Connecticut Abolishes the Death Penalty

The campaign to end the death penalty received a boost last week when Connecticut decided to abandon the use of capital punishment.  Connecticut is the fifth state in the last eight years and the seventeenth state overall to do away with capital punishment.

Repeal proposals are being debated in Kansas and Kentucky, and anti-capital punishment groups have also succeeded in getting the issue directly to the voters of California.  An initiative to end capital punishment will be on the California ballot this coming November.

Of course it will take some time before capital punishment is ended in Texas and in assorted states in the Deep South.  But one can be more optimistic than ever before that the United States will eventually end capital punishment. Its continued use is an embarrassment for the nation in the world community.

How irrational, primitive, and bloodthirsty champions of capital punishment seem to this observer.  There is no credible evidence that the possibility of capital punishment has a deterrent effect.  Eye-for-an-eye thinking seems a remnant of Biblical times, if not earlier.  And a genuine and abiding respect for humanity precludes killing even the worst of the wrongdoers among us.

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Poetry About the Law

This month is National Poetry Month, as noted by Professor Lisa Mazzie and Professor Bruce Boyden in their blogs.

Those of you who are interested in both poetry and law would enjoy reading Poetry of the Law: From Chaucer to the Present, edited by David Kader and Michael Stanford. Many poems selected for the anthology address some aspect of civil or criminal trial law. The following poem by William Cowper is about a property dispute.

William Cowper (1731-1800)

The Case Won

Two neighbors furiously dispute
A field the subject of the suit;
Trivial the spot–yet such the rage
With which the combatants engage,
‘Twere hard to tell who covets most
The prize, at whatsoever cost.
The pleadings swell.  Words still suffice;
No single word but has its price;
No term but yields some fair pretence
For novel and increased expence.

Defendant, thus, becomes a name
Which he that bore it may disclaim,
Since both, in one description blended,
Are plaintiffs when the suit is ended.

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Why the Supreme Court Should Uphold the Individual Mandate

This afternoon, I participated in a debate with Rick Esenberg at the Marquette University Law School.  The debate was co-sponsored by the American Constitution Society and the Federalist Society.  I was asked to defend the constitutionality of the individual mandate imposed by the Affordable Care Act.  What follows are my prepared remarks.

Historians tell us that the connection between access to health insurance and employment was an accident. During World War II, wage and price controls prevented employers from increasing cash compensation for their workers. Employers wishing to recruit workers began to offer subsidized health insurance benefits as a way of avoiding this freeze on wages.

This is not a gift to workers from employers. We all pay for our health insurance with our labor. In return for our labor, we receive a combination of cash, employer provided benefits and non-cash prerequisites. The amount that employers pay towards our health insurance premiums is part of our income, which is why we are taxed on our employer-provided insurance above a certain level. The government encourages employers to offer health insurance benefits by allowing the employer to deduct these expenses as a business expense. About 60% of us receive health insurance through our employer.

The elderly and the disabled are not physically capable of working. Employer-based health insurance does not work for them. They receive their health insurance through Medicare. Participants pay certain deductibles and co-payments, but the bulk of the cost is imposed on the rest of us in the form of a payroll tax and the government then pays medical providers.

So our health insurance system has become tied to employment. As the costs of health care rise, it is increasingly difficult for middle and lower income Americans to afford health insurance unless they get it through an employer. This is because, as I mentioned, an employer will partially subsidize the cost of the premium as a component of total compensation. In addition, an employer can offer access to a plan that includes many other workers, thus broadening the risk pool and lowering the overall premium for each worker. An individual who seeks to purchase health insurance on their own gets neither of these two advantages. As health care costs continue to rise (an annual increase of about 8% in recent years), this cost differential becomes more significant.

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