Wednesday, February 28, 2007

Justice Moody Reprise!

I previously called attention to the sparkling career of the generally unknown Justice Moody. Today I am teaching the absolutely classic case of Louisville & Nashville R. Co. v. Mottley to my Federal Courts class. Every lawyer knows this case -- it's the usual cite for the "well-pleaded complaint" rule that governs federal question jurisdiction in federal court. And who wrote the opinion? I'd never noticed before, but it was Justice Moody! Now I feel like he's an old friend.

By the way, none other than Eugene Volokh pointed out to me that my previous post on Justice Moody suggested that he prosecuted the Lizzie Borden case, which was prosecuted in state court, while he was a U.S. Attorney. This shows the danger of relying on Internet sources. I did a little more research and discovered some conflict of authority as to whether Moody was a state or federal prosecutor at the time. The fact that he worked on the Borden case is not dispositive, because he was specially appointed by the Massachusetts Attorney General to do so. But the best I can tell is that he was a state prosecutor, and that the special appointment was necessary because the case wasn't in Moody's normal geographic jurisdiction.

Tuesday, February 27, 2007

Health Care Crisis

In December 2005, I was on a group biking tour of California wine country when I got going too fast on a steep downhill, couldn't quite make it around a sharp left turn, went off the road, and fell over. My last thought as I went down was, "oh, this won't be so bad, I've slowed down considerably." The next thing I remember is being loaded onto a stretcher. I have no memory of anything in between, but I'm told that after my friends revived me (I was out for about a minute), I tried to get back on the bike and had to be restrained. Thank heavens, I was wearing a helmet.

An ambulance took me to the hospital. I looked like something out of a horror movie (photos here), but in the end the only real damage was that I broke one small bone in my left hand, which the doctors taped up. My ribs were pretty sore, but the doctors couldn't quite tell whether any were broken. They thought not, but since there's no treatment for ribs anyway, they didn't bother to make certain. The hospital did a CAT scan, and the doctors said, oh, there might be some bleeding in your brain, we'd better keep you overnight. So I stayed overnight (in a semi-private room), and then the next morning, they did another scan and said, no, everything's fine, that first scan must have been a false positive, go home. They did another scan in there somewhere to check for broken bones. And they gave me some pain medication and cleaned me up generally. And that was it. No surgery or anything like that.

So. Three scans, pain medication, tape for the broken bone in my hand, and not quite 24 hours in the hospital. Go ahead and take your wildest guess how much that would cost.

Most people have guessed something like $3,000 or $5,000 or maybe $10,000 at the most. That was their wildest guess. The bolder guessers have picked $12,000 or $15,000. I think the highest guess was $20,000.

How about $45,000? In your wildest imagination, could you ever guess that that would be the bill? Well, it was. For some reason the bill reflected an "out of state adjustment" for my insurance plan of about -$11,000, which brought the total down to $34,000, but $45,000 is what the hospital thought the services should cost. And bear in mind, that was just the hospital. That's before the doctors and the ambulance.

$45,000! And there was nothing wrong with me! I broke one bone in my left hand! I didn't even need surgery! What if there had been something wrong? What if I'd really had some bleeding in my brain or something else that required surgery? Would the bill have been $245,000?

I am reminded of all this because I have just received the bill for the amount I actually have to pay. My insurance company, perhaps understandably, was a little skeptical about this bill and kicked it back and forth with the hosptial for over a year. It was somewhat unnerving to have a $34,000 bill hanging over me all that time, even though I knew I wouldn't have to pay all of it. Based on what I thought I knew about my insurance plan, I guessed that the insurer would disallow about half the bill (its usual practice) and then I would have to pay 20% of what remained, in other words about $3,400. For some reason that I didn't understand (but am certainly not complaining about), that's not how it worked. The insurer actually forked over a little over $31,000 ($31,112.81 to be exact), and my share came to a bit less than $2,000. I felt like I'd gotten off easy. Of course, with the doctor bills and the ambulance bill it all came to somewhat more -- my total was $3,169.40. My insurer kicked in a total of $32,526.69, making the grand total $35,631.99.

Man! If you've ever wondered whether there's a health care crisis in this country, let me tell you, there is. I understand now what people mean when they say that most people are just one accident or bad illness away from bankruptcy. Imagine if I didn't have insurance! The hospital would be coming after me for $45,000. Combined with the other charges, the total amount the medical system would be seeking from me would be $48,235.35.

For one broken bone! OK, they had to check whether there was anything worse, but still! If this is what one broken bone costs, what does a serious medical problem cost?

How do people without insurance manage? There are almost 50 million of them, you know. I presume most of them don't have the odd $50,000 that they can just throw at a medical bill. I guess they just pray to stay healthy.

I lead a highly privileged existence. I have a good job that provides good health benefits, and I could afford my share of the costs of this accident. But even I was unnerved by the stunning cost of just falling off your damn bike.

Fortunately, I'm just a law professor. It's not my job to fix the health care system, and no one could expect me to know how to do it. But boy, if it is your job, you'd better get cracking. There's a crisis.

My hand still hurts. Always wear your helmet.

Thursday, February 22, 2007


I'll be on travel for a few days, blogging to resume on Tuesday the 27th.

In the meantime, if you're starved for content, you could check out my income tax page. I've always had a strange fascination with tax protestors -- those sometimes naive, sometimes wily, and sometimes crazy people who claim that there's no legal obligation to pay income taxes. There are more of them than you might think. This page, as a small public service, answers the protestor's most basic contention -- that there's just no federal law that requires people to pay income taxes -- by displaying the actual sections of the income tax code that do just that. It also addresses some other zany tax arguments.

Recently, the tax protestor movement got a boost from Hollywood producer Aaron Russo (whose legitimate screen credits include Trading Places and The Rose), who's put together a movie called "America: From Freedom to Fascism" that highlights some tax protestor claims (and also attacks the Federal Reserve). My comments on this bizarre flight of fancy can be found here.

Wednesday, February 21, 2007

Tobacco Verdict Goes Up In Smoke

I'm sure everyone's used that headline already, but who could resist? By a 5-4 vote, the Supreme Court yesterday overturned an $80 million jury verdict for the plaintiff in Philip Morris USA v. Estate of Jesse D. Williams. Williams had died from smoking, and the jury awarded his estate $21,000 in economic damages, $800,000 in noneconomic damages, and $79.5 million in punitive damages. The Court struck down the award on the ground that the Constitution's Due Process Clause prohibits a state from letting a jury impose punitive damages on a defendant to punish the defendant for conduct that harmed people other than the plaintiff. The plaintiff's lawyer in this case encouraged the jury to sock up Philip Morris for damages for all the people it harmed in the state of Oregon. Justice Breyer wrote the Court's opinion; he was joined by Chief Justice Roberts and by Justices Kennedy, Souter and Alito. Dissenting were Justices Stevens, Scalia, Thomas, and Ginsburg.

The unusual judicial line-up reflects the cross-cutting impulses that surround these cases. You might think that conservatives would prefer the rule that favors the big corporations (here, the rule that limits punitive damage awards), but conservatives, particularly Justice Scalia, also tend to prefer the rule that limits the impact of the federal Constitution on the affairs of state governments. Liberals tend to have the opposite impulses. Punitive damage awards entered by a state jury are state government business and federal Due Process limitations interfere with it. Justice Scalia has a long-standing campaign to limit the Due Process Clause and you have to respect him for sticking to principle even though he probably finds the result in these cases distasteful.

This is a tough area. The Supreme Court's decision that the Due Process Clause has anything to do with punitive damage awards at all is quite recent. The Court first hinted that due process might apply only in the late 1980s, and first overturned a punitive damages award on due process grounds only in 1996, in the case of BMW North America v. Gore, 517 U.S. 559.

For Justice Scalia, the whole matter is simple. His theory is that "due process" is the same as "traditional process." The Due Process Clause prohibits a state from taking property without "due process of law," and to Justice Scalia, that simply means that, when a state takes property, it must use the process that states have traditionally used for taking such property. In early American practice, punitive damage awards were traditionally left to the discretion of a jury; therefore, Justice Scalia says, a process that allows juries to award whatever punitive damages they think best must be "due" process.

The problem with this theory is that sometimes tradition becomes inappropriate because of other social changes over time. The majority of the Justices, therefore, believe that a court must examine even traditional practices to ensure their current fairness.

Without definitively taking sides in this debate, I can say that the Court's test in these punitive damages cases is a mess. In the BMW case, the Court held that the Due Process Clause requires that a punitive damages award not be "grossly excessive," which is to be determined by considering (1) the degree of reprehensibility of the defendant's conduct, (2) the ratio of the punitive award to the actual harm inflicted on the plaintiff, and (3) the comparison between the punitive award and other civil or criminal penalties that could be imposed for the defendant's conduct. That's an extremely mushy, imprecise test, particularly when one bears in mind that the Court also said that in applying the "ratio" factor, one must remember that sometimes a large ratio of punitive to actual damages is appropriate precisely because the defendant's reprehensible conduct imposed only a small amount of actual damages!

Boy, if that's the best the Court can do, it might be better to stay out of the matter altogether. Even yesterday's opinion, which seems somewhat better inasmuch as it apparently imposes a hard-edged rule, is quite slippery. It says that the jury cannot use punitive damages to punish a defendant for harming persons other than the plaintiff, but it also says that the jury can consider whether the defendant has harmed persons other than the plaintiff in order to gauge how reprehensible the defendant's conduct was. So all the evidence about the defendant harming others gets to come in, and the jury is told to punish the defendant in accordance with how reprehensible its conduct was, including how many other people it harmed, but the jury isn't to punish the defendant for harming those other people. Ladies and gentlemen of the jury, do you understand your instructions?

Big Day for the Blog

Welcome to the many new readers who checked out this blog yesterday, as a result of publicity it got from other bloggers. Special thanks to my GW colleague Dan Solove of Concurring Opinions and to my old friend Eugene Volokh of the Volokh Conspiracy. I'm very new to the blogosphere and only hope I do half as well as these national experts.

Amazingly enough, I've known Eugene Volokh for over 25 years -- we were at math camp together! I was quite the math nerd in my younger days, and attended a summer program at Hampshire College for high school students bitten by the math bug. Eugene was a whiz kid even then -- he was five or six years younger than the rest of us. Also in attendance that year was Lisa Randall, who went on to become Harvard University's first tenured woman theoretical physicist and who was recently named the 61st-most influential Harvard graduate by the magazine "02138."

I lost track of Eugene for a long time but re-ecountered him after we'd both switched from math to law. Thanks for the link, Eugene.

Tuesday, February 20, 2007

Vanitas vanitatum, omnia vanitas

Today in Administrative Law I'm teaching the classic 1908 Supreme Court case of Londoner v. City and County of Denver. The opinion is written by Justice Moody.

Justice Moody? Who? Have you ever heard of him? I certainly hadn't. His contemporary Justice Oliver Wendell Holmes is still a household name, but, even in the rarefied halls of legal academia, Justice Moody merits only a puzzled shrug.

In fact, a little research shows that Justice William Henry Moody had a sparkling, highly distinguished career. A graduate of Phillips Academy and Harvard University, he was elected city solicitor for Haverhill, Massachusetts in 1888 at the age of 35. Two years later, he became the district attorney (the equivalent of today's U.S. Attorney) for the Eastern District of Massachusetts and gained attention prosecuting the Lizzie Borden case. He was elected to Congress four times, and, in the administration of his friend Teddy Roosevelt, he served not only as Attorney General, but also as Secretary of the Navy, for two years each. Roosevelt appointed him to the Supreme Court in 1906. He served only four years there before health problems forced him to retire, but he wrote dozens of opinions, including an important dissent in the First Employers Liability Cases, in which he argued for an expansive understanding of Congress's power to regulate commerce.

How sad, really, to think that after working hard all your life, exploiting your connections, and constantly clawing your way up the ladder, you could actually make it on to the Supreme Court and still, a century later, be nothing more than meaningless name in the books, unknown even among lawyers and law professors. It's not enough to be a Supreme Court Justice, you have to be an exceptional Supreme Court Justice to achieve lasting fame. Vanitas vanitatum, omnia vanitas.

The Democrats Take on the War

I have previously criticized President Bush's proposed "surge" in troops as being unlikely to accomplish anything. Of course I know I'm a totally untrained armchair general mouthing off on an area on which I have no expertise, but if the current troops aren't accomplishing the mission, it's hard for me to understand how increasing the troops by 18% for a few months is really going to change matters. If the President proposed doubling the troop levels, I might think he was serious, but the proposed surge seems more like an attempt to make headlines than an attempt to accomplish anything real.

But by the same token, what is the point of the Democrats' big push to adopt a nonbinding resolution that declares congressional support for the troops but adds, "Congress disapproves of the decision of President George W. Bush announced on January 10, 2007, to deploy more than 20,000 additional United States combat troops to Iraq"? Has the United States somehow, magically, hit on exactly the right number of troops to be in Iraq right now? Is adding 18% more troops something to be so deplored that we need a congressional resolution about it? What if the President decided to send 1,000 more troops? Or move 1,000 troops from Fallujah to Baghdad? Should Congress disapprove that?

I certainly have my preferred side in political matters, and if you read this blog you'll have no trouble figuring out which side it is, but as a blogger and as a professor I feel some need to call things as I see them, and when either side makes a big, empty gesture it's hard not to point it out. The Democrats' nonbinding resolution seems about as likely to accomplish anything real as the President's surge.

Of course, when the Republicans controlled Congress, they did a brilliant job of holding symbolic votes that had little purpose other than to make Democrats uncomfortable. I can't fault the Democrats too much for doing the same thing. And also, I realize that it's tough for Congress to do much about strategic and tactical issues in a war. It's not well positioned to control things at that level. So the Democrats are in a bit of a tough spot. And the whole Iraq mess is of the President's making, so it's primarily his responsibility to deal with it.

Still, whatever the truly right thing to do is, it's hard for me to believe that it's passing a nonbinding resolution that just says, "whatever you do, Mr. President, we don't want you sending about 18% more troops to Iraq."

Posted 2-18-07 10:55 am

Rape Law

Warning: controversial topic; reader discretion advised.

Sex is a topic that gives courts a lot of trouble. They just seem to go to absurd extremes in both directions.

Time Magazine calls attention to a Maryland case in which a man and a woman started having sex consensually, but the woman then asked the man to stop. The man did stop, but not instantaneously. A jury convicted the man of rape.

On appeal, the court said (hold on to your hats):

[T]he English common law . . . view[ed] the initial “de–flowering” of a woman as the real harm or insult which must be redressed by compensating, in legal contemplation, the injured party - the father or husband. This initial violation of the victim also provided the basis for the criminal proceeding against the offender. But, to be sure, it was the act of penetration that was the essence of the crime of rape; after this initial infringement upon the responsible male’s interest in a woman’s sexual and reproductive functions, any further injury was considered to be less consequential. The damage was done. It was this view that the moment of penetration was the point in time, after which a woman could never be “re-flowered,” that gave rise to the principle that, if a woman consents prior to penetration and withdraws consent following penetration, there is no rape. Maryland adheres to this tenet.

In other words, once a woman consents to sex and the sex act has begun, she can't ask the man to stop—apparently, no matter what. (The opinion has been withdrawn pending reconsideration.)

Now, this is ridiculous. If you invite a guest onto your property, and then ask him to leave, he has to leave. It's a trespass to stay after being asked to leave, even if the person initially entered with consent. Maryland law recognizes this: in a case about reporters, the court observed that "by continuing to stay after being asked to leave, the reporters exceeded the scope of any consent, even if the reporters did not commit a trespass in entering the room." Mitchell v. Baltimore Sun Co., 164 Md.App. 497, 516 (2005). Apparently, Maryland law gives a woman less control over her body than over her property. If a woman starts to feel pain during sex, or realizes that the man is not using a condom, or yes, even just changes her mind, she has to have the legal ability to control access to her body.

On the flip side, however, the facts of the Maryland case seem equally incredible. According to the complainant's own testimony, when she asked the man to stop, he did stop, within about five or so seconds after she asked, and he didn't climax during those five seconds (see page 4 of the opinion).

Five seconds? I find it hard to understand how someone could get prosecuted for, much less convicted of, rape, for taking five seconds to stop sex. That's about enough time for "huh?", "no, stop." Even in the calm atmosphere of one's office, that seems like a sufficient response, and especially so when one factors in the heat of passion.

If the defendant had continued for minutes, as defendants in cases from other states have, the case would be different. It isn't so easy to specify where the exact time limit lies. Some cases would be difficult. But I, at least, would regard five seconds as pretty clearly permissible.

Rape is a very serious crime. The defendant in the Maryland case was sentenced to fifteen years imprisonment (although all but five years were suspended). Saying that someone has committed rape when he takes five seconds to stop a sex act that began consensually, and sending him to prison for fifteen years, or even for five years, is disproportionate.

Well, it's always dangerous to form opinions about criminal cases based on reading media reports (or some blogger's account, for that matter). A closer look at the Maryland opinion reveals that the woman's initial consent to sex was perhaps not so clear (she said yes, but under somewhat coercive circumstances). Maybe that's what the case was really about, although notes from the jury suggest a focus on what happened after the sex began. Read the case yourself and see what you think. But it sure seems as though sex unbalances the judicial mind and drives courts to extremes, in one direction or another.

Posted 2-16-07 11:35 am

Changing Law School

A job candidate today called our attention to a study called "Educating Lawyers: Preparation for the Profession of Law" by the Carnegie Foundation for the Advancement of Teaching. The study observes—and this is hardly a secret—that "legal education typically pays relatively little attention to direct training in professional practice." In this regard, law school is unlike other postgraduate education, particularly medical school. My understanding is that after a year or two of medical school, medical students actually know how to do some real, useful, professional things—say, how to set a broken bone. A second year law student, by contrast, might have no idea how to file an actual complaint or interview a client. The Carnegie study suggests that law schools need an "integrated curriculum" that teaches doctrine, skills, and ethics, and in which all faculty teach both doctrinal and practical courses.

Sounds lovely, doesn't it? People are always encouraging change in law school education. And it's not that the Carnegie study's suggestions are so bad. But I do have two fundamental problems with them.

First of all, I have always disagreed with critics who complain that law school is disconnected from the development of actual legal practice skills. It's not that the critics are substantively incorrect—law school is rather disconnected from actual legal practice skills—but I have never regarded that as a terrible problem. A lawyer has her whole life to learn how to practice. But never again will she have the luxury of taking the time necessary to think about big theoretical and doctrinal issues. A lot of legal practice is a continual series of meeting deadlines. The three years of law school are a magical opportunity to think about issues. Sure, lawyers think about issues too, but rarely with the time and breadth available in law school. I regard that as good, not bad.

A second fundamental issue with the Carnegie report and with other big-picture plans to revamp law school is that the incentives are all wrong. I'm willing to assume that some of the suggestions in the Carnegie report could improve student experiences (although I didn't see much data to support this claim). But it would be a lot of work. And it would be a lot of work related to teaching. And work related to teaching is not rewarded.

That's a fundamental problem with legal education. I happen to teach at a school that takes teaching more seriously than any other school I know of the same or better quality. We have a culture of working hard at teaching and doing it well. I'll match my teaching evaluations against anybody's. And teaching well is intrinsically satisfying; I enjoy doing it. But the career value? Basically, zero. It certainly does nothing for one's reputation in the legal academy generally. People at other schools can't even observe your teaching; they can only read your scholarship. Indeed, some people seem to think that if you're a really good teacher, that's a negative, because it means you must not be spending enough time on scholarship.

So I would say that the Carnegie study's suggestions can't possibly be achieved without a fundamental change in the reward system for legal academics. And it's hard for me to see how that change could occur. Even if an individual school chooses to reward good teaching, it can't affect the external incentives that academia as a whole creates.

Posted 2-13-07 4:20 pm

LAW PROF on the LOOSE: The Early Posts

I started this blog a couple of months ago, and before I learned about Blogger, I maintained it on my own website. I tried transferring the posts over here, but it was too complicated -- particularly for some of them that contained graphics that Blogger can't seem to handle gracefully. So I just copied the last couple of posts (that's why they have those different post dates at the bottom). The earlier posts can be found here.