Dorf on Law

By Bob Hockett With the current 'generation's' opportunity to reform the US health insurance regime now nearly consummated -- and on a not altogether unsuccessful note at that -- perhaps it will not be inapposite to propose another 'let's get it right' resolution for the year ahead. My candidate this year will be this lofty hope:  How about we make 2010 the year in which, among other things (like getting serious about green-friendly energy and ending needless human and other animal suffering), we finally get both our domestic and the international financial systems and their regulation right?  This, at any rate, will be one thing to which I for one will be devoting a fair portion of energy -- as, unless I miss my guess, will be Neil and perhaps even our own polymathic Mike! There will of course be a great many things to be done, and hence recommended, along these lines; and there will be the same danger of 'moderate'-m...

-- Posted by Neil H. Buchanan Earlier this week, I was unfaithful to FindLaw and posted an op-ed on CNN.com's Opinion page: " Tax Wall Street's huge bonuses ." Britain has recently adopted a one-time tax on financiers' bonuses in excess of $40,000 in 2009, and the U.S. is among a group of rich countries that are considering following Britain's lead. I argued in favor of adopting such a tax here. My main reason for taking this position, which I articulated at the beginning of the column, is distributional. (Rich getting richer, everyone else left behind.) There are other reasons as well, such as the ability to use tax revenue from a bonus tax to make other tax increases or benefit cuts unnecessary. The central point of my column, however, was not to advocate the tax but to assess whether there is reason to believe that a tax on financiers' bonuses would be likely to drive people out of those jobs. That question is an interesting one, because the answe...

Posted by Mike Dorf Ahoy DoL Nation.  As you may have guessed from reading between the lines of posts and comments, both Sherry and I are currently out of the country.  We're each teaching a two-week course at the Inter-Disciplinary Center at Herzliya, Israel. I'm teaching a course called "Judicial Review in Comparative Perspective," and learning from my students at least as much as I'm conveying.  (Sherry is teaching comparative reproductive rights.)  Once I return, I'll have all sorts of posts coming out of the experience.  But for now, I just wanted to wish everyone happy holidays.  Over here, it's still crunch time and I've got classes to prepare, sightseeing to do, etc.  Meanwhile, enjoy the posts by Neil and Bob.

By Bob Hockett I’ve been planning to add my two or three cents’ worth of reflections on the current ‘health care reform’ controversies for a while now. I am delighted at last to be in effect forced to do so, via the assurances I made to my DoL friends last week that I’d be happy to try to help with the attempt to fill in here while Sherry and Mike are away. (Yah, I know – ‘“please, please, please,” in the words of the immortal James Brown –  – hurry back!’ you are already crying out to the ColbDorfs.) And I am all the more delighted because, with reconciliation of the House and – one hopes, soon to be passed – Senate bills still ahead, there is still time to be prospectively rather than at best retrospectively relevant. Had I managed to post earlier as I’d intended, I would have emphasized what I’ve thought – and still think – to be the most important insufficiently noticed aspect of the current ‘health care reform’ effort. That is the fact that we are currently engaged less i...

-- Posted by Neil H. Buchanan Paul Samuelson died last week at age 94. The New York Times ran a front-page obituary last Monday, and Paul Krugman wrote a short, but very nice, entry on his blog praising Samuelson. At a time when Keynesian macroeconomic policy has once again become the key to economic recovery, we would do well to think back on Samuelson's contributions to public discourse. While those contributions were important, the story on Samuelson is more complicated than most people realize. Samuelson was one of the most well-known economists of the 20th century, mostly because of his best-selling introductory textbook. His scholarly work covered a number of major areas within economics, but he was mostly known as a macroeconomist. One of his most famous papers, published in 1939 (when he was 24 years old!), described an important dynamic called "multiplier/accelerator interaction" that seems to me still to hold one of the key insights into why fiscal policy...

With the fever of the climate talks behind us and the new " Copenhagen Accord " on the books, we should take stock of law’s role in this unfolding drama and of the progress made since 1992—the year the U.N. created the Framework Convention on Climate Change (UNFCCC). 1. "Taking Note" of a "Political Agreement" The parties that negotiated Copenhagen's splash "accord" — Brazil, India, South Africa, China and the US (BISACUS) — agreed to cut "their emissions individually or jointly by at least 80 per cent by 2050." Of course: (1) the exact denominator was omitted from the commitment and that could change the pledged cuts dramatically; (2) 2050 is a long way off; and (3) this deal was struck without the participation of the vast majority of UNFCCC’s Conference of the Parties (COP). Most of the COP, indeed, was excluded from the negotiation of this 'political agreement' because, in the principals' views, the core of any re...

By Mike Dorf Last week,University of Pennsylvania Law Professor C. Edwin Baker died unexpectedly at the age of 62.  The Penn website has a nice remembrance of Ed here , but I'd like to pay my own respects. In Isaiah Berlin's dichotomy of hedgehogs and foxes, Ed will likely be remembered as a hedgehog for his one big, powerful idea: that freedom of speech is best justified in terms of autonomy of the individual (what Ed called the "liberty theory") rather than because of the marketplace of ideas to which it ostensibly contributes.  Like all great, big ideas, part of the appeal of Ed's liberty view of the First Amendment was the clarity with which he stated it. Ed's 1978 article in the UCLA Law Review, Scope of the First Amendment Freedom of Speech retains as much power today as it held then--perhaps even more.  In an era of truthiness, it is hard to argue with Ed's critique of the marketplace of ideas, summed up in the Introduction: Just as real-wor...

--Posted by Neil H. Buchanan In my FindLaw column this week, I return to my efforts to endear myself to America's automobile dealers. As part of their strategy to emerge from bankruptcy and respond to severely-reduced economic prospects, Detroit's automakers have announced that they will discontinue relationships with about 2,000 auto dealerships across the country. The U.S. House of Representatives included a provision in a bill passed last week that would require the automakers to go through arbitration if a local dealer appealed that decision, even if the decision to discontinue the business relationship fully comported with the contract between the manufacturer and the dealer. (The standard situations involve non-renewal of an expiring contract and invocation of contractual language allowing a party to end the agreement.) I describe in the column why I think the business model that independent dealerships represent is flawed; but more importantly, I point out the crucial ...

Posted by Craig J. Albert Today's New York Times reprints a lengthy 2001 memo from John Yoo to Alberto Gonzales on the subject of the application of certain treaties and domestic laws to the conduct of the war in Afghanistan. We can discuss the content on another day, but I would like to point out an early gem. Yoo writes, on page 17, "Nonetheless, the President has the constitutional authority to determine that Afghanistan is a 'failed State,' so that the Conventions are currently inoperative as to that country." Hmmm, I think that needs some kind of citation to some kind of authority. Oh, wait, look, there's a footnote. Footnote: John Yoo, Politics as Law?: The Anti-Ballistic Missile Treaty, the Separation of Powers, and Treaty Interpretation, California Law Review 2001. Hey, wait a second! Surely Yoo isn't citing himself as the only authority for this idea that the President can decide that another nation is in such bad shape that it wouldn't ...

Posted by Mike Dorf Here in the U.S., talk of addressing global warming--when it does not involve the all-too-widespread belief that man-made global warming is a hoax--concerns what measures the U.S. and other countries should undertake to limit emissions of greenhouse gases.  But much of the "north/south" wrangling over how to deal with global warming considers the size and distribution of transfer payments from countries (such as the U.S. and the members of the EU) that industrialized using fossil fuels--thus creating much of the mess in which we all find ourselves--to developing countries.  Such transfer payments would serve two broad categories of purposes. First, rapidly industrializing countries such as China and India say that we in the West got to industrialize by burning dirty fuels, and that much of our advantage today rests on that base.  If we want developing countries to cut their own emissions by using cleaner fuels more efficiently, they say, we shoul...

By Mike Dorf And now . . . still more on CLS v. Martinez to follow up yesterday's post and column .  Today I want to focus a little bit on the way in which Hastings implements its non-discrimination policy .  The policy as written bars discrimination on grounds of race, color, religion, national origin, ancestry, disability, age, sex, or sexual orientation."  In application, however, Hastings interprets this policy to mean that no official student group can exclude from membership any student who wants to join.  This raises a number of interesting issues. To begin, we might doubt whether this can really be the Hastings policy.  Consider the fact that the Hastings Law Journal, the school's flagship student-edited journal, selects members based on grades, a writing competition, and other factors (as set forth here ), but HLJ does not simply accept as members all students who want to join.  When I talked with a Hastings faculty member about this, I was t...

Post by Mike Dorf with a Contribution by Michael McConnell My latest FindLaw column digs into last week's cert grant in Christian Legal Society v. Martinez, about which I also posted preliminary thoughts here .  As I read the cases, Hastings should win, I say, but that's no guarantee that it will win.  My column also proposes a split-the-difference compromise in which Hastings would be able to deny direct funding to student groups that do not permit all students to become members but would not be able to deny such groups access to the school's media for communications, such as the email system.  I note, however, that this compromise appears to be ruled out by the Court's rejection of something similar in the Rosenberger case . After I finished writing my column, but before it went up, I received an email from Stanford Law Professor (and until recently, 10th Circuit Judge) Michael McConnell , who will represent the Christian Legal Society (CLS) in the Supreme Court...

By Mike Dorf Per tradition, the first full opinion assigned to a new Justice--in this case Justice Sotomayor--was in a unanimous case.  On Tuesday, the Court handed down Mohawk Industries Inc. v. Carpenter .   The case involves the scope of the "collateral order" doctrine.  I'll provide a very abbreviated intro to the issue and then a few observations. Background Modern federal court litigation is often a very complex undertaking, in which a district judge will make very many rulings both before and during trial.  Some of these rulings could turn out to be wrong but if a party objects to any particular ruling, he, she or it usually does not get to appeal right away.  The aggrieved party must wait until the whole case is over and then, if unhappy with the final result, appeal based upon whichever of the alleged errors the party thinks contributed to losing the case.  This is called the "final judgment rule" (FJR) and it's codified here .  The re...

Posted by Neil H. Buchanan Earlier this week, The Wall Street Journal 's Style & Substance editor announced that news articles in the paper should no longer use the term "death tax." The editor, Paul Martin, explained: "Because opponents of estate taxes have long referred to them as death taxes , the term should be avoided in news stories." A few thoughts: (1) This is a triumph for those who guard the wall between news and editorial at the WSJ. The biggest concern that people had when Rupert Murdoch's News Corporation bid for the Journal was that the wall would quickly fall. This would be very bad as a general matter, but it would be especially bad in this case because people familiar with the paper have long known that the editorial page is run by a group of extreme right-wing, anti-tax zealots, while the news operation has been scrupulous about policing any attempts to editorialize outside of the op-ed pages. Thus, for example, the news sec...

Posted by Sherry Colb In my FindLaw column, which will appear here later today, I discuss the distinction between the pro-life movement in this country -- which in general would exempt women having abortions from the criminal responsibility that attaches to providers -- and the pro-life approach of such countries as El Salvador -- where women can go to prison for abortion along with their providers.  I suggest in the column that this distinction may expose an important division between different camps in the pro-life movement on the question of a woman's relationship to her own abortion and, accordingly, to her unwanted pregnancy.  This division may, in turn, reflect a subtle but important difference in how pregnancy and its impositions on women are understood. In this post, I want to raise a different question:  In which pro-life camp -- that of people who would exempt the pregnant woman from criminal liability or that of people who would punish the pregnant woman a...