Understanding the ACA Arguments
rs at robertsheridan.com
Thu Mar 29 20:19:50 PDT 2012
Someone asked over a drink which way I thought the Court would go on this.
Not wanting to feel a total idiot by declaring total ignorance, my true state, the Irish bookies notwithstanding, I replied that my best guess was that the initial result would be 4:4, pro & con, with AKM being the tipweight in favor of upholding the whole shebang.
Having Prof. Levinson's excoriating critique here of this justice in mind for citing the irrelevant tort doctrine that the law imposes no duty to rescue a stranger, I figured that Justice Cardozo's observation that "Danger invites rescue" will be cited to him soon enough by some clerk who recalls his tort class and that Justice Kennedy will soon enough come around.
He seems to prefer being on the right side of major, positive, currents of history. So I guessed that he'd flip or otherwise come around to the notion that if enough people feel that the nation needs a greater presence in the field of healthcare to help protect the nation, then he'll help make it happen.
And then ordered we another round, which seemed the only intelligent thing to do...
On Mar 29, 2012, at 7:51 PM, Mae Kuykendall wrote:
> I don't have time to do research on the history of broccoli in legal discourse, either, but I had never heard about it in legal or political theory before. Its most prominent previous mention was that George H.W.Bush doesn't like it. He said: "I do not like broccoli. And I haven't liked it since I was a little kid and my mother made me eat it. And I'm President of the United States and I'm not going to eat any more broccoli."
> I concede that President Bush 41 does not have legal training. Nonetheless, he may deserve credit for the broccoli trope in legal discourse at the highest level.
> >>> Richard Dougherty <doughr at udallas.edu> 3/29/2012 10:41 PM >>>
> Actually, I think that it worked the other way around; the Tea Party picked up the legal debate (or at least political debate) that had already focused on it. Don't have time to look it up, though... (So, I'm not off the hook, but I'll do it later).
> Richard Dougherty
> On Thu, Mar 29, 2012 at 9:01 PM, Mae Kuykendall <mae.kuykendall at law.msu.edu> wrote:
> Quoting Charles Fried: "I was appalled to see that at least a couple of them were repeating the most tendentious of the Tea Party type arguments,” Fried said. “I even heard about broccoli. The whole broccoli argument is beneath contempt. To hear it come from the bench was depressing.”
> Apparently Scalia, a judge often admired for a sharp intellect, virtually quoted arguments concocted and purveyed by Rush Limbaugh.
> I share a sense of depression with my former contracts professor. mk
> >>> Daniel Hoffman <guayiya at bellsouth.net> 3/29/2012 6:27 PM >>>
> Some say it's revolutionary to let government order us to do something.
> How about the "Reduce Speed" signs in the interstate?
> Those don't even require a purchase, so how do they regulate commerce?
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