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20 Dec 09

Sick in the head: Why America won't get the health-care system it needs—By Luke Mitchell (Harper's Magazine)

obamacare healthcare capitalism economics class struggle ruling class rent seeking regulation law & economics law & history law regulatory capture harper

Barnes quickly explained this striking interjection. Children in Washington were being traumatized by a culture of gun violence, and they had little access to mental-health services. A lot of them were being labeled as learning-disabled when in fact what they probably had was post-traumatic stress disorder. They needed help and they weren’t getting it.
We learned that the black infant-mortality rate is still double the white infant-mortality rate, that many doctors are strangely reluctant to recommend cardiac catheterization for elderly black women with chest pain, that Asian Americans had a significantly higher occurrence of hepatitis B than non-Asian Americans until 1993, when doctors began vaccinating all newborns against the disease. Remedying these disparities, Dr. Tsou said, was not a matter of repairing the health-care system. It was a matter of repairing everything. Your health is determined not only by your genes, after all, but also by your environment. And that environment is determined by the rules society itself sets up—rules about who lives in what place, who goes to what school, who gets what job. “Until we actually address the social determinants of health,” Dr. Tsou said, “we will not truly eliminate health disparities.”
7 more annotations...
- “What good is it if I write them a prescription for the antibiotic if they don’t have money to go to the pharmacy to get it? What good is it that I diagnose dysplasia of the hip of a baby if I can’t get him in to a specialist to get seen?”
- The argument for single payer is straightforward. When everybody is in, you don’t have to spend a lot of time and money deciding who to keep out. You also don’t have to worry about what to do with the people you’ve kept out when they get sick anyway. (Uninsured sick people cost insurers nothing, but since they often end up seeking expensive emergency-room treatment, they cost taxpayers a lot.)
- If you want to quit your job and work someplace else, you can do so without fear of losing your health insurance, which means that labor is more mobile. And employers don’t have to carry the burden of benefits, which means that capital is more mobile. If you get sick, you don’t have to worry about losing your coverage or your house. Your insurance is paid for through taxes. And your taxes don’t go up just because you have a preexisting condition; under single payer, there is no such thing as a “preexisting condition.” Moreover, your provider—the single payer—has an incentive to keep you healthy your entire life, rather than just getting you to age sixty-five and then dumping you into Medicare. And if the experience of most other countries is any indication, the whole thing would cost a lot less than our current bloated mess of a system.
- his preference for markets is common, but it is not wise. The health-care system is not at all like other markets, because health, for obvious reasons, is not at all like other goods. (The demand for not dying, to give just one example, is pretty much unlimited.)
- “The only thing that’s not on the table is a single-payer system. That’s going nowhere in this country.”
- In 2006, Americans spent $2.1 trillion on health care—at $7,026 per person, more than any other nation—and yet we lag far behind other nations in such measures as infant mortality, life expectancy, and early detection of life-threatening illnesses.
- , because advances in technology always outpace the ability to pay for them. But there are (at least) two ways to decide who gets what in a health-care system. One of them is to let the market sort it out: those with the most money get the most care. The other is through triage: society seeks to determine, within a given budget, the most effective treatment for the greatest number of people.

18 Dec 09

Understanding Obamacare—By Luke Mitchell (Harper's Magazine)

A brilliant article that exposes the myth of "free markets" especially in health care.

www.harpers.org/...0082740 - Preview

obamacare healthcare capitalism economics class struggle ruling class rent seeking regulation law & economics law & history law regulatory capture

The idea that there is a competitive “private sector” in America is appealing, but generally false. No one hates competition more than the managers of corporations. Competition does not enhance shareholder value, and smart managers know they must forsake whatever personal beliefs they may hold about the redemptive power of creative destruction for the more immediate balm of government intervention. This wisdom is expressed most precisely in an underutilized phrase from economics: regulatory capture.
Further, the older such a commission gets to be, the more inclined it will be found to take the business and railroad view of things. It thus becomes a sort of barrier between the railroad corporations and the people and a sort of protection against hasty and crude legislation hostile to railroad interests.”
25 more annotations...
- whether it is the agricultural combinations creating an impenetrable system of subsidies, or television and radio broadcasters monopolizing public airwaves for private profit, or the entire financial sector conjuring perilous fortunes from the legislative void. The real battle in Washington is seldom between conservatives and liberals or the right and the left or “red America” and “blue America.” It is nearly always a more local contest, over which politicians will enjoy the privilege of representing the interests of the rich.
- The debate in Washington this fall ought to have been about why the United States has the worst health-care system in the developed world, why Americans pay twice the Western average to maintain that system, and what fundamental changes are needed to make the system better serve us.
- also the companies that receive some part of the more than $2 trillion Americans spend every year on health care and that can expect to continue receiving their share when the current round of legislation has come to an end.
- The health-care industry has captured the regulatory process, and it has used that capture to eliminate any real competition, whether from the government, in the form of a single-payer system, or from new and more efficient competitors in the private sector who might have the audacity to offer a better product at a better price.
- The contemporary form of moderation, however, simply assumes government growth (i.e., intervention), which occurs under both parties, and instead concerns itself with balancing the regulatory interests of various campaign contributors. The interests of the insurance companies are moderated by the interests of the drug manufacturers, which in turn are moderated by the interests of the trial lawyers and perhaps even by the interests of organized labor, and in this way the locus of competition is transported from the marketplace to the legislature. The result is that mediocre trusts secure the blessing of government sanction even as they avoid any obligation to serve the public good.
- Since health care represents one-sixth of our economy, I believe it makes more sense to build on what works and fix what doesn’t, rather than try to build an entirely new system from scratch.”
- With such soothing words, the Democrats have easily surpassed the Republicans in fund-raising from the health-care industry and are even pulling ahead in the overall insurance sector, where Republicans once had a two-to-one fund-raising advantage.
- The deal Obama presented last year, the deal he was elected on, and the deal that likely will pass in the end is a deal the insurance companies like, because it will save their industry from the scrap heap even as it satisfies the “popular clamor for a government supervision.”
- The private insurance industry, as currently constituted, would collapse if the government allowed real competition. The companies offer no real value and so instead must create a regulatory system that virtually mandates their existence and will soon actually do so.
- A study by the McKinsey Global Institute found that health insurance cost the United States $145 billion in 2006, which was $91 billion more than what would be expected in a comparably wealthy country. This very large disparity may be explained by another study, by the American Medical Association, which shows that the vast majority of U.S. health-insurance markets are dominated by one or two health insurers. In California, the most competitive state, the top two insurance companies shared 58 percent of the market. In Hawaii, the top two companies shared the entire market. In some individual towns there was even less competition—Wellmark, for instance, owns 96 percent of the market in Decatur, Alabama. “Meanwhile, there has been year-to-year growth in the largest health insurers’ profitability,”
- Chief among those barriers, it should be noted, is an actual congressional exemption from antitrust laws, in the form of the McCarran–Ferguson Act of 1945
- Insurance is an information business, and as technology makes information-management cheaper, technological barriers to entry will fall, and competition will increase.
- the very idea of assessing health risk is beginning to be understood as undemocratic,
- Which perhaps is one reason why the insurers themselves have always favored the central elements of the Democratic plan
- “only way you preserve the private health-insurance industry. It’s plain-out enlightened self–interest.” The deal collapsed nonetheless, in part because Congress wanted to introduce a “community rating” system that would have put an end to underwriting by making insurers sell insurance to everybody in a given community for the same price. Insurers wanted to maintain the profitable ability to charge different prices to different people.
- Last December, though, AHIP said it would support community rating as well, and since then the real negotiation has been all about details. The insurance companies would agree to sell their undifferentiated commodity to all people, no matter how sick, if the government agreed to require all people, no matter how healthy, to buy their undifferentiated commodity.
- The Democratic plan looks to be a huge windfall for the insurance companies. How big is not known,
- “The bottom line is that health reform would lead to increased revenues and profits.”
- It also happens to be the case that some of those ideas will significantly benefit the corporations that at one time or another have paid Democrats a lot of money.
- The framework for reform, for instance, was authored not by Max Baucus, the Democratic senator who chairs the Finance Committee, but by his senior aide, Liz Fowler, who also directs the committee’s health-care staff. She worked for Baucus from 2001 to 2005 but then left for the private sector. In 2008, reports the Washington gossip paper Politico, “sensing that a Democratic-controlled Congress would make progress on overhauling the health care system,” she returned to Baucus’s side. Where had she retreated to recover from her Washington labors? Politico does not say. In fact, she had become the vice president for public policy and external affairs at WellPoint, one of the nation’s largest health-insurance corporations.
- retty much everyone involved in health-care reform has been on the payroll of one health-care firm or another.
- the strange journey of Billy Tauzin. He spent his first fifteen years in Congress as a “conservative” Democrat, struggling mightily to make his fellow party members more amenable to the needs of the health-care industry. In 1994 he founded the “moderate” Blue Dog coalition, whose members continue to deliver the most reliably pro–business vote in the Democratic caucus. But the Blue Dogs of 1994 did not go far enough for Tauzin, so in 1995 he became a Republican, and by 2003 he finally had mastered the system to the degree that he could personally craft one of the largest corporate giveaways in American history: Medicare Part D. After that bill was made into law, he took the natural next step—he became president of the Pharmaceutical Research and Manufacturers of America, the lobbying arm of the drug industry.
- all Obama has to do is agree to Tauzin’s demands—which he has. The Democratic deal for the drug companies is, if anything, even sweeter than the Democratic deal for the insurance companies.
- But of course “the people that the providers have hired”—having actually already written the legislation—are quite familiar with the details. The only hope for Republicans right now is if the insurers themselves decide they can get an even better deal by turning on the Democrats, which no doubt they eventually will.
- no longer the favored party of corporate America,

21 Oct 09

Legal Blog Watch

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law prosecutorial abuse

The state's attorney in Cook County, Ill., has issued a subpoena asking Northwestern to turn over a variety of student records, including grades and performance evaluations, after the students uncovered evidence they say proves the innocence of a man who has spent three decades in prison for murder.
But Alvarez maintains that even the students' grades should be produced. "All information is relevant," she told news reporters. "There are more notes that have not been turned over. We want to make sure cases are secure and that we don't have the wrong person convicted."

09 Sep 09

McDonald's loses trademark fight against McCurry

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law copyright

U.S. fast food giant McDonald's lost an eight-year trademark battle to prevent local restaurant McCurry from using the 'Mc' prefix in a precedent-setting judgment by Malaysia's highest court.

The Federal Court ruled Tuesday that McDonald's cannot appeal against another court's verdict that had allowed McCurry to use 'Mc' in its name. The owner says McCurry, which serves Indian food, is an abbreviation for Malaysian Chicken Curry.
The Appeal Court said McCurry's signboard has white and gray letters against a red background with a picture of a smiling chicken giving a double thumbs-up, in contrast to McDonald's red and yellow "M" logo. McCurry also serves only Indian food, not competing with McDonald's Western menu, the court said.

16 Jun 09

Annals of Law: No More Mr. Nice Guy: Reporting & Essays: The New Yorker

www.newyorker.com/...090525fa_fact_toobin - Preview

law Supreme Court Chief Justice Roberts Constitution racism

“Absolutely not,” Katyal said.
“When can they—when do they have to stop?”
“Congress here said that twenty-five years was the appropriate reauthorization period.”
“Well, they said five years originally, and then another twenty years,” Roberts said, referring to previous reauthorizations of the act. “I mean, at some point it begins to look like the idea is that this is going to go on forever.”
“You are going to have to explain that to me again, because there are particular individuals here,” he said. “And they say they didn’t get their jobs because of intentional racial action by the city.” He added, “You maybe don’t care whether it’s Jones or Smith who is not getting the promotion,” he said. “All you care about is who is getting the promotion. All you care about is his race.”
38 more annotations...
- Roberts’s hard-edged performance at oral argument offers more than just a rhetorical contrast to the rendering of himself that he presented at his confirmation hearing. “Judges are like umpires,” Roberts said at the time. “Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” His jurisprudence as Chief Justice, Roberts said, would be characterized by “modesty and humility.” After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative
- The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.
- Roberts’s service on the Court, which is, of course, likely to continue for decades, offers an enduring and faithful reflection of the Bush Presidency.
- Roberts was born in Buffalo on January 27, 1955, and raised in northern Indiana, where his father was an executive with a steel company and his mother a homemaker. (He has three sisters.)
- was educated at Catholic schools, and graduated from La Lumiere, at the time an all-boys parochial boarding school in LaPorte. He was the classic well-rounded star student—valedictorian and captain of the football team. He went on to Harvard, majored in history, and graduated in three years, summa cum laude.
- From New York, Roberts moved to the Supreme Court, where he became a clerk for Associate Justice William H. Rehnquist, and it was in Washington that his political education began.
- “Without the Federalist Society, there were not a lot of other ways for the Administration to make sure that they were getting true conservatives. The Rehnquist clerkship marked Roberts as someone who could be trusted.”
- They thought a lot of what the liberals had done in creating, say, affirmative action was simply interest-group politics and not really ‘law’ at all,
- On issues where there was disagreement within the Administration, Roberts’s memos generally show him supporting the more conservative position, especially on matters of race and civil rights. Roberts said that affirmative action required the “recruiting of inadequately prepared candidates,” and sought a narrow scope for Title IX, the law that mandates equal rights for men and women in educational settings.
- In 1981, Roberts wrote that a revision of the Voting Rights Act would “establish essentially a quota system for electoral politics by creating a right to proportional racial representation.” (Reagan signed the revision anyway.)
- The renovation project will also involve closing the entrance to the Court at the top of its iconic front steps—a change that is said to be a security measure but that several Justices regard as a distressing symbol.
- In a recent case, a majority of the Justices applied a provision of the Voting Rights Act to reject part of a Texas redistricting plan that was found to hurt Hispanic voters. Roberts dissented from that decision, writing, in an unusually direct expression of disgust, “It is a sordid business, this divvying us up by race.”
- “Well, because the schools are not racially separate,” the lawyer said. “The goal is to maintain the diversity that existed within a broad range in order to try to obtain the benefits that the educational research shows flow from an integrated education.”
- “Because segregation is harmful,” Madden said. “Integration, as this Court has recognized . . . has benefits.”
- In the Seattle case, the Court ruled by a five-to-four vote that the integration plan did indeed violate the equal-protection clause of the Constitution, and Roberts assigned himself the opinion. The Chief Justice said that the result in the Seattle case was compelled by perhaps the best-known decision in the Court’s history, Brown v. Board of Education.
- In Roberts’s view, there was no legal difference between the intentionally segregated public schools of Topeka, Kansas, at issue in Brown, and the integration plan in Seattle, five decades later. In the most famous passage so far of his tenure as Chief Justice, Roberts wrote,
- For dozens of years, the Court had drawn a clear distinction between laws that kept black students out of white schools (which were forbidden) and laws that directed black and white students to study together (which were allowed); Roberts’s decision sought to eliminate that distinction and, more generally, called into question whether any race-conscious actions by government were still constitutional.
- “It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision,” Stevens concluded.
- But the Seattle case came down on June 28, 2007, which was the last day of Roberts’s second full term as Chief Justice and a year of routs for liberals on the Court. That same day, the Justices overturned a ninety-six-year-old precedent in antitrust law and thus made it harder to prove collusion by corporations.
- The case of Ledbetter v. Goodyear, brought by a sympathetic grandmother who had been paid far less than men doing the same work at the tire company, became a political flashpoint because the conservative majority, in an opinion by Alito, imposed seemingly insurmountable new burdens on plaintiffs in employment-discrimination lawsuits. (Ginsburg, in an unusual move, read her dissent from the bench.)
- Washington law firm of Hogan & Hartson, where he developed a successful practice as an appellate advocate.
- Our work was mostly corporate, some criminal, a few individuals as clients.
- General, Kenneth Starr, hired Roberts again, this time as his principal deputy. Near the end of the first Bush’s term, Roberts was nominated to the United States Court of Appeals for the D.C. Circuit, but Democrats in the Senate, sensing a victory in the approaching 1992 election, refused to let him come up for a vote. So, for Bill Clinton’s eight years in office, Roberts went back to Hogan & Hartson, where, according to his financial-disclosure forms, he made more than a million dollars a year.
- egular at the table of J. William Fulbright, the former Arkansas senator, in the firm’s cafeteria. Fulbright was affiliated with Hogan from the time of his departure from office, in 1974, until his death, in 1995, and he presided over a salon of sorts for partners with an interest in politics.
- In one respect, Roberts’s series of prestigious jobs all amounted to doing the same thing for more than twenty years—reading and writing appellate briefs and, later, appellate decisions.
- , a substantial portion of his work consisted of representing the interests of corporate defendants who were sued by individuals. For example, shortly before Roberts became a judge, he successfully argued in the Supreme Court that a woman who suffered from carpal-tunnel syndrome could not win a recovery from her employer, Toyota, under the Americans with Disabilities Act.
- Roberts failed to persuade the Justices to uphold a sixty-four-million-dollar fine against the United Mine Workers, which was imposed by a Virginia court after a strike.
- One case that Roberts argued during his tenure in the Solicitor General’s office in George H. W. Bush’s Administration, Lujan v. National Wildlife Federation, seems to have had special resonance for him.
- Typically, the public-interest advocates, usually on the liberal side of the spectrum, favor very loose standing doctrines, and people who want to protect government from scrutiny, who tend to be on the conservative side, want to require more and more specific standing requirements.”
- As a lawyer and now as Chief Justice, Roberts has always supported legal doctrines that serve a gatekeeping function. In DaimlerChrysler v. Cuno, a group of taxpayers in Toledo, Ohio, went to court to challenge local tax breaks that were given to the carmaker to expand its operations in the city; the Supreme Court held that the plaintiffs lacked standing. In a broadly worded opinion that relied in part on the Lujan case, Roberts suggested that most state and local activities were off limits to challenge from taxpayers. “Affording state taxpayers standing to press such challenges simply because their tax burden gives them an interest in the state treasury, ” Roberts wrote, “would interpose the federal courts as virtually continuing monitors of the wisdom and soundness of state fiscal administration, contrary to the more modest role Article III envisions for federal courts.” As usual with Roberts’s jurisprudence, the citizen plaintiffs were out of luck.
- . Scalia insisted that Roberts was just being coy, that his opinion had in fact overruled an earlier ruling that upheld the campaign-finance law, but that he wouldn’t come out and say it. “This faux judicial restraint is judicial obfuscation,” Scalia wrote.
- In a case about the free-speech rights of students, Roberts wrote the opinion approving the suspension of a high-school student in Alaska for holding a sign that said “BONG HiTS 4 JESUS” on a street off school grounds. The Chief Justice said the school had the right to “restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.”
- According to Harvard’s Laurence Tribe, “The Chief Justice talks the talk of moderation while walking the walk of extreme conservatism.”
- “John was shaped by working at the White House, where you develop a mind-set of defending Presidential power,”
- Scalia has occasionally shown a libertarian streak, but Roberts, true to his White House past, has consistently voted to uphold the prerogatives of the executive, especially the military, against the other branches. Last year, Roberts dissented from Kennedy’s opinion for a five-to-four Court in Boumediene v. Bush, which held that the Military Commissions Act of 2006 violated the rights of Guantánamo detainees. Roberts saw the case as mostly a contest between the executive branch and the rest of the federal government. “Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants,” Roberts wrote in his dissent. “One cannot help but think . . . that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.”
- But the distinctions between these two men are just as apparent. Obama is the first President in history to have voted against the confirmation of the Chief Justice who later administered his oath of office. In his Senate speech on that vote, Obama praised Roberts’s intellect and integrity and said that he would trust his judgment in about ninety-five per cent of the cases before the Supreme Court. “In those five per cent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision,” Obama said. “In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions . . . the critical ingredient is supplied by what is in the judge’s heart.” Obama did not trust Roberts’s heart. “It is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak,” the Senator said. The first bill that Obama signed as President was known as the Lilly Ledbetter Fair Pay Act; it specifically overturned the interpretation of employment law that Roberts had endorsed in the 2007 case.
- Obama offers a mirror image of the view of the Supreme Court that Roberts presented in his tribute to Rehnquist in Tucson. To Obama, what Roberts called the “solid grounds of legal arguments” was only the beginning of constitutional interpretation, not the end. In his statement announcing Souter’s resignation, on May 1st, the President defined the qualities he was looking for in a Justice in a very different way from Roberts’s description of Rehnquist. “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook. It is also about how our laws affect the daily realities of people’s lives—whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation,” Obama said. “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.”
- “the nature of the Court itself.” “When Justice Rehnquist went on the Court, a minority of the Justices had been former federal judges,” Roberts observed. “Today, for the first time in its history, every member of the Court was a federal court-of-appeals judge before joining the Court—a more legal perspective, and less of a policy perspective.”

Annals of Law: No More Mr. Nice Guy: Reporting & Essays: The New Yorker

www.newyorker.com/...090525fa_fact_toobin - Preview

Supreme Court Constitution racism Chief Justice Roberts law

Roberts was relentless in challenging Katyal: “So your answer is that Congress can impose this disparate treatment forever because of the history in the South?”
“Absolutely not,” Katyal said.
“When can they—when do they have to stop?”
“Congress here said that twenty-five years was the appropriate reauthorization period.”
“Well, they said five years originally, and then another twenty years,” Roberts said, referring to previous reauthorizations of the act. “I mean, at some point it begins to look like the idea is that this is going to go on forever.”
1 more annotations...
- In a series of decisions in the past four years, the Chief Justice has expressed the view that the time has now passed when the Court should allow systemic remedies for racial discrimination. The previous week, the Court heard a challenge by a group of white firefighters in New Haven who were denied promotions even though they had scored better than black applicants on a test. Roberts was, if anything, even more belligerent in questioning the lawyer defending the city. “Now, why is this not intentional discrimination?” he asked. “You are going to have to explain that to me again, because there are particular individuals here,” he said. “And they say they didn’t get their jobs because of intentional racial action by the city.”

15 Jun 09

Legal Blog Watch

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law lawyers law office corporate law

Sweat shop with a capital “S.” I billed over 3,300 hours the first year, and I was not the highest biller in the firm. You had no life but the firm. The
partners loved their practice, but that’s the only way you can stay at
a place like that. Divorce was almost viewed as though an associate had
made the decision to stay with the firm rather than have a personal
life.

12 Jun 09

Legal Blog Watch

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watch law discrimination labor law

Your Fiancée Can Get You Fired

Your employer cannot fire you because you pursue your rights under Title VII. That is unlawful retaliation. But can you get fired because someone close to you -- to wit, your fiancée -- filed a Title VII claim? That is the unique issue decided this week by the 6th U.S. Circuit Court of Appeals in Thompson v. North American Stainless.

The short answer, as decided by the court, is that Title VII does not protect the person who did not directly engage in protected activity.

08 Jun 09

Boston Review — Home

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Supreme Court constitution history law

While this has some validity, presidential buyer’s remorse is as old as the process itself and may develop even when a president nominates a lifelong ally or a well-known public figure. By the time of his nomination, Earl Warren had established himself as a dedicated conservative: he had been the attorney general and three-term Republican governor of California and Thomas Dewey’s running mate in the famously narrow loss to Harry Truman and Alben Barkley. In short, Earl Warren hardly seemed an unknown quantity when Dwight D. Eisenhower appointed him as Chief Justice in 1953; and yet it was Earl Warren—the same Earl Warren who as attorney general during World War II backed the internment of Japanese citizens —who as chief justice inaugurated a liberal revolution on the court and became a champion of minority rights.
The conventional story also misses the fact that justices often drift slowly over their tenures—not as if they were rudderless but as if their ideological bearings changed mid-course. Despite his own personal aversion to the death penalty, Blackmun took decades to move to the left on capital punishment. Having begun his time on the bench upholding death-penalty statutes, he ended his career with one of the most stark conclusions in the Supreme Court records—a declaration in Callins v. Collins that he would “no longer tinker with the machinery of death.” Similarly, Justice David Souter, known at first as the “stealth justice” for his low profile, initially emerged as a moderate conservative; a few years into his tenure, however, his opinions took a turn leftward. This gradual shift is not uncommon. Indeed, according to Lee Epstein, justices tend to vote in accordance with the political philosophies of the presidents who appoint them during their first five to ten years on the court, but after that the correlation fades considerably.
22 more annotations...
- justices “tend to drift to the left in response to elite opinion.” According to his theory, judges come to associate with and respond to “the intellectual class . . . dominant in, for example, the universities, the media, church bureaucracies, and foundation staffs.”
- eventually adopt “the intelligentsia’s attitude, which is to the cultural left of the American people.”
- But why would judges who began on the right come to associate with another “class” with very different views? Why would they trade their conservative ideas, beliefs, mentors, institutions, and supporters—the ones that have, in many cases, gotten them where they are—for liberal ones?
- At least three types of situational influences can have a large effect on a judge’s behavior and, hence, the extent of their juridical drift: the first is the unusual array of forces that sets judging apart from other lawyerly occupations such as legislating or advocacy; the second is the particular background and experiences of individual judges; the third is all the forces external to the court—including think tanks, the media, the academy, and public attitudes—that appear to strongly influence the judicial decision-making process.
  
  The situation of judging tends to promote drift because the job itself is very different from previous occupations a judge might have had. Several elements help make the judiciary unique within the legal world: the schemas that judges face qua judges, the sources of information (theories and facts) with which they are confronted, and the structures that promote or limit judicial independence.
- To guard her own legitimacy and that of the judiciary, a judge must create the impression that her decisions are the inevitable consequence of fair, non-ideological legal reasoning. A nominee who was a fervent advocate before becoming a judge will often learn to present decisions as neutral and arising naturally from the rule of law.
- Ideology, be it conservative or liberal, cannot be nakedly evident in judicial decision-making, and the norm of neutrality often nudges judges to reach decisions that are closer to the center than they would were they wearing other hats
- Lon Fuller’s famous description of the challenging work of being a judge: “Men’s interests and desires form a complex network, and . . . to discover the most effective and least disruptive pattern of order within this network requires an intimate acquaintance with the network itself and the interests and desires of which it is composed.”
- a judge’s antecedent presumptions and perspectives often influence judicial decisions as much or more than her purported principles and precedents
- In those ways, perspective influences judges. At the same time, however, judging influences perspective. Confronting theories, evidence, and differences in life experience that one would otherwise be inclined to miss, and that may challenge or perhaps contradict commonsense notions, is part of the daily job for judges. In case after case, lawyers present frameworks, conceptions, and information to test and dispute those offered by their opponents and to persuade the judge and jury.
- In addition to role schemas and perspective-changing information, it is likely that structural buffers designed to protect judges from outside influences also encourage juridical drift by allowing judges greater leeway to pursue the truth wherever it leads.
- It is often the wealthy and the powerful who have the greatest ability to sway non-buffered judges and lawyers, and it is they who generally have the greatest stake in preserving the status quo.
- the most important clients and constituents are wealthy and powerful interests, some leftward drift seems likely.
- Lewis Powell, who had built a reputation as a first-rate corporate defense lawyer and was serving on 11 corporate boards when President Nixon appointed him to the Supreme Court.
- This likely happened in part because Powell was no longer representing corporate clients or writing strategic memos for the Chamber of Commerce.
- Similarly, the case and controversy doctrine enshrined in Article III of the U.S. Constitution, which limits federal courts to deciding actual disputes rather than theoretical principles, may make it easier for American judges to have their intuitions challenged than European judges, many of whom may issue opinions without having to deal with hard facts or the vigorous presentation of evidence.
- The prohibition similarly insulates the federal judiciary from control by other branches of government, which, as in some Continental systems, might frame legal questions to suit their own needs and agendas.
- In addition, most judges on state courts—which handle the vast majority of America’s judicial traffic—are elected, which leaves them more vulnerable to external influence than federal judges. As the legal historian Jed Shugerman has written, “Judicial elections clash with the basic—and perhaps naive—notion that judges are supposed to interpret the law and pursue justice, regardless of party or public opinion.” Instead, they have “injected popular and partisan politics into legal deliberations” since “the slavery debates and the class struggles of the nineteenth century.”
- Moreover, everything that they write is widely anticipated, meticulously reported, and thoroughly analyzed by journalists, academics, lawyers, legislators, and lower courts. As a consequence, they receive constant feedback, a good deal of which the justices cannot ignore because the issues and questions often return in subsequent cases
- and none of whom need be concerned about how their opinions might alter their career opportunities or be viewed by a higher court. Indeed, unlike lower federal judges, who are bound by precedent, Supreme Court justices, while constrained by longstanding case law, need not blindly defer to earlier judgments.
- “At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.” As she explained,
  His was the eye of a lawyer who saw the deepest wounds in the social fabric and used law to help heal them. His was the ear of a counselor who understood the vulnerabilities of the accused and established safeguards for their protection.
- It may be that much of the perceived leftward drift of Supreme Court justices over the last several decades is exaggerated. Indeed, given the shift rightward of the American ideological “center” in that time period, a justice tethered firmly to her fixed ideological anchor could well create the illusion of juridical drift. Whatever its source, the question remains whether a perceived gap between the public and the courts is one that should be filled by making the judiciary still more responsive to majority attitudes. That would be a dangerous mistake.
- Being a fundamentalist Christian, a Southerner, or someone with many friends who are corporate CEOs should all be expected to have an influence over how much the situation of judging alters a justice’s outlook. Similarly, we should expect to find less drift among justices whose previous occupations had similar situations to that of judging. For example, to the extent that the independence of academics is similar to that of federal judges, we might expect a nominee coming from academia to be less likely to change ideological course than, say, someone who has been working as an advocate on behalf of a particular client base.

03 May 09

The Imperial Presidency's New Vestments

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THE IMPERIAL PRESIDENCY'S NEW VESTMENTS

A. Michael Froomkin<*>

All but two officials in the executive branch occupy posts and exercise powers that owe their existence to an act of Congress,<1> yet the extent of Congress's power to give top executive branch officers protection from dismissal for policy differences with the President remains contested.<2> Justice Scalia has suggested in forceful dissents that the Constitution gives the President the power to make all policy choices delegated by Congress to the executive branch, and that restrictions on the President's power to fire policy-making persons are therefore unconstitutional.<3> This view has recently been restated by Professor Steven Calabresi and Mr. Kevin Rhodes in The Structural Constitution,<4> which purports to find structural constitutional support for Justice Scalia's view that Congress may not vest any policy-making discretion in the hands of executive branch officials who are not subject either to presidential commands or to presidential dismissal.

Part I of this Article summarizes the debate about the extent of *1347 Congress's power to restrict the President's power over officials in the executive branch. Part II summarizes and critiques Professor Calabresi and Mr. Rhodes's main contentions regarding the importance of certain clauses in the Constitution, and the interplay between Article II and Article III. In Part II, I suggest that The Structural Constitution's argument for absolute presidential control over the executive branch asks the wrong question and, even on its own highly textualist terms, comes up with implausible answers.

Having criticized The Structural Constitution for not being structural enough, Part III offers the outline of a truly structural approach to the constraints on Congress's ability to design the executive branch. Contrary to what Professor Calabresi and Mr. Rhodes suggest, a proper structural analysis of the Constitution undermines the constitutional case fo

Still Naked After All These Words

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STILL NAKED AFTER ALL THESE WORDS

Copyright (c) 1994 A. Michael Froomkin

A. Michael Froomkin<*>

This Reply concentrates on three points which are emblematic of more general problems in The Structural Constitution,<1> A Structure Without Foundation,<2> and The Vesting Clauses as Power Grants.<3> First, Professor Calabresi and Mr. Rhodes seem to believe that their method of interpretation is apolitical and precise, when in fact it is overly formalistic, inconsistent at times, and vague at a critical point. Second, while Professor Calabresi's latest formulation of the "executive Power" is more detailed and perhaps less expansive than The Structural Constitution's, it is also circular, allowing courts and commentators unfettered discretion to define the "executive Power" at will. Third, the authors indulge in rhetorical excess, exaggerating the dangers of rooting federal jurisdiction in Article III, Section 2 and misstating the arguments in The Imperial Presidency's New Vestments.<4> Space constraints and concern for the reader's patience limit this Reply to but a few examples of each of these problems. New Vestments must in most cases be left to speak for itself. I *1421 am confident that it does.<5>

Originally published at: 88 Nw. U. L. Rev. 1420 (1994).
STILL NAKED AFTER ALL THESE WORDS

Copyright (c) 1994 A. Michael Froomkin

A. Michael Froomkin<*>

This Reply concentrates on three points which are emblematic of more general problems in The Structural Constitution,<1> A Structure Without Foundation,<2> and The Vesting Clauses as Power Grants.<3> First, Professor Calabresi and Mr. Rhodes seem to believe that their method of interpretation is apolitical and precise, when in fact it is overly formalistic, inconsistent at times, and vague at a critical point. Second, while Professor Calabresi's latest formulation of the "executive Power" is more detailed and perhaps less expansive than The Structural Constitution's, it is also circular, allowing courts and commentators unfettered discretion to define the "executive Power" at will. Third, the authors indulge in rhetorical excess, exaggerating the dangers of rooting federal jurisdiction in Article III, Section 2 and misstating the arguments in The Imperial Presidency's New Vestments.<4> Space constraints and concern for the reader's patience limit this Reply to but a few examples of each of these problems. New Vestments must in most cases be left to speak for itself. I *1421 am confident that it does.<5>

Originally published at: 88 Nw. U. L. Rev. 1420 (1994).

yoo-unitaryexecduringsecondhalfcentury.pdf (application/pdf Object)

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Latest News - Leaked Torture Memo: Full Text

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In order to respect the President's inherent constitutional authority to manage a military campaign, 18 U.S.C. Â§ 2340A (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority. Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war. The President's power to detain and interrogate enemy combatants arises out of his constitutional authority as Commander-in-Chief. A construction of Section 2340A that applied the provision to regulate the President's authority as Commander-in-Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions. Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. Accordingly, we would construe Section 2340A to avoid this constitutional difficulty, and conclude it does not apply to the President's detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority.

Columbia Law Review President and the Administration Lessig Sunstein thepresident.pdf (application/pdf Object)

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Shandean Postscripts to Politics, Philosophy, & Culture: - June 2005

Table of Contents for June

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torture Bob Dylan the Basement tapes Saddam Hussein Ideology legal theory_ hypocrisy_ Greil Marcus_ mask_ Utopia_ William O. Douglas Torture Weblogs I Read philosophy U.S. Imperialism theory Supreme Court law constitution

3rd
10:36 am: The Utopian Mask of WIlliam O. Douglas: Law and Anticipatory Illumination
4th
06:19 pm: The Public Matter of Song v. The Republic of Hypocisy: The Basement Tapes & Greil Marcus #1
6th
07:28 pm: The Policy of Torture: What is New About the U.S. Policy of Torture?
7th
10:55 pm: The Policy of Torture II: Who is Torture For?
9th
06:52 pm: The Policy of Torture III: What are the Legal Ideologists of Torture Creating? The New Civil Death
15th
02:25 pm: Best Friends of Bush: The New Saddam Hussein

Shandean Postscripts to Politics, Philosophy, & Culture: - June 3rd, 2005

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The Utopian Mask of WIlliam O. Douglas: Law and Anticipatory Illumination 10:36 am
It is possible to imagine an intellectual influenced by Foucault writing a parody of a United States Supreme Court opinion? Fortunately for us there is no need to write such a parody because Justice William O. Douglas got there first. This came home to me when I reread Douglas's (in)famous opinion in Griswold v. Connecticut. (GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).)

Peter Irons in his A People's History of the Supreme Court, puts it aptly, "Douglas was a former Yale law professor, and his Griswold opinion read almost like a parody of academic jargon." (p. 429). In other words, Douglas did not only want to find a "right to privacy" in the Constitution he also wanted to send up all of those who wrote opinions as if 'the rule of law' could be derived from a set of propositions with something like deductive accuracy.

jerry_quotes: A Shift Back to Stronger Central Government in the Rhenquist Court

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STEVE KANGAS' LIBERAL FAQ

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Saclia to non-Christians - We are not your government Balkinization

In Scalia' dissent in McCreary he carries the 'originalist' interpretation to its ultimate conclusion. But why are Catholics included? Jack Balkin's weblog analyzes the Dissent.... Just for you my love....

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And there you have it. If you aren't a monotheist who believes in a personal God, the government may disregard you. You don't count. We won't persecute you, of course, that would violate the Free Exercise of Religion. But we can disregard you. You are insignificant. You are not us, or perhaps more correctly, we count you as part of us when government acknowledges God, and disregard your protestations to the contrary that you have been left out.