Dorf on Law

This was a line from a documentary I recently saw - The Cove . As a piece of documentary film, I cannot recommend this strongly enough, though I found it impossible to watch the last 5 minutes of the film and other short parts were difficult to get through as well. The overall story is a documentary about how the last 5 minutes of the film were shot and it is fascinating. What I am taking the time to write about, however, is just a few lines from the film. A small Japanese village (Taiji) is the source of pretty much every dolphin at all of the world's very popular sea entertainment facilities. Only a handful of dolphins are sold each year (though because of their quite high two- and five-year mortality rate in captivity, sea entertainment facilities always need a ready supply of entertainment dolphins). In addition to the handful that are captured for sale to the sea entertainment industry, approximately 35,000 dolphins are brutally slaughtered for their meat. When intervie...

-- Posted by Neil H. Buchanan The link to my most recent FindLaw column, " If We Must Obsess About Budget Deficits, Can We At Least Measure Them Correctly? " is now working. This is the column that I discussed at the beginning of yesterday's Dorf on Law post, " Deficits, Inflation, and Living Standards ."

By Mike Dorf As Linda Greenhouse noted , President Obama's criticism of the Supreme Court's Citizen United speech made for an awkward moment and arguably showed why Supreme Court Justices should not attend the State of the Union address. While not quite Joe-Wilson-esque, Justice Alito's shaking of his head in disagreement was itself a mild breach of decorum: If you're going to show up at a political speech by a President who, when a Senator, voted against your confirmation, be prepared to grin and bear--or at least sit stone-faced through--criticism of your recent politics-affecting decision. Meanwhile, although Justice Alito's head shake is getting a lot of attention, the substantive issue should not be overlooked.  And here I do not have in mind the question of what, exactly, the President believes Congress can do to limit corporate influence on politics without once again running afoul of the Supreme Court.  That's an important question, but there is a m...

-- Posted by Neil H. Buchanan My FindLaw column this week continues my reaction to the Democrats' renewed zeal for fiscal orthodoxy. I have particularly harsh words for President Obama, whose embrace of the Republicans' insane idea to freeze spending during a recession is nothing short of irresponsible. I go on in that column to offer what I hope is a constructive idea: If we must live in a world where politicians pander to (and thus reinforce) politically contrived fears about deficits, maybe we should revisit how deficits are measured. I suggest that any efforts to create a bipartisan panel to fight deficits should instead be used to create a panel to measure the fiscal deficit in a responsible way. Even though such a panel would surely be populated by the usual suspects who infest Washington, the net result of a semi-public discussion of how to measure deficits would have to be positive. We use the simple-minded cash-flow measure of deficits now. Even alerting the publ...

By Mike Dorf On Friday, I'll be presenting a paper at a conference at the University of Pennsylvania (sponsored by the U Penn Journal of ConstitutionalLaw) on The Judiciary and Popular Will .  The Symposium is built around (though not limited to) themes discussed in Barry Friedman's terrific new book, The Will of the People .  Readers who have followed Friedman's academic work over the last decade and a half will see in the book the development of points he made in a series of articles tracing the history of the countermajoritarian difficulty (a clumsy phrase coined by Alexander Bickel to refer to the power of American courts to invalidate as unconstitutional laws passed by majoritarian bodies).  But the book is not just a re-packaging of a collection of articles.  It is a lucid and powerful narrative. What's odd about Friedman's book--or what's odd about the necessity of the book--is that his core point has been known for many years: He shows how the Supre...

By Mike Dorf In my post yesterday , I gave Justice Thomas a hard time for taking the view that corporations are constitutionally entitled to make campaign expenditures without having to comply with a statutory duty to disclose that they are doing so.  Today I want to praise Justice Thomas for his dissent from the denial of certiorari in Noriega v. Pastrana .   Former Panamanian dictator Manuel Noriega, who is scheduled to be released from federal custody shortly, filed a habeas corpus petition arguing that the the U.S. would violate the Geneva Conventions if it followed through on its plans to send him to France for further trial, rather than allowing him to return to Panama. Here's the core of Noriega's argument: 1) The provision of the Military Commissions Act (MCA) that, by its terms, appears to strip federal habeas courts of the power to grant relief under the Geneva Conventions, is actually best read as not doing so. 2) If, by contrast, the MCA does strip habeas...

Posted by Mike Dorf My latest FindLaw column critically examines Citizens United v. FEC .  I conclude that the decision probably won't do as much damage as many of the good-government groups fear because: a) even before Citizens United , corporations had plenty of ways to influence politics; and b) the largest wealthiest corporations will usually be wary of becoming too obviously involved in politics for fear of alienating roughly half of their customers.  Nonetheless, I criticize the Court pretty sharply for its overall obtuseness. Here I want to add a brief word about Justice Clarence Thomas's remarkable separate opinion.  Although the Citizens United Court split 5-4 on the constitutionality of McCain-Feingold's limitations on corporate independent expenditures, 8 Justices agreed that its disclosure and disclaimer requirements are valid.  As a result, if, say, Exxon-Mobil were to start running ads opposing candidates who want to slow global warming by curbing...

By Mike Dorf Overturning two precedents, this morning the Supreme Court invalidated the application of the Bipartisan Campaign Reform Act (aka McCain-Feingold) to corporate-funded independent expenditures.  I'll have more to day about the case-- Citizens United v. FEC --in my FindLaw column and an accompanying post here on Monday.  (My preview of the issues back in August appears here .)  For now, here is a quick observation about the constitutional rights of corporations. Neither the majority nor the dissent directly cites Santa Clara County v. Southern Pac. RR , the 1886 case that said that corporations are persons under the Fourteenth Amendment.  However, the spirit of Santa Clara County could be said to hover over the opinion.  Part III(A)(1) of the opinion begins with the following statement: "The Court has recognized that First Amendment protection extends to corporations."  There then follows a citation of over 20 First Amendment cases involving...

-- Posted by Neil H. Buchanan The big news of the week is the special election in Massachusetts to fill the late Edward M. Kennedy's seat in the United States Senate. It would not have been big news if a Democrat had held that safe seat; but a Republican won the seat in a shocking upset. The early consensus is that independents in the commonwealth are outraged by out-of-control government and thus sent a message to Obama and the Democrats to stop doing what they are doing. Chances are good that this is nonsense, but for the purposes of the argument here, it only matters that D.C. insiders think that it is true. One of the most prominent items on this much-discussed "government out of control" list is budget deficits. Budget deficits are proof, we are told, that Washington cannot get its house in order. Budget deficits are bad. Budget deficits harm our children and grandchildren. Budget deficits weaken our international competitiveness. Budget deficits give us dand...

Posted by Sherry Colb Some time today, at this site, you will find my column for the week.  It describes and assesses the importance of a Vermont Supreme Court case in which the plaintiffs are asking for loss-of-companionship emotional-distress damages from a defendant who shot their dog to death.  I consider the claims of some within the animal protection movement that a victory for the plaintiffs would be a "gateway" victory for the status of animals. In this post, I want to explore the meaning of a different sort of "gateway" that many proponents of animal welfare embrace:  vegetarianism.  Some people who oppose the slaughter and torture of animals within the food and clothing industries decide that instead of (or perhaps preliminary to) going vegan, they will go "lacto-ovo vegetarian" (which means a person who consumes plant-based food plus dairy and egg products).  As a matter of numbers, there are many more lacto-ovo vegetarians than there are v...

By Mike Dorf Legal realism--the view that judges make decisions based on their values, ideologies, and backgrounds, rather than simply based on the formal legal materials--has become a commonplace for academics, lawyers, and judges in their unguarded moments.  To be sure, it is still impermissible for a Supreme Court nominee to profess legal realism (as I elaborated here ).  But that is part of the kabuki dance of confirmation.  Any law student who is paying even minimal attention accepts the legal realist position by about the second month of law school. Legal realism is sometimes parodied as the view that "what the judge had for breakfast" decides the case, a double falsehood.  First, the phrase falsely suggests that judicial decision making is random.  Second, it suggests that formal legal materials play no role in judicial decision making.  That view--that law is empty--is about as naive as formalism itself. Nonetheless, every now and then a deci...

By Mike Dorf Back in the 1980s, it was still politically acceptable for some prominent Republicans to oppose an official holiday recognizing Dr. Martin Luther King, Jr.  Prominent examples included Jesse Helms (well, duh), Ronald Reagan, and John McCain.  Reagan eventually capitulated and McCain changed his mind in that mavericky way of his.  Even at the time, it wasn't clear what angle there was for a politician in opposing the holiday, except for someone like Helms, whose appeal was unabashedly racist (in a way that Reagan's and McCain's were not).  Would anything really turn on whether kids stayed home from school, and department stores held mattress sales, on one day in late January? As it turned out, the holiday has made a difference.  For one thing, MLK Day has thus far resisted commercialization.  Perhaps it's simply a matter of time, but I have difficulty imagining car dealers dressing up as MLK and telling potential customers, "I have a dream ...

By Mike Dorf Here's a plug for a new book co-authored by my colleague Eduardo Penalver and Fordham law professor Sonia Katyal .  The book is Property Outlaws and its core thesis is that people who violate property rights end up reshaping the law of property, and not just simply by inducing the right-holders to seek enforcement of those rights.  Rather, the argument is that property outlaws change the very nature of property law, often in ways that end up being beneficial to the initial property holders in the first place and society at large.  Here's the official promo: Property Outlaws puts forth the intriguingly counterintuitive proposition that, in the case of both tangible and intellectual property law, disobedience can often lead to an improvement in legal regulation. The authors argue that in property law there is a tension between the competing demands of stability and dynamism, but its tendency is to become static and fall out of step with the needs of socie...

-- Posted by Neil H. Buchanan In my latest FindLaw column (available here this afternoon), I continue my discussion of the proposed tax on Wall Street bonuses. Going beyond the question of whether such a tax would discourage people from working on Wall Street (which I discussed here earlier this month), I run through the major arguments for and against the tax. While it is obvious that a tax on bonuses is not the first-best way to achieve progressivity in the tax code, I conclude that it is a good idea and that the arguments against it do not add up. Here, I want to discuss a related question. Suppose that the Bush and Obama administrations had driven a harder bargain with the financial industry, by offering less than 100 cents on the dollar for losses, for example, and requiring changes in financial practices that would have given troubled mortgage holders and other debtors partial relief from their obligations. Would that be better than or worse than taxing them now? To be sim...

By Mike Dorf My latest FindLaw column asks whether the minuscule cancer risk from backscatter X-ray full-body scans is worth worrying about.  (Answer: Maybe.)  In the course of the column I cite the following calculation from Super Freakonomics:  Taking off and replacing shoes at the airport costs the average traveler about a minute, which aggregated over hundreds of millions of passengers wastes the equivalent of 14 lives per year.  In the column I note that of course 14 lives spread out this way over hundreds of millions of people in one-minute increments is much less of a harm than actually killing 14 people. Here I just want to note an oddity.  Under the criminal law, killing a person who had a minute to live--someone in his death throes, say--is murder.  Thus, if someone were to somehow kill 500 million people one minute before each of them was going to die, that would be 500 million cases of murder.  So how come it feels trivial--and the Su...

By Mike Dorf Yesterday, the Supreme Court issued a temporary stay of the plans of the district court in the case challenging California's Prop 8 to make video of the proceedings available online in real time.  Justice Breyer dissented but expressed satisfaction with the temporary nature of the stay--only until tomorrow, Wed, at 4 pm--so the Court can give the issue full consideration.  For a backgrounder on the case, see this BLT post .  Here I'll register a quick thought of my own in real time. Let's put aside the question of a stay--which puts a special burden to show irreparable injury on the party seeking to overturn the lower court decision, here the sponsors of Prop 8.  Focusing only on the underlying merits, there are two very different sorts of grounds for not making judicial proceedings available live (or delayed) over the internet, on tv, or via other means. First, there is the general worry that in every case, the presence of cameras broadcasting to...

By Ori Herstein Consider the following two maxims of morality: · One who performs a morally bad action is morally worse – in terms of blameworthiness (moral culpability) – if one is aware of the wrongness of the action. Call this Maxim I. · It is morally better – in terms of virtue – to be morally cognizant, i.e., reflective, informed, caring, inquisitive and sensitive to moral facts and dilemmas, than it is to be morally oblivious and ignorant. Under this maxim the moral value of being morally cognizant is intrinsic and not purely instrumental (cognizance of the good is more likely to lead to good actions). Call this Maxim II. The two maxims appear to clash in the following case: Person A is highly cognizant of the world’s evils and moral issues. She reads human rights reports, watches ‘real news,’ is informed about world famine and genocide, notices homeless people and panhandlers on the sidewalks and is generally reflective about moral issues. Person B...

By Mike Dorf Here's the rest of the exam from Friday's post . Question 2 (Weight: 65 percent)        Based on your excellent work at Huckabee, Palin & Romney, you have obtained summer employment at the Cuyahoga County Prosecutor’s office in Cleveland, Ohio.  It is now July 2010.  The U.S. Supreme Court has recently decided, in McDonald v. City of Chicago , that the Second Amendment is incorporated against the states.  Meanwhile, you have been assigned to work on the case of State v. Davis .        At the highly-publicized April 2010 murder trial of U.S. citizen and Cleveland resident Drucilla Davis, the state of Ohio charged that Davis--a well-known singer/songwriter-- intentionally killed her ex-boyfriend, Victor Viceroy, because Davis was jealous of Viceroy’s new relationship.  Davis admitted to killing Viceroy but testified that she did so in self-defense.  Viceroy, who is a former prof...

By Mike Dorf (Due to my confusion about dates, this post originally went up under a slightly different name, and went out in an email, on Wednesday.  I took down the earlier version.  If you read that one already, you needn't bother reading below, as there's nothing new here.) (Update: Also, an earlier version of this post referred to an upcoming "break from blogging."  That was another error.  I originally wrote this post several weeks ago but delayed putting it up.  The break from blogging is over.) In one of my very favorite novels, David Lodge's Changing Places, the narrator tells us the following about Professor Philip Swallow: A colleague had once declared that Philip ought to publish his examination papers. The suggestion had been intended as a sneer, but Philip had been rather taken with the idea -- seeing in it, for a few dizzy hours, a heaven-sent solution to his professional barrenness. He visualized a critical work of totally revolutionary form...

-- Posted by Neil H. Buchanan In a recent post , I referred to my series of posts from late Summer 2007 in which I identified the worst examples then afoot of "dishonest tax rhetoric." I singled out misleading methods of describing tax increases as the " largest ever ," the games one can play to make sales tax rates seem smaller , and finished with the infamous death tax/estate tax ploy. In each of those cases, I described what was going on as dishonest because the purveyors of the rhetorical ploys were building on some element of truth in each case but were deliberately communicating utterly false conclusions. For example, if one describes a tax increase as large or small by measuring it in dollar terms, then a $100 tax increase in a $10 trillion economy is "larger" than a $10 tax increase in a $100 economy. The reason for the false comparison is to mislead the unwary into thinking that the current tax increase is somehow unprecedented, dangerous, and...

Posted by Sherry F. Colb Last month, Natalie Angier wrote an article in the New York Times about new research suggesting that plants have active and sophisticated methods of resisting predators and disease.  Such research is fascinating in its own right, but Angier identified an ethical lesson in it as well, namely, that choosing to be a vegan is morally no better than choosing to be an omnivore.  The claim is both spurious and telling. Here is the argument:  Because plants escape predators in a sophisticated manner, it follows that they "like to live too," just as animals want to live.  If plants want to live, then it follows that killing them is just as immoral as killing animals.  Vegans fund the killing of plants, while omnivores (and vegetarians, I would add) fund the killing of animals.  Therefore, we are all equally unethical in our consumption habits, according to Angier, and no one can claim the moral high ground. Angier herself chooses not...

Posted By Sherry F. Colb Because I already have a post up for today (about the "slaughter" of plants and veganism), I will just take this opportunity to encourage people to read my column on FindLaw, which appears here , addressing some differences between Jewish and Catholic law on abortion and how those differences might help inform our thinking about reproductive rights.

By Bob Hockett With some recognizable form of the recent House and Senate health insurance bills now all but set to be passed into law by Congressional action and Presidential signing later this month, it was perhaps all but inevitable that one or two naysayers might look for some reason to hope the Supreme Court might nix the effort. But one might nevertheless have hoped for something a bit more serious that what three well known public figures have offered in this past weekend's Wall Street Journal in this vein. In the issue in question, Orrin Hatch, Kenneth Blackwell, and Kenneth Klukowski (hereinafter 'HBK') proffer three surprisingly frivolous arguments purporting to establish that what they call 'the Health-Care Bills' are 'unconstitutional.' Since I have been writing, like Neil and Mike, with some regularity about the health insurance reform effort, I am perhaps naturally prompted to comment on each of the three arguments.  Happily it requ...