Tag Archives: decision making

Examples of Internal Constraints and Extralegal Influences

As we wrap up our blog for this academic year and many of us who teach constitutional law turn our attention to our summer research agendas, I again write to bring judicial politics back to constitutional law. Two different stories, one from USA Today and one from Concurring Opinions remind us that judicial politics is interconnected to constitutional law.

USA Today discusses the potential influence of external events on two US Supreme Court’s decisions still to come. The first is Association for Molecular Pathology v. Myriad Genetics (No. 12-398). The case asked whether anyone could patent human genes. Myriad Genetics tried to patent two genes; mutations in these genes are important indicators of breast and ovarian cancer in women. Myriad argued that isolating genes is a process that deserves a patent, but a patent would limit the ability of other scientists, pharmaceutical companies, or other researchers to work with the genes and develop alternative tests or treatments. Enter Angelina Jolie, academy award winner and female action star. It was recently reported that Jolie took Myriad’s test, found that she had a mutation, and then underwent a double mastectomy. The aforementioned story in USA today notes the potential for this high profile celebrity story on the test and its costs ($4,000) may further highlight the implications of a ruling for Myriad—most women would be unable to afford the same test. Additionally, the story about Jolie, as USA Today put it, “sent Myriad’s stock soaring…”

The same story discusses the potential impact of recent decisions by several states to accept same sex marriage. The purported change in the trend toward greater acceptance could, if the justices interpret the “polling of jurisdictions” to be heading in the liberal direction, sway the justices in the Perry and Windsor. Alternatively, the remaining states, 38, that still ban same sex marriage could support a decision in the conservative direction. Either way, the decision of the various states is reported as potentially impacting Supreme Court decision-making.

Extralegal influences, such as publicity or state policy changes, are always present and can influence decision-making. Similarly, there are internal constraints or norms that also influence appellate decision-making and the blog Concurring Opinions provided an excellent example of these constraints on the same day as USA Today highlighted the extralegal factors. As reported, Judge David Tatel gave a speech at a ceremony unveiling and hanging a portrait of Judge David Sentelle. The post notes that the two judges sit, ideologically speaking, at different ends of the spectrum. Yet, the judges agreed on decisions most of the time (97%). In the speech, Tatel notes that “despite our best efforts at neutrality, we cannot but see the world—and the law—through the lens of who we are…” Yet, the D.C. Circuit has a norm of collegiality that helped yield an astounding agreement rate of two judges that, barring this norm, would likely not see eye to eye.

Together these examples highlight the complexity of explaining judicial decision-making and the parsimony of any of our models of that behavior. It’s not all attitudes, strategy, or the law. As we head toward the end of the term, it will be interesting to see if Jolie or Minnesota influence the justices, or not.

Leave a comment

Filed under Understanding the U.S. Supreme Court

Rent control and the takings clause

One of my favorite movies is, “You’ve Got Mail.”  And, in an example of how at some point the Supreme Court will handle an issue related to something that you never thought would happen in a million years, the movie features the following dialogue:

Store clerk 1: What if we have to fold?  I’ll never find another part time job and I won’t be able to pay rent and I’ll have to move to Brooklyn.

Store clerk 2: The joy of rent control.  Six rooms for $450 a month.

Store clerk 2: We know.  You’ve told us a million times.  I can’t believe you’re bringing it up at a time like this.  It’s like bragging because you’re tall.[1]

Aside from presaging dialogue that one might expect in the new television hit, “Girls,” the reference left folks who do not live in New York in the dark.  What the heck was this deal where someone could rent a large apartment in New York for such a paltry sum?  Enter the practice of rent control and stabilization.

New York has had a program of rent stabilization and control since at least 1969.  Apartment demand is so strong in New York that rents would likely reach a level where many tenants would be priced out of the market.  Thus, regulations were passed to protect tenants from large rent increases.  Under rent stabilization, rent increases are held to levels set by the New York City Rent Guidelines Board; in addition, tenants’ ability to renew their leases is protected under the regulations.  The regulations have been justified as necessary because of New York’s housing shortage and to prevent landlords from “rent profiteering.”

The policy of rent stabilization was recently challenged by the Harmons, who own a brownstone near Central Park.  The Harmons live in the building and rent out the other units.  Three of the units are covered by rent stabilization regulations.  Because the effect of the regulations is to limit the amount of rent the Harmons can charge to well below the market rate, the Harmons challenged the rent stabilization regulations as an unconstitutional “taking” prohibited by the Fifth Amendment.  The Harmons’ claim is that the rent control regulations amount to a physical taking; that is, forcing the owners to charge below market rents “force[s the Harmons] to take strangers into [their] home at [their] expense for life.”[2] The Harmons’ case was dismissed by both the district and appeals courts.  The Supreme Court relisted the case in late April, indicating that there was some interest in hearing the case, but then denied cert a week later, leaving the appeals court decision as the final word.  Since rent stabilization applies to about one million apartments in the city, the decision was met with some relief.

The appeals court ruling noted that the Harmons knew about the rental regulations when they bought the building.  In addition, the Court noted that the regulations did not deprive the owners of all control of their property; they would still be able to evict a bad tenant, reclaim apartments for their personal use, or even demolish the building to convert the property for another use.

That the Harmons decided to appeal the case to the Court after losing at the lower levels suggests that they were hoping that the Supreme Court might be more sympathetic to property rights.   Certainly, this might seem to be the case after the Supreme Court’s decision earlier this year in favor of the Sacketts, a couple who challenged the EPA’s regulations of construction on their property.   Thinking about why the Court decided to forego this case can highlight several approaches to the Court’s decisionmaking.

One approach would be to look at the popularity of rent control in New York.  The Big Apple is expensive— Kiplinger rated it the city with the most expensive cost of living in the US in June 2011.[3]  A big part of that expense is the cost of housing.  Rent controls cover many of the city’s rental units and Mayor Bloomberg certified the existence of an emergency housing shortage in the city in March; the certification is based on a vacancy rate of less than five percent.  Moreover, the Court has a precedent to rely on—the case of Yee v. Escondido[4] saw a unanimous Court upholding mobile home lease regulations against a takings challenge.   Finally, the regulations in Harmon seem to be much like the even more intrusive state regulations that were imposed to alleviate a problem of access to property ownership in Hawaii Housing Authority v. Midkiff. [5]

One could also argue that not only are there good legal and policy bases for the Court’s refusal to hear this case.  There are good political ones as well.  Many New Yorkers were likely relieved to know that rent controls would continue to be in place, allowing them some predictability in rent amounts and rent increases they can expect—it’s a policy that is likely to be popular with many New Yorkers eking out a living in a very expensive city.


[1] Excerpt from the script of “You’ve Got Mail,” by Nora Ephron and Delia Ephron, revised 2/2/1998;posted on http://www.dailyscript.com/scripts/Youve_got_mail.html, accessed 5/5/2012.

[2] Quoted in Adam Liptak, “US Supreme Court Declines to Hear Suite Challenging the Rent Stabilization Law,” New York Times, April 23 2012; http://www.nytimes.com/2012/04/24/us/supreme-court-declines-to-hear-rent-control-challenge.html?_r=1&ref=rentcontrolandstabilization accessed April 30 2012.

[3] “Ten US Cities With Most Expensive Cost of Living,” http://www.kiplinger.com/slideshow/cities-with-most-expensive-cost-of-living-2011/2.html, accessed 5/21/2012.

[4] 503 US 519 (1992).

[5] 467 US 229 (1984); found in Epstein and Walker, pp. 662-665.

Leave a comment

Filed under The Takings Clause