Dorf on Law

-- Posted by Neil H. Buchanan In the two weeks since the government shutdown ended, the two big political stories have been the technical problems of the new health care website and the revelations that the United States has been spying on its allies.  While neither of these stories is news as a matter of kind (new software is always glitchy, and governments have always spied on their enemies and friends alike), their relatively extreme degrees have made them political headaches for the Obama administration. A meta-narrative is now emerging in Washington that purports to pull those two stories together.  In a front-page news analysis article in yesterday's New York Times , political reporter Peter Baker describes a gossip-fed line of thought in which the President is completely disengaged from his own presidency.  Even allowing for the fact that no President can really know even a fraction of what his administration is doing in his name, Baker says ominously that, fo...

By Mike Dorf A few weeks ago, the New Yorker ran an article by James Stewart describing the collapse of the Dewey & Leboeuf law firm.  (The article begins here but the rest of it is behind a pay wall.)  The timing of the story is a bit odd, coming well over a year after D&L filed for bankruptcy, but the substance is in some ways even odder. Much of it focuses on the connections of the family of a former D&L lawyer/manager to the mafia, even though there is no evidence whatsoever that he himself had ever been involved in any mob activity.  Nor is there a suggestion in the article that any of the family connections had anything to do with the firm's collapse. So what led to the firm's demise?  Stewart correctly points to the use of debt to guarantee large annual pay for star lawyers, many of them lured to D&L or to the pre-merger firm of LeBoeuf, Lamb, Greene & MacRae through the promise of such packages.  When the firm's earnings were ins...

By Mike Dorf I've scheduled this post to go live just as I'm beginning my Federalist Society-sponsored  debate  with Hans von Spakovsky on the Supreme Court's decision last Term in Shelby County v. Holder  and the Voting Rights Act (VRA) more generally.  Mr. von Spakovsky is best known for his contention that in-person voter impersonation is a serious problem justifying voter ID laws.  That contention has been challenged by, among others, UC Irvine Law Professor Rick Hasen (in this post at Talking Points Memo ) and Jane Mayer of The New Yorker  (in both this article and a follow-up in response to a rejoinder by von Spakovsky).  Hasen and Mayer acknowledge that people sometimes try to steal elections but argue that von Spakovsky has produced very little evidence of in-person voter impersonation.  I hope that our debate will focus on issues besides voter ID laws, about which I plan to make two main points: (1) In-person voter impersonation i...

By Mike Dorf In response to Adam Liptak's recent NY Times  article decrying the supposed uselessness of most legal scholarship, various legal academics have taken to the blogs to offer critiques of Liptak's critique. Some of the most thoughtful such replies are by Will Baude and Orin Kerr on Volokh.com , Jack Chin on Prawfsblawg , and Frank Pasquale on Balkinization . To be sure, it's hardly surprising that legal academics would defend the status quo that credentialed us, but the point of the rejoinders is not that the status quo is perfect.  The point is that the critique Liptak presents considers only the defects and none of the strengths of the existing system.  I don't have much to add to the rejoinders linked above by way of general response to the Liptak article, but I do want to add three observations arising partly out of personal experience to underscore points made by my fellow academics. 1) Audience .  For many years now, judges have compla...

By Mike Dorf Tomorrow I will resume blogging on more or less my regular schedule.  When I announced that I was taking a break for personal reasons, a number of friends and readers expressed concern.  The absence was occasioned by the death of my mother, Annette K. Dorf.  At her funeral I read a eulogy that my sister and I wrote together, which contained various personal remembrances.  Here I thought it appropriate to say something somewhat less personal but still more expansive than the official obituary . Born an only child during the Great Depression, my mother's own father, Louis Kaplan, died when she was a young adolescent. She was raised by my remarkable grandmother, Sadye Kaplan, who owned a toy store and was later a bookkeeper. Grandma and mom were quite devoted to one another, and much of my grandmother’s spirit lived on in my mother. As an adult, mom was passionate about learning and teaching. After a year at Brooklyn College, she transferred to Bran...

-- Posted by Neil H. Buchanan Earlier this week, I noted some hilariously misguided statements posted on a comments board responding to an article in The Chronicle of Higher Education .  That article had quoted me, in support of my prediction that upcoming federal budget talks would result in yet more damaging cuts to funding for higher education, saying this: "Other than football teams, universities are not popular with tea-party-type voters." As I noted in Tuesday's post, this assertion seems not just obvious but uncontroversial.  Movement conservatives, even before many of them united under the banner of the Tea Party movement, had been going after higher education for years, with a combination of anti-intellectualism and attacks on the academy as a haven for lefties.  This is hardly something about which conservatives have been coy. Just to add one more example to the quick list that I included in my post on Tuesday, one might recall that during the 2012 Presid...

-- Posted by Neil H. Buchanan In my Verdict column today , I suggest a way that President Obama could act now to defuse future debt ceiling crises.  Yes, it obviously involves invoking the Buchanan-Dorf trilemma analysis , but the question is how the President could act on our argument.  I recently concluded that "most of the debt ceiling debate is obviously about framing the issues," so I have been thinking about the supposedly "practical" objection to the notion of issuing debt in excess of the debt ceiling. To get to that point, however, I spend the bulk of today's column arguing that President Obama's stare-down strategy for dealing with the Republicans in the last two iterations of the debt ceiling standoff has not permanently scared the Tea Partiers away from future standoffs.  Some people claim that the specter of the mid-term elections in November of next year will stop the Republicans from using the February 7 return of the debt ceiling to try...

by Sherry F. Colb In my column on Verdict today , part 2 of a 2-part series of columns, I continue my analysis of the U.S. Supreme Court case of Navarette v. California .  This is a case in which the Court will decide whether anonymous tips provide a sufficient basis for stopping an allegedly reckless driver, absent corroboration of criminality. In this post, I want to discuss Chief Justice Roberts's view of this issue and the competing risks of Type 1 and Type 2 errors.  The reason we know Chief Justice Roberts's view is that he dissented from the Court's decision four years ago to decline to grant review of a similar case, in Virginia v. Harris .  Regarding the notion of ignoring an anonymous tip about a drunk driver, the Chief Justice, joined by Justice Scalia, said the following, in his dissent from the Court's denial of certiorari: "The conflict is clear and the stakes are high. The effect of the rule below will be to grant drunk drivers 'one free sw...

-- Posted by Neil H. Buchanan Last Wednesday, as the likelihood increased that there would soon be a political deal to postpone the debt ceiling crisis and end the shutdown (for now), I spoke with a reporter for The Chronicle of Higher Education about the crisis.  One of the things she wanted to know was what would happen to federal higher education spending (i.e., the spending that most directly affects her publication's readership) in the aftermath of the shutdown and hostage crisis.  My answer was not optimistic. Part of the political deal last week involved an agreement that representatives from both parties would get together and try to work on a 10-year budget deal, supposedly to try to get long-term deficits under control.  Of course, given that the 10-year deficit picture looks quite under control , that is a bit odd.  But we know that Obama and many Democrats are devoted to fiscal orthodoxy, so it is hardly surprising that they would try to prove their ...

-- Posted by Neil H. Buchanan Another year, another opportunity to rail about the silliness of "economic science."  There is an annual ritual in Stockholm, where one or more economists are announced as the big winner of the "Nobel Prize in Economics."  The press then runs a few stories boiling the cited work down to a few sound bites, and everyone tries to figure out whether there is any political valence to the selection.  This year's version of that ritual played out earlier this week. This year, of course, the whole thing was buried under the hysteria surrounding the U.S. government shutdown and the possible of debt ceiling-induced default.  Losing the Swedish announcement into that black news hole is just as well.  Longtime readers of Dorf on Law are familiar with my basic take on this: (1) It's not a Nobel, (2) The work is not science, and (3) See (1) and (2). (1) I am hardly the only person who gnashes his teeth when, for example, The New York T...

-- Posted by Neil H. Buchanan The debt ceiling crisis has again been pushed down the road, meaning that we can now look forward to several months of talking about other things, and then spending the early part of the new year wondering why we are back at it once again.  I ended an interview on Tuesday morning on Sirius XM radio by saying, "See ya in 2014!" People have been talking about the "Groundhog Day" feeling of this recurring fight, and with the next debt ceiling deadline now set for February 7, we know that we will almost certainly spend February 2 wondering if John Boehner will see his shadow in time to avert utter catastrophe once again.  A BBC anchor joked yesterday that this is good news for me and the publisher of my book ( The Debt Ceiling Disasters ) , and I replied (ungrammatically), "Yes, but it would be nice to have an actual economy to spend all of my book royalties in." In other words, although I am sure the Obama team is absolutel...

By Sherry F. Colb In my Verdict column for this week, Part 1 of a 2-part series of columns, I examine the case of Navarette v. California .  The case asks the question whether an anonymous informant's tip about a suspect, in the absence of corroboration of  illegality, can suffice as justification for a brief detention or "stop."  In Part 1, I analyze Supreme Court precedents governing the definitions of "reasonable suspicion" (the standard for a stop), "probable cause" (the standard for an arrest), and the longstanding role of informants in helping police officers meet these two standards. In this post, I am interested in examining what I regard as a paradox of anonymity:  it can free people to expose authentic thoughts and feelings they would otherwise conceal, and it can simultaneously liberate speakers to lie with impunity. For an example of the former, consider online support groups.  A friend of mine recently faced a potentially devastatin...