Federal Funding with State Flexibility: A Timely Look at Federalism and Health Care Reform

Nicholas Bagley, Federalism and the End of Obamacare, 127 Yale L.J. F. 1 (2017).

In our era of increasingly divisive politics and fiery rhetoric, particularly around Obamacare and efforts to repeal it, Nicholas Bagley’s article, Federalism and the End of Obamacare, is a rare treat. It is a thoughtful, balanced look at the arguments for the respective roles of federal and state governments should play in the financing and regulation of health care.

Professor Bagley’s article makes three key points that are highly relevant to the current debate about the future of Obamacare: First, only the federal government has the fiscal capacity to fund health care; second, states should be granted significant flexibility in regulating their health care markets, even if that means that they’ll sometimes get it wrong; and third, current reform proposals do not empower states, but rather take power away from the states by deregulating (and defunding) health care. Continue reading "Federal Funding with State Flexibility: A Timely Look at Federalism and Health Care Reform"

The Libertarian First Amendment, the Shifting Apostrophe, and the One-Way Ratchet

In Expanding the Periphery and Threatening the Core, Morgan Weiland tells a story of how the First Amendment has slipped its moorings: how the Supreme Court, through its holdings in commercial speech and corporate campaign finance regulation cases, has decoupled the individual’s right to expression from the reasons for protecting that right; and how the libertarian turn in First Amendment theory, which devalues any interference with the flow of any information for any reason, has fused together protections for corporate and individual speech in a way that abandons First Amendment first principles. Weiland’s article also details the costs of First Amendment agnosticism—in a world where any regulation of speech affronts the informational rights of every listener, the State is powerless to distinguish between kinds of speakers or the quality of speech.

Weiland’s claim that First Amendment theory, properly oriented, should place primacy on listeners’ rights over the rights of speakers goes back to Justice White’s seminal line in 1967’s Red Lion that “it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount,” as well as to Jerome Barron’s work around the same time, which called for government interventions in the speech market because of its First Amendment-derived obligation to promote the public’s “adequate opportunity for discussion” of issues of public concern.1  Drawing upon the argument that expressive rights are functionally collective in nature, Weiland’s article makes an important contribution to First Amendment literature by detailing how far the modern Court has strayed from this baseline. Continue reading "The Libertarian First Amendment, the Shifting Apostrophe, and the One-Way Ratchet"

Putting the Bathroom Debate to Rest

Ruth Colker, Public Restrooms: Flipping the Default Rules, 78 Ohio St. L. J. (forthcoming, 2017), available at SSRN.

The site of toilets as a social justice struggle is at least as old as plumbing. Biological necessity and the unacceptability (and often criminalization) of public urination or defecation led to “restrooms” being made widely available. Public toilets– meaning any facility outside the home and including commercial, work, and educational places–are a necessity if one wants to travel, engage in business, be employed, or pursue an education. But while bodily requirements are almost universal, public toilets have been less democratic. At one time, many restroom facilities bore racially restrictive signs. Economic class divisions explicitly and implicitly sorted people. Access to toilets for people with disabilities has been uneven. And restrooms continue to be designated by gendered symbols announcing sex-segregated usage.

Professor Ruth Colker, an established authority in gender, sexuality, and disability law, intervenes in the current debate surrounding sex-segregated restrooms and suggests an elegantly simple solution. This solution sidesteps the convoluted machinations that have recently suffused the problem. Continue reading "Putting the Bathroom Debate to Rest"

Inspecting Big Data’s Warheads

“Welcome to the dark side of Big Data,” growls the last line of the first chapter of Cathy O’Neil’s recent book, Weapons of Math Destruction: How Big Data Increases Inequality and Threatens Democracy. As that sentence (and that subtitle) suggest, this is not a subtle book. O’Neil chronicles harms from the widespread use of machine learning and other big data systems in our society. O’Neil is convinced that something ominous and harmful is afoot, and she lays out a bill of particulars listing dozens of convincing examples.

This is a book that I like (lots) because we need outspoken and authoritative chroniclers of the downsides of big data decisionmaking. It advances a carefully articulated and well-supported argument, delivered with urgency and passion. For readers yearning for a balanced look at both the benefits and the costs of our increasingly automated society, however, keep searching. Continue reading "Inspecting Big Data’s Warheads"

Color Coded Criminal Procedure— Exploring How Law Enables Racism, Disparate Treatment, Violence

Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Cal. L. Rev. 125 (2017), available at SSRN.

Why is it so easy for police to kill Black people?

The answer to this question is urgent in light of ongoing police violence across the country. Virulent videos of Blacks subjected to police aggression have spread nationwide by phones, computers, TVs and tablets. These troubling, yet spectacular visuals, have pulled the covers back to allow mainstream America to see the dark and ruthless nature of law enforcement. Unarmed Blacks have senselessly died by strangling, tasing, and shooting in the back at the hands of police. Recently reported was an unarmed man shot despite his being on the ground with hands raised in surrender. Another was reportedly killed despite lawfully carrying a firearm. The ample proof of police wrongdoing raises alarming flags about the status quo, where police killing of Blacks is prevalent and successful prosecution of police is not. Continue reading "Color Coded Criminal Procedure— Exploring How Law Enables Racism, Disparate Treatment, Violence"

On Gender Disparity and Dialogue

Jennifer Mika, The Noteworthy Absence of Women Advocates at the United States Supreme Court, 25 Amer. U. J. of Gender, Soc. Pol’y & Law 1 (2017), available at SSRN.

Jennifer Mika’s essay examining the scarcity of women arguing before the Supreme Court is a valuable contribution to a growing literature tracking gender disparities at all stages of the legal profession. Research has examined disparities in the way men and women experience the law school classroom, interact with professors, obtain clerkships, make partner at private firms, enter academia, gain tenure, and leave the profession altogether. Mika has made several contributions to this area of research.

In her latest work, Mika’s findings are stark. She draws upon two original data sets: one including every attorney who argued before the Supreme Court during the 2015-2016 term; the other including every attorney who has argued more than once in any term since 2010. During the 2015-2016 term, of the 117 people who argued before the Supreme Court, only 20 were women, or 17%. And since 2010, only 15 of 80 advocates who argued more than one case before the Supreme Court, or 19%, were women. Continue reading "On Gender Disparity and Dialogue"

The Sticks in the Chinese Property Rights Bundle

Shitong Qiao, The Evolution of Chinese Property Law: Stick by Stick?, in Private Law in China and Taiwan: Legal and Economic Analyses (Yun-chien Chang et al. eds., Cambridge University Press, forthcoming 2017), available at SSRN.

There is ongoing disagreement among Western scholars as to whether property rights are in personam or in rem rights, and scholars’ views have evolved over time. Blackstone emphasized dominion and exclusion. Scholars in the twentieth century shifted the focus to the “bundle of rights.” More recently, some property law scholars have emphasized the view that property is a “law of things.”

As Shitong Qiao, a law professor at the University of Hong Kong, observes in a recent book chapter, most of these scholars adopt a Western perspective. Consequently, these scholars have overlooked the relevance of this discussion to the evolution of property law in developing countries, including China. Continue reading "The Sticks in the Chinese Property Rights Bundle"

Plus ça Change

Camden Hutchison, Progressive Era Conception of the Corporation and the Failure of the Federal Chartering MovementColum. Bus. L. Rev (forthcoming, 2017), available at SSRN.

Good history, including good legal history, sheds light on our own times. Well-written history, peopled with recognizable figures and marked by a strong narrative arc, also makes for good reading. In a new article, Camden Hutchison brings a precise historical eye and an engaging storytelling style to the understudied area of corporate legal history. His topic is Progressive Era corporate law reform, and particularly the question of why the United States failed to develop a federal corporate law regime in that period (and, of course, since).

Hutchison investigates how it could be that “in an era marked by ambitious efforts to reform the national economy, the [federal] chartering movement would distinguish itself, both in the breadth of its political appeal and the decisiveness of its failure”. His conclusions are illuminating and relevant. Once again, in the current era of populist discontent and economic inequality, we find ourselves confronting fundamental questions about the corporate form, the relationship between private wealth and the public interest, and about what a “progressive” corporate law regime might actually seek to accomplish. Continue reading "Plus ça Change"

Gaps and Shadows in the Common Law

Mark P. Gergen, Privity’s Shadow: Exculpatory Terms in Extended Forms of Private Ordering, 43 Fla. St. U. L. Rev. 1 (2015).

It’s hard to think of anyone who analyzes the interstices of the common law better than Mark Gergen, an expert in an almost improbable number of legal fields. By interstices, I mean the spaces that don’t fall neatly into single subjects like contract, tort, or property—for example, the economic torts and the interface between contract and restitution. In Privity’s Shadow: Exculpatory Terms in Extended Forms of Private Ordering, Professor Gergen brings his knowledge of the boundaries of these subjects to bear on a specific recurring pattern of problems: whether exculpatory terms in a contract should prevent a negligence action by a victim who wasn’t a party to the contract.

So, for example, if the standard form contract between FedEx and its customers purports to limit FedEx’s liability to $100, does that term prevent full recovery by a child physically injured when FedEx negligently fails to deliver the child’s hospital’s shipment of the child’s blood samples? 1 Even this relatively straightforward example shows the potential complexity of the problems in this area. Continue reading "Gaps and Shadows in the Common Law"

Russia’s Lawyers: Russia and the US Through the Lens of the Legal Profession

Kathryn Hendley, Evaluating the Prospects for Young Lawyers to Remake Putin’s Russia, 1 Russian Politics 450 (2016).

The news about Russia’s interference in the U.S. election raises myriad questions for lawyers, including for students of the legal profession. For example, are Russia’s lawyers being trained in ways that position them to be complicit in President Putin’s increasing autocracy? Or is their education preparing them to challenge his control? Have they served as enabler or challenger in the past? Is there any reason to expect them to take a more activist role today? And generally, what explains the differences among nations in the ways lawyers pursue or forego action aimed at constraining governmental overreach and corruption?

These questions are among the topics explored by Kathryn Hendley in her work on the Russian legal profession and legal system. Hendley’s newest article, Evaluating the Prospects for Young Lawyers to Remake Putin’s Russia, considers whether a group of recent law graduates “might be willing to take on the regime in defense of civil society.” (P. 452.) Her focus on lawyers arises from the recognition that “[l]aw has played a critical role in this strangulation of civil society” in Russia, on one hand, and that “[i]n some other authoritarian polities, lawyers have taken the lead in holding authorities to account, often paying a heavy personal price for doing so.” (P.451.) Their use of law’s mechanisms to pursue justice “act as signals … [that] may evince a nascent civil society ….” (P. 451.) Continue reading "Russia’s Lawyers: Russia and the US Through the Lens of the Legal Profession"