Over at The New Yorker the other day, Jeffrey Toobin wrote a short piece on Halbig entitled “Will Textualism Kill Obamacare?” It’s not very good.
I’m not going to do a full critique of the essay, but there are a couple mistakes and misdirections that are worth mentioning. Continue reading
Yes, this is a sports-related post. Sorry. But it’s got some econ and math and a request for some analysis at the end. So that’s pretty fun, right?
Well, anyway, it’s fantasy football season, so fans (and non-fans) everywhere have just finished drafting their players, who will now go on to collect stats that count toward the fantasy team’s weekly points. This year, however, I did something a little different with a team-based league rather than a player-based league, and I’m trying to figure out if there’s a “right” valuation strategy. If you’re familiar with football drafts (snake and auction varieties) feel free to skip to the “But What About This?” section. If you want a little background, well… Continue reading
A while back, I downloaded an audio version of Justice Breyer’s lecture at Yale Law School entitled Future: Will the People Follow the Court?. You can watch the whole thing here:
Anyway, I listened to the lecture, referenced it once or twice in class, and then promptly filed it away in my mental archives. In other words, I forgot about it.
But Google didn’t. Apparently, when I downloaded the audio file onto my phone, the Google Music app pulled the file into its orbit. And because I played the file a lot (it’s long, so I stopped and restarted a few times) Google apparently thought that I really liked the file. And, perhaps most surprisingly, because the file was an .mp3 saved to my phone, Google assumed that this hour-and-a-half lecture by a Supreme Court Justice was a song.
So what did Google do when it thought I really liked this song? It created a recommended playlist with other songs that I might like, based on my interest in Justice Breyer’s lecture. I have no idea how Google came up with these particular recommendations. (The feature is called an “Instant Mix.”) But I do know that, according to Google, if you’re into Justice Breyer, then you’ll also love these songs: Continue reading
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
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
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.” 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.”
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. Continue reading
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