SCOTUS Rules on Health Care

This morning, the Supreme Court issued its long-awaited decision in the cases challenging the validity of the Patient Protection and Affordable Care Act (ACA).

Chief Justice Roberts’ majority opinion (5-4) upholds the ACA, including the minimum insurance requirement (the “mandate”). The court concluded: “Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.” Thus, the mandate is upheld as a tax, not as an exercise of the Commerce power or under the Necessary and Proper clause.

Live blogging from the Court, SCOTUSblog’s Amy Howe provided this “plain English” summary of the ruling:

The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional.  There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance.  However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power.  That is all that matters.  Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding.  On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

In a concurring opinion (joined by Justices Breyer, Kagan and Sotomayor), Justice Ginsburg wrote that the mandate should be upheld under the Commerce power, but this opinion is not controlling on the issue. The four dissenters (Kennedy, Scalia, Thomas and Alito) would have struck down the ACA in its entirety.

The Congressional web site, THOMAS, provides much information on the ACA legislation here.

Prior to the decision, SCOTUSblog’s Lyle Denniston provided advice on how to read the opinion here.


A Backward Glance, and Tomorrow

In her New York Times essay on Wednesday, Linda Greenhouse reviewed the important rulings issued by the Supreme Court on Monday. She also examined those cases just for any light they might shed on the health care decision expected on Thursday.

It may be found, arguably, in the upholding of federal legislative authority (and the vehemence of Justice Scalia’s dissent) in the Arizona immigration case, and in Chief Justice Roberts’ opinion dissenting from the court’s decision in the Miller case:

Chief Justice Roberts was not completely silent on Monday. He filed an opinion dissenting from the court’s other decision that day, Miller v. Alabama, which barred mandatory sentences of life without parole for those convicted of committing murder before the age of 18. Noting that the federal government and most states have such sentencing laws on their books, the chief justice criticized the court’s majority for having failed to “display our usual respect for elected officials.” Courts “must presume an Act of Congress is constitutional” barring some obvious reason it isn’t, he said, citing a 19th-century precedent for that proposition. And quoting the 1976 Supreme Court decision that reauthorized capital punishment, he said there was a “heavy burden” on “those who would attack the judgment of the representatives of the people.”

Considered in relation to the Affordable Care Act, that language might be read as suggesting good news for ACA supporters tomorrow.

But perhaps not. Aside from the Justices and perhaps some of their clerks, nobody really knows what the ruling tomorrow will be. There have been no leaks about the health care decision. Even while renewing her prediction that the Court will uphold ACA, Greenhouse acknowledges that it is “undoubtedly foolhardy” to make one.

Greenhouse anticipates the scene at SCOTUS tomorrow and recalls a similarly dramatic day almost exactly 20 years ago:

Thursday promises to be a rare day of Supreme Court theater. While there are frequent dramatic moments at the court, they occur randomly, because the justices don’t announce in advance which decisions they will hand down on a given day. But once a decade or so, the last day of the term arrives with a momentous case still undecided, so there is no secret about what the day holds in store. I remember the almost unbearable tension in the courtroom on June 29, 1992, when Planned Parenthood v. Casey was due to be decided and there was a distinct prospect that the court would use that case to overturn Roe v. Wade.


FREE Death Penalty Worldwide Database

Death Penalty Worldwide is a site created by the Center for International Human Rights at Northwestern University School of Law.  The site’s death penalty database allows you to search by country, region, or form of execution.  The pages provide citations to government, UN, and NGO publications that describe a particular country’s laws regarding the death penalty.  In addition, the site provides information under “International Legal Issues” on issues related to the death penalty, such as due process, foreign nationals, and juvenile offenders.  An extensive death penalty bibliography detailing relevant books and articles is also provided.  If you are interested in a comparative examination of the death penalty, this resource is a great place to get started.

Hat tip to Georgetown Law Library.


SCOTUS Issues Major Rulings

The Supreme Court issued several major rulings today, but none of the cases involving constitutionality of the Affordable Care Act was among them. The decisions released this morning:

  • Arizona v. United States (No. 11-182). The Court declares provisions in the Arizona immigration law known as SB 1070 to be preempted by federal law, but the entire law was not struck down. The vote is 5-3, with Kennedy writing for the majority; Scalia, Thomas and Alito dissenting in part; and Kagan taking no part in the decision.
  • Miller v. Alabama (No. 10-9646). The Court rules that the Eight Amendment prevents a sentencing scheme that includes imposition of life without the possibility of parole for a juvenile homicide offender.
  • American Tradition Partnership v. Bullock (No. 11-1179).  By a 5-4 vote, the Court granted certiorari and summarily reversed a decision by the Montana Supreme Court, which had upheld a law restricting corporate campaign contributions. This was a pure application of the principle in the Citizens United case. Breyer, Ginsburg, Sotomajor and Kagan dissented.

See the full Order list issued today for all the grants and denials of certiorari, including the Montana campaign finance case.

With these cases decided, a decision in the health care cases are expected on Thursday morning, June 28. SCOTUSblog will continue its live-blogging from the Court, providing the very first word on the decisions.


When is it Bad to Ask for Help?

Generally, librarians are very much in favor of people asking for help because it improves efficiency, and there is no way you are going to know everything you’ll need in every professional situation you will encounter.  Is there ever a time when you shouldn’t ask for help?  Probably not, but you may want to consider who you’re asking for help and in what forum.  Of course you want to ask someone with knowledge pertaining to your question, but what if you don’t know anyone personally who would know the answer to your question?  In many disciplines, particularly computer programmers/software engineers, it’s common to use online forums to ask and answer questions.  These can be great, but there can also be risks to putting your question out into cyberspace if it can be traced back to you.  That is because not only do people who can help you see it, but so do your competitors (or opposing counsel).  I recently read an anecdote by a law firm librarian on the law-lib listserv about an instance where research questions she had posed on the listserv were used against her firm at a deposition.  Opposing counsel was attempting to show the librarian did not know how to do competent legal research because she was asking questions.  The takeaway here is it is good to ask questions and learn more about skills related to your professional activities, but make sure you’re asking people you trust, and if you need to go beyond that circle, try to ask questions anonymously so that you don’t give ammunition to others who might want to use that lack of knowledge against you.


Tools to Make Memory Aids

For the most part, the bar review companies are good at creating anagrams or mnemonics to remember lists of elements.  However, you may encounter, as I have, a list of factors you need to memorize that doesn’t come with a pre-packaged memory aid.  For me, it was the list of factors the Massachusetts Probate and Family Court must consider when determining an equitable distribution of property during a divorce proceeding.

The first thing I did was identify the main term in each factor, and wrote down the first letter of that word.  My letters were snpaicndol.  I entered these letters in Word Grabber, which allows you to enter up to 15 letters and it will display words composed of those letters.  One of my words was panics.  I used that plus the remaining letters to create:

Length of the marriage

Occupation, employability, and vocational skills of each party

Dependent children’s present & future needs

Property to which a party holds title

Age and health of the parties

Needs and liabilities of each party

Income, including the opportunity for future acquisition of capital income and assets

Conduct of the parties during the marriage

Station in life of each party

Granted, LOD PANICS isn’t perfect, but it’s a lot easier to remember than the entire list of factors without any organization.  Use Word Grabber to make your own hard-to-memorize lists more manageable.


For Those Who Practice the Law of Real People

Lawrence Lessig, a professor at Harvard Law School, gave the commencement address at Atlanta’s John Marshall School of Law.  He discussed two types of law: Inc. law and the law of real people.  Inc. law, for the most part, works.  The law of real people, however, does not have such a great track record.  Many of you are working on the legal problems of real people this summer, and you probably see the challenges the system creates.  As Professor Lessig notes, it is the duty of lawyers to fix the system.

I’m sure this seems like a daunting task.  It may also be the case that although you have individual examples of injustice you can point to, it is difficult to put the larger issue into context.  The library has many books that discuss the problems related to the law of real people.  For those of you working in criminal law this summer, we have two new titles that may be of interest to you: Confessions of Guilt: From Torture to Miranda and Beyond (Annex HV8073.3 .T46 2012) and Do the Crime, Do the Time: Juvenile Criminals and Adult Justice in the American Court System (Annex KF9794 M393 2012).


Most-Cited Law Review Articles

Congratulations to Professor Gordon, who had two articles on the most-cited lists compiled by Fred Shapiro and Michelle Pearse:

  • Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 Yale L.J. 1533 (1993).
    • This article was the third most-cited article in 1993, and is the tenth most-cited article in the intellectual property literature.
  • Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors, 82 Colum. L. Rev. 1600 (1982).
    • This article is the seventh most-cited article in the intellectual property literature.

Congratulations also to the Boston University Law Review, which had two most-cited articles:

  • Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204 (1980).
    • This is the twenty-fourth most-cited article of all time.
  • Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. Rev. 1 (1988).
    • This article is the ninth most-cited article in the area of legal ethics and the legal profession.

Massachusetts Bar recommends greater practical skills training for law students.

The Massachusetts Bar has just released a report advocating for increased practical skills training for law students.

Among several sweeping changes that the Task Force suggests, one, the “Reinventing of the Third Year” is certain to create plenty of opportunities for discourse and controversy:

“In response to these recruiting realities,[underemployment of recent graduates], the subcommittee sought to identify ways to seize upon the third year of
law school as the last best chance, prior to licensure, to expose students to the broad variety of job-related tasks they are likely to encounter in today’s job market and in modern legal practice. While such experiences will not guarantee a law graduate a job, it is the belief of the task force that by ensuring a higher level of work experience, graduates will best position themselves to grapple with the reality of more competitive recruitment and will begin to change the perception employers have about new lawyers being a drain on resources.” p.5

For the full report, see, the “Report of the Task Force on Law, the Economy and Underemployment.”