TPM’s Halbig/PPACA “BOOM” Goes Boom

Okay, so I am partially ignoring my own advice regarding the Halbig/PPACA debate. Yes, I said that we should not get distracted by side-show arguments like what some guy said on video two years ago. But I also said that if we’re going to get the better of this argument, we actually need to engage with the claims the other side is making.

Enter this morning’s article on Talking Points Memo: “BOOM: The Historic Proof Obamacare Foes Are Dead Wrong on Subsidies.” Perhaps this CBO-based argument is a bit of a side-show, or perhaps not. But either way, it’s a great example of a supposed counterargument that wholly misses the point of the conservatives’ legal claims and is therefore wholly ineffective at actually advancing the liberal case. Continue reading

Does Statutory Interpretation Matter?

In a discussion regarding my previous post on Halbig, Eric Segall tweeted the following:

[W]e have . . . known since the realists of the 30’s that Stat[utory] Inter[pretation] Principles don’t decide cases.

And of course he’s right. Even Justice Scalia concedes that canons of construction or generic neutral principles can’t be applied in a mechanical manner. But that doesn’t mean that principles of statutory interpretation don’t matter at all. Continue reading

Halbig, Statutory Interpretation, and Lessons I Learned in Practice

Reading all the interweb debates in the wake of Halbig and King, I’ve grown increasingly frustrated. People seem to be talking past each other—perhaps for the reasons Will Baude outlines here. Arguments about statutory text are rebutted with arguments about congressional intent, which is often gleaned from press coverage during the ACA’s legislative debates.

But I think it cuts deeper than that. The nature of the post-Halbig debate feeds into the core stereotypes and motive-impugning assumptions that legal conservatives and liberals have about each other. Conservatives willingly play the role of hyper-technical textual literalists with simple-sounding (and superficially appealing!) arguments tailor-made for Twitter: “state” means “state”; it doesn’t mean “federal.”[1] Liberals, on the other hand, ease naturally into the opposite stereotype, countering this plain-language reading of the statute with arguments that could be caricatured as: “I was reading The New York Times daily coverage of the ACA debates and they didn’t mention any of this, so it can’t be what Congress actually meant.”[2]

I’ve come away with two observations, both of them focused on the liberal side of the argument. The first is that we liberals should listen to my former boss Susan Brune. The second is that if we want to preach to anyone other than the converted, we need to focus on the ethos of our rhetoric in the arena of statutory interpretation.[3] Continue reading

The Mercurial Efficiency of Markets

This morning the Supreme Court decided Halliburton v. Erica P. John Fund, Inc. (The SCOTUSblog page for the case is here.) In short, the Court reaffirmed the so-called fraud-on-the-market presumption in securities fraud cases. I’ll give a brief summary of the law, but I’d like to make a small point about conservative hypocrisy on the usefulness of markets. Halliburton presents an interesting about-face for many conservatives. To protect business interests, the usually pro-market voices on the right argued that we should not trust markets to accurately and efficiently allocate resources. That’s not the tune those voices normally sing. Continue reading

Preliminary Thoughts on the Int’l Franchise Ass’n Challenge to Seattle’s $15 Minimum Wage

Just this afternoon the International Franchise Association filed a complaint in federal court challenging Seattle City Ordinance No. 124490—the $15 minimum wage ordinance. Because the plaintiffs are seeking a preliminary injunction, and because the claims are not fact-based and are therefore ripe for resolution on a motion to dismiss, I imagine the court will have the opportunity to resolve the legal challenges relatively quickly. But that’s no reason not to start speculating now!

IFA’s claim is relatively simple: The Ordinance sets up two separate timelines—one for “big” businesses and one for “small” businesses. The big businesses have to ramp up to $15 more quickly than do the the small businesses. So far, so good. The problem, from IFA’s point of view, is that in determining whether a franchisee’s business is small or big, the Ordinance counts not only the employees of the franchisee, but all the employees of all franchisees in the entire national network. IFA thinks that is unfair for a variety of reasons.

And on some level, perhaps the distinction is “unfair” in some sense of the word. If I’m a franchisee who owns a Subway sandwich shop with ten employees, why should I have to pay my workers more than Biff’s sandwich shop next door (with 100 employees!) just because I’ve opted for a franchise business model and Biff has opted for a more independent model? That’s not fair!

But generalized grievances about unfairness don’t sustain lawsuits. So how does IFA make this a federal case? It asserts eight (eight!) separate violations, some more interesting than others. At first glance, I don’t think any of the claims are likely to survive a motion to dismiss. I’ll take a quick crack at each cause of action after the jump: Continue reading

An E-Mail from Chief Judge Easy Rider

The Chief Judge of the Court of Appeals for the Ninth Circuit is nothing if not a character. Here is the email I just received announcing the CA9’s new oral argument video program, which is about to get underway:

Subject:    Today at 2pm
From:       The Easy Rider [alex@kozinski.com]
To:            Friends of the 9th ‎[alex@kozinski.com]‎
Date:        Monday, December 09, 2013 12:46 PM

Here’s the link for our first-ever streamed oral argument.

http://goo.gl/vd1Uov

This case is Haskell v. Harris and the issue is whether the state may take DNA samples of individuals arrested for felonies.

We want to give our video feed a stress test, so I hope you’ll be able to watch.

If you can’t watch today’s video, we have other streamed en bancs later in the week. The link is here

http://goo.gl/SN4pPq

If you have any comments or suggestions–about the video, NOT the substance of the cases–I would love to hear them.

Ciao.  AK

And that’s it. The “Ciao,” the “To:” line, the simple plain-language email. Good stuff. Also, I’m quite pleased to be included among the “Friends of the 9th!”

Law Reviews, Peer Review, and Cheese Knives

According to Professor Christopher Zorn of Empirical Legal Studies, law reviews are “terrible.” And he presents a list of grievances. I’ll get to those, and I’ve already discussed some of the recent “State of the Law Reviews” discussion here and here. But before the grievances, a more fundamental point: Professor Zorn doesn’t make clear his understanding of the purpose of law reviews so it’s impossible to judge whether law reviews are “terrible” or “great” at satisfying that purpose. You can’t call a cheese knife “terrible” just because you have a hard time cutting steak with it.

Let’s say the purposes of law reviews are to (1) get a bunch of ideas out into the universe, with a reliance on post-publication evaluation and sorting, (2) provide information that is useful to the bench, the bar, and scholars in some ratio, (3) have an article’s sourcing and arguments thoroughly checked by student editors, who effectively serve as volunteer student research assistants, and (4) give law students the opportunity to work closely with professors on current scholarship. On those fronts, I would say the law reviews are doing a decent job. But here are Five Reasons Law Reviews Are Terrible, according to Professor Zorn, with my comments: Continue reading

A Sur-Reply to the Replies to My Response to Adam Liptak’s NYT Article on Law Reviews

Yes, that title is supposed to be a joke.

Anyway, a few additional thoughts in response to folks who commented on my initial post defending law reviews from the students’ perspective.

Even with Student Editors, There Should Still Be Peer Review!

Lots of folks have pointed out that peer review would be a useful supplement to student editors. I didn’t mention this in the original post, because others had already discussed it elsewhere, but peer review does happen in legal scholarship. There are, of course, plenty of peer-reviewed journals. But even in the context of student-edited journals, Matt Bodie and Will Baude note that much of legal scholarship’s peer-reviewing happens after publication, when scholars, courts, and practitioners can evaluate a piece, ignore it, cite it, engage with it, criticize it, etc. What’s the problem with that?

Also, there is actually a good amount of pre-publication peer review. People complain about star footnotes—that little footnote after an author’s name thanking all the famous professors and friends who provided comments and edits on previous drafts. Sure, some of that might be an attempt at status-by-affiliation. But it’s also peer review! I’ve yet to see a star footnote that reads: “So, uh… nobody else in the field has read this yet. I just sort of read a bunch of cases and articles and these are my thoughts. I hope they’re not terribly obvious or wrong-headed.”

Blogs Are Better than Law Reviews!

Sure! Blogs are great! Continue reading

In Defense of Law Reviews: The Students’ Perspective

Okay, the title of this post is a bit misleading, since I am not a law student. But I was once a law student, and I do think law students are important! The interests of law students, however, have been largely absent from the debate surrounding Adam Liptak’s The Lackluster Reviews That Lawyers Love to Hate, which has instead focused on judges (“Law reviews are useless!”), professors (“The process is irrational!”), and folks from other disciplines (“Wait, who selects and edits your scholarship?!?).

If you’re new to this week’s version of the Great Law Review Debate, you can find a nice round-up at UW’s Gallagher Blog here and here. I’ll try to avoid repeating what others have already said. Perhaps the best (or at least most enjoyable) statement of the case against law reviews is Fred Rodell’s anticipatory eulogy for law reviews, published in 1936. (Tellingly, Rodell’s farewell to law reviews was published in the Virginia Law Review, and we’re still talking about it today.) During a prior iteration of the Great Debate, way back in 2011, Matt Bodie refreshingly addressed the student side of the equation in this piece. But the interests of law students seem to be largely absent from this iteration. So here goes…

The Students’ Role in the Law Review Process

Law professors are supposed to teach law students. That’s actually one of the things we get paid to do. Continue reading