Dorf on Law

By Mike Dorf Today is "Thanksgivingukkah," the extraordinarily rare--as in  once in 70,000 years --convergence of Thanksgiving and the first day of Hannukah. The strange confluence has provided pundits with the opportunity to promote oddball recipes like turkey corpse cooked in Maneschewitz wine or sweet- potato latkes. For me, as both a vegan and an ethnically-identifying-but-non-religious American Jew, the coincidence of these two problematic holidays provides an interesting opportunity for reflection. I find that the two holidays are in some ways mirror images: The core message of Thanksgiving was a pleasant lie but the holiday has become a horror show, whereas Hannukah's origins are terrible but it has become mostly harmless.  Let me explain. When I was in elementary school in the early 1970s, I was taught that the first Thanksgiving occurred in 1621 and it was a celebration of peaceful cooperation between native Americans (then still called Indians) and the ...

-- Posted by Neil H. Buchanan Last Thursday, I posted some thoughts here on Dorf on Law about the controversy over new National Football League rules that were passed before this season, which are part of the ongoing effort to try to reduce the carnage of injuries to offensive players, especially quarterbacks.  (OK, "carnage" is clearly too strong a word.  Carnage describes what happens to the animals who will be killed to be served on American dinner tables tomorrow, while we watch football players injure each other.  But I digress, and tomorrow's post by Professor Dorf will expand upon the question of how vegans feel about Thanksgiving). Whatever one thinks about the new rules (versions of which have also been adopted by the NCAA for college games), the prevalence of serious injuries in football is frightening.  After 11 games of a 16 game season, 32 NFL teams this year have placed a total of 47 quarterbacks on the injured reserve list.  In the college r...

By Mike Dorf In my latest Verdict column , I discuss filibuster reform in the Senate. I ask whether Democrats should fear that when Republicans next control the Senate, they will abolish what's left of the filibuster. I conclude that with respect to appointments, the filibuster systematically favors neither Republicans nor Democrats (assuming equal likelihood of control of the chamber over the long run, which is what one would predict in a two-party system). I also argue, however, that over the long run, the ability of 41-50 Senators to filibuster aids Republicans because, other things being equal, Republicans are more likely to win by preventing the government from doing anything than Democrats are. Even though "the era of big government is over," as President Clinton said, Democrats still favor bigger government than Republicans do--and that means that the ability to prevent Congress from doing anything is, on average, more useful to Republicans than Democrats. S...

-- Posted by Neil H. Buchanan This past Thursday was a bit of an odd day for me.  In writing my Verdict column , as I was trying to come up with a list of things that Republicans might offer to Democrats as part of "real bargaining" (as opposed to hostage-taking), I noted that "Democrats want Republicans to stop filibustering the President's judicial nominees."  Later in the day, when I wrote my Dorf on Law post , I described how the lack of a neutral baseline defining the rules of "true football" made recent complaints about rules changes in the NFL ring hollow. Several commenters on my DoL post noted immediately that my analysis there could easily apply to Republicans' complaints about the changes that Democrats had passed in the filibuster rules that day.  One commenter said that he assumed that I had intended the comparison.  I have to admit that I was not doing any such thing.  I had, in fact, not even been checking my usual news sites f...

By Bob Hockett            In a characteristically thought-provoking post on the Fed’s monetary easing policies earlier this week, Professor Dorf suggests that in a certain sense, the wisdom with which Chairman Bernanke’s Fed has managed post-crisis credit and liquidity conditions is a fortunate accident – one that we might not, strictly speaking, have earned through legislation.   There are two mutually complementary reasons.              First, what many take for the traditional anti-inflationary rationale behind central bank independence (as manifest both in the term structure of Fed Board appointments and in the Fed’s substantive mandate) is not implicated in the current credit environment.   And second, there is no inherent, structural reason to expect politicians to be biased toward tight money policies as there is to expect them to be biased toward loo...

By Mike Dorf Notwithstanding Prof. Buchanan's observation earlier today that there was no new substantive post, let me assure readers that there's a lot in the works.  Prof. Hockett will have a post on central banks up soon in which he builds upon my observations earlier in the week regarding the serendipitous independence of the Fed. Meanwhile, various readers have asked me what I think about the change in the cloture rule in the Senate (aka the nuclear option that has now been exercised).  The answer is it's complicated and so rather than dash something up immediately, I'm going to think about it for a while and probably write my next Verdict column about that topic--which will run in 12 days along with an accompanying blog post.  Between now and then, I'll also revisit the Richie Incognito story ( as promised earlier this week ), and next week will feature more by Prof. Buchanan, a follow-up by Prof. Kalhan on the continuing stop-and-frisk 2d Circuit litiga...

-- Posted by Neil H. Buchanan It is a busy Friday, and as a result of some coordination difficulties, there is no new post for Dorf on Law today.  I will just take this opportunity to provide a link to my Verdict column from yesterday: " Republicans Need to Understand That It Is Possible to Negotiate Without Taking Hostages ."  I plan to write a post here on Monday, expanding on one aspect of that column. UPDATE: Happily, we are all now fully in sync, with Professor Dorf offering a quick preview of the next two weeks' posts, and Professor Hockett providing an excellent post re the Fed's independence. Republicans Need to Understand That It Is Possible to Negotiate Without Taking Hostages - See more at: http://verdict.justia.com/author/buchanan/#sthash.aRZJxkQK.dpuf Republicans Need to Understand That It Is Possible to Negotiate Without Taking Hostages - See more at: http://verdict.justia.com/author/buchanan/#sthash.aRZJxkQK.dpuf Republicans Need t...

-- Posted by Neil H. Buchanan For the last few months, I have gotten into the habit of watching "Mike & Mike in the Morning," a sports talk radio show on ESPN2.  Unlike almost all of the other sports talk shows, that show features reasonable discussions by knowledgeable people about interesting questions.  There is no contrived controversy (except when they are being very obvious about their contrivance, allowing the audience to be in on the joke), and there is very little mindless tough-guy talk. The show has handled almost every major topic quite well, with the hosts (Mike Greenberg, a sports reporter now in his 40's, and Mike Golic, a former NFL defensive end who recently turned 50) taking informed positions -- often the same position, because they do not feel compelled to gin up controversy -- while also being willing to present contrary evidence and arguments, and to engage in serious conversations with guests whose views differ.  Their recent handling of the...

By Mike Dorf In addition to highlighting three recent publications of mine, in this post I'll say a few words about my ambivalence about Obamacare. (1) My latest Verdict column offers the provocative suggestion that some of the apologists for Richie Incognito's bullying/hazing/arguably-criminal-conduct-towards Jonathan Martin rely on a view of character building that the U.S. Supreme Court uncritically accepted in United States v. Virginia , a 1996 landmark sex discrimination case involving the Virginia Military Institute.  I'll have a follow-up blog post on it next week. (2) A recent issue of the Boston University Law Review  includes a somewhat revised version of my review of Jim Fleming and Linda McClain's book, Ordered Liberty.   I previously blogged about the book and my take on it here and here .  A short version of my review then appeared on Balkinization , as did a response by Fleming and McClain.  The BU L Rev  also includes a somewhat re...

By Mike Dorf An NPR story yesterday morning more or less confirmed what most Keynesians and neo-Keynesians (including the WSJ reporter who was interviewed for the story) have been saying for some time: The current focus on deficit reduction in the U.S. and austerity in Europe are drags on the economy.  The reporters note that the latest data show that the U.S. economy has grown at a faster rate than Japan's, which, in turn, has lately grown at a faster rate than that of the EU zone economies, which are essentially stagnant. Those data only roughly confirm Keynesianism because of the somewhat mixed picture of economic policy in the three regions.  Japan has lately been pursuing both monetary and fiscal stimulus; the U.S. has been pursuing monetary stimulus (via the Fed) and fiscal austerity (via Congress and the President); Europe has been pursuing monetary austerity (until an extremely recent announcement of credit relaxation by the ECB) and fiscal austerity (at least in ...

By Mike Dorf Two unrelated cases currently in the news illustrate the utility--and pitfalls--of dishonesty in adjudication.  First consider the ongoing imbroglio over the 2d Cir panel's disqualification of Judge Scheindlin in the stop-and-frisk litigation, about which Prof. Kalhan has blogged here and here , while I have blogged here .  In its initial October 31 order , the panel concluded "that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 ('A judge should avoid impropriety and the appearance of impropriety in all activities.')." Then, last week, the panel issued a superseding opinion that "clarified" its earlier order as follows: "we referenced the Code of Conduct for United States Judges. We now clarify that we did not intend to imply in our previous order that Judge Scheindlin engaged in misconduct cognizable either under the Code of Conduct or under the Judicial Conduct and Disability Act." Rig...

-- Posted by Neil H. Buchanan In yesterday's post , I returned to the question of whether the President has any power under the Constitution to end a government shutdown.  In a post two weeks ago, I had described an argument from the historian Sean Wilentz, who claimed that President Obama could have simply ended the October shutdown unilaterally, by analogizing Tea Party-led nihilism to the insurrections that Andrew Jackson and Abraham Lincoln overcame with executive action.  Although I had initially felt some attraction to the Wilentz argument, I ultimately came down against it. My initial post describing that argument was written on November 1, after I had participated in a quasi-debate at the National Constitution Center in Philadelphia.  That event, however, was mostly concerned with the debt ceiling, not the shutdown.  Professor Wilentz advocated what is now known as "the Fourteenth Amendment argument."  I argued the Buchanan-Dorf "least unconstitutio...