Monday, May 30, 2011

A Memorial Day Accounting

By Mike Dorf


President Obama very likely would not be President today were it not for a speech he gave in October 2002, in which he opposed the coming war in Iraq.  Delivered at a time when most prominent national Democrats were too timid to challenge the Bush Administration's plans to topple Saddam, Obama's early and unambiguous opposition to the war gave him the credibility to appeal to the substantial anti-Iraq-war constituency in the 2008 primaries, even though his principal rival for the nomination, Hillary Clinton, was by then taking roughly the same position as Obama on Iraq policy going forward--a fact underscored by Obama's subsequent naming of Clinton as Secretary of State.


Some of Obama's early supporters have thus been disappointed by the fact that in office he has either been stymied in efforts to repudiate Bush policies (as with respect to military trials) or has seemed to adopt them.  The irony of Obama receiving the Nobel Peace Prize shortly after his decision to escalate the conflict in Afghanistan was not lost on many, and to my mind it shows how people--apparently including the Nobel committee--hear what they want to hear.


Obama's 2002 speech was, from the start and very clearly, nothing like an anti-war speech.  He came out against "dumb wars" and "rash" wars, but in favor of fighting just wars--like the Civil War and World War II, noting how his own grandfather had signed up to fight the day after Pearl Harbor and averring that he himself would willingly take up arms to avert further terrorism on the scale of 9/11.


The short 2002 speech remains salient and, re-read in 2011, it offers at least partial validation for the Administration's recent efforts to position the U.S. on the democratic side of the Arab spring.  In 2002, Obama said:
Let's fight to make sure our so-called allies in the Middle East, the Saudis and the Egyptians, stop oppressing their own people, and suppressing dissent, and tolerating corruption and inequality, and mismanaging their economies so that their youth grow up without education, without prospects, without hope, the ready recruits of terrorist cells.
The validation is only partial, of course, because the U.S. was slow to support protesters in Egypt and has remained allied with the status quo in Saudi Arabia and Bahrain, albeit ambivalently in both cases.


What emerges overall, then, is an "Obama Doctrine" that is a kind of tempered, clear-eyed idealism.  With his predecessor, Obama believes that democracy is ultimately a stabilizing force for good and, also like Bush, he is willing to use force to promote it.  But Obama is temperamentally cautious, much less the cowboy that Bush fancied himself. Obama is willing to go in, but, as Libya shows, not so willing to go all in.


These characteristics should make Obama's foreign policy broadly popular among Americans, who have long combined a pragmatic and an idealistic streak, mixed in with periodic bouts of isolationism.  Obama is not an isolationist, but his caution can make his views more attractive to isolationists than the approach of some of his predecessors.  Except in the extremely unlikely event that the Republican Party nominates Ron Paul, Obama's 2012 challenger will probably play the hawk, a strategy unlikely to work: Given the record, that will render Obama as a sensible centrist, not a dove. 


On this Memorial Day and more generally, we should not evaluate a President's views on war and peace in simply political terms.  The true measure of foreign policy is not whether it is currently popular; it's whether it is ultimately effective.  The Iraq war was quite popular when it was launched but lost support over time.


Whether Obama's shift of focus and resources back to fighting al Qaeda and its allies proves ultimately effective remains to be seen.  Killing bin Laden satisfied an important national need and may open up opportunities for a political solution in Afghanistan.  However, it also could widen a breach with Pakistan that ultimately proves more harmful still.  America's engagement with central Asia and the Middle East over the last three decades has been a story of repeated episodes of blowback and unintended consequences.  That could continue.


In the end, the problem with wars is that even just wars and smart wars can become unjust and dumb ones--in the sense that they come to undermine rather than advance the values that seemed to justify fighting in the first place.  That doesn't necessarily mean that there aren't wars worth fighting.  It does mean that one should be extremely cautious to ensure that the people who are maimed and killed in such wars do not do so in vain.  Obama's 2002 speech expressed just that sentiment in its peroration.  The then-future President stated that we should not "allow those who would march off and pay the ultimate sacrifice, who would prove the full measure of devotion with their blood, to make such an awful sacrifice in vain."


So far, it is not entirely clear that the President's actions have lived up to the standard he set for himself in 2002.  Whereas it is hard to fault the President for insufficient caution in his domestic political judgments, when it comes to sending Americans into combat, it remains to be seen whether he is quite so reluctant a warrior as he once appeared.

Friday, May 27, 2011

Forks Over Ad Hominem Attacks

-- Posted by Neil H. Buchanan

Yesterday, I posted some thoughts on "Forks Over Knives," an excellent new documentary film that discusses the extreme damage that humans inflict on themselves by eating animal products. The film summarizes the work of Drs. T. Colin Campbell and Caldwell Esselstyn, each of whom independently found that people who eat plant-based foods are healthier than people who eat animals and their secretions. The differences in health outcomes are, moreover, extreme, with societies that exploit animals suffering from deadly diseases that are virtually unknown to societies that eat plants.

[Note: Toward the end of yesterday's post, I asserted that the film had engaged in product placement for a high-end grocery store chain. The creator of the film posted a polite reply on the comment board, stating that what I took to be paid-for in-movie advertising was no such thing. I have posted an apology and clarification at the beginning of yesterday's post.]

One of the best aspects of the film is the director's even-handed treatment of those who disagree with his conclusions. As I mentioned in yesterday's post, he uses interviews with a professional nutritionist to display the existence of gross ignorance even among those whose job it is to know the effects of diet on health. Unlike all too many documentarians, however, he does so without making the interviewee look ridiculous. He allows her simply to say the wrong-headed things that she says, but he refrains from snarky comments, unfair editing or framing, or other tricks of lesser documentarians. Even so, the audience is presented with sufficient information that there is never any doubt that the interviewee is grossly misinformed.

At one point, the film investigates the government's role in promoting bad health choices. Unsurprisingly, the meat and dairy industries have inordinate influence over what the federal government says and does about people's dietary habits. The U.S. Department of Agriculture is, sad to say, essentially a marketing arm for those who torture and kill animals, playing down the conclusions of scientific research that would suggest that people should not eat animals or their secretions. USDA research is largely performed by scientists who have made enormous sums of money from contracts with the beef, pork, poultry, and dairy industries. This conflict of interest makes it rather easy to suspect that the government's pronouncements on healthy eating cannot be trusted.

The government's response to this conflict of interest was fascinating. The filmmaker interviews the top man in USDA on such matters, who offers a two-pronged response to the suspicious connection between industry money and government-sponsored scientific research: (1) It is only natural that both government and business would want to hire the top people in the field to conduct research, so there is nothing surprising about seeing those brilliant scientists' names both on government studies and on industry paychecks, and (2) In addition to financial conflicts of interest, there are also personal conflicts of interest, and Drs. Campbell and Esselstyn are biased by their extreme commitment to the cause of plant-based diets.

The defense of the current incestuous relationship between industry and government research, therefore, boils down to this: "Government cannot find anyone qualified who is not financially conflicted, and besides, these veggie guys are loonies." It is a brilliant riposte, simultaneously burnishing the qualifications of the government's scientists, and denigrating their opponents.

There are two types of ad hominem attacks. First, there is the "circumstantial" attack, which says that an argument should not be believed because the person making the argument has reason not to be honest. "Don't believe the defendant, because he is naturally going to lie to save his skin," and "Car salesmen aren't trustworthy" are both examples of this kind of attack. Second, there is the "abusive" attack, which says that an argument should not be believed because the person making the argument is personally repellent in some way. "That's what I'd expect to hear from an ignorant buffoon," and "Why do you hate America?" are in this category.

Such attacks are fallacious in that they do not go to the truth or falsity of the argument. Even so, it is obviously not enough to dismiss the USDA official's arguments merely because he relies on ad hominem attacks -- "Our guys are smart, and your guys are nuts." The attack on the government's researchers is itself clearly also ad hominem, as are all concerns about conflicts of interest. We can make a bit of progress by noting that the USDA's arguments tend toward the abusive rather than circumstantial end of the scale, but that is still not enough to do justice to the issues raised.

The first point, that all the top scientists would naturally already be on industry's payroll, is really quite startling in its implications. It simply assumes that there is not (and probably should not be) any expectation that scientists should maintain their independence, in order to be able to engage in uncompromised empirical inquiry. Apparently, all of the recent concern over industry-financed medical research is much ado about nothing. Why, after all, should we not expect smart guys and gals to sell themselves to industry for the big paycheck? They are the best scientists, by definition, because industry went after them with a lot of money. And they accepted, as any sensible person would do.

We hope, of course, that people will be able to maintain their independence, even if future riches are dependent on giving their paymasters the answers that they want. We would also hope that scientists would be able to avoid the tendency to internalize what everyone around them is saying. If, on a regular basis, we saw examples of industry-financed studies that ran counter to an industry's interests, we might have some reason to think that there is nothing to worry about. It is possible, however unlikely, that we do not see such examples because the unbiased scientific answer is always on the side of industry. Or, the scientists might simply be producing unbiased research, but only the industry-friendly work is being published. If that is happening, however, then we would need an explanation as to why independent scientists would not fight to publish the truth -- or, at least, why they would sign subsequent contracts to produce industry-sponsored research.

The attack on Drs. Campbell and Esselstyn, on the other hand, can plausibly be characterized as less an abusive attack ("They're crazy sprout-lovers") than the statement that they have honestly become obsessed with an idee fixe. They might be smart guys, but at some point they went off the rails and became evangelists rather than independent scientists. If this were true, they would deserve our pity and indulgence, but not our respect. Certainly, their scientific claims would have to be rejected.

Surprisingly, therefore, the USDA representative's ad hominem comments (about the government's scientists, and Campbell and Esselstyn) are not pure hogwash. We would be crazy not to take circumstances into account when assessing the validity of scientists' claims, which is exactly what we are doing when we express skepticism about industry-funded research in the first place. We would also be wise to consider the possibility that some people simply become obsessed with their own agendas.

Even so, it seems rather clear that we should be able to expect that industry should not be able simply to buy all the "best" scientists. Moreover, there is a way to determine whether Campbell and Esselstyn are distorting the truth. Even though ad hominem considerations cannot be completely ignored, after all, they are only indirect suggestions about the underlying truth of the matter. As "Forks Over Knives" shows, Campbell and Esselstyn have engaged in rigorous scientific research, based on extensive data collection, and found that both individuals and societies are severely harmed by animal-based diets. No amount of touting the government scientists' credentials, or dismissing Campbell and Esselstyn as cranks, changes those facts.

Thursday, May 26, 2011

Forks Over Scalpels


[Correction: As I learned from a comment on today's post, from the creator and executive producer of "Forks Over Knives," there was no product placement in the movie by the Whole Foods Markets grocery store chain. My comments in the third-to-last paragraph below -- especially my use of the harsh term "sell out" -- were thus based on an incorrect assumption on my part. My apologies.]



-- Posted by Neil H. Buchanan


A new documentary film, "Forks Over Knives," discusses the connection between public health and the consumption of animal products. It is a brisk, lively movie experience, full of fascinating information, combining a clear-eyed description of depressing reality with an equally honest assessment of how much good people could do themselves by removing animal products from their diet. The film's title is a play on words, with the "knives" referring to surgeons' scalpels, which would be used much less often if people would pick up a fork and eat a healthy meal.

As I wrote in a Dorf on Law post last December, the case for veganism is over-determined, with four independent, individually sufficient reasons to become a vegan. It is possible to care only about the environment, or the economy, or animal rights, or human health, and conclude that our current practice of exploiting animals is a disaster. "Forks Over Knives" makes the case from the latter perspective.

The film is devoted mostly to describing the work of Drs. T. Colin Campbell and Caldwell Esselstyn, a nutritional researcher at Cornell and a surgeon at the Cleveland Clinic, respectively. Working independently, each of these men discovered through their research (starting in the 1970's) that people who eat animal products suffer much worse health outcomes than those who do not.

Their research cannot, of course, be described fully in a feature-length documentary, but the audience is given some very convincing results of their careful (and peer-reviewed) research. Among the more memorable statistics: in one year in Japan, there were 18 deaths from a particular kind of cancer, while in the US there were about 18,000. Even adjusting for population size, this is a 500-1 ratio, with the US on the losing end. Campbell and Esselstyn have spent decades demonstrating that such dramatic differences in health outcomes are the result of dietary differences, with consumption of animal products leading to much, more worse health outcomes (cancer, diabetes, heart disease, and so on).

These differences appear both at the individual and the societal level. For individuals, Dr. Esselstyn points out that the "radical" idea of changing what one eats is hardly as radical as splitting open a person's chest and inserting a blood vessel from that person's leg into his heart. Yet people opt for surgery (at great expense, and exposing themselves to risks of death during surgery and from hospital-based infections) rather than consider not eating animals. Esselstyn's patients who opt against surgery are able not only to arrest, but in many cases reverse, their surgery-eligible conditions by simply eating plant-based foods.

At the societal level, the Japan/US difference noted above is merely one small example (if 18,000 deaths per year can be considered small) of health differences among countries that are correlated with dietary differences. Most notably, Dr. Campbell's work has shown that the non-animal diet that has been common in China for millennia is associated with much better health outcomes than in countries that consume animals and their secretions. These "much better health outcomes" are not mere percentage reductions in various types of diseases, but their literal absence among the population. Moreover, while the movie cannot be expected to show how the research has controlled for other explanations (much less grapple with the causation/correlation problem), it does note that all of these "Western diseases" are showing up in the areas of China that are becoming more Western in their eating habits. Within a generation, a population that virtually never experienced obesity, heart disease, and all of the scourges of the Western world has become "just like us."

The movie thus makes a compelling case for action at both the individual and policy-making level to change what we eat, literally to save our lives. As a person who chose to become a vegan entirely for ethical reasons, this was good (but unnecessary) news. For the remainder of this post (and perhaps in one or more future posts), I will offer a few reactions to the movie that go beyond how the film presented Campbell's and Esselstyn's research.

-- Unsurprisingly, Campbell and Esselstyn report that they are often ridiculed by their colleagues for being anti-meat. Esslestyn reports that his colleagues took to mocking him as "Dr. Sprout." The general hostility of the American medical and scientific establishment to veganism is really quite shocking. For example, I recently saw a cardiologist about a potential problem (described in a DoL post in March). The prognosis was good. During our first meeting, however, as I was going through my medical history, I said, "Oh, and I'm a vegan." Did the cardiologist respond by noting the positive health effects of my refusal to eat animal products? Of course not. Instead, he immediately became grim and said, "Well, that's going to be a problem." When I asked why, he said that it is hard for vegans to lose weight because they eat too many starchy foods! I assured him that I am capable of losing weight on a vegan diet (which I am, in fact, currently doing), but he was unmoved. I changed the subject.

-- Indeed, one of the strengths of "Forks Over Knives" is its depiction of just how ill-informed the American public health community is about dietary issues. The filmmaker does a great job of debunking the widely-held myths about diet, such as the idea that we need meat for protein (wrong, because humans can easily get enough protein from plant-based food) and milk for calcium (ditto). Even so, the public believes these things, encouraged by supposed experts. The film includes two clips from an interview with the nutritionist at Washington University, who parrots the discredited nonsense about protein and calcium as if she were a character from the movie "Pleasantville."

-- One of my pet peeves about modern movies is product placement. I thus found "Forks Over Knives" a bit difficult to watch, because it was so obviously promoting the grocery-store chain Whole Foods. Characters are shown walking through Whole Foods, carrying Whole Foods bags, and so on. Nearly everyone uses the term "whole food, plant-based diet" to describe a vegan diet. At one point, Dr. Campbell said "plant-based diet," but immediately corrected himself, saying, "I mean, whole food, plant-based diet." In the same cineplex the previous week, I had seen Morgan Spurlock's new film, "Pom Wonderful Presents The Greatest Movie Ever Sold," which presents a subversive take on product placement. Given that Whole Foods makes its money by selling all manner of animal products, moreover, it was more than merely annoying to see the makers of "Forks Over Knives" sell out in this way.

-- Only one person in the entire film uses the word "vegan." That person happens to be an extreme fighting champion, who is deeply committed to veganism. Given the syllable-laden alternative favored by everyone else in the film, the filmmakers must have made a conscious decision to avoid the word vegan. Given the outright contempt for veganism even among some of the more enlightened elements of American society, this might well have been a sensible choice. Allowing a macho man -- a guy who beats people up for a living -- to use the V-word must, therefore, have seemed strategically sensible. I cannot help but think, however, that vegans do themselves little good by refusing to use the simple word that describes us. After all, Michael Dukakis's refusal to admit that he was a liberal (in response to George H. W. Bush's sneering reference to "the L-word") hardly made it easier to be a "progressive."

Notwithstanding these concerns, this is an important film. It presents facts that should be the basis for changing society. I hope that the world will change because of it.

Wednesday, May 25, 2011

The Class Certification Issue in the California Prison Overcrowding Case

By Mike Dorf


As I discussed yesterday, Monday's Supreme Court decision in Brown v. Plata raises but doesn't ultimately resolve the question of how far Congress may go towards denying any and all judicial relief to people who have had their constitutional rights violated.  I speculated that Justice Kennedy's opinion indicates that five justices (Kennedy himself, as well as Justices Ginsburg, Breyer, Sotomayor, and Kagan) are prepared to say that Congress cannot, outside of clearly recognized categories or without providing an adequate alternative, simply cut off what would otherwise be a standard judicial remedy for the violation of constitutional rights.  In this follow-up post, I want to note how far in the other direction at least two justices (Scalia and Thomas) and possibly four (also CJ Roberts and Alito) seem willing to go in the other direction.  To do so, I'll need to unpack a somewhat technical piece of Justice Scalia's dissent.

Plata is really two lawsuits: one, Plata itself, is a class action on behalf of California state prisoners with serious medical conditions.  The other, Coleman v. Brown, is a class action on behalf of California state prisoners with serious mental illnesses.  The three-judge court found that severe overcrowding in California prisons renders the state prison system as a whole incapable of delivering medical and mental health care that meets the minimum standards necessary to avoid imposing cruel and unusual punishment on prisoners.  Justice Scalia's dissent takes issue with (among other things) that framing of the issue.  He says that most prisoners in California--and even most prisoners with serious medical or mental health problems--will not receive sub-Eighth-Amendment-quality care, and thus most people in the prisoner class do not appear to have valid individual claims.  Because the class action is a device for aggregating individually viable claims, Justice Scalia goes on, this means that Plata and Coleman are not good lawsuits, unless the prisoners are alleging a right to be imprisoned only in a prison system that provides systematically adequate medical or mental health care.  But on the merits, Justice Scalia says, there is no such right.  Thus, he concludes: "Whether procedurally wrong or  substantively wrong, the notion that the plaintiff class can allege an Eighth Amendment violation based on 'systemwide deficiencies' is assuredly wrong."

What should we make of this objection?  On the procedural side, I think Justice Scalia's point is that the classes of prisoners with serious medical conditions and those with serious mental health conditions are too broad.  Instead, the respective classes should have been defined as prisoners who will receive such inadequate medical treatment or mental health treatment (including delayed treatment, incompetent treatment, or no treatment) as to violate the Eighth Amendment.  BUT if the classes had been so defined, then, Justice Scalia might mean to be saying, no one would have had standing to serve as the respective class representatives, because no one can know in advance that his treatment or non-treatment will amount to cruel and unusual punishment.

If that sounds like a Catch-22, it is.  Unfortunately, it's also the law.  In the outrageous 1983 ruling in Los Angeles v. Lyons, the Court held that the victim of a previous near-fatal police choke-hold lacked standing to seek an injunction against future choke-holds by the LAPD because he could not show a sufficient probability that he would be subject to future choke-holds.  So Justice Scalia could be saying in his Plata dissent that the  plaintiffs in a properly defined class action would lack standing under Lyons (although he does not cite Lyons).


Let me be clear that I think a respectable argument can be made against the result in Plata: Justice Alito's dissent does a reasonably good job of it by pointing to the dangers that can arise from releasing criminals, even criminals judged to be relatively less dangerous than others, into the community.  But the argument rooted in Lyons that I see as under-writing Justice Scalia's position does not rely on the danger that release may pose, and is therefore quite far-reeaching.

According to the district court, as quoted by the majority in Plata, "it is an uncontested fact that, on average, an inmate in one of California’s prisons needlessly dies every six to seven  days due to constitutional deficiencies in the" medical care offered by California prisons.  In his dissent, Justice Alito contests this supposedly uncontested proposition by pointing to evidence about very recent developments that was excluded in the district court .  But Justice Scalia's dissent appears to say that even assuming the one-avoidable-death-per-week statistic is accurate, there is no properly certifiable class.

So consider a slightly different case.  Suppose that once every week, the California prison system holds a lottery among all of its prisoners, and then executes the lottery's "winner," regardless of the crime he committed.  No doubt Justices Scalia and Thomas would agree that any person so chosen could go into a federal court to object that execution under these circumstances violates the Eighth Amendment.  But now suppose that the State keeps the identity of the lottery "winner" secret until the moment of execution, which is accomplished by lethal poisoning of his and only his food in the prison cafeteria.  Once again, Justices Scalia and Thomas would say that each prisoner thus poisoned suffers an Eighth Amendment violation, but under Lyons and their reasoning in Plata as I understand it, no prisoner and no class of prisoners would have standing to seek to enjoin the lottery-plus-poisoning scheme because no prisoner could know with a sufficiently high enough probability that he would be the one poisoned on any given week.

One could, of course, say that the state's deliberate weekly fatal poisoning of a randomly selected inmate is a more culpable act than its failure to reduce overcrowding, even if the poisoning and the overcrowding predictably result in an equal number of inmate deaths.  However, that distinction has nothing to do with the class certification or standing issue.  Accordingly, unless I have misread Justice Scalia's Plata dissent, he would have to say that even in the case of the deliberate random poisoning, no prisoner has standing to complain.

The best thing--and maybe the only thing--that could be said in favor of that position is that in the poisoning case there would be a political remedy: Exposure of the poisoning scheme to the court of public opinion would, one hopes, quickly bring it to an end.  The same is not true, however, of Plata.  Especially given the public safety issues raised by Justice Alito, the public are likely to be as indifferent to the suffering of prison inmates as are the prison authorities.  For the majority in Plata, that's a reason why judicial intervention is needed.  For the dissenters, the public indifference to prisoners' fates appears to count as a political judgment to which the courts should defer.

Tuesday, May 24, 2011

California Prison Crowding Puts Blackstone and Marbury to the Test

By Mike Dorf


Law students and many members of the lay public learn early on the Blackstonian maxim for every right, a remedy, invoked by Chief Justice John Marshall in the opening passages of Marbury v. Madison, and seemingly stating a fundamental principle of both the rule of law and American constitutionalism.  And yet, even a few moments of careful reflection reveal that breaches of rights, including constitutional rights, frequently go unremedied.

Suppose a police officer arrests you without probable cause or a warrant, thereby violating your rights under the Fourth Amendment, as made applicable to state and local officials by the Fourteenth Amendment.  You sue the officer to vindicate your rights, but a court could conclude that your rights were violated and nonetheless withhold a damages remedy because it was not previously established that the objective facts known to the officer did not constitute probable cause and exigent circumstances.  Thus, the officer has qualified immunity from damages, and no action will lie against the municipality that employs him if his actions were not taken pursuant to a policy or practice of unlawful arrests.  Your rights have been violated but you have no remedy.  There are other examples one could also cite.  States may be immune from damages remedies because of sovereign immunity.  Persons whose rights have been violated may lack standing to seek injunctive or other relief.  The political question doctrine may sometimes bar suit. Etc.  The Blackstonian maxim is best understood as aspirational, rather than descriptive of American constitutional law.

Yet that leaves us with the following question: If violations of constitutional rights do not always give rise to judicial remedies, does that mean that there are no limits on the ability of Congress to withhold remedies for constitutional violations?  That question has been much debated by scholars of federal courts and is raised but not fully answered in the extremely important Supreme Court decision in Brown v. Plata.

In Plata, the Court, in a 5-4 opinion by Justice Kennedy, held that a three-judge district court did not violate the Prison Litigation Reform Act (PLRA) when it ordered California to reduce its prison population as a remedy for longstanding violations of the Eighth Amendment.  The photo shown here is one of three appended to the Court's opinion to give some flavor of the conditions in California's prisons.  As presented by Justice Kennedy's opinion, the core of the state's argument was that it was entitled to more time to address its constitutional violations through means short of population reductions.  But the three-judge district court found, and a majority of the Supreme Court agreed, that the state had already had the legally required reasonable time to comply, so that drastic measures were warranted.

As I read the PLRA, it does not violate the Blackstonian maxim.  It allows for a remedy of court-ordered prisoner releases, but only as a last resort that is necessary to correct a violation of a federal right.  Under the PLRA, courts are supposed to consider the potential for adverse impacts on public safety, and the three-judge district court did so.  The Supreme Court agreed that overcrowding could be alleviated by releasing the least violent prisoners without seriously endangering public safety.  Justice Alito (joined by Chief Justice Roberts) contested that claim, relying in part on statistics from an earlier prison release in Pennsylvania.

If Justice Alito's sounded a grim alarm, Justice Scalia's dissent was less measured.  In just the first page of his dissent, Justice Scalia (joined by Justice Thomas) calls the result in Plata--the order to release 46,000 prisoners--"the most radical injunction issued by a court in our Nation's history," "absurd," and a "judicial travesty."  He goes on to take issue with a premise that does not seem to be in dispute in the case--namely, that California's prison overcrowding violates the Eighth Amendment--and also seems to reject over half a century of structural injunctions, including the desegregation remedies in Brown v. Board and its progeny (although Justice Scalia doesn't mention that fact).

But despite the strong difference in tone between the majority and the dissent, they are not that far apart on the Blackstonian question.  Justice Scalia says that in his view of the PLRA, "a court may not order a prisoner's release unless it determines that the prisoner is suffering from a violation of his constitutional rights, and that his release, and no other relief, will remedy that violation."  The real difference is that Justice Scalia has a much narrower view than the majority of when these circumstances are likely to exist.  Likewise, Justice Alito thinks it is possible to give a remedy that addresses the underlying rights violations while staying within the bounds of the PLRA.

Thus, no Justice in Plata seriously entertains the possibility that the remedy of prisoner release is both: a) the only effective remedy for underlying constitutional violations; and b) forbidden by the PLRA.  If that were so, would the PLRA be unconstitutional as applied?  The majority suggests the answer might be yes.  Justice Kennedy writes: "A reading of the PLRA that would render population limits unavailable in practice would raise serious constitutional concerns."  He then cites a footnote in a 1986 case, Bowen v. Michigan Academy of Family Phsicians, which in turn cites some of the case law and literature addressing the scope of Congressional power to close the courthouse door to constitutional claims that are, by assumption, meritorious.

To my mind, that is a major, though not entirely unexpected, development.  In Boumediene v. Bush, the same lineup--except with Justices Souter and Stevens not yet replaced by Justices Sotomayor and Kagan, respectively--held that the Constitution forbade Congress from eliminating habeas corpus as a remedy for unlawful detention.  Boumediene could be construed as implementing only the Suspension Clause, and thus only applying to access to court via habeas corpus.  But the invocation of the Michigan Academy footnote in Plata suggests that Justice Kennedy has a broader view.  To be sure, all he is saying in Plata is that serious constitutional questions would be raised if Congress were to deliberately withhold otherwise necessary remedies for the violation of constitutional rights.  Still, one has a pretty good guess as to how five members of this Court would answer those questions--in a way that would make Blackstone and John Marshall happy.

Monday, May 23, 2011

Who Will Care for Your Pets After the Rapture?

By Mike Dorf


With doomsday having come and gone (phew!), it's worth reflecting on a phenomenon that sparked increased interest in recent weeks, as anticipation of the apocalypse turned the thoughts of apocalypse-minded folk to the post-Rapture world: Who will care for their pets who will be left behind?  The answer, given by websites that specialize in such matters, such as this one, is: We non-Christians--a term used by the Rapture-minded to include atheists, agnostics, adherents to non-Christian faiths, and adherents to Christian sects that don't believe in the Rapture, i.e., the overwhelming majority of people now living on Earth.

You're probably thinking: Why would a merciful God rapture His obedient human servants but leave their obedient non-human animal servants behind?  And isn't the post-Rapture world supposed to be, well, post-apocalyptic, thus rendering pet care well-nigh impossible? According to the FAQ section of the website linked above, the answer to the second question is no: To be sure, there will be "massive confusion" post-Rapture, but the Google servers will likely survive!  Anyway, these are theological questions beyond my pay grade. Here I want to raise some legal questions about Rapture insurance for pets.

Let's begin with a question of criminal law: Could the proprietors of a Rapture pet insurance plan be prosecuted for fraud?  The leading Supreme Court case, United States v. Ballard, decided in 1944, appears to make the answer turn on the sincerity of the beliefs of the proprietors.  At the very least, Ballard forbids prosecution for fraud of those who sincerely believe in the truth of the religious claims they make.  That principle applies here.  In every jurisdiction with which I'm familiar, fraud is not a strict liability offense; it requires mens rea--the intent to take something of value in exchange for something dishonestly represented.  Rapture-believing Christians who sell Rapture pet insurance are taking something of value, but they are doing so honestly.

In Ballard, Justice Jackson, joined by Justice Frankfurter, would have gone further to say that even insincere peddlers of religious information, goods, and services should be protected because of the difficulty of separating inquiries into sincerity and inquiries into truth.  (Jackson made very effective use of observations by William James about the nature of religious belief.)



I can illustrate the problem that concerned Justice Jackson with a hypothetical variant on Rapture pet insurance.  Suppose two otherwise identical Rapture pet insurance organizations.  One is run by Rapture-believing Ned; the other is run by heathen Homer.  Each charges a $10 registration fee.  Is it possible that Homer but not Ned is guilty of fraud when the only difference between them is their respective religious beliefs?

We might not have to rely on proof of sincerity of belief if there are behavioral differences between Ned and Homer.  Ned, believing the Rapture is real, will take steps to enlist pet-loving non-Christians to gather and care for the pets in the event of the Rapture.  Homer, believing there will be no Rapture, might simply pocket the money.  If that were so, a prosecution of Homer but not Ned would not raise the issue that worried Justice Jackson.

Still, we can also imagine cases in which Ned and Homer behave identically in the pre-Rapture world.  Suppose the Rapture insurance contracts used by both Ned and Homer provide that registration fees can be used to pay current administrative costs, with the balance going into escrow; should the pet die before the Rapture, the balance is returned to the registrant.  Ned and Homer run their respective businesses as sole proprietorships, paying costs and paying themselves a reasonable salary for administering the site.  Or they both organize as non-profits, with each drawing the same salary as director.  Now it would literally be true that the only difference between Ned and Homer is their respective intents as mediated by their respective religious beliefs. In such circumstances, we have three choices:

1) Ned can't be prosecuted for fraud because of the sincerity of his beliefs, but Homer can.

2) Prosecute neither.  Ned can't be prosecuted for the reason just given, and it would be unfair to Homer to prosecute him because he holds different beliefs.

3) Prosecute them both because the Rapture is nonsense.

I assume 3) is off the table.  People can be prosecuted for making some false factual claims that have religious content.  E.g., a grocer who knowingly sold a pork sausage labeled as "kosher" or "hallal." However, the prosecution in such a case would be based on the fact that the sausage is falsely labeled, not that the state requires sausages to be kosher or halal or takes a position on the value of observing Jewish or Muslim dietary law.  The same grocer could be prosecuted for the same offense if he labeled the sausage "vegan."

So there's nothing necessarily wrong with secular courts enforcing general anti-fraud provisions that merely implicate religious views.  The core difficulty identified in Ballard arises when a secular court takes a position on religious matters.  A church that charges $25 for the minister to say a special prayer commits no offense if the minister in fact says the special prayer, and commits an offense if she does not.  But the church cannot be subject to any legal penalty on the ground that prayers lack efficacy.  (There may be implications for the church's non-profit status if it is literally selling indulgences.  Let's assume that these purchases are structured as donations in a way that is legally permissible.)

The hard question, therefore, is between options 1 and 2, i..e., whether Homer can and should be prosecuted even though Ned cannot be.  I'm inclined to prefer option 2 on grounds of equality and administrability as well as the reasons discussed by Justice Jackson in Ballard.  To be clear, the issue would not be one of religious liberty for Homer or even for Ned.  Post-Employment Division v. Smith, there is no Free Exercise right to exemption from a general anti-fraud law.  But the Ballard rule--that courts do not inquire into the truth or falsity of religious doctrines--survives Smith. 



And, following Justices Jackson and Frankfurter in Ballard, I would at least tentatively go further.  Under the Jackson approach, we should give con men and women greater freedom to make (what they believe to be) false representations about some religious matters than about non-religious matters.  That's an unfortunate byproduct of implementing the principle that secular courts cannot make judgments about the truth or falsity of religious claims, but the alternative would be worse. Moreover, as Justice Jackson himself eloquently wrote, this is only the tip of the iceberg.  I'll close with his remarkable and, as always, eloquent, language.  Justice Jackson wrote in his Ballard dissent: 
The chief wrong which false prophets do to their following is not financial. The collections aggregate a tempting total, but individual payments are not ruinous. I doubt if the vigilance of the law is equal to making money stick by over-credulous people. But the real harm is on the mental and spiritual plane. There are those who hunger and thirst after higher values which they feel wanting in their humdrum lives. They live in mental confusion or moral anarchy and seek vaguely for truth and beauty and moral support. When they are deluded and then disillusioned, cynicism and confusion follow. The wrong of these things, as I see it, is not in the money the victims part with half so much as in the mental and spiritual poison they get. But that is precisely the thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.

Friday, May 20, 2011

Argumentative Tunnel Vision

-- Posted by Neil H. Buchanan

[Special Note: In yesterday's post, I summarized an analysis of the so-called Ryan Plan, the at-least-temporarily-abandoned Republican plan to replace Medicare with a voucher system. An analysis of that plan showed that the country's overall (private plus public) costs of medical care would be either 5 or 8 times higher than current costs -- even taking into account the direct reduction in government spending on Medicare -- depending on the underlying assumptions. That translates into total increased costs through 2084 of $20 trillion or $34 trillion, in net present value terms, as the price of abandoning publicly-funded and -managed Medicare. My original post, which I have now corrected, stated those numbers as $20 billion and $34 billion -- billions, not trillions. I was only off by three orders of magnitude. No biggie.]

On Monday, Professor Dorf pointed out a strategic blunder by the Obama Administration in defending the Patient Protection and Affordable Care Act. In oral arguments in the 4th Circuit, the Administration's lawyer argued that the Commonwealth of Virginia lacks standing to challenge the law in court. Virginia has passed a law claiming that its citizens are not subject to the federal law in question, which means that the state's sovereign interests would be arguably harmed if the federal government tries to enforce its mandates in violation of the state law. Obama's lawyer argued, inter alia, that Virginia's interests only extend to defending its right to regulate its citizens lives as it sees fit, but not to its right to guarantee that its citizens would be free from regulation. (I realize that my summary here is imperfect. Those who find this too quick and dirty should consult Professor Dorf's analysis.)
As Professor Dorf pointed out, this argument is the mirror image of -- which is a polite way of saying "completely inconsistent with," or "diametrically opposed to" -- the Administration's argument on the merits of the "individual mandate." The Administration argues -- quite persuasively, in my opinion -- that the Commerce Clause allows the federal government to regulate an individual's decision not to buy health insurance, because not buying health insurance has an effect on interstate commerce, by shifting the ultimate costs of health care for the uninsured onto everyone else. The activity/inactivity distinction that the health care law's opponents have invented, therefore, is meaningless.
While one could probably find some space between the Administration's position on standing and its position on the Commerce Clause, any difference is narrow at best. More to the point, the Administration missed an opportunity to hang the label of inconsistency on the other side. Instead, it defaulted to mindless gainsaying of each argument with which it was presented. Engaged in the heat of litigation, it apparently never occurred to the lawyers that one argument undermined the other.
Now consider the raging debate about the debt limit. The Administration's conservative opponents want to use the necessity of raising the debt limit to extract concessions from President Obama regarding yet more spending cuts. The Obama people respond that reaching the debt limit would be an economic disaster. This week, we officially reached the debt limit, and -- completely as expected -- the Administration began to juggle the books to put off the day of reckoning by a few months.
The response from many on the right was to say, "See, you said that we were going to bring about Armageddon, but nothing happened. Ha!" (The Daily Show on May 18 included some hilarious footage of cable news coverage of the news that we have hit the debt ceiling.) Having been told that they were irresponsibly risking economic collapse, the anti-government zealots now gleefully claim vindication.
On the merits, the obvious response is that no one ever said that the economic catastrophe of hitting the debt limit would happen this week, but only when the opportunities to juggle the books have run out. Let us, however, set that aside. The broader implication of the Right's claim that hitting the debt limit is no big deal would be that hitting the debt limit is no big deal. If they are correct, then they lose their leverage in the debate over the budget. Their entire strategy revolves around holding the economy hostage, forcing Obama to bend to their will rather than see the world collapse in chaos. If the debt limit means nothing, that strategy has no teeth.
Of course, politics often seems to be about nothing but shifting positions opportunistically. The Republicans who fiercely defended the Bush administration's right to secrecy, for example, now (as anyone could have predicted) are harassing the Obama administration to release all kinds of internal information about a campaign-finance issue, and Democrats are reborn believers in the value of government confidentiality. Republicans who insisted that cutting executive compensation would drive out the best people turned around and claimed that cutting teachers' salaries and benefits would have no such effect. The parties conveniently switch positions on the merits of filibusters.
Other than being the subject of a devastating series of juxtaposed clips on The Daily Show, however, does any of this matter? In many -- maybe even most -- cases, the answer is probably no. People expect political positions to be fluid and opportunistic. Even so, it is easy to see the damage from being tunnel-visioned or inconsistent, in some important instances. Newt Gingrich said this week that anyone accurately quoting his remarks criticizing the Ryan Plan would be lying, but there is no reason to believe that this pathetic response will have its desired effect.
More broadly, the Republicans who voted for the Ryan Plan are doing everything possible to make it go away, but they will surely be haunted by their votes through next November. (The Democrats will make sure of that.) The Administration's inconsistent positions in the 4th Circuit could have bad effects, both in the court (where unsympathetic judges will use the standing argument to undermine the Commerce Clause argument) and especially in the political realm, where the public is already skeptical of the Administration's position.
The shifting positions on the debt limit will probably not have the same impact on the ultimate outcome, however, because the Administration correctly understands that there really is a disaster in store for us, if we do not raise the limit. Scoring political points by highlighting the other side's inconsistencies does not change that underlying fact. It would be wonderful for the Administration, and even more for actual liberals, if the debt limit did not matter. Unfortunately, it does, and the anti-government forces are hell-bent on using that to their advantage.

Thursday, May 19, 2011

Self-Interest and Older Americans

[NOTE: The post below contains corrected text. In the fourth paragraph, I originally wrote that the estimated aggregate medical cost increase under the Republicans' proposed plan to replace Medicare with vouchers was $20 billion or $34 billion, depending on the underlying assumptions. The correct numbers are $20 trillion and $34 trillion.]


-- Posted by Neil H. Buchanan


According to the conventional wisdom, America's elderly are a bunch of selfish, overfed whiners. "The Simpsons" has captured the essence of this myth on many occasions, using Homer's aged father Abe and his nursing home cronies to depict America's senior citizens as comically self-centered. In one episode, Abe yells: "I'm old. Gimme, gimme, gimme!!" This narrative is somewhat offset by a counter-narrative about "the greatest generation," but the idea that our retirees are heedlessly pampering themselves at the expense of the future seems to dominate our views of the pre-Boomer generation.

This presumption is so reliable, in fact, that the opponents of Social Security and Medicare have tried to build their political strategies around it. A disapproving term of relatively recent vintage is the "greedy geezer," which was picked up by all of the usual suspects (prominently including New York Times pundit David Brooks and deficit commission co-chair Alan Simpson) as a short-hand insult, to depict our long-term budget challenges as the result of callous generational warfare by the old on the innocent young (and the unborn). These greedy geezers, we are told, are addicted to their "entitlements" and will not allow anyone to touch them.

Apparently, the anti-government zealots came to believe their own story. At least, that is the best way to explain their political strategy in recent months in pushing a plan to dismantle Medicare. The so-called Ryan Plan, which passed the House with near-unanimous support from Republicans, would have replaced the extremely popular and efficient single-payer Medicare system with a set of vouchers that seniors would then use to buy health insurance from private insurers -- insurers who would, of course, be freed of any of the requirements imposed by the Affordable Care Act.

This bill was a terrible idea from the start, on the merits. David Cay Johnston, the Pulitzer-Prize winning tax journalist, analyzed the plan recently, describing a scenario based on Rep. Ryan's preferred forecasts as well as a scenario based on the CBO's forecasts. Because Medicare as currently constituted successfully uses the government's buying power to hold down costs, while individuals have no such power, the net cost of health care for seniors (under the voucher system, compared to today's costs) would be five times higher using Ryan's numbers and eight times higher using the CBO's numbers. In the aggregate, even after taking into account the direct reduction in the government's medical care expenditures, the new system would be $20 trillion or $34 trillion more expensive, under the two scenarios.

This bill was never about the numbers, however. It is a political statement, and it is based firmly on the idea that Republicans can use the public's supposed disgust with Greedy Geezers to finish off single-payer health care once and for all. But what to do about those Greedy Geezers themselves, who (we are reminded endlessly) vote in such large numbers? Count on their greed, and buy them off, of course.

The House Republicans are so sure that seniors are only out for themselves that they built their political strategy around the assumption that current seniors would be pacified by a very real "grandfather clause." The plan would only apply to those currently under age 55, allowing the bill's proponents to say to current Medicare recipients, "Don't worry, we're not taking anything away from you." Predictably, in stormy meetings with angry constituents during the recent Congressional recess, Ryan and his colleagues tried to use the age cutoff as a way to blunt anger over the bill. At one point, Ryan confidently told a reporter that people were no longer angry when he explained that the bill only affected younger people.

We now know, of course, that that strategy failed miserably. The politics of this issue have run so completely in favor of the Democrats that even a safe Republican House seat near Buffalo is at risk of going to a Democrat in an upcoming special election. More tellingly, the Republicans are in all-out retreat on the subject. House and Senate leaders say, predictably enough, that the public's anger is based on distortions; but they nevertheless have fully backed away from the plan. Newly-minted presidential candidate Newt Gingrich looked at the tea leaves and decided that he had to distance himself from Ryan's unpopular plan, calling it "social engineering" and "radical." (Gingrich is now experiencing his own political nightmare, because his party's base views Ryan as a demi-god, notwithstanding the broader political failure of the bill.)

It seems, therefore, that there is some danger in believing one's own myth-making. Describing all old people as greedy and selfish, and then building a political strategy on the presumption that such a description is accurate, has led to political setbacks for Republicans.

Nevertheless, we might view this as an understandable miscalculation on the Republicans' part. Even if they put too much weight on the myth, there is good reason to think that people's political positions reliably track their own self-interest. Why should we expect people over 55 to care one way or another about something that does not affect them -- or, at least, to care enough to become politically problematic for Republicans? Is it not fair to view seniors' inter-generational generosity as a surprise?

Actually, it is not at all surprising. In fact, we have seen this all play out before. In early 2005, when the Bush administration attempted to use its political capital from the 2004 campaign to begin the process of privatizing Social Security, the administration attempted to buy off seniors with promises that its plan would not affect anyone who was already receiving Social Security. The strategy did not work. Even though Republicans held the White House and majorities in both Houses of Congress, after a months-long campaign to promote the plan, it went nowhere.

The leading advocacy groups for senior citizens, notably AARP, came out strongly against privatization. One could argue, of course, that those groups were merely protecting their own interests, because they want to have a clientele in the future, after current retirees die off. That, however, would not explain the widespread disapproval of the privatization plan by the seniors themselves. It also requires one to believe that AARP's leaders could get away with spending their current members' dues on something that the current members do not care about.

One could then argue, I suppose, that the current members were being duped by their leaders into opposing the plan. At that point, however, we lose any ability to believe that political action is based on people's actual desires. Certainly, the statements from leaders and regular seniors alike at the time indicated that they were trying to do something for the benefit of their children and grandchildren. Far from being Greedy Geezers, they seemed to be acting a lot more like Considerate Codgers. (Generous Geriatrics? Equitable Elderly? Honorable Oldsters?)

No matter how cynically one views the 2005 experience, however, we know that Bush's attempt to buy seniors' silence did not work. It is rather stunning to see the new House majority so completely ignore that lesson today. Those who forget history ...

Wednesday, May 18, 2011

Federal Courts Exam Spring 2011

By Mike Dorf

Continuing a tradition I started last year, I'm posting my Federal Courts exam.  There are four questions of equal weight. This was a particularly challenging exam.  It was an open-book take-home for which the students had eight hours.

The following facts pertain to all questions:

Section 10320 of the Patient Protection and Affordable Care Act (PPACA) amended Section 1899A of the Social Security Act to strengthen a body now called the “Independent Medicare Advisory Board.”  You can read a version of the Act as it now stands at 42 U.S.C. § 1395kkk.  However, to use your time on this question effectively, you would be well advised to accept the following summary, which borrows liberally from the summary posted on the White House website:

* The Board consists of fifteen members, including medical professionals and others, who are nominated by the President and confirmed by the Senate.  Except for the initial terms, which are staggered to create three “classes” (like in the Senate), board members serve for six-year terms.  Thus far, the President has not nominated anyone to the Board.

* The Board is tasked with proposing policies to improve care and lower costs for Medicare.  However, the Board is prohibited from recommending any policies that ration care, raise taxes, increase premiums or cost-sharing, restrict benefits or modify who is eligible for Medicare.

* The Act puts in place various fast-track procedures for Congress to reject or modify Board proposals.  The overall procedure is similar to the protocol under the Rules Enabling Act: If Congress does nothing, the Board’s proposals become effective.

* The Act provides that there shall “be no administrative or judicial review under” pre-existing provisions of the Social Security Code “or otherwise of the implementation by the Secretary under” the relevant provisions of the Act “of the recommendations contained in a proposal.”

(The foregoing is all true.  The balance of this exam is based on the following additional, made-up facts.)

As one condition of securing majority support for a measure to raise the debt ceiling, Speaker Boehner secures President Obama’s and Majority Leader Reid’s agreement to the enactment of an amendment to the foregoing measures, which passes as part of the Restoring American Fiscal Responsibility Act  (RAFRA) of 2011.  Here is a summary of the key provisions of RAFRA as they relate to Medicare reimbursements:
A) Medicare reimbursements shall continue to be made in accordance with the rules adopted under the procedures establishing the Independent Medicare Advisory Board, except that those rules shall have no force or effect in any State that creates a “State Independent Medicare Advisory Board (SIMAB).”  The new legislation sets forth requirements for SIMABs, which are modeled on the existing federal Board, but allow some greater flexibility with respect to the number of members and terms of office.  RAFRA further states that no provision adopted by a SIMAB or state legislature shall take effect until 30 days after it has been transmitted to Congress, and Congress has passed no law disavowing it.  If Congress takes no action, the provision adopted by a SIMAB takes effect in that state. 
B) Any State that creates a SIMAB receives a block grant to pay for Medicare reimbursements, with the size of the grant to be determined by a formula set forth in RAFRA that takes account of prior year spending under the federally administered Medicare program and population changes.  Responsibility for all Medicare reimbursements in States that create SIMABs and receive block grants is transferred from the federal government to the State.  RAFRA further provides that the State may use any unused portion of the RAFRA block grant for its Medicaid program, with 50% of the unused federal Medicare funds thus diverted counting as part of the State’s contribution to Medicaid and the other 50% counting as federal matching funds. 
C) RAFRA contains the following provision: “Section 401: A State’s creation of a SIMAB and acceptance of a Medicare block grant shall be deemed an unconditional waiver of its sovereign immunity to all private lawsuits seeking relief under this Act or under any provision adopted pursuant to this Act.  This Act shall, in the alternative, also be understood as an exercise of Congressional power to enforce the Fourteenth Amendment, insofar as the elderly are a discrete and insular minority, health care is a right, and/or future generations who will be saddled with our debt necessarily lack current political power; accordingly, and in the alternative, this Act hereby abrogates state sovereign immunity.” 
D) RAFRA contains the following provision: “Notwithstanding 28 U.S.C. §§ 1257, 1291, 1292, or any other provision of law, neither any federal appeals court nor the Supreme Court of the United States shall have jurisdiction, either by appeal or as an original action, over any case in which reimbursement is sought for expenses allegedly incurred in conformity with rules established by a SIMAB.  However, the losing party to a suit that is properly brought in federal district court shall have the right to appeal to a state intermediate appellate court, and thence to the state’s highest court, to the extent that, and on equal footing with, appeals that would be available from a state trial court sitting where the federal district court sits.”
Following the enactment of RAFRA, the State of Hughes creates and staffs a SIMAB.  During its first year, the Hughes SIMAB proposes dozens of rules, which it sends as a package to the Hughes legislature.  The legislature does not disapprove them, and thus they go into effect thirty days after they are transmitted to Congress, which also does not disapprove them.  One of the rules was adopted in response to evidence that a substantial number of home health aides in Hughes are not proficient in English, and thus have difficulty reading prescriptions and communicating with Medicare patients.  The Rule provides as follows:
Rule 28: No person or entity providing otherwise reimbursable home health care services in Hughes shall receive reimbursement for such services provided by any person who is not proficient in speaking, reading, and writing English.
Immediately following the completion of the thirty-day Congressional review period, Helping Hands, Inc., a Hughes corporation with its principal place of business in Hughes, sues Deena Darling, a Hughes citizen and the Secretary of Health for the State of Hughes.  As Secretary of Health, Darling heads the state agency charged with making Medicare reimbursement eligibility decisions.

In the year immediately prior to its lawsuit, Helping Hands received over $10 million in Medicare reimbursements for home health aides it employed in the State of Hughes.  Roughly half of its employees are not native English speakers.  Helping Hands provides an in-house 2-week intensive English immersion course for non-native speakers whom it hires as home health aides.  It seeks a declaratory judgment that employees who successfully complete the course are “proficient” under Rule 28.  Helping Hands also seeks an injunction directing Darling not to withhold Medicare reimbursements from it on the ground of failure to comply with Rule 28.

The lawsuit by Helping Hands is filed in the Federal District Court for the District of Hughes, in Hughes City.  The complaint invokes the federal Declaratory Judgment Act, the Hughes Declaratory Judgment Act, Ex Parte Young, the Hughes All Writs Act (which, among other things, provides a state cause of action for injunctive relief against a state official charged with violating state law but expressly states that it is not a waiver of state sovereign immunity), and, as the basis for federal subject matter jurisdiction, 28 U.S.C. § 1331.

You are an attorney for the Hughes Department of Health.  Secretary Darling asks you to write an objective memorandum addressing the following questions:

Question 1:  Does the federal district court have subject matter jurisdiction, and if so, should it nonetheless decline to exercise that jurisdiction on the basis of an abstention doctrine?

Question 2: If the court finds that there is subject matter jurisdiction and no ground for abstention, can Darling successfully invoke sovereign immunity to block relief?

(The following additional facts pertain to Questions 3 and 4:)

Despite your best efforts, the district court rules that it has jurisdiction, that there are no grounds for abstention, and that sovereign immunity does not bar relief.  On the merits, it finds that the intensive course satisfies Rule 28 and grants declaratory and injunctive relief.  On behalf of the Department, you file an appeal with the Hughes Appellate Division, an intermediate appellate court in the State.  Helping Hands moves to dismiss the appeal on the ground that there is no jurisdiction.  Now write an objective memorandum addressing the following question:

Question 3: Does the Hughes Appellate Division have jurisdiction?

(The following additional facts pertain to Question 4:)

The Hughes Appellate Division rules that it has jurisdiction.  On the merits, it reverses the federal district court.  In the course of its opinion, the Appellate Division states “the clear purpose of Rule 28 is to ensure that real Americans who can speak and understand English take care of our seniors.  That’s a legitimate purpose.  A two-week English course doesn’t turn a foreigner into an English-speaking American.”

Helping Hands seeks discretionary review in the Hughes Supreme Court.  The petition argues that the Hughes Appellate Division’s opinion misinterpreted Rule 28 and insofar as it did not, that Rule 28 as construed by the Appellate Division is unconstitutional on equal protection and federalism grounds in light of Plyler v. Doe, 457 U.S. 202 (1982).  Accordingly, Helping Hands alleges that the Appellate Division opinion violated Rule 28 and the federal Constitution.  The Hughes Supreme Court denies discretionary review without opinion.

Helping Hands next files a petition for a writ of certiorari with the U.S. Supreme Court, renewing both its argument that the Hughes Appellate Division misinterpreted Rule 28 and its federal constitutional objection.  Write an objective memorandum addressing the following question:

Question 4: Does the petition properly fall within the jurisdiction of the U.S. Supreme Court?

END OF EXAM


Feel free to write up answers in the comments.  However, having spent a good portion of the last week and a half grading, I won't comment.

Tuesday, May 17, 2011

You Gotta Keep Insider Traders Way Down in the Hole

By Mike Dorf

Last week's conviction of Raj Rajaratnam for insider trading may herald an expansion of the use of wiretaps as a tool in the policing of Wall Street.  Accordingly, it's worth asking how Wall Street practices might change in response.  Practices on a different street--the corner where drug dealers ply their trade--may provide one useful point of comparison.

I'm not the first person to draw this parallel.  As reported in a Forbes magazine blog post in February, it appears that hedge fund managers have already become paranoid about wiretaps and bugs, hiring security firms to check their homes and offices.  Based on my extensive experience watching the HBO show The Wire and mob films and tv shows, I expect that this will only be the beginning of the change in behavior.

Consider the discipline of the Barksdale crew on The Wire.  When the series opens, even before they realize that they are the subject of electronic surveillance, they do not use their own telephones to conduct business.  Instead, they use a code for pagers and talk only on pay telephones.  After a bust tips off crew chiefs Avon Barksdale and Stringer Bell that the police are onto them, Bell instructs his dealers not to use the payphones in their immediate territory (and orders the phone cords ripped out just for good measure).

What's striking about the recorded evidence against Rajaratnam is how oblivious and careless he was.  For example, in one extraordinarily damning recording, after providing a client with inside information about a company, Rajaratnam instructs the client how to respond to an email that Rajaratnam will then send making it look as though the trade is based on general market analysis.  Avon and Stringer never would have said anything like this on any telephone line. Indeed, I doubt that they would have even said it aloud to anyone.  After all, even a trusted lieutenant could some day turn on you--and you just never know who could be informing or wearing a wire.

Suppose the government aggressively pursues insider trading cases going forward.  One consequence might be the development of codes.  Street dealers have developed elaborate systems in which the big players never touch the drugs or even much of the money, leaving the most incriminating transactions to under-age gang members.  To be sure, they must occasionally talk with their customers and suppliers about things like price, although even there, it can be done largely in code.  We can imagine future Rajaratnams developing the same methods.

But here's the rub: As Wall Street crooks start taking measures to avoid detection that resemble measures taken by drug dealers, they may start to behave like drug dealers in other respects.  Much of the violence associated with the drug trade stems from the conflict between rival gangs.  But not all of it.  A good deal of violence occurs between people who were formerly working together.  If you are engaged in an illegal activity and worried that a business partner, supplier, or customer is double-crossing you, you can't call the police for fear of incriminating yourself.  Thus, you resort to violent self-help.

Bottom Line: Aggressive prosecution of insider trading and other criminal activity on Wall Street could lead to a diminution of that activity, but it could also have the unintended consequence of turning some white-collar criminals into killers.

Monday, May 16, 2011

Standing in the Mirror: How the Standing Issue in the 4th Circuit Health Care Law Case Flips the Merits

By Mike Dorf


Last week the U.S. Court of Appeals for the 4th Circuit became the first federal appeals court to hear argument on the constitutionality of the individual mandate provision of the Patient Protection and Affordable Care Act (PPACA).  In addition to the merits, the case raises an interesting question of standing that I'll discuss here.

In its brief on the merits in the case brought by the State of Virginia, the federal government concedes that private parties to whom the mandate applies--like the plaintiffs in the parallel Liberty University litigation--do have standing to contest the mandate.  However, the feds say, the State of Virginia is not subject to the mandate.

Virginia argues that it nonetheless has standing because the mandate pre-empts a Virginia law stating that no one can be mandated by law to purchase health insurance.  The feds respond by noting that the Virginia law was passed for the express purpose of nullifying the federal statute.  If Virginia would have lacked standing to sue the federal government challenging the mandate absent its statute--and the federal government says that under traditional principles of parens patriae, it would have lacked such standing--then the mere enactment of a statute purporting to nullify the federal law cannot create standing.

Interested readers may want to look at Virginia's brief and the federal government's reply brief, as well as listen to the oral argument.  Or, if you prefer, I'll save you the trouble by first disposing of a non-issue that seems to have distracted the judges and lawyers, and then raising what I take to be the fundamental question.

The non-issue is whether the Virginia law was adopted for the subjective purpose of conferring standing.  After much pointless back-and-forth, the parties appeared to agree that the Virginia law contains provisions that do not simply nullify the federal PPACA but instead regulate private actors and localities in Virginia.  Virginia hasn't yet attempted to enforce those provisions but the suggestion by one of the judges during the oral argument that they are incapable of being enforced strikes me as simply wrong.  It's also irrelevant, however.  The federal government says that the federal PPACA does not pre-empt the portions of the Virginia law that regulate private parties and localities.  The only provision of the Virginia law that is pre-empted by the PPACA (if it's valid) is the provision that purports to nullify the PPACA.  And that particular bit of bootstrapping, the federal government says, is impermissible--not because of the subjective purpose for which the provision was adopted but because of what it objectively does, which is to nullify without regulating.

The issue was well joined when, under questioning by Judge Motz, Virginia SG Getchell said that a State could always create standing for itself to challenge a federal law by passing a state law nullifying that federal law.  Under follow-up questioning and in his brief, Getchell had three responses to the objection that this position is too sweeping.  First, he argued that the difficulty of enacting state legislation will act as a constraint on States doing this.  Second, he noted that in most of the more outlandish hypothetical examples, allowing a State to have standing would be largely harmless because the State would lose on the merits.  And third, he said that the alternative was never to permit States standing to challenge federal law, which is clearly inconsistent with Supreme Court doctrine.

Thus, I expect the standing issue to turn on whether the court thinks that the federal government--through acting SG Neal Katyal--has articulated a principled explanation for why standing is not allowed in this case but is allowed in other cases in which States assert sovereign interests.  What Katyal said on this subject is more or less the following: Where a State is regulating its citizens, and a federal law blocks that regulation, then a state has a sovereign interest in suing the federal government to make arguments that the federal law is unconstitutional; but where a State is simply declaring that its citizens have a right not to comply with federal law, then the State is only purporting to regulate but is really just asserting its parens patriae interest in disguise.

I think the distinction Katyal drew is consistent with, and makes sense of, the cases, but is not dictated by them.  The Fourth Circuit, and ultimately the Supreme Court, will decide whether it's a sensible line.  For now, I want to close by noting how it mirrors the argument that Virginia and the other plaintiffs make on the merits.  I'll make the point using a pair of hypothetical examples.

Suppose that a State has a law forbidding the sale of cigarettes in packages that aren't labeled with a skull-and-crossbones.  That law is pre-empted by the federal Cigarette Labeling and Advertising Act, which requires that cigarettes contain the Surgeon General's warning and pre-empts state requirements of additional labels.  As I understand Katyal's position, a State would have standing to sue a federal official to enjoin enforcement of the federal law (perhaps making an argument that it violates the 10th Amendment).  However, I think Katyal is saying that there is no standing if the State law confers rather than restricts rights.  Suppose that a State passed a law permitting cigarettes to be sold in any packages their sellers liked, i.e., conferring a certain kind of freedom on private actors in the State.  In those circumstances, under the federal government's theory, the State would not have standing to sue to enjoin the federal labeling law because the law doesn't interfere with the State's attempt to regulate; it only interferes with the State's effort to free its citizens and businesses from regulation.

And that's the irony or at least the interesting twist: The government's position on the standing issue draws a sharp distinction between a State's requiring or forbidding conduct--which it deems an exercise of sovereign regulatory power--and a State's permitting conduct--which it deems non-regulation and thus no exercise of sovereign authority.  That distinction bears more than a passing resemblance to the activity/inactivity distinction that Virginia and the other plaintiffs draw for purposes of defining the limits of the Commerce Clause--albeit for different purposes and with respect to different sorts of actors.  We will see whether that irony is noticed by the Fourth Circuit.