Ribble and Pocan: Political Opposites Find the Attractions of Working Together

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Category: Congress & Congressional Power, Political Processes & Rhetoric, Public, Speakers at Marquette
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Reid Ribble says that when Mark Pocan was elected to the House of Representatives in 2012, Ribble was told by some Republican legislators in Madison he should reach out to Pocan.Ribble said then-Rep. Tammy Baldwin did the same for him when he was elected in 2011.

So Ribble contacted Pocan, and the two developed a friendship that has seen them work together in friendly, civil ways, including in the work of the House budget committee, on which they each serve.

What’s so unusual about that? Only this: Ribble is a Republican who represents the Appleton-Green Bay area in Washington. He is a self-described conservative with a libertarian bent. Pocan is a self-described progressive liberal Democrat who represents the Madison area. (For that matter, Baldwin, who helped Ribble on his arrival and who is now a senator, is one of the most liberal members of Congress.)

You just don’t do that cross-the-aisle stuff in the divisive, highly partisan atmosphere that surrounds Congress.

Or do you? Ribble and Pocan are now leading figures in a growing effort called the No-Labels Problem Solvers, which brings together members in the House and Senate from both parties in informal social settings, just to get to know each other. Ribble was one of the four initial members of the group, which has grown to more than 90, including two other Republican representatives from Wisconsin, Sean Duffy and Tom Petri.

At an “On the Issues with Mike Gousha” session Monday at Eckstein Hall, Pocan and Ribble described the effort and their hopes that it will change the way Congress handles many issues and raise the low-opinion so many Americans have of Congress. Read more »

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Stare Decisis for Interpretive Methods?

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Category: Judges & Judicial Process, Legal Scholarship, Public, U.S. Supreme Court
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Supreme CourtAlthough the Supreme Court decides dozens of cases every year, it has never decided how to decide those cases. That is, the Court has never adopted a governing approach to constitutional interpretation. Instead, the justices seem to bounce from one method to the next, even when considering the same subject matter. What explains this methodological pluralism? Why doesn’t the Court consider itself bound under the doctrine of stare decisis not only to follow the substantive results of earlier constitutional cases, but also the methodological tools it used in getting there?

Chad Oldfather has a new paper on SSRN that explores the answers to these questions, Methodological Pluralism and Constitutional Interpretation. Here is the abstract: Read more »

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Unanimous Supreme Court in Heimeshoff Permits Contractually-Based SOLs in ERISA Denial of Benefit Cases

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Category: Labor & Employment Law, Public, U.S. Supreme Court
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CourtThis morning, the United States Supreme Court issued its decision in Heimeshoff v. Hartford Life & Accidental Life Ins. Co., concerning statute of limitation accrual issues for benefit claims under Section 502(a)(1)(B) of ERISA.

The Court unanimously held that Hartford’s Long Term Disability Plan’s requirement that any suit to recover benefits be filed within three years after “proof of loss” is due is enforceable.  More specifically, “[a]bsent a controlling statute to the contrary, a participant and a plan may agree by contract to a particular limita­tions period, even one that starts to run before the cause of action accrues, as long as the period is reasonable.”  Causes of action for benefits under ERISA do not start to accrue until a final internal appeal decision.  Because Heimeshoff failed to file a claim for long-term disability ben­efits with Hartford within the contractual SOL period, the Court concluded her claim was rightfully denied by Hartford.

While ERISA does not provide a statute of limitations for denial of benefit claims, many plan administrators have in place a contractual 3-year limitations period like Hartford’s.  Read more »

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Thoughts on the Holder Address: Two Cheers for the New Paradigm

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Public
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In August, Attorney General Eric Holder delivered a widely noted address to the American Bar Association that seemed to promise significant changes in federal prosecutorial policies.  I wrote these reactions for the Federal Sentencing Reporter.

Following decades in which the U.S. Department of Justice has consistently advocated for a rigid and harsh legalism in criminal justice policy—in which DOJ, in the name of abstract principles of national uniformity, has willfully disregarded the devastating impact of its charging, plea-bargaining, and sentencing practices on real-life human beings—Attorney General Holder’s ABA address seems a breath of fresh air. He calls for a more flexible federal criminal justice system, in which prosecutorial charging priorities are more specifically tailored to meet local needs, in which sentencing is more individualized to the offender and prosecutors sometimes forego mandatory minimum sentences, and in which individual U.S. Attorney Offices experiment with new diversion programs as an alternative to conventional case-processing. Holder believes—correctly, I think—that a more flexible and pragmatic system can achieve better public-safety results at less cost than a system in which preserving the integrity of the federal sentencing guidelines is the overriding value.

Through Holder’s address, DOJ offers its most prominent and unequivocal endorsement yet of an emerging new criminal justice paradigm.   Read more »

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Much ERISA Fun at the Supreme Court Today: Heimeshoff and Benefit SOL Accrual Issues

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Category: Labor & Employment Law, Public, U.S. Supreme Court
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Supreme_CourtOK, hold onto your seats for some flat-out ERISA law excitement. This morning, the United States Supreme Court heard oral argument in Heimeshoff v. Hartford Life & Accidental Insurance Co. [Briefs at SCOTUSblog], concerning statute of limitation accrual issues for benefit claims under Section 502(a)(1)(B) of ERISA.

RossRunkel.com, as always, gets to the heart of the matter (which is really impressive when you consider it is ERISA after all):

Heimeshoff’s disability policy, administered by Hartford, says that a court suit for wrongful denial of benefits has to be filed within three years of when the claimant files a proof of loss with the plan administrator.

That can be tough, given the fact that it’s possible for the three-year period to begin to run before the claimant has gone through the administrative procedure that must be followed before bring a suit. I suppose it’s even possible in some cases that the three years would run out before the claimant got a final denial. Read more »

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New “Marquette Lawyer” Magazine Offers Insights from Paul Clement

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Category: Education & Law, Federal Law & Legal System, Federalism, Health Care, Legal Practice, Marquette Law School, Public, Speakers at Marquette, U.S. Supreme Court
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Paul Clement has argued some 70 cases before the U.S. Supreme Court. He was solicitor general of the United States and now, in private practice, continues to present arguments in some of the most important cases of our time.

In the cover story in the new “Marquette Lawyer” magazine, Clement discusses some of the cases he’s been involved in, particularly the momentous Affordable Care Act decision of 2012 and several national security cases. He talks about what it is like to make an argument before the Court and especially what’s needed to prepare for an argument.

Clement’s thoughts were offered during his visit to Marquette Law School on March 4, 2013, when he delivered the annual E. Harold Hallows Lecture and held a special “On the Issues with Mike Gousha” event for law students. (Video of the lecture is available here and of the “On the Issues” here.)

Also in the new issue, an article describes the complex legacy of a class action lawsuit challenging how Milwaukee Public Schools deals with students with special education needs. Even as plaintiffs lost the case in court, they succeeded in influencing changes that they favored.

Professor Phoebe Williams is featured in a profile story in the magazine, and the success of the Law School’s faculty blog is marked with a compilation of pieces written by Professor Daniel D. Blinka; Mike Gousha, distinguished fellow in law and public policy; and State Public Defender Kelli S. Thompson, L’96 . Read more »

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Two Americas

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Category: Congress & Congressional Power, Health Care, Public
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The federal government is now shutdown. What happens next is anyone’s guess, especially since we hit the debt ceiling in two weeks and still have to pass an actual budget to fund the government. To get out of the current stalemate, one compromise that has been floated is for Congress to pass a continuing resolution – funding the government until November – along with the “Vitter amendment.” The Vitter Amendment would prohibit Congress from exempting itself from Obamacare. So what is the controversy over Congress and its staffers having to purchase healthcare on the exchanges? What are the issues with Congress exempting itself from Obamacare? And what does it say about our legislature?

In 2009, during the peak of the legislative debate over healthcare reform, Senator Chuck Grassley (R) inserted an amendment in Obamacare that required all members of Congress and their staffers to purchase health insurance on the newly-created health insurance exchanges. Of course, members of Congress wouldn’t be alone in doing this. Starting today, millions of Americans are utilizing the exchanges. Read more »

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Could Lincoln Have Been Defeated in 1860?

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Category: Legacies of Lincoln, Political Processes & Rhetoric, President & Executive Branch, Public
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This is another in a series of posts marking the sesquicentennial of the Emancipation Proclamation.

No presidential election in American history has been as pivotal as the election of 1860. Had any one of Abraham Lincoln’s three opponents been elected president in November of 1860, South Carolina would clearly not have seceded from the Union on December 20, and it and its six compatriot Deep South states would not have formed the Confederate States of America on February 8, 1861.

(Technically, Texas, one of the seven seceding states, did not join the Confederacy until the first week of March.)

Of course, one of the anomalies of that election was that Abraham Lincoln won a solid majority in the Electoral College, even though he received only 39.7% of the popular vote. The remaining 60+% was divided between the Northern Democrat Stephen Douglas of Illinois (29.5%), the Southern Democrat James Breckenridge of Kentucky (18.2%), and Tennessean John Bell (12.6%), who was the candidate of the Constitutional Union Party, essentially an effort to revive the defunct Whig Party.

While receiving only a plurality of the popular vote, Lincoln nevertheless won a substantial majority in the Electoral College, totaling 180 votes compared to 72 for Breckenridge, 39 for Bell, and only 12 for Douglas. Read more »

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In Case You Missed It: We’re Still Heading Towards a Debt Crisis

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Category: Congress & Congressional Power, Federal Law & Legal System, Political Processes & Rhetoric, Public
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These past few weeks have seen their share of crisis and controversy in the nation’s capital. But, yesterday’s news from the CBO is significant and should not be missed. It will play a major role in the debt ceiling and budget debates that will highlight the next two months.

Yesterday, the non-partisan Congressional Budget Office (CBO) released its annual report on the long-term budget projections for the federal government. Their conclusion: despite the sequestration cuts and tax hikes on the rich from last year, the United States is still on a path towards a debt crisis because we have not reigned in our spending on entitlements.

According to the CBO, “[t]he $2.1 trillion in spending cuts passed by Congress in 2011 won’t curb the growth of entitlements that poses a fiscal-crisis risk in the next 25 years.” (Bloomberg). Consequently, by 2038, the public debt will be equal to the total output of the U.S. economy. And as The New York Times described it, “lawmakers have been cutting the wrong kind of federal spending as they try to avoid the unsustainable buildup of debt that is projected in the coming decades.”

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The Class Action Fairness Act: History, Uses, and Differences from Traditional Diversity Jurisdiction

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Category: Civil Procedure, Federal Civil Litigation, Public
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In 2005, Congress passed the Class Action Fairness Act (“CAFA”) in order to grant class action litigants in diversity cases easier access to the federal courts. The re-formulated sections under 28 U.S.C. § 1332 created a lower threshold to gain access into the federal courts for both the plaintiff class members, and the perspective defendants wishing to remove to federal court. Congress passed these new provisions in order to “restore the intent of the framers of the United States Constitution by providing for Federal court consideration of interstate cases of national importance under diversity jurisdiction.” In its deliberations over the bill, Congress specifically found that certain litigants used the previous jurisdictional regime to create many situations whereby certain cases with national importance did not qualify for federal jurisdiction based upon diversity. Additionally, Congress sought to address the age old concern of discrimination against out-of-state litigants.

Congress also mentions in its findings and purposes prelude to CAFA that over the previous decade (1995 – 2005), abusive practices of the class action device caused numerous harms, thus justifying this remake of the class action jurisdictional regime. But why in 2005? Perhaps because Congress wished to respond to the vast amount of litigation against insurers stemming from Hurricane Katrina, which made landfall in August of 2005. Perhaps because in 2005, Republicans held a majority in both the House and the Senate (and held the presidency), and as a general matter, the Republican Party, rightly or wrongly, is viewed as anti-plaintiff. In this view, Republicans wanted to allow insurance companies greater opportunities to remove to federal court (which is also seen, rightly or wrongly, as somewhat less pro-plaintiff than many state courts). Whatever the true reasoning, Congress did pass CAFA, and some of CAFA’s provisions are worth noting.

CAFA grants federal jurisdiction (through diversity) to class action cases where: (1) the amount in controversy, in the aggregate of all of the class members, exceeds $5,000,000 and (2) in a controversy in which ANY member of the class of plaintiffs is diverse from the defendant. CAFA then defines class members as those persons, named or unnamed, who fall within the definition of the proposed or certified class in a class action. Based on these threshold rules, a defendant could rather easily assert diversity from one of the unnamed or proposed class members. The removing party need not identify the diverse class member, but merely show by a preponderance of the evidence, using the face of the complaint or summary judgment type evidence, that it is reasonable to believe at least one class member maintains diversity from the defendant. Hardly a high hurdle to clear. However, several important subsections to CAFA help to qualify these basic underlying tenets, and may impose at least some further obstacles to navigate as a removing party. Read more »

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Is It Time to Expand the Size of Congress?

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Category: Congress & Congressional Power, Political Processes & Rhetoric, Public
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Seal of US House of RepresentativesOn August 8, 1911, President William Howard Taft signed a bill authorizing an increase in the size of the House of Representatives from 391 members to 433. A provision in the bill also provided that two additional members would be added in 1912, following the scheduled admission of New Mexico and Arizona as the 47th and 48th states, and thereby raising the size of the House to 435, which is still the size of the House.

This means that since the admission of Arizona as the 48th state on Valentine’s Day, 1912, the size of the House of Representatives has remained unchanged for the 101.5 years. (The admission of Alaska and Hawaii in 1959 increased the size of the United States Senate from 96 members to 100, but a decision was made at that time to keep the size of the House at 435.)

The 1910 Census reported the population of the United States as slightly more than 92 million people. In comparison, the figure for 2010 was slightly less than 309 million, an increase of more than 330%. This means that every Congressman today represents more than three times as many people as his or her counterpart of a century ago. Read more »

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Are There Three Factions on the United States Supreme Court?

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Category: Federal Law & Legal System, Public, U.S. Supreme Court
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SCtThe way that the media reports on the Supreme Court, one gets the impression that the Court is divided into two intractable four-justice blocs, with Justice Anthony Kennedy deciding most of the cases by swaying back and forth between the two blocs.

(Under this interpretation, the conservative block is made up of Chief Justice John Roberts, as well as Justices Alito, Scalia and Thomas, while the liberal bloc includes Justices Breyer, Ginsburg, Kagan, and Sotomayor.)

Using data compiled from the SCOTUS blog regarding the Court’s 5-4 decisions since the appointment of Chief Justice Roberts, the Court actually divides into three three-justice blocs: Read more »

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