Average Debt of Private Law School Grads Is $125K; It's Highest at These Five Schools - News - ABA Journal

Average Debt of Private Law School Grads Is $125K; It's Highest at These Five Schools - News - ABA Journal: "The average education debt for law grads at private schools last year was nearly $125,000, while the average for grads of public law schools was more than $75,700, according to new figures released by the ABA.

The debt load increased 17.6 percent from the prior year for private law grads and 10 percent for public law grads, the Daily Journal (sub req.) reports. In 2001-02, the average debt was only about $46,500 for public law school grads and about $70,000 for private law school grads."

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`Obamacare' - Congress's power is plain - Gillian Metzger - Balkinization

Columbia Law School's Vice Dean Gillian Metzger has a lucid analysis of the individual mandate's constitutionality. - GWC
Balkinization: 
by Gillian Metzger

"Equally striking, and too easy to lose sight of, is the key point on which all of the parties agree and the Justices appeared to accept: Congress can require anyone who is seeking healthcare services, and is therefore active in the healthcare market, to obtain insurance as the mechanism to finance those healthcare purchases---or pay an annual tax penalty. As Justice Kagan particularly noted, the issue here is simply one of timing. Those who oppose the mandate’s constitutionality say that Congress can only require purchase when an individual actually seeks healthcare, whereas those who support it contend that Congress can require purchase now because requiring purchase when someone shows up sick is infeasible. Critically, however, no one denies that Congress can require anyone actively seeking healthcare to buy insurance.
If so, the facial challenge to the constitutionality of the mandate being brought here has to fail."

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Adrienne Rich, Influential Feminist Poet, Dies at 82 - NYTimes.com

Adrienne Rich, Influential Feminist Poet, Dies at 82 - NYTimes.com:

"I am here, the mermaid whose dark hair
streams black, the merman in his armored body
We circle silently about the wreck
we dive into the hold. ...
We are, I am, you are
by cowardice or courage
the one who find our way
back to the scene
carrying a knife, a camera
a book of myths
in which
our names do not appear."


I used the phrase Diving Into the Wreck as the lead in the title of my recent article about the BP Gulf Oil Spill.  Although the exploration of the law of compensation has nothing to do with the exploration of identity that made Adrienne Rich's 1974 title poem so powerful, I used the phrase to pay tribute to her, the author of one of the most evocative poems I have ever read. - GWC

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The limiting principle and the individual mandate - Jack Balkin / Balkinization

The parade of horribles that the conservative Justices imagined at oral argument expressed the libertarian view of "tyranny".  If the government can make me buy this they can make me do anything, can't they?  Even eat broccoli in Antonin Scalia's characteristically snide and hyperbolic remark.  Jack Balkin explains..  - GWC
for the full piece go to: Balkinization:

The Limiting Principle
by Jack M. Balkin

Hey kids? Are you down in the dumps after Tuesday's oral argument? Do you want a limiting principle that justifies the individual mandate but doesn't give Congress unlimited power under the Commerce Clause? Fine. Here are three of them. Pick your favorite.
1. The Moral Hazard/Adverse Selection Principle. Congress can regulate activities that substantially affect commerce. Under the necesary and proper clause, Congress can require people to engage in commerce when necessary to prevent problems of moral hazard or adverse selection created by its regulation of commerce. But if there is no problem of moral hazard or adverse selection, Congress cannot compel commerce.  Courts can choose different standards of review to decide how much they want to defer to Congress's conclusion. Even under the strictest standard of review the individual mandate passes muster.
Explanation:  The guaranteed issue and community rating rules prevent insurers from discriminating against uninsured people because of preexisting conditions.  These rules create a moral hazard: people will wait until they get sick to buy insurance. (this might be better described as an adverse selection problem)  Congress can require them to buy insurance early to prevent gaming the system. (Actually, it exacerbates an already existing problem in all health insurance, because insureds know more about their health condition than insurers).
Why not broccoli? There is no moral hazard problem created when people refuse to buy broccoli. It's true that buying and eating broccoli might make you healthier, but people don't wait until they are sick to buy broccoli. That's because broccoli is not going to do them much good at that point. In this sense, broccoli doesn't work like health insurance.
Why not cars? Under this principle, Congress can't make everyone buy a car in order to help the auto industry. There is no moral hazard that Congress is responding to that is caused by people strategically waiting to buy cars. Note, by the way, that if fewer people buy cars, the price of cars might go down, not up, as Justice Scalia thought.
Closest analogy: In United States v. Comstock, the Supreme Court held that Congress could create a civil commitment system for mentally ill prisoners following their criminal sentences when no state wanted to take them.  Congress had created a situation in which after long prison terms connections to states were attenuated, and no state wanted to risk being stuck with the costs of civil commitment. As a result, Congress could create its own system.

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Craziness prevails in Obamacare hearings - Andrew Koppelman - Salon.com

Antonin Scalia's snide can the government make me buy broccoli" question to the Solicitor General should rank as one of the low points in Supreme Court oral argument history, though it will probably be a big hit on Fox News. - GWC
Craziness prevails in Obamacare hearings - Salon.com:
by Andrew Koppelman

 "The long-awaited oral argument on the merits in the challenge to the Affordable Care Act makes depressing reading, because so many judges seem to be ready to buy such silly arguments – arguments whose silliness was pointed out on the spot, sometimes even conceded by the challengers, but which nonetheless seemed to sometimes move Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia and Samuel Alito. (Justice Thomas, who characteristically didn’t say a word, is a sure vote to strike down the law.)
A lot of arguments have been made against the mandate, but we can roughly group them into two broad categories, which I’ll call 1) No Limits and 2) I Am a Rock.  No Limits claims that if the mandate is permitted, there will be no limitations on federal power. I Am a Rock claims that people have a constitutional right to some safe harbor where they and (more important) their money are immune from all federal regulation."

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Mark Tushnet on Day 2 of the ACA Arguments - Balkinization

Harvard constitutional law prof Mark Tushnet is very cogent here.  Oral argument is particularly confusing - to read, and to engage in - because nobody has the briefs (which they didn't write) at hand, so it is much less coherent than are the briefs.  Apropos the Chief Justice's question:  the government is not going to order you to buy a cell phone because your failure to buy a cell phone does not make cell phones unviable.  But failure to buy health insurance until needed could undermine the viability of the health insurance!  Burial insurance?  I think government could compel you to contribute to that, just like social security.  Broccoli?  Antonin Scalia really is a jerk. Tushnet spells it all out - GWC
Balkinization:
by Mark Tushnet
 "The only question is not whether the SG offered a coherent distinction between the health insurance market and other markets – *a* limiting principle – but whether someone’s going to find the distinction adequate. (It’s not a Drew-Days situation where Days couldn’t offer, in Lopez, any limiting principle; here there’s one on offer, so the question is whether the only demand in the case is for a limiting principle, or rather is for a “good” or “strong” or something like that limiting principle.)"

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Argument recap: It is Kennedy’s call : Lyle Denniston SCOTUSblog

Argument recap: It is Kennedy’s call : SCOTUSblog:
by Lyle Denniston

If the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience stood up for a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy’s concern that it just might alter the fundamental relationship between the American people and their government.   But after two arguments by lawyers for the challengers — forceful and creative though they were — at least doubt had set in. and expecting the demise of the mandate seemed decidedly premature.

Day 2 Transcript

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Kennedy seems opposed to individual mandate at ACA Oral Argument - Tom Goldstein SCOTUSblog

OMG -  - that sinking feeling.  If we can't get Kennedy....
SCOTUSblog: "I stepped out of the oral argument to provide this audio report (at bottom of page).

For those who prefer reading, here is a summary of the report:

Based on the questions posed to Paul Clement, the lead attorney for the state challengers to the individual mandate, it appears that the mandate is in trouble.  It is not clear whether it will be struck down, but the questions that the conservative Justices posed to Clement were not nearly as pressing as the ones they asked to Solicitor General Verrilli.  On top of that, Clement delivered a superb presentation in response to the more liberal Justices’ questions.  Perhaps the most interesting point to emerge so far is that Justice Kennedy’s questions suggest that he believes that the mandate has profound implications for individual liberty: he asked multiple times whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden.  At this point, the best hope for a fifth or sixth vote may be from the Chief Justice or Justice Alito, who asked hard questions to the government, but did not appear to be dismissive of the statute’s constitutionality."

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A Picture of Language - NYTimes.com

I liked diagramming sentences.  We did it in English, Latin and Greek in high school.  I think it really helped us to understand a sentence.  Key to understanding what the reader will understand.  (Yes, that is an incomplete sentence).  You get the idea. I had no idea that it was such a 19th century invention by a schoolmaster.  - GWC
A Picture of Language - NYTimes.com: by Kitty Burns Florey

"The curious art of diagramming sentences was invented 165 years ago by S.W. Clark, a schoolmaster in Homer, N.Y. [1] His book, published in 1847, was called “A Practical Grammar: In which Words, Phrases, and Sentences Are Classified According to Their Offices and Their Various Relations to One Another.” His goal was to simplify the teaching of English grammar. It was more than 300 pages long, contained information on such things as unipersonal verbs and “rhetorico-grammatical figures,” and provided a long section on Prosody, which he defined as “that part of the Science of Language which treats of utterance.”
It may have been unwieldy, but this formidable tome was also quite revolutionary: out of the general murk of its tiny print, incessant repetitions, maze of definitions and uplifting examples emerged the profoundly innovative, dazzlingly ingenious and rather whimsical idea of analyzing sentences by turning them into pictures. “A Practical Grammar” was a reaction against the way the subject had been taught in America since it began to be taught at all."

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Why the New York Law School Win was a Defeat - Tamanaha/Balkinization

Balkinization the NY Law School Win was really a defeat:
by Brian Tamanaha

"When the fraud lawsuit against New York Law School was dismissed last week, the school proclaimed vindication. It was anything but that. What Judge Schweitzer ruled is that no reasonable consumer would have relied upon the obviously inflated employment percentages and salary numbers posted by the school."

This whole problem really is grim.  I had the benefit of going to law school practically for free.  Not because I was a star student!  I had good LSAT and GRE scores, but that was about it.  I was a grad student of Howard Zinn at BU and a returned Peace Corps Volunteer when I applied to Rutgers-Newark, drawn by the chance to work on the cause celebre of the moment - the Chicago 7 appeal.
Tuition was $500 in 1970! I had money left over from the Peace Corps - even after paying BU $2,000 for my M.A.  The second year I got a full scholarship.  Year three (1972-1973) tuition doubled to $1,000.  I kept the $500 scholarship.  Grand total: $1,000 for a J.D. at Rutgers the State University of New Jersey.  My first job - as a Business Rep at Actors Equity paid $13,500 - with benefits.  13X my total tuition!
Now students take on huge debt for uncertain prospects.  New York Law School has a fine faculty - and they have dedicated themselves to teaching weaker students - getting their bar pass rates up near the norm. 80% last summer, but 84% the previous two cycles.  86% is the statewide average.  Fordham averages 90%, NYU and Columbia 96%.

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Chinese lawyers must pledge allegiance to the CP - China Law & Policy

Elizabeth Lynch has an interesting discussion of the new oath of office required of Chinese lawyers. (below)  It is a high level expression of what has recently been often observed: a harder line against dissident lawyers, and dissidents who support a western-style multi-party democracy.

The Communist party's leading role is embedded in the PRC Constitution.  So the new addition to the pledge (below)is surplusage, intended to send a message "don't even think about it".

I remember when they changed the Pledge of Allegiance, inserting the awkward phrase "under God", which disrupted the flow of the pledge.  I still resent it though for reasons that did not occur to be as a 10 year old.  "Under God" is what it is intended to be: an affirmation that we are believers - unlike those atheistic commies.  So in my opinion it is an offensive intrusion - an assertion that any non-believer is disloyal.  -GWC

I Pledge Allegiance to the CCP….Chinese Lawyers’ New Oath Requirements | China Law & Policy:

"“I volunteer to become a practicing lawyer of the People’s Republic of China and promise to faithfully perform the sacred duties of a socialist-with-Chinese-characteristics legal worker (中国特色社会主义法律工作者); to be faithful to the motherland and the people; to uphold the leadership of the Chinese Communist Party and the socialist system; to safeguard the dignity of the constitution and the law; to practice on behalf of the people; to be diligent, professional honest, and corruption-free; to protect the legitimate rights and interests of clients, the correct implementation of the law, and social fairness and justice; and diligently strive for the cause of socialism with Chinese characteristics!”"

Chemerinsky: SCOTUS Tackles Law and Politics of the Health Care Act - News - ABA Journal

The Supreme Court will, over three days next week, hear oral argument regarding the Affordable Care Act - the most important legislative innovation since Medicare.  The attack on it seems to me specious - but it has become Republican dogma despite its Republican origins.  So I fear - as do many - that tribal loyalty will lead the conservative majority on the Supreme Court to strike the act.
UC Irvine Dean Erwin Chemerinsky lays out the issues more concisely and clearly than anyone else I have come across.  - GWC
Chemerinsky: SCOTUS Tackles Law and Politics of the Health Care Act - News - ABA Journal:

The legal issues before the Supreme Court are many and complex. Underlying it all, of course, is the political context. Every Republican in Congress voted against the Affordable Care Act. Every judge who has the reached the merits who was appointed by a Republican president, with two exceptions (6th Circuit Judge Jeffrey Sutton and District of Columbia Circuit Judge Laurence Silberman), has voted to strike it down. Every judge who has reached the merits who was appointed by a Democratic President, with one exception (Eleventh Circuit Judge Frank Hull), has voted to uphold it. Will the Supreme Court justices see it any differently? 

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No Easy Call - Karl Rove gets it wrong on OBL raid - David Corn/Mother Jones

Must READ
Rove vs. "Showdown": He Says OBL Raid No Big Deal | Mother Jones: 
by David Corn
"In political warfare, truth matters little. That's what Karl Rove demonstrated today in a Wall Street Journal op-ed piece that blasted the 17-minute film recently released by the Obama reelection campaign. This campaign infomercial notes that the Osama bin Laden raid President Obama launched was the "ultimate test of leadership." Rove, who served a president who did not defeat Bin Laden in such a fashion, begs to disagree—and he claims that Bill Clinton backs him up on this point.
Rove asserts,

As for the killing of Osama bin Laden, Mr. Obama did what virtually any commander in chief would have done in the same situation. Even President Bill Clinton says in the film "that's the call I would have made." For this to be portrayed as the epic achievement of the first term tells you how bare the White House cupboards are.

Yet that is not what Clinton said about the decision."...

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Chinese Lawyers Chafe at New Oath to Communist Party - NYTimes.com

Chinese Lawyers Chafe at New Oath to Communist Party - NYTimes.com:
 "BEIJING — Prominent rights lawyers in China issued sharp criticisms on Thursday of an order from the Justice Ministry that requires new lawyers and those reapplying for licenses to swear an oath of loyalty to the Communist Party.
The Justice Ministry posted the oath on its Web site on Wednesday. The core of it says: “I swear to faithfully fulfill the sacred mission of legal workers in socialism with Chinese characteristics. I swear my loyalty to the motherland, to the people, to uphold the leadership of the Communist Party of China and the socialist system, and to protect the dignity of the Constitution and laws.”"

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Plea Bargaining: Innovative Remedies for Ineffective Assistance of Counsel

Associate Justice Anthony Kennedy

The 6th Amendment right to effective assistance of counsel had its historic origins in the elements of a fair trial: the right of confrontation, to compel attendance of witnesses, etc.  But when the Supreme Court in the wake of Gideon v. Wainwright (1963) began spelling it all out, fairness throughout the criminal prosecution process was comprehended.  So defense counsel's incompetence at the sentencing phase became grounds for relief.  And in Padilla v. Kentucky failure to advise a client that a guilty plea would mean deportation violated the right to effective assistance.  So today's headlines are wrong.  The court in Lafler v. Cooper and Missouri v. Frye did not vastly expand criminal defendants rights. 
But the court did innovate regarding remedy.  Though it infuriated Justice Scalia the court did declare that a man who took his lawyer's stupid advice and was convicted of murder in a fair trial is nonetheless entitled to a remedy: We  "order the State to re-offer the plea agreement", Justice Kennedy declared in the majority opinion.  Cooper, now serving 185 - 365 months for murder, is sure to grab the opportunity to reduce that to the 51 - 85 months sentence that will make him a free man.
Justice Scalia (joined by Roberts, Alito and Thomas)  is alarmed:

[I]t would be foolish to think that “constitutional” rules gov­erning  counsel’s behavior will not be followed by rules governing the  prosecution’s behavior in the plea­ bargaining process... Is it constitutional, for example,  for the prosecution to with­ draw a plea offer that has already been accepted?  Or to withdraw an offer before the defense has had adequate time to consider and accept it?  Or to make no plea offer at all, even though its case is weak—thereby excluding the  defendant from [the plea bargaining process]?

Such Pandora's Box arguments are the stock in trade of dissenters.  I am reminded of Caperton v. A.T. Massey three years ago.  A liability verdict was vacated because one of the judges who decided it had benefited from a coal mine operator's enormous independent election campaign expenditures on the judge's behalf.  A flood of recusal motions was predicted by Chief Justice Roberts.  Didn't happen then.  Won't happen now. But we can hope that there will be remedies in the likely modest number of cases where a criminal defendant was shortchanged by a lawyer, learns about it, and obtains relief.

Paul Ryan’s budget: Should the poor pay for deficit reduction? - The Washington Post

Rep. Paul Ryan

Ezra Klein dissects and dismantles the latest budget scheme of Paul Ryan (R-WI). - GWC
Paul Ryan’s budget: Should the poor pay for deficit reduction? - The Washington Post:
by Ezra Klein

 "Here’s the basic outline of House Budget Committee Chairman Paul Ryan’s 2013 budget in one sentence: Ryan’s budget funds trillions of dollars in tax cuts, defense spending and deficit reduction by cutting deeply into health-care programs and income supports for the poor.

On the spending side, Ryan’s biggest cuts come from health-care programs. He eliminates the $1.5 trillion that the Affordable Care Act uses to purchase health insurance for 30 million Americans. Then he cuts Medicaid and related health programs by $770 billion — which is to say, by about a third. Medicare takes $200 billion in cuts on top of that. This graph from the Congressional Budget Office’s analysis of Ryan’s budget tells the story: 

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Old Memo Casts More Doubt on Rehnquist’s View of ‘Separate but Equal’ - NYTimes.com

The Justices who unanimously issued
Brown v. Board of Education

At his confirmation hearings William Rehnquist - probably the most conservative voice in the Nixon-era Justice Department blamed on his boss Justice Robert Jackson - the former Nuremberg Prosecutor -   this first person memo defending Plessy v. Ferguson as correctly decided.  I always considered that pure prevarication.  Rehnquist of course went on to do a lot of damage as Associate and then Chief Justice of the United States.  One of his mentees and ideological cohorts - John Roberts - has succeeded him and may well do more damage than Rehnquist had the chance to do. - GWC
Sidebar — Old Memo Casts More Doubt on Rehnquist’s View of ‘Separate but Equal’ - NYTimes.com:
by Adam Liptak

"WASHINGTON — In 1952, a young Supreme Court clerk wrote a memorandum that would come to haunt him.
The court was considering Brown v. Board of Education, the great school desegregation case. The question for the justices was hether to overrule Plessy v. Ferguson, the 1896 decision that said “separate but equal” facilities were constitutional.
The memo, prepared for Justice Robert H. Jackson, was written in the first person and bore the clerk’s initials — “WHR,” for William H. Rehnquist"

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The names of the victims in Afghanistan

Josh Marshall at Talking Points Memo pointed out that while we puzzle over the new MyLai apparently perpetrated by a sole Sergeant (do American soldiers really go out alone at night in Afghanistan?) few here have paid real attention to the victims.  They have names.  And families.  That problem has been cured HERE by al Jazeera.  I have heard a lot of irresponsible "responsible" commentary suggesting things like there is less distress in Afghanistan over killing children than over the burning of the Koran because, inevitably, the suggestion is made that Muslims or Afghans don't value life.  This photograph is the answer to that.  And children?  Yes, and children.

Employer-provided health insurance fading

When I hired my first employee in 1979 I got a health insurance policy for her and for me.  Didn't even think about the cost.  It really was quite modest.  That was the norm.  Employers provide health insurance for employees - with no employee contribution to the cost.  That of course changed.  Well the big trend - as labor grows weaker - is for fewer and fewer employers to provide that benefit.  It is down to half now.  Another reason we need the Affordable Care Act - and why we should expand Medicare - to cover the entire population.  For details follow the links below.  - GWC
 source: National Institute for Health Care Reform
h/t Kevin Drum, Mother Jones

Forget the Money, Follow the Sacredness - NYTimes.com

Tribe and groupthink explains most of politics, in my view. Jonathan Haidt, a social psychologist identifies the two competing narratives in American political thinking - the heroic progressive vision and the defensive Reaganite restorationist vision.  The Reagan version is weakly stated - because it underestimates racial resentment.  But the basic themes seem right to me.  Check it out. The Times excerpts his new book “The Righteous Mind: Why Good People Are Divided by Politics and Religion”. - GWC

Forget the Money, Follow the Sacredness - NYTimes.com:

 "Despite what you might have learned in Economics 101, people aren’t always selfish. In politics, they’re more often groupish. When people feel that a group they value — be it racial, religious, regional or ideological — is under attack, they rally to its defense, even at some cost to themselves. We evolved to be tribal, and politics is a competition among coalitions of tribes.
The key to understanding tribal behavior is not money, it’s sacredness. The great trick that humans developed at some point in the last few hundred thousand years is the ability to circle around a tree, rock, ancestor, flag, book or god, and then treat that thing as sacred. People who worship the same idol can trust one another, work as a team and prevail over less cohesive groups. So if you want to understand politics, and especially our divisive culture wars, you must follow the sacredness."

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