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An Amicus Brief for Hobby Lobby v. Sebelius on the Topic of Balancing the Equities for a Preliminary Injunction

I looked over the recent Hobby Lobby en banc decision and thought about it. Everybody seemed to be missing the most important things in the case. Then, yesterday, I realized that the deadline for submissions for the next stage was today (July 3) at 5 p.m. At 2 p.m. I rushed into action. I was able to use my draft amicus for United States v. Marshall as a template, though it’s a different circuit and Hobby Lobby is at District Court right now, for which there are no official rules. I discovered that the last FedEx pickup in town was 8 p.m. near Menard’s on the west side of town, and I managed to get there exactly on time, scooping up Faith and Lily from watching Melody Time, which they took with good grace. I checked out other options, and found that the quickest delivery is “same-day delivery”, which would allow me to wait till 6:30 a.m. for 4:30 delivery, but at some risk of late delivery, or till midnight for pretty certain 2:30 delivery. FedEx picks up from your house and sends the package as personal luggage with someone on an airplane. It would have cost $301, though. I could have fixed up some rough spots, though, checking local rules of the Western District of Oklahoma better, fixing the embarassing cut-and-paste error on the cover page (take a look if you’re curious, at the titles), putting page numbers in all the citations, adding a list of reference and a table of contents, adding more hyperlinks, and remembering to include a disk with the MS-Word file. For some reason, they don’t let pro se people like myself file electronically, which would have reduced the rush immeasurably. The brief is
here.

The main ideas are this:

1. Balancing the equities should use the obvious (to an economist) cost-benefit analysis. I thought this might make a good article, but I found that Judge Posner had done it long ago in Am. Hosp. Supply Corp. v. Hosp. Prods., 780 F.2d 589, 594 (7th Cir. 1986), so I just called it “the Posner Rule”. The best reference I found on preliminary injunctions generally was Richard R.W. Brooks & Warren F. Schwartz, Legal Uncertainty, Economic Efficiency, and the Preliminary Injunction Doctrine, 58 STAN. L. REV. 381 (2005). They have a very good description of the history and general problem, though I think their economic analysis probably wouldn’t be useful. They emphasize incentives for efficient actions that can’t be undone, but I think that gets too hard to administer.

2. It would be worth finding out the intensity of the Green family’s cost of compliance by asking about the beliefs of their churches and what the churches do to members who engage in sin. Probably their pastors do agree with them, and probably their pastors never even talk about the sins of their church members to them, but I don’t know; maybe theirs is the rare church that actually does impose costs on open sinners who do things like sell pornographic magazines in their gas stations.

3. The cost to the U.S. government of noncompliance is limited to the cost of providing the pills that Hobby Lobby doesn’t provide. Since the government could later have Hobby Lobby pay it back if it wins, this is not an irreparable cost.

4. The cost to the Green family of noncompliance is irreparable, because the U.S. government has qualified immunity in Bivens civil rights suits when it could reasonably believe that its actions were constitutional, as is the case here. Thus, if the government caused $500 million worth of damage to Hobby Lobby, and the court agreed that this was wrongful, the government wouldn’t have to pay Hobby Lobby a cent in compensation.

Strangely enough, that very night Obama said that he wouldn’t enforce Obamacare till after the 2014 elections anyway. Thus, the issue of a preliminary injunction is probably moot and my frenzied brief writing was unnecessary. Perhaps I can use the ideas again in some other case, though. [UPDATE, JULY 3: See National Review and the Beckett Fund: it seems that what is delayed is the requirement to provide insurance, but any company that *does* provide insurance has to offer an Obamacare plan, so the lawsuits are still on track. See J. Adler at Volokh Conspiracy too.]

A couple of useful references for amicus briefs are
this sample of a Reply to a motion to deny an amicus brief in JonesDay v. Blockshopper in District Court and the well-known condemnation of typical, useless, amicus briefs by Judge Posner in
Voices for Choices v. Illinois Bell (2003). Also of interest is Linda Sandstrom Simard, “An Empirical Study of Amici Curiae in Federal Court: A Fine Balance of Access, Efficiency, and Adversarialism,” 27 Rev. Litig. 669 2007-2008. She has some good numbers about the frequency of amicus briefs, from a big survey she did of judges. Unfortunately, it’s just a survey, and on a delicate topic. One can’t expect to get truthful answers to questions like (not “such as”) “Does it change your mind when lots of bigshots say you should rule for the appellant?” and one can’t even expect judges to admit the truth to themselves. She also doesn’t even notice the worst possibility when it comes to the reason for amicus briefs, which is not just possible but likely and corrupt. The danger isn’t that judges will go with the side that has the most amicus briefs, or the longest, or the most signers. What I think is going on is that liberal organizations and law professors submit amicus briefs so their ideological allies on the bench know which way to vote. It’s like in a legislature. A complicated bill is introduced, and the typical legislator has no idea how he should vote, because he doesn’t know who the bill helps, and without the answer to “cui bono” he is lost, having few principles to fall back upon and being too busy to actually try to understand the bill, even if he could. So he looks over to his party leader and sees whether he smiles or frowns when the bill is introduced. So with the judge—especially a judge on the Supreme Court. He finds it helpful to know whether the Sierra Club wants him to vote Yes or No. Knowing that, he can make up some reasons, or adopt those in the Sierra Club’s brief. Similarly, it is helpful to see an amicus brief signed by 100 law professors even though none of them have contributed a single word to it, because he knows a few of those 100 professors and that way he knows who are the good guys and who are the bad guys in the case, and whether he’ll get in bad odor with the Right People if he votes wrong.

An alternative explanation for amicus briefs is that the amici like seeing their names in print on an important issue, from vanity and so they can impress other people. I admit to that myself, though I hope I have other, nobler motivations.

It would be much better to only allow amicus briefs from individuals, and even then to limit the number of signatories to five, the largest number likely to have actually participated in the writing.

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