A Little Law School News For Monday

I’m teaching orientation classes this week.  Got to have 1Ls signed up for Westlaw, Lexis, and Bloomberg Law after all.  Posting may be a bit more spotty that usual because of that.  Nonetheless, there are a few interesting things going on in the law school world aside from the crush of students trying to figure out what the heck they’ve gotten themselves into.

It’s not exactly a secret that the Western Michigan University Cooley School of Law enrollment dropped from 4,000 students in 2010 to 1,880 for the current academic year, at least as reported by Crain’s Detroit Business.  That’s been the trend for many law schools with varying degrees of lower enrollment.

What’s more interesting is where the trend is right now.  Here are the latest LSAC statistics:

As of 8/8/15, there are 343,251 fall 2015 applications submitted by 55,702 applicants. Applicants are down 1.9% and applications are down 4.0% from 2014.

Last year at this time, we had 100% of the preliminary final applicant count.

I have to believe that that the drop in applicants and applications this year is in tolerance for most law schools.

In other law school news, the Indiana Tech Law School has snagged Indiana Attorney General Greg Zoller to teach a class on Indiana constitutional law in the Fall Semester.  The class is aimed at second and third year students.  I wonder how they managed that one.

Mark

Friday Fun: Fozzie Bear and Kermit The Frog Perform N.W.A.s Express Yourself

It’s a nice mashup and timely as well with the movie Straight Outta Compton in theaters.  This is a fan piece and not from the Muppet’s corporate owner, Disney.  See it before it gets taken down.

Mark

Bar Examiners, Deans, Point Fingers At Each Other For Drop in 2014 Bar Passing Rates

There is an article posted this morning on Bloomberg BNA worth reading.  It’s called “Are Lawyers Getting Dumber?” and it considers the apparent drop in passing the bar exam in 2014.  The President of the NCBE, Erica Moeser, tends to blame the preparation of law students and, generally, the quality of law students sitting for the bar.  That’s one plausible assessment, what with the decline in law school applications, or should I say quality law school applications.

The big debate in the last several years is whether law schools would shrink enrollment to protect the rating of the class.  No schools like to see their average class LSAT and GPA aggregates drop.  On the other hand, someone has to pay for those tenured faculty salaries and that may mean admitting a few students who wouldn’t necessarily be admitted in “normal” times.  Deans, naturally, blame the test as being harder.  The article examines the tension between these two points of view.

I’ve said in other forums that the bar exam is hard and that it is not an interesting or particularly engaging test.   It’s orientation time, so new students can put off these thoughts for three to four years.  I would recommend that those in their final year of law school take preparation for the exam seriously.  I say that from watching graduates prepare over the years.  It’s the type of draining experience that no one would want to go through twice, especially for something that directly affects a graduate’s legal career.  Either that, or go to school in Wisconsin where law school graduates there are not required to take the Wisconsin Bar Exam.

Mark

Westlaw Gets Into The Cloud Business, Sort Of

At least in the Academic version.  I received an email yesterday promoting new features in Westlaw for the coming academic year.  One of them is:

Share Your Uploaded Documents

This exciting new feature will let you share user uploads with professors, students, study groups, research assistants, journals and law reviews, moot court and clinics.

  • Upload your own documents into your WestlawNext® folders.
  • Add citations, hyperlinks, and KeyCite flags to online documents.
  • Annotate (add highlights and notes) to your own content.

Previously one could only designate and share items that were flagged from Westlaw content.  It certainly is an interesting play to get students and faculty to spend more time on Westlaw.  More information is in an audio tutorial here.

Mark

Is/Was Law School A Bad Deal, Or Is That Just The Way It Was Portrayed In The Press?

There is a post on Brian Leiter’s Law School Reports from last week that analyzes negative coverage of law schools.  The first paragraph sets the tone:

In a recent column, the New York Times’ Nicholas Kristof confessed, “One of our worst traits in journalism is that when we have a narrative in our minds, we often plug in anecdotes that confirm it.”  The quote is timely, given recent controversy surrounding New York Times’ coverage.

The decline in law school enrollment and available jobs for graduates is one such narrative.  Michael Simkovic’s analysis of newspaper coverage is worth a read.  The Wall Street Journal, for example, is far and away the paper that publishes the most negative stories about law school(s).  Other fun facts include that the negativity peaked somewhere around 2011 and slowly declined to almost nothing today.  I’m guessing that journalist got bored with the story.  Check out the charts and other data Simkovic gathered for the piece.  Read it here.

Mark

Repost: New Law Students: Make Friends With A Librarian

I wrote a post about three years ago for the old Law Librarian Blog on why new law students should make friends with a law librarian.  That post was deleted along with all the other LLB posts after the “trouble.”  I found a copy recently, and given that this is the time of year for orientation, I thought it would be worth it to post again.  I think it’s still relevant today.  Here goes:

U.S. News & World Report has a short post out for new law students who will start their law school career in the next few weeks. It offers four points for navigating law school:

  1. Come prepared
  2. Focus on finals
  3. Make friends
  4. Remove distractions

I’d like to focus for a moment on the third one.  The author suggests making connections within the law school and the wider university through activities and other diversions as a break from the law school routine. That’s great advice as law school can be a highly competitive grind.  I’d like to make one other suggestion that may help the new student:  get to know a librarian.  Why? Because we know stuff that students do not.

We know the cycle of the law school academic year. It normally doesn’t shock us when 1Ls invade the library for the legal writing treasure hunt.  It’s not exactly the running of the bulls, but there are certain parallels.  For students it’s a new experience.  For us, it’s “been there done that.”  Don’t be afraid to ask questions, even for the simple stuff.  There’s usually a ready answer that can make a student’s life easier.

We also know the resources.  It may be nice to have all of those apps on tablets and phones. And I’m sure there are plenty of new law students who have a lot of experience doing research in college. Legal research, however, is a different animal. Lexis, Westlaw, and Bloomberg Law are not free in the wild. The mechanics can be a challenge despite the trend to provide Google-style interfaces. Librarians understand how this stuff works and can help.

I’ll offer related word of advice: not everything is online. More important, not everything is online and is free.  It’s more often than not a pay for play world.  Luckily the law library has licensed a lot of the good stuff.  We can tell students what information is easily accessible and what is not.  We can also ex plain how to get remote access to stuff, like articles, hard to find documents, exams, and other materials.

Librarians know the law school. We’re not the concierge for the school, but we know how it works. We can tell you generally which office likely handles what responsibility.  We can tell you where are public copiers, scanners, microform readers (yes, they are still necessary) and other useful resources may be.  We can also tell you generally what your expectations should be in using them. The library is probably the friendliest location in the law school.  Students use the library facility regularly in spite of the integration of technology into the curriculum. We try to make the place a comfortable and quiet space to study.  Take advantage of that.

So, make friends with a librarian.  We won’t break the rules for you. But our institutional knowledge of the law program and legal information can make a student’s life easier. We even know where the bathrooms are located.  Don’t be afraid to ask.

Mark

New Report on Copyright Litigation Statistics Available

Lex Machina issued a report last Tuesday that analyzes copyright litigation trends over the last five years.  The report is impressive for the level of detail in the statistical analysis and charts presented in the 37 page document.  The report is designed to highlight legal analytics in copyright litigation.  The target audience appears to be plaintiffs with a heavy interest in protecting their media assets, firms that are considering taking on copyright cases, and those with an interest in the mechanics of copyright litigation.  As the report indicates, it is the first survey of its kind.  I’ve followed file sharing and other IP cases which I have reported on in this forum from time to time.  I found the report interesting for its snapshot of how litigation progresses through the courts.

Highlights from the press release include:

  • Top plaintiffs include music (Broadcast Music, Sony/ATV Songs, Songs of Universal, UMG Records, EMI, and more), software (Microsoft), fashion (Coach), and textile patterns (Star Fabrics) industries.
  • Top defendants include retailers (Ross Stores, TJX (TJ Maxx), Amazon, Burlington Coat Factory, Rainbow USA, J.C. Penny, Sears, Forever 21, Wal-mart, and Nordstroms), music labels (Universal Music, Sony Music Entertainment, UMG Recordings), & publishing / education, (Pearson Education and John Wiley and Sons).
  • Doniger Burroughs, a California fashion, art, and entertainment boutique leads among plaintiffs firms with 741 cases, more than double the next firm.
  • Copyright litigation is heavily concentrated in the Central District of California (2,496 cases, 26.2% of all since 2009) and the Southern District of New York (1,061 cases, 11.1%).
  • Fair use is usually decided on summary judgment.
  • The majority of infringement findings happen as a result of default, and almost all default findings are for infringement.
  • Top parties winning damages include companies in movies and entertainment (Disney, Twentieth Century Fox, Columbia Pictures, Warner Brothers, Universal, Paramount Pictures, and more), software (Quantlab, Foundry Networks), and music (UMG Recording).
  • In file sharing cases, about 90% of cases settle. Top plaintiffs include movie production companies. And an erotic website leads the list of Internet file-sharing plaintiffs with 4,238 cases – about 15 times as many cases as the next most litigious plaintiff.

The report registration and download link is here.

Mark

Windows 10 Privacy Settings

The best guide I’ve found so far to explain the privacy settings in Windows 10 comes from NetworkWorld.  It explains the various options and contains graphics that detail the settings for on or off.  It mirrors my personal experience in setting up Windows 10.

Mark

Whither Microsoft Academic Search? 

Or is the correct term “wither?”  I was wondering, at least.  I was in the process of putting together a handout for a lecture I was giving to law review cite checkers on sources and strategies when I thought I’d include Microsoft Academic Search as an alternative to Google Scholar.  A Search in Google brought up links to the page which turned out to be unavailable.  I hadn’t used Academic Search in a while as it was light on law and law related sources.  As it turned out, the site was shut down.  A page in Wikipedia basically stated that the service was folded into Bing.  Pity that as the model Scholar uses is ad free and limits itself to scholarly items.  Bing, of course, is a general search.  That’s not to say it can’t bring up specific articles and their sources.  A scholarly search site would be a more efficient way to find this stuff.  More information on the decline and fall of MS Academic Search is available from Newsblog.

Note:  Let me know if anyone is interested in the guide I referred to earlier.  It is DePaul centric in terms of databases and electronic strategies.  I’m sure the guide could be adapted to any library if one wanted to edit it.  I need to make a few minor changes to it based on the lecture questions.  I could send out copies within a day of request.

Mark

Windows 10 is spying on you

“We will access, disclose and preserve personal data, including your content (such as the content of your emails, other private communications or files in private folders), when we have a good faith belief that doing so is necessary to.” —  Microsoft’s 12,000-word Windows 10 Service Agreement

For details, see Zach Epstein’s Windows 10 is spying on almost everything you do – here’s how to opt out. — Joe

Rutgers Gets ABA Approval to Merge Its Two Law Schools

The details are in a report from NJ.com.

Mark

Windows 10 — One More Thing

I should mention that there is a Windows 10 upgrade scam going on.  There is an email going around that offers an upgrade but instead encrypts a hard drive for ransom.  The details are at ZDNet.

Mark

Some Thoughts On Having Upgraded to Windows 10 From Windows 7

I installed Windows 10 as an upgrade to my Windows 7 machine over the weekend.  I wasn’t expecting to do that.  Even though I had not reserved a copy, I discovered Windows Update began downloading the program, all three Gbs of it.  This was one of several contradictions to stories I had read up to now.  Microsoft was sending out copies in waves in that people who had reserved a copy would get the free download at different times.  Oh well.

The upgrade went smoothly.  The new operating system booted for the first time and allowed me to custom configure how Windows would perform.  Customizing the system is not recommended as Microsoft has designed Windows to be as cloud centric as possible.  I think I should take a moment here and state that while I appreciate the value and convenience of cloud computing I would like to have as much control over it as possible.  In other words, I prefer managing the experience instead of allowing Microsoft to do it for me.  In that regard, I encountered several more contradictions.

I had read that Microsoft would override defaults on the target system forcing users to reconfigure their machines after the fact.  Mozilla chief Chris Beard had written an angry letter to Microsoft for making the new Edge browser the system default despite the pre-upgrade settings.  I don’t use Firefox and have Google Chrome as my default.  It was acknowledged and accepted as the Windows 10 default browser without any hassle.  Several other programs I used for media remained the defaults despite modern apps from Microsoft that managed this material.  I could still use the venerable MS Media Player to play back WMV/A files by default.  The player, by the way, is now nothing more than that – a player.  The libraries for media are now managed by the photo, movie, and music apps.  These will scan the local drive and automatically add what they find.

It does not appear possible to stop this collection unless one manipulates the search locations in the app settings to a location where there is no media.  Media in the app library can be removed, though unlike the old Media Player library, it is also removed from the drive to the recycle bin.  There doesn’t appear to be an option to delete content from the app lists only.  It’s also possible to remove the apps from the start menu by right clicking on the tile and selecting the appropriate option.  Built in apps cannot be deleted from the system, only disabled.

Logging into Windows 10 is easy.  There are multiple options.  My default in Windows 7 was a simple boot to the desktop with no password.  I’m the only one who uses the machine in any event and I find that convenient for my use.  Windows 10 can preserve that though it really does not want to.  Anyone who logs into the Microsoft store with a Microsoft account will find that Windows will require that account to log into the system.  That can be changed back to a local account by digging into the system settings and changing it back.  Microsoft even then will want to associate a local account with a password with no apparent option to change that.  There is a way to eliminate the password requirement by running a command line entry.  The instructions are here if anyone wants to do that.

Search in Windows 10 is a bit different.  Microsoft has brought the Cortana personal assistant to the desktop.  Cortana can be disabled through settings accessed from the Start Page.  I did this as I do not have a camera or microphone attached to my desktop.  It’s possible to use Cortana by typing in the search box located in the taskbar.  There are a few settings worth mentioning.  Cortana is designed to improve by learning about an individual over time.  That information is stored in the Cloud which is one reason why a Microsoft account is preferred.  There are options settings that can clear that information and stop the collection if one wants to do that.  Microsoft will tell you that this is not recommended for obvious reasons.  Nonetheless, these settings can be changed.

Cortana as well as system search and built in apps is powered by Bing.  The default here is to search the machine and the web simultaneously.  Using Bing cannot be changed, but as with other settings, it can be turned off.  There are options in settings to turn off web search when doing a system search.  Microsoft prefers that you not do that.

One pleasant feature of the upgrade is that all of my desktop shortcuts were preserved.  That was nice as I like to go straight to the desktop and click on an icon and start working.  I know this makes me sound as if I haven’t progressed since XP was released.  Far from it.  I can appreciate what Microsoft is doing.  It’s a connected world out there where people stay in touch with each other and share news, photos, video and the like, all in real time.  I think that’s great.  I’m not into it at all, but that’s me.  What I appreciate the most about Windows 10 is that I can still configure it so I don’t have to use these features.  It may be a little bit of work to do that as Microsoft really really wants everyone to be online and constantly connected and tracked to make Windows customized for a better computing experience. I’ll turn all of those features back on if I ever needed that kind of connectivity.

One last thought, Solitaire on Windows 10 is terrible.  It’s bare bones as local game.  Similar features to the game in Windows 7 are only unlocked through a Microsoft account:

“Sign in with a Microsoft account to get achievements, leaderboards, and have your progress stored in the cloud!”

Oh yay.  Not everything needs to be social.  I guess I’ll be sticking with the game as it appears on my Android tablet.

UPDATE:  Windows Media Player does indeed have a library associated with it.  I was wrong about that. I discovered it last night after I played a video with Media Player.  It doesn’t appear to sync up with the other media apps in one shared library.  That may be because Microsoft really wants people to use a Microsoft account to sync up their media libraries.  It’s either that or I managed to turn off all known syncing options (finally!).  I even managed to delete OneDrive out of the File Explorer windows.  I want to say again that I’m not paranoid about being tracked online.  I do have a Google account after all, and Google is the Supreme Emperor of tracking. My goal is to have as much control of my system as possible.  If you want paranoia, especially healthy paranoia, this article from RPS puts Microsoft’s tracking of consumers via Windows 10 into perspective.

Mark

Google Fights France On The Right To Be Forgotten — Worldwide

Google was ordered by the Court of Justice for the European Union to delist individuals from search results under a “right to be forgotten.”  Other search engines had to comply with the order as well.  Certainly in the digital world information can be copied and stored anywhere.  Even deleted pages can be resurrected by viewing a cached copy when available.  The Wayback Machine at the Internet Archive allows one to search 456 billion preserved web pages over time.  Many websites, not unlike this one, may repost a document or other information thus populating a web of hits and misses.  I’m always surprised at what I find when I Google myself no matter how hard I hide from social media.

Google has reported that it has processed a quarter of a million requests to be forgotten comprising links to one million pages.  So far, so good.  France’s data regulators have ordered Google to delete links on a worldwide basis rather than limiting them to Europe.  Google’s response was “non.”  The company states that doing this would encourage other governments from enforcing similar “rights” which can be manipulated into censorship.  I can understand that.  Hostile elements in and out of government can use this kind of mechanism to marginalize opposition by limiting its web presence.

This is going to becomes a bit of a mess as it will likely lead to more litigation in Europe.  I suspect Google may have to rethink some of its business practices there if it ultimately loses on a European court order that is essentially extra-territorial.  In that case, Europe essentially sets a world-wide standard which, I think, is a dangerous precedent.  Imagine a U.S. State, we’ll call it Texas, deciding what could and could not be taught about evolution in schools nationwide.  We’ll all have to see how this one turns out.

More information comes from a post in Google’s Europe Blog.

Mark

A Few Quick Thoughts on Windows 10, Available Today

Windows 10 is available for download today.  If anyone had noticed, there is a link in the notification tray for systems running Windows 7 and 8/8.1 offering a free upgrade that’s valid for a year.  I wasn’t part of the Windows Insider Program though I followed the news on developments.  A modified version of the Start Menu is back that combines search, applications, and the Start Page from Windows 8.  Aside from the deeper integration to OneDrive, Windows 10 gets Cortana, a virtual personal assistant that learns more detail about a user over time in order to be more helpful.  Personal assistants are all the rage these days with Apple’s Siri, Google Now, and Amazon Echo.  As John Lennon sang in I Am The Walrus, “Ompa Ompa Everybody’s got one.”

I’m not personally a fan talking to a computer though I can see the utility in integrating this technology into operating systems, especially mobile.  I’m a desktop guy through and through.  I have an Android tablet that I use to play solitaire when I’m on the train.  Other than that, all my real work is on the desktop.  It’s nice that Microsoft doesn’t force this kind of interactivity on people as it is possible to turn Cortana off and/or clear the accumulated information.  My biggest question about this data is how secure it will be?  Hackers might find it interesting.  I’m going to wait for that story to break.

Windows 10 has had favorable reviews given the reception to the radical change Windows 8 brought to computing.  A lot of people felt that the changes were forced on them with no regard as to how they actually used Windows.  The Windows blog entries by former head of Windows development, Steve Sinofsky basically stated that features and design were driven by telemetry from people who used Windows 7 and the test versions of Windows 8.  He left the company shortly after Windows 8 went public.  I wonder why.

This version of Windows, suggested to be the last, took into account tester comments as well as a more detailed look as to how people used the system.  Thus there are a lot of familiar features with new that are for the most part customizable.  I can appreciate that.  My desktop in Windows 7 looks an awful like XP even down to the bland task bar and desktop shortcuts.  What can I say, I’m a sentimentalist.

I plan to upgrade my two desktop computers, though not immediately.  I just want to make sure that the mass upgrade process goes smoothly.  Any bugs or annoyances should work themselves out in the next month or so.  I’m looking forward to the upgrades in any event.  I’ll report more on the experience once I get the software on my machines.  A guide to Windows 10, features, and the upgrade process is available here from Microsoft.

Mark

Vizio Smart Televisions May Be Spying On You

Your smart TV may be spying on you if it’s manufactured by Vizio.  Don’t get me wrong.  I’m a big fan of the brand.  I’m on my second set, a 65 inch E Series.  That doesn’t mean I like the creepy fact that the set apparently sends back details of what I’m watching regardless of source.  That little tidbit came in a story in Fortune about Vizio’s upcoming IPO:

Vizio uses technology integrated into its televisions to determine what a user is watching, regardless of the source. In other words, Vizio knows what you’re watching even if it’s a DVD being played on a gaming console or show being watched via cable TV.

Vizio offers what it calls “smart interactivity.”  It’s all in the name of customization that alleges to cater to the individual customer.  Fortunately, there is a way to turn it off.  Vizio instructions to that effect are here.  I can understand (although not approve of) a cable or satellite provider tracking its shows, but DVDs and other delivery mechanisms?

It reminds me of the story about Samsung smart TVs actually listening in on conversations through a digital assistant.  Anyway, I’ll be disconnecting my set later on this evening.  Any libraries or organizations that use Vizio TVs as displays should take note.

Mark

Georgia Sues Public.Resource.org Over Copyright In Published Annotations to the Georgia Code

The State of Georgia is suing Public.Resources .Org, Inc. and Carl Malamud in federal court for posting copies of the Official George Code Annotated on the Public.Resources.Org.  Georgia contracts with Lexis to create annotated copies of the Code where Lexis fills in the annotated material in what appears to be a work for hire as Georgia claims copyright in the annotations and value-added materials.  In some respects, it explains why Lexis wasn’t a co-plaintiff.  The State does not claim copyright in the text of the Code itself.  The complaint is seeking injunctive relief and requesting that all scanned copies be removed and destroyed, and yes, attorney fees.

I think it would have been much easier for the State of Georgia if copyright remained with Lexis.  The ownership would have been clearer.  It’s a murky situation otherwise.  I guess the question the Court is whether the State can actually claim a copyright in this case.  The United States government, as an example, disclaims copyright in most cases, but there are exceptions.  Two of these indicated at USA.gov are:

  • Works prepared for the U.S. government by independent contractors may be protected by copyright, which may be owned by the independent contractor or by the U.S. government.
  • The U.S. government work designation does not apply to works of U.S. state and local governments. Works of state and local governments may be protected by copyright.

The complaint his available through a link with a story at The Register, which is a U.K. based technology news site.  I’m a big fan of the site due to the somewhat snarky attitude the site takes at tech news.  The story in the Register about this case notes that Georgia effectively calls Malamud a “terrorist.”  Here are the excerpts from the complaint where Georgia makes that claim:

20.  On information and belief, Defendant is employing a deliberate strategy of copying and posting large document archives such as the O.C.G.A. (including the Copyrighted Annotations) in order to force the State of Georgia to provide the O.C.G.A., in an electronic format acceptable to Defendant. Defendant’s founder and president, Carl Malamud, has indicated that this type of strategy has been a successful form of “terrorism” that he has employed in the past to force government entities to publish documents on Malamud’s terms. See Exhibit 2.

21.  Consistent with its strategy of terrorism, Defendant freely admits to the copying and distribution of massive numbers of Plaintiff’s Copyrighted Annotations on at least its https://yeswescan.org website. See Exhibit 3. Defendant also announced on the https://yeswescan.org website that it has targeted the States of Mississippi, Georgia, and Idaho and the District of Columbia for its continued, deliberate and willful copying of copyrighted portions of the annotated codes of those jurisdictions. Defendant has further posted on the https://yeswescan.org website, and delivered to Plaintiffs, a “Proclamation of Promulgation,” indicating that its deliberate and willful copying and distribution of Plaintiff’s Copyrighted Annotations would be “greatly expanded” in 2014. Defendant has further instituted public funding campaigns on a website http://www.indiegogo.com to support its continued copying and distribution of Plaintiff’s Copyrighted Annotations. Defendant has raised thousands of dollars to assist Defendant in infringing the O.C.G.A. Copyrighted Annotations.

Terrorism, seriously?  Someone explain to me how this adds to the substance of the complaint.  It’s not as if black helicopters will be circling Atlanta at the end of the trial, not over annotations at least.

Mark

The law library as the lawyer’s laboratory: past, present and future applications of Langdell’s metaphor

Somewhere in my collection of old pBooks is a copy of the first edition of Lakoff & Johnson’s now classic Metaphors We Live By. The law library as the lawyer’s laboratory was not covered there. Dick Danner has in his forthcoming LLJ article, Law Libraries and Laboratories: The Legacies of Langdell and His Metaphor [SSRN]. Here’s the abstract for this highly recommended analysis.

Law Librarians and others have often referred to Harvard Law School Dean C.C. Langdell’s statements that the law library is the lawyer’s laboratory. Professor Danner examines the context of what Langdell through his other writings, the educational environment at Harvard in the late nineteenth century, and the changing perceptions of university libraries generally. He then considers how the “laboratory metaphor” has been applied by librarians and legal scholars during the twentieth century and into the twenty-first. The article closes with thoughts on Langdell’s legacy for law librarians and the usefulness of the laboratory metaphor.

— Joe

New Media Rights launches Fair Use App

The Fair Use App is designed to help filmmakers and online video creators learn more about fair use issues. You can check it out here. — Joe

End of Supreme Court Term Is Not The End of Controversy

I never got a chance to write about the end of the Supreme Court term.  Different commentators have called the term “historic.”  Given the major decisions at the end of term

and a few others, this term provided more controversy than previous terms.  The dissents were fast and furious, with emphasis on the furious.

Justice Scalia observed in the King case:

Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.

And that was one of the nicer passages.  He concluded with:

Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

Justice Scalia called the Court a threat to democracy in his dissent in the Obergefell case.  He further stated:

Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Justice Thomas wrote in his dissent in the Arizona redistricting case:

The ballot initiative in this case, unlike those that the Court has previously treated so dismissively, was unusually democracy reducing. It did not ask the people to approve a particular redistricting plan through direct democracy, but instead to take districting away from the people’s representatives and give it to an unelected committee, thereby reducing democratic control over the process in the future. The Court’s characterization of this as direct democracy at its best is rather like praising a plebiscite in a “banana republic” that installs a strongman as President for Life. And wrapping the analysis in a cloak of federalism does little to conceal the flaws in the Court’s reasoning.

It’s almost as if the two Justices took personal offence at the outcome of each case.

There is no doubt that several of the cases the Court decided were highly charged political issues where the outcome did not end the debate.  Roy Moore, Chief Justice of the Alabama Supreme Court, was very displeased with the same-sex marriage decision.  The Oklahoma legislature is doing its best to opt out of Obamacare despite the ruling in King.

The Court, in theory, never acts politically—in theory. There are multiple stories suggesting that the Chief Justice is solidifying his legacy with successive rulings upholding the ACA.  Gallup reports that the reaction to the Court is dramatically split over political lines. The Court’s job approval rating by Republicans is 18%.  Democrats, on the other hand, give the Court a 76% rating.  Further polls show that support for same-sex marriage is stable after the Obergefell decision with 58% of the population in support.  A majority of Democrats support same-sex marriage at 74% while Republicans are opposed at 67%.  Politics and society have become more and more polarized over the years where it seems to be the norm at this point.  I personally regret that this is creeping into the Supreme Court.

Mark

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