SBM Blog

The Latest Ruling on the Constitutionality of the Health Care Law

Here is the opinion by Judge Clyde Roger Vinson in the challenge to the Health Care Law (PPACA) brought by 26 states in the Northern District of Florida. And here's a summary of Volokh Conspiracy's David Kopel summary of the opinion:

1. No on the argument that the mandate for drastically increased state spending under Medicaid is unconstitutional. 
2. Yes on the argument that the individual mandate is unconstitutional. 
3. Necessary & proper does not save the mandate.
4. The mandate is not severable from the health control act.
5. No injunction. Declaratory relief is sufficient, especially since there is a presumption that the federal government will comply with judicial decisions.
6. The entire act is declared void. Cato’s Ilya Shapiro says this means the federal government must immediately stop enforcing the whole law, unless the Judge Vinson or 11th Circuit grants a stay.

Happy First Birthday, SBM Blog

A year ago today we launched SBM Blog with excitement and trepidation.  We hoped to be able to increase the value of State Bar membership with a new, no-cost resource.  To be sure, we were already providing plenty of useful material to our members.  Our flagship publication, the Michigan Bar Journal, delivers superb, award-winning content on a monthly basis. SBM News gives members a daily full helping of mainstream news of interest to Michigan lawyers.  Our weekly public policy newsletter provides timely detail about proposed legislation and court rule changes.  But increasingly we were finding important and interesting stories in the blogosphere that didn’t fit well into any of those services. 

As sure as we were that there was enough content out there on a daily basis to justify launching a blog, we weren’t sure at all about reader interest.  We worried both about being flooded with unruly, unmanageable reader comment, and about nobody reading us at all.  Happily, our fears proved groundless.  Our readership has grown steadily, often topping the thousand-mark on a daily basis, and comment (while we wish there were more) is both manageable and interesting.  Most readers are from Michigan, but we are astonished to have an international readership, too.  We track what stories are most popular on a regular basis and have refined our offerings accordingly.  To your credit, the blog traffic statistics tell us that you like the stories on ethics as much as you like the newsy and the whimsical.  (Our regular harvesting of lawyer stories from The Onion is particularly popular).  We’re pleased to have been able to break a great Michigan lawyer story – the first Daughter-Father team to argue before the U.S. Supreme Court.  We make it a point to bring you stories about the dramatic ways in which the practice of law is changing, and to point toward thought-provoking legal posts from around the world, especially from our neighbor, Canada.  We look for stories about how technology is changing the delivery of legal and court services, in ways both positive and negative, and bring you weekly tech tips from our Practice Management Resource Center.  And our assumption that most lawyers are interested in constitutional law but few have the pleasure of a constitutional law practice causes us to bring you posts on emerging constitutional debates going on in the legal academy, especially as they relate to important national news, such as the health care law and the precarious economic condition of many states.

We also worried, needlessly, about our stamina for the care and feeding of a daily blog.  We produce it entirely within existing resources, adding to workplates that were already plenty full.  So far, so good.  The very positive feedback we’ve gotten steadily is sufficiently energizing to keep us going.  And the work of producing the blog is both fun and rewarding, giving us important and useful insights into the interests and views of State Bar members.

As editor and primary blogger, I need to give special birthday thanks to my indispensable colleagues Samantha Meinke and Nancy Brown.  Sam’s enthusiasm and “we can do this” attitude was essential to the decision to launch, and her proficiency in all-things-blog has moved us steadily forward.  And Nancy, as always, is the wise, quiet and superb adviser behind the scenes.

Finally, a word about the look of the blog.  The very talented Sarah Nussbaumer provided the clean, user-friendly and durable format.   I try to honor it whenever I can with a great piece of art.  Thank goodness the copyrights on some of the world’s greatest art have expired, and the images are sitting right there on the web, ready for the taking.

And most of all, thank you, readers, for your loyalty and comment.  With your steady feedback, the best is yet to come.

Thinking About Doing Away with the LSAT: Ask Michigan

The announcement that the ABA is considering making the LSAT voluntary has sparked much attention, including on this blog and in a new story in the National Law Journal (subsc. req.).  And Michigan figures prominently in the national reporting.  Why?  One reason is that since 2009 seven law schools have been granted waivers from the mandatory LSAT requirement, and the University of Michigan Law School is one of the seven.   (U of M Law School limits the LSAT-free application option to Michigan juniors.) Michigan's assistant dean of admissions, Sarah Zearfoss, told NLJ that while the LSAT might help students get a handle on their admissions chances at various law schools, students often mistakenly view a school's median LSAT score as a far more rigid cutoff than it actually is.

Michigan's Cooley Law School is also deeply involved in the LSAT debate. Associate Dean John Nussbaumer has become an outspoken critic of the LSAT nationally, taking particular issue with the impact of reliance on the LSAT on diversity admissions.  He and Christopher Johnson Jr., Associate Professor and Graduate Program Corporate Law and Finance Director at Cooley, analyzed ten years of law school application data and concluded that blacks had a "shutout" rate of 60%, receiving no law school acceptance. Hispanics had a shutout rate of 45%; whites had a shutout rate of 31%.

The Constitutional Dimensions of Baby Naming

This one's personal.  In 1980, when my husband and I chose to give our son a made up last name different than either of ours, the friendly baby-name-recording lady at the hospital refused to fill out the certificate, telling us she'd be back the next day after we thought it over.  We prevailed. 

So the new paper by UC Davis law professor Carlton F.W. Larson,  "Naming Baby: The Constitutional Dimensions of Parental Naming Rights", holds particular interest.  Here's Larson's bottom line:

The oddity introduced in this Article’s Introduction—the prohibition of “Lucía,” but the acceptance of “Adolf Hitler” as valid children’s names—demonstrates just how strange and unintuitive this area of law is. There are both needless prohibitions and seemingly gaping lacunae, both of which cry out for coherence and reform.
With respect to needless prohibitions, restrictions on surnames and diacritical marks could be eliminated through constitutional litigation. It is appalling that some American parents cannot legally name a child with the surname of a maternal grandmother or with the first names Lucía or José. If legislatures do not fix this problem, courts should. With respect to various gaps, legislatures, at minimum, should consider clarifying and specifying the content of state law with respect to parental naming rights and at least consider the possibility of additional, narrowly drawn restrictions.

It's a good read.

HT: Legal Blog Watch

And Now for Something Completely Different: "Why I Love Being A Lawyer"

The blogosphere is awash in tales of attorney dissatisfaction.  In fact, there's a whole community of blogs more or less devoted to the topic. That's what makes this ABA Journal story so, well, satisfying: Why I Love Being a Lawyer (Seriously). If you need a morale boost, check it out.  You might even be inspired to add your own 2 cents' worth, as did East Lansing lawyer Lisa Babcock: "I get to think through problems every day for people I really like."

And then there's this, from a Serbian lawyer Slaven Kovačević: "Well, I realy love to be a lawyer because I love to win.  I think I could perform very well as proffesional boxer, also."

Financial Crisis Inquiry Commission Archives May Be Fodder for Plaintiffs' Bar

The Blog of Legal Times says that lawyers for companies at the center of the financial crisis, many of whom are already battling proposed securities class actions, have been wondering what might become of the investigative documents gathered by the Financial Crisis Inquiry Commission that had been internal to the companies. Now they know.  They're being posted right here, on the Commission's website.  The president of the U.S. Chamber of Commerce's Institute for Legal Reform is outraged, calling the posting "an astounding abuse of process that would effectively create a government-sanctioned Wikileaks.”

A related story in the New York Times is also worth a read: Crisis May Seem Criminal, but Try Making a Case.

ACLU Challenges University of Michigan's Policy on Banning People from Campus

The Free Press reports that since 2001 the University of Michigan has banned around 2,000 people from campus, some for life, and that the ACLU is challenging its policy as broad, vague and subjective. (In contrast, Michigan State University has banned just 57 people since 2008.) U of M's deputy chief Joseph Piersante told the Free Press that the policy is necessary to ensure safety and remove people "who don't have any legitimate reason to be in a certain area or people who are a threat or a danger to our community."  President Mary Sue Coleman has directed staff to review the policy.

Andrew Shirvell, the former assistant attorney general who became notorious last fallfor his agitation concerning U of M's first gay student body president, Chris Armstrong, was banned from campus last fall, but can now visit campus provided he stays away from Armstrong.  According to the Free Press, attorney Deborah Gordon, who represented Armstrong in his ethical complaints against Shirvell, represents a former employee who is the subject of a trespass warning for the university's medical school.  The former employee, Dr. Andrei Borisov, who has questioned the university's use of some grant money and is now subject of a trespass warning the medical school, has filed a wrongful termination action against U of M.

HT: Michigan Lawyer

Photo: Biomedical Science Center, University of Michigan

 

Tiger Parenting and Dogs

If you haven't already read enough about Amy Chua's Battle Hymn of the Tiger Mother, you might want to check out this Balkinization post by Chua's Yale Law School colleague, Ian Ayres, in which Ayres describes denying his 7-year old daughter a dog unless she publishes an article in an academic peer-reviewed journal.  If you think that description sounds a little harsh, just read it.

Photo: From East Asian Inspiration, which says that the happy family is from Jinan Paomaling Wild Animal World in Shandong province, and that it is common for Chinese zoos to use surrogate dog mothers to nurse rejected tiger cubs. Admittedly, the photo has nothing really to do with the post, except that if my children were not already grown, I would certainly think about challenging them to write a poem inspired by the photo, for publication in the New Yorker.  Or else.

Just What We Need, More Members of Congress

Last week's Sunday New York Times included an op-ed piece calling upon Congress to increase the size of the House, something that hasn't been done since 1913 (so long, the piece says, that many people think that number is fixed by the Constitution).  Authors Dalton Conley and Jacqueline Stevens point out that the average House member today speaks for about 700,000 Americans, whereas a Congressman in 1913 represented only about 200,000.  The failure to increase the size of the House, they say, has increased the influence of lobbyists and special interests.  They conclude that "the more constituents one has, the easier it is for money to outshine individual voices. And it means that representatives have a harder time connecting with the people back in their districts."

Point taken.  But if we used the 1913 ratio today, we'd have a House with 1,500 members.  And if we used the original ratio used by the founding fathers, we'd have a 5,000 member House.  The mind boggles.

Egypt and the Rule of Law

From American Footprints, A Short Primer on Egypt Now:

"There is no guaranteed right to privacy, free speech, assembly, press, or even a trial. Although there are a number of members of the judiciary who have tried to maintain its independence from the state, they are regularly thwarted and often removed or worse." 

Several sources say that Egypt ranks last in the International Justice Project's rule-of-law rankings. (See, for example, Egypt worst Arab state on rule-of-law rankings).  But we have not been able to locate an IJP rule of law ranking online.  The 2010 World Justice Project report (PDF) does not include Egypt.  The ABA has ongoing rule of law programs in Egypt.

Photo: Egyptian blogger and expelled law student Abdel Kareem Suleiman, who was sentenced to a four-year prison term for his online writings.  He has since been released.