Dorf on Law

As many are aware, this year's Nobel Prize in Economics went to Paul Krugman. According to some accounts, one of the accomplishments that garnered Krugman his prize was his work on international trade and comparative advantage. Basically, Krugman explained why it was that at the same time as Germany exports cars to Japan, Japan might also export cars to Germany. The reason is because Japanese cars have somewhat different characteristics than German cars, and this allows the dynamics of comparative advantage (aka Ricardo's Law) to manifest themselves within industries as well as across industries. (In a sense, Krugmen can also be seen as offering a solution to the famous koan advanced by the ancient Chinese philosopher Gongsun Long, who asked, " Is a 'white horse' a 'horse '?" Krugman’s answer would seem to be: "it depends on if they are competing or substitute goods.") But Krugman’s demonstration also has some important but heretofore overloo

Early last month, I posted some comments about the differences between the ways economists and lawyers think about problems. While any such observation surely oversimplifies, I noted that -- based on my experiences both as an economics professor and as a law professor -- each profession seems to instill certain tendencies in its practitioners. While lawyers seem to take an all-or-nothing approach to problems (leading them too often to reject useful partial solutions because "that won't solve the problem"), economists come to believe their models just a bit too much. On the latter point, Alan Greenspan's recent testimony before Congress to the effect that he has been in "shocked disbelief" at the failure of his long-held model of how the economy works (unregulated markets will lead to good results) has shown the potentially enormous negative consequences of the economist's default mindset. Beyond the tendencies that are drilled into members of the two

Today on FindLaw , I have a column that explores the theory that underlies bans on a method of abortion called "intact dilation and evacuation" (or D & X). In 2003, Virginia passed a law that it called the "Partial Birth Infanticide Act" -- which largely mirrors other so-called "partial-birth abortion" legislation that prohibits one form of second-trimester abortion. The U.S. Court of Appeals for the Fourth Circuit heard argument (for the third time) on Tuesday on the Virginia law, which is challenged as placing an undue burden on a woman's right to terminate a pregnancy. As I point out in the column, the coming election will play an important role in determining the future of such laws and, more generally, the continuing ability of women to decide whether or not to remain pregnant. As a moral-philosophical matter, the column argues that one might distinguish different abortion methods from one another but that "partial-birth" is an u

Let's say you're a small business owner, perhaps you own a plumbing company with 5 employees, each one a master plumber earning $120,000 annually . Your business might be organized as a sole proprietorship, a joint venture with your spouse (if it's a mom & pop business), a partnership, a LLC, etc. (For a useful explanation, click here .) The tax code provides a variety of combinations of burdens and benefits depending on the nature of the organization, but regardless of the form of the business, one rule applies: Taxes apply to profits, which are calculated after subtracting expenses, and expenses include salaries of your employees (with some special rules for yourself and your family when classified as employees). For simplicity, let's assume your business is a sole proprietorship and your five employees are not related to you. Now let's say that your small business is successful enough to generate more than $250,000 in after-expense profits. Let's ima

Sen. McCain has called upon Sen. Stevens to resign from the Senate now that he is a convicted felon. The NY Times story so reporting does not clearly state whether Sen. McCain thinks Sen. Stevens should resign effective immediately, thereby all but ensuring the election of Democrat Mark Begich to the Senate, or whether McCain would prefer if Stevens stayed on the ballot, won the election, and then resigned, giving Governor Palin a chance to name an interim Republican Senator pending a special election. (For a discussion of the further complexities of filling vacancies in Alaska's Senate seats, see this post by Rick Hasen.) The latter course would presumably be in what McCain regards as the country's best interest, since it would reduce the Democratic margin in the Senate. Yet the man who puts country first does not appear to be suggesting a delayed resignation. Why not? Herewith 3 possibilities: 1) Perhaps I've just misread McCain and he does have in mind a resignat

Glenn Reynolds has a short Op-Ed in today's NY Times arguing that Sarah Palin may have gotten it right when she described an active role for the Vice President in Senate affairs. Palin, in answering a third grader's question about what the VP does, recently said the VP is ". . . in charge of the United States Senate, so if they want to they can really get in there with the senators and make a lot of good policy changes . . . ." (The ellipses do not do any damage to Palin's full statement, available in text here and for viewing below.) The Constitution provides that "[t]he Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided." By tradition, the Vice President is not "in charge of the" Senate, as Palin put it, but the text of the Constitution does not literally rule out the sort of active legislative role Palin describes. Indeed, Reynolds says, precisely because the V

The Supreme Court's June decision in Boumediene v. Bush entitled Gitmo detainees being held as enemy combatants to file habeas corpus petitions to challenge the basis for their detention because, in the majority's judgment, the procedures for judicial review of Combatant Status Review Tribunal (CSRT) enemy combatant status determinations set forth in the Detainee Treatment Act (DTA) and Military Commissions Act (MCA) were not an adequate substitute for habeas. But what about Gitmo detainees who have had CSRTs and want to take advantage of the judicial review provisions of the DTA and MCA? That question is presented by the government's rehearing petition in Bismullah v. Gates . The DC Circuit panel decision in Bismullah , which was handed down before the Supremes decided Boumediene , held that detainees' lawyers (who have security clearances) have a presumptive right to see all the evidence adduced to support a CSRT enemy combatant status determination. Otherwise, th

According to this news story , a federal district judge has dismissed a lawsuit against Sen. Obama, alleging that he is ineligible to be President because he was not born in the U.S. In fact, Obama was born in the U.S. (Hawaii to be exact), but that was not the basis for the dismissal. The case was dismissed on the ground that the plaintiff lacked standing, being unable to show a personal injury. That's even better news for Sen. McCain than for Sen. Obama because while Obama is undoubtedly qualified, some uncertainty surrounds McCain's eligibility. The Constitution requires that the President be a "natural born Citizen." It is not entirely clear what this odious requirement means, but one pretty clear possibility is it requires that, at the time of his or her birth, the person in question was a citizen. McCain was born in the Panama Canal Zone, and so did not get automatic citizenship under the 14th Amendment. Moreover, according to an article by Professor Gabr

As Neil noted yesterday, today continues the Symposium on what we owe future generations at GW Law School. I'm presenting my paper today. It's still too rough for me to post online, so I'll give a very brief overview here. Prima facie, a constitution is a curse rather than a blessing bestowed on future generations because a constitution limits the political freedom of the future generations. However, this view is superficial. Structural constitutional provisions provide a framework for democracy, thus empowering future generations to enact the policies they deem necessary, rather than leaving them constantly to re-fight the ground rules. Constitutional rights , by contrast, do seem more problematic. One standard defense of constitutional rights posits that democracies go through periods of insecurity in which mob rule leads them to lose sight of their most fundamental values. Constitutions enshrine these values, thus protecting against backsliding (or what Justice S

This afternoon and all day tomorrow, GW Law will be hosting a symposium : "What Does Our Legal System Owe Future Generations? New Analyses of Intergenerational Justice for a New Century." There will be an opening panel on the philosophy of justice between generations, followed by four panels discussing the implications for intergenerational justice of the following areas of policy: government spending and taxation, environmental law, reproductive rights, and consitutional law. The principal presenters for the five panels are, respectively, Bob Hockett (Cornell) and Ori Herstein (private practice), Neil Buchanan (GW) and Dan Shaviro (NYU), Jamison Colburn (Penn State) and Matt Adler (Penn), Sherry Colb (Cornell), and Mike Dorf (Cornell). I have been working with the GW Law Review students to organize this symposium, which is based on my forthcoming article : "What Do We Owe Future Generations?" Over the last several years, I have been trying to work through the im

Yesterday's NY Times ran a story by Adam Liptak about how two prominent conservative federal appellate judges had criticized the Supreme Court's decision in D.C. v. Heller , likening the Court's discovery of an individual right to possess firearms for self-defense in the Second Amendment to the Court's discovery of a right to abortion in the Due Process Clause of the Fourteenth Amendment. Herewith, a few reactions: 1) This isn't all that surprising. These days Judge Posner is less of a conservative than a Holmesian pragmatist. He is strongly skeptical of the claim that formal legal materials---whether the Fourteenth Amendment or the Second Amendment---resolve concrete cases and, where appropriate, will unabashedly argue that judges should therefore make decisions based on what they consider the all-things-considered best outcome. Because one of the things considered in constitutional cases is the allocation of decision-making authority, this inclines Posner (li

My latest FindLaw column praises the Supreme Court for its per curiam in Brunner v. Ohio Republican Party . The Court acted in a principled way, I say, by applying the very restrictive law on implied rights of actions for private parties to sue to enforce Acts of Congress. For the most part, that restrictive doctrine has been the brainchild of conservatives, and so it is nice to see the Court applying it even-handedly against the Republicans. Here I want to say a word about the merits of the underlying lawsuit, which I describe in the column. (If you haven't read the column, you'll find the rest of this post hard to follow, so go read the column!) After all, the Supreme Court's ruling that private parties can't sue to enforce a particular provision of the Help America Vote Act (HAVA) does not mean that the Ohio Secretary of State isn't under a duty to comply with HAVA. Here's the puzzle: The Motor Voter law says that state election officials can't sys

As announced, I was on " The Takeaway " this morning, talking about the effect of the election on the Supreme Court. At least I was on the second try. While I was waiting to come on the air, one of my daughters accidentally put another extension of the phone on, and so I got cut off when the producers of the show heard her and her sister discussing High School Musical or some other weighty subject. When I finally did come on, there was less time than expected---or so I surmise in retrospect from the fact that the hosts appeared impatient with my thorough answers. Or maybe I'm just longwinded. (Update. Link for audio now works.) Anyway, one effect of my poor clock management was my inability to use my one prepared zinger. Anticipating a request for specific names that might be on the list of possible Obama and McCain Supreme Court appointees, I planned to say something like the following with respect to McCain: Throughout his career, Senator McCain has not been esp

Even among highly educated professionals, there is a persistent difference in the salaries of men and women. Untangling the reasons for that difference is quite difficult, and it involves as a threshold matter trying to figure out whether there are factors other than gender that explain why women earn less than men. Some studies have suggested that the difference in salaries is not in the first instance about the gender of the worker but about the worker's status as a parent or non-parent. Some empirical research, for example, has found that men with children earn more than everyone else in their fields but that there are no detectable differences among women with children, women without children, and men without children. I recently finished a draft of a paper (available here ) in which I looked at the results of two surveys of graduates of the University of Michigan Law School from the classes of 1970 through 1996. These surveys were developed by Richard Lempert, David Chambe

On Monday morning (7:20 Eastern time, more or less), I'll be on the radio show " The Takeaway ," a co-production of the BBC, WNYC, and the New York Times, talking live about how the Presidential election is likely to shape the Supreme Court. (At least we know there'll be no litmus test!) WNYC streams over the web and The Takeaway's website also provides a variety of listening options. If I say anything REALLY REALLY stupid, I'll be sure to remove this post. Posted by Mike Dorf

In the opening pages of my book No Litmus Test , I noted that while Presidents and Presidential candidates commonly say they will not impose a "litmus test" for Supreme Court nominees, this is clearly false. Surely all Presidents would impose a litmus test barring otherwise qualified nominees who thought that Brown v. Board should be overruled. Indeed, most informed observers think that Presidents will now impose litmus tests on abortion, the issue it is meant to refer to. To be sure, they may not always succeed: A Republican President with a strongly Democratic Senate will sometimes pick a candidate who is squishy on overruling Roe v. Wade , but that's a matter of pragmatic politics or incomplete screening, not preferences. Nonetheless, in Wednesday night's debate , both Senators McCain and Obama said they would impose no litmus test, even as each pretty strongly indicated he would. McCain's answer, to be sure, was practically word salad. Asked point blank

The final 2008 presidential debate was held last night at Hofstra University. As I have done with the two previous presidential debates and the vice presidential debate , I watched last nights' debate from the standpoint of a former debater and debate coach/advisor. Setting aside questions of who positioned himself best in the eyes of pundits or undecided voters, I once again watched the debate as if it were simply a debate and assessed the winner and loser on the basis of who argued and responded more effectively. Whereas in the previous two debates it was clear that Sen. Obama was allowing himself to be dragged down by his opponent's deficiencies as a debater, in this debate he pulled away cleanly and easily won the night. This is true even though Sen. McCain managed to improve somewhat on his earlier weak performances. Last night's debate was, to my pleasant surprise, the best debate of the four that have been held this Fall. There was some actual arguing between

Neil will have a more complete analysis of the debate in the morning, but here I want to register a reaction to a point that at least 3 Republican-leaning pundits made. Each said he was surprised that Sen. McCain didn't offer the blessings of divided government as a basis for supporting him, McCain. With Nancy Pelosi in charge of the House and Harry Reid in charge of the Senate, the argument would go, Americans need a Republican President to check the Dems. It strikes me that McCain simply could not make this argument for two reasons: 1) It would essentially concede the House and Senate. Of course we know that the Dems will almost certainly add to their majorities in both chambers but every seat in the House is up for election and enough seats are up in the Senate to make it theoretically possible for the Republicans to take control there. The only way for McCain to say there ARE going to be Democratic majorities in both chambers is by relying on polls, but if he has confidence

Perhaps the most astute analysis I've heard of the Presidential campaign came over the weekend from a caller on Michael Feldman's radio quiz/variety show, Whad'yaKnow . The caller, who claimed to be undecided, likened his voting choice to the decision whether to buy a PC or a Mac, which he had recently faced. He then explained that if you ask a Mac owner why to buy a Mac, he'll tell you all the things he likes about a Mac, but if you ask a PC owner why to buy a PC, he'll tell you everything that's wrong with a Mac. The caller then said he had bought a Mac. This analysis jibes with the most recent polls showing that McCain's having gone negative hurt him more than it hurt Obama. How do we reconcile that with the conventional wisdom that while voters say they don't like negative campaigning, it works? Here I think the key is that the attacks were both coming from too close to the McCain campaign (i.e., from Gov Palin) and they were not even arguably

Today the Supreme Court hears oral argument in Pearson v. Callahan . The underlying Fourth Amendment issues are nicely explained in Sherry Colb's most recent FindLaw column . There is, in addition, a procedural issue that may prevent the Court from reaching the merits: whether to overrule Saucier v. Katz , a question that the Court specifically added to the petitioners' questions. In Saucier the Court held that when deciding a civil case in which the defendant raises a qualified immunity defense, the courts should first decide whether the plaintiff's claim states a constitutional violation, and if so, only then consider whether the defendant had qualified immunity, i.e., whether at the time of the alleged rights violation it was clear that what the defendant did violated the plaintiff's rights. The Saucier rule has been justified on the ground that without it the law could become frozen, with courts only ever deciding what the law was, rather than what it is. It

I spent a year in New Zealand in the 1980s, at a time when that country's economy was still struggling to make the transition from essentially exporting agricultural commodities into something more dynamic. A popular joke was to describe the government in those days as having unwittingly adopted the economic policy of the fringe "Values Party" (a predecessor to the NZ Green Party ). The Values Party called for, among other things, zero economic growth. That was a good joke but it points to an underlying problem: Economic growth often has terrible long-term environmental consequences. More economic activity means more demand for fuel and thus more pollution, global warming, etc. Conversely, economic stagnation can be beneficial. The recent drop in oil prices reflects the market's assessment that a global recession will mean less in the way of energy consumption. (Lower demand means lower prices.) To be sure, the relation between growth and the environment is comp

After the first presidential debate late last month, I posted some comments about the event from my perspective as a former academic debater and coach/advisor. Similarly, I later posted some reactions to the vice presidential debate. The short version of my take on those debates is that Obama clearly won his debate, but paradoxically not by as much as he would have if his opponent were not such an insistently inept debater; and Biden won his debate by successfully transcending his opponent's inability to offer a coherent argument. In making these assessments, I deliberately set aside the criteria on which the pundits usually proclaim winners and losers in such debates: who had the best zinger or the most memorable line, who performed better than or worse than they were expected to perform (by whom?), and so on. My purpose was to answer a question that I have often heard people ask in this and other election years: Viewed solely as a debate, who won? When I did not post any comm

Here's a good test for distinguishing a thoughtful economic conservative from a slogan-based economic conservative: What does he or she think about the role of government in solving collective action problems? A thoughtful conservative will acknowledge that there are some things that markets are not very good at doing. National defense is an example nearly everyone (including the slogan-based conservatives) can agree on. In theory, if there were no government-run military, we could rely on private forces to protect against foreign enemies (albeit for a price) but in practice, this is wildly impractical. Likewise for other recognized public goods, such as roads and other infrastructure, fire protection, etc. To be sure, one sometimes encounters smart conservatives who will point to examples from history of the market providing services we now generally regard as public goods, often claiming that the market provided them more cost-effectively than the govt now does. But these pe

Earlier in the week, the NY Times ran a story on the sorts of judges and Justices a President McCain or a President Obama would appoint. I was interviewed for the piece, and most of my comments (not quoted) were to the effect that the courts are a low priority item in every Presidential election, and that in this one, even for someone like me, who cares a great deal about them, they'd have to rank behind: 1) Avoiding further economic meltdown; 2) averting further environmental catastrophe; and 3) advancing national security by diminishing the U.S. military presence in Iraq and doing what's necessary to stabilize Afghanistan (which is not necessarily what either candidate is proposing). I did acknowledge that judicial appointments are valuable in mobilizing each party's base, and I floated a theory to explain why neither Republican nor Democratic Presidential candidates like to talk about the courts when swing voters are listening. The Republican story is easier. The va