Author Archives: Michael Froomkin

When Is a Tax Not a Tax?

Posted on June 28, 2012 by Michael Froomkin

The Supreme Court has upheld the very large majority of the health care bill. In particular, it upheld the individual mandate 5-4 (with Roberts, without Kennedy) on the grounds that it is a tax — having rejected it as a valid application of the Commerce Clause.

But for purposes of the anti-Injunction Act (always my favorite grounds for decision, but pretty clearly not a winner after its reception below not to mention the oral argument and the Administration’s attempt to disclaim the argument), the individual mandate is not a tax.

That sounds odd. But the opinions are long, and I need to read them to see how that happened.

Update: The answer seems to be statutory interpretation — Congress gets to say when things (tax or not) are covered by the anti-injunction act, and the five Justices in the majority don’t see Congress as intending that result here given the choice of the word “penalty” for the mandate’s fines while “tax” was used elsewhere. The principle asserted is that for Constitutional purposes the Court must look through Congressional labels to see what things really are, but that for statutory interpretation involving the interplay of different statutes, in principle Congress gets to call things whatever it likes and here the Court is reading in the not-a-tax-for-anti-injunction-purposes meaning from the statutory word choices.

Posted in Law: Constitutional Law, Law: The Supremes | Comments Off on When Is a Tax Not a Tax?

It’s SCOTUSBlog’s Health Care Moment

Posted on June 28, 2012 by Michael Froomkin

Like much of the US legal world, I’ll be following the liveblog at SCOTUSBlog this morning to see what the Supreme Court does to representative government. SCOTUSBlog says they spent $25,000 just beefing it up to handle the slashdotting they expect to get around 10am today.

Fortunately, there’s a way to turn off the horrible little clicking noise their liveblog makes ever time one of the participants posts something.

I don’t know if I’ll have anything to say about the decision after it issues; that depends in part on what it says. Given the mountain of instant commentary there surely will be, I rather suspect I may not have much to add.

On pure precedent, the case should be a no-brainer for upholding the statute. The strongest case for anything less is that Wickard, one of the best cases for upholding it, is something of an outlier. It’s possible to see Wickard as an unwelcome guest at the Commerce Clause table, as the rule in that case seems so broad that there are almost no limits on the Commerce Clause. My own view, however, is that even without Wickard, the health care law passes muster because I think Chief Justice Marshall set us on that path when he tied the Commerce Clause’s reach to the reach of the national market. As the nation’s markets have become truly national in more and more areas, Congressional power has, I believe, grown with it.

I am not that interested in the debate over whether this is what the Framers, or the Ratifiers, expected. I think that John Marshall’s views in this area have become, and should be, authoritative and are hallowed by time even if they may have represented something of a Federalist coup (or time bomb) when delivered. I would say the same about Marbury v. Madison. I do not mean to suggest here that Marshall’s views can never be overruled, only that there has yet been no good reason to do so, and this is not it. Indeed, principles of subsidiarity counsel that national issues should be regulated nationally; health care is clearly such an issue given its economic impact and the national effect of both failures of health care (e.g. epidemics) and of health care financing.

A purely political ruling, whatever its nature, would be a sad thing for the Nation. We have in the past decade or so eaten a great deal of our moral and intellectual seed corn, a fact reflected in poll results showing declining confidence in our institutions. Bush v. Gore has made me unwilling to teach Constitutional Law, and makes even Administrative Law harder at root. Legitimation is valuable; legitimation crises are painful.

Posted in Law: The Supremes | 5 Comments

Good Companies

Posted on June 27, 2012 by Michael Froomkin

At some point during the past Spring semester I made a snarky comment during a class about one of the corporate parties in a case or a hypo, and a student challenged me to name a corporation I liked. Which seemed like a fair demand — especially as it took me some effort. In a way, that shouldn’t be surprising: in capitalism red of tooth and claw, a corporation that is liked may be leaving some consumer surplus on the table that it maybe should be grabbing and turning into producer surplus. Then again, perfect price and service discrimination is not yet possible: so, assuming I am not the absolutely average consumer even in the mythical world of free and perfect competition there ought to be some firms whose delivery of goods and services is sufficiently great as to give me some warm fuzzies.

I was reminded of this because a very pretty and inexpensive table we bought just a few years ago — from a store we will not be going back to — is showing signs of imminent collapse. To replace it we recently ordered a table from one of my favorite local companies, written before. And we recently celebrated our 23rd wedding anniversary at a fabulous local restaurant that we go to only for the most special occasions.

Of the big national firms that I deal with, the ones that I think I do the best job and are most pleasant to deal with are, in alphabetical order:

  • Aetna. It may be strange to list a health insurance company, and in part this may be a case of exceeding very low expectations. And, yes, the premiums have gone up a lot over what we paid a decade ago. But for that money we seem to have gotten a good policy. Aetna paid out pretty well when I had my aortic valve troubles – there was only one piece of attempted unreasonable behavior and we got it sorted quickly; financially the end damage was more like buying a new car than a new house (or, at the rack rate, waterfront property). When I call them for assistance with something billing-related, the people on the phone are usually (not inevitably, but almost always) not just friendly but competent and efficient.
  • Costco. Too far away, and I doubt we actually save money there, but we sure eat better when we shop there. Staff at checkout work like beavers to get you through.
  • GEICO. Yes, another insurance company. Hands down the best phone service from any company I deal with. Plus, they have done things that I didn’t expect and saved me significant money. Example: They don’t charge anything extra for a teen driver when your teen is in college, even if he spends the summer at home; I would have expected something pro-rata.
  • UPS. I get a lot of packages. They are almost never late, and in 20 years even more rarely lost. The tracking system online is excellent. The driver who comes to our house is always very pleasant. The prices seem reasonable when I want to ship something. So they always park illegally downtown — no one is perfect.

I was tempted to add Whole Foods to the list, because I love their cheese and the staff are nice, almost creepy nice, but the prices are so absurdly high that I don’t go often. Similarly, the rare times I’ve dealt with Williams-Sonoma it’s been great, but pricey. And the experience of dealing with Puget Systems to buy the computing equivalent of a noiseless Ferrari for the kids’ gaming machine (had to be silent as it would be in the family room) was excellent. The product was beautiful, indeed noiseless, and I’ve never seen such fine cabling and documentation. It really felt like a luxury product and luxury purchasing experience, but I still can’t believe how much I paid for it. Or that I’d like another one for myself.

I ought also to mention a small software company, Thornsoft, the makers of Clipmate. Not only is this probably the single most useful piece of productivity software I’ve relied on for about 20 years, but on the rare occasions I’ve had a problem and emailed support, I’ve had a prompt responsive helpful reply from the programmer himself, Chris Thornton. Great stuff.

Plus, as I mentioned recently, I’m a big fan of the Gables Stage, although I don’t know if this counts as it’s a non-profit.

Notably absent from the list above are any banks, and any electrical or air conditioning maintenance/repair companies. I don’t seem to have much luck with those.

What are your favorite national or South Florida firms, winners not just in terms of price/quality but also in terms of quality of customer service?

Posted in Econ & Money, Shopping | 2 Comments

Local Food Note Update

Posted on June 22, 2012 by Michael Froomkin

In response to yesterday’s Local Food Note I had a chirpy email from a person who asked to be identified only as “a Shake Shack representative” saying that the Shake Shack opening near the UM campus is planned for “mid-to-late July.”

(Sadly, no promotional considerations were offered for this message.)

Update (6/24): Drove by today and it looks as if some construction is underway.

Posted in Coral Gables | 2 Comments

Local Food Note

Posted on June 21, 2012 by Michael Froomkin

Some time ago I blogged about the death of the Smoke’t near the UM campus which was to make way for a Shake Shack. I drove by the other day, and it didn’t look like a lot was going on there. Online, however, I learn that Shake Shake is due to open here in “June 2012”, which would be…now? On the other hand, the official Shake Shake page just says “this summer”. But Craigslist has them hiring. So maybe soon?

From Danny Meyer, the founder of the chain, I find that we’re going to be part of an odd pairing:

We’re going into Coral Gables, Florida, right across from the University of Miami. We’re going into New Haven, just adjacent to Yale.

Which I think will make us the only two universities outside New York City with one near by.

As for Smoke’t (I never noticed the apostrophe before — I thought of it as “Smoke T” not “smoked”), rumors of its rebirth in South Miami are not confirmed by their website, which says nothing about any relocation or reopening.

Posted in Coral Gables | Comments Off on Local Food Note

UM Law Employment Numbers Are Much Better Than In Erroneous ABA Report (Updated) (Again)

Posted on June 19, 2012 by Michael Froomkin

Last year’s class’s employment numbers for the University of Miami School of Law are not wonderful, but they’re not hideous either. They are much better than reported by the ABA and echoed all over the internet today.

I have no idea if the error was in UM’s reporting or the ABA’s transcription, but I do know that the summary I saw in the National Law Journal’s report this morning, based on ABA data, does not have the correct numbers. [Update: The ABA admits it was their “transcription error” and is correcting it.]

Here are the correct data:

There were 385 graduates in the class of 2011.

Of these, 369 are known to be employed (369/385 = 95.8%). But, of that 369 with jobs, only 280 (75.9% of those with jobs, 72.7% of the entire class) are employed in jobs that required bar passage, 33 (8.9%) were employed in jobs where the JD was an advantage, 11 (3%) were employed in “other professional” positions and 4 (1.1%) were employed in “non-professional” jobs.

This 72-76% of the class with law jobs (or if you prefer the 313 with law-related jobs, 84.8% of job-holders, or 81.2% of all graduates), is well above the national average, even if it’s still lower than we’d like. Nationally,

Slightly more than half of the class of 2011 — 55 percent — found full-time, long-term jobs that require bar passage nine months after they graduated, according to employment figures released on June 18 by the American Bar Association.

The NLJ reports that we hired 23% of our own grads. I knew that couldn’t be right — nearly one out of four? where did we put them? — and sure enough, it’s not true. Somehow something got double-counted in the “law school/university funded position” row of the report. That report shows we hired 88 grads, but the correct number is actually half that: Last year, we hired 44 of our own grads (11.4%) for short or long-term jobs. The lion’s share of them were hired by the Legal Corps where they get placed with non-profits or governments and get work experience. While it’s too soon to know the results for the class of 2011, their predecessors in the class of 2010 did very well out of this experience, with many parlaying it to full-time employment.

I’m told that the error in the ABA form (I’ve attached a copy of the erroneous form) seems to be in the “part-time long term” law school funded box, where the ABA report has 44. The actual number is zero, making the total of that row 44, not 88. Thus, even if one takes out the 44 people from the 313 with law jobs (and I’m not sure one should, since the Legal Corps often does lead to permanent work), that still leaves 269 with law jobs, or 69.9% of the entire class. That is not at all good — but it still beats the national average of 55% by a decent margin.

I doubt this correction will ever catch up with the inaccurate info, but there it is.

Posted in Law School, U.Miami | 4 Comments