Wednesday, January 28, 2015

Primed for Change

It is hard to believe that it was just about a year ago that I blogged here about Prime Health Care's transition from a bit player to a major player in acute care hospital ownership. A lot can  happen in twelve months, especially when you are on  an acquisition binge. 

Prime, you may recall, specializes in the acquisition and turnaround of financially troubled acute care hospitals. Prime operates 29 hospitals in California and eight other states.

I write today about Prime's proposed acquisition of six  hospitals in the Bay Area, a subject that has produced both considerable heat and light.  If California Attorney General Kamala Harris approves the Daughters of Charity acquisition, Prime will become the fifth-largest hospital company in the United States, based on revenue.

The California Attorney General's review of this transaction, as required by California Corporations Code section 5914 et seq.  continues apace. Consistent with the statute, the public hearings have begun. Consistent with California politics, the letter writing campaigns have begun. You can see the public documents here. 

I don't envy Kamala Harris. It could be that there is just no way to please everyone here. I have written another time about the strong reactions provoked by hospital ownership transfers and  closings.

The Daughters of Charity want out of their debt and do not hesitate to assert that a closed hospital -- apparently their view on the likely outcome if the sale to Prime is derailed -- costs lives. The interesting thing about this approach is more isn't necessarily better.  The SEIU opposes all Prime acquisitions. The problem with this is that it contemplates absolutely no place for a turnaround artist like Prime Health Care in acute care hospital markets.

Continue reading "Primed for Change"

Posted by Ann Marie Marciarille on January 28, 2015 at 03:41 PM in Blogging, Current Affairs | Permalink | Comments (0)

If you say so

Judge Callie Granade of the Southern District of Alabama has clarified her order holding that Alabama's marriage-equality ban violates the Fourteenth Amendment. She block-quotes Judge Hinkle's position--which I previously labeled "unnecessary, ineffectual, arrogant, or extra-jurisdictional--likely some combination of all four"--that the injunction does not apply to anyone other than the Alabama A/G (the only named defendant), but that the Constitution does apply and the Constitution requires the probate judges to issue marriage licenses.

On reading it this time around, these seems a framed example of an advisory opinion. A court is telling someone what to do or not to do, but that person is not a party to a case within the court's jurisdiction and not subject to any valid order of the court. Judge Granade can insist all she wants that the Constitution requires the state's probate judges to issue marriage licenses--if they disagree, no one can do anything about it (unless and until new litigation is brought and a court with jurisdiction--perhaps Judge Granade--directly compels them to do so).

Of course, the news is not all normal, because Alabama Supreme Court Justice Roy Moore is back in the news, insisting that state law remains in place, that he will continue to follow state law, and that the probate judges should continue to do so, as well. This, in turn, prompted the Southern Poverty Law Center to file an ethics complaint against Moore, alleging he violated judicial ethics rules in commenting on a matter that will be coming before him in the coming weeks.*

* Although I am not sure why. I would expect the move for anyone denied a license would be to sue the probate judge in federal court, so I do not see how this is going to make its way through the Alabama courts.

(H/T for all of this: Josh Blackman and Howard Bashman)

Posted by Howard Wasserman on January 28, 2015 at 02:58 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Alternative Paradigms for Regulating Campaign Finance

Many Americans believe that there is too much money in politics. But what should be done about it? As far as the Supreme Court is concerned, not much. Currently, the Court accepts only one justification for placing limits on campaign contributions, and that is to prevent corruption or the appearance of corruption. However, the Court defines corruption narrowly, telling us that limits on contributions are only justified when they are enacted to prevent quid quo pro corruption. That is when a campaign contribution is given in direct exchange for the official’s vote, like a bribe. Other kinds of influence that donors have on politicians have not been recognized as corrupting.

Limits on campaign expenditures, meanwhile, including the funds that candidates themselves spend when they run for office, or the so-called “independent expenditures” that outside groups spend without coordinating with the candidate, are subject to strict scrutiny. The Roberts Court has been extremely hostile to campaign finance regulation. Just about every single campaign finance law that has come before it has been struck down.

This is probably not the place to get into a doctrinal debate about campaign finance, a complex and intricate area of the law. Suffice is to say that Congress no longer has the stomach to regulate in this important arena. Thus champions of campaign finance reform—a group that includes many prominent legal academics—need to find a new way forward.  

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Posted by Eugene Mazo on January 28, 2015 at 11:03 AM | Permalink | Comments (3)

#Not all convictions

Sadly, the only lessons anyone will learn about campus sexual assault from the convictions of two former Vanderbilt football players is 1) Don't be so stupid (or arrogant) as to record and share your criminal activity and 2) You cannot get away with as much when you are not the star quarterback at a championship-contending football factory. More sadly, I am not sure what would happen if you have a star quarterback who is stupid enough to record. Still more sadly, we already know what happens if the non-star is smart enough not to record.

Posted by Howard Wasserman on January 28, 2015 at 09:34 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, January 27, 2015

Extending Unequal Second Amendment Rights

Stories like this one - a 62 year old African-American man is tackled to the ground in a Tampa Wal-Mart after a white man saw him bringing a (legal) firearm into the store - have me wondering how to think about the idea of extending Second Amendment rights in a world where we can pretty well predict, ex ante, that they will not be equally available to all citizens.  We can reasonably expect this sort of citizen self-help given that a big part of the case for arming all citizens is that they'll use their guns to intervene before bad things happen.  But given past experience, we can also expect that race will also play a part in whether police officers decide to stop citizens based only on their visible possesion of a firearm. 

We already know that there is a vast privacy gap between African-Americans and whites in the sense that Blacks are far more likely to be subject to a stop-and-frisk than whites.  (And it's hard to make the case that this gap is based on higher frequency of suspicious conduct when, for instance, we see that both New York and Philly police were finding contraband in well fewer than 10% of their street stops.)  Then there's Driving While Black.  I think it's fair to say that African-Americans and whites don't get equal benefit from the Fourth Amendment.

And that's a sticky problem.  Under current law, there isn't much you can do except to change police conduct from within.  Courts don't have a lot of sway.  Evidence suppression doesn't work for people who aren't arrested and nobody can count on getting compensation for a fruitless search.  That's why people like Michelle Alexander are looking to public debate and activism as a possible solution.

With the expansion of the Second Amendment, we have a chance to think more about the problem early on.  Although many states have long provided easy access to carry permits, the new, more muscular Second Amendment will likely lead to an expansion of gun carry rights.  But it seems likely that these new rights will not be extended equally.  First, though the permits themselves will be granted using formally neutral rules, provisions such as prohibiting permits for convicted felons will  embed historical racial disparities in arrest, prosecution, and conviction.   Theres more, however.  In my mind,  the right to carry a gun includes more than the right not be convicted for doing so; it also ought to include  the right to carry a gun and not get stopped and searched for doing so.  In that respect, I fear we won't deliver equal rights.  

Continue reading "Extending Unequal Second Amendment Rights"

Posted by Dan Filler on January 27, 2015 at 11:53 AM in Constitutional thoughts, Criminal Law, Current Affairs, Property | Permalink | Comments (2)

Dispatch from the Eastern Seaboard: we're not all dead.

As many of you know, I am a Californian who teaches at the University of Iowa and is spending this year in Princeton.  This has, as you might expect, given me an odd perspective on weather disasters (other than just hating 'em), and the people who suffer them.  

East coast: weather service predicts apocalypse.  New York City shuts down. Citizens enraged. Subway continues running, empty, through the night by mandate of Higher Authority, while citizens, barred entry to the safety and transportation to be found underground, race home on foot against the doom awaiting them from the heavens.  Roads are barred to traffic.  Stores are cleared of bottled water and canned goods.  Some make their peace with god, others shake their fists and rage against the skies.  Battalions of snowplows and ambulances lie in wait, engines running and crews on DEFCON 1 ready to scramble at the drop of a snowflake. Brooklyn hipsters make incredibly detailed pre-looting strategy maps of record stores, consignment shops. Life insurance companies draft bankruptcy filings in advance, move assets to the Cayman Islands. Martha Stewart releases book of recipes for cannibals.  National guard activates plans to impose martial law.  Anyone who can flees to a bunker in the mountains with gold, guns.  Nothing happens.  
 
Midwest: weather service predicts nothing.  Apocalypse happens. The weakest immediately die.  Basketball-sized hail rains down from the skies, knocks anyone who ventures outside out cold, then blizzard covers all populated areas in five feet of snow, promptly freeze-suffocating hail victims.  Tornados descend by the dozens, clearing the snow as well as any inconveniently placed buildings.  People notice that frozen corpses appear to be scattered throughout the streets, midwestern tidiness kicks in, they go outside to stack them in neat piles.  Corpse-stackers immediately struck down by lightning, then buried in more snow, floods add layer of ice on top of snow, malarial mosquitos weaken the survivors, who are then dragged off by wolves.  Nobody else notices, survivors somehow manage to walk without slipping across the eternal icy mausoleum of half of their neighbors to give homemade jars of preserves to the other half.  Just because it's the neighborly thing to do.  
 
If one must have profoundly horribly weather and charmingly absurd people, can I please have the Midwest people with the East Coast weather?  

Posted by Paul Gowder on January 27, 2015 at 10:42 AM in Odd World | Permalink | Comments (5)

Monday, January 26, 2015

Nursing Homes as Guardians of Their Debtor Patients

If you saw today's New York Times article on New York nursing homes seeking guardianship over residents in order to collect outstanding debt, under Article 81 of the Mental Hygiene Law, you may also have questions.

Section 81.19 of the Mental Hygiene Law specifies (emphasis added):

(e) Unless the court finds that no other person or corporation is available or willing to act
as guardian, or to provide needed services for the incapacitated person, the following persons or
corporations may not serve as guardian:
1. one whose only interest in the person alleged to be incapacitated is that of a
creditor;
2. one, other than a relative, who is a provider, or the employee of a provider, of
health care, day care, educational, or residential services to the incapacitated person, whether
direct or indirect.

If a corporate entity may petition or threaten to  obtain  guardianship over a current resident in order to resolve an outstanding disputed debt owed to the corporate entity and withdraw the petition as soon as the debt is paid in full, what can guardianship law mean in New York?

 

 

Posted by Ann Marie Marciarille on January 26, 2015 at 10:29 PM in Constitutional thoughts | Permalink | Comments (1)

Game theory post 5 of N: the joy and madness of repeated games

One thing about strategic interactions is that humans tend to repeat them.  For example, participants in a market may engage in trades over and over, neighbors may make the same decisions with respect to borders, common resources, etc. over and over, even some litigants in a particularly litigious industry may find themselves facing one another in court over and over (ahem, cough, cough, AppleandGoogleandSamsungandMicrosoftandAllTheRest). Unsurprisingly, game theorists have developed a body of knowledge for dealing with repeated games—that is, games that can be divided into subgames which are played over and over.

There are two categories of repeated games: finitely repeated, and indefinitely or infinitely repeated games.  And as it turns out, they behave very differently.  Generally speaking, finitely repeated games tend to behave (at least formally) sorta more-or-less like one-short games; and we would intuitively expect that to be true, for a finitely repeated strategic form game is just the same thing as a longer game written in extensive form.  But things go really wild when you move to the indefinite/infinite category.  

Continue reading "Game theory post 5 of N: the joy and madness of repeated games"

Posted by Paul Gowder on January 26, 2015 at 03:29 PM in Games | Permalink | Comments (0)

Epilogue: Moral Panics and Body Cameras

Almost immediately after my essay on body cameras was published in Wash. U. L. Rev. Commentaries in November, stuff blew up--the Michael Brown non-indictment, the Ferguson and national protests, the Eric Garner non-indictment, and the protests from that. The editors were kind enough to publish an Epilogue, now available on Commentaries, discussing those subsequent events and how they further illustrate my points about video, body cameras, and moral panics.

Posted by Howard Wasserman on January 26, 2015 at 01:24 PM in Article Spotlight, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Submission angsting: Spring 2015

The submission window is just about to open and we await Redyip's semi-annual return-- some journals already have announced they are accepting submissions. So let the angsting commence.

If you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. If you have questions about the process, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which journals you have heard from, which you have not, etc. Have at it. And do it reasonably nicely, pretty please.

Posted by Howard Wasserman on January 26, 2015 at 09:31 AM in Howard Wasserman, Law Review Review, Teaching Law | Permalink | Comments (11)

Why Study Athenian Law?

Let’s have a break from game theory.  As some of you may know, I have a research program in ancient Athenian law. I’ve published one big article on the subject, have a book chapter forthcoming, have another paper or two or three in the hopper, and draw on it to understand other things on an appallingly regular basis, even when I write about things like constitutional law and jurisprudence.
 
But that might seem like odd behavior. Although I do read Attic Greek*---which is the main qualification for being able to talk about anything Athens without classicists mocking you**---I am no historian. And anyway, legal historians tend to focus on systems of law that are either part of our (American) legal tradition and the common law tradition that led up to it, or that are at least part of the traditions of other countries that we care about, such as the civil law tradition from Rome or the Islamic law tradition. 
 
But Athens?  Athens doesn’t really linger in a legal sense: almost nothing we do can be traced back to them (although I’d be tempted to make a claim for the jury trial and for the adversary process, and Hayek insisted that the Athenian concept of isonomia—legal equality—is the wellspring of the English ideal). Unsurprisingly, there aren’t many American legal academics who work in the area.  I think this is a mistake: we, qua discipline, are leaving knowledge on the table. 
 
So what is this Athenian law nonsense?  Is it just more Kant in Bulgaria? Have all those trees died in vain? (That cliff-hanger gets resolved after the fold.)
 

Continue reading "Why Study Athenian Law?"

Posted by Paul Gowder on January 26, 2015 at 12:34 AM in Law Review Review | Permalink | Comments (1)

Sunday, January 25, 2015

The process of marriage equality, once again

This time in Alabama (H/T: Josh Blackman), with the pushback coming from the state's probate judges, who are empowered under state law to issue marriage licenses. The plaintiffs asked the district court for a "clarification" of her ruling and its scope, although it is unlikely that her clarification will announce that these non-party probate judges are subject to the injunction, since, just as in Florida, they cannot be. The district court has issued a 14-day stay, so the race to figure this all out by Monday has become moot--the district judge gave the state a chance to ask the Eleventh Circuit for a stay.

Comparing this to George Wallace standing in the doorway at the University of Alabama is incredibly overstated and flat wrong. And at some level, this is on the plaintiff's lawyers--they  framed the case, only sued the Attorney General in a state in which the AG does not have the power to issue licenses or to control or advise those who do, and did not include any "responsible" executive officers in the action. The AG is ordinarily the proper defendant in an Ex Parte Young action (notably where the challenged law is a criminal provision); but not here and not for the issuance of marriage licenses. And the failure to recognize that is creating these procedural complications, at least until SCOTUS or the Eleventh Circuit weighs in.

With all that, calling everyone a bigot in a legal document is not particularly helpful.

Posted by Howard Wasserman on January 25, 2015 at 08:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Saturday, January 24, 2015

Law School Centers: The Good, the Not-So-Bad, and the Largely Unknown

I teach at a law school that does not have any centers. When I arrived, I noticed this and tried to change it. There is currently a large sign on my door that says “Future Home of the Wake Forest Constitutional Law Center.” Last spring, while I was out of the office one day, someone took a piece of paper, wrote the letters “U” and “N” on it in large type, and taped it in front of the word “Constitutional” on my sign. To be clear, I am not the director of any center. But someone out there thinks that the Wake Forest Unconstitutional Law Center exists, or at least thinks that it exists in my office.

Whenever I have visitors, they see my sign and invariably ask me about this non-existent entity. For example, last spring our dean’s office sent a prospective student to speak with me. The student told me that she was interested in election law and that she wanted to attend our law school to work with the Constitutional Law Center. I explained that this “center” was nothing more than a sign on my door. However, my honesty did not do much to sway the young woman, who later sent a thank-you letter to the dean, copying me, in which she explained how much she was looking forward to the opportunity of "participating in the life of the new Constitutional Law Center.”

That’s the power of ideas for you—or, at least, of signs.

So why do law school centers exist? Should law schools continue to have them? Do centers matter for purposes of ranking and perception? How are these centers run? Do the directors of the centers receive a reprieve from teaching? What is the budget of the typical center? And what do centers do for law schools that law schools cannot do all by themselves?

Continue reading "Law School Centers: The Good, the Not-So-Bad, and the Largely Unknown"

Posted by Eugene Mazo on January 24, 2015 at 05:24 PM in Life of Law Schools | Permalink | Comments (8)

Game theory post 4 of N: extensive form games, a deep dive

How about some Saturday game theory over brunch?

The one-round strategic form games of the previous post are the simplest possible presentation of some actual game theory. Now I want to put on my political scientist hat and dig into a slightly less simple, but much beloved, game.

We might call this the “punishment game.” It imagines a boss or a dictator or a parent giving commands to a subordinate or a subject or a child, where the boss prefers her commands be obeyed, and the subordinate prefers not to obey; if the subordinate defies the command, the boss has the power to inflict punishment at a personal cost. The following illustration (now with actual numbers, for clarity!) captures the situation, with the subordinate’s payoffs listed first; discussion is after the fold. (Sorry for the ugliness; remember how I said that I’m horrible at graphics?)

Punishment game0

Continue reading "Game theory post 4 of N: extensive form games, a deep dive"

Posted by Paul Gowder on January 24, 2015 at 01:41 PM in Games | Permalink | Comments (0)

Friday, January 23, 2015

JOTWELL: Leong on Rush on geographic diversity

The new Courts Law essay comes from Nancy Leong (Denver), reviewing Sharon E. Rush's Federalism, Diversity, Bias, and Article III (Missouri L. Rev.), which explores the role of geographic diversity in the federal judiciary.

Posted by Howard Wasserman on January 23, 2015 at 09:41 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Game theory post 3 of N: some classic (one-shot, strategic form) games

There are a number of classic textbook games that are highly useful, primarily because if you know them well, you can often see real-world situations that have similar payoff structures; doing so, you have a pretty good initial guess at what will happen in those situations. Accordingly, I'll collect some here. (Behind the fold.)

Continue reading "Game theory post 3 of N: some classic (one-shot, strategic form) games"

Posted by Paul Gowder on January 23, 2015 at 08:55 AM in Games | Permalink | Comments (1)

Thursday, January 22, 2015

Sutter Health vs. Blue Shield: War of the Gargantuas

When I think about calls for increased consumer activation in  health insurance selection, I think about how much I like the ideas of increased health insurance literacy, price transparency, and the promotion of competition in health care markets. 

But when I see consumers whipsawed as with the current War of the Gargantuas taking place in Northern California, I wonder if consumer activation alone will save us.

Continue reading "Sutter Health vs. Blue Shield: War of the Gargantuas"

Posted by Ann Marie Marciarille on January 22, 2015 at 06:39 PM in Blogging, Constitutional thoughts, Corporate, Culture | Permalink | Comments (0)

When Agencies Don’t Appear on the SG’s Briefs

When the Solicitor General files briefs in the Supreme Court, the briefs always bear the names of other lawyers from the Department of Justice. In special cases, however, officials from other agencies sometimes sign on, too. For instance, in cases bearing on commerce, national security or foreign affairs, the SG’s briefs might respectively bear the names of officials from the Commerce Department, the Department of Defense or the State Department. The point of this unusual gesture, it seems, is to show the Court that other relevant agencies have been consulted for their expert views and are standing by the Department of Justice in what must be an important case.

But what if a case seems to involve issues pertinent to agencies besides the DOJ, and yet those other agencies don’t appear on the SG's brief? Does that surprising absence mean that officials from the other agency disagree with the position of the Solicitor General? Has there perhaps been an intense debate within the executive branch—an exchange of views wherein a purportedly expert agency has dissented from the litigation position ultimately taken by the United States? These kinds of thoughts can lead jurists to discount or even discredit the position that the Solicitor General has taken. The practice of including extra agency names on the SG's briefs is thus a two-edged sword--and one that seems to have been cutting the SG increasingly frequently in recent years.

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Posted by Richard M. Re on January 22, 2015 at 11:39 AM | Permalink | Comments (14)

Game theory post #2 of ????: Basic Concepts

This is the second post in an indefinite series of game theory for law professors. In this one, I'll describe some basic concepts---the rudimentary language of game theory as a vocabulary list. This page, incidentally, has even simpler definitions of some of the concepts described here, as well as a few concrete examples.

Let us begin, however, by fixing an idea of our task in mind. We have at least two players (where a player can be any entity that makes choices and receives payoffs---depending on the level of analysis, this can be individuals, firms, governments, or a combination of them), each player can make moves, actions that, in conjunction with other players' moves, affect the state of the world (the outcomes experienced by that player as well as others), and each player has a utility function mapping probability-weighted states of the world to a preference ordering. And our goal is to say something intelligent about what the players have incentives to do---often, although not always, with the assumption that they are sufficiently rational that they will do what their incentives will point toward, but let us bracket that issue for the time being. That saying of something intelligent is also known as "solving" the game. Also, I only will be discussing non-cooperative game theory; there's a branch of game theory called cooperative game theory too, but I know it less well and never use it. (Those of you who study things like constitution-making and contracts might look into it though.)

Continue reading "Game theory post #2 of ????: Basic Concepts"

Posted by Paul Gowder on January 22, 2015 at 11:27 AM in Games | Permalink | Comments (6)

Wednesday, January 21, 2015

MDL consolidation and appealability

SCOTUS on Wednesday decided Gelboim v. Bank of America, holding that a district court order dismissing the sole claim in a single-claim action, consolidated with other actions for pretrial proceedings in multidistrict litigation, was a final and appealable order, even if claims remained in other actions included in the MDL. I have an opinion analysis at SCOTUSBlog. And I am happy to say I called this one.

Posted by Howard Wasserman on January 21, 2015 at 04:25 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

The Leaker Whistleblower

Today, the Supreme Court in a 7-2 decision by Chief Justice Roberts affirmed a Federal Circuit decision that government whistleblowers are protected under the Federal Whistleblowe Act unless their disclosures are explicitly prohibited by another statute. Robert MacLean, an air marshal who flew undercover, leaked to MSNBC that the Transportation Security Administration decided to reduce overnight flights for air marshals. His report congressional criticism and led to TSA reversing itself on its budgetary cuts. The disclosure also led to the firing of MacLean disclosing "sensitive security information," which violated TSA rules. 

This is an important ruling for public accountability and disclosure. In my collaborative studies on whistleblowing, Yuval Feldman and I find that protections against anti-retaliation and firing can be more effective than monetary rewards for disclosure and that such protections are meaningful given the default silence of most employees (The Incentives Matrix: The Comparative Effectiveness of Reward, Liabilities, Duties and Protection for Reporting Illegality, Texas Law Review 2010). In another article, Citizenship, Organizational Citizenship, and the Laws of Overlapping Obligations. California Law Review, 2009, I describe the deep ambivalence of the law on the role of individual dissent in public and private organizations. I argued post-Garcetti that recent constitutional and private law cases have had the undesirable effect of denying protections to those most likely to identify and report corporate misconduct, especially in the public sector. The decision today is an important step in strengthening disclosure protections. As Neal Katyal, MacLean's lawyer, said during the oral arguments, the whistle-blower law was enacted to restrict government agencies, rather than empower them. Retroactively classifying a previously unclassified text message to fire a whistleblower is the kind of secrecy and agency empowerment we should worry about.

Posted by Orly Lobel on January 21, 2015 at 11:44 AM | Permalink | Comments (0)

Acoustic Separation and Immigration Reform

In Decisions Rules and Conduct Rules: Acoustic Separation in Criminal Law, Meir Dan-Cohen talked about the partial acoustic separation between criminal rules as understood by the public and criminal rules as understood by the courts imposing sanctions.  For example, we believe that in some cases, a person committing a crime under duress is not legally culpable - and her conduct may be excused.  But we don't want people running around factoring in this possibility of  legal excuse into their decisions at the moments they are actually under duress.  We want them to experience the full legal risk of their conduct at that moment so that we can conclude they really were acting under the most extreme pressure.  

I give this background only by way of explaining the concept.  My rumination today has a first cousin relationship to Dan-Cohen's framework.

I was struck by the decision of Republicans to take two approaches to immigration in their response to the President's State of the Union.  To English speakers, Joni Ernst made no mention of immigration at all.  That is the story the GOP wants to tell to its English language base.  But the party also needs support from the Spanish speaking community as well.  So to this pool of voters, Rep. Carlos Curbello stated in his Spanish language response,  "We should also work through the appropriate channels to create permanent solutions for our immigration system, to secure our borders, modernize legal immigration, and strengthen our economy."

I imagine that this separation will be reasonably effective - if, perhaps, not deeply consequential.  Acoustic separation is never complete, but most people don't dig that deeply into law or policy.  While the policy wonks who read Politico now know that the GOP has two slightly approaches to immigration reform - one being silence and the other marking immigration as a priority - most voters will not.  I'm not sure that Curbello's comments would have deeply alienated the GOP base - though I'm guessing that GOP speechwriters thought immigration wouldn't be a galvanizing issue for her English language listeners. Maybe they imagined it might even drive a few voters away.  (Indeed, the GOP later flipped on whether Curbello's statement was the Spanish language response - though that flip itself was presumably largely invisible.)

I know that candidates and parties commonly frame issues differently in media outlets targeted to divergent demographic groups.  Perhaps this was just a case of my own naïveté in thinking that was was such a thing as "the Republican response to the State of the Union".   In any case, it foreshadows and highlights a fundamental challenge for the GOP over the next two years. 

Posted by Dan Filler on January 21, 2015 at 11:34 AM in Current Affairs, Immigration | Permalink | Comments (0)

Experimental Game Theory Series #1 of ???

I'd like to try an experiment: methodological propaganda/skillsharing in a series of blog posts.  I had originally planned a fairly large number of these and essentially an internet course in basic game theory, but then the 20th of the month snuck up on me, and there's very little chance the whole thing gets out before my blogging residency (such as it is) runs out.  So let's get as far as we can, and see how people like these posts; if they prove popular, perhaps they can continue somewhere else.  (I'm also totally hijacking the "games" category" on the blog for this. Because, obvs.)

With no further ado: an introduction to game theory for lawyers/law professors, post 1 of N: why? 

Continue reading "Experimental Game Theory Series #1 of ???"

Posted by Paul Gowder on January 21, 2015 at 09:58 AM in Games | Permalink | Comments (3)

Tuesday, January 20, 2015

Some thoughts on Holt v. Hobbs

Like Paul, I say "congrats" to Doug Laycock for the win in Hobbs.  And, while waiting for Paul's as-per-usual detailed and thoughtful take on the case, I gathered a few quick thoughts of my own:  

First, it seems to me that the opinion by Justice Alito is exceptionally well crafted.  It should win a Green Bag award or something.  It touches the necessary bases and stops.  The language is clear and functional.  (It reveals no idiosyncratic aversion to adverbs and includes no cringe-inducing attempts at grandeur.)  One knows, at every point in the analysis, where one is.

Second, Justice Alito confirmed (as he had in Hobby Lobby) that RLUIPA (and RFRA) should not be read narrowly so that it reaches no farther than did the more narrow of the Court's Free Exercise Clause decisions.  Here, he rejected the notion (which some earlier cases might have endorsed) that "the availability of alternative means of practicing religion is a relevant consideration" for purposes of deciding whether RLUIPA's protections are triggered.

Continue reading "Some thoughts on Holt v. Hobbs"

Posted by Rick Garnett on January 20, 2015 at 01:14 PM in Constitutional thoughts, Religion, Rick Garnett | Permalink | Comments (0)

Decision in Holt v. Hobbs

The result in this RLUIPA case was unsurprising: The petitioner won unanimously.  Justice Alito wrote (again) for the Court, in an opinion holding that "The Department [of Prisons]’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a 1⁄2-inch beard in accordance with his religious beliefs." Justices Ginsburg and Sotomayor filed short concurrences, solo in Sotomayor's case. The opinions are here. Mazel tov to Professor Doug Laycock, who argued on behalf of petitioner Gregory Holt in the Supreme Court. 

Posted by Paul Horwitz on January 20, 2015 at 10:47 AM in Paul Horwitz | Permalink | Comments (1)

Henry Manne, R.I.P.

Henry Manne passed away over the weekend.  Thoughts and condolences to Geoff and the rest of his family.  I expect you will be hearing much more about Manne's contributions to law, law & economics, the market for corporate control, insider trading, and legal education.  We here at SLU Law, where he began his academic career, are happy to claim some small association with his legacy.  Here's an intellectual history by Manne discussing the law & economics movement and his transformational role as dean of GMU Law. 

Posted by Matt Bodie on January 20, 2015 at 10:30 AM | Permalink | Comments (0)

Joachim Prinz, American Jews, and the Civil Rights Movement

This article is a few years old, but I came across it, appropriately, on MLK Day. It is about Joachim Prinz, the most prominent Jewish leader in the Civil Rights Movement and the only Jewish leader to speak at the March on Washington (he spoke just before King). I was personally interested in the story because Prinz performed my Bar Mitzvah in 1981 at B'nai Abraham in Livingston, N.J., where he was Rabbi Emeritus. As students at the Hebrew School, we sort of knew about his involvement with King. But my friends and I were more interested in being outside playing baseball.

Posted by Howard Wasserman on January 20, 2015 at 09:52 AM in Culture, Howard Wasserman, Law and Politics | Permalink | Comments (0)

The Sleeper Case of the Supreme Court's October 2014 Term?

Over at SCOTUSblog, Will Baude has posted a helpful (and helpfully concise) preview of the oral argument that will take place before the Supreme Court later this morning in Armstrong v. Exceptional Child Center, a case I've blogged about before (and in which I've filed an amicus brief on behalf of former HHS officials and in support of the Respondents--the Medicaid providers). Rather than rehashing the arguments made by the parties or amici (or my prior posts), I wanted to use this post to make a different claim. Specifically, as I aim to demonstrate below the fold, in a Supreme Court Term the headlines from which will almost certainly be dominated by some combination of same-sex marriage, ACA subsidies, and passports for Jerusalem-born U.S. citizens, Armstrong could well be the biggest sleeper--the case that flies under the radar of all but the most ardent Court-watchers (or federal courts nerds), but produces the most significant long-term consequences for the American legal system. 

Continue reading "The Sleeper Case of the Supreme Court's October 2014 Term?"

Posted by Steve Vladeck on January 20, 2015 at 05:41 AM in Steve Vladeck | Permalink | Comments (9)

Monday, January 19, 2015

Thurgood Marshall and the limits of the judicial role

Mike Dorf poses an interesting question: Why is Thurgood Marshall never in the conversation about civil rights icon--it is only MLK, with Macolm X as the only possible alternative. Mike offers three reasons, which all seem plausible.

I want to consider a fourth option--the limits of the judicial role. Marshall spent the last thirty years of his career on the bench (with a two-year break as SG, an unusual government-attorney position that is part advocate, part court advisor, part administrative official). As such, he was less of an "advocate" for civil rights than King was or than Marshall had been earlier in his career. While he was a great liberal voice from the Court, he was no longer an advocate. And he was deciding not only civil rights cases, but cases on many other subjects--some of which were at least indirectly about civil rights and racial equality (criminal procedure), others having nothing to do with them (for example, he wrote Shaffer v. Heitner). And even in that role, Marshall was hampered by the fact that by 1971 and certainly by about 1981, he was no longer regularly in the majority on many of these issues; he was a strong voice in dissent, but he, unfortunately, was not directly shaping the law.

Finally, consider Richard Posner's suggestion that Marshall's great strength was as a trial lawyer, not as an appellate judge/justice or as SG. In other, Marshall spent the last half of a sixty-year career playing to less than his stengths, thus weakening his influence. Perhaps had Marshall remained in a different role--while continuing to have the same success in that role (and admittedly huge if)--he might have been in an even-more exalted space in the civil rights pantheon.

Posted by Howard Wasserman on January 19, 2015 at 12:29 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Bedside Collections Visits in the Emergency Room

Should acute care hospitals be prohibited from attempting to collect health insurance co-pays and other forms of co-insurance bedside in the emergency room?  

There isn't actually that much to garner a laugh in Steven Brill's new book America's Bitter Pill, but his description of how medical debt collector Accretive Health sells its services to its acute care hospital customers brought a smile to my lips. First, this was because the "Accretive Secret Sauce" is bedside Emergency Room collection and second, because Steven Brill had apparently never heard of this practice until researching this book.

Just where has he been making visits to the ER with his children? It is reported that at least half of acute care hospitals nationwide have been charging upfront ER fees.  We are on the cusp of an era of changing constraints on hospital debt collection practices, including a change to the rules about bedside debt collection in the Emergency Room.  Most of the new rules focus on those who likely would ultimately be eligible for free or reduced care and how they are to treated pending that determination. But what about the Bruce Folkens of the world-- the ones who most likely will not be eligible for free or reduced fee care? Will upfront fees in the ER remain the rule for them? 

Continue reading "Bedside Collections Visits in the Emergency Room"

Posted by Ann Marie Marciarille on January 19, 2015 at 12:09 AM in Blogging, Books, Current Affairs | Permalink | Comments (0)

Sunday, January 18, 2015

Justice Rehnquist, Religious Freedom, and the Constitution

I've posted on SSRN a paper of mine called "Chief Justice Rehnquist, Religious Freedom, and the Constitution."  I wrote it a few years ago, but it's now going to be published in a forthcoming West Academic Press volume called The Constitutional Legacy of William H. Rehnquist.  And, I'll be presenting a version of it in a few weeks at a conference ("The Rehnquist Court:  Ten Years Later") at the University of Arizona dedicated to the work and memory of the late Chief.  Here's the abstract:

It might not have been foreseen that William Rehnquist would have a marked influence on the Supreme Court’s interpretation, construction, and application of the First Amendment’s Religion Clauses. And yet, he certainly did. Kent Greenawalt wrote that Rehnquist – or, more precisely, the “Rehnquist Court” – “turned the constitutional law of religion upside down.” “[W]e have moved,” he reported, “from expansive readings of both of the religion clauses to narrow readings of the Free Exercise Clause and of very important aspects of the Establishment Clause.” It is suggested in this paper that in facilitating and guiding the “move[s]” identified by Greenawalt, Rehnquist for the most part “turned the constitutional law of religion” right-side up, rather than “upside down.” He left the Court’s Religion Clauses doctrine better than it was before, that is, better rooted in the Constitution’s text, history, structure, and values than it was when he joined the Court. In any event, that the “move[s]” happened, and that they happened in no small part because of him, seems beyond dispute.

Rehnquist was able, for the most part, to exercise both judicial humility in the face of politically accountable actors’ attempts to deal with debatable questions of policy and morality – including most of the questions that arise in free-exercise and non-establishment cases – and careful review of measures and actions that might compromise the structural integrity of our Constitution. This paper’s appreciative review of his contributions to the Court’s Religion Clauses doctrine will, it is hoped, serve as a reminder that cases involving tension or collision between political and religious authority implicate the “first principles” of our constitutional experiment no less than those involving federal interference with the states’ appropriate functions or regulatory overreach by Congress.

Posted by Rick Garnett on January 18, 2015 at 05:12 PM in Constitutional thoughts, Rick Garnett | Permalink | Comments (0)