Aurelius v. The Control Board: What is Going On? (Part II)

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.  I should say at the outset that my questions are the product of discussions with my co author Joseph Blocher (here). But all faults for stupid statements below lie with me.

1. 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 confess to being a legal realist or pragmatist in thinking about what courts do in tough cases (as contrasted with the “legalist” perspective (to use Richard Posner’s term) who thinks doctrine does the overwhelming majority of work in predicting outcomes in all cases).  To my reading, the empirical research on courts tends to show that courts care a great deal about the social costs of their decisions.  Yes, of course, they care about doctrine too.  But judges also, the realist or pragmatist would predict, care a great deal about the impact of their decisions on real people. 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 it 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.

For more on the foregoing topic (in terms of the theoretical frame), Georg Vanberg and I have a paper, “Financial Crises and Constitutional Compromise”.

1. 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.