Dorf on Law

Per the Washington Post: "A changing environment will affect Alaska more than any other state, because of our location," Gov. Palin said. "I'm not one though who would attribute it to being man-made." The theory of the (tiny minority of) scientists who accept the reality of global warming but question the significance of human contributions to it is that over the course of geological time, the Earth goes through periods of cooling and warming, and that it's just a coincidence that the current period of warming coincides with unprecedented human release of greenhouse gases into the atmosphere. That's a doubtful theory on its own, but note a key premise: geological time, measured in hundreds of millions of years, substantially longer than the six or so thousand years since the beginning of time according to the Biblical account of creation. So, someone who believes in the literal truth of the Biblical story of creation would seem to be unable to rely on ...

One of the problems Sen. Obama faces as a result of picking Sen. Biden as his running mate is that it somewhat undermines his ability to run as the candidate who displayed the better judgment on the crucial issue of our time: the decision whether to go to war in Iraq. If voting for the war displayed bad judgment--as Obama says, and I agree, it did--then why did Obama pick a running mate who, like Sen. McCain, supported the war? To finesse this question, the Obama campaign can distinguish the relative enthusiasm of Biden and McCain. Biden says he supported giving Bush the authority to pressure Saddam, whereas McCain was gung ho for the invasion, and only started criticizing the Bush Administration's execution of the war well after the insurgency was established. These are legitimate distinctions but they don't entirely erase the challenge that picking Biden poses for Obama's foreign policy judgment argument. Still, if Obama faces a hurdle in making his argument, McCain w...

In a series of recent posts (on August 18 , August 21 , and August 27 ), I have discussed housing policy in the United States in the context of the current mortgage crisis, a crisis that began with the excesses in the subprime sector but that has now spread into the rest of the housing market and the financial sector as a whole. The two most recent of those posts were mostly devoted to: (1) disproving the myth that home ownership is the key to financial success for average Americans, and (2) showing that home ownership is not the only way to create safe and stable neighborhoods. Owning one's own home has become something that every politician extols, employers encourage, the tax code subsidizes, people write songs about, and just about everyone believes should be the goal of a good society. It is genuinely surprising, then, that the benefits of home ownership are so overstated and the costs so ignored. One possible conclusion to this line of posts would be to say, "Well, n...

Obviously, everybody is excited about the fact that the Obama-Biden ticket contains a major "first": it's the first major-party ticket to include a candidate from Delaware (the First State), which means that there was a 221-year gap between the time that Delaware ratified the Constitution and the time on which a Delawarean (can that possibly be right?) landed on the ticket. Off the top off my head, I'm pretty sure that Rhode Island is the only one of the original 13 that's still waiting its turn, and Vermont (the 14th state) is close behind. Any other long-term goose-eggs that you can identify? Posted by Craig Albert

I agree with Mike’s post from several hours ago about Jeffrey Rosen’s defense of Joe Biden from conservatives who have faulted Biden for his handling of the Bork and Thomas confirmation hearings. Rosen refers to liberals’ “ad hominem attacks” on Bork and commends Biden for having “made clear that he would not tolerate” them. Rosen’s one example of these attacks is Senator Kennedy’s claim that “Robert Bork’s America is a land in which women would be forced into back-alley abortions.” The point I would like to add is that ad hominem attacks are an entirely appropriate method of opposing a judicial nominee, including in confirmation hearings. Ad hominem arguments--arguments against the person--are invalid because one can’t refute an argument by discrediting the person who states the argument: the argument stands or falls on its own strength, regardless of the speaker. (Actually, as everyone knows, you can often get to the right answer faster and more reliably by evaluating the spea...

No, I don't have in mind the moving speech Senator Kennedy gave a few nights ago at the Democratic National Convention. I'm talking about the speech Kennedy gave over two decades ago, expressing his view that the Senate should reject President Reagan's nomination of Judge Robert Bork to the Supreme Court. In my latest FindLaw column , I explain that, as Chairman of the Senate Judiciary Committee, Senator Biden was impeccably fair in how he conducted the confirmation hearings for Judge Bork and for Judge, now-Justice, Clarence Thomas. In an Op-Ed in yesterday's NY Times, Jeff Rosen takes the same view. Rosen goes on to charge, however, that unlike Biden, some liberal senators and interest groups were eager to distort [Bork's] record. Hours after the nomination was announced, for example, Senator Edward Kennedy charged that Robert Bork’s America is a land in which women would be forced into back-alley abortions.” There is no question that Kennedy's speech wa...

For decades, the late Vincent "the Chin" Gigante was renowned for his methodical efforts to convince the world that he was crazy. Or, if not the world, at least the judges before whom prosecutors sought to convict the well-known crime boss on charges ranging from bribery and racketeering to conspiracy to commit murder. Gigante went to painstaking lengths to convey the appearance that he was mentally ill and therefore incompetent to stand trial, wandering around Greenwich Village in his bathrobe and slippers while either muttering to or having boisterous arguments with himself. (And on occasion, for good measure, scooping up cigarette butts off the sidewalks and trying to smoke them.) While the so-called " oddfather " never received the Oscar that he so richly deserved, he did manage to avoid facing trial for many years before finally being tried and convicted by a jury in connection with a conspiracy to murder a former associate in 1997. Gigante ultimately was force...

After I blogged yesterday on the decidedly ill-informed Wall Street Journal op-ed regarding the Employee Free Choice Act, I got to wondering why the Journal wasted ink and paper on a bill that died in the Senate nearly 1½ years ago on a 51-48 cloture vote. The answer, I think, was revealed in this morning’s Journal. Yesterday’s op-ed was a lead-in to set the stage for today’s lead editorial entitled “Big Labor’s Comeback,” which explains in Journalese why card check authorization will spell the end of life on Earth as we know it. Unlike the Marcus op-ed yesterday, today’s editorial isn’t simply ill-informed. Rather, it’s completely wrong. It says The main vehicle [for rewriting federal law to promote union organizing] is “card check” legislation, which would eliminate the requirement for secret ballots in union elections. Unable to organize workers when employees can vote in privacy, unions want to expose those votes to peer pressure, and inevitably to public intimidation. This w...

In my most recent post, I pointed out that -- contrary to widely cherished assumptions -- the supposed financial benefits of home ownership, compared to renting, are minimal to non-existent. Even taking into account the tax advantages from deducting mortgage interest and property taxes (the latter of which are disallowed for taxpayers who must pay the Alternative Minimum Tax), it turns out that many (even most) people could do just as well or better financially by renting their residences. Putting money into home equity is, for many people, worse than paying rent and putting their savings into other financial instruments. This is, of course, shocking news to Americans who have been told repeatedly that there is no better investment than their homes. There is an additional financial disadvantage to home ownership that I did not emphasize. Buying a home violates the bedrock principle of safe investing: diversification. No responsible financial advisor would tell the average person ...

I am not much of a fan of horror fiction. I do not read Stephen King. When I am in the mood for a mix of something scary stupid however, I need only open the pages of the Wall Street Journal and read the editorials and opinions. One of today's Journal horror stories is an op-ed by Bernie Marcus, the founder of Home Depot, in which he rails against a proposed piece of legislation called the Employee Free Choice Act. He claims that enactment of this amendment to the National Labor Relations Act would “virtually guarantee that every company becomes unionized.” Mr. Marcus's view echoes that of many others who oppose unionization in the workplace. Since this is a presidential election year, the electorate necessarily is focused on election mechanisms, and little is more emblematic of American elections than the secret ballot. It’s understandable, then, that much of the criticism of the Employee Free Choice Act centers on the canard that it eliminates the “secret ballot.” [1] ...

Okay, first let's give credit where credit is due: Sasha Obama stole the show. No disrespect to my own two daughters but there is no way I would have trusted either of them on such a big stage not to make a bathroom joke. Now, a couple of reactions to the speech. First, I just think it's sad that the obvious point of the introductions by Michelle Obama's mother and brother, as well as her speech itself was to say: "Michelle Obama is not at all scary and has the same values as middle-class white people. And even more so for Barack Obama." Her brother even worked in that Michelle grew up watching the Brady Bunch, and much of Michelle's speech, with its emphasis on the virtue of hard work and the importance of family, could have been given by Ronald Reagan himself. It's not that we Democrats don't believe in these things, of course, but (with the exception of Ted Kennedy's speech, which was not shown live on the networks) the script for the eveni...

I've heard that people want $2-a-gallon gas again, and I'm willing to bet that the presidential candidate who promises to deliver it is going to do well in the election. Now, putting aside the myriad of conspiracy theories that one can (and many do) spin out regarding what's happened to the price of crude oil over the last couple of years, we can certainly agree that three big factors in the run-up in prices are (1) a demand-shift brought about by higher consumption patterns in emerging economies, notably China and India, (2) a downward supply-shift brought about by the war in Iraq, and (3) weakening of the US dollar. We can't fix #1; it will take a lot of time and money to fix #2; and there's so much at work behind #3 that there's not really a short-run fix. Is it any surprise, then, that the terms of the political debate have shifted to something that is unlikely to do anything at all in the foreseeable future? I write, of course, of deep-water drilling on the...

Among the charges leveled against the West these days by Moscow's defenders is hypocrisy. Viewed from the U.S., the obvious parallel is Iraq: If we get to invade Iraq without prior international approval, why can't Russia invade a much closer neighbor? But the better analogy---and the one that has apparently stirred up the Russians to a greater extent---is Kosovo. Recall that the NATO operation in Kosovo was not authorized by the UN Security Council, and thus, from the perspective of international law, illegal. Indeed, it was also probably illegal from the perspective of domestic U.S. law, as President Clinton sought and failed to obtain Congressional approval for the action, but then went ahead with it anyway. At the time, the internationalist left in the U.S. was divided. (But pretty much only in the U.S. I happened to be in Italy at the time, where the left was almost unanimously opposed to the action, not principally on Serb-friendly grounds but on general anti-war and...

(Cross-posted from SAJAforum ) This month, Rinku Sen launches a new book, " The Accidental American: Immigration and Citizenship in the Age of Globalization ." In the book, Sen, along with Fekkak Mamdouh , narrates the story of the Restaurant Opportunities Center of New York , an organization that supports and organizes workers in New York's restaurant industry. ROC-NY was initially founded by Mamdouh and fellow organizer Saru Jayaraman to support workers, like Mamdouh himself, who were displaced from their jobs at Windows on the World, the restaurant that was at the top of the World Trade Center's North Tower. In the aftermath of the 2001 terrorist attack, which claimed the lives of 72 individuals who worked at Windows, ROC-NY helped the surviving Windows workers launch a cooperatively-owned restaurant, Colors . Since then, the organization has expanded its work to organize and advocate for improved working conditions for restaurant workers throughout New York City...

When some people think of Sen. Joe Biden, they'll think of the unconscious racism of his characterization of Sen. Obama as "clean and articulate." Others will think back to the borrowing without attribution of Neil Kinnock's campaign speech. Or, those inclined more positively, will recall his terrific zinger about Rudy Giuliani ("a noun, a verb and 9/11"). The more serious will have a view about whether partition is the right course for Iraq. For me, though, the defining Biden moment came over 20 years ago, during the Senate confirmation hearings on Judge Bork's nomination to the Supreme Court. (Complete pdfs in 5 parts are here .) Biden was the Chairman of the Senate Judiciary Committee at the time and during the course of what was essentially a week-long seminar on constitutional law, he showed himself to be clearly in command of the material. Only Senators Hatch and Specter were in the same league. Moreover, thoughout the course of his Senate c...

[Hi all. I’m a newcomer to Dorf on Law, so I’ll briefly introduce myself: I graduated Columbia Law School in 2007, clerked on the Ninth Circuit this past year, and I’ll soon be joining the appellate litigation group of a New York City law firm. I’m grateful to Mike for giving me this opportunity, which I’m very excited about. I’ll try my best to match the quality of others’ posts, but please note that they do not review or edit my writings, so all errors are my own.] According to this story in the New York Times, the International Table Tennis Federation is exploring sexier uniforms for its athletes in order to draw more spectators. Assuming that that this strategy would be successful, should the ITTF seriously pursue tighter, more revealing outfits? The downside is apparent. When management---ITTF executives, team leaders, etc.---believe that the financial health of the sport is dependent on the attractiveness of the athletes, there is a risk that players who are less beautiful or wh...

Apparently regretting the role he played in bringing down the old Soviet Union, Mikhail Gorbachev has this astoundingly bellicose op-ed in the NY Times. Gorbachev begins with the claim that Georgia basically "asked for it" through its overly harsh response to South Ossetian separatism. Gorbachev puts the blame on Saakashvili for repeatedly refusing to sign "a legally binding agreement not to use force" against South Ossetia. Talk about the puss calling the maggot white! Would that be like the agreement Russia signed pledging not to use force against Chechen separatists? Oh, wait, there was no such agreement. Only the Bush Administration rivals Gorbachev for tossing stones from inside the glass house in its statements that in the 21st century you can't just invade another country because you don't like its leadership. Or as Secretary of State Rice put it, "When you start invading smaller neighbours, bombing civilian infrastructure, going into vil...

-- Posted by Neil H. Buchanan Earlier this week, I posted some thoughts on the ongoing mortgage crisis, describing various reasons why federal intervention is necessary and appropriate given the depth of the current problem and the circumstances under which mortgage loans are arranged. No matter how one feels, however, about the best way for policy makers to respond -- or, for that matter, whether they should respond at all -- this crisis raises a much more fundamental question: Why do so many people take out mortgages in the first place? With so many people facing financial ruin over mortgage deals that they can no longer afford (if they ever could), why are we not asking whether widespread home ownership itself is at the root of the problem? Now that the recent housing bubble has burst, it seems obvious that too many people who shouldn't have tried to buy houses were approved to take out mortgage loans. One take on the problem, therefore, is that these people were simply not ...

Earlier in the day, I posted and then deleted a piece about the prospect of one of the Vice Presidential candidates retaining his seat in the Senate while serving as VP. The musing came about because I thought the winning presidential candidate would be foolish to cede a Senate seat in a tightly-divided Senate, and in the rush of things I forgot about the Incompatibility Clause, Art. I, sec 6. My bad. But then I read a piece by a fellow named Seth Tillman, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1099355 , in which he argues (in a nicely-researched piece that I nevertheless find unpersuasive) that the Incompatibility Clause does not bar the President (and presumably the Vice President) from serving as a senator. So now, putting aside the question of what the correct answer is, let's muse about what might happen if, say, Joe Biden were elected Vice President and then showed up on January 3 or January 21 to run the Senate, preside over the Foreign Relations Committee, and...

So here I am sitting in my office, having just finished writing a draft of a short article on the Second Amendment, and looking to goof off for a few minutes by surfing the web. I go to ESPN.com and see that Usain Bolt has won the gold and set a new world record in the 200. Cool, I think, I'll watch that. ESPN doesn't have the video, however. Okay, I get it. NBC paid gazillions for the rights to cover the Olympics, so I'll go to their Olympics website. No luck there either. There's a story about the 200, and some still photos, but not the race itself. So I try the BBC website. It has video but the video won't play in my "region." There's probably some way to disguise my location and get the feed, but that's beyond my technical capacity and/or need to see this race right now. Indeed, the only place I can find Bolt's race is on Youtube, where someone has used a handheld camera to videorecord a French broadcast of the race, and then up...

Per the 12th Amendment, candidates for the Vice Presidency must have the same qualifications as those for the Presidency, including being at least 35 years old. Thus, Michael Phelps is not available to serve as running mate for either Sen. McCain or Sen. Obama. Even the Olympics consummate running mate this year, Jason Lezak, is a few years too young. Thus, if either candidate wants to cash in on Olympic fever, he'll have to pick Dara Torres or perhaps Jason Kidd (assuming the U.S. beats Australia in the basketball quarterfinals). Which leads me to the following question, which I'll pose more or less as an open thread: What is the effect of the Olympics on the Presidential election, each held the same year every four years? My preliminary thoughts are that it has the following impacts: 1) The Olympics help Republicans, as they stir up feelings of unalloyed patriotism, and while candidates for both parties are patriotic, Democrats tend to define patriotism in more complex wa...

Last week the 2nd Circuit sua sponte decided to rehear en banc its decision in the Arar case . (For you non-lawyers/non-Latin speakers, that means it decided on its own to rehear the case with all judges participating rather than the panel of 3 that originally heard the case.) Arar is a Canadian citizen who was detained by U.S. authorities at JFK airport while flying back to Canada from Tunisia by way of Switzerland, then shipped off to Syria to be tortured. (The Canadian government was complicit as well but that is the subject of separate proceedings in Canada.) He sued a number of U.S. government officials for damages, but for a variety of fairly complex reasons, the 2nd Circuit panel denied him relief. Judge Sack, dissenting, took issue with the majority's reasoning on one point: that there was no jurisdiction because the alleged wrongful acts did not take place inside the U.S. As the majority noted, to the extent that the alleged wrongful act was Arar's removal from ...

-- Posted by Neil H. Buchanan Here on Dorf on Law , I recently discussed the problem of abusive credit card practices, suggesting that the discussion of whether and how to rein in certain controversial practices by credit card issuers will be distorted by absolutist rhetoric about contracts. "But they agreed!" is likely to be the retort to any suggestion of legal relief for people who signed or clicked through contract provisions that they now wish to avoid. I noted briefly in that posting that this absolutist language of contract carries over to debates about the loan contracts at the center of the current mortgage crisis. Again, the argument is that grown-ups must be held to their agreements, making any provision to modify or set aside contract terms now viewed as onerous a dangerous and paternalistic response. The presumption in any system of contract must surely be that agreements will be honored. That part is easy. What we often seem to forget is that no system of c...