Upcoming Event on King v. Burwell (in Seattle)

If you happen to be in Seattle (or will be on March 11) and you’re not already over-saturated with commentary, then please consider coming to the UW School of Law’s King v. Burwell panel discussion. Here’s the info:


King v. Burwell

Obamacare in the Supreme Court (Again)

Once again, the Supreme Court is set to examine the Affordable Care Act. After surviving a constitutional attack, the statute now faces a challenge based on its own text. Challengers claim that the plain language of the statute makes subsidies (a critical part of the ACA) unavailable on federally facilitated insurance exchanges. A panel of professors will discuss the case from the perspectives of health law, tax law, statutory interpretation, and administrative law.

Panel Presentation with Professors Sanford, Schumacher, Watts, and Ziff

Wednesday, March 11
12:30-1:20 p.m.
William H. Gates Hall, Room 119

Student sponsors: Federalist Society; American Constitution Society; Student Health Law Organization

The official flyer is here (suitable for framing)! Since we’ll have the benefit of already listening to and digesting the oral arguments, I expect this short program will provide an informative analysis from diverse doctrinal perspectives. For more in-depth analysis, feel free to check out my previous post under the King v. Burwell “tag”: https://ziffblog.wordpress.com/tag/king-v-burwell/


Appellate Review of Standing in King v. Burwell (with Updates)

The latest hot topic in King v. Burwell is standing: Have the challengers’ hand-picked plaintiffs actually suffered an injury that allows them to sue to invalidate the IRS’s tax-subsidy rule? Nicholas Bagley does a nice job of walking through the legal and factual basics in a post this morning. I’m going to start with a short introduction to standing and King before moving on to what I think is the more interesting question: an appellate court’s power to reexamine the factual bases of plaintiffs’ standing. Continue reading

The Variousness of Federal Law, Part II (Updated)

In response to my post yesterday about a state court’s freedom in filling “gaps” in federal law, Prof. Dorf made a kind and interesting comment on his own blog:

I think that the forum court does not ultimately have the latitude to apply its own law about how to ascertain the foreign state’s law, although in many cases that won’t be a constraint because the foreign state won’t have law on how to ascertain its own law.

Let me illustrate with a further twist. Suppose that in your hypo WA had a state constitutional rule that said that “authoritative advisory opinions of the State Attorney General on the meaning of civil rights laws shall be treated as binding on the courts unless unreasonable.” Now suppose that the NY courts, if applying their own approach, would not give any deference to the WA AG’s construction of WA law but instead would predict what the WA SCt would do based on its past precedents. Shouldn’t it nonetheless treat the AG’s advisory opinions as conclusive if reasonable? And if so, isn’t that because the foreign state’s methods of interpretation are bound up in the foreign state’s laws?

If I’m right about that, then maybe you’re right that I don’t need the Supremacy Clause for the parallel conclusion in the state/federal case.

A few thoughts in response to Prof. Dorf’s new hypothetical: Continue reading

Alabama, Same-Sex Marriage, and the Variousness of Federal Law

Apologies to Prof. Mishkin for borrowing his title.

In this post, I’d like to discuss a topic that’s gotten some ink in connection with Alabama’s same-sex marriage case: To what extent are state courts required to follow the constitutional rulings of lower federal courts? Lots of folks have written extremely interesting pieces on this topic, such as Michael Dorf (here, here, and here), Christian Turner (here), Joe Palazzolo (here), and Howard Wasserman (here, here, here, and here). Those are great and interesting posts. You should read them!

Here, I’ll start by providing a bit of foundational information for folks who might not be as familiar with the relationship between state and federal courts. Then I’d like to address one of the more theoretical points debated between Prof. Dorf and Prof. Turner. (If you already know all about interjurisdictional precedent, feel free to skip ahead!)

First, the Basics
Continue reading

What the King Plaintiffs Actually Said

For those of you following the current debate about whether the King plaintiffs have standing to challenge the PPACA (either now, or if they ever had it), I figured folks might want to actually read the documents from the district court in which the plaintiffs actually made the statements and in which the statements were referenced by the plaintiffs’ attorneys. Here you go: Continue reading

The Lawyer Professor as His Own Client

At his blog, Josh Blackman has some thoughts about law professors taking on dual roles in amicus briefs: professor signing the brief as lawyer and professor signing onto the brief as client amicus. Blackman thinks these dual roles may be in tension. I think there may be a tension there, but not the ethical one Blackman discusses.

As a lawyer and scholar, Blackman notes the following problem: Continue reading