Comments on: Yesterday’s CVSG in San Francisco Health Care Case

By: sizzix big shot

sizzix big shot — Thu, 25 Mar 2010 22:21:40 +0000

I normally roam all over the ‘net because I have the tendancy to read often (which isn’t always a good thing because the majority of sites just copy from each other) but I must say that yours contains some real substance! Thanks for stopping the trend of just being another copycat site! ;-)

By: Just Dropping By

Just Dropping By — Tue, 06 Oct 2009 19:58:12 +0000

As I understand it, the Chief Judge has additional administrative duties w.r.t the circuit, not additional legal weight to his vote.

It’s been my experience in the Tenth Circuit that the vote of the Chief Judge is virtually always dispositive on whether or not you can get en banc review. If a similar situation exists in the Ninth Circuit, Kozinski’s dissenting vote could be viewed as having more weight – i.e., the assembled Circuit got the question of whether or not to grant a rehearing “wrong” (which is a separate question from whether the result was correct or not).

By: CvMe

CvMe — Tue, 06 Oct 2009 19:16:35 +0000

Oren: The fact that a judge dissents from a question supports the petitioner’s view that the decision in incorrect. If the judge is well known and considered to be very bright like Kozinski, it adds weight to the dissenting view. If the judge is seen as going against his perceived jurisprudential leanings, it would be even better.

By: Sara

Sara — Tue, 06 Oct 2009 18:26:21 +0000

“potentially inconsistent” and “threatened non uniformity” don’t seem like very strong claims

By: Oren

Oren — Tue, 06 Oct 2009 18:00:21 +0000

Non-substantive question, why does the petition go at lengths to state that Kozinski dissented:

[...] an eight Judge dissenting opinion from denial of rehearing en banc, including Chief Judge Alex Kozinski, observed [...]

As I understand it, the Chief Judge has additional administrative duties w.r.t the circuit, not additional legal weight to his vote. Or is it that Kozinski personally (as distinct from his title of CJ) carries a lot of weight in his opinion?

By: Oren

Oren — Tue, 06 Oct 2009 17:57:50 +0000

Which is exactly what Congress sought to preempt when the enacted ERISA.

It’s nice that’ you’ve already concluded this, but the live issue is, in fact, whether Congress sought to preempt this when enacting ERISA.

The fact that there is a circuit split on the matter would normally counsel not stating it in a single conclusory sentence.

By: ADF Alliance Alert » U.S. Supreme Court seeks Solicitor General’s views in ERISA pre-emption case

Tue, 06 Oct 2009 17:52:49 +0000

[...] Volokh Conspiracy: “Yesterday, the Supreme Court called for the views of the Solicitor General about a certiorari petition filed in Golden Gate Restaurant Association v. San Francisco, 08-1515, which presents the following question: ‘Whether ERISA section 514(a), 29 U.S.C. § 1144(a), preempts local laws mandating ongoing employer contributions for employee health-benefits, or alternative payments to a local government, and extensive recordkeeping and reporting and disclosure requirements, a question on which the courts of appeals are in conflict.’” [...]

By: Kazinski

Kazinski — Tue, 06 Oct 2009 17:35:04 +0000

Stated alternatively, the panel’s decision permits experimentation & competition among the various states when Bush’s SG would rather have an exclusive and uniform Federal approach to the provision of medical care.

Which is exactly what Congress sought to preempt when the enacted ERISA. The whole point of ERISA was to allow companies to create a single health care plan for their employees without dealing with a patchwork of local and state regulations, and thus encourage employers to continue providing health care benefits. A large part of ERISA is safe harbor provisions to keep the cost of offering health care low enough that corporations would continue to provide it.

I’m not sure why the court thinks it’s policy preference should trump Congress’s policy preference.

By: Tamerlane

Tamerlane — Tue, 06 Oct 2009 17:20:43 +0000

There was an article in yesterday’s Boston Globe on Newsome’s San Francisco health care system. Reading between the lines, to me it sounded like everything else the mayor has produced; flashy but lacking substance. By paying a quarterly fee and copayments, eligible participants get access to the same clinic care they could have gotten before the program existed. To achieve this result a large tax burden was imposed on local businesses

By: guy in the veal calf office

guy in the veal calf office — Tue, 06 Oct 2009 16:36:31 +0000

the panel’s contrary decision opens the door to potentially inconsistent state and local regulation of employer-provided healthcare that cannot be reconciled with ERISA’s preemption, in the interest of maintaining a nationally uniform scheme of applicable legal requirements, of state and local laws

Stated alternatively, the panel’s decision permits experimentation & competition among the various states when Bush’s SG would rather have an exclusive and uniform Federal approach to the provision of medical care.

By: Lior

Lior — Tue, 06 Oct 2009 15:52:50 +0000

Erratum: the blog software is replacing the “<" in the HTML tag "