Reacting To Shooting Deaths
Often, politicians attempt to seize the moment after shooting deaths to enact various forms of gun control legislation. One of the essential elements in this legislative strategy is to focus heavily on the tragic deaths–especially those of children.
However, a recent event in Kentucky, in which a five-year old shot and killed his two-year old sister, has not ginned up a similar reaction, at least in the town of Burkseville. The New York Times took note:
The death has convulsed this rural community of 1,800 in south-central Kentucky, where everyone seems to know the extended Sparks family, which is now riven by grief. But as mourners gathered for Caroline’s funeral on Saturday, there were equally strong emotions directed at the outside world, which has been quick to pass judgment on the parents and a way of life in which many see nothing unusual about introducing children to firearms while they are still in kindergarten.
…
The shooting came after the recent failure in Washington of gun control legislation inspired by the shootings in Newtown, Conn., which exposed a bitter divide on guns. But Burkesville seemed to want no part of being a symbol in a national debate. “I think it’s nobody else’s business but our town’s,” said a woman leaving a store, who like many people here declined to be interviewed. A woman who answered the phone at the office of John A. Phelps Jr., the chief executive of Cumberland County, whose seat is Burkesville, said, “No, I’m sorry — no more statements,” and hung up.
Similar tragedies elsewhere were viewed as chapters in an evolving gun-control debate:
The shooting here, in a region of farms and timber mills, followed a spate of other gun accidents around the country involving young children. They included a 4-year-old boy who accidentally killed the wife of a sheriff’s deputy at a cookout near Nashville, and a 6-year-old boy who was fatally shot with a .22-caliber rifle by a 4-year-old playmate in Toms River, N.J.
Recently in Camden, an 11-year old accidentally shot a 12-year old, and the article notes that there is a “spree of underage shootings”:
An 11-year-old boy shot a 12-year-old child in the face in Camden, New Jersey on Friday in what authorities are describing as an accident. The child is being treated an area hospital and is expected to survive.
“We have the 11-year-old and the 11-year-old’s parents with us, they are fully cooperative,” Chief Scott Thomson of the Camden County Regional Police said, according to WPVI-TV. ”We’re trying to get to the bottom of what happened.”
The bullet appeared to wound the 12-year-old child in the nasal area but avoided hitting the brain. A 19-year-old relative of the child was present at the time of the incident, but authorities are still investigating how they obtained the weapon.
The news caps off a spree of underage shootings this week: a 2-year-old boy died Wednesday after accidentally shooting himself in the head in the Texas town of Corsicana, a 3-year-old boy in Tampa, Florida fatally shot himself with his uncle’s gun on Tuesday, a 5-year-old boyshot his 7-year-old brother in Houston, Texas on Tuesday and a 13-year-old shot his 6-year-old sister in Florida on Monday.
It is fascinating to study differing reactions, and utilzations, of these tragedies, to advance legislative change.
Recently Dan Kahan weighed in on this topic at his Cultural Cognition blog. Kahan raises the jarring (to some) point that more children die in swimming pool accidents than by gun deaths.
But what I do like to do — because it is an instance of the sort of thing I study — is think about why accidental shootings of young children (a) get so much media coverage relative to the other things that kill children; and (b) are—or, more likely, are thought—to be potent occasions for drawing public attention to the need for greater regulation of firearms.
Consider guns vs. (what else?!) swimming pools (if the comparison is trite, don’t blame me; blame the dynamics that make people keep resisting what the comparison illustrates about cultural and cognition).
Typically there are < 1,000 (more like 600-800) accidental gun homicides in US per yr. About 30 of those are children age 5 or under.
There are about 3,500 drowning deaths per yr in the US, about 500 of which are kids age 5 or under (300or so in pools).
Kahan notes that the accidental shootings of children do not add anything to the movement in favor of gun contorl.
But it’s obvious, to anyone who reflects on the matter if not to those who don’t, that the incidence of the accidental shootings of children adds zeroweight to the arguments that can be made in support of those policies.
…
One of these is the “availability effect,” which refers to the tendency of people to overestimate the incidence of risks involving highly salient or emotionally gripping events relative to less salient, less sensational ones. We might explain why people seem so much more concerned about the risk of an accidental shooting of a child than the accidental drowning of one.
But the explanation is not satisfying because it begs the question of what accounts for theselective salience of various risks—what makes some but not others gripping enough to get our attention, or to get the attention of those who make a living showing us attention-grabbing things? Cultural cognition theory says the cultural congeniality of seeing instances of harm that gratify one’s cultural predispositions.
The salience, or “availability” of these tragic killings of children brings much attention to these shootings.
Update: Think Progress tracks 5 children who were shot by children before mother’s day.
Where did the Facebook logo go?
For as long as I can remember, Facebook.com had a Facebook logo in the upper left-hand corner. That was the link to go home. Now, it seems to be gone. The small “F” logo is now inside the graph search box, I suppose to draw attention to search. Clicking the “F” still gets you back to the homepage. Changes are a brewing on the facebooks.
The New Normal of Legal Education
My friends Dan Katz and Renee Knake are up to some cool stuff at ReInvent Law Labs at Michigan State. On the ABA Journal Legal Rebels blog, this dynamic duo explains how technology is shifting the “new normal” in legal education.
Greetings from ReInvent Law, our law laboratory devoted to technology, innovation, and entrepreneurship at Michigan State University College of Law. You read that right. We are law professors with a laboratory where we teach technology, analytics, innovation, and entrepreneurship in legal services. We are law professors devoted to training lawyers for the law jobs of the 21st century. And yes, math will be on the exam. This is the New Normal in legal education.
The legal services and products industry is undergoing a significant transition. For many current and future legal jobs, understanding the law is a necessary but no longer sufficient condition for success. We believe that part of the solution to the crisis currently facing the law profession and legal education involves principles of technology, legal analytics, design thinking, and the advent of new, process-driven delivery models.
…
We do not purport to have solved all of the issues in legal education, but we are working thoughtfully and quickly to offer students the additional skills that employers have told us would make a difference in their respective hiring decisions. Most law students are not fully practice-ready at the moment of graduation. However, anyone can make meaningful contributions when they walk in the door, especially those trained in skills relevant to the growing use of technology and data analytics in legal services. To that end, we have launched a set of courses designed to equip a new crop of law students to add value immediately. These courses include: e-discovery, entrepreneurial lawyering, lawyer regulation and ethics in a technology-driven world, legal information engineering, quantitative methods for lawyers, and virtual law practice. Additional courses planned include topics such as project management, legal analytics, economics of the legal market, design thinking for lawyers, and artificial intelligence and law.
I spoke at ReInvent Law a few months ago at MSU, and will be giving a talk at ReInvent Law London in June. Dan and Renee are doing driving innovation. Keep an eye on this program.
Reading Rand in Cuba
A friend was recently boarding a flight from Toronto to Habana, Cuba, and saw someone reading “The Fountainhead” by Ayn Rand. My friend wisely told the Randian to chuck the book. He asked why. She replied, “that book may be deemed ideologically counter revolutionary. You may get into trouble carrying *that* book.” He chucked the book in the trash can.
I was tempted to slip a copy of Adam Smith’s “The Wealth of Nations” in her bag, but I thought better of it.
3D-Printed Guns Is Not About Guns. It’s About Information
Cody Wilson, reacting to the State Department’s ordering the takedown of his blueprints for the 3D-printed handgun (the aptly named “Liberator”), had these interesting comments:
He said his goal was not to increase the number of guns made from 3-D printers, but rather to show that, in the Internet age, neither industry nor the government can control information about new technology or how that information is used. “I don’t care about the project,” he said. “This is about the future of the freedom of information and regulation of the Internet.”
…
He said he complied, emphasizing that, for him, guns were not the point. He said he thought printing a gun was the most compelling way to make his point, but added, “3-D printing is a ridiculous way of making gun parts.”
“This is a fight about two competing visions of the future,” Mr. Wilson said. “I think my vision of distributed technology will win.”
I think this is exactly right. It is no longer possible to only police the possession and distribution of actual products. Now, the information that creates these products must be censored. The efforts to stifle 3D printing is a first chapter in suppressing information and data online. Recently, a leading IP Professor–who is no fan of guns–told me that the 3D-printed guns may save 3D printing. I am working on an article considering the First And Second Amendment, and 3D Printing, that just took on a new air of urgency.
I received the proofs of my book!
It is 350 pages, including a Foreword by Randy Barnett. Here is the title page. You can order it today! It will ship on September 3. More details real soon.
Video: Presentation of Unprecedented at University of Washington Federalist Society Chapter
On Monday, 5/6, the University of Washington Federalist Society Chapter, led by its superlative president Shon Hopwood, graciously hosted me to give a talk about my book, Unprecedented: The Constitutional Challenge to Obamacare.
Here is the full video, including commentary by Professor Sallie Sanford, who provided a wonderful explanation of the Affordable Care Act.
Here is the dashboard camera:
Tribe Offers Predictions on Same-Sex Marriage Cases
Larry Tribe–who as I discuss in Unprecedented was the *only* person who accurately and precisely predicted how John Roberts would vote in NFIB–offers some predictions of how the Court will resolve the DOMA and Prop 8 cases.
Regarding the pair of cases currently pending in the Supreme Court, my hunch – and it is only that – is that the Court will narrowly conclude that the DOMA [Defense of Marriage Act] issue is properly before SCOTUS on the merits notwithstanding the solid reasons to doubt that BLAG [Bipartisan Legal Advisory Group of the U.S. House of Representatives] is a proper representative of Congress and that the Court will hold DOMA’s Sec. 3 unconstitutional by a vote of 5-4, with Justice Kennedy relying heavily on the kinds of federalism considerations that Judge Boudin found persuasive in CA1 [U.S. Court of Appeals for the First Circuit] but with the more liberal four justices relying squarely on the equality component of fifth amendment due process.
As to Hollingsworth, however, I doubt that the Court will conclude that Chuck Cooper and the other private proponents of Prop 8, all lacking a fiduciary duty to California, have Art. III standing to defend it on the merits in the Supreme Court (despite what the state’s highest court concluded) and will dismiss that case on standing grounds, leaving in place Judge Walker’s statewide injunction against Prop 8 but setting no nationwide precedent. Alternatively, despite the Rule of Four, I wouldn’t be too surprised to see the Court dismiss cert as improvidently granted, leaving CA9’s [U.S. Court of Appeals for the Ninth Circuit] decision in place but again setting no nationwide precedent.
There you have it.
Here are the current predictions on FantasySCOTUS.
For Prop 8
| Hollingsworth v. Perry – Do Petitioners Have Standing? | Affirm |
69% Yes | - | - |
| Hollingsworth v. Perry – Does Prop 8 Violate the Equal Protection Clause? | Affirm |
73% Yes | - | - |
For DOMA
Tribe also offers some thoughts on a question that Justice Scalia posed– a question in which Ted Olson struggled to answer: when did a ban on same-sex marriage become unconstitutional.
On the one question of just when a ban on same-sex marriage “became” unconstitutional, however, my answer would be that, from a rather formal perspective, it was unconstitutional from the moment the Fourteenth Amendment was ratified although, from a more evolutionary and thus realistic perspective, it is still in the process of becoming unconstitutional in the sense that the constitutional status of challenged action is a function of an evolving partly political/cultural and partly legal development rather than something akin to the “fact of the matter.” Asking when this kind of ban “became” unconstitutional is like asking when the ban on interracial marriage “became” unconstitutional: the answer might be said to be 1967, when Loving v. Virginia was decided, but it also might be said to be 1868, when the Fourteenth Amendment was ratified. The question isn’t of the same metaphysical character as, e.g., the question of when the oceans of the earth were formed, or when the big bang occurred, or when George W. Bush became President of the United States.
Does the U.S. Constitution Allow Non-Citizens To Vote?
New York City has made some waves by–over the opposition to Mayor Bloomberg–moving forward with a law that would allow non-citizens to vote in local, but not state or federal elections. There are some issues about whether New York City has the authority to enact this law under the New York Constitution, which I don’t have any thoughts on. The more interesting question is whether a city could constitutionally enact a law that would allow a non-citizen to vote in a federal election (put aside for the moment any statutory voting provisions).
Contrary to what many think, the Constitution does not provide an affirmative grant of the right to vote. It appears nowhere in the Constitution. Rather, through a series of Amendments, the Constitution places limitations on who and how the state and federal government can exclude from the franchise–race, gender, poll taxes, and age. Most noteworthy, all of these provisions speak of denying the right to vote of “citizen[s].”
Amendment 15 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Amendment 19 The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Amendment 24 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
(For a history of why the 24th Amendment only applies to federal elections, see here).
Amendment 26 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
Indeed, other than the voting provisions, the Constitution only uses the term citizen to define the qualifications for the House of Representatives, the Senate, the Presidency, guarantee of Privileges and Immunities (Article IV), the 11th Amendment (“citizens of another state”), and the 14th Amendment (naturalization and “privileges or immunities”). There isn’t much that the Constitution favors Citizens and not persons, but the right to vote is one of them.
Of course, nothing in the text of the Constitution would *stop* a state from giving noncitizens the right to vote. But what are the cultural or philosophical issues about extending the franchise in this manner?
This seems to be part of a broader trend, as evidenced by California’s decision to allow noncitizens to serve on a jury, to break down the divisions between citizens and noncitizens–except for campaign donations. They can’t do that. Too dangerous. Wouldn’t that be a bitch? Benny Bluman could vote for local candidate in New York, speak about him, but not donate to his campaign.
Update: My friend Derek Muller addresses this issue in his article in the Arizona State Law Journal, titled, “Invisible Federalism and the Electoral College.”
“Alien suffrage was quite common during the nineteenth century, coming to a peak in 1875 when twenty-two states and territories granted aliens the right to vote.”237 That ended in the 1920s, at which point all states required citizenship as a condition to voter eligibility.238 Today, every state prohibits noncitizens from voting in federal elections.239 Federal law, too, prohibits aliens from voting in federal elections.240 There are, however, jurisdictions that allow,241 or seek to allow,242 noncitizens to vote in local elections. And as resident aliens have a significant interest in the locales where they reside, and are subject to other political obligations like taxation, there have been particularly strong arguments in favor of extending suffrage to at least a set of them.243
Reversing The Final Play Of The Game
It seems that there has been another blown call in baseball. This time, what would have been a game-tying home run in the 9th inning was ruled by the Crew Chief as not a home-run. Even after reviewing a video replay, the Umpires let the call stand.
With two outs, Rosales sent a drive to left that appeared to clear the 19-foot-high outfield wall and strike a railing. Melvin asked Hernandez and his crew to review the hit, and three umpires left the field to view replays in a designated area near their dressing room.
After a lengthy delay, the umpires returned to the field and instructed Rosales to stay at second, a decision that shocked the A’s, the Indians, 14,000 fans in attendance at Progressive Field and people watching on television.
Justice Joe Torre denied certiorari on the Oakland A’s appeal. Well, pretty much.
“By rule, the decision to reverse a call by use of instant replay is at the sole discretion of the crew chief,” Torre said in a statement released during Thursday’s series finale. “In the opinion of Angel Hernandez, who was last night’s crew chief, there was not clear and convincing evidence to overturn the decision on the field. It was a judgment call, and as such, it stands as final.
I ‘ve previously blogged about the importance of calls at the end of the game–perhaps most famously the blown call that cost Armanda Gallaraga a perfect game. Should the umps just let ‘em play, and err on the side of an exciting conclusion?
For more on judging and umpiring in sports, see here, here, here, and here.
The Structure of Sebelius
In Paul Clement’s merits brief on behalf of in Bond II, there are a number of citations to NFIB v. Sebelius, all for the proposition that the structural protections of our Constitution are fundamental to the protection of individual liberty. Here are the cites:
That is why “the Framers considered structural protections of freedom the most important ones,” and why “they alone were embodied in the original Constitution and not left to later amendment.” NFIB, 132 S. Ct. at 2676–77 (joint dissent) (emphasis added); see also id. at 2577– 78 (Roberts, C.J.) (“the Constitution did not initially include a Bill of Rights at least partly because the Framers felt the enumeration of powers sufficed to restrain the Government”).
The statutory provisions addressed in cases such as Lopez, New York, Printz, Morrison, and NFIB were unconstitutional because they were “inconsistent with the federal structure of our Government.” New York, 505 U.S. at 177; see also, e.g., Lopez, 514 U.S. at 567 (rejecting theory of federal power that “would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated”); Printz, 521 U.S. at 935 (rejecting theory of federal power as “fundamentally incompatible with our constitutional system of dual sovereignty”). As these and other cases make clear, the cardinal canon that “[i]mpermissible interference with state sovereignty is not within the enumerated powers of the National Government” informs the scope of all federal powers. Bond, 131 S. Ct. at 2364
To the contrary, the Necessary and Proper Clause does not empower Congress to enact laws that “undermine the structure of government established by the Constitution.” NFIB, 132 S. Ct. at 2592 (Roberts, C.J.); see also Printz, 521 U.S. at 923–24 (a law that “violates the principle of state sovereignty reflected in the various constitutional provisions … is not a ‘La[w] … proper for carrying into Execution’” that power).
An unchecked power to implement treaties would amount to exactly the sort of “great substantive and independent power” that the Necessary and Proper Clause cannot supply. McCulloch v. Maryland, 17 U.S. 316, 411 (1819); see also NFIB, 132 S. Ct. at 2591–92 (Roberts, C.J.).
I was recently talking with a conlaw prof at another school, who asked whether South Texas separates constitutional law into separate classes on structure and rights. This dichotomy never made sense to me. Indeed, at GMU, the two bled into each other. Justice Kennedy made this point emphatically in his dissent, as read from the bench.
From Chapter 8 of Unprecedented, where I explore “Judgment Day”:
Everyone in the courtroom remained stunned. Totally oblivious to the commotion brewing outside the Court, the justice continued.
Kennedy paused for emphasis, then continued to read, very slowly. “Structure means liberty, for without structure, there are insufficient means to hold to account a central government that exceeds its powers in controlling the lives of its citizens. Today’s decisions should have vindicated, not ignored, these precepts. For these reasons, we would find the act invalid in its entirety.”
Kennedy was done.
Let’s see if the Court expands the intricate relationship between structure and liberty in Bond II.
CFTC seeks to expand regulation of Bitcoin
In the past, I have blogged about the Commodity Future Trading Commission’s broadening scope of their own enforcement jurisdiction, as empowered by Dodd Frank. The CFTC has deemed politicla prediction markets, which involve only opinions and no actual items, as if they were contracts on physicla commoditie (such as gold or silver or oil). Now, the CFTC is looking to get involved wtih Bitcoin.
The Commodities Futures Trading Commission is reportedly ‘seriously’ exploring whether volatile cyber currency Bitcoin may fall under the U.S. regulator’s purview.
The potential regulatory oversight from the CFTC poses a serious threat to Bitcoin, which has enjoyed a surge of new attention and an explosion in value in recent months amid concerns about traditional bank deposits and currencies.
Bitcoin “is for sure something we need to explore,” Bart Chilton, one of the five commissioners at the CFTC, told the Financial Times. A source told the paper that the regulator, which gained new powers thanks to the Dodd-Frank legislation, is “seriously” examining the issue.
“It’s not monopoly money we’re talking about here — real people can have real risk in these instruments, and we need to ensure that we protect markets and consumers, even in what at first blush appear to be ‘out there’ transactions,” Chilton told the FT.
By regulate, the CFTC means ban. The prohibitory costs of registering with the CFTC would likely render Bitcoin impossible to run in the United States, similar to the rules imposed on InTrade. Stay tuned.
Obamacare Nudges Young And Healthy Away From Buying Insurance
Rahm Emanuel, who was instrumental in President Obama’s decision to enact the Affordable Care Act when many told him not to, famously said that a crisis is a terrible thing to waste. Pass it now, and worry about it later. Now Rahm’s brother, Zeke, is helping to pick up the mess left behind by the rushed and unpopular law now known as Obamacare. In the WSJ, Zeke addresses some of the eventual problems with Obamacare–namely, that young, healthy people still won’t buy insurance. These are the very people the ACA sought to bring into the insurance market.
Here is the specific problem: Insurance companies worry that young people, especially young men, already think they are invincible, and they are bewildered about the health-care reform in general and exchanges in particular. They may tune out, forego purchasing health insurance and opt to pay a penalty instead when their taxes come due.
The consequence would be a disproportionate number of older and sicker people purchasing insurance, which will raise insurance premiums and, in turn, discourage more people from enrolling. This reluctance to enroll would damage a key aspect of reform.
Insurance companies are spooked by this possibility, so they are already raising premiums to protect themselves from potential losses. Yet this step can help create the very problem that they are trying to avoid. If premiums are high—or even just perceived to be high—young people will be more likely to avoid buying insurance, which could start the negative, downward spiral of exchanges full of the sick and elderly with not enough healthy people paying premiums.
Emanuel lays out the problem perfectly. But he has three solutions (none of which will work):
Fortunately, there are solutions [to this ACA-induced adverse selection problem]. First, young people believe in President Obama. They overwhelmingly voted for him. He won by a 23% margin among voters 18-29—just the people who need to enroll. The president connects with young people, too, so he needs to use that bond and get out there to convince them to sign up for health insurance to help this central part of his legacy. Every commencement address by an administration official should encourage young graduates to get health insurance.
Yeah, this won’t work. Voters–especially young men–are extremely prone to voter ignorance. And, to be frank, if the President’s charisma was enough to encourage people to have health insurance, we wouldn’t have needed an individual mandate which, for the first time ever, coerced people into buying insurance (it wasn’t a tax on failing to have insurance when it was initially enacted).
What is Zeke’s second solution?
Second, we need to make clear as a society that buying insurance is part of individual responsibility. If you don’t have insurance and you need to go to the emergency room or unexpectedly get diagnosed with cancer, you are free- riding on others. Insured Americans will have to pay more to hospitals and doctors to make up for your nonpayment. The social norm of individual responsibility must be equated with purchasing health insurance.
Again, the very reason why the mandate was imposed was because people didn’t give a damn about cost-shifting and free-riding. Free-riding is rational. If a person has a choice between paying a penalty of a few hundred dollars each year, or paying for insurance of a thousand dollars a year, it is rational for young and healthy people to stick with the penalty. This may be a foolish decision, but it makes dollars and sense.
Finally, and most important, we should adopt some of Massachusetts’ practices. When state officials in 2006-2007 were rolling out their exchange—called the Massachusetts Connector—they mounted a sustained campaign to encourage enrollment by young people. One aspect of the campaign focused in particular on young men, even heavily promoting the new exchange on TV during Red Sox games and hosting an annual “Health Connector Day” at Fenway Park.
A sizeable number of Americans think that the ACA is not even law. Whatever PR campaign the federal government is running has failed miserably.
I had dinner with a friend last night who has authored a number of books, and he asked me what will be the news hook for my book which comes in September. I told him the imminent role-out of the ACA on January 1, 2014 will indeed b a trainwreck. I will have the unenviable task of watching this collission happen in slow motion. I predict, firmly, that those like Emanuel will watch the failure of this law, and blame conservatives for opposing it, and making its implementation more difficulty. That will absolutely be correct. But the forseeable errors of this law, grounded in the most basic notions of behavioral economics, are unavoidable.
And lest we forget that the ACA bans catastrophic insurance–the very kind of insurance best-suited for young and healthy people. In a recent piece, the National Journal looks at how the law will likely do the exact opposite of what it was intended to do: raise premiums, and decreasea the number of people covered:
In both examples, the presidential sales pitch ended up being overhyped, with promises made that couldn’t realistically be achieved. At its heart, the mission to oust Saddam Hussein was about preventing a dangerous tyrant from using weapons of mass destruction – but administration officials advocated everything from democracy promotion to preventing an alliance between Iraq and al-Qaida as part of its overall argument. When events turned south, failure to achieve many of the items on the checklist proved politically embarrassing.
Obama’s health care law was designed to expand access to the uninsured. It’s a noble goal, if not necessarily a smart political priority. (It’s more popular to advocate for improved health care, not expanded access.) But to win support for the law, Obama claimed it would lower costs, improve the quality of care and not force anyone off their current health care plan. That’s not shaping up to be the case. Premiums are rising, employer uncertainty is growing and voters aren’t viewing the law favorably – with many not even aware of the frontloaded benefits already in place. And even on the access side, the law of unintended consequences is kicking in: Some large retail companies are cutting back employee hours so they won’t have to offer health insurance. That’s not good for the economy or health care access.
Tom Lambert has many more good points here.
Of course, Emanuel leaves out an important part of the story: the fact that the ACA itself encourages young, healthy people (the “young invincibles,” he calls them) to forego buying health insurance. The statute does so by mandating that health insurance be sold on a “guaranteed issue” basis (meaning that insurance companies can’t deny coverage to people who waited to buy it until they became sick) and at prices based on “community rating” (meaning that those who are sick or susceptible to sickness can’t be charged more than the healthy). Taken together, these provisions largely eliminate the adverse personal consequences of waiting to buy health insurance until you need medical treatment. (You can’t be denied coverage or charged a higher premium reflecting your illness.) They thereby decimate the incentive for young, healthy people to buy health insurance until they need it. And since the law doesn’t (and can’t, according to the Supreme Court) require young, healthy people to carry insurance, many are likely to forego buying coverage in favor of paying a small “tax” — $95 in 2014, as opposed to the $2,480 out-of-pocket cost for an individual policy bought on a subsidized exchange by a 26 year-old earning $30,000. As I have argued on this blog and elsewhere, the ACA is likely to generate a devastating spiral of adverse selection as the “young invincibles” drop out of the pool of insureds, causing premiums for the covered population to rise, encouraging even more of the marginally healthy to exit the risk pool, causing premiums to rise even further, etc., et c
How to Stop The Liberator?
The plans for the first pistol, made entirely with 3D-printed parts, are now online. With the exception of a single steel nail (used as a firing pin), and a piece of aluminum to add the requisite metallic countent ot get around the undetectable firearms act, the gun can be made entirely at home.
So how can the creation of these guns be stopped? Congress can create a law that criminalizes the possession of firearms made from 3D-printers.
Steve Israel has introduced a bill that would reauthorize the “ban on undetectable firearms.” But this would only enforce those firearms that the government finds. The danger with these weapons is that they can be created without having to go through the normal streams of commerce, right in the comfort of one’s own home. How can the construction of these guns be halted? The answer would have to lie somewhere in limitations on (1) obtaining the plans, or (2) using the 3D printers. It is not inconceivable for the government to mandate that 3D Printers wonly print certain blueprints that have a certain DRM (digital rights management) signature on them. In other words, if you tried to print a 3D gun, the 3D printer wouldn’t work. An analogy to this would be the SSL (secure socket layer) certificates used on certain commercial web sites. In order to engage in secure online transactions, a site must have a certain public and private key. If they don’t match, the transaction wouldn’t work. I suppose Congress could require that 3D printers only print if a certain key is provided. This kind of DRM technology could also help prevent, more broadly pirating of copyrighted, trademarked, or patented goods.
Would this raise First Amendment issues? That is, limiting the ability of people to create.
The first, and potentially more problematic way to stop this type of 3D printing, would be to criminalize the possession and distribution of these plans. In other words, the Decad site would be illegal. The analogy for this move is how the government was able to shut down sites like Napster and Kazaa that trafficked in songs that violated copyrights. If congress banned 3D gun blueprints, sites that trafficked in them, would be breaking the law, and could be shut down. Cody Wilson has created Defcad because other 3D printing sites won’t host his stuff.
Now, limiting the distribution of the plans would, I think, more clearly raise First Amendment issues, which I will explore later. This strongly implicates work I’ve been developing, along with great scholarship from Jane Bambauer, which looks at whether data is speech. I’m sure Chuck Schumer will find a way to stifle these devices. More coming soon.
Update: As I was about to submit this post, I see that the State Department has ordered Defense Distributed to take down the plans, asserting that they violate the International Traffic in Arms Regulations (ITAR).
Wilson’s comments are interesting:
“Our theory’s a good one, but I just didn’t ask them and I didn’t tell them what we were gonna do,” Wilson, a University of Texas law student, told Mother Jones. “So I think it’s gonna end up being alright, but for now they’re asserting information control over the technical data, because the Arms Information Control Act governs not just actual arms, but technical data, pictures, anything related to arms.”
…
“I don’t like it—but I do think that it actually ends up helping the message of the project a little more, that, look, in the end we’re going to be having a fight about what it means to be controlling information.”
The government is asserting control over “data” and “information.” Is data speech?
The only way to stop this market is by cutting off access to the data:
But the proposed bill makes no attempt to regulate who can and cannot purchase said gun factory; 3-D printers are still available for anyone to use. Likewise, while the guns are printed from files that are posted online, there is no restriction in the bill on what kind of 3-D printer files you can post online. (Thingiverse, the internet’s preeminent database of downloadable 3-D printer files, banned Wilson from posting his Defense Distributed instructions, but in response he simply set up his own website, DEFCAD, which he calls, “the island of misfit objects.”)
Of course, as Mother Jones notes, there are so many mirrors that takedown notices are largely ineffective.
As with everything else on the Internet, the takedown notice from the DTCC has its limitations. For one thing, there are already a number of “mirror” sites that essentially replicate DEFCAD but are not controlled by Wilson—or anyone in the United States, for that matter. You can also download the plans for the Liberator or various component parts from the Pirate Bay, the notorious Swedish file-sharing index site.
Gee, that was faster than I thought.
Dallas Morning News Covers Harlan Institute-ConSource Virtual Supreme Court Competition
Today the Dallas Morning News Blog featured the winners of the inaugural Harlan Institute-Consource Virtual Supreme Court Competition.
Anderson, of Centennial, and Parsons, of Liberty, won the nationwide Harlan Institute’s Virtual Supreme Court competition in which they had to write appellate briefs and argue against other student teams via online video chats presented before a panel of professional attorneys.
This year the case argued by the students was Fisher v. University of Texas, which is currently pending before the United States Supreme Court concerning an affirmative action admissions policy at the University of Texas at Austin.
Congratulations to the two winners from Frisco, Texas, D.J. Anderson and Jason Parsons, who won a trip to ConSource’s Fifth Annual Capital City Constitution Day program.
Here is a video of the event:
How to teach the smartphone generation?
Shailini George has an interesting pedagogical piece in the Maine Law Review about teaching the smartphone generation, titled, “Teaching the Smartphone Generation: How Cognitive Science Can Improve Learning in Law School.” Here is the abstract:
Today’s law student enters law school as a digital native, constantly “plugged in” and accessing information at a moment’s notice, often during class time itself. Yet scholars agree that these students are entering law school with weaker reading and reasoning skills than prior generations, due in large part to the way students multitask through life. This article aims to address the problems caused by the intersection of these two issues by applying cognitive learning theory to the law school environment. Part One examines the characteristics of our current students by describing their skills and learning styles upon arriving at law school. Part Two examines cognitive learning theory insofar as it can inform our teaching andragogy: specifically, how do today’s students learn, how can we help our students learn better, and what effect does their multitasking have on learning? The final section suggests ways for students and educators to better translate the information offered in class into knowledge. Ultimately, this article suggests teaching students about metacognition and effective study techniques while also encouraging professors to design and plan their courses by adopting cognitive learning theories and using more visual aids, visual exercises, and assessments to help students better learn the material.
As I’ve discussed at some length, today’s students learn differently than in previous generations. The students who are raised today on iPads will be in law schools in the very near future. Trying to teach these students (not too different from me) in the way students have been taught for a century won’t work. Rather than turning off this plugged-in nature, professors should learn to tailor lessons, and accomodate these attributes.
In my first year of teaching–which I just finished this past week!–I have experimented with a number of tools. I will blog about my experiences, and teaching evaluations, at some length after the semester is over (yes, I intentionally did not blog about my fall evaluations because I wanted a full year to receive feedback).
H/T ABA Journal (with a lengthy comment thread)
Is Natural Gas A Mineral?
The Pennsylvania Supreme Court has a really cool opinion that considers whether an 1881 grant, “which reserved to the grantor the subsurface and removal rights of “one-half [of] the minerals and Petroleum Oils” provides a right to natural gas derived from the Marcellus Shale. The Court, sticking with an 1882 opinion, holds that it does not.
The trial court in this matter, relying on the 1882 decision of this Court in Dunham & Shortt v. Kirkpatrick, 101 Pa. 36 (Pa. 1882), and its progeny held that because the deed reservation did not specifically reference natural gas, any natural gas found within the Marcellus Shale beneath the subject land was not intended by the executing parties to the deed to be encompassed within the reservation. The Superior Court reversed that decision and remanded the case with instructions to the trial court to hold an evidentiary hearing complete with expert, scientific testimony to examine whether: (1) the gas contained within the Marcellus Shale is “conventional natural gas”; (2) Marcellus shale is a “mineral”; and (3) the entity that owns the rights to the shale found beneath the property also owns the rights to the gas contained within that shale. See Butler v. Powers Estate, 29 A.3d 35, 43 (Pa. Super. 2011). For the reasons that follow, we respectfully hold that the Superior Court erred in ordering the remand for an evidentiary hearing and reinstate the order of the trial court.
The Court specifically addresses the validity of this long-standing rule:
We thus turn to the continuing viability of the Dunham Rule, and we reaffirm that the rule continues to be the law of Pennsylvania. First, as has been related herein, this Court has never explicitly questioned the vitality of the Dunham Rule. Like the Silver Court did in 1906, we recognize that the Dunham Rule has now been an unaltered, unwavering rule of property law for 131 years; indeed its origins actually date back to the Gibson decision, placing the rule’s age at 177 years. As noted by this Court in Highland, “[a] rule of property long acquiesced in should not be overthrown except for compelling reasons of public policy or the imperative demands of justice.” 161 A.2d at 399 n.5. In our view, neither the Superior Court nor Appellees have provided any justification for overruling or limiting the Dunham Rule and its longstanding progeny that have formed the bedrock for innumerable private, real property transactions for nearly two centuries.
It’s very rare that a modern-day court has to consider whether contracting parties over a century ago intended a contract to cover something (natural gas from shale) that did not exist at the time. Of course, the Supreme Court does this with originalism-style inquiries all the time. But here, we are talking about something much simpler. Is “natural gas” a “mineral.” The court holds that those who wrote the deed in 1881 would not have intended to include “natural gas” as a “mineral.” Thus it is not.
Totally random aside, but I saw a citation to a case involving Penn Coal, that I’m positive is the same company involved in Penn Coal v. Mahon!
Shortly thereafter, this Court again reaffirmed Dunham, and indeed Silver, in Preston v. S. Penn Oil Co., 86 A. 203 (Pa. 1913).
H/T ABA Journal
The Success of Obamacare and The President’s Legacy
The Times explores how the Republicans will try, for the third election, to make Obamacare a pivotal issue (2010, 2012, and now 2014). Most of the article retreads some of the recent controversies over the law, but one bit in particular stuck out:
The stakes for the president are high. The ultimate success of the law, and in turn his domestic legacy, depends on how well the insurance marketplaces operate, and whether enough young Americans enroll for coverage.
Throughout the enactment of the ACA, the President continuously referred to his eponymous law as his “legacy.” As I note in Unprecedented, “Although President Obama is proud that historians will call the Affordable Care Act “Obamacare” and refers to it as his “legacy,” I think we should let history decide its fate.”
Due in large part to Republican recalcitrance, the implementation of Obamacare will be, in the words of Max Baucus and Harry Reid, a “trainwreck.” And this will only be the beginning of the difficulties and frustration with the law that has already increased premiums in most states, and, if studies from Oregon studies prove correct, will have only minimal impacts on public health despite staggering costs.
Of course, even assuming that the implementation is successful, as I document in Unprecedented, young, health adults–the very people that the ACA sought to add to the insurance pool–are increasingly unlikely to purchase insurance and may instead pay the penalty.
The White House already recognizes the difficulty, and importance of this demographic:
He will especially urge healthy young adults, those up to 35 years old, and minorities — groups in which he has “a lot of cachet,” Mr. Pfeiffer said — to sign up starting Oct. 1 for the new exchanges. Beginning Jan. 1, most Americans must have insurance or pay fines.
Without the participation of that generally healthy young population, insurance premiums for everyone else would increase — threatening support for a law already short of it.
This is going to be a mess. Obamacare may indeed become a “political millstone for Democrats in 2014” and beyond.
Nino’s New Portrait
Justice Scalia is looking rather svelte in his new official SCOTUS portrait. DC Dicta reports that of late, Nino has not been wearing glasses. Perhaps he has seen the light?
Houston Chronicle Publishes Op-Ed About Surveillance and Social Media After Boston Marathon Bombing
Lisa McElroy and I wrote a new Op-Ed in the Houston Chronicle: about the interplay between surveillance, social media, and privacy in the wake of the Boston Marathon Bombings. The very same connectedness of society that helped to apprehend the killers also may have frustrated the ensuing manhunt. Here is a sample:
The most powerful surveillance network in Boston helped to apprehend the Boston Marathon bombers. This unblinking and omniscient eye was not operated by the state, however; instead, private security cameras, in conjunction with a citizen army equipped with iPhones and Androids, were able to record the mayhem wrought in Copley Square. These shared recordings, which could be obtained without any concerns for the judicial process or the Fourth Amendment, aided the police in identifying, cornering, and catching the brothers Tsarnaev.
Within seconds of the explosion at the finish line, eyewitnesses used social media to share photographs of the scene, and even videos of the blast. Minutes later, a cyber-militia crowdsourced images. Even so, while the police welcomed the help of these cyber sleuths and the wisdom of the crowds in gathering evidence — facial-recognition technology “came up empty” — they opposed real-time reporting of the manhunt on Twitter.
Unprecedented
Creds
Copyright 2012 JoshBlackman.com