Eugene Volokh on Citizens United, gay marriage, and more

Eugene Volokh, law professor and founder of Photo: Volokh

FLORIDA, February 5, 2013 — Eugene Volokh isn’t your average legal scholar.

Born in Kyiv when Ukraine was still part of the Soviet Union, he emigrated with his parents to Los Angeles at the age of seven. By the time he was twelve, he was working in computer programing. Just three years later, Volokh graduated from UCLA with a Bachelor’s degree. Today, he is a law professor at his alma mater as well as the founder of The Volokh Conspiracy, which has become one of America’s most popular legal blogs.

In this first part of our discussion, Volokh shares his views on the Great Recession, Citizens United, gay marriage, the PATRIOT Act, and tort reform.        

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Joseph F. Cotto: America remains caught in the Great Recession’s clutches. What role should the government play in helping our country can reclaim its economic vitality?

Eugene Volokh: My sympathies are highly free market, in favor of deregulation and lower taxes. But that’s just my tentative view as a citizen, based on general principles and what I hear from people I trust; I haven’t studied the subject closely, and can’t give an informed opinion as a scholar, sorry to say.

Cotto: Due to the Citizens United ruling, millions of Americans have become nervous about the influence which money plays in politics. Do you share these concerns? Or is Citizens United merely formalizing what has gone on under the table, so to speak, for generations?

Volokh: People have been concerned about money in politics for decades. I’m not sure Citizens United has added that much to that concern, or to the reasons for that concern. The Court has held, since the nearly unanimous Buckley v. Valeo decision in 1976, that rich people had the right to spend their money to communicate their views. Everyone has long accepted that rich owners of newspapers (whether individuals or corporations) have the right to spend their money to communicate their views. Everyone has long accepted that well-funded advocacy groups, such as the NRA, the ACLU, and the like, have the right to spend their money to communicate their views. Citizens United just made clear that business corporations and unions have the same right (something that half the states had already recognized in their election laws in any event). 

There are problems, to be sure, with allowing such spending, both problems related to inequality and to the risk of subtle corruption. But the problems of suppressing some speakers’ speech, and thus correspondingly adding to the power and influence of other speakers (such as the media, parties, and advocacy groups), are, I think, greater.

Cotto: Gay marriage is a highly contentious topic. During the years ahead, do you expect to see it legalized across the nation?

Volokh: It seems to me that time is on the side of same-sex marriage; polls suggest that younger people tend to be much more open to it, and I doubt this will change as time passes. 

And I think this change in attitude is right. Even if you oppose homosexuality for moral reasons, it’s pretty clear that refusing to recognize same-sex marriage won’t cause anyone to “go straight”; it just means that people will still form couples, just without some of the benefits (and burdens) that formal marriage would impose. 

And all the reasons why we have marriage – promoting sexual fidelity, reducing sexually transmitted disease, promoting stability of relationships and support in one’s old age, and promoting stability of households that are raising children – apply just as much to same-sex couples as to opposite-sex couples. Same-sex couples, after all, are already raising children, whether adopted children, children produced through artificial insemination or surrogacy, or children from prior heterosexual relationships. Even if you think those children would be better off with a mother and a father, that’s not likely to be much of an option. Rather, the question is whether they’re better off with a couple that has the extra stability that legal marriage provides; and I think the answer to that is yes.

Cotto: The PATRIOT Act is subject to immense controversy. From your perspective, has it been a benefit or a drawback for our country?

Volokh: The PATRIOT Act was a grab-bag of a bunch of relatively modest measures. Some have been good. Some I have opposed. But on balance it has had much less impact than many people say, and in particular much less impact on civil liberties than many people say.

Cotto: No small number of people oppose tort reform, while others believe that it is essential for private sector growth. What are your thoughts on the matter?

Volokh: I don’t think one can answer this question at this level of generality. The tort system is an important tool for compensating the wrongfully injured, and for deterring negligent and intentional wrongs. But sometimes the tort system deters even proper behavior, sometimes it costs too much, and sometimes it stumbles because juries – like all institutions, including judges and legislatures – make mistakes. Whether “reform” is a good idea depends on what reform people have in mind.



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Joseph Cotto

Joseph F. Cotto is a social journalist by trade and student of history by lifestyle choice. He hails from central Florida, writing about political, economic, and social issues of the day. In the past, he was a contributor to Blogcritics Magazine, among other publications. He is currently at work on a book about American society.

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