Archive for the ‘Administrative Law’ Category
The child, not the school
posted by Aaron Saiger
The Indiana vouchers program I posted about earlier, significant on its own, also partakes of a trend. The New York Times gets it:
A growing number of lawmakers across the country are taking steps to redefine public education, shifting the debate from the classroom to the pocketbook. Instead of simply financing a traditional system of neighborhood schools, legislators and some governors are headed toward funneling public money directly to families, who would be free to choose the kind of schooling they believe is best for their children, be it public, charter, private, religious, online or at home.
In particular, the Times is right that what is sought here is redefinition. Once states established and supported institutions – public schools – that parents could take or leave, so long as they educated their children somehow. The new paradigm has states instead provide a quantum of funding earmarked for each child, that parents can deploy at any educational institution of their choosing. The fact that the aid attaches to the child and follows her to her family’s chosen school is much more important than the various labels ascribed to the funding and/or the institutional provider – public, private, charter, voucher.
As people learn to function within, and get used to, this new paradigm, they will stop thinking of educational politics as the way to create good public schools, and start thinking of it in terms of how big the aid pie is and how it gets divided up. Whether a school is public or private, online or bricks-and-mortar, religious or not – these stop being political questions and start being questions that markets will resolve through supply and demand. Read the rest of this post »
March 28, 2013 at 10:26 pm
Tags: charter schools, vouchers
Posted in: Administrative Law, Constitutional Law, Cyberlaw, Education
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Double deference
posted by Aaron Saiger
I know that I am supposed to be caught up along with everyone else in the same-sex marriage cases, but I am still distracted by Decker v. Northwest Environmental Defense Center, decided last week at the Supreme Court. In a separate opinion designed to push the buttons of what Scotusblog’s John Elwood called Supreme Court nerderati, Justice Scalia again called for the reconsideration of the principle of Auer deference. Auer says that just as courts should defer to agencies’ reasonable interpretations of ambiguous provisions in their organic statutes, so should they defer to agencies’ reasonable interpretations of ambiguous provisions in regulations that they themselves promulgate. Chief Justice Roberts and Justice Alito suggested that they would also be open, in a different case, to reconsidering Auer.
March 27, 2013 at 10:00 pm
Tags: decker, deference
Posted in: Administrative Law, Environmental Law, Supreme Court
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Auditing’s Snafu: Foreign Secrecy and Impaired Audits
posted by Lawrence Cunningham
Many US companies maintain substantial global operations, with increasing volumes of business done in China; many foreign companies are listed on US securities exchanges. This cross-border expansion makes the reliability of financial reports created in foreign locales increasingly important. Yet, in tandem with this cross-border expansion, there have been increasing assertions abroad, including in China, that local secrecy laws restrict access to the work papers of auditors, frustrating the ability of US federal authorities to enforce US securities laws designed to promote financial reporting integrity.
The snafu was joined this week in a case where the SEC is seeking access to audit work papers of a Deloitte affiliate in Shagnhai but the firm refuses. The firm’s lawyers cite Morrison v. National Australia Bank, the 2010 SCOTUS ruling that, absent explicit language, federal statutes are seen as intended to apply within the US, not be extraterritorial. It said that the federal securities laws lacked such explication.
Furthermore, for Deloitte to comply with the SEC’s requests, the lawyers said, would risk committing a serious crime under Chinese law, one punishable by imprisonment. Deloitte’s lawyers say that the combination of Morrison and Chinese secrecy laws puts the records beyond the SEC’s reach.
Lawyers for the SEC object that these points cannot possibly be seen to limit the SEC’s administrative subpoena power under which it has demanded the Deloitte documents. But, during oral argument, the SEC’s lawyers did not acquit themselves well, according to one report, as they could not readily cite the precise legal authority supporting their position.
Deloitte says there isn’t one and that the appropriate procedure to handle such cross-border securities matters is by diplomacy not enforcement. In this view, the SEC is wrong to proceed against Deloitte in court but must dispatch appropriate US officials to broker a resolution with Chinese regulatory counterparts.
The stakes are high for both sides in the case, of course, and for investors and students of auditing. After all, audits endow financial statements with credibility. Shareholders are willing to pay for audits in exchange for that credence value. But if an auditor’s work papers are top secret, inaccessible even to a regulatory overseer, how much of an audit’s credence value is lost? Is it still rational for shareholders to condone paying the auditor’s fee?
When the credibility of financial statements are in doubt, investors should shun their issuer and sell the stock. A critical mass of shareholders of companies affected by this snafu might do well to follow that old-fashioned Wall Street Rule. If they did, then, along with such companies, the need to resort to either a diplomatic or enforcement solution would disappear. Read the rest of this post »
March 15, 2013 at 4:22 pm
Posted in: Accounting, Administrative Law, Corporate Law, Securities Regulation
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Nondelegation, now available in 32-ounce sizes
posted by Aaron Saiger
New York City is abuzz with the setting aside of Mayor Bloomberg’s ban on the sale of sugared drinks in containers larger than sixteen ounces. The ban applies to establishments directly under the authority of the City’s Health Department (restaurants, movie theaters) but not those that are not (retail stores, church suppers). I have been following the rule with interest because my colleague Olivier Sylvain (guest blogging at Concurring Opinions next month, so stay tuned) has placed it at the core of his 1L course on Legislation and Regulation. In my section of the same course, but with respect to a different rule, I ask my students to pretend to represent the American Beverage Association, today’s successful plaintiffs. The ABA titled its victory post this morning “Choice Lives!”: “Individuals are the ones with the power to choose what foods and beverages are right for them.”
The decision, by New York State Supreme Court Judge Milton Tingling, makes a move one often sees in high-profile trial court cases, which is that it reaches its conclusion on as many bases as possible. In many ways, therefore, the decision is an alarming overreach. In particular, Judge Tingling says that the regulation is arbitrary and capricious because it is riddled with exceptions: not just for the above-mentioned retail stores, but also, for example, for beverages that contain a lot of milk or any alcohol. It cannot be right that an agency acts arbitrarily by failing to be comprehensive. The rules’ various exemptions, while fairly numerous, each bears a plausible justification. That plausibility is more than sufficient to get by the arbitrariness test.
The weakest part of the opinion is a long history of the New York City Charter, which the judge recites in support of his position that obesity is not a “health” issue within the Charter’s meaning. Not only does the opinion give a very dubious restrictive construction to the Charter language, but the Mayor’s soda rule survives that construction. Judge Tingling says that the Executive’s authority to “limit or ban” legal food items applies only when the city is in “eminent [sic] danger due to disease” [29] – but that is precisely the Health Department’s claim, and it is a reasonable one. And, as the City has emphasized, there is no ban here on soda in any quantity; all that is restricted is delivery systems, for which alternatives are available. You can buy 64 ounces of Coke if you want, as long as you are willing to carry four cups.
Nevertheless, Judge Tingling is right that New York State’s nondelegation doctrine – the doctrine that administrative law professors who teach only federal cases tell their students is a dead letter – prohibits the rule. The foundational case, Boreali v Axelrod, is nearly on all fours with this case. Health departments, pursuant only to sweeping language giving them authority over public health, cannot in New York State limit trade in legal markets over which the legislature has given them no explicit authority. If the City is to win its promised appeal, it is going to need to argue that Boreali should be overruled or limited.
The problem with that is that Boreali is right. Nondelegation is an important constitutional principle and should not be sidelined out of existence. I don’t disagree with the Mayor that obesity is a big problem, and am not per se opposed to the kind of state paternalism that shoves people in the direction of healthy behaviors; but I think it’s not just reasonable, but better politics, better civics, and better constitutional law to require those shoves to come from a legislative, rather than an executive and bureaucratic, process.
See also Rick Hills’ interesting comments here.
March 12, 2013 at 1:28 pm
Posted in: Administrative Law
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The Cultural Construction of the Bicycle
posted by Aaron Saiger
Before automobiles first appeared in urban spaces, parents regularly sent children outside to play in the street. Today, noone would hesitate to label any parent who did that as reckless. The cultural distance between then and now is substantial. Readers interested in its course should check out Peter Norton’s excellent, and consistently surprising, Fighting Traffic.
I am regular bike commuter in New York City, along with an increasing number of other people. Bikes, under the law, are supposed to follow the same rules of the road as motor vehicles. But many cyclists, here in New York at any rate, don’t. They slow rather than stop at red lights and stop signs. They weave around pedestrians in crosswalks. They go the wrong way on one way streets. It’s a great case study of why people obey the law: we cyclists break these rules because they seem so manifestly unsuited to our circumstances. I yield rather than stop for some red lights and some pedestrians, when it seems clearly safe to do so (although I draw my personal line at salmoning upstream in a one-way zone). But I would never in a million years blow through a red light when driving a car. Even in the middle of the night, even if nobody is coming and I know nobody is coming, I sit there patiently in the empty intersection until the light turns green.
Can the law take the lead in developing rules that make enough sense for biking for transport that cyclists would obey them? Or must we await, as we did in the case of automobiles, a new cultural construction of bicycling? (As Norton demonstrates, a lot of people died in “accidents” while the new construction of the car was emerging.) Is the wait worth it if that new construction would be optimized by what my colleagues Sonia Katyal and Eduardo Peñalver might call bicyclists’ productive disobedience? Notwithstanding my wish for a more top-down approach, it seems that lawyers and regulators have given more thought how to optimize traffic rules for driverless cars than for bicycles.
I was in London two weeks ago giving a paper, where the bike share system has made urban cycling even more ubiquitous than it is in New York. A few days’ observation found, just as in New York, cyclists ignoring red lights and going the wrong way on one way streets. But I didn’t see one instance in London of two cyclist behaviors I see regularly here: failing to stop for pedestrians and riding on the sidewalk. London cyclists’ disobedience seems more productive than New Yorkers’.
March 6, 2013 at 7:32 pm
Tags: automobiles, bicycles, driverless cars
Posted in: Administrative Law, Articles and Books
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The New York Fed and the Rule of Law
posted by Lawrence Cunningham
In Sunday’s New York Times, business columnist Gretchen Morgenson reported a piece of investigative journalism that is transcendently important, but whose complexity may have obscured that. It concerns secret dealings of the Federal Reserve Bank of New York. Morgenson explains the importance of her topic in terms of the threatened erosion of social trust that can occur when central banking officials engage in dubious behavior.
I would add that her topic, dubious dealings of central bankers, is of vital importance because those who run the FRBNY have enormous power in the field of banking regulation. They oversee the largest banks and provide direct input into the Financial Stability Oversight Council, the interagency government organization created by the Dodd Frank Act to oversee the financial system. It is empowered to intervene when the next financial crisis occurs, which could be later this year or five years or ten or what have you.
As with the financial crisis of 2008, these government actors, dominated by the FRBNY, will call all the shots about which institutions to save, sell or seize, on the one hand, and which creditors and shareholders to pay, wipe out or shortchange, on the other. How they exercise these powers is thus a matter of the utmost national interest. How they exercised them in the 2008 crisis remains both obscure and questionable. Read the rest of this post »
March 5, 2013 at 10:52 am
Posted in: Administrative Law, Bankruptcy, Corporate Finance, Current Events, Financial Institutions
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The Disclosure Crisis
posted by Ryan Calo
Thank you to Danielle for the lovely (re)introduction and to Concurring Opinions for inviting me to blog this month.
The Washington Law Review hosted a symposium Thursday entitled “The Disclosure Crisis,” which covered everything from privacy policies to restaurant hygiene grades. The gist of the conference, on my view, was that the only thing piling up faster than examples of mandated disclosure as a regulatory strategy is the evidence it does not work. Time and time again, officials choose to intervene in a given area by requiring companies and others to reveal information so that individuals can protect themselves and police the market. And time and time again, disclosure ends up helping few if any consumers or citizens actually make better decisions.
March 2, 2013 at 6:43 pm
Posted in: Administrative Law, Articles and Books, Behavioral Law and Economics, Law Rev (Washington)
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RUC-rolled
posted by Frank Pasquale
A few years ago, I noted that the American Medical Association/Specialty Society Relative Value Scale Update Committee (RUC) has a dominant role in suggesting payment levels to CMS. It raises hard questions about price-setting in the health care sector, many of which cannot be answered because its processes are opaque. Now we know that judicial relief will not improve things any time soon. As Brian Klepper reports, “On January 7, a federal appeals court rejected six Georgia primary care physicians’ (PCPs) challenge to the Centers for Medicare and Medicaid Services’ (CMS) 20-year, sole-source relationship with the secretive, specialist-dominated federal advisory committee that determines the relative value of medical services.” What was the complaint?
The core of the … physicians’ legal challenge was that the RUC is a “de facto Federal Advisory Committee,” and therefore subject to the stringent accountability requirements of the Federal Advisory Committee Act (FACA). This law ensures that federal bodies have panel compositions that are numerically representative of their constituencies, that their proceedings are open, and that methodologies are scientifically credible. In other words, FACA ensures that advisory practices are aligned with the public interest.
February 17, 2013 at 3:04 pm
Posted in: Administrative Law, Health Law
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For Transparency Sake?
posted by Danielle Citron
Recall after President Obama’s first inauguration the fuss made about his administration’s commitment to transparent government. The January 2009 Open Government memorandum seemed a fresh start for openness in the post-9/11 era. Now, four years later, drastic change in government secrecy has not materialized. Let’s take DOJ’s release to two Congressional intelligence committees the OLC memo authorizing the use of drone strikes to kill American civilians abroad considered terrorists. According to the New York Times, the administration had until 
now refused to even officially acknowledge the existence of the documents, which had been reported about in the media. This recent revelation is just one example of what we say–a commitment to transparency–is not what we do. Consider that in a 2010 memo, the DOJ endorsed “the presumption that [OLC] should make significant opinions fully and promptly available to the public.” Despite this stated goal and the stated goals of the Open Government memorandum, the Sunlight Foundation reports that DOJ is “withholding from online publication 39% (or 201) of its 509 Office of Legal Counsel opinions promulgated between 1998 and 2012.” That is not to say that we have made no progress. As the Sunlight Foundation explains, the Obama administration published a slightly higher percentage of its OLC opinions online when compared to its predecessor. From inauguration until March 28, 2012, the Obama administration published 63% (40 of 63) of its OLC opinions online whereas Bush administration’s published 55% (54 of 98) of its second term opinions online, and published 11% (20 of 187) of its first term OLC opinions online by January 20, 2005.
February 7, 2013 at 6:22 pm
Posted in: Administrative Law, Politics
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Implementing Health Reform
posted by Frank Pasquale
The Commonwealth Fund has recently reported on how states are lagging in implementing consumer protection aspects of the ACA. In case you are looking for a comprehensive overview of the options open to a state as it implements the MLR provisisons of the ACA, check out my colleague Tara Adams Ragone’s policy brief The Affordable Care Act and Medical Loss Ratios: Federal and State Methodologies. Though the piece focuses on New Jersey, its structure suggests the issues that will come up for many other states:
As part of sweeping health care reform in 2010, Congress established MLR requirements for health insurance issuers offering coverage in the group and individual health insurance markets, including grandfathered but not self-insured plans, hoping to increase the value consumers receive for their premiums and to improve transparency. Medical loss ratio refers to a measure of the percentage of premium dollars that a health insurance company spends on health care as distinguished from administrative expenses and profit, including advertising, marketing, overhead, salaries, and bonuses. Prior to the ACA, some states but not the Federal government regulated loss ratios. The new Federal MLR law, which went into effect on January 1, 2011, for the first time established a national MLR standard, which varies from existing state MLR requirements in important ways.
This Policy Brief analyzes the new Federal MLR requirements and how they intersect with and affect New Jersey law and its insurance markets. After providing background on medical loss ratios and highlighting the major similarities and differences between the existing Federal and New Jersey MLR regulatory schemes, this Brief examines several requirements and policy options that New Jersey must consider as it implements the Federal requirements. This Brief also includes appendices that provide more extensive details regarding the components of the Federal MLR requirements, New Jersey’s MLR legal structure, and research regarding experiences with loss ratios nationally and in New Jersey, pre- and post-the ACA.
My former student Ina Ilin-Schneider has also posted on the MLR, after authoring a very interesting paper on the state waivers granted (and denied) by HHS.
Finally, a quick note to recommend Ann Marie Marciarille’s several recent posts at PrawfsBlawg on ACA implementation and health policy generally. It’s hard to write about these topics gracefully and for a general audience, while conveying the expertise of a scholar. I think of her posts as real models on both counts.
X-Posted: Health Law Profs.
February 1, 2013 at 9:09 am
Posted in: Administrative Law, Health Law
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Moral Values and the Curriculum
posted by Chai Feldblum
What great fun to read all these posts!
There are three separate threads on the posts that I want to respond to: the impact of Robin’s analysis and exhortations on what our law school curriculum might look like; the three Rs: Robin, Robert (Cover) and Religion; and the intersection between moral values, relationships and marriage.
So, to the first –curriculum.
Among the changes I hope will follow from Robin’s work are significant changes to the law school curriculum. As Rebecca Lee notes:
As I see it, Robin’s challenge to law schools is particularly timely in light of the curricular revisions many schools are making in response to the changing legal economy. To best equip students to be lawyers and problem-solvers in the 21st century, it is becoming increasingly clear that law schools need to prepare their students to do more than just adjudicative analysis. Students will need a wider understanding of law and its uses and tools in various realms, and this training, I believe, can and should begin in the classroom. As law schools’ raison d’être evolves, so too should our legal commitments and methods, and this rethinking should likewise extend to our scholarship
I completely agree. Moreover, I think it is essential for law schools to give students a rich grounding in theories of justice concomitantly with teaching them such legal skills. Robin has noted in this book the importance of liberal progressives being able to deploy normative arguments that rely on a thick understanding of justice and moral goods and she will make an even more extensive argument on the importance of teaching students about justice in her forthcoming book about law schools. To me, giving students a rich grounding in theories of justice is imperative both to changing our legal approach and our scholarship in the manner that Robin is suggesting.
But I also can’t imagine having students learn about, and critique, theories of justice without also having a deep understanding of how our political system – which ultimately creates the body of laws that reflect our vision of justice — really, actually, and honestly works.
The lack of understanding on the part of the general public regarding the role and authority of the executive branch and the legislative branch sometimes takes my breath away. By virtue of their profession, lawyers should be leaders in educating people about how our lawmaking system actually works and in helping people engage in citizen democracy. But we don’t give our law students a comprehensive and rich understanding of lawmaking – the role of legislatures and agencies (as well as courts, which we cover quite well) in the making of law.
The good news is that this is beginning to change. Many schools are expanding their vision of what “teaching law” includes – which often extends to teaching students about advocacy in the political arena that makes law in the first place.
For this reason, I believe a forthcoming article on how law school clinics can lobby, co-authored by Professors Kevin Barry and Marcy Karin who head clinics that engage in both individual client work and policy work, is going to become a popular reading item. As Barry and Karin note in the beginning of their article:
In short, policy advocacy adds value for students, the law school, and the community. With respect to students, this type of clinical experience expands students’ toolkit of transferable legal skills and exposes them to the range of ways in which the law may offer solutions to a particular client or client base. It also responds to the growing student demand for policy advocacy opportunities and enables students to aspire to the highest ethical standards as set forth in the Preamble to the ABA Model Rules of Professional Conduct. These rules state that all lawyers “should cultivate knowledge of the law beyond its use for clients [and] employ that knowledge in reform of the law.” MODEL RULES OF PROF’L CONDUCT Preamble (2012) (emphasis added).
And finally, Jill Hasday’s post brought home to me how important students’ policy advocacy work can be – and what has been missing so far in those efforts, in terms of curriculum. Jill tells us:
Family caps, which at least nineteen states currently impose in some form, deny or limit TANF benefits to children conceived while their parents are already receiving TANF. For example, New Jersey’s TANF program provides that a family of two will ordinarily receive up to $322 a month, a family of three will ordinarily receive up to $424 a month, and a family of four will ordinarily receive up to $488 a month. These scant benefits are unlikely to cover a family’s basic needs, and New Jersey’s family cap limits them even further. New Jersey’s family cap means that a family that enters TANF with two people is still limited to just $322 a month if another child is born, $102 less than New Jersey itself otherwise thinks necessary for three people’s subsistence.
Well, the only reason there is not a mandatory family cap in ALL 50 states in this country is that, back in 1996, students in the Georgetown Federal Legislation Clinic who were working on behalf of their client, Catholic Charities USA, helped draft legal analyses and talking points against the family cap. The original welfare reform bill had required every state to have a mandatory family cap in its TANF program. Catholic Charities (the client) took the lead in organizing a coalition against that provision. Politics was such that the best Catholic Charities could get was a provision that permitted states to impose a family cap if they affirmatively chose to do so. The students who worked with Catholic Charities over the course of that year learned critical legal skills by doing that work and (from my perspective) helped advance social justice by eliminating the nationwide mandatory family cap.
But here’s my final point – the work of Georgetown’s Federal Legislation clinic on welfare reform (and on many other legislative and administrative issues over the past two decades) has enabled students to learn about the political system and the making of law, and to develop important legal skills. But there is SO much more about justice and values and normative goods (and arguments about normative goods) that could have been taught to the students if they had had available to them – as Robin calls for — a richer progressive natural law jurisprudence. Think about what more the students could have learned if part of the law school curriculum would have been to engage them in a substantive goods conversation about the family cap – at the same time that they were working on the issue in a practical way. (I can tell you — I did not engage the students in that conversation. But I would do so now, as a complement to their advocacy work.)
So to end with Robin’s words:
As I argue in my book, one other cost of contemporary liberalism’s commitment to this dubious premise [state neutrality toward conceptions of the good] is that partly as a consequence, we don’t have a progressive natural law: liberals disdain the entire tradition, in part, because of their antipathy toward conceptions of the good, and antipathy toward the notion that the state should entertain them. So the part of the natural law that I believe is of most interest — the part inspired by Aquinas and most developed by Finnis and his students, that explores the content of the common good and the role of the state, and of law, in realizing it — suffers from a lack of participation by those who ought to be most engaged.
Amen. (Designed as a segue to my next post: “The Three Rs: Robin, Robert (Cover) and Religion.”)
October 24, 2012 at 8:12 pm
Tags: law school curriculum, lawmaking, Politics
Posted in: Administrative Law, Symposium (Normative Jurisprudence)
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The Federal Reserve’s Marbury
posted by Gerard Magliocca
I wanted to add one more post about my research on central bank independence before I start writing up the paper. Everyone know that Marbury v. Madison is the cornerstone of judicial review (though you can certainly identify other important precedents in this respect). What is the equivalent for the Federal Reserve?
The answer, though it sounds obscure, is a 1951 Accord (usually called “The Accord”) between the Treasury and the Fed. At the start of World War II, the Fed entered into an agreement with the Treasury to finance our war debt by buying bonds and pegging interest rates at a very low level. When the war ended, the Treasury refused to release the Fed from this deal and continued to insist an on expansionary monetary policy. President Truman took a dim view of central bank independence, with the low point coming during the Korean War when the FOMC held one of its meetings in Truman’s office with Truman present. (Try to imagine a Supreme Court conference under similar conditions.) Not long after that, though, criticism of the Treasury’s position increased in Congress and on Wall Street, which resulted in “The Accord,” where the Fed was essentially released from the Treasury’s grip and the principle of independence established.
Now on to other subjects . . .
August 21, 2012 at 9:02 am
Posted in: Administrative Law
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“Would Winston Smith and Josef K. please return to the gate? Your flight is ready to depart.”
posted by Jeffrey Kahn
Yesterday the United States Court of Appeals for the Ninth Circuit released its opinion in Latif v. Holder. Ayman Latif is a U.S. Citizen and disabled Marine Corps veteran who lives in Egypt. Airport officials in Cairo prevented him from boarding a plane to return to the United States, where he needed to attend a scheduled disability evaluation. Latif sought help from the U.S. Embassy, but he alleges that months later, after lengthy FBI interviews and polygraph tests, American officials told him that he could fly to the United States only as a “one-time thing,” without any guarantee that he would be allowed to return to his wife and daughters in Egypt. He refused the offer and his benefits as a disabled veteran were cut.
Latif filed suit, along with other citizens and lawful permanent residents in the U.S. and abroad who alleged similar treatment. They all claimed that they were prevented from traveling because the United States Government placed them on its No Fly List. This unanimous court of appeals decision opens a door to judicial review that, until yesterday, the Government had succeeded in keeping tightly shut. After the break, I’ll provide a brief review of the current system and then analyze how the Ninth Circuit’s opinion presents a substantial opportunity for change.
(Full Disclosure: Readers might recall me as a past guest at Concurring Opinions. My bio is here and my interest in this case comes from my work on a book to be published in December by the University of Michigan Press called Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists.) Read the rest of this post »
July 27, 2012 at 5:02 pm
Posted in: Administrative Law, Constitutional Law, Uncategorized
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Are Liberals Under-Estimating the Chances that the Catholic Hospitals Will Win Against the Health Care Act?
posted by Peter Swire
(Disclaimer — I decided soon after law school not to focus most of my efforts on the Supreme Court or con law. There are brilliant people who work on it all the time, and I don’t. But I am a law prof who can’t help noticing some things …)
Last week, liberals went through the near-death experience for the Affordable Care Act — far, far, far closer than the confident predictions of most liberals when the law was passed.
This week, I had the chance to speak in depth with an experienced liberal lawyer about the Next Big Constitutional Thing — the Catholic hospital challenges to the ACA’s requirements that contraception and other coverage must be included for the employees of hospitals, universities, and other Catholic institutions that are not themselves part of the Church.
The lawyer confidently predicted that the Catholic hospitals would lose. After all, everyone knows the peyote case — Employment Division v. Smith, where a neutral state anti-drug law trumped a Free Exercise of religion argument that would have allowed an adherent to use peyote. The lawyer said there was no precedent for the Catholic hospitals to win, such a holding would disrupt innumerable neutral state laws, and even Justice Scalia would be bound by his prior writings to find against the Catholic hospitals.
My reaction — “here we go again.” It felt just like the over-confident predictions that the individual mandate inevitably would be upheld. And my friend sounded like other liberals who have scoffed at the claims of the Catholic hospitals.
My instinct — as a realist prediction of the outcome, and not as a statement of my policy choice — is that the Catholic hospitals very possibly will win if the case goes to final judgment in the courts.
First, I don’t think Justice Scalia will find that a law prohibiting peyote (a “good” and long-standing law) is remotely similar to a law requiring the Catholic Church, for the first time in history, to buy an insurance package that pays for contraceptives. He’ll think that the latter is a “bad” law.
Second, the Catholic Church has tens of millions of members in the U.S., and is not the splinter group at issue in the earlier case. In a realist analysis, the views of a tiny church are not the same as those of the largest organized Church in western history.
Third, the views of the Church on contraception are sincere, widely publicized, and long-standing. Although many individual Catholics don’t follow the doctrine on this issue, the institution of the Church is firmly on record on the issue. This is not a pretext to take mind-altering drugs; it is a major doctrinal tenet.
Fourth, many Catholic hospitals are deeply religious institutions. They often have a cross and a Bible in each room. Many nuns and priests work in the hospitals. Providing health care is deeply rooted in the mission of the Church, and has been for many years. In other words, this is not the equivalent of “unrelated business income.” Instead, religion and healing of the sick are thoroughly intertwined.
Fifth, and my apologies for mentioning it, six of the nine Supreme Court justices are Catholic. I am not saying that a Catholic judge will hold for the Church any more than a white judge holds for whites and a black judge holds for blacks. However, the justices will have deep personal knowledge of the healing tradition of Catholic hospitals. They will read the briefs in the context of their personal knowledge. I don’t think they will lightly assume that they are bound by cases with facts that seem to them quite different.
After we went through this list, my liberal friend said that he had adjusted his prediction. He now thought that some of the district court cases, at least, would go for the Church. He then added an extra idea — the case may arise under the Administrative Procedure Act, on whether the HHS rule was properly promulgated and consistent with the statute. His point was that a court may have a “procedural” way to block the rule from mandating that the Catholic hospitals pay for insurance that covered contraceptives. That might be an easier path for a judge to take than overturning Free Exercise case law, if the judge were inclined to stop the rule from taking effect.
Currently, there are over 20 challenges by Catholic hospitals to this provision. Smart lawyers in each case will be trying to define distinctions that will retain the peyote precedent while letting the hospitals win this case. Randy Barnett and others had a huge success with the “action/inaction” distinction about the individual mandate. My realist instincts are that we will see the emergence of clever, new distinctions for the hospital cases.
I think that many liberal con law experts were complacent when the individual mandate was challenged. If they are complacent again about the Catholic hospital cases, then I, for one, will not be surprised to see the current HHS approach struck down.
July 6, 2012 at 10:56 pm
Posted in: Administrative Law, Constitutional Law, First Amendment, Health Law, Insurance Law, Supreme Court
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Volume 59, Issue 5 (June 2012)
posted by UCLA Law Review
Volume 59, Issue 5 (June 2012)
Articles
| Implicit Bias in the Courtroom | Jerry Kang et al. | 1124 |
| The Supreme Court’s Regulation of Civil Procedure: Lessons From Administrative Law | Lumen N. Mulligan & Glen Staszewski | 1188 |
Comments
| Techniques for Mitigating Cognitive Biases in Fingerprint Identification | Elizabeth J. Reese | 1252 |
| Credit CARD Act II: Expanding Credit Card Reform by Targeting Behavioral Biases | Jonathan Slowik | 1292 |
| Shocking the Conscience: What Police Tasers and Weapon Technology Reveal About Excessive Force Law | Aaron Sussman | 1342 |
July 1, 2012 at 2:39 pm
Posted in: Administrative Law, Behavioral Law and Economics, Civil Procedure, Constitutional Law, Consumer Protection Law, Courts, Evidence Law, Law Rev (UCLA)
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Stanford Law Review, 64.5 (2012)
posted by Stanford Law Review
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Volume 64 • Issue 5 • May 2012 |
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Articles Securities Class Actions Against Foreign Issuers How Much Should Judges Be Paid? Note |
June 19, 2012 at 1:37 am
Posted in: Administrative Law, Anonymity, Behavioral Law and Economics, Civil Rights, Courts, Disability Law, Economic Analysis of Law, Employment Law, Financial Institutions, Law Rev (Stanford), Law Rev Contents
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Swindling/Selling, Bribing/Contributing, Extorting/Taxing
posted by Peter Swire
At the recent Security and Human Behavior conference, I got into a conversation that highlighted perhaps my favorite legal book ever, Arthur Leff’s “Swindling and Selling.” Although it is out of print, one measure of its wonderfulness is that used copies sell now for $125. Then, in my class this week on The Ethics of Washington Lawyering (yes, it’s a fun title), I realized that a key insight from Leff’s book applies to two other areas – what is allowed in campaign finance and what counts as extortion in political office.
Swindling/selling. The insight I always remember from Leff is to look at the definition of swindling: “Alice sells something to Bob that Bob thinks has value.” Here is the definition of selling: “Alice sells something to Bob that Bob thinks has value.” See? The exchange is identical – Bob hands Alice money. The difference is sociological (what society values) and economic (can Bob resell the item). But the structure of the transaction is the same.
Bribing/contributing. So here is a bribe: “Alice gives Senator Bob $10,000 and Bob later does things that benefit Alice, such as a tax break.” Here is a campaign contribution: “Alice gives Senator Bob $10,000 and Bob later does things that benefit Alice, such as a tax break.” Again, the structure of the transaction is identical. There are two likely differences: (1) to prove the bribe, the prosecutor has to show that Bob did the later action because of the $10,000; and (2) Alice is probably careful enough to give the money to Bob’s campaign, and not to him personally.
Extorting/taxing. Here is the classic political extortion: “Alice hires Bob, and Bob has to hand back ten percent of his salary to Alice each year.” Here is how it works when a federal or state government hires someone: “Alice hires Bob, and Bob has to hand back ten percent of his salary to Alice each year.” The structure of the transaction is the same – Bob keeps 90% of the salary and gives 10% to Alice. The difference here? Like the previous example, the existence of bureaucracy turns the bad thing (bribing or extorting) into the acceptable thing (contributing/taxing). In the modern government, Alice hires Bob, and Bob sends the payment to the IRS. The 10% does not go to Alice’s personal use, but the payment on Bob’s side may feel much the same.
For each of these, drawing the legal distinction will be really hard because the structure of the transaction is identical for the lawful thing (selling, contributing, taxing) and for the criminal thing (swindling, bribing, extorting). Skeptics can see every transaction as the latter, and there is no objective way to prove that the transaction is actually legitimate.
I am wondering, did people know this already? Are there citations to previous works that explain all of this? Or, perhaps, is this a simple framework for describing things that sheds some light and merits further discussion?
June 16, 2012 at 9:22 pm
Posted in: Administrative Law, Consumer Protection Law, Criminal Law, Economic Analysis of Law, Election Law, Legal Theory
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Nepotism and the Cabinet
posted by Gerard Magliocca
Title 5, §3110 of the United States Code states:
A public official may not appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official.
This anti-corruption statute is reasonable enough, but the plain language also applies to the President. In other words, John F. Kennedy could not have appointed Robert Kennedy as Attorney General if this provision had existed in 1961. (The statute was enacted in 1967, probably in response to RFK’s nomination.)
I have serious doubts that Section 3110 is constitutional as applied to a President. First, as far as I can tell, this is the only statutory limit on the President’s authority to choose his political appointees. Separation-of-powers would suggest that Congress cannot intrude so bluntly into his discretion to choose close advisors. Second, if the position is subject to Senate confirmation, that represents an adequate check on executive excess. Third, presidents would take a significant political hit if they abused their appointment authority to help out friends and relatives. (BTW, what does relative mean? Any relation? Only a spouse, child, or sibling?)
June 4, 2012 at 9:14 pm
Posted in: Administrative Law
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The Right to Data Portability (RDP) as a Per Se Anti-tying Rule
posted by Peter Swire
Yesterday I gave a presentation on “The Right to Data Portability: Privacy and Antitrust Analysis” at a conference at the George Mason Law School. In an earlier post here, I asked whether the proposed EU right to data portability violates antitrust law.
I think the presentation helped sharpen the antitrust concern. The presentation first develops the intuition that consumers should want a right to data portability (RDP), which is proposed in Article 18 of the EU Data Protection Regulation. RDP seems attractive, at least initially, because it might prevent consumers getting locked in to a software platform, and because it advances the existing EU right of access to one’s own data.
Turning to antitrust law, I asked how antitrust law would consider a rule that, say, prohibits an operating system from being integrated with software for a browser. We saw those facts, of course, in the Microsoft case decided by the DC Circuit over a decade ago. Plaintiffs asserted an illegal “tying” arrangement between Windows and IE. The court rejected a per se rule against tying of software, because integration of software can have many benefits and innovation in software relies on developers finding new ways to put things together. The court instead held that the rule of reason applies.
RDP, however, amounts to a per se rule against tying of software. Suppose a social network offers a networking service and integrates that with software that has various features for exporting or not exporting data in various formats. We have the tying product (social network) and the tied product (module for export or not of data). US antitrust law has rejected a per se rule here. The EU proposed regulation essentially adopts a per se rule against that sort of tying arrangement.
Modern US and EU antitrust law seek to enhance “consumer welfare.” If the Microsoft case is correct, then a per se rule of the sort in the Regulation quite plausibly reduces consumer welfare. There may be other reasons to adopt RDP, as discussed in the slides (and I hope in my future writing). RDP might advance human rights to access. It might enhance openness more generally on the Internet. But it quite possibly reduces consumer welfare, and that deserves careful attention.
May 17, 2012 at 3:56 pm
Tags: Antitrust, Privacy, right to data portability
Posted in: Administrative Law, Antitrust, Cyberlaw, Economic Analysis of Law, Privacy (Consumer Privacy), Web 2.0
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UCLA Law Review Vol. 59, Issue 4 (April 2012)
posted by UCLA Law Review
Volume 59, Issue 4 (April 2012)
Articles
| Liability Holding Companies | Anat R. Admati, Peter Conti-Brown & Paul Pfleiderer | 852 |
| Congress in Court | Amanda Frost | 914 |
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April 28, 2012 at 7:29 pm
Posted in: Administrative Law, Constitutional Law, Corporate Law, Intellectual Property, Law Rev (UCLA)
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