Friday, August 16, 2019

America's Health Care Dysfunction Gets Real

by Neil H. Buchanan

Yesterday was my first official day as an employee of the University of Florida.   The day included the usual experiences for a professional worker: seeing my office for the first time, signing up for internet service, getting a parking pass (which I will not need, thankfully), meeting a bunch of friendly new faces, getting lost in the building, and so on.  It also meant that I am once again covered by health insurance ... I think.

Because I occasionally write about health-care policy issues, this seems like a good moment to revisit a few of the many things that are so wrong with the current system in the U.S. -- not just for people who are uninsured or underinsured, but also for the very lucky ones like me who have what at least seems to be adequate (albeit expensive) coverage.  We often become so accustomed to those background facts that it is all too easy to allow the political conversation about health care to become utterly abstract.

I am at this very moment supposed to be choosing my health care plan (along with dental and vision), yet I am instead writing this column about the absurdities of the current system, explaining why this is not an acceptable way to run a nation's health care system.  The very desire to delay this annoyance is, of course, a key bit of evidence that there is something very wrong with the way even supposedly good coverage is administered.

One conclusion is clear: We can and must do better.

Thursday, August 15, 2019

More Things in Heaven and Earth: What the Law Can Teach Moral Philosophers

by Michael C. Dorf

Last week and weekend, I had the good fortune to attend the 12th annual Rocky Mountain Ethics Congress (RoME), hosted by the University of Colorado Center for Values and Social Policy. Prof Colb gave one of three keynote addresses during the four-day conference, in a speech that was also the 2nd annual Tom Regan Memorial Lecture, co-sponsored by the Culture & Animals Foundation. For those unfamiliar with Regan's work, he was a pioneer in the animal rights movement. I italicize "rights," because while Peter Singer's Animal Liberation inspired much of the modern movement, Singer is a utilitarian who, following Bentham, regards rights as nonsense on stilts. Regan was the first philosopher to make a comprehensive set of deontological arguments for animal rights as such.

Although Prof Colb and I acknowledge the importance of Regan's work, as she put the point in her lecture, the way that scholars pay tribute to one another is by critical engagement with their ideas, and so she offered a critique of a point Regan made. Although Regan was (like us) a vegan who thought nearly all animal exploitation unjustified, he also thought that in triage situations, it is morally permissible, indeed obligatory, to prefer human life to other animal life. Thus, to use his examples, should four humans and one dog find themselves on a lifeboat that could only support four such mammals, the dog should be thrown overboard. Even more arrestingly, Regan said that one should throw over a million dogs before tossing a single human.

In her lecture, Prof Colb explained that although Regan thought experimentation on animals is wrong, his lifeboat examples open the door to experimentation and ultimately to all animal exploitation. I won't attempt to summarize the lecture (other than to say it was awesome), because my main interest in this essay is in the rest of the conference. As one of two legal scholars attending a conference of philosophers, I came away thinking there are many opportunities for fruitful engagement between legal scholars and philosophers. We legal scholars see where philosophy can be helpful; I'm going to suggest that philosophers can do more with the law.

Wednesday, August 14, 2019

Terrifyingly Effective Terrorism: White Supremacists versus the Field

by Neil H. Buchanan

Although the national conversation has -- rather incredibly -- already moved on from the El Paso and Dayton mass shootings (now covering awful-but-still-less-bad issues like Jeffrey Epstein and not-at-all-important matters like Joe Biden's flubs), I am still thinking about what it means to live in a country in which white supremacists are starting to take action on their hatreds more frequently and openly.

There is no doubt that what the white supremacists are doing counts as terrorism, because they are terrifying people to the point that children are being equipped with Kevlar backpacks and people are now afraid to do normal things in their daily lives.  The point of terrorism is to make people feel that they are never safe.  That is what domestic abuse does to an isolated spouse (almost always the wife, of course), and it is what national or international networks of terrorists aim to do to people in general.

This then raises a particularly grim question: Who is "best" at creating terror?  The answer is that, although white supremacists are possibly the least organized of all terrorist groups, they seem to have stumbled upon the most effective way to terrorize people.  How does that work?

Tuesday, August 13, 2019

Every Decent Person v. The Estate of Jeffrey Epstein: What Now?

by Diane Klein

The news of Jeffrey Epstein's death (apparently by suicide) in the federal Metropolitan Detention Center in Manhattan early on the morning of Saturday, August 10, 2019, has taken the Internet by storm, and spawned a thousand conspiracy theories.  Of course, there is a great deal that is still not known, and won't be known, until a much more thorough investigation is undertaken.  One thing is certain: the criminal prosecution of Jeffrey Epstein is over.  The death of the defendant brings any such legal action to an end.

Does that mean all the lawyers go home?  Not by a long shot. The legal farrago that is the Epstein matter carries on.

Monday, August 12, 2019

Originalism as Current Law? Yet Another response to Baude and Sachs

By Eric Segall

Last Friday, two things happened to me related to originalism. I received in the mail reprints of an article I wrote for Constitutional Commentary (no link yet) called "Originalism Off the Ground." The piece was a response to yet another Arthurian attempt by Professors Will Baude and Stephen Sachs to convince the world that Originalism is indeed our law. The thrust of my piece was that the collective work of Will and Steve on originalism and history (I will use their first names because I consider them friends) has failed to address the core realist critique that constitutional law is mostly the sum of the Justices' value preferences, and originalism and all other meta theories play at most a negligible role.

The second thing that happened on Friday was that Steve put on Facebook a link to his and Will's new essay titled "Originalism and the Law of the Past," published by the Law and History Review. The SSRN link is here. The third and fourth sentences of this essay state that "originalism is best understood as a claim about modern law-which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders' law, unless lawfully changed."

Their entire essay (with one small exception discussed below) ignores the argument that the "law" of the past in constitutional law is composed of imprecise text, contested history, political practices that often lead to opposing perspectives about the issue of the day, and Supreme Court precedent which is mostly dictated by values, politics, and experiences, not history. In sum, once again, Will and Steve do not address in any serious way the realist critique. They are avoiding it like the plague (I have drawn their attention to it on numerous occasions in person and in writing). For two legal positivists, this avoidance is important.

Friday, August 09, 2019

The Foolishness of Overestimating Trump

by Neil H. Buchanan

Democrats seem to over-learn certain lessons.  They lost to Ronald Reagan in 1980 and 1984 and decided that the U.S. was a "center-right nation" and that the best thing to do was to become Republican lite.  Bill Clinton later decided to cave to Republican demands for a balanced federal budget and -- when the dot-com bubble created prosperity and a temporary surplus -- Democrats decided that being fiscal hawks was the best approach, leading to Obama's foolish "pivot" to austerity in 2010.

As I have argued frequently (most recently here), Democrats have somehow convinced themselves that their policy views are unpopular, even though the Republicans are under water with voters on every major issue.  Somehow, it is always Democrats who are engaged in soul-searching and wondering why not everyone agrees with them about everything.  The big newspapers and networks are also now in an infinite do-loop as well, asking how "heartland voters" -- understood as what used to be known as Reagan Democrats -- feel about every issue.

The 2016 election was an even bigger shock to the Democrats (and the world) than 1980.  Reagan was seen as an easily beatable doofus, but at least he had been a governor and knew how to deliver a speech -- and had never bragged about sexually assaulting women.  We must of course learn to take nothing for granted, but that does not require treating Trump as some kind of political god who can only be beaten if all of the forces of the universe align in exactly the right way.

This is yet another version of what has long been called the Democrats' defensive crouch.  But it is worse, in ways that are causing Democrats inadvertently to make Trump stronger.

Thursday, August 08, 2019

Second Thoughts About the T Word

by Michael C. Dorf

A recent Washington Post op-ed by Harry Litman occasioned by the mass shootings in El Paso and Dayton calls for the enactment of a federal statute criminalizing domestic terrorism as such. In light of various statements by law enforcement and other officials condemning the respective acts as domestic terrorism, Litman points to the seeming oddity that there is no federal domestic terrorism statute. (He acknowledges that the PATRIOT Act defines domestic terrorism but complains that it does not state a specific crime of domestic terrorism.)

Partly Litman makes a practical point. He says that a specific domestic terrorism law would "bring such crimes into the rubric of predicate offenses for providing material support to terrorists [and] would also provide more resources for the [FBI] on the data-gathering side as well as the prosecution side." Perhaps that's true, although it's not clear that existing legislation is insufficient. Rather, one might think that the resource problem, if there is one, stems from the Trump administration's decision to direct funds away from programs that combat far-right extremist violence.

Meanwhile, it's not as though the absence of a domestic terrorism statute means the El Paso killer is likely to go unpunished. He faces the possibility of state and federal murder charges. Consider another domestic terrorist, Timothy McVeigh. He was found guilty and executed based on charges of conspiracy to use and use of a weapon of mass destruction, destruction by explosives, and first-degree murder. Like the El Paso killer, he could also have been charged under state law. (I am only discussing the El Paso killer, because the Dayton killer is dead.)

Litman acknowledges that there is no shortage of laws under which the El Paso killer can be prosecuted, but he says that the possibility of charging him with these other crimes should not stand in the way of a federal domestic terrorism statute, in the same way that the existence of murder and other laws should not stand in the way of hate-crime legislation. Just as there is expressive value in calling hate-crimes what they are, so there might be expressive value in calling terrorism what it is.

There is, but there is also danger in doing so.