Friday, January 19, 2018

Uberizing Nonemergency Medical Transportation

I suppose you know you are well on your way to becoming a cultural icon when others invoke your brand as the avatar of a kind of disruptive force needed in other industries, hence all the declarations of the need for an Uber for health care.  At this point, I think health care services that connect patients/consumers via gig-economy style apps for the provision of on-demand health care are interesting but not as immediately interesting as the development and application of Uber's transportation revolution principals to non-emergency health care transportation.  Actually, it is Lyft that has been more fashion forward in this area, though I've yet to find the assertion that we need to "Lyftize" non-emergency health care transportation.

What is NEMT? Well, it is a roughly $2.7 billion a year industry. Historically, this has meant the ride share van or voucherized taxi ride for the government funded health insurance beneficiary who needs, for example, periodic and regular transportation to a dialysis clinic or an infusion center.  Eligibility for this program  was targeted toward those without a driver's license or a car or access to a family member or friend who might provide this service and who was deemed too low income to buy needed nonemergency medical transportation in the open market. This targets a demographic that is older, low income, and  chronically ill. The system was famously creaky for the same reason all taxi services, before the scramble to try to adopt Uber-Style booking, were so creaky.  A fair number of rides booked in advance never occurred.  Wait times in excess of an hour at both ends of the transport were not uncommon.  Missed dialysis or infusion appointments, as a result, were also not uncommon for NEMT eligible patients.

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Posted by Ann Marie Marciarille on January 19, 2018 at 06:00 AM in Current Affairs | Permalink | Comments (0)

Thursday, January 18, 2018

National injunctions on NPR

Earlier Thursday, I appeared on AirTalk on KPCC (Southern California Public Radio) with Amanda Frost (American) to debate universal/national/nationwide injunctions. (I was filling in as the extremely poor-man's Sam Bray).

Posted by Howard Wasserman on January 18, 2018 at 06:49 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Speaking truth to power v. exercising actual power

I appreciate Sen. Flake's words about Donald Trump and the rhetorical threat he poses to free-speech and republican values. But it is difficult not to see it as 1) something that hundreds of people have been saying for two years in the media, blogs, and other places and 2) empty words.

On the second point: Free speech is important because of its power to persuade. But a democratic theory of free speech recognizes that speech is a form of influence for those who lack formal political or governing power or influence. Words alone therefore ring hollow when unaccompanied by action by a person in a position of power. That is what I see with respect to Flake--he has repeatedly criticized the President, but like most other congressional Republicans has fallen in line with what he wants when (as in most situations) it aligns with Republican policy preferences. So the words are nice. But they do not achieve much when Flake's own voting conduct undermines them.

Posted by Howard Wasserman on January 18, 2018 at 06:35 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Wednesday, January 17, 2018

Universal, Not Nationwide, and Never Appropriate

The first draft of my article on universal injunctions is now on SSRN: Universal, Not Nationwide, and Never Appropriate: On the Scope of Injunctions in Constitutional Litigation. I wrote this for a symposium at Lewis & Clark, which gave me a chance to get my thoughts on the subject on paper. And while this is an early draft, I wanted to get it out there, as this has become a hot topic both in the scholarly literature and the press. Comments welcome.

Moving forward, I will combine this piece with a discussion of judicial departmentalism to create a larger model of incremental constitutional litigation.

Posted by Howard Wasserman on January 17, 2018 at 05:34 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (13)

Big Banks, Blockchain, and Patents

A recent study conducted by Envision IP reviewed patenting activity in the U.S. for the blockchain industry and determined that Bank of America was the single most active player in this space.  Specifically, the study identified 1,045 U.S. patents and patent applications (which are generally made public 18 months after filing) related to blockchain, and found that B of A topped the list with 43, followed by MasterCard International and IBM, each with 27.  Overall, financial services firms own 20% of the U.S. patents and published applications related to blockchain, second only to start-ups and other companies focused on blockchain technology who own close to 60%.  Coming in third, somewhat surprisingly, are traditional technology companies with only about 13% (IBM, which has been the largest U.S. patent owner for 25 years, is an outlier here).  Of course, the blockchain industry is still young and the patent landscape could certainly change.  But these early findings, especially about the financial industry's patenting activity, are notable. 

As my colleague, Heidi Mandanis Schooner, and I wrote about in Big Banks and Business Method Patents, the financial industry was reluctant in the past to protect its innovation with patents and relied on other means (e.g., trade secrets).  Indeed, in the years leading up to the America Invents Act—comprehensive patent reform legislation passed in 2011— the financial lobby persuaded Congress to include a special carve out that made it easier to invalidate financial patents because the big banks were being sued by so-called “patent trolls.”  At the same time, however, we began to see an uptick in banks seeking patents of their own, and we wondered what the future might look like if financial institutions became major players in the patent system, much like the pharmaceutical and technology industries are today.  Because the use of blockchain and other financial technologies (known as FinTech) have expanded rapidly over the past few years, Professor Schooner and I are now working on a follow-up article that explores the current relationship between the financial industry and the patent system and the potential implications for innovation.

Posted by Megan La Belle on January 17, 2018 at 01:58 PM | Permalink | Comments (4)

Tim Wu on Unconventional “Private” Threats to Freedom of Speech

Tim Wu has circulated an important and insightful article asking whether the First Amendment is obsolete. I want to highlight here one of Wu’s arguments, because he says much better what I attempted to argue in a recent post: Freedom of speech is threatened by attacks that the First Amendment does not address, such as the “unleashing ‘troll armies’ to abuse the press and other critics.” As Tim notes, “[s]ome suppression of speech is disturbing enough to make one wonder if the First Amendment and its state action doctrine (which holds that the Amendment applies only to actions by the state, not by private parties) are hopelessly limited in an era when harassment is so easy.”

Tim has some interesting suggestions about how the “state action” doctrine might be tweaked to address these new threats. Although he offers a couple of arguments for expanding the concept of “state action” to treat ostensibly private persons who suppress speech as state actors, I take these suggestions to be doctrinal and political non-starters and bad ideas: We do not need constitutional centralization in this fraught area. His more interesting (to me) suggestion is that the First Amendment get out of the way, so that state and federal law can protect us from private threats to freedom of speech. As an example, Tim flags United States v. Moreland, in which a district court upheld against a First Amendment challenge liability under the federal anti-cyberstalking statute for trolling harassment of a journalist. My only caveat is that I prefer state over federal law as a way to manage these new “private” threats to freedom of speech. Our disputes about the scope of the right to harass is a reasonable and deep disagreement requiring decentralized accommodation. I’d urge that SCOTUS read various First Amendment concepts capaciously (for instance, “reckless disregard for truth” in Gertz) to accommodate these subnational experiments.

In any case, the article is short and important, written by someone writing with exceptional authority about the governance of the internet. As Larry Solum likes to say, “download it while it’s hot!”

Posted by Rick Hills on January 17, 2018 at 01:40 PM | Permalink | Comments (0)

Call for Submissions: Yale/Stanford/Harvard Junior Faculty Forum

The following is from the Yale/Stanford/Harvard Junior Faculty Forum, to be held at Harvard on June 13-14.

Yale, Stanford, and Harvard Law Schools are soliciting submissions for the 19th session of the Yale/Stanford/Harvard Junior Faculty Forum, to be held at Harvard Law School on June 13-14, 2018. Twelve to twenty junior scholars (with one to seven years in teaching) will be chosen, through a blind selection process, to present their work at the Forum. One or more senior scholars will comment on each paper. The audience will include the participating junior faculty, faculty from the host institutions, and invited guests. The goal of the Forum is to promote in-depth discussion about particular papers and more general reflections on broader methodological issues, as well as to foster a stronger sense of community among American legal scholars, particularly by strengthening ties between new and veteran professors.

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Posted by Howard Wasserman on January 17, 2018 at 12:26 PM in Teaching Law | Permalink | Comments (0)

A competing voice on laptop bans

Ruth Colker (Ohio State) in Cardozo Law Review. Colker comes at the question from the standpoint of working with students with a range of disabilities and learning styles, as well as an impromptu empirical study comparing performance of laptop users and non-laptop users in her Con Law class. She argues that these results may tell us more than the leading empirical studies, which took place in an artificial setting and did not account for real law students reading and preparing in advance or for real law students having a strong motive to prepare and learn, regardless of which group they were in.

Worth a read.

Posted by Howard Wasserman on January 17, 2018 at 10:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, January 16, 2018

Say It Isn’t So, Tim

Sarah Kliff once noted that Tim Jost was “scary fast/good” with his health law and policy analysis. I could not agree more. Tim Jost’s consistently stellar blogging on all things health law and health regulation-related has been a tremendous resource for me and for my students as we work to keep up in a fast-developing area.

I wish Tim well in all the spare time he will surely have now that he has decided to end his Health Affairs  ACA-blogging, close to  nine years and over 600 blog posts later. 

I wonder if some of Tim’s more remarkable posts might not make a fine book of collected essays on health care reform, how the sausage was made.

Some of my favorites, for those of you who have not dabbled in this area, include (in no particular order):

Implementing Health Reform: Essential Benefits and Medical Loss Ratios (Feb. 18, 2012)

Taking Stock of Health Reform: Where We’ve Been and Where We’re Going (Dec. 6, 2016)

The Tax Bill and the Individual Mandate: What Happened and What Does It Mean   (Dec. 20, 2017)

Tim, you truly are the horse whisperer of ACA regulatory interpretation and policy analysis.  Katie Keith is up and running with quality output, I know.  You will be missed.  

(Oh, and I give no credence to the vicious rumor that you stepped back just before the association health plan regulation was issued. You never balked at a challenging assignment.)

 

Posted by Ann Marie Marciarille on January 16, 2018 at 09:33 PM | Permalink | Comments (0)

Argument recap in Hall v. Hall (Updated)

My SCOTUSBlog recap of the argument in Hall v. Hall is available. I think it will be the rout I expected. Petitioner's counsel did well and the Justices asked pointed questions and seemed dubious about aspects of both sides. But I think the respondent has the better of this because consolidation must mean something unique.

Update: Two additional thoughts.

Petitioner's counsel suggested a rule that reflects how I sometimes teach this material: Cases can be consolidated for all purposes only if the parties could have joined them in one action at the outset; if so, they become a single case requiring one final judgment. Otherwise, joinder is for limited purposes, the cases are not merged, and remain separate for finality. I teach this is how some courts approach consolidation, since 42(a) should not be allowed to override party choice in framing a case. Respondent's argument is that this may not help petitioner because the consolidation was for all purposes and petitioner waived the argument by not challenging or appealing the consolidation.

This case offers a good hypothetical on the various forms of joinder and their limits, an issue Ginsburg probed a bit at argument. The original lawsuit was brought by Ethlyn, their mother, against Samuel; when Ethlyn died, Elsa became plaintiff as executrix of the Ethlyn's estate. Samuel tried to bring his alienation-of-affection claim against Elsa as a counterclaim, but could not because Elsa in her individual capacity was not the plaintiff, so they were not opposing parties. Samuel likely considered impleading Elsa in her individual capacity, but could not, because the alienation claim was not contingent on the estate claims. All that was left was a separate lawsuit.

Posted by Howard Wasserman on January 16, 2018 at 09:31 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (1)

The Ansari Incident and Preposterous Role of “Consent” in Liberal Political Theory

The controversy over the Ansari Incident (see Caitlin Flanagan in the Atlantic and Bari Weiss in the Times) seems to me a good example of the preposterous role played by the concept of “consent” in many versions of liberal political theory. I mean “preposterous” in the original and literal sense of the word: Putting that first which ought to come second. Consent-obsessed liberal theory makes the practical and moral significance of an action hinge on consent. In reality, however, the meaning and proof of “consent” depend on the practical and moral significance of the action for which consent is required. The wildly divergent responses to the Ansari Incident show that we have zero consensus on the significance of sex and, therefore, zero consensus about the presence or absence of real consent.

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Posted by Rick Hills on January 16, 2018 at 11:53 AM | Permalink | Comments (20)

Monday, January 15, 2018

NY Times on (improperly named) nationwide injunctions

In the wake of a decision enjoining the DACA-repeal regulations, the Times has an article on recent nationwide/universal injunctions, especially in immigration cases. The article includes comments from Sam Bray (who wrote the definitive piece on the subject). (I have been writing about this at Prawfs for a while and my own effort in the debate, for a symposium at Lewis & Clark later this year, will be on SSRN in a few days).

A few thoughts on the article (much of which I have talked about and will hit in the forthcoming paper) after the jump.

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Posted by Howard Wasserman on January 15, 2018 at 07:51 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4)

Sunday, January 14, 2018

Judging balls and strikes in Husted

I am a few days late on this from the oral argument in Husted v. A Philip Randolph Institute, on whether an Ohio process of removing voters from voting rolls based, in part, on failure to vote violated federal law. (I listened to the audio rather than reading the transcript, but could not to so until this weekend).

On a substantive point, it is interesting to hear Paul Smith, the respondent's attorney, the Chief, and Justice Alito repeatedly talk past one another. Ohio's program goes as follows--if a voter fails to vote in a two-year period, a notice is sent to the voter's listed address; if the voter fails to return the notice card and does not vote in the next four-year period, she is removed from the rolls. The Chief and Alito repeatedly pushed Smith as to whether failure to vote could be used to confirm other evidence that a person had moved or died, in this case, the non-return of the card; Smith argued that the program relied on failure to vote (in violation of federal law), because the non-return of the card was not reliable evidence of moving and the state had no other evidence of the voter having moved other than the failure to vote. The Justices never seemed to catch that argument or how it differed from what they were saying.

On a fun point, Smith and Justice Kagan showed that judging really is about balls and strikes with the following exchange, on proximate cause:

MR. SMITH: * * * And calling the non-return of the notice the proximate cause is like saying when you strike out, the only proximate cause is strike two. It just doesn't -- it doesn't really make sense.

* * *

JUSTICE KAGAN: I don't understand why it's just -- it is proximate cause, but both -­ strike one, strike two, strike three. They're all proximate causes of the strikeout.

MR. SMITH: Well, I agree with that, Your Honor, as well.

Posted by Howard Wasserman on January 14, 2018 at 03:02 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Saturday, January 13, 2018

Baseline Hell, Mob Rule, and the First Amendment: Are Gossip, Doxxing, and Other Private Sanctions Exercises of, or Attacks on, Freedom of Speech?

As (both of) my readers know, I am an enthusiastic collector of constitutional disputes that end up in baseline hell. Baseline hell occurs wherever social norms about entitlement are so contested that any change in the status quo can be painted as either the exercise or invasion of private rights. One can discover zero-sum games in a variety of constitutional contexts -- for instance, in the doctrine of regulatory takings and zoning, in anti-commandeering/state autonomy doctrine, in the conflict between religious free exercise and anti-establishment rights, and in campaign finance law.

The various reactions to Moira Donegan's outing herself as the creator of the "Shitty Media Men" list suggest another addition to my diabolical collection. In the "Shitty Media Men" Saga, four sets of private speakers claim some sort of moral or legal right either to be free from, or to engage in, anonymous speech. First, as Andrew Sullivan notes, those allegedly shitty media men who allegedly sent "creepy" texts complain about anonymous accusations that do not let them confront their accuser, see the evidence against them, or proffer any rebuttal. Second, Harper's was threatened with Twitter mobs trying to scare the magazine away from publishing the identity of the person who accused these men. Third, as Sophie Gilbert and Robyn Pennacchia note, women cannot easily protect themselves from shitty conduct by media men except by anonymously pooling alleged information about the men's alleged shittiness, because public accusations expose the women to horrific alt-right harassment (to which Donegan is now exposed). Finally, judging by the First Amendment defense raised by Andrew Angelin, the neo-Nazi blogger who doxxed a woman for criticizing a fellow white supremacist thereby exposing her to hundreds of harassing messages, those alt-right harassers will certainly claim a freedom to harass anonymously. Everyone's right to anonymous communication, in sum, seems to threaten everyone else's right of anonymous communication: It is baseline hell with an infernal vengeance.

Does anyone have a persuasive way to negotiate these rival claims to engage in anonymous speech? I do not mean to ask whether you can produce a brief persuasive by the usual standards of the usual cases (Snyder, Gertz, etc.). Of course, you can, O Law Prawf (or even smart 3L). (For a good example of this sort of case-jockeying, see Eugene Volokh's amicus brief in Walker v. Maryland). Instead, I am asking whether anyone has created what existing doctrine patently has failed to provide -- a framework that genuinely protects freedom of speech not only from content-based "state action" but also from private mobs like those in "Gamergate".

My hypothesis: Since New York Times v. Sullivan, First Amendment doctrine has obsessed about content-based common law rules but ignored content-based mob rule, because First Amendment speech doctrine has no intelligible theory of state action. If internet Night Riders don their hoods and gallop off to lynch someone on Twitter, email, or voice mail, it is no concern of SCOTUS, because the vigilantes are not "state actors." The cure for doxxing is apparently more doxxing. Yet everyone knows that such "private" action chills speech as a practical matter: Just ask Donegan, the men she outed, or the magazine that attempted to out her.

Has SCOTUS, in short, relegated us all to a Hobbesian baseline hell in which, in the name of free speech and an utterly undefended theory of state action, everyone is terrified of speaking, because everyone is entitled to terrorize everyone else's speech with one or another sort of mob rule?

Posted by Rick Hills on January 13, 2018 at 09:06 PM | Permalink | Comments (19)

Friday, January 12, 2018

Adrian Vermeule’s Deliberately Distorted Understanding of “Liberalism”: Why Liberalism and Secular Rationalism are, historically speaking, more antonyms than synonyms.

Adrian Vermeule is writing about liberalism again. (For some earlier forays, just follow his twitter feed or read his excellent polemic on strategic Catholicism). Or, I should say, “liberalism,” because, for Vermeule's “liberalism” is a term of art with an idiosyncratic meaning. Vermeulean liberalism is synonymous with the late 18th Century French (not Scottish) Enlightenment and the French Revolution. These movements, according to Vermeule, created a religious passion play in which Reason repeatedly defeats Superstition by liberating individuals from mental as well as political loyalties to rival institutions or beliefs — Christianity or other religions aside from Reason itself, family ties, national cultural traditions, etc. Instead, the individual must follow Reason alone, meaning something fairly abstract like some sort of inductive method, some system of deductive logic, and perhaps some sort of utilitarian ethics. The achievement of such Enlightenment requires that a clerisy of enlightened elites shame superstitious boors, from bakers to florists, into a ruthlessly enforced conformity with whatever is currently deemed to be required by Reason or forbidden as Superstition. Contrary to the libertarian rhetoric of liberalism, this religion of liberalism’s Reason, therefore, is brutally centralizing, intolerant of dissent, and, well, illiberal.

If I had to choose between Vermeule’s version of “liberalism” and whatever Vermeule takes to be its more palatable opposite, then sign me up for Vermueleanism, as-is and sight unseen (and Vermeuleanism is indeed a mystery -- some sort of integralist Catholic Monarchy? A de Maistre-style re-interpretation of our Constitution? Search me). But the choice is a false one -- a rigged agenda designed to produce a Vermeule-friendly outcome. Here, for my fellow conservatives, is a quick reminder of two rival accounts of the meaning of “liberalism” or “liberty” that have nothing to do with Reason’s reign over Superstition and that work just fine for us conservatives who are only occasional readers of First Things.

First, recall that Scot sociologists and philosophers like John Robertson and Adam Smith used the term “liberal” in a political sense a decade before the French Revolution. Far from using “liberal” to denote any universal reign of reason, the Scots generally regarded “reason” as such to be mere deductive logic, devoid of content. (Remember that scotsman David Hume’s aphorism about reason being the salve of the passions? Or his friend Adam Smith's famously derision for systematizing intellectuals?). “Liberal” institutions were not intended to enforce the rule of Reason over Superstition but instead preserve the natural liberties of individuals from both. We call these Scots “classical liberals” today.

Second, recall that, more than a century before that Festival of Reason that Vermeule takes to be the origin of “liberalism,” the noun “liberty” was common usage for 17th century English revolutionaries. (For an exceptional collection of their tracts, see Joyce Malcom's collection). For these polemicists, our “liberties” were both institutional (e.g., Parliamentary, judicial, municipal) and individual bulwarks against the centralizing force of the New Monarchs like Louis XIV and Charles I. Far from being champions of Reason, these “liberals” were avid advocates of tradition (Edward Coke's and John Selden’s “ancient constitution”), religion (Milton’s and Henry Vane’s godly republicanism), or local political charters (James Harrington’s parishes, hundreds, and "tribes"). Against these revolutionary advocates of "libertye" were arrayed advocates of the new science like Thomas Hobbes and Sir Francis Bacon who cheered on the reign of one all-powerful sovereign King and one sovereign scientific method, ridiculing the “idols” of superstition and atavistic loyalty to mediating institutions. (If one balks at the anachronism of referring to commonwealth “libertyes” as “liberal,” then one should really bridle at Vermeule's using the term to describe the “liberté” of Robespierre).

In short, Vermeule has the etymology of the word “liberal” exactly backwards. Our rationalistic elites today, annoying to both Vermeule and myself, descend from Hobbesian and Baconian rationalistic centralisers. Those who first coined the word “liberal” or made “liberty” their central organizing principle of politics resisted the religion of Reason for a humanely traditionalist and, yes, even superstitious pluralism. Vermeule would likely cheerfully acknowledge that he is deliberately hijacking the term “liberalism” in order to crash it. I merely suggest to everyone else that they refrain from purchasing a ticket on that particular flight of fancy. You can be a proud anti-Jacobin conservative with a conservative Christian theology and, like G.K. Chesterton and William Gladstone, among, many, many others) claim the term of "liberalism" as your own.

Posted by Rick Hills on January 12, 2018 at 11:51 AM | Permalink | Comments (14)

Thursday, January 11, 2018

The Legality of Rescinding DACA With Minimal Reason-Giving: When are incomplete legal arguments "Arbitrary and Capricious"?

Adam Cox, Marty Lederman, and Cristina Rodriguez have offered four paragraphs over at Balkinization on why Secretary Duke's rescission of DACA might be illegal because Duke's reasons for the decision were "arbitrary and capricious" under APA section 706. (To be clear, the post is much longer than four paragraphs, but most of it is devoted to a primer on the legal meaning of DACA; only the last four paragraphs discuss the legality of rescission). Judge Alsup relied on such a theory in his opinion preliminarily enjoining this rescission. The indefatigable Josh Blackman wrote up a quick legal analysis for the the National Review in which he characterized Judge Alsup's opinion as "ludicrous," an analysis that I endorsed over Twitter.

An itchy twitter finger can lead one hastily to endorse views that one later regrets, but, even after reading Adam's, Marty's, and Cristina's typically measured and careful argument, I stand by my initial view that the DACA rescission is not arbitrary and capricious. The gist of the Cox-Lederman-Rodriguez (CLR) "substantive" (as opposed to Daniel Hemel's "procedural") argument against Duke's DACA rescission is that the Secretary relied exclusively on a legally insufficient reason contained in a one-page letter from Attorney General Sessions. Sessions, in turn, essentially relied on a simple syllogism that piggy-backed off of Judge Smith's opinion for the Fifth Circuit in United States v. Texas striking down the analogous deferred action program for parents of U.S. citizens ("DAPA"): (1) As per Judge Smith, DAPA was unauthorized by the Immigration and Naturalization Act ("INA"), (2) DACA is not legally distinguishable from DAPA, so (3) DACA is also unauthorized by the INA. CLR argue that this argument is legally insufficient, because DACA is, in fact, authorized by an obscure definitional provision of IRCA (8 U.S.C. section 1324h(a)(3)) allegedly giving the Secretary of DHS blanket authority to confer work authorization on any alien who is the beneficiary of deferred action, even if that deferred action stems entirely from an exercise of the Secretary's own enforcement discretion.

After the jump, I will take a deepish dive into the murky waters of section 1324h(a)(3) to offer my own assessment of this argument for statutory authorization. There is, however, a larger and more interesting point floating in this swamp of statutory detail: When an official rescinds an informal guidance of its predecessor on the grounds of wanting more fully to enforce a statute, how thorough must that official's reasons be? I am inclined to say, "not thorough at all." Cursory reference to roughly correct legal authority is good enough for government work here. My general reason -- more below -- is that an official's decision ought not to be vacated and remanded for more reason-giving when that official's reasons provided adequate notice to everyone about a legally sufficient basis for the decision. Where popular feelings run as high as they do in this area of deferred action, judges should not stall controversial policies with gratuitous demands for extra-precise reason-giving that, in substance, add nothing to the quality of the decision.. That sort of stalling tactic creates too great a risk of the judge's appearing to join #LegalResistance rather than writing a principled opinion.

Continue reading "The Legality of Rescinding DACA With Minimal Reason-Giving: When are incomplete legal arguments "Arbitrary and Capricious"?"

Posted by Rick Hills on January 11, 2018 at 02:51 PM | Permalink | Comments (12)

Wednesday, January 10, 2018

Federalism & Marijuana: Externalities vs. Minority Protection as Justifications for Federal Law

Mike Dorf has posted an article criticizing federalism-based attacks, like that offered by Ilya Somin, against General Sessions’ rescission of the Cole Memo, the DOJ enforcement policy that previously limited federal enforcement of the Controlled Substances Act against marijuana use. According to Dorf, respect for “local sentiment and opinion” is not generally a sound reason to relax or eliminate uniform national standards, because, “[i]f a problem truly calls for a vigorous national response, then federal prosecutors should be prepared to override local sentiment and opinion.” Dorf offers the example of local sentiment against the criminal prosecution of white people for committing crimes, including lynchings, against African Americans: Federal anti-lynching laws should be enforced precisely because such local sentiments violate national rights.

Of course, Dorf is perfectly right that the very purpose of federal law sometimes is to protect us from local sentiments. But Dorf’s Analogy is misplaced here, because the Controlled Substance Act is not such a federal law. Enacted as a regulation of commerce among the several states rather than as a guarantee of equal protection, the CSA has nothing whatsoever to do with protecting discrete and insular minorities from oppressive majorities. Instead, the function of the CSA (and the Commerce Power more generally) is to protect interstate commerce from any individual state’s under- or over-regulation that affects that state’s neighbors. In this context, where local sentiment offends no national rights, respect for local sentiment is a powerful reason to abstain from imposing or enforcing national law. Unless the CSA has a good-faith federal externality-suppressing purpose — that is, a purpose to prevent drugs from leaking across Colorado’s border or from lowering the price of drugs Wickard v. Filburn-style in drug-prohibiting states — the CSA serves no genuine national purpose.

The problem with the CSA is that the War on Drugs had nothing whatsoever to do with suppressing such “externalities” — that is, burdens imposed on people living outside an under- or over-regulating state inflicted by that state’s over- or under-regulation. Nixon pressed for the CSA to whip up his “Silent Majority’s” ire at various national minorities (hippies, the “counterculture, and, perhaps, racial minorities). That minority-suppressing purpose is not a “legitimate end” under McCulloch, because the right to be free from weed-toking neighbors is not a national freedom under the Civil War Amendments. In invoking a sort of reductio ad Jim Crow to justify laws like the CSA with strained analogies to lynching, Dorf suggests how our rhetoric of federalism has been debased by paranoia about majority factionalism dating from Madison’s Federalist #10. Those fears are legitimate in particular contexts, but they are not a standing invitation for national regulation that itself can constitute a suppression of minority rights to self-government — minority rights protected not by the Fourteenth but rather by the Tenth Amendment.

Posted by Rick Hills on January 10, 2018 at 03:32 PM | Permalink | Comments (6)

Is the Defend Trade Secret Act Defensible? Watch the IP Evil Twin Debate

My evil twin and I debated last week the DTSA passed in 2016, with Chris Cotropia as our moderator.  Here is the video of the debate, in case you missed it, or were there and want to watch it again.

A highlight: per the tradition of the evil twin debate, Michael and I each wrote the other's bio. Find out how I set the Wonder Woman franchise back a few years by not auditioning and going to law school instead...

Image result for evil twin

Posted by Orly Lobel on January 10, 2018 at 03:12 PM | Permalink | Comments (0)

Meme-ocracy and Prison Rape: How Our Slogan-Based Politics Destroys Reality-Based Government

As Natasha Lennard noted last month in an excellent Intercept piece, inmates of prisons and jails have not had their "Harvey Weinstein" moment. Only a couple of states have met their obligations under the federal Prison Rape Elimination Act (“PREA”), and some governors, like Texas' Abbott, have defiantly forfeited federal revenue rather than spend that federal money on rape prevention. #Metoo outrage just does not extend to raped prison inmates, including raped children, because prisoners never crafted a catchy hashtag or found themselves a charismatic celebrity spokesperson.

Our politics of hashtags and memes does not merely ignore prisoners but actually endangers their safety. The problem is that largely symbolic Culture War debates, when translated into the context of prisons, can have deadly practical consequences. Take, for instance, the Bathroom Wars. States laws that require transgender persons to use bathrooms of their biological sex rather than gender identity are pointless and insulting, but their material consequences are relatively small: It is unlikely that any state will create a bathroom police force to check anyone’s birth sex before entering the loo. When such Culture War symbolism invades prisons, however, it leads to trans-gendered inmates’ being assigned to male housing or “protective” segregation, where they are, at worst, raped and, at best, deprived of the prisons’ educational and exercise programs.

There is a non-trivial chance that the Trump Administration might endanger prisoners in reality for the sake of these vacuous Culture War memes. The ADF, an outfit devoted to defending religious freedom brought a lawsuit alleging that PREA rules protecting trans-gendered inmates from sexual violence constitutes cruel and unusual punishment of female inmates. Everything about the lawsuit reeks of right-wing meme, more worthy of Jerry Springer than a federal courtroom. ADF has no experience in litigating to protect prisoners’ safety. The lead plaintiff is, according to the Dallas News, an “ardent Trump supporter” who filed lawsuits alleging persecution based on her political beliefs and has alleged no specific threat from trans-gendered inmates. In Texas, in fact, trans inmates are the victims, not the perpetrators, of rape. In any case, the PREA rules allow specific worries about about particular inmates’ proclivity to sexual exploitation to be addressed through case-by-case measures. Yet ADF’s attorney reports that the DOJ might try to rescind PREA rules as settlement for this apparently frivolous lawsuit.

The case, in short, looks like a PR effort by a religious defense outfit to secure a symbolic opinion about the “real” sexual identity of trans-gendered prisoners in blithe disregard to the sober realities faced by actual inmates. Show biz is gradually what we have come to expect from the Trump Administration. I am nevertheless hoping that General Sessions, an early supporter of PREA as a Senator, will resist lurid meme-worthy fantasies, however appealing to “the base,” and choose fact-based government over Reality TV politics.

Posted by Rick Hills on January 10, 2018 at 11:31 AM | Permalink | Comments (2)

Federalism and the Death Penalty in the Trump Era

As this Washington Post article notes, Attorney General Sessions has now authorized two federal capital prosecutions, one in the Eastern District of Michigan.  As I wrote in this recent symposium piece, the federal government has a particularly bad record in seeking the death penalty in that district:  0 for 16.  Michigan, of course, does not authorize the death penalty and has not (except for treason) since 1846, which may help explain why juries in the relatively liberal eastern district are especially reluctant to impose the death penalty.

I would also be surprised if the federal government does not seek the death penalty in the case against Sayfullo Saipov, who, inspired by ISIS, mowed down about a couple of dozen people in his car last Halloween in Manhattan, killing eight of them.  There would be little reason for the federal government to engage in verbal gymnastics to get the case into federal court at all (more on that in a later post) other than to obtain a death sentence in another non-death-penalty State.

It might not surprise anyone to know that more federal capital prosecutions in non-death-penalty States were brought during the eight years of the Bush II presidency (39) than during the sixteen combined years of the Clinton and Obama presidencies (30).  Given that Sessions’s “tough on crime” rhetoric precedes him, I would expect that a Trump presidency will see more such cases brought than under the Obama administration.

Posted by Michael J.Z. Mannheimer on January 10, 2018 at 01:26 AM | Permalink | Comments (14)

Tuesday, January 09, 2018

Collins v. Virginia and the Remnants of Coolidge v. New Hampshire

Today, the Supreme Court heard argument in Collins v. Virginia, which addresses what limits, if any, remain on the “automobile exception” to the Fourth Amendment’s warrant requirement.  I have not yet had a chance to take a look at the transcript, and I may have further thoughts on this after I do.  But for those whose memory of criminal procedure is hazy, the Court has held in a long series of cases that police can generally search an automobile or other motor vehicle without a warrant as long as they have probable cause to think there is seizable evidence within.  The exception began as a sub-species of the “exigency” exception, the theory being that if police could not immediately search a vehicle, it could be easily driven away and out of the jurisdiction or, at least, would be much more difficult to later locate.  But the exception has morphed into a self-standing justification for dispensing with the warrant requirement such that the Court has applied it in cases where the car has already been impounded and there was no real danger of its being driven away.  The Court has also added a distinct justification to the exception:  the reduced expectation of privacy people have in their cars.

In Collins, Virginia police observed a motorcycle parked on Collins’s property within the curtilage of his house, and they had probable cause to believe that it had been used in a crime.  An officer entered the property, removed the motorcycle’s cover, and searched for and obtained the motorcycle’s VIN.  When he ran the VIN, he learned that the motorcycle had been stolen and Collins was later arrested for and convicted of receiving stolen property.

The Virginia Supreme Court affirmed his conviction, holding that the warrantless search of the motorcycle for its VIN was a reasonable Fourth Amendment search pursuant to the automobile exception.  In the U.S. Supreme Court, Collins challenges this determination given that the motorcycle was on his property, unlike the more typical case in which the automobile exception would apply, where the automobile is being driven on the highway when the police form probable cause to search it.  (Collins does not seem to challenge the removal of the motorcycle cover as a separate search, perhaps because there was obviously a motorcycle beneath it.)

Continue reading "Collins v. Virginia and the Remnants of Coolidge v. New Hampshire"

Posted by Michael J.Z. Mannheimer on January 9, 2018 at 08:29 PM in Constitutional thoughts | Permalink | Comments (1)

Argument preview: Hall v. Hall (Updated)

I have a SCOTUSBlog preview of next Tuesday's oral argument in Hall v. Hall, addressing when a judgment dismissing one action is final and appealable when multiple actions were consolidated for all purposes under FRCP 42.

On the papers at least, this one has the makings of a rout. The petitioner (who sought to appeal dismissal of one claim while another remained pending and who argues that consolidated cases remain separate for finality purposes) is represented by her trial counsel from the Virgin Islands, who does not appear to have argued before the Court; the respondent (who argues that there is no final judgment until all claims in the consolidated case are resolved) is represented by Neal Katyal. A group of retired federal district judges filed an amicus in support of the respondent.

Worse, the petitioner never engages on the critical issue in the case--how to treat actions consolidated for all purposes compared with actions consolidated for limited purposes, such as discovery or trial. The petitioner insists that consolidated actions retain their separate identities and that the case is controlled by the spare finality language of § 1291. There is no difference in the scope or nature of a consolidation,. But that position may be inconsistent with footnotes in Gelboim v. Bank of America (which involved a discovery-only MDL consolidation) that consolidation may be for all purposes and may require a different rule for finality and appealability. Rule 42(a)(2) contemplates consolidation as distinct from joining some issues for some purposes. And Gelboim seems to contemplate different types of consolidation. The question in Hall is how different types of consolidation affect finality. But the petitioner's lawyer never engages that question.

[Update: The petitioner's reply brief (which was filed after I submitted my piece) points to the trial court issuing separate Judgments in each case as evidence that the consolidation was for trial, not for "all purposes." It therefore does not matter how finality may be affected by consolidation for all purposes, because this consolidation was not for all purposes. As I noted in the preview, the nature of the consolidation is in dispute and something the Court may have to resolve. Given how loosely trial courts label orders as judgments or not, I am not sure this has as much explanatory power as petitioner hopes]

Posted by Howard Wasserman on January 9, 2018 at 11:15 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

JOTWELL: Campos on Shapira and Zingales on DuPont and discovery costs

The new Courts Law essay comes from Sergio Campos (Miami), reviewing Roy Shapira and Luigi Zingales, Is Pollution Value-Maximizing? The DuPont Case, which Campos uses to show the problem with focusing on discovery costs to the exclusion of the benefits discovery provides in revealing wrongdoing.

Posted by Howard Wasserman on January 9, 2018 at 11:10 AM in Article Spotlight, First Amendment, Howard Wasserman | Permalink | Comments (0)