Dorf on Law

In response to my FindLaw column and blog entry about billable hours earlier in the week, I received a number of supportive emails, including one plugging a software package that automatically keeps track of time---at least while one is using a computer; I don't see how it can track what case a lawyer is thinking about when he or she goes to the restroom, for example. And if it can, well that's truly scary! Here I just thought I'd note that the relation between lawyering and timekeeping is a truly ancient one. In Plato's Dialogue Theaetetus , we hear Socrates (who was no fan of lawyers) disparage the notion that a lawyer could be a teacher. He asks (in his Socratic way): Do you imagine that there are any teachers in the world so clever as to be able to convince others of the truth about acts of robbery or violence, of which they were not eyewitnesses, while a little water is flowing in the clepsydra? [Jowett trans.] A "clepsydra" was a water-clock...

I don't oppose the Captive Primate Safety Act , which recently passed the House and is awaiting action in the Senate. As just about every responsible person to comment on the legislation has observed, non-human primates are not domestic animals, and thus it is neither in their interests nor in the interests of human beings for non-human primates to be kept as pets. I would have an easier time taking seriously the professed concern for the welfare of non-human primates were they not subject to medical experimentation of the most awful sort, but this sort of hypocrisy---protecting some non-human animals while vastly larger numbers of non-human animals that are morally indistinguishable are subjected to horrific treatment---is commonplace and may even mark the beginning of a broader change for the better (as Sherry discussed in a FindLaw column on Michael Vick). Here I'd like to make a different sort of point, however. Do we need a "Husband and Boyfriend Safety Act? Acc...

Earlier this week, I discussed President Obama's announcement that he plans to cut the deficit in half by the end of his first term, specifically addressing whether this suggested that he might foolishly enact contractionary policies that would undo any good flowing from his stimulus package. Happily, it appears that he is not going to make that mistake and that his talk of deficit reduction is in part genuine (carefully chosen tax increases and spending cuts that would not be contractionary) and in part political (reassuring deficit hawks in both parties that he is not going to permit the national debt to increase without limit). Continuing in my recent pattern of mixing optimism and pessimism, I must unfortunately note that Obama appears to be putting Social Security unnecessarily in danger as part of his effort to sound fiscally "responsible." In his address to Congress on Tuesday night, Obama mentioned Social Security only once: Now, to preserve our long-term fisca...

My post last Friday regarding the ill-fated and short-lived takeover of an NYU cafeteria led one of my current Cornell law students---who is a graduate of NYU---to comment that although "Take Back NYU" consists simply of kids play-acting as activists, if they had focused on just one demand they might have garnered widespread support among the student body. The demand? For a public accounting of NYU's finances. With NYU tuition having risen dramatically in recent years---even faster than at other major American universities, according to this alum---students want to know where their money is going. Let's take all that as true, and let's also take as true the claim by TBNYU that they have tried, to no avail, to get a public accounting via official channels. Does it follow that (to borrow a concept from administrative law) having exhausted their official remedies, TBNYU was justified in moving on to a sit-in? Hardly. This sort of claim is at least sometimes pe...

The front-page, top right headline in Sunday's New York Times read: "Obama Planning to Slash Deficit, Despite Stimulus," with the sub-headline "Goal is 50% Reduction." My groan was audible. As one of my colleagues put it, it appeared that President Obama was replicating FDR's worst error -- following up his New Deal stimulus with deficit-cutting fiscal austerity measures, thus creating a recession during the long recovery from the Great Depression -- in only one month, whereas it at least took FDR four years before he caved in to his inner budget hawk. This worry seemed especially plausible when it turned out that Obama's planned 50% reduction in the deficit was to happen in only four years. With my heightened concern about Obama's backsliding on so many issues, and my suspicion that his economics team is too orthodox, Sunday seemed to be one of those days when it would be painful to be a macroeconomist who specializes in budget policy. The artic...

In my latest FindLaw column ( here by around noon Eastern Time on Monday), I use a recent 9th Circuit opinion chastising lawyers for incompetence as an occasion for examining how clients can make educated choices about the value their lawyers are providing them. Among other topics, I discuss the billable hour, which is being seriously reconsidered at major law firms. I suggest that because of asymmetric information, no alternative to billable hours is perfect, but that clients may be able to develop outcome measures that do better. Here I want to say a few words about the effect of billable hours. As an academic who occasionally practices law for paying clients, I must say that I don't enjoy keeping track of my hours. No doubt this is partly just a matter of habit. Most of my day is spent working on academic projects (scholarship, teaching, meeting with colleauges, etc), and while that time is typically scheduled, I don't have any reason to record exactly how long each s...

Mike's Friday afternoon post , "Activism as a Package Deal," described a recent incident at NYU involving a comically unfocused group of protesters who wanted, among other unrelated things, "annual scholarships for 13 Palestinians" and "NYU library access for the general public." After an interesting digression on the nature of revolutions and successful efforts to co-opt public support for otherwise unpopular causes, Mike argued: My main point is that the muddle one sees among activists on the American left is not principally a result of a large organized effort. Rather, it reflects a kind of parochialism that assumes that people who share some of your concerns share all of them. An example: At a January rally in San Francisco organized by ANSWER in protest of the Israeli offensive in Gaza, some protesters were simultaneously demanding full equal rights for LGBT Americans and expressing solidarity with not just civilian Gazans (fair enough) but with ...

I can't improve on the hilarious coverage of the NYU cafeteria takeover on Gawker (e.g., here ), so I'll begin with a simple recap: A group of students calling themselves Take Back NYU barricaded themselves inside the Kimmel Center and issued demands; the university threatened to suspend the students; and thus the takeover just about ended. The demands were a very odd hodge-podge, including: 1) Amnesty for protesters (okay, CYA, but really, should that be your FIRST demand?); 3) and 4) Full public disclosure of NYU's finances; 9) Annual scholarships for 13 Palestinians (why 13??); 10) "That the university donate all excess supplies and materials in an effort to rebuild the University of Gaza" (or as Gawker put it, "overhead projectors for Gaza"); and 13) NYU library access for the general public. What to make of all this? One earnest student over at HuffPo thinks the pathos of this little drama is emblematic of deeper failures of his generation, al...

It is by now reasonably well known that American subsidization for home ownership has contributed to our current economic woes. The combination of the home mortgage interest deduction, low interest rates, banking deregulation, and the bubble that ensued, all in turn allowed lenders to externalize foreclosure risks, until the bubble burst. And this leaves us with bad options: People who are underwater and either walk away or go into foreclosure further exacerbate bank losses and real estate devaluation, while people who stay in their underwater homes lack the mobility that might enable them to find work elsewhere. (For a fuller version of the case against home ownership---and more---see Neil's posts here , here , here , and here .) Here I want to note how another familiar American institution---employer-based health insurance---impedes economic recovery. A small number of public and private employers have experimented with unpaid furloughs and reducing hours in response to hard ...

In my tax policy seminar this week, we discussed the estate tax. I assigned readings that made various theoretical and empirical claims about the effects of the estate tax in the U.S., including the usual politically contentious questions about whether the estate tax breaks up family farms and businesses (clearly not) and whether it is "inefficient" in the standard sense of that term (not even close, in comparison to any other way to raise revenue). Even though the state of knowledge on those empirical questions is pretty clear, the readings included some assertions contesting those basic findings in the course of making moral and political arguments against the estate tax. This put some of the students at a loss. Given that they are law students and not statisticians, they did not feel competent to assess the empirical claims. As one student put it: I’ve unconsciously set up a heuristic based on a belief adopted over time that any data put before me is either the result...

In my findlaw column today, I discuss the recent guilty plea by Miguel Tejada (for lying to Congressional staffers about the use of steroids in baseball), and I argue that such pretextual prosecutions (for lying about misconduct rather than for the misconduct itself) demonstrate governmental hypocrisy and diminish public respect for legal institutions. In this post, I want to provide an important caveat to the message of the column: pretextual governmental activity is sometimes appropriate and necessary. Pretextual conduct is behavior that is motivated by a different set of concerns than those cited by the actor regarding his own conduct. If you are angry with your sister for winning a chess game against you, for example, you might insult and yell at her for forgetting to lock the door, even though you actually don't much care about the practice of door-locking. The sort of pretextual governmental activity I would condemn targets relatively insignificant conduct whose criminal ...

In response to a very helpful exchange on the comments board regarding my post this morning -- originally titled "What? He's Not a Cynical Hypocrite?!" -- I have changed the title and re-written the final paragraph. The new title is: "Maybe He's Not the Kind of Cynic I Hoped He Was." The updated post is here . I hope that this clarifies my intent. -- Posted by Neil H. Buchanan

It is common, I suspect, to imagine that we agree with our friends about nearly everything. Learning that a friend likes a particular kind of music or food or sport can be jarring. If I were to tell my friends tomorrow that I am secretly a big fan of, say, NASCAR racing or polka concerts or post-modern dance, I daresay that they would be surprised. And for good reason. Even though we have never talked about these things, my friends have good reason to think that they know me well enough to predict my views on such matters. Applied to politicians, this phenomenon suggests that we imagine "our guy" to hold the same core set of beliefs that we hold. Even clear evidence to the contrary can be studiously ignored, such as the Religious Right's adoration of Ronald Reagan despite his non-attendance at religious services and his administration's failure to deliver on the fundamentalist Christian social agenda -- or to a large degree even to try to do so. (Yes, his judic...

I recently read Chistopher Buckley's very funny novel, Supreme Courtship , and thought I'd take this opportunity to make a few points about the book and about the way in which law is portrayed in pop culture. (Spoiler Alert: I don't give away anything below that would undermine the pleasure of the book, but those who like to know next to nothing of a book's plot before reading it should probably stop here.) The book begins with a President attempting to fill a Supreme Court vacancy. Obstructed in his first two nominations by a self-important and bloviating Chair of the Senate Judiciary Committee who thinks he himself is best qualified for the position, the President eventually nominates one Pepper Cartwright, good-looking, gun-toting, sassy judge on a popular tv show (something like Judge Judy or The People's Court). Hilarity ensues. During the Fall, Buckley made the rounds of the talk shows, in part because of the acceptance of his offer to resign as a columnist...

In two posts last fall ( here and here ) I described the latest paper by Duke law professor Paul Carrington and my colleague and former Cornell Law Dean Roger Cramton urging reform of the structure of the Supreme Court. More recently, C&C have addressed their proposal to the Obama administration and Congress in the form of draft legislation (which I have posted here ). The latest proposal comes in four parts, and in order to maximize support, C&C have permitted individual academics to endorse the parts separately. In addition to publicizing the proposal, I thought I'd take the opportunity here to explain why, even though I'm generally sympathetic to the proposal as a whole, I only ended up endorsing one of the four parts. Part 1 would authorize the President to make a new appointment to the Court every 2 years, cap the active roster of Supreme Court Justices at 9, and (after a transitional period for Justices currently sitting), relegate Justices who had served 18 ...

As a law-professor, I haven't been tempted to take anabolic steroids, HGH or other performance-enhancing drugs (other than caffeine!). Thus, my knowledge of their effects is admittedly amateurish, based as it is on casual sports fandom, internet surfing, and watching the movie Better, Stronger, Faster . From what I've been able to figure out, depending on the drug, the benefits decay at different rates over time. Thus, a baseball player who took drugs to build muscle mass in, say, 2001, 2002 and 2003, and then stopped, would see the most benefit during those years, but depending on his fitness regime to maintain that mass and the particular drug, would continue to benefit in later years. For this reason, it's hard to take seriously the claim that use of PEDs taints performances during the period when those drugs are taken but not thereafter---a claim being made at least tacitly by A-Rod and others. An analogy might be useful here. Consider the case of Oscar Pistorius, t...

In late December, I initiated a series of posts ( here and here ) discussing how a severe economic crisis can open up opportunities to change the way industries work and to revise our basic assumptions about how the government can affect our lives. " A crisis presents a rare opportunity to shake off the conventional wisdom and to gather the political will to create better ways of doing things." We have now experienced our first major legislative battle of the Obama presidency, and the possibility of overcoming old assumptions seems further off than ever. Among many disappointing aspects of the debate over the stimulus bill, perhaps the most worrying is the claim that we should not vote for infrastructure investment because such spending cannot be done fast enough to stimulate the economy. It is, in fact, simply not true to say that infrastructure spending cannot happen quickly. Sadly, decades of our willful failure even to pay for basic maintenance of roads, water system...

The debate over the Obama stimulus package has been enlightening in an unexpected way. Faced with the worst economic crisis since the Great Depression, and with overwhelming support among both economists and the public for spending to mitigate or end the recession, the mostly-Republican opponents of the plan are willing to say virtually anything in opposition to the plan. It is no longer merely a matter of viewing the world through a warped, extreme ideological lens. We have now seen conservatives move on to making statements that are inconsistent with their own ideology, that are self-negating, and that ultimately are pure gibberish. The arguments offered by the opponents of President Obama's plan generally take the form of simple statements of belief (e.g., "We need more tax cuts!") that are impervious to any countervailing logic or evidence. Moreover, some of their accurate statements actually undermine their own policy conclusions. For example, as Mike's comm...

Some of the Republican opposition to the bailout stems from deep-seated skepticism about Keynesianism. Some of that skepticism is simply confused, as when Republicans say that the New Deal didn't end the Great Depression; World War II did. If that's true (and I think it is), that's because the New Deal did not provide a large enough stimulus (and because FDR foolishly tried to balance the budget after the initial bout of spending) to make up for the idled productive capacity, but WW II did. To be sure, one can find conservative economists who think that Keynesianism never works; their argument is that the Great Depression, like earlier depressions, eventually just ran its course, and the economy turned around. But I strongly suspect that there are enough Republicans (i.e., at least a couple) willing to give Keynesianism a try that sufficient support could be constructed for the right stimulus measure. The real problem is that like Dems seeking to use the economic crisi...

My latest FindLaw column asks whether Tim Geithner, Michael Phelps and Rod Blagojevich were treated "unequally" because their particular infractions led to results that differ from what we would have expected for ordinary people. I argue that much of the discussion of these characters confuses questions of role modeling with questions of equality. Here I'll focus briefly on Phelps and pot. My column accepts the notion that Kellogg---which chose not to renew its endorsement deal with Phelps, although then claimed that this had nothing to do with the bong pic---was within its rights to disassociate its product from Phelps. Kellogg presumably was getting pressure from parents who were worried that their kids would see Phelps on a box of corn flakes and thus conclude that smoking pot is not just cool, but helps you win gold medals in the Olympics. There is something at least a little far-fetched in those fears. After all, had Kellogg kept Phelps on, they wouldn't ex...

The CPR report on Cass Sunstein’s nomination to head OIRA made a little splash last week, largely for two incredible claims: (1) that Sunstein is some kind of climate change denier, and (2) that there has never been a risk in occupational safety or environmental regulation which has turned out to be less serious than first thought. These two unfortunate slips of hyperbole aside, CPR’s report—and the scholarly work of several of CPR’s members—raises important questions that the Obama Administration is facing. First . Climate change is intimately connected with everything (shameless plug for Penn State’s own lecture series and symposium here ). As MIT’s John Sterman has argued forcefully , the public is not appreciating the threat climate change represents with anything like the urgency it should. Of course, taking CC seriously doesn’t mean you should turn off your lights and heat and sell your car. It means we must urgently and collectively seek system -wide replacements for fossil...

John Lynch is the Democratic Governor of New Hampshire. Republican Judd Gregg told Lynch and President Obama that he, Gregg, would only give up his Senate seat to become Commerce Secretary if Lynch named a Republican to succeed him. The quid pro quo was fulfilled when Lynch named former Gregg staffer and Republican Bonnie Newman to represent the Granite State. Newman is a moderate who backed Lynch for Governor and as part of the deal has agreed not to run for the seat in 2010. Meanwhile, Wisconsin Senator Russ Feingold has argued that all of this deal-making simply underscores the need for an amendment that would require runoff elections for open Senate seats, stripping Governors of the power to make even the interim appointments they now make. The deal that led to Newman-for-Gregg is certainly unusual but is it comparable---as the title of this post provocatively asks---to Rod Blagojevich's efforts to sell Barack Obama's vacated Senate seat for something that would benefit...