Dorf on Law

-- Posted by Neil H. Buchanan One of the most widely accepted, and most universally deplored, aspects of modern representative democracy is that politicians are almost necessarily myopic.  U.S. Representatives serve two-year terms, so that they are never more than a year or so away from their next possible primary challenge.  Presidents are often accused of spending their first four years trying to achieve short-term policy victories that will matter immediately, because wise policies that take decades to pay off will only help someone else get re-elected.  Even U.S. Senators, who win six-year terms, now find themselves in the "money primary" as soon as the last election is over, thus thinking at all times only about what can make supporters happy as soon as possible. This conventional wisdom, in turn, has led to the creation of systems of governance that are deliberately insulated from short-term political winds.  The most important of these is the Federal Reserve, which

-- Posted by Neil H. Buchanan My post this past Friday completed, at least for the time being, my extended response to the "left-on-left action" that recently erupted among some liberal American economists.  As my series of posts demonstrates, the substantive issues at stake are hardly new, extending back at least half of a century, and bearing on a fundamental set of questions that have defined the insider/outsider status of economists for several generations. Today, with nothing more to write on the substance, I nonetheless think that it is worthwhile to add one further point on the "sociology" of all of this.  In my May 8 Dorf on Law post , I tried to explain why people like Paul Krugman (avatar of the Orthodox Left) see the world as "jerks to the right of me, and jerks to the left of me," as opposed to "jerks to the right of me, and unjustly excluded frequent allies to the left of me."  This is, after all, a truly odd state of affairs. 

by Michael Dorf In my latest Verdict column , I ask whether the post- Windsor unanimity of the lower courts (thus far) in striking down SSM bans will have any impact on the SCOTUS when the case eventually makes it there. Spoiler alert: I say the answer is yes. Here I'll discuss a related question about how we got to where we are today. In an earlier post , I included a citation of a recent article in Law & Social Inquiry by me and my Cornell Government Dep't colleague Sid Tarrow . (Sid is probably the world's leading experts on social movements; it was a great honor to work with him, and to co-teach a seminar with him a few years ago.) The article is titled: Strange Bedfellows: How an Anticipatory Countermovement Brought Same-Sex Marriage into the Public Arena . Because of the journal's policy, the full-text version is behind a paywall, although if you're accessing the blog from a .edu domain, your institution probably has a site license for Wiley Online.

By Michael Dorf [N.B.  In keeping with my recent tradition, I'm posting the exam I administered to my Federal Courts students this past semester. It was an 8-hour open-book take-home, set in the fictional jurisdiction of Hughes and the 13th Circuit. Submit answers in comments but I won't grade them.] John “Johnny Eyeballs” Jones was convicted and sentenced to life imprisonment without eligibility for parole by the Hughes Superior Court in October 2013 in connection with his role as the lookout in the gangland murder of three rival drug dealers. He appealed as of right to the Hughes Supreme Court, which affirmed his conviction in January 2014. Eyeballs, who is white, was sent to the Hughes State Penitentiary, where he was assigned to share a cell with an African American prisoner. Although Eyeballs initially accepted this assignment, in April 2014 he complained to Warden Wilma Warren that the cellmate assignment violated his “religious freedom and right of associati

-- Posted by Neil H. Buchanan I expect this to be my final entry in this series of posts about economic methodology.  (Of course, I cannot guarantee that something new will not move me to return to these issues at some point.)  Readers can find links to the previous five entries in the series via yesterday's post . Here, I want to explore a core reason why I continue to worry about the tendency among left-leaning mainstream economists (whom I have been referring to as the Orthodox Left, led by Paul Krugman) to think that it does no harm to start with conservative models and tweak them to generate more realistic (and liberal) outcomes.  I say this even though I do sincerely believe, as I have said multiple times, that the Orthodox Left has been almost completely right about nearly everything for the last seven years or so.  The issue, therefore, is not about the recent past, but about lessons for the future. An analogy might help.  When I was in my first year of law school, I

-- Posted by Neil H. Buchanan To my surprise and disappointment, my post last Thursday on the IRS non-scandal scandal turned out not to be the last thing I would write on that topic.  Perhaps my new Verdict column today will be.  Even if I do end up returning to that subject, however, I will not do so here. Instead, I will continue my discussion of the orthodox-versus-heterodox debate in economics that erupted again recently, in response to Thomas Piketty's blockbuster book.  My most recent entry on this topic, last Friday , includes links to my previous four posts in this series.  Readers might also want to read (or re-read) Professor Hockett's recent Dorf on Law post in which he questioned the usefulness of the orthodox/heterodox delineation. In last Friday's post, I concluded that Paul Krugman, the most prominent member of the orthodox left, had unexpectedly come to sound like the conservative icon Milton Friedman, who argued in essence that the assumptions und

by Sherry F. Colb In my Verdict column for this week, I discuss the parallels between the concepts, respectively, of "humane execution" and "humane slaughter," in the wake of the botched execution of Clayton Lockett in Oklahoma last month.  In the column, I take up the question whether there is anything inherently paradoxical about the idea of "humane" killing and, if not, whether there is nonetheless tension inherent in executing a prisoner or slaughtering an animal in a purportedly "humane" way.  In this post, I want to discuss an important difference between the execution of prisoners and the slaughter of animals, a difference that has less to do with humaneness than with the underlying meaning of each practice and what meaning can teach us about the two practices. Let me begin with a story.  When I was a law clerk for Justice Blackmun in the 1990's, I recall a debate that broke out over e-mail between a number of law clerks from the

by Michael Dorf A recent article in The New Yorker  alerted me to what may be the worst-named product since the original Saturday Night Live cast gave us (fake) jams with names like Dog Vomit, Monkey Pus, and Painful Rectal Itch. As in, "with a name like Painful Rectal Itch you gotta bet that it’s great jam." Unlike Painful Rectal Itch jam, this new food product is real. And it's called . . . wait for it . . . Soylent. That's right, Soylent, as in "SOYLENT GREEN IS PEOPLE!" That's your cue, Charlton. Even stranger is the fact that the people behind (but not in!) Soylent did not accidentally give their product a name that evokes cannibalism. They did so deliberately, or at least knowingly. Go to the Soylent home page  and there, directly under the heading "What's Soylent Made Of?" but before the ingredients info, you will find the following text: "Hint: It's not people." So Soylent's creators are aware of the, uhm,

by Michael Dorf As the editor of Constitutional Law Stories , one of the books in the Foundation Press series that tell the stories behind the leading cases of various legal fields, I know that recitations of the facts in appellate opinions usually omit important social, economic, political, and personal background information. They do so for a reason of course: The law is meant to be impartial, doing equal justice to the rich and poor, the famous and the anonymous, the wicked and the good; and so, concentrating too much on the actual facts of a case can get in the way of deciding that case according to the law; facts are thus abstracted and stylized. The Law Stories project aims to restore the missing context that the law's "abstractification" has removed. One reason for that restoration of the missing background is knowledge for its own sake. It's interesting to know what really happened before a case reached the Supreme Court, or after it left. Law Stories is

Update: About a half hour after I published this post, Paul Krugman posted " Faith-based Freaks " on his blog.  In that post, he explicitly distanced himself from Milton Friedman's extreme positivism.  In the post below, I had criticized Krugman's defense of his own work against the Heterodox Left, likening it to Friedmanian positivism.  Even if I thought that Krugman reads Dorf on Law (which I don't), the timing was too close for his post to have been written in response to mine.  In any event, I view it as a good thing that Krugman is trying to distinguish his methodology from Friedman's, and I plan to return to this issue soon. -- Posted by Neil H. Buchanan Over the last few weeks, I have written a series of posts about a "left-on-left" debate that recently re-emerged among economists.  (See here , here , here , and here .)  I am calling the two warring camps the "orthodox left," which includes liberal economists who are in the top

-- Posted by Neil H. Buchanan Last year at this time, while I was on a gig as a visiting professor in Austria, news broke back home about a HUGE SCANDAL involving the IRS.  Using the power of the interwebs, I closely followed the media circus, and within a week of the emergence of the story, it was already blindingly obvious that there was nothing especially noteworthy about the whole affair. My first blog post about the non-scandal scandal was published a year ago tomorrow.  This was quickly followed by a Verdict column , with an accompanying Dorf on Law post .  Barely a month after the story broke, I was back in the U.S., and the idea that there was a scandal was essentially over, as I summarized in another Verdict column , and a Dorf on Law post carrying the title: " The IRS Non-Scandal Scandal Collapses on Itself ." But House Republicans simply would not let go.  Even today, incredibly, they are still trying to drag out the non-scandal scandal.  As reluctant as