Dorf on Law

Posted by Mike Dorf Having just completed a bit of holiday travel, I'm thinking about the game theory of overbooking, which, I discovered upon googling " 'game theory' & overbooking' " has produced a rather substantial literature.  Here's what happened on my latest flight, which presents a nicely simple case:  About 45 minutes before the scheduled departure, the gate agent announced that the flight was overbooked by one passenger and so the airline was offering the first volunteer a seat on a later flight plus $250 to give up his or her seat on this one.  There were apparently no takers, and so 20 minutes later, the offer was upped to $450, whereupon a volunteer came forward. Was this the best deal the airline could get?  Quite possibly not.  If the volunteer was willing to take the later flight for $450, perhaps he would have been willing to take the later flight for $300, or even for LESS than $250.  True, someone whose break-even point is under

By Mike Dorf Is it possible to be thankful without being thankful to anyone or anything in particular?  That question might be thought to bear on the appropriateness of official celebrations of Thanksgiving in a secular country.  Judges and scholars who argue that the Establishment Clause permits a fair degree of official religious exercise often point to the tradition of Presidents' Thanksgiving Proclamations.  George Washington's 1789 Proclamation pretty much set the standard, and while its invocation of the Divine is non-denominationally monotheistic, it nonetheless has religious content.  Thus, modern separationists who say that the Thanksgiving holiday is merely a secular occasion may be right about what the holiday has become, but it seems they are wrong about the origins. Well, so what?  If the holiday has become secular, then, under the Supreme Court's Establishment Clause precedents, there's nothing with the govt recognizing the holiday's secular aspect

by Sherry F. Colb On FindLaw today, I have a column that explores the heated disagreements that people have had over the Fourth Amendment exclusionary rule, a rule that suppresses evidence obtained illegally through unreasonable searches and seizures.  I propose in the column that the Doctrine of Double Effect ("DDE") helps account for the distinction that some draw between having a Fourth Amendment (which results in guilty criminals escaping justice because they are not discovered), on the one hand, and enforcing the Fourth Amendment by suppressing evidence (which results in guilty criminals escaping justice because there is insufficient evidence to convict), on the other.  The distinction is between directly doing something permissible that has undesirable and unintended (though foreseeable) side effects, and doing something that directly brings about the undesired effects.  Many view the latter as much worse than the former and accordingly either illegitimate or in need

[With the Senate Judiciary Committee set to hold a hearing on restoring notice pleading next week, I have sent the following letter:] The Honorable Patrick J. Leahy, Chair The Honorable Arlen Specter The Honorable Sheldon Whitehouse Committee on the Judiciary SD-224 Dirksen Senate Office Building Washington, DC 20510-6275 Dear Senators Leahy, Specter, and Whitehouse:     I am writing regarding the hearing scheduled for December 2, 2009, on the following question: “Has the Supreme Court Limited Americans’ Access to Courts?”  The answer is clearly yes.  The only real question is what Congress should do in response.     I have been teaching civil procedure and federal jurisdiction at the law schools of Rutgers University, Columbia University, and Cornell University for over seventeen years.  During that time, I have also represented both paying and pro bono clients in federal court litigation.  Based on my knowledge of and experience with the Federal Rules of Civil Procedure,

By Mike Dorf The recent procedural theatrics over starting Senate debate on the health care bill provide only the latest occasion for reflecting on the oddity of the cloture rule , which effectively requires 60 votes to accomplish anything in our upper house.  A naive reader of Article I, Section 7 of the Constitution would think that all it takes for the Senate to act positively on a bill is for a simple majority to vote in favor of it.  Section 7 doesn't expressly state this point, but that's the only fair inference from a provision that discusses "yeas and nays," and also specifies a particular super-majority (2/3) for overcoming a veto. Plus, various other provisions of Article I specify various super-majorities, leading to the only plausible inference that ordinary legislation requires only a simple majority.  The kicker is Article I, Section 3 , which only gives the Vice President a vote in the Senate if the other Senators "be equally divided." 

By Mike Dorf I don't have much to add to the substantive discussion--sensible and otherwise--of the Justice Department's decision to try Khalid Sheikh Mohammed in a civilian court.  I do want to register what will undoubtedly be seen as faint praise for what I imagine must have been the integrity of that decision.  Here goes: 1) The Obama Administration's conservative critics think that any backing off from a policy of military detention and military tribunals is weakness if not treason.  Nuff said here. 2) Meanwhile, critics from the liberal side (a group that often but not always includes yours truly) will not be nearly as pleased as one might expect from this decision.  KSM is probably the highest-ranking Al Q'aeda operative to have been apprehended since 9/11 (or ever).  He was waterboarded 183 times.  Thus, if there is any 9/11 suspect as to whom there are serious security and evidentiary issues in civilian court, it would seem to be KSM.  And yet the govt pl

-- Posted by Neil H. Buchanan My latest FindLaw column (available here later today) revisits one of my favorite policy issues: public investments in infrastructure, education, and so on. I used my recent travels in Europe and the U.K. as an anecdotal complement to some publicly-available research that demonstrates the extremely precarious state of the public capital stock in the United States. My own academic work also has covered this topic, including this law review article from 2006 and this work-in-progress that I am developing for publication (I hope) next year. It is one thing to experience the effects of the decaying U.S. infrastructure (as all Americans do on a daily basis), but it is quite another to see how much better it could be. I therefore describe in my column just how different an experience it is to travel in Europe, compared to traveling in the U.S. What I found especially interesting was that Bilbao, Spain's small airport was quite modern and was conne

By Bob Hockett Sherry’s thoughtful post last Monday, November 9th reminded me of a couple of equity-rooted considerations that have occasionally floated before my mind, in connection with the morality and legality of abortion, ever since first encountering the conscription argument in Judith Jarvis Thomson’s influential article on the subject. Perhaps these considerations will be of interest to DoL readers, and thereby contribute something of value to the conversation initiated by Sherry’s many wonderfully thoughtful essays, articles, and posts on this profoundly fraught subject. Equity jurisprudence, our lawyer friends in particular will recall, is especially well known for the many colorful maxims and ‘doctrines,’ as well as such institutions as the trust, which it has contributed to the commonlaw tradition. Most of these contributions bear a distinct moral flavor, as manifest not only in their contents, but even in their very terms. And this for its part is no accident, as the

By Mike Dorf In my latest FindLaw column , I examine a recent Ninth Circuit decision, Doe #1 v. Reed , that rejected a claimed First Amendment right of anonymity for people who signed a petition to have a domestic partnership law repealed.  I argue that the Ninth Circuit essentially missed the true strength of the plaintiffs' claim, but that the court may have gotten it right after all.  I nonetheless say that, as a policy matter, government ought generally to allow anonymous politicking.  The wishy-washiness of my position--tentatively against the constitutional claim but in favor of the policy claim--reflects what I regard as the difficulty of the question. To be clear, I don't regard the underlying merits as difficult at all.  I think that laws protecting same-sex domestic partnership shouldn't be repealed; they should be extended so that we have marriage equality.  Indeed, as I've said many times before (e.g., in 2004, here , and in 2008, here ), I regard the d

By Mike Dorf As various commentators have noted, the traditional business model of credit card companies is peculiar.  Here is how James Surowiecki described it in a May issue of the New Yorker: Their best customers aren’t those who dutifully pay off their balance every month; instead, they’re the ones who charge a lot and pay only a little every month, carrying a sizable balance and racking up interest charges and late fees. These are the “revolvers,” and the credit-card business feeds on them. Credit-card companies don’t necessarily want revolvers to pay off their debts; if they did, there’d be no interest or fees to collect. . . . The catch is that while revolvers are the companies’ best customers, they’re also more likely to default, which would make them the worst. Accordingly, Suroewiecki and others have noted, with increasing default rates, the credit card companies have been re-thinking their business, trying to find ways to shed default risks and to make money from thei

Posted by Neil H. Buchanan In a post here earlier this week, Mike Dorf continued his discussion of his colleague Steve Shiffrin's new book, The Religious Left and Church-State Relations . At the risk of over-simplifying, Mike's ultimate point was that there is at least a serious danger -- if not an extremely high probability -- that attempts by Christian liberals to engage with the Religious Right on their own terms will do more harm than good. He concluded his post: "The master's tools will never dismantle the master's house." Here, I will engage with the substance of the claim that the religious left is the "right" group to fight the Religious Right (Shiffrin's argument having been, as I understand it, that the secular left should stand aside because they cannot effectively engage with the other side). As a minister's son who has been an atheist since roughly age 17, I should say at the outset that these arguments are very familiar and

By Mike Dorf In another Cornell Law School celebration of a recent faculty book, last week we examined Mitch Lasser's new book, Judicial Transformations: The Rights Revolution in the Courts of Europe .    I was one of four panelists, along with French Justice Guy Canivet, Yale Law professor Alec Stone Sweet, and Syracuse Law professor Juscelino Colares.  Here I want to say a few words about the book and about the larger question of legal pluralism that it raises. Lasser begins by explaining the traditional understanding of constitutionalism in France, which is, to paint with a broad brush, Rousseauian rather than liberal.  Believing in the existence of a general will best expressed through the legislature, relative to American constitutionalism, the French were oriented towards legislative supremacy.  They had a form of constitutional review in the Conseil Constitutionnel but only prospectively and in the abstract.  The Conseil did not, until very recently, entertain concrete

By Bob Hockett Martha Nussbaum gave an interesting talk at Cornell this past Friday on the subject of same-sex marriage, a subject which figures into her forthcoming book on 'the politics of disgust.' (This was the endowed Stevens Lecture, named for the same distinguished former Dean for whom Mike’s professorship is named.) The talk afforded a nice opportunity to raise a question that often has struck me, and that might be worth raising here too. Begin with this observation: Much of the rancor that surrounds present-day argumentation and politicking over same-sex marriage looks as though it might be traceable to a tendency, when speaking informally about marriage, to run together two distinct categories. I’ll call these ‘civil’ marriage on the one hand, and ‘sacramental’ marriage on the other. In ordinary parlance, I think we tend to have both categories vaguely and simultaneously in mind when we use the word ‘marriage.’ But in a pluralistic polity where church and state

Posted by Sherry Colb In my column this week, located here , I discuss a case in which plaintiffs challenge the constitutionality of a federal criminal law that prohibits the provision of compensation to bone marrow donors.  I consider the arguments for prohibiting markets in various zones of life and how the general arguments fare in the particular context of bone marrow donation. In this post, I want to consider a very different question that transplantion cases always raise in my mind:  what would it take for me to become "pro-life"?  That is, under what circumstances would I be persuaded that the law would appropriately intervene forcibly in a woman's decision about whether or not to continue a pregnancy. I would define "pro-life" for purposes of this reflection as agreeing with the proposition that at some stage of pregnancy (which might not be conception, even though the current pro-life movement in the United States has selected that stage), the ri

By Mike Dorf Now that the House has approved the Stupak Amendment --which forbids health insurance plans that will receive federal funding under the reformed American health care system from covering abortions--it's worth reflecting on why, exactly, this sort of legislative provision is considered permissible even by an otherwise (mostly) pro-choice country.  The core of the argument goes like this: The law permits abortion on grounds of personal choice, but many people regard abortion as immoral, and they should not be made to subsidize conduct they regard as immoral.  That is, more or less, the principle on which rest the Supreme Court decisions allowing rather severe restrictions on government funding for abortion.  And it is also the principle one typically hears in public debate. To be sure, the principle is often invoked by people who would go much further.  Most of the legislators who oppose government funding of abortion would also favor making abortion illegal were co