- SCOTUS to hear case of Susan B. Anthony List v. Driehaus, First Amendment challenge to state laws regulating truth of political speech [IJ/Cato amicus cert brief]
- Groups of law professors file amicus briefs in Halliburton Co. v. Erica P. John Fund, Inc. arguing that retreat from “fraud on the market” theory is consistent with modern scholarship on capital market efficiency [John Elwood] and sound statutory construction [Elwood, Bainbridge]
- Behind the Michigan affirmative action plan in Schuette, including colorful background of litigant BAMN (“By Any Means Necessary”) [Gail Heriot, Federalist Society “Engage”]
- Court dismisses Mulhall v. UNITE HERE (challenge to employer cooperation agreement with union as “thing of value”) as improvidently granted [Jack Goldsmith, On Labor, earlier]
- Affordable Care Act saga has taken toll on rule of law [Timothy and Christina Sandefur, Regulation]
- Lol-worthy new Twitter account, @clickbaitSCOTUS, with content like “The nine words no appellate advocate wants to read” [re: Madigan v. Levin]
- Drug War vs. Constitution at Supreme Court, 1928: Drug War won by only one vote and you might not predict who wrote the most impassioned dissent [my Cato post]
Posts Tagged ‘ObamaCare’
Maryland roundup
Legislature’s back in session and no citizen’s liberties are safe:
- SB 65 (Benson) would require gas station dealers to maintain operational video cameras and retain footage for 45 days [Maryland Legislative Watch]
- HB 20 (GOP Del. Cluster) would require all public schools to hire cops [Gazette, MLW]
- SB 28 (Frosh) would lower burden of proof for final domestic protective orders from “clear and convincing” to “preponderance of the evidence” [MLW, ABA] One problem with that is that orders already tag family members as presumed abusers in the absence of real evidence, are routinely used as a “tactical leverage device” in divorces, and trip up unwary targets with serious criminal penalties for trying to do things like see their kids;
- Driving while suspected of gun ownership: what unarmed Florida motorist went through at hands of Maryland law enforcement [Tampa Bay Online] 2014 session in Annapolis can hardly be worse for gun rights than 2013, so it stands to reason it’ll be better [Hendershot’s]
- State begins very aggressive experiment in hospital cost controls: “I am glad there is an experiment, but I’m also glad I live in Virginia.” [Tyler Cowen]
- Scenes from inside the failed Maryland Obamacare exchange [Baltimore Sun] Lt. Gov.: now’s not the time to audit or investigate the failed launch because that’d just distract us from it [WBAL]
- Corridors run pink as Montgomery County school cafeterias battle scourge of strawberry milk [Brian Griffiths, Baltimore Sun]
- Plus: A left-right alliance on surveillance and privacy in the legislature [my new Cato at Liberty post]
- How did Maryland same-sex marriage advocates win last year against seemingly long odds? [Stephen Richer, Purple Elephant Republicans citing Carrie Evans, Cardozo JLG; thanks to @ToddEberly as well as Carrie and Stephen for kind words]
How could lawprofs have gotten the ACA case so wrong?
Again and again, as legal challenges to ObamaCare made their way forward, leading law professors dismissed as frivolous or inconsequential arguments that wound up convincing many or most Justices on the Supreme Court. David Hyman via Stephen Bainbridge:
Almost without exception, law professors dismissed the possibility that PPACA might be unconstitutional — but something went wrong on the way to the courthouse. What explains the epic failure of law professors to accurately predict how Article III judges would handle the case? After considering three possible defenses/justifications, this essay identifies five factors that help explain the erroneous predictions of our nation’s elite law professors, who were badly wrong,
but never in doubt.
Related: NYU Prof. Jonathan Haidt, who has written powerfully about the lack of ideological diversity in academia, has this page of resources on the subject. And don’t forget my book Schools for Misrule.
More: Nick Rosenkranz at Volokh back in April.
“Dubious achievements in privacy law”
Stewart Baker is running a year-end contest to name the most regrettable uses of privacy law over the past year. Among his nominations: the “Agriculture Department, which cited privacy grounds in refusing to name any of the beneficiaries of the notoriously fraud-ridden ‘Pigford‘ settlement”; Health and Human Services Secretary Kathleen Sebelius, who imposed millions of dollars in fines on private health companies for lacking adequate technical controls on the privacy of health data, “even when there was no evidence that any data had been compromised,” at the same time as her own department was launching healthcare.gov, a data intake site with much more critical privacy and safety flaws; racing mogul Max Mosley, who prevailed on a French court to order Google to de-index scandal coverage of Mosley’s recreational indiscretions; and federal judge Lucy Koh, for finding Gmail’s business model potentially violative of wiretap laws. All the examples above were winners in their categories, save Mosley who trailed behind two others in the category “Worst Use of Privacy Law to Protect Power and Privilege.”
“President Obama’s Top Ten Constitutional Violations of 2013”
Half of them arise from the White House’s ongoing effort to rewrite the terms of ObamaCare on the fly without actually going back to ask Congress to change the law. [Ilya Shapiro, Forbes]
Incidentally, the Executive Branch’s claim of power to suspend various provisions of the ObamaCare law at its whim stands on quite a different and weaker footing, constitutionally, from the well-established tradition of prosecutorial discretion (or the even more well-established power to pardon individual violators). In requiring the president to take care that the laws are faithfully executed, the Constitution’s Take Care clause necessarily implies that not all aspects of law enforcement can be suspended at executive whim, and discretion is necessarily narrower when it comes to the enforcement of statutes creating general civil schemes of private rights and regulation than it is in the realm of criminal enforcement, which necessarily labors under a scarcity of investigative and correctional resources. English kings like James II long asserted a “dispensing power” to suspend the operation of otherwise applicable laws at the royal will, but civil libertarians fought for centuries (and with much success) to cabin and curtail that power. Zachary Price of Hastings recounts some of this history, as well as contemporary readings of the Take Care clause, in a new article that is getting a lot of attention.
While on the topic: ObamaCare’s corporatism is sacrificing both the rule of law and transparency, argues Mickey Kaus [first, second] The program’s atomistic individualism [David Boaz] And Megan McArdle on the Administration’s “willingness to take large risks with the program’s stability” by altering rules.
Medical roundup
- “Essentially, the agency wants to ‘protect’ patients from knowing about their own health” [David Rivkin and Andrew Grossman, USA Today, earlier] FDA-defying workaround lets you get your info even if 23andme’s muzzled [Ron Bailey]
- “Insane Department of HHS plan would criminalize lifesaving bone-marrow donor incentives out of woolly concern with ‘altruism'” [Steven Pinker, Sally Satel/Bloomberg, Michelle Meyer/Bill of Health]
- Affordable Care Act opens up funding stream for alternative medicine. The start of something big? [Kevin Williamson, NRO]
- On underused Gotham hospitals, de Blasio is in hole of his own digging [Bob McManus, City Journal]
- ADA lawsuit against hospital a harbinger of others to come? [Peoria Journal-Star]
- If goal is access to affordable contraception, making Pill available over the counter would seem good first step [Shikha Dalmia/Time, earlier]
- Home-health-aide overtime rules are bad news for seniors hoping to stay out of nursing homes, but AARP can’t shake its scripted role as loyal union ally [More: Free Beacon, from 2011 on AARP brief in state overtime case; earlier here, here, and here]
Findings: “there exists an epidemic of naughtiness among the nation’s children…”
Whence Congress enacted and President Obama signed the NOEL law (Naughtiness Obliteration and Elimination Law of 2012):
…(1) Imposes a naughtiness “fee” of $50 upon each American child for every documented instance of their “naughtiness.” Revenues from this “fee” are to support the Federal Nice Fund (FNF), a newly created fund for public-works projects in NOEL-compliant states. (NOEL, § 3(a).)…
(4) To ensure full compliance, the NOEL bars any “person, group, or agency” that receives “funding, or any benefit from the federal government” from making a “material naughtiness determination” contrary to rules promulgated by the NRB, with the consequence of such a contrary determination being withdrawal of the federal funding and/or other benefit. (Id., § 22(z)(12)(F)(vii)(¥)(‰) (LOL)(¿)(?)(D).)…
Relax. It’s not real (yet). It’s just Prof. Kyle Graham’s constitutional law exam holiday card.
December 3 roundup
- The law blog that almost brought down ObamaCare [Trevor Burrus, Cato] “In Government, Nothing Succeeds Like Failure,” public policies being hard to adjust when they go astray [Peter Schuck, HuffPo]
- Sexual harassment claim: “Attorneys awarded more than 600 times damages in Calif. case” [Legal NewsLine]
- KlearGear, of non-disparagement fame, reaps the online whirlwind [Popehat, Public Citizen, Volokh, earlier]
- “What if American Exceptionalism, properly understood, really boils down to associational liberty?” [Richard Reinsch, Liberty Law] Do religious-liberty carve-outs in same-sex marriage laws go too far, not far enough, or neither? [Dale Carpenter et al. vs. Richard Garnett et al.]
- What jury didn’t hear in qui tam award against pipemaker JM Eagle [Daniel Fisher, more]
- Majority of appointed commissioners on Consumer Product Safety Commission is is no hurry to reduce inordinate CPSIA testing burdens, per retiring commissioner Nancy Nord (more);
- Woman who claims to own sun says she prevailed in lawsuit brought by man who claims to own universe [Lowering the Bar]
Medical roundup
- “In a nationally representative sample, higher patient satisfaction was associated with…increased mortality.” [White Coat/BirdStrike]
- Low premiums! Few glitches! Larger states “working faithfully to implement the law with as few glitches as possible”! New Yorker’s Oct. 7 “Talk of the Town” on ACA’s smooth launch is a retrospective hoot;
- Massachusetts Nurses Association goes all Venezuelan on hospital governance [Ira Stoll]
- “Can a healthcare provider make an arbitration agreement with patients for resolving future malpractice disputes?” [Alex Stein]
- “FDA Proposal To Curb Painkiller Overdose Deaths Would Add Burdens For Pain Patients” [Radley Balko]
- Georgia DUI expert in hot water [PennLive] “Deconstructing the mechanical engineer” [Manhattan; Eric Turkewitz]
- “FDA Suspension of Ponatinib: Serious Problem, Wrong Solution” [Richard Epstein, leukemia drug]
- “Missouri Lawmakers Override Veto to Enact Good Samaritan Law” [Michael Cannon, Cato]
Medical roundup
- Pressure from HHS leads day cares to ban practice of baby-swaddling, and not everyone’s pleased about that [Abby Schachter, Reason]
- “If Big Pharma likes your healthcare plan, you can keep it” [Tim Carney]
- For “those of us with polycystic kidney disease… stringent FDA regulation seems to be taking away hope” [Bill Brazell, Atlantic] And: speaking of the FDA, “Dallas Buyers Club Is a Terrific Libertarian Movie” [David Boaz, Cato] Also: New Peter Huber book, “The Cure in the Code: How 20th Century Law Is Undermining 21st Century Medicine” [Basic/Manhattan Institute, Wired]
- $7,440 annual expected loss per hospital bed in Florida vs. $810 in Minnesota, and other med-mal loss statistics [Becker’s Hospital Review via TortsProf]
- Charge: black lung defense firm finds ways to conceal medical expert reports from adversaries [Center for Public Integrity via Joe Patrice, Above the Law]
- Prescribing drugs for off-label uses is perfectly legal, but Johnson & Johnson will pay $2.2 billion for promoting the practice [Ann Althouse]
- Jury awards $4 million legal malpractice verdict against prominent D.C.-based plaintiff’s firm [Richmond Times-Dispatch via White Coat]
- “Can You Secretly Record the Medical-Legal Exam?” [Eric Turkewitz]