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Oyez, oyez oyez! Happy first Monday! Today LexPredict has launched the 7th Season of FantasySCOTUS. Continuing our successes from last year, FantasySCOTUS is sponsored by Thomson Reuters. If you’ve played before, or are new to the competition, sign up and start predicting cases. If you haven’t we have three new reasons to join.

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In the New Rambler, Cornell Law School Dean Eduardo Peñalver reviews Ilya Somin’s book on Kelo. (Ilya replies to the substance here). One of the more salient aspects of the review focused not on the case, but on the author. He writes:

At the time Kelo came down, Ilya Somin was a junior professor at George Mason Law School and a blogger for the Volokh Conspiracy – the most influential conservative law blog in the country. As a committed libertarian and an up-and-coming scholar of property and constitutional law, Somin was ideally situated to serve both as the leading conservative academic commentator on the case and as a participant in the emerging backlash. Somin’s work on eminent domain has consistently straddled these two worlds of scholarship and property rights advocacy. He has written scores of blog posts on the issue. He has testified before the Senate Judiciary Committee, where he criticized then-Supreme Court nominee Sonia Sotomayor for her vote in a post-Kelo eminent domain case while she was a judge on the Second Circuit. But he has also written several well regarded law review articles on Kelo. And now, in his new book, The Grasping Hand:Kelo v. New London & the Limits of Eminent Domain, Somin offers the most comprehensive review to date both of the case itself and of the various legal reforms the backlash against it has sparked. The book is something of a ten-year retrospective of Somin’s own intellectual engagement with the issue of eminent domain.

Law professors occupy a unique role in our society. One the one hand, we are scholars. We are expected to dispassionately analyze what courts do, and provide commentary and insights into the law. But in doing so, it is virtually impossible not to develop opinions about whether the courts acted correctly or incorrectly, or whether the law is heading in a good or bad direction. (This is especially true when writing about constitutional matters). This latter tension doesn’t make dispassionate analysis impossible, but it does make it more difficult–it requires a lot of discipline to not make certain arguments. Many law professors–Ilya and myself included–use this knowledge to engage in forms of advocacy, whether it be writing editorials, filing amicus briefs, or testifying before legislative bodies. Penalver’s analysis of Ilya suggests that the latter affects the former: he “consistently straddled these two worlds of scholarship and property rights advocacy.” It is true, that over the last ten years, it would be impossible to discuss the backlash to Kelo without discussing Ilya (and the Institute for Justice). As much as Ilya became the expert about the case, he became part of the story.

I feel a certain kinship to Ilya, because (no doubt) something very similar could (and probably will) be written about me and Obamacare. I began teaching months after NFIB v. Sebelius was decided, and my first book about it was published shortly after the one year anniversary of the case. Since then, I’ve commented on virtually every aspect of the case in all manners of public fora. What does this mean for my scholarship? In Unprecedented, I went out of my way to be objective. This was feasible because I was a law clerk during the pendency of the case, and didn’t file any briefs, or even write any editorials about the case. Unraveled will not be so easy. I filed a brief in King v. Burwell, filed another one in the Little Sisters Case, and wrote countless editorials about the case. I testified before Congress about DAPA, where I referenced the lawless manner in which the ACA has been implemented. I won’t have the air of objectivity I had in Unprecedented for Unraveled. This was a conscious decision, that I am quite aware of, though I think it does open me up to the same sort of critiques Penalver offered for Ilya. I will try to write Unraveled in the same sort of style as Unprecedented, notwithstanding my personal connections with these cases. I hope it is successful.

During a keynote speech to HRC (Human Rights Campaign), Vice President Biden offered these remarks about Obergefell:

The vice president opened by discussing praise he has received for the Meet the Press interview when he endorsed marriage equality in 2012. Biden quickly pivoted the focus back to the audience, however, saying this June’s marriage equality ruling “is not because of any national figure who spoke out,” but is instead because of the people in the room and thousands of others “who have had the courage to stand up and speak, to speak their hearts and minds.”

He continued: “You left the Supreme Court absolutely no choice, no choice whatsoever — I mean that — but to recognize the simple proposition my father taught me 50 years ago,” which, he had earlier said, was, when the Bidens saw a gay couple kissing on the street when the vice president was growing up, “They’re in love with each other, it’s that simple.”

You may recall that in 1987, after the Bork nomination imploded, Larry Tribe pushed for Justice Kennedy’s nomination, as part of his counsel to Senator Joe Biden, who then chaired the Senate Judiciary Committee. Linda Greenhouse reported at the time:

The chairman of the Senate Judiciary Committee, Senator Joseph R. Biden Jr., said: ”I’m glad the President has made his choice. We will get the process under way and move as rapidly as is prudent. We want to conduct the committee’s review with both thoroughness and dispatch.” ….

Laurence H. Tribe, the Harvard Law School professor and a liberal who has been a close adviser to Senator Biden, said in an interview that his initial impressions of Judge Kennedy were very favorable.

”His opinions are more sensitive than strident,” Mr. Tribe said. ”He replaces the dogmatism of Robert Bork with a sense of decency and moderation.”

No choice whatsoever.

Further, speaking of Biden, you will also recall that it was Biden’s appearance on Meet the Press, where he came out in support of gay marriage–even though the President had not yet done so–that made the President “angry.” Game Change reported:

Mr. Obama and his team were also angry when Mr. Biden declared his support for same-sex marriage on “Meet the Press” in the spring of last year, pre-empting the president’s own poll-tested plans to announce what the book indicates was a position he had held as early as 2004.

 

Time Magazine’s feature on Forcing the Spring relays similar events on the President’s “Evolution” towards supporting same-sex marriage: Even as right-wingers like Laura Bush came out in support of same-sex marriage, the White House was still concerned about the political risks in the upcoming election.

But for all the political and corporate cover, Obama’s political advisers remained worried that the costs outweighed the benefits — a fear that intensified as it became clear that North Carolina, a battleground state that Obama narrowly won in 2008, was poised to easily pass a constitutional amendment banning same-sex marriage.

“This was so past the sell-by date,” one senior administration official said of the timing of an announcement by the president, “yet there was still no real plan in place. It just shows you how scared everyone was of this issue.”

But, then Biden happened. The book recounts Vice President Biden’s own evolution.

It was clear from Biden’s body language that the question made him uncomfortable. His public position was no different from the president’s. As a senator, Biden voted for the Defense of Marriage Act. As a presidential candidate himself, he said he supported civil unions. And as the vice president, he had studiously toed the administration’s shifting line. ..

“Things are changing so rapidly, it’s going to become a political liability in the near term for an individual to say, ‘I oppose gay marriage.’ Mark my words.”

Having started down this road, he seemed incapable of stopping. People his children’s age could not understand why gay couples should not be allowed to marry, he said. “ ‘I mean, what’s the problem, Dad?’

“And my job — our job — is to keep this momentum rolling to the inevitable.”

The answer stunned everyone in the room, even top aides who were used to the gaffe-prone vice president’s habit of going off script.

Two weeks later, during an interview on meet the Press, Vice President Biden said that he supports same-sex marriage.

“What this is all about is a simple proposition,” he told Gregory. “Who do you love, and will you be loyal to the person you love? And that’s what people are finding out is what all marriages at their root are about.”

“And you’re comfortable with same-sex marriage now?” Gregory pressed.

“I, I — look — I am vice president of the United States. The president sets the policy. I am absolutely comfortable with the fact that men marrying men, women marrying women and heterosexual men and women marrying one another are entitled to the same exact rights, all the civil rights, all the civil liberties.”

This was more of a “my job” than “our job” line. And it set the White House into shock.

One of Biden’s advisers told him, “I think you may have just gotten in front of the president on gay marriage.”

Contrary to what some suspected, this was not an intentional test balloon. Biden went for it himself.

Political commentators immediatelybegan to speculate that Biden’s remarks were either intended as a trial balloon or had specifically been cleared by the White House to mollify gay voters without the president’s having to take a position. Neither was the case. When the White House press team received a transcript of the interview, tempers flared. Jarrett, who was still hoping that Obama might make a groundbreaking pre-election announcement, accused Biden through an intermediary of disloyalty. Campaign officials were also agitated. “They felt they already were vulnerable,” one White House official told me, “and they had not fully resolved yet what they wanted to do.”

And rather than embracing Biden’s comment, the White House tried to walk it back!

The White House quickly tried to walk back Biden’s comments. “What VP said — that all married couples should have exactly the same legal rights — is precisely POTUS’s position,” Axelrod tweeted on Sunday, May 6, the day Biden’s interview aired. Biden’s office was told to put out a “clarification” echoing that sentiment: “The vice president was expressing that he too is evolving on the issue,” it said. …

Griffin’s question had inadvertently set off a chain reaction. Obama and his team knew that he had to take a stand, soon, or risk looking as if he were “leading from behind,” a portrayal the White House hated.

Curiously enough, the first lady saw Biden’s comment as liberating:

Some of Obama’s top advisers urged him to take Biden to task for forcing his hand, but he refused. The first lady saw the whole thing as a blessing in disguise. The endless debate was over. You don’t have to dance around this issue anymore, she told her husband over breakfast on Wednesday, in a conversation she relayed afterward to several top White House officials. “Enjoy this day,” she said as he headed off for his interview. “You are free.”

 

In light of recent events, I post a link to my 2014 article with Shelby Baird (now a 1L at Duke Law!) titled The Shooting Cycle. Here is the abstract:

The pattern is a painfully familiar one. A gunman opens fire in a public place, killing many innocent victims. After this tragedy, support for gun control surges. With a closing window for reform, politicians and activists quickly push for new gun laws. But as time elapses, support decreases. Soon enough, the passions fade, and society returns to the status quo.

We call this paradigm “the shooting cycle.” This article provides the first qualitative and quantitative analysis of the shooting cycle, and explains how and why people and governments react to mass shootings.

This article proceeds in five parts. First, we bring empirical clarity to the debate over mass shootings, and show that contrary to popular opinion, they are fairly rare, and are not occurring more frequently. Second, relying on cognitive biases such as the availability heuristic, substitution effect, and cultural cognition theory, we demonstrate why the perception of risk and reaction to these rare and unfamiliar events are heightened. Third we chronicle the various stages of the shooting cycle: tragedy, introspection, action, divergence, and return to the status quo. During the earlier stages, emotional capture sets in, allowing politicians and activists to garner support for reform. But, after the spike, soon support for reform fades, and regresses to the mean. Fifth, with this framework, we view the year following the horrific massacre in Newtown through the lens of the shooting cycle. We conclude by addressing whether the shooting cycle can be broken.

Everything we wrote in 2014 is just as, if not more true today. The President commented, “The reporting is routine. My response here at this podium ends up being routine. The conversation in the aftermath of it. ” He’s exactly right.

Mass shootings constitute a very small percentage of gun homicides in the United States (depending on how you count, less than 1%). But because of various cognitive  heuristics, they capture the hearts and minds of the public. But these events, no matter how hard the media tries, do little to affect public opinion anymore.  Perhaps the one positive outcome of this experience has been the decision of some, but not all, media sources to refuse to identify, and thus glorify the assailant. This murderer in particular was likely a copycast, who sought the same notoriety as the person who killed two reporters in Virginia on live television. He wrote on his blog, “A man who was known by no one, is now known by everyone … seems the more people you kill, the more you’re in the limelight.” One of the most “common-sense” approaches that can be taken now is to not give him what he wants.

The Affordable Care Act has not lived up to its name. As I’ve discussed at some length, the winners of Obamacare tend to be those who could not afford insurance before the law went into effect–either because they did not have enough money, or because pre-existing conditions made their premiums unaffordable. This number is fairly finite–under 20 million. But what about the two-hundreds millions people who were quite content with their health insurance policies before Obamacare, but stand to lose them? For the majority of them, they are paying more, and getting less. This–and not any litigation challenges–poses the biggest existential threat to the ACA. If rates continue to increase, as quality of care decreases–and more people opt to go uninsured–the law will quickly become unstable. In Slate, Reihan Salam cogently summarizes the numbers:

Whether the next president is a Republican or a Democrat, Obamacare is going to be overhauled. The reason is that in its current form, it is not serving middle-class families all that well. Back in June, Robert Laszewski, a close observer of the insurance industry, pointed out that among people eligible for the Obamacare exchanges, it is only the poorest and sickest who’ve been signing up for coverage in large numbers. For example, 76 percent of eligibles earning between 100 and 150 percent of the federal poverty level have enrolled while only 20 percent of eligibles earning between 251 and 300 percent have done so. This is despite the fact that the law uses all kinds of carrots (subsidies for those who can’t afford coverage) and sticks (penalties for those who forego coverage) to get uninsured people to sign up. The problem, according to Laszewski, is that while Obamacare-compliant plans are a good deal for the poor, who enjoy generous subsidies, and the sick, who get far more in benefits than they pay in premiums, they appear to be a bad deal for everyone else.

Recently, the economists Mark Pauly, Adam Leive, and Scott Harrington released aworking paper that estimates how much better or worse off “non-poor” uninsured people’s earnings would be after buying Silver or Bronze plans on the Obamacare exchanges. Among other things, they took into account the average financial burden involved in buying coverage as well as the value associated with consuming more medical care. What they found is that while most uninsured people making between 138 and 250 percent of the federal poverty level seem to be somewhat better off, a substantial majority of those earning more than 250 percent seem to be worse off. Essentially, most of the better-off uninsured are paying far more for their Silver and Bronze plans in premiums than they are getting out of them in benefits.

The result is that millions of middle-class people are choosing to go without coverage, despite the risk that entails. It turns out that it is very hard to force people to buy products that they don’t want. True, the IRS could get much tougher about forcing the uninsured middle-class to pay penalties, and Obamacare’s champions could get behind making these penalties more onerous. But does anyone see this get-tough approach as a huge vote-winner? As long as middle-class voters don’t believe that Obamacare is benefiting them, Obamacare is going to be politically vulnerable.

So what to do? Reihan offers this a truce that both Republicans and Democrats should–but won’t–jump at:

What might an Obamacare truce look like? Rather than fight the fact that the Obamacare exchanges have become a refuge for the poor and the sick, Republicans and Democrats should embrace it. The central elements of the Obamacare truce would be to repeal the unpopular individual and employer mandates, which are meant to corral people into buying insurance, and to deregulate individual insurance plans that are not sold on the exchanges. (Right now, all individual health insurance plans must be compliant with Obamacare’s insurance regulations.) If you want to buy an Obamacare-compliant policy, you’d be welcome to buy one on an exchange. But Obamacare’s insurance regulations and its premium subsidies would only apply to plans sold on the exchanges.If you choose to buy private insurance not on an exchange, your plan would be regulated by your state government, and you wouldn’t be eligible for any financial assistance. Premiums for off-exchange plans would tend to be much lower than for Obamacare-compliant plans, as they’d offer fewer free services upfront and they’d skimp on Obamacare-mandated benefits that many consumers don’t want or need. Yet because these plans are better-targeted to meet the needs of the middle-class unsinsured people who are avoiding the Obamacare exchanges like the plague, there is good reason to believe that coverage levels would increase. That’s an outcome both the left and the right should celebrate.

In effect, the Obamacare exchanges would only serve as high-risk pools:

Conservatives can talk a big game about replacing Obamacare with high-risk pools. Yet they often underestimate how expensive these high-risk pools would be and how difficult it would be to get them off the ground. The Obamacare exchanges are perfectly designed to serve this function. The downside, of course, is that because the exchanges would serve a poor and sick population, theaverage cost of serving beneficiaries on the exchanges would be high. This in turn means that insurers would charge very high unsubsidized premiums for exchange plans.

But these high unsubsidized premiums would affect relatively few people, as almost everyone who isn’t eligible for premium subsidies would flock to cheaper, lightly regulated off-exchange plans. (One big exception would be states like New York that had heavily regulated insurance markets even before Obamacare. This is an argument for allowing consumers to buy off-exchange insurance policies across state lines, so that New Yorkers could take advantage of lightly regulated Texan policies, or for states like New York to embrace deregulation.)