Oct 24, 2014

The Economics Of Holding Connecting Flights After Delays

Today, on my way back from a talk in Sacramento, I had to schedule my flight back through Phoenix because there were no direct flights. My flight was scheduled to leave Sacramento at 4:15, with an estimated arrival time of 6:02. My connecting flight was to leave Phoenix for Houston at 6:50. That gave me a solid 45 minutes to make the connection. Not the best route, but it was my only way of getting home Friday. I’ve made tighter connections.

We pulled from the gate at 4:20. After 10 minutes of not moving, I realized something was up. Ten minutes later, the Captain made an announcement how there was some sort of navigation computer problem and they had to shut down the plane and turn it back on. (I’ve found the reboot method to be a common approach to troubleshooting both planes and PCs running Windows 95). Thirty minutes later, the Captain announced that the reboot worked, and it would take a few minutes to cycle through all the systems. Then we taxied, and because we missed our initial slot, we didn’t take off till 5:00. The flight to Phoenix was about 1:40. My estimated time of arrival was 6:40, giving me 10 minutes to make the flight. The inflight WiFi reminded me of that fact as the circled the airport twice for reasons that infuriate me.

We landed, and I ran as fast as I could. I made it to the gate about 1 minute too late. Yes, the door closed about 60 seconds after I got there. I knew once the door was closed, that was it (this has happened to me before). The gate agent said they couldn’t wait any longer. As a result of not waiting another 120 seconds, U.S. Airways had to pay for a hotel for me (Embassy Suites), and rebook me on the next flight. I’m sure others on my flight got the same deal.

Now, I have a question that I don’t know the answer to. What are the economics for holding connecting flights after a delay. U.S. Airways knew my flight was delayed. There were many other people on their way to Houston who were on the same flight. We were all going to be there within 5 minutes of the scheduled departure time. Why wouldn’t they just wait a few more minutes? This flight was not scheduled to land in Houston until after 11:00 p.m., and there were no other flights outbound that night. Even after they closed the door, the plane remained at the gate for another 15 minutes (taunting me).

If they know an inbound flight was delayed, why can’t they wait a few minutes at the gate?

In any event, due to this delay, this week I will have woken up in 4 different time zones. Eventually I’ll get home.

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Oct 24, 2014

Is Gridlock Worse Today Than It Was In The 1990s?

Is it the case that gridlock is worse today than during the Clinton years? The Times has a feature that shows how partisanship has increased over the last 20 years.

Congressional Republicans, of course, have also refused to reach across the aisle and work with Mr. Obama the way they did in Mr. Lott’s era. The current Congress is on track to become one of the least legislatively productive in recent history. That is partly because Mr. Obama faces a far more polarized electorate than Mr. Clinton did.

Over the past 20 years, the number of Americans who hold extreme conservative or liberal views has doubled from 10 percent in 1994 to 21 percent in 2014, according to the Pew Research Center. And the middle ground has shrunk, with 39 percent of Americans taking a roughly equal number of liberal and conservative positions, compared with 49 percent in 1994.

The tails are getting fatter, and the middle is getting smaller. There is less room of compromise.

Another factoid to add to this increasing political polarization are numbers concerning “partyism.” As Cass Sunstein explained, today more people would be adverse to their child dating someone of a different political party than of a different.

Researchers have long asked such questions about race, and have found that along important dimensions, racial prejudice is decreasing. At the same time, party prejudice in the U.S. has jumped, infecting not only politics but also decisions about dating, marriage and hiring. By some measures, “partyism” now exceeds racial prejudice — which helps explain the intensity of some midterm election campaigns.

In 1960, 5 percent of Republicans and 4 percent of Democrats said that they would feel “displeased” if their son or daughter married outside their political party. By 2010, those numbers had reached 49 percent and 33 percent. Republicans have been found to like Democrats less than they like people on welfare or gays and lesbians. Democrats dislike Republicans more than they dislike big business.

While I applaud how far we have come on racism, I lament partyism. We live in an increasingly polarized world, and Congress is a manifestation of that.

When partisanship increases, it is no surprise that the members sent to Congress are more polarized, and there is less middle ground for compromise. This is one aspect of gridlock that people are often unfamiliar with–gridlock reflects the populace. If the people don’t agree on how to tackle big problems, then it is totally unsurprising when Congress also cannot agree.


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Oct 24, 2014

FantasySCOTUS and {Marshall}+ Featured in the Washington Post

Robert Barnes has published a piece in the Washington Post about fun ways to follow the Supreme Court. We are extremely excited about his extensive coverage of FantasySCOTUS, LexPredict, and {Marshall}+.

Here are the highlights:

And while a justice’s decisions are drawn from years of legal experience, ideology, constitutional interpretation and a keen attention to facts, Josh Blackman thinks even high school students can predict the outcome. HisSupreme Court fantasy leagues let thousands of enthusiasts play along.

Blackman, a professor at the South Texas College of Law, started his Scotus prediction site website because “I thought it would be a fun game for Supreme Court nerds.” But he was surprised at how many there were.

FantasyScotus has grown to have dozens of leagues such as “Big Dicta” and “You Can’t Handle the Ruth”–another tribute to Ginsburg, it appears–and players can compete for a $10,000 prize.

Blackman also subscribes to the theory that “the more we can understand the court, the better off we all are.” He started the fantasy league predicting Supreme Court outcomes in 2009, not really knowing who would sign up.

He estimates that 25,000 players have participated since then. Through The Harlan Institute, Blackman has created lesson plans for teachers and a prediction contest for high school students.

And this year at FantasySCOTUS, Thomson-Reuters is offering cash prizes for the player with the most accurate predictions.

Blackman will be among those playing, to some extent. Along with fellow law professors Dan Katz and Michael J. Bommarito of Michigan State University, Blackman developed a head-spinningly complex machine-learning algorithm that they say can predict Supreme Court cases at 70% accuracy.

The professors call their algorithm {Marshall}+, after Chief Justice John Marshall. Blackman is now recruiting a team of Supreme Court experts to compete against. It would be like that time the computer Watson took on the humans in Jeopardy!

But Blackman thinks the contest will be more like spring training, where he discovers in what kinds of cases {Marshall}+ excells, and those in which he (it?) falters.

For this term, at least, he expects the humans to win.

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Oct 24, 2014

VP Biden’s Aides Were “Miffed” After Sotomayor Rescheduled His Inaugural Oath

Back in January of 2013, I blogged how Justice Sotomayor rescheduled Vice President Biden’s inaugural oath so she could attend a book signing in New York. I thought this was inappropriate, and offensive. The VP shrugged it off, but we learn in Joan Biskupic’s book that the VP’s staff was “miffed”:

After the reelection victory, Vice President Biden asked Justice Sotomayor to administer the oath of office for the January 20, 2013, inaugural. She agreed, but imposed a condition. She needed the event moved up four hours earlier than the traditional noon ceremony. Sotomayor had committed to a book signing in Manhattan that afternoon and wanted to make sure she got to it. Biden’s aides were miffed. The Los Angeles Times, the first to report that Biden would not be sworn in with Obama, cheekily observed that Sotomayor would not reveal her plans, that she simply “had somewhere else to be.” Court officials would not confirm that Sotomayor’s schedule was dictated by the book event posted on the Barnes & Noble website. 14 A writer on the legal blog Above the Law remarked, “What was more important to Justice Sonia Sotomayor than swearing in Joe Biden as VP at noon on Sunday? Signing books at Barnes & Noble in New York City. Not so wise Latina.” 15 But Sotomayor’s move passed with little public interest or real press scrutiny. Even Vice President Biden accepted the situation matter-of-factly, telling his 120 guests as she rushed off on the morning of the inauguration, “I wanted to explain to you what a wonderful honor it was and how much out of her way the justice had to go. She is due in New York … We are going to walk out , you see her car’s waiting so she can catch a train I hope I haven’t caused her to miss.”

I’m glad Biden was a good sport about it.


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Oct 24, 2014

Video Talk at U.C. Davis Federalist Society Chapter – Gridlock and Executive Power

On Thursday, I gave a talk at the U.C. Davis Federalist Society Chapter about Gridlock and Executive Power. My good friend Jack Chin provided some thoughtful comments about the scope of executive discretion. For example, I was not aware that it is a federal offense to use the word “federal” in any business name–FedEx beware! In-and-out burgers were served. All enjoyed it! Here is the video.





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Oct 24, 2014

Romer in Reverse? Laws That Protect People From LGBT Discrimination Claims

In Romer v. Evans, the Court invalidated a Colorado constitutional amendment that prevented localities from providing certain protections to gay people. Justice Kennedy found that this law singled out a class of people, and heaped a special disability onto them. This violated the Equal Protection clause.

In the wake of recent decisions invalidating bans on same-sex marriage, we may see Romer, in reverse. Utah is considering a state constitutional amendment that prevents churches from being forced to perform same-sex marriages. Sen. Jim Dabakis, a gay and married state senator from Salt Lake City (did anyone think that position could have existed only a few years ago?) supports that law, warned that he would oppose any laws that singled out LGBT people as a special class.

But Dabakis has warned that he and others would fight expansion of such legislation to include allowing wedding photographers, wedding cake bakers, reception centers or other businesses to choose not to serve same-sex couples.

“I would have a problem if they start saying LGBT people are in a special class, and they can be discriminated against,” Dabakis said earlier this month.

Is’t this Romer in reverse? In Romer, a state constitutional amendment was passed that singled out gays as a class of people who could not receive certain protections under the law. As Justice Scalia’s dissent characterized it, the law ensured that everyone was being treated equally, but the majority rejected that understanding of the law.

Here, the situation is exactly the opposite. People would now be allowed to discriminate against LGBT customers. Gays would be singled out as a single class, by statute, as a group that cannot bring any claims for discrimination from certain businesses. Depending how these laws are framed, and the background behind them, I can see a Romer challenge lurking.

There is some irony that we’ve gone from Romer, which prevented cities from providing special protections to gays, to these proposed laws, which would deny gays the protections achieved as a result of same-sex marriage bans falling. It’s been a busy two decades!

I’m putting aside for the moment whether these businesses can be required to provide certain services in violation of First Amendment right against compelled speech, or state religious freedom restoration acts. The compelled speech issue–forcing people to officiate at weddings, bake a wedding cake,  photograph a wedding, etc.–is quite serious, and would trump any state statute. But state RFRAs would still be subject to a Romer claim as violative of equal protection as applied.

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Oct 23, 2014

Why did Larry Tribe become a ConLaw Professor?

In a series of video interviews with SCOTUSBlog, Harvard Law Professors offers these thoughts about why he chose constitutional law–with the presumption that he could have done anything else:

“People ask, ‘Why did you pick constitutional law?’  I mean, come on.  Who, with a real opportunity to dig into a subject of law would not want that to be constitutional law?  It has everything.  It has history.  It has moral philosophy.  The meaning of liberty, of equality, of dignity.  It has legal technicalities galore.  It has precedent.  It involves strategy, dealing with complicated human situations and the people who are affected by law, and the human dynamics of complicated institutions like the U.S. Supreme Court.”

A disproportionate share of aspiring law professors want to teach constitutional law, for many of the reasons Tribe suggests. A very small number of them will ever be able to claim one of the few ConLaw lecterns–among the most coveted.

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Oct 23, 2014

Comparing Justices Sotomayor and Kagan

One of the themes that Joan Biskupic developed in her new book, Breaking In, was how the more senior Justices perceived their newest colleagues–Justices Sotomayor and Kagan. While Biskupic goes out of her way not to do a direct comparison, at various points throughout the book, we gain insights into how the “colleagues” view them.

Kagan, is a “shrewd tactician.” Sotomayor is a “solo operator.”

Justice Kagan has become known as a shrewd tactician among her colleagues. She has been held up by White House officials as a model for Obama appointees to all federal courts— a judge who has the “potential to persuade” conservative colleagues. 16 Kagan’s pattern on the bench and in opinions indicates that she sees herself operating strategically as one of nine justices. Sotomayor, in contrast, is more of a solo operator, engrossed in her own determinations on a case, less interested and adept in getting others to adopt them.

The Justices also say her desire to shake things up “reflected the core of her character.”

 As surprising as her salsa dancing was at the first end-of-term party, some justices say it now seems to have reflected the core of her character. She shakes up the proceedings and confronts her colleagues in their private discussions of cases.

Nor was she “apt to influence colleagues.”

A substantive compromise eluded them, and it would not have fallen to Sotomayor to broker a deal. This was an area of the law she knew well, certainly . And she had strong views on racial and ethnic policy. But she had generally kept them quiet. And in terms of persuasive force, some judicial colleagues said later that although Sotomayor was clear in making her own opinions known, she was not apt to influence colleagues whose legal views differed from hers. The Second Circuit judges would not disclose all that went on behind the scenes. Speaking generally, Pooler described Sotomayor as a judge who steeped herself in the facts and the law of a case . She said she could sometimes hold tight to her position, wondering of colleagues, “Why can’t you see it?” Yet in these years as an appeals court judge, Sotomayor was cautious and not known for heated dissents or splitting off from her colleagues.

Kagan enamored her colleagues.

The tactics and style that the former Harvard Law School dean brought to the Court were not lost on more senior colleagues, particularly veteran justice Ginsburg, who considered Kagan a persuasive force who might blunt the majority’s move to the right. Even Kagan’s ideological opposite, Chief Justice Roberts, publicly lauded her oral argument style and fluid writing.

(I get the sense that RBG fawns over Elena, but not so much Sonia.)

And in contrast to Kagan, Sotomayor’s early performance in the Court surprised her colleagues.

In these early years, Sotomayor drew more than her share of grimaces from justices in the public courtroom. Sotomayor asserted that she usually had a plan in mind when she jumped into the questioning: “Something most people will learn about me, I get so intensely engaged in argument that it’s never fake,” she said in an early interview. “Every question I ask has a purpose, it has some importance to something that is troubling me or that I’m curious about.”

But some Justices thought her demeanor during oral arguments may be counterproductive.

Some colleagues said they believed her dominant presence on the bench and in conference was an attempt to challenge the doubters, to prove that she was prepared for cases. Others, however, said they believed her manner undercut her ability to work toward consensus.

Yet, this question was “complicated by the dimensions of ethnicity and class.”

 Overall, what did the other justices really think of her? It was a question that arose often among lawyers, journalists, and other close followers of the Court . The query naturally came up because of how Sotomayor stood out. Yet in these tradition- bound environs, where most justices shared backgrounds of privilege, it was a question complicated by the dimensions of ethnicity and class. And there was no single answer. It was clear through interviews with her colleagues that Sotomayor engendered appreciation for her life story and respect for her work ethic. The justices varied in their personal assessments, as is natural with any group: some found her warm, amiable; others found her abrupt and exasperating. At the human level, these differences with her were not small. In the larger scheme of the law, they were. The nine were appointed for life, and they had an incentive to get along. Any qualms expressed by colleagues about Sotomayor were minuscule compared with clashes among the nine in the great span of history.

I think there is a lot buried in this paragraph that Biskupic alludes to, but alas, we are left to speculate what the Justices really think about the penultimate Junior Justice.

Sotomayor resists any comparisons.

Justices Sotomayor and Kagan maneuvered differently among colleagues. Justice Sotomayor often operated autonomously, staking out a position and standing firm. She would not hesitate to write lone concurring opinions, differentiating her views from those of the other liberals. Justice Kagan saw herself more as one of nine in a collective process and during her early tenure never broke off to pen a solo concurrence. Sotomayor resisted comparisons with other justices, saying she considered them counterproductive. Speaking generally, she said that throughout her life she knew there would always be someone who would seem smarter, faster, and better. She said the comparisons she preferred were personal to her: “Am I learning? Am I getting better?” Some senior justices, too, rejected the inevitable comparisons between the two Obama appointees, both Princeton graduates and New Yorkers, noting that outside legal analysts were not equally quick to compare Roberts and Alito, George W. Bush appointees who joined the Court within months of each other.

Again, Biskupic alleges to the fact that Sotomayor and Kagan are compared in ways that Roberts and Alito are not, due to, I presume, complexities about ethnicity and class. I suppose, as Justice Sotomayor is fond of reminding us, race matters.

Read the book. There is a lot of important nuance throughout.

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Oct 22, 2014

Events at U.C. Davis and Sacramento Federalist Society

On Thursday at 12:00 p.m., I will be speaking at the U.C. Davis Federalist Society Chapter on the constitutionality of the President’s Executive Powers. My good friend Jack Chin will be providing comments. On Friday, I will be addressing the Sacramento Federalist Society chapter for a lunchtime talk at the same time. The lunch will be at Lucca Restaurant & Bar. I hope to see you there!

This week, I will have hit all domestic time zones: Eastern (Philadelphia), Central (Houston), Mountain (Layover at PHX), and Pacific (Sacramento).

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Oct 22, 2014

Audio: ISIS, Immigration, and Obamacare: The Constitutional of President Obama’s Executive Actions

On Monday, October 20 I spoke to my friends at the Philadelphia Federalist Society Chapter about the constitutionality of the President’s executive actions, with a focus on ISIS, Immigration, and Obamacare. The audio is here:

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Oct 22, 2014

NYC Will Not Honor Federal Immigration Unless Person Convicted of “Violent or Serious Crime”

A few weeks ago I blogged about a Times reports that NYC will stop honoring any requests from immigration authorities, unless it is accompanied by a warrant from a federal judge. And then, they may decline to honor the request if the suspect has not been convicted of a “violent or serious crime.”

New York City would stop honoring detention requests issued by United States immigration authorities without a warrant from a federal judge, according to a proposal announced by the City Council on Thursday.

The bill also stipulates that even with a judge’s warrant, the Police and Correction Departments may honor a request for a hold, known as a detainer, only if the subject has been convicted of a “violent or serious crime.”

I understand that courts have held that local governments are not bound by civil detainers, but I was troubled that the City may in fact ignore warrants that do not involved “violent or serious crimes.” I held off on a final judgment until I saw a copy of the proposed bill.

That bill is now available online, and here is the relevant text:

2. Paragraph one of this subdivision shall not apply under any of the following circumstances:
(i) A]
may only honor a civil immigration detainer by holding a person beyond the time when such person would otherwise be released from the department’s custody, in addition to such reasonable time as is necessary to conduct the search specified in subparagraph (ii) of this paragraph, or by notifying federal immigration authorities of such person’s release, if:
i. federal immigration authorities present the department with a judicial warrant for the detention of the person who is the subject of such civil immigration detainer at the time such civil immigration detainer is presented; and
ii. a search, conducted at or about the time when such person would otherwise be released from the department’s custody, of state and federal databases, or any similar or successor databases, accessed through the New York state division of criminal justice services e-JusticeNY computer application, or any similar or successor computer application maintained by the city of New York or state of New York, indicates, or the department has been informed by a court or any other governmental entity, that such person:
A. has been convicted of a [covered] violent or serious crime[;],
[B. is a defendant in a pending covered criminal case;
C. has an outstanding criminal warrant in the state of New York or another jurisdiction in the United States;
D. is identified as a known gang member in the database of the national crime information center or any similar or successor database maintained by the United States;] or
[E] B. is identified as a possible match in the terrorist screening database.  
[(ii) The search conducted pursuant to subparagraph i of this paragraph indicates, or the department has been informed by federal immigration authorities, that such person:
A. has an outstanding warrant of removal issued pursuant to 8 C.F.R. 241.2; or
B. is or has previously been subject to a final order of removal pursuant to 8 C.F.R. 1241.1.]
Serious or violent crime is defined:
2. “Convicted of a [covered] violent or serious crime” shall mean a [final] judgment [of guilt] pursuant to section 1.20(15) of the criminal procedure law entered on a [covered] violent or serious crime, [including a conditional discharge pursuant to section 410.10 of the criminal procedure law, or a comparable provision of federal law or the law of another state] or a conviction under federal law or the law of another state that would constitute a “predicate felony conviction” pursuant to section 70.06(1)(b)(i) of the penal law provided that such conviction was for the equivalent of a violent or serious crime.
If I am reading this right (and please correct me if I’m not), when the City of New York receives a federal warrant to turn over a person on immigration charges, the City will not turn over the person unless the City determines that he has committed a “violent or serious crime” defined under New York law, or a “comparable provision of federal law or the law of another state,” or bears some other indicia of dangerousness. This is exactly how the Times described the bill.

How is this valid? If a federal judge or magistrate finds probably cause, and issues a warrant, how can New York City add an additional requirement, and determine that it will not turn the person over if the person has not committed a “violent or serious crime.” A misdemeanor, or non-serious crime will not suffice.

The New York law seeks to disregard certain warrants they deem not serious enough. This is where the policy runs afoul.

I welcome other thoughts on this. Also, I’m sure the Department of Justice will rush to stop this law–which frustrates federal policy–the way it did with Arizona’s SB 1070.

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Oct 22, 2014

Audio of my Panel at Forbes #Under30Summit: “The Lost Vote”

Forbes Magazine invited me to speak on a panel at their inaugural 30 under 30 Summit in Philadelphia. The topic of the Panel was “The Lost Vote,” with a focus on how millenials view politics today. Moderating the panel was McKay Coppins of Buzzfeed. I spoke alongside Nate Levine (Founder, OpenGov)and Nathaniel Loewentheil (Policy Advisor, The White House National Economic Council).

Forbes has a writeup here:

With midterm elections just weeks away, the state of young voters and whether they will come to the polls remains a question. The reason for that may not be election, but the recent troubles in Washington and the rift that has caused with millennials.

“We are looking at a generation of voters who are very passionate about many issues, very plugged into the news, plugged into tech, know what’s going on in the world but are very uninterested in identifying with or participating in partisan politics,” said McKay Coppins, senior political writer at Buzzfeed.

Coppins moderated a panel with Assistant Professor of Law at the South Texas College of Law Josh Blackman, Founder of OpenGov Nate Levine and Policy Advisor for The White House National Economic Council Nathaniel Loewentheil.

The panel was part of the Forbes Under 30 Summit and discussed why voters don’t feel a major draw to a political party. Half of young Americans don’t subscribe to the Democratic or Republican party, the highest percentage the Pew Research Center has measured in the 25 years it has been tracking disaffiliation.


At the crux of the argument surrounding the lack of partisanship was trust and transparency. Winning back the trust of some Americans will be a major hurdle for any candidate running in the upcoming elections.

“What the last six years have taught us is that there is a serious lack of trust,” Blackman said. “Everything from wiretapping to Edward Snowden to drone strikes, all the things we thought were transparent, were not.”



I posted the audio here:

The primary point I tried to convey is that massive distrust in government is breeding libertarian sentiments. In the wake of the Snowden disclosures about NSA wiretapping, revelations that President Obama is using drone strikes to kill American Citizens, and the prosecution of reporters, there has been a paradigm shift. The very government that promised to be the most transparent administration in history is doing the precise opposite. McKay asked me if this means that Rand Paul is correct, and we are ushering in a libertarian moment. I don’t know if I’m willing to go that far, but I do think a lack of trust provides a fertile basis for libertarianism. I also explained that it is hard for any president to “resist the siren song of statism.” All Executives seem to steer into the shores.

One other area where Nate Lowentheil and I disagreed about was the role of technology to help income inequality. I cited Uber as an example of a disruptive technology that promotes economic mobility by dismantling occupational licensing. Now, people can pursue employment with Uber without having to jump through all the barriers to entry inherent with taxi cartels. I’ll let my friend Evan Baehr describe the exchange in tweet form:

And some more tweets.

photo 1

photo 2

photo 3

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Oct 22, 2014

Prop1 Class 18 – Martial Property II

The lecture notes are here, and the live chat is here.

What is the value of a law degree? According to a (controversial) article, titled The Economic Value of a Law Degree, the value of a law degree, as opposed to stopping with a bachelor’s degree is roughly $1 million over the course of the year:

After controlling for observable ability sorting, we find that a law degree is associated with a 60 percent median increase in monthly earnings and 50 percent increase in median hourly wages. The mean annual earnings premium of a law degree is approximately $53,300 in 2012 dollars. The law degree earnings premium is cyclical and recent years are within historical norms.

We estimate the mean pre-tax lifetime value of a law degree as approximately $1,000,000.

This chart depicts the value of a law degree over the course of a persons’ career.


This chart breaks down the lifetime earnings from a law degree by decade across percentiles (ranging from people the bottom to the top of law degree holders):


Here are the numbers broken down by gender:


This is the great diva Frederica von Stade.


Here is Stade singing at the 1991 Metropolitan Opera Gala

And more opera.

Justice Ginsburg, one of the most famous opera fans in the country, is a huge fan of von Stade, listing her work as among her favorite:

Mozart, “The Marriage of Figaro”; Samuel Ramey, Lucia Popp, Thomas Allen, Kiri Te Kanawa, Frederica von Stade, Kurt Moll, Robert Tear, Georg Solti conducting the London Philharmonic and London Opera Chorus (Decca).

The duo also share something else in common. They were both selected by the Georgia O’Keeffee Museum as Woman of Distinction: RBG and van Stade.

This is Edith Windsor, the face of United States v. Windsor.


The velocity of courts invalidating bans on same-sex marriage has been striking.

This forecast from fall of 2013 proved entirely inaccurate.



Here is an updated poll from March 2013.


By October of 2014, over 30 states now recognized same-sex marriage, and the rest have appeals pending. This number changes daily.


Texas Code 2.401 governs “common law” or “informal marriage”

Sec. 2.401.  PROOF OF INFORMAL MARRIAGE. (a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:

(1)  a declaration of their marriage has been signed as provided by this subchapter; or

(2)  the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

(b)  If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.

(c)  A person under 18 years of age may not:

(1)  be a party to an informal marriage; or

(2)  execute a declaration of informal marriage under Section 2.402.

(d)  A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable.

Also relevant for our discussion is 2.001 (emphasis added):

Sec. 2.001.  MARRIAGE LICENSE. (a) A man and a woman desiring to enter into a ceremonial marriage must obtain a marriage license from the county clerk of any county of this state.

(b)  A license may not be issued for the marriage of persons of the same sex.


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Oct 22, 2014

Prop2 Class 18 – Zoning III

Today we will continue our coverage of zoning, with a focus on aesthetics (a word I am incapable of spelling without spell check).

The lecture notes are here, and the live chat is here.

For the first case, State ex rel Stoyanoff v. Berkely, Ladue, MO is the wealthiest suburb of Missouri (anyone know what ex rel means?). The media income was $141,000. Check out the property values on Zillow–most houses are over $1 million. Ladue, also the site of the third case, City of Ladue v. Gileo, has particularly high property values in the Willow Hill subdivision.

This is a rendering of the Stoyanoff house:


For you Rand fans, the Stoyanoff case may remind you a bit of The Fountainhead.









Roark, the architect in the Fountainhead was inspired by Frank Lloyd Wright who designed Falling Water.

[Fallingwater: fall photo]


For the second case, Anderson v. Issaquah, you can learn more about Issaquah, Washington here. Here is a map of 145 N.W. Gilman Blvd, Issaquah, WA. It seems to be an Auto Tech store now.

View Larger Map

And  for an adverse possession flashback, check out this video. A homeowner in Detroit left her house vacant for a year and a squatter moved in. The squatter put a lien on the house, and now refuses to leave. The homeowner is in the process of filing the action to oust the squatter. But until that happens, under Michigan law, the homeowner can’t physically eject the squatter. So, they are both living under the same roof. Unbelievable.

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Oct 21, 2014

Breyer Invalidates San Francisco Law That Forces Landlords To Pay Tenants To Leave Property

Judge Charles Breyer that is, not his somewhat-more famous brother Justice Stephen Breyer. PLF has the story:

Today, U.S. District Court Judge Charles Breyer sided with Pacific Legal Foundation’s (PLF) lawsuit and struck down San Francisco’s Tenant Relocation Ordinance, as unconstitutional.

Under the ordinance, rental property owners who want to reclaim use of their own property must pay a massive sum to their tenants – a sum that the tenant doesn’t even have to use for relocation purposes.

PLF’s lead clients are Dan and Maria Levin, who live in the upstairs unit of their two-story home.   They would like to use the lower unit for friends and family, but they would have to pay their tenant $118,000 to withdraw it from the rental market.

Judge Breyer found an unconstitutional exaction:

The Court holds that the Ordinance effects an unconstitutional taking by conditioning property owners’ right to withdraw their property on a monetary exaction not sufficiently related to the impact of the withdrawal. See Nollan v. California Coastal Comm’n, 483 U.S. 825, 837 (1987); Dolan v. City of Tigard, 5 512 U.S. 374, 395 (1994); Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2599 (2013).

His brother dissented in Koontz, but was not yet on the Court for Nollan or Dolan.

In the event this case makes it to SCOTUS, Justice Breyer would recuse, as is his practice. Just what we need. Another 4-4 Takings case (after Stop the Beach and Justice Stevens’s recusal). Another case where Judge Reinhardt can set Supreme Court policy.

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Oct 21, 2014

Obama on Gridlock and the Courts

In Jeff Toobin’s interview with President Obama, we gained further insight into how the President views the relationship between gridlock and executive power.

Obama has stopped pretending that he has much respect for Congress. He had minimal tolerance for legislative horse-trading even when he was a legislator. Now, after six years of implacable Republican opposition to everything he has proposed, he sounds fed up.

“Because Congress is not working the way it’s supposed to, there’s both pressure on administrative agencies and pressure on the courts to sort through, interpret, and validate or not validate decisions that in a better-functioning democracy would be clearer and less ambiguous,” Obama said.

This explanation is keeping with the President’s view that gridlock provides a justification, or “safety valve” to use the Solicitor General’s explanation during Noel Canning, to engage in more robust executive power. See my article Gridlock and Executive Power for more details.

Yet, the President’s theory departs from reality, because he firmly believes that Congress voting “no” on something is not taking action.

He pointed out that the failure of Congress to pass legislation on climate change and immigration left his Administration with little guidance on how to proceed on those issues. When there is gridlock in Congress, “the executive branch has to make a whole series of decisions,” Obama said. “That, in turn, puts more burden on the Court to interpret whether the executive actions are within the authority of the President and whether they’re interpreting statutes properly. All of which I think further politicizes the courts.”

Congress voted no on the President’s immigration policy (albeit by one vote in the Senate). That is not a failure to provide guidance. They provided guidance. They said no. At which point the President can try something else. Instead, he worked around Congress with DACA, and whatever we will get after the election.

As to his argument that his executive actions politicizes the Courts, I think he needs to take stock of the fact that virtually every SCOTUS decision against him in this realm has been a 9-0 reversal, most recently Noel Canning. This is one of the rare areas where the President has united people who usually disagree–the 9 Justices of the Court!

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Oct 21, 2014

How Sonia Sotomayor Beat Diane Wood for Justice Souter’s Seat

Joan Biskupic’s great new book, Breaking In, provides some insights into how President Obama chose Sonia Sotomayor over Diane Wood for David Souter’s seat. At the beginning of the President’s term, the short list was three, with a serious Chicago focus–Diane Wood, Elena Kagan, and Sonia Sotomayor.

He was attracted to other candidates he knew from Chicago’s academic enclave of Hyde Park . His preliminary list, right after the 2008 election, was topped by three names: Diane Wood, a judge on the U.S. Court of Appeals for the Seventh Circuit who lectured at the University of Chicago; Cass Sunstein, a Harvard law professor who earlier had taught at the University of Chicago; and Elena Kagan , a former University of Chicago professor who had become dean of Harvard Law School. 8 Sotomayor’s inclusion on Obama’s expanded list arose from her education, experience , and connections, as well as the diversity she would offer.

Following the announcement of Souter’s retirement, the President was strongly leaning towards Diane Wood.

In the early weeks of the search, advisers said, Obama leaned toward Judge Wood, who had served on the Seventh Circuit since 1995.

Kagan seemed to be the runner-up.

She had no record as a jurist, so observers were not sure whether she had the liberal vigor of Wood. As a new U.S. solicitor general in the spring of 2009,

Sotomayor seemed to be in third place.

Sotomayor lacked the scholarly reputation of Kagan and Wood, but she had graduated from two of the most intellectually rigorous schools in the country. Sotomayor had a long, relatively uncontroversial judicial record; the Ricci decision stood out. She had served seven years as a trial judge and eleven years as an appellate judge. She did not have the direct personal link to the president that Wood and Kagan had, but she had other connections that proved helpful—her Second Circuit judicial colleagues, Manhattan district attorney Robert Morgenthau, and advocacy groups that had long been pushing for the first Hispanic justice.

Sotomayor’s selection raised a different interplay between diversity and qualifications:

The Hispanic Congressional Caucus, chaired by Democratic U.S. representative Nydia Velázquez, was persuading African Americans in Congress to throw their support behind Sotomayor. Velázquez, a Puerto Rican who grew up in the Bronx, lobbied for the promise that if a black candidate did not make Obama’s short list, the Congressional Black Caucus would back Sotomayor. For Obama, ethnicity cut both ways. He understood the value of diversity, but as the man who had not asserted his own racial identity in his campaign, he did not want to be seen as choosing someone simply because of her color and ethnic heritage. He wanted someone he could say had a superior intellect and judicial demeanor. Almost immediately, critics of Sotomayor were raising doubts.

But what sold Obama on Sotomayor, over Wood or Kagan, seems to have been the interview. Sotomayor nailed it.

When it was time for her meeting in the Oval Office, Sotomayor said she felt at ease and ready to represent herself to the utmost. She highlighted her regard for precedent and said she thought the way she challenged litigants on the bench was an effective way to probe a case. She said she could recall only one other interview during which she felt she was able to so effectively represent herself and her legal strengths— and that was with Moynihan, nearly two decades earlier, when the senator was interviewing potential district court candidates. A graduate of Columbia College and Harvard Law School himself, Obama was also impressed that she had the topflight credentials from Princeton and Yale, from Morgenthau’s office, and from her tenure as an appeals court judge on the Second Circuit. But it was her personal intensity and her continued connections to her community that really struck him. The Bronx Latina had not forgotten her roots. Knowing such struggles well, Obama admired how she had traversed worlds defined by race and ethnicity. He kept her in the Oval Office for an hour— a good sign, because Obama had a reputation for winding up conversations quickly if he felt they were not going anywhere. As they parted, Sotomayor told him that no matter what he decided, he had made her “the happiest person” simply by his consideration of her. 27 “Wow, she was great,” Obama told top aides.

Were it not for the interview, we very well may have had Justice Wood.

Some said later that if the interview had not gone so well, Obama might have chosen Diane Wood. Said Craig, “As far as I was concerned, watching him, it was between her and Diane Wood.”

FLOTUS also backed Sotomayor. Biden too.

Michelle Obama favored Sotomayor. The First Lady had attended Princeton University as an undergraduate and— almost a decade after Sotomayor— found refuge in the Third World Center. A lawyer, Michelle Obama believed Sotomayor was fully up to the job of a Supreme Court justice. 28 Vice President Biden interviewed Sotomayor by phone on Sunday , May 24. On Monday, Memorial Day, it all seemed settled. President Obama was ready to elevate Judge Sotomayor. But it took him several hours— nearly the whole day— to call her as he had planned. Some Obama advisers started to worry that he was having second thoughts. But it was his way to want to reflect on such a momentous choice.

Fascinating back-story.


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Oct 21, 2014

Solicitor General on Obamacare: Hurry Up and Wait

There is an odd asymmetry with respect to the Solicitor General’s position on Supreme Court review of Obamacare in 2011 and 2014. In 2011, you may recall, the 11th Circuit Court of Appeals invalidated the individual mandate. At the time, the 6th Circuit Court of Appeal had already upheld the law (remember that other significant Jeff Sutton case?). Decisions were still pending in the 4th and D.C. Circuits.

The S.G. had a choice. He could petition for rehearing en banc in the 11th Circuit. If the court took the case en banc, and vacated the opinion, the Circuit Split would disappear. Perhaps, the 11th Circuit would disagree with the panel decision. At which point (and we know in hindsight), all of the other courts of appeals would have upheld the law. Then, there was no reason for the Supreme Court ot even take the case.

The S.G., rather than trying to eliminate any circuit split, petitioned for certiorari, and brought this case to the Supreme Court right away. In its brief, the S.G. wrote that the Court must take the case right away–rather than let the lower courts handle it–and “put these challenges to rest.” What sense was there in waiting when such a significant piece of legislation was in legal doubt.

Now, three years later, the Solicitor General has taken a different position with respect to Obamacare. Much like in 2011, there was a Circuit Split. One Court of Appeals (the 4th) found that the IRS rule providing tax credits in states without exchanges was valid. Another Court of Appeals (the D.C. Circuit) found that the rule was invalid, and millions of dollars were illegally being spent. The S.G., faced with the option of again allowing the Supreme Court to “put these challenges to rest,” opposed certiorari, and asked the D.C. Circuit for rehearing en banc.

Why the difference? Well for one, as President Obama noted in the interview with Jeff Toobin, the D.C. Circuit is now stacked with a majority of judges appointed by Democratic Presidents, who, if Harry Reid is to be believed, will vote in favor of upholding the rule in Halbig. Because of this “realignment,” rehearing en banc was sought. But more fundamentally, the government is now content to allow this issue to linger on, even though millions of dollars in subsidies are potentially being spent in violation of the law. The hope is that by allowing people to rely on potentially illegal appropriations, it will be harder for a court to invalidate it. But, this very fact supports the Court getting involved sooner to prevent future illegal activity that generates irreparable harm.

The same sort of equities that favored the S.G. not seeking rehearing en banc from the 11th Circuit would counsel in favor of not seeking rehearing en banc in the D.C. Circuit. But this is not the route the S.G. chose.

Making this argument forcefully is the reply to the government’s brief in opposition to certiorari in King v. Burwell, the 4th Circuit case. The brief, filed by Jones Day, was signed my Mike Carvin, who was counsel of record for NFIB in NFIB v. Sebelius. As far as advocacy, this brief is superlative, and I encourage you to read it in its entirety.

I also want to draw attention to the lead associate who worked on the brief, my friend and colleague Yaakov Roth. While the WSJ saw fit to call it “Carvin’s ObamaCare Tour de Force,” Yaakov was instrumental in the formation of the arguments in response to the S.G.

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Oct 20, 2014

#SCOTUS Transcript Error: “Mr. Scalia” ?!?

There is a glaring error on p. 18 of the transcript in Kansas v. Nebraska. Rather than writing “Justice Scalia,” the Court Reporter wrote “Mr. Scalia.” And that mistake has been there for a full week! Earlier on the page, the Justice is accurately referred to as “Justice Scalia.”


H/T Jacob Berlove who notes that Chief Justice Rehnquist may not have been as forgiving for such an error.

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Oct 20, 2014

President Obama Does Not Want To Pull A Taft. Being A Justice Is Too “Monastic”

Towards the end of his interview with the President, Jeff Toobin asks whether he would like to repeat the role of President Taft and become Justice Obama.

As Marine One thundered overhead, about to land on the White House lawn and take Obama to a series of political fund-raisers, I asked him if, like William Howard Taft, he entertained thoughts of serving as a judge later in his career. “When I got out of law school, I chose not to clerk,” he said. “Partly because I was an older student, but partly because I don’t think I have the temperament to sit in a chamber and write opinions.” But he sounded tempted by the idea.

“I love the law, intellectually,” Obama went on. “I love nutting out these problems, wrestling with these arguments. I love teaching. I miss the classroom and engaging with students. But I think being a Justice is a little bit too monastic for me. Particularly after having spent six years and what will be eight years in this bubble, I think I need to get outside a little bit more.”

I have little faith in Justice Obama’s ability to interpret statutes and executive powers, based on some of the positions his administration has taken.

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