The Affordable Care Act and your Job

The Affordable Care Act contains lots of benefits for employees. Apart from the promise that all Americans will finally be covered by insurance, the plan specifically offers: a guaranteed minimum level of service, extended coverage for college-age children; no pre-existing condition exclusions, one-stop shopping, and subsidies for underpaid workers. In a country whose healthcare system is based — for better or worse — on the free market, the ACA levels the playing field for poorer citizens.

Image Credit.

As the market absorbs the newly insured, this coverage will lead to better access to medical services which will lead to better health for individuals. With more healthy individuals will come productivity gains because of fewer sick days and a more employable workforce. There's are some issues to be critical of, but the ACA is a vast improvement over the prior dog-eat-dog scheme.

One of the surprising benefits of the ACA is an increased flexibility for workers chained to jobs for health coverage.

Texas Republican John Cornyn took to the Senate floor with the same message. "The president's own health care policy ... is killing full-time work, and putting people in part-time work," he said.

Obama's White House wasted little time responding, sending Council of Economic Advisers Chairman Jason Furman to the daily press briefing. There, Furman turned Cornyn's charge on its head, arguing that if some people are able to work part time and spend more time with their children, or if others can leave a job to start a business of their own without fear of losing health insurance, then these are good things happening because of the Affordable Care Act. 

"This is a choice on the part of workers," Furman said. "I have no doubt that if, for example, we got rid of Social Security and Medicare, there are many 95-year-olds that would choose to work more. I don't think anyone would say that was a compelling argument to eliminate Social Security and Medicare," Furman said.

(See "More Access to Health Care means Millions can Quit or Cut Hours," NPR February 4, 2014.)

A person who wants or needs to work less, no longer has to sit in a job she hates. This leaves the job open for a new worker to take her place. Thus, the ACA benefits both the worker who enjoys the healthcare plan and the worker who might not otherwise find the job she was looking for.

KARIN WARREN: I was experiencing some pretty heavy job burnout. It's a very stressful job, and I was very unhappy. 

YDSTIE: It was made worse by a bout of breast cancer in 2012. Warren, who's single, wanted to work less, but couldn't. She needed her employer-sponsored health insurance. Then in November of 2012, when President Obama was reelected, Warren says she realized the Affordable Care Act would be implemented, and her situation could change. 

WARREN: I cried that night. I was so happy, because I knew that was my ticket to freedom. 

YDSTIE: She quit her job early in 2013, insured herself through Cobra, and then got covered by Obamacare in January of this year. 

WARREN: So, now I'm working happily a half-time job. I'm more relaxed and feel healthier than I did before. And my health insurance is in place and it's affordable, and I'm in bliss.

"MIT labor economist David Autor says that the CBO is right: the ACA will incentivize some people to work less. ... the Affordable Care Act will actually have the effect of reducing hours worked by the equivalent of two-and-a-half-million jobs by 2024, as the CBO forecasts. ... [and, r]ight now, t wouldn't be hard to find workers willing to take the hours or jobs being vacated by others." And I see that as a good thing.

(See "CBO Assesses Affordable Care Act's Economic Effects," NPR February 28, 2014.)

If you have questions about your rights in the workplace, contact me via my website Boucher Law.

Robert Boucher

Word is Out

In about six weeks, I'm going to be giving a talk about the state of gay rights to the Sacramento County Bar Association's Labor and Employment section. I'm very much looking forward to it. I've been musing on how to approach the topic in a way that will provide some new information to attorneys who probably think they know the legal standards for protected classes.

Then it hit me; even younger gay attorneys are not likely to know much about the history of the gay rights movement. And in light of Justice Scalia's unrepentant desire to stamp out nearly 50 years of civil rights progress (he calls homosexuality an "invented minority"), the history of our movement should be

Antinonus. Image credit LGBT History Project.

taught in every school. So, the issue is: making sure people know why supporting gay rights is so important.

Last night I re-watched the documentary Word is Out. Its a montage of stories about gay and lesbian people who came out of the closet in the United States as early as the 1950s and as late as the recording of the movie in 1978. One of our good friends, Rob Epstein, worked on this film as his very first project. I definitely recommend getting a copy and watching it. Its a time-capsule about life in our recent past.

But the story also demonstrates that sexual orientation is innate. A quality of our lives which is as mutable as our skin color or parentage. Each person describes the challenges he or she faced on coming out: rejection by loved ones, self loathing, and medieval "treatments" applied without advice or consent.

With each generation of gay and lesbian persons with the bravery and fortitude to come out of the closet, each successive generation can help the world see us for what we are: normal people who happen to love persons of the same sex.

Some day, there may not need to be a gay rights movement. That day is far from the present day. Only if we step up will our march toward real equality be achieved. We should not mistake this for what it is: a war. We've won so many battles over the years and have so many heroes; it can be easy to grow complacent. Alfred Kinsey, Stonewall, Harvey Milk, Bowers v. Hardwick (upholding sodomy laws), Lawrence v. Texas (recognizing that sodomy laws are unconstitutional), DOMA and its repeal, and the rising tide of gay marriage.

The fight is far from over. We need all the allies we can get!

Your,
Bear

Science for Lawyers and Litigants

Science is designed to answer questions which are falsifiable. It is a system based on "defining practices ... including open debate, peer review, and double-blind methods, ... explicitly designed to circumvent the errors and sins to which scientists, being human, are vulnerable."Pinker, New Republic, "Science is not the enemy."

Using the scientific method, a scientist asks a specific question. To answer the question, the scientist

Cicero attacking Catalina in the Senate, 63 B.C.
Image credit, Wikipedia.

devises an experiment to answer it. By running the experiment, she gathers data and applies it to the initial question. Rather than producing a discrete answer to the question, the scientist presents her findings in papers, preferably written in a way that seeks to disprove her own questions. Other scientists formally and informally review the paper and attempt to replicate the experiment with the goal of shooting it down. Only the best papers survive this process and can then be used to make important decisions about the world around us.

Lawsuits can seem strikingly analogous. The litigants ask seemingly falsifiable questions. They go through a period of uncovering information. They draw conclusions from that information. They submit those conclusions to a neutral party — the judge — for evaluation. That evaluation is further reviewed by other neutrals — courts of appeal. And only the best initial complaints survive this process.

But the big differences are not revealed by this comparison:

• The initial questions, though falsifiable, are usually fairly vague and are bound up by emotion, rhetoric, and a myriad of sub-issues.
• The discovery of information is rarely conducted in the form of a well-reasoned experiment designed to falsify the initial question.
• Conclusions are drawn from the information and presented to the courts as fact, rather than having those conclusions evaluated in some peer-review related process.
• The neutral evaluator doesn't usually get involved until well after the fight begins. And the adversarial process ensures that her decision is based on the preconceived conclusions of the parties rather than an independent analysis.

Additionally, the legal system is burdened by reductions in budgets, a burgeoning docket, and increasing legal costs. Certain modernization techniques are poised to alleviate these issues, but implementation is an expensive barrier; I don't see public will sufficient to properly fund these measures. My question is: how can the application of the scientific method help litigants and the legal system?

To answer this, I wonder why not model legal problems with computers? Many legal problems can and should be modeled by computers from which predictive answers can guide the parties and the courts. Ashley, Jurimetrics, "Computer Models for Legal Prediction." While not all legal issues can be decided by models, science (and hence if properly programmed, computers) may be capable of answering many legal questions; including, possibly, purely moral questions, "by making an intelligent analysis of the causes and conditions of human well-being." Harris, TED Talks, "Science can answer moral questions."

Now, getting a computer program to solve your legal problems is a long way off. But there are certain aspects of the differences between the scientific method and the legal method which can inform litigant's positions. Consequently, informed litigants are more likely to unburden the legal system. For instance:

1. Lawyers could present an exhaustive list of all falsifiable issues involved in proving his case — not merely provable allegations.
2. Lawyers could present these issues in the context of a specific experiment designed to falsify those issues, not to prove them.
3. Each parties' set of issues and experiments could be presented to a neutral evaluator prior to the institution of a lawsuit.
4. The lawyer, parties, and neutrals could then present refined analyses to a judge or jury who would be much less likely to be persuaded by emotion or rhetoric.

Now, good lawyers probably already embrace the idea of testing their claims up front. The difference is, they do it in private where they can manipulate their arguments before they are presented to the court. So, this system is radically different from the way cases are heard — entrenched parties battle out every detail. But, these steps alone could reduce frivolous cases and frivolous defenses, improving the legal system for everyone.

On the topic of applying science to the humanities, and in particular politics, Steven Pinker writes:

The application of science to politics not only enriches our stock of ideas, but also offers the means to ascertain which of them are likely to be correct. Political debates have traditionally been deliberated through case studies, rhetoric, and what software engineers call HiPPO (highest-paid person’s opinion). Not surprisingly, the controversies have careened without resolution. Do democracies fight each other? What about trading partners? Do neighboring ethnic groups inevitably play out ancient hatreds in bloody conflict? Do peacekeeping forces really keep the peace? Do terrorist organizations get what they want? How about Gandhian nonviolent movements? Are post-conflict reconciliation rituals effective at preventing the renewal of conflict? 

History nerds can adduce examples that support either answer, but that does not mean the questions are irresolvable. Political events are buffeted by many forces, so it’s possible that a given force is potent in general but submerged in a particular instance. With the advent of data science—the analysis of large, open-access data sets of numbers or text—signals can be extracted from the noise and debates in history and political science resolved more objectively. As best we can tell at present, the answers to the questions listed above are (on average, and all things being equal) no, no, no, yes, no, yes, and yes.

Similarly, the application of science to the law offers a means to ascertain which ideas are correct and which flow from emotion and rhetoric. Science is a most under-utilized tool in many aspects of our lives and can inform most (if not all) decisions in our lives.

Your,

Bear

After Marriage Equality in California

On August 4, 2010, Judge Vaughn Walker ruled on California's Proposition 8 — making an

Ancients had fewer problems with gay love.
Image credit Counterlight.

amendment to California's Constitution defining marriage as between opposite-sex couples only. The Court reasoned that:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.  Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Read Judge Walker's decision at Scribd (emphasis added).

Judge Walker applied the lowest standard to the problem: the rational basis standard. In governmental discrimination cases, the courts apply a range of such standards. The lowest standard asks whether the government has a "rational basis" for its actions. If it can be shown that the Government's actions are merely rational, then the law may be considered constitutional — a very low bar for the proponents of Proposition 8. What Judge Walker is saying here is that Proposition 8 isn't even rational, and doesn't deserve scrutiny under the more strident standards.

So, we all know that this decision was appealed in a complicated process throughout the federal court system (with some recourse to the state Supreme Court), and drove its way all the way up to the Supreme Court who, essentially, refused to rule on the constitutionality of Proposition 8.

You can find tons of analysis on the issue. For a jumping off point, see Equality on Trial's website and Proposition 8 timeline. But the questions are: by clearing the way for Judge Walker's decision to rule the case, did the Supreme Court essentially adopt its reasoning? Can Judge Walker's decision be used in subsequent case?

The answers to both questions are qualified "no" and "no." The Court's decision emphatically ruled that neither it nor the Court of Appeal had the authority to rule on Judge Walker's decision:

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here. 

Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.

Read the full opinion at the Supreme Court's website.

So the basic answer is no, the Supreme Court did not adopt Judge Walker's reasoning. Yet, Judge Walker's opinion stands as the rule of the case. So the qualification is that, in federal court, at least, Judge Walker's decision (with limitations) and certainly his reasoning may be used in both future marriage cases in other jurisdictions and may be applied in California gay-rights cases.

So, while the Supreme Court did not have our back with this decision, it did leave a gaping hole in the arguments of the bigots who seek to undermine our position in society. Its a war. We're winning. Reason and fairness will prevail.

Your Bear

First Advertising

I'm excited to share my first advertisement, set to come out in the August 8, 2013 edition of Outword Magazine. Outword is Sacramento's Lesbian, Gay, Bisexual, and Transgendered news source:

Outword Magazine is the long-time, proven leader in quality lesbian, gay, bisexual, and transgender advertising and news for Central and Northern California. With an average press run of 10,000, Outword Magazine is the area's largest, most respected and dependable LGBT publication for Sacramento and Northern California. We are now in our 17th year.

You can read Outword on line at: http://www.outwordmagazine.com/download_pdf.htm.

Advertising is a new and exciting venture for me. To date, I've gotten all my clients by word of mouth. So, its thrilling that I'm in a position to grow my career. Here's the first ad:

Simple and to the point.

Let me know how I can help you with your employment and family matters.

Your,
Bear

The Wall Between Religion and the People

Today, the secular nature of the federal government is ingrained in our understanding of how it affects our lives and relationships. Our understanding often flows from the Constitution's Bill of Rights, First Amendment, the so-called Establishment & Free Exercise Clauses:

Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof ... .

Constitution, Amend. 1.

Today, we use these clauses to shield the government from religious incursion. For instance, they have been used to argue — sometimes successfully, sometimes not — against (click for resources on each topic):

• Public Prayer.
• Creationism and its flavors .
• Public display of the Ten Commandments.
• Crosses on public land.
• "In God we Trust" lawsuit.
• "Under God," Pledge of Allegiance lawsuit.

However, these clauses developed as a personal right — hence their position amongst the rights enumerated in the Bill of Rights — to protect religion instead. For instance, the antifederalists argued, during debate over what would become the Free Exercise clause:

[A North Carolina delegate] "advocate[d] for... [the right] of worshipping [sic] God according to the dictates of conscience in particular. He therefore thought that no one particular religion should be established. 

[A New York antifederalist] criticized the Constitution, stating, "I could have wished also that sufficient caution had been used to secure to us our religious liberties, and to have prevented the general government from tyrannizing over our consciences by a religious establishment... ." 

Advocates of amendments in Maryland urged "[t]hat there be no national religion established by law; but that all persons be equally entitled to protection in their religious liberty. 

... the Virginia ratifying convention included among its proposed amendments a statement "[t]hat religion ... can be directed only by reason and conviction, not by force or violence; and therefore ... no particular religious sect or society ought to be favored or established, by law, in preference to others."

Natelson, William and Mary Bill of Rights Journal, The Original Meaning of the Establishment Clause (2005) at 89 (formatting added).

An excellent observation on the religious views of the time come out in Natelson's discussion that the Establishment Clause was originally designed to protect only theists, and not to protect atheists:

... the contemporaneous "middle" was quite a bit more religious than it is today. One is reminded of the observation by that proto-Whig whose legal commentaries educated so many offounding generation's lawyers, Sir Edward Coke: "[I]n religion ... if a man go too much on the right hand, he goes to superstition, if too much on the left, to profaneness and atheism. And take away reverence, you shall never have obedience ... . "

Natelson at 114.

Indeed, many of the constitutional delegates were actively hostile to atheism generally. "Lastly, those are not at all to be tolerated who deny the being of a God. Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist." Id. at 101 quoting John Locke.

The point here is that the wall between church and government was not constructed to keep the church out of our lives, but to allow individuals believers to choose their own religion. Yet, the language is so clear: the state is a secular organization which cannot establish a religion and cannot interfere with its free exercise.

And the logical extension has been that favoring one religion over another amounts to an establishment of religion. This test has become embodied in a key constitutional decision on this matter in Lemon v. Kurtzman:

The language of the Religion Clauses of the First Amendment is at best opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead they commanded that there should be "no law respecting an establishment of religion." A law may be one "respecting" the forbidden objective while falling short of its total realization. A law "respecting" the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause.

Lemon v. Kurtzman, 430 U.S. 602, 613 (1971).

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion[; third], the statute must not foster "an excessive government entanglement with religion."

Id. (citations and formatting omitted).

Other, related tests exist, but this one is still widely used. What its saying is that government action must be secular in nature, cannot impinge religious belief one way or the other, and cannot encumber the operation of the government with religion.

Thus, current constitutional thinking does create a wall of separation between church and state. When it comes to laws, there can be no entanglement. This wall should be favored by theists and atheists alike. It keeps theists safe from the tyranny of a state religion and likewise keeps religion far from atheists.

If anyone tells you that the United States is a Christian nation, you can tell them that they are wrong. Their own religious forefathers made sure of that.

Your,
Bear

Change your Approach

Clients hire attorneys for all sorts of reasons: to defend them in criminal prosecutions, to enforce contracts, to uphold rights defined by statute, and to get money for injuries to their person or property. But in all cases one thing is the same: the client is seeking to offload their grievance to the attorney. Usually, the client wants to put the case in a black box and have a positive outcome on the other side. And attorneys, for one reason (to bill) or another (to keep the client pacified) are happy to oblige this way of seeing the relationship.

Image Source: Assembly Archive.

But two recent podcasts got me thinking that this might not be the best way of looking at the relationship.

The first was the Center for Inquiry's interview with Steven Novella, physician and podcaster for the New England Skeptical Society. In the interview, Novella describes his evolving approach to evangelizing and popularizing science and critical thinking. He describes early attempts at challenging popular superstitions — such as shattering mirrors to prove that nothing bad will happen — morphing over time into putting on a reasonable face, minimizing controversy, when confronting charlatans, even though they are selling snake oil. His point, I think, was that not all approaches work with all audiences. Thus, to get your message across, you have to be both savvy enough to know you're not succeeding and flexible enough to change your approach.

The same is true in evaluating how to pursue your case against your adversary in litigation. The art of litigation is getting someone to do something they won't otherwise do. What litigants forget is that doing so is time-consuming and expensive. But, depending on the circumstances, there must be a better way which minimizes the costs in time and money. The only way to do so is for the client and the attorney to work together — and for both you and your adversary to realize that only compromise can hope to minimize expense.

The second was a Freakonomics podcast about the economics of spite. This episode asked the question: why do we do things to hurt others — even when they hurt ourselves — from which we obtain no particular benefit? Now, I don't think they got the definition right — they appeared to emphasize the doing harm to yourself part, where as the dictionary (and my) definition is simply "malicious ill will" or simply "doing harm to others." Spite carries the connotation that the intent is the harm and not some other gain.

What got me thinking, though, was a set of experiments they described. Two individuals, paired off, who could not see each other were given $10. In the first experiment, one of the pair was required to offer the other a portion of the $10 so that the pair could walk away with some money. The other could either accept what was offered or could reject it and cause both parties to walk away with nothing. The researchers found that if the offer was less than 20% of the total, the other would consistently reject it, even though it meant that he (and the offeror) walked away with nothing.

In the second experiment, both parties were given $10. One of the pair could choose to allow both parties to walk away with the full $10 each, or could give up $1 to cause the other to lose $5. The researchers found that subject consistently sought not the greatest gain for themselves, but to maximize their own gain over that of the other — meaning that the often chose to shaft the other player, giving up the $1 so that they would earn a higher percentage.

In both cases, the players were harming themselves for the sole purpose of "spiting" the other player. And that so describes the approach many litigants hold in their lawsuit on both sides of the table. Does this say anything about human nature that can be used in litigation? Maybe, but does give rise to an idea which is uncommon in litigation: where can I place my number so that the other side thinks he's prevailing, while still getting me what I need?

Now, usually, negotiation tactics are all about convincing the other side that they are going to lose big time. But these experiments indicate that approach may be fruitless if the other side is willing to punish at any cost to him, her, or itself. Thus, neither party wants to give an inch, even if it saves them a yard.

And attorneys — wittingly or unwittingly — lead their clients into this money-trap. By offloading 100% of the problem and by doing the client's bidding, attorneys are often a barrier to a mutually beneficial settlement early in the case, rather than being a promoter of settlement when costs are low and the pressures of litigation haven't killed both sides.

A different approach is in order in most cases. Attorneys should be savvy enough in their unique fields to guide the parties to eliminate side issues or non-issues, and to either come up with a number which satisfies everyone's needs (before attorney fees eat away at that total) or to focus the litigation on what is really at stake — skipping the mud-slinging phase and getting the job done in a minimum amount of time.