The Jarndyce v. Jarndcye of Church-State Cases

The Contraception Mandate litigation is the Jarndyce v. Jarndyce of church-state cases: a lawsuit, or, rather, collection of lawsuits, that seems to go on and on without ever reaching an end. True, unlike the Bleak House original, the Contraception Mandate litigation isn’t making anybody rich. But in its capacity to draw in numerous parties and lawyers and maintain its place on the Supreme Court docket for years, the litigation does seem a bit Dickensian.

The litigation began in 2011, when the Obama Administration promulgated regulations under the Affordable Care Act that required employers to cover contraceptives, cost-free, in their employee health plans. The Obama Administration exempted churches from the Mandate and, after it received complaints, grudgingly offered religious non-profits an “accommodation.” A religious non-profit could avoid the Mandate, and forgo covering contraceptives in its plan, if it filed a form indicating that it objected to covering contraceptives as a matter of religious principle, in which case the plan’s provider would have to cover the contraceptives itself, without cost to employer or employee.

Neither the exemption nor the accommodation applied to for-profit corporations. Nonetheless, in Burwell v. Hobby Lobby (2014), the Court ruled that the government must grant an accommodation to closely held, for-profit corporations that objected to covering contraceptives for religious reasons. The Court did so under the Religious Freedom Restoration Act (RFRA), which provides that the government cannot substantially burden a person’s exercise of religion unless the government has a compelling reason for doing so and has chosen the least-restrictive means. Requiring a closely held corporation to cover contraceptives would violate RFRA, the Court held, since a less-restrictive alternative was available. The government could offer for-profits the accommodation it offered religious non-profits—submit a form and have your plan’s provider cover the contraceptives—which would achieve the government’s interest in ensuring access to cost-free contraceptives without infringing on employers’ religious freedom.

Meanwhile, in a separate litigation, some religious non-profits were challenging the accommodation itself. These parties, including a Catholic order called the Little Sisters of the Poor, argued that the accommodation itself violated their religious freedom, since, by submitting the required forms to their plan providers, they would still be complicit in the act of offering contraceptives to their employees, an act they considered gravely immoral. As a matter of religious conviction, they maintained, they could not participate, even indirectly, in such plans.

This litigation also reached the Supreme Court, in a 2016 case called Zubik v. Burwell, in which the Court took a rather unusual step. Rather than reach a decision on the merits, the Court remanded the case and directed the lower court to give the parties another chance to settle their dispute, since the parties’ positions were, as a practical matter, not so far apart. Religious non-profits would not object if their insurance providers offered contraceptives through independent plans, and the government admitted that this arrangement would achieve the objective of providing women with contraceptives cost-free. The solution to the dispute seemed obvious.

That’s where things stood when the presidential election of 2016 brought a new administration to power. Elections have consequences. The Trump Administration
wrote new regulations that extended the exemption for churches to religious non-profits like the Little Sisters. Under the new regulations, religious non-profits, like churches, were no longer subject to the Mandate.

One might have thought that would bring the Mandate litigation to an end. It did not. The Commonwealth of Pennsylvania now sued, arguing that the federal government lacked authority to issue the new regulations, either under the Administrative Procedure Act or under RFRA. The Little Sisters of the Poor then sought to intervene to defend the new regulations. The litigation continued, with the parties having switched roles. Religious non-profits now found themselves on the side of the federal government.

This new case, Little Sisters of the Poor v. Pennsylvania, is now before the Supreme Court, on cert from the Third Circuit. The case presents a few complicated issues, including questions about state standing, appellate standing, administrative procedure, and nationwide injunctions. The case also raises an interesting, and new, RFRA issue. In the current case, the question is not whether RFRA requires the federal government to grant an accommodation. The question is whether RFRA allows the federal government to grant an accommodation broader than the one the Court already has authorized. As Kevin Walsh observes in a recent Legal Spirits podcast, this is a question with potentially big implications for church-state law.

Why does the Mandate litigation go on and on? As I said, it’s not a question of money. Lawyers are not getting rich on these cases. The litigation continues because people care deeply, as a matter of principle, about the result, and because each side views the other as an existential threat. For proponents of the Mandate, it’s about women’s health and equality, and about beating back the obscurantist forces that threaten both. For opponents, it’s about affirming their deepest faith commitments, notwithstanding pressure from the state and progressive opinion that seeks to crush them. Even when a practical solution seems available—as the Court noted in Zubik—the parties find it difficult to compromise. The symbolic stakes are too high.

In short, the Contraception Mandate litigation, like so many other disputes over law and religion, reflects the deep polarization in our society. As long as that polarization continues, cases like Hobby Lobby, Zubik, and Little Sisters will continue to arise—as well as cases like Masterpiece Cakeshop, Fulton v. City of Philadelphia, and many others.

The Court was supposed to hear the Little Sisters case this month, but postponed argument because of the coronavirus epidemic. The Court will decide the case at some point in the future. When the Court does issue its ultimate decision, whenever that occurs and however the Court rules, that should end the Contraception Mandate litigation once-and-for-all, right? What could remain be decided?

Don’t count on it.

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How Israel is fighting the coronavirus

In this bonus episode, we explore Israel’s technology- and surveillance-heavy approach to the COVID-19 pandemic. In it, Matthew Waxman and I talk to Yuval Shany, a noted Israeli human rights expert and professor at Hebrew University. We cover the particularly fraught political crisis that the virus exacerbated, the use of Israel’s counterterrorism tools to trace contacts of infected individuals, and the significance of locational privacy in the face of a deadly contagion.

Our thanks to both Nachum Braverman of Academic Exchange and Ben Wittes of Lawfare for making the interview possible.

Download the 309th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

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Enter Conservative Living Constitutionalism

The Atlantic has just published my response to Adrian Vermuele’s Atlantic article Beyond Originalism. My piece is entitled, Common-Good Constitutionalism Reveals the Dangers of Any Non-Originalist Approach to the Constitution. Here is a taste:

Common-good constitutionalism “should take as its starting point substantive moral principles that conduce to the common good,” which, Vermeule believes, can be “read into the majestic generalities and ambiguities of the written Constitution.” Above all, common-good constitutionalism requires “a candid willingness to ‘legislate morality’—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority.” . . .

This is nothing but conservative living constitutionalism. While the article is long on narrative, critique, and assertion, it is short on original theory and specifics. Instead, for his theory, Vermeule relies on “Ronald Dworkin, the legal scholar and philosopher” (and my jurisprudence professor when he visited Harvard Law School), who “used to urge ‘moral readings of the Constitution.’ Common-good constitutionalism is methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkin’s, which were of a conventionally left-liberal bent.” . . .

Moral readings constitutionalism is a version of living constitutionalism. Its mantle has been taken up and further developed by Originalism-critic and Boston University law professor James Fleming. Here is the description of Fleming’s latest book, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms:

James Fleming rejects originalisms–whether old or new, concrete or abstract, living or dead. Instead, he defends what Ronald Dworkin called a “moral reading” of the United States Constitution, or a “philosophic approach” to constitutional interpretation. He refers to conceptions of the Constitution as embodying abstract moral and political principles–not codifying concrete historical rules or practices-and of interpretation of those principles as requiring normative judgments about how they are best understood-not merely historical research to discover relatively specific original meanings.

Sound familiar? Jim Fleming call your office. You have a new convert, though he’s not exactly what you hoped for (and he doesn’t cite you). He’s just across the river, so you guys should get together and hash this out over lunch.

In my Atlantic essay I raise some questions about Vermuele’s particular moral readings approach:

A moral-readings approach like Vermeule’s raises some obvious questions:

  • What qualifies state legislators to make spiritual choices that will be imposed on nonconsenting citizens? What will legislative debates about morality look like? Who will be called as witnesses in legislative hearings? The inevitable answer is that legislators will just vote their own morality and the legislative majority will prevail. In the legislature, might will make right. (The state-sanctioned segregation upheld in Plessy is a good example of this.)
  • Assuming there is any judicial review left, what in judges’ training qualifies them to assess these competing moral claims on which legislation is to be solely based? Answer: Nothing.
  • Above all, what happens to social peace as the government starts incarcerating the dissenting minority for failing to adhere to their moral duties? Religious war, anyone?

What does Vermeule have to say about these and other obvious questions? Well, nothing. He does not even acknowledge that such questions exist. Presumably, all will be revealed to us in the fullness of time.

There is much more in the whole essay, which asks progressives to consider how the living constitutionalism they favor can be adopted by conservatives and used against them. Perhaps they will consider either muting their criticism of originalist judges, or even joining the Originalism League themselves. There are several competing teams they can choose to play for.

You can read the whole essay here.

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Enter Conservative Living Constitutionalism

The Atlantic has just published my response to Adrian Vermuele’s Atlantic article Beyond Originalism. My piece is entitled, Common-Good Constitutionalism Reveals the Dangers of Any Non-Originalist Approach to the Constitution. Here is a taste:

Common-good constitutionalism “should take as its starting point substantive moral principles that conduce to the common good,” which, Vermeule believes, can be “read into the majestic generalities and ambiguities of the written Constitution.” Above all, common-good constitutionalism requires “a candid willingness to ‘legislate morality’—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority.” . . .

This is nothing but conservative living constitutionalism. While the article is long on narrative, critique, and assertion, it is short on original theory and specifics. Instead, for his theory, Vermeule relies on “Ronald Dworkin, the legal scholar and philosopher” (and my jurisprudence professor when he visited Harvard Law School), who “used to urge ‘moral readings of the Constitution.’ Common-good constitutionalism is methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkin’s, which were of a conventionally left-liberal bent.” . . .

Moral readings constitutionalism is a version of living constitutionalism. Its mantle has been taken up and further developed by Originalism-critic and Boston University law professor James Fleming. Here is the description of Fleming’s latest book, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms:

James Fleming rejects originalisms–whether old or new, concrete or abstract, living or dead. Instead, he defends what Ronald Dworkin called a “moral reading” of the United States Constitution, or a “philosophic approach” to constitutional interpretation. He refers to conceptions of the Constitution as embodying abstract moral and political principles–not codifying concrete historical rules or practices-and of interpretation of those principles as requiring normative judgments about how they are best understood-not merely historical research to discover relatively specific original meanings.

Sound familiar? Jim Fleming call your office. You have a new convert, though he’s not exactly what you hoped for (and he doesn’t cite you). He’s just across the river, so you guys should get together and hash this out over lunch.

In my Atlantic essay I raise some questions about Vermuele’s particular moral readings approach:

A moral-readings approach like Vermeule’s raises some obvious questions:

  • What qualifies state legislators to make spiritual choices that will be imposed on nonconsenting citizens? What will legislative debates about morality look like? Who will be called as witnesses in legislative hearings? The inevitable answer is that legislators will just vote their own morality and the legislative majority will prevail. In the legislature, might will make right. (The state-sanctioned segregation upheld in Plessy is a good example of this.)
  • Assuming there is any judicial review left, what in judges’ training qualifies them to assess these competing moral claims on which legislation is to be solely based? Answer: Nothing.
  • Above all, what happens to social peace as the government starts incarcerating the dissenting minority for failing to adhere to their moral duties? Religious war, anyone?

What does Vermeule have to say about these and other obvious questions? Well, nothing. He does not even acknowledge that such questions exist. Presumably, all will be revealed to us in the fullness of time.

There is much more in the whole essay, which asks progressives to consider how the living constitutionalism they favor can be adopted by conservatives and used against them. Perhaps they will consider either muting their criticism of originalist judges, or even joining the Originalism League themselves. There are several competing teams they can choose to play for.

You can read the whole essay here.

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The Coronavirus Outbreak Is Exposing Government Follies on Many Levels

After the coronavirus spread, left-leaning writers began declaring that no one is a libertarian during a pandemic. We all need collective action to save us from this frightening health risk, they say.

But a funny thing happened on the way to big-government Nirvana, as officials try to ramp up testing and assure that we all have access to vital medical and other services.

The first thing that state officials did was grab various executive powers to order us to stay at home. Now, the federal government is pumping $2 trillion in taxpayer funds into the economy in the form of various bailouts—something that might help ease the economic pain in the short term, but will cause more harm (exploding debt) in the long run.

These government responses grab headlines, but offer little relief. Most serious approaches to the crisis, however, are decidedly libertarian. They involve reducing regulations that keep industries from responding rapidly in an emergency situation.

I recently explained how the market economy—and its sophisticated supply chains—is keeping us fed in these isolated times. Now we’re seeing that government is more of an obstacle than a help. Pretty soon, we’ll all be libertarians during a pandemic. The question is why more of us aren’t libertarians the rest of the time, given what we’re learning about the nature of government.

Let’s start at the federal level. As Reason’s John Stossel recently explained, the Centers for Disease Control’s COVID-19 tests were woefully inaccurate, but private companies were forbidden from developing tests unless they went through the long process of Food and Drug Administration approval. The Trump administration has temporarily waived those rules, but they left our country in a precarious position when a pandemic struck.

“The federal government regulates and monitors practically every activity that takes place in the US economy, from where and when truck drivers drop off their deliveries, to what tests hospitals and labs can use on patients,” CNN reports. That’s an eye-popping statement about the degree to which government controls everything. (So much for America being the land of unbridled capitalism!)

Because of the delays these rules cause, the Department of Transportation now is waiving restrictions on how many hours truck drivers can work. The Department of Health and Human Services is waiving privacy laws so more Americans can use telehealth services—allowing them to access medical advice from home. During good times, few people notice the burdens. They are more obvious when the chips are down.

At the local level, police departments are suspending the enforcement of picayune infractions. Some cities, such as Philadelphia, are not making minor drug and prostitution busts. Los Angeles is releasing some low-level inmates from its jails. It makes you wonder why law enforcement focuses on such things during normal times.

California state officials, however, have been resistant to eliminating the nonsensical rules that are making it tough for hospitals to treat increasing numbers of coronavirus patients. The state already has a vast nursing shortage, caused largely by the bureaucracy’s limits on nursing-school attendees—something designed to reduce the numbers and boost salaries.

As The Orange County Register reported, a number of hospitals are discontinuing clinical rotations during the crisis, which will delay nursing graduations because students are required to spend 75 percent of their clinical education in a hospital. The other 25 percent is done through simulations. The schools are asking the governor to reduce that requirement to 50 percent. He has yet to give an OK, but relaxing that rule will reduce nursing shortages.

Meanwhile, California is in a minority of states that does not recognize nurse-licensure compacts—agreements that allow qualified and licensed nurses from other states to work here. Licensing rules in general impose steep barriers to entry for workers—and mostly are about established industries artificially boosting pay by reducing competition. They unquestionably create shortages, which create real dangers in a health emergency.

Sen. John Moorlach (R–Costa Mesa) has introduced Senate Bill 1053, which would include our state in a 34-state nursing compact. It’s a sensible reform, especially in these dire times. If the Legislature were serious about assuring that we have enough trained staff to deal with coronavirus patients, they ought to pass this measure as soon as possible. Remember this when you hear lawmakers complain about healthcare shortages.

If the governor were serious about improving resilience during the current mess, he should immediately postpone enforcement of Assembly Bill 5, which forbids many industries from using contractors as workers. The law impoverishes freelancers during a time of hardship, discourages people from working at home and imposes hurdles on those providing vital delivery services. It creates a real impediment.

Government has a role, but a lot of what it does is harmful. We need to suspend counterproductive rules now—and then think twice before we reinstitute them after the crisis has passed.

This column was first published in the Orange County Register.

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The Coronavirus Outbreak Is Exposing Government Follies on Many Levels

After the coronavirus spread, left-leaning writers began declaring that no one is a libertarian during a pandemic. We all need collective action to save us from this frightening health risk, they say.

But a funny thing happened on the way to big-government Nirvana, as officials try to ramp up testing and assure that we all have access to vital medical and other services.

The first thing that state officials did was grab various executive powers to order us to stay at home. Now, the federal government is pumping $2 trillion in taxpayer funds into the economy in the form of various bailouts—something that might help ease the economic pain in the short term, but will cause more harm (exploding debt) in the long run.

These government responses grab headlines, but offer little relief. Most serious approaches to the crisis, however, are decidedly libertarian. They involve reducing regulations that keep industries from responding rapidly in an emergency situation.

I recently explained how the market economy—and its sophisticated supply chains—is keeping us fed in these isolated times. Now we’re seeing that government is more of an obstacle than a help. Pretty soon, we’ll all be libertarians during a pandemic. The question is why more of us aren’t libertarians the rest of the time, given what we’re learning about the nature of government.

Let’s start at the federal level. As Reason’s John Stossel recently explained, the Centers for Disease Control’s COVID-19 tests were woefully inaccurate, but private companies were forbidden from developing tests unless they went through the long process of Food and Drug Administration approval. The Trump administration has temporarily waived those rules, but they left our country in a precarious position when a pandemic struck.

“The federal government regulates and monitors practically every activity that takes place in the US economy, from where and when truck drivers drop off their deliveries, to what tests hospitals and labs can use on patients,” CNN reports. That’s an eye-popping statement about the degree to which government controls everything. (So much for America being the land of unbridled capitalism!)

Because of the delays these rules cause, the Department of Transportation now is waiving restrictions on how many hours truck drivers can work. The Department of Health and Human Services is waiving privacy laws so more Americans can use telehealth services—allowing them to access medical advice from home. During good times, few people notice the burdens. They are more obvious when the chips are down.

At the local level, police departments are suspending the enforcement of picayune infractions. Some cities, such as Philadelphia, are not making minor drug and prostitution busts. Los Angeles is releasing some low-level inmates from its jails. It makes you wonder why law enforcement focuses on such things during normal times.

California state officials, however, have been resistant to eliminating the nonsensical rules that are making it tough for hospitals to treat increasing numbers of coronavirus patients. The state already has a vast nursing shortage, caused largely by the bureaucracy’s limits on nursing-school attendees—something designed to reduce the numbers and boost salaries.

As The Orange County Register reported, a number of hospitals are discontinuing clinical rotations during the crisis, which will delay nursing graduations because students are required to spend 75 percent of their clinical education in a hospital. The other 25 percent is done through simulations. The schools are asking the governor to reduce that requirement to 50 percent. He has yet to give an OK, but relaxing that rule will reduce nursing shortages.

Meanwhile, California is in a minority of states that does not recognize nurse-licensure compacts—agreements that allow qualified and licensed nurses from other states to work here. Licensing rules in general impose steep barriers to entry for workers—and mostly are about established industries artificially boosting pay by reducing competition. They unquestionably create shortages, which create real dangers in a health emergency.

Sen. John Moorlach (R–Costa Mesa) has introduced Senate Bill 1053, which would include our state in a 34-state nursing compact. It’s a sensible reform, especially in these dire times. If the Legislature were serious about assuring that we have enough trained staff to deal with coronavirus patients, they ought to pass this measure as soon as possible. Remember this when you hear lawmakers complain about healthcare shortages.

If the governor were serious about improving resilience during the current mess, he should immediately postpone enforcement of Assembly Bill 5, which forbids many industries from using contractors as workers. The law impoverishes freelancers during a time of hardship, discourages people from working at home and imposes hurdles on those providing vital delivery services. It creates a real impediment.

Government has a role, but a lot of what it does is harmful. We need to suspend counterproductive rules now—and then think twice before we reinstitute them after the crisis has passed.

This column was first published in the Orange County Register.

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These 10 Underappreciated Movies Make for the Perfect Quarantine Viewing Experience

Now that we have all the time in the world on our hands, filling it with movies has become an organized pursuit, and helpful film lists have proliferated online. Some of these seek to cheer us up—classic comedies, vintage musicals, all from happier times, of course—or to put our despair in perspective with dystopian exercises like 12 Monkeys, Mad Max, The Road, and suchlike.

I want to offer something different: a list of oddball movies that were under-loved at the time of their release and have remained under-seen ever since. Some of these films, like the 2009 Jennifer’s Body, have been undergoing critical reevaluation and are now seen as lovable cult movies. The rest have also developed cults, of one size or another, but are still waiting for the full-scale love they deserve.

Jennifer’s Body (2009)

The critical indifference to this high-school horror-comedy was baffling. (It scored a rotten 44% on Rotten Tomatoes.) Diablo Cody’s screenplay—a marvel of sexy sarcasm—was the follow-up to her debut script for the 2007 hit Juno (whose director, Jason Reitman, is one of the producers here). And the star, Megan Fox, of the mega-budget Transformers franchise, delivered a luscious parody of her own sex-puppet image. Fox plays the titular Jennifer, a snooty cheerleader who falls into the clutches of an indie band called Low Shoulder, whose members are desperate to make it big and have decided to sacrifice a virgin in order to enlist Satan as their manager. Unfortunately, since Jennifer is not a virgin in any sense of the word, the band’s attempted ritual goes wildly awry and a newly demonic Jennifer is soon embarked on a bloody rampage. Amanda Seyfried effectively mutes her own movie-star looks to play Jennifer’s geeky friend Needy, and Chris Pratt, Amy Sedaris and J.K. Simmons are also on hand. (Now streaming on Amazon, YouTube, iTunes, etc.)

Surveillance (2008)

Crawling back from one of the most widely detested debuts in recent film history—the 1993 amputation oddity Boxing Helena—director Jennifer Lynch (daughter of David) made this seriously creepy serial-killer feature. Bill Pullman and Julia Ormond play a pair of FBI agents drawn to a slaughter site in the Nebraska hinterlands, where they interact with bent cops and druggy youths and search in vain for reliable witnesses. (There is one, but she’s 11 years old, and who wants to hear what a kid has to say?) The movie has a bleak, sunbaked vibe and a most unsettling conclusion. It scored a limp 55% on Rotten Tomatoes and has yet to attract many second looks. It’s never too late, though. (Now streaming on Amazon and Netflix)

The Fountain (2006)

Darren Aronofsky’s time-tripping masterwork was seen by some—well, many—as a pretentious romance. But it’s a spectacularly beautiful film that has steadily accumulated new admirers. Hugh Jackman and Rachel Weisz play Tom and Isabel, a couple whose love never dies. In 16th Century Spain, she is a queen dispatching him on a mission to the New World to find the Mayan tree of life. 500 years later—now—he is a research scientist searching for a cure for the cancer that is killing Isabel, who in this incarnation is his wife. He learns of an ancient tree in Central America whose bark may be the cure he seeks. In the year 2600 AD, we find Tom ascending through the heavens in a transparent bubble-ship containing a large tree. The glorious outer-space effects in this film are super-size blowups of microscopic chemical reactions (the work of optical-systems developer Peter Parks) and the magnificent score, by Clint Mansell, could become a permanent part of your life. (Streaming on Amazon, YouTube and Vudu)

The Midnight Meat Train (2008)

Critics liked this grisly horror film a bit more than audiences—possibly because Lionsgate unceremoniously dumped the picture in second-run theatres and not a lot of people got to see it. Bradley Cooper is a hustling photojournalist named Leon, who chronicles the denizens of the night in an unspecified big city (it’s L.A.). He becomes aware of a mysterious subway train that only runs at midnight, and naturally he wants to know more about it. This is as bad an idea as you would imagine. Alarmingly awful things befall passengers on this train, all of them doled out by a mallet-swinging brute called Mahagony (the naturally terrifying Vinnie Jones). Bloody violence is not in short supply (the movie is based on a Clive Barker story), but the Japanese director, Ryuhei Kitamura, really excels at building tension and dread, and also at oh-my-God editing. (Streaming on Netflix and Amazon)

The Brothers Bloom (2008)

This second feature by Knives Out director Rian Johnson is an eccentric fairy tale of overflowing charm. A pair of sibling conmen (Adrien Brody and Mark Ruffalo) make the mistake of trying to swindle a wacky heiress (Rachel Weisz), who numbers among her hobbies kung fu, power ping pong, and chainsaw juggling (on stilts), and who would love to become a swindler herself. The picture flits all around Central Europe, but even with the brothers bringing in a daffy explosives expert called Bang Bang (Rinko Kikuchi), we sense that the big con they’ve planned, in Prague, will not be working out well. They should have sensed something amiss when their mark observed, “The trick to not being cheated is to learn how to cheat.” (Streaming on Amazon and Vudu)

Black Dynamite (2009)

A wonderfully nutty tribute to ’70s blaxploitation movies. Michael Jai White is perfect as the titular Black Dynamite, a CIA operative just back from Vietnam who is intent on terminating some evil honkeys who are funneling heroin into the ghetto. There’s also a worrisome new brand of malt liquor that’s hit the streets, an array of pimps and pushers and vintage purple clothing, ultra-low-budget martial-arts and car-chase action, and a ridiculous crime lord called Fiendish Dr. Wu. There are also many great lines (scoping out B.D.’s deluxe pad, one character says, “You must have an eight-track in every room”). Director Scott Sanders shot this movie in three weeks (and later turned it into an animated series on Adult Swim). He should be working a lot more than he does. (Streaming on Amazon, Netflix, and Vudu)

Hancock (2008)

Released at the dawn of the cinematic superhero age (the same year Iron Man inaugurated the MCU), Hancock appeared to confuse critics with its relatively subtle combination of underplayed humor and real emotion. Despite the presence of Will Smith and Charlize Theron, the movie bombed. It deserves another chance. Smith plays a super-guy called John Hancock, who has the usual powers of flight, strength, and immortality. John does a lot of good in the world, but he also causes a lot of collateral property damage, for which he is widely resented. So he’s basically become an alcoholic living on the streets of LA. An admiring PR man named Ray (Jason Bateman) tries to help him and does; but then John meets Ray’s wife (Charlize Theron), and the movie takes a sudden turn into wild and unexpected territory. Very much worth taking a chance on. (Streaming on Amazon, Netflix, and Vudu)

The Fall (2006)

Although he’d already made one feature in 2000—the distinctively gruesome sci-fi horror film The Cell—Indian director Tarsem Singh continued earning most of his living shooting commercials. Kind of brilliantly, he decided to utilize the globe-trotting required by this profession to make another movie, on his own dime. This resulted, after four years, in The Fall, an extremely outré and astoundingly beautiful fantasy film shot in Cambodia, Italy, Indonesia, Bolivia and China, among other far-flung places. It’s a movie about stories and their telling and the heroes they require; but essentially it’s a vast sea of surreal imagery into which viewers are invited to sink their heads. There truly is nothing else like it. (Streaming on Netflix and Amazon)

Sky High (2005)

Will Stronghold (Michael Angarano) is a teenager living in the large shadow of his superhero parents. His father, Steve (Kurt Russell), is a successful real estate guy better known in super-circles as The Commander; his mom, Josie (Kelly Preston), is the famously supersonic Jetstream. Will doesn’t seem to have any powers of his own, so he’s apprehensive about entering ninth grade at Sky High, where superhero offspring are sorted into two categories: some will become superheroes themselves, others—the losers in life’s super-lottery—will become sidekicks. This is a Disney film, and thus family-friendly, but it’s also witty and hip (thanks mainly to Russell, a Disney veteran who made his first movie for the company in 1968). Mary Elizabeth Winstead plays the villainous Royal Pain and the principal at Sky High, wonderfully enough, is Lynda Carter. (Streaming on Amazon and Vudu)

Where the Truth Lies (2005)

Originally released with an NC-17 rating because of its unusually forthright sex scenes, this intricately noirish film by writer-director Atom Egoyan is a puzzle-thriller that deserves more attention than it has ever received. It focuses on Lanny Morris (Kevin Bacon) and Vince Collins (Colin Firth), a famous comedy duo (think Dean Martin and Jerry Lewis) who suddenly broke up in 1957, with no explanation, after a dead Miami woman’s body was found in the bathtub of their New Jersey hotel suite. Years later, a young journalist named Karen O’Connor (Alison Lohman) agrees to work with Vince as a ghostwriter on his autobiography, hoping to get to the bottom of the breakup mystery. Then she encounters Lanny, and things get very, very complicated. The movie has a wonderful retro-kinky air, and Bacon and Firth are bracingly unsavory in ways they had never been before. (Streaming on Amazon and Vudu)

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These 10 Underappreciated Movies Make for the Perfect Quarantine Viewing Experience

Now that we have all the time in the world on our hands, filling it with movies has become an organized pursuit, and helpful film lists have proliferated online. Some of these seek to cheer us up—classic comedies, vintage musicals, all from happier times, of course—or to put our despair in perspective with dystopian exercises like 12 Monkeys, Mad Max, The Road, and suchlike.

I want to offer something different: a list of oddball movies that were under-loved at the time of their release and have remained under-seen ever since. Some of these films, like the 2009 Jennifer’s Body, have been undergoing critical reevaluation and are now seen as lovable cult movies. The rest have also developed cults, of one size or another, but are still waiting for the full-scale love they deserve.

Jennifer’s Body (2009)

The critical indifference to this high-school horror-comedy was baffling. (It scored a rotten 44% on Rotten Tomatoes.) Diablo Cody’s screenplay—a marvel of sexy sarcasm—was the follow-up to her debut script for the 2007 hit Juno (whose director, Jason Reitman, is one of the producers here). And the star, Megan Fox, of the mega-budget Transformers franchise, delivered a luscious parody of her own sex-puppet image. Fox plays the titular Jennifer, a snooty cheerleader who falls into the clutches of an indie band called Low Shoulder, whose members are desperate to make it big and have decided to sacrifice a virgin in order to enlist Satan as their manager. Unfortunately, since Jennifer is not a virgin in any sense of the word, the band’s attempted ritual goes wildly awry and a newly demonic Jennifer is soon embarked on a bloody rampage. Amanda Seyfried effectively mutes her own movie-star looks to play Jennifer’s geeky friend Needy, and Chris Pratt, Amy Sedaris and J.K. Simmons are also on hand. (Now streaming on Amazon, YouTube, iTunes, etc.)

Surveillance (2008)

Crawling back from one of the most widely detested debuts in recent film history—the 1993 amputation oddity Boxing Helena—director Jennifer Lynch (daughter of David) made this seriously creepy serial-killer feature. Bill Pullman and Julia Ormond play a pair of FBI agents drawn to a slaughter site in the Nebraska hinterlands, where they interact with bent cops and druggy youths and search in vain for reliable witnesses. (There is one, but she’s 11 years old, and who wants to hear what a kid has to say?) The movie has a bleak, sunbaked vibe and a most unsettling conclusion. It scored a limp 55% on Rotten Tomatoes and has yet to attract many second looks. It’s never too late, though. (Now streaming on Amazon and Netflix)

The Fountain (2006)

Darren Aronofsky’s time-tripping masterwork was seen by some—well, many—as a pretentious romance. But it’s a spectacularly beautiful film that has steadily accumulated new admirers. Hugh Jackman and Rachel Weisz play Tom and Isabel, a couple whose love never dies. In 16th Century Spain, she is a queen dispatching him on a mission to the New World to find the Mayan tree of life. 500 years later—now—he is a research scientist searching for a cure for the cancer that is killing Isabel, who in this incarnation is his wife. He learns of an ancient tree in Central America whose bark may be the cure he seeks. In the year 2600 AD, we find Tom ascending through the heavens in a transparent bubble-ship containing a large tree. The glorious outer-space effects in this film are super-size blowups of microscopic chemical reactions (the work of optical-systems developer Peter Parks) and the magnificent score, by Clint Mansell, could become a permanent part of your life. (Streaming on Amazon, YouTube and Vudu)

The Midnight Meat Train (2008)

Critics liked this grisly horror film a bit more than audiences—possibly because Lionsgate unceremoniously dumped the picture in second-run theatres and not a lot of people got to see it. Bradley Cooper is a hustling photojournalist named Leon, who chronicles the denizens of the night in an unspecified big city (it’s L.A.). He becomes aware of a mysterious subway train that only runs at midnight, and naturally he wants to know more about it. This is as bad an idea as you would imagine. Alarmingly awful things befall passengers on this train, all of them doled out by a mallet-swinging brute called Mahagony (the naturally terrifying Vinnie Jones). Bloody violence is not in short supply (the movie is based on a Clive Barker story), but the Japanese director, Ryuhei Kitamura, really excels at building tension and dread, and also at oh-my-God editing. (Streaming on Netflix and Amazon)

The Brothers Bloom (2008)

This second feature by Knives Out director Rian Johnson is an eccentric fairy tale of overflowing charm. A pair of sibling conmen (Adrien Brody and Mark Ruffalo) make the mistake of trying to swindle a wacky heiress (Rachel Weisz), who numbers among her hobbies kung fu, power ping pong, and chainsaw juggling (on stilts), and who would love to become a swindler herself. The picture flits all around Central Europe, but even with the brothers bringing in a daffy explosives expert called Bang Bang (Rinko Kikuchi), we sense that the big con they’ve planned, in Prague, will not be working out well. They should have sensed something amiss when their mark observed, “The trick to not being cheated is to learn how to cheat.” (Streaming on Amazon and Vudu)

Black Dynamite (2009)

A wonderfully nutty tribute to ’70s blaxploitation movies. Michael Jai White is perfect as the titular Black Dynamite, a CIA operative just back from Vietnam who is intent on terminating some evil honkeys who are funneling heroin into the ghetto. There’s also a worrisome new brand of malt liquor that’s hit the streets, an array of pimps and pushers and vintage purple clothing, ultra-low-budget martial-arts and car-chase action, and a ridiculous crime lord called Fiendish Dr. Wu. There are also many great lines (scoping out B.D.’s deluxe pad, one character says, “You must have an eight-track in every room”). Director Scott Sanders shot this movie in three weeks (and later turned it into an animated series on Adult Swim). He should be working a lot more than he does. (Streaming on Amazon, Netflix, and Vudu)

Hancock (2008)

Released at the dawn of the cinematic superhero age (the same year Iron Man inaugurated the MCU), Hancock appeared to confuse critics with its relatively subtle combination of underplayed humor and real emotion. Despite the presence of Will Smith and Charlize Theron, the movie bombed. It deserves another chance. Smith plays a super-guy called John Hancock, who has the usual powers of flight, strength, and immortality. John does a lot of good in the world, but he also causes a lot of collateral property damage, for which he is widely resented. So he’s basically become an alcoholic living on the streets of LA. An admiring PR man named Ray (Jason Bateman) tries to help him and does; but then John meets Ray’s wife (Charlize Theron), and the movie takes a sudden turn into wild and unexpected territory. Very much worth taking a chance on. (Streaming on Amazon, Netflix, and Vudu)

The Fall (2006)

Although he’d already made one feature in 2000—the distinctively gruesome sci-fi horror film The Cell—Indian director Tarsem Singh continued earning most of his living shooting commercials. Kind of brilliantly, he decided to utilize the globe-trotting required by this profession to make another movie, on his own dime. This resulted, after four years, in The Fall, an extremely outré and astoundingly beautiful fantasy film shot in Cambodia, Italy, Indonesia, Bolivia and China, among other far-flung places. It’s a movie about stories and their telling and the heroes they require; but essentially it’s a vast sea of surreal imagery into which viewers are invited to sink their heads. There truly is nothing else like it. (Streaming on Netflix and Amazon)

Sky High (2005)

Will Stronghold (Michael Angarano) is a teenager living in the large shadow of his superhero parents. His father, Steve (Kurt Russell), is a successful real estate guy better known in super-circles as The Commander; his mom, Josie (Kelly Preston), is the famously supersonic Jetstream. Will doesn’t seem to have any powers of his own, so he’s apprehensive about entering ninth grade at Sky High, where superhero offspring are sorted into two categories: some will become superheroes themselves, others—the losers in life’s super-lottery—will become sidekicks. This is a Disney film, and thus family-friendly, but it’s also witty and hip (thanks mainly to Russell, a Disney veteran who made his first movie for the company in 1968). Mary Elizabeth Winstead plays the villainous Royal Pain and the principal at Sky High, wonderfully enough, is Lynda Carter. (Streaming on Amazon and Vudu)

Where the Truth Lies (2005)

Originally released with an NC-17 rating because of its unusually forthright sex scenes, this intricately noirish film by writer-director Atom Egoyan is a puzzle-thriller that deserves more attention than it has ever received. It focuses on Lanny Morris (Kevin Bacon) and Vince Collins (Colin Firth), a famous comedy duo (think Dean Martin and Jerry Lewis) who suddenly broke up in 1957, with no explanation, after a dead Miami woman’s body was found in the bathtub of their New Jersey hotel suite. Years later, a young journalist named Karen O’Connor (Alison Lohman) agrees to work with Vince as a ghostwriter on his autobiography, hoping to get to the bottom of the breakup mystery. Then she encounters Lanny, and things get very, very complicated. The movie has a wonderful retro-kinky air, and Bacon and Firth are bracingly unsavory in ways they had never been before. (Streaming on Amazon and Vudu)

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