Archive for Wednesday, June 20, 2012

Thoughts while awaiting ruling

June 20, 2012


Every so often rather than devote a column to a single subject I try to cover a variety of current legal issues. I’m going to use that format today.

To start with is a subject on the minds of millions of Americans: the Supreme Court decision in the challenge brought against the Affordable Care Act (often referred to as “Obamacare” by its critics). There is still no news from the high court. It’s difficult to know just what that means other than, perhaps, Chief Justice Roberts has an appreciation for letting suspense build. It’s possible that the court will publish its opinion this week. If it doesn’t, that means that the decision, if it is to be released at all this term — something everyone believes will happen — will come next week.

In the meantime speculation is all over the news. Most commentators and jurists think that one of three things will happen: 1) The court will strike down the mandate and very little else, leaving much of the law in place; 2) The court will strike down the whole law; 3) The court will strike down the mandate and some of the law, but leave the rest in place. Of course, a few people still believe that the court will uphold all of the act, but the betting is on at least some of the law’s demise.

Whatever the court decides to do, it seems probable that the decision will cause a flurry of political moves by both the Republican and Democratic candidates and will probably require action by Congress. Two other interesting possibilities also exist. First, this will give us all a chance to rate the hundreds of commentators as to how good their predictions were. Second, whoever is on the losing side of the decision will attack the court for its reasoning.

On a totally different subject, Roger Clemens was acquitted Monday on all counts of perjury charges. For those of you who don’t follow the legal side of sports, Clemens was accused of lying to Congress about his use of performance-enhancing drugs. While I certainly don’t condone the use of such drugs, I have to say that I’m quite happy about the verdict.

Clemens is one of the 20th century’s greatest baseball stars and was, prior to these accusations, a true American hero. I’m afraid that I’m just a bit tired of prosecutors and Congress spending vast amounts of their time going after sports figures for drug use, let alone for allegedly lying about such use. These days we have too few heroes as it is. I hope that we can soon see an end to these investigations and prosecutions unless the evidence against the accused is really undeniable.

Finally, for those of you contemplating going to law school or who have been to law school already, there’s a new book out by a law professor at Washington University in St. Louis, Brian Tamanaha, that is likely to be the summer’s “must read.” In “Failing Law Schools” Tamanaha analyzes the current state of American legal education and finds it to be nothing short of scandalous. The book is a stinging indictment of current legal education, its methods, its financing and its public role. I suspect that every American law professor and many law students will be reading and talking about this book in the months to come. I’ll be discussing it in more detail in a later column.

— Mike Hoeflich, a distinguished professor in the Kansas University School of Law, writes a regular column for the Journal-World.


cato_the_elder 5 years, 11 months ago

Regarding Roger Clemens, the Justice Department was essentially forced to go after him by the diminuative (both in body and in mind) Henry Waxman, long-time liberal Democrat House member from California, when the Democrats controlled Congress. It's been a colossal waste of time and money, but that's never bothered Waxman in anything he's helped to inflict on America.

just_another_bozo_on_this_bus 5 years, 11 months ago

"1) The court will strike down the mandate and very little else, leaving much of the law in place; 2) The court will strike down the whole law; 3) The court will strike down the mandate and some of the law, but leave the rest in place."

I'm betting on 2). Almost the whole bill is a retread of Republican ideas, the mandate in particular. And the mandate is there strictly to appease the insurance industry, who only went along with all the other provisions because of that mandate-- and whatever the insurance industry wants, Republicans (including those on the SC) deliver.

jafs 5 years, 11 months ago

I bet you're wrong.

It'll be 1 or 3, with very little else being struck down.

There's really no justification for striking the entire law, since most of it involves regulation of insurance companies, which is well within the federal government's scope by modern usage of the ICC, and there are lots of precedents around for it.

just_another_bozo_on_this_bus 5 years, 11 months ago

The main way that the rest of the bill gets financed is through the mandate. Strike down the mandate, and the expense of the rest of it gets pushed off on the insurance companies. That means that 1 is definitely not a possibility, but 3 might be. The trick will be concocting a constitutional basis for whatever they do-- not that this court is above creating whatever they want, and throwing it to stick on their hallowed halls.

jafs 5 years, 11 months ago

I'm sorry, but I don't consider sports figures heroes, by any stretch of the imagination.

If they're using steroids, and from what I've seen, many are, why not prosecute them?

Mike Hoeflich 5 years, 11 months ago

Jafs: I suppose that I may be reflecting my age. When I grew up in NYC in the 50s the best days I ever had were those spent at Yankee Stadium. Every kid I knew wanted to be a baseball player, not because we wanted to be rich--baseball player salaries were often so low in those days that the players had other jobs in the off season--but because of the mythology that surrounded the game. I still get teary-eyed when I watch certain older baseball movies. To many in my generation, players were heroes. I suppose that may not be true today for most kids. Also, I don't disagree with you that if players use illegal drugs they should be tried and punished. On the other hand, I don't think that seeing justice done was the motivation in the Clemens prosecution and the jury obviously agreed.

jafs 5 years, 11 months ago

Well, I'm no "kid" - turning 51 this September.

But, I've never believed in the "mythology" of sports.

Mike Hoeflich 5 years, 11 months ago

Jafs: I understand your position. Perhaps, it might have been different if you'd been able to sit in Yankee Stadium and watch Mantle and Maris play, let alone attend an Old Timers Day there and see Dimaggio...

JackMcKee 5 years, 11 months ago

I assume in your libertarian paradise the mandate will be struck down, eh Mike?

Leslie Swearingen 5 years, 11 months ago

Mike, I am with you. I love baseball. You can tell when a player is in the moment and living the game and not thinking about how much money he is making. Sports at its best is magnificent, the player thinking, feeling, calculating a thousand possibilities and the best way to react to them. While one player is making a move so is everyone else. It is like a dance that is improvised yet choreographed. I love my baseball and by the way I am a Red Sox fan.

uconnjay 5 years, 11 months ago

Roger Clemens a hero? Jeez, he's a preening, arrogant bully, and a serial adulterer at that! And, a "not guilty" in a court room is a long way from meaning "innocent".

Orwell 5 years, 11 months ago

The prosecution of Roger Clemens as a legal issue had very little to do with steroids in sports; instead, it was motivated (and required) by the need for oaths to mean something. If sworn witnesses (worse, famous sworn witnesses) can lie with impunity both congressional hearings and the entire trial system are degraded. Without the possibility of prosecution an oath to tell the truth is reduced to "Yeah, maybe." Every witness becomes Frankie Pentangeli, willing to say whatever is necessary to accomplish an external objective

It doesn't matter that Clemens was acquitted; once there was credible evidence he'd lied under oath his prosecution was necessary to support the rule of law. The problem, if any, was with Congressional showboats (of both parties) who wanted camera time. They chose to put Clemens under oath in the first place when there was so little likelihood Congress would act on drug use in sports.

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