The Faculty Lounge

Extending "Married" Income Tax Benefits to Those in German Civil Unions

The German Federal Constitutional Court has ruled that it is unconstitutional to fail to extend to partners in civil unions the income tax benefits enjoyed by married couples.  Here's how Spiegel Online International explains it:

The Federal Constitutional Court in Karlsruhe ruled that the unequal treatment of marriages and civil partnerships regarding taxes was unconstitutional, and demanded that the law be changed retroactively to August 1, 2001, the date that Germany legalized civil unions. Until new regulations exist, the current provisions for joint filings of married couples can be applied to civil partnerships, according to the decision.

The move had significant political support. All parties in the parliament, with the exception of Chancellor Angela Merkel's conservative Christian Democratic Union (CDU) and its Bavarian sister party, the Christian Social Union (CSU), had recently called for such equal treatment.

The full article is here.

This will be an interesting development to watch.

Ziegler on the Costs of Originalism to the Anti-Abortion Movement

Last summer I wrote about Mary Ziegler's exciting article on the constitutional ideas of the anti-abortion movement in the 1970s.  I called the blog post "Bumper Sticker Popular Constitutionalism" to make the point that the constitutional arguments were, well, rather thin.  (Sort of what you see on bumper stickers).  Now Ziegler has followed up that article with an in-depth look at the shift made in the anti-abortion movement from its sort of pluralism of constitutional arguments against abortion (like a nineth amendment focus on the rights of fetuses) to a laser-like focus on originalism.  This shift tracks, unsurprisingly, the shift in the larger world towards originalism in the late 1970s and early 1980s.  Here is the abstract for Ziegler's article, "Originalism Talk: A Legal History":

Progressives have long recognized the tremendous political appeal of originalism: it achieves results consistent with conservative values but promises the public judicial neutrality. By drawing on new historical research on antiabortion constitutionalism, this Article argues for a radically different understanding of the originalist ascendancy. Contrary to what we often think, conservative social movements at times made significant sacrifices in joining an originalist coalition. These costs were built in to what this Article calls originalism talk — the use of arguments, terms, and objectives associated with conservative originalism. 

Scholars have documented the costs confronted by social movements reliant on rights-based rhetoric, particularly when activists seek social change in the courts. Originalism talk was similarly constraining. By becoming part of an originalist coalition, abortion opponents increased their influence over the selection of federal judicial nominees. At the same time, in stressing originalist rhetoric, abortion opponents had to set aside longstanding constitutional commitments involving the right to life, the personhood of the fetus, and the existence of rights based in natural law or human-rights principles. 

The story of antiabortion constitutionalism offers insight into progressive attempts to create a doctrinally satisfying and politically resonant alternative to conservative originalism. Often, the issue is how to create an interpretive method that accomplishes as much as originalism: advancing progressive constitutional beliefs while appealing to the public’s interest in the rule of law. As this Article shows, however, it is not clear that the benefits of belonging to the originalist coalition outweigh its costs.

This is exciting because it suggests that there were costs involved in the shift away from non-originalist, living constitution arguments.  (I used a bumper sticker that makes appeals to human rights, rather than constitutional arguments, to make the case against abortion.  I was having trouble finding the one I really wanted to use, which directly linked slavery and abortion.)  I don't think there's been any attention to that part of the originalism movement.  But this makes me wonder about two things.  First, does the power of originalism (and the readiness of the anti-abortion movement to abandon living constitution arguments) suggest the limitations of non-originalist arguments?  I mean, if the non-originalist arguments had traction, why were they given up so easily?  Second, and closely related, I wonder how committed the anti-abortion movement was to any of these arguments?  This is an issue that could be raised about anyone who uses constitutional arguments, of course -- and often is raised about them.  Third, at the end of the article Ziegler suggests that abortion opponents lost something by the turn to originalism because they had to abandon rights talk.  I wonder about this because the rights talk could certainly continue, just not in the same "constitutionalized way" it had before the turn to originalism.  That is, there could easily be talk of the rights of fetuses, just not from the perspective of a broadly construed constitutional right of fetuses.  In fact, I have two bumper stickers to prove my hypothesis!  Here's one that links abortion and slavery -- and another that critiques the Supreme Court's conclusion that fetuses are not people entitled to rights by comparison to Dred Scott.

At any rate, I think that Ziegler's article is a further sign of the growing sophistication we have about public constitutional arguments.  I always approach public constitutionalism first from the perspective of the old South, which is the data set I know best.  It seems to me that we are really making a lot of progress in understanding the contours of the public constitutional arguments, who's making them, and how they're responded to in the public, political, and judicial arenas.  And I think this is a sign that legal academics are increasingly realizing that we need to take account of public constitutional arguments, for they change the framework in which judges, as well as the rest of us, operate.

Ok--now back to thinking about the constitutional significance of the pre-Civil War cemetery dedication addresses.  

The bumper sticker I used to illustrate the post is available at zazzle.com

Obama Nominates Professor Jeffrey Meyer To Federal Bench

President Barack Obama has nominated Quinnipiac Professor Jeffrey Meyer to sit as a federal trial judge for the District of Connecticut.  Meyer has been at Quinnipiac since 2006 and is currently visiting at Yale.  He clerked for Harry Blackmun and practiced with both Shearman and Sterling and Kellog, Huber.  

 

Phoebe Haddon Stepping Down As Dean Of Maryland Law

Phoebe Haddon, who has served as dean of the University of Maryland law school since 2009, has announced that she will step down at the end of the 2013-14 school year.  

Veterans Benefits by the (Very Big) Numbers

Numbers are important.  When you dealing with subjective adjectives like “reasonable,” they are very important.  About two years ago, I was listening to a Federal Circuit oral argument, when a newly appointed judge asked counsel how many expert medical opinions are provided by VA.  The new judge speculated that it “must be thousands.”  In fact, he was off by three orders of magnitude.  The number is actually over one million, but neither of the attorneys was able to provide the correct information.  Fortunately, that case did not result in a precedential decision as I recall, but for those of us who practice veterans law, these kinds of oral arguments are scary.  It is problematic that good information on the system is not readily available to the courts, to appellate advocates, or those considering serious academic study of the field.  Regardless of the types of policies you support, good policy should be based upon an accurate understanding of the realities of the system.

How many claims for benefits does VA handle each year?  That is actually not an easy question to answer because VA uses an outdated definition of “claim” that really reports only the number of applications for benefits.  In recent years, VA has been receiving more than one million “claims” a year.  However, most applications claim more than one different disability or are “supplemented” later by requests for consideration of additional disabilities.  In other words, most claims combine multiple causes of action that may have no factual relationship.  World War II veterans tended to assert one or two medical conditions per claim but, more recently, Vietnam veterans averaged three to four, and Iraq and Afghanistan veterans averaged 8.5 issues per claim in fiscal year 2011.  So if you are looking at the number of different causes of action filed, it is somewhere in the neighborhood of three to four million different claims per year right now.

Kafka and the study of the law

Via Adam Kotsko, translater of Giorgio Agamben's more recent work, and author of a new piece in the LA Review of Books on reading that work-

The law firm Harris and Greenwell has a library of law and humanities texts on their web site that is definitely worth checking out, including this gem from Kafka:

The New Attorney

 

 

Jefferson's Fragments

    It is a virtual commonplace of legal theory and the history of legal and political thought today that Jefferson is not to be counted among its great subjects. With the notable exception of Sanford Levinson, constitutional theorists and historians of legal thought today generally pass by Jefferson’s comment to Madison that “the earth belongs in usufruct to the living” as at best an overly idealistic road wisely not taken. David Strauss and Jed Rubenfeld treat Jefferson as a fundamentally unrealistic and anti-historical thinker (by Rubenfeld’s lights, akin to Nietzsche, which is telling), while Stephen Holmes dismisses Jefferson as simply an “anti-constitutionalist.” David Konig, the leading historian of Jefferson’s legal career and the editor (along with Michael Zuckert) of his legal commonplace book, argues that Jefferson’s stance is that of a speculative philosopher which had to be subsequently reigned in by his more judicious friend and collaborator. Hannah Arendt noted Jefferson’s ward republic idea as a precious gem forgotten by both American politics and the revolutionary tradition, and Jennifer Nedelsky and Richard Matthews (among others) have noted Jefferson’s radical theory of property rights in his extended dialogue with Madison, but those are the apparent limits of Jefferson’s identity as a legal thinker. Paul Finkelman writes about he impact of Jefferson on American constitutional law, but that impact is felt through his subsequent political career.

    What many of Jefferson’s critics on this front have in common is a feeling that Jefferson’s idea was simply ahistorical- an example of what Michael Oakeshott calls political rationalism at its worst. Robert Tsai has an appraisal of Jefferson’s idea and the project of legal revolution, but he suggests Jefferson is ultimately inadequate here because it requires us to imagine ourselves stepping out of our context and the assemblage of law and history that brought us to it. Similarly, Kunal Parker views Jefferson and Paine as exhibiting a revolutionary theory of the timelessness of consent. I just don’t see it that way at all. What is Jefferson doing hunting down manuscript copies of the colonial laws of Virginia and the records of the Virginia Company if he thinks he is conveniently stepping out of the thickness (or the need for) historical representation? What about his concern for the writing and rewriting of legal text so apparent in his plans for councils to go over proposed amendments to the state constitution, or his wish, again, expressed to Madison, for a plebiscite to make suggestions before approving the US Constitution? And what flippant anti-historical idealist composes the Manual for Parliamentary Practice?

     I see Jefferson as first and foremost a practically engaged theorist of the politics of historical representation, and he distilled that theorizing into an understanding of the ideal citizen as essentially a user of inherited materials- land, yes, property, yes, but also of law and of language. In that sense, Jeb Rubenfeld’s linking of Jefferson and Nietzsche is apt, but precisely because Jefferson, at his best, thought basically historically, or genealogically and counter-genealogically, or even archaeologically, about law and politics.

     Somewhat (and I emphasize the somewhat) in the spirit of Corey Robin’s recent separate posts on Jefferson as a racial thinker and Nietzsche as the closeted inspiration for neoliberal economic theory, we could, anachronistically, say that Jefferson’s thinking about the use and disadvantages of history for life and his vision of a transformative human subject was capable of both radically democratic and reactionary, violent implications. Unlike Nietzsche the philologist and philosopher, Jefferson the man of action, slaveowner, and proponent of continental empire had a direct hand in realizing some of those implications himself. In the final analysis (if there is such a thing), Jefferson’s career is incomprehensible without understanding it as a project of constituting and protecting the racial, gendered, and geographic boundaries of a potent ideological vision of the true and ideal citizen.

    But problematizing and forgetting are two very different things. In our current moment, it might just be that the memory of Jefferson’s conjoined concepts of law as use and of the citizen as a particular kind of reader can appear in a new light. The historical practice appropriate here is one not just of recovery but of active recollection. If Jefferson if of any use, it is to teach us that that is where our political thinking can begin again. 

    I want to thank Al Brophy and Dan Filler for letting me chime in here at the Lounge for the past month or so- I have been and always shall be a regular reader of this great blog. 

Penn State Law And School of Int'l Affairs Name James Houck Interim Dean

Penn State Dickinson School of Law named Retired Vice Admiral James Houck as its interim dean.  He will also serve as interim dean of Penn State's School of International Affairs.  He was previously a distinguished scholar in residence.

In addition, for readers who follow these things, Penn State's Board of Trustees has formally approved the split of the two campuses - State College and Carlisle - into separate law schools, confirming a plan which had been floated a few months ago.  For now, Houck will serve as the interim dean of both campuses though the school is apparently looking for another person to head up the Carlisle campus, which will begin the formal split in 2014-15.

 

A Semi-Brief History of Veterans Benefits in America (Part II — World War I to Vietnam)

Yesterday’s post covered veterans benefits from the founding of the nation through the post-Civil-War period.  As we saw, the nation’s relationship with its veterans during the eighteenth and nineteenth centuries was quite complex. 

Public backlash against the massive cost of benefits for Civil War veterans was fierce, but it was the veterans of WWI who suffered from it.  The benefits scheme adopted for them intentionally changed the statutory term from “pension” to “compensation” in order to reduce benefits to pure monetary loss.  In 1918 and 1919, veterans once again came home to all the other problems of prior generations.  However, they lacked the political clout to have their issues redressed immediately.

Partly because of these frustrations, WWI veterans organized many of the major veterans service organizations (VSOs) that we know today — the American Legion, Disabled American Veterans, and the Veterans of Foreign Wars.  These groups had two immediate goals.  The first was the creation of the Veterans Administration (now the Department of Veterans Affairs).  The VSOs wanted all veterans benefits consolidated into a single agency that would be politically responsive to veterans and would be a strong voice for them with both Congress and the White House. 

The system was partially consolidated in 1921 by the creation of the Veterans Bureau.  Unfortunately, the first administrator, Charles R. Forbes, helped his cronies steal a quarter of the agency’s budget during its first two years, and eventually fled to Europe before being captured and sent to prison in Leavenworth.  The next administrator, Frank Hines, righted the ship, and in 1930 the remaining programs were brought into the fold to create the Veterans Administration — an agency that was then responsible for one-fifth of the federal budget and one-third of all federal employees. 

The second major goal of the VSOs after WWI was to secure a “bonus” to help WWI veterans readjust to civilian life.  Workers who had stayed behind during the war had seen their wages shoot up to eight dollars a day, while soldiers in Europe were being paid only a dollar and a quarter a day.  When the Bonus was passed after six years, it added only another dollar a day for those who served.  More importantly, it was issued in certificates that could not be redeemed for another twenty years.  As a result, it became know has the “Tombstone Bonus” because the only way to collect it was to die.

Widener Law May Slim Down & Split Into Two Schools

According to a recent news report, Widener Law is considering following the path of Penn State Law and splitting into two separately accredited law schools: one in Delaware and one in Harrisburg, PA.  If both plans come to pass, there will be two new law schools - both located in metro Harrisburg.  Hmmm...

In separate news, but from the same news report, Widener offered 21 law faculty members a buyout.  No details on the number who accepted.

Looking for the Next Maryland v. King

In my last post on Maryland v. King, I suggested that both proponents and opponents of King should find the philosophical case for a universal DNA database stronger than they might otherwise have thought. Obviously, moving in that direction — or even including mere suspects in a database — would raise legal questions that would merit (and, one hopes, receive) further consideration by the Supreme Court. But how likely is it that the Court will have another opportunity to consider the constitutionality of a statute that continues to draw the line at arrestees?

The Supreme Court’s decision in King was necessarily limited to the fact pattern presented by Maryland’s particular statute authorizing the collection of DNA from arrestees. For instance, the Court repeatedly noted that the Maryland statute at issue limited DNA collection from arrestees to those who had been “charged” (not, in fact, merely arrested) with “serious crimes,” defined as crimes of violence or burglary, or attempts to commit these crimes. (Although Justice Scalia expressed skepticism that, under the Court’s analysis, it would or could find in any subsequent case a limiting principle preventing the collection of DNA from, say, those arrested for traffic violations, it is of course possible that the Court could find such a distinction.) The Court also noted that in Maryland, samples may not be processed or added to the database until after arraignment, when a judicial officer “ensures that there is probable cause to detain the arrestee.” The presence of probable cause, and the arrestee’s corresponding reduced expectation of privacy, were “fundamental” to the Court’s decision to uphold the collection of DNA from “arrestees.” The Court also noted that samples must be expunged if the arrestee is not convicted. Finally, the Maryland statute strictly limits use of the DNA database to solving cold cases and identifying remains and missing persons; use of the database for other purposes (research, to test for paternity, to analyze health or other traits) is criminalized. The Court explicitly said that a database that was not so limited would raise additional privacy concerns that would require a new analysis.

As usual, it’s more likely that the Court will have another opportunity to examine the constitutionality of DNA collection from arrestees if a circuit split arises regarding one or more of these or other practices. And that, in turn, depends, on how widely states and the federal government vary in their authorizing statutes. An Urban Institute report from May 2013 suggests that variation is, in fact, widespread on these potentially constitutionally relevant factors:

Seriousness of offense

Of the 28 arrestee DNA states, 13 collect DNA from those arrested or charged with any felony; 14 (like MD) collect only from a subset of felonies, typically involving violence, sexual assault, or property crimes; 7 collect from anyone arrested or charged with select misdemeanors; 1 (OK) collects from “any alien unlawfully present under federal immigration law”; and the federal government accepts profiles of any arrestee and any non-US citizen detained by the US government. In addition, 2 states collect DNA immediately upon arrest only if the arrestee has been previously convicted of a felony (CT) or other qualifying crime (TX).

Ted Seto: Law Graduate Shortage By 2016?

I can already predict the response to this post over at Tax Prof that analyzes JD job prospects based on JD degrees per capita.  His model predicts undersupply of law grads by 2015 or 2016.  One statistic is very likely accurate: there will be 36,000 (or fewer) JD's awarded in 2016.  

I know some people consider the very process of analyzing future hiring trends with anything other than deathbed pessimism to be an act of market fraud.  I don't agree.  There must be room for discussion and debate.  I will moderate comments. 

A Semi-Brief History of Veterans Benefits in America (Part I – The Revolution Through the Civil War)

Although veterans law was isolated from judicial review for two centuries, a lot happened in that time that shaped the system.  The touchstone of veterans law is that the system should be “veteran friendly” to properly express the thanks of a grateful nation.  However, the history of veterans benefits in America is astonishingly gritty and complex.  (For more detail, I have published both an 85-page version and a nutshell version.)  This history is more than just interesting, it is vital to understanding how the system became the one we have today.

My favorite quotation in the field of veterans benefits is attributed to George Washington:

“The willingness with which our young people are likely to serve in any war, no matter how justified, shall be directly proportional as to how they perceive veterans of earlier wars were treated and appreciated by this country.”

I appreciate how well this captures the utilitarian realities of veterans law and not just the public sentiment.  The best part of the quotation, however, is that it is apocryphal.  Despite how often it is used, the librarians at Mount Vernon assure me that there is no record of Washington saying or writing anything close to the sentence above.  The fact that this quotation is invented only makes it better.  It perfectly captures the disconnect between belief and reality when it comes to how we have treated veterans.  There is a common misconception that WWII veterans were treated the normal way and that the Vietnam experience was an aberration.  However, the truth is much closer to the reverse.

Maryland v. King, Low-Stringency DNA Database Searches, and the Case for a Universal Database

Disclaimer: I’m not a Fourth Amendment person. Rather, my interest in King is in its implications for policies for the use of DNA in the criminal justice system. I spent the better part of a year after my Ph.D and before beginning law school helping to research and edit a book on DNA and the criminal justice system and co-authoring its final chapter with the book's editor, David Lazer. Although that was ten years ago now, most of the major policy issues in this area have not much changed over the last decade. So, with that caveat, and an invitation to readers to point out anything I say that is out of date or otherwise inaccurate, here are a few quick thoughts on King.

The majority and dissenting opinions spill most of their respective ink taking contrary positions on the primary purpose served by collecting DNA from arrestees. The majority somehow manages to argue with a straight face that the primary purpose (and indeed, to guess from its analysis, apparently the only purpose) of collecting DNA from arrestees is to identify the body of the arrested individual sitting in the booking room. As Justice Scalia wrote in dissent, this claim by the Court “taxes the credulity of the credulous” (slip op. dissent at 1). The clear primary purpose and actual use of statutes authorizing the routine collection of DNA from arrestees is to solve other cases than the one “at bar,” if you will, in the booking room.

One might have thought that the Court went out of its way to avoid finding that the primary purpose of the DNA collection at issue is “to detect evidence of ordinary criminal wrongdoing,” (Indianapolis v. Edmond, 531 U. S. 32, 38 (2000), in order to avail itself of the "special needs" exception to the Fourth Amendment's usual requirement that searches be conducted pursuant to individualized suspicion. But no. The Court ultimately concludes that the special needs cases “do not have a direct bearing on the issues presented in this case, because unlike the search of a citizen who has not been suspected of a wrong, a detainee has a reduced expectation of privacy” (slip op. at 25). In upholding the state’s power to collect DNA from arrestees, then, the Court relied on — along with the minimally intrusive nature of the search — the arrestee’s reduced expectation of privacy. Indeed, the Court deemed the latter feature “fundamental” to its analysis (id. at 24).

Consider, then, that no such reduced expectation of privacy can be attributed to an even larger class of individuals who are indirectly included in DNA offender databases: the relatives of arrestees (and others who are directly included in offender databases).

Tenured Phoenix Law Professors Claim They Were Fired For Opposing Transfer Prevention Policies

According to the allegations in a lawsuit filed in the District Court of Arizona, the Phoenix School of Law fired two tenured law professors  - Michael O'Connor and Celia Rumann -  last month for opposing the school's new approach to reducing student transfer attrition.  The complaint is here.  The ABA Journal article is here and the Courthouse News Service article is here.

I would have expected the folks at Phoenix to have worked mightily to avoid this complaint, and the attendant press.  

I mean really: reducing attrition by refusing to write recommendation letters for those students seeking to transfer??

The “Splendid Isolation” and the Evolution of Veterans Law

The aforementioned platypus of American veterans law evolved during two centuries in which decisions on benefits were walled off from judicial review — a time period that the Supreme Court has referred to as a “splendid isolation.”  Brown v. Gardner, 513 U.S. 115 (1994).  So how did veterans law become singularly isolated from the development of the American judiciary?

Quick constitutional law quiz:  Which case established the power of the federal courts to declare acts of Congress unconstitutional?  First year law students are taught that the answer is Marbury v. Madison, but take a close look at Marbury.  What it actually says is:  “It must be well recollected that in 1792, an act passed, directing the secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him by the circuit courts, which act, so far as the duty was imposed on the courts, was deemed unconstitutional . . . .”  Marbury itself, therefore, reminds the reader that the case is not the first time that a statute was declared unconstitutional.  In fact, more than a decade earlier, the first veterans benefits adjudication system was declared unconstitutional in Hayburn’s Case, 2 U.S. (2 Dall.) 408 (1792). 

The essential problem with the original veterans benefits system was that the Invalid Pension Act of 1792 required the courts to decide claims for disability pensions, but also gave the Secretary of War the authority to ignore any decision of the courts with which he disagreed.  This was deemed unconstitutional because it required the federal courts to issue advisory opinions.  (Perhaps not by coincidence, fewer than five months after the Invalid Pension Act attempted to assign veterans’ cases to the federal courts, the justices of the Supreme Court submitted a “memorial” to Congress stating that the tasks assigned to the judiciary were “too burdensome” for “the small number of judges.”)  Congress reacted, in simple terms, by simply taking the ball and going home.  It repealed the statute and simply gave the Secretary of War the duty of deciding all pension claims without the supervision of the courts.  Accordingly, the “splendid isolation” was not a policy decision based upon a determination about veterans benefits, but rather a separation-of-powers fight that, by historical accident, set the system on a path that it would follow until 1988.

Of course, there were some twists and turns along the way.  The U.S. Court of Claims was established in 1855, and disappointed Civil War claimants attempted to press their claims there after the war.  However, the Supreme Court rejected those attempts on the grounds that veterans did not have any cognizable property right:  “No pensioner has a vested legal right to his pension.  Pensions are the bounties of the government, which [C]ongress has the right to give, withhold, distribute, or recall, at its discretion.”  U.S. ex rel. Burnett v. Teller, 107 U.S. 64 (1883).  This may seem harsh, but it is quite understandable in context.  Ward Burnett was a veteran who had used his congressional connections to obtain a special pension at a higher rate.  He eventually decided he should be able to collect both a regular pension and his special pension, and was suing to get both when he was brushed off by the Supreme Court.

In fact, Civil War pensions were highly political.  In some sessions, half the legislation introduced in Congress consisted of special pensions for disappointed constituents and friends of politicians.  During the first session of the forty-ninth Congress alone, 4,500 special pension acts were introduced in Congress, and in the late 1880s, Grover Cleveland signed 1,453 such bills.  Moreover, legions of special pension examiners were sent to important districts to swing close elections by granting massive quantities of claims before election day.  Colonel W.W. Dudley, the head of the Pension Bureau, spent two months in Ohio with a staff of clerks and examiners not only campaigning for his Republican party, but specifically working to defeat William Warner, the Democratic chairman of the House Committee on Pensions, Bounty, and Back Pay, who had resisted some demands of the Grand Army of the Republic, the leading organization of Civil War veterans.

The Civil War pension system also had a reputation for being corrupt as well as politicized.  Shady claims agencies engaged in a wide variety of illegal practices to have claims granted, ranging from obtaining fraudulent evidence to planting their own employees inside the Pension Bureau.  In 1872, the Secretary of the Interior estimated that a quarter of all pension payments were based upon fraudulent claims.  The reaction to this corruption was a strict limit of only $10 on how much could be charged to assist with a veterans benefits claim.  The limit did not solve the corruption problem, but had an entirely different effect.  It stayed on the books well into the twentieth century.  By the time WWI veterans were returning, attorneys would not handle veterans claims because of the negligible fee.

The next chapter in the splendid isolation was written in 1933, when Section 5 of FDR’s Economy Act explicitly exempted veterans claims from judicial review.  Although FDR was certainly a liberal who engineered much of the modern welfare state, the New Deal was paid for by slashing $400 million for the veterans benefits budget.  FDR did not want the courts undermining his ability to pay for other priorities, so he added Section 5 to ensure this.

After the Vietnam War, the Supreme Court began to open the doors to the federal courts slightly by holding that class action lawsuits could be used to challenge aspects of the system as unconstitutional.  However, the Court rejected due process challenges to the central features of the system, such as the $10 attorney fee limit at issue in Walters v. National Association of Radiation Survivors, 473 U.S. 305 (1985).

The Vietnam veterans fought hard for judicial review in the hopes that the federal courts would assist them with their other issues.  They were opposed by the established Veterans Service Organizations (VSOs), who were quite happy with their influence over the system.  (The political term “Iron Triangle” was invented to describe the tight relationship between VA, the VSOs, and the congressional veterans affairs committee staffs.)  However, after many years of losing battles, Vietnam Veterans of America finally outmaneuvered the established VSOs in 1988 by helping to engineer the passage of the Veterans Judicial Review Act (VJRA).

The VJRA created an Article I court now called the Court of Appeals for Veterans Claims (CAVC) to review final decisions by VA.  The Act also provided that pure questions of law (but not factual issues or the application of the law to the facts) could be appealed from the CAVC to the Federal Circuit.  The CAVC operates as a traditional appellate court that reviews VA decisions based upon a closed record after briefing and sometimes oral argument.  The court published its first decision at the beginning of 1990, and four of its decisions since then have made it all the way to the Supreme Court.

Questions to explore:  Some VSOs have argued in cert petitions that the Federal Circuit owes special deference to CAVC rulings on veterans law due to the lower court’s expertise.  (Several years ago there was a similar active debate about the deference owed the Tax Court.)  What is the proper way for generalist courts to view the role of a specialized Article I appellate court?  In Shinseki v. Sanders, 556 U.S. 396 (2009), the Supreme Court sided with the CAVC over the Federal Circuit, and commented that “[i]t is the Veterans Court, not the Federal Circuit, that sees sufficient case-specific raw material in veterans’ cases to enable it to make empirically based, nonbinding generalizations about [which errors are prejudicial].”  Is that consistent with how other Article I courts are viewed?

U.S. Supreme Court Upholds Constitutionality of DNA Collection Upon Arrest (Maryland v. King)

The U.S. Supreme Court ruled this morning, in Maryland v. King, that it is constitutional under the Fourth Amendment’s protection against “unreasonable” searches and seizures for the state to compel collection of DNA from arrestees. The probable cause required to arrest someone under the Fourth Amendment permits fingerprinting and taking photographs during the booking process, and the Court held that collecting DNA (limited to 13 loci in supposed “junk DNA”) was not relevantly different. The decision was 5-4, with Kennedy writing for the Court and joined by Chief Justice Roberts and Justices Thomas, Alito, and Breyer. Justice Scalia dissented in his usual spirited way, joined by Justices Ginsburg, Sotomayor, and Kagan.

I may write more about this decision if I have time. In the meantime, here is a still-relevant primer I co-authored in 2004 on legal and ethical debates involving DNA and the criminal justice system (including issues related to both offender DNA databases and post-conviction access to potentially exculpatory crime scene DNA). Note that Justice Breyer (whose alignment with the "conservative" wing (sans Scalia) of the Court may surprise some), in addition to being the Court’s resident patent expert (except him to play a large role in the upcoming Myriad gene patenting decision), has been following debates about DNA and the criminal justice system for some time. He authored Chapter 2 of the book I just linked to.

Life Insurance and Hillman v. Maretta

Boy, make sure you file your change of beneficiary designations.  State law won't save you (or perhaps I should say can't).  Then again, maybe we need a federal common law that revokes beneficiary designations of those covered by the Federal Employees' Group Life Insurance Act upon divorce?

I'm particularly interested in Justice Alito's concurrence, which supports the insured's beneficiary designation even in the face of divorce because it was an explicit choice (albeit a lot happened in the insured's life after the designation).  Lots of state probate codes defeat beneficiary designations -- and wills -- in the wake of a divorce.  Are we going to see more suspicion of default rules that defeat an expressed intent?  

We're going to be hearing a lot more (or at least my trusts and estates students will be hearing a lot more) about Hillman v. Maretta down the road.

Veterans Law, Jon Stewart, and a Challenge for the Legal Academy

First, thanks to Dan and Al for having me here for a while. 

Let’s start off with the obvious question of what is “veterans law,” anyway?  You will be forgiven if you have no idea how to describe it off the top of your head.  Veterans law is not featured at most law schools for the simple reason that veterans benefits claims were immune to judicial review for the first 200 years of our history.  Since the Court of Appeals for Veterans Claims started operations in 1989, there have not been that many practitioners, nor much time for them to migrate to the academy. 

If you were looking on the categories listed to the left side here, you might place veterans law into “Stuff You Cannot Categorize.”  Michael Allen likes to refer to it as a platypus, and that analogy has a lot of power.  You can look at veterans law as a strange collection of parts that each evolved in isolation to solve familiar problems.  Somehow it manages to persist and function even though the sum can appear bizarre.  On closer inspection, though, it is not so strange.  In practice, it is a mixture of administrative law, torts, and evidence, with strong undercurrents of civil procedure and due process.  Whether its unique approaches to these areas can be justified as better serving veterans is something that independent legal thinkers could be tremendously helpful in determining.

This is why veterans law is an interesting and important challenge for the legal academy.  It is a legal system that is not functioning well, even though there are no ideological differences to frustrate the execution of the mission.  On the surface, it is composed of countless “veteran friendly” rules and procedures, yet the total is far less than the sum of its parts.  Despite the best of intentions, it suffers from severe system effects. 

Accordingly, it is a system that is in desperate need of experts in the underlying areas to examine how the system handles evidence, causation, pleading, discovery, separation of powers, and many other issues.  Jon Stewart nicely expressed the point I have been making for years:  The veterans benefits system is crucial to anyone who supports a substantial role for the administrative state, because if you cannot make this system work with all the political support and funding it has, then how can you expect anyone to believe that government can solve actual controversial problems?

The Daily Show with Jon Stewart
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While I am here for the next four weeks, I want to explore how the system works and what might be learned from related areas of law.  Before I dive into the current issues, I will provide some background, including a couple of days on the tumultuous historical path leading to today’s system, and then an outline of how the system presently works.  Finally, I will spend the majority of my time highlighting important aspects of the system and what issues could use more study by those with an outside perspective.

So this is it in a nutshell:  Veterans law is the litmus test of whether the modern administrative state is the solution or the problem.  Even if we did not owe our most sincere efforts to the men and women who have given so much in service, that challenge would be reason enough for anyone with an interest in legal theory to consider what can be done to make the system not just functional, but exceptional.

 Note:  These writings are made in my personal capacity, and are not to be construed as attributable to the Department of Veterans Affairs, the Court of Appeals for Veterans Claims, or other entities.