Question about the alleged health insurance "mandate

Tue Mar 23 15:02:20 PDT 2010

I for one do note believe that doctrine matters only to the law clerks. Indeed, I think it probably determines the outcome of the vast majority of cases. At the same time, I do think that "legal realist" factors have an impact on close cases on highly charged political issues. Legal realism is far from being the whole truth. But it is surely a part of the truth with respect to an important subset of cases.

Ilya Somin
Associate Professor of Law
Editor, Supreme Court Economic Review
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339

----- Original Message -----
From: Lawrence Solum <lsolum at gmail.com>
Date: Tuesday, March 23, 2010 5:58 pm
Subject: Re: RE: RE: RE: Question about the alleged health insurance "mandate

> At the risk of sounding overly idealistic, I must say that I very much
> regret the realist turn in the conversation.  It is a very sad 
> commentary on
> the state of the Court that an academic lawyer would write, 
> "[o]nly the law
> clerks have to worry about the doctrine."  I doubt this is true as a
> descriptive matter, and if it were true, it would suggest we are 
> only a
> short step away from the bottom of the downward spiral of 
> politicization.
> On Tue, Mar 23, 2010 at 3:52 PM, Eric Segall <esegall at gsu.edu> wrote:
> 
> > At the risk of sounding . . . obnoxious . . . I am really glad this
> > conversation has turned from what the doctrine is to what the 
> Justices like
> > and don't like.
> >
> > The realists, the crits, Judge Posner (see his book, How Judges 
> Think), and
> > many, many others would be happy.
> >
> > Only the law clerks have to worry about the doctrine.
> >
> > Eric
> >
> > >>> Ilya Somin <isomin at gmu.edu> 03/23/10 5:46 PM >>>
> > It's possible. But I don't see any evidence suggesting that 
> Roberts likes
> > large business interests as such, as opposed to supporting free 
> markets> (which some conflate with the former). At his 
> confirmation hearings,
> > opponents cited various memos that he wrote back in the 1980s 
> expressing> support for free market views, such as the memo 
> attacking comparable worth
> > on standard free market grounds.
> >
> > I don't know that Roberts will necessarily be influenced by 
> either love of
> > big business or support for free markets. But I suspect that if 
> the two
> > conflict (as they may here), he would be more likely to be 
> influenced by the
> > latter than the former.
> >
> > Ilya Somin
> > Associate Professor of Law
> > Editor, Supreme Court Economic Review
> > George Mason University School of Law
> > 3301 Fairfax Dr.
> > Arlington, VA 22201
> > ph: 703-993-8069
> > fax: 703-993-8202
> > e-mail: isomin at gmu.edu
> > Website: http://mason.gmu.edu/~isomin/
> > SSRN Page: http://ssrn.com/author=333339
> >
> >
> > ----- Original Message -----
> > From: "Ira (Chip) Lupu" <iclupu at law.gwu.edu>
> > Date: Tuesday, March 23, 2010 5:38 pm
> > Subject: RE: RE: RE: Question about the alleged health insurance 
> "mandate>
> > > We could think about this in a very different "legal realist" way.
> > > CJ Roberts tends strongly to do what is good for large business
> > > interests.  The mandate is part of a package that is very good for
> > > health insurance companies, pharmaceutical companies, and hospital
> > > corporations.  I expect they will all file amicus briefs defending
> > > the mandate.  It is wishful (or paranoid) thinking to believe that
> > > Kennedy, Alito, or Roberts will rule against the federal
> > > government on this one (especially 3-4 years now, when the 
> heat on
> > > this will have cooled -- the mandate issues are not ripe now, are
> > > they, with the effective dates so far in the future)?
> > >
> > > Ira C. Lupu
> > > F. Elwood & Eleanor Davis Professor of Law
> > > George Washington University Law School
> > > 2000 H St., NW
> > > Washington, DC 20052
> > > (202)994-7053
> > > My SSRN papers are here:
> > > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
> > >
> > >
> > > ---- Original message ----
> > > >Date: Tue, 23 Mar 2010 16:14:48 -0500
> > > >From: conlawprof-bounces at lists.ucla.edu (on behalf of Sanford
> > > Levinson <SLevinson at law.utexas.edu>)
> > > >Subject: RE: RE: RE: Question about the alleged health insurance
> > > "mandate
> > > >To: Ilya Somin <isomin at gmu.edu>
> > > >Cc: "CONLAWPROF at lists.ucla.edu" <CONLAWPROF at lists.ucla.edu>
> > > >
> > > >But one might think that when two "necessarily controversial"
> > > theories conflict, there ought to be a tilt toward deference to
> > > the Congress.  This, after all, is the basis of "judicial
> > > restraint" theory.  And this would be especially true, one might
> > > think, when a 5-4 decision imposed by five conservative
> > > Republicans would inevitably (and "necessarily") be viewed as
> > > "politics" rather than "law."
> > > >
> > > >sandy
> > > >
> > > >-----Original Message-----
> > > >From: Ilya Somin [mailto:isomin at gmu.edu]
> > > >Sent: Tuesday, March 23, 2010 4:06 PM
> > > >To: Sanford Levinson
> > > >Cc: Mark S Kende; CONLAWPROF at lists.ucla.edu
> > > >Subject: Re: RE: RE: Question about the alleged health insurance
> > > "mandate>
> > > >I make the legal realist point not to endorse legal realism 
> as a
> > > normative matter, but merely to suggest a path by which this
> > > lawsuit might succeed.
> > > >
> > > > I'm not a "conservative" and Kennedy and Scalia have very
> > > different philosophies from mine on both politics and law (as well
> > > as from each other).
> > > >
> > > >As Sandy knows, my own view is that Raich was wrong and 
> should be
> > > overturned. At the same time, I think it's doctrinally 
> possible to
> > > strike down the health care mandate without overruling it. If the
> > > Court does so, I would prefer that they do it for the right
> > > motives. But I prefer a correct decision adopted for bad motives
> > > to a wrong one adopted for good ones.
> > > >
> > > >Finally, I'm not bothered by the fact that a decision to strike
> > > down the mandate would rest on a "necessarily controversial"
> > > theory of the Constitution. The same could be said of a decision
> > > to uphold it.
> > > >
> > > >Ilya Somin
> > > >Associate Professor of Law
> > > >Editor, Supreme Court Economic Review
> > > >George Mason University School of Law
> > > >3301 Fairfax Dr.
> > > >Arlington, VA 22201
> > > >ph: 703-993-8069
> > > >fax: 703-993-8202
> > > >e-mail: isomin at gmu.edu
> > > >Website: http://mason.gmu.edu/~isomin/
> > > >SSRN Page: http://ssrn.com/author=333339
> > > >
> > > >
> > > >----- Original Message -----
> > > >From: Sanford Levinson <SLevinson at law.utexas.edu>
> > > >Date: Tuesday, March 23, 2010 4:59 pm
> > > >Subject: RE: RE: Question about the alleged health insurance 
> "mandate> > >
> > > >> So once one Ilya offers his "legal realist" caveat, the 
> game is
> > > >> also over, i.e., the appeal is that one's fellow conservative
> > > >> Republicans will join in political opposition to the health
> > > bill
> > > >> by adopting a necessarily controversial theory of the
> > > Constitution
> > > >> to achieve that happy result.
> > > >>
> > > >> sandy
> > > >>
> > > >> -----Original Message-----
> > > >> From: Ilya Somin [mailto:isomin at gmu.edu]
> > > >> Sent: Tuesday, March 23, 2010 3:58 PM
> > > >> To: Sanford Levinson
> > > >> Cc: Mark S Kende; CONLAWPROF at lists.ucla.edu
> > > >> Subject: Re: RE: Question about the alleged health insurance
> > > "mandate>>
> > > >> I would make 2 points about the doctrine:
> > > >>
> > > >> 1. Broad as it is, Raich still covers "economic activity," not
> > > >> inactivity. Even if doing all sorts of things is "economic
> > > >> activity," it doesn't follow that not doing them is. Raich is
> > > >> consistent with the latter conclusion, but it doesn't 
> require it.
> > > >>
> > > >>
> > > >> 2. Even if the current language in Raich does stretch that far,
> > > it
> > > >> could be pared back by the Court without overruling it. Lower
> > > >> courts don't follow that language consistently even now 
> (e.g. -
> > > >> the 4th Circuit in Comstock).
> > > >>
> > > >> From a legal realist point of view, I think that the 2 swing
> > > >> justices in Raich (Kennedy and Scalia) ruled the way they did
> > > at
> > > >> least in part out of fear that doing otherwise would undercut
> > > the
> > > >> War on Drugs, a policy they strongly support. By contrast, I
> > > doubt
> > > >> they have similar warm feelings towards the Obama health care
> > > >> plan.
> > > >>
> > > >> Ilya Somin
> > > >> Associate Professor of Law
> > > >> Editor, Supreme Court Economic Review
> > > >> George Mason University School of Law
> > > >> 3301 Fairfax Dr.
> > > >> Arlington, VA 22201
> > > >> ph: 703-993-8069
> > > >> fax: 703-993-8202
> > > >> e-mail: isomin at gmu.edu
> > > >> Website: http://mason.gmu.edu/~isomin/
> > > >> SSRN Page: http://ssrn.com/author=333339
> > > >>
> > > >>
> > > >> ----- Original Message -----
> > > >> From: Sanford Levinson <SLevinson at law.utexas.edu>
> > > >> Date: Tuesday, March 23, 2010 4:48 pm
> > > >> Subject: RE: Question about the alleged health insurance 
> "mandate> > >>
> > > >> > I have no doubt that Ilya (and Randy) would love to overrule
> > > >> > Raich, but doesn't that give the argument away, i.e., that
> > > >> current
> > > >> > doctrine, joined in by Scalia, amply covers the bill?
> > > >> >
> > > >> > -----Original Message-----
> > > >> > From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-
> > > >> > bounces at lists.ucla.edu] On Behalf Of Ilya Somin
> > > >> > Sent: Tuesday, March 23, 2010 3:44 PM
> > > >> > To: Mark S Kende
> > > >> > Cc: CONLAWPROF at lists.ucla.edu
> > > >> > Subject: Re: Question about the alleged health insurance 
> "mandate> > >> >
> > > >> > Fair enough. I do think that Raich's language is
> > > extraordinarily
> > > >> > broad and could be interpreted to cover this case. But I
> > > don't
> > > >> > think that such an interpretation is compelled by the outcome
> > > of
> > > >> > that decision, and in any event I believe that the Court
> > > would
> > > >> do
> > > >> > well to pare back Raich's more extreme language, if not
> > > overrule
> > > >> > it entirely.
> > > >> >
> > > >> > Ilya Somin
> > > >> > Associate Professor of Law
> > > >> > Editor, Supreme Court Economic Review
> > > >> > George Mason University School of Law
> > > >> > 3301 Fairfax Dr.
> > > >> > Arlington, VA 22201
> > > >> > ph: 703-993-8069
> > > >> > fax: 703-993-8202
> > > >> > e-mail: isomin at gmu.edu
> > > >> > Website: http://mason.gmu.edu/~isomin/
> > > >> > SSRN Page: http://ssrn.com/author=333339
> > > >> >
> > > >>
> > > >_______________________________________________
> > > >To post, send message to Conlawprof at lists.ucla.edu
> > > >To subscribe, unsubscribe, change options, or get password, see
> > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> > > >
> > > >Please note that messages sent to this large list cannot be
> > > viewed as private.  Anyone can subscribe to the list and read
> > > messages that are posted; people can read the Web archives; and
> > > list members can (rightly or wrongly) forward the messages to 
> others.> >
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu
> > To subscribe, unsubscribe, change options, or get password, see
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >
> > Please note that messages sent to this large list cannot be 
> viewed as
> > private.  Anyone can subscribe to the list and read messages 
> that are
> > posted; people can read the Web archives; and list members can 
> (rightly or
> > wrongly) forward the messages to others.
> >
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu
> > To subscribe, unsubscribe, change options, or get password, see
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >
> > Please note that messages sent to this large list cannot be 
> viewed as
> > private.  Anyone can subscribe to the list and read messages 
> that are
> > posted; people can read the Web archives; and list members can 
> (rightly or
> > wrongly) forward the messages to others.
> >
> 
> 
> 
> -- 
> Lawrence Solum
> John E. Cribbet Professor of Law, & Professor of Philosophy
> Co-Director, Program in Law and Philosophy
> Co-Director, Program in Constitutional Theory, History and Law
> University of Illinois College of Law
> 504 East Pennsylvania Avenue
> Champaign, IL  61820-6909
> lsolum at gmail.com or lsolum at illinois.edu
> 
> --
> 
> http://lsolum.typepad.com/legaltheory/
> (blog)
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=327316
> (ssrn page)
> http://home.law.uiuc.edu/~lsolum/
> (personal home page)
> http://www.law.uiuc.edu/faculty/DirectoryResult.asp?Name=Solum,+Lawrence
> (homepage at the University of Illinois College of Law)
> http://www.phil.uiuc.edu/faculty/list/Solum/index.htm
> (homepage at the University of Illinois Department of Philosophy)
> http://www.pbase.com/lsolum/root
> (photography galleries)
> 
> Assistant: Amy Fitzgerald
> (217) 333-9115 / amfitzge at law.uiuc.edu
> 