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Salaita Appointment to Be Forwarded to Board

[ 1 ] September 1, 2014 |


Corey Robin permits himself a little cautious optimism. Alas, I suspect John Wilson’s take will prove accurate:

There is not a chance in hell that [an appointment of Salaita] will happen. I can see only two explanations for this decision: 1) Wise wants to head off criticism (and, as Robin points out, Wise wants to prevent a possible legal challenge) that she violated a procedural rule by failing to forward the appointment to the Board of Trustees. 2) The trustees are upset that she removed the opportunity for them to vote against Salaita, and they want the chance to publicly double fire Salaita.

Considering that all of the trustees signed a letter embracing Salaita’s firing, it would be shocking if even a single trustee voted for Salaita. The Sept. 11 Board of Trustees meeting will obviously be the center of considerable attention, but it ultimately will not change the decision.

I would guess that Corey’s second, more pessimistic interpretation is relevant to the Wise’s formal reversal. Given that UIUC’s attempt to square the academic freedom circle involved reliance on the literal language of his contract (while ignoring the well-established norms Salaita was very reasonably relying on), the fact that Wise’s pocket veto was not really consistent with the literal language of the contract might have presented a problem. By having the trustees explicitly vote the appointment down, their chances of making a Halbig-style argument in a defense to a civil suit and getting away with minimal or no damages might be increased.

I certainly hope I’m wrong. My most detailed explanation for why UIUC’s firing of Salaita is plainly inconsistent with academic freedom can be found here.

And the John McCain and Lindsey Graham Award For Outstanding Achievement in the Field of Wankery Goes To…

[ 9 ] September 1, 2014 |

John McCain and Lindsey Graham.

Does the Modern Administrative State Inherently Violate the Rule of Law? (SPOILER: No.)

[ 68 ] September 1, 2014 |

Showing us where the conservertarian movement to restore the law of the Gilded Age is headed, Phillip Hamburger has a forthcoming book called Is Administrative Law Unlawful? “that answers this question in the affirmative.” Unfortunately for him, Adrian Vermeule has read it:

But before criticism, there must first come understanding. There is too much in this book about Charles I and Chief Justice Coke, about the High Commission and the dispensing power. There is not enough about the Administrative Procedure Act, about administrative law judges, about the statutes, cases and arguments that rank beginners in the subject are expected to learn and know. The book makes crippling mistake about the administrative law of the United States; it misunderstands what that body of law actually holds and how it actually works. As a result the legal critique, launched by five-hundred-odd pages of text, falls well wide of the target.

In the first section, I’ll try to reconstruct Hamburger’s critique, whose basic ambiguity arises from the fact that Hamburger is impenetrably obscure about what he means by “lawful” and “unlawful.” Those terms are only loosely related to the ordinary lawyers’ sense. In my view, the best reconstruction is that Hamburger thinks that there are deep unwritten principles of Anglo-American constitutional order, derived from the views of English common-law judges; departures from those principles are “unlawful.” In the second section, I’ll try to show that the book’s arguments are premised on simple, material and fatal misunderstandings of what is being criticized, and never do engage the common and central arguments offered in defense of the administrative state. In the conclusion, I’ll consider a suggestion that the book is only masquerading as legal theory, and should instead be understood as a different genre altogether — something like dystopian constitutional fiction. Although the suggestion is illuminating, and tempting, I don’t think it applies here.

It’s definitely all worth reading if you’re interested in that kind of thing.

Scams, Law School and Otherwise

[ 15 ] August 31, 2014 |

A for-profit grift mill is shutting down:

After years of enrollment losses, Anthem Education, a for-profit chain of colleges and career institutes, filed for bankruptcy Monday. The company has abruptly shut down a number of its campuses, leaving state agencies struggling to funnel displaced students into other institutions. Nine more campuses may close today, Anthem officials said.

This is actually good news for existing students and taxpayers, since the loans will mostly now be dischargable.

In Oregon/Idaho, the ABA isn’t willing to go along with a new scam as of now, although the grift is still in operation:

Nearly half of the third- and second-year students at Concordia Law School in Boise, Idaho, have left the school in the last three weeks after it failed to get provisional accreditation from the American Bar Association.

Without accreditation, Concordia Law grads cannot take the Bar exam in Idaho, and most other states, necessary to get a license. At least 48 of the school’s 102 third-year and second-year law students have withdrawn, transferred or taken temporary leave from Concordia, school officials said Thursday.

The story is unusually candid about why a school was started to issue essentially worthless degrees in a saturated market:

The situation provides a glimpse into the business of higher education.

Amid difficult times in due to high costs and tough competition, Concordia has launched a dramatic diversification effort, opening the law school and a popular on-line master’s in education program.

The new programs have successfully grown Concordia’s annual revenue from $80 million to $100 million, according to school officials in Portland.

Inconsiderate of the ABA to interfere with this program of revenue maximization scheme.

Judge Rules Texas Abortion Near-Ban Unconstitutional

[ 11 ] August 29, 2014 |

Under the radical theory that forcing the closure of most of the state’s abortion clinics through regulations that have no legitimate medical purpose is an undue burden on a woman’s right to choose to have an abortion. Evidently, the ruling is unlikely to survive 5CA but at least the opinion is strong.

Lame Duck Governor Decides To Stop Inflicting Needless Suffering on State’s Citizens

[ 72 ] August 29, 2014 |

Pennsylvania will be taking the Medicaid expansion. Not in an ideal form, although better than the Arkansas version (the administration was right to strike a harder bargain, with Corbett polling in the low 30s.) And, as Sargent says, the next government remains free to make the program more progressive, so it makes sense to let the state proceed now.

On Reclining Airline Seats

[ 316 ] August 29, 2014 |

This. Very much this.

One would think that a civilized society would, in time, come to some accepted standards for civilized behavior. We are not talking here about anything so crude as laws; we are talking about simple decency towards your fellow humans. We do not require laws to tell people to give up their seat for a pregnant woman, or help an elderly person across the street, or refrain from cursing at waiters. We expect people to do that out of common decency. Those who would refuse to follow such simple rules simply because they are not laws are known as selfish, antisocial monsters who will likely die friendless and alone.

An airplane is an enclosed environment. For most passengers, there is not very much extra room. Space is tight. No one can go anywhere. We are collectively trapped. It is simple decency not to crudely and selfishly recline your seat into the face of your unfortunate neighbor to the rear. Yes, you could recline your seat, legally; but that would make you a selfish, antisocial monster. I trust that you are not that. I trust that you are a good person.

The idea that if you want people to be polite and considerate you should pay should pay them for the privelege should be a reductio ad absurdum of consevervtarian logic, only they’re willing to make the argument themselves.

Now This Is An Unhinged Rant

[ 166 ] August 28, 2014 |

Shorter Andy McCarthy: “It’s outrageous that banks that committed widespread mortgage fraud should face any sanctions at all. Because ACORN!!!!!!!!!!! Why on earth are we even funding the Department of Justice at all? The DOJ trying to enforce the law is even worse than taverns that provide free food! I am not a crackpot!”

There Are No Shortcuts

[ 95 ] August 28, 2014 |

A distinguished, if long-dead, philosopher has dropped into our comment section to make a very important point:

Because multi-party systems are much more democratically responsive? Coalition building is at least as frustrating as the Democratic Party. In Germany, if you don’t like the too-centrist-and-neoliberal SPD, you get to vote for either a party that everyone else refuses to have anything to do with and has no measurable impact on public policy, or a party that’s not really big enough to form a majority coalition with the SPD! Good stuff!!!

The reason progressive change is hard is because progressive change is hard, not because of structural problems with the electoral system. And the structural problems in American government have much more to do with the Senate’s inherent small state bias and terrible traditions; and with the way the uneven distribution of population gives Republicans an advantage in the House; than it does with having two parties.

Exactly right. This is one issue I have with the focus on electoral reforms (particularly advocates of PR; approval or runoff voting would ensure that third party voting won’t produce irrational results but probably not produce much third party representation.) Again, I don’t see what problem this is supposed to solve. The fundamental issues with achieving liberal reform are that 1)there aren’t enough liberals, and 2)there are many structural features of American government that favor reactionary interests. Third parties do nothing about #1 and would probably make #2 worse. I’m not even sure that PR would provide much value to narcissists who don’t like to sully themselves by being part of a broader coalition. (Not that we should care anyway.) Either the Magic Pony party won’t be part of the governing coalition and will achieve nothing, which will prove the weakness and lack of will of individual members, or they will collaborate with more moderate parties, in which case they’re sellouts.

Jon Walker’s attempt to defend a version of Frank/West runs into similar problems:

While people often overstate the power of the Presidency, continuing to pretend the filibuster was an insurmountable hurdle is just plain silly. As we saw just last year when Democrats changed the rules regarding executive nominees, a simple majority of senators can easily amend or completely eliminate this minor procedural issue.

I’m not upset Obama couldn’t get Snowe to play nice — I’m disappointed he actively refused to go around her. For example Democrats could have used reconciliation to adopt a larger stimulus with only a simple majority, or just eliminated the filibuster. This is exactly what George W. Bush did to get his tax cut when a Senate minority tried to stand in the way.

First of all, we have a classic botch from the files of Drew Westen; the filibuster was irrelevant to the Bush tax cuts because budget bills can’t be filibustered. Republicans did not have to change any congressional procedures to get their tax cuts through. That aside, note the fancy shuffling here between “Obama” and “the Democratic Party.” What Obama can do to abolish the filibuster is “nothing.” Having someone who was very recently a backbencher make a public case that senior senators should give up their prerogatives could not have helped and almost certainly have been very damaging. The idea that the filibuster is a product of presidential will is a parody of green lanternism.

It is trivially true that the “Democratic Party” refused to abolish the filibuster. But this just re-states the problem. If there were 60 senators who were staunch liberals and unconcerned with their institutional self-interest, the filibuster wouldn’t be a significant barrier in the first place. (And remember that this is a multidimensional problem; there were/are senators like Leahy and Feingold who are institutional conservatives even if they aren’t ideological conservatives.) And if Walker has a magic formula for getting staunch liberals elected in Nebraska and Louisiana and Missouri etc. etc. he isn’t revealing it. Assuming can openers isn’t a solution to anything.

Red States Inflict Suffering on Their Citizens to Spite Obama

[ 46 ] August 27, 2014 |

The most direct consequence of states refusing to accept the Medicaid expansion is people suffering from avodiable death and/or suffering because they don’t have medical insurance. The problems are going beyond this as well:

While record numbers of Americans sign up for the larger Medicaid health insurance program for the poor, financial issues are emerging for medical care providers in the two dozen states that didn’t go along with the expansion under the Affordable Care Act.

Reports out in the last week indicate the gap between those with health care coverage is widening between states that agreed to go along with the health law’s Medicaid expansion and those generally led by Republican legislatures and GOP governors that are balking at the expansion.

The moves against expansion are “beginning to hurt hospitals in states that opted out,” a report last week from Fitch Ratings said. The U.S. Department of Health and Human services has said Medicaid enrollment in the 26 states and the District of Columbia that agreed to go along with and implemented the expansion by the end of May “rose by 17 percent, while states that have not expanded reported only a 3 percent increase,” HHS said in an enrollment update for the Medicaid program.

“We expect providers in states that have chosen not to participate in expanded Medicaid eligibility to face increasing financial challenges in 2014 and beyond,” Fitch said in its July 16 report. “Nonprofit hospitals and healthcare systems in states that have expanded their Medicaid coverage under the Patient Protection and Affordable Care Act have begun to realize the benefit from increased insurance coverage.”

I once again turn things over to Brad DeLong:

This is the piece of the article that leaves me most annoyed because of the absence of context. Why have 20 states refused to take part in Medicaid expansion? It’s not because of how the Affordable Care Act was written. All states currently participate in Medicaid–it is a good deal for a state to do so. The ACA changed Medicaid. But John Roberts rewrote the law from his post on the Supreme Court to give states the option of (a) simply continuing with Medicaid-as-it-exists-in-2013 in addition to the options of (b) participating in Medicaid-as-it-exists-in-2014 and (c) dropping Medicaid entirely.

When John Roberts rewrote the ACA from the bench, he did so very badly. The expansion of Medicaid meant that a great many people who used to show up at safety-net hospitals without any insurance at all will now be covered by Medicaid, so the rationale for the Disproportionate Share Payments to safety-net hospitals that treat the uninsured will go away, hence the ACA eliminates the no longer-needed DSP. But in states in which Medicaid isn’t expanded, the need for the DSP remains. When Roberts rewrote the law, did he rewrite the law so that the DSP remains for states that do not accept Medicaid expansion? No. Will safety-net hospitals in non-expanding states close as a result? Some of them, probably, without some other emergency fix. Did Roberts know what he was doing? Almost surely not. If you rewrite a law from the bench, shouldn’t you and your clerks first familiarize yourself with the law enough so that you know what you are doing? Next question!

Although the Medicaid portions of Sebelius used exceedingly unpersuasive reasoning to produce a horrible outcome, however, the states remain free to take the expansion. The fact that Republican-controlled ones generally aren’t tells you everything you need to know about the contemporary Republican Party.

Philanthropy and the Bucket Challenge

[ 99 ] August 27, 2014 |

I got sick of the means after about 10 minutes. But it’s worth considering the possibility that the ends are dubious as well. In particular, I agree with Salmon about the “raising awareness” point. Raising awareness about AIDS was valuable in itself because the disease was largely avoidable through changes in behavior. But being aware of ALS doesn’t actually solve anything.

The Supreme Court v. Accountability

[ 40 ] August 27, 2014 |

Good piece by Erwin Chemerinsky on how judicial doctrines of immunity make it difficult to get effective remedies for abuses of power by local authorities:

Because it is so difficult to sue government entities, most victims’ only recourse is to sue the officers involved. But here, too, the Supreme Court has created often insurmountable obstacles. The court has held that all government officials sued for monetary damages can raise “immunity” as a defense. Police officers and other law enforcement personnel who commit perjury have absolute immunity and cannot be sued for money, even when it results in the imprisonment of an innocent person. A prosecutor who commits misconduct, as in Mr. Thompson’s case, also has absolute immunity to civil suits.

When there is not absolute immunity, police officers are still protected by “qualified immunity” when sued for monetary damages. The Supreme Court, in an opinion by Justice Antonin Scalia in 2011, ruled that a government officer can be held liable only if “every reasonable official” would have known that his conduct was unlawful. For example, the officer who shot Michael Brown can be held liable only if every reasonable officer would have known that the shooting constituted the use of excessive force and was not self-defense.

The Supreme Court has used this doctrine in recent years to deny damages to an eighth-grade girl who was strip-searched by school officials on suspicion that she had prescription-strength ibuprofen. It has also used it to deny damages to a man who, under a material-witness warrant, was held in a maximum-security prison for 16 days and on supervised release for 14 months, even though the government had no intention of using him as a material witness or even probable cause to arrest him. In each instance, the court stressed that the government officer could not be held liable, even though the Constitution had clearly been violated.

Taken together, these rulings have a powerful effect. They mean that the officer who shot Michael Brown and the City of Ferguson will most likely never be held accountable in court. How many more deaths and how many more riots will it take before the Supreme Court changes course?

The Thompson case is a particularly good example of this shell game — people can have their rights clearly and willfully violated by state authorities, but courts can nonetheless invent reasons why nobody can be held accountable. It’s a serious problem.

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