Dorf on Law

By Mike Dorf President Obama very likely would not be President today were it not for a speech he gave in October 2002, in which he opposed the coming war in Iraq.  Delivered at a time when most prominent national Democrats were too timid to challenge the Bush Administration's plans to topple Saddam, Obama's early and unambiguous opposition to the war gave him the credibility to appeal to the substantial anti-Iraq-war constituency in the 2008 primaries, even though his principal rival for the nomination, Hillary Clinton, was by then taking roughly the same position as Obama on Iraq policy going forward--a fact underscored by Obama's subsequent naming of Clinton as Secretary of State. Some of Obama's early supporters have thus been disappointed by the fact that in office he has either been stymied in efforts to repudiate Bush policies (as with respect to military trials) or has seemed to adopt them.  The irony of Obama receiving the Nobel Peace Prize shortly after...

-- Posted by Neil H. Buchanan Yesterday, I posted some thoughts on " Forks Over Knives ," an excellent new documentary film that discusses the extreme damage that humans inflict on themselves by eating animal products. The film summarizes the work of Drs. T. Colin Campbell and Caldwell Esselstyn, each of whom independently found that people who eat plant-based foods are healthier than people who eat animals and their secretions. The differences in health outcomes are, moreover, extreme, with societies that exploit animals suffering from deadly diseases that are virtually unknown to societies that eat plants. [Note: Toward the end of yesterday's post, I asserted that the film had engaged in product placement for a high-end grocery store chain. The creator of the film posted a polite reply on the comment board, stating that what I took to be paid-for in-movie advertising was no such thing. I have posted an apology and clarification at the beginning of yesterday's p...

[Correction: As I learned from a comment on today's post, from the creator and executive producer of "Forks Over Knives," there was no product placement in the movie by the Whole Foods Markets grocery store chain. My comments in the third-to-last paragraph below -- especially my use of the harsh term "sell out" -- were thus based on an incorrect assumption on my part. My apologies.] -- Posted by Neil H. Buchanan A new documentary film, " Forks Over Knives ," discusses the connection between public health and the consumption of animal products. It is a brisk, lively movie experience, full of fascinating information, combining a clear-eyed description of depressing reality with an equally honest assessment of how much good people could do themselves by removing animal products from their diet. The film's title is a play on words, with the "knives" referring to surgeons' scalpels, which would be used much less often if people would p...

By Mike Dorf As I discussed yesterday , Monday's Supreme Court decision in Brown v. Plata  raises but doesn't ultimately resolve the question of how far Congress may go towards denying any and all judicial relief to people who have had their constitutional rights violated.  I speculated that Justice Kennedy's opinion indicates that five justices (Kennedy himself, as well as Justices Ginsburg, Breyer, Sotomayor, and Kagan) are prepared to say that Congress cannot, outside of clearly recognized categories or without providing an adequate alternative, simply cut off what would otherwise be a standard judicial remedy for the violation of constitutional rights.  In this follow-up post, I want to note how far in the other direction at least two justices (Scalia and Thomas) and possibly four (also CJ Roberts and Alito) seem willing to go in the other direction.  To do so, I'll need to unpack a somewhat technical piece of Justice Scalia's dissent. Plata  is really ...

By Mike Dorf Law students and many members of the lay public learn early on the Blackstonian maxim for every right, a remedy , invoked by Chief Justice John Marshall in the opening passages of Marbury v. Madison , and seemingly stating a fundamental principle of both the rule of law and American constitutionalism.  And yet, even a few moments of careful reflection reveal that breaches of rights, including constitutional rights, frequently go unremedied. Suppose a police officer arrests you without probable cause or a warrant, thereby violating your rights under the Fourth Amendment, as made applicable to state and local officials by the Fourteenth Amendment.  You sue the officer to vindicate your rights, but a court could conclude that your rights were violated and nonetheless withhold a damages remedy because it was not previously established that the objective facts known to the officer did not constitute probable cause and exigent circumstances.  Thus, the officer...

By Mike Dorf With doomsday having come and gone (phew!), it's worth reflecting on a  phenomenon that sparked increased interest in recent weeks, as  anticipation of the apocalypse turned the thoughts of  apocalypse-minded folk to the post-Rapture world: Who will care for  their pets who will be left behind?  The answer, given by  websites that specialize in such matters, such as this one , is: We non-Christians--a term  used by the Rapture-minded to include atheists, agnostics, adherents  to non-Christian faiths, and adherents to Christian sects that don't  believe in the Rapture, i.e., the overwhelming majority of people now  living on Earth. You're probably thinking: Why would a merciful God rapture His  obedient human servants but leave their obedient non-human animal  servants behind?  And isn't the post-Rapture world supposed to be, well, post-apocalyptic, thus rendering pet care well-nigh impossible? According t...

-- Posted by Neil H. Buchanan [Special Note: In yesterday's post , I summarized an analysis of the so-called Ryan Plan, the at-least-temporarily-abandoned Republican plan to replace Medicare with a voucher system. An analysis of that plan showed that the country's overall (private plus public) costs of medical care would be either 5 or 8 times higher than current costs -- even taking into account the direct reduction in government spending on Medicare -- depending on the underlying assumptions. That translates into total increased costs through 2084 of $20 trillion or $34 trillion, in net present value terms, as the price of abandoning publicly-funded and -managed Medicare. My original post, which I have now corrected, stated those numbers as $20 billion and $34 billion -- billions, not trillions. I was only off by three orders of magnitude. No biggie.] On Monday, Professor Dorf pointed out a strategic blunder by the Obama Administration in defending the Patient Protectio...

[NOTE: The post below contains corrected text. In the fourth paragraph, I originally wrote that the estimated aggregate medical cost increase under the Republicans' proposed plan to replace Medicare with vouchers was $20 b illion or $34 b illion, depending on the underlying assumptions. The correct numbers are $20 tr illion and $34 tr illion. ] -- Posted by Neil H. Buchanan According to the conventional wisdom, America's elderly are a bunch of selfish, overfed whiners. "The Simpsons" has captured the essence of this myth on many occasions, using Homer's aged father Abe and his nursing home cronies to depict America's senior citizens as comically self-centered. In one episode, Abe yells: "I'm old. Gimme, gimme, gimme!!" This narrative is somewhat offset by a counter-narrative about "the greatest generation," but the idea that our retirees are heedlessly pampering themselves at the expense of the future seems to dominate our views o...

By Mike Dorf Continuing a tradition I started last year , I'm posting my Federal Courts exam.  There are four questions of equal weight. This was a particularly challenging exam.  It was an open-book take-home for which the students had eight hours. The following facts pertain to all questions: Section 10320 of the Patient Protection and Affordable Care Act (PPACA) amended Section 1899A of the Social Security Act to strengthen a body now called the “Independent Medicare Advisory Board.”  You can read a version of the Act as it now stands at 42 U.S.C. § 1395kkk .  However, to use your time on this question effectively, you would be well advised to accept the following summary, which borrows liberally from the summary posted on the White House website : * The Board consists of fifteen members, including medical professionals and others, who are nominated by the President and confirmed by the Senate.  Except for the initial terms, which are staggered to cre...

By Mike Dorf Last week's conviction of Raj Rajaratnam for insider trading may herald an expansion of the use of wiretaps as a tool in the policing of Wall Street.  Accordingly, it's worth asking how Wall Street practices might change in response.  Practices on a different street--the corner where drug dealers ply their trade--may provide one useful point of comparison. I'm not the first person to draw this parallel.  As reported in a Forbes magazine blog post in February, it appears that hedge fund managers have already become paranoid about wiretaps and bugs, hiring security firms to check their homes and offices.  Based on my extensive experience watching the HBO show The Wire   and mob films and tv shows, I expect that this will only be the beginning of the change in behavior. Consider the discipline of the Barksdale crew on The Wire .  When the series opens, even before they realize that they are the subject of electronic surveillance, they ...

By Mike Dorf Last week the U.S. Court of Appeals for the 4th Circuit became the first federal appeals court to hear argument on the constitutionality of the individual mandate provision of the Patient Protection and Affordable Care Act (PPACA).  In addition to the merits, the case raises an interesting question of standing that I'll discuss here. In its brief on the merits  in the case brought by the State of Virginia, the federal government concedes that private parties to whom the mandate applies--like the plaintiffs in the parallel  Liberty University litigation--do have standing to contest the mandate.  However, the feds say, the State of Virginia is not subject to the mandate. Virginia argues that it nonetheless has standing because the mandate pre-empts a Virginia law stating that no one can be mandated by law to purchase health insurance.  The feds respond by noting that the Virginia law was passed for the express purpose of nullifying the fed...