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Electoral College Redux

I want to make one observation about the result on Tuesday.  You all know that Hillary Clinton is on track to win the national popular vote (by how much is still unclear).  You also know that this has occurred before.  What you may not know, though, is that this result is somewhat unusual.

Here’s why.  Since the Twelfth Amendment reformed the Electoral College in 1804, there have been three types of elections where the popular vote winner lost.  One was in 1824, when four candidates won electoral votes.  This is unlikely to happen again (indeed, no third-party candidate has won a state since 1968). The second involved some angry dispute over the result in one or more states that cost the national popular vote winner the election.  Hayes beat Tilden in 1876 on the basis of the disputed electoral votes in Florida (and two other Southern states), and Bush beat Gore in 2000 based on a dispute over Florida.

In this election, there is no dispute over the result in any state.  The popular vote winner in what was essentially a two-person race just lost.  The only time this happened before was 1888, when Grover Cleveland won the popular vote but lost the Electoral College.  I don’t know enough about that election to explain why that happened then (strangely, Cleveland lost his home state of New York, which was decisive), but perhaps there is something to learn there.

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Empowering Law Students in a Time of Trouble

The presidential election of 2016 ended with a stunning upset. The result left many people concerned about the future. As a law professor, I think I have a special responsibility to think about those concerns, because my students are becoming lawyers at a time when our nation may need lawyers more than ever.

This fall, I’ve taught a small group of first-year students. We’ve worked on much more than civil procedure doctrine; we’ve worked on lawyering.   Students have to attempt uncomfortable arguments, analyze in unaccustomed ways, write “like lawyers,” and attend to details of facts and procedure.

Before the election, I’m not sure I’d explained why lawyering matters. As John Adams said in 1780, this is “a government of laws and not of men,” that is, a government of laws and not of individuals. If, as many fear, President-Elect Donald Trump acts as though he does not understand what a government of laws means, we can despair, or we can do what lawyers do: use our power to keep government within the law and not use government power in pursuit of individual gain or to injure some groups while helping others.

Law students sometimes lack an appreciation for the primacy of law. When we examine the Constitution, some are surprised that Article I is about the Congress, the body charged with enacting laws. Article II concerns the executive branch, which is charged with carrying out the laws. While students (and many lawyers) think the courts are more important, we only hear about them in Article III.   The creation of law comes first; execution, interpretation and enforcement come later.

The idea that federal government officials use their power solely as authorized by the Constitution and by laws enacted by Congress is plainly an aspiration and not always the reality. The smaller the gap, the more confident people feel that we are protected from government going awry.

Students in civil procedure read many cases in which government goes awry, starting with Pennoyer v. Neff. The Supreme Court said no when a court allowed a plaintiff to use government power to limit a defendant’s rights in his property without giving the defendant notice in advance. Even a court is not permitted to use power except consistently with the law. No government official or government institution is permitted to act illegally – not the president, not the Congress, not a judge, and not a police officer.

Over the course of my career, my colleagues and I have frequently had to insist that government officials act legally. Some of these officials have been Democrats and some have been Republicans, but all are subject to the law. We’ve argued and won child custody and family violence cases by demanding that the judge decide the case based on the law and not out of gender bias. We’ve persuaded courts not to convict a defendant unless the state has demonstrated beyond a reasonable doubt that the defendant is guilty of a crime. We’ve forced state government agencies not to deprive poor people of Medicaid when federal law says that Medicaid is due.

Because we are a government of laws and not of individuals, people can be asked to believe that government officials try to act within legal boundaries. When government fails, people have the right to demand an end to illegality.

What do law students need to know about lawyers, law and power? My students learned from Buffalo Creek that residents of a flooded valley believed they would never be compensated for their devastating losses. They were convinced that the coal company which caused the flood possessed all the power and that they would be denied justice.

Some residents asked a lawyer to help. Why a lawyer and not a minister or a legislator? Because the lawyer’s job is to make the system work for all, to insist that we have a government of laws, not of individuals. That kind of government is fair and unbiased. Under that kind of government, a coal company cannot make courts to do whatever is good for the company, regardless of law and facts. With the help of a lawyer and his firm, the residents won, and the coal company lost.

Imagine that you are an African-American who has concluded from this presidential campaign that nobody is standing up for you. When you say that racism is behind police killings in your community and that your right to vote is attacked because of racism, you are told that only racists accuse people of racism. Imagine that you are an immigrant or a refugee. You are told you don’t belong here, and you are told that you will be thrown out. Imagine that you are a woman who objects to being groped and demeaned. You are told you are overly sensitive and that nobody does those things; they just talk about them. Imagine that you are Jewish or Moslem. You are told that you cause more trouble than you are worth to this society. Imagine that you are disabled. You are told that you are a freak who can be mocked with impunity.

I am not imagining these threats. What prevents people from concluding that our next group of government officials will not be scrupulous about fighting the threats and complying with the law? What hope do people under attack have in the aspiration that this is a government of laws and not individuals?

As lawyers-to-be, my students need to understand that they will have power to share. As lawyers, we are entrusted with knowing the law. We see when government officials are overstepping their boundaries. We can help educate the public, we can offer help, and we can put our knowledge and skills to work. I hope my students have learned some lawyering this semester. Even more important, I hope they appreciate the power of lawyers to enhance the lives of others who need our nation to have a government of laws and not a government of individuals.

Post-Neoliberal Higher Education Policy

The Obama Administration made at least two major contributions to higher education policy. It cracked down on some for-profit colleges, taking on a consumer protection role largely missing from the Bush years. Donald Trump is unlikely to continue that initiative, and may roll it back.

Obama also encouraged income-based repayment (IBR) of student loans. It appears that “the repayment plan proposed by candidate Trump is not too far from the current repayment plans already in existence”–but few know exactly how the policy will play out once a new set of think tankers and lobbyists take over the Department of Education (DOE).

I surveyed higher education finance policy in 2015, in a piece for the Atlantic. I felt at the time that the Sanders plan was by far the best, and that Clinton’s plan could lead incrementally to a better higher ed landscape. However, over the summer I co-authored a longer article on the foundations of higher ed policy with Luke Herrine, Legal Coordinator of the Debt Collective. Herrine does both scholarly and advocacy work. In a project organizing for-profit college students to obtain debt discharges, he saw some of the worst bureaucratic failures of the current DOE.

The same concerns I’ve expressed about health policy also dog education policy. Extreme complexity and baroque targeting of aid make it hard to sustain political support. Just as private insurers have done as much to undermine as to implement the ACA, the servicers at the core of DOE’s student loan management have serially failed the students they are supposed to help.
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Rebuilding Health Care Policy from the Ground Up

whatourdemocraticparty

Campaign Flier from the Wright Patman Archives (via Matthew Stoller)

The signature progressive initiative of early 21st century America–the Affordable Care Act–is about to be gutted.  In 2009, I agonized about whether to support it. In the last paragraph of a bloated blog post, I concluded:

By passing this reform bill, Democrats will jettison whatever “populist” credentials they once had, opting instead for an early-twentieth-century “progressive” vision of technocratic alliance between corporate and government experts. . . . We’ll commence an endless argument (read: notice and comment rulemaking and subsequent administrative adjudications) over what constitutes an adequate baseline of coverage. . . . But the fundamental victory of reform–the national commitment that no one should have to choose between death or bankruptcy when confronted with a serious illness–will also endure. The tragic paradox is that the Democrats can only achieve this great cultural and ideological victory by becoming identified with the very interests that only they are willing to confront.

I was right about a few things: it was a Pyrrhic victory, the backlash was brutal, and virtually every indignity or imposition concocted by private insurers in the past seven years has been blamed on “Obamacare.” But I was wrong about the most important points. The rulemaking and adjudications will end. The Trump/Ryan/McConnell approach to health care will leave Obamacare in the dustbin of history. And when it does, it will impose on millions of Americans exactly the situation they faced pre-ACA: choose between death or bankruptcy when confronted with a serious illness.

***

In October, Larissa MacFarquhar published a thoughtful essay on “The Heart of Trump Country.” One supporter of the President-elect said:  “When you hear about illegal aliens getting benefits and you have people here starving to death and can’t get nothing, it’s just a slap in the face. When you start talking about bringing in refugees and when they get here they get medical and dental and they get set up with some funds—what do we get?” Here’s Obamacare’s answer:

Under the terms of the ACA, if you are unemployed, or if your employer’s insurance is unaffordable (defined as an individual plan (not a family plan) costing you over 9.5% of income), you can buy insurance on the exchange. You can choose plans from one of four precious metal tiers (bronze, silver, gold, and platinum), with varying actuarial values (60 to 90%). You’ll pay premiums, but you’ll also get sliding scale subsidies based on how high your income is above the poverty level. You will probably also need to pay co-pays, coinsurance (a percentage of each bill), and deductibles, up to some percentage of your income specified by statutory out-of-pocket maximums. (Just be sure not to incur out-out-network costs that don’t count toward out-of-pocket maximums.)

But you can get cost-sharing subsidies to cover some of that expense, based on a sliding scale slightly different than the premium assistance tax credit scale. Just be sure to shop carefully on the exchange, because some plans have narrow networks–that is, they may not cover the physicians or hospitals you normally use. In fact, you may have to drive 20 or 50 miles to find a physician in the network–the rules on network adequacy can be hazy. Note also that, in a narrow network, if you have a surgery, it’s possible out-of-network physicians or other personnel may attend, and you could be on the hook for the whole amount they charge–unless your state has a “no surprise billing” law.

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Petition to the President Asking For Recognition of John Bingham

I have created a petition on the White House website asking the President to give John Bingham a Presidential Medal of Freedom in honor of his contributions to the Fourteenth Amendment.  I urge you to sign and spread the word.  This would be an important statement (albeit symbolic) of our commitment to liberty and equality.

https://petitions.whitehouse.gov//petition/give-john-bingham-ohio-posthumous-presidential-medal-freedom

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The Death Penalty is Not Going Away

One of the unheralded themes from Tuesday’s results is that the demise of the death penalty has been greatly exaggerated.  There will obviously be no Supreme Court majority anytime soon that will pick up on Justice Breyer’s dissenting opinion in 2015 (joined by Justice Ginsburg) that the death penalty is unconstitutional.  Moreover, a ballot proposition to abolish capital punishment was voted down in California, Nebraska voted to repeal a statute outlawing the death penalty, and Oklahoma amended its state constitution to protect capital punishment.

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NFIB v. Sebelius

One result of the election is that the Chief Justice’s opinion upholding the constitutionality of the Affordable Care Act takes on a different light.  First, the case is simply far less important than we thought.  Second, the Chief Justice’s judgment that any repeal of the Act should be accomplished through ordinary political processes rather than through a judicial decision now looks better. Of course, we don’t know how the legislative process will play out next year, but it’s fair to say that the Act will be significantly modified.

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FAN 131 (First Amendment News) Forthcoming: Chemerinsky & Gillman on the importance of free speech on college campuses

It is one of the topics of our times — free speech on college campuses. As noted below, each week there are numerous news stories about this or that form of censorship endorsed by campus administrators. Now, two experts in the field of law and education have entered the marketplace of ideas in which this controversy continues.

Dean Erwin Chemerinsky

Dean Erwin Chemerinsky

Enter Dean Erwin Chemerinsky and Chancellor Howard Gillman with their next book: Free Speech on Campus (Yale University Press, summer 2017). Here is a draft of an excerpt from the preface to that book:

“Students are rightly demanding, and colleges and universities are striving to provide, greater diversity and an environment conducive to learning for all students. Often, though, these efforts have led to calls to restrict, punish, or disrupt speech by students and faculty members that is seen as creating a hostile learning environment, especially for those who have traditionally suffered discrimination. Some of this anger has been focused on speech that almost anyone would consider offensive and hateful. But there have also been calls to suppress speech that is merely politically controversial or contrarian. There are demands that campuses deal with “microaggressions” and require faculty to provide ‘trigger warnings’ before covering material that some students might find upsetting. Students have demanded—and received—formal investigations of possible violations of federal law after faculty members published scholarly articles in journals. The issues concerning speech on campus are complicated by the unprecedented ability for any person to quickly reach a large audience via social media. . . .”

Chancellor Howard Gillman

Chancellor Howard Gillman

“We fear that discussions over this issue, like so much else in society, are polarizing into two camps. One derides all efforts to protect students from the effects of offensive or disrespectful speech as ‘coddling’ and ‘political correctness.’ The other side believes that free speech rights are secondary to the need to protect the learning experience of students, especially minority students. “

“We write this book because we believe both sides are right and wrong. They are right in that both equality of educational opportunity and freedom of speech are essential for colleges and universities. But they are wrong in thinking that one of these objectives can be pursued to the exclusion of the other. Colleges and universities must both create inclusive learning environments for all students and protect freedom of speech. To achieve both of these goals, campuses may do many things, but they must not treat the expression of ideas as a threat to the learning environment. Freedom of expression and academic freedom are at the very core of the mission of colleges and universities, and limiting the expression of ideas would undermine the very learning environment that is central to higher education. . . . .”

There is more, much more, but I will stop there since the book is in the editing process. That said, the authors have kindly agreed to allow me to reprint a draft of the book’s table of contents:

Preface

Chapter 1:  The New Censorship

Chapter 2:  The Importance of Free Speech

Chapter 3:  The Special Role of Free Speech at Colleges and Universities

Chapter 4:  Hate Speech

Chapter 5:  Academic Freedom and Inclusive Learning Environments

Chapter 6:  What’s at Stake?

I will say more about this important book this coming summer when it is scheduled to be released.

Free Speech on College Campuses 

Heard on Campus: ‘The First Amendment and Diversity and Inclusion,’ Penn State News, Nov. 8, 2016 (video, participants: Robert D. Richards, Carla Pratt, Nancy J. LaMont, Stephen Ross, Victor Romero, & Maureen B. Cavanaugh

Susan Kruth, First Amendment Lawsuit Settled with Speech Code Revisions on 10 Arizona Campuses, FIRE, Nov. 8, 2016

Greg Piper, Satirical campus paper that was defunded because it offended people loses court battle, The College Fix, Nov. 8, 2016

Christina Hoff Sommers (credit: Aarushi Jain, Columbia Spectator)

Christina Hoff Sommers (see #10 below)
(credit: Aarushi Jain, Columbia Spectator)

  1. ASNE stands ready to defend First Amendment rights, strong democracy, iReach, Nov. 9, 2016
  2. Annalena Wolcke, A Brief Overview of “Freedom of Speech” on the University’s Campus, The Daily Princetonian, Nov. 9, 2016
  3. Sara Shepherd, National free speech group says KU is among schools with codes that ‘violate’ the First Amendment; University Senate free speech committee continues meeting, LJ World, Nov. 7, 2016
  4. Annika Cline, MCCCD Eliminates Free Speech Zones, Allowing Expression Everywhere On Campuses, KJZZ, Nov. 7, 2016
  5. Ray Stern, Free Speech Now Freer at Maricopa County Community College District, Phoenix Times, Nov. 7, 2016
  6. Van Nguyen, Conservative journalist Ben Shapiro criticizes campus censorship at YCT event, The Daily Texan, Nov. 4, 2016
  7. Cody Nelson, In campus free speech debate, nobody’s really winning, MPR News, Nov. 4, 2016
  8. D.C. McAllister, Free Speech Under Attack at Another College Campus, PJ Media, Nov. 3, 2016
  9. Pfeffer Merrill, Pro: Colleges must guard free speech, Evansville Couruer & Press, Nov. 3, 2016
  10. Cara Maines, Controversial feminist critic discusses trigger warnings, free speech amidst opposition on campus, Columbia Daily Spectator, Nov. 2, 2016
  11. A Public University Makes Students Choose Between Their First Amendment Rights & Graduation, Forbes, Nov. 2, 2016
  12. Lawrence Ross, Blackface on College Campuses Isn’t About Freedom of Speech; It’s About White Supremacy, The Root, Oct. 31, 2016
  13. Cliff Maloney, Jr., Colleges Have No Right to Limit Students’ Free Speech, Time, Oct. 13, 2016

Ballot Selfies: Colorado & California — Different Results   Read More

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Vanderbilt Law Review, Volume 69, Number 5

The Vanderbilt Law Review is pleased to announce the publication of our October 2016 issue:

This issue includes a Tribute to Elizabeth Chitwood

ARTICLES

Suzanna Sherry, Normalizing Erie, 69 Vand. L. Rev. 1161 (2016)

Aaron Saiger, Agencies’ Obligation to Interpret the Statute, 69 Vand. L. Rev. 1231 (2016)

Christine P. Bartholomew, The Failed Superiority Experiment, 69 Vand. L. Rev. 1295 (2016)

Jason Iuliano & Ya Sheng Lin, Supreme Court Repeaters, 69 Vand. L. Rev. 1349 (2016)

NOTES

Clayton J. Masterman, The Customer Is Not Always Right: Balancing Worker and Customer Welfare in Antitrust Law, 69 Vand. L. Rev. 1387 (2016)

Susanna Rychlak, I See Dead People: Examining the Admissibility of Living-Victim Photographs in Murder Trials, 69 Vand. L. Rev. 1423 (2016)