Dec 18, 2014

Obamacare Mailer: “pay an increased penalty tax of at least 2 percent of their income in 2015 if they go uninsured”

With the February 16, 2015 deadline to sign up for Obamacare drawing near, BlueCross BlueShield sent a mass mailer to their customers warning them what happens if they go insured.

“When you don’t have health insurance … you put your financial security at risk,” the mailer states. “That’s because under the new Affordable Care Act legislation, millions of Americans will have to pay an increased penalty tax of at least 2 percent of their income in 2015 if they go uninsured.”

The “good news,” the letter said, is that CareFirst BlueCross BlueShield has “solutions” to help people avoid the penalty, including coverage that is “compatible with financial assistance or free money from the government that will help qualifying individuals pay for insurance.”

If you want to know what a “penalty tax” is, ask the Chief.

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Dec 18, 2014

Posner: Per Curiam Opinions “Conceal Authorship”

In Ron Collins’s latest installment with Judge Posner, we gain an insight about why he does not issue per curiam opinions.

I stopped issuing per curiam opinions some time ago; it didn’t seem to me that “per curiam” was sending a useful signal; I couldn’t see the point of concealing authorship. West asks each judge to list his per curiams, and they are then included in the annual volume of a judge’s opinions, which West prepares and sends to the judge. So anyone who is interested could find out which per curiams have been mine. 

I agree. I have similar feelings about unpublished opinions.

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Dec 17, 2014

If Lochner’s Bakery Existed Today #SCOTUSmemes


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Dec 17, 2014

Guarding Against Prescriptive Easements in Houston

If a person openly and notoriously walks across a piece of property daily for a certain period of time, and his claim of right is hostile to that of the owner of the property, he will gain a “prescriptive easement” to cross under the doctrine of adverse possession. That easement cannot be revoked. In fact, the squatter effectively takes a stick out of the bundle. This actually becomes a problem when you have privately owned sidewalks, where people are normally allowed to cross.

There are two ways to guard against these prescriptive easements.

One way is to acknowledge that the crossing is permissive. This vitiates the “hostility” or “claim of right” requirement for adverse possession. In other words, if I let you cross across my property, it is not hostile, and you cannot establish a prescriptive easement.

In Houston, the Shell Building on Louisiana has what appear to be privately-owned sidewalks. However, on each corner, bolted to the floor is this plaque:



This sign does exactly as I suggested–make clear that crossing the property is permissive, but it can be revoked at any time.

Private Property: Crossing and use subject to revocable permission of the owner and at the risk of the user.

This can also be interpreted as a license, which can be revoked at any time.

The other option is to simply shut the property down once a year, to defeat any possible claims to adverse possession. The Times profiles a property in New York that does just that.

permissionIn a practice dating to 1953 and a custom that can be traced to Anglo-Saxon England, RFR Realty, the building’s owner, will close the garden courtyard, arcade and interior sidewalks at Lever House, on Park Avenue between 53rd and 54th Streets, from 8 a.m. to 4 p.m. on Sunday.

New Yorkers have quickly acquainted themselves with the concept of privately owned public space at Zuccotti Park. But there is another significant hybrid: purely private space to which the public is customarily welcome, at the owners’ implicit discretion. These spaces include Lever House, Rockefeller Plaza and College Walk at Columbia University, which close for part of one day every year.

Property markers, like a plaque set into the pavement at Lever House, are a frequent giveaway that one is about to set foot on someone else’s land. It reads, “Crossing and use subject to permission of the owner and at the risk of the user.”

Owners close these properties annually to protect themselves against any possible claim of “adverse possession,” a concept with ancient roots. It holds — to put it simply — that if someone openly and notoriously uses another’s property for a long period without ever being challenged by the rightful owner, the property becomes that of the possessor. Think of a farmer using an out-of-the-way corner of a neighbor’s acreage to pasture sheep for a generation or two, without the neighbor ever objecting.

Annual closings are how modern owners assert their dominion (as opposed, say, to killing someone’s sheep, or hauling him up before the folkmoot assembly).

Lever House has been closing itself once a year since 1953, when it was the brand-new headquarters of Lever Brothers. On Sunday, temporary barricades are to be erected, bearing signs saying: “This area is closed to public use on behalf of and in the name of the owner.” Some time later, an employee who was present will sign an affidavit attesting to the closing.


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Dec 17, 2014

Justices Scalia and Kagan hunting with Judge Pickering

There is so much awesome in this picture.



I can’t quite make out what is on Scalia’s shirt. The second line says “Opening Day 20-something.”

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Dec 17, 2014

Know what’s not happening today? Halbig En Banc Oral Arguments

Lest we forget, that the D.C. Circuit scheduled en banc oral arguments for Halbig for today. The Supreme Court had other plans.

In an early draft of my book proposal, I spent some time discussing the importance of that en banc hearing. Oh well. Onto One First Street we go.

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Dec 17, 2014

A Frozen Property Problem

The second question from my Property I final exam was based on the Disney movie, Frozen. Much like my Back to the Future question, I worked in a number of songs from the movie (“Do you want to build a snowman”) a turned them into property disputes (acquisition by creation). Also, I transformed Elsa’s snow palace into an impenetrable ice fortress, alluding to the Case of the Speluncean Explorers (Hint: Elsa melts and drinks Olaf). Sometimes, you just have to let it go.


You are a law clerk for the Chief Justice of the Arendelle Supreme Court. You are asked to write a bench memo of no more than 500 words that analyzes a frozen property dispute between Anna, Elsa, and Hans over the estate of Whiteacre. The Kingdom of Arendelle adheres to all common law property rules, as articulated in the Restatement (First) of Property. Arendelle applies a common law system with respect to marital property.

In the Kingdom of Arendelle live two sisters, Princesses Elsa and Anna. Elsa has magical powers, and can create ice, frost, and snow with her fingers. But she struggles mightily to keep her powers under control.

On January 1, “for the first time in forever,” the castle gates opened, and a huge banquet was held in honor of Queen Elsa’s coronation.

Following Elsa’s coronation, Anna meets the charming and handsome Hans. After getting to know each other for all of five minutes, Hans blurts out “Can I say something crazy? Will you marry me?” Anna replies, ebulliently, “Can I say something even crazier? Yes!

Hans gives Anna a sparkling diamond ring. Just as Anna is about to put it on her finger, Hans tells her to “This is for you to hold onto for now.” Ignoring him, she giddily puts the ring on. Hans explains—not that Anna is listening—that the ring belongs to his grandmother, and she told Hans that he could have it once she dies.

Anna and Hans’s wedding is held on January 2. In truth, Elsa is a bit jealous, and tells herself, “conceal, don’t feel.”

On January 3, the day after the wedding, Elsa executes the following deed:

“Whiteacre, from Elsa to Hans and Anna as tenants by the entirety.”

The couple quickly signed the paperwork, and ran onto Whiteacre to enjoy their new home. Whiteacre was the only property the couple would acquire. Later that day, Hans’s grandmother dies in a horrific ice fishing accident. The grandmother’s will left all of her property to her husband, Hans’s grandfather.

On February 1, Anna invites Elsa to Whiteacre. Anna has an idea to create something—or more precisely, someone. Anna asks “Elsa, do you want to build a snowman?” Elsa, not interested, replies “Go away, Anna.” Begrudgingly, Anna says, “Okay, bye.” Yet, later that day, Elsa agrees to Anna’s idea. With her magical powers, Elsa conjures up a pile of snow. Then Anna rolls the giant snowballs and she builds the snowman. Elsa puts sticks inside the snowballs to create arms, and adds a carrot for a nose. With a spark of Queen Elsa’s magic, the snowman comes to life! They call the snowman Olaf. Olaf chimes in, not ironically, “Just imagine how much cooler I’ll be in summer.” Soon the sisters start bickering over the snowman. Anna insists it was her idea to create him. Elsa counters that it was her magic that brought Olaf to life.

Anna grabs Olaf, and Elsa screams “Let it go! Let it go!” Soon Elsa’s powers get the better of her, and she creates a massive ice cave around them. Soon, the two sisters are trapped in the frozen fortress of solitude. Though they are on Whiteacre, within the limits of the Kingdom of Arendelle, they may as well be thousands of miles away. The ice is so thick that experts determine it will be impossible to drill through the walls to rescue the sisters. They will have to wait for warmer temperatures so the ice can thaw. Hans bangs on the ice walls, furious that he cannot enter.

To avoid dying of dehydration, Elsa uses her powers to melt Olaf, and she drinks him. “Desperate times call for desperate measures. The cold never bothered me anyway,” she says.

Realizing that she had the power to melt the frozen fortress, Else proposes a deal to Anna. Elsa demands that Anna give her a lease to Whiteacre, in exchange for releasing her from the ice cave. Anna, fearing for her life, writes the following lease on March 1:

“From Anna to Elsa, starting on March 1, a lease for Whiteacre for so long as Anna lets Elsa live there, for 100 pieces of silver per month.”

Elsa, thrilled with the transaction, inadvertently shoots Anna with a blast of cold air, freezing her heart. Anna cries out that “Only the act of true love will thaw a frozen heart.” Anna knows that unless her heart is thawed by her true love, she will die.

On April 1, Elsa finally melts the fortress. Hans, learning of Anna’s condition, leans in to kiss her. He says, “I am your true love.” But at the last minute, Hans pulls back, and says, “if you die, I get Whiteacre all to myself. Good luck with that frozen heart. I’m out of here.” Anna is furious at him.

That day, Anna executes and records the following deed:

“Whiteacre, from Anna to Anna.”

Then Anna updates her will, with all the proper witnesses and attestations:

“I leave all of my property, real and personal, to my sister Elsa, and nothing to Hans.”

The next day on April 2, Anna dies. Anna’s estate is probated on April 10. Hans learns that Anna disinherited him, and he is furious!

On May 1, Elsa returns to Whiteacre and cries out, “I figured out what true love is. The truest love is the bonds between sisters.” With that affection, Anna’s lifeless corpse magically returned to life.

Then, Elsa tells Hans and Anna, “I’m not going to pay any rent for my lease on Whiteacre, and I’m moving out today.” To that date, Elsa had not paid any rent for her lease on Whiteacre.


Following this chain of frozen events, neither party would “let it go,” and a series of suits are filed in the original jurisdiction of the Arendelle Supreme Court.



  1. Hans filed an action in replevin against Anna for the return of the diamond ring. Anna counterclaimed that she does not have to return the ring. Hans’s grandfather, the sole heir of Hans’s grandmother, counterclaimed, and asserted that he is the lawful owner of the ring. Please address the strongest argument in favor of each party: (a) Hans, (b) Anna, and (c) Hans’s grandfather, the sole heir of Hans’s grandmother.
  1. Anna files suit against Elsa for destruction of her property—Olaf. Elsa counterclaimed, asserting that Olaf was her property. Please discuss who acquired property of Olaf through creation? Address the strengths and weaknesses of each of their claims. (A criminal prosecution for the murder of Olaf will be held in a separate court proceeding).
  1. The Chief Justice asks you to address the validity of the lease signed while Anna and Elsa were in the frozen fortress on March 1. Specifically, the Chief Justice asks you to address the state of Arendelle’s property laws within the frozen cave. Please draw on all sources of law—both positive and natural—in addressing this question.
  1. Please describe the estate of Whiteacre for Anna and Hans on the following dates:

(a) on January 3 following the wedding of Anna and Hans, and Elsa’s deed;

(b) on February 1 following the creation of the ice fortress;

(c) on March 1 following the execution of the lease by Anna (assuming it was valid);

(d) on April 1 following the execution of Anna’s deed;

(e) on April 2 following Anna’s death. Specifically, discuss how Anna’s will affects Hans’s interest in Whiteacre.

  1. Hans sues Elsa for a breach of the lease, and unpaid rent. Elsa counterclaims that she does not owe Hans anything. Anna does not participate in this suit. Assuming the lease is valid, address the strongest arguments of Hans and Elsa. If Elsa owes rent, how much is owed?

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Dec 17, 2014

Congressional Ban on Marijuana Prosecutions Poised to Become Law

I previously praised an amendment to the Cromnibus in Congress that would prohibit DOJ from prosecuting marijuana crimes in states where it is legal. Now it looks like this provision is poised to become law.

Under the provision, states where medical pot is legal would no longer need to worry about federal drug agents raiding retail operations. Agents would be prohibited from doing so.

I think the amendment is broader, and would ban prosecutions in any state where distribution and possession is legal, whether medicinal or otherwise.

Although, as a reflection that not even newspapers know the difference between statutes and executive actions, the L.A. Times writes:

The Obama administration has largely followed that rule since last year as a matter of policy. But the measure approved as part of the spending bill, which President Obama plans to sign this week, will codify it as a matter of law.

I don’t think that means what they think it means.

Doug Berman reports that a defense attorney has moved to postpone a sentencing for a marijuana crime in California, until after the law is signed. At that point, DOJ would have to drop the prosecution.

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Dec 16, 2014

House Minority Report: King v. Burwell Will Eliminate $65 Billion in Tax Credits

The Minority Staff of the House Committee on Energy an Commerce has released a district-by-district report explaining the impact of the Supreme Court’s decision invalidating the tax credits, in each district. In total, they estimate $65 billion will be lost.

The report from Rep. Henry Waxman, ranking member on the Energy and Commerce Committee, details the impact that a ruling against the law in the case, King v. Burwell, would have on taxpayers in every zip code.

“If the law’s opponents succeed, they will deprive Americans of $65 billion in tax credits, making it more difficult for millions of middle class families to have the health insurance coverage they need,” Waxman, one of the authors of the Affordable Care Act, said in a statement Tuesday.

The states with the most subsidies at stake include Florida, which stands to lose $12.2 billion; Texas, which could lose $8.5 billion; and North Carolina, which could lose $4.5 billion.


Though, the other way to think about it is that $65 billion is being spent illegally. People should also be troubled by that, but not likely.

This report is a handy guide for constituents to call their representatives when the tax subsidies go away. I’m sure Waxman was tempted to include the switchboard numbers. This is why Congress should start planning for this now, not later.

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Dec 16, 2014

The Take Care Clause and Prosecutorial Discretion

At the Originalism Blog, Mike Ramsey expressed his doubts about my view on executive action, noting that there is nothing in the Take Care clause that prohibits a categorical decision not to enforce elements of the law.

I have been planning on doing some more thinking about the “Take Care” clause itself, and his post has motivated me to dig further.

I think there are a few textual hooks in Article II to think about. First, the President must “take care.” Second, he must do so “faithfully.”

What does “faithfully” mean? It would seem to impose some kind of “good faith” standard. Now, is that an objective “good faith” standard–that is, what would Congress want the President to do in such a situation. Or a “subjective” good faith standard–that is, how does the President view his own independent duty to execute the law. I could go either way on this question, but I think a colorable argument can be made that the former is better.

The President serves as a “faithful” agent of Congress, charged to execute the laws it enacts. (This is the basis of the modern administrative state and the non-delegation doctrine). The President always has an independent constitutional duty to not obey unconstitutional laws, but the President still must be a faithful steward of the laws of Congress.

It is here that I think the disconnect occurs. It is very true that Congress only appropriates a fraction of the amount of money necessary to enforce all drug crimes. But it does so, knowing that the threat of enforcement nationwide serves as a deterrent to committing these crimes (I’m sure there are reams of legislative history on this point). When the President categorically declines to enforce the drug laws in several states, the deterrent effect–which Congress asked the President to execute–is eliminated. Here, I don’t think it can be said the President is acting as a faithful agent of Congress. In fact, he is thwarting what Congress designed. With respect to immigration, the President has said as much, that he thinks the laws are “broken” and he wants to change it.

I’m still giving this topic thought, so my analysis is tentative.

Update: Timothy Sandefur offers more thoughts on the text of the Constitution in response to Ilya Somin’s article in Reason (which I will respond to in due time).

First, Tim has similar thoughts about the weight of the word “faithfully.”

First, the language of the Constitution. This clause may be the most mandatory language in the entire document.* Not only does it use the word “shall”—the President shall take care, not “should” or “ought to” or “can”—but what he shall do is “take care.” Not just that he shall enforce the law, but that he shall take care to enforce it. And not even just enforce the law—but he shall “faithfully execute” the law. He isn’t supposed to just execute the law, but he shall take care to execute it faithfully. He shall execute it in good faith. He shall execute the law in a manner that is faithful—true to their letter and spirit; sincere; loyal.

That term “faithfully execute” is found elsewhere in the Constitution: the President must take an oath that he “shall faithfully execute the office of President of the United States.” His obligation to execute the law is thus equal to the very oath that he must take before entering the office of President. In short, the Take Care Clause is pitched at the highest register of constitutional obligation.

Tim also weighs in on the issue of suspensions, with citations to the Virginia Bill of Rights and the 1689 Bill of Rights:

This provision was written for the sole purpose of preventing the President from suspending enforcement of the laws of the United States. As the Virginia Declaration of Rights declared, “all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people, is injurious to their rights and ought not to be exercised.” In this, the Declaration was reaffirming a provision in the English Bill of Rights of 1689: “That the pretended power of suspending…the execution of laws, by regal authority, without consent of parliament, is illegal.”

There is no other reason for this constitutional sentence except to prohibit the President from choosing to suspend the enforcement of duly enacted laws—and if you were going to write a constitutional provision to prohibit the President from refusing to enforce the laws, and wanted to write that provision in the strongest possible terms, you would use exactly the language that this provision uses. You would mandate in the strongest language of the Constitution, that the President take care faithfully to execute the laws.

The prohibitions on “suspension” in the Virginia Bill of Rights and the 1689 Bill of Rights that I’ve quoted above were largely inspired by the King issuing patents to bar application of the Test Oath. Those didn’t prohibit future prosecutions. They just suspended the application of the laws. (Royal courts held this to be constitutional, which is why the Bill of Rights was necessary.) Thus prohibitions on future prosecution aren’t synonymous with illegal suspension of the law, nor the sine qua non of faithlessness under our Constitution.

And citations to Justice Story:

Justice Story explains: “The great object of the establishment of the executive department is, to accomplish…a faithful execution of the laws…. The true interpretation of the clause is, that the President is to use all such means as the Constitution and laws have placed at his disposal to enforce the due execution of the laws. As, for example, if crimes are committed, he is to direct a prosecution by the proper public officers, and see, that the offenders are brought to justice.” Familiar Exposition, §292.

There is thus not only no basis in the Constitution for concluding that the President may decide upon a policy of refusing to enforce the law simply because he disagrees with it, but such a proposition is obviously contrary to the spirit, and to the plainest possible letter, of the Constitution.

Tim makes a strong point–not being able to enforce all of the laws due to limited resources is acting faithfully. Not enforcing them due to policy disagreements is not faithful.

What are Prof. Somin’s reasons for saying that Pres. Obama’s decision not to enforce the law because he doesn’t like the law is “well within the scope of executive authority under the Constitution”? His answer is that because a President and his deputies have limited resources and must therefore prioritize what crimes to punish, they inevitably leave some crimes unpunished, and this is no different from that.

Of course, it is completely different—and the difference lies in the word that Prof. Somin essentially ignores: “faithfully.” A President who tries, but is unable, to prosecute all crimes because of his limited resources is not acting unfaithfully—he’s doing his best, but can’t do everything. Nobody would contend, and nobody has contended, that the President is untrue to his obligations in such cases. But where the President chooses not to enforce a law for a corrupt reason—for an unfaithful reason—he does violate his oath. …

Why is it unfaithful to simply proclaim that someone hasn’t violated the law at all, so as to prevent future prosecution, but not unfaithful to refuse to enforce the law now, thus preventing prosecution now, and possibly in the future, for the purpose of obstructing the due administration of the law, which is what Pres. Obama is doing? Prof. Somin gives us no answer. He says that the President “cannot choose which offenders to prosecute based on the race, sex, religion, or political views of the potential defendants,” because apparently this would be “unfaithful.” Yet he says that the President can choose which offenders not to prosecute, based on similar factors—based on his own sense of compassion, identity politics, and personal policy preferences. Why is one okay and one not? Again, Prof. Somin gives no answer.

Thus, notwithstanding his protestations to the contrary, Professor Somin, like Professor Obama, has read the word “faithfully” out of the Constitution.





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Dec 16, 2014

WDPA Finds DAPA Executive Action on Immigration Unconstitutional

A Federal District Court in the Western District of Pennsylvania (where I clerked for a different judge) has found DAPA, President Obama’s executive action on immigration was unconstitutional. Jon Adler links to the opinion. First, as a threshold matter, the procedural posture of this case is somewhat odd. Adler writes:

The case involves an individual who was deported and then reentered the country unlawfully. In considering how to sentence the defendant, the court sought supplemental briefing on the applicability of the new policies to the defendant, and whether these policies would provide the defendant with additional avenues for seeking the deferral of his deportation.  In this case, however, it’s not entirely clear it was necessary to reach the constitutional question to resolve the issues before the court with regard to the defendant’s sentence.

In fact, after the analysis finding that DAPA is unconstitutional, the court concluded that it did not apply to the defendant. Even the most basic avoidance cannon would say this was a serious reach. It would have been appropriate, if at all, to say that because the policy doesn’t apply to the defendant, there is no need to reach the constitutionality of DAPA. But the court did the exact opposite.

With that being said, I’d like to offer some preliminary thoughts on the merits of the case, which serve as a preview of things to come in Texas’s DAPA challenge. After walking through the OLC memo, and analysis of the policy, the opinion cites President Obama’s numerous statements explaining that executive action on immigration of this scope would be unlawful.

The core of the analysis is on p. 18-22. First, the court makes a point I’ve been repeating since the summer (SSRN and National Review)–“inaction by Congress does not make unconstitutional executive action constitutional.”



The mere fact that Congress says on to a President does not license him to expand the scope of his executive powers. This was a point that ll 9 Justices agreed upon in Noel Canning.

The court also uses an example I have oft-repeated: could the President use prosecutorial discretion as a means to implement a lower income tax rate?



The court concludes that this executive action “creates laws.”



Next, the court explains why this executive action “goes beyond prosecutorial discretion” and amounts to “legislation.” In short, rather than examining individuals on a “case-by-case” basis, it “provides for a systematic and rigid process” to treat individuals different. Those who “fall within these broad categories” will receive “substantive rights.” This echoes a point I made in National Review–even if DAPA (as well as DACA) is defensible in theory, in practice it is designed to eliminate any meaningful discretion, and rather is designed to amount to a blanket waiver.


The court is right that “the threshold criteria will almost wholly determine eligibility.” I should add that these “threshold criteria” were set by the President after “60 iterations” and telling the lawyers to go further. This “formulaic application of criteria” is a rubber stamp.

Second, the president is not only rearranging his priorities, but also “provides for a process by which undocumented immigrants will become quasi-United States Citizens.”


Making this point eloquently is President Obama. Although DAPA, formerly known as IAEA, only offers a two-year reprieve from deportations, the President admitted what is obvious–once the immigrants receive some status, it will be politically impossible for any future president to remove them.

“It’s true a future administration might try to reverse some of our policies. But I’ll be honest with you — the American people basically have a good heart and want to treat people fairly and every survey shows that if, in fact, somebody has come out and subjected themselves to a background check, registered, paid their taxes, the American people support allowing them to stay. So any future administration that tried to punish people for doing the right thing, I think, would not have the support of the American people,” Mr. Obama told a supportive crowd at a town hall meeting in Nashville. “It’s true, theoretically, a future administration could do something that I think would be very damaging. It’s not likely,politically, that they reverse everything we’ve done.”

This candor makes the President’s claim about the limited scope of the order even less plausible. This quotation should be cited prominently in any motion for a preliminary injunction to show irreparable harm.

Then, the court concludes that DAPA is unconstitutional:


Although I find much of the analysis persuasive, the conclusion simply does not follow. It isn’t clear why the court was even in a position to find the law unconstitutional, nor is it clear what this declaration means. Oh, to be the AUSA who has to tell his/her boss about this order…

I am co-authoring an article that will appear in the Georgetown Law Journal Online on the constitutionality of DAPA. It should appear this spring, and will be on SSRN by the end of the month. Stay tuned.

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Dec 16, 2014

Back to the Future of Property

Here is the first question of my Property I final, inspired by the Back to the Future Trilogy. I managed to work in the time-traveling DeLorean with trips from 1985 to 1955, 2015, alternate 1985, 1885, and back to good ‘ole 1985. Marty (here Arty) travels through time to figure out the title to Blackacre. See if you can catch all the references. I worked in a number of verbatim quotes, and scenes from the movie. The almanac that Doc takes from Marty, dumps on the trash can, and is then taken by Biff, is a perfect test for mislaid and abandoned property.

Question 1 (50%)


Today is June 1, 2015. But this case begins in the year 1985, where hair was big, jeans were ripped, and everyone was looking for the beef. Then it jumps back in time to 1955, where hair was quaffed, jeans were tight, and everyone liked Ike. But not before a final detour to 1885, where hair was covered, jeans were riveted, and everyone was looking for gold.

You are an associate in the law firm of Bach, Tew, DaFütcher LLP. You are asked to prepare a memo of no more than 500 words that analyzes a series of property disputes that occur in 1885, 1955, 1985, and 2015, among Arty, Biff, Doc, George, Lorraine, Seamus, and Tannen. This case is currently pending before the District Court of Hill Valley, Texas. Texas adheres to all common law property rules, as articulated in the Restatement (First) of Property. For purposes of this case, assume that the court has jurisdiction over all claims; none of the claims are barred by any statute of limitations; and the Rule Against Perpetuities, or any other principle that destroys future interests, do not apply.


Arty comes from a long line of residents in Hill Valley, Texas. Arty, a 17-year old, lives with his mother Lorraine and his father George. George was born in 1885. George, who was orphaned at a young age, was raised by his grandfather Seamus. Seamus, Arty’s paternal great-grandfather, was born in 1840 and died in 1940.

Arty’s family has been in the town since the middle of the 19th century, and has long had an interest in Blackacre. However, due to a fire in the records office, all deeds concerning Blackacre were lost. With the state of property in Hill Valley in ashes, Arty has an idea. His friend Doc built a time machine out of a DeLorean sports car. With the DeLorean, they decided to travel through time in an excellent property adventure, to research the history of Blackacre. Alas, as with all time travel, there would be many unintended consequences.

Blasting a Huey Lewis & the News cassette tape, Arty and Doc rev up the plutonium-powered DeLorean to 88 miles per hour, and drive back in time. Their first stop was 1955, to investigate the estate of Blackacre.


After breaking the space-time continuum to travel back to “good ‘ole 1955,” Arty and Doc go to the Hill Valley Courthouse, and discover a deed for Blackacre, which was recorded in year 1885.

From Seamus, all of the land on Blackacre to my grandson George for life, then to George’s first born son, but if any issue of George’s first-born son are ever convicted of a crime, then to Doc and his heirs.

Doc is really confused. He wasn’t born until 1930, and there was no one else living in Hill Valley in 1885 with that name (he checked the census!). How could Arty’s great-grandfather possibly give him an interest in Blackacre? Arty was secretly happy, as he knew he would be George’s first-born son—even though he would not be born for another 12 years. Blackacre was his soon enough, he thought! Arty and Doc make a copy of the deed for Blackacre.

Having messed enough with the past, Arty and Doc decide to venture into the great unknown—the year 2015. Blasting Elvis Presley from their AM radio, the duo went back to the future.


Miraculously, in the brief period between December 2, 2014 and January 1, 2015, there was a technological revolution. Now there are flying cars, robots doing chores, and kids floating around on hoverboards.

Arty and Doc go to the Hill Valley Courthouse to check up on the state of Blackacre. Just as they enter, they see some teenager flying on a hoverboard in front of the Courthouse. Out of nowhere RoboCop knocks over the hoverboard, and screams “Arty Jr.” you are under arrest. “For what?!” the teen screams. The officer replies, “For selling your kidney. You have the right to remain silent…” Ignoring the warning, Arty Jr. shot back and said, “It’s my body and I can do what I want!” It seems young Arty Jr., who was in the need of some extra cash, sold his kidney on the black market, in violation of Texas’s ban on organ sales. RoboCop laughs, and says his trial would be scheduled next week (justice moves much faster in 2015–just you wait!).

Arty panics, and realizes the teen, who looks just like him, is his son in the future! Arty decides he must go back in time to prevent his son from getting convicted. Doc, for reasons we shall see, isn’t so keen on changing that past.

But before they venture back in time, Arty has a genius idea. He goes to the Hill Valley Bookstore and buys a sports almanac that lists the results of all sporting events in the 20th century. Arty decides that he can travel back in time, and place bets on all the winning teams. Easy money!

Doc is furious with his idea. He steals the almanac out of Arty’s hands, and throws it on top of an overflowing garbage can outside of the Bookstore. The almanac teeters on top of the trash. Doc tells him that he should not be profiting from the future.

Lurking in the shadows was Biff. Biff—who 60 years earlier was rejected by Arty’s mother Lorraine—seized on this opportunity. While Arty and Doc were fighting, Biff finds the almanac atop the garbage can, takes it, hops in the DeLorean, and travels back to 1955. He then gives the almanac to his younger self in 1955. The Biff of 2015 explains to the Biff of 1955, “this book tells the future. All you have to do is bet on the winning team.” Biff then returns back to 2015, before Arty and Doc even realize the DeLorean is gone. But Biff had already changed the course of time. The 1955 Biff proceeds to place winning bets on all sporting events. By 1985, Biff became a billionaire, and is called the “Luckiest Man on Earth.”

Totally unaware of Biff’s time-travels, Arty and Doc agree to go back to 1985, and leave the future as it is. They hop into the DeLorean, and turn on the satellite radio. They are confused by someone named Miley Cyrus singing about “twerking.” As they accelerate to 88 MPH, the time machine is struck by lightning, scrambling the time circuits. Rather than going back to 1985, they hop a century earlier, winding up in 1885.


In 1885, Hill Valley was still a frontier town. Arty goes to Blackacre to check on the land. Arty’s great-grandfather Seamus, was standing on Blackacre, holding his recently orphaned grandson, the boy George. Arty, without revealing his identity asked how Seamus acquired Blackacre. Seamus replied that his father had acquired it from the Texans, a Native American tribe, in 1823, and it has stayed in the family since. Arty asked if there was any deed to show that Seamus owned it. Seamus, suspicious, fires his rifle at Arty.

Arty dodges the shot, but the bullet ricochets and strikes the ground. Immediately, a burst of oil starts gushing up. “Oil! Black gold! Texas tea!” Arty screams! Seamus has no idea what oil even is, so he ignores him. Without telling Seamus, Arty starts to pump oil from the ground.

The next day, Seamus’s neighbor Tannen, who owns the adjacent Whiteacre tells Arty to stop drilling. Tannen said, “you are taking oil from the reserves underneath Whiteacre.” Arty replied, and said, “Has anyone ever drilled here before”? Tannen replied, “No.” Arty laughs, and says “Too bad! Now all the oil is mine forever!”

Seamus, a simple farmer, finds out about Arty’s acts, and becomes enraged. He executes and records a deed to make sure that Blackacre stays in his family. And if it doesn’t, he wants it to go to his newfound friend Doc. The deed provides:

From Seamus, all of the land on Blackacre to my grandson George for life, then to George’s first born son, but if any issue of George’s first-born son are ever convicted of a crime, then to Doc and his heirs.

(This was the deed Arty and Doc discovered in 1955).

Little did Seamus know, that the jerk who was drilling on his land would become George’s first-born son! Also, Seamus did not realize that his newfound friend Doc was actually from the future, and hadn’t even been born yet!

Seamus struck the drilling equipment with a sledgehammer, and stopped the pumping. The oil reserves underneath would remain dormant for 100 years.

Arty and Doc hop back into the DeLorean, humming the tune of “Home on the Range,” for one last trip home to 1985.

Alternate 1985

However, it was not the 1985 they expected. Due to Biff’s newfound fortune, an alternate timeline emerged. In 1972 Biff killed George, and married Lorraine (Arty’s mom). Biff was now Arty’s step-father.

Arty, who was not as upset as he should have been about his father’s death, cheered, and said “I own Blackacre, and all of its oil!” Arty then began drilling again on Blackacre, and discovered one of the largest reserves in North America.

Doc confronted Biff. Doc said, “you stole my almanac.” Doc demanded that Biff return the almanac. Biff laughed at him, and said “Hello, hello, anyone home! Think! I don’t owe you anything. Arty bought the almanac, not you!”

Over the next thirty years, soaked in oil money, Arty forgot about his time-travelling adventures, and started a family. His first son Arty, Jr. was born in 2000. Despite his massive wealth, Arty would not give his kid any money, leading his son to explore other means of getting cash. Ultimately, in the year 2015, Arty Jr. decided to sell his kidney for money. Alas—as we already know—RoboCop discovered the crime, and arrested him. Arty Jr. is about to stand trial for selling his organ on the black market.

This brings us back to your assignment in the year 2015. You are asked to write a memo of no more than 500 words for your senior partners analyzing the following five issues. Please pay special attention to the year in which the property dispute takes place.



  1. Doc files an action in replevin against Biff, seeking the return of the almanac. Biff counterclaims that he is the lawful owner of the almanac. The owner of the Hill Valley Bookstore intervenes, arguing that he is the rightful owner of the almanac. Arty, who is enjoying all of his oil money, asserts no claim in the almanac. Please address the strongest argument for ownership of the almanac for (a) Doc, (b) Biff, or (c) the owner of the Hill Valley Bookstore.
  1. Arty Jr. is facing a criminal conviction for selling his kidney. While Texas law prohibits the sale of organs, you are asked to create a powerful argument to force the jury to nullify. In other words, you have to persuade the jury that the law banning the sale of organs is unjust, and Arty Jr. should not be convicted. Be sure to consider all relevant ethical, legal, and economic rationales in favor of allowing organ sales.
  1. In 1885, after the dispute over the gushing oil, Seamus filed an action in the Hill Valley District Court, to quiet title, and asked the court to determine the present and future interests for Blackacre of George and Doc. The Texans Native American Tribe intervenes in that suit. How would a court in 1885 resolve that suit?
  1. Due to the peculiar nature of this time-travelling case, you are asked to identify the present and future interests for Blackacre in a very special manner.
  • At the time the deed was discovered in 1955 (before the trip back to 1885), how would a court in 1955 describe the present and future interests of (1) George, (2) Arty, and (3) Doc?
  • How would a court in the alternate 1985 (where Biff killed George), identify the present and future interests of (1) Arty and (2) Doc.
  • How would a court in 2015, assuming Arty Jr. is convicted, identify the present and future interests of (1) Arty and (2) Doc.

5. There is a dispute over the ownership of the oil reserves underneath Blackacre. There are four competing claims: (1) Arty, (2) the heirs of Tannen, (3) the heirs of Seamus (not Arty), and the (4) Texans Native American Tribe. Address the strongest argument for each claim, and conclude who should own the interest in the oil.

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Dec 16, 2014

Scalia: Kagan (not Sotomayor) is “the very best” Obama Could Pick

Justices Scalia and Kagan recently spoke at the University of Mississippi School of Law, and heaped mounds of praise on each other. Though, I think Nino may have unintentionally slighted Justice Sotomayor:

Scalia, Kagan said, “is funny and charming and super-intelligent and witty.”

“And back atcha,” Scalia quipped, adding that if he had to pick someone for President Obama to appoint, “you’re the very best.”

Scalia still isn’t too keen on dancing with SS. Perhaps he could have meant, that when Stevens retired, and Sotomayor was already on the Court, then Kagan was the “very best.” Maybe.

This reminds me of RBG’s comments that President Obama could not confirm anyone better than her.

Referring to the political polarization in Washington and the unlikelihood that another liberal in her mold could be confirmed by the Senate, Ginsburg, the senior liberal on the nine-member bench, asked rhetorically, “So tell me who the president could have nominated this spring that you would rather see on the court than me?”

This can also be seen as a jab at two Justices who were confirmed with more than 60 votes, and countless other nominees who could also make it through.

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Dec 15, 2014

After 4 Cases, {Marshall}+ Beats FantasySCOTUS (Slightly)

This term, the Supreme Court has issued four decisions from 40 argued cases. Overall, the FantasySCOTUS crowd correctly predicted 2 out of the 4 cases, for a 50% accuracy rate. {Marshall}+ correctly predicted the outcome in 3 out of 4 decisions. However, the crowd has a higher overall Justice accuracy rate of 63.89%. {Marshall}+ is less than 50% on predicting individual Justices. In other words, when the Crowd got the outcome right, it was more likely to guess the split. {Marshall}+ predicted the overall outcomes more accurately, but was less efficient with the split.  It is very early and it will be interesting to see if these trends continue as more decisions are rendered.



Warger v. Shauers

In Warger v. Shauers, Justice Sotomayor affirmed for a unanimous Court.  FantasySCOTUS nailed the decision, and quite well. The Crowd forecasted that all of the Justices would affirm, and at very high levels–all between 80% and 90%. Further, the crowds were able to forecast one of the rarest decisions, a 9-0 affirm. This is a split that {Marshall}+ does very poorly. Here, the algorithm forecasted a 9-0 reverse, all with confidence scores between 60% and 70%.


Integrity Staffing Solutions, Inc. v. Busk

In Integrity Staffing Solutions, Inc. v. Busk, Justice Thomas reversed for a unanimous Court.  Here, the algorithm beat the crowd. The Court unanimously reversed. FantasySCOTUS predicted a 6-3 reversal. The Crowd forecasted a 5-4 affirm. Specifically, of the Justices {Marshall}+ missed, the confidence scores were very low: Justice Ginsburg (55%), Sotomayor (53%), and Kagan (52%). In other words, the algorithm was very close to forecasting a 9-0 reversal, which would have been right on. Also, we should stress that Justice Sotomayor, joined by Justice Kagan, wrote a concurring opinion explaining that they agreed with a narrow conception of the Court’s holding. It is fascinating that our algorithm was able to sense their distance from the majority.Here, the crowd badly forecasted the votes of the liberal voted. FantasySCOTUS pegged Justices Ginsburg (81%), Breyer (76%), Sotomayor (83%), Kagan (80%) to affirm.  Here the algorithm caught something the crowd did not.



Dart Cherokee Basin Operating Co. v. Owens

In Dart Cherokee Basin Operating Co. v. Owens, the Court reversed in an odd 5-4 alignment. Justice Ginsburg, joined by the Chief Justice, Justice Breyer, Justice Alito, and Justice Sotomayor voted to reverse; Justice Scalia, joined by Justices Kennedy, Thomas, and Kagan voted to affirm. The crowd expected the Court to unanimously agree with the 10th Circuit. All of the votes were north 70%, so they were fairly confident. The algorithm forecasted a 7-2 reverse, which wasn’t correct, but was a lot closer. Specifically, the algorithm accurately predicted the votes of Chief Justice Roberts, as well as Justices Ginsburg, Breyer, Alito, and Kagan. But it missed the votes of Justices Scalia, Kennedy, and Thomas, who were all above 70%. Justice Sotomayor was predicted to affirm at 53%. This low value is awfully close to a reversal, which would have been correct.


Heien v. North Carolina

In Heien v. North Carolina, the Chief Justice Roberts wrote for 8 Justices to affirm; Justice Sotomayor penned a lone dissent to reverse. Both the crowd and the algorithm predicted a 5-4 decision to affirm along the usual lines. Instead, the Chief wrote a fairly narrow opinion for 8 Justices. Only Justice Sotomayor dissented. Both the crowd and algorithm predicted that Justices Ginsburg, Sotomayor, and Kagan would reverse, at over 70%. Only Sotomayor would splinter off and vote to reveres.


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Dec 13, 2014

How Judge Vinson Thwarted Bush on Surveillance and Obama on Obamacare

When Judge Roger Vinson of the Northern District of Florida voted in January 2011 to invalidate the entire Patient Protection and Affordable Care Act, there was no shortage of barbs from the left calling him a partisan hack. As I relate in Unprecedented:

Democrats, of course, saw things differently. Senator Max Baucus, the chairman of the Finance Committee who had shepherded the ACA through the Senate, declared the decision “one of the most specious and inadvisable arguments I have heard in a long time.” Sen- ator Patrick Leahy of Vermont counted the score. “A dozen federal courts have dismissed challenges to the law. Another four courts have heard arguments about its constitutionality; two have upheld the law as constitutional, and two have not. Legal challenges to the law are expected to reach the U.S. Supreme Court.”

The reaction from the professoriate was vicious.

Harvard’s Laurence Tribe, who had emailed then-Solicitor General Kagan to cel- ebrate the Democrats’ securing the votes for passage of the ACA, wrote: “Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law.” Tribe described the case as “a political objection in legal garb,” and concluded that “there is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Con- gress,” and uphold the law, which is “clearly within Congress’s power.”

Akhil Amar was even harsher. He likened Vinson’s opinion to that of another judge with the name of Roger: Supreme Court Jus- tice Roger Taney, author of the infamous Dred Scott decision, which ruled that slaves were not people protected by the U.S. Constitution. “In 1857, another judge named Roger distorted the Constitution, dis- regarded precedent, disrespected Congress and proclaimed that the basic platform of one of America’s two major political parties was unconstitutional. . . . History has not been kind to that judge. Roger Vinson, meet Roger Taney.” I suppose another nominal comparison to Justice Fred Vinson (chief justice from 1946-1953) would not have been as rhetorically powerful.

As a counterweight to these assertions that Vinson was a right-wing politician in a robe, I turn to Charlie Savage’s report showing how Judge Vinson, who sat on the FISA Court,  almost single-handedly derailed President Bush’s warrantless wiretapping program.

In January 2007, Judge Malcolm Howard issued an extraordinary order on behalf of the nation’s secret surveillance court. He interpreted the Foreign Intelligence Surveillance Act, which requires individual warrants to wiretap on domestic soil, in a way that authorized the Bush administration’s warrantless wiretapping program, according to documents declassified on Friday.

But three months later, Judge Howard’s secret order came up for reauthorization before a colleague, Judge Roger Vinson. He balked, the documents showed. Judge Vinson permitted only a short extension of the program. The Bush administration then sought legislation, the Protect America Act, that amended the surveillance act to explicitly authorize the program.

Mr. Bush’s original program had also intercepted, without a warrant, international communications involving domestic phone numbers and email addresses that the N.S.A. decided were suspected of ties to terrorism, but Judge Howard would not permit that. Instead, he issued an order granting approval to wiretap a specific list of domestic numbers.

In April, however, Judge Vinson, whose turn it was to approve the program, told the N.S.A. that he disagreed with Judge Howard’s legal theory that the N.S.A., rather than a judge, could make probable cause findings.

Judge Vinson secured the constitutional bulwarks against an overreaching expansion of federal power. He also ruled against President Bush’s surveillance program.

 In researching Unprecedented, I was struck by Judge Vinson’s careful study of the issue, and reasoned opinion. This is in contrast to the other district court that invalidated the mandate, whose opinion was quite weak by comparison.

Although, Vinson did sign the FISA order requiring Verizon to hand over call data (this was from the Snowden disclosures). The order was signed by President Obama’s FBI Director.

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Dec 12, 2014

Wired: Hack This Trial

Wired Magazine published a feature on how technology can assist legal trials.

Attorneys also have their eyes on IBM’s Watson Debater, which synthesizes information to develop arguments on different sides of an issue. “It’s developing the ability to put forth arguments in a logical way,” says Robert Weber, IBM’s senior vice president and general counsel, according to American Lawyer. “It will have lots of implications in the law.”

Sander says he and other legal tech entrepreneurs envision that a super-computer will someday do everything from researching case law to writing closing arguments.

“We’re all trying to inch closer to that by carving off tiny pieces of the big problem and making them easier,” Sander says.


There was a sub silentio reference to our work on LexPredict:

Although attorneys are, as a class, slow to change with the times, Sander is not the only software wiz pulling them into the future.

According to the ABA Journal, three law professors are developing a tool that’s predicting Supreme Court decisions with about 70% accuracy. The professors assume the tool will eventually be put to use for the lower courts, since there’s such a strong need for it.


Those law professors are Dan Katz, Mike Bommarito, and myself.

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Dec 11, 2014

Sigram Schindler Explains How He Writes Briefs

Beteiligungsgesellschaftgate continuesJacob Gershman has tracked down Sigram Schindler, and revealed some details about his professional relationship with Foley Larder. According to his declaration, Schindler writes briefs, and only allows his lawyers to “correct grammatical and spelling errors and to reword phrases into proper English.” But, he does not allow them to make substantive changes. Why was this declaration filed? Because his lawyers modified a section of the brief while hew as on a plane, and filed it without his consent.

6. Although I rely on legal counsel, in actuality, I was the primary author the ‘453 Reply Brief. In fact, footnote 4 of the ‘453 Reply Brief recognized my “significant contributions to this Brief.” Legal counsel was supposed to revise the material I prepared, to correct grammatical and spelling errors and to reword phrases into proper English, as I am a native-German speaker. I was responsible for all of the content and was to review all content before filing, to retain complete control of the ‘453 Patent Reply Brief.

7. Concerning Section II.C.3 of the ‘453 Reply Brief, legal counsel completely revised and omitted certain legal arguments from the draft I prepared. I was unavailable to review legal counsel’s revisions to Section II.C.3 prior to the filing of the ‘453 Reply Brief. The reason for this was that I was on an airplane headed back to Berlin, Germany. Accordingly, Section II.C.3 of the ‘453 Reply Brief, as filed, does not contain all of the legal arguments that I drafted.

8. I will now describe what happened the day the brief was filed. I was at Foley & Lardner LLP’s offices in DC starting at about noon on February 20, the same day that the ‘453 Reply Brief had to be filed. I then left around 2:30 pm to be able to catch my airplane. I felt a physical need to return back to Germany, as I was concerned about my health. There must have been some misunderstanding or miscommunication or mistake between legal counsel and me. I had intended Section II.C.3 of the ‘453 Reply Brief to not be revised unless there was a necessary reason to do so, but it was. Section II.C.3 was revised before filing. While I was traveling in the airplane, legal counsel had no way to contact me.

Accordingly, I had no way to approve the final version of the ‘453 Reply Brief before filing. The next day, when I reviewed a copy of the ‘453 Reply Brief, I was very surprised and upset to see changes to that section.

Schindler admits that he wrote sections of the brief himself:

6. Although I rely on legal counsel, in actuality, I was the primary author the ‘453 Reply Brief. In fact, footnote 4 of the ‘453 Reply Brief recognized my “significant contributions to this Brief.” Legal counsel was supposed to revise the material I prepared, to correct grammatical and spelling errors and to reword phrases into proper English, as I am a native-German speaker. I was responsible for all of the content and was to review all content before filing, to retain complete control of the ‘453 Patent Reply Brief.

10. Similarly, for the companion Appeal concerning the ‘902 Patent, I had drafted Sections IV-VI; Footnote 1 of the ‘902 Brief reflects this. For the ‘902 Brief, I had instructed legal counsel to prepare certain sections, while I retained control over Sections IV-VI. However, for the ‘902 Brief, I had the opportunity to review the final version of that brief before filing.

This was the same footnote that got him in trouble at the Supreme Court.

Schindler told Gershman:

“I’m shy to comment on the whole thing,” Mr. Schindler told Law Blog when reached by phone Thursday. Speaking about his case more broadly, he said his case underscores the patent system’s struggle to keep up with technological advancements that require “more intellectual precision” and command of mathematics.

I can’t imagine this declaration will help Shipley’s case, if he files briefs that his client does not allow him to edit.

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Dec 11, 2014

Arizona Brief to SCOTUS Cites President’s Statement: “I Just took an action to change the law.”

I previously remarked that the President’s comment that he “just took an action to change the law,” would become one of his most famous candid malapropisms, alongside “If you like your plan, you can keep your plan,” and that Obamacare was “not a tax.” In an emergency appeal to Circuit Justice Kennedy, Arizona cited that statement.

Like Secretary Napolitano’s DACA Program, Secretary Johnson’s expanded deferred action program is contrary to law. Simply put, the Secretary of DHS does not have the authority to unilaterally create, change or violate federal immigration law.3

3 Indeed, the President himself has stated that he “just took an action to change the law.” Eric Bradner, Obama to immigration hecklers: ‘I just took an action to change the law,’ CNN (Nov. 26, 2014),

This isn’t the first time the President has admitted he changed the law. In August, he admitted that he made a “temporary modification” to Obamacare:

One of the main objections that’s the basis of this suit is us making a temporary modification to the health care law that they said needed to be modified.  (Laughter.)  So they criticized a provision; we modify it to make it easier for business to transition; and that’s the basis for their suit.  Now, you could say that, all right, this is a harmless political stunt — except it wastes America’s time.  You guys are all paying for it as taxpayers.  It’s not very productive.  But it’s not going to stop me from doing what I think needs to be done in order to help families all across this country.  (Applause.)

I would add that another recent quotation from the President should be added to the “irreparable harm” inquiry:

“It’s true a future administration might try to reverse some of our policies. But I’ll be honest with you — the American people basically have a good heart and want to treat people fairly and every survey shows that if, in fact, somebody has come out and subjected themselves to a background check, registered, paid their taxes, the American people support allowing them to stay. So any future administration that tried to punish people for doing the right thing, I think, would not have the support of the American people,” Mr. Obama told a supportive crowd at a town hall meeting in Nashville. “It’s true, theoretically, a future administration could do something that I think would be very damaging. It’s not likely, politically, that they reverse everything we’ve done.”

He even used the word “damaging.” In other words, once this program begins, it cannot be undone, by another President.


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Dec 11, 2014

Can a District Court Issue a Nationwide Injunction?

In a previous post, I noted that Texas sought a “nationwide” injunction against the enforcement of DAPA. Joshua Block of the ACLU kindly noted that the government often argues that “comity between circuits prevents nationwide injunctions.” Joshua pointed me to the 2010 government’s emergency motion for stay pending appeal to the 9th Circuit in the Don’t Ask, Don’t tell case (If you can remember that far, that was back when the Obama administration was defending the law). In this case, the district court issued a nationwide injunction, and the government objected. So could the district court in Texas issue a nationwide injunction? This history of the DADT litigation is very instructive to understand what may come next.

The District Court’s found that DADT was unconstitutional, and issued a nationwide injunction against all DOD officials:

(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command;

In its orders (p. 121 of PDF) the district court acknowledged that its order prevents the government from defending the constitutionality of DADT in other district courts.

To the extent that Defendants’ reference to “other courts” is intended to refer to other district courts, Defendants are correct that this injunction will prevent them from defending the constitutionality of the Don’t Ask, Don’t Tell Act. As discussed above, the proper remedy for the relief sought here is complete invalidation of the Don’t Ask, Don’t Tell Act. As such, Defendants are bound by this Court’s ruling. Further, if Defendants’ objection is that they will be unable to defend current or future as- applied challenges, Defendants once again fail to recognize the nature of Plaintiff’s challenge. Plaintiff did not prevail on an as-applied challenge, which would have rendered the Act unconstitutional as applied to it but not affected the constitutionality of the Act overall. Rather, Plaintiff challenged the constitutionality of the Act on its face and requested an order permanently enjoining the Act’s enforcement. As the Court deems this remedy proper, Defendants are unable to defend the Act in as- applied challenges. Likewise, if Defendants’ objection is that they will be unable to defend current or future facial challenges to the Act, the same reasoning applies. To the extent that Defendants’ reference to “other courts” indicates higher courts, Defendants’ recourse, if they wish to defend the Act further, is to appeal this Court’s ruling.

Second, the district court observed that there was no precedent justifying the government’s arguments that a single district court cannot issue a nationwide injunction:

Defendants next argue that the Court should not issue a nationwide injunction because other circuit courts have found the Act constitutional. Defendants cite no case in which a court finding a federal statute unconstitutional on its face has limited its ruling to a particular judicial district.

Third, the district court turns to the government’s interest in preserving “comity” among the courts of appeals:

The Court next turns to Defendants’ argument that comity prevents the Court from issuing a nationwide injunction. As noted above, of the four circuit cases holding the Don’t Ask, Don’t Tell Act constitutional, Cook is the only case decided after Lawrence and accordingly the only one relevant here. … The doctrine of comity is not a rule of law, but rather is grounded in equitable considerations of respect, goodwill,  cooperation, and harmony among courts ….

In AMC Entertainment, the United States brought suit against a national movie theater owner alleging that some of its theaters violated Americans with Disabilities Act (“ADA”) regulations. 232 F. Supp. 2d 1092 (C.D. Cal. 2002) (hereinafter “AMC Entm’t (C.D. Cal.)”). The district court granted the government’s motion for summary judgment and issued a nationwide injunction requiring the defendants to comply with the ADA regulations, and the defendants appealed. Id.

The Ninth Circuit began its analysis by recognizing that district courts have the power to issue nationwide injunctions. AMC Entm’t (9th Cir.), 549 F.3d at 770-71 (“Once a court has obtained personal jurisdiction over a defendant, the court has the power to enforce the terms of the injunction outside the territorial jurisdiction of the court, including issuing a nationwide injunction.” (citing Steele v. Bulova Watch Co., 344 U.S. 280, 289 (1952) (“the District Court in exercising its equity powers may command persons properly before it to cease or perform acts outside its territorial jurisdiction“); United States v. Oregon, 657 F.2d 1009, 1016 n.17 (9th Cir. 1981) (“When a district court has jurisdiction over all parties involved, it may enjoin the commission of acts outside of its district.”))).

Nevertheless, the divided Ninth Circuit panel went on to hold that the district court abused its discretion by issuing a nationwide injunction because “the principles of comity” should have constrained the court from enjoining defendants’ theaters in the Fifth Circuit, which previously had held defendants’ theaters did not violate the ADA. AMC Entm’t (9th Cir.), 549 F.3d at 772-73 (observing that the Fifth Circuit “judicially repudiated” the reasoning adopted by the district court “when considering the same arguments” enforced in the district court’s injunction). The panel held:

Principles of comity require that, once a sister circuit has spoken to an issue, that pronouncement is the law of that geographical area. Courts in the Ninth Circuit should not grant relief that would cause substantial interference with the established judicial pronouncements of such sister circuits. To hold otherwise would create tension between circuits and would encourage forum shopping.

Id. at 773.

AMC Entertainment is distinguishable from the present case because the former turns on statutory construction, not on fundamental constitutional rights. As Plaintiff argues, “Whatever may be the merits [of comity] in the context of statutory construction — where, for example, our legal system tolerates differing rules in different circuits for issues of the law of bankruptcy, securities, antitrust, tax, and the like — it can hold no sway on issues of constitutional rights.” (Resp. at 7.) The Court agrees that the fundamental constitutional rights at issue here must trump considerations of comity. To hold otherwise would create an untenable result in which Defendants could, pursuant to the Act, discharge servicemembers in Maine, Massachusetts, and New Hampshire, but not elsewhere. The doctrine of comity is rooted in equity; here, the balance of equities decisively tips in favor of upholding the fundamental constitutional rights protected by the First and Fifth Amendments to the United States Constitution.

The government filed an emergency motion for a stay to the 9th Circuit, arguing that it would be disruptive to stay the policy, and opposed the nationwide nature of the injunction (and really worldwide, as DOD personnel are stationed around the globe):

Finally, even though this case is not a class action, the district court erred in awarding what is in essence classwide relief – enjoining application of the statute to any member of the military anywhere in the world – in this case brought by a single organizational plaintiff purporting to advance the interests of two individuals. Injunctive relief is an extraordinary remedy and “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979); see also Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2760 (2010) (narrowing injunction in part because the plaintiffs “do not represent a class, so they could not seek to enjoin such an order on the ground that it might cause harm to other parties”); Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (noting that “neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs”); Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983) (“A federal court . . . may not attempt to determine the rights of parties not before the court.”); Nat’l Ctr. for Immigration Rights v. INS, 743 F.2d 1365, 1371-72 (9th Cir. 1984). The Supreme Court acted in accordance with this principle by staying an indistinguishable militarywide injunction entered by a district court in a facial constitutional challenge to the prior, more restrictive military regulations regarding gays and lesbians. See Dep’t of Defense v. Meinhold, 510 U.S. 939 (1993) (issuing a stay pending appeal of the portion of an injunction that “grant[ed] relief to persons other than [the named plaintiff]”). This Court subsequently reversed the district court’s decision to enter a militarywide injunction because the plaintiff was challenging his own specific discharge, see Meinhold v. Dep’t of Defense, 34 F.3d 1469, 1480 (9th Cir. 1994), and there is no reason for a different result here.

The DADT precedent does not seem directly on point in the immigration context. The district court in Texas would not be “awarding what is in essence class-wide relief” in a “case brought by a single organizational plaintiff purporting to advance the interests of two individuals.” Rather, it would be stopping the implementation of a policy that violates the separation of powers, and will impact the 17 states in the suit, and like all 50.

The brief also addresses the comity issue:

The district court’s worldwide injunction also inappropriately interferes with the development of the law in other circuits. The Supreme Court has made clear that “the Government is not in a position identical to that of a private litigant, both because of the geographical breadth of government litigation and also, most importantly, the nature of the issues the Government litigates.” United States v. Mendoza, 464 U.S. 154, 159 (1984). This Court has held, moreover, that “[p]rinciples of comity” prevent a district court from issuing an injunction that “would cause substantial conflict with the established judicial pronouncements” of a sister circuit. United States v. AMC Entm’t, Inc., 549 F.3d 760, 773 (9th Cir. 2008).3 If the district court’s injunction is not stayed, it effectively would overrule the decisions of other circuits that have upheld § 654, and preclude consideration of similar issues by other courts. See Va. Society for Human Life, Inc. v. Fed. Election Comm’n, 263 F.3d 379, 394 (4th Cir. 2001) (relying on Mendoza to limit an injunction in a facial constitutional challenge to a Federal Election Commission regulation).

As a counter to this argument, 17 states united in one single suit. To my knowledge, there are no plans for any other states to bring this type of suit. There will not be any other circuit cases on this. Comity seems like a nonstarter. (Sherriff Joe Arpaio brought a suit in D.D.C. against DAPA, but he does not possess the “special solicitude” of the states). In fact, all of the states bringing a suit in a single district creates the best-case scenario for promoting comity. There will be no circuit splits.

Further one obvious difference–in DADT the ex ante status quo is being disrupted by an injunction; with immigration the ex ante status quo is being maintained with an injunction. Once the policy goes into effect, it will be impossible to roll it back (as the President helpfully reminded us). There can be no claim of disruption–short of messing up planning of DAPA–if it is enjoined before anyone signs up. Now, to the extent that people are approved for it, and receive working papers, the equities shift.

Finally, the government argued that the relief would only be limited to the plaintiffs in this case.

The district court recognized that its injunction would prevent the government “from defending the constitutionality of the” statute, Inj. Order 9 (Attachment D), but contended that these principles were inapplicable because Log Cabin challenged the statute on its face rather than as applied, id. at 4, 9. The district court cited no authority for the proposition that the plaintiff’s legal theory changes the permissible scope of the relief and that proposition is not correct. See, e.g., Va. Society, 263 F.3d at 394 (narrowing nationwide injunction to the plaintiff in facial constitutional challenge); Zepeda, 753 F.2d at 727 (same); Nat’l Ctr. for Immigration Rights, 743 F.2d at 1371-72 (same). A criminal defendant, for example, who successfully claims that the statute he is being prosecuted under is facially unconstitutional gets his conviction reversed – not an order preventing the government from prosecuting anyone under the statute. Contrary to the district court’s apparent view, Inj. Order at 4-5, this is not a case in which granting relief to nonparties is necessary to afford the plaintiff complete relief. See Bresgal v. Brock, 843 F.2d 1163, 1171 (9th Cir. 1987) (upholding an injunction extending relief to nonparties because the injunction could not be tailored to apply only to the parties). Here – assuming (contrary to our submission) that some form of injunction was permissible – the injunction should have been limited to any individuals that Log Cabin properly represented.

The 9th Circuit granted a stay (O’Scannlain, Trott, W. Fletcher). Here is a summary of the government’s argument:

On October 12, 2010, the district court entered a permanent injunction enjoining the enforcement or application of an Act of Congress known as the “Don’t Ask, Don’t Tell Act,” codified at 10 U.S.C. § 654. Although the government, including the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, tells us that “[t]he Administration does not support § 654 as a matter of policy and strongly believes Congress should repeal it,” the government nevertheless asks us to “stay enforcement of the district court’s order pending resolution on the merits by our Court of the constitutional issues involved.” The government argues that the district court’s plenary order–mandating that its injunction be given immediate worldwide effect–will seriously disrupt ongoing and determined efforts by the Administration to devise an orderly change of policy. The government asserts that successfully achieving this goal will require as a preliminary matter the preparation of orderly policies and regulations to make the transition. We are advised by the government that, in legal terms, a precipitous implementation of the district court’s ruling will result in “immediate harm” and “irreparable injury” to the military. To make this point, the government avers that a successful and orderly change in policy of this sort will not only require new policies, but proper training and the guidance of those affected by the change. The government persuasively adds that “[t]he district court’s injunction does not permit sufficient time for such appropriate training to occur, especially for commanders and servicemen serving in active combat.” We also note that the government takes issue with the district court’s constitutional conclusions.

The court stressed that granting a stay is warranted because “Acts of Congress are presumptively constitutional, creating an equity in favor of the government when balancing the hardships in a request for a stay pending appeal.” That presumption is inapplicable here as there was no act of Congress. What is being challenged is an executive policy.

Further, the 9th Circuit stressed that there was a Circuit Split with the 1st, 2nd, 4th, and 8th Circuits, which had upheld DADT. This counseled in favor of granting a stay.

As we said in United States v. AMC Entertainment, Inc., 549 F.3d 760 (9th Cir. 2008),

Principles of comity require that, once a sister circuit has spoken to an issue, that pronouncement is the law of that geographical area. Courts in the Ninth Circuit should not grant relief that would cause substantial interference with the established judicial pronouncements of such sister circuits. To hold otherwise would create tension between circuits and would encourage forum shopping.

Id. at 773. The Appellees’ answer to our sister circuits’ decisions is that they are now “irrelevant,” but only a final merits decision by an appellate court can render this judgment.

Again, this argument is inapplicable, as there is, and will be no circuit split on the issue of DAPA.

Finally, the fact that the disruption will cause “immediate harm and precipitous injury” is convincing.

Accordingly, we conclude that the government’s colorable allegations that the lack of an orderly transition in policy will produce immediate harm and precipitous injury are convincing. We also conclude that the public interest in ensuring orderly change of this magnitude in the military–if that is what is to happen–strongly militates in favor of a stay. Golden Gate Restaurant Ass’n, 512 F.3d 1115. Furthermore, if the administration is successful in persuading Congress to eliminate § 654, this case and controversy will become moot.

For immigration, the equities cut the exact opposite direction. Implementing this policy will cause the “immediate harm and precipitous injury” to the states. Maintaining the ex ante status quo will not.

So in conclusion, this argument does not work to oppose a nationwide stay in the immigration context.

The government made at a similar argument in Halbig, arguing that the relief would only apply to the named plaintiffs, if the rule is invalidated.

We respectfully submit a supplemental authority that bears on plaintiffs’ assertion, made for the first time in reply, that “[i]t does not matter that this ‘is not a class action’” and that the Court could extinguish the tax-credit claims of individuals who live in “states like Texas.” Pl. Reply 26. In Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), and prior decisions, the Supreme Court held that the protections for non-parties are grounded in Due Process. Even when (unlike here) a suit is a class action, “before an absent class member’s right of action [is] extinguishable due process require[s] that the member ‘receive notice plus an opportunity to be heard and participate in the litigation’” and “‘an opportunity to remove himself from the class.’” Id. at 848 (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985)). Moreover, there is a “constitutional requirement” that a “‘named plaintiff at all times adequately represent the interests of the absent class members.’” Id. at 848 n.24 (quoting Shutts, 472 U.S. at 812). Plaintiffs did not seek to represent a class, and their suit could not satisfy these constitutional requirements. For millions of people across the country, premium tax credits are not burdens to be avoided but federal benefits that they need to afford health insurance.

Counsel for Halbig shot back with a motion to strike, rejecting this surreal approach to standing, raised only for the first one weeks before oral arguments! A ruling that a regulation is invalid must apply “nationwide” for “plaintiffs and non-parties alike.”

This Court plainly can and should invalidate regulations that affect non- parties, without implicating Due Process concerns. The APA directs this Court to “set aside” unlawful agency action. 5 U.S.C. § 706(2)(A). See also Comcast Corp. v. FCC, 579 F.3d 1, 10 (D.C. Cir. 2009) (Randolph, J., concurring). And this Court has made clear that when it invalidates a regulation under the APA, such a ruling has “nationwide” effect, for “plaintiffs and non-parties alike.” Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1408-10 (D.C. Cir. 1998); see also Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (“When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.”).

Further, Halbig was very, very skeptical that the government only just now discovered this “stale” precedent from 1999. They argue, outright, that the government is prepared to ignore the ruling, if the court were to find that the IRS rule is invalid.

Since it is inconceivable that the Government submitted this stale, irrelevant “supplemental” authority to shore up its argument about the justiciability of the employer plaintiffs’ claims (particularly given plaintiff Klemencic’s clear standing), the Government appears to be laying the groundwork to openly flout any decision by this Court invalidating the IRS Rule. Its view, apparently, is that even if this Court vacates the IRS Rule as contrary to the ACA, the Government may nonetheless freely continue to subsidize coverage for the “millions of people across the country” not parties to this litigation. (Notice at 1.) Indeed, because the Government contends that the Due Process Clause would be violated if non-parties were deprived of subsidies, it may believe that it is constitutionally required to continue to offer subsidies in the face of this Court’s invalidation of the IRS Rule.

Consequently, it is incumbent on the Government to now inform the Court and Appellants whether it will abide by this Court’s decision or, for the first time in history, continue to pursue an agency policy after this Court has ruled that the policy is unlawful and set it aside as ultra vires. Indeed, unless the Government affirmatively disavows its apparent intention to lawlessly flout this Court’s binding order invalidating the IRS Rule, the ordinary remedy of vacatur will not suffice, and injunctive relief will be required to enjoin the IRS from making available the subsidies ruled unlawful.

You get it? Even if the court finds that the government acted illegally, they will continue to act illegally.  And the government seems to imply (but doesn’t say outright) that it would violate due process (!?) to suspend the subsidies to those receiving it!

Contrary to the Government’s last-minute contention, this standard APA practice obviously does not violate the Due Process Clause. If this Court vacates the IRS Rule as contrary to the ACA’s text, that eliminates the only legal basis for the IRS to distribute U.S. Treasury funds to subsidize those who purchase coverage on federally established Exchanges. Thus, vacating the IRS Rule precludes the Government from committing the ultra vires act of distributing Treasury funds that have not been authorized by Congress. So precluding lawless subsidies to those purchasing coverage on federal Exchanges obviously means those people cannot receive those subsidies, but it does not in any way bind them or deny them Due Process rights. Were it otherwise, the APA’s requirement to set aside regulations would be unconstitutional every time the rule affects non-parties (which is almost always true).

First, if the Government inexplicably believes that it has the authority (or, more absurdly, a constitutional duty) to continue to disburse subsidies for federal Exchanges in the face of this Court’s order vacating the IRS Rule, this means that invalidating the IRS Rule will not disable the Government from making subsidies available to anybody, including even Klemencic. Thus, mere vacatur of the IRS Rule would not remedy Klemencic’s injury, because so long as a subsidy is “allowable” to Klemencic, he is not exempt from the individual mandate penalty. 26 U.S.C. § 5000A(e)(1)(B)(ii). (See App. Br. 9-11.) An injunction clearly forbidding the Government from subsidizing coverage on HHS-established Exchanges would therefore be necessary to remedy Klemencic’s injury.

The due process clause immunizes the government acting illegally? I don’t understand. I see this as a basis that there is a constitutional right to Obamacare, and any ruling that would wtihdraw benefits would violate Due Process. Is this some sort of Golderg v. Kelley-esque argument? They may want to check Matthews v. Edridge.

This vaguely reminds me of the episode where Judge Vinson in Florida found that the individual mandate was unconstitutional, and could not be severed from the rest of the Affordable Care Act. The opinion was clear as day. Yet, the government filed this bizarre motion for clarification, asking if he “really” meant it. When I spoke to government lawyers while researching the book, they told me that the government actually could not stop the implementation of the ACA. They couldn’t stop it! (They must have been working on the web site or something). Judge Vinson was convinced the government was prepared to ignore the order–and he was right. They asked for an extension because it wasn’t practical to stop it. The bureaucratic Leviathan of giving away unconstitutional benefits trumps the separation of powers.

Here is the section from Unprecedented for your reading pleasure:

Two weeks after Judge Vinson’s opinion striking down the entire ACA, the United States remained confused.

On February 17, 2011, the government filed what is known as a “motion for clarification,” asking the court to explain whether the United States could continue to take steps to implement Obamacare while the case was appealed, even though Vinson had struck down the entire law.

Some in the Florida Attorney General’s office speculated that this may have been a strategic tactic to delay the litigation. One attorney in that office said that the government’s motion to clarify could be interpreted as “stalling, and dragging their feet.” Another involved in the case concurred, describing the motion as an “exercise in futility” and insisting that the government was trying to “delay things.”

The government wasn’t stalling. A former DOJ attorney explained that Vinson’s order “was framed with such breadth that it would be incredibly disruptive with regard to the portions of the Act that were already in force.” The government would not even have been able to comply with the order. The lawyer speculated that Vinson “did not appreciate the full consequences of his order,” and the motion to clar- ify “was able to call the disruption to the court’s attention.” In any event, Judge Vinson was none too pleased with this request and saw it as a pointless delay.

Vinson ruled that, since his opinion, the government has “contin- ued to move forward and implement the Act.” Somewhat skeptically, Vinson mused, “While I believe that my order was as clear and un- ambiguous as it could be, it is possible that the defendants may have perhaps been confused or misunderstood its import.”

Seemingly insulted, Vinson had not expected that the government “would effectively ignore the order.” He implied that the motion for clarification was a stalling method. “The sooner this issue is finally decided by the Supreme Court, the better off the entire nation will be. And yet, it has been more than one month from the entry of my order and judgment and still the defendants have not filed their no- tice of appeal [to the Court of Appeals].”

We should expect the DOJ to oppose the district court’s ability to issue a nationwide injunction. But anything less than a nationwide injunction would be meaningless. All of the named defendants work in the District of Columbia, far outside the jurisdiction of Brownsville, Texas.




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Dec 11, 2014

Hartford Courant on Increasing Support for Gun Rights

The Hartford Courant quotes the article I co-authored with Shelby Baird, The Shooting Cycle, to explain a recent poll showing an expansion in popular support for gun rights.

The waning support for gun control since Newtown’s immediate aftermath is not, however, entirely surprising. It mirrors a pattern of public opinion observed after other mass shootings.

“The pattern is a painfully familiar one,” South Texas College of Law Professor Josh Blackman and Yale University student Shelby Baird wrote in “The Shooting Cycle,” an article published in May in the Connecticut Law Review. The authors analyzed how the government and the public react to mass shootings and found that after a tragedy, “support for gun control surges.”

“With a closing window for reform, politicians and activists quickly push for new gun laws,” Blackman and Baird wrote. “But as time elapses, support decreases. Soon enough, the passions fade, and society returns to the status quo.”

The poll was released as gun control advocates, approaching the Newtown anniversary, have been holding vigils and calling attention to mass shootings that have occurred since the tragedy, hoping to rebuild momentum for their cause.

But Blackman and Baird, “The Shooting Cycle” authors, counter that in passing gun control legislation after a mass shooting, “time is of the essence.”

“Engaged politicians and interest groups supporting the law must move as quickly as possible before emotions subside,” they said, citing public opinion polling from the past two decades. In the case of Newtown, they argued, the “depth of the emotional capture” provided an opportunity to enact reform, and “it would be against this emotional backdrop that any legislative change would be made.”


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