Category: General Law

Good News for Health Care Reform Implementation

HCR implementation is steaming ahead. Jonathan Cohn lays out some of the key issues in a recent article in The American Prospect. A restrictive definition of “grandfathered plans” (which are not subject to the Affordable Care Act (ACA)) was an early victory for consumer advocates. Coverage appeal rules will soon be hotly contested during the rulemaking process:

Even if insurers are required to take all comers at relatively nondiscriminatory prices — “relatively” since age can be a rough proxy for medical condition — they’ll still have financial incentives to restrict care. This isn’t entirely a bad thing: Given the evidence of rampant overtreatment in American medicine, insurers should exercise some check on the use of technology, drugs, and other resources, for the sake of the patients as well as the insurers’ bottom line. But because insurers sometimes deny even necessary care, just to increase profit margins, the law seeks to limit the insurers’ authority — most obviously, by opening up treatment denials to outside appeal.

The idea sounds simple enough: Allow patients convinced they’ve been wrongly denied care to make their case to independent experts with authority to overrule the insurer. But who are the experts? How quickly must they rule? And what’s to stop insurers from ignoring the recommendations? The Obama administration has to write regulations answering all of those questions. A viable, working model exists: The National Association of State Insurance Commissioners has a framework, similar to what’s already in place in several states. HHS will consult those guidelines in devising a new scheme. The model is not perfect, but with sufficiently strong regulations it could give consumers significant new leverage.

Cohn also notes some important appointments at HHS. Having examined her work in the past, I was encouraged by the appointment of Karen Pollitz to “set up an Internet portal to provide basic information about different insurance policies.”

Nevertheless, Tim Jost warns that there are many possible obstacles ahead:
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War and Taxes

I just wanted to recommend to readers Ajay K. Mehrotra’s review of the book War and Taxes, by Steven A. Bank, Kirk J. Stark, and Joseph J. Thorndike. Mehrotra concludes that the “recent inability of our political leaders, on both sides of the aisle, to reconcile the price of conflict with the need for shared sacrifice [during wartime] demonstrates the sea change in thinking about tax policy that has occurred over the course of the twentieth century.” As he elaborates,

The first Bush tax cut could be attributed to reasonable beliefs about the proper use of fiscal policy and limited government. Yet, after the terrorist attacks of September 11,2001, when the nation seemed primed to accept the sacrifices of war, most observers anticipated an end to the Republican taxcutting zeal. Indeed, if the past was any guide, the patriotic and nationalistic fervor that followed 9/11 should have occasioned a reversal in Republican thinking about tax policy. “Unlike Pearl Harbor, however, there was almost no talk in the wake of the September 11th attacks of a need to increase taxes to mobilize for war,” write the authors (p. 151). . . .

[A]ny faith that the Bush Administration was sincerely concerned about its wartime fiscal obligations was completely shattered in the spring of 2003. Within a span of a few months, the administration and its congressional allies launched Operation Iraqi Freedom and enacted additional tax cuts that would cost $350 billion over ten years. . . . Political leaders were able not only to fold their actions in Iraq dubiously into their rhetoric about a “war on terror,” they also convinced ordinary Americans of the righteousness of tax cuts. Throughout the remainder of its tenure, the Bush White House continued to maintain its focus simultaneously on tax cuts and military spending for the war on terror . . . .

I highly recommend the entire review, which helpfully puts current US fiscal imbalances in historical perspective.


Covering and the Classroom

I am going to continue a thread of conversation started by Bennett Capers while blogging on Prawfsblaw.  In a wonderful riff on Rupaul’s Drag Race, Capers discussed the performative aspect of being the classroom.

One way of thinking about what we do is “covering” in the sense used by Erving Goffman and Kenji Yoshino. Yoshino and Goffman use the term in the sense of toning down “disfavored” identities.  Yoshino’s primary example is covering sexuality — roughly it is not the pressure to stop being gay (assimilate) or don’t let people know you are gay (closet, pass), instead it is the pressure on openly gay people not to act too stereotypically gay.

I want to examine a slightly different idea of covering in this post, not the toning down of disfavored identities, but instead about how we cover elements of our viewpoints and identities in the classroom.

The place where my own covering in this sense is most obvious to me (and perhaps to my students) has to do with my political views and the ways in which they related to cases we tackle (for example, the pairing of Goldberg v. Kelly and Matthews v. Eldridge in Civ Pro). Very often I think I adopt what Socrates identified as a vice of the Sophists, to try and make the weaker argument the better, and merely play with the ideas and reasoning, rather than take sides.

What I have begun to wonder is, as a pedagogical matter, to what extent is this healthy. On the one hand, it models a skill our students will need: to make arguments in cases where they fundamentally disagree with the position of their clients. It also avoids having students who disagree with me politically tune out or treat my class as a “resistant read.”

On the other hand, I wonder if this form of covering causes us to come off as holding a pre-realist view of the law that few of us actually do. If I do not think the two cases can be reconciled but instead that they represent particular views of how the world should be, or pure politics, should I instead say that? And if I do (as I often do), should I take the further step and express a preference as to which world view I prefer?

In what other ways do we cover? Here is one that came to mind: In attempting to capture some of the aura of Kingsfield, the level of attachment, do we talk too little about ourselves as whole people basically hiding things like our families or interests? I tell my 1L students at the beginning of the year two things as a warning: (1) They were very interesting people before they came to law school with diverse interests, don’t let law school beat it out of them. (2) Law school is likely much more difficult for those close to them, in particular spouses and children, who are both the victims of the workload and also shut out of the intellectual engagement, and to try and bring those people in.

To the extent the professor does not discuss his interests or family in the classroom, is he thereby reinforcing these problematic vectors and expressing the view that the students should also strive to ‘cover’ in this way? When I switch the pronoun in the prior sentence of this post to “she” and “her” does this issue become still more fraught?

I’d also be curious about whether there are other domains where people feel they cover in the classroom?


Prelude to an Interview: Barbara van Schewick’s Internet Architecture and Innovation

In the next few weeks, Concurring Opinions will be discussing various aspects of Internet policy in earnest.  On September 7 and 8, we will hold an online symposium on Jonathan Zittrain’s The Future of the Internet (And How To Stop It) featuring thoughtful scholars, journalists, and (lucky for us) the author. 

One of those exciting participants is Barbara van Schewick, who has recently published Internet Architecture and Innovation.  Sometime in September, I will interview van Schewick about her important book.  To whet your appetite, I’m going to reproduce Marvin Ammori’s review of her book below.

“There’s a new book out on Internet policy that is essential reading for anyone interested in Internet policy—and probably for anyone interested in the law, economics, technology, or start-ups. I recommend it to everyone. It’s that good.

Barbara van Schewick’s new book, “Internet Architecture and Innovation,” is one of the very few books in my field in the same league as Larry Lessig’s Code, in 2000, and Yochai Benkler’s Wealth of Networks, in 2006, in terms of its originality, depth, and importance to Internet policy and other disciplines. I expect the book to affect how people think about the Internet; about the interactions between law and technical architectures in all areas of law; about entrepreneurship in general. I also think her insights on innovation economics, which strike me as far more persuasive than lawyers’ usual assumptions, should influence “law and economics” thinking for the better. Read More


On the Stem Cell Injunction

On Monday, Judge Royce Lamberth of the D.D.C. issued a preliminary injunction holding that NIH’s funding of embryonic stem cell research violated an act of Congress.   Our story begins in 1996, with The Balanced Budget Downpayment Act that contained a rider, known as the Dickey-Wicker Amendment, which prohibited the use of federal funds for “(1) the creation of a human embryo or embryos for research purposes; or (2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under” applicable federal regulations.  Pub. L. No. 104-99, § 128, 110 Stat. 26, 34 (1996).  That rider has been included unchanged in every HHS appropriations bill since.

Under BOTH President Bush and Obama, NIH has used federal funds to fund Embryonic Stem Cell (ESC) research.  The Bush approach allowed for federal funds to be used for ESC research for ESCs created before his policy was announced (August 9, 2001).  In 2009, President Obama changed that policy: on the one hand expanding the ESC lines for which researchers could receive federal funds beyond the 2001 cut-off of the Bush policy, but on the other hand restricting the available lines through NIH draft guidelines that speak to inter alia the provenance of the ESCs, including the conditions of consent from embryo donors.  These guidelines have proven controversial, but for present purposes my larger point is that BOTH the Obama and Bush administration approaches assumed that some ESC research was consistent with the Dickey-Wicker Amendment (thus what Judge Lamberth does would apply equally to both).

This lawsuit was brought by Drs. James L. Sherley and Theresa Deisher, Nightlight Christian Adoptions, Embryos, Shayne and Tina Nelson, William and Patricia Flynn, and Christian Medical Association.

The relevant paragraph of Judge Lamberth’s order (speaking to likelihood of success on the merits) is as follows:

Congress has spoken to the precise question at issue—whether federal funds may be used for research in which an embryo is destroyed. The Dickey-Wicker Amendment provides that no federal funds shall be used for “research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under 45 C.F.R. § 46.204(b) and section 498(b) of the Public Health Service Act (42 U.S.C. 289g(b)).” Pub. L. No. 111-8, § 509(a)(2). Thus, as demonstrated by the plain language of the statute, the unambiguous intent of Congress is to prohibit the expenditure of federal funds on “research in which a human embryo or embryos are destroyed.” Id.

Contrary to defendants’ argument, the term “research” as used in the Dickey-Wicker Amendment has only one meaning, i.e., “a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.” 45 C.F.R. § 46.102(d); see also Random House Dict. (listing the first definition of research as “diligent and systematic inquiry or investigation into a subject in order to discover or revise facts, theories, applications, etc.”). This is the most common definition of research, and no other definition of research is supported by the language of the statute. The language of the statute does not support defendants’ alternative definition of research as “a piece of research.” (Def.’s Opp’n [22] at 31 (citing RANDOM HOUSE DICT. (2009).) Indeed, the Dickey-Wicker Amendment does not contain any language to support such a limited definition of research. Rather, the language of the statute reflects the unambiguous intent of Congress to enact a broad prohibition of funding research in which a human embryo is destroyed.

This prohibition encompasses all “research in which” an embryo is destroyed, not just the “piece of research” in which the embryo is destroyed. Had Congress intended to limit the Dickey- Wicker to only those discrete acts that result in the destruction of an embryo, like the derivation of ESCs, or to research on the embryo itself, Congress could have written the statute that way. Congress, however, has not written the statute that way, and this Court is bound to apply the law as it is written. Accordingly, this Court must “give effect to the unambiguously expressed intent of Congress” to prohibit federal funding of research in which a human embryo is destroyed. Chevron, 467 U.S. at 843.

Lamberth then rejects the government’s argument “that the ESC research is not research in which a human embryo is destroyed because ESC research does not involve embryos nor result in their destruction,” more specifically that the Amendment defines “ESC research and the derivation of ESCs from embryos as separate and distinct ‘pieces of research'” from the destruction of embryos.  Lamberth finds that the statute unambiguously (in Chevron terms) precludes that reading, arguing that “[s]imply because ESC research involves multiple steps does not mean that each step is a separate “piece of research” that may be federally funded, provided the step does not result in the destruction of an embryo. If one step or “piece of research” of an ESC research project results in the destruction of an embryo, the entire project is precluded from receiving federal funding by the Dickey-Wicker Amendment.”  He then finds the other requirements of a preliminary injunction satisfied.

Reactions after the jump….

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The Forgotten New Deal — The Gold Clause Cases

Last month I wrote two posts about The Gold Clause Cases, in which the Court upheld (5-4) FDR’s decision to take us off the gold standard in 1933.  Those posts focused on some unusual aspects of the opinions and on the President’s determination not to comply with an adverse outcome.  Now I want to think more broadly about the implications of this moment.

Everybody knows that the central issue of the 1896 presidential campaign was whether we should have a gold standard or bimetallism (a gold and silver monetary base).  Bryan’s defeat did not make the gold standard constitutional (at least no case said so), but it did establish that system as fixed point for American politics.  As a result, FDR’s decision to break with gold was a bold repudiation of the consensus that had prevailed for a generation.  Since consensus often turns into constitutional law (whether that consensus is in the text or not), the Gold Clause Cases in early 1935 marked the first crucial clash between the New Deal and the Court.

The currency issue disappeared from public discussion because the Court validated FDR’s policy, but what would have happened, if, for example, Justice Brandeis had acted on his view that the policy was unconstitutional.  (Brandeis, it is worth noting, voted for McKinley in 1896.)  First, the gold standard would have become the central issue, especially since FDR was ready to take a stand and create a crisis by rejecting the ruling.  Second, that confrontation would have energized the Populist voices in the country, as insurgents like Huey Long and Father Charles Coughlin were constantly harping on the need for free silver.  (Energized could mean “make them independently stronger” or “make their views more influential.”)  Third, the 1936 election might have looked like 1896, at least in terms of how the campaign was framed around the money issue.  (I’m not sure how leading Republicans thought about the question–maybe they would not have supported the Court.  I need to figure that out.)

In sum, the most important Supreme Court decision in 1935 was not Schechter Poultry, which is what most experts on this period say, but the Gold Clause Cases.  This is a function of the tendency to put more attention on things that happen rather than on things that are avoided.  The New Deal would have looked more like Bryanism if one Justice had flipped. But that is only part of the story — tomorrow I’ll explain how Carl Weiss delayed the incorporation of the Bill of Rights for a generation.


Is There a Constitutionally Protected Right to Use Reproductive Technologies?

A few months back Jessie Hill had a blog post entitled “My so-called right to procreate” asking about the scope of procreative liberty protected by the Constitution.  I wrote about this issue in passing in a paper devoted to the opposite question, whether the constitution protect a right NOT to procreate (or what I prefer to think of as rights not to procreate, separable sticks in a bundle encompassing the right not to be a legal, gestational, or genetic parent – indeed as I pointed out there, I think the right to procreate should be similarly unbundled).  In a new paper entitled Well, What About the Children?: Best Interests Reasoning, the New Eugenics, and the Regulation of Reproduction, as part of a larger project on the justifications for the regulation of reproduction I briefly address a slightly narrower issue than the one in Jessie’s post, whether there is a negative liberty fundamental right to non-interference with reproductive technology use.  I thought I would set out and expand on that discussion here and see what other readers thought.

My own view is that the constitutional status of state interventions preventing access to reproductive technologies (either directly, e.g., prohibitions on access to reproductive technology for women over age 50 or through regulation, or indirectly, e.g., parental fitness screening for surrogacy users) is deeply under-determined by the existing doctrine.  The only U.S. Supreme Court decision to consider whether there is a fundamental right to become a genetic parent, Skinner v. Oklahoma, 316 U.S. 535, 536-39 (1942) (finding a fundamental right that was violated by physical sterilization of individuals convicted three or more times of crimes of moral turpitude but not embezzlement) is subject to a myriad of possible interpretations especially as applied to reproductive technologies.

Here are a few:

Skinner protects as a fundamental right any use of reproductive technologies that simulates that which would be achievable by coital reproduction in the fertile individual (not, therefore, something like genetic engineering). John Robertson is the person I most closely associate with this view (although his view has considerably more nuance that I can get across here).

On the other extreme, one might argue that because Skinner itself was premised on an Equal Protection claim not a substantive Due Process one and thus there is no substantive Due Process right to Procreate at all. Cf. VICTORIA F. NOURSE, IN RECKLESS HANDS: SKINNER V. OKLAHOMA AND THE NEAR-TRIUMPH OF AMERICAN EUGENICS 165 (2008) (concluding that “both liberals and conservatives have made a mistake” in their reading of Skinner because the case was “neither argued nor decided as a case about rights in the sense that we use the term ‘fundamental right’ today).” That said, over the years the Court has lumped Skinner in with its substantive Due Process jurisprudence so often that the time may have passed for hewing to this distinction.

In between there are several other positions:

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Back to School: Research and Teaching

Research and teaching are what I do for a living, and I’m delighted to work at a university whose President, Steve Knapp, knows their value.  In a courteous review in yesterday’s N.Y. Times, Dr. Knapp demolishes the dusty themes in a new book by the curmudgeons, Andrew Hacker and Claudia Dreifus, Higher Education?  The book bears clichés and canards against the modern university, primarily denying the value of research and rehearsing laments about its opposition to teaching.  Dr. Knapp’s polite piece delightfully debunks these specious critiques. 

Dr. Knapp notes the book’s strengths: it is “lucid, passionate and wide-ranging,” “well-structured and strongly argued,” and poses “searching and sometimes troubling questions” about today’s university operations and purposes.   Questions involve topics, some within university control some not, like the narrowness of academic specialization, the greediness of some faculty, and the frivolity of some student/parent demands for extras.   The book usefullly identifies well-known laudable goals, like reducing student debt, “engaging students,” “mak[ing] students use their minds,” and “end[ing] the exploitation of adjuncts.”

Dr. Knapp notes that the book’s primary target, though, is research.  The book makes the suggestion that, once upon a time, universities saw their role solely as education, and today they see it as all about publishing research.  The authors heap heavy scorn on the notion that research actually helps teaching or is necessary to good teaching.   Their most extreme proposals are that universities “spin off” medical schools and research centers, end paid sabbaticals, and abolish tenure.  Dr. Knapp notes that the authors, who should know what they’re talking about, Hacker being a noted academic and Dreifus a long-time adjunct professor, rely on “sometimes sweeping generalizations.” 

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Self-Sufficiency and Decoupling

I was recently reviewing some of David Singh Grewal’s work, including this excellent essay on Keynes and globalization. Grewal’s book on Network Power was very insightful, and his examination of Keynes promises to advance economic debates long stalled in stale orthodoxies. Grewal describes Keynes’s intellectual evolution from ardent free trader to skeptic, giving this explanation for the shift:

[W]hile Keynes cited many reasons for limiting economic globalization, including for the sake of what we now call the ‘policy space’ available to governments to intervene in the economy, it was international peace that was his foremost concern. Because globalization allows economic relations to form above and outside the state, there is no obvious route to a solution if things go awry (as might be expected) in complex chains of production and investment that cross national borders.

Grewal argues that current global imbalances are underwritten by the “novel combination of globalized finance and a world reserve currency that can be inflated at will.” His diagnosis reminds me of Manuel Castells’s prophetic dissection of dangerous uses of American financial power in the book The Economic Crisis and American Society—a work that, sadly, is as relevant today as it was when it was published in 1980.
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Hertz, Appellate Review, and Sneaky Tricks

You will be forgiven if you did not pay attention to the Supreme Court’s decision in Hertz Corp v. Friend last year — indeed unless you are a Civ Pro junkie, paying attention might be the less foregivable act.  The case resolved a piece of perennial low-hanging fruit on Civ Pro exams as to what is the test under diversity subject matter jurisdiction for the citizenship of a corporation, which turns on where it has its principal place of business. The Court resolved that the “Nerve Center” is the test, ending a circuit split where the “corporate activities/operating assets” and “hybrid” tests were also contenders.

What I am more curious about, though, is whether after the decision any attorneys used the following sneaky trick : If they had lost the case in district court, and diversity jurisdiction was proper on one of the other tests that governed in the Circuit pre-Hertz, but not the nerve center test, did they on appeal ask the Circuit court to vacate the decision for lack of subject matter jurisdiction? If not, were Circuit courts making independent subject matter jurisdiction assessments in light of Hertz and dismissing cases with district court decisions in these circumstances? After all, as that old 1804 chestnut Capron v. Van Noorden, 6 U.S. (2 Cranch) 126 (the case that Arthur Miller, who it appears still retains a larger than life grip on his students’ imaginations now that he is at NYU, terrorized us with on Day 1 one of Civ Pro) suggests, Subject Matter Jurisdiction objections can be raised at any time, and the Court has an independent obligation to determine if it has jurisdiction over the case.

Did these post-Hertz dismissals actually materialize? I don’t see why they shouldn’t have.  After all the court did not suggest it was making a new rule for subject matter jurisdiction (it claims this was always the right reading of the statute), nor did it suggest the rule was non-retroactive. I have not seen any discussion of such dismissals, but that just may mean they are off the law professoriate radar, or maybe I am missing something preventing litigators or courts from behaving in the way I suggested? I am curious if others have seen anything like this or have thoughts, I thought this might be a nice way to teach the otherwise somewhat rote rules of diversity jurisdiction to my first-year Civ Pro class this year….