Jan 20, 2014

American Institute of Architects Gives 25 Year Award to D.C. Metro

Mazal tov WMATA! I gather functional escalators is not a criteria of architectural excellence. Stairs are so much more classy anyway. Here are the jury comments:

The striking design of the prototypical Washington Metro station revolutionized public perceptions of mass transit in the mid-to-late 20th century. The station designs have held up remarkably well despite the phenomenal population growth of the Washington region and accelerating pressures on the system.

The stations are airy and spacious, avoiding the claustrophobic qualities of so many older subway facilities in other cities. They are quintessentially modern while maintaining a certain grandeur befitting the nation’s capital. The original stations are now — and have always been — largely free of graffiti and litter, thanks in part to thoughtful planning on the part of the original architects — the designs actively discourage the sort of degradations that plague many other mass transit systems.

The original Metro stations have become icons of Washington architecture, and the entire system — despite recent controversies about safety and management that are unrelated to matters of architectural design — remains a point of pride for Washingtonians.

H/T Gizmodo

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Jan 20, 2014

Laszewski: “Uninsured Are Not Signing Up for Obamacare”

Leading healthwonk Bob Laszewski comments on a recent WSJ article about a McKinsey Report I blogged that showed that only 11% of the people who signed up for Obamacare were previously uninsured. Bob questions what will be the impact on our healthcare system if most of the people who have signed up *already* had health insurance.

Bob closes with the important question I posed earlier. The ACA caused substantial disruptions in the health insurance market, to say nothing about how it impacted the labor market, with the goal of expanding access to affordable health insurance. If it fails that goal, and only a small number of people actually benefit from the law, was it worth it?

However many finally pay, so far it is clear that the uninsured just aren’t buying Obamacare.

If this continues, people will be asking a very big question come election day:

While we needed to do health insurance reform, why did we have to do it in a way that so disrupted the existing individual and small group market if the people it was supposed to benefit, the uninsured, weren’t going to buying it?

The Obama administration will now argue they had lots of computer problems between October and January and there are three months remaining to get people interested in and purchasing health insurance.

They are right.

But when the spin is over, they have to be sweating bullets.

It’s not enough to say that *some* people were benefit. Of course some will be better off. But how many will be better off, and how many will be worse off? How many winners, and how many losers will there be? The question is, was it worth the cost both in terms of the ACA’s impact on people who were happy with their coverage, and on the labor market.

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Jan 20, 2014

Is Hobby Lobby Imposing its Religious Beliefs on Its Employers?

In the Washington Post, LawProf Frederick Mark Gedicks argues that if the Court rules in favor of Hobby Lobby, and holds that the owners cannot be forced to provide their employees with contraceptives, the court would be “directing the women who work for these businesses to bear the cost of the owners’ anti-contraception religion.” In support of that argument Gedicks cites a line of Supreme Court cases that hold that people cannot be forced to bear the cost of practicing religion.

On the other hand, the Supreme Court consistently has condemned government accommodations that shift the cost of practicing a religion from those who believe it to others who don’t. For example, the court struck down a state law that gave employees an absolute right not to work on their chosen Sabbath because of the burden it imposed on others. If most employees were Christian and took Sunday off, the statute would have forced the remaining, non-Christian employees to work every Sunday. This, the court said,violated the establishment clause: “The First Amendment . . . gives no one the right to insist that in pursuit of their own interests, others must conform their conduct to his own religious necessities.”

But nowhere did I see any mention of a really important fact–the state action doctrine! All of these cases involve laws passed by the government that burdens religion. Here, we are talking about the actions of Hobby Lobby, a private corporation, that owes absolutely zero constitutional duty to the religious beliefs of its employees. Zip. None. They have to comply with any applicable nondiscrimination laws, and cannot discriminate against employees based on their religion, and must make reasonable accommodations for religion. But this does not translate to some sort of constitutional protection against establishing a religion in a craft store.

Another point not mentioned in this debate is that no one is forced to work for Hobby Lobby. If the package of benefits (and that’s what we are talking about) at Hobby Lobby is so insufficient, the employees are free to work anywhere else. In contrast, of course, one cannot avoid the long arm of the government if you do not like its policies (other than foot voting).

What’s lurking underneath this column is a point made several times at Balkinzation. That the ACA changed everything! That we have a new “baseline.” Now healthcare is not merely some fringe benefit, but a legal right. And to deny employees this right is so significant. Specifically, as Joey Fishkin argued, in the “post-ACA world,” Hobby Lobby is “acting partly on behalf of the federal government.”

You see what happened there? This logic makes the WaPo argument work. Hobby Lobby is not some mere private actor, but is in essence a cog in the federal machinery that guarantees healthcare to anyone. Employees should no longer treat health insurance as some sort of benefit, but now must demand it–and the employers’ religious liberty should not stand in that way.

I see strong parallels to arguments concerning the ability of religious employers to terminate non-religious employees for religious reasons. Though, employment in that context is not (yet) viewed as some sort of right that the employer must offer. (In many countries in Europe, this is the prevailing wisdom).

The significance of Hobby Lobby, I have come to realize, goes far beyond RFRA or birth control pills. Instead, the ruling would either legitimize or challenge the consolidation of the relationship between the individual, the employer, and the state, under the auspices of the ACA, in a way we have not yet seen.

Update: I respond to Professor Gedick’s comments here.

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Jan 20, 2014

Deadline Extended for Harlan Institute & ConSource Virtual Supreme Court on NLRB v. Noel Canning

The deadline has been pushed back from February 28 till March 17. Sign up today!

Building on the success of the 2013 Virtual Supreme Court project, the Harlan Institute has partnered with The Constitutional Sources Project (ConSource) to host the second annual Virtual Supreme Court competition. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year the competition focuses on National Labor Relations Board v. Noel Canning Corporation.

The competition is endorsed by the Center for Civic Education’s We The People Competition:

“The Center for Civic Education is excited to endorse the Virtual Supreme Court Competition. The Competition is relevant for high school students studying the Constitution and Bill of Rights.”

-Robert Leming, Director, We the People Programs, Center for Civic Education

The Question

Resolved: What is the scope of the President’s recess appointment power?

The Rules

This competition has two stages, which mirror the process by which attorneys litigate cases. 

Stage One: The Briefing

A team of two students will be responsible for writing an appellate brief arguing for one side of the topic. This brief will be posted on their class’s FantasySCOTUS.  Blog posts will be due by March 17, 2014. Completed briefs will be awarded the ConSource Badge. You can see the winning briefs from 2013 here.

Stage Two: Oral Arguments

The Harlan Institute and ConSource will select the top four briefs taking the affirmative position, and the top brief briefs taking the negative position, and seed them for oral arguments. All eight teams will compete in a virtual oral argument session over Google+ Hangout judged by staff members at the Harlan Institute and ConSource. Only teams that submit briefs that fully comply with all of the rules will be considered for oral argument.

  • The first round of oral arguments, the District court, will match up the top eight teams, in March of 2014.
  • The four teams that advance will meet up in the second round of oral arguments, the Court of Appeals, in April of 2014.
  • The top two teams that advance will meet in the final round of oral arguments, the Supreme Court, in May of 2014. These two teams will compete virtually in front of a panel of prominent appellate attorneys. You can see the video from the 2013 Competition here. The winners will be crowned the Solicitors General of FantasySCOTUS, and win an amazing prize.

The Prizes

Grand Prize – The Solicitors General of FantasySCOTUS

The members of grand-prize winning team, the Solicitors General of FantasySCOTUS, will receive a free trip, including airfare and one night of hotel accommodations, to Washington, D.C. to attend the ConSource Constitution Day celebration in September 2014. Winners must be at least 18 years at the time of the trip (it is no problem if the student has already graduated high school in September of 2014, so long as he or she was in high school during the competition). This offer is open to U.S. residents only.

Second Prize

Members of the runner-up team will each receive an iPad.

Third Prize

Members of the third and fourth place teams will each receive a $100 Amazon.com Giftcard.


Ask your teacher to sign up your class on FantasySCOTUS (all High School students can participate), add an account, read the problem, and get started! Good luck.

Please send any questions to [email protected] or [email protected].


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Jan 20, 2014

Texas Supreme Court To Consider Standard for Economic Freedom Under Rational Basis Test

Tim Sandefur has the report of SCOTX’s upcoming argument in Patel v. Department of Licensing.

The Texas Supreme Court has announced that it will consider the case of Patel v. Department of Licensing, which raises the issue of what the “rational basis” test means under Texas state constitutional law.

Rational basis, of course, is the test that judges use when deciding whether a restriction on economic freedom is constitutional or not. This test is typically biased very heavily in favor of the government, allowing bureaucrats to do practically anything they want when it comes to economic matters or private property rights. But Texas state courts are a little different. They’ve applied a more rigorous kind of legal scrutiny rather than the rubber-stamp, anything-goes rational basis test that is usually applied in today’s federal courts. Pacific Legal Foundation filed this brief back in November urging the Texas Supreme Court to take up this issue and declare once and for all that under state law, the right to earn a living will receive meaningful judicial protection.

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Jan 20, 2014

Lawyers Rank Fourth Among Professions With Highest Suicide Rates

Some very sad numbers from a recent CNN report:

Lawyers ranked fourth when the proportion of suicides in that profession is compared to suicides in all other occupations in the study population (adjusted for age).They come right behind dentists, pharmacists and physicians.

Lawyers are also prone to depression, which the American Psychological Association, among others, identified as the most likely trigger for suicide. Lawyers are 3.6 times more likely to suffer from depression than non-lawyers. …

CNN’s review of 50 state bar associations found eight associations so concerned about suicides that they took measures to stop the deadly pattern. California, Montana, Iowa, Mississippi, Florida, South Carolina and North Carolina added a “mental health” component to mandatory legal continuing education. Kentucky starts its annual conference on continuing education with a presentation on behaviors that increase the risk of suicide. So far, Kentucky has reached 7,000 lawyers.

These unfortunate numbers also hold true for law students as well.

The problem starts as early as law school. Dr. Andy Benjamin of the University of Washington conducted a study of law students that estimated 40% suffered from depression by the time they graduated. After law school comes the high stress process of admission to the bar, when Lukasik said lawyers fear reporting treatment for any type of depression or mental illness because they risk not meeting the “character and fitness” requirements. “They could shut down their career,” he said. Most state bars make subjective decisions as to whether mental illness or depression, treated or untreated, are barriers to a candidate’s certification to practice law.

Read the entire report.

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Jan 20, 2014

Prop1 Class 2 – Efficiency and Fairness

Today in class we will be talking about Ghen v. Rich and Keeble v. Hickeringill, through the lens of economic efficiency and fairness.

Today’s lecture notes are here. Today’s live chat is here.

Ghen v. Rich.

Here is the harvesting of a finback whale.


Fin whales are on average about 90 feet long, and can weigh over 70 tons. By point of comparison, an African elephant weighs roughly 8 tons.


Fin Whale


This is a bomb lance harpoon.


And a patent diagram of an 1878 bomb lance:


Another patent diagram from 1879.




More pics of bomb lances. It was basically a harpoon with a rocket attached to it.



This is a bomb lance gun.


Here is a drawing from 1897 showing the firing of a bomb lance (Frank T. Bullen, The Cruise of the Cachalot (1897)



This is what a captured whale looks like:


Keeble v. Hickeringill

Here is Edmund Hickeringill (courtesy of the British Musuem)–doesn’t he just look like a jerk!?


This is Lord Chief Justice John Holt who was the Lord Chief Justice of England, the author of the opinion in Keeble v. Hickeringill.


Here is a plan for the duck decoy.


The ducks get caught in these nets over the pipes.





Here is a dutch video showing the ducks getting cut (fast forward to about 1:05)

I suspect many of you have tried this kind of duck hunting.



Coase Theorem

To illustrate the Coase Theorem, we will utilize the classic example of the Fountainbleau Hotel in Miami.




Or this related case from Dallas:

The Nasher contends that the developers of the $200 million tower, completed in January, have been intransigent in refusing to modify its reflective glass skin; the Nasher has proposed louvers for the facade.

Museum officials say the garden has had to be resodded twice because of the higher temperatures created by sunlight bouncing off the glass; that some trees have burned; and that light-blocking panels were needed for the roof during a recent Ken Price sculpture retrospective.



And the owners have suggested building screens to block the sun!

Gizmodo has a great writeup of the case:

They also hired a group of designers to study the feasibility of installing a gigantic shading system to block the rays, rather than fixing the problem at the source.

This month, the architects behind the project—a New York firm called REX, which built the (fantastic) Wyly Theater near the Nasher—presented their final proposal, dubbed Surya.

It looks complex, but the concept is actually very simple: The team looked at the annual path of the “death ray” and, based on its coordinates, created a huge shading system to block it as it changes. To lessen the presence of the shade, they also devised a series of umbrella-like devices that only open up when needed. So, for most of the year, these devices look like thin tubes strung up on a massive metal frame—which is better than an opaque surface… I guess?



This is like something Mr. Burns would design.

The “umbrellas” open up during different times of the day so as not to obstruct the views.


And they follow the sun’s path through the year.



Images courtesy of dukeminier-property.com, Wikipedia, and Professor Frank Buckley.



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