First, thanks to all of you who emailed and commented with possible answers as to what the Aurelius strategy in challenging the constitutionality of the Puerto Rican Control Board might be (the subject of Part I). My favorite answer was the simple: “Create Chaos”. That was followed by another answer: “Once the sheep start panicking, they become easy pickings for the wolves.” I’m not sure that I understand either strategy, but that’s why I’m not running a multi-billion dollar hedge fund (if I were an investor, I suspect that I’d be one of the sheep trying to avoid being eaten by the wolves).
Second, I want to ask the “What is going on?” question from a different direction this week. I’ve read or skimmed almost all of the anti-Aurelius briefs in the Aurelius v. The Control Board case now (for background on this, see here). Two things puzzle me about them. I should say at the outset though that my being puzzled may stem directly from not understanding how these fancy constitutional law cases play out.
- Puzzle One: None of the anti-Aurelius briefs provide a clear and coherent explanation of exactly what would be at stake for Puerto Rico, financially, if the Control Board were to be deemed unconstitutional. More crassly, they don’t answer the following question at the outset: How much is it going to cost Puerto Rico if Aurelius wins?
I'm a realist in thinking about what courts do in tough cases (as contrasted with the “legalist” who thinks doctrine does the overwhelming majority of work in predicting outcomes in all cases). To my reading, the research tends to show that courts care a great deal about the social costs or policy implications of their decisions. Yes, of course, they care about doctrine too. But judges care a great deal about the impact of their decisions on real people (and how their decisions will be viewed in hindsight).
So, if a decision ruling that the Control Board is unconstitutional would impose a huge additional cost on the people of Puerto Rico (who have already suffered so much), and the law isn’t crystal clear, would it not be good legal strategy for the anti-Aurelius lawyers to emphasize that? Clearly, I’m wrong, since that’s not what the all-star group of lawyers on the anti-Aurelius side have done. But it puzzles me.
My thinking on this borrows heavily from my brilliant political scientist colleague, Georg Vanberg (see "Financial Crises and Constitutional Compromise”).
- Puzzle Two: Isn’t it a high-risk strategy to base key parts of one’s argument (as some of the anti-Aurelius briefs do) on cases that are, for want of a better word, “odious”? The cases here are the Insular Cases, that are an embarrassment. My guess is that many lawyers would at least balk at, if not outright refuse, to cite cases like Plessy or Korematsu as their primary support. And most judges, I’d think, would be mortified at having to turn to those cases for support for their decisions (and would like to be shown less yucky ways to getting to the right outcome by the lawyers).
There is a cool article here on the “Anti-Canon” in constitutional law, by Jamal Greene. Getting more specific, in terms of judges who are likely to be faced with these the Aurelius case on appeal, Judge Torruella of the First Circuit has a wonderful set of articles on the yucky Insular cases (and a thundering speech delivered at Harvard Law, where the key ideas for these awful cases were developed in the early 1900s). A little more distant: Judge Lynch of the First Circuit has a fascinating recent piece talking about Korematsu (a star member of the Anti-Canon).