Feb 21, 2013

“Cowboy up. I’m fixin’ to ride, and Jesus is my vehicle.”

The final words spoken by Carl Blue, before he was executed tonight in Huntsville, Texas. In 1994, he doused his girlfriend with gasoline and set her on fire (he purchased 50 cents worth of gasoline and poured it in a Big Fulp cup).

In his final statement, Blue greeted his victim’s daughter, Terrella Richards, as she entered the death chamber viewing area by telling her he loved her.

“I never meant to hurt your mama,” Blue said while strapped to a gurney. “If I could change that, I would. … I hope you can forgive me.”

He then told his parents, watching from an adjacent room, that he loved them and acknowledged he had done something wrong. He said he was “paying the ultimate justice. … It may be crooked justice but I forgive those people.”

He later added: “Cowboy up. I’m fixin’ to ride, and Jesus is my vehicle.”

Blue took about a dozen breaths as the lethal drug began taking effect. He said he could “feel it,” then slipped into unconsciousness before being pronounced dead at 6:56 p.m.

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Feb 21, 2013

Barnett on The New Deal Settlement, the New Federalism, and the Constitutional Gestalt After NFIB

Randy Barnett, the intellectual godfather of the challenge to the Affordable Care Act, has uploaded his forthcoming Dunwody Distinguished Lecture, titled “Who Won the Obamacare Case (and Why Did so Many Law Professors Miss the Boat)?” Randy and I have discussed some of the themes in this article at length earlier. Any student of the case should read this piece in its entirety.

The most interesting section is the last part, which considers the state of the New Deal settlement following NFIB.

I believe most law professors missed the boat in this case because they have never properly understood the New Federalism of the Rehnquist Court. They all share what my Georgetown colleague Larry Solum has called the same “constitutional gestalt” about the meaning of the so-called New Deal settlement.40 To oversimplify, they think the New Deal and Warren Court’s rulings established that the Commerce and Necessary and Proper Clauses give Congress a power to regulate the national economy at its discretion, subject only the express prohibitions in the Constitution and perhaps some selected unenumerated rights.

But law professors have missed the possibility of an alternate interpretation of the New Deal Settlement that comprises a third constitutional gestalt – the gestalt that informed our whole litigation strategy. It is this: For better or worse, all the powers that were approved by the New Deal and Warren Courts are now to be taken as constitutional. But any claim of additional new powers still needs to be justified. Put another way, the expansion of congressional power authorized by the New Deal and Warren Courts established a new high water mark of constitutional power. Going any higher than this requires special justification.

This gestalt can be summarized as “this far and no farther” – provided “no farther” is not taken as an absolute but merely as establishing a baseline beyond which serious justification is needed.45 As Chief Justice Rehnquist observed in Morrison, “thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where the activity is economic in nature.”46 This is why the general acceptance of our claim that the individual insurance mandate was “unprecedented” was so crucial to the unexpected legal success we enjoyed. Accepting our claim that the mandate was unprecedented placed the burden of justification on the government.

Which brings me to a second tenet of the constitutional gestalt of the New Federalism: Any purported justification that would lead to an unlimited reading of Congress’s Article I, Section 8 powers would improperly contradict what Chief Justice Rehnquist called the “first principles” of our constitutional law.47 This is why the claim that “health care is a national problem” and other similar rationales offered by the government and by many law professors fell on five deaf ears. All these rationales, if accepted, would lead to a national police power qualified only by the Bill of Rights (as are state police powers). And this was contrary to the constitutional gestalt of the Rehnquist Court’s New Federalism.48

Barnett concludes by noting the relationship between “this far and no further” and originalism’s gravitational pull (an idea that Barnett shared with me in November).

Assuming you accept this description of the Rehnquist Court’s constitutional gestalt, however, you may well object: Why this far and no farther? Why draw the line at this point? Isn’t this arbitrary? Besides, where is all this in the Constitution? Here is where the growth of originalism since the 1980s enters the picture. Unlike the Heller case which was argued and decided on originalist grounds,49 in our challenge to the ACA we made no originalist claims whatsoever. But the original meaning of the Constitution still played a role because it lies behind the Rehnquist Court’s New Federalism exerting a gravitational force that we can seenow extends to the Roberts Court too. By “gravitational force,” I am not making a Dworkinian claim about the analytic force or pull of legal reasoning, but instead making a socio-cultural claim about the influence of originalist interpretation on even nonoriginalist doctrinal construction.50 But the ideas are similar.

In Back to the Future of Originalism, I explain Barnett’s theory of  “this far and no farther” based on his talk at the 2012 Federalist Society Convention, and elaborate on the relationship between The New Deal Settlement and Originalism. Heller, as well as McDonald, could be argued primarily on originalist grounds because the court was working on a precedential blank slate, whereas in Federalism Cases, the New Deal settlement precedents are ensconced. There is no room for originalist arguments.

Perhaps the best examples in the first category are District of Columbia v. Heller and McDonald v. Chicago. In these cases, the Court was largely writing on a blank slate—precedential open fields, as opposed to deep in the thicket. The Court was in no way bound by any sort of New Deal compromise, as the precedential slate was clear. Thus, the Court was free to receive, and did apply originalist arguments. In fact, both the majority and dissent in Heller and McDonald advanced originalist arguments.

For decades, until Lopez and Morrison and other Rehnquist-era precedents, the Supreme Court was steadfastly locked in the second zone of the New Deal vision of Federalism. To paraphrase Larry Solum, that gestalt had crystalized. However, originalism’s gravitational pull would crack that chrysalis.

The tug of originalism, ever so slight, has been the force that has helped to break federalism free from its New Deal-imposed chrysalis.

Originalist scholarship began to emerge in the 1970s and 1980s that showed that the Court had departed from the original understanding of the Constitution in the New Deal cases, particularly with respect to federalism and structural protections of individual liberty. This scholarship exerted a pull on the Court’s jurisprudence, ever so subtle at first, but soon enough that the law, like a star being attracted to a planet, began to wobble.

Progressives observed this wobble, worried, and hoped that the Constitution would remain in the sole-orbit of the New Deal. Cases like New York v. United States, United States v. Lopez, Printz v. United States, United States v. Morrison, Seminole Tribe v. Florida and others are collectively dubbed part of the “New Federalism,” have proven otherwise.

Importantly, none of these cases were argued in terms of restoring the original meaning of the Constitution. The advocates did not need to. It was sufficient for the Justices to know that errors were made, those errors would not be fixed—in Justice Scalia’s words, they were “water over the dam.” However, with this understanding, Court should go no further from the Constitution’s original meaning without a sufficient justification from the government. In each case, the government failed to meet that burden, and the Court would go this far, but no further.

Further, the manner in which the government litigated the case strongly supports your theory that it went beyond the New Deal Settlement. Specifically, unlike Raich, the government could not simply cite Wickard. They tried to do this in the lower courts, and failed. Rather, the government assumed the burden of justifying why this extension from the New Deal settlement was constitutional.

Was this a case where the government was able to easily argue that the ACA was covered by the New Deal precedents like Wickard? Well they tried, but failed, as most judges, even those that ruled in favor of the government, acknowledged that this case was different, in at least one or more respects. Academics who stated that this was an open-and-shut case soon had to change their tune and refine their arguments when its failings were highlighted.

Instead, the government, tried to justify why this law was constitutional, beyond simply citing Wickard and Raich. They did this by focusing on the importance of regulating the costs of the health care market, and stressing how Congress had the power to address this national problem. In other words, the government’s behavior acknowledged that this law was going beyond what Congress had done before, and the United States was attempting to justify this departure.

This is the modus operandi for governmental litigation under the New Federalism: this far, but no farther, without a sufficient justification. As much as the government would hate to admit it, this case was not an open-and-shut case of simply applying existing precedents. The United States’ unwillingness to identify a limiting principle in terms of Lopez, Morrison, and Raich is evidence of that fact. The government’s decision to not rely on existing precedents was due to a fear that Lopez and Morrison proved “too capacious,” and “wouldn’t seem robust enough of a limiting principle under these circumstances.” In other words, the Court’s precedents did not resolve this matter, and the government assumed the burden of going further. NFIB fits squarely (roundly?) within the third ring of federalism.

NFIB’s implications extend far beyond the commerce clause, necessary and proper clause, and the taxing power.

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Feb 21, 2013

The Constitutionality of Mandating Firearm Insurance

The Times reports on a growing movement in some states to require gun owners to purchase some form of liability insurance.

Lawmakers in at least half a dozen states, including California, Connecticut, Maryland, Massachusetts, New York and Pennsylvania, have proposed legislation this year that would require gun owners to buy liability insurance — much as car owners are required to buy auto insurance. Doing so would give a financial incentive for safe behavior, they hope, as people with less dangerous weapons or safety locks could qualify for lower rates.

But what is the purpose of these policies? To actually insure against liability that may result from the gun, or make it more difficult to obtain a firearm? My guess is that such policies won’t do much to solve the problem of the former, but will be quite good at enabling the latter.

One representative from Massachusetts confirms my concerns.

“I believe that if we get the private sector and insurance companies involved in gun safety, we can help prevent a number of gun tragedies every year,” said David P. Linsky, a Democratic state representative in Massachusetts who wants to require gun owners to buy insurance, which he believes will encourage more responsible behavior and therefore reduce accidental shootings. “Insurance companies are very good at evaluating risk factors and setting their premiums appropriately.”

His focus is not on insuring against tragedies (which the policies won’t do). His focus is on making it more expensive. Higher premiums will deter people from owning firearms. In effect, if a policy is too expensive, a person who otherwise who legally has the right to own a firearm won’t be able to own a firearm

I have previously blogged about the implications of requiring firearm insurance.

First, I’m not sure what this liability insurance policy would even cover. The policies today seem to cover the costs of self-defense shootings, but no intentional shootings.

The United States Concealed Carry Association recently began selling what it calls “Self-Defense Shield.” “If you’re forced to justifiably use your gun in self-defense,” its Web sitesays, “Self-Defense SHIELD will help pay for your expert pro-2nd Amendment lawyer by reimbursing your legal-defense expenses following your acquittal − an ingenious system critical to the arsenal of any responsibly armed citizen.”

Premiums for such insurance range from around $200 to $300 per year; in general, the coverage is narrowly written and excludes cases where a gun is used to commit a crime.

Any policy that covers intentional shootings would create strong moral hazards.

The insurance industry is wary of some of the proposals to require gun owners to buy liability coverage — and particularly of bills, like one that was filed in New York, that would require coverage for damages resulting not only from negligence but also from “willful acts.”

Robert P. Hartwig, the president of the Insurance Information Institute, said that insurance generally covered accidents and unintentional acts — not intentional or illegal ones. “Insurance will cover you if your home burns down in an electrical fire, but it will not cover you if you burn down your own house, and you cannot insure yourself for arson,” he said.

Christopher J. Monge, an insurance agent and gun owner in Verona, Wis., recently wrote a book, “The Gun Owner’s Guide to Insurance for Concealed Carry and Self-Defense,” which he sells at gun shows. Mr. Monge said that the problem with most liability insurance is that it promises coverage only in cases of a gun owner’s negligence, or an accidental shooting — and not if the gun owner shoots someone intentionally in self-defense. “A negligent act is covered by your liability policy, but if you intentionally shoot somebody, it could be excluded,” he said.

In other words, the policies would not cover the mass shootings, like Newtown or Aurora.

In any event, if a person is intent on killing someone else with a gun, an insurance policy would not serve as any deterrent.

Relatedly, would it cover the harm if someone steals your gun, such as in the Newtown shooting?

But I think the most important question is whether a private insurance company could price a person out of the exercise of a constitutional right. How would these premiums be set?

Could the insurance companies consider factors such as credit history and indebtedness (factors I’m sure that an actuarial would be interested in). If so, poor people would be priced out of owning a gun.

Could the insurance companies consider the crime-rate of the neighborhood where a person lives–charging higher rates for living in high crime areas? If so, people (again likely those poor) who live in the most dangerous areas, and have the most need for a legally acquired firearm, would be priced out of owning one.

Could an insurance company place limitations on how you can use your gun? For example, you must keep it at home, disassembled, and locked up in a safe. In other words, before issuing a policy, the homeowner must promise to keep the firearm inoperative (this was the restriction at issue in D.C. v. Heller). Or, what if an insurance company says ou cannot carry it outside the home?

All of these questions raise an important issue. If the exercise of a constitutional right is premised on obtaining an insurance policy, and an insurance company can limit that right (either through charging an outrageous premium, or denying the policy outright), what recourse does a would-be firearm owner have? I think there are serious constitutional implications here.

With insurance regulations, the state can restrict the right to bear arms through the back door. Or, perhaps more indirectly, the insurance company can severely limit how a person can exercise the right.

Generally, progressives are very distrustful of private insurance companies. Indeed, a key aspect of the Affordable Care Act was prohibiting insurance companies from denying policies, based on pre-existing conditions (guaranteed issue), and charging different rates to people in the same area (community rating). I quipped before that perhaps a firearm insurance mandate would be one way to solve this collective action problem.

My former professor, Nelson Lund, seems to have proposed a form of firearm insurance policy back in 1987.

The current debate over mandatory liability laws is being watched with interest by Nelson Lund, the Patrick Henry Professor of Constitutional Law and the Second Amendment at George Mason University School of Law. Mr. Lund proposed the idea of mandatory insurance in a 1987 article in the Alabama Law Review , seeing it as a form of gun control that could be consistent with the constitutional right to bear arms. But Mr. Lund said that he had not studied any of the current proposals, and noted that it made a great deal of difference how they are written.

“If this were done, the private insurance market would quickly and efficiently make it prohibitively expensive for people with a record of irresponsible ownership of guns to possess them legally,” he wrote in the 1987 article, “but would not impose unreasonable burdens on those who have the self-discipline to exercise their liberty in a responsible fashion.”

Nelson’s article, written two decades before the Court’s Second Amendment jurisprudence, may be a bit outdated. A constitutional right should not be subject to the same regulatory interests of other insurance matters.

I wonder where these proposals will go. The insurance lobby will love it. As we saw with the Affordable Care Act, the lobby loves laws that force people to buy insurance.

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Feb 21, 2013

Chief Justice Roberts Chilling With The Press

chief-pressArt Lien sketches out the situation.

Chief Justice Roberts stopped by the press room Tuesday morning to welcome back reporters. He said the Court would be announcing quite a few opinions, so be prepared to work through lunch.

I’m pretty sure the guy with the red tie is Adam Liptak. The guy behind Adam is Tony Mauro maybe?


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Feb 21, 2013

Public Choice Track Changes

Wouldn’t it be cool to measure the influence of rent-seekers by comparing proposed regulations as drafted by lobbyists, and the actual regulation imposed by the government? With a cool tool called LobbyPlag (great name), you can. For now, the tool is limited to European Union laws, but I’d imagine this would be viable in the U.S. Here is one comparison:


How I’d love to run this on the Affordable Care Act…

H/T Legal Informatics Blog

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Feb 21, 2013

Tweeting From The Podium

RRXTWEET18-CThe Philadelphia Inquirer reports about a Temple University instructor who engages his students with Twitter during class.

Jordan Shapiro’s class last week delved into a weighty discussion of Plato’s allegory of the cave and shifting perceptions of reality. Front and center on the classroom wall behind him flashed a constantly shifting series of posts on Twitter, all under the class hashtag of #Mosaic1. With her Nook and phone at hand, sophomore Kaylyn Christian, 20, tweeted: “Are you really happy if you live a successful life in the shadows?” Shapiro’s Temple University classroom is definitely not the norm in academia, but it could be a harbinger of the future. While many professors at Temple and beyond ban tweeting and texting in class, Shapiro, a full-time instructor who started last year, encourages it. Even more so – he counts it as classroom participation. He often tweets back. “Please tweet. Please do it,” Shapiro, 35, tells students at the start of the semester. Christian, a psychology major from Princeton, is happy to comply. “I always like to look up at the screen,” she said, “and see what others are saying, too.”

In Forbes, Shapiro writes:

As I prepare my syllabi for the upcoming semester, I take a different approach. I encourage tweeting in my classes. I offer hashtags that correspond to the name of the course at the beginning of the semester (#mosaic1 & #mosaic2). Students are asked to tweet their thoughts and reactions both during class and while doing readings at home.  I see it like a modern day version of the reading journals that my professors always assigned.

I sometimes use the smart classroom technology to project the class related tweet stream onto the screen behind me during session.  This is pretty exciting when it works well. Like every tech industry conference I’ve ever attended, two levels of dialogue are going on at once. Imagine: students are not just engaged with the material, they’re engaged twice. I’m facilitating a live conversation and they are facilitating the tweet stream.

I have been using a live-chat in class now for some time (here are some of my early posts). I do not use Twitter, as I do not require students to sign up. Rather, I use a program called Today’s Meet, which allows me to create quick, easy, anonymous chats. Students are able to ask questions, send me links to relevant articles, tell me when I’m wrong anonymously (it happens!), and even injet some humor into the discussion (something I appreciate).  Students are already on their computers, chatting away. How many professors wish they knew what was going on in their student’s minds (in class, at least)? With the live-chat, I can see what they are thinking, and become a better teacher for it.

life-estate-chatFor example, here are some of the tweets from when I covered life estates the other day.

When a question is posted online, I see it on my screen, and decide when and how I want to address it. But it allows me to better control the pacing of the class.

I also allow students to provide feedback to me, anonymously, at various points throughout the semester so I know how I am doing. This is a quick and easy way to make improvements on the fly.

This is not easy. It requires me to juggle a lot of balls at once. First, I have to teach the class. Second, I have to type up the notes in real-time (something I do using Google docs). Third, I have to keep the students engaged. I do not do Socratic. Rather, I go up and down each row and ask everyone one question. I can call on about 80-90 people per class, so everyone is called on every day. Sometimes twice. Fourth, I monitor the livechat to see if there is anything else to bring up.

You can view the home pages for my Property 1 class here, and my Property 2 class here.




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Feb 21, 2013

Prop1 Class 12 – Future Interests I

The lectures notes are here. The live chat is here.

Example 1. 0 conveys Blackacre “toA for life.” 0 has a reversion in fee simple that is certain to become possessory. At A’s death, either 0 or O’s successors in interest will be entitled to possession


Example 2. 0 conveys Whiteacre “to A for life, then to B and her heirs if B survives A. O has a reversion in fee simple that is not certain to become possessory. If B dies before A, O will be entitled to possession at A’s death. On the other hand, if A dies before B, O’s reversion is divested on A’s death and will never become possessory.


O conveys Blackacre “to Hartford School Board so long as used for school purposes.”


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Feb 21, 2013

Prop2 Class 12 – Easements II

The lectures notes are here. The live chat is here.

Othen v. Roster was authored by Justice Brewster of the Texas Supreme Court.


Here a map of the property at issue in Othen, courtesy of the Dukeminier web site.




Here is a map of the Atlantis Beach Club from the New Jersey Supreme Court case, and a contemporary article from the New York Times. Also, here is a listing of the current fees to use the beach (assuming you can find it).


View Larger Map


You can also learn about a recent Texas Supreme Court opinion, Severance v. Patterson, concerning easements on the beach of the Gulf Coast here and here.

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