The Law and Pastries

In law school, we learn to “think like a lawyer.” As the fictional Professor Kingsfield put it, we develop “the ability to analyze that vast complex of facts that constitute the relationships of members within a given society.” We learn the rules under which those relationships operate, and the theory and reasons behind how we handle things when those relationships go sour. We begin to see the world around us in a different light – the light of the law.

Torts got me first. I was seeing standards of care, the illusive reasonable man, and potential negligence wherever I went – except at my house, where we always behave reasonably and prudently. Contracts are no longer something I quickly sign and shove back across the counter. Don’t get me wrong, I only read them for entertainment value before signing. After all, I want my iPhone, and there is a reason they’re called adhesion contracts. Property’s spell struck when I encountered a private driveway, which crossed a county bike trail, which ran along a We-Energies right of way. I’ll leave constitutional law and criminal law to your imaginations, but I will say that I haven’t had to invoke any of my rights, nor has anyone had to read them to me. Finally, although I didn’t encounter it in real life, civil procedure did haunt my dreams for a while. Fortunately, new areas of the law from my summer session courses have started to edge out the 1L voices in my head.

One course, intellectual property, has me seeing trademarks and copyright disputes all over the place. Like everyone else, I had been seeing trademarks everywhere for my whole life, I just didn’t know what a trademark was. As I learned trademark law, I remembered a story from my hometown’s recent past. It was big news at the time, but it is likely unfamiliar to people who are not from Racine, Wisconsin. (For those of you not familiar with Racine, it is a lovely city located about 30 minutes south of Milwaukee. Among other things, Racine features an award-winning beach, excellent local government, and kringle.) I’ll have more on the local government in a future posting. For now, I want to talk about pastries.

The story begins long ago, when a wave of Danish immigrants settled in Racine. Like other immigrant waves throughout our history, the Danes brought their food here. In this case, they brought kringle, a large, tasty, pretzel-shaped pastry. At some point, Racine bakers swapped the pretzel shape for an oval shape and the Racine kringle was born. For decades, Larsen’s, Lehmann’s, O & H, and Bendtsen’s bakeries prepared and sold delicious Racine kringles. There was plenty of room in the market for all of the competitors to do well, and the good people of Racine, and many lucky visitors, ate their fill of these tasty treats. All was well in kringle-land.

Then, in the 1990’s, as the rise of online sales was taking kringle beyond our borders, a new player emerged on the scene: Racine Danish Kringles (RDK). 

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For Punishment, Do Costs Count?

In my previous post, I discussed some of the fascinating results from the recent Marquette University Law School Poll, in which about 700 Wisconsin residents were asked various questions about crime and punishment. In this post, I’ll consider what the Poll results have to say about a crucial question for sentencing policy and politics: do costs matter, or are the interests served by punishment of such overriding social importance that expense is no object at sentencing?

This question is related to another question I raised in the previous post: is punishment valued more in instrumental or symbolic terms? If people look to punishment primarily as a way to decrease crime and increase public safety (the instrumental approach), then costs seem to have a natural place in the equation. As much as we value our safety, there are always limits to what we are willing to spend to protect ourselves. Few of us hire body guards, or purchase bulletproof vests, or build panic rooms in our homes — the small reductions in risk that we would enjoy simply do not seem worth the cost and inconvenience, and there seems nothing odd about thinking of risk in these sorts of cost-benefit terms. But if punishment is instead viewed in symbolic terms — as making a statement about who we are as a people and what our deepest moral values are — then cost considerations seem out of place. It would make us uncomfortable to say, “X is the right thing to do, but I’m not going to do it because it is too expensive.”

The Poll did not ask the big philosophical question about costs directly, but several questions seem to get at it indirectly. The answers suggest some real ambivalence and division in public attitudes. 

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John Roberts, the New John Marshall?

Immediately after learning that Chief Justice John Roberts had cast the deciding vote to uphold the Affordable Care Act’s individual mandate, I emailed my colleague Scott Idleman and suggested that Roberts was trying to be the new Charles Evans Hughes.

The reference, of course, was to Chief Justice Hughes who presided over the United States Supreme Court from 1930 to 1941. During the critical years of the early and mid-1930’s Hughes and his moderate Republican colleague Owen Roberts frequently sided with the Court’s three-man liberal bloc to uphold the constitutionality of a variety of relief statutes enacted to mitigate the harsh effects of the Great Depression. In doing so, Hughes frequently engaged in imaginative readings of supposedly settled parts of the Constitution, like the Obligations of Contracts Clause, the Due Process Clause of the Fourteenth Amendment, and the Commerce Clause.

I was not the only one to make the Hughes connection. The next day, my friend Dan Ernst of Georgetown University made a similar observation on the Legal History Blog.

However, I have come to believe that the better comparison for Chief Justice Roberts’ Obamacare decision are the opinions of his legendary predecessor, Chief Justice John Marshall.

That Hughes failed to vote with the Four Horsemen (the name for the Supreme Court’s conservative bloc in the 1930’s) is not really surprising. He had long been associated with the Progressive wing of the Republican party, and as a member of the Supreme Court from 1910 to 1916, and as the Republican presidential nominee in 1916, he generally supported a reading of the Constitution that was consistent with progressive reform and an activist state.

Hughes sided with the liberals because he was ultimately a liberal himself. Obviously, Roberts’ relationship with the other members of the Affordable Care Act decision (National Federation of Independent Business v. Sebelius) was a quite different one.

The similarity between Roberts and Marshall is based upon the willingness of both to sacrifice short term results in favor of long term objectives.

Marshall did this most famously with his opinion in Marbury v. Madison (1803). While denying his fellow Federalist William Marbury his commission as a justice of the peace of the District of Columbia—a commission issued by former Secretary of State John Marshall!—Marshall was able to establish the far more important principle of judicial review in his opinion. Although Marshall’s chief adversary, President Thomas Jefferson, knew exactly what Marshall was doing, he was without recourse since his side technically won the case.

Nearly two decades later, Marshall used the same tactic to confirm the superiority of federal constitutional review over that of the state courts in Cohens v. Virginia (1821). The Cohen brothers were convicted of violating a Virginia anti-lottery statute when they tried to sell tickets for a Congressionally-authorized lottery for the District of Columbia in Virginia. Virginia courts ruled that Virginia law took precedence over the act of Congress and both brothers were fined.

The Cohens appealed their conviction to the United States Supreme Court. Virginia contested the court’s jurisdiction on the grounds that the Constitution did not give the Supreme Court appellate jurisdiction over criminal cases begun in state courts or, for that matter, over any matter involving a state as a party. Moreover, it insisted that the Eleventh Amendment immunized it from suit in federal court, including appeals to the United States Supreme Court under Section 25 of the Judiciary Act.

As in Marbury, Marshall issued a powerful defense of federal judicial authority and in doing so rejected all of the arguments advanced on behalf of his home state. However, having rejected Virginia’s constitutional argument, he then found that the statute creating the District of Columbia lottery had not authorized agents to sell tickets in Virginia, and, therefore, there was no issue of federal versus state supremacy, and the Cohens convictions were withheld.

In Green v. Biddle (1823), Marshall adopted a broad, and not at all obvious, reading of the Obligations of Contracts Clause that was clearly at odds with a strict constructionist interpretation of the Constitution favored by his Virginia opponents. However, he issued this ruling in the context of upholding the validity of Virginia land titles in the state of Kentucky (which until 1792 was the westernmost county of Virginia), again leaving his opponents with a formal victory on the facts but with a major defeat on fundamental principles.

Roberts’ Affordable Care Act opinion appears to be a decision in this line. At its core, his opinion validates the older constitutional view that the Commerce Clause places real limitations on the extent of Congressional power, even in the realm of economic regulation. This position was long believed to have been discredited by the 1942 decision in Wickard v. Filburn, but in the Affordable Care Act case (National Federation of Independent Business v. Sebelius) five of the nine justices endorsed such a position.

However, because Justice Roberts found an alternate constitutional basis for upholding the individual mandate provisions of the act (the tax power), liberals were hardly in a position to criticize his opinion. Instead, he was roundly praised for his willingness to work with the Court’s liberal bloc.

However, as was the case with Marshall’s Marbury, Cohens, and Green v. Biddle decisions, the full implications of Roberts’ decision will not be known until a later day. Only history will tell us if Roberts’ use of this strategy will be as effective for him as it was for John Marshall.

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