Dorf on Law

-- Posted by Neil H. Buchanan   Yesterday, in my Verdict column and my Dorf on Law post , I discussed Mitt Romney's recently revealed comments about "the 47%" -- the people who supposedly pay no taxes, and who (therefore?) have no intention to vote for him.  One of the documents that I cited in my column is a recent analysis from the Tax Policy Center (TPC).  That analysis nicely summarized most of the key points that debunk Romney's comments, using basic statistics (that is, facts). Some readers might remember that TPC -- which has always enjoyed a well-deserved reputation for being solidly nonpartisan (and which is, for that matter, utterly orthodox in its economic approach to analyzing tax issues) -- was savaged by the right-wing echo chamber for having had the temerity to publish an analysis of the Romney tax non-plan.  Their analysis showed that, even after giving every benefit of the doubt and making every judgment call in Romney's favor, his...

-- Posted by Neil H. Buchanan In my new Verdict column today ,  I try to find a fresh angle on Mitt Romney's much-discussed sneering dismissal of "the 47%" -- the people who owe no federal income tax in a given year, and who (according to Romney) will thus never vote for him.  (Whatever else might be said about all of this, one must at least acknowledge that Romney is no longer being overshadowed by his running mate, though not by design.) There is so much wrong with what Romney said that nearly every commentator in the country has had a field day picking it apart.  That very notoriety, however, made it daunting to imagine being able to say something different about Romney's inflammatory statements.  For what it is worth -- and to put it in academic terms -- my column points out the methodological inconsistency between two Republican talking points. In Romney's comments, which are absolutely mainstream Republican views (that is, not some aberrant off-the-cu...

By Mike Dorf The great pre-Socratic philosopher Heraclitus stated the following problem, which has much engaged philosophers ever since: Theseus sets out in a wooden ship; over time, various planks wear out and are replaced by new planks; eventually, every plank comprising the ship has been replaced; is the resultant ship the same  ship in which Theseus set out? In the foregoing statement of the Ship of Theseus puzzle, the issue is simply semantic: The answer depends on what we mean by same .  But to see the question as simply semantic is to miss what Heraclitus was doing in this puzzle.  In a great many contexts, we think sameness a matter of underlying reality.  The issue is acute in the philosophy of personal identity.  Am I the same person today as I was yesterday?  As I was when I was an infant?  As I will be when I am an old man? Or, consider a variant of the Ship of Theseus problem that appears in the philosophical literature.  Suppos...

By Mike Dorf On the first anniversary of the launch of Occupy Wall Street, pundits as well as past and present Occupiers have been weighing in on whether the movement succeeded or failed, and where, if anywhere, it goes from here.  Although I never manned the barricades, I'll admit that I have been intrigued by Occupy, and broadly sympathetic to its methods as well as most of its goals.  In this post, I want to say a word about the nature and future of Occupy. From very early on, Occupy was criticized for lacking a concrete agenda.  Some of this criticism came from the right, and seemed deliberately obtuse about the clear concern with economic justice voiced by nearly all of the Occupiers.  But even many commentators who were broadly sympathetic with Occupy's orientation relative to conventional political categories were concerned about the movement's failure to come forward with a concrete program or to enter conventional politics. How fair is that criticism...

By Mike Dorf The new (and terrific) film, Robot and Frank , holds some potentially interesting, if muddled, messages, about the promise and perils of technology.  Spoiler Alert: After the trailer, I'll give a very abbreviated plot summary, but I won't give away anything beyond what the trailer gives away. [Readers of the email without embedded video, you can see the trailer by clicking here .] Okay, here's the basic setup: Older man, Frank (played by Frank Langella), is beginning to suffer memory loss and has a hard time caring for himself while living alone.  His grown son gets him a robot to help.  The film is set in the near-future, when such technology is feasible but not yet so common that people are accustomed to having robot servants.  Frank at first resists the robot but then discovers that the robot has no moral qualms about helping Frank--an ex-con burglar--in new heists.  What amounts to a buddy movie ensues. An important sub-plot involves the...

-- Posted by Neil H. Buchanan In a post two weeks ago , partly in response to a student's inquiry regarding my advocacy of federal deficit spending, I described some extremely powerful examples of government investment spending that had recently been shown to have enormous payoffs.  These two investments (a massive research program in human genetics, and infrastructure spending to protect New Orleans from suffering a repeat of the devastation wrought by Hurricane Katrina) are exactly the type of spending that can easily be justified, even if they are financed with borrowed money.  (Indeed, as I have argued here on DoL , good financial accounting would suggest that they should be financed by borrowing, even if there were the political will to pay for them up front.) The student who inspired that post has an accounting background, so she completely and immediately understood the fundamental concept of "capital budgeting" -- classifying government spending into the sepa...

-- Posted by Neil H. Buchanan In my Dorf on Law post last Friday , I previewed a debate that was to be held later that day at the ABA Tax Section's Fall meeting in Boston.  There, in a modified high school/college debate format, we discussed the current U.S. tax subsidies that are quite consciously designed to increase the number of people in this country who buy the residences in which they live, rather than renting them.  The Affirmative team argued for a tax code that would have no incentives for home ownership, while the negative argued for a continuation (with possible modifications) of the current system of subsidies. The specific resolution for debate was that "the United States should make the Internal Revenue Code neutral with respect to home ownership."  Due to an odd turn of fate, I ended up debating for both teams, which means that I was guaranteed to both win and lose the debate.  An audience vote determined the winner, with the Affirmative team get...

By Sherry F. Colb In my Justia Verdict column for this week, I discuss a fascinating book by Susan Cain,   Quiet:  The Power of Introverts in a World That Can't Stop Talking,  and I examine some lessons we might take from the book for a critical evaluation of our existing jury system.  I argue that as currently practiced, the jury system allows extroverts to dominate deliberation and that such dominance undermines the benefits presumed in bringing many people with different perspectives together to make decisions.  Especially relevant to this critique is research regarding conformity and the surprising results of a recent study that looked more closely at why people echo erroneous statements made by their peers. In this post, I want to consider a different downside of extroversion-dominance:  its toll in the law school classroom.  Like many colleagues, I have from very early in my teaching career awarded "bumps" to student grades for excellent cla...

By Mike Dorf Yesterday was Constitution Day.  Under a federal law that was the brainchild of Senator Robert Byrd and which became effective in 2005, all educational institutions receiving federal funds were required to hold events promoting understanding of the Constitution.  At Cornell Law School, we had two panel discussions commemorating the 225th anniversary of the signing of the Constitution.  As one would expect in a university setting, the discussion included considerable criticism of the Constitution and various interpretations of it--thus demonstrating the foolishness of the underlying law, or perhaps demonstrating its unintentional wisdom. But is Constitution Day itself unconstitutional, as Kent Greenfield argued last year in the New York Times ?  Greenfield suggested that by threatening to withhold federal funds from educational institutions that do not celebrate Constitution Day, the law was an unconstitutional condition on the academic freedom, and ...

By Mike Dorf Last week, in Hedges v. Obama , federal district judge Katherine Forrest permanently enjoined the enforcement of the federal statutory provision that authorizes indefinite detention of U.S. citizens, having found the law unconstitutional on its face.  The government has sought reversal on an expedited basis.  The case presents a number of interesting questions about standing, mootness, free speech, the overbreadth doctrine, and vagueness under the Due Process Clause of the Fifth Amendment.  But here I want to focus on the remedy Judge Forrest ordered: She enjoined the government from enforcing the statutory provision against anybody, not just against the eight plaintiffs in the case. Wait, you're thinking: "Isn't that the point of invalidating a law on its face-- that it cannot be enforced against anyone?"  Apparently that's what Judge Forrest thought too.  But if so, she was wrong. A ruling by a federal court that a law is unconstitutional ...

-- Posted by Neil H. Buchanan I am in Boston, attending the American Bar Association Tax Section's Fall CLE Meeting . Because this is a joint meeting with the Real Property, Trust & Estate Law Section, the Teaching Tax session is devoted to a debate about the Internal Revenue Code's treatment of home ownership. When I say "debate," I really mean a debate. The session's organizer, the University of Pittsburgh's Tony Infanti, had a fun idea to organize a formal debate, adapting high school and college debate formats to create a real two-sided debate, complete with cross-examination. What Tony did not know when he invited me to be one of the debaters is that I spent most of my youth (and much of my early adulthood) involved in debate competitions. From October of my 9th Grade year until the Spring of my tenth year out of college, I was a debater or a coach in standard high school "on topic" debate and college "parliamentary debate." (...

-- Posted by Neil H. Buchanan In my new Verdict column , I add to my series of columns discussing life under a hypothetical Romney Administration. (The previous two columns in the series are here and here , and the respective Dorf on Law posts building upon those columns are here and here .) Moving beyond the broad political and macroeconomic questions that I covered earlier in the series, I address one of the core policy debates of the 2012 election, from a relatively unusual angle. Specifically, I ask how Romney/Ryan's desired cuts in spending on the elderly (especially the voucherization of Medicare, and turning Medicaid into a block grant program) would effect the children of the elderly, rather than the elderly themselves. In tax-speak, my column addresses the question of "incidence." That is, when the government imposes a tax -- on, say, retail sales -- we know that the payer of the tax is not necessarily worse off because of the tax. A retailer who can get...

By Mike Dorf My latest Verdict column discusses the recent 2d Circuit decision in Louboutin v. Yves Saint Laurent , in which the court (more or less) upheld trademark protection for Louboutin's red-soled high-heeled shoes.  I criticize the core holding as over-protecting intellectual property, connecting the case to others, including Apple's recent victory over Samsung.  It's only a small over-simplification to say that I come down on the "the law should protect less" side of the ongoing debate over intellectual property. Suppose you agree with me that the law over-protects IP.  You might be inclined to lobby for less protection.  Or you might be inclined to engage in guerrilla action by downloading pirated software, music or movies (a course of action that DOL strongly condemns)!  But whatever your normative views, you also might be interested in knowing why our law over-protects IP.  Here I'll name a couple of explanations and then offer a hypothesi...

By Mike Dorf According to many Democrats, the Republicans have been engaged in an extraordinarily cynical grand political strategy over the last three and a half years: First they used every lever available to prevent President Obama and the Democrats from enacting their full economic agenda; then, when the reduced economic agenda that did manage to get enacted came up short, Republicans claimed (and continue to claim) that the Democrats had their chance and failed.  Paul Krugman laid out a nice summary of the argument in his column yesterday . There's much that's right about this story.  That's what prompted Jon Stewart to say something bleep-worthy when he played the clip of Mitt Romney's acceptance speech in which Romney made the following incredible claim: "I wish President Obama had succeeded because I want America to succeed."  This from a man who has been running for president more or less full time for the last six years. But there's also a ...