Dorf on Law

By Mike Dorf The notion that Occupy Wall Street (OWS) has no demands is fueled in part by an arguably deliberate  media obtuseness .  Judging from the movement's core catch-phrase -- "We are the 99%" -- it is clear that the movement centers around a complaint about economic inequality There is, nonetheless, a kernel of truth to the media trope that OWS and its far-flung spinoffs remain an amorphous movement with demands no more concrete than, as my Cornell Government Department colleague Sid Tarrow puts it , "Recognize us!"  I agree with Tarrow and others that it is too soon to tell whether OWS will fade away or coalesce into a more conventional political movement, and if the latter, what its central focus will be.  But I also want to suggest that we may be looking at OWS through the wrong frame. Most observers take OWS to be a nascent movement within American constitutional democracy.  Viewed this way, it is logical to ask what concrete policy changes the

-- Posted by Neil H. Buchanan I have long been an avid fan of college sports, especially football. I grew up in Big Ten country, living in contested territory between Ohio State and Michigan. An unusual set of circumstances led me to betray my Buckeye roots to switch sides and become a Wolverine during my adulthood, but my passion for watching football never waned. Over the last few years, however -- and especially over the last ten months or so -- it has reached the point where I feel dirty even watching the games. I have been planning to write a blog post describing some of the issues that seem relevant to my change of heart, and I might still do so. Today, however, I want to address some arguments from Taylor Branch, who has written a sustained attack on the NCAA, " The Shame of College Sports ," in The Atlantic, now followed by a book, The Cartel, on the same subject. (I have read the article, while the book has apparently not yet been offered for sale, at least

-- Posted by Neil H. Buchanan My new Verdict column picks up on a point that I made toward the end of my October 14 Verdict column , in which I noted the worrisome resurgence of "gold bugs" on the left and far right of this country. It is, of course, not possible to say anything genuinely new about the gold standard, but I think I made at least one point that is not widely understood. Defenders of the gold standard extol its virtues as a neutral, mechanical, "free of human intervention" system that naturally equilibrates the economy. All Congress has to do, they say, is set the ratio of dollars to gold once and for all, and everything will spin like a top thereafter. When pressed about the volatility of the world gold market, and the effect that such volatility would have on the economy, however, the answer is that the dollars-to-gold ratio can be adjusted in response to swings in the gold market. At that point, however, the gold standard is revealed to

By Lisa McElroy A few years ago, I had “that” student. The one who constantly has his hand up in class, who asks questions that you answered mere minutes before, who loses his train of thought in the middle of a sentence, leading to uncomfortable silences and eye rolling by other students. The student was becoming a problem in my class. I tried to remember that first-year students are flooded with so much information that they can’t possibly retain it all, but I was still frustrated. It seemed like this student wasn’t doing a good job of listening, of paying attention, of learning the material - and I was starting to feel like he was detracting from other students’ learning experiences. I began griping to my colleagues that I wished this student would get it together, because he was really starting to annoy me. Then, one evening, as I was cooking dinner, my email pinged. My student was in the emergency room. He was asking for an extension on an assignment due the next day. He was reall

By Mike Dorf Last week I fielded a call from a reporter who was interested in the question of whether the Occupy Wall Street protesters would have a First Amendment right to remain in Zuccotti Park in the event that either Brookfield Properties (the property's owner) or the city were to try to evict them.  My answer, in a nutshell, went like this: 1) A threshold question is whether to treat Zuccotti Park as a public forum or, if not, whether First Amendment protections apply in light of the character of the public easement that the city extracted from Brookfield in exchange for its development rights. 2) Assuming that the First Amendment does apply, the protesters could be subject to content-neutral, reasonable time, place, and manner restrictions.  Preserving a park for competing uses in addition to protests would ordinarily count as reasonable.  It would be unreasonable for a city to deny the organizers of a march or a rally a permit to hold that rally or permit on a mutual

By Mike Dorf My latest Verdict  column  asks whether there is an emerging "Obama Doctrine" regarding the use of military force.  I say there is, and that it emphasizes air power, drone strikes, and special operations, rather than boots on the ground.  That much strikes me as largely uncontroversial, simply an extrapolation from recent events.  I also discuss some of the costs and benefits of the Obama Doctrine, as well as legal questions it raises. Here I want to focus a little bit of attention on an issue the column raises in passing: The tendency of right-wing commentators to portray Obama differently, as dangerously multilateralist and uninterested in using force to defend U.S. national interests.  I give as an example an article by Douglas Feith and Seth Cropsey.  Readers will recall that Feith, the architect of much that went wrong in American war policy under President Bush, was described by General Tommy Franks as "the dumbest fucking guy on the planet,"

-- Posted by Neil H. Buchanan In my post yesterday , I discussed the views of the winners of this year's faux-Nobel in Economics, Christopher Sims and Thomas Sargent. In particular, I pointed out that the claims of some on the right that Sargent's selection is a slap at Keynesians are simply wrong. Both Sims and Sargent are aggressively apolitical, but even so, at least Sims has said directly that Keynesians are doing the most important work in economics these days. He also approved of further efforts to stimulate the economy through fiscal policy. The econ nerd in me then made a further argument, which is that Sargent's description of a theory called "rational expectations" was a (perhaps unintentional) endorsement of Keynesianism. Sargent described that theory as merely the assertion that people's expectations (about prices in particular) matter in determining economic outcomes. In other words, the theory of rational expectations is now merely a the

-- Posted by Neil H. Buchanan The annual ritual of granting the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel, incorrectly known as "the Nobel Prize in Economics," is always attended by a sub-ritual in which politicians and policy wonks try to claim validation by aligning themselves with the recipients of the prize. Or, if the prize goes to a foe, the standard move is to denigrate the prize. When Krugman won, people on the right screamed. When someone like Buchanan wins (no relation), people on the left dismiss the significance of the award. Given that the prize is awarded on the basis of things that only economics professors really understand, all of that is rather silly. This year should have been especially non-controversial. The prize, awarded to Christopher Sims and Thomas Sargent, recognized their important work on econometric technique. (I used some of their most important technical innovations as a central part of the empirical analysis

By Sherry F. Colb In my column for this week, I discuss the recent acquittal of Barbara Sheehan in the shooting death of her husband Raymond Sheehan.  Mrs. Sheehan admitted killing her husband but claimed that she did so in self-defense.  My column analyzes the traditional duty to retreat and its connection to the imminence requirement, the latter of which frequently serves to frustrate the defenses of battered women who kill their batterers.  In this post, I want to explore one possible account of why people are skeptical about the good faith of women who kill their batterers. As I explain in my column, it can be challenging to persuade a jury that you acted in self-defense if the threat to your life to which you were responding was not an immediate one.  But I think there is more to the story than a jury's strict fidelity to doctrine and the imminence requirement.  When people hear about a long history of domestic abuse followed by a killing, particularly when the killing is

By Mike Dorf Back when I was a law student doing on-campus interviews for law firm jobs for the summer of 1989, a story circulated about the following exchange between an interviewer and interviewee. Interviewer: What practice areas interest you? Interviewee: I think I'd really like litigation. Interviewer: Litigation. Litigation. Every damned student I interview says litigation.  Did your placement office tell you all to say that? Interviewee: No, did they tell all of you to say "big firm, small firm atmosphere?" This story is revealing along two dimensions.  First, it shows how times have changed.  My graduating class and many that followed it were entering a job market so eager to hire new lawyers that the interviewee didn't care about insulting the interviewer.  She knew she'd have plenty of offers, and so she couldn't care less about this guy.  The story may well be apocryphal, but it rang true enough that it circulated widely at the time.  Today, of co

By Bob Hockett  (NB from Mike: Bob asked me to note that Lynn LoPucki and another who wishes to remain anonymous were very helpful in his development of the proposal described here.) -------------------------------------------------------------------------------------  One general prospect that I think deserves more attention than it seems generally to attract is that of financial innovation on behalf more directly of proverbial 'Main Street,' to supplement those many very clever innovations, some admittedly perhaps 'too clever by half,' that regularly come down the pike to the benefit of proverbial 'Wall Street.  Indeed, it seems to me that many potential innovations that might directly benefit the former would ultimately redound indirectly to the benefit of the latter as well.  The following idea is offered in that spirit. First a brief bit of contextualization.    So, as many of our readers are doubtless aware, the chief drag upon consumer demand,

-- Posted by Neil H. Buchanan In my new Verdict column , I discuss the Occupy Wall Street protests (OWS) and their potential importance as harbingers of larger protests to come. I do not, however, take the position that OWS is the leading edge of a lefty radical movement in the country. Far from it. Instead, I point out that the current protesters seem to be arguing for little more than moderate, center-left policies. In other words, they are calling on Obama and the Democrats to be just a little less willing to capitulate to Republicans. To the extent that we can determine an overall agenda, the protesters are asking for some mildly redistributive tax policies, along with some long-term investments in infrastructure, education, and the environment. Not exactly weak tea, but certainly not a boilermaker, either. The OWS protesters are, in other words, asking Obama to stick to his recent script, which he adopted a few weeks ago once he realized that his "only grown-up in the r

-- Posted by Neil H. Buchanan [Update: Professor Hockett, in a private email, has graciously taken on the blame for the "global currency" confusion that I note at the end of this post. In a very long-run sense, the Hockett vision could become a system with a well-regulated global currency. That, however, is definitely not what is needed in the immediate, or even in the intermediate, policy environment. The confusion in Nocera's column, however, could have been the result of a shortened explanation that Professor Hockett provided to him.] A few weeks ago, I had harsh words for Joe Nocera, one of the new op-ed columnists for The New York Times, who had written a profoundly misguided column about the National Labor Relations Board. In that post, I also mentioned some other puzzling columns from Nocera, going back to his days as a columnist for the Times's Business Day section. In early 2009, Nocera wrote a column about AIG that mischaracterized the very notion of i

By Mike Dorf My latest Verdict   column examines what's at stake in the Supreme Court case of Douglas v. Indep. Living Ctr. of So. Calif., Inc.   The case poses the question whether private parties can sue a State for failing to satisfy its obligations under the federal Medicaid statute.  Traditionally, the answer has been yes under the doctrine of Ex Parte Young , but another line of cases says that there are no private rights of action to enforce statutes unless the statutory language manifests Congressional intent to create such private rights of action.  The column explains, among other things, that the issue is small in principle because it only involves a default rule: Through clear language Congress can always recognize, or deny recognition to, a private right of action, whatever default rule the Court sets.  I also note, however, that here, as in other contexts, the default can be sticky.  The default matters because it is costly to overcome legislative inertia. I stan

By  Michael C. Dorf {N.B.  I am cross-posting today on the Cornell Journal of Law & Public Policy Blog .  In order to coordinate, I wrote this post a little over a week ago, before Linda Greenhouse posted on the same subject.  She and I reach similar conclusions but by different routes.} A local controversy raises some interesting questions about the proper scope of rights to conscientious objection.  Rose Marie Belforti is the Clerk of the Town of Ledyard in nearby Cayuga County.  Citing her religious-based moral objections, she recently refused to issue a marriage license to a same-sex couple, although she agreed (perhaps after some discussion) to delegate the job of issuing marriage licenses to the deputy clerk, who has no objection to issuing licenses to same-sex couples.  According to the news story, the two women who sought the marriage license are considering possible litigation. In this post, I want to consider two questions: 1) What distinctions should the law d