Some Modest Predictions on the Severability of the Individual Mandate

The Court’s decision on the severability of the individual mandate may be the aspect of the PPACA litigation that is most difficult to predict. If the Court holds that the individual mandate is constitutional, then severability won’t be an issue in the first place. If severability does arise, whether and how the Court will sever the mandate is unclear. In part, this is because of problems with severability doctrine itself. Notwithstanding over a century of cases on the issue, the Court has had a hard time settling upon a definitive severability test. Sometimes the emphasis has been on legislative intent. Other times the focus has been on whether the constitutional remainder can function without the invalid part. Still other times the Court has severed or refused to sever without acknowledging the doctrine at all. The oral argument on severability reflected this state of affairs, as the Justices spent a considerable amount of time exploring the merits of several possible tests. Without knowing the doctrine, it is difficult to anticipate a result.

In part, the unpredictability also reflects the absence of a completely satisfying way to sever the mandate if it is unconstitutional. Because the PPACA lacks a severability clause, covers such a diversity of topics, and reflects a variety of legislative compromises, it is hard to identify a clear legislative intent with respect to severability. Because the invalidation of the mandate will render certain aspects of the core health-care reforms financially problematic, it is unsatisfying to focus exclusively on the textual separability of the mandate from surrounding provisions. And because courts are poorly equipped to appreciate the complexities of health care policy, it seems problematic to base severability on anticipated financial implications.

That being said, I think we can reasonably make a couple of predictions about this aspect of the decision. First, if the Court holds that the individual mandate is not severable, that holding will rest on the votes of the conservative Justices, who generally seemed much more skeptical of severability than their counterparts during oral argument.

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Citing to the Record in Briefs

My students are currently finishing up their briefs on summary judgment. We have been discussing the importance of citing to the court filings in a summary judgment motion setting. Here are the major rules from the 19th edition of the Bluebook regarding record citation. “B” here refers to the rules from the Bluepages at the beginning of the Bluebook.

B7.1.1—Abbreviation in General

When citing to other court filings in the same case, abbreviate the titles of those documents and cite a paragraph or page within the document. The 19th edition of the Bluebook permits a writer to choose to enclose the cite in parentheses or not. For now, my preference is to use the parentheses. (What do readers think about this change in form?)

Example: (Jefferson Aff. ¶ 2.) or Jefferson Aff. ¶ 2.

Cites to the record use an “R. at page number” format. Example: R. at 5. or (R. at 5.)

If the citation refers to the entire sentence, it comes after the period in the sentence. Place a period before the end parenthesis.

Refer to B7.1.4 regarding citation with PACER/ECF.

Example: The Plaintiff was driving a blue Ford. (Williams Aff. ¶ 7.)

If the citation only refers to part of the sentence, place the citation within the sentence immediately after the fact supported by the cite. Assuming the sentence contains two cites, place the period for the second citation after the parenthesis to emphasize that the second cite refers to the latter half of the sentence.

Example: Jones was in studying in Chicago (Jones Aff. ¶ 6), and Carson was visiting South Dakota (Carson Aff. ¶ 8).

Example 2: Smith did not observe anything unusual that day (Smith Aff. ¶¶ 2-3), and he received no phone calls from Jones (Jones Aff. ¶ 10). Notice the hyphen in this example to show citation to consecutive paragraphs.

BT.1: Abbreviating Titles of Court Documents

This list should be used in conjunction with B7.1.1 to abbreviate titles of court documents.

Words of more than six letters may also be abbreviated, even if the words do not appear in the list.

Omit articles and prepositions.

Other words in a document title may be omitted if the document can be unambiguously identified.

B7.1.2—Pinpoint Citations

Use a page, paragraph, or line as a pincite (do not use p. before a page number). Separate line and page references with a colon.

Other subdivisions such as paragraphs should be identified. Per Bluebook Rule 3.3(c), use more than one paragraph symbol to indicate multiple paragraphs. Do not put a space between the two symbols (see examples above).

It’s customary to use “at” with appellate record cites, but the 19th edition does not require “at” with other page number references in record cites.

B7.1.3—Date

Use a date to emphasize a significant date or when documents are otherwise indistinguishable, such as when the same person has provided multiple affidavits.

Example: (Elliot Aff. ¶ 7, March 9, 2012) and (Eliott Aff. ¶ 6, March 29, 2012)

B7.2—Short Forms

Use short forms as applicable after the long form is first given.

The Bluebook allows the use of id. with record cites. Id. should be underlined or italicized consistently with other cites in the brief.

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People Who Have Shaped the Teaching Careers of Our Faculty—Part 1

The editors of the blog asked several law school faculty to write about the people who have been the most formative figures in their careers as legal educators. This, the first submission in the series, is by Professor J. Gordon Hylton.

I left law school with no particular intention of becoming a law professor; however, when I did become one 10 years later, my views as to the proper purpose and content of legal education had been significantly shaped by my contact with a variety of individuals. Although I spent most of my first decade after law school in graduate school in History and American Studies and as a teacher of undergraduates, my experiences during those years clearly shaped my future approach to law teaching.

As a legal educator, I have been an advocate of the historical approach the study of law, and early on I had the good fortune to study under and work with a large number of exceptional historians, some of whom specialized in the history of law and some of whom did not.

This group included David Rankin and Thomas LeDuc at Oberlin College, G. Edward White, Chuck McCurdy, and Paul Gaston at the University of Virginia, and David Herbert Donald, Morton Horwitz, Bernard Bailyn, and Alan Brinkley of Harvard University. From all of these, and especially from Professor Donald, I learned that in law, as in everything else, an understanding of the past is a precondition for understanding the present.

The importance of casting the net wide enough to include cultural history in the study of law was brought home to me by my studies in the Harvard History of American Civilization program and especially by my association with Professors Daniel Aaron, Warner Berthoff, and Andrew Delbanco of the Harvard English Department.

I actually began thinking about a career in law teaching shortly after beginning graduate school, and toward that end I enrolled in a Harvard Law School course entitled “Preparing for Law Teaching” during my second year of graduate school. The class was ear-marked for LL.M. students interested in careers in legal education, and it was taught by former Harvard Law School Dean Albert Sacks. The course was conducted in seminar style, and each week a member of the Harvard Law School faculty offered a different class on some aspect of legal education.

While completing my Ph.D., I also served as a teaching assistant for Archibald Cox and briefly as a research assistant for Charles Haar, both distinguished legal scholars and members of the Harvard Law Faculty. Haar was an advocate of incorporating non-traditional historical materials (i.e., those not pertaining to estates in land and future interests) into the study of law, and Cox, of course, was legendary for his role in as the Watergate Special Prosecutor.

Although I didn’t become a law professor until several years later, my first experience as a teacher of law in a university environment came from 1980 to 1982 when I was a Lecturer in the undergraduate Legal Studies program at Brandeis University. Aping the instructional methods of law school, I led undergraduates through an introduction to the legal method based on the same sort of case-based analysis that is associated with the 1L year. In that position, I benefited greatly from my association with Professor Saul Touster, a former law professor who directed the Brandeis program (which was, interestingly enough, housed in the American Studies department).

Because my doctoral dissertation dealt with the development of the American legal profession in the era between the Civil War and the Great Depression, I also dealt regularly with issues pertaining to the history of legal education in my scholarly work. On one occasion, I also was asked to fill in for Professor Cox as the lecturer in his undergraduate course, “The Supreme Court and the Constitution.”

Outside of academia, my experiences as a law clerk for Justices Albertis Harrison and Lawrence I’Anson of the Virginia Supreme Court and my brief stints with the Massachusetts Commission Against Discrimination and the Harvard University General Counsel’s Office all gave me a much better sense of how legal principles and theories operate in the real world, certainly better than the sense that I had coming immediately out of law school.

I was also indirectly involved in legal education while I was in graduate school. In law school at the University of Virginia, I had served for a year as a student assistant to Albert Turnbull, the Dean of Admissions and Placement, and that experience had given me the opportunity to see how the administrative side of legal education operated from the inside. In a similar vein, while in graduate school I was for several years an undergraduate pre-law adviser at Harvard which required me to be knowledgeable about law schools in general and the law school admissions process in particular.

When I actually became a real law professor in 1987 at the Chicago-Kent College of Law, my approach to legal education and legal scholarship had been affected by all of the experiences discussed above. Moreover, my own studies of the history of legal education had convinced me that within the realm of “non-clinical” law schools courses, there were really three different types of courses—first year courses, upper level “doctrinal” courses, and “law and” courses (like legal history)—each with different goals and objectives.

The classroom teaching styles that I initially adopted were, I now realize, very much influenced by several of my teachers at the University of Virginia Law School, especially Tom Bergin (in first year courses), Charles Whitebread (upper level courses) and Ted White (legal history courses).

For teaching materials during the first part of my career, in which I taught only Property, Constitutional Law, and Legal and Constitutional History, I was very influenced by earlier experiences. For example, I used Charles Haar’s Property and Law in my first year Property class; I assigned Gunther’s famous Constitutional Law casebook (which Cox had used) in Constitutional Law, and I constructed my first Constitutional History seminar around Ted White’s The American Judicial Tradition.

During my first year of law teaching, I also benefitted enormously from the opportunity to engage in regular conversations about legal education with my new colleagues Ralph Brill and Randy Barnett. The fact that Ralph and Randy agreed on absolutely nothing in regard to legal education helped sharpen the discussions.

I was also much impressed by Northwestern Professor Anthony D’Amato’s article, “The Decline and Fall of Law Teaching in the Age of Student Consumerism,” which appeared in the Journal of Legal Education (37 J. Leg. Ed. 461 (1987)), during the semester that I began law teaching. Although I had already essentially reached the same conclusion, this article convinced me that the so-called Socratic Method, if used rigorously but fairly, was an extremely effective way of teaching first year law students.

Now 25 years into my law teaching career, I continue to draw upon my colleagues for insight and inspiration, and I learned long ago that the goal of high quality, meaningful legal education is a constantly moving target.

 

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