Volume 111, Issue 6, April 2002
Sunday, 31 March 2002
111 Yale L.J. 1259 (2002)
In this Essay, we argue that President Bush's recent Military Order, which directs his Defense Department to detain any members of an ill-defined class of individuals, potentially indefinitely, and to try them in military tribunals, jeopardizes the separation of powers today and charts a dangerous course for the future. Our Constitution's structure mandates that fundamental choices, in times of war as well as peace, be made not by one person or one branch, but by the three branches of government working together. Approval by Congress is a necessary, but by no means sufficient, precondition before the tribunals can be entertained as constitutional. We also explain why the present circumstances differ decisively from those at issue in the Supreme Court's body of decisions regarding military tribunals during the Civil War and World War II. And we explain why the specter of civilian habeas review will necessitate legislative involvement. Finally, we detail a significant equal protection problem with the Order.
Sunday, 31 March 2002
111 Yale L.J. 1311 (2002)
Common-law rules and adjudication are typically structured around discrete interactions between strangers. The unit of legal analysis, or "transaction," is intuitively defined by the discontinuous event that disrupted the otherwise unrelated lives of the parties; and the focus of adjudication is on the harm to the plaintiff, as measured by the marginal deviation from her baseline welfare just prior to this event.
When applied to constitutional law, however, this model of "transactional harm" becomes immediately and irremediably problematic. The essential problem is that we quickly lose our intuitive grasp on what counts as a transaction for purposes of identifying the harm inflicted by government on a private citizen. Unlike the paradigmatic private parties in common-law cases, government and citizens are not strangers to one another. Instead they are engaged in a continuous relationship--one that plays out over a historical time period and over a scope as broad as the public sphere. Over the course of this relationship, moreover, countless harms and benefits are passed back and forth. When constitutional law borrows the common-law model of transactional harm, it must somehow slice the government-citizen relationship into adjudicative transactions for the purpose of evaluating whether government has inflicted a constitutionally cognizable harm. How the transaction is ¿framedî will determine which parts of the ongoing government-citizen relationship, which of the myriad benefits and harms, will be counted on the adjudicative ledger.
Lacking any analogue to the common-law collision between strangers, however, constitutional law has no criteria for carving discrete constitutional transactions out of the background relationship between government and citizens. The results of constitutional cases are consequently determined by the location, size, and shape of transactional frames that are virtually never identified, let alone justified. This is the basic problem of "framing transactions" in constitutional law.
Sunday, 31 March 2002
111 Yale L.J. 1391 (2002)
In Greek mythology, Atlas was a giant who carried the world on his shoulders. In Ayn Rand's 1957 novel Atlas Shrugged, Atlas represents the "prime movers"--the talented few who bear the weight of the world's economy. In the novel, the prime movers go on strike against the oppressive burden of excessive regulation and taxation, leaving the world in disarray and demonstrating how indispensable they are to the rest of us (the "second handers").
Rand wrote in a world in which the top marginal federal income tax rate in the United States was 91% (beginning at taxable income of $400,000). This is an unimaginably high rate by today's standards, when the dominant view in Washington is that a marginal rate of 39.6% (the top rate from 1993 to 2001) is too high. The key turning point in the process of abandoning high marginal tax rates occurred in the presidency of Ronald Reagan. When Reagan became President in 1981, the top marginal federal income tax rate was 70%; when he left office in 1989, the top rate was 28%.
The reduction of marginal tax rates in the Reagan years was driven by a new policy consensus that still persists today. That consensus is that high marginal tax rates on the rich come with an unaffordably high price for the U.S. economy in the form of reduced incentives for the rich to work and to save, and increased incentives to engage in socially wasteful tax planning. And yet 1957, when Rand wrote Atlas Shrugged and the top income tax rate was 91%, falls in the middle of the period from 1951 through 1963. Those were the golden years of the U.S. economy, in which the average annual rate of productivity growth was 3.1% (compared with about 1.5% after 1981). Of course, the growth might have been even faster had the marginal tax rates been lower, but the coincidence of high rates and high productivity raises challenging questions for those who believe that high marginal tax rates carry an unacceptable cost.
Thus, the question of whether high marginal tax rates come with an unaffordably high cost to the U.S. economy remains unsettled. Does Atlas Shrug?, a recent collection of papers written mostly by public finance economists and superbly edited by Joel Slemrod, represents the most recent attempt to answer this question. Unfortunately, no clear-cut answer is forthcoming in the book, and the debate is sure to rage on.
This Review is divided into three Parts. In Part I, I summarize the main findings of Does Atlas Shrug?, emphasizing their contribution to the debate on taxing the rich. In Parts II and III, I discuss a question that is only briefly touched on in the book: Why should the rich be taxed? Part II surveys the existing--and to me incomplete--legal literature on this issue, while Part III begins to outline some tentative alternative answers. In my view, the debate about the economic consequences of taxing the rich has obscured this fundamental normative question, and answering it is essential to assessing the merits and relevance of the findings contained in Slemrod's book.