Dorf on Law

By Mike Dorf Suppose that President Obama and Secretary Kerry agree with  my recent post  arguing that the planned missile strike on Syria without an invitation for protection from a country that has been attacked (such as, perhaps , Turkey or Israel) or UN Security Council Authorization, would plainly violate international law.  On what grounds might they justify doing it anyway?  I can think of three possible sets of reasons, each problematic in its own way. (1) They don't give a damn about international law.  That's a fair description of at least some people who worked in the Bush Administration--although even most of them went through the motions of trying to argue that their policies complied with international law.  In any event, I don't think it's a fair account of Obama, Kerry and their underlings. (2) They realize that there is not now a customary international law norm permitting individual sovereigns to use military force on humanitarian gr...

-- Posted by Neil H. Buchanan My Dorf on Law post yesterday was focused mostly on the all-but-certain return of the debt ceiling as the political crisis this Fall.  At one point in the post, however, I mentioned a related point: "[N]either the White House nor the Democratic leadership in Congress has come up with any strategy -- even a completely defensive one, much less an affirmative vision -- with which to win over the public.  Are there any Democratic Senators or Representatives who are spending the recess selling the Democrats' budget strategy to their constituents?  No, because there is no strategy." As I reflected on yesterday's post, two further questions came to mind: (1) Am I being unfair to the President and his party, asserting that they have no strategy, when in fact they are merely the victims of House Republicans' intransigence?  (2) Is it really such a bad thing that the President has not, at the very least, imprinted his vision for ec...

-- Posted by Neil H. Buchanan When Congress returns from recess after Labor Day, the news will be completely dominated by talk of budget brinksmanship, continuing resolutions, default, and other insanity.  In my Verdict column today , I try to explain the debt ceiling in the current budgetary and legislative context. Regular readers of Dorf on Law will hardly be surprised that I re-explain the trilemma.  (A quick example for first-time readers: a trilemma is the impossible situation in which a President is supposed to spend $1000 and collect $800 in tax revenues, but is limited by the debt ceinling to borrowing no more than $50.  He will have to break at least one law, no matter what.)  I spend surprisingly little time, under the circumstances, discussing the argument that Professor Dorf and I have made, that the President's constitutional obligation is to violate the debt ceiling law, not the spending or taxing laws. The bigger point of the column is to poin...

By Mike Dorf With President Obama and the leaders of various European allies intent on imminently launching missiles to punish the regime of Bashar al-Assad for its use of chemical weapons against civilians, it is probably too late to make a persuasive case against that course of action. The pragmatic arguments for and against have been well-rehearsed and--although the conclusion is highly contestable--the decision has apparently been made. Nonetheless, to review, the case FOR such an attack boils down to two factors: (1) The use of chemical weapons is, for historical as well as humanitarian reasons, considered categorically worse than other attacks against civilians, and therefore demands a response; and (2) President Obama, having previously called the use of chemical weapons a "red line," must follow through on the threatened use of force, or lose credibility in the region and with respect to foreign policy more broadly. The case AGAINST such an attack is at least eq...

-- Posted by Neil H. Buchanan In my Dorf on Law post this past Friday , I again discussed the open-endedness of the supposedly rigorous and "normatively neutral" economistic approach to analyzing social issues.  This is hardly new ground for me, of course.  I again noted that it is possible to flip any economistic conclusion on its head, simply by changing what one counts among the costs and benefits, especially when one takes into account things that are inherently difficult to measure (but that are conceptually central to a complete analysis). At the end of the post, I explored an objection to a recent NYT op-ed by Peter Singer.  Singer had claimed to be able to prove, via a cost-benefit analysis, that any moral philanthropist would want to give money to fight trachoma, a blinding eye disease that afflicts people in the poorest countries, rather than giving that money to build a new wing on an art museum.  In a letter to the editor, a reader pointed out that t...

By Mike Dorf Professor Buchanan's post on Friday problematized a recent NY Times column by Peter Singer that I also found problematic--but my chief difficulty with Singer's analysis is somewhat different.  I'll try to spell it out here. To review, Singer argued that it is possible for a philanthropist to use cost-benefit analysis to figure out where his or her charitable contributions can do the most good.  For illustrative purposes, he asked whether it would make more sense to donate money to fund a new wing of an art museum or to curing trachoma--and thus preventing blindness--in the developing world.  As Professor Buchanan notes in a post that is generally devoted to showing the dependency of cost-benefit analysis (and economic analysis more generally) on baseline assumptions, the question is really unanswerable, because institutions like art museums may help foster a moral culture that does more long-term good than any campaign focused on any specific illness. ...

-- Posted by Neil H. Buchanan One of the recurring themes of my Dorf on Law posts has been the meaninglessness of the concept of "economic (or Pareto) efficiency."  I have attempted to explain why the claim that economics is a positive science -- which carries with it the claim that one can make neutral claims, based on so-called economic reasoning, free of the taint of mere normative moralizing -- is ultimately wishful thinking, at best, and venal deceit, at worst. There are several ways in which this broad point can be made.  The most obvious is to analyze the theoretical structure that supposedly backs up the claims of scientific rigor in economics.  It is often useful to analyze the assumptions (especially the unspoken ones), but even better, it is helpful to see how the standard theoretical structure is itself based on naked moralizing.  As a colleague once put it to me, in summarizing a law-and-economics paper that attempted to justify the simplistic vers...

By Mike Dorf In my latest Verdict column , I discuss the Obama Administration's continued refusal to declare that the July coup in Egypt was a coup.  As most readers probably know, such a determination would render Egypt ineligible for further military aid.  But, as I note in the column, lawbreaking with respect to foreign affairs and national security fits a broader pattern by both Obama and most of his recent predecessors.  As I also note, the lone exception is President George H.W. Bush. What might explain Bush I's seemingly unique respect for the rule of law in foreign and military matters?  Here are a few non-mutually-exclusive possibilities: 1) Arbitrary Time Frame I started my survey with President Reagan but Reagan's two immediate predecessors--Presidents Ford and Carter--also had pretty clean records when it comes to following domestic and international law with respect to foreign affairs and the use of force.  President Nixon, needless to say, ...

by Sherry F. Colb In my Verdict column for this week, I discuss Floyd v. City of New York , a decision from Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York, holding that the city's stop-and-frisk practices violated the Fourth and Fourteenth Amendment rights, respectively, against unreasonable searches and seizures, and equal protection.  I explain in the column that I find quite persuasive the court's conclusion that police officers in New York, with the encouragement of (and pressure by) their superiors, carried out searches and seizures that lacked a basis in reasonable suspicion and that regularly discriminated on the basis of race.  I suggest, however, that notwithstanding the validity of these conclusions, one could plausibly have used a different measure for determining racial motivation than the court decided to use.  And in some cases (though not in  Floyd ), the distinct measure could serve to exonerate the motives ...

By Mike Dorf In yesterday's post , I discussed the severability analysis in Awad v. Ziriax .   The federal district court invalidated Oklahoma's ban on judicial application of sharia and went on to find that its further ban on judicial application of international law was non-severable, and thus had to fall along with the sharia ban. Neither the court nor the parties appear to have questioned the assumption that the international law ban, if it had been passed as a stand-alone provision, might have been unconstitutional.  Here I'll consider that possibility--and in the course of doing so, I'll also reconsider the meaning and constitutionality of the sharia ban itself. The international law ban reads, in relevant part, as follows: "The courts shall not look to the legal precepts of other nations . . . . Specifically, the courts shall not consider international law . . . ."  Taken at face value, this provision is plainly invalid.  Why?  Because in some circu...

By Mike Dorf Last week, in Awad v. Ziriax ,  Federal District Judge Vicki Miles-LaGrange ruled that Oklahoma's ban on sharia law--approved by the state legislature and the voters in 2010--is unconstitutional on the ground that it is religious discrimination.  That ruling seems plainly right.  The Oklahoma courts might be called upon to apply sharia when either private law or the law of a sister state or foreign jurisdiction made applicable by the relevant choice-of-law principles incorporates it.  But whereas State Question 755, as the referendum that enacted the sharia ban is known, would forbid the application of Muslim law, Oklahoma does not forbid looking to other bodies of religious law in like circumstances.  Thus, for example, presumably SQ 755 would forbid an Oklahoma court from looking to the substance of sharia to determine whether there was compliance with a contract calling for the delivery of halal food, but there would be no prohibition on lookin...