Month: March 2017

Notorious RBG and Tweeting Judges: Threats to an Independent Judiciary Versus the First Amendment

I have found the “Notorious RBG” phenomenon off-putting since its inception.  Perhaps my reaction is due to the fact that Justice Ginsburg, while a brilliant and important figure on the Court, is one of the Justices for whom I have the most trouble separating her legal analysis from her political views.  (Justice Alito is the other.)  I believe the elevation of her status to legend further undermines rule of law values.  Many in the public seem to adore mere soundbites from her opinions, or the base result of a given case.  As one might expect, Justice Ginsburg is not notorious for her legal methodology or sound reasoning in a way that appears at all separate from her fans’ policy preferences or political worldviews independent of our actual laws or Constitutional rights.

The Notorious RBG meme also creates the concern that Justice Ginsburg will write opinions or cast votes to further endear her to the public, compromising the independence of a body that safeguards individual constitutional rights over majority sentiment.  However, although Justice Ginsburg enjoys her status as Biggie Smalls’s sister, she did not create the meme.  What strikes me as potentially worse – especially in an era of political polarization where the judiciary serves a critical role as the branch that represents clear-headed logic – is judges gaining notoriety and fandom through Twitter.  Judges tweet publicly about cases decided by other courts, collect praise for their own opinions, and express their religious preferences (one state court justice’s pinned Tweet is “God Got Game”).  Some judges even pride themselves on their prowess with the 140-character medium.

At first blush, none of this struck me as wise or instilled confidence in me of a judge’s impartiality (or professionalism).  However, Tweeter Judge Dillard of the Court of Appeals of Georgia makes a good case that judges, as public servants, should demystify their role and connect with the public in order to serve rule of law values.  He argues, in Duke Law’s Judicature, that because judges, whose duty is to follow the law, “are often called upon to make decisions that will almost certainly prove to be politically unpopular,” social media is a way for judges to demonstrate that they are “accessible to the people.”

Of course, judges have their own First Amendment rights, but are also bound by ethical rules restricting them from acting in ways that evince even the appearance of impropriety. In this post, I explore the rules and restrictions governing judges’ public expression, their free speech rights, and my own views about when they shouldn’t enter the sometimes ugly, self-affirming free-for-all that Twitter has become.

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Some Broad Principles and Specific Suggestions about the ACA Repeal and Replace Measures

Health insurance policy is complicated.  I know this, my Insurance Law students know this, and, I daresay, most of our politicians know this.  Rushing to action – either in terms of quickly passing health insurance legislation or quickly passing judgment on one’s political opponents  ­–  is especially unwise in this area.

Strongarmed by President Trump, the House of Representatives has begun debate on the American Health Care Act, the Republican plan to repeal the Affordable Care Act.  President Obama’s ACA has increased health insurance coverage for many, but at prices too high for others to afford.  Although Republicans have a majority of both the House and the Senate, President Trump’s AHCA must balance more conservatives’ desire to eliminate ACA-style regulations that reduce competition in the insurance marketplace with moderates’ desire to keep certain provisions, like the requirement that insurers offer certain essential health benefits, intact.  Essential health benefits mandates ensure that everyone has health insurance coverage for their basic needs and prevents insurers from creating policies that cover far less than consumers expect, but they drive up health insurance costs, undermine choice for those who want a more limited plan, and reduce competition among insurers.

Deciding how to fix what is an increasingly broken health care system (with health insurance coverage being only one facet of the problem), requires an examination of both broad principles and specific proposals.  Below, I offer a little of both.

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Judge Gorsuch’s Comments About Maternity Leave, the Academic Enterprise, and Sexism in the Classroom

There is a new reason for partisan bickering, and perhaps a reason for legitimate concern, at Tenth Circuit Judge Neil Gorsuch’s already fraught Supreme Court confirmation hearings.  A former student wrote the Senate Judiciary Committee to allege that Judge Gorsuch informed her ethics class that “many” female attorneys manipulate maternity leave by taking time off and then departing their firms once they have used the firm’s maternity leave benefits.  These allegations are concerning, not just because they may evince biased attitudes about women that are unacceptable in a jurist.  These allegations, and the responses to them, also evince an increasing unwillingness by students to grapple with controversial, sensitive legal and intellectual questions that will inevitably offend someone’s sensibilities.

I do not know what Judge Gorsuch actually said in last April’s legal ethics class.  There are accounts that verify the former student’s allegations, but there is also a letter by another former student refuting the student’s perception of the incident.  I can, however, contribute to the conversation on this issue by adding my own experience, as a professor and as a woman, about the challenges presented by the law school classroom environment.

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A Guest Speaker in My Insurance Class Reaffirms the Importance of Teaching and Blogging in a Nonpartisan Way

Today, in Insurance class, I received a reminder of how critical it is that law professors approach their craft of teaching and writing in a nonpartisan way.  As a First Amendment scholar, my priors were already set to fostering respectful disagreement in my classes, but it is all too easy, without constant vigilance, to teach classes and present legal arguments in an ideological way.  Today’s guest speaker in my Insurance class reminded me that free speech can and does work, if we, especially academics, commit to the enterprise as honest brokers.

My guest speaker, who Skyped into class, represents maritime insurance companies in a litigation, arbitration, and appellate practice.  He regaled my students with vivid stories about the complexities of maritime law and the foibles of state and federal courts.  Ever since the Supreme Court, in Wilburn Boat v. Fireman’s Fund Insurance, 348 U.S. 310 (1955), ruled that not all maritime insurance disputes are governed by federal admiralty law, courts now decide whether to apply state or federal law to maritime insurance disputes.  My guest speaker explained that courts often look beyond the choice of law question to the ultimate result in a given case to decide which law applies, generally to favor policyholders over insurance companies.  Indeed, my guest speaker told my class that his father, who started their insurance practice, was once denied the ability to speak on behalf of his client, by a Florida state-court judge who said something to the effect of, “No slick Jewish lawyer in Gucci loafers is going to come into my court and tell me how to rule.”

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What’s the Deal with SCOTUS, the Supremacy Clause, and Insurance Subrogation? (A Series)

Part One:  The Basics

Often, the most technical cases are the most fun.  When I was clerking, my co-clerks amiably mocked the fact that my first case was a contract dispute between a shopping center and its tenant (“How’s Minges Creek?” they would chide).  I loved that case.

You may never have considered your view on whether the Federal Employees Health Benefits Act (FEHBA) pre-empts state laws that bar insurance carriers from seeking subrogation.  However, considering this issue promises to be a good time. Cases involving abstruse, interlocking statutes or technical contractual language require judges and lawyers to puzzle through logical challenges in order to reach a coherent, satisfying solution.  The difficulty of reconciling analytical inconsistencies and assimilating technical knowledge overshadows any obvious political valence.  The case becomes more about making the parts fit together within the statutory parameters.  Courts must provide workable conceptual principles for future cases, which will present vastly different policy issues.  So it is with insurance subrogation and the Supremacy Clause.

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Oral Argument in Packingham v. North Carolina: Justice by Justice

Earlier this week, the Supreme Court heard oral argument in Packingham v. North Carolina, a case about whether North Carolina can make it a crime for registered sex offenders to access commercial social networking websites.  Packingham v. North Carolina is an interesting case with significant First Amendment implications.  The Court will decide not only what level of First Amendment scrutiny applies to “access” restrictions on speech, but will have to contend with the question of whether speech can be restricted as a means of preventing crimes.

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