Author Archive | Jonathan H. Adler

Was a Scientific Journal Canned for Disagreeing with the IPCC?

Copernicus Publications, “the innovative open access publisher,” recently announced it was terminating one of its journals, Pattern Recognition in Physics due to concerns about the journal’s editorial practices.  PRP was not even one year old.  It seems the problems began when the journal’s editors agreed to a special issue on “Pattern in solar variability, their planetary origin and terrestrial impacts,” in which the issue’s editors had the temerity to “doubt the continued, even accelerated, warming as claimed by the IPCC project.”[*]According to the original explanation offered by Martin Rasmussen of Copernicus Publications, as reported by JoNova, the expression of this conclusion was a motivating factor for the “drastic decision” to terminate a journal. A letter to one of the editors also expressed “alarm” that a paper in PRP would question the IPCC.

If Copernicus indeed shuttered a journal because of disagreement with the conclusions expressed in a published paper, it would be quite shameful.  But is that what happened? In a revised statement, Rasmussen notes “the editors selected the referees on a nepotistic basis, which we regard as malpractice in scientific publishing and not in accordance with our publication ethics we expect to be followed by the editors.” Whatever the merits of the papers at issue (and even some climate skeptics were unimpressed), it appears that PRP did violate accepted peer review norms in producing the special issue — as Anthony Watts details here — and concerns were raised about the journal last year.  So it appears Copernicus did have sufficient grounds to reconsider its production of PRP.  Given the wording of Rasmussen’s initial statement, however, questions remain about what prompted the publisher’s decision.

[* The IPCC is the Intergovernmental Panel on Climate Change, a UN-sponsored, intergovernmental entity that produces periodic reports on climate change.]

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Upcoming Talks

I have a few upcoming talks that are open to the public and may be of interest to VC readers.

  • On January 21, at noon, I will be speaking at the National Constitution Center’s “Affordable Care Act Town Hall” with Simon Lazarus of the Constitutional Accountability Center.  Jeff Rosen will moderate our discussion of continuing legal controversies surrounding the ACA and its implementation.  This podcast offers a bit of a preview. Registration details here.
  • On January 30, at noon, I will be speaking on ACA implementation before the Cleveland Lawyers Chapter of the Federalist Society. Details to follow.
  • On January 31, at noon, I will be speaking on “The Conspiracy Against Obamacare: How Academic Bloggers Influenced the Legal Battle Over the Individual Mandate” at the Public Affairs Discussion Group, sponsored by the Center for Policy Studies at CWRU.
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Could Cellphone Cases Help Justin Bieber?

Jess Bravin has a report that could be of great interest to the VC readership’s Belieber contingent:

The justices Friday agreed to decide when searching a cellphone requires a warrant—the very kind of evidence that Los Angeles County sheriff’s deputies believe could link the “Believe” singer to the egging of a neighbor’s house.

Deputies searched Mr. Bieber’s Calabasas, Calif., house on Tuesday and seized his iPhone, among other items. The device could contain photos or video related to the egging, authorities think.

But Sgt. Ernie Masson, reached at the sheriff’s Malibu/Lost Hills station, said that while deputies had a search warrant for the Bieber house, he could not say whether it specifically covered the phone.

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Did Judge Martin Retire Because He Was Under Investigation? – UPDATED

Last July, Judge Boyce Martin announced his retirement from the U.S. Court of Appeals for the Sixth Circuit.  Tonight, TPM reports that Martin made his decision “under a cloud of accusations that he had racked up nearly $140,000 in ‘questionable travel expenses.’”

The details came out in a decision filed by five members of a federal panel on judicial conduct. The decision was in response to a petition filed by Boyce in August asking that his name be kept confidential and that his case not be referred to the Justice Department. Both requests were denied. . . .

Before the investigation could go any further, according to Friday’s decision, Martin submitted his letter of resignation to President Obama. Because of that, the court investigators halted their inquiry and never reached a conclusion about the expenses. . . .

In its decision, the panel wrote that the court’s efforts to disclose Martin’s name and refer his case to the Justice Department’s Public Integrity Section were appropriate under federal rules.

UPDATE: A spokesperson for Judge Martin e-mails to note that Judge Martin had offered to repay all travel reimbursements he had received over the relevant period, not merely those that were in question.  This is the source of the $138,500 figure.  The spokesperson did not identify the value of those reimbursements that were in question, however.  According to the ruling, Judge Martin offered to repay this amount in three installments between June and August 2013, but only the first two payments were ever received.

For those interested in more details on this case, here is yesterday’s ruling and a prior ruling in the matter.  Former Sixth Circuit clerk Josh Blackman has also posted a handy timeline of relevant events.

SECOND UPDATE: According to Judge Martin’s spokesperson, he had sent a check to […]

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Can the Government Exclude Lobbyists from Advisory Committees?

Today the U.S. Court of Appeals for the D.C. Circuit issued an interesting opinion in Autor v. Pritzker.  Here’s how Judge Tatel summarized his opinion for the court:

President Obama, seeking to reduce the “culture of special interest access,” directed executive agency heads to bar federally registered lobbyists from serving on advisory committees. Appellants, federally registered
lobbyists wishing appointment to one type of advisory committee—Industry Trade Advisory Committees
(ITACs)—challenge the constitutionality of the presidential ban. Because the ban requires Appellants to limit their exercise of a constitutional right—in this case, the First Amendment right to petition government—in order to qualify for a governmental benefit—in this case, ITAC membership—we reverse the district court’s premature dismissal of the complaint and remand for that court to determine in the first instance whether the government’s interest in excluding federally registered lobbyists from ITACs outweighs any impingement on Appellants’ constitutional rights.

While the government may be able to defend this policy on remand, the court accepted the appellants claim that the policy effectively conditions eligibility for a valuable benefit (in this case, ITAC membership) on an individual’s willingness to restrict their exercise of his or her First Amendment rights.  On remand, the question will be whether the government can assert interests to justify this imposition.

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D.C. Circuit Rejects “Net Neutrality” Rule

Today, in Verizon v. FCC, the U.S. Court of Appeals for the D.C. Circuit vacated key portions of the Federal Communications Commission’s “Open Internet Order” — aka the net neutrality” rule.  The court held 2-1 that that FCC has the authority to regulate broadband providers, and that such regulation may govern broadband providers’ handling of internet traffic.  Despite this holding, the FCC did not prevail because the court also concluded (unanimously) that the FCC’s specific regulations here were unlawful because the FCC sought to regulate broadband internet providers as common carriers.  This victory for Verizon and the other petitioners may be short-lived, however, as the majority opinion suggests alternative steps the FCC could take to effectuate a “net neutrality” policy without exceeding its statutory constraints. […]

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Insane Clown Posse v. FBI, Vol. 2

In September 2012, noted “horror core” hip hop duo Insane Clown Posse sued the FBI seeking to obtain documents explaining why the federal government labeled ICP fans (aka “Juggalos”) as a “loosely organized hybrid gang” under the National Gang Threat Assessment.  Now, with the help of the ACLU, the ICP is suing the FBI again to challenge the designation.  According to the ICP, this designation has resulted in the unwarranted harassment of ICP fans.  The NYT reports:

In its lawsuit, Insane Clown Posse said that, even more than other hip-hop artists whose music “uses very harsh language to tell nightmarelike stories with an underlying message that horrible things happen to people who choose evil over good,” the band’s own songs offered “hopeful, life-affirming themes about the wonders of life and the support that Juggalos give to one another.”

The lawsuit asks the court to set aside the findings of the 2011 F.B.I. gang assessment, order the elimination of “criminal intelligence information” on Juggalos from government and law-enforcement databases and prohibit the gathering of further information without “sufficient facts” of a “definable criminal activity or enterprise.”

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SCOTUS Stays Same-Sex Marriage in Utah

This morning the Supreme Court granted Utah’s application for a stay of the district court’s injunction requiring state officials to recognize same-sex marriage within the state.  The stay application was initially submitted to Justice Sonia Sotomayor, who referred it to the entire court. As Lyle Denniston observes, there is no indication that any member of the Court objected to the stay.  The stay is to remain in place until the resolution of Utah’s appeal before the U.S. Court of Appeals for the Tenth Circuit.   Rick Hasen has more. […]

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Blogospheric Rubbernecking – 2014 Blackmail Edition

The Brian Leiter-Paul Campos feud continues into the New Year.  The latest: Campos is threatening to disclose “potentially very embarrassing personal information” about Leiter should the latter disclose the personal identity of “Dybbuk,” the pseudonym of a lawyer/”scamblogger” accused of harassing another law professor in blog posts and comments.  Could this constitute blackmail?  I’ll leave that to the crimlaw folks.

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Abrams on McCullen v. Coakley

On January 15, the Supreme Court will hear oral argument in McCullen v. Coakley, a challenge to Massachusetts’s abortion-clinic-entrance-access law.  In this case, the Court will have the opportunity to limit, or overrule, Hill v. Colorado,  “what may well be its most indefensible First Amendment ruling so far this century,” according to First Amendment lawyer extraordinaire Floyd Abrams.  (FWIW, I tend to agree, and Hill would probably be my answer to my own exam question.)

In a WSJ op-ed, Abrams explains his antipathy to Hill and opposition to the law at issue in McCullen.  Hill upheld a Colorado statute that made it a criminal offense to approach within eight feet of another person to engage in “oral protest, education or counseling” within 100 feet of a health care facility entrance.  In effect, the Colorado law created speech-free “bubbles” around those going in or out of health care facilities.  The intent, as was quite clear at the time, was to obstruct anti-abortion protesters, and was quite overbroad, in that it extended well beyond what is necessary to prevent the obstruction of clinic entrances.  Nonetheless, the law was upheld as a content-neutral restriction.

The Massachusetts law is both more clearly focused on anti-abortion speech (it only applies to abortion clinics) and more broad, in that it prohibits anyone other than clinic employees  and patients from remaining within  35 feet of any clinic entrance.  As Abrams notes, the Massachusetts abortion-clinic-entrance-access law prohibits “peaceful, nondisruptive antiabortion advocacy via the distribution of leaflets and oral advocacy at the very places it is most likely to be effective,” and yet the rationale of Hill would seem to make that okay.

the Supreme Court decision in Hill v. Colorado (2000) provides support for just such a First Amendment limiting approach. . .

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Senator Johnson’s ObamaCare Lawsuit

In tomorrow’s WSJ, Senator Ron Johnson (R-WI) has an op-ed explaining a new lawsuit he is filing against the Obama Administration’s implementation of the PPACA.  Specifically, this lawsuit targets a rule by the federal Office of Personnel Management that allows the federal government to subsidize health insurance for members of Congress and some legislative staff.  According to Senator Johnson, this is contrary to the text and intent of the PPACA.

The law states that as of Jan. 1, 2014, the only health-insurance plans that members of Congress and their staffs can be offered by the federal government are plans “created under” ObamaCare or “offered through an Exchange” established under ObamaCare.

Furthermore, allowing the federal government to make an employer contribution to help pay for insurance coverage was explicitly considered, debated and rejected. In doing so, Congress established that the only subsidy available to them would be the same income-based subsidy available to every other eligible American accessing insurance through an exchange. This was the confidence-building covenant supporters of the law made to reassure skeptics that ObamaCare would live up to its billing. They wanted to appear eager to avail themselves of the law’s benefits and be more than willing to subject themselves to the exact same rules, regulations and requirements as their constituents.

Eager, that is, until they began to understand what they had actually done to themselves. For instance, by agreeing to go through an exchange they cut themselves off from the option of paying for health care with pretax dollars, the way many Americans will continue to do through employer-supplied plans. That’s when they went running to President Obama for relief. The president supplied it via the Office of Personnel Management (OPM), which issued a convoluted ruling in October 2013 that ignores the clear intent and language

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Hardest Exam Question?

What’s the hardest exam question you ever faced in law school? Was there one so difficult it is seared into your memory?  One fiendish question I recall was on the final exam given by Judge Jay Plager in his Legislation class.  I don’t recall the precise substance, but it was immaterial.  There was a reasonably complex hypothetical fact pattern setting up  a legal dispute over the proper interpretation of a statute.  Question 1 asked us to take on the role of a judge hearing the case and to write the majority opinion.  Question 2 asked us the write the dissent. […]

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Which First Amendment Decision Would You Overturn?

In his Brown v. Allen concurrence, Justice Robert Jackson famously said of the Supreme Court “We are not final because we are infallible, but we are infallible only because we are final.”  The Supreme Court inevitably makes mistakes and reaches the wrong result in some non-trivial number of cases.  Accordingly, for the past two years I have included the following question on the exam in my First Amendment constitutional law course:

As Justice Jackson observed, the Supreme Court does not necessarily arrive at the correct conclusion in every case, and even when the Supreme Court does reach the proper result, it may not always do so on the best grounds. Accordingly, please identify a Supreme Court decision covered in this course that you believe was in error, explain your reasons for believing it was wrongly decided, and either a) explain what you believe the Court should have done instead and the rule or interpretation it should have adopted or b) propose a constitutional amendment to correct the Court’s error.  Be sure to identify possible objections to your recommended outcome or proposed amendment and explain how you would address such concerns.  So, for example, it is important to consider how overturning one decision would or would not affect other cases and other parts of First Amendment doctrine.

As one might expect, many students write on highly controversial decisions, such as Citizens United, Lee v. Weisman, Locke v. Davey, or Holder v. Humanitarian Law Project. Interestingly enough, however, in each of the last two years more students have chosen to address Marsh v. Chambers than any other decision. The numbers aren’t large — 4 of 26 chose Marsh last year, 7 of 35 this year — but it’s interesting nonetheless.  One question I have is whether students write about Marsh […]

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Medicaid Expansion Increases Emergency Room Visits

One of the arguments made in favor of measures to expand health insurance coverage, including the Medicaid expansion, was that the lack of insurance coverage leads many individuals to seek medical treatment in emergency rooms, and that this results both in higher health care costs and in cost-shifting, as the uninsured may be unable to pay for the cost of the care they receive.  Some health care wonks were always skeptical of the first argument, however, noting that insurance coverage is not a particularly good predictor of emergency room utilization.  Indeed, there were reasons to believe that increasing insurance coverage would actually increase emergency room utilization.  If so, a consequence of increasing coverage would be to increase overall health care expenditures and, insofar as expanded coverage is achieved through Medicaid, increase the cost-shifting (a point I made here).  Sure enough, a new study finds that one effect of expanding Medicaid coverage is to increase emergency room visits by covered populations.  This does not necessarily mccean expanding coverage is a bad idea, or that it’s not worth the cost — just that some of the arguments made in favor of expanding coverage were based upon wishful thinking.

For more on the study, and its implications, see Wonkblog, Reason, and TIE.

UPDATE: Harold Pollack comments:

We can’t say from this paper whether the extra ED visits were valuable or cost-effective. We can say that these results will embarrass some liberal advocates who argued that expanded coverage would reduce overall rates of ED use.

It should. This talking point was never properly evidence-based or even particularly plausible given prior research. It’s not obvious that reducing the rate of ED use is even a sensible policy goal. Advocates across the political spectrum should stop using the ED for cheap

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Wonkblog’s “Policy Lie of the Year”

Wonkblog has published it’s third annual “Wonky” awards, which “outstanding achievements — and spectacular disasters — in policy wonkery.”   Some of the awards may surprise, but the “Wonky” for “policy lie of the year” was somewhat predictable: “Obama’s “If you like your plan, you can keep it” line.   Here’s the explanation:

President Obama promised repeatedly that if Americans like their health insurance plans, under Obamacare, they could keep them. In 2013, millions of Americans found out that wasn’t quite right, and that the health-care law would eliminate their plans, which didn’t cover a minimum set of required benefits. This wasn’t a glitch in the health-care law; it was a key feature. Obamacare’s drafters wanted insurance to cover more benefits than the plans on the individual market right now. And that meant, for those who liked their skimpier benefit packages, they would not have the opportunity to keep those old policies. (emphasis added)

The key point here was that the provisions in the PPACA which have prevented some people from keeping the health insurance plans they like were not an accident, but a deliberate design feature — a point that some (e.g. the folks at Politifact) seem not to understand. […]

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