that the Democrats will dare to pull a unanimous blockade, but not dare to filibuster." ...

My preferred law blogger: Professor Bainbridge (conservative, but in a smart, open-minded way ?not a neo-con). He'll certainly feed you with updates. {ProfB: My blushes!} ...

[This RSS post is in contravention with David Pennock's fatwa that says that "RSS items does not link off directly to 3rd party sites." I called down the thunder, I should now get ready for the BOOM. The terror is welling inside me. My whole body is shivering...]

[Update: My ideological friend Donald Luskin read me the riot act for not giving readers "a way to archivally link" to this item.]

I concur with Luskin. On both points.

The Future of Corporate Governance

Larry Ribstein comments on an article by law professor James Fanto:

A disturbing new vision of the corporation has just appeared on SSRN: Fanto, Paternalistic Regulation of Public Company Management: Lessons from Bank Regulation January 4, 2006. Here's a piece of the abstract:

The Article proposes that the SEC appoint a corporate governance monitor for certain of the largest public firms who would have a role like that of an examiner of a large bank or financial holding company. The SEC would hire, train, and oversee the performance of, these monitors, who would be supervised by that part of the SEC?s Division of Corporation Finance responsible for their firms and industry.

Wow! What an idea. Turn what?s left of dynamic American enterprise into banks. The article?s theory is that group psychology prevents realistic monitoring by people who have been socialized to be part of the group, which is all of the gatekeepers and monitors we rely on today ? outside directors, lawyers, auditors, etc. So we need an outsider ? namely the SEC.

Do go read the whole thing; it's an excellent critique. And it includes a comment by Fanto in defense of the paper. As somebody who lived through the S&L crisis while I was in practice, however, I think commenter Robert Schwartz nicely captured by gut reaction:

And it worked so well with the Savings & Loan business.

Update: See also Matt Bodie's (partial) defense of Fanto's proposal.

Does the Academy Police Itself?

The brouhaha last week at UCLA over the Bruin Alumni Association prompted the LA Times' to devote most of its editorial section today to the question of whether universities are biased ideologically. Granted, the BAA's UCLAProfs.com site undermined its credibility by mixing apples and oranges, as I pointed out:

If BAA is going to go forward, a question on which I am firmly agnostic, I should think that they want to avoid violating IP law and university policy respecting copyright and so on. I should think they also need to draw a distinction between in-class abuse of position and legitimate political expression outside of class. So far, it would seem, they are falling down on both scores.

Put bluntly, however, the claims by the defenders of the status quo are even more bogus as the BAA's criticisms.

UCLA Professor Saree Makdisi claims that:

A method for assessing how professors treat their students is already built into how universities work. Every course at UCLA gives students the opportunity to anonymously evaluate their professors, and those evaluations are used in hiring, promotion and tenure decisions; abusive professors don't get very far in their careers.

Institute for Advanced Study Professor Joan Scott apparently got the same set of talking points:

... there are abuse-monitoring mechanisms in academia that distinguish between responsible work and polemic, between teaching that aims to unsettle received opinion and teaching that seeks to indoctrinate. Universities have established procedures to adjudicate complaints of indoctrination, charges of unfair grading and other denials of student rights, and, for the most part, they work.

Neither Makdisi nor Scott offers empirical support for their claims, although the latter claims that "study after study," none identified, validates her argument.

In contrast, I offer you some data. First, as explained in the preceding post, university hiring practices have a demonstrable disparate impact on the political and ideological composition of university faculties. Second, as I noted in my TCS column, these disparities clearly have a deleterious effect on the learning environment. A survey of students at 50 top U.S. universities and colleges conducted by the Center for Survey Research & Analysis at the University of Connecticut, for example, found considerable evidence that politics pervaded the classroom:

For instance, nearly half said that their professors frequently comment on politics in class even though it has nothing to do with the course or use the classroom to present their personal political views. In answers to other questions, the majority acknowledged that liberal views predominate. Most troubling, however, were the responses to the survey item On my campus, there are courses in which students feel they have to agree with the professor's political or social views in order to get a good grade -- 29% agreed.

I don't know whether Makdisi and Scott are simply uninformed or are being disingenuous. I do know that the system is broken and that public scrutiny of how universities spend taxpayer dollars is both appropriate and inevitable. The academic left's knee-jerk effort to delegitimize such scrutiny by invoking labels like witch hunt or McCarthyism will be as bootless as they are duplicitous.

Disparate Impact in Academic Hiring

Much of the LA Times' editorial section is devoted today to the question of whether universities discriminate against conservatives. I've argued in the past that there is such discrimination, although much of it is a question of critical mass and network effects rather than intentional discrimination.

Yet, I am reminded of a question Joe Biden put to Samuel Alito during the recent SCOTUS nomination hearings:

... discrimination has become very sophisticated. It's become very, very sophisticated, very much more subtle than it was when I got here 34 years ago or 50 years ago. ... I mean, there's all different ways in which now it's become so much more subtle. And that's why we all, Democrat and Republican, wrote Title VII. ... What we observed in the real world is it's real subtle. And yet it's harder to make a case of discrimination even though there's no doubt that it still exists.

The concept of disparate impact has become one of the chief tools courts use to address such discrimination. The Supreme Court set out the basic principle in Griggs v. Duke Power Co., 401 U.S. 424, 431-32 (1971), holding that Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. . . . [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability."

To invoke disparate impact, the plaintiff must prove, generally through statistical comparisons, that the challenged practice or selection device has a substantial adverse impact on a protected group.

With that background in mind, consider these data from the Times:

Academics who identified themselves as left or liberal

in 1984: 39%

in 1999: 72%

Academics who identified themselves as right or conservative

in 1984: 34%

in 1999: 15%

Among faculties in 1999, Democrats outnumbered Republicans 5 to 1

The Democratic advantage by department in 1999 English: 35 to 1 History: 17.5 to 1 Biology: 4 to 1 Engineering: 3 to 1 Computer science: 2 to 1 Chemistry: 1.5 to 1 But in agriculture, Republicans held a 1.3-1 edge.

In 2004, employees of the University of California and Harvard University were John Kerry's largest dollar contributors and among Howard Dean's top five.

I'd say that makes out a prima facie case that university hiring practices are having a disparate impact. The burden of proof is therefore on the university to show why this disparity exists.

Spare me tired arguments like "liberals have a social conscience," "conservatives only care about money," and such nonsense. I've heard it before ... and rebutted it before.

Clarendon Hills Blewitt Springs Vineyard Old Vines Grenache

Possibly the finest Australian wine I have tasted to date. A huge wine. A John Wayne of wines. Big and brawny. Deep black even at age 10 and despite having thrown an tremendous amount of sediment. Very prominent legs. Immense nose of leather, cigars, and roasted game. Surprisingly fresh red fruit on the palate, with a subtle sweetness that refreshes rather than cloys. Delightful to drink now, but doubtless could have aged another decade or more

I must confess that Grenache is not a grape variety for which I have had much respect in the past. Indeed, I had no idea Grenache was capable of producing a wine of this excellence. Thank goodness a friend gave me this bottle. Once again, an amazing wine broadens one's horizons. Grade: A

J. Davies Cabernet Sauvignon Diamond Mountain District (Napa

The first I tried of this wine was badly corked. After I complained, the good folks at Schramsberg (which owns J Davies) sent along a replacement bottle. We tried it tonight and it was excellent. Big nose. Mint, chocolate, and bright red fruits, with an interesting undertone of earth and minerals. Grade: A-

Ca' del Solo Big House Red (California) 2003

As usual, this wine includes everything but the kitchen sink. In 2003, it includes Syrah, Petite Sirah, Zinfandel, Carignane, Barbera, and Malbec. It's a good value generic red (<$10), but not especially memorable. Raspberry and blackberry flavors/aromas. Bonus points for value and using a screwcap, but it's still pretty pedestrian. Grade: B-

Kennedy on Alito

Senator Edward Kennedy issued a statement today explaining why he will vote against confirmation of Supreme Court nominee Samuel Alito. I will leave the task of correcting the many apparent errors and misstatements in Kennedy's remarks for others, at least for now. Instead, I want to focus on Kennedy's peroration:

Judge Alito is a highly intelligent man, but his record does not show a judge who is willing to enforce the constitutional limitations on executive power when government officials intrude on individual rights.

His record does not show a judge who is open to the claims of vulnerable individuals asking only justice against powerful institutions.

His record does not show a judge who upholds the liberty and privacy of citizens seeking to protect their fundamental rights.

His record just does not show a judge who is committed to equal justice under law.

Every federal judge takes the following oath of office:

?I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.?

In effect, Ted Kennedy is claiming that Alito consistently and willfully violates his oath of office.

We are told that:

Conduct that undermines the integrity of a public office or is in disregard of constitutional duties or involves abuse of power is generally regarded as grounds for impeachment.

Is not a disregard of constitutional duties and abuse of power precisely what Kennedy is charging Alito with? If Kennedy really believes what he's saying, shouldn't he put his money where his mouth is by asking the Senate House to begin impeachment proceedings? Or, to come at it from another angle, where does Judge Alito go to get his reputation back after it has been subjected to these sort of scurrilous charges by a Senator who hides behind the legislative privileges and immunities?

The Purpose of SSRN

SSRN is a repository of scholarly papers from a variety of disciplines, including law. Dan Markel recently complained that SSRN is not being used for its intended purpose:

I had been under the impression that SSRN was developed initially so that scholars could see "tomorrow's research today."  In other words, scholars (and the public) could access drafts of work well before  publication, along with past publications by a particular author.  And indeed, SSRN's homepage indicates that this is the point:

Each of SSRN's networks encourages the early distribution of research results by publishing submitted abstracts and by soliciting abstracts of top quality research papers around the world.

The "problem," as I see it, is that, at least in law, SSRN is being used as a way to generate more information relevant to the evaluation of a potential scholar (should we hire her, well, let's consider how many articles are up on SSRN, or how many downloads the person's scholarship gets, or, how good the article on SSRN is).  If SSRN is being used for evaluative purposes rather than constructive feedback purposes, then it seems likely that people will not post their "shitty first draft" up, but rather their penultimate draft, or potentially, just their final draft that was published. 

Larry Ribstein also seems to think that SSRN can function as a vehicle for attracting feedback on early drafts.

If the purpose of SSRN ever was to elicit feedback on early drafts, a point on which I plead ignorance, that purpose was just silly. Any young scholar who posted a rough draft to a website hoping that some Harvard or Yale big shot would read it and send along comments was, to be blunt, delusional. Put bluntly, nobody whose comments would be worth getting has that much time on their hands.

Apropos of my point, Gordon Smith notes that:

The problem is that SSRN has never been good at producing that sort of feedback, at least for me. As Dan observes in a comment to the original post, "few people I know actually receive comments from strangers on their drafts, which raises questions about whether the vision of SSRN is being realized; I know I haven't. Have you?" No.

The way you get feedback on rough drafts is by giving it to friends in the field, colleagues at your school, presenting it at workshops, and so on. Not by posting it to SSRN.

Instead, I think what the SSRN founders had in mind when they talked about "early distribution of research results" was bypassing the delays inherent in submitting an article to journals and the subsequent editorial process. I've had law review articles spend a year or more at the journal after acceptance. If you plan to submit to peer reviewed journals that do not allow multiple submissions, the process can be even longer. SSRN provided a vehicle for bypassing that process and getting relatively finished and polished work product out to the world much faster than the journal process allows. This is particularly important for time-sensitive work, but is attractive for any work.

SSRN also provides a vehicle for reaching people outside your discipline. To the limited extent I get feedback on articles from SSRN, it usually is a request for additional information from somebody outside the American legal academy. Hence, it seems safe to assume, SSRN is helping my scholarship reach audiences that would not be reached by law journals.

Or, as Smith suggests:

First, it offers direct marketing of scholarship based on subject matter. This is not such an issue in finance or sociology, where the journals provide focus, but in law our most prestigious publication outlets are general law reviews. ... For current work in corporate law, I rely heavily on SSRN to supplement conferences and word-of-mouth.

Second, SSRN introduces new audiences to my work.

All of these functions argue for posting only finished work product to SSRN. Hence, if Markel intended to suggest that SSRN's original, noble purpose has been eroded by the tawdry concerns of hiring and evaluating legal talent, I think that concern is misplaced.

Roy Blunt: Just Vote No

As part of his campaign for the House GOP majority leadership, Congressman Roy Blunt published a very disingenuous op-ed in the WSJ today, in which he claimed that:

As readers of this page know all too well, excessive government regulation, taxation and spending strangle economic growth as frequently as runaway litigation and soaring health-care and energy costs do. What politicians say about these issues does not matter much, but what we do about them does. I'm proud of what House Republicans have accomplished on this front over the last several years, but I know that much remains to be done.

Before assuming Blunt would lead the GOP back to its Reagan/Gingrich roots as a party of limited government and reform, however, check out these disturbing facts:

1. "He played key roles pushing the Medicare prescription drug bill in 2003 ...."
2. "He was criticized by watchdog group Citizens for Responsibility and Ethics in Washington for slipping a provision into a 2002 homeland security bill that would have benefited tobacco giant Philip Morris, now known as Altria. At the time, Blunt was involved with company lobbyist Abigail Perlman, whom he married the next year after divorcing his wife of 31 years. Altria is one of Blunt's top campaign donors and his son, Andrew, represents the company as a lobbyist in Missouri."
3. "He was one of three House GOP leaders who signed a letter in June 2003 endorsing the position of one of [lobbyist Jack Abramoff's] tribal gambling clients, the Louisiana Coushatta."

Hugh Hewitt reports that Congressman John Shadegg is playing up #2 as part of Shadegg's insurgent campsign:

... Shadegg argued that Roy Blunt should not be majority leader because Blunt as Whip had exercised power to benefit friends, citing Blunt's action, "in the dead of night" (though Shadegg volunteered that this characterization was a little unfair) on behalf of Philip Morris. Congressman Shadegg then discussed the details of Blunt's intervention on behalf of PM when the Homeland Security bill was being passed, when Blunt was in a relationship with a PM lobbyist (and apparently while Blunt's son was a PM employee.)

Hewitt has interviewed all three candidates, with the transcripts of his interviews with Blunt, Boehner and Shadegg posted to Radioblogger. (As I have, Hewitt has endorsed Shadegg for majority leader.) And, of course, KJ Lopez is keeping the kettle brewing over at the Corner.

Electing Blunt GOP majority leader would be a vote for the status quo: big government conservatism, expanded entitlement spending, runaway deficits, and K Street-linked corruption. The GOP needs to use this vote as an opportunity to send a signal to the public that things will be different, which requires electing somebody as untained as humanly possible by both K Street corruption and the betrayal of the GOP's limited government/fiscal conservative principles over the last 6 years.

Presented with a rare opportunity to send a message about change and reform, House Republicans seem ready, instead, to send a message of continuity by selecting Missouri Rep. Roy Blunt (R) as Majority Leader. ... if Republicans think they can turn the page on former House Majority Leader Tom DeLay (R-Texas) by sticking with Speaker Dennis Hastert (R-Ill.), Blunt as Majority Leader and Rep. Eric Cantor (R-Va.) as Majority Whip, they must be wearing rose-colored glasses. (Stuart Rothenberg via Rich Lowry)

Michelle Malkin participated in the blogger conference call with Shadegg and concludes:

I was impressed by Shadegg's candor and passionate committment to limited government (he actually broached the need to reexamine the Medicare debacle, criticizing both the White House and anti-means-testing Democrats), and he's on the right side of immigration enforcement/national security issues.

She also rounds up reactions from other participating bloggers:

Mike Krempasky: "I think when it comes down to it - if you want more of the same (increased spending, bigger government, more scandals) then Blunt is your guy. If you want the one that scares the daylights out of the Democrats because of his honesty and principled approach to government - Shadegg is the only answer."

James Joyner: "Shadegg was quite impressive. He's clearly a True Believer in the Goldwater tradition of Arizona libertarian conservatives. His opening remarks and his responses to questions were well-thought-out and showed an easy command of the issues. I'm still not sure that he is in a tactical position to win the race, but have more faith that it is at least a possibility."

La Shawn Barber: "The man sounded sincere and straightforward to me."

Scalia Scuttles Federalism

The transcript of John Eastman's interview with Hugh Hewitt about the SCOTUS decision in the Oregon assisted suicide case is quite enlightening. In Wickard v. Filburn, 317 U.S. 111 (1942),the Supreme Court basically gave the constitutional green light to the modern national regulatory state by holding that the commerce clause of the Constitution authorized the federal government to regulate a farmer's raising of wheat he had grown on his own land for personal consumption. As Wikipedia explains, "Filburn's wheat competed with wheat sold in interstate commerce, because, had he not used his home-grown wheat, he would have had to buy wheat on the open market. The Court held that Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce."

This expansive view of the scope of the power granted Congress under the commerce clause is why I have often referred to the continuing validity of Wickard as the most consequential issue of modern constitutional jurisprudence. It is an article of faith for those of who take federalism seriously that Wickard must go. Unfortunately, as Eastman explained to Hewitt, it appears that Scalia has now wholly surrendered to Wickard and, worse yet, has gotten new Chief Justice John Roberts to accept that view:

HH: Now I want to read the last paragraph of Justice Scalia's dissent, and then I want you to explain it to people, John, because it's very interesting. I mean, it's very, very interesting. Justice Scalia writes, "The Court's decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the federal government's business. It is easy to sympathize with that position. The prohibition or the deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution. And it is within the realm of public morality, bonos mores, traditionally addressed by the so-called police power of the states. But then, neither is prohibiting the recreational use of druge, or discouraging drug addiction among the enumerated powers. From an early time in our national history, the federal government has used its enumerated powers, such as the power to regulate interstate commerce, for the purpose of protecting public morality. For example, by banning the intersate shipment of lottery tickets, or the interstate transport of women or immoral purposes. Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissable. The question before us in not whether Congress can do this, or even whether Congress should do this, but simply whether Congress has done this in the C.S.A., Controlled Substances Act. I think there's no doubt that it has. If the term legitimate medical purpose has any meaning, it surely excludes the prescription of drugs to produce death. Unpack that, John Eastman. It's very dense.

JE: Well, it's very dense, and it's the reason Justice Thomas wrote separately in dissent as well. Look, Justice Scalia is saying that this is clearly not commerce, it's not interstate. The power to regulate the health, safety, welfare and morals of the people is a state power, as originally understood. But we're 70 years past that fight having been fought and lost. The federal government routinely today regulates police power type things that are properly for the states, and Justice Scalia is saying we're at least going to be consistent. We're either going to follow our jurisprudence, and let the federal government regulate basically anything, or we're going to repudiate 70 years of jurisprudence. Now until last year, in the medical marijuana case, Justice Scalia was on the side of let's repudiate this stuff. ...

HH: And now, the new Chief joined with Scalia, not with Thomas, and interpret that for us.

JE: Well, you know, I actually think that's a pretty profound signal, looking at the tea leaves. And I'm disappointed in the new Chief for it. The fight between Thomas and Scalia, and the difference slice they put in their respective dissents, is one about whether we're going to have an administrative state, or whether we're not going to have an administrative state. And Justice Scalia is much more willing to be deferential to the administrative state here than Justice Thomas has been.

Some will condemn Scalia for abandoning originalism in this line of cases. Yet, I think these cases actually reveal something more interesting about Scalia, which is that he is not purely an originalist. Instead, Scalia's jurisprudence has elements of originalism and textualism, but also of traditionalism. The latter looks at how the Constitution has been interpreted over time, such that well-established traditions become entrenched. The real problem with Scalia is that he doesn't seem to have a hierarchy for choosing between the three. As David Zlotnick observes:

Heterarchy, not hierarchy, could be the battle cry of those critics who focus on the interplay of Scalia's methods rather than on the individual components. Led by Jeffrey Rosen, this group alleges that, even if Scalia's methodology is hierarchical in theory, his opinions reflect a more opportunistic picking and choosing of the method that leads to his preferred result. Rosen's contention is that "in case after case, Scalia chooses among mutually inconsistent interpretive principles - textualism, originalism, traditionalism - in order to reach results that he finds politically congenial." For example, Rosen challenges Scalia's claim that the Due Process Clause of the Fourteenth Amendment should be read to refer only to procedural rights. He argues that a historical understanding reveals a "substantial overlap ... between notions of due process of law and notions of equal protection of the law," as well as a "view [of] the due process clause as a mandate that judges should protect certain fundamental economic rights."

A number of scholars have come to similar conclusions in other areas. In his examination of Scalia's takings jurisprudence, William Fisher found that in Lucas v. South Carolina Coastal Council, Scalia devised a precedent-based clear rule for takings without first exploring the Framers' understanding of the Takings Clause. If he had, Fisher contends, he would have discovered that the original understanding of this clause "proscribed only formal expropriations of private property," not the effects of regulations on property value that Scalia's rule encompassed. ...

Normally, Scalia evades these contradictions by resorting to overly confident textualist assertions or by abdicating his commitment to conduct historical research. Once in a while, however, Scalia comes close to admitting that he does not always follow a strictly hierarchical approach beginning with text and proceeding to history and clear rules. For example, in Waters v. Churchill, he acceded to a judicially created First Amendment doctrine (a clear rule) but admitted that he had not "inquired into the historical justification" of that rule.

Rather than that of a systemic ideologue with a hierarchy of methods, Scalia's constitutional practice better resembles that of a practical handyman who reaches into his workbox to select the tool best suited to accomplish a particular job. The question that remains, however, is how often his political values influence his methodological choices.

There is much to be admired about Scalia. It no longer seems possible, however, to believe that he is developing a coherent conservative jurisprudence. Nor, insofar as results are concerned, that he can be expected to bring back the Constitution from the exile to which Wickard assigned it.