Dorf on Law

By Mike Dorf In my latest Verdict colum n, I take seriously Newt Gingrich's idea that the U.S. ought to establish a lunar colony by the end of 2020.  I reach the following conclusions: 1) It's probably not technologically feasible on that timetable and almost certainly not without the sort of massive investment that Gingrich's fiscal druthers preclude; 2) It's illegal under the Outer Space Treaty (to which the U.S. is a party); 3) Withdrawal from the treaty would be a bad idea; 4) Work towards a multi-national lunar colony is worth considering as a means of preserving the human species; and 5) Considering the cost of such work, we might do better, in the short run, to take other measures to ensure the survival of our species. Here I want to examine point 3) in a somewhat broader perspective.  The question I want to pose is how treaties can be binding as a practical matter given the possibility of withdrawal.  Under Article 56 of the Vienna Convention on the Law of

By Mike Dorf Any regular reader of the NY Times Op-Ed page has known for some time that in nearly every column Gail Collins writes, she recounts that Mitt Romney once drove to Canada with his Irish Setter Seamus strapped to the roof of his car.  (She did it again over the weekend .)  Not long ago, NPR asked why Collins is so obsessed with the story.  To my mind, calling this an obsession is too kind to Collins.  It is a juvenile stunt that ultimately shows that she does not understand the privilege that has been bestowed upon her. Let's begin with the facts.  In 2007, the story surfaced that when Romney's children were young, he couldn't fit all of them, their luggage, and Seamus into the car, so to bring the dog along for a family vacation, they strapped his travel crate to the roof.  Collins virtually never mentions the fact that Seamus was in a crate, conjuring up the image of a dog spread-eagled or prone on the roof, which is a bit unfair to Romney, I suppose. As

-- Posted by Neil H. Buchanan This past weekend, hours before the print edition of Sunday's New York Times had even landed on my doorstep, I received emails from Professors Dorf and Lawsky. Both emails contained links to a new op-ed entitled: "The Dangerous Notion That Debt Doesn't Matter." The author, Steven Rattner, is identified as a Wall Street executive and former Treasury official. Professor Dorf's email said, in essence: "This guy is nuts." Professor Lawsky's email said, in essence: "This guy agrees with you." Of course, one way -- perhaps even the most natural way -- to read those emails is to infer that even my closest friends think I am nuts. Stipulating that I am ill-positioned to argue against that conclusion, however, I think that Rattner's op-ed reflects a deeply confused point of view that also includes some sensible and important arguments. The confused part is, unfortunately, REALLY confused; and it also seems t

-- Posted by Neil H. Buchanan Yesterday, at Duke Law School's new tax policy colloquium, I presented a draft (not yet ready for public dissemination, but abstract available here ) of the paper that Professor Dorf and I are writing. In it, we discuss the principles that a President should use to decide among a set of options, all of which are arguably unconstitutional. The motivation for that paper, of course, is the debt ceiling standoff that nearly destroyed the economy last summer, and that might be repeated soon (with no guarantee that the word "nearly" will be apt the next time). Our argument proceeds basically along the following lines: the debt ceiling statute violates Section 4 of the 14th Amendment (A14S4); and even if it does not, if Congress ever puts him in a no-win situation, the President should choose to ignore the debt ceiling as the "least bad" option (among a "trilemma" of choices: cutting spending, raising taxes, or issuing more deb

Posted By Sherry F. Colb In my Justia Verdict  column  this week, I discuss New York Governor Andrew Cuomo's recent push for amending the state constitution to legalize casino gambling.  Because opponents identify casinos as imposing a "regressive tax," I focus on the paternalism involved in banning casinos in order to protect poor people from their own voluntarily chosen, potentially irrational behavior.  In this post, I want to discuss a different sort of rational failure:  attentional blindness. In her book,  Now You See It , Cathy N. Davidson explains the many ways in which we routinely pay close attention to some features of our environment while completely missing other features that truly merit our consideration.  You can be looking at something directly and simply not see it, if your attention is otherwise engaged.  And even if you literally see something, you may not be able to absorb its emotional significance under some circumstances.  If one understands

By Mike Dorf No doubt many casual observers were stunned by the fact that today's Supreme Court decision in United States v. Jones , invalidating the month-long warrantless GPS tracking of a suspected drug trafficker's car, was unanimous.  But experts were not surprised.  As Professor Colb has observed in a series of columns ( here , here and here ) and blog posts ( here ,  here  and here ), there were sound legal arguments for finding that such intrusive GPS monitoring violates the Fourth Amendment, notwithstanding precedents upholding less effective forms of warrantless monitoring. I'll mostly leave to Professor Colb the task of explaining the Fourth Amendment aspects of the case in a future Verdict column and/or DOL post.  Here I want to focus on what, for me, was a truly important day in constitutional jurisprudence: the day Justice Alito declared that, at least so far as the Fourth Amendment is concerned, originalism is bunk.  (Props to U Texas Law Prof Mitch Berm

By Mike Dorf Last week's Supreme Court decision in Perry v. Perez  has been widely portrayed as a victory for Republicans in Texas, and thus in Congress, and so it probably is.  But it is also a neat little puzzle that may be useful for exploring the broader notion of severability. To oversimplify, the Supreme Court held in Perez that the district court erred in drawing its own electoral districts by giving insufficient weight to the districts that the Texas legislature had enacted based on 2010 census data.  It's true, the SCOTUS acknowledged, that parts of the enacted plan could violate Section 2 of the Voting Rights Act and/or the Constitution.  And it's also true that the enacted plan has not yet survived pre-clearance under Section 5 of the Voting Rights Act, pursuant to a separate proceeding in DC.  But--and this is the core holding of Perez --the district court still should have given greater weight to the lawful aspects of the plan drawn by the legislature. H

-- Posted by Neil H. Buchanan Last month, in " The Business of America ," I wrote: "Was Tony Soprano America's greatest fictional capitalist? One occasionally hears of real-life mafia bosses who defend their activities as 'just doing business,' and who are willing to say with a straight face that they are simply pursuing profit in a competitive environment. I suspect that some of them actually believe their own words. ... "For a long time, it was extremely difficult to prosecute mafia bosses, under the laws that then existed. Congress then passed RICO, which (although quite controversial on civil liberties grounds) radically changed the game. One mob boss was recorded screaming about RICO, as his organization was crumbling under the weight of criminal prosecutions." Last night, on The Daily Show, correspondent Jason Jones submitted this segment (just under 6 minutes): The Daily Show With Jon Stewart Mon - Thurs 11p / 10c Free Mark

-- Posted by Neil H. Buchanan In my latest Verdict column ( here ), I resume my defense of the legal academy, in this case against attacks from those who accuse us of writing articles that are a waste of everyone's time. I summarize that basic line of attack by quoting a now-famous line from Judge Cabranes's speech to the American Association of Law Schools conference earlier this month: "Legal scholarship is a conversation among members of the academy with the rest of us reading — maybe." The case for the defense includes observing that legal scholarship can be relevant in ways that judges might find unhelpful but that are important to the development of the law in other ways -- especially articles that (like almost all of my work) address legislative/policy questions. Beyond that easy (but apparently not obvious) point, I also suggest that the unique interdisciplinarity of legal scholarship is its greatest strength, in that we are able to view ideas from academi

By Mike Dorf Here's an adage for our times: Any position attributed to a Republican Presidential candidate by supporters of any of his rivals in the hope of making him look insufficiently conservative is likely, upon examination, to prove eminently sensible.  The idea du jour is felon voting.  A super-PAC supporting (but, if following the law, not formally affiliated or acting in coordination with) Mitt Romney, is running ads in South Carolina denouncing Rick Santorum for having supported voting by felons.  Here's the ad, with the bit about felons voting coming at the end: And here's Santorum and Romney mixing it up during Monday's debate over whether the accusation was fair: [Embedded video won't run on email, so email subscribers to DOL: Click here and here to view the videos.] Santorum has two complaints about the ad.  First, as he explained during the debate, it's hypocritical of Romney supporters to call Santorum to task for the ad when Romney

By Mike Dorf In my latest Verdict column , I discuss the controversy over President Obama's recess appointments to the Consumer Financial Protection Bureau (CFPB) and the National Labor Relations Board.  When Republicans made clear that they would filibuster any of the President's nominees, he issued recess appointments, even though the Senate was still holding "pro forma" sessions.  The kerfuffle raises the constitutional question of whether the President's recess appointment power exists during such pro forma sessions.  I argue in the column that the answer to that question is not clear as a matter of constitutional law and that therefore, as a matter of constitutional politics, the right answer should depend on the underlying virtues and vices of the nominees and policies. Here I want to propose a thought experiment inspired by the current case.  Let's suppose that, as threatened, the Republicans sue, and that they find some party with legal standing to

-- Posted by Neil H. Buchanan Two weeks ago, during college Bowl Week, I posted some thoughts on the recent calls to pay college football (and men's basketball) players for their money-making efforts on behalf of their universities. Although I agreed that the NCAA is obviously failing in many ways to police big-time college sports, especially to protect the players and allow them to reap the benefits of their scholarships, I concluded that paying college players was neither necessary nor wise. In the final paragraph of that post, I argued that paying players "would simply be a different kind of exploitation, in which we would be removing a ladder to real opportunity, feeling good about ourselves because we paid them money for a few years." The elephant in this room, of course, is race, which I deliberately did not address in my previous post. Today, on Martin Luther King Day, I return to this issue, to explore how race weighs on the question of paying players in re

-- Posted by Neil H. Buchanan A friend recently told me that she intends to convince me that Barack Obama "is the best president of our lifetime." Regular readers of this blog know that this would seem to be a steep hill to climb, because I have been highly critical of Obama since even before he was inaugurated. (Among many examples of my often-fierce criticism of our President, see here .) I was never a big believer in Obama in the first place, but I did strongly support him over Hillary Clinton in the primaries. Over the course of his first three years in office, however, I have become ever more convinced that he is simply a right-of-center old-fashioned moderate Republican, rather than (as his defenders suggest) a true progressive who has been forced by political realities to agree to pragmatic compromises. Of course, I knew all along that, when push came to shove, we would all fall in line behind Obama in 2012. There was simply no way to picture any of his potential