Feb 26, 2013

Justice Breyer is such a LawProf: Answer my hypo!

I have had this exchange with so many students after I pose a hypothetical. The correct answer is never “I don’t have all the facts.”

JUSTICE BREYER: Does he win or lose?

MR. READLER: He likely — he may well lose.

JUSTICE BREYER: What do you think?

MR. READLER: He may well lose at the Schlup stage.

JUSTICE BREYER: I didn’t ask that. I said what do you think.

MR. READLER: Well, I don’t have all the facts, I suspect he’s going to lose.

JUSTICE BREYER: Yes, you do. I made up the hypothetical. (Laughter.)


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Feb 26, 2013

Hayek on Unforeseen Consequences

This quotation from law, Legislation, and Liberty, seems so apt to describe the Affordable Care Act.

In fact, of course, the chief circumstance which will make certain measures seem unavoidable is usually the result of our past actions and of the opinions which are now held. Most of the ‘necessities’ of policy are of our own creation. I am myself now old enough to have been told more than once by my elders that certain consequences of their policy which I foresaw would never occur, and later, when they did appear, to have been told by younger men that these had been inevitable and quite independent of what in fact was done.

A primary driver of uncompensated care was EMTALA, which required emergency rooms to treat anyone who shows up, whether or not they have insurance. EMTALA offered no funding for this mandate, so it resulted in fee-shifting to those who did have insurance, causing health care costs to rise.

Anyone who understood how EMTALA would affect the market could have foreseen the likely consequences–namely, free-riding and cost-shifting.

So, to solve this “unforeseen” problem, the Affordable Care Act  imposed an individual mandate. Of course, this new policy will have countless foreseeable consequences (higher premiums, higher costs of care, increased bureaucracies  etc.). Supporters of the ACA kept repeating the mantra that these will never occur. I fully expect that some point in the future, supporters of the law will, as Hayek noted, cry that these consequences were “inevitable and quite independent of what in fact was done.”

And so the cycle repeats.

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Feb 26, 2013

New Jersey Opts Into Medicaid Expansion

Wonkblog has an interesting take, as more and more Republican Governors are sailing towards the call the of the ObamaCare siren.

The drafters of the Affordable Care Act never expected that the administration would need to convince governors to expand Medicaid; it was simply required of all 50 states. The Supreme Court changed that in its June ruling, making the provision optional. Looking back, what they did come up with has done surprisingly well at bringing some of the health law’s fiercest opponents on board.

Roberts’s compromise position allowed cooperative federalism to persist. States were not forced to join in, but had the choice. And with the choice, they made the decision on their own. Fascinating.

Texas, doing its best Odysseus impression, is still tied to the mast.


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Feb 26, 2013

Which 3rd Circuit Opinion Authored by Judge Alito Did Justice Breyer Reverse?

Oh, what case is this, from Trevino v. Thaler?

MR. OLDHAM: Well, Your Honor, I think you could do one of two things: You could always certify the question to the Court of Criminal Appeals if you thought that the question — that the answer turns on what the Texas procedures are and that the parties disagree with them.

JUSTICE BREYER: I tried that once in a case involving Pennsylvania and the result was such that I resolved never to do it again. (Laughter.) JUSTICE BREYER: But — but don’t say never. All right. So one thing we got -­

JUSTICE ALITO: That was a case in which -­ that was the case in which the Court unwisely reversed a certain Third Circuit decision. (Laughter.)

I don’t have time to check now. But I gather Judge Alito remembered.

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Feb 26, 2013

Alito: Don’t like secret wiretapping program? Take it up with Foreign Intelligence Surveillance Court! Oh wait.

Well, kinda. Alito suggests that the Foreign Intelligence Surveillance Court provides adequate “judicial review,” and the constitutionality of this program is not insulated from constitutional review.

Second, our holding today by no means insulates §1881a from judicial review. As described above, Congress created a comprehensive scheme in which the Foreign Intelligence Surveillance Court evaluates the Government’s certifications, targeting procedures, and minimization procedures—including assessing whether the targeting and minimization procedures comport with the Fourth Amendment. §§1881a(a), (c)(1), (i)(2), (i)(3). Any dissatisfaction that respondents may have about the Foreign Intelligence Surveillance Court’s rulings—or the congressional delineation of that court’s role—is irrelevant to our standing analysis.

Right. So how is Amnesty International supposed to file a complaint in FISC? That’s right, they can’t. It’s a secret. And, no appeal lies to the Supreme Court. I agree with the Court’s standing analysis, but I find this offering unsatisfying. This opinion does put certain programs beyond the reach of Article III Courts.

I can’t help but think of the constitutionality of drone strikes–which are not even subject to FISC. Some have suggested created a drone court. But for now, this decision lies entirely with the executive branch. There is no judicial review. In the leaked memos, the government has stressed that Due Process can be satisfied without judicial review.

I wonder if Alito would take a different position with respect to drone strikes, where no Article III judges are taking a peek.

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Feb 26, 2013

How much does Article III standing cost?

Well, after Clapper v. Amnesty International, it’s more than the price of a plane ticket.

If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear. As Judge Raggi accurately noted, under the Second Circuit panel’s reasoning, respondents could, “for the price of a plane ticket, . . . transform their standing burden from one requiring a showing of actual or imminent . . . interception to one requiring a showing that their subjective fear of such interception is not fanciful, irrational, or clearly unreasonable.” 6

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Feb 26, 2013

When is a tweet libelous in the UK?

From the BBC:

 A tweet is potentially libellous in England and Wales if it damages someone’s reputation “in the estimation of right thinking members of society”. It can do this by exposing them to “hatred, ridicule or contempt”. It is a civil offence so you won’t be jailed but you could end up with a large damages bill. The rules also apply to re-tweets.

The best defence is if you can prove the contents of the tweet are true.

You could also claim it was “fair comment” – your honestly held opinion on established facts. Another possible defence is to claim you were covered by privilege, if it was something said in Parliament or in court, or that it was an example of “innocent dissemination” – you did not know you had published the comment (it might have been an automatic system).

The only way to be completely safe is to avoid tweeting gossip unless you know for a fact that it is true.

I am so, so grateful for the First Amendment. Tweeters being held in contempt for posting pics of an accused murderers.

Yet, there may be progress afoot across the pond:

 Under the Defamation Bill, due to become law later this year, litigants in England and Wales will have to show that the words they are complaining about caused “substantial harm” rather than simply “harm” to their reputations.


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Feb 26, 2013

Alito on Greymail: If Case is Not Dismissed For Lack of Jurisdiction, Terrorist Knows He’s Being Watched

In Clapper v. Amnesty International, Justice Alito has an interesting discussion about how a court’s decision to dismiss, or not dismiss a case for lack of jurisdiction may tell a would-be terrorist if the government is monitoring him.

4 It was suggested at oral argument that the Government could help resolve the standing inquiry by disclosing to a court, perhaps through an in camera proceeding, (1) whether it is intercepting respondents’ communications and (2) what targeting or minimization procedures it is using. See Tr. of Oral Arg. 13–14, 44, 56. This suggestion is puzzling. As an initial matter, it is respondents’ burden to prove their standing by pointing to specific facts, Lujan v. Defenders of Wildlife, 504 U. S. 555, 561 (1992), not the Government’s burden to disprove standing by revealing details of its surveillance priorities. Moreover, this type of hypothetical disclosure proceeding would allow a terrorist (or his attorney) to determine whether he is currently under U. S. surveillance simply by filing a lawsuit challenging the Government’s surveillance program. Even if the terrorist’s attorney were to comply with a protective order prohibiting him from sharing the Government’s disclosures with his client, the court’s postdisclosure decision about whether to dismiss the suit for lack of standing would surely signal to the terrorist whether his name was on the list of surveillance targets.

If the case is dismissed, that means the suspect is not being monitored. If the case is not dismissed, then jurisdiction is present, and the suspect is being monitored. This is a form of what is known as greymail–attorneys using various proceedings in court to indirectly obtain classified information. Because the government does not want to release this information, they will instead change their enforcement practice.

And Alito seems awfully skeptical about the “even if” the attorney keeps the information secret.


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Feb 26, 2013

Prop1 Class 13: Future Interests II

Today we will continue covering future interests.

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

This is Henry VIII, who abolished the Statute of Uses.

He is most famous for breaking England away from the Roman Catholic Church so he could obtain a divorce from his first wife, Catherine of Aragon. She did not bear him a son, and he blamed her. Now we know that the Man provides the Y-chromosome, and is responsible for determining the gender of the offspring).


 Henry would go on to be married a total of 6 times, in his pursuit of a male heir.  Not all of his wives faired so well

Here is the rhyme we use to remember their fates: Divorced, Beheaded, Died, Divorced, Beheaded, Survived.

This helpful graphic summarizes the fate of Henry’s wives. Henry’s most famous offspring was Elizabeth, who became Queen Elizabeth I (remember Shakespeare in Love?).



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Feb 26, 2013

Prop2 Class 13: Easements III

Today we will wrap up our coverage of easements, and focus on whether easements in gross are assignable, what the scopes of easements are, and whether easements can be terminated. The lecture notes are here, and the live chat is here.

Lots of pictures and maps and stuff.

Here is a map of the property in Miller v. Lutheran Conference & Camp Association.

View Larger Map

You can find out more about the property, which still operates as a club here, here, and here. Here are some old pictures of people wearing boating–but not bathing–at Lake Naomi. 

Here are some maps from Brown v. Voss, a case that took place on the Hood Canal (same place as Howard v. Kunto)–courtesy of the Dukeminier & Krier site..

Should an easement for a railroad cover an easement for a public trial?

Here is the map of the property at issue in the Presault case.


Here is the trail around Lake Champlaign. The Presualt’s home is on the right (Courtesy of Dukeminier & Krier):

Trail (1)

A related question: What does this sign mean? What exactly is not allowed in the park?

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Feb 26, 2013

Good luck to everyone taking the bar!

Here is my advice, though it’s probably too late at this point 🙂

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