Friday, January 31, 2014
Laptops, redux: Yeah, Science!
Here is a story from HuffPost about two studies by UCLA psychologists concluding that students who take notes by hand learn better than those who take notes by computer, both in short-term and longer-term learning. They found that computer users tend to engage in "mindless transcription," which gives them lots of notes, but did not learn as much, especially when testing focused on concepts rather than facts. In addition, at one point they specifically told laptop users not to simply transcribe what they were hearing, but it didn't work--the computer users were unable to stop themselves from trying to get verbatim notes.
Nomenclature for Change
Those of you who pore over the Federal Register may have noted the nomenclature changes of 77 FR 29002-01 on May 16, 2012, removing the term Medicaid "Recipient" from current CMS regulations and substituting Medicaid "Beneficiary." It took me a little longer to catch on to it but I have been thinking about it ever since because this change means the term "Beneficiary" now refers to all individuals who are eligible for Medicare or Medicaid services.
What's up with that?
The term "Medicaid Recipient" was found to be unflattering, apparently, and the move was to standardize and de-stigmatize the nomenclature. The Affordable Care Act, as written, actually had a number of provisions designed to simplify Medicaid as well as to standardize and federalize it. Most of those provisions survived the ACA's trip to the Supreme Court on the now optional Medicaid expansion.
This means a state near you, whether or not it has chosen to operate its own health insurance exchange, is busy completing its work on computerizing and simplifying Medicaid enrollment for its non-expansion Medicaid Beneficiary population. The dirty secret of Medicaid take up has always been its wide variability. We may be about to see the narrowing of that spread.
Time will tell how much simplifying and de-stigmatizing Medicaid will matter to take up rates. We have only a very little data on the previously eligible now coming forward to claim Medicaid Beneficiary status, but it will be interesting to watch. It is already interesting to watch a non-Medicaid expansion state like South Carolina predict a sixteen percent jump in Medicaid enrollment.
It has been a pleasure and a privilege to guest blog here this month. Thank you.
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College athletes, unions, and short-term employment
As has been reported, an undisclosed number of Northwestern football players (Go 'Cats) are trying to unionize (apparently with support of the athletics administration), having signed cards to initiate the NLRB process. Among the group is senior quarterback Kain Colter, who is done playing for NU. And all the other players will leave within 4-5 years, simply by the nature of college and a college football career.
Here is my question: What happens if all the signers leave an employer before the process (both before the NLRB and in federal court) is complete? Is there some sort of mootness doctrine that kicks in with changes in the people who signed cards? Is it overcome by new players joining in? Are there other unionized industries or workplaces that are so concretely and definitively time-limited in the term of employment as would a university and its football team?
The Contraceptive Mandate Cases: The Looong View
For those interested in the issues or context of the contraceptive mandate cases, may I recommend the new volume of the Journal of Contemporary Legal Issues, a symposium-centered journal published by the University of San Diego School of Law. The issue is titled "The Freedom of the Church in the Modern Era," and its contributors include critics and supporters (sometimes both in the same article) of the general concept of freedom of the church. The articles cover a range of periods and issues, including many discussions of the mandate cases and/or directly relevant legal questions in those cases. Alas, it's not available in PDF form or some other easily accessible format, but the issue is up on Westlaw.
Thursday, January 30, 2014
More on Jewish names
Here is a follow-up in Slate to the story on the origins of Ashkenazi Jewish last names. Apparently, much to the author's surprise, the story generated a lot of interest and commentary, some of it insisting that he was wrong about some things. The story corrects some errors and discusses the range of sources on the subject, some of which are less accurate than others.
The Hobby Lobby amicus briefs
The Becket Fund for Religious Liberty has collected them all, here. There are a bunch, and lots of profs (and prawfs) are in the mix. (I'm on this one, which is a response to the main argument set out in this one.) We'll see!
Wednesday, January 29, 2014
A decade of wardrobe malfunction
Next month marks the ten-year anniversary of the Janet Jackson/Justin Timberlake "wardrobe malfunction" at halftime of Super Bowl XXXVIII. ESPN The Magazine offers In the Beginning, There Was a Nipple, a retrospective on the "controversy."
There is a lot of interesting stuff on the FCC, then-Chair Michael Powell, and the regulation and punishment of broadcast indecency. CBS' owner was fined a little over $ 500,000, fines that ultimately were successfully challenged in the Second Circuit. The story quotes Powell as saying, essentially, that the commotion over 9/16th of a second is really silly, suggesting his position of public outrage at the time was more for politics and show than any real concern for the health and safety of our children. But he said he felt bound by law and lacking discretion to not pursue this fully. Powell also describes this is as the "last gasp" of the old broadcast regime and "last stand at the wall" for people who believe government can successfully keep objectionable material out of the home.
There also is a nice discussion of the different effects this had on Jackson and Timberlake and the obvious race and gender narrative that presents.
Tuesday, January 28, 2014
Committing to Reducing Inappropriate Antibiotic Prescriptions
A tiny study of physician antibiotic prescribing practices, discussed in a recent issue of JAMA, has set the health blogosphere on fire. "A Simple Way to Slash Unneccessary Drug Prescriptions" trumpets Scientific American. But is it really all that simple? After all, are the forces that shape inappropriate antibiotic prescription practice all that simple?
A small control group of health care providers from five Los Angelas community clinics agreed to make antibiotic prescriptions available only where medically indicated. They sealed the deal with what behavioral economists might call a commitment device -- a signed "Dear Patient" letter outlining the commitment was posted, along with the provider's photograph, in each clinical examination room used by the control group. Lo and behold, the control group brought their antibiotic prescription practices more closely in line with both the commitment and the practice's general standard while the non-control group actually lost ground.
You need to know that inappropriate antibiotic prescription practices used to be thought the low hanging fruit of evidence based medicine, until it turned out to be very difficult to alter clinician antibiotic prescription practices through evidence-based education and outreach. Now inappropriate antibiotic prescription practices are high hanging fruit, I suppose, enticing us with cost and health savings yet tantalizingly out of reach. What makes them hang so high is, in part, that patients have expectations shaped by decades of prescription practice now deemed inappropriate. That is why the letter (posted in both English and Spanish) is a "Dear Patient" letter and written, as I understand it, at a ninth grade level.
What role, then, do the exam room posters play in patient education about appropriate antibiotic prescription practice? Does an advance reading of the poster by patients and their families already begin to re-shape expectations of the clinical encounter even before it begins?
Daniella Meeker, the lead author on the JAMA study, speculates that the commitment device function of the posters made it easier for clinicians to say "no" or served as a reminder on how to respond to patient demands or requests. But, could it also have been that patients dampen their demands when they understand the background story is that antibiotic prescription practices in a given practice are circumscribed and that certain providers endorse the evidence-based approach with enough conviction that they choose to begin the conversation with patients about it during waiting time?
In short, is this a story about just learning to say "no" and mean it ( one take on the clinician's perspective) or is it a story about learning to think before asking (one take on the patient's perspective) or both or neither? As so often occurs when I read articles extolling health care nudges, I can't help but wonder who really got the nudge here?
Is Criticizing "Judicial Engagement" a "Straw Man?"
The Volokh Conspiracy's move to the Washington Post website is a big deal, and I wish it (them?) luck in the new venture. It seems harder to sign up to offer comments, and in some strange way I miss the comment traffic of old; I also hope the page will be revamped to offer more color. That said, the blog gets more traffic on an off-day than we here do in a year, and its bloggers are prolific, unlike some people I could mention. The move is impressive.
One thing I noticed today is that the VCWP blog posts have captions or sub-heds. I noticed it because a post today by Randy Barnett, titled "'Judicial engagement' is not the same as "'judicial activism,'" has the sub-hed "Critics of George Will and Clark Neily's defense of 'judicial engagement' are attacking a straw man." That phrase doesn't appear in the text itself. That's fine, of course. But I can't quite tell if the post itself is arguing this proposition. If it does, it's wrong.
Part of the problem is that the "critics" referred to in the sub-hed turn out to be one person, Ed Whelan. To paraphrase, Whelan objects to Neily's effort to popularize the phrase "judicial engagement" because he is invested in the idea of objecting to judicial "activism." In this, he is sort of like the New Deal-era Justices who later objected to decisions or reasoning in rights cases that appeared to raise the specter of the Lochner era. I don't know whether Barnett wrote the sub-hed, or whether he had other critics in mind, or what those critics said. But I will take the very minor liberty of treating the sub-hed as putting Barnett's argument more or less as a facial challenge, so to speak. As such, it cannot be right. Clearly there are non-straw-man reason to object to the phrase "judicial engagement" and the effort to popularize it--reasons that apply equally to the phrase "judicial activism" and efforts to popularize it.
"'Judicial activism' was devised to be pejorative," Barnett writes, "but it has little content." (I find the "but" interesting there. Not "and it has little content?") He then goes on to argue that "what 'activism' really means is improperly invalidating a law that is not really unconstitutional." (The first emphasis is mine.) This is to be contrasted with "judicial engagement," which Neily and Barnett supply with a definition. He adds, "Instead of 'judicial conservatism,' which admonishes judges to put their thumbs on the scales to uphold laws, we favor 'constitutional conservatism' in which judges are restrained to follow the Constitution, whether this leads to upholding or invalidating legislation."
Is there a difference between "judicial activism" and "judicial engagement," or between "judicial conservatism" and "constitutional conservatism?" Sure. By definition there is--and I mean that phrase literally. Of course, there would be no difference if you defined both phrases to mean the same thing. And there would be a difference if you called one thing "turkey on rye" and the other "Grabthar's hammer." What it "really means" would depend on the content, not the label. Discussing the definitions is useful, kind of; discussing the phrases is not. Action X is good or bad, right or wrong, regardless of whether you call it, say, the "nuclear option" or the "constitutional option" or "the Corbomite Maneuver." Barnett (or Neily) solves the "little content" problem with "judicial activism" by supplying content. If he does not solve it there, then he sure as hell does not solve it for "judicial engagement." It certainly cannot be right in any terribly useful sense to write: "'Judicial engagement' is both a less pejorative and more accurate label for how a constitutionally conservative judge should act." It is not terribly useful to use one placeholder to define and approve another placeholder; and any pejorative qualities will come from factors entirely outside the "real" meaning of any of these phrases.
So, depending on who the "critics" are and what they have to say, it is certainly no straw man to disdain the use of the phrase "judicial engagement," or "constitutional conservatism," any more than it is to disdain the use of the phrase "judicial activism" or "judicial conservatism." All you have to do is prefer things to words, or grappling with problems and ideas to doing public relations.
I suppose I should add a caveat to my post. If you care about public relations, then you may indeed care about these issues. If you are engaged in advocacy, you may care about them. If you want to be a moral entrepreneur, you may care about them. But certainly caring about them is not an academic or truth-seeking function as such, as I understand those roles. (There is no "truth" about the "real" meaning of phrases like "judicial activism" or "judicial engagement.") An academic might be interested in analyzing those phrases, say as a matter of analyzing what moves or manipulates or crystallizes public opinion, or how phrases take on currency or lose it, or things of that sort; but an academic would certainly not, qua academic, be interested in pushing or popularizing a phrase for purposes that could best be characterized as propaganda. Richard Posner is fond of observing that in the intellectual realm, academics are less likely these days to be moral entrepreneurs. But I don't think he's making a value statement when he says that, and it may be a good thing on the whole that academics are less likely or less qualified to serve as moral entrepreneurs, or that the increase in the stringency and specificity of academic standards may hamper them from doing so.
I think people are entitled to argue about whether legal academics are closer to the advocacy side of things than other academics (at least ideally; obviously lots of academics in other fields are propagandists). They may also argue about whether academics can engage in propaganda (or norm entrepreneurship, or whatever you want to call it), or at least whether they should, and if so subject to what limits. Obviously many individuals engage in academic work and propaganda or political activism. I'm speaking only to the academic side. From that side only, it seems clear to me that there are valid reasons to question the intellectual value of the phrase "judicial engagement," or of the very enterprise of coming up with and pushing such phrases.
Evaluating Online Vigilantism Redux
My previous post about online vigilantism attracted a number of thoughtful comments. Rather than respond to the various strands of analysis, I thought I'd write a follow-up post to try to frame with more precision some of the issues my original post raised.
As a threshold matter, one question is whether the examples I discussed -- Jamie Carillo's YouTube posting of a telephone confrontation with a teacher who sexually abused her; the actions of KYAnonymous in relation to the Steubenville rape case -- are even examples of vigilantism. One reason I discussed these examples in a post about vigilantism is simply that at some people seem to think of them as vigilantism, or at least headed in that direction (see here and here).
After some thought, it still seems to me that these are acts of vigilantism, at least based on the facts we currently know. (Several of the commenters disagree with me, and I welcome pushback on this.) But suppose we take the take the Oxford definition of vigilante as "a member of a self-appointed group of citizens who undertake law enforcement in their community without legal authority, typically because the legal agencies are thought to be inadequate." Jamie Carillo fits this definition: she publicized an event she believed was a crime because she thought legal institutions offered no recourse given that the relevant statute of limitations had run. KYAnonymous fits the definition too: although prosecutors were moving ahead in Steubenville, he believed that the public response was insufficient and wanted to call additional attention to a broader culture of sexual assault; the legal system was inadequate to accomplish these goals.
Some commenters saw a clear distinction between speech and vigilantism. I'm not sure I agree, or, to put it more precisely, I think that speech can be vigilantism. If we think of vigilantism as a means of enforcing extra-legal punishment, then speech can do that. Publicizing negative information about someone is a way of directing negative attention to them, with potentially serious real-world consequences for reputation and livelihood. Recall that Andrea Cardosa resigned her job after Carillo's video went viral. And this would have happened regardless whether the formal legal system was, or could have been, shaken into action. As one commenter to my previous post put it: "[P]ublicly calling someone a child molester is, in fact, extra-legal punishment. . . . That it was justified does not mean it was not vigilantism."
So if we agree, at least for the sake of argument, that these are acts of vigilantism, the question is how we should evaluate them. I don't think of vigilantism as being inherently positive or negative (although there seesms to be a range of opinion on this). But suppose we agree that at least some acts of vigilantism are socially valuable. In no particular order, here are some ideas that previous commenters suggested as factors in determining whether vigilantism deserves praise or condemnation:
- Whether the target of vigilantism engaged in heinous behavior that outweighed any concerns we might have with the vigilantism itself;
- Whether any laws the vigilante broke were themselves defective (i.e., the wiretapping statute in California);
- Whether the vigilante acted on her own behalf or that of others;
- Whether the background legal system is adequate or deficient;
- Whether the occasional act of vigilantism that we'd condone is outweighed by concern for creating a culture of vigilantism.
Perhaps the lesson in all of this is simply that more precision is needed when we use the word "vigilante," given that the word means rather different things to different people.
Monday, January 27, 2014
Stephen Glass and the the California Bar
The California Supreme Court on Monday unanimously denied the bar application of former journalist Stephen Glass (of Shattered Glass infamy), a case I wrote about a couple years ago. David Plotz of Slate, who watched this all up close (Plotz's wife, Hann Rosin, was an editor at TNR at the time) and who admittedly does not like Glass, has a sharp takedown of the decision. I am not surprised by the reversal (the lower panels had recommended admission, so I could not see the court taking the case just to affirm), although I am a bit surprised by the unanimity.
I don't do PR and I generally question many of the character-and-fitness rules as irrelevant to the practice of law, so I do not have a lot to say about whether the decision is right or wrong. There is a damned-if-you-do-and-damned-if-you-don't quality to the decision--the court dismisses many of Glass' efforts at rehabilitation and restitution as selfish, motivated by a desire to improve himself and taking place while he had pending applications to the New York or California Bars. As I said previously, lawyers and journalists do very similar jobs, so I understand the particular apprehension with this candidate. But Plotz has a good response, grounded in the adversariness of the legal system--what judge and what opposing lawyer is not going to keep the sharpest of watch when Glass is involved in a case, scrutiny sure to catch any efforts by Glass to repeat his sins.
RIP Randy Bezanson
Brian Leiter's Law School Reports brings news of the passing of Randall Bezanson, a longtime professor at the University of Iowa College of Law; I'm writing this in transit and don't have the link, but Brian's item provides a link to the statement from the dean at Iowa. I just wanted to add a quick word of tribute. My first, temporary job was as a visitor teaching constitutional law at Iowa. It was a great experience for many reasons, but Randy's presence was high among them. As a colleague he was very helpful in giving me tips and materials for my first time teaching the class. As a colleague he was generous in his time reading a draft paper on our mutual love, the First Amendment, and more than happy to recommend major surgery on the piece. And, as the Dean's message notes, he was always a fun, provocative presence at the lunch table, ready to start things off with a topic or question of the day. I still draw heavily on his writings, especially those on freedom of the press; my latest piece cites him repeatedly and I very much enjoyed his recent print debate with Eugene Volokh on freedom of the press. He was and is an influence, and a friend. He suffered through a long and difficult illness, and doubtless things looked different from close up; but from far away, it seemed as if he managed to do so with his vitality much undimmed. I will miss him.
Sunday, January 26, 2014
Six million Jews (or six million Jewish people)
Sunday's New York Times reports on a new book titled And Every Single One Was Somone, which consists of the word "Jew" repeated six million times in 5.5-point type. From normal distance, it is impossible to see each word, but only a patterned mass; you have to look more closely to see each "Jew." But even then, are you still seeing something de-humanized and reduced to that particular word? Is this a context in which the word is offensive, because we know how it was being thought of by the people (the Nazis) using it?
Navigating the ACA With the Newly Insurable
Lat week, Judge Ortrie Smith( in St. Louis Effort For AIDS v. John Huff) granted a preliminary injunction against the enforcement of Missouri's Health Insurance Marketplace Innovation Act as inconsistent with the Affordable Care Act. The HIMIA prohibits federally qualified health insurance navigators from discussing the full range of insurance products and programs available to Missourians unless these individuals also become qualified as licensed insurance brokers in the state. Holding that "the state law obstructs the federal purpose," Judge Smith noted that HIMIA put ACA qualified navigators between a rock and a hard place, unable to comply fully with the HIMIA unless failing in compliance with the ACA and its implementing regulations.
Roughly nineteen states have taken advantage of the ACA's invitation to impose additional requirements on ACA qualified navigators but only a few have gone so far as to require insurance broker licensing, something specifically called out as unnecessary under the statute and its implementing regulations. It is possible that the state's insurance brokers played some role in shaping of Missouri's statute. The revenge of the disintermediated can be a fearsome thing.
Tennessee has a similar statute that met a similar fate in October of last year (League of Women Voters vs. McPeak). But there are lots of other state specific navigator requirements short of full broker licensure requirements that appear to correlate with lowered insurance counseling and application assistance for the newly insured in some states.
Sara Robsenbaum and others at GW have just released a study comparing health center outreach and enrollment activities. Categorizing states into full implementation and restrictive states and studying the range of assistance from information provision to application assistance to guidance on how to seek legal help for an appeal, it turns out that the health centers in restrictive states do less for the newly eligible as they navigate the health insurance application process and follow up less on what they do.
Why does this matter? We are, as a group, weak in health insurance literacy and the newer we are to insured status, the weaker our knowledge. The exchanges offer products of considerable complexity. Those new to health insurance selection (and even some of those who are not) may be, for example, weak in understanding the implications of geographically limited provider networks, one of the hallmarks of exchange products.
Those who are newly eligible from among historically uninsured populations are most likely to seek the clinical encounter at federally-qualified community health centers, precisely where the variance in degrees of health insurance application assistance and follow up is so striking.
One of the great ironies of health law is in considering how health as well as health insurance is unevenly distributed in our society. Now we need to add health insurance counseling to that list.
Saturday, January 25, 2014
Evaluating Online Vigilantism
Last week, Jamie Carillo posted a video to YouTube titled "A call to my childhood rapist teacher." The remarkable video includes a three-minute phone call to Andrea Cardosa, then an assistant principal at Alhambra High School, who Carillo accused of sexually abusing her beginning when Carillo was twelve and continuing for several years. During the phone call, Carillo asks: "Do you realize that you brainwashed me and that you manipulated me and that what you did was wrong?" "Yes, and I regret it," Cardosa says, later adding, "I was just trying to help you."
Carillo explained in the video that it took her years to gather the courage to confront Cardosa, and by that time the statute of limitations had expired. (Or so she thought -- see here for one explanation of why that may not be the case.) Carillo decided to record the call and post the video when she realized that Cardosa was now an assistant principal because she wanted to keep her away from other children. Carillo's YouTube video went viral, and a second alleged victim, "Brianna," has since come forward with allegations that Cardosa abused her in a similar way. Cardosa resigned from her position hours after Carillo's video was posted. As I'm writing this Cardosa has not been charged with a crime, but law enforcement has stated that an investigation is underway. (Ongoing coverage is here.)
The posting of Carillo's video coincided with a fascinating article by Emily Bazelon about online anti-bullying activists, some of whom are members of Anonymous. I won't summarize the article -- because everyone should read it if they haven't already -- but among other things, the article describes the involvement of Anonymous in events surrounding the Steubenville rape case. After hearing of a claim that other rapes had been covered up in Steubenville, an individual using the handle KYAnonymous "put out a call for evidence and soon received a video, which he posted on YouTube, of another football player talking for 12 minutes about the assault on the victim." Bazelon explains: "when the two teenagers were convicted last March, KYAnonymous . . . got credit in the online community for helping to prosecute the perpetrators in the court of public opinion."
Both Carillo and members of Anonymous such as KYAnonymous could be described as online vigilantes. Miriam-Webster defines a vigilante as "a self-appointed doer of justice"; Oxford Dictionaries defines a vigilante as "a member of a self-appointed group of citizens who undertake law enforcement in their community without legal authority, typically because the legal agencies are thought to be inadequate." Moreover, both Carillo and Anonymous allegedly broke the law in their vigilantism: Carillo by recording a phone call without permission in California, a state that requires the consent of both parties for recording; KYAnonymous by hacking into the football team's website and posting unproven accusations on a website. Carillo's lawbreaking is if anything more straightforward; KYAnonymous has denied the allegations. Other Anonymous members have freely acknowledged that they sometimes commit crimes.
Yet Carillo has been almost universally applauded for coming forward, with various sources praising her courage, while the reaction to KYAnonymous has been more mixed, to say nothing of Anonymous more generally. There are obvious ways of distinguishing these particular situations, but I'm less interested in these specific instances than I am in thinking about vigilantism more generally.
In a follow up interview, Bazelon said of Anonymous: "I think each operation, or op, needs to be judged individually." But that's not (necessarily) inconsistent with developing general principles for evaluating the social value of vigilantism. When should we condone vigilantism, and when should we censure it? Should it matter whether the vigilante broke the law? And if breaking the law in the course of vigilantism isn't the test, then what is?
Friday, January 24, 2014
Steven Smith's "The Rise and Decline of American Religious Freedom"
Oh, happy day . . . my actual copy of Prof. Steven Smith's latest book, The Rise and Decline of American Religious Freedom arrived yesterday. I read it in draft, before, and -- entirely apart from the wonderfully engaging prose -- I think it's a must read for anyone interested in the law-politics-society-faith-religion thing. Here's a bit from the Amazon blurb:
Familiar accounts of religious freedom in the United States often tell a story of visionary founders who broke from the centuries-old patterns of Christendom to establish a political arrangement committed to secular and religiously neutral government. These novel commitments were supposedly embodied in the religion clauses of the First Amendment. But this story is largely a fairytale, Steven Smith says in this incisive examination of a much-mythologized subject. He makes the case that the American achievement was not a rejection of Christian commitments but a retrieval of classic Christian ideals of freedom of the church and freedom of conscience.
As Andy Koppelman puts it, on the back cover, this is "one of the most important books on religious liberty in years." (No doubt this was one of the others he had in mind!)
Stanley Fish and the Meaning of Academic Freedom
[TV announcer's voice]:
If you're in the Miami area today, stop by for the FIU Law Review Symposium, Stanley Fish and the Meaning of Academic Freedom. The event runs from 4-6 p.m. at the College of Law. Speakers include Fish, Robert Post, Fred Schauer, and Larry Alexander; the focus is on Fish's new book, Academic Freedom: From Professionalism to Revolution.
Thursday, January 23, 2014
A random nomenclature question:
Is it offensive to call someone "a Jew"simply in referring factually to that person's religious/ethnic background (in other words, not saying it with a sneer or to further an anti-Semitic remark). The alternative would be to say "He's Jewish." Is one OK and the other not? If so, how is it different than saying "He's a Republican" or "He's a liberal" or "He's an Elk." Is there a difference when talking about political categories as opposed to racial/ethnic/religious categories.
I grant that it would be jarring to hear someone say it that way, but that is because it is uncommon--we generally say "he's Jewish". But is it uncommon because of its offensiveness?
Wednesday, January 22, 2014
As the FOIA Turns: Access to Physician Specific Medicare Payment Data
A lot has happened in health care since 1979 but one thing has been constant: Freedom of Information Act requests to the Centers for Medicare & Medicaid Services for individual physician identified Medicare payment data have been denied. A 1979 United States Middle District of Florida injunction prohibiting the release of Medicare data that would identify specific physicians in the name of protection of physician privacy interests (under the Privacy Act of 1974 and in response to Florida Medical Association, Inc. v. Dep't of HEW) was lifted in May of last year by Judge Marcia Morales Howard. As the Department of Health and Human Services' (and its predecessor agencies') position had always been that the departmental policy was in response to the FMA decision, a very longstanding injunction was ripe to be lifted.
The Dow Jones Company, parent of the Wall Street Journal, along with the Center for Public Interest had fought for this access for years as part of a campaign to promote the use of the data to expose fraud and abuse.
The Centers for Medicare & Medicaid Services then sought public comment on the scope of data release, receiving numerous comments. The American Medical Association, perhaps bowing to the now inevitable, focused on the "reliable and effective use of this information." This appears to have meant that the data should not be posted on healthdata.gov along with other newly transparent health system data for for the public and the media to view via the internet.
On January 15 of this year came the news that CMS will, in a few months, begin to respond to FOIA requests for Medicare physican payment data on an ad hoc basis using a balancing test focused on Medicare beneficiary privacy interests. Aggregated data will also begin to be made available.
Let the FOIA requests commence. We won't know what CMS has in mind until the Medicare payment data requests of long-gone journalists are renewed and the newly ad hoc responses are received.
SCOTUS on Declaratory Judgments
SCOTUS today decided Medtronic, Inc. v. Mirowski Family Ventures, a unanimous decision through Justice Breyer. The Court held that in a declaratory judgment action brought by a would-be patent infringer seeking a declaration of non-infringement, the patentee bears the burden of persuasion of infringement, just as it would if it had brought a coercive action for infringement. There also is a brief discussion on Skelly Oil and how to define a when a declaratory judgment action arises under federal law (in this case, federal patent law).
Monday, January 20, 2014
Recognizing Race on Martin Luther King Day
Over at Constitutional Law Prof Blog, Ruthann Robson has an interesting post about the way judges quote Martin Luther King, Jr. The claim -- relying on a fascinating article by Jeremiah Goulka -- is that when judges quote MLK, they are usually doing so in the course of reaching a result that MLK would not support.
This discussion brought to mind a topic that I've discussed during my previous visit to Prawfs. In my article Racial Capitalism, which came out last June, I defined racial capitalism as the process of deriving value from racial identity. My article focused, in particular, on white people and predominantly white institutions deriving value from non-white racial identity. An easy example is a school that photoshops a black student into its admissions brochure, or -- as a less extreme measure -- overrepresents the percentage of non-white students in its promotional materials.
In the article, I identify a judicial variant of racial capitalism, influenced by Justin Driver's work Recognizing Race. (In Racial Capitalism, I discuss this on pages 2197-98.) In a nutshell, Driver's work uncovers substantial variation in the circumstances when courts do and don't choose to explicitly identify the race of people discussed in their opinion. In Ricci v. DeStefano, for example, the Supreme Court held that the New Haven fire department's decision to ignore standardized test results that disparately affected racial minorities violated Title VII. Justice Kennedy's majority opinion discussed the testimony of three experts on standardized testing, yet only identified the race of one of the three -- the one whose testimony best supported the majority's result -- by stating that he "is black." This is particularly striking because one of the other experts was also black, and yet the majority did not identify her by race. As Professor Driver trenchantly explains: "This identification is striking because, in a decision that cautions against the dangers of racially disparate treatment, it treats Lewis disparately by race."
Judges identify -- or ignore -- racial signifiers all the time, in ways that subtly buttress the result they reach. In Whren v. United States, for example, the Court held stopping a motorist did not violate the Fourth Amendment so long as the officer had probable cause to believe that the the motorist violated traffic laws, even if an objectively reasonable officer would not have stopped the motorist in that situation. The holding also meant that it didn't matter whether the traffic stop was pretextual so long as there was probable cause to believe that a traffic violation of some sort had occurred. In the opinion, Justice Scalia identified the officer who arrested Whren as "Officer Ephraim Soto" and referred to him by name three times within the first two pages of the opinion. While I have not been able to discover Officer Soto's racial or ethnic identity -- or, perhaps more importantly, how others would have perceived his race or ethinicity -- it appears relatively uncontroversial that Soto is a Spanish surname. By emphasizing Officer Soto's surname, then, Justice Scalia implies that Soto might also be non-white, thereby distancing the events in Whren from the common pattern of white officers harassing black motorists that provoked outcry from civil rights advocates.
Of course, none of this is limited to judges. More generally, it's quite common for white people and predominantly white institutions using the words of deceased black leaders to gain legitimacy and shield themselves against claims of racism. Just today, Sarah Palin posted the following message on her Facebook page:
"Happy MLK, Jr. Day!
"I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character." – Martin Luther King, Jr.
Mr. President, in honor of Martin Luther King, Jr. and all who commit to ending any racial divide, no more playing the race card."
Although of course I can't be sure, my guess is that MLK probably would not want his words used by Sarah Palin to chastise our nation's first black president for "playing the race card" (whatever Palin means by that).
Of course, Palin is far from alone. Some conservatives have recently dubbed themselves "Frederick Douglass Republicans." As one forthrightly explained, if you invoke the name of a well-respected black family member like Frederick Douglass, "you can trump the race card."
These various examples are unified by the theme of white people and institutions invoking race -- whether that of a famous black person such as MLK, or that of a participant in a legal drama -- as a way of achieving moral legitimacy and shielding whatever argument they happen to be making from charges of racism. Whether this is effective is, of course, another story, although at least sometimes it appears to be. (When I last checked, Palin's post had over 32,000 "likes.") Whether sucessful or unsuccessful, however, this use of non-white identity by white people is worth evaluating critically. As Goulka says in the conclusion to his piece, "on this MLK Day and every other day, whenever a court invokes Dr. King," -- and I think this extends to invoking non-white people more generally -- "make sure to judge it by the content of their characterization."
Maryland Goes Global
On January 10, 2014, the state of Maryland and the federal Centers for Medicare and Medicaid Services announced the re-invention of Maryland's all payer hospital rate-setting system. Maryland's 36 year experiment with operating our only all-payer hospital rate regulation system where third parties pay the same for hospital services is about to enter a new phase.
Maryland is staying with an all-payer model but it is moving from fee-for-service reimbursement to a global payment model. The biggest difference is that Maryland's hospital price setting system will continue to operate while adding a cap on all hospital spending. Hospital spending growth, linked to projected overall growth in the state economy, should not exceed 3.58 percent for the next five years.
Maryland's all payer hospital rate-setting system, as originally configured, has been a remarkable example of innovation and experimentation these last several decades. It has also been an important reminder that health care payment system innovation may actually rise from below. Robert Murray offers a good description of its origins and operation here.
But Maryland's all payer hospital rate-setting system has struggled in recent years to deliver on its cost-containment goals. Over time, even one of the boldest examples of payment system innovation struggled with the weight of a procedurally driven health care system. In short, there were still few incentives for keeping individuals healthy outside of the hospital and too many rewards for treating problems in the most expensive venue. And so Maryland's hospitals begin their great migration to wellness centers.
If this works, physician office visits and nursing homes get the treatment next. If it fails, Maryland reverts to the default administered pricing system. If this works, we might see some version of this (combined with aspects of payment system reform from Massachusetts and Vermont) on a much larger scale.
Sunday, January 19, 2014
Preparing for Volcanic Activity in New Orleans
On December 27, 2013, the Centers for Medicare & Medicaid Services released a proposed rule that would add emergency preparedness requirements to the conditions of participation for various program participants, particularly hospitals, long term care facilities, and ambulatory surgical centers.
One requirement of the disaster planning described in the proposed rule particularly caught my eye: risk assessment and planning. It sounds almost self-evident that, first, each facility should assess its risk and identify the most likely threats to operational integrity.
After Katrina, the failure of a number of health care facilities to assess the risk of a flood whose high water mark would likely render ill-situated basement emergency generators inoperable has been made manifest. In hindsight, the story of New Orleans' Memorial Medical Center's 101 page bioterrorism plan and 11 page hurricane plan is being told all over our nation via Sheri Fink's Five Days at Memorial.
Interestingly, Fink's book probed the disaster preparedness committee at New Orleans' Memorial Medical Center about its work. From what she recounts, it seems likely they misunderstood their assignment unless, of course, they understood it all too well. They measured present preparedness against recent past performance, apparently unconcerned with looking at the likelihood of floods at or near historic levels or, even, at or near levels outside the living memory of anyone currently on staff. Instead, they dutifully prepared for a bio-terrorism attack and checked off their self-assessed very highest level of readiness for a major hurricane.
Fink does a reasonably good job of considering why the disaster preparedness work at Memorial and elsewhere could be both so strangely truncated and oddly self-re-enforcing. Along the way she teaches the reader a few things about hospital accreditation in the United States.
Hospitals are licensed by the government but such licensing regimes are typically an exercise in governmental deferrence to what was then called the Joint Commission on Accreditation of Healthcare Organizations (now known simply as the Joint Commission). JCAHO's new to the time emergency standards emphasized just what the Memorial disaster preparedness committee did.
Hospital accreditation is a story of regulatory capture writ large. CMS's current attempt to use the conditions of participation requirements to turn the tide in this one way should be interesting to watch.
Oh, and the disaster preparedness committee also indicated they were completely ready for volcanic activity at Memorial. Good to know.
Friday, January 17, 2014
JOTWELL: Mullenix on Landsman-Roos on precertification duties
The latest essay from JOTWELL's Courts Law is from Linda Mullenix (Texas) reviewing a student note by Nick Landsman-Roos', Front-End Fiduciaries: Precertification Duties and Class Conflict.
Settlement in § 1983 colonoscopy case
(Sorry, I couldn't figure out a better title). David Eckert, who was subjected to an escalating series of medical procedures by police officers searching (unsuccessfully) for drugs, has settled his § 1983 action for $ 1.6 million. I previously wrote about the case and have been using the complaint in my Civ Pro class. I must admit to being slightly disappointed that we never got to hear the officers trying to argue that the law prohibting state-imposed colonscopies without probable cause was not clearly established.
Thursday, January 16, 2014
Gender Diversity and Same-Sex Marriage
The recent district court decisions regarding same-sex marriage in Utah and Oklahoma have drawn a great deal of attention in the past few days. The Tenth Circuit is a particularly interesting venue for adjudication given what we might infer about the ideological composition of the court. Currently the court has five Republican appointees and five Democratic appointees, but just today nominees Carolyn McHugh and Nancy Moritz were voted out of the Senate Judiciary Committee, which would make the court seven-to-five in favor of Democratic appointees. While I don't want to overstate the importance of a nominee's political background -- which I think has sometimes been exaggerated in the same-sex marriage cases -- the potential new additions to the court would create a particularly engaging scenario were the Tenth Circuit to take the case en banc.
Rather than retread ground others have covered, I want to focus on a particularly odd argument that the state of Utah recently raised in its brief to the Supreme Court requesting a stay of the district court's judgment pending appeal. Utah makes three arguments. The first two are familiar to everyone who has followed the same-sex marriage cases: that "traditional marriage marriage reinforces responsible procreation" and that "children generally fare best when reared by their two biological parents in a loving, low-conflict marriage." Others have addressed -- and in my view, pretty thoroughly debunked -- these arguments.
The third argument might charitably be described as more creative. The state argues that "society has long recognized that diversity in education brings a host of benefits to students," and "[i]f that is true in education, why not in parenting?" If I read the brief correctly, the idea is that having one male and one female parent will provide children with benefits that surpass those provided by having either two male or two female parents. As the state puts it: "the combination of male and female parents is likely to draw from the strengths of both genders in a way that cannot occur with any combination of two men or two women, and that this gendered, mother-father parenting model provides important benefits to children" (emphasis theirs).
The first problem with this argument is that it relies on unexamined assumptions about gender. What, exactly, are the "strengths of both genders"? What strengths do women inherently have that men inherently lack? What strengths do men inherently have that women inherently lack? Within any two-person relationship, of course, the people involved will have different strengths. But these strengths map very loosely, if at all, onto gender. One can find both men and women who possess any conceivable personality trait, and who engage in any given part of the spectrum of child-rearing responsibilities. Some men are more nurturing than their partners, and so are some women. Some women are more aggressive than their partners, and so are some men. Some women stay home with their children, and so do some men. Some men cook and do dishes, and so do some women. Some women fix cars, and so do some men. All of this is potentially valuable in a marital or parenting arrangement. But none of it is inherently associated with gender. And so there's no reason to assume that a diversity of parental attributes is more likely to occur in an opposite-sex marriage than a same-sex one.
The second problem is that the "traditional marriage as gender diversity" argument draws an inapt parallel between education and marriage. Even if we agree that diversity is a good thing in education, that doesn't mean that the same holds true for marriage. Admitting a class of students involves bringing together hundreds or thousands of people with different characteristics and different life experiences. No individual student is presumed to bring any specific quality to the table based on gender, race, sexual orientation, class, or other attributes. Rather, in the aggregate, a diverse student body provides benefits because bringing together enough people from different backgrounds improves the learning experience. In contrast, marriage is simply a different endeavor. At least as the state's brief envisions it, marriage involves only two people, and the claim that traditional marriage promotes gender diversity inherently requires a presumption that men will behave one way and women another.
The argument is also poor strategy. Several of the justices on the Court are openly contemptuous of diversity as a rationale for affirmative action. In Grutter v. Bollinger, for example, Justice Thomas slightingly described diversity as "more a fashionable catchphrase than it is a useful term," and a school’s interest in diversity as an "aesthetic" desire to "have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them." These are not exactly the words of a justice looking to provide additional support for the diversity rationale by tethering it to arguments against same-sex marriage.
And finally, it seems to me that the argument works far better as an argument in favor of certain types of relationships that lead to non-traditional parenting -- specifically, polyamory and parenting arrangements that involve more than two people. Assuming for the sake of argument that two people of different genders bring different qualities to the table, and that this is good for children, wouldn't it be even better for a child to have three parents? Or five parents? Preferably with at least one parent who rejects binary notions of gender, and chooses to identify as neither a man nor a woman? If we assume that Utah is right about the benefits of gender diversity in marriage, it seems to me that such parenting arrangements would provide even more of the gender diversity benefits that Utah envisions. But I seriously doubt that this line of reasoning is what Utah intends.
In short, this argument seems like a pretty bad one -- at least insofar as it's intended to support a prohibition against same-sex marriage. And perhaps it's an indication of exactly how far marriage equality opponents are reaching these days to find support for their position.
"Alta is for skiers" . . . unconstitutional?
So claim "four snowboarders and a Utah nonprofit" in a recently filed lawsuit.
“Because of Alta’s relationship with the government, Alta’s actions must comply with the Constitution’s Equal Protection Clause,” says attorney Jonathan Schofield in the press release. “Alta’s prohibition against snowboarders excludes a particular class of individuals from use and enjoyment of public land based on irrational discrimination against snowboarders, which denies them equal protection under the law as guaranteed by the Fourteenth Amendment.”
Like the man said, I guess: "Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate."
SCOTUSBlog: Opinion in Ray Haluch Gravel
I have a recap at SCOTUSBlog of yesterday's opinion in Ray Haluch Gravel v. Central Pension Fund, which held that a district court decision that resolves the merits but not a petition for attorney's fees is a final and appealable order, triggering the 30 day clock for filing an appeal. The Court continues to do procedure, even getting it right sometimes.
Stanley Fish and the Meaning of Academic Freedom
FIU Law Review will host Stanley Fish and the Meaning of Academic Freedom next Friday, January 24, 2014. This is a roundtable discussion of Fish's new book, Versions of Academic Freedom: From Professionalism to Revolution. Participants, besides Fish, are Robert Post (Yale), Larry Alexander (San Diego), and Fred Schauer (Virginia). The Review will publish the discussion, papers from the participants, and a micro-symposium on the book.
If you are in Miami, please come for what should be a great program.
Sincere marijuana reform question: exactly what are DEA officials "scared" of?
The question in the title of this post, which I am now posting to all the blogs in which I now participate, is my sincere reaction to this new Washington Post article headlined "DEA operations chief decries legalization of marijuana at state level." Here is the context:
The chief of operations at the Drug Enforcement Administration on Wednesday called the legalization of marijuana at the state level “reckless and irresponsible,” warning that the movement to decriminalize the sale of pot in the United States will have severe consequences.
“It scares us,” James L. Capra said, responding to a question from a senator during a hearing focused on drug cultivation in Afghanistan. “Every part of the world where this has been tried, it has failed time and time again.”
Capra’s comments marked the DEA’s most public and pointed criticism of the movement toward decriminalization in several states, where local officials see it as an opportunity to generate tax revenue and boost tourism....
Capra said agents have watched the early days of legal marijuana sales in Colorado with dismay. “There are more dispensaries in Denver than there are Starbucks,” he said. “The idea somehow people in our country have that this is somehow good for us as a nation is wrong. It’s a bad thing.”
Capra said that senior DEA officials have faced uncomfortable questions from law enforcement partners abroad. During a recent global summit on counter-narcotics in Moscow, he said, he and the head of the DEA were at a loss to explain the loosening drug laws. “Almost everyone looked at us and said: Why are you doing this [while] pointing a finger to us as a source state?” he said. “I don’t have an answer for them.”...
Capra said he worries about the long-term consequences of the national mood on marijuana, which law enforcement experts call a gateway to more dangerous drugs. “This is a bad experiment,” he said. “It’s going to cost us in terms of social costs.”
Let me begin by saying I respect all those who work in the DEA and other law enforcement agencies dealing with illegal drug issues, and I am certain all those who do this work have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will. But it is for that very reason that I ask this question about exactly what has DEA officials "scared": I sincerely want a much better understanding of what "social costs" of reform are being referenced here so that I can better assess for myself how I think these potential "social costs" of state-level marijuana reform stack up to the existing "social costs" I see due to current pot prohibition laws and norms.
That said, I think I might be able to help DEA officials avoid "being at a loss" to explain loosening drug laws in the US to their international friends in Moscow or elsewhere. Here is what I suggest DEA officials say: "The United States of American is an exceptional nation that, in President Lincoln's words, was "conceived in Liberty" and its citizens recently have become ever more skeptical about the growth of government's coercive powers and ever more concerned about paying high taxes for government programming perceived to be ineffectual. Thus, just as the people of America were the first to experiment seriously with a constitutional democracy (which has worked out pretty well), now some of the people of America are eager to experiment seriously with a regime of marijuana regulation rather than blanket prohibition."
This account of why polls show ever greater support for marijuana legalization is my sincere understanding of why so much drug reform activity is going on now in the United States. The current "Obama era" is defined by a period of relatively tight budgets, relatively low crime, and yet still record-high taxing-and-spending in service to criminal justice programming. These realities, especially in the wake of the Tea Party movement and other notable libertarian responses to the enormous modern growth of state and federal governments, have more and more Americans thinking we should be open to experimenting with a regime of marijuana legalization and regulation rather than blanket prohibition.
It is quite possible, as the DEA official suggests, that "this is a bad experiment." But even if it is, the experiment does not "scare" me, in part because I have a hard time fully understanding what potential increased social costs should make me or others truly "scared." More importantly, I have enormous confidence that, if the social costs of marijuana reform prove to be significant, the American people will realize pot reform is "a bad experiment" and will again change its laws accordingly. Indeed, this is precisely the experiences we have seen with our legal experiments with other drugs throughout American history:
roughly 100 years ago, we experimented with national alcohol Prohibition, but thereafter discovered this was bad experiment due to a variety of social costs, and then went back to a regulatory regime for this drug, and have in more recent times kept tightening our regulatory schemes (e.g., raising the drinking age from 18 to 21), as drunk driving and other tangible social costs of alcohol misuse have become ever more evident;
roughly 50 years ago, we experimented with nearly everyone have easy access to, and smoking, tobacco nearly everywhere, but thereafter discovered this was bad experiment due mostly to health costs, and then have been on a steady path toward ever tighter regulation and localized prohibition (e.g., The Ohio State University just became a tobacco-free campus), as lung cancer and other health costs of tobacco use have become ever more evident.
I emphasize these historic examples of American drug experimentation because it is certainly possible to lament the harms produced along the way or the enduring "social costs" of having tobacco and/or alcohol still legal. But it is also possible to conclude, as I do, that what makes America both great and special — dare I say exceptional — is that we persistently maintained our fundamental commitments to freedom, democratic self-rule and the rule of law throughout these experiments. Consequently, this modern era's new round of American drug experimentation has me excited and intrigued to watch unfold the next chapter of the American experience, and I am not "scared" by the marijuana reform movement because they it strikes me as a further vindication of our people's fundamental commitments to freedom, democratic self-rule and the rule of law.
But maybe I am just way too high on the idea of American exceptionalism to have a sensible and sober understanding off all the potential harms and "social costs" that are apparently scaring DEA officials. And, as I said above, I readily acknowledge that all those who work on the front lines of the drug war have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will. But, again, that it why the question in the title of this post is sincere: I genuinely and really want to have a much better understanding of what has DEA officials "scared" so that I can sensibly temper my excitement and optimism about modern marijuana reforms.
I fear that responses to this post could become snarky or ad hominem real quickly, but I hope all readers will tap into the spirit of my inquiry and really try to help me understand just what potential social costs of modern marijuana reform could lead those in the know to be "scared" as the quote above suggests. And I am posting this query in all five blogs I work on these days because I am eager to get wide input and as many diverse insights on this question as possible.
Quick thoughts on personal jurisdiction
A few thoughts on personal jurisdiction following Tuesday's decision in Daimler v. Bauman, an 8-0-1 opinion by Justice Ginsburg, with Justice Sotomayor concurring in the judgment. Here is a good recap/summary.
1) I think the majority got it right. It clarified what it said three years ago in Goodyear--general jurisdiction is appropriate only if the defendant has continuous and systematic contacts that render it at home in the forum state, which usually means state of incorporation and principal place of business. The Court rejected the common lower court approach, still coming even after Good Year, applying general jurisdiction where an entity "engages in a substantial, continuous, and systematic course of business." The Court called this "unacceptably grasping," as it means any large corporation is subject to general jurisdiction pretty much nationwide.
2) The Court did leave open the possibility that a corporation could be subject to general jurisdiction in states other than incorporation and P/P/B, although there were strong hints this would be rare. The analysis would depend not only on the corporation's contacts with the forum, but also its contacts with other fora--the inquiry is whether the corporation is at home in the state--if it just does a lot of business everywhere, it is not at home there. The civ pro listserv jumped to the example of Boeing in Washington State--Boeing is incorporated in Delaware and headquartered in Illinois, but does most of its work in Washington.
3) In footnote 20, the Court erased any doubt that the two-step approach to personal jurisdiction everyone learned in law school (1) contacts 2) reasonableness only if there were contacts) remains the proper framework, but only for specific jurisdiction. There was some doubt about this after Nicastro, where all three opinions seemed to conflate the two prongs and Kennedy seem especially averse to jurisdiction based on some sense of convenience. But Kennedy signed onto the footnote here.
4) This was the point of departure with Justice Sotomayor, who wanted to apply the two-step approach even to general jurisdiction. The majority said that asking whether it is reasonable to subject a defendant to suit in its home would be superfluous.
5) This is a good teaching case. Justice Ginsburg starts with Pennoyer and the evolution of personal jurisdiction and spends time on the development and differences between specific and general jurisdiction. Ginsburg did the same thing in Good Year, but she really draws it out here. In teaching thiss area, I cover International Shoe, then introduce and define some concepts before diving into the 1980s cases beginning with World Wide. Ginsburg's discussion in Daimler will work well for introducing the two types of personal jurisdiction.
6) The one thing the Court did not resolve is when and how the contacts of a subsidiary can form the basis for gaining jurisdiction over a parent. The plaintiffs had tried to get Daimler in California through Mercedes Benz USA, which actually conceded general jurisdiction in California (ironically, the Court's ultimate analysis means MBUSA is not subject to general jurisdiction in California, since it is incorporated in Delaware and has its PPB in New Jersey). So what happens if Daimler is sued in, say, New Jersey, where MBUSA is "home"? Does that mean the parent is subject to general jurisdiction? Or will the Court say that the parent is only home in its own state of incorporation/PPB (which may not even be in the US)? Stay tuned.
Wednesday, January 15, 2014
Fontana on Jewish athletes
David Fontana (GW) has a piece at HuffPost on The Return of the Jewish Athlete, discussing some sociological and demographic causes for the recent revival (relatively speaking, of course) of Jewish athletes. These include increasing intermarriage, new Jewish immigration, and increasing populations in suburban and exurban communities and growing areas such as the Southwest. He also pays note to Northwestern's Aaron Liberman, a 6'10" center who wears a yarmulke and played high school basketball at a Yeshiva, earning the nicknmae "The Jewish Dwight Howard."
Tuesday, January 14, 2014
Lawsuit over George Washington Bridge closings
The first lawsuit arising from the politically motivated closing of the George Washington Bridge was filed last week and John Culhane explains how more could be coming. This one is a purported class action by six plaintiffs who claim they were stuck in traffic on the bridge and late for work, causing them to lose wages and suffer other economic harms. Defendants are Christie, his former aide, two Port Authority officials, the Port Authority, and the State of New Jersey. It's a really poorly drafted complaint and kind of hard to figure out, with a lot of boilerplate and legal conclusions signifying nothing.
It does not identify any of the rights or sources of rights asserted. The first three counts appear to be § 1983 claims for 14th Amendment Substantive Due Process, Right to Travel, and failure-to-supervise/failure-to-train by Christie and the two entities. But this creates problems a number of problems. The plaintiffs cannot sue New Jersey and the Port Authority, which are state entities not subject to suit under § 1983. I suppose the conduct is conscience-shocking, although I'm not sure the right to travel includes the right to travel quickly or to get there on time. I'm also not sure Christie is in a supervisory relationship to the Port Authority workers (as opposed to the former aide) for failure-to-train purposes. And as for qualified immunity, is snarling traffic as part of a political vendetta equivalent to selling foster kids into slavery (the Posnerian paradigm of an obviously clearly established right for which no prior case law is necessary)?
Culhane gives the suit a chance, at least as a matter of state tort law. Because the alleged conduct was intentional, the plaintiffs may get around the economic loss rule. But since most of the complaint seems to be making constitutional claims, I am not sure how much that matters.
For Dying Out Loud
Emma G. Keller's article about Lisa Bonchek Adams' tweeting about her life with a terminal illness has prompted a firestorm of debate about privacy and dignity on the internet. Lisa Bonchek Adams' twitter feed may be visited here: https://twitter.com/AdamsLisa/status/421005045929619456. I wish I could link to Emma G. Keller's article, but I can only share with you where it used to be posted: https://www.theguardian.com/commentisfree/2014/jan/08/lisa-adams-tweeting-cancer-ethics and direct you to her husband, Bill Keller's gloss on the article here: https://www.nytimes.com/2014/01/13/opinion/keller-heroic-measures.html?_r=0.
Although Bill Keller's article appears to be attracting much of the heat in the blogosphere, it is Emma Keller's article that is worth the debate because I think it sheds light on who we are as a people. She analogizes funeral selfies to terminal illness tweeting and frames the poignant question of whether a terminally ill individual is morally suspect for "dying out loud" with some 10,000 tweets generated over Lisa Adams' several year journey.
Interestingly, the terminal illness tweeting did not appear to discomfort Emma Keller until it became more persistent, more frequent, and more disturbing. Lisa Adams' recent tweets are about treatment for intractible pain for cancer that has metasticized to several of her organs and bones.
And so it is with the dying and the old in our society. We welcome -- it seems to me -- them as brave exemplars of the fight against age and disability but file them away under disturbing and self-involved, when disability and death gain the upper hand.
You see, so far, everyone dies. Lisa Adams is narrating a part of her life. A brief visit to her twitter stream is scary though, interestingly, optional. Emma Keller is disturbed yet unable to turn away. And I give Emma Keller credit for caring enough to want to know the end game, even though she clearly does not want to know the details. But Lisa Adams does not want to just phone it in.
Lisa Adams is dying out loud. I suspect she has always lived out loud. Those who measure her attempts to make sense of her life and her highly medicalized dying, while she is living it, against the stoicism of others who have moved more quickly toward palliative care have abysmal timing.
Yet we are many of us tone deaf to the dying among us. We are a death denying people. Observing Lisa Adams' life journey may be worthwhile precisely because of the discomfort it brings.
Symposium on After Marriage at Florida State Law
I'm delighted to share the news of this upcoming symposium at FSU on January 31, 2014, entitled "After Marriage."
The symposium, “After Marriage,” explores what a national marriage equality precedent would mean for gay rights, marriage, the family and anti-discrimination law more generally. Numerous conferences and symposia have been devoted to exploring the road toward marriage equality for same-sex couples. This symposium is devoted instead to the road after marriage equality. It uses the two marriage equality cases recently decided by the U.S. Supreme Court as an opportunity to think about what the future holds for these areas of the law in the wake of marriage rights for same-sex couples. The event will bring together scholars and movement members of national prominence to explore this important and largely uncharted question.
Issues to consider might include:
- What would marriage equality on a national level mean for marriage as an institution? What would it mean for the family more generally?
- Many activists and movement members have framed marriage for same-sex couples as an end point. What if we reconceive marriage equality as the beginning rather than the end? What might it be the beginning of?
- How, if at all, would marriage equality impact other progressive movements, including the movements for economic equality, for reproductive rights, for racial justice, for disability rights, and for transgender rights?
- What, if any, consequences would there be to a Court decision in favor of marriage equality (rather than, say, a state or federal legislative decision)? How plausible and persuasive is the backlash thesis in the particular context of marriage (as opposed to, say, reproductive rights)?
Click here to view the program schedule. More information about the speakers and CLE credit and how to register or watch the webcast after the jump.
Symposium available via webcast. Registrants will be provided a link to the webcast a few days prior to the event.
Featured Presenters and Commentators
Mary L. Bonauto, Esq., Civil Rights Project Director, Gay & Lesbian Advocates & Defenders
Courtney Cahill, Donald Hinkle Professor, Florida State University College of Law
Mary Anne Case, Arnold I. Shure Professor of Law, University of Chicago Law School
Dennis G. Collard, Partner, Kessler & Solomiany Family Law Attorneys
Kara S. Coredini, Esq., Executive Director, MassEquality
Martha M. Ertman, Carole & Hanan Sibel Research Professor of Law, University of Maryland Francis King Carey School of Law
William N. Eskridge, Jr., John A. Garver Professor of Jurisprudence, Yale Law School
Hayley Gorenberg, Deputy Legal Director, Lambda Legal
Michael Klarman, Kirkland & Ellis Professor of Law, Harvard Law School
Melissa Murray, Professor of Law, University of California - Berkeley School of Law
Douglas NeJaime, Professor of Law, University of California - Irvine School of Law
Angela Onwuachi-Willig, Charles M. and Marion J. Kierscht Professor of Law, The University of Iowa College of Law
Laura Rosenbury, Professor of Law and the John S. Lehmann Research Professor, Washington University School of Law
Elizabeth F. Schwartz, Esq., Attorney, Elizabeth F. Schwartz Attorneys & Mediators
Marc Spindelman, Isadore and Ida Topper Professor of Law, The Ohio State University Moritz College of Law
Deborah A. Widiss, Associate Professor of Law, Indiana University Maurer School of Law
Mary Ziegler, Assistant Professor, Florida State University College of Law
Registration: The registration fee for this event is $35. The fee covers all sessions and a boxed lunch. Click here to register.
Papers will be published in the Florida State University Law Review
CLE credit approved (reference number 1307138N).
For more information, contact Derinda Kirkland. Telephone: 850.644.5799 or e-mail: [email protected].
Monday, January 13, 2014
More on the Infield Fly Rule
This has been a good week for my ongoing work on baseball's Infield Fly Rule. First, my originlal cost-benefit defense of the rule, The Economics of the Infield Fly Rule, is now out in Utah Law Review and SSRN. Second, I have a piece forthcoming in UCLA Law Review Discourse discussing football rules that reflect similar logic to the infield fly. Third, I am finally through the quantitative analysis of how often the IFR is called and where, which involved watching thousands of plays from the last four years of Major League Baseball; now I just have to write it up and draw conclusions. And I'm now trying to figure out whether I can turn all of this into a book-length project and what additional pieces I can add.
A couple reading suggestions for students in criminal law and the Spring 2014 schedule for the NYU Crim Theory ColloquiumN.B. This post is a revised version of an earlier post and is basically for crimprofs and those interested in crim theory.
This week marks the onset of classes for many law schools across the country, and that means the first criminal law class is here or around the corner for some 1L's. As many crim law profs lament, first-year criminal law casebooks generally have pretty crummy offerings with respect to the state of the field in punishment theory. (The new 9th edition of Kadish Schulhofer Steiker Barkow, however, is better than most in this respect.) Most first year casebooks give a little smattering of Kant and Bentham, maybe a gesture to Stephen and, for a contemporary flourish, a nod to Jeffrie Murphy or Michael Moore or Herb Morris.
Murphy, Morris, and Moore deserve huge kudos for reviving the field in the 1970's and since. Fortunately, the field of punishment theory is very fertile today, and not just with respect to retributive justice. But for those of you looking to give your students something more meaty and nourishing than Kantian hand-waving to fiat iustitia, et pereat mundus, you might want to check out and possibly assign either Michael Cahill's Punishment Pluralism piece or a reasonably short piece of mine, What Might Retributive Justice Be?, a 20-pager or so that tries to give a concise statement of the animating principles and limits of communicative retributivism. Both pieces, which come from the same book, are the sort that law students and non-specialists should be able to digest without too much complication. Also, if you're teaching the significance of the presumption of innocence to your 1L's, you might find this oped I did with Eric Miller to be helpful as a fun supplement; it concerns the quiet scandal of punitive release conditions.
Speaking of Cahill (the object of my enduring bromance), Mike and I are continuing to run a crim law theory colloquium for faculty based in NYC at NYU. On the heels of AALS, we had Francois Tanguay-Renaud and Jenny Carroll present last week, and the schedule for the balance of the semester is this:
February 25: Stuart Green (Rutgers) and Joshua Kleinfeld (Northwestern)
March 31: Amy Sepinwall (Wharton Legal Studies) and Alec Walen (Rutgers)
April 28: Corey Brettschneider (Brown/NYU) and Jennifer Daskal (American)
As you can see, the schedule tries to imperfectly bring together crim theorists of different generations and perspectives. This is now the seventh semester of the colloquium and we are grateful to our hosts at NYU and Brooklyn Law School who have made it possible. If you're a crimprof and interested in joining us occasionally, let me know and I'll put you on our email list for the papers.
How Courts Evaluate Written Consent Forms
In my previous post, I talked about some of the questions raised by law enforcement use of written consent forms that I have begun to explore in recent research with Kira Suyeishi. What effect does the use of the consent form have on the interaction between the law enforcement officer and the suspect? My tentative thinking, based on research in the Miranda context and conversations with officers, is that it's not inherently more difficult to obtain written consent than oral consent. Moreover, written consent doesn't inherently signal a greater degree of voluntariness than oral consent.
The question, then, is how courts actually analyze consent forms? In our previous work, we examined every case involving a consent form in published federal appellate decisions from 2005-2009, inclusive. During that time frame, 148 claims raised the issue of whether a particular instance of consent was sufficient to allow a search consistent with the Forth Amendment. Of those claims, 104 did not involve a written consent form and 44 did. Of the claims involving consent forms, 42 arose in criminal cases, and only 2 defendants prevailed (5%). This is less than the overall percentage of defendants who won on suppression motions raising Fourth Amendment claims during the same time period (10%) and less than the percentage of defendants who won on suppression motions raising consent issues but not involving consent forms (9%).
As we explain in the paper, the numbers are interesting and some might view them as suggestive, but they are too small to draw statistically significant conclusions about the effect of the form on judicial determinations of consent.
Rather, the more interesting story is a qualitative one. Reading the cases involving consent forms reveals that judges usually treat the existence of a signed consent form as dispositive. That is, where the defendant signed a form consenting to a search, the judge frequently did not even mention any other facts and circumstances that might contribute to the determination of voluntariness. When the judge did mention other factors, the judge typically alluded to them in a cursory way, focusing primarily on the signed consent form.
This mode of analysis runs counter to the language of Schneckloth v. Bustamonte (for non-crim-pro folks, the seminal case on consent to search), which held that courts must analyze the "totality of all the surrounding circumstances -- both the characteristics of the accused and the details of the" interaction. The Court went on to emphasize that "[t]he significant fact about [its previous decisions] is that none of them turned on the presence or absence of a single controlling criterion; each reflected a careful scrutiny of all the surrounding circumstances." Yet when the defendant has signed a consent form, that factor often seems to be dispositive -- or, at least, it is the only factor the court discusses in its written decision.
Although in this particular project we did not attempt to locate the actual form signed in each case, in future research I'd like to examine whether the exact nature of the form has any effect on the analysis. As I explained in my previous post, many such forms affirmatively provide information about the right to decline a search that Schneckloth doesn't actually require, and the existence of such affirmative disclosures on a written form might misleadingly reassure judges that the consent was voluntary.
It's quite understandable why judges give considerable weight to consent forms. Often such forms are the only tangible documentation of the interaction in which consent was obtained. But I continue to worry that such forms are assigned undue weight, given that a suspect who is coerced into issuing oral consent might be coerced just as easily into signing a form. This is not to say that the form should receive no weight at all. As commenters to my previous post observed, the form has the potential to formalize an encounter that might otherwise seem casual and inconsequential to the suspect. But forms shouldn't be dispositive. The bare fact that a signed form exists shouldn't preclude examination of the circumstances that led
to the signing of the form.
Sunday, January 12, 2014
Corbin on Abortion Distortions (and What's Missing)
As I said in my last post, it's easier to meet your commitments to blog more if you go the aggregation route! To that end, and because I found it very interesting, I note that my friend Caroline Corbin, who is an excellent and prolific scholar in the law and religion and compelled speech areas, has a new paper up on SSRN. It's called Abortion Distortions; as they say in Shakespeare in Love, "Good title!" Here's the abstract:
Two types of distortions often arise in abortion jurisprudence. The first is distortion of scientific fact. Too often abortion opponents distort medical facts and courts accept those distortions as true. Take, for example, the claim that abortion makes women depressed and suicidal. In fact, no reputable study supports any such causal link. Equally without scientific foundation is the claim that morning after pills like Plan B act as abortifacients. They do not.
The second kind of distortion that occurs in abortion jurisprudence is that the normal doctrine does not apply. Thus, despite the fact that compelling someone to articulate the government’s ideology is anathema in free speech jurisprudence, courts have upheld mandatory abortion counseling laws that force doctors to serve as mouthpieces for the state’s viewpoint. Similarly, despite the fact that for-profit corporations have never been held to have religious rights, several courts have stayed application of the new contraception mandate on the grounds that it might violate the corporation’s "conscience." This abortion exceptionalism is problematic for women and for First Amendment jurisprudence.
I enjoyed this paper. I agree with her point in general, and at least provisionally with her points about depression/suicidal claims and counselling laws; I am still(!) reaching my own conclusions about the mandate cases, although I don't think the corporate Free Exercise claim is as novel or impossible as some critics suggest, whatever limits ought to apply to it, but in any event I take no position on her argument in this section. It's a good, and short, read.
I'm very surprised by one element of the paper, however. This is not the first time that it has been argued that abortion tends to have distorting effects on judicial work and particularly First Amendment cases. It was a rather prominent feature of Justice Scalia's dissent in one of the abortion protest injunction cases, Madsen v. Women's Health Center, Inc., 512 U.S. 753, 785 (1994) (Scalia, J., dissenting), in which he wrote, "Today the ad hoc nullification machine [of abortion] claims its latest, greatest, and most surprising victim: the First Amendment." Similar claims have long been made that abortion works a distorting effect on First Amendment doctrine in another abortion protest decision by the Court, Hill v. Colorado, whose soundness will be tested by the Court this week when it hears McCullen v. Coakley. Forgive me if I am mistaken, and by all means correct me, but my quick read and search of Corbin's draft found no references to any of those cases or to the literature discussing them.
Of course Corbin may disagree with those criticisms, and of course the specific doctrinal issues she addresses are different, but I am surprised not to see a reference to them. This is especially true because the idea of some hot-button or significant factual/moral issue shaping, influencing, or distorting constitutional doctrine is hardly limited to abortion. Many splendid articles, including this one by Burt Neuborne, have been written about the "gravitational pull" of race on constitutional doctrine in a variety of areas. My recent (rough draft) article on New York Times v. Sullivan talks about the influence of race and the civil rights movement on that decision, and briefly references some of the literature alleging that abortion has a "gravitational pull" on the law. It seems to me that although a focus on particular doctrinal questions is understandable, there is also much value in focusing on, or at least fitting in and thinking about, how and why such phenomena occur in general and with what consequences; whether it is unavoidable and how; and just how bad (or good) these "distortions" are as a general matter. (There is such a thing, in my view, as overvaluing doctrinal coherence, or accepting its inevitable limits even if it is generally a good thing, or demanding more coherence from the Court than it can reasonably provide given the kinds of issues it deals with and their political and emotional valence.) I like the paper and recommend it to readers, and there is something to be said for modesty in scope. But I still found myself regretting these omissions. I encourage you to read this paper--alongside the other literature on this issue.
A Couple of Thoughts on Blogging
A belated happy new year, although I have posted one thing since January began. A quick apology for blogging so little in the past year and letting my colleagues, both guests and permanent members, do so much of the work. Some of the paucity has been due to personal and professional commitments of various kinds. In general, my not blogging is a net gain for both writers and readers, so an apology is probably unnecessary. But since I still occasionally get kind words from people I meet who say they effectively got to know me through the blog, I thought a word or two were due.
Anyone who has blogged for a long time knows it can be difficult to keep it up. Some of it has to do with the usual peaks and valleys of a person's life, including his writing life. A good deal of it has to do with the heated nature of many discussions and comment threads (including from professors), especially around legal education. I think there are good reasons for that, although it does not excuse absolutely any kind of rhetoric in my view. But heated discussions on any topic are more time-consuming to monitor, which I think one must, and can reach a point of exhaustion (both as to the discussion and as to the individual blogger involved) fairly quickly.
Much of it has to do with a simple desire not to be unduly repetitive. Some people manage to be both prolific and novel on blogs. Others maintain a high quantity of posts by sticking to the aggregation model ("Here's an interesting piece, news story, etc."). I tend to want to read something fully and be ready to comment on it before I link to it, and aside from being too busy to do so in a timely fashion sometimes, by the time I might be ready to post something I think the discussion has moved on and am much less willing to post at that point. And there are certainly many bloggers who don't seem to mind riding the same hobby-horse again and again: who think an issue or position is endlessly fascinating to themselves or others and worth repeating many times, or who get a charge out of high moral dudgeon in general or attacking some real or imagined Internet adversary in particular. And our "service" threads on hiring and publishing are very popular, although I'm not always crazy about them. I don't fall into those categories by way of inclination, and I increasingly think that if you don't have something that's especially worth saying to a general audience, you should remain silent. That's not very consistent with the general model of blogging, unfortunately!
Although this point is sooo 2008, Facebook is another reason. When we started blogging, some of us especially dilettantish or thin-line-between-professional-life-and-everything-else sorts thought we would mix up posts on law and law teaching with posts about how great Hem is, or why Gavin Harrison is such a great drummer, or why Broadchurch is such a funny show, or what have you. But Facebook seems to fulfill a lot of those needs, without either requiring one to blog on such matters for a slightly more professional audience or to flyspeck the post for errors of fact or tone deafness. Professors moaning about how unpleasant grading exams is, for example, is an extremely self-indulgent enterprise, even if it's a natural personal reaction. When law blogs started, that kind of thing was more common in the blogosphere. It has since rightly died down a great deal. (I should say that I got an earful from my students this week about how long professors take to grade exams, how foolishly long the grading deadlines are at many schools, how much it interferes with choosing and dropping courses, decisions to withdraw while tuition refunds are still at full-rate, and how the students themselves must and do meet their own deadlines. They were quite right and I am frequently quite guilty.) On Facebook, however, it's more possible to do that sort of thing (although I don't, I think) without anyone assuming you're engaging in anything other than a first-person description of your own life, or without airing a totally minor gripe to an audience of understandably impatient students. And you can post pictures of cats, and your fabulous meals, and hilarious memes about offensive coordinators, and news of your above-average offspring! Or curse a blue streak. Or joke about shooting your children. Given the long list of lawprof friends that one amasses on Facebook, it may be that this is equally professionally damaging in the long run. (I have only shot my children in laser tag, I should clarify.) But it is marginally safer and more intimate. So I feel free to post half-baked and/or cultural stuff there, or ride the occasional hobby-horse, while saving the most well-worked-out, non-repetitive stuff for this blog. Which means blogging a lot less, as I said. I probably ought to cut down on or cease Facebooking too. But it can be a nice outlet and is very useful for purposes of local political organizing (which Tuscaloosa always needs) and maintaining a sense of local and professional community. Plus, cats and Lane Kiffin.
Anyway, I hope to blog more this year, and I suspect that my work on a book this year (on social class and the American legal academy--write me if you're interested or have some input or insights or experiences) will give me more occasions and energy to do so, but I would also be perfectly happy with extended silences. I suppose I could add that if you miss my brand of nonsense you're welcome to send me a request at Facebook, although I assume those of you with lives have other things to do and those of you without them have already done so.
Friday, January 10, 2014
The Martoma trial begins
This afternoon, attorneys offered opening arguments in the trial of Mathew Martoma, one of the SAC Capital traders who allegedly engaged in inside trading. As I reported yesterday, evidence has surfaced indicating that Martoma was expelled from Harvard Law School in 1999. Yesterday, I speculated that this history -and his likely failure to disclose it to organizations later in his life (including Stanford Business School) would have made it very difficult for Martoma to become a criminal cooperator.
Today, we learned more about Martoma's problems at Harvard. The allegations, to put it mildly, are shocking [go to page 13 if you want to see the primary document].
According to the Findings of Fact and Decision of the Administrative Board of Harvard Law School, which conducted a hearing on the matter, Martoma: (a) changed several of his first year grades on his transcript [Civ Pro - from a B to an A; Criminal Law, B to an A; and Contracts, B+ to an A, which gave him first year grades of 4A's, an A- and a B+]; (b) included this transcript in his clerkship application to 23 federal judges, including appellate judges on the DC Circuit; (c) conducted interviews with Judges Randolph, Ginsburg and Sentelle, knowing at the time that they had the "wrong" transcript in their possession; and (d) pretended to have "withdrawn" the applications voluntarily on February 1st when in fact he did not actually withdraw the applications until February 2nd, when Harvard's Registrar and Dean of Students confronted him.
Martoma (whose last name at the time was "Thomas" - he changed it after he left law school) claimed he intended only to impress [um, defraud?] his parents, and that he never expected the transcripts to reach the appellate judges. How did they make their way to the DC Circuit? Martoma told the Administrative Board that his brother inadvertently used the wrong transcript [that Martoma just left lying around???] to stuff Martoma/Thomas' judicial clerkship application envelopes.
Why is any of this relevant to today's trial for insider trading? According to the government's filing, Martoma's prior history demonstrates his ability to fabricate and alter computer evidence, and to the extent the defense wishes to make an issue of the absence of certain computer forensic evidence (the insider who leaked information to Martoma claims he sent Martoma an email and yet there is no evidence of that email on Martoma's computer, if I'm reading this correctly), the government wishes to preserve its ability to show Martoma's skill in altering computer evidence.
No word yet on whether the court has ruled on the government's motion, although I assume it will wait to see how the trial unfolds.
Meanwhile, I couldn't help but note that two members of the 12-member jury were lawyers. One works for PriceWaterhouseCooopers and the other is a labor/employment lawyer who has worked on FCPA investigations. I am curious how this may (or may not) affect the ultimate verdict.
Consent Forms and Affirmative Disclosure
Thanks to Dan and the other prawfs for inviting me to return as a guest! I promise to make up for a slow start with frequent posting for the rest of the month.
One thing I'd like to discuss during my visit is police officers' use of written forms to document consent to perform a suspicionless search. Many civil liberties advocates have long touted the forms as a way of reducing police abuse -- for one example, see this 1999 ACLU press release advocating written consent forms as part of a suite of interventions designed to address racial profiling. More recently, some have questioned whether the forms truly facilitate knowing and voluntary consent.
In an article coauthored with Kira Suyeishi (University of Denver '13), I looked at the ways that different jurisdictions use consent forms and the consequences of the use of such forms. Among other things, we argue that when a defendent signs a consent form, reviewing courts tend to treat the form as dispositive of the consent issue, rather than conducting a more searching inquiry into voluntariness.
I'll talk about courts' treatment of consent forms in a future post. Today, I want to focus on the front-end use of consent-to-search forms. At the outset, one interesting issue relates to the range of consent forms currently in use. Many forms, such as this one used in New Hampshire, simply describe the scope of the search and explain that signing the form constitutes voluntary agreement to the search. Such forms basically track the Supreme Court's decision in Schneckloth v. Bustamonte, which held that consent must be voluntary, as determined from the totality of the circumstances, but that law enforcement officers are not affirmatively obligated to inform suspects of the right to refuse consent.
Other forms provide more information than is constitutionally required. Schneckloth states that "knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent." Yet forms used in Indiana, Maryland, and Ohio nonetheless explicitly state that the person has the right to refuse to consent to the search. Still other forms, such as this one from Oregon, provide multilingual warnings, which, at least superficially, appear to ensure more information for non-native speakers of English.
The range of consent forms raises a few questions in my mind. First, I wonder whether written forms that provide affirmative notice of the ability to decline consent have any effect on the rate of consent. It's unclear that such warnings -- whether oral or written -- actually make any difference at all. Consider the Miranda warning. Although the conclusion is not unanimous, many studies have found that Miranda warnings make little difference in rates of confession -- indeed, one study even found that rates of confession actually increased -- and that these results hold true even when the warnings are communicated in writing rather than orally. (See some of Richard Leo's work for a useful summary of the empirical literature, including his own considerable contributions.)
Perhaps the same is true of consent forms. Anecdotally speaking, a police officer who visited one of my criminal procedure classes a few years ago said that he didn't think the form made a difference. His experience was that if a suspect was willing to grant verbal consent -- and according to him, most are, even when they are guilty -- then the suspect would also almost always be willing to sign a form. Some other police officers appear to hold similar beliefs. This thread, for example, describes some techniques that police officers use to work around consent forms or even leverage them for their own benefit.
Secondly and relatedly, I wonder whether forms that provide people with non-constitutionally-required affirmative information about their right to refuse consent end up weighing against defendants at trial despite doing very little to empower the suspect to withhold consent. Given that Schneckloth says that a suspect's knowledge of the right to refuse consent is a factor to be considered in determining whether consent is voluntary, we might speculate that a form that provides such information will almost automatically convince a judge that the consent is voluntary, even if the person in fact felt that he or she had no choice but to agree to the search and sign the form. Similarly, a judge who would otherwise be concerned about whether a non-English-speaking suspect understood a situation well enough to consent voluntarily to a search might be persuaded by a multi-lingual form that the consent was indeed voluntary.
And finally, I wonder how the apparent generosity of the form in affirmatively disclosing the right to withhold consent affects public perception. For example, do the forms engender a portrayal of law enforcement as (overly?) accommodating of suspects, while simultaneously obscuring the type of work-arounds discussed above?
Thoughts? Reactions? If any current or former law enforcement officers happen to be reading, I'd be particularly interested in your perspectives.
Dubber's Introduction to "Foundational Texts in Modern Criminal Law"
Professor Markus Dubber has posted his introduction to a forthcoming volume called Foundational Texts in Modern Criminal Law. The book contains a series of essays on important figures in the intellectual history of criminal law--spanning Hobbes, Beccaria, Blackstone, Bentham, Kant, Feuerbach, Hegel, JMF Birnbaum, Mill, Stephen, Pashukanis, Gustav Radbruch, Wechsler, Glanville Williams, HLA Hart, Becker, Foucault, Nils Christie, and Günther Jakobs. You can find some of the primary texts considered on this very helpful page. In the cases of Birnbaum, Radbruch, and Jakobs (and I think also Feuerbach, but I am not certain about this), there are first-time English translations from the German of the works considered. There are also very interesting lesser known works of some of the better known authors. For example, do check out Beccaria's little algebraic gem, "An Attempt at an Analysis of Smuggling." The first paragraph alone is wonderful. I was delighted to contribute to this project with an essay on JF Stephen (my essay focuses on his History of the Criminal Law of England), an early draft of which is here.
Markus uses the introduction to discuss certain thematic threads in a massive work like this. Here are some of his interesting reflections (after the break) with respect to the organizing perspective of the book. I particularly appreciated his comments about developing a canon of texts in the field:
Criminal law discourse has become, and will continue to become, more international and comparative, and in this sense global: the long-standing parochialism of criminal law scholarship and doctrine is giving way to a broad exploration of the foundations of modern criminal law in the new lingua franca of legal scholarship, English. The present book seeks to advance this promising scholarly and doctrinal project by making available key texts, including several not previously available in English translation, from the common law and civil law traditions, accompanied by contributions from leading contemporary representatives of both traditions.
Global discourse on criminal law needs a common foundation of texts, if not of principles. Eventually, scholars from throughout the world will be able to draw on a shared fundus of materials, and of concepts, that define the discipline and shape academic discourse, while at the same time, as in any other discipline, being subjected to constant challenge and reconstruction. A canon of key texts, however contested, forms part of the scholarly infrastructure of a global discipline, along with common journals, monograph series, reference works, informal and formal networks, as well as compatible curricular programs grounded in a basic vision or visions, however general or abstract, of the field of study as a whole.
Eventually, contributors to the global discipline of criminal law, no matter what their institutional or national affiliation, would be expected to have grappled with a common corpus of texts and concepts. In a global environment, it makes no sense that a budding criminal law scholar at an English institution would be unfamiliar with the key texts that structure the intellectual worldview of her colleague at a German institution, or vice versa. (To see this point, substitute “political science” or “psychology” or “philosophy” or “chemistry” for “criminal law.”) The point is not that there cannot, or should not, be scholarly traditions or “schools” (which may or may not be tied to a country, a city, an institution, a department, or even an individual or group, or coffee shop), but that they should operate within a shared discourse, a common discipline, however fluid and self-critical.
Thursday, January 09, 2014
You can't make this stuff up, prison litigation and football edition
A man in the Pennsylvania prison system last week filed a handwritten Motion for a Temporary Emergency Injunction on the NFL Playoffs.
The man appears to be a Pittsburgh Steelers fan, who is angry that the Steelers missed the playoffs. This happened because, in the final week of the season, the San Diego Chargers beat the Kansas City Chiefs in overtime. In that game Chiefs kicker missed a field goal as regulation expired. The Chargers had an illegal formation on that kick, which was not called and which the Chiefs could not challenge; had it been, the Chiefs would have gotten to re-kick from five yards closer.
The motion argues that the league acts fraudulently and negligently in limiting the replay challenges that teams can make. It also argues that the league rule requiring immediate stoppage of play if a player loses his helmet (which took an overtime touchdown away from KC) is unconstitutional because it violates "enacting clause amendments" (not sure what this means) and was "not founded on their forefathers" (hey, Originalism!).
The motion was denied because the plaintiff did not pay the filing fee--he asserted In Forma Pauperis at the top of the motion, but never formally sought a waiver of the fee. In some ways this is bad, because Mr. Spuck now will be angry that his motion, which has no remote legal validity whatsoever, was not considered on its merits. On the other hand, my experience as a law clerk was that many prisoners react worse when you do give their papers merits analysis and they still lose.
Today's White Collar News
I had hoped to say more about Bridgegate, including the recent news that the United States Attorney's Office in New Jersey has now offiically initiated an "inquiry," but then I was sidetracked by this report regarding Mathew Martoma's impending insider trading trial in Manhattan. As of now, Dealbook is reporting that Martoma may have been expelled from Harvard Law School in 1999 (I graduated in 1996, so I never met him), and the reported "disciplinary action" may have had something to do with a "false transcript." Business Insider's previous dossier on Martoma reports that he left HLS in December 1998 and then resurfaced several years later at Stanford Business School. (Query: Did he tell Stanford why he left HLS? And, with a hat tip to one of the commenters on the Dealbook article, would he have been required to report the results of the HLS proceeding in any application for a license or job?).
Now, whether the government will in fact seek or be permitted to introduce some or all of this information at trial is a matter I will leave alone for now. For me, the revelation offers a possible explanation for why Martoma has not yet "flipped."
Just to remind everyone who doesn't follow insider trading prosecutions, Mathew Martoma is one of several SAC Capital Advisors employees who have either been convicted or prosecuted for trading on material, non-public inside information, all resulting from a six-year investigation that has led to over 80 prosecutions. SAC itself has also entered a guilty plea pursuant to an agreement that has yet to be approved by the presiding judge, and speculation continues as to whether Preet Bharara's office will seek a criminal indictment for SAC's billionaire founder and noted Picasso enthusiast, Steven A. Cohen.
A number of observers have speculated on Martoma's failure to cooperate in the government's (presumed) prosecution of Steven Cohen. After all, as I have discussed here, cooperators can and often do obtain fairly steep discounts on sentences otherwise recommended by the United States Sentencing Guidelines. Moreover, as Peter Henning has pointed out here, the case against Martoma is a lot stronger than the one against SAC portfolio manager Michael Steinberg. So, assuming Martoma in fact had enough damning evidence that he could have provided the government with "substantial assistance" in the prosecution of others (namely, Cohen), why would he give up that opportunity and instead takes his chances with trial?
Up until now, observers had assumed that Martoma was unwilling to become a "snitch," which in some circumstances can invite rather negative consequences (Caren Myers Morrison summarizes them quite nicely in this piece) for the cooperating defendant and his family. But I have never found the social ostracization argument that persuasive in the white-collar context: when it comes to jail sentences, self-preservation beats country club membership pretty handily.
Nevertheless, it is not so easy to cooperate if one has a history of telling tall tales, all of which can become rather important impeachment evidence when a defendant becomes a criminal cooperator. Cooperators need to be credible to juries, and credibility turns on truthfulness. Juries accept that cooperators are themselves criminals; they even accept that cooperators hope to gain leniency by testifying against a co-conspirator. But there is a limit to the jury's willingness to accept the cooperator's word.
Had Martoma cooperated, he would have had to disclose all of his prior history to the government, including any previous uncharged crimes or instances of falsehoods or cheating, which of course would have included previous disciplinary proceedings such as the one at Harvard. And this would only have snowballed if, as asked above, Martoma misled other organizations regarding his academic career. Foolish and immature lies, including those nearly 15 years old, have a way of growing in size and importance, particularly when one lie links to another.
Former and current prosecutors often say, "the government takes its witnesses as it finds them,"reflecting the imperfection - and humanity - of most witnesses. But of course, the real situation is more nuanced than that. The government takes some witnesses, and leaves others at the curb. We have no way of knowing how Martoma's previous history affected his inclination to serve as a cooperator, much less how it did or would have affected the government's inclination to use him. But surely, this information, if it has been reported accurately, would have tarnished him in the government's eyes.
A fun read on the origins of common Ashkenazi Jewish names.
A Plea for Stories...
This post is on behalf of a friend who's interested in writing a law school-based novel. (I swear it's not me; most people who know me know that I endure fiction as well as I do cats.)
In the wake of all of the media attention on law schools, a Prawf has decided that it’s time for this generation’s epic law school novel. This Prawf has no interest in writing another Paper Chase (too mean), 1L (too narcissistic) or Legally Blonde (too ditzy). No, this Prawf wants to tell a tale about what law school’s really like – the good, the bad, and the ugly.
AuthorPrawf is seeking your assistance and wants to hear from you about the following questions:
1) What was your very best experience in law school? It could be the time you got an A on an exam you thought you’d bombed, or the time you answered a question in class that no one else got, or the guest speaker who motivated you, or the great locker assignment you had 3L year. The sky’s the limit! The more specific, the better. If you can tell a vivid story, you get five gold stars.
2) What was your very worst experience in law school? Was it getting humiliated in class? Getting beat in the first round of moot court? Getting kicked out of your study group? The more specific, the better. If you can tell a vivid story, you get five gold stars.
3) Do you have any really funny stories of stuff that happened to you in law school?
4) As a law prawf, what is the most amusing story you have to tell about an interaction with a student? Do you have an email string or anything you can share?
5) As a law prawf, have you ever dealt with an honor code issue? Can you share details? (Obviously, many facts would be changed to protect both the innocent and the guilty.)
If you are willing to share, AuthorPrawf will gladly give you credit in the book. AuthorPrawf will also pick the very best story shared and offer a reading at your school after publication – AuthorPrawf will even pay travel expenses. Law prawfs in Malibu, Boulder, Miami, and other awesome destinations, please apply.
This could be a really fun thread, so please post your stories here if you’d like. If your law school experience was so humiliating that you just can’t post it (even anonymously among friends), email AuthorPrawf at [email protected]. AuthorPrawf is a law prawf and a lawyer and promises to hold all stories in strict confidence unless permission is given to use them in the book (with names and identifying details changed).
Wednesday, January 08, 2014
This could be a movie
So about a month ago, while flipping through television channels at night, I came upon a developing news story that actually surprised me. You see, last September, without any warning, two entrance lanes to the George Washington Bridge were closed. Why should this be the concern of any television reporter other than the early morning person who reports on the morning commute? Well, according to the news telecast, the two entrance lanes were located in Fort Lee; the mayor of Fort Lee, Mark Sokolich, was a Democrat who had failed to endorse Republican Governor Chris Christie in his re-election bid; and the official explanation for the closings - that New Jersey officials wanted to conduct some kind of traffic study, sounded, well, kind of fake. (Among other problems, Patrick Foye, the Port Authority's Executive Director, had no knowledge of it, and the study had not been announced in advance to Fort Lee officials - or really anyone else).
The media continued to follow the matter and question Christie about the closings. Publicly, he laughed off the entire episode as some sort of joke - because isn't it super funny when state officials interfere with interstate commerce and allegedly lie about it? But privately, Christie reportedly was not so pleased. State assembly members continued to pursue their investigation and subpoenaed documents and emails. In the meantime, two Port Authority officials who either ordered or defended the lane closures (Bill Baroni and David Wildstein) resigned, although beforehand, Baroni addressed state assembly questions in testimony - but apparently not under oath.
Well, it seems that some newly released emails today (obtained through a state assembly panel's subpoena) put to rest the notion that the lane closures were anything but political payback.According to these emails, the express purpose of the lane closings appears to have been to cause Fort Lee some traffic problems, and when the traffic predictably backed up and kids weren't able to get to school on time, one of Christie's aides helpfully pointed out that this was okay because those kids had been born to "Buono [Christie's Democratic challenger] voters." Unfortunately, the emails (and reprints of what appear to be texts) are not always easy to follow and are redacted in a number of places. But where there is smoke, there is fire. In addition to the state legislature's inquiry, Baroni and Wildstein must also contend with an investigation by the Port Authority Inspector General, and perhaps a broader federal criminal investigation, if one ever gets under way. (Question for the federal criminal law nerds out there: If they in fact conpsired to close two GW Bridge lanes as political payback to Fort Lee, did Baroni and Wildstein violate the Hobbs Act? Perhaps someone in this United States Attorney's Office is pondering the same question).
Oh, and in case you are wondering, both Baroni and Wildstein have hired criminal lawyers. Stay tuned.
Seeking input on "must-teach" units as I start a new version of my Sentencing Law course
I am very excited that in a few hours I will begin teaching to a new group of bright Ohio State students my Sentencing Law course. I have taught this three-credit, upper-level course every other year since I started teaching in 1997; since 2003, I have had the added pleasure of teaching from my own co-authored casebook, Sentencing Law and Policy: Cases, Statutes, and Guidelines. Joyfully, the new Third Edition of this casebook was published this past summer, so this semester I will get to experience a new version of the text as I work my way through a new version of the course .
As regular readers can imagine, because sentencing law has changed a lot over the past 15 years, my course coverage has changed a lot over the years. Indeed, I always get a kick out of reviewing my teaching notes from the late 1990s which pressed students, inter alia, to consider why the US still allowed the execution of juvenile and mentally retarded murderers and why federal judges were required to enhance federal guideline sentences based on acquitted conduct.
Of course, many basic theoretical, policy and practical issues concerning why, who and how we sentence in the United States are enduring. But each time I teach this course, in addition to reviewing the basics of capital and federal sentencing doctrines, I often end up focusing a lot of energy on the then-most-pressing topics of current doctrinal debate. The last time I taught this class, for example, in Fall 2011, I spent lots of extra time on the Eighth Amendment's application to prison sentences in the wake of the SCOTUS ruling in Graham and its cert grant in Miller.
Because there are so many sentencing topics, both big and small, that interest me greatly and that I think students should get exposed to, I often struggle to make sure I cover all the "must-teach" sentencing topics each semester. Of course, because there has never been an established "canon" for what must be covered in a sentencing course, students do not know what are all the "must-teach" sentencing topics. But, because there has never been a established "canon" for what must be covered in sentencing course, I likewise have never been sure just what are all the "must-teach" topics for my course.
So, as I start the latest (and I hope greatest) version of my Sentencing Law course, I am eager to hear from readers of all stripes (including lawyers and non-lawyers, professors and students) concerning what they might consider "must-teach" units in a three-credit, upper-level Sentencing Law course. Perhaps stated slightly different, I am eager to hear from everyone and anyone concerning what sentencing topics they assume my students learn about when they hear they have taken a course on Sentencing Law.
Tuesday, January 07, 2014
The Price is Right: Health Care Pricing Transparency Wars
Health care price transparency may be on its way to becoming the tag line of the year. Who doesn't like health care price transparency? The answer is almost every payor and player in our health care system is at best ambivalent about price transparency. Looking at a few recent skirmishes in our nation's health care price transparency wars helps me understand why -- first to the land of pharmacy benefit managers brokering widely diverging dispensing fees for prescription drugs distributed to the insured and uninsured and second to a group of orthopedic surgeons and residents invited to play "The Price is Right"on hip replacement hardware.
Last month, the California Supreme Court responded to an inquiry from the 9th Circuit clarifying that California Civil Code Section 2527 (requiring prescription drug claim processerors to compile, summarize, and transmit to their clients pharmacy fee information) does not compel speech in violation of Article 1, Section 2 of the California Constitution. You may see the full text of Associate Justice Goodwin Liu's opinion in Beeman v. Wellpoint Anthem here: https://www.courts.ca.gov/opinions/documents/S203124.PDF.
Interestingly, the opinion notes that the opponents of the reporting requirements did not dispute the accuracy of the data collection system or the accuracy of the data collected, just the relevancy of the information's distribution to pharmaceutical pricing (Beeman at 22). The irony of that is, of course, that it is precisely the relevance of the information on dispensing fees paid by various insurers to pharmacists which has made the storied history of California Civil Code Section 2527 so fraught.
At the end of the day, the California Supreme Court advised the 9th Circuit that this kind of commercial speech designed for a public good (the theory being that transparency on pharmacist dispensing fees to insureds would eventually raise those fees to the level of dispensing fees paid by the uninsured although why this might not work exactly the other way around is unclear to me) is not the kind of compelled speech that offends Article 1 of the California Constitution. This is interesting for several reasons, including an extension of California Supreme Court jurisprudence on commercial speech and possible fair competiton concerns, but it is absolutely fascinating for what might still be revealed about prescription drug dispensing fees and pricing in California. The battle between pharmacy benefit managers (PBMs) and pharmacists is far from over but even a tiny insight into how PBM intermediaries broker both the compensation of pharmacists and the price to consumers of certain prescription drugs is a remarkable thing.
On the provider understanding of pricing transparency front, we have a study recently published in Health Affairs. A group of orthopedic surgeons and residents called upon to divulge the surgical acquisition price of commonly used joint implant equipment did not do well on the study's version of "The Price is Right" (the old TV show where knowledgable shoppers compete to name the price of commonly purchased household items, which you may enjoy here: https://www.youtube.com/watch?v=sqk1-q8gXcY). If you'd like to see Kanu Akike, et al's paper on how roughly 20 percent of orthopedic surgeons were even close to aware of the acquisition cost of their most commonly used hip repair hardware, including the hip hardware that some of them may use exclusively or near-exclusively in exchange for supplier and manufacturer compensation, you could look here: https://content.healthaffairs.org/content/33/1/103.abstract.
My favorite part of the study? Unlike "The Price is Right" participants, the study participants could not have the actual acquisition costs disclosed to them after they made their estimates -- this was prohibited by the manufacturers.
Watching "The Price is Right" as a kid, I never understood why a contestant might think a box of Rice-A-Roni might cost, say, ten dollars. I grew older and came to realize that stress can do strange things to your mind. But I do still remember those revelatory moments when Bob Barker would reveal the actual cost of the Rice-A-Roni, the hand slap to the forehead, and the murmured "of course" that accompanied the reality check.
You see, the game show contestants had some exposure to actual acquistion costs. As for the orthopedic surgeons and residents, not so much.