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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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I Dream of Obamacare

December 31st, 2013

And, it finally happened. HealthCare.gov invaded my dreams. Last night I had a dream that I was laboring over signing up for healthcare.gov. Here was my dilemma. I did not want to benefit from a program I was opposed to, Obamacare (similar to how I refused to partake in “Cash for Clunkers”). But I also needed health insurance, and did not want to be forced to pay the mandate/penalty/tax. What to do? So I took advantage of the President’s most recent change in course, and signed up for a catastrophic coverage plan that cost $220 a month.

 

When Average Is Over, Let’s Hope You Can Enhance the “Genius Machines.”

December 31st, 2013

Ronald Bailey reviews in Reason Tyler Cowen’s new book, Average is Over (which I have downloaded, but not yet read). Here is the intro:

The rise and spread of intelligent machines has led to increasing income inequality and anemic job growth. And this dynamic is likely to be permanent. Such is the arresting and depressing thesis proposed by the George Mason University economist Tyler Cowen in his provocative new book, Average Is Over.

The American economy is becoming a “hyper-meritocracy” in which workers will either be big earners or big losers, Cowen believes. He blames this bifurcation on the rise of “genius machines,” which are increasingly doing the routine intellectual work that once supported millions of middle-income workers. If your skills enhance the work of ever-more-intelligent machines, you’ll likely be a big earner. If your skills do not complement the computer, you’re liable to be a big loser. “Ever more people are starting to fall on one side of the divide or the other,” writes Cowen. “That’s why average is over.”

Those middle-class jobs just aren’t coming back, Cowen claims. “The financial crash was a very bad one-time event that revealed, rather suddenly, this more fundamental long-term structural problem, namely that a lot of workers had been overemployed relative to their skills,” he writes.

These trends are very applicable to the practice of law. Whether lawyers like it or not–or whether it actually results in an improvement in the quality of legal services–many of the more mundane tasks of law that can be commoditized will be delegated to “genius machines.” Lawyers who can make those machines smarter (those than can do math), and can learn from them, will prosper. Those who can’t will have a tougher time. It won’t be enough for lawyers to say, oh I can’t do computers, can’t my admin do that for me!

Cowen uses an example of chess computers that collaborate with a team of humans, who many not themselves be grandmasters.

So what is the future of work? Cowen cites Freestyle chess as a model of man-machine integration at work. Freestyle chess is a rapid-fire variation on the game played by teams who consult various computer programs for their assessments of the best moves. The computer outputs are evaluated by the human team members, who are not themselves necessarily highly ranked players. The combined man-machine chess teams regularly outscore the best grandmasters.

Similarly, in the future, the most successful doctors, lawyers, teachers, marketers, and retailers will be members of teams skilled in the use of intelligent machines to inform and guide their decisions. For example, a patient’s symptoms and test results could be uploaded into a comprehensive program for an initial diagnosis. This kind of diagnostic procedure need not be done by physicians, but by technicians whose skills enable them to identify when the diagnostic outputs of smart machines need to be supplemented by the insights of a team of doctors.

This is an interesting model for legal-tech development. This is what I have referred to for some time as assisted decision making. Computers won’t replace lawyers, but will provide data to allow lawyers to make more informed decisions.

So, in other words, learn!

In the meantime, Cowen has given you fair warning: If you don’t want to welcome robot overlords someday, it can’t hurt to take advantage of any opportunity to upgrade your skills.

Challenge to Houston Same-Sex Benefits Case Removed to Federal Court, and Houston Legal Memo Supporting Its Decision

December 30th, 2013

The City of Houston has removed a suit filed by the Harris County GOP from state court to the Southern District of Texas. Texpatriate has the report. More from the Chronicle. I previously blogged about this suit here, here, here, and here.

The notice of removal in Pidgeon v. Parker is here. The motion states that the family court “conducted an ex parte hearing” at 5:00 p.m. even though the Mayor was never properly served. A TRO was issued at 5:13 p.m. The removal notice raises an important federal question about “equal protection and due process rights (including fundamental liberty interests) of legally married same-sex couples.”

The pleading includes at Exhibit F the legal opinion offered to the Mayor explaining why same-sex benefits would be offered. I had not seen this memo. It’s 3 pages long (begins at p. 34 of the pdf). There isn’t much reasoning there. The memo omits any treatment of the limiting language in Windsor, or of the various opinions in that case. It probably comes out right on the outcome of what a court would do, but it’s awfully thin.   Here is the entire memo.

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Liptak on Cutely Named Laws

December 30th, 2013

Adam Liptak writes in Sidebar about an essay I blogged about back in February, focusing on how federal laws are named. Adam hones in on a key aspect of why politicians name federal laws the way they do–to make opposing the law impossible because of those its name benefits.

For example, I’ve asked, who can possibly oppose the Violence Against Women Act? Certainly only those who want women to suffer from violence, right? This is an extension of the general Ted Frank’s Rule, which states that it is generally a terrible idea to name laws after victims.

Adam hones in on this important point.

The day before, the court issued another 5-to-4 decision, Shelby County v. Holder, this one striking down part of the Voting Rights Act. That name might seem more straightforward, but it did not satisfy Justice Antonin Scalia when the case was argued in February.

“This is not the kind of a question you can leave to Congress,” he said, explaining that lawmakers “are going to lose votes if they do not re-enact the Voting Rights Act.”

“Even the name of it is wonderful,” he said. “The Voting Rights Act. Who is going to vote against that?”

We would be much better off if laws were given neutral titles, or perhaps numbers.

Should Jewish Circumcisions Be Regulated?

December 30th, 2013

Last year in Pittsburgh, Rabbi Mordechai Rosenberg, a mohel (the Rabbi who performs the Jewish ritual circumcision, known as a bris) accidentally severed a newborn boy’s penis. Thankfully, the boy received successful surgery, and it was reattached. The parents filed suit in Philadelphia (I suspect they get a better jury pool, and higher jury verdict there). I have no thoughts on the merits of that lawsuit.

The more interesting question from my perspective is one raised by the family’s lawyer, who suggested that the mohel should be regulated.

Llewellyn handles cases involving injury during circumcision – injury brought on by both doctors in the hospital and mohels in religious ceremonies.

“Your average pediatric urologist probably spends about 20 percent of his or her time repairing children who have been circumcised,” Llewellyn says.

According to the American Academy of Pediatrics, one in every 500 newborn boys experience significant acute complications as a result of circumcision.

“This is pretty much unregulated,” Llewellyn said.

He says there is no regulated standard for training or certification of mohels, or any place for reporting injuries from circumcision.

“There’s virtually no regulation of this any place in the United States that I know of,” Llewellyn said. “I think the government probably should require some sort of training if this is going to be done.”

The overwhelming mohels are Rabbis who are not trained or licensed doctors. A law that required people who perform circumcisions to obtain medical training would immediately shut down the overhwhelming majority of mohels. So there’s the question. Would such a law be constitutional, or legal under state RFRA?

I admit, the state’s interest in safety is fairly strong here. Allowing people with no medical training to use scalpels to slice off the foreskin of eight-day-old babies is quite serious.  I don’t know how many circumcisions end in injury (I am incredulous about taking the plaintiff lawyer’s number at face value), but usually the state doesn’t need much to enter the medical regulation field. Though, on the other hand, the religion interest cannot be understated. Forcing rabbis to go to medical school imposes a significant burden on the religious beliefs of most observant jews. Further, what if the state required the rabbis to use certain tools and procedures to minimize the risk of harming them, and these procedures conflicted with jewish teachings?

Related is the New York City law that requires mohels to give a disclosure form to parents before performing a type of circumcision where blood is removed through oral suction. The case was argued before the Second Circuit this fall. This case had interesting compelled speech issues, in addition to the religious liberty questions. I also previously blogged about a proposd law to ban circumcisions.