The health bill is a big deal. No doubt about it. Sure, I think it’s misguided and unfunded. But it sets up a huge new government program that, it’s easy to say fairly, is one giant leap towards a single-payer health care system in the United States. That’s a big deal.¹

Anyway, to this law student trying to write a blog, the bigger f—ing deal is the pending constitutional challenge to the law. Most of the media coverage is worthless, but I AM really f—ing grateful for some pretty f—ing serious dialogue about what a constitutional challenge looks like and what the f—ing issues are.  This one in particular is well worth the lengthy read.

I’ll poorly paraphrase the main arguments, which really focus on a discreet issue: does the Constitution anywhere authorize an individual mandate to purchase health insurance through either the commerce, taxation, or spending powers?

Challengers argue that Congress lacks the authority under the Constitution to tax people for not engaging in a commercial transaction (purchasing insurance). In other words, you can’t regulate person’s “inactivity.”  The Commerce Clause does not warrant such intrusion because of not buying something is not commerce and a person’s decision to not buy health insurance is not vital to the overarching regulation.  The taxing power does not support such an action because it’s an excise tax on existing, rather than a tax on income or consumption. This makes the tax (although revenue raising) a purely regulatory or punitive measure, which courts may view as unconstitutional. And the spending power does not support it because the tax itself isn’t really spending.

The supporter of the bill (and opponent of the constitutional challenge), says, in essence, “I call bullocks on all that.” At its heart the mandate is simply an exercise of Congress’ authority to tax and spend for the general welfare. This authority is broad and, basically, unlimited. The tax in question here raises revenue and is part of a broader regulatory scheme, much like most, if not all, tax provisions. Plus, the health care bill is well within Congress’ power to set economic policy, which the courts have avoided invalidating since Lochner. Congress has broad, discretionary authority to enact economic regulations that is based on decades of both Supreme Court jurisprudence and lawmaking that covers areas as diverse as education, gun policy, crime, estate taxes, and environmental protections. Where there are overarching areas of public concern that transcend state boundaries, the federal government is the only body qualified or authorized to regulate. Plus to suggest that not participating in a national health plan is not an economic decision is as irrelevant as it is dumb.

Perhaps it shouldn’t be though. Some believe this challenge may place us on constitutional ground unexplored since Lochner.

If defenders of the bill in this constitutional dialogue are correct, the Constitution really places no structural constraints on Congress to enact any regulation or mandate. The only constraints which exist are those which protect fundamental rights and those are protected only if Congressional action fails to withstand the strict scrutiny of the courts. A citizen’s only recourse is through redressing the government with her concerns or the electoral process.

Opponents of the bill argue that the Constitution is meaningless without the structural constraints placed on the federal government. Logically, you might add to this argument that federalism is dead as any sort of mechanism for defining spheres of power within our system.

The Constitution is as much a structural document as one that defines “fundamental rights.”  The concepts are inextricably interrelated. To the extent structural constraints are eroded, our fundamental rights are imperiled as the federal legislature enacts economic legislation that courts refuse to second-guess. Yet, absent any meaningful constraints on legislative power, the courts are the sole arbiter of rights. I like judges and courts and lawyers, but not to tell me what to do. Asked in the form of a question: Can you have a “scheme of ordered liberty” without any real constraints, or order, imposed on government authorities other than periodic elections?

The concentration of power and authority in Washington (and, incidentally, in large corporations) is a direct threat to individual liberty. While such authority is often exercised for the good of people, it is far more difficult to hold accountable those who wield it when there are no discernible bounds to it.

I suspect the challenge will come to naught, colliding as it does with a host of precedents that grant Congress nearly unlimited authority to regulate even non-commercial, local activity through the Commerce Clause, ala Wickard. Since overturning Lochner, courts grant substantial deference to Congress when it comes to economic regulation.

But perhaps they shouldn’t.

Let’s return to Lochner. A court could defend a position that while there are no structural, constitutional constraints to enacting the health reform bill, the court does reserve the right to ensure that such regulations do not imperil individual liberties. Even if Congress has authority under the Constitution to enact an individual mandate to purchase health insurance with a fine for non-compliance, if such law places too heavy a burden on the individual right to contract or the right “to be let alone” by the government (to use the “right to privacy” reasoning), then courts can overturn that regulation. That would be the ONLY way to check congressional power, whichever party wielded it.

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¹ On a related note rant, we have a bunch of chicken-s*** leaders who refuse to level with us about our real choices are about taxes and spending. The CBO estimates for this bill are a joke; the CBO itself estimates their accuracy at “50/50.” Makes you wonder why the President can sound so certain about the bill’s budget impact. Perhaps that’s because, as a people (to the extent one can define that term), we refuse to believe trade offs will one day be necessary. Hands off my Medicare and unemployment, you socialist bastard! So long as we get ours and those taxes come after we’re dead, right? I guess the election will tell what the “people” think about this.

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Some background, mercantile. The MacLaren Company makes baby things, most notably a line of exceedingly popular strollers.  These run the gamut from those available at mass market retailers to models branded for both Kate Spade and Juicy Couture. These can be purchased to the extent that you wish to have luxury goods covered in biological excretions. 

An update, governmental. Last Monday, the US Consumer Product Safety Commission (CPSC) announced a recall of one million MacLaren Strollers made within the last ten years.  These strollers are commonly referred to as “umbrella strollers” for their folding mechanism and small profile when closed, making them ubiquitous in urban areas. The convenience is offset however, as they have a nasty tendency to lop off little tykes fingers if caught in the hinge (12 reported cases to date).  MacLaren evidently knew this since 2004 but failed to report it to the CPSC.  This delay was compounded by the company’s website crashing as millions of owner’s sought the protective covers the company was giving away.  The damage – to my mind – seems limitless.  As Pete Blackshaw, a consultant from Nielsen made in an article in Time “Anything relative to child safety tends to be off-the-charts viral.” indeed. 

All this led me to chatting – at some length – with a fellow father at Nordstrom’s while both of our wives were trying on jeans, about possible torts related to the stroller his 9 month old was napping in. He had already ordered the covers, and had modified the position of the seat to prevent any chance of interaction between child and fingers. Both of us agreed that if MacLaren knew that the product had a risk of “traumatic amputation” and did nothing to modify the product or alert people to the risk, the end might be nigh.

And with that, back to the study of Chapter 11, which seems oddly appropriate for the good people at MacLaren.

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What is a far more interesting to look at is how New Jersey got into the pickle they are in. Because that mess, like the millstone that is currently pulling California into the Pacific, can be laid squarely at the feet of the voters. The provocative question that both cases engender is this: can you have too much Democracy?

If you’re ever met anyone from New Jersey, you know the following to be true: wherever the conversation starts, it will eventually end with them complaining about their property taxes. As Matt Bai put in a recent article about the gubernatorial election 

“New Jersey could raise up its own army and invade Pennsylvania, and all the state’s voters would want to talk about, still, would be their property taxes. No other issue so dominates the political landscape of a state. In a recent Quinnipiac poll, 41 percent of voters said taxes were the main issue in this year’s gubernatorial contest, compared with 17 percent who cited economic factors and just 4 percent who registered concern about the state’s rampant corruption.”

Given that the FBI  just netted 44 defendants, including the Mayor of Hoboken and 15 Rabbi’s in a massive corruption and bribery scandal, that’s saying something.

The property taxes are high, no doubt. They state has an elaborate patchwork that make New Jersey’s rate the highest in the nation, 6.75% as a percentage of income [via MSN Money]. This begs the question, what do you get for all that dough? As Bai’s article points out, you get more government than you could ever possible want.  To wit:

“Basically, New Jersey is sliced into so many local fiefs — 21 counties, 566 municipalities, more than 600 school districts — that it’s just about falling apart. Some municipalities are merely dots on the map, maybe a mile wide, surrounded on all sides by a larger township. Some school districts are so small that they actually have no schools. (They pay larger townships to teach their kids.) And yet most little hamlets retain their own officeholders and paramedic squads, just as each tiny school district has its own administrator and school board.”

Not supprisingly, this massive system of overlapping bureaucracy costs oodles of property taxes. The logical conclusion then is that these municipalities need to consolidate, cut out the redundancy, and reduce cost (Bai makes the same point in the article). A quick Google search on “New Jersey Municipal Consolidation” brings up over a million results, suggesting that this is a hot topic, to the extent that anything involving the words “municipal consolidation” can be described as a hot topic. It even has its own (albiet lightly used) Facebook page.

To expedite this process, the State of New Jersey has streamlined the rules for municipal consolidation, and has made state funds available to study the feasibility of consolidation, and to pay “transitional costs” associated with consolidation, which I’m assuming are costs related to the municipal employees made redundant by such changes.

As far as I can tell, this has a led to a grand total of one consolidation being on the ballot this November, between Wantage Township and Sussex Borough.  Even after a consolidation study costing $46,000 (paid for by the State with revenue gathered, one imagines, from property taxes), and a State guarantee of $750,000 to cover a variety of costs associated with the transition, the outcome is still in doubt. A vocal part of Wantage Township is concerned with the cost of upgrading the smaller Sussex Borough’s aging sewer infrastructure. Talk about a pissing contest (Thank you! I’ll be here all week!)

Did I mention what the total population of the potentially consolidated Wantage/Sussex Metropolitan area is? 12,532 according the last census.  As if that doesn’t make you feel like you’ve gone through the looking glass, check out this quote from Consolidation Comission Vice Chairman Sal Lagattuta

“Our towns have no police force. We have no paid fire department. We already share a court system and a tax assessor and other services. Our school system is regionalized. So there are a lot of things that would make consolidation here easier than in most places.”

Yes, like any actual impediment to consolidation.

But given the angst that you see in some of the letters and editorials posted on the subject, you would think we were talking about the re-unification of Germany, and not 13,000 souls in the northeast corner of New Jersey. In the same article, Lagattuta stated his belief that the entire election will hinge on

“whether the people in Sussex Borough feel that they would be giving up their small-town identity and be swallowed up by the larger town surrounding them.”

Not being from New Jersey, I lack any personal attachment to being from one borough versus another. So I can look at this and see how absurd it is that people are paying through the nose for the privilege of maintaining this individual identity, which doesn’t seem to amount to anything. I can also only imagine how much it makes people who are from these places pucker to think of surrendering what they perceive as “their” identity.

One lesson you can take from New Jersey is this: everyone believes that all government is wasteful, unless it is government that directly affects them, and then it’s vital, sacrosanct, and can never, ever be changed. Even if it means that they are paying property taxes out the wazoo. Another lesson you is that when residents of the Garden State blame “government,” that’s really code for being angry with themselves for being unwilling or unable to make the hard choices required to ameliorate their situation.

So has a surfeit of democracy in New Jersey cut the place into so many pieces it barley hangs together as a state? Would less democracy be better for the citizenry as a whole?

Next up: Money for Nothing and Schools for Free: Lessons from the Golden State

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When I become a lawyer I want to be one both sought after for my skill and appreciated for the value I add (both in terms of short-term solutions to legal challenges and the long-term perspective I bring to the legal advice I offer and the rates I bill). Perhaps that’s too naive. But that’s the kind of lawyer I want to be. Do I want to make myself and my firm a lot of money? Sure. But there are some broader questions I think the goal of making a good living tends to obscure. With that said…

Does our country have too many lawyers? At least one Supreme Court Justice thinks so. Justice Scalia, according to the WSJ Law Blog (which posted this yesterday and then took it down only to post it again today), will have this to say in a C-SPAN interview to air next week (emphasis added):

Well, you know, two chiefs ago, Chief Justice Burger, used to complain about the low quality of counsel. I used to have just the opposite reaction. I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.

I mean there’d be a, you know, a defense or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?

I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.

And they appear here in the Court, I mean, even the ones who will only argue here once and will never come again. I’m usually impressed with how good they are. Sometimes you get one who’s not so good. But, no, by and large I don’t have any complaint about the quality of counsel, except maybe we’re wasting some of our best minds.

What’s his point? We need an adequate supply of bright people going into professions and industries that produce stuff. That’s not happening right now because they become lawyers. Obviously the entire premise of the statement and argument are open for debate. For our purposes, I’ll accept it as generally true for the sake of argument.

What does that mean for lawyers? Are there broader economic concerns to consider? I think these are really important questions for lawyers (and budding lawyers) to grapple with as we consider the kinds of lawyers we want to be and what things the law should value.

So, I have this ongoing discussion with a friend. We’ll call him Computer Dork (or “CD” to his friends) and he agrees with Scalia. He thinks too many of our brightest students go into finance and law rather than into professions that create things (like: software development, engineering, and sciences). Consequently, I suppress evidence that supports his point by hiding links to stories that discuss how heavily law schools (and firms) and investment banks recruit from this nation’s most prestigious engineering, science, and computer science programs like Cal Tech and MIT because, don’t tell him, I think there’s something to his argument. But if I tell CD that, he renews his motion that I shouldn’t be a lawyer and that law school is for tools. But I’m training to be a lawyer so I fight with him (also because part of me really does disagree with him). This, naturally, matures devolves into a well-reasoned debate name-calling match over which career path – software developer or lawyer – is actually dorkier, as if it was ever in question (how can a computer dork be cooler than a lawyer anyway?)

But I digress. The argument that there are far too many lawyers, in a nutshell, goes something like this…

Too many people become lawyers because they think being a lawyer is their ticket to riches – a stable job that pays (usually very) well doing respectable work. Lawyers are visible, cool, and make a lot of money. Basically, our society values lawyers more, despite what your teacher tells you about how important math class is. This creates a shortage of smart people in professions tasked to create new things because no one has any idea what engineers do only that (a) they’re probably nerds and (b) do boring, impractical work that has little application to everyday life. On the other hand, lawyers produce tangible results (convictions of criminals, jury verdicts, favorable contract terms, large settlements, etc). People understand that you need a lawyer to figure out all the legal stuff you face. As another friend pointed out to me this morning, there are dozens of lawyers shows on TV but you don’t see many shows about a team of engineers who’s making new products (see “dorkier” discussion above). The result is that people choose law as a default since it is so visible as an ideal, lucrative career, rather than considering what they truly want to do.

Setting aside the absurd aspect (the assumption that smart people are incapable of choosing their own career path) of this last statement for a moment, consider the West Wing episode called “Dead Irish Writers” (Computer Dork’s favorite). In it, Sam Seaborn (the DukeLaw-trained character played by Rob Lowe) is fighting for some funding for a former professor’s superconductor research. The big question is whether basic research, which may or may not have any end application, has any value whatsoever. Without being able to point to tangible benefits, it’s difficult to convince lawmakers to fund this type of research. The implication is that it’s hard to convince bright people (like Sam in this storyline) to go into this type of work since they have to fight (beg) for funding, fight (plead) for attention, and fight (implore) to convince people that creation and discovery matter.

While a TV drama, I think the problem portrayed is a real one that truly discourages people from becoming researchers and the like and devalues creation and discovery. The consequence is difficulty competing globally. In order to innovate you need to create new things that change the status quo. For this, you presumably need (a reasonable percentage of) your most brilliant minds going into the professions that create new stuff or research unknown questions. That often involves assuming the risk that your new inventions and discoveries will allow you to put food on the table. We don’t have enough of that right now because, for one, we don’t value it very highly and the risk of not making a good living (and not being able to pay your student loan debts) is simply too great. People who take this shortage seriously call for greater investments in math and science. Companies whose bottom lines are at risk demand expansion of the H-1B visa program to allow more highly-skilled foreign workers into the country on work permits to do any number of jobs in these creative areas. (Though one wonders if companies want this just to create a more competitive market for these jobs or whether there’s a legitimate shortage of qualified American workers for these positions.)

Basically, we need smart people who know how to create stuff and can design the products of the future, be they computers, software, power grids, or bridges. Except that our nation (or the market or both) doesn’t value these professions and, instead, these people go where the money is. Arguably this is a market failure. If we really need these people in these professions, this should result in higher demand which would lead to higher pay which would lead to more people rejecting law school and going into engineering.  But unless I’m mistaken lawyers continue to make more than engineers. So does this mean the entire premise is mistaken?

I don’t think so necessarily. I guess the question is whether a glut of lawyers (if such exists) exacerbates a de-emphasis on research, manufacturing and innovation. Too many lawyers, the argument goes, creates more laws and regulations. This creates more litigation that weighs heavily on regulated industries. This creates a demand for legal services that is created by lawyers’ work in the first place and creates an artificial value (if that’s a real economic concept) for lawyers’ services. This results in a higher value placed on legal services than on creating stuff. It’s a vicious cycle that directs a large amount of resources to lawyers without considering the effect on the economy.

If that’s the case, we are at a distinct disadvantage to emerging economies like China and India that are producing engineers of all kinds by the boatload every year and are paying top dollar (from government and private sources) for new inventions and creation of new companies. They attract foreign investment and make substantial public investments in people who create stuff.

Don’t get me wrong. I think the United States is still the home of innovation. But projecting out 30-40 years, are we positioned to stay there? Or is there a drag created on innovators by the actions of lawyers at the various levels of law creation, enforcement and litigation?

To me, this is an important–central, really–question for the law. And it has two parts.

First, is it possible to redefine what we value as a society so that the engineer who designs stuff is just as valued as the lawyer in the eyes of those choosing what to study?

I can hear my father’s answer to this question, dripping with equally appropriate doses of wisdom and sarcasm: “So. What are you going to do, forbid smart people from becoming lawyers as if you know better than they do? That’s ridiculous.” But maybe students need to see more examples of how their talent for and interest in science can translate into lucrative, interesting, challenging careers that allow them to be creative and bring new ideas for products and solutions to reality. This is also a question about how we educate and what we emphasize in schools.

Second, what role should the law play in protecting industries and companies that innovate, what many firms are calling “emerging companies”?

On a personal level, this goes to what kind of lawyer you want to be, right? It strikes me that if there is a serious challenge to American competitiveness posed by litigation and regulation in this country (exacerbated by too many bright people becoming lawyers and investment bankers), then a lawyer’s understanding of his or her role as a public servant (to a certain extent) should be broad enough to consider how his or her actions (legal counseling, litigation, billing, regulation, law-making) affects these folks. This is a bit broader than being a zealous advocate for your client’s interests and respects the client’s interest in seeing the law changed, not just complied with.

But what do you think? Is there any sense to this discussion whatsoever? Do you consider these questions at all? Or is this all just bunk – dumb theoretical blog-pondering that has little relevance to, well, anything really? If you think it’s a relevant and interesting question, who do you go to for insight on the issues involved?

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• Number of NFL Players Arrested in 2008: 42
• Team with the highest # of Arrests:  Bengals  (10, but to be fair Chris Henry got pinched twice.)
• Most Common Crime: DUI/Drunken Driving (includes Eric Steinbach of the Bengals for Boating under the Influence. Seriously)
• Runner up: Assault
• Strangest:  Tie (subjective)  — possession for sale of a controlled substance (codeine-based cough syrup) Terrence Kiel,  Chargers and Providing alcohol to three underaged females Chris Henry. Again.
• Most Individual Arrests – Chris Henry (3)
• Runner Up: Tie – “Pacman” Jones, Terry “Tank” Johnson (2 each)

(h/t to the Washington Post for compiling the stats)

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As I read for this week (the cases deal with court applications of Chevron deference to agency statutory interpretation), I wonder various approaches of judicial statutory interpretation have any relative benefit in terms of incenting Congress to write better, clearer, more well-reasoned laws in the first place.

As far as I can tell there are two approaches on the Court right now.

The majority approach is expressed most commonly by Justice Stevens, who wrote Chevron. There are basically two levels of deference to agency action for Stevens. Chevron deference applies to formal rulemaking and adjudicating by agencies where the statutory terms at issue are ambiguous. Agency action receives deference so long as it is reasonably. But informal processes – letters on tariffs from the Customs Service – receive Skidmore deference, meaning the agency view is a factor in determining reasonableness of agency action, but is not necessarily authoritative.

Then you have Justice Scalia who generally argues that delegations of interpretive and rulemaking power to agencies is rather broad and should generally be given Chevron deference in all cases of agency interpretation, whether formal rulemaking or informal guidance. Put another way, so long as the action falls within the legislative grant of power, it deserves Chevron deference. “Skidmore is an anachronism.” Of course, this is only if the statutory terms are ambiguous. Where Scalia perceives Congress to have spoken clearly, judicial review of agency action is much stricter.

The Stevens approach gives the Court a broader role in reviewing agency actions. The Scalia approach looks primarily at the statute and defers where the statute is perceived to be clear. (Obviously, both views are infused with political considerations and biases.)

I haven’t decided which is “better” in part because the two approaches aren’t necessarily as clear-cut as this post suggests. I like the Stevens approach because it provides an increased level of oversight for informal rulemaking that happens at agencies. (The irony here is not lost on me. I realize the inconsistency in wanting greater review of unelected bureaucrats by unelected juges.) I like the Scalia approach because it gives the court a smaller role in review of political branch activities. In part this allows complex regulatory schemes to include formal and informal rulemaking with little fear of judicial tampering.

The Scalia approach worries me primarily in the way that it creates a gap that Congress must step up to fill. Congress must exercise more oversight and where, the Scalia/texualist approach results in decisions like the one I wrote about the other week, where the literal meaning of terms precludes an agency from preventing fraud, Congress must step in to write better law and provide clearer guidance.

I’m not convinced Congress is capable of doing that right now. Yes, yes I realize this is a democracy. Voice of the people. All those truisms. But practically can Congress pass good, clear laws that deal with pressing issues facing our nation.

My question is whether the Scalia approach, if it were adopted in the majority of cases, would create an incentive for Congress to write laws that were clearer and write them more regularly. If so, is that a good thing? The flip side of that question is whether the Stevens approach creates a disincentive for Congress to use language more precisely and seek to update statutes more regularly because they can simply rely on courts to clean up after them.

To me, this question gets to the heart of the balance of powers in our constitutional system. On the one hand lawmaking is a process of argument and compromise, resulting in ambiguous terms and rules. However, this process, on the other hand, seems to allow Congress to avoid making hard choices about tough issues. Of course, that’s my underlying assumption of this entire post – that asking Congress to write good law that tackles hard challenges is asking too much.

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Anyway, after they’ve secured this rather sad looking hippie, and pulled the bags of product out of his car, they spent time photographing the scene, calling for a radio car to haul him off to lock up, having the Honda towed away, I started to think about what this cost. I did some quick math (I’ll give it to you if you want it), and I figure they were using about $120K in equipment. Assuming they do 20 of these a year, that’s $6,000 a pop. That doesn’t even count the cost of prosecution (and defense if this guy was indigent), and incarceration if he’s convicted.

It could be the case that they got Tony Montana with this operation, but I’m going to guess not. Frankly, it looked to me like they could have lured him into the back a paddy wagon with a bag of Funyuns, but I certainly respect the need and desire of the police to go home safe at night.

My question is this: is this the best way to be spending our crime fighting dollars? Is it reasonable to ask what the return on investment for such operations? They took whatever he had, but does that reduce crime, and if so by what percentage? Is the fiscal cost/benefit of criminal justice something we should be examining during our current fiscal pickle?

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