The Volokh Conspiracy

“Poor Ronald Coase.” His famous essay. “The Problem of Social Cost” is the most cited law review article of all time, but it’s also the most mis-cited. “My point of view has not in general commanded assent, nor has my argument, for the most part, been understood,” Coase himself wrote in The Firm, the Market, and the Law. As Robert Ellickson observed, “Coase’s name is consistently attached to propositions that he has explicitly repudiated” or that have little to do with what Coase actually wrote.

A recent essay by Kevin Cave and Einer Elhauge provides a handy example of the misuse of Coase’s work. Cave and Elhauge have sought enlist Coase’s seminal essay in support of the constitutionality of the individual mandate. “A dose of Coase,” they argue, shows that “the issue at stake is not individual liberty, but individual responsibility.” In the process they manage to misapply “The Problem of Social Cost” and misrepresent the law they seek to defend.

Cave and Elhauge start with Coase’s observation that “social costs” are reciprocal. So, for example, where there is a conflict between two neighboring uses, as between ranchers and farmers.

In The Problem of Social Cost, Coase invoked the example of a farmer whose crops are trampled by the neighboring rancher’s cattle. Before Coase, it would have been common to view the rancher as the culprit responsible for imposing costs on the blameless farmer. Coase pointed out that no matter which way the legal rights were allocated, one was imposing costs on the other. If the law forces the rancher to keep his cattle fenced in, the farming imposes fence-building costs on the rancher. If the law gives the rancher the right to let his cattle roam free, then the farmer bears the social cost.

So far so good. Then Cave and Elhauge claim health care costs should be seen in the same way.

it is surprising how little role the core Coasian insight had in the Supreme Court’s recent oral argument about the Obamacare mandate. Much of the discussion seemed to take for granted that this mandate encroaches on individual liberty, depriving individuals of the “freedom” not to purchase health insurance.

But as Coase’s analysis makes clear, framing the issue in terms of individual liberty is deeply misleading. When the uninsured get sick and go to the emergency room for care they cannot afford, someone has to pay the costs. If the law gives the uninsured the right not to buy health insurance, then the costs for their emergency care are imposed on the insured, whose payments must cover the hospital’s costs. If the law instead requires the uninsured to buy health insurance, they become personally responsible for the cost of the care they receive.

In other words, the issue is not whether to have a mandate, but rather on whom the mandate should be imposed. If the Supreme Court strikes down Obamacare, we will simply return to the old mandate, which was imposed on the insured rather than on the uninsured. It is not clear why that mandate would be constitutionally preferable to a mandate that everyone pay his or her own way. It surely does not involve any less of an infringement on liberty.

Where to begin? The reciprocal nature of the conflict between the rancher and farmer arises because the social costs are a consequence of decisions made by both parties. If there are no roaming cattle, no crops get trampled. The same is true if there are no crops. Only if both the rancher and farmer choose their respective courses of action do we have a social cost. In order to see health care costs as reciprocal in the same way we need more than an emergency room visit by an uninsured individual. We also need a requirement that the hospital provide care. Without both pieces, the costs are not reciprocal. That is, we need both the consumption of health care by those unable to pay for it (which, in point of fact, is only a portion of the uninsured) and a requirement that care be provided without regard to ability to pay — and we have both. But what does this have to do with the mandate? Not much. And what does this have to do with the constitutional arguments about the mandate? Even less. Of course the costs of emergency room care can be born either by those who consume such care (through fee-for-service or insurance) or by others, and there are many mechanisms that can be used to achieve either result. Trying to frame the question in Coasean terms does no work toward resolving the underlying legal or policy debate.

Based on their “Coasean” analysis, Cave and Elhauge suggest that the primary purpose and effect of the mandate is to prevent the uninsured from imposing costs on the insured. But this is not so. With or without the mandate, taxpayers will pay for a disproportionate share of emergency room visits. This is because those on Medicaid and Medicare account for the lion’s share of emergency room visits — more than double the proportion of visits by the uninsured. Because the PPACA expands Medicaid coverage, this proportion will only increase — with or without the mandate.

Cave and Elhauge further pretend that imposition of the individual mandate somehow prevents the “insured” from subsidizing the care of others. But this too is false. The point of the mandate is not to reduce public expenditures on emergency room care as much as it is to prevent adverse selection in health insurance markets and force relatively healthy individuals to subsidize insurance for others. In other words, the purpose of the mandate is to offset the predictable consequences of prohibiting medical underwriting (as forthright defenders such as Mark Hall, acknowledge). Insurance companies, in particular, insisted on the mandate to help defray the costs of providing insuring those with preexisting conditions at rates below-expected-cost. So the mandate does precisely what Cave and Elhauge say they are trying to avoid: forcing one group in society be responsible for the health care costs of another. [As an aside, they also try to claim the mandate does not force individuals to buy insurance coverage beyond what they need to avoid imposing costs on others, pointing to high-deductible “bronze” plans, but ignore that even these plans must cover a wide range of services many will never want or need. See Randy's post here.]

But, again, what does any of this have to do with Coase or the questions confronting the Supreme Court? Not much. The reason Coase pointed out that social costs were reciprocal was to show that one could not assume that imposing costs on one party or the other would necessarily increase social welfare. His target was A.C. Pigou, who had argued that the imposition of pollution taxes would maximize the value of production. Coase showed that Pigou was wrong. Specifically, Coase demonstrated that if one assumes transaction costs are zero – as Pigou had – the initial allocation of the entitlement is irrelevant. Coase then went on to show that if one accounts for transaction costs (as Coase urged economists to do) then Pigou’s claim that pollution taxes increase the value of production depends on the particulars of a specific case. In any event, Coase’s aim was to challenge Pigou’s claims about the sorts of policies that would enhance social welfare, not make broader claims about what sorts of policies are desirable, let alone constitutional. Coase’s analysis also has absolutely nothing to say about whether one policy instrument, such as the mandate, is more or less consistent with constitutional constraints than other policy instruments that could produce the same effect, let alone whether a given view of federal power is consistent with the constitutional design. Further, Coase would urge any analysis of this question to engage in a serious comparative analysis that accounts for relevant facts — such as who pays for emergency visits now and how this will actually change under the PPACA and so on — facts of the sort Cave and Elhauge completely ignore.

Coase’s argument was expressly confined to the welfare economics paradigm he was challenging. Yet, as Coase readily acknowledged, most questions of public policy implicate normative questions well beyond what policy is more or less efficient. At the close of his essay Coase explicitly called for the policy debate to be “carried out in broader terms,” recognizing that in such a debate questions of welfare economics would “dissolve into a study of aesthetics and morals.” If Cave and Elhauge want to make the case for the mandate on these terms, all the better, but they should not pretend Coase has anything to do with it, nor claim that “The Problem of Social Cost” somehow shows the mandate is constitutional.

Patterico and Aaron Worthing recount sinister legal and personal harassment as a consequence of their blogging. Worthing and his wife reportedly lost their jobs, but Patterico could have been killed. He woke up to an armed SWAT team at his door as someone spoofed his phone and called the police to his house. Even those who’ve disagreed with Patterico on various issues recognize how unconscionable these tactics are.

These incidents appear to be only the latest and most extreme examples of efforts to silence political and ideological opponents by any means necessary. Comments Jim Geraghty:

Notions like “SWATing” feel like a dangerous escalation of already excessive expressions of ideological rage; once the genie is out of the bottle, then every extremist who feels the ends justify the means will use the tactic against those they hope to harass (or worse). The options for police are truly grim; must they become skeptical or wary about 911 calls describing violent situations?

The only real solution is to catch the perpetrators and prosecute them to the fullest extent of the law. If I were a prosecutor, and some malcontent was manipulating my city’s police force to be their own tool for harassment, I’d be hell-bent on finding the persons responsible.

One thing I do not comprehend about either story is the apparent reticence of local authorities. I would think local law enforcement would move heaven and earth to uncover who sicced SWAT on Patterico’s home and it is unconscionable the local authorities in Montgomery County, Maryland would sit by and allow the continued abuse of legal process that has victimized Worthing.

In today’s WSJ, Stanford law professor and former federal appellate judge Michael McConnell has an op-ed commenting on the tone and content of much liberal commentary on the individual mandate litigation. It begins:

In apparent panic at the tenor of the Supreme Court argument over the constitutionality of the Affordable Care Act (aka ObamaCare), liberal law professors have exploded with anticipatory denunciations of the court’s conservative justices—claiming that it would be “hypocritical” and “partisan” of them to invalidate legislation passed by Congress when they generally oppose “judicial activism.”

It appears the professors’ idea of sound jurisprudence is that their favored justices are free to invalidate statutes that offend their sensibilities whether or not the words of the Constitution have anything to say on the matter, as in the case of same-sex marriage or partial-birth abortion, and even if the Constitution seems to endorse it, as in capital punishment. But if conservative justices have the temerity to enforce actual limits on government power stated in Article I, Section 8—over liberal dissents—then they are acting as shameless partisans.

It seems unlikely this one-sided definition of “activism” will persuade anyone. Judicial review might be aggressive and it might be deferential, but there cannot be one set of rules for liberal justices and another set for conservatives.

His brief piece goes on to explain how the argument against the mandate is grounded in the bedrock constitutional principle that ours is a federal government of limited and enumerated powers — and that the enumeration of certain powers presupposes powers not enumerated. Opponents have argued that the mandate transgresses the limits of federal power (not, as critics have claimed, that the mandate violates any independent limitation on federal power, such as due process or any enumerated rights). Supporters of the mandate, on the other hand, have failed to offer any principled constitutional theory that would allow for the Court to uphold the mandate without giving Congress a blank check. This failing is what doomed the Gun Free School Zones Act in United States v. Lopez, and it’s what has placed the mandate in jeopardy as well. The Solicitor General and others have tried to explain why health care is “different” but none of these arguments are “grounded in any principle based in constitutional text, history or theory.”

I was puzzled by the sudden spike in coverage earlier this week, both here and elsewhere, on how to spin various possible outcomes of the Affordable Care Act litigation (and how the other side was trying to spin them). It may just be a coincidence, of course, but a story from National Journal made me wonder if it might explain the spike:

Rumors were flying around the Capitol this week that the Supreme Court would decide the health care cases on Thursday. They were wrong.

Hill staffers, Health and Human Services Department employees, and think-tankers were all abuzz on Wednesday with speculation that the Supreme Court of the United States might issue its opinion on the Affordable Care Act case on Thursday, a month sooner than most court-watchers predict. . . .

[Although the rumors were incorrect,] it was tough for people who cared about the case to ignore the rumors entirely, despite their implausibility. And the Court’s press office, which does not comment on cases, was unable to deny it. Many government staffers and reporters were on edge. A survey at Scotusblog’s live blog announcing Thursday’s decisions showed that more than a third of people watching were there only because they thought the health care case would land.

 I was struck by the EU competition bureau’s recent threat to punish Google because of “the way Google copies content from competing vertical search services and uses it in its own offerings.” (Vertical search services are specialized search engines like Yelp and Kayak that help people find local restaurants or cheap flights and rental cars.) 

In his public statement, the EU’s vice president for competition policy, Joaquin Almunia, seemed to say that Google is abusing a dominant position in search by “copying original material from the websites of its competitors such as user reviews and using that material on its own sites without their prior authorisation.” This is bad, says the EU, because:

 ”In this way they are appropriating the benefits of the investments of competitors. We are worried that this could reduce competitors’ incentives to invest in the creation of original content for the benefit of internet users. This practice may impact for instance travel sites or sites providing restaurant guides.”

This is odd language for a competition case, but quite familiar in an intellectual property context. The United States and the Europeans have a demanding copyright regime precisely to prevent companies from “appropriating the benefits” of other people’s content; and this regime has been expanded many times in living memory to better protect the investments of copyright owners.  Indeed, going the U.S. one better, the EU has adopted an additional set of intellectual property protections for compilers of databases; these protections cover uncopyrightable compilations, like phone books. 

Again, the point of both laws is to create “incentives to invest in the creation of original content” — and to balance those incentives against society’s interest in the free exchange of information.

If Google had violated either regime, presumably it would be in court or under investigation for doing so. (Marvin Ammori has a recent post explaining why they aren’t.) 

Instead,the European Union’s competition bureau seems to be saying that the balance struck by the EU in its two highly IP-friendly regimes isn’t, well, IP-friendly enough. 

Vertical search providers apparently need a kind of super-copyright.  Indeed, reading the EU’s press release, it appears that vertical search providers need a super-copyright not only in their own work but in their users’ comments as well. 

That may or may not be good competition law, but it sure looks like overkill when viewed through an intellectual property lens.

CAVEAT LECTOR: My law firm and I have done work for Google, though not in connection with competition or EU issues.

There has been lots of interesting stuff at Popehat recently — especially Ken’s posts about online speech and harassment. Well worth reading.

I don’t know why I thought of it today — I like to think I’m not that old, but come to think of it Kipling wasn’t that old when he wrote it either. Maybe he was thinking about someone else in particular, but I’m not; it just came to my mind. In any case, it’s The Old Men:

This is our lot if we live so long and labour unto the end –
Then we outlive the impatient years and the much too patient friend:
And because we know we have breath in our mouth and think we have thought in our head,
We shall assume that we are alive, whereas we are really dead.

We shall not acknowledge that old stars fade or stronger planets arise
(That the sere bush buds or the desert blooms or the ancient well-head dries),
Or any new compass wherewith new men adventure ‘neath new skies.

We shall lift up the ropes that constrained our youth, to bind on our children’s hands;
We shall call to the waters below the bridges to return and to replenish our lands;
We shall harness (Death’s own pale horses) and scholarly plough the sands.

We shall lie down in the eye of the sun for lack of a light on our way –
We shall rise up when the day is done and chirrup, “Behold, it is day!”
We shall abide till the battle is won ere we amble into the fray.

We shall peck out and discuss and dissect, and evert and extrude to our mind,
The flaccid tissues of long-dead issues offensive to God and mankind –
(Precisely like vultures over an ox that the army left behind).

We shall make walk preposterous ghosts of the glories we once created –
Immodestly smearing from muddled palettes amazing pigments mismated –
And our friend will weep when we ask them with boasts if our natural force be abated.

The Lamp of our Youth will be utterly out, but we shall subsist on the smell of it;
And whatever we do, we shall fold our hands and suck our gums and think well of it.
Yes, we shall be perfectly pleased with our work, and that is the Perfectest Hell of it!

This is our lot if we live so long and listen to those who love us –
That we are shunned by the people about and shamed by the Powers above us.
Wherefore be free of your harness betimes; but, being free be assured,
That he who hath not endured to the death, from his birth he hath never endured!

I quoted Eugene Kontorovich’s criticism of the district court decision when it came down in August 2010; today, the Fourth Circuit reversed, and handed down another piracy opinion in United States v. Dire, which discusses the legal question in detail. Thanks to Howard Bashman (How Appealing) for the pointer.

Jennifer Rubin and Kathleen Parker’s columns today have made me think of another Justice Roberts:  Justice Owen Roberts, who is famous for having switched his vote to uphold the New Deal programs in West Coast Hotel Co. v. Parrish, the 5-4 decision by the Supreme Court upholding the constitutionality of minimum wage legislation, which overturned an earlier decision in Adkins v. Children’s Hospital.   The decision in West Coast Hotel was handed down after President Roosevelt had announced his “court-packing scheme” that would have expanded the number of justices to compensate for the conservatives who had invalidated New Deal legislation.  For this reason, the change of heart by Justice Owen Roberts has long been called the “switch in time that saved nine” justices.  And many have long asserted or assumed that Owen Roberts’ switched his vote in response to the political pressure brought to bear on the Court by the President and the threat of his proposal.

In his 1998 book, Rethinking the New Deal Court, legal historian Barry Cushman has called this conventional wisdom into question by noting (among other reasons) that, because the conference vote on West Coast Hotel took place before FDR announced his plan, Owen Roberts’ vote could not have been a product of the threat.  Cushman contends instead that the Owen Roberts’ change of heart was motivated, not by politics, but instead by a growing dissatisfaction with the workability of the Court’s Due Process doctrines.  But Cushman’s is probably still the minority view.  Fairly or not, Justice Owen Roberts will likely forever be known as the justice who succumbed to political pressure to change his vote.

Rubin and Parker’s columns made me wonder whether President Obama, Senator Leahy, and pundits like Jeff Rosen have now put Chief Justice John Roberts in the same position as FDR put Justice Owen Roberts.  Had the Chief Justice already provided the fifth vote in conference to uphold the ACA, and had these critics quietly respected the deliberations of the Court after the case was submitted, nearly everyone would have accepted that Chief Justice Roberts’ decision to uphold the ACA was motivated by legal rather than political concerns.  Now, however, if the Chief Justice rules to uphold the ACA after all these nonlegal pleas and threats, he will always be suspected by both supporters and opponents of the ACA of having changed his vote in response to this political pressure.  As with Justice Owen Roberts’ vote, the supporters of the law will cheer and the opponents will complain, but both groups will have reason to believe that Chief Justice Robert’s decision reflected political considerations rather than his considered legal judgment in a close case.  And, because Supreme Court deliberations are secret, he cannot defend himself by revealing that he did not in fact change his vote after conference.

Years from now, some historian may try to rescue Chief Justice Roberts’ reputation as Barry Cushman tried to rescue Owen Roberts.  But until then, thanks to the President, Senator Leahy and the pundits and professors who have so loudly called upon the Chief Justice to decide this case politically or risk the legitimacy of the Court, should he now decide to uphold the ACA, he will always be suspected of being the second Justice Roberts to switch in time.

Thanks to Boston.com for the pointer. (I don’t know whether this was inserted by the alumnus himself — apparently the norm for the directory — or by someone else.)

President Obama’s two statements urging the Supreme Court to uphold the Affordable Care Act came the week after the vote was presumably taken by the justices in conference.  Since then we have been subjected to a seemingly endless stream of pundits, professors, and politicians urging the Court for “nonlegal” reasons (see Ilya’s post here) to uphold the Act.  All of these statements presuppose that the conference vote was to invalidate the mandate, or there would have been no reason to speak now.  Hence, the specific pressure on Chief Justice Roberts by Senator Leahy and Jeff Rosen is implicitly urging him to change his vote from that which he cast in the conference. These thoughts were prompted by Jennifer Rubin’s lengthy post, What the Left is Asking Chief Justice Roberts to Do, this morning on the Washington Post’s Right Turn blog, where she concludes:

Let’s see what the left is asking Roberts to do. It’s quite a Faustian bargain it proposes.. The liberal advocates ask Roberts to knuckle under to the president’s public intimidation of the Supreme Court, begun when he attempted to humiliate publicly the justices on Citizens United and continuing up to his public scolding. They ask he accept the Supreme Court as an agent of the executive branch, ready to do its bidding. They ask Roberts to embarrass himself before fellow justices, who already know Roberts’s views of the case. They’ll certainly see if Roberts took a fall. Rosen et. al would have the chief justice sacrifice, perhaps permanently, the respect of his colleagues who know all too well the intimidation game afoot. The left would need Roberts to drag a fellow colleague, Justice Anthony Kennedy, along for cover — for it would be untenable for the chief justice to be lonely vote-changer. Kennedy’s robust and insightful questioning in oral arguments, in which he captured the essence of Obamacare (i.e. it would fundamentally alter the relationship between the individual and the federal government), would have to be swept aside. The Obama-Leahy-Rosen tag team would ask that Roberts subscribe to some alternate political reality in which Obamacare is very popular and the public would be shocked and rise up in anger that the Supreme Court would overturn the “popular will.” (They must assume Roberts isn’t aware more than 70 percent of the public think the law is unconstitutional.) The pleaders would ask Roberts to adopt the left’s contention that conservative justices who adhere to the meaning and text of the Constitution can’t all vote one way for fear it will “look bad,” but liberal justices are free to march uniformly as they see fit. In essence, the left asks Roberts, knowing he believes the law to be unconstitutional, to nevertheless switch sides and thereby violate his oath of office. That’s the one where he swore to “administer justice without respect to persons, and do equal right to the poor and to the rich.” And without regard to which side whines the loudest. I think the left asks waaay too much. The chief justice, I am certain, doesn’t want to go from umpire to the judicial equivalent of the 1919 Black Sox.

Read the whole thing here.

Washington Post columnist Kathleen Parker has a powerful column this morning in the Post.  She begins:

Novelist John Grisham could hardly spin a more provocative fiction: The president and his surrogates mount an aggressive campaign to intimidate the chief justice of the United States, implying ruin and ridicule should he fail to vote in a pivotal case according to the ruling political party’s wishes. If only it were fiction. The justice is, of course, John Roberts and the case involves the Affordable Care Act(ACA), a.k.a. Obamacare, which would be affordable only if the Supreme Court upholds the individual mandate requiring all Americans to buy health insurance. The left’s narrative goes as follows: If the justices side with the Obama administration, they will be viewed as brilliant and nonpartisan. If the reverse occurs, why then, the justices are partisan, judicial activists who have delegitimized the court. . . .

She concludes:

This not-so-stealth campaign to influence the Supreme Court is obnoxious, if not unethical. . . .  Publicly chastising the court — and now taunting Roberts specifically — seems to have two purposes. One is to get under Roberts’s skin in the hopes that he’ll rule the “correct,” if not necessarily “legally correct,” way. Two is to lay the groundwork for declaring the court illegitimate if all or part of Obamacare is overturned. Either way, it’s politics at its filthiest and is beneath the dignity of the court — and of the White House. Unfortunately for Roberts, it’s up to the chief justice to hold the bar high.

[Read the whole thing here.]

The irony here is the sustained campaign by the President, Senator Leahy, and Left commentators like Jeff Rosen has now tainted as political any decision by Chief Justice Roberts to uphold the mandate, even if he did cast (or switch) his vote solely as a matter of legal principle.

I’ll be among the guest bloggers for Megan McArdle at TheAtlantic.com over the next two weeks. About half the posts will be on environmental stuff, and the other half on Supreme Court stuff. My first post, on property rights and environmental protection is here.

This is pretty shocking:

From ABC News:

Dewitt told ABC News she has no regrets about the incident and said there was “no ill intent” in what she was doing.  Dewitt said her colleagues brought the pinata and were using it as a “memoir” of Haley’s words and actions towards unions in her time as governor.

“They made it and I would have played the game with them no matter it would have been pin the tail on the donkey with Nikki Haley’s face on it.  I still would have played,” Dewitt told ABC News over the phone.  ”There was no ill intent.  We were certainly have a good time.  I’m not mad or angry.”

“We’ve been the brunt of her comments now for two years and that’s what the whole thing was.  She’s been whacking at us over the last two years,” Dewitt, who has been president of the South Carolina AFL-CIO for the past 16 years and will retire at the end of June, continued. “Anyone that knows me knows there was no ill intent at all.  Our folks don’t go to speeches with guns and things like that.  We have very loving people in our unions who will take up money for people or a vet.  We just heard these comments by the governor for over the two years.  They were using a memoir of the last two years I’ve lived under her leadership.”

“Kids use piñatas all the time,” she added.

On Bench Memos Carrie Severino offers her take on Jeff Rosen’s challenge to Chief Justice Roberts:

In Rosen’s world, avoiding 5–4 decisions at all costs is apparently a higher virtue than following the law. But, for the sake of argument, let’s set aside the question whether the law obligated the chief justice to vote a certain way. And let us also stipulate, for the sake of argument, that Rosen is right to place such high value on consensus. Rosen’s assertion that the chief justice would be an ”irredeemable failure” is still a dramatic overstatement.

First, it ignores the fact that the chief can only directly control his own vote and therefore would only be in a position to flip a 5–4 decision against the mandate to another 5–4 decision in favor of it. If Rosen is really concerned more about the vote counts than the ultimate results, both results would leave identical black marks on the chief justice’s record.

To the extent that Rosen hopes the chief justice will engage in lobbying of his colleagues reminiscent of the Warren-era court, such a strategy is inherently limited. Even if the chief justice were able to articulate a narrow decision that avoided making any major constitutional ruling (and if there were an obvious route to such a ruling, it is hard to imagine another of the many parties and amici would not have hit upon it), a determined coalition of four liberal justices would still be in a position to foreclose a consensus result simply by rallying around a position they knew none of the conservatives would accept.

The disproportionate weight Rosen places on this case also suggests he is more concerned about the outcome of the case than progressing toward unanimity. Take, for example, Sackett vs. EPA and Hosanna-Tabor, two of this term’s most important cases that could have been decided 5–4. Both were decided unanimously. Apparently a 5–4 ruling in the Obamacare case would cancel out these significant unanimous decisions. I would be curious to hear Rosen’s explanation.

 

Here’s another minimalist argument for invalidating the whole ACA:  there would then be no need to reach the Spending Power issues raised by the Medicaid challenge.  Either way the Court goes on that issue will be another big constitutional decision.  The lesser course is to strike down the ACA solely because the mandate is constitutional and inseverable, and then decline to reach the Spending Power claim.  Seriously, this would be a lot less constitutionally ambitious than reaching it.

UPDATE:  I should clarify that the Court should rule on severability according to existing severability doctrine, although this doctrine requires the exercise of judicial judgment.  My two posts on severability are offered in response to the nonlegal “prudential” considerations that are being urged upon the Court by others.  I fully agree with Ilya’s refutation of these nonlegal considerations.

Most attention has been devoted to whether or not the Supreme Court will invalidate the individual mandate, and how the legitimacy of the Court will be affected if it invalidates the Affordable Care Act.  Little has been said about the effect of severing the mandate from the rest of the law.  One implication of severance is that, like campaign finance, serious constitutional challenges arising from the Affordable Care Act will continue for years to come, continually pitting the judiciary against the executive branch, and thereby continually calling the Court’s legitimacy into question.

Exhibit One is the challenge to the HHS contraceptives mandate noted by Jonathan below:

Several Catholic dioceses and universities filed suit today against the so-called contraception mandate, the Washington Post reports hereand here. In all twelve lawsuits were filed in twelve separate federal district courts. There are 43 separate plaintiffs in these suits, including the Archdioceses of Washington, D.C. and New York, Catholic University, and the University of Notre Dame, where President Obama delivered the commencement address in 2009.

The best way to remove the Supreme Court from the path of this perpetual conflict is to invalidate the entire ACA, a decision amply supported by existing severability doctrine.  From there, the next Congress will then have to revisit the problems with our current health care system by enacting reforms that enjoy bipartisan support.   Should the Court invalidate the ACA in June, the next election will inevitably be about the precise shape of this health care reform.  The timing of such a decision, therefore, could not be more fortunate for our political process.

Over on the Liberty Law Blog, Mike Rappaport has this thoughtful post on the left’s concerted push to threaten the legitimacy of a decision invalidating the entire Affordable Care Act:

[Jeff Rosen's] comparison with the New Deal is not well taken.  The Obama Administration and the health care law do not have anything like the popularity that the Roosevelt Administration and the signature items of the New Deal had.  During the New Deal, the Roosevelt Administration and the Democrats were a political juggernaut as compared to the present day anemic Obama Administration.  As I show in this paper, Roosevelt and the Democrats won landslide after landslide, in the Presidential election of 1932, in the midterms of 1934, and in the President election of 1936.  Obama and the Democrats, however, took power in 2008 (after the Democrats won significant victories in 2006), but then were walloped in the midterm elections of 2010, losing 63 seats in the House.  Moreover, a significant portion of those losses were due to the passage on party line votes of the unpopular health care law.  By contrast, much of President Roosevelt’s agenda was passed with enormous majorities, including with significant Republican support (small as it was).

Even if President Obama is reelected – a big if, I would add – the House is very unlikely to turn back to the Democrats.  And the Senate will be closely divided and deadlocked, whichever party has the majority.  Thus, at worst, the Supreme Court need not fear any legislation being passed that would attack them.  Nor need the Court fear the criticisms of liberal Democrats about a very unpopular health care law.  Moreover, if President Obama is defeated and the Republicans at least keep the House, then there will be a strong coalition of political actors supporting the Supreme Court’s decision.

The bottom line here is that the Obama Administration and the health care law are not the New Deal and Social Security, even though liberals keep imagining that they are.  If the Supreme Court decides to strike down the law as an unprecedented exercise of federal power, the Court need not fear a repeat of the New Deal.

There is no escaping the fact that the entire Affordable Care Act is deeply unpopular and any decision to uphold it will not be well received by the public.

And, this morning, the Wall Street Journal has a strong editorial on the subject:

The first fallacy is defining judicial activism as overturning a Congressional law. Since Marbury v. Madison established judicial review in 1803, the High Court has overturned hundreds of laws in part or whole. The real measure of activism is whether the Court’s reasoning is rooted in Constitutional principle. If it is, the Court is not activist but is adhering to the highest legal principles.

Regarding the Affordable Care Act, we’d argue that upholding the individual mandate to buy health insurance requires far more judicial activism. That’s because if the Court finds this federal mandate to be Constitutional, it will have no principle on which to limit future purchase mandates.

Once health insurance can be mandated, Congress will inevitably find that other products or services are equally essential to national well-being. Future Courts will either have to find all such purchase mandates to be legal, in which case there is no limiting principle, or they will have to pick and choose, which means an endless exercise in policy-making.

Far better for judicial modesty—and the reputation of the Court—to draw the line that the Commerce Clause forbids Congress from mandating that individuals engage in commerce because such police powers are reserved for the states. This is the truly restrained judicial position.

The most dishonest argument is the liberal media chant that overturning the law means overturning the New Deal era’s Commerce Clause precedents. This is propaganda. None of the plaintiffs advocated that any precedents be overturned, even though in our view some of those cases deserve to be overturned. Paul Clement and Michael Carvin, who argued for the plaintiffs before the Court, explicitly denied any such desire.

And, as Ed Whelan insightfully observes on NRO, we are likely to find out whether any justices capitulated to this pressure:

In this regard, I’ll add that one unintended effect of Jeffrey Toobin’s (badly flawed) revelations about the behind-the-scenes goings-on in the Citizens United case ought to be to undermine the Left’s ongoing efforts to intimidate the justices on the individual mandate. Specifically, it’s reasonable to assume that a year or two from now (if not sooner) some reporter will provide the “inside story” of what happened at the Court. And little could be more damaging to the reality or perception of the Court’s independence than evidence that a justice changed course from his vote at the post-argument conference in apparent response to the intimidation campaign.

I’m delighted to say that — according to an e-mail I just received (not from Paul or any mutual friend) — Paul Watford has just been confirmed by a 61-34 vote. (The Democratic Senators voted for him, as well as Republican Senators Alexander, Brown, Collins, Graham, Kyl, Lugar, McCain, Murkowski, and Snowe; some of those are quite conservative.) For all the reasons I mentioned before, I’m confident Paul will be a superb judge.

UPDATE: For the official roll call, see here.

As far as I can tell, one of the few network security tools getting better at the speed of Moore’s Law is network monitoring and audit.  Modern networks throw off vast amounts of data as users go about their daily business.  It is often possible to find the telltale signs of network intrusion by watching for activity that is anomalous or that fits the signature of network attacks elsewhere.

But finding those faint signals in a sea of noise isn’t easy.  No one wants to sit and read logs.

The good news is that tools to analyze Big Data are improving and getting cheap at a great rate, and companies like Zions Bank have begun using open source programs like Hadoop to analyze their networks. 

Around 2005, [Zions Bank Chief Security Officer] Wood said, his team made the move to a massively parallel processing system that was designed for log management but that his team bent and hammered into a data warehouse for analytics. “We adopted a business intelligence mindset,” he said, “but slanted toward security.” He brought in some data-analysis specialists, and they started mining data and searching for patterns, a process made easier by the new higher-powered and more scalable system. But it, too, reached its limits as unstructured data from myriad new sources began streaming in.

In 2010, Zions started its transition to Hadoop and has been running its big data workloads exclusively on that platform since late 2011. Wood said he’s loading about 130 data sources into Hadoop, including server logs, web logs and customer transactions. Now, he explained, his team is able to analyze massive amounts of data — and fast — to detect everything from malware and spear phishing attempts to account takeovers. The latter is similar to credit card theft, only instead of discovering anomalous spending, Zions is able to detect anomalous transfers from customers’ bank accounts.

And Wood doesn’t worry about outgrowing his Hadoop cluster, which means his team can keep innovating on new ways to detect criminal behavior. If you’re monitoring network traffic, for example, Wood said, you “have to get down to 0s and 1s in packets to look for the needle in the haystack.” That means storing and analyzing everything in its raw form.

This approach to security is gaining traction, but once again, it looks as though the financial sector, rather than government, is pioneering a network security technology.  In fact, this is going to be a tough act for government to follow.  Just read that last sentence again.  “That means storing and analyzing everything in its raw form.”

Just as they stalled government network intrusion prevention technology for a decade, privacy advocates are likely to trash any government security system that depends on storing and analyzing everything, even everything on the government’s own networks.  Which means that security will likely remain Mission Impossible for most government information security officers.

The promise of perfectly personalized products manufactured by 3D printers is on the horizon, but this 3D-printed bikini – supposedly the “world’s first ready-to-wear, completely 3D-printed article of clothing” – looks surprisingly uncomfortable and badly fitted to me.

And believe me, I looked closely. I take seriously my responsibilities as a technology commentator.  And in that role, I think it’s safe to say that the future is already here but its coverage is skimpy.

Two and a half years after former Director of National Intelligence Mike McConnell called for a “dot-secure” network, a Silicon Valley startup with $9.6 million in funding has announced plans to launch one. From the description, this isn’t intended to be a wholly secure network, since that’s a promise no one can fulfill.  Instead, it’s intended to link companies that take security seriously. At a minimum, the shared standards and security consciousness should allow much better forensics and audits of network behavior, even when the behavior crosses organizational and technical firewalls.  In fact, I assume the $9.6 million will be spent mainly on rule-writing and rule-enforcement.

If ever there were a startup that lawyers and accountants could have dreamed up, this is it.  I hope that doesn’t guarantee its failure.

The one man convicted of the Lockerbie bombing has died, three years after being released by the Scottish Nationalist government for what was advertised as his last few weeks of life.

Evidently determined never to apologize, SNP leader Alex Salmond defended that release today, saying that “regardless of people’s views they can have complete confidence that it was taken on the basis of the due process of Scots Law.”

As a practical matter, Scots now have full responsibility for “due process of Scots law,” having achieved home rule by a process known as devolution.  A remarkably apt name that, when you think about it.

UPDATE: I edited the last paragraph to avoid the erroneous implication that compassionate release was governed by British law before devolution.

An interesting recent sex crime case, In re Tiemann (Mich. Ct. App. May 8, 2012). Because the parties were underage (defendant was 15 and HS was 14), consent was not a defense to the underlying crime, but it proved to be important to deciding whether the defendant could avoid having to register as a sex offender. An excerpt:

On February 20, 2010, Tiemann went to HS’s home at her invitation. They went to the guest house and proceeded to “make out.” HS said that after Tiemann removed her shirt, she protested when he tried to remove her bra and told him “she really didn’t want to do this.” Tiemann allegedly told her he had done this before and not to worry. HS said that ultimately, Tiemann removed all her cloths, digitally penetrated her, and performed cunnilingus on her. She said she told him she “didn’t want to” while he was digitally penetrating her but then “gave in because she knew he wouldn’t stop.” She claimed that during the subsequent sexual acts, she told him to stop, and he did, but then started again. HS said that Tiemann stopped completely when she told him to stop a second time. After that, they dressed, lay down on the couch together, and fell asleep.

Tiemann admitted that HS said once that they were moving too fast, but then she said that she would be okay. He claimed that she pulled him back on three occasions when he asked if she wanted him to leave. He also acknowledged that HS said she wanted to stop while he was digitally penetrating her, and he offered to leave. Further, he acknowledged that she sat up and that he laid her back down four times. He claimed that he was not forcing her during penile-vaginal sex. Further, he acknowledged understanding that she wanted to stop when she expressed that she was uncomfortable. When asked if he should have stopped, Tiemann said “Yeah, lots of times.” Finally, Tiemann stated that he felt he was being pushy when he told her to relax and be comfortable with it and that eventually it seemed that she was comfortable because it “felt like she just gave in.” However, he said he “forc[ed] it on her a couple of times” and that he knew it was wrong….

[T]he parties reached a plea agreement whereby Tiemann was to plead no contest to one [Criminal Sexual Conduct] III [statutory rape] count and the other charges [alleging force or coercion] would be dismissed. After reviewing two case report summaries of interviews of the victim and Tiemann, the trial court accepted the plea. The trial court found a factual basis for a determination that Tiemann had intercourse with the victim who was between the age of 13 and 16 (there was no mention of force or coercion).

Apparently, an initial order of adjudication indicated that Tiemann was convicted based on force or coercion. However, a corrected order of adjudication specifies that the victim’s age was the basis for the conviction….

An amendment to [the Sexual Offender Registration Act] subsequently took effect and provided that for cases pending on July 1, 2011, a juvenile could be excused from registration under the SORA under certain circumstances if he could establish consent. The trial court therefore held a trial on the issue of consent. At the trial, various witnesses were called, and HS read a statement into the record giving a more detailed account of what transpired on the night in question. In this account, she indicated that she may have acquiesced “so that he wouldn’t be so mean” but gave further indications that the sex was not consensual. Ultimately, the trial court found that Tiemann was not exempt from SORA registration requirements.

Note that to get an exemption from the registration requirement, the defendant must prove consent by a preponderance of the evidence. In a typical criminal case alleging nonconsensual sex, the prosecution must prove absence of consent beyond a reasonable doubt. Still, the common question in these cases is what counts as “consent.”

A reader asks:

In a discussion thread on another blog, I hazarded an observation that marriage is NOT a contract as typically defined at law. I based this on my view that marriage does not contain elements that a contract must contain, such as a definition of goods and services offered in exchange for consideration.

My interlocutor held that marriage does, indeed, contain all the necessary elements of a contract, including defined exchange and “payment” for it.

I have researched this question online, but can find no satisfactory answer. Black’s Law (2nd ed.) seems to treat marriage as a legal status, but not a contract. At the same time, there’s no lack of other commentaries which pointedly describe marriage as a contractual relationship.

So: Might you and your conspirators shed some light on the question by posting your thoughts: Is marriage — technically — a legal contract?

I thought I’d response to this on-blog because it illustrates a considerably broader point: In law, as in life, concepts like “contract” aren’t unitary things, so that either something is a contract and has all the properties of a contract or something isn’t a contract. There are different kinds of contract, with different qualities, and different possible definitions for the term “contract.”

To begin with, “contract” is a quite broad concept. I don’t want to try to give a thorough definition here, but suffice it to say that an exchange of promises might well be a contract even if the promises don’t involve money, goods, or even services. Thus, for instance, “Each of us promises not to be anyone else’s bridge partner” can be a contract; it’s an exchange of promises not to engage in certain conduct. (Note that the contract doesn’t promise that I’ll be your bridge partner, just that I won’t be anyone else’s.) Substitute something else for “bridge,” and you’ll have one aspect of a marriage contract.

But beyond this, it turns out that a marriage contract is a contract — it’s an exchange of promises, it has effect because of consent of the parties, and it after all is called a marriage “contract.” But it also has many consequences that a normal contract doesn’t have: Not so long ago, it turned otherwise criminal sexual conduct (fornication) into legal conduct. Even today, it has that effect with marriages where one party is too young to consent to sex but old enough to consent to marriage (usually with the parents’ consent). It makes the parties’ children legitimate, which used to have very important legal effects and still has some legal effects. It gives the parties the right to refuse to testify against each other in court. If one party is not a citizen, it gives the party a relatively easy path to citizenship. The list could go on.

It also lacks some of the properties of a normal contract. It can be severed pursuant to divorce laws without the opportunity to sue for damages for breach of contract. It is not governed by the Contracts Clause of the Constitution, so that newly enacted divorce laws could impair the obligation of existing contracts of marriage (see the Dartmouth College Case (1819)).

So marriage is a contract, and has long been described as a contract, but it’s a very peculiar kind of contract that has its own special legal rules. To ask whether marriage is “technically” a contract doesn’t make much sense, because it presupposes a single unique meaning for the term “contract.” If by contract you mean “a contract as typically defined at law,” which is to say a contract that has most of the legal consequences that a typical contract has, then the answer is “largely not,” because marriage contracts have such specialized legal consequences. If by contract you mean “something the law has typically labeled a contract,” the answer is “probably yes,” simply because “marriage contract” has long been a common term. If by contract you mean “a mutual agreement that the law treats as binding as a consequence of the parties’ having agreed to it,” then the answer is “yes.”

So, as I said, there are different kinds of contract, with different qualities, and different possible definitions for the term “contract.” In math, you can ask, “is a number even, or is it odd?” In law, asking “is X a contract?” will often yield the response, “in what sense, and for what purposes?”