Dorf on Law

By Mike Dorf The recent Jane Mayer expose on the billionaire Koch brothers has been understandably garnering considerable attention. Mayer documents the extent to which said brothers have been bankrolling the Tea Party movement to advance both their economic libertarian ideology and  their business interests.  The article is a useful antidote to the view that the only serious threat to democracy from concentrated wealth derives from corporations.  That view, fostered by the Citizens United case, misapprehends the real problem: concentrated wealth itself.  Corporations are merely one vehicle for aggregating enormous wealth. Thus, anyone concerned about our political economy ought to be no less concerned about giant pools of money in the hands of natural persons than in the hands of corporations.  Indeed, the former is arguably a greater threat; diffuse corporate ownership makes it less likely that corporate treasury funds will be used to fund an idiosyncratic political agenda than

By Ori J. Herstein An interesting article and a New York Times op-ed piece argue for genetically engineering livestock so as to lower their capacity to experience pain as a partial solution to the moral repugnancy of the mainstream animal-product industry. Shriver (the author), who explains the science much better than I ever could, defends this position on utilitarian grounds. In a nutshell, considering the bleak realities of the animal-product industry and the fact that people are not likely to stop consuming animal-products any time soon, and considering that we are under a moral obligation to reduce the pain in the world, genetically engineering animals to experience less pain is a morally desirable course of action. While problematic for various reasons, I think this proposal does have some appeal: pain is bad, and a world with less pain would be, all other things being equal, better. But of course things are rarely equal. Shriver does attempt to answer several possible crit

-- Posted by Neil H. Buchanan I was not planning to write my FindLaw column this week about my proposal for a "Growth Budgeting Board," which I described in a recent scholarly paper and in my Dorf on Law post earlier this week. However, House Republican leader John Boehner gave a speech earlier this week that, I thought, directly implicated my arguments. Of course, it is also possible that I now have a one-track mind, and that I have become a hammer that sees nails everywhere I look. In any event, I felt that Boehner made an argument that demanded comment. Boehner included the following suggestion in his speech: "I think we should go through every line item in the budget and ask ourselves if the spending is so important we are going to ask our kids and grandkids to pay for it. And if [it] doesn’t meet that test, then why in the hell are we doing it[?]" I sincerely doubt that Boehner meant his comment as anything other than yet another way to say that gover

By Mike Dorf As a resident of New York State, I was pleased to see that the Empire State was among the winners of Round 2 of the " Race to the Top " for education grants from the federal government.  Yet there is something about the design of the contest that I find unsettling, even unseemly. I am not complaining about the specifics of the contest.  The federal Dept of Education under Arne Duncan has more or less continued the general embrace of standards-based education reform begun under President Bush.  One can legitimately quibble with the way that policy has been pursued: Too great an emphasis on standardized tests; tying the fate of teachers, administrators, and whole schools to student performance in a way that may well demoralize educators and lead to perverse consequences; and insufficient recognition of the variation in local circumstances in designing systems of accountability (as decried here ). Despite all of these worries, I am still broadly sympathetic to t

By Sherry F. Colb Every year for the past decade, Cornell University has run a New Student Reading Project .  The Project involves choosing a book for the incoming undergraduate class and Cornell community to read over the summer.  The Greater Ithaca community also participates, with support from the Tompkins County Public Library.  Then, when Fall arrives, faculty from different departments present lectures and facilitate small-group discussions of the book. This year, Cornell selected the Philip K. Dick novel, Do Androids Dream of Electric Sheep? , on which the Ridley Scott movie, Blade Runner, is (quite loosely) based.  This year, Michael Dorf and I decided to participate in the Project and serve as faculty facilitators for one of the small groups of freshmen discussing the book.  Our discussion – which took place on Monday – was quite interesting and gave students an opportunity to enjoy a seminar-like exchange with one another on a familiar topic.  Because Michael and I were v

By Mike Dorf In my latest FindLaw column , I revisit a theme I explore roughly once every five years: Advice to new law students about what to expect in law school.  (The column provides links to the earlier essays.)  Here I want to ask whether one of the points I make in the new column contradicts one of the leading theoretical accounts of law.  (My answer: Maybe, but so what?) In the column, I claim that law teachers ask more or less two kinds of questions: 1) Questions to which the law provides a clear answer (e.g., Absent a confession, how many witnesses does the Constitution require to testify to support a treason conviction?  Answer: Two); and 2) Questions to which the legal materials do not provide a determinate answer (e.g., Does California's Proposition 8 violate the federal Constitution?  Answer: We won't know definitively until the Supreme Court rules on the matter.) This way of framing things is broadly consistent with how legal positivists think about law.  T

-- Posted by Neil H. Buchanan I recently completed a draft of a new article for law review submission: "Good Deficits: Protecting the Public Interest from Deficit Hysteria" (abstract and full text available here ). Regular readers of this blog will not be surprised to learn that the article presents an extended argument against the idea that budget deficits are all bad, all the time. Looking back on how the article reached its present form, however, I am struck once again by the level of insanity that we have reached in the current U.S. policy debate. As originally planned, the article was going to focus only on the value of deficits in the long-run: deficits that are run every year in perpetuity, to finance public investments in things like infrastructure, education at all levels, technology, pure research, preventive medicine, early childhood nutrition, and so on. Because the economic theory behind this idea is relatively unknown (but actually uncontroversial, among econ

By Mike Dorf The announcement that Roger Clemens has been indicted for lying to Congress fills me with a flood of thoughts.  It being Friday in late August, and me with a syllabus still to tweak, a draft with many incomplete footnotes, and a column to write, I'll confine myself to a few random observations about a curious fact:  Of all the baseball players who took performance-enhancing drugs over the last couple of decades, only Roger Clemens and Barry Bonds ended up getting indicted for lying to Congress.  Why not others?      Account No. 1 : Bonds and Clemens were, respectively, the best hitter and the best pitcher of that era, and so they were inevitably going to attract the most scrutiny.      Account No. 2 : Bonds and Clemens are both notorious for having difficulty getting along with others.  Rafael Palmiero was generally better liked, so he caught a break.    Account No. 3 : Clemens had no credibility to begin with.  In June, during interleague play, Clemens had hit

By Mike Dorf In my two posts on the controversy surrounding the planned Park51/Cordoba House ( here and here ), I noted how the debate has shifted from whether the organizers have a right to build it (to which I believe the answer is blindingly obviously yes) to whether it is wise for them to do so.  I am tempted to say that the answer to the second question is entirely a matter of tactics for the planners rather than a fit topic for outsiders to speculate about. Consider an analogy.  Suppose a gay couple are vacationing in a country that is generally gay-friendly but has pockets in which people are offended by homosexuality.  (Such offense could be on religious grounds, as many Jewish, Christian, and Muslim traditionalists view same-sex sexual activity as sinful.  I understand--based on 30 seconds of Google research--that Hindu and Buddhist attitudes can be more flexible.)  Should the couple closet themselves when passing through places where their being out would be deemed offen

By Sherry Colb In my FindLaw column for this week, I discuss Michigan v. Fisher , a per curiam opinion from the Supreme Court, reaffirming the Court's commitment to the "emergency aid" exception to the Fourth Amendment requirement that police must obtain a warrant before entering a private home.  In particular, I discuss the Court's statement that even if the officer who entered the home in question did not actually believe that there was an emergency calling for immediate aid, it would nonetheless have been reasonable for him to enter the home without a warrant so long as a reasonable person could have concluded from the circumstances that there was an emergency. In my column, I discuss the Court's progression over time from the position that an officer's subjective motivations do not matter (e.g., an officer is stopping a motorist in the hopes of finding drugs, not because of the traffic violation that the officer just witnessed, is still acting lawful

By Mike Dorf My post yesterday noted how at least a sizable fraction of the participants in the public discussion of the planned Islamic Center near ground zero have come to accept that the people proposing to build the Center have a right to do so.  Now the question is whether they ought to do so or whether they ought instead to build somewhere else.  Like the President, I don't have a view on that question.  I share the sense of some of the commentators that there doesn't seem to be any good reason for people to be offended by the planned Center.  And, as I noted in my comment on yesterday's post, I think anti-Muslim prejudice likely accounts for most of the offense. That's not to say everyone who opposes the Cultural Center is acting out of prejudice.  E.g., Charles Krauthammer  likened the building of the Islamic Center to the building of a Japanese Cultural Center at Pearl Harbor, a disney park at Manassas, or a convent at Auschwitz, on the ground that to each

By Mike Dorf The kulturkampf against the planned Islamic Center within a few blocks of ground zero has morphed into a discussion of the difference between legal rights and their exercise.  Let's briefly recap: 1) Some New Yorkers (including some surviving family members of 9/11 victims) and many others were offended at the prospect of an Islamic Center (to include a mosque) being built a few blocks away from ground zero and so they looked for a means to block it, such as seeking to have the current building (site of a Burlington Coat Factory) designated a historic landmark.  Others sought (and still seek) an investigation into the finances of the Center, presumably as a means of blocking it.  The City Landmarks Comm'n (correctly) rejected landmark status for what was in fact an unremarkable building.  Other efforts to block the project continue. 2) Meanwhile, various pundits and organizations have chimed in.  Some, like the ADL, say that they are not challenging the le

-- Posted by Neil H. Buchanan The Trustees of the Social Security system released their 2010 annual report last week, perfectly timed for my return from a brief hiatus from FindLaw. In my column this week , therefore, I discuss the annual report, as well as the completely predictable commentary on the report from those who have long targeted Social Security for cutbacks or worse. The annual report itself contains nothing but good news: Despite continuing economic stagnation, the depletion dates for the Social Security trust fund under the Trustees' three forecast scenarios are unchanged from last year's report (2029, 2037, and never). Moreover, under the intermediate scenario, tax revenues are now forecast to cover 78% of scheduled benefits, up from the 76% predicted a year ago. (There is also very good news about Medicare, with its annual report showing that that system's trust fund will be in the black through 2029, a 12-year increase from last year's estimate of 2

Mike Dorf Future archeologists who read the Aug. 9, 2010 issue of the New Yorker may think that the uproarious piece therein by David Sedaris (abstract here ) was written in reaction to the curious case of Steven Slater, the JetBlue flight attendant who finally cracked after dealing with one too many surly passengers.   In his essay, Sedaris describes the unpleasantness of air travel these days as only he can, including some tidbits about the (apparently justified) contempt in which flight attendants hold most passengers.  Sedaris should get credit for prescience, for his essay was written many months ago.  I know because I heard him perform an earlier version of it live in April. Sedaris speculates in his essay that the ill tempers one sees (and experiences) in modern air travel are not so much the product of stressful situations but the way we really are, merely exposed by those stresses.  Perhaps, but either way, it's worth asking about causes.  I'm going to take as a gi

By Mike Dorf (Updated/Corrected Post, as Explained Below) A couple of weeks ago, I posted here and here about constitutional polymorphism--the notion that a single word or phrase in the Constitution could mean one thing in one context and something else in another context.  The posts led to some spirited exchanges in the comments over a number of questions about both statutory and constitutional polymorphism, including: 1) Is it ever justified?  2) How common is it?  3) Were the specific examples I gave actually instances of polymorphism or were they better explained as instances in which a single word or phrase was sufficiently vague that it could have a consistent meaning across contexts, even as the implications of that single meaning varied in those different contexts? To conclude this discussion of polymorphism, I'd like to connect question 3) to some of the questions raised by the so-called "new originalism."  To summarize, the new originalism--by contrast wit

By Mike Dorf Understandably, most of the news coverage of Perry v. Schwarzenegger  has focused on the bottom line: A court found a constitutional right to same-sex marriage.  But some of the coverage that has gone deeper has managed to convey a half-truth: The notion that Judge Walker declined to reach the question of what level of scrutiny applies to laws denying same-sex couples the right to marry.  (I don't have quotations or citations handy but I've seen this line.)  That's a half-truth because while Judge Walker said that Prop 8 flunks rational basis review, he also made clear that it needs to pass  something more like strict scrutiny--both because marriage is a fundamental right and because Judge Walker finds all the prerequisites for the conclusion that sexual orientation is a suspect classification.  I make the latter point in my column .  Here I'll add two observations. First, Perry was a somewhat unusual case in that the gay-rights plaintiffs actually aske

In my latest FindLaw column  I consider the possibility of backlash against Judge Walker's ruling in Perry v. Schwarzenegger .  Although I basically agree with Judge Walker on the merits, I nonetheless remain quite nervous about this case getting to the SCOTUS too early: Either we'll lose and lock in a bad decision for a decade or more, or we'll win and risk a constitutional amendment.  I don't say that backlash is inevitable but I do think the risk is real. I note briefly in the column that Judge Walker had one way to avoid a decision on the merits: He could have held that there was no live case or controversy.  The key state defendants declined to defend Prop 8, but Judge Walker permitted Prop 8's sponsors to intervene to do so.  Yet that decision was dubious in light of Arizonans for Official English v. Arizona .  Speaking for a unanimous Court there, Justice Ginsburg expressed "grave doubts" about the Article III standing of the sponsors of a ballot

-- Posted by Neil H. Buchanan In my post this morning, the eighth paragraph begins: "More broadly, a very large number of Democrats ..." I have re-written the second sentence of that paragraph (regarding Sen. Bayh's departure from the Senate) to clarify my point, which was obscured by poor self-editing. Interested readers might want to glance at the re-written argument. The bigger point is this: Many Democrats are competing with each other to see who can sound "tougher" about deficit spending. This puts Democrats in league with Republicans in denying the central macroeconomic lesson of the New Deal -- that there is an essential and unique role for the federal government to fight economic downturns through deficit spending.

-- Posted by Neil H. Buchanan My post earlier this week , discussing the extremism so evident in today's Republican party, included a short discussion of current opposition among conservatives to the New Deal. Responding to a colleague's comment on an earlier Dorf on Law post -- a comment suggesting that liberals are wrong to assert that "conservatives are trying to undo the New Deal" -- I noted that there is at least one group of conservatives who believe that the entire notion of government regulation of business is a violation of the contracts clause of the Constitution. I further noted that the most recent conservative president, and his entire party, were willing to put a proponent of that viewpoint (Judge Janice Rogers Brown) on the D.C. Circuit, even over strong Democratic objections that this viewpoint is far outside the mainstream. At the very least, therefore, some conservatives want to undo the New Deal, and most or nearly all national Republicans were a