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

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Romney on Roberts

July 5th, 2012

Courtesy of Jan Crawford:

Romney: Well, the Supreme Court has the final word. And their final word is that Obamacare is a tax. So it’s a tax. It’s — they decided it was constitutional. So it is a tax and it’s constitutional. That’s — that’s the final word. That’s what it is. Now, I agreed with the dissent. I would have taken a different course. But the dissent wasn’t the majority. The majority has ruled. And their rule is final.

Crawford: But does that mean that the — the mandate in the state of Massachusetts under your health care law also is a tax —

Romney: Actually —

Crawford: — and that you raised taxes as governor?

Romney: Actually, the — chief justice, in his opinion, made it very clear that, at the state level — states have the power to put in place mandates. They don’t need to require them to be called taxes in order for them to be constitutional. And — and as a result, Massachusetts’ mandate was a mandate, was a penalty, was described that way by the legislature and by me. And so it stays as it was.

Crawford: Whatever it’s called, I mean, let me just — whether it’s a penalty, whether it’s a tax — it means that Americans, if they don’t have insurance, are going to pay something, whatever they call it.

Romney: You know, I made it very clear throughout my campaign and actually, while I was governor of Massachusetts, that the issue of the uninsured should be dealt with at the state level. And each state can create their own solutions to meet the needs of their people.

Crawford: You say on your website that you would nominate justices in the mold of the Chief Justice, John Roberts. Now that he’s voted to uphold this law, would you still, knowing what we know now, nominate a justice like John Roberts?

Romney: Well, I certainly wouldn’t nominate someone who — I knew — was gonna come out with a decision I violently disagreed with or vehemently, rather, disagreed with. And he reached a conclusion I think that was — not accurate and not — an appropriate conclusion. But — that being said, he’s a very bright person. And I — I’d look for — individuals that have intelligence and believe in following the constitution.

Crawford: Are you troubled that he switched his vote? He was initially with the conservatives to strike down the heart of the law, the individual mandate, and then changed his mind to join the liberals to uphold it?

Romney: Well, it — it gives the impression that the decision was made not based upon constitutional — foundation but instead — political consideration about the — relationship between the branches of government. But we won’t really know the answers to those things until the justice himself speaks out — maybe some time in history.

That entire bit about the dissent was wrong is so John Harlan.

What percentage of instant-replay reviews in the NFL got it “right”?

July 5th, 2012

99%.

McKay also said a review of all of last season’s replays showed that the right call was made close to 99 percent of the time.

Whatever “right” means.

The Island of Misfit Conservatives

July 3rd, 2012

 

The Dangers of Conservative Popular Constitutionalism

July 3rd, 2012

Maybe this is what happens when conservative jurists try to gauge public sentiments and be popular constitutionalists? Liberals, who have been doing this for decades, are good at it. Conservatives, who for decades clung to formalism and originalism and other isms, lack that experience. So when the Chief tries to do what he did, it failed miserably. This is kinda like when Justice Stevens or Breyer tries to do originalism. They fail.

Maybe judges should just stick at what they are good at, and not switch approaches in the most important case of a generation.

My paper on popular constitutionalism and the challenge to the ACA will probably take this arc.

Some more stories about LawTechCamp

July 3rd, 2012

Legal Market Musings writes:

At the top end of the value chain, Josh Blackman, assistant professor at South Texas Law, recalled how FantasySCOTUS was using crowdsourcing to predict US Supreme Court judgments. At a more granular level, the Harlan Institute and others, includingThomson Reuters, were effectively transforming legal rulings into countless data points, turning the “qualitative into the quantitative”. By capturing data on legal arguments, judges’ decision histories, lawyers’ success ratios and numerous other factors, the end result of this effort was clear: ultimately, technology will allow client to explain their situation to a computer interface, which will tell them whether, based on law and precedent, it would be likely that they would win a legal dispute. Think the iPhone’s Siri, but offering legal advice.
If this sounds like fantasy, several speakers pointed out that IBM’s super-computer, Watson, had recently beaten two past champions of US game-show Jeopardy in a special edition of the show. If computers can be more effective at answering quiz show questions than expert humans, then why can’t they be better than lawyers at offering legal advice?
And this stream of consciousness from Legal-Aware:

Josh Blackman, Asst. Professor, South Texas Law, Creator of FantasySCOTUS.net, Harlan Institute

Disruptive technology is changing how we do law. ‘Law’s Information Revolution’ involves disruptive technology. People can make predictions – this crowd-sources the prediction market, based on ‘The wisdom of the crowds’ by James Surowiecki. Most people involved with the judicial system interact with the lower courts. There are inherent problems therefore in crowd-sourcing, therefore. Assisted decision-making can instead help make decisions, with the help of ‘Super Crunchers’ (Ian Ayres). Individuals have capabilities which are limited. In the US, we use ‘PACER‘ which is not free, and close sourced. It’s a very good money-maker, but the information is there. Law is like data, and there are facts and trends lying there, like “The Matrix”. Another example is Harland which has used the PACER data which can track the timeline which we have developed, and events can be linked easily. For example, one could ask what cases are Google currently involved in? It would be very difficult to track this without such a platform. Take another example: imagine if you have an app where you could ask to ask, “I want to draft to draft a contract which…” or “My landlord won’t fix my problem” – regarding the latter, the app could produce various options.