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June 2010 Archives

By James Copland Washington Examiner, 06-30-10

Perhaps signaling that the conservative critique of judicial activism has won over American voters, Supreme Court nominee Elena Kagan opened her confirmation hearings Monday by articulating a "modest" vision of judging: being "properly deferential" to elected representatives. But what exactly does she mean? It's of course true by definition that courts should defer to legislatures when the legislatures behave "properly"--but disputes over jurisprudence center precisely over disagreement about what's proper and what's improper.

For instance, should the courts defer to the elected branches when they violate explicit constitutional commands and try to seize our guns or homes? I'd say not, but the same left-leaning justices prone to finding new "unenumerated rights" in our Constitution seem to think differently. In this week's McDonald v. Chicago and in 2008's Heller v. District of Columbia, these judges essentially read the Second Amendment right to bear arms out of the Constitution, much as they did with the Fifth Amendment's Takings Clause in 2005's Kelo v. New London.

Similarly, why should the Supreme Court defer to elected representatives when they set out to ban political speech in clear violation of the First Amendment? President Obama disingenuously demagogued the Court's recent Citizens United campaign-finance ruling in his State of the Union address earlier this year, but let's be clear what that case was about: the federal government was trying to prevent a nonprofit group from distributing a video critical of then-presidential candidate Hillary Clinton. The Solicitor General's office headed by Kagan actually suggested that the government could ban books (though it later backed off that claim).

When elected leaders are trying to tinker with the rules governing their own reelections, courts should be skeptical, not deferential. As the Supreme Court invalidated campaign-finance rules in its 1976 decision Buckley v. Valeo, it took notice that Congress had set election-spending limits below the threshold level of any successful challenge to an incumbent in the preceding election. And let's not forget that political leaders can attempt to game such rules for partisan advantage, too. Kagan herself understood as much, when in the Clinton White House she noted with enthusiasm that a provision of the campaign-finance bill that became McCain-Feingold "affects Repubs, not Dems!"

Saying that the courts should defer to Congress also presupposes that Congress is clear about what it wants. Many times, it isn't. Congressmen and Senators regularly pass vague or ambiguous laws and force the other branches of government to determine what these laws actually mean.

Loose congressional drafting leads to broad regulatory schemes that may (or may not) preempt state rules and tort litigation. By failing to clarify their intent, congressional leaders can avoid upsetting business leaders and doctors on the one hand, and trial lawyers on the other.

In a criminal context, congressional vagueness allows politicians to "get tough on crime" without really saying what's criminal. Discretion shifts to prosecutors, and the rest of us are left unable to ascertain the boundaries of laws that might put us in jail. To save innocent citizens from being imprisoned, courts are forced to toss out Congress's laws in their entirety or to try to rewrite the laws to make them clearer--as the majority of the Supreme Court did last week with a ridiculous federal law that had made it a crime "to deprive another of the intangible right of honest services".

The left, including many of the Democratic Senators on the Judiciary Committee, has made a concerted effort to define "judicial activism" as "overturning Congress." But Congress should be overturned when it crosses its clear constitutional boundaries: that's why we have judicial review. And when Congress is unclear about its intentions, it makes no sense to say courts should defer to its wishes.

Elena Kagan's self-professed judicial "modesty" thus does little to inform us about how she would judge. Because her sparse record gives so few additional clues, Congress should hold her to the standard she once articulated as a law professor and engage her substantively on legal issues before confirming her to a lifetime seat on the nation's highest court.

By James Copland USA Today, 06-09-10

To protect First Amendment values, special rules to constrain lawsuits that might chill free speech are important. Indeed, these rules -- called "anti-SLAPP" laws -- are now more critical than ever given the rise of communication on the Internet.

The only problem is that they're too limited. Such laws should be expanded to curb lawsuit abuse more broadly.

Anti-SLAPP rules like those in California create two exceptions for speech-related lawsuits. First, unless suing parties can show they are likely to win, legal defendants do not have to submit to "discovery," the process in which opposing lawyers get access to paper and e-mail records and force defendants to face intense questioning in depositions. Second, unless suing parties win their suits, they must reimburse defendants' attorney fees.

These anti-SLAPP rules are the exception in America, but they're the norm in much ofthe rest of the world. The U.S. is the only developed nation that forces defendants to submit to expensive and invasive discovery before plaintiffs have done anything to establish the merits of their case. Every country in Western Europe requires that losers in lawsuits reimburse the winners' legal bills.

Unsurprisingly, America's unique litigation system costs more than these other countries', too. Tort lawsuits consume about 2% of U.S. gross domestic product, more than twice the share of the economy they consume in Germany, and three times that in Britain and France.

Just as the Internet has raised the stakes for anti-SLAPP legislation, electronic communications have made broader legal reform that much more imperative. Millions of e-mails are now subject to legal discovery, which makes for a lot of work for lawyers and a lot of cost for the rest of us. By some estimates, "electronic discovery" constitutes as much as 50% of corporate litigation costs.

The prospect of getting sued for an Internet blog post is scary, but it is no less scary for small-business owners, such as dry cleaners Jin and Soo Chung, who faced an economically crippling $54 million lawsuit in Washington, D.C., over allegations that they had lost a customer's pants. Applying anti-SLAPP rules to all lawsuits would not eliminate such abusive cases, but it would make them far less frequent.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.