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Month: December 2013

I Dream of Obamacare

And, it finally happened. invaded my dreams. Last night I had a dream that I was laboring over signing up for 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.   Share...

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

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...

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

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. Share...

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Liptak on Cutely Named Laws

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. Share...

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Should Jewish Circumcisions Be Regulated?

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...

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The Ubertarian and Occupational Licensing

Outside of libertarians, most people are just fine with occupational licensing regimes, until it impacts them. Exhibit A is the newly-coined “ubertarian.” D.C. is home to a growing and curious breed, progressive young professionals who bemoan the city’s income inequality one instant and approach a black limo the next, asking “Are you my Uber?”; who condemn the government for under-regulating the banks and for over-regulating businesses and developers; who lament the decline of American labor but wish the teachers’ union didn’t have so much power in D.C. schools. They support government regulation—except when it inconveniences them. Clamping down on the big banks? Yes, please. Tighter safety standards? Love ’em. Restrictions on app-based taxi competitors, or on the number of bars or restaurants in their neighborhood? An outrageous imposition on the free market! I’ve previously commented on the obstructive barriers to entry placed in the path of Uber, and noticed how surprising it was that prominent liberals, who usually love all means of government regulation, have seemed to oppose the most basic instances of occupational licensing. What do we make of these ubertarians who see no problem with the District of Columbia regulating a whole host of professions, but lord help us if they make it harder to get a taxi? Probably nothing. But if people viewed all forms of occupational licensing the same way–whether it affects them directly or indirectly–rational...

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Taft as Solicitor General in 1890, and Justice Harlan’s Recommendation

The Bully Pulpit (a book I have blogged about several times) explores Taft’s brief stint as Solicitor General. Goodwin recalls Taft’s difficult in transitioning from Judge (he was appointed to the Cincinnati Superior Court at the age of 29) to Solicitor General at the age of 32. Now, he was the one being asked questions! William Howard Taft’s stolid demeanor prevented the sort of aggressive, confident debut in Washington that Roosevelt had enjoyed. He confessed to his father that his first oral argument before the Supreme Court had left him despondent. “I did not find myself as fluent on my feet as I had hoped to,” he explained. “I forgot a great many things I had intended to say.” He worried that his deliberate speaking style would fail to capture the justices’ attention. “They seem to think when I begin to talk that that is a good chance to read all the letters that have been waiting for some time, to eat lunch, and devote their attention to correcting proof, and other matters that have been delayed until my speech,” he grumbled. While the solicitor general’s position might offer great “opportunities for professional experience,” he doubted his own ability to capitalize on those opportunities. “I find it quite embarrassing to change from the easy position of sitting on the bench to the very different one of standing on your...

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What the 1.1 million new Obamacare Signups Do Not Tell Us

Jonathan Cohn blogs: The official enrollment number doesn’t tell us many things. It doesn’t tell us whether these people getting private (or public) coverage had insurance previously—or, if they had insurance, how much they were paying for it. It doesn’t tell us how many of these people have actually paid premiums, which is essential for coverage to take effect. It doesn’t tell us whether insurers have proper data on these people or what kind of access and protection the new coverage will give. It doesn’t tell us how many of the enrollees are in relatively good health or how many are in relatively poor health—or how that mix will affect insurance prices going forward. In addition, the numbers do not appear to match the Administration’s own targets. According to internal projections, later reported by the Associated Press, officials expected more than 3.3 million enrollments by year’s end, with about 1.8 million of those coming through the federal website. For all of those reasons, and a few others, it’s premature to say Obamacare is meeting expectations. Share...

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How Justice Stevens Got Justice Blackmun To Tweak Smith v. Maryland

Professor Kyle Graham graciously shared internal correspondences on the Court from Justice Blackmun’s papers regarding Smith v. Maryland. One of the more fascinating exchanges came in a series of letters between Justice Stevens, Justice Blackmun, and Blackmun’s law clerk AGL (Al Lauber, now a Tax Judge). If you ever wonder how those odd, out-of-place footnotes wind their way into majority opinions, this is it. In short. Stevens urged Blackmun to clarify an issue about the subjective and objective expectation of privacy. Within a day, Blackmun’s clerk (who was given complete discretion on writing the opinion) managed to insert a footnote that repeated Stevens’s point very closely. Here’s the chronology. First on May 24, 1979 (two months after the case was argued on March 28, 1979), Stevens wrote to Blackmun regarding the “actual or subjective expectation of privacy,” offering two hypotheticals to consider. Later that day, Stevens sent a follow-up letter with a “suggestion” of how to treat the subjective and actual expectation of privacy when extending into a “new area.” Later that day, Blackmun’s clerk, AGL, wrote back to Blackmun and offered a footnote to address JPS’s concern. HAB replied later that day “OK.” Here is the footnote inserted. You can see that it tracks JPS’s example very closely. Blackmun wrote back to Stevens, asking if this footnote suffices. Stevens replied that it would do just fine, and he...

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Walter Isaacson Crowdsources New Book

In the early days of this blog, I endeavored to liveblog several law review articles. The goal, in part, was to solicit real-time feedback. The experiments were helpful, though fittingly enough, I haven’t finished any of them. A few of them I will hopefully return to in the next year. But the idea is good. Best-selling author, Walter Isaacon has taken this experiment to a new level. One of the most successful authors in the world, Walter Isaacson, is seeking the wisdom of the crowds for his new book about the technology industry’s major inventors. Using, he has uploaded chapters of his new book, and has asked for feedback. The results have been interesting so far. Though only two chapters are online, it’s already gotten attention from an impressive group. Stanford Professor of Political Theory Rob Reich thought the role of government in funding the early Internet got short shrift, and recommended Isaacson give it some attention. Isaacson responded in kind, “Yes, I will add a section on govt research at MIT, Stanford, Lincoln Lab, BBN, SRI, etc. Very important. I’m a fan of Leslie Berlin and her Noyce bio is superb.” In a spicier example, Stewart Brand, an early pioneer of online forums, disputed Isaacson’s retelling of his own history. The two had a lively exchange, with both agreeing to moderate their understanding of the events. I’ve considered using a similar approach to soliciting feedback for...

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Justice Sotomayor To Drop Ball in Times Square! And I’ll Be There!

I lived in New York City my first 18 years of life, but never once went to Times Square for New Years. 2014 will be different. This year, AALS will be in Manhattan, starting on January 2. One of the hotels with discount rates for AALS was the Marriott Marquis, which is right in Time Square. Somehow, AALS managed to block off rooms during New Years Eve for a ridiculously low rate. Somehow (I have no idea how), I was able to reserve a room at the Marquis on New Years Eve for $220 a night. When I saw that room was available, I jumped on it. I couldn’t even find the regular rate for the Marquis. Other hotels in the area were well over a thousand per night. Anyway, I’ll be staying in Times Square on New Years Eve. And I get to see Justice Sotomayor drop the ball! Share...

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What lies ahead in 2014 for Obamacare?

The AP offers some key questions to consider regarding the efficacy of the law. The new year brings the big test of President Barack Obama’s beleaguered health care law: Will it work? The heart of the law springs to life Wednesday, after nearly four years of political turmoil and three months of enrollment chaos. Patients will begin showing up at hospitals and pharmacies with insurance coverage bought through the nation’s new health care marketplaces. The course of 2014 will show whether Obama can get affordable care to millions of people in need, without doing intolerable damage to the 85 percent of U.S. residents who already were insured. Lots of Americans are nervous. Will their new coverage be accepted? It’s a concern because insurers have reported problems with the customer information they’ve gotten from the government, including missing data and duplication. How many more people will see old individual plans that they liked canceled? Will a flood of newly insured patients cause doctor shortages? Will businesses respond to the law by ditching their group plans or pushing more health costs onto workers? No, the law is not entrenched. Even if people have it, it has to work. Share...

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I am quoted in Houston Chronicle in article about Baptist University Contraceptive Mandate Case

A federal district court enjoined the application of the HHS contraceptive mandate to the Houston Baptist University yesterday. I spoke to a reporter about the case from the Chronicle. Here are my comments: The Obama administration exempted churches from the mandate, but not affiliated organizations like religious schools and hospitals. Josh Blackman, an assistant professor at South Texas College of Law, wasn’t surprised that Rosenthal’s decision came down in favor of HBU and East Texas Baptist University in Marshall. “The issue is, these are Christian universities and their faith is very integral to their mission,” Blackman said. The legal scholar said he is certain the Obama administration will appeal Rosenthal’s decision but doubts an appellate court would overturn the injunction against enforcing the mandate. “They’ll just maintain the status quo,” he said. In early 2014, the Supreme Court is expected to hear arguments in a similar case involving the Hobby Lobby craft store chain, whose owners contend that forcing them to provide contraceptive services violates their religious beliefs, as well. A decision in that case could settle the matter altogether, experts said. “If Hobby Lobby wins and they win everything, then it becomes easier for a church or a religious hospital to make this argument,” Blackman said. Share...

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Houston Same-Sex Couple That Lost City Benefits Following State Court TRO File Suit in Federal Court

The very useful Texpatriate blog as the report: KPRC reports that a local couple has sued the City of Houston after their full spousal benefits have been revoked. As the astute may recall, last month Mayor Parker announced that all legally married couples (includes those of the same-sex) could provide full spousal benefits from the City if one member of the couple worked for the municipality. Only three couples initially signed up for these benefits, including Noel Freeman (a City employee) and Brad Pritchett. Many will probably remember Freeman, the President of the Houston GLBT Caucus and previous candidate for the City Council, and Pritchett, an official with the Harris County Democratic Party. Shortly thereafter, officials with the Harris County GOP sued the City of Houston in attempt to enjoin the offering of these benefits; they were successful in obtaining a temporary restraining order to this effect until mid-January. Accordingly, even though Freeman and others had begun paying the City higher premiums to ensure their lawfully wedded spouses had received the benefits, these benefits had been stopped indefinitely. In response to this injustice, the couple (as well as two others) has sued the City of Houston in Federal Court over being deprived of the equal protection and due process. As the Channel 2 article notes, the original suit that prompted the TRO will come up for full oral arguments in January. I would imagine...

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So maybe selling a “haunted” house does make it more valuable?

Remember Stambovsky v. Ackley? That’s the case where a New York court held that a house being “haunted” was a latent defect that the seller had a duty to disclose. One the arguments the judge relied on, in his farcical opinion, was that a haunted house was less valuable. I often ask my students if anyone would purchase a haunted house. Most say they wouldn’t care. But a few are adamant and would not. And there’s always one or two that would want to buy the house! Like Beetlejuice or something. Zillow, which is apparently also a contributor to Forbes, writes about a guy in Pennsylvania who listed a house as “slightly haunted.” And wouldn’t you know it. People were interested! “I went back and forth,” Gregory Leeson says when asked about listing hisDunmore, PA home as “slightly haunted” on real estate website ZillowZ -3.69%. “I thought I might as well. I didn’t think it would generate this much interest.” But since uploading his for sale by owner listing on Sunday, Leeson has received multiple offers and interest from buyers as well as ghost hunters across the country. The home has also ignited a growing discussion on Twitter, with many sharing their own haunted home stories: Leeson’s somewhat tongue-in-cheek description of his home, which is listed for $144,000, begins by pointing out typical features — 4 bedrooms and 2.5 bathrooms — before...

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Klein on why young, healthy people just shouldn’t pay the mandate?

Mandate? I thought it was a tax? Anyway, Ezra Klein offers advice to a 26-year-old who would rather pay the cheap penalty than expensive healthcare. 3. Gibson is latching onto something very real in the law: The mandate is a great deal. He doesn’t even mention the best part: If he pays the mandate and then he does get sick, he can still buy insurance at the same price as when he was healthy when the next open enrollment period rolls around! Paying the mandate is basically purchasing an option to buy health insurance at a reasonable rate in the future, even if you get sick between now and then. 4. So why would anyone not pay the mandate? A few reasons. First, people actually want health insurance. After all, there’s no individual mandate right now, but lots of people pay lots of money to buy insurance, even when that insurance has high deductibles. Second, the mandate gets pretty steep, pretty quick. By 2016, it’s 2.5 percent of income over the tax filing threshold ($10,000 for an individual, $20,000 for a family). So if you’re making $40,000, that’s $750 you’re spending — and you’re paying it knowing that if you get sick, you have no protection. Third, people tend to follow the rules. 5. And then, of course, there’s the big reason: You might get sick! Gibson’s argument is that he’s young and healthy. The...

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Google Made Rap Genius Disappear

I have often commented that the power of Google is to make things disappear. No, not literally disappear in the Godfather sense. But by changing algorithms to bury someone on page 2349 of search results, they may as well be gone. Google made vanish from the tubes because of their SEO spamming. They are unsearchable. If you search for Rap Genius on Google right now, the homepage for the startup is conspicuously absent from the first page of search results. You won’t find it on the second, third, or fourth page either. Instead what you’ll see on the first page of results are stories about how Rap Genius got smote by Google, links to their Twitter and Facebook and, at least for me, a link to this Billboard article about “How Rap Genius Won the SEO Game.”  More importantly, links to the Rap Genius pages for popular songs, which would often pop up as the top result, got similarly smacked down. Thing about that for a moment, in light of my post the other day about Twitter (accidentally) disappearing tweets about DuckDynasty. These mediums exercise great power to control what we see and don’t see. Update: Some more commentary. But it’s the idea that I’m passionate about. Or at least want to protect, like the Freedom of Speech in America. The Internet is a changing place. It’s scary that Google can...

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Kennedy, Windsor, Federalism, and SSM in Utah

For the past year or so I’ve been working on article about Justice Kennedy’s jurisprudence that focuses on how he merges together due process (conduct), equal protection (status), and federalism (states conferring dignity) into a single standard of structural constitutional review. I think this theory helps explain his jurisprudence from Casey to Romer to Lawrence to Windsor. I held off finishing the paper, because I wanted to see what would happen in Bond, which will have huge doses of structure and federalism in it. But recent events in Utah, and the rapidity with which this issue comes before the Court, will probably give me an opportunity to work in these cases. Let me make a prediction that will probably be wrong. In Lawrence, AMK cited the fact that so many states decriminalized sodomy as a rationale to strike down the Texas law. There, states striking down these laws was conferring a form of dignity that informs the federal constitutional question. In Windsor, AMK cited the (not so many at the time) states that had given gays the right to marry. There, states granting this right were conferring a form of dignity that informs the federal constitutional question. Since Windsor, there has been a race of states granting rights to SSM, mostly through the elected branches, but most recently in Utah, and hinted at in Ohio. This is just the...

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Google – Ultimate Personal Assistant

In my writings, I have often referred to Google as a personalized concierge that knows what you want before you do. TechCrunch has a piece alluding to this technology, titled “Google Wants To Build The Ultimate Personal Assistant.” Google’s Engineering Director offers a preview of things to come: Here’s the gist of it: Google knows our expectations of what a search engine should be able to do is quickly changing. The old “ten blue links” search results page is quickly going away for something far smarter that, according to Huffman, will resemble a personal assistant more than the search tool Google that launched over fifteen years ago. Indeed, that’s what Huffman considers Google’s goal: creating the ultimate personal assistant. The next generation of search, he said, is all about making “all your tasks as you go through the day simpler and quicker.” … That interaction with Google will be in the form of a back-and-forth conversation, something the company has been working on for a while now. Thanks to its Knowledge Graph, Google has become significantly better at understanding its users intends and it is already able to use voice recognition for at least a limited amount of conversation that is able to work with pronouns (and that’s really the first step in making conversations with computers seem natural). It’s not exactly the Star Trek computer, but it’s a clear first step...

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Josh Blackman

Josh is an Associate Professor of Law at the Houston College of Law who specializes in constitutional law, the United States Supreme Court, and the intersection of law and technology. Josh is the author of the critically acclaimed Unprecedented: The Constitutional Challenge to Obamacare (2013) and Unraveled: Obamacare, Religious Liberty, and Executive Power (Cambridge University Press, 2016).

Unraveled: Obamacare, Religious Liberty, and Executive Power

Unprecedented: The Constitutional Challenge to Obamacare

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December 2013
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