Dorf on Law

By Mike Dorf In response to my FindLaw column and accompanying blog entry last week on the libertarian objection to the proposed individual mandate in various pending health care bills, I received a number of emails and came across various commentaries on the web taking issue with my view.  Here I want to respond to a couple of what I think are clearly misguided objections and then unpack one that, in my view, has more bite. 1) Some critics accused me of ignoring what they regard as the best objection to the individual mandate--that there is no power in Congress to require it.  (E.g., here .)  Yet I quite clearly say at the beginning of the column that there are two primary objections to the individual mandate, and the second one contends "that the federal government lacks the authority under the Constitution to impose the mandate or to penalize those who do not comply."  I then say that I will object this second objection--an objection that constitutional law...

Posted by Neil H. Buchanan [Note: The first billboard that I saw when I arrived in Austria earlier this week was for Burger King (advertising Der Whopper), which was grimly funny from the standpoint of American cultural imperialism but simply grim for me as a vegan. I am tempted to write this post about being a vegan in a foreign land, but I'll save that for perhaps another day.] This month's issue of The Progressive (contents apparently unavailable online to non-subscribers) includes an interview with Joseph Stliglitz, the Columbia economist who is perhaps best known for his fierce attacks on the economic orthodoxy known as the IMF-Washington Consensus. Stiglitz, who also won the quasi-Nobel prize for his brilliant work on the shortcomings of markets due to imperfect information, has spent the last few years arguing that the neoliberal prescriptions (deregulating financial markets, radically reducing social safety nets, etc.) that the US and its international arms impose on...

Posted by Sherry F. Colb My column on FindLaw today focuses on conservative critiques of the hate crime bill that President Obama is scheduled to sign into law today.  The law would extend federal hate crime status (subject to federal prosecution) to otherwise criminal acts that involve victims selected on the basis of sex, sexual orientation, and disability.  Some critics have suggested that hate crime laws amount to "thought crime" laws because they differentially punish conduct on the basis of what's going on in the perpetrator's mind.  My column explains why this critique is ill-founded and would, in any event, prove too much for the critics' own taste. In this post, I want to raise a distinct question about hate crime laws, which is whether it makes sense to single out classification (e.g., selecting a victim because he is gay) rather than underlying purpose (e.g., harming a person belonging to a group you hate). Consider an example.  A robber might de...

By Mike Dorf In a speech last week at a Columbia University conference on academic freedom, University of Chicago President Robert Zimmer made a number of sensible points about the value of academic freedom, including the observation that the general principles of academic freedom shared by modern universities will be implemented differently at different institutions depending on their respective histories and cultures.  In particular, he noted that for his own university, the principles articulated in a 1967 report by constitutional law professor Harry Kalven are especially salient.  Zimmer pointed to Kalven's statement "that the University, as an institution, should take no political positions and should remain neutral on such matters (except of necessity those in which it is a direct party), in order to ensure that [it has] a maximally open environment."  Here I want to suggest that, as applied by the University of Chicago, this principle is problematic. Zimmer ...

By Mike Dorf As widely reported, including in this Time magazine story , sex offenders who are barred by state law from going near children have begun to invoke their free exercises rights when such state laws are used to keep them from attending religious services in houses of worhsip that also supervise children.  The Time article focuses on a North Carolina case, but the problem is broader.  Unfortunately, the article does not go into the real legal issues in any depth.  I'll take a shot at clarifying. There is pretty clearly no federal free exercise problem here.  Back in the day, the formal doctrine from SCOTUS said that whenever the govt substantially burdened somebody's ability to practice his or her religion, the law or policy doing the burdening had to be subject to strict scrutiny: The govt had to prove that the law or policy was narrowly tailored to serve a compelling state interest.  Under Sherbert v. Verner , the strict scrutiny test applied no...

By Mike Dorf Herewith, three barely considered thoughts on the news that the govt is slashing pay of some execs at firms that received bailout funds: 1) There is an element of inevitable unfairness here: Execs at firms that received but have since repaid bailout funds do not have their pay slashed even though the bailout may have been instrumental in their firms' continued existence.  ("May" because some firms were basically told they were getting bailout funds whether they wanted them or not.)  I say this is inevitable because the govt lacks leverage over firms that have returned funds: it is no longer a substantial creditor or equity holder. 2) Perhaps the unfairness was less inevitable for firms that continue to benefit from the bailout because they were counterparties to credit default swaps (and other deals) with bailed out firms.  Some such counterparties were at risk of going under and it is hardly clear that the govt paying $100 billion to Firm B, which it t...

Posted by Neil H. Buchanan In my new FindLaw column, available here , I continue my recent discussion of the inextricable role of government in making it possible for a country to benefit from a market economy. I focus on the proposed Consumer Financial Protection Agency (CFPA), the brainchild of Harvard Law Professor Elizabeth Warren that would rein in predatory lending and would be designed to allow regular people to engage in responsible borrowing. My argument in that column is that those who oppose the CFPA on the ground that it inappropriately injects government into private transactions are simply incorrect. Private transactions, and especially loans, are only possible (or appealing) because they are enforceable by government. There is a regulatory system in place that shapes the market for consumer loans, and that system is currently very pro-lender. (I do not even mention the change in the bankruptcy law in 2003 that tilted the playing field even more decidedly in favor of ...

By Mike Dorf In my latest FindLaw column I consider the libertarian objection to the proposed individual mandate in most of the health care reform proposals now before Congress.  Some libertarians say that it is both unprecedented and categorically worse for the government to require people to do something affirmative (such as buying health insurance) than it is for the government either to forbid some action or to require some other action as a condition of engaging in an activity (such as practicing medicine) that the govt could prohibit.  I end up concluding that the objection is not sound. Here I nonetheless want to try to unpack the intuition that there is something worse about affirmative impositions on liberty than prohibitions.  Let's begin with a pair of examples that show how an affirmative imposition feels worse.  Suppose the govt says that I must be at jury duty from 9 to 5 for a week.  That is clearly a greater restriction than a negative impo...

By Mike Dorf Having arguably called for the abolition of football last week (and that was before the Saints crushed the Giants!), I shall now boldly venture into the rules of baseball, albeit for purposes of making a larger point about the law on the books versus the law in practice: During Saturday's ALCS game 2, umpire Jerry Layne called Yankee Melky Cabrera safe at second base when Angels shortsop Erick Aybar straddled but did not make contact with second base before throwing on to first for what Aybar thought would be a double play.  Layne had enforced the rule as written but Aybar and Angels Manager Mike Scioscia said that he had thereby failed to honor the unwritten "neighborhood rule," which says that if a second baseman or shortstop steps in the neighborhood of the bag on a double play, the runner is out.  This supposed neighborhood rule is meant to protect infielders against baserunners barreling or sliding spikes up into them. The particular play is of onl...

By Mike Dorf Updated!  Podcast is available now, here . Today from 10 am to 11 am, I'll be on WHYY's Radio Times (which you can stream live from here ), in a segment on the Stevens case, discussed earlier on the blog here .  (I'll post a link to the podcast in an update to this entry once it's up on the show's website .)  In addition to host Marty Moss-Coane, I'll be joined by Temple law professor Craig Green, who recently wrote an op-ed in the Philadelphia Inquirer, arguing that government power to ban some activity (like dog-fighting) does not entail government power to ban pictures or films of that activity.  It's a well-reasoned and well-written op-ed, but it almost entirely fails to address the government's main argument in the case--which is that depictions of illegal torture or killing of actual animals form an unprotected category of speech in the same way that obscenity and child pornography do.  (One could point to other categories of ...

By Michael Dorf A New Yorker article by Malcolm Gladwell is provocatively titled, "Offensive Play: How Different Are Dogfighting and Football?"  Gladwell's answer: Not that different.  The piece is worth reading in its entirety but for the benefit of those who choose not to, here is a very brief summary of the main points. 1) Medical evidence now shows that a large proportion of professional football players suffer traumatic brain damage that seriously impairs their ability to perform basic life functions, changes their personalities, and may shorten their lives. 2) Although concussive impacts play a role, much or most of the brain damage results from repeat non-concussive blows to the head that are endemic to the game, especially for linemen. 3) Neither better helmets nor any of the sort of rule changes that might be adopted are likely to change these outcomes. 4) Shifting from tackle football to two-hand touch or flag football would change the outcomes, but Glad...

Posted by Neil H. Buchanan Earlier this week, news outlets (e.g. the New York Times, here ) announced that this year's "Nobel in Economics" was awarded to two Americans: Elinor Ostrom and Oliver Williamson. A few thoughts: (1) "While commonly used, this term [Nobel Prize in Economics] is not strictly correct. The Nobel Prizes are separate and distinct from the economics award. The Nobel Prizes were first awarded in 1901 and are called 'The Nobel Peace Prize' and 'The Nobel Prize in _____' (Physics, Chemistry, Medicine, or Literature). See, e.g., The Nobel Prize in Physics, http://nobelprize.org/physics. The economics award, on the other hand, was first awarded in 1969 and carries the somewhat ungainly name [the Bank of Sweden Prize in Economic Sciences in Memory of Alfred Nobel]. For a critique of the economics prize and an argument that the award should be abolished, see Barbara Bergmann, Abolish the Nobel Prize for Economics — How Fair Is the Nobel...

By Sherry F. Colb In today's column on FindLaw , I discuss a pending case before the Supreme Court raising the question whether a suspect who neither explicitly waives nor explicitly asserts his rights after receiving Miranda warnings may be interrogated.  An important part of my analysis turns on a major purpose behind the Miranda warnings -- mitigating the coerciveness of custody by reversing the presumption that answers to police questions are voluntary if a suspect does not assert his rights.  Among other things, I conclude that having a police officer announce rights that she hopes you will not assert may not be an especially effective mechanism for transmitting information.  In this post, I want to apply this lesson about conflicted messengers to the practice of fertility medicine. The New York Times this past weekend ran a few articles about the great cost -- both financial and human -- associated with aggressive fertility treatments.  In brief, when cou...

By Mike Dorf A story in yesterday's NY Times highlights a new battleground for a subject that is familiar to students of jurisprudence: When should the law use rules that leave little room for discretion (and thus risk being both under- and over-inclusive relative to their background justifications) versus standards that confer discretion (which can be abused or used in a discriminatory fashion)?  The Times story concerns school policies that mandate suspensions (or expulsions) for students bringing weapons to school, including items (such as a camping tool that I am inaccurately calling a "spork" in the title of this post) that are not intended to be used as weapons.  It raises many of the relative advantages and disadvantages of rules and standards with which students of jurisprudence are familiar. Here I'll use the controversy to illustrate a point that is in no way original but that I think is sometimes overlooked by those who generally favor rules: The fact...

By Mike Dorf With President Obama having been awarded a Nobel Prize mostly for not being President Bush, this is an awkward time for me to promote a new paper of mine that argues, among other things, that President Obama is, in an important respect, similar to President Bush.  The paper, Iqbal and Bad Apples (which will be published in a symposium issue of the Lewis & Clark Law Review), expands upon a point I made in passing in an earlier FindLaw column :  that, in addition to its difficulties as a civil procedure case, the Supreme Court's decision in Ashcroft v. Iqbal lends the Supreme Court's imprimatur to what I call the "few-bad-apples narrative" of mistreatment of prisoners by the Bush Administration. The paper makes two further points that I would highlight here.  First, I discuss the Obama Administration's decision to investigate and potentially prosecute low-ranking interrogators who committed unauthorized abuses but not the high-ranking officia...

By Mike Dorf In preparation for a Cornell Law School panel yesterday on U.S. v. Stevens , I had occasion to reflect again on obscenity law as set out in Miller v. California .  Here I'll draw a parallel between the two cases. No, not the obvious one.  Stevens is the case posing a First Amendment challenge to a federal statute that forbids the commercial distribution of films depicting illegal acts of cruelty to animals, with important exceptions modeled on the S Ct's account of permissible obscenity regulation.  The govt defends the law on the ground that the Ct should recognize a category of proscribable speech along the lines of obscenity or child pornography.  Based on the oral argument, that argument appears likely to fail. I don't have much to add to Sherry's excellent analysis of the stakes in the case, except perhaps to expand on a point she makes.  Under Miller , for material to be obscene, it is not sufficient that it appeal to an interest in sex...

Posted by Neil H. Buchanan In my new FindLaw column, " Financial Market Reform: Two Goals, No Frills " (available later today), I offer a few preliminary thoughts on the big upcoming legislative battle over how to change this country's system of regulating financial markets. I argue against nuance, suggesting that we need to simply say that enough is enough, that there really are such things as financial institutions that are too big and salaries that are too high. I further argue that the new regulatory system should not try to be cute by saying, in essence: "Well, we're not saying too big is really too big, just that big is OK only if the following checklist of safety measures is met." Instead, we should simply choose a plausible way to measure "big" and then set an arbitrary maximum size, forbidding financial institutions from exceeding that size. The same approach should apply to the salaries of those institutions' employees (with the ...

By Mike Dorf In my latest FindLaw column , I discuss the Supreme Court's cert grant in McDonald v. Chicago , which poses the question whether the Second Amendment right to bear arms--interpreted as an individual right in DC v. Heller --is incorporated against the states via the Fourteenth Amendment.  After explaining the history of the incorporation doctrine, I argue that for self-professed textualists like Justice Scalia, the doctrine should be problematic: It is hard to argue on textual grounds that the right to possess firearms is incorporated while the right to a civil jury trial is not; and it is equally hard to argue on textual grounds that the enumerated rights of the first eight amendments are (mostly) incorporated but that the unenumerated rights referenced in the Ninth Amendment are not. Here I want to make another historical observation about the road to and from incorporation.  Judicial conservatives love to mock Justice William O. Douglas's opinion in Griswol...

By Mike Dorf Many lawyers familiar with the work of the Supreme Court (including yours truly) share at least one pet peeve: Annoyance at news outlets that report a certiorari denial as though it were a decision on the merits.  It's bad enough when the reportage correctly says the Court "let stand" some lower court ruling, for even then there is a risk that lay readers will be left with the impression that the Justices made a decision on the merits to let the lower court ruling stand.  But sometimes the headline will be plainly inaccurate. With a new Supreme Court Term just underway, we have a frontrunner for the most misleading/false reports of cert denials.  Consider the following from FoxNews: "Supreme Court Strikes Down Case From Man Claiming to Be Elvis Presley's Son."  The story itself is better than the headline.  It makes clear that the Court denied review of lower court rulings against the putative Elvis, Jr.  But this still raises the questio...

By Mike Dorf With Ireland's "yes" vote, the Treaty of Lisbon now only awaits final action by the Czech Republic and Poland to become effective.  The impact of full ratification on the EU and its member states is not yet known (though I share the general view of most Europeans from the center left to the center right that this is a step forward).  Here, however, I want to say a few words about the ability of states (whether nation-states or states within a federal union) to vote a measure up after they have voted it down. I'll begin by noting an oddity.  Under the current EU framework, it is not 100% clear that a member state can withdraw. The Treaty of Maastricht has no withdrawal mechanism, and pursuant to the Vienna Convention on the Law of Treaties , a treaty party can only withdraw from a treaty by invoking a withdrawal mechanism in the treaty or by mutual consent of the signatories.  ( Since 2006 , Ireland has considered itself bound by  the Vienna Co...

By Mike Dorf For those of you who couldn't get enough of the extended mid-August debate on carnism versus veganism (e.g., here , here , here , here , and in the comments and links therein), Brian Leiter has a follow-up ( here ), in which he opines on the result of a poll conducted around that time by Luis Chiesa.  Chiesa asked the readers of his blog why they were vegans (if they were).  A majority said it was because killing animals is either always wrong or wrong absent exigent circumstances, and that there is no exigent need for animal products for food, clothing or cosmetics.  Only 19% of respondents (which translates into 24% of the vegan respondents) selected the answer that emphasized the unjustifiably cruel treatment of most animals raised for food, clothing and cosmetics. One can quibble with the choices.  As one comment noted, there is a strong moral case for veganism as one means of mitigating environmental harm to the planet, and thus to humans and ...