Balkinization  

Friday, September 19, 2014

Interview on the Black Box Society

Guest Blogger

Lawrence Joseph and Frank Pasquale

In the interview below, Lawrence Joseph interviews Balkinization blogger Frank Pasquale about his forthcoming book, The Black Box Society: The Secret Algorithms That Control Money and Information. Joseph is Tinnelly Professor of Law at St. John's School of Law, and a poet and author of literary prose and essays. Pasquale teaches at the University of Maryland and serves on the Council on Big Data, Ethics, and Society.

Lawrence Joseph: First of all, I want to say that I consider The Black Box Society a monumental and stunning achievement--its truly extraordinary range of critical analyses and research, its clear and masterfully written style. You mention that the book took ten years to write. Could you explain your project and how it evolved over a time of unprecedented changes in global technologies and political economies?

Frank Pasquale: Thank you, Larry. This project began with a contrarian hunch about search engines. As Google grew in the early 2000s, the primary policy question seemed to be: “how do we get law out of the way of this company so it can keep organizing the internet?” I shared that optimism at first--but I was also concerned about the downside.

I started compiling stories about people who felt Google was treating them unfairly--by, say, disappearing their site from results, or giving prominence to scurrilous or salacious material. I looked at firms with similar business models, ranging from data brokers to social networks. All used technologies of search to order incredibly diverse content.

Data-intensive technology kept spreading. Not only product choices, but personal reputations were increasingly determined by algorithms, too. The way we see the world was filtered through them. And as results got more personalized, reputation and search became intertwined, mutually reinforcing: what a search engine knows about me helps it anticipate what I want, even on the basis of a few letters typed into a search bar. But the actual programming behind such critical determinations was hidden behind layers of trade secrets and nondisclosure agreements.

Since this was such a new area for law, there were hundreds of ideas one could write up in response to it. As I tried to prioritize, my guiding principle was: where are search and reputation technologies most important? Briefly, my answer was: force and finance. Two cataclysmic Septembers (2001 and 2008) seared them in my mind.

The force sector—from local police to DOD to DHS and their many private contractors—garnered extraordinary new powers after 9/11. The finance sector is our arbiter of opportunity, making money cheap for some people and expensive for others. As it broke down in 2008, it became clear that a government ever more minimalist and lethargic on the economic front could suddenly transform into a Hamiltonian Leviathan when elite firms faltered. Both the force and finance sector were using new technology to accomplish incredibly fine-grained surveillance, and were being transformed by computerization. That transformation, I worried, was simply entrenching current inequalities and inequities, rather than challenging them.

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Monday, September 15, 2014

Judith Baer, Ironic Freedom: Personal Choice, Public Policy, and the Paradox of Reform

Mark Graber

Professor Judy Baer is the best feminist theorist most readers of Balkinization have never heard of.  Her works, most notably Our Lives Before the Law and The Constitutional and Legal Rights of Women (with Leslie Goldstein) are classics within political science, but have far less cache in the legal academy.  This is a shame.  Professor Baer is an acute critic of both liberalism and feminism.  Her works confront the challenges to both in ways that deserve a broad audience.  Ironic Freedom: Personal Choice, Public Policy, and the Paradox of Reform is another exceptional work that will challenge liberals and feminists inside and outside the classroom.

The central concern of Ironic Freedom is the way in which arguments that promise women and members of other historically subordinated groups greater freedom have the potential to generate new forms of subordination.  Repeatedly, legislative or judicial decisions that permit women to take formerly banned actions foster social practices that compel women to take those actions.  Within weeks after New York declared persons had the right to marry a person of the same sex, many businesses in that state announced they would no longer offer domestic partner benefits to same-sex couples who did not marry within a short period of time.  Affluent couples have pressured desperate poor women to have their baby in states where surrogate motherhood is legal  “May,” Professor Baer detailed, in these instances and many others was partly transformed into “must.”

Ironic Freedom details the ways in which policies permitting a right to die, birth control, abortion, surrogate motherhood, prostitution, a volunteer army, equal employment opportunities, and same-sex marriage all generate coercive pressures that some woman are better able to resist than others.  In numerous areas of law, Baer details, the possibility exists that “permission will lead to coercion: that ‘may’ will become ‘must,’ or ‘can’ will become ‘should.’”  Liberal freedoms are not unmitigated blessings because being a woman, being gay, being young (or old) or being differently abled is not the sole marker for any person.  Whether legalizing prostitution increases liberty depends on the extent to which particular woman are free in practice choose whether to become prostitutes.  Legal birth control increases pressures on many women to engage in sexual behavior.  Some elderly poor are unable to resist subtle and unsubtle pressures to exercise their “right” to die.

Professor Baer provides an exceptionally readable introduction to the ways in which “may/must’ arguments function in contemporary discourse.  The chapters on each subject highlight how various “may/must” arguments implicate liberal and feminist concerns, and are not simply rationales for conservatives opposed to the right in question primarily on illiberal and antiegalitarian grounds.  The volunteer draft has resulted in a military in which poor persons and persons of color are overrepresented.  Some men are more inclined to pressure women to terminate pregnancies because abortion is legal.  Far more poor than affluent persons choose assisted suicide.  Professor Baer at the end of the day makes strong arguments for all of the liberties in question.  Nevertheless, she insists that liberals and feminists keep their eyes open when promoting liberalizing policies because all liberalizing policies have coercive dimensions, dimensions likely to be exacerbated when ignored.  Liberalization, in short, is only one step in a long, complicated and paradoxical process by which men and women in our society may become equally free and equal.

Ironic Freedom is particularly appropriate for classroom use.  The work is short, accessible and fascinating.  The text promises one terrific class after another.  The chapters explore the pros and cons of various policies from a variety of fascinating angles and do not resemble the disguised legal briefs that too often dominate the academic law market.  Most important, at a time when intersectionality is hot, this is perhaps the best introduction to the ways in which gender intersects with race, sexual orientation, class, and disability to make what appear obvious liberal and egualitarian policies a bit more illiberal and antiegalitarian than many of us would like to acknowledge.

Friday, September 12, 2014

Obama's Unconstitutional War

Bruce Ackerman



There wasn't enough space on the New York Times' op-ed page for me to elaborate a key legal issue in my critique of Obama's unilateral declaration of war against ISIS. My essay emphasized that in 2001 Congress rejected President Bush's initial demand for sweeping powers to launch a world-wide war on terror, and only authorized the use of force against groups and countries associated with “the terrorist attacks on September 11th.” But I didn't have room to explain the full significance of point.
 
The president initially demanded authority “to deter and preempt any future acts of terrorism or aggression against the United States.” (My emphasis). If Congress had accepted this language, President Obama’s claim that his war on ISIS was authorized in 2001 would have been on solid ground. But Congress refused precisely because it wanted to force future Presidents to return to the House and Senate for targeted approval of further military initiatives. 

 David Abramowitz makes this plain in a contemporaneous essay in the Harvard International Law Journal. (See "The President, the Congress, and the Use of Force, 43 Harv. I. L. J. 71 (2002). He was chief counsel of the House Committee on International Relations at the time, and explains Congress’ rationale for rejecting President Bush’s initial demand in a particularly cogent fashion:  “Given the breadth of activities potentially encompassed by the term ‘aggression,’ the President might never again have had to seek congressional authorization for the use of force to combat terrorism.” In claiming that Congress’ authorization of force against Al Qaeda supports his war against ISIS thirteen years later, President Obama fails to confront Congress’ self-conscious refusal  to grant the commander-in-chief any such power to launch future preemptive campaigns.  terror.

At the present time, the White House has failed to publish an opinion supporting the Administration’s current interpretation of the 2001 statute. If the Office of Legal Counsel or the White House Counsel does so in the future, it is imperative for it to explain how the Administration's current open-ended interpretation is compatible with Congress’ original refusal to grant presidents a free-hand to wage preemptive war against future terrorist threats.

 




Thursday, September 11, 2014

The Elasticity of War: The Ever Expanding AUMF

Jonathan Hafetz

President Obama may not have initiated the War on Terrorism, but he has certainly become attached to it. The administration now maintains that the President's announced campaign to use force against the Islamic State of Iraq and the Levant (ISIL) in Iraq and Syria is covered by the existing 2001 Authorization for Use of Military Force (AUMF), which was passed days after the 9/11 attacks and specifically targeted those individuals and organizations responsible for the attacks. The legal theory is that ISIL was originally part of al Qaeda and, while it subsequently split from al Qaeda, "is the true inheritor of Usama bin Laden's legacy." (Oddly, this theory suggests that the U.S. has been at war with ISLS for some time, even if no one knew it). Cloaking ramped-up operations against ISIL in the AUMF has multiple aims, including providing the required congressional approval under the War Powers Act; avoiding the limitations of relying exclusively on the President's Article II commander-in-chief authority; and escaping a contentious congressional debate shortly before the upcoming mid-term elections. But, putting aside its questionable interpretation of the AUMF, the administration's theory raises troubling questions about the entrenchment of permanent war in a liberal democratic state.

The AUMF, to be sure, has been read expansively before. Some notable examples include its invocation for the authority to: detain indefinitely individuals seized anywhere in the world (and not just in connection with the U.S.-led invasion of Afghanistan, which served as the backdrop for the AUMF's enactment); engage in warrantless surveillance of U.S. citizens, circumventing the restrictions imposed by the Foreign Intelligence Surveillance Act; and conduct lethal drone strikes not only against al Qaeda, but also against "associated forces," a term that appears nowhere in the AUMF's text but which has served as the basis for drone strikes in Yemen and Somalia. (Presumably, the fact that al Qaeda and ISIL are presently fighting each other precludes invoking this "associated forces" theory here).

But interpreting the AUMF to cover ISIL remains troubling. Last year, the President delivered a speech at the National Defense University in which he announced his goal of repealing the AUMF and ending the war on terror. Instead, Obama has revitalized the AUMF, not only by extending it to a conflict that is expected to occur on multiple fronts and last years, but also by demonstrating its continued elasticity. A much better course, assuming the underlying decision to wage war against ISIL is correct, would have been to seek a new and narrow force authorization from Congress specifically targeting that group--one that would have required the people's representatives to debate the issue publicly.

Going to war against ISIL through the rubric of the AUMF has significant implications. Among them is the deterioration of the levers of democratic accountability for waging armed conflict in an age of global terrorism. It suggests not only the relative ease with which the United States will go to war, but also the way in which new military actions are subsumed under a more generalized war against extremist groups. War is becoming increasingly open-ended, while also more able to avoid democratic checks, as each successive military operation gets subsumed within an existing--and ever growing--conflict. War doesn't end; it just expands, all without the friction that the separation of powers is designed to provide.

Passive Aggressive: Scalia and Garner on Interpretation

Andrew Koppelman


Antonin Scalia’s and Bryan Garner's coauthored treatise on legal interpretation, Reading Law: The Interpretation of Legal Texts, is also a melodrama, with sharply drawn good guys and bad guys. The hero is the Faithful and Impartial Judge, the servant of Democracy. The argument is weak and inconsistent with Scalia’s actual practice as a judge. The book nonetheless nicely accomplishes what it is trying to do. Scalia is one of the authors, to be sure, but he is also the protagonist of a narrative. The author’s preeminent concern is seeing to it that you perceive the protagonist as the author intends: as the champion of judicial restraint, against all those liberal oligarchs. If you buy the story of Virtuous Scalia, that empowers Judicial Activist Scalia. 

I elaborate in a review of the book in the literary journal Boundary 2, available here.



Monday, September 08, 2014

Beyond Levels of Scrutiny: Windsor and 'Bare Desire to Harm'

Andrew Koppelman



In United States v. Windsor, the Supreme Court left many people unsatisfied when it failed to identify the level of scrutiny to apply to laws that classify by sexual orientation. That question however was not even presented. The Defense of Marriage Act, which the Court invalidated in that case, makes no reference to sexual orientation, but it does speak of “man” and “woman.” It classifies on the basis of sex. Sex-based classifications are presumptively unconstitutional. The Court avoided this rationale for its result, probably because it did not want to reach the question of whether states could deny same-sex couples the right to marry.

The equal protection analysis upon which the Court did rely, the lesser-used “bare desire to harm” doctrine, had nothing to do with levels of scrutiny. It looked past that heuristic device to the underlying purposes of equal protection. This was a rare but appropriate response to an unusual kind of law, one that singles out a particular class and imposes an unprecedentedly broad disability upon it.

I elaborate on this argument in a paper forthcoming in Case Western Reserve Law Review, available on SSRN, here.

Saturday, September 06, 2014

Citron, Hate Crimes in Cyberspace

Mark Graber


Danielle Citron for the past half decade has been doing for cyber harassment what Catherine McKinnon did for sexual harassment.  McKinnon’s Sexual Harassment of Working Women redefined as criminal behavior the sexual remarks and demands directed at women in the workplace that too many people had regarded as adolescent philandering and teasing.  Citron‘s Hate Crimes in Cyberspace redefines as criminal behavior the repeated threats, insults, and gross violations of basic privacy norms on the internet that too many people, police in particular, regard as  juvenile behavior.  Her book has already gained national attention as a pathbreaking study of how cultural tolerance of bullying and harassment on the internet is threatening to turn the most important contemporary forum for ideas into masculine Wild West where respect and common decency are signs of weakness rather than basic norms of conduct.

Hate Crimes in Cyberspace offers a remarkably thorough survey of the depressing state of the internet for women.  The first chapters detail how women are repeatedly attacked on the internet, sometimes for challenging sacred cows, sometimes because they have broken up with their boyfriends, and sometimes because persons unknown to them derive pleasure from causing random women pain.  Harassment and bullying take the form of death and rape threats, attacks on their websites, posting of nude picture on revenge porn cites, malicious accusations that are often forwarded to associates and potential employers, and Google bombs designed to destroy their reputation in cyberspace.  Many men join cyber mobs who victimize women just for the thrills.  Harassment and bullying have the same impact on the internet as elsewhere.  Women participate less in cyberspace, they become more generally fearful, and they lose employment and other opportunities when persons attempt to research their background in cyberspace.  A decent person would not wish on their worst enemy the cyberexperiences Citron documents.

The second set of chapters detail problems with present efforts to stop hate crimes on the internet.  Citron focuses on three problems.  The first is the genuine difficulty of bringing perpetrators to justice.  The very same anonymity that fosters malicious attacks on women makes attackers difficult to identify.  The second are police attitudes.  Too many law enforcement officials either are unaware of laws prohibiting cyberbullying or regard the laws as somewhat less significant than minor drug offenses in middle class neighborhoods.  A consensus often exists that ordinary citizens ought to have somewhat greater tolerance for online insults and death threats than the president of the United States.  Finally, laws regulating bullying, harassment and stalking were not drafted with the internet in mind.  A person who says “I want to rape you” directly to a potential victim violates laws that may not be violated by a person who posts on numerous websites “I want to rape X.” 

The last set of chapters focus on legal and social solutions to the problem of hate crimes on the internet.  Citron proposes a draft law on revenge porn (that several states are adopting), other measures aimed at preventing cyber mobs from forming and laws outlawing extortionist practices whereby websites encourage malicious postings and then charge victims to take them down.  Hate Crimes also recognizes that the law has substantial limits.  Citron makes a number of intelligent suggestions for how private entrepreneurs, schools and families can help clean up the internet.

Hate Crimes in Cyperspace  has the same ambitions as Sexual Harassment of Working Women, but the approach differs and, I think, is for more successful.  McKinnon has always believed Americans need theory to understand what is wrong with sexual harassment.  Citron’s guiding assumption is that all Americans need is common sense to work out that people should not urge that women be murdered and raped, post nude photographs of ex-girl friends on revenge porn sites, or spread malicious gossip. Hate Crimes details how the vast majority of hate crimes on the internet target women and Citron makes use of some feminist theory when explaining why this is the case.  But while one goal of the book is to ensure an internet in which woman can participate as equals, Citron makes far clearer than McKinnon that the crimes she is documenting can easily be identified by a11 decent persons, regardless of whether they are Kantians, Marxists, critical race, gender or queer theorists, utilitarians, or the like.

The debate over Citron’s work will focus on the First Amendment rights of cyberbullies, but a fair case can be made that the book defines constitutional rights too broadly rather than too narrowly.  Hate Crimes in Cyberspace endorses a populist understanding of the internet in which “All information should be free.” This commitment explains why Citron struggles when drawing boundaries between posting nude pictures of ex-girlfriends on revenge porn websites that are not constitutionally protected and posting other information about ex-girlfriends on various websites that may be constitutionally protected.  I confess to thinking that no one has a right to post, without my permission, my record against the chess program on my private computer, even though this is information.  And despite the mantra “All information should be free,” no one has a constitutional right to post my defense against queen pawn openings if I choose to charge people for this information.   I do not think I have a First Amendment right to post on a public website either “I fantasize about beating the world chess champion” or “I fantasize about murdering the world chess champion.”  Doing so may be highly therapeutic, but with apologies to a significant percentage of my family, the Constitution provides no special protection to therapy.  The First Amendment protects discourse about public affairs, defined broadly but not capaciously.  A very high percentage of what takes place on the internet is not discourse and has little or nothing to do with public affairs.   We might choose to regulate only false claims about a person’s LSAT scores because such claims are particularly damaging, but no constitutional right exists to publish actual LSAT scores, except under rare circumstances.  The same logic explains why we might not want to regulate my public postings about my chess fantasies but regulate my public postings about my murder fantasies even though neither enjoys constitutional protection.  Citron really frets about boundaries when regulating hate speech on the internet because she works within two categories: speech that should be criminalized and behavior that is protected by the First Amendment.  I think there is a third class, namely behavior that for various reasons is not worth criminalizing even though that behavior is not constitutionally protected.

Justice Brennan famously declared that the Constitution of the United States is “committed to the principle that debate on public issues should be uninhibited.”  Not all inhibitions, however, are created equal.  People should not be inhibited by fears that they will be sanctioned by those who disagree with their vision of public life.  Other inhibitions are more valuable, particularly as the connection between speech and public issues becomes increasingly truncated.  People ought to be inhibited by basic norms of decency that prescribe silence when the main purpose of speech is to cause distress, humiliation, and fear.  Danielle Citron has been a crusader for those inhibitions and Hate Crimes in Cyberspace  is the seminal work that documents how truly uninhibited speech savages the marketplace of ideas.

Thursday, September 04, 2014

Posner v. Scalia: Round 2,346

Jason Mazzone

Among the many, many zingers in Judge Posner's  opinion today for the Seventh Circuit panel in Baskin v. Bogan affirming the district court judgments invalidating bans on same-sex marriage in Indiana and Wisconsin:
Subsequent decisions such as Romer v. Evans, 517 U.S. 620, 634–36 (1996); Lawrence v. Texas, 539 U.S. 558, 577–79 (2003), and United States v. Windsor [133 S. Ct. 2675 (2013] are distinguishable from the present two cases but make clear that Baker [v. Nelson, 409 U.S. 810 (1972)] is no longer authoritative. At least we think they’re distinguishable. But Justice Scalia, in a dissenting opinion in Lawrence, 539 U.S. at 586, joined by Chief Justice Rehnquist and Justice Thomas, thought not. He wrote that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage. Id. at 605.

CTADC Rehearing en banc granted in Halbig

Marty Lederman

The U.S. Court of Appeals for the D.C. Circuit just vacated the judgment of the panel in Halbig and granted the government's motion for rehearing en banc.  The schedule for briefing and argument is as follows:

Brief for Appellants October 3, 2014

Joint Appendix October 3, 2014

Brief(s) for Amici Curiae for Appellants October 3, 2014

Brief for Appellees November 3, 2014

Brief(s) for Amici Curiae for Appellees November 3, 2014

Reply Brief for Appellants November 17, 2014

Oral argument at 9:30 a.m. on Wednesday, December 17, 2014, in Courtroom #20, Sixth Floor.

Tuesday, September 02, 2014

Illinois Law Faculty Blog

Jason Mazzone

The University of Illinois College of Law has launched today a faculty blog. It features postings by faculty members on a range of law-related topics. The blog can be reached via this link.

Monday, September 01, 2014

Steven Salaita and the Modern University

Mark Graber

When I speak, I speak as Professor Mark A. Graber (my eldest daughter, now Professor Naomi Graber, correctly observes that “Dad does not speak, he lectures”).  Many academics wish professors had more authority in our society.  Some wish professors had less authority.  Whatever the authority of academics in an ideal world, in this world a university decision to confer upon us the title of “Professor” increases our authority to some degree, like it or not.

Having conferred authority upon us, a university might insist that we speak as professors even when we are outside the classroom and not in a professional setting.  Of course, we often speak in ways that no one thinks “professorial.”  No one takes my Super Bowl picks seriously.  Nevertheless, when we comment on public affairs, our comments have some extra weight because we are professors in a society that places some value on knowledge.  There is a presumption when I speak about global warming, about British poetry or about Gaza that I have some specialized knowledge or at least training in critical reasoning that gives my words a little more weight than the same comments made by someone of unknown employment.

For this reason, we might think a university justified in denying an appointment to a candidate for a professorship on the ground that the person’s statements on matters of public interest were too often “vulgar,” “juvenile,” and “insulting.”  The First Amendment protects my right to speak in ways that are vulgar, juvenile and insulting, but I have no First Amendment right to be a professor.  Just as no one would think twice about a university who refused to hire a person whose scholarship was vulgar, juvenile and insulting, so in circumstances where our speech is given some authority because we are professors, universities might in the abstract insist that our speech not be vulgar, juvenile and insulting as a condition of obtaining employment.

These observations suggest a somewhat different context for the debate over the decision by the University of Illinois to rescind a job offer to Steven Salaita on the ground that his tweets on the Gaza crisis were disrepectful.  For the most part, Salaita’s defenders emphasize two points, both of which strike me as largely correct.  The first is that Illinois as a matter of policy trusts departments to vet professors.  The decision by Chancellor Phyllis Wise to revoke a departmental offer for non-budget reasons is unprecedented, although I think this is less a free speech/academic freedom issue than a faculty governance/academic freedom issue.  The second is that the circumstances make clear that the offer was revoked because Salaita made “disrepectful” comments about Israel.  Had he made disrespectful comments about Hamas, the Senate Majority leader or the most recent production of Carmen, no one would have noticed or cared.  Viewpoint discrimination is a core First Amendment violation.  We might tie these concerns together by noting that when administrators make unprecedented interventions in hiring decisions, viewpoint discrimination is probably afoot.  Still, some defenses of Salaita suggest a third ground, that professors have constitutional rights to be vulgar, juvenile and insulting when they comment on public affairs, as long as they do not do so in the classroom or, maybe, professional settings.  I am less sure for reasons noted above


But I am more certain that an increasing number of university administrators disagree with me.  Each year, more and more pressure seems to be put on faculty to spend less time on traditional forms of publishing and rely more on social media in which significant incentives often exist for vulgar, juvenile, and insulting speech (I’ve never been told I should be especially careful to avoid such temptations).  Take a look at the website of many law schools and other academic institutions.  Many strongly suggest that the way to gain fame and respect at the institution is through the social media or other outlets where eight second soundbites are norm and footnotes forbidden.  More and more of my friends who do traditional, lots of footnotes, scholarship complain that they have fewer and fewer friends (if any) in the administration and they are becoming the first to be asked about buyouts.  In short, Salaita strikes me as doing exactly what a great many professors are now doing to get ahead in our professions.  Having pressured us to get on the social media, the administrators at our universities can hardly complain if we adopt the conventions of the social media rather than what I think are the better norms of academic discourse.

Digital Labor & Rethinking Economics

Frank Pasquale

It’s easy to document the degradation of work conditions in the wake of capital’s ascendance. I’ve done so for years, fully expecting that globalization would push the downward convergence of non-college-educated American workers’ living standards to that of the 73% of the global work force now living in the developing world. But I think we are in the midst of a sea change of resistance. Just listen to Belabored, an extraordinary series of podcasts on labor struggles (with plenty of print/web sources accompanying each broadcast). Or, if you’re in, or can visit, New York City, try to attend the following two conferences:
Rethinking Economics: A student-led movement, this group has an all-star line-up for a conference on Sept. 12-14. I’m particularly happy to see Philip Mirowski in the mix, as his Never Let a Serious Crisis Go to Waste: How Neoliberalism Survived the Financial Meltdown was one of my most enjoyable (and illuminating) reads this summer.
Digital Labor: This November conference will “will bring together designers, labor organizers, theorists, social entrepreneurs, historians, legal scholars, independent researchers, cultural producers and perspectives from workers themselves to discuss emerging forms of mutual aid and solidarity.” I attended the first iteration in 2009, and am on the Advisory Board for this one. It should be a fascinating event, particularly as forms of exploitation common in the “gig economy” influence large corporations.
And a final Labor Day note: congrats to the attorneys now combating wage theft and worker misclassification.  Law can do much more to elevate the status of labor rights.

Thursday, August 28, 2014

What's in a Name

Mark Graber

My down and dirty research indicates that the Dow Jones Industrial Average has more than doubled while President Obama has been in office.  The Dow began the day at 17,044.  When Obama took office, the Dow was at 7,949. The result is unprecedented gains for anyone slightly above middle-class or better.  Is there any reason why no one refers to the remarkable returns on investments (include 401(k)'s) as "the Obama Market?"

Overruled: A (Third) Response To Professor Adler

Guest Blogger


Rob Weiner

In the hopes of capping the increasingly tedious (not to mention snarky) contretemps with Professor Jonathan Adler, I think it worth reviewing a few of the instances where his responses to my blog posts on Halbig have ignored, elided, or misconstrued my points.
For example, I observed that a threat, to be a threat, must be communicated and understood.  In this case, the alleged coercive purpose of the language at issue in Halbig was lost on both the legislators who supposedly communicated it and the states that supposedly understood it.  Among the evidence I cited that Section 36B was not perceived as a threat were the initial characterizations of the disputed language by Adler and others as a “glitch” and the consequences, as “perhaps unintended.”  Adler’s response re-imagines the word “glitch.”  If that were all he had said back in the day, it might be a plausible riposte.  But in Volokh on September 9, 2011, Adler recounted the theory of some observers that “Congress meant to provide tax credits for any exchange-purchased insurance, because Congress wanted lower-income individuals to be able to purchase health insurance (and comply with the mandate).”  Adler’s reaction: “This may be true,” but the IRS still could not “revise statutory mistakes.” While arguing that the “ample evidence” of the ACA’s intent to encourage states to establish exchanges precluded any argument based on “scrivener’s error,” Adler conceded that, “it is certainly plausible -- perhaps even likely -- that many in Congress wanted tax credits for the purchase of health insurance to be broadly available.”  “Congress may have wanted to make tax credits more widely available,” Adler also wrote, “but that is not what Congress did.”  It is highly unlikely that Congress’s intent to coerce states was clear in 2010 when the ACA was enacted, but became retroactively cloudy over the next 18 months.
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Disturbing reversal of hate-crime convictions in Amish hair-cutting case

Marty Lederman

Yesterday a divided panel of the U.S. Court of Appeals for the Sixth Circuit overturned the convictions of 16 members of the Bergholz Old Order Amish community in Ohio under the 2009 federal hate-crimes law, even though it was undisputed that over a three-month period in 2011, the assailants--under the direction and approval of the Bishop of the Bergholz community, Samuel Mullett--attacked nine other Amish individuals by forcibly slicing off the men’s beards and cutting the women’s hair.  A critical part of the majority's decision is based upon its conclusion that the evidence did not necessarily prove that the victims' religion was a but-for cause of the assaults.  That conclusion strikes me as untenable--indeed, deeply disturbing in its implications.  I'm curious whether others have a similar reaction.

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Wednesday, August 27, 2014

The methodological absurdity of isolated textualism: Halbig, King, and how not to read

Guest Blogger


Jonah B. Gelbach

Because many states refuse to operate their own health insurance exchanges, millions of people must buy coverage through the federal exchange known as healthcare.gov. The IRS pays subsidies to insurers on behalf of qualifying enrollees who buy their plans through healthcare.gov. These subsidies play a critical role in the operation of the Affordable Care Act.

In the D.C. Circuit’s Halbig and 4th Circuit’s King cases, plaintiffs and their supporting amici contend that the text of the ACA forecloses the federal government from paying such subsidies. Section 1401 of the ACA, which authorizes federal subsidies and sets out the formula for determining who is eligible and for how much, states that the subsidy shall be provided for any “coverage month.” A coverage month is defined as any month in which an individual taxpayer, her spouse, or her dependents are covered by a qualified plan in which the taxpayer enrolled through “an Exchange established by the State” under another section of the ACA. 

The Halbig and King cases turn on whether the federal healthcare.gov exchange can qualify as “an Exchange established by the State.” Absolutely not, says Michael F. Cannon, who has participated in these cases as an amicus. Cannon has repeatedly insisted that the phrase “an Exchange established by the State” cannot possibly be read to encompass healthcare.gov: 

(1)    Everyone knows that the federal government is not a State.
(2)    A website established by the federal government therefore cannot possibly be considered “an Exchange established by” a “State.”
(3)    Therefore, it is impossible for a “coverage month” to include months in which health coverage was enrolled in through healthcare.gov, so there is no lawful basis for providing subsidies to those who buy coverage on the federal exchange.

Cannon has categorically rejected any other interpretation, declaring that the IRS’s interpretation of the ACA requires “the absurd claim that the federal government can establish an Exchange that is established by a state.”* 

But Cannon’s claim is the absurd one. It rests on an approach to reading the tax code—one little bit at a time, with no consideration of the rest of the law—that is not just indefensible, but which, outside the particulars of the Halbig and King litigation, no one does defend. 
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"Poverty Capitalism"

Sandy Levinson

If there is any one article that everyone should read and think deeply about, it is Thomas Edsall's piece in the NYTimes (online) on the rise of what he calls "poverty capitalism," i.e., the privatisation of government functions that has the consequences of imposing huge financial costs on the poor.  One cannot possibly understand the realities of Ferguson, Missouri, for example, without understanding the depth of this problem.  Edsall ends his column thusly:

What should be done to interrupt the dangerous feedback loop between low-level crime and extortionate punishment? First, local governments should bring private sector collection charges, court-imposed administrative fees and the dollar amount of traffic fines (which often double and triple when they go unpaid) into line with the economic resources of poor offenders. But larger reforms are needed and those will not come about unless the poor begin to exercise their latent political power. In many ways, everything is working against them. But the public outpouring spurred by the shooting of Michael Brown provides an indication of a possible path to the future. It was, after all, just 50 years ago — not too distant in historical terms — that collective action and social solidarity produced tangible results.
 But  does anyone seriously believe that the United States today is capable of a revived Civil Rights Movement based on the notion of "the beloved community."  Our "community organizer" President in whom so many of us had genuine hope has certainly betrayed any commitment he might ever have had to genuine "community organizing."  And, alas, only the Tea Party is willing to demonstrate and engage in "uncivil" responses to people they (often correctly) view as exploiting ordinary Americans.  Perhaps 'poverty capitalism" is simply a fancier way of saying "Dickensian," for Edwall demonstrates how we have recreated debtor's prisons (in the control of "private" business with an incentive to think only of their bottom lines).  Who in the next presidential election will speak for these victims?  Will Eric Holder start examining legal theories suggesting that there might be limits on the "privatized state" and the betrayal of what we'd like to think are constitutional norms before one can be deprived of liberty or property? 

Saturday, August 23, 2014

Sara Mayeux, We Are All Law and Economics Now

Mary L. Dudziak

For your Saturday, I thought I'd share a post from the U.S. Intellectual History Blog by Sara Mayeux, who is currently a Sharswood Fellow at the University of Pennsylvania Law School. Sara looks at law and economics from the perspective of intellectual history, asking "how did law and economics go from an oddball preoccupation of a few Chicago professors to one of the dominant intellectual frameworks for thinking and talking about law?"  You will think, of course, that Steven Teles already answered the question, but Sara compares Teles' work with landmark intellectual historian Dan Rodgers' Age of Fracture, and also legal historian Brad Snyder.

Sara writes, in part, that "In contrast to Teles’s emphasis on particular personalities and institutions, Daniel Rodgers paints law and economics as one detail in a larger panorama." Meanwhile "Brad Snyder composes a rock-and-roll ballad of generational rebellion, in which law and economics was one of many shiny ’60s alternatives to the stodgy proceduralism of legal scholars past." And then Sara synthesizes these different approaches to causality. Her synthesis, all the links you need, and wonderful writing can be found here. Hat tip to Sam Moyn (@Peiresc @saramayeux). And if you've ever wondered why scholars ever use Twitter, now you know. (@marydudziak)



Friday, August 22, 2014

The Augmented Contraception Coverage Regulations (and an NPRM on extension of the accommodation to some for-profit employers)

Marty Lederman

As promised, the federal government today issued an an interim final rule in which it has augmented the secondary accommodation for nonprofit religious employers that have religious objections to including contraceptive coverage in their employee (or student) insurance plans.  The augmented regulation responds directly to the Supreme Court's suggestion in its Wheaton College order that the Government might "rely[] on [a nonprofit employer's] notice [to HHS of its religious objection] . . . to facilitate the provision of full contraceptive coverage under the Act,” and in so doing guarantee that the employees of that objecting organization would continue to receive cost-free access to contraceptive services while at the same time eliminating any religious objection that such organizations might have had to the requirement that they file "Form 700" in order to opt out.

The government has simultaneously issued a proposed rule, as to which it is soliciting comments for 60 days (until October 21), on how it might extend to certain closely held for-profit entities, such as Hobby Lobby, the same accommodation that is available to non-profit religious organizations--something that the Court in Hobby Lobby described as a less-restrictive means of advancing the government's compelling interests without any significant harm to the employees and students of objecting employers and schools.  Under the proposed rule, covered companies would not have to contract, arrange, pay or refer for contraceptive coverage to which they object on religious grounds, even if they retain employee health plans.  The proposal offers two possible definitions of covered, closely held for-profit companies, and seeks comments on those and other possible definitions, and whether other steps might be appropriate to implement this policy. 


* * * * 

The new interim final rule for nonprofit organizations

This is, in sum, how the accommodation would now work as to a nonprofit employer (or school) that offers its employees (or students) a "self-insured" insurance plan.  (See this post for explanation of the distinction between insured and self-insured plans.)  Under the augmented rule, such an employer or school would have two, alternative means of opting out of coverage.  It can continue to use Form 700, as many organizations have done.  Or, in the alternative:

1.  An objecting organization that has an objection to submitting Form 700 to the plan's third-party administrator need only inform the Department of Health and Human Services that it has a religious objection to offering contraception coverage.  The organization must also provide HHS with the name and contact information for any of the plan’s third party administrators and health insurance issuers.  HHS has provided a "model notice" that eligible organizations may, but are not required to, use  


2.  At that point, HHS would inform the Department of Labor of the organization's opt-out.


3.  DOL would, in turn, inform the plan's third-party administrator (TPA), if any, that it is obliged to offer contraceptive coverage--initially from its own resources--to the organization's employees (and/or students) without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries.  (Moreover, the TPA must provide notice of this separate treatment to the plan beneficiaries, and do so separate from materials distributed in connection with the eligible organization’s group health coverage.  The notice to employees must make clear that the objecting organization is neither administering nor funding the contraceptive benefits.)


4.  The notice from DOL to the TPA -- rather than any form signed or submitted by the objecting organization -- will then become a "plan instrument" that designates the TPA as an ERISA "plan administrator" for purposes of contraception coverage.*


5.  The federal government would then reimburse the TPA for its payments in the form of an adjustment to the TPA’s assessed user fees for the ACA exchanges.  In other words, the cost of the contraceptive coverage in the self-insured setting is ultimately borne by the government itself, rather than by the organization or by the plan TPA.


6.  In a hypothetical case in which the objecting organization does not use either an issuer or a third-party administrator,  the government will not have any way of guaranteeing that the organization's employees are eligible for contraceptive coverage.  In addition to the option of (i) not using a third-party administrator, an organization also has the options of (ii) using an insured rather than a self-insured plan; or (iii) not providing employer (student) health insurance in the first instance.**  


7.  The earlier regulation had provided that eligible organizations that establish or maintain self-insured group health plans “must not, directly or indirectly seek to interfere with a third party administrator’s arrangements to provide or arrange for separate payments for contraceptive services” and “must not, directly or indirectly, seek to influence a third party administrator’s decision to make any such arrangements.”  Although the Departments had interpreted this solely as prohibiting the use of bribery, threats, or other forms of economic coercion in an attempt to prevent a third party administrator from fulfilling its independent legal obligations to provide or arrange separate payments for contraceptive services, these provisions nevertheless had caused some confusion and disputation in the courts.  Accordingly, and because such conduct is generally unlawful and is prohibited under other state and federal laws in any event, the augmented regulation deletes the prohibitions in question.


* * * *


This should take care of any religious objections that eligible organizations might assert, almost all of which I described in this post (and most of which were based on mistakes of law even before this augmentation).  For example, under this regulation:



-- The objecting organization would not be obliged to direct (or require, or instruct) the TPA to provide contraception coverage.

-- The objecting organization would not be obliged to inform the TPA that it is opting out of providing coverage.

-- The objecting organization would not be obliged to inform or “notify” the TPA of the TPA’s obligation to provide contraception coverage.

-- The TPA would not be an “agent” of the objecting organization for purposes of contraception coverage.

-- The objecting organization would not be required to take any steps to help administer the TPA’s provision of contraceptive coverage.

-- The objecting organization would not be required to enter into, or sustain, a contract with a TPA that provides its employees with contraceptive coverage, or to “identify” a TPA to contract with if it has no such contract already.

-- The objecting organization need not refrain from objecting to the TPA’s provision of contraceptive coverage to its employees.

-- The objecting organization would not be required to act hypocritically by not "practicing what it preaches," or to do anything else that a reasonable observer might view as approval or endorsement of contraception use or coverage.

-- The objecting organization would not be required to confer a legal status upon the TPA, such as "plan administrator."

As I explained several weeks ago, however, it appears that at least some of the objecting organizations will continue to raise purported religious objections to this further accommodation--indeed, that they would continue to make RFRA claims for exemptions no matter what the government does, as long as the government continues to require plan issuers or TPAs to offer contraceptive coverage to the objecting employer's employees when the employer opts out.

These organizations will continue to object to the accommodation because (in the words of counsel for some of them) it allegedly requires them to "offer[] health plans through an insurance company or third-party administrator" at a time when that same issuer company or TPA is also providing contraceptive coverage to the organization's employees.  

As I explained, this is not a claim that the organization itself is offering coverage, or paying for it, or facilitating it.  Nor is it even a claim that the organization's action is a "but-for" cause of the employees' access to such coverage or eventual use of contraception:  As I've stressed on several occasions, the employees will receive the coverage in any event--that's the whole point of the "preventive services" provision of the ACA--and these plaintiffs presumably would not conclude that they were complicit if their opting out caused the government itself to offer the coverage to those same employees.

Instead, the residual theory of complicity, as I understand it, is that the accommodation requires the organization to contract with an issuer or a TPA, and that the organization's choice of contractor, together with its employee hiring decisions, will be responsible for the fact that a particular insurance company offers contraceptive coverage to a particular set of employees.  As the brief for Thomas Aquinas College puts it:  "Plaintiffs’ insurance company or TPA will provide the objectionable coverage to Plaintiffs’ employees only by virtue of their enrollment in Plaintiffs’ health plans and only 'so long as [they] are enrolled in [those] plan[s].'”  For example, if Thomas Aquinas College had contracted with Aetna, rather than with Benefits Allocation Systems, to be the plan's third party administrator, then it would be Aetna, rather than BAS, that would offer coverage to Aquinas employees under the accommodation.  And if any one of those employees left Thomas Aquinas College employment next month, they would then receive coverage from another party, other than BAS.

The premise of this argument is mistaken:  The regulation does not require the organizations to contract with an issuer or a TPA--and if they do not do so, then the government currently has no way of ensuring contraceptive coverage for their employees.  But even if that were not the case--i.e., even if federal law coerced the organizations to contract with such an issuer or TPA--Thomas Aquinas College and the other plaintiffs haven't offered any explanation for why, according to their religion, the College's responsibility for this particular match between TPA and employees would render the College itself morally responsible for the employees' eventual use of contraceptives, when (i) such employees would have the same coverage if Aquinas had contracted with a different TPA; (ii) such employees would continue to have coverage if they left the College; and (iii) the College itself does not provide, subsidize, endorse, distribute, or otherwise facilitate the provision of, its employees' contraceptive services.

Be that as it may, it appears that this will now be the primary (if not the only) argument the courts will have to contend with in light of the government's newly augmented accommodation.


The proposed extension of the accommodation to some closely held for-profit companies

The new proposed rule, subject to notice-and-comment review, accepts the Hobby Lobby Court's invitation:  It would extend to certain closely held for-profit entities, such as Hobby Lobby itself, the same accommodation that is available to non-profit religious organizations.  

The agencies offer up two possible definitions of covered, closely held for-profit companies:

-- Under the first proposed approach, "a qualifying closely held for-profit entity would be an 
entity where none of the ownership interests in the entity is publicly traded and where the entity has fewer than a specified number of shareholders or owners."

-- Under the second, alternative proposed approach, a qualifying, closely held entity would be "a for-profit entity in which the ownership interests are not publicly traded, and in which a specified fraction of the ownership interest is concentrated in a limited and specified number of owners."


According to the preamble, these approaches "might serve to identify for-profit entities controlled and operated by individual owners who likely have associational ties, are personally identified with the entity, and can be regarded as conducting personal business affairs through the entity.  These appear to be the types of entities the Court sought to accommodate in Hobby Lobby."  The preamble further suggests that there may also be "useful definitions or principles in state laws governing close corporations, or other areas of law" that could be employed.

The agencies are seeking comments on those and other possible definitions, and whether other steps might be appropriate to implement the policy. 

 ______________________________

* That's what is said to afford the government the statutory authority under ERISA to compel the TPA to be the intermediary.  As for DOL's statutory authority, the Preamble states that "[i]n establishing and implementing this alternative process, DOL is exercising its broad rulemaking authority under Title I of ERISA, which includes the ability to interpret and apply the definition of a plan administrator under ERISA section 3(16)(A)."

** The regulation further confirms that because "church plans" are exempt from ERISA pursuant to ERISA section 4(b)(2), a third party administrator of a self-insured church plan "cannot become the plan administrator by operation of 29 CFR 2510.3-16, although such third party administrators may voluntarily provide or arrange separate payments for contraceptive services and seek reimbursement for associated expenses under the process set forth in 45 CFR 156.50."  Thus, as I've explained, there is nothing at stake--and thus no valid RFRA claim--in cases such as Little Sisters, where a church plan TPA will not voluntarily offer contraceptive coverage if and when the employer opts out. 



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