Showing posts from December, 2008

What's all this I hear about violins on television?

If the late great Gilda Radner were still with us, surely she would have a field day with the willingness of former Illinois AG Roland Burris to accept Gov. Blagojevich's nomination to serve as interim Senator. Picture Radner as Emily Litella (if you're too young, look it up on hulu or youtube): Emily: What's all this I hear about the new Senator from Illinois shooting himself in the leg? If you ask me, taking an appointment from that Bigboyovich fellow may be shooting himself in the foot, but not the leg! Chevy Chase or Jane Curtin: That's Plaxico Burress, not Roland Burris. Emily: Oh, that's very different. Never mind. Okay, maybe you had to be there, and by there, I mean watching television during the Ford Administration. Anyway, conventional wisdom will soon coalesce around the proposition that Roland Burris is doing himself a disservice by accepting the Senate appointment, but, as numerous news stories have already pointed out, Powell v. McCormack severely

The Perfect, the Good, and the Acceptable

In my post yesterday, I argued that the current crisis in the automobile industry (which is most acute in -- but hardly limited to -- the U.S. auto industry) presents a rare opportunity to completely change the way the industry designs, manufactures, sells, maintains, and disposes of cars. The final paragraph of that post raised a specific example of a conundrum that we face in a number of areas: All of this, of course, assumes that we should be encouraging people to have access to cars at all. The more fundamental challenge is to make driving less and less desirable and necessary, through better regional planning and investments in rail, etc. As we attempt to do so, however, there is no reason to squander this opportunity to require auto makers to improve both the cars they make and the ways we buy and rent them. It is not at all obvious that the final sentence of this quote is true. That is, if we want to make driving less attractive, we might be better off doing nothing to help t

Big Changes in a Crisis: Automobiles

As I noted last week, the current economic crisis that is deepening in the U.S. and spreading around the world poses not just the immediate challenges involved with economic policy -- assisting those who have lost their jobs and homes, stopping the slide, and putting the economic back on an upward path. It also offers many opportunities to think big, to reconsider in fundamental ways the laws, policies, and expectations that define the way our lives and our economy work. A crisis presents a rare opportunity to shake off the conventional wisdom and to gather the political will to create better ways of doing things. A crisis also, however, by its nature guarantees that many new policies will be rushed into place and thus that they will be flawed and potentially self-defeating. Thinking through these possibly large changes is thus essential to minimize the costs and maximize the benefits of change. The most salient areas of possible large-scale change that had previously been highly

Be Nice to Your Friends

At the end of my post yesterday about the Rick Warren controversy, I noted in very general terms that Barack Obama could (and should) pay a price for alienating those among his core supporters who support gay civil rights -- or, indeed, anyone who finds Warren's views on a whole range of issues scary. Obama has spent some of his political capital by making this controversial choice, and he has lost the benefit of the doubt when he inevitably needs help from these supporters in the future. I concluded: "Moving forward, the lesson to be learned is that those who want something from Obama should expect something big from him first, given the way he has treated those who supported him without a quid pro quo and who simply expected much better from him." We have recently learned to our dismay that trust matters in the financial markets, and Obama may well learn a similar hard lesson about law-making during his time in office. One might argue, however, that there is no dow

Betrayal, Part Two

On Monday, I decried Barack Obama's invitation to Rick Warren to give the invocation at the presidential inauguration on January 20, describing Obama's decision (twice) as "appalling and stupid." In off-list emails and on the comments board, readers have raised a number of questions exploring Obama's decision and the public reaction to it, ranging from the question of whether this is a betrayal at all to the suggestion that this is not even Obama's biggest blunder to date. Here, I will explain why the Warren invitation is uniquely deplorable, add a few comments about Warren's views, and suggest the best response to Obama's decision as his presidency unfolds. In a future post, I will discuss why I think this decision is categorically worse than his other poor decisions to date. I continue to be stunned by Obama's extremely poor judgment in giving such a prominent position to a politically active minister whose positions on a range of issues are

Blogging Schedule

With very low readership expected today, I have decided to publish my first "Big Changes" post (on ways to change the auto industry) either over the weekend or on Monday. Tomorrow (Boxing Day and Kwanzaa), I will post a follow up to my post from this past Monday regarding Obama's invitation to Rick Warren to give the invocation at the presidential inauguration. Not surprisingly, there is more to say on this evolving issue (though, given Warren's claim that the existence of homosexuality disproves the theory of evolution, that is admittedly a poor word choice). Peace and Joy to all!! -- Posted by Neil H. Buchanan

What's In It For Me? Why Cap-and-Trade Should Stay Out of An Obama EPA

To no one’s great surprise, the D.C. Circuit closed its book on the “Clean Air Interstate Rule” (CAIR) litigation with the coup de grace . It remanded the CAIR rule it had just this summer invalidated as “fatally flawed” back to the agency that wrote it to fix on its own time—while the rule remains in effect. This whole affair has, in my view, shown why all the hype surrounding so-called “cap-and-trade” proposals for greenhouse gases is just that: hype. (Dangerous hype.) A little background: In July 2008, the D.C. Circuit invalidated CAIR root and branch, saying the whole program had ‘fatal flaws’ and was contrary to the CAA. CAIR was the Bush EPA’s answer to a national shame. The CAA’s “national ambient air quality standards” for pollutants like sulfur dioxide, nitrogen oxides (nasty byproducts from combustion of almost all forms) have been in effect for three decades, yet huge chunks of the country still haven’t met them. Many millions of people have lived their whole lives in

Making Big Changes During a Crisis

It is now obvious that the U.S. and the world are in what is likely to be a prolonged period of economic crisis. There is a serious danger of deflation and the first global depression since the 1930's. The good news is that it appears that the people who are (or, in the case of the U.S., will soon be) in position to implement policy responses to combat the crisis will do so quite aggressively. Despite the academic disfavor into which Keynesian economics fell after the 70's stagflation, we are once again all Keynesians now. Overreacting is better than underreacting, and policy makers seem committed to engaging in aggressive policy responses. The bad news is that this might not work or, more accurately, that it might not work well enough for a very long time. Within the crisis, however, lie many opportunities and dangers. Outside of a crisis, it is virtually impossible to get people to support large-scale changes in the way things are done. This mostly comes down to the si

Obama's Betrayal

Barack Obama has selected Rick Warren, a right-wing fundamentalist minister who opposes gay rights and has likened homosexuality to incest and pedophilia, to deliver the invocation at the presidential inauguration on January 20. The reaction to this appalling and stupid decision has been disturbingly muted. The New York Times ran a news story on the controversy on Saturday, but to this point the Times' editorial page has not seen fit to write anything about Obama's terrible decision nor to publish a guest op-ed on the subject. Even the liberal talk show hosts on MSNBC have had a difficult time finding guests who do not either (1) describe Warren as somehow "moderate" because he is not as awful as some others on the Religious Right, (2) defend Obama's decision as a wise effort to "reach out" to religious conservatives, and/or (3) dismiss calls for Obama to rescind the invitation as pointless and naive. While Obama has certainly shown his ability in t

Buchanan on Law/Happy Festivus

For the whole of this coming week and part of the next, I'll be taking a vacation from blogging. During that time, Neil Buchanan (and perhaps one or more of the other Dorf on Law bloggers) will be posting daily. Happy holidays (by which of course I mean to include Yule, Bodhi Day, Makar Sankranti, Maidyarem as per the Fasli calendar, Al-Hijira, Hanukah, Kwanzaa, Saturnalia, Festivus, and whatever other holidays people might happen to celebrate). Posted by Mike Dorf

Accountability of Government Lawyers

As noted in a NY Times editorial yesterday , the Senate Armed Services Committee report on detainee treatment during the Bush administration (executive summary here ) provides a clear basis for criminal prosecution of the high-ranking government officials responsible for the policy. Here I'll quote just the final of the 19 conclusions the report draws: The abuse of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own. Interrogation techniques such as stripping detainees of their clothes, placing them in stress positions, and using military working dogs to intimidate them appeared in Iraq only after they had been approved for use in Afghanistan and at GTMO. Secretary of Defense Donald Rumsfeld’s December 2, 2002 authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials conveyed the message that physical pressures and degradation were appropr

Blowback and the (Reasonably) Good Guys

In two recent posts ( here and here ), I have noted that the Bush Administration's policies regarding torture and the treatment of prisoners suspected of terrorist activity (especially in Guantanamo Bay and Abu Ghraib, but extending also to rendition programs and hidden CIA prisons) have led to a loss of U.S. stature in the world. This loss of stature has the effects both of making it more difficult for the U.S. to gain the cooperation of other nations and of actually increasing the deaths of American soldiers (because our policies perversely encourage people to join anti-American groups that attack and kill our troops based in Iraq). I thus concluded that Bush's misguided policies did n ot merely prevent Americans from feeling good about ourselves in some abstract sense but affirmatively harmed us in tangible ways. It is important, I argued, for us to become "the good guys" once again. Earlier this week, in " Blowback ," Mike offered a very sobering set

Filling Senate Vacancies

The unusual election of two sitting Senators to fill the positions of President and Vice President, combined with the nomination of two more sitting Senators (Clinton and Salazar) for Cabinet positions, leaves Governors in Illinois, Delaware, New York, and Colorado in the position of picking interim replacements. We came very close to a fifth. Had Ted Stevens won re-election and been expelled by his fellow Senators, Alaska would also be on the list. Thus we come to the Seventeenth Amendment, which provides for direct election of Senators. (The original Constitution gave state legislatures the power to choose their Senators.) The Amendment also provides: When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legis

Pragmatism and the Reciprocity of Means and Ends

Pragmatism is the one distinctively American contribution to philosophy (think Charles Sanders Peirce, William James, John Dewey, and more recently Richard Rorty and perhaps Hilary Putnam), but because the word "pragmatic" has both a technical/philosophical and a colloquial sense, the declaration that someone is a "pragmatist" is often more confusing than illuminating. In law, for example, the Ur-Pragmatist was certainly Oliver Wendell Holmes, Jr., who was in fact part of the "Metaphysical Club" with the philosophical pragmatists. Yet our leading contemporary legal pragmatist, Richard Posner, sometimes invokes Holmes as an exemplar of the more prosaic notion of pragmatism as simply a rejection of core principles in favor of "muddling through" (in Charles Lindblom's phrase). That also appears to be the notion of pragmatism favored by Justice Stephen Breyer. Both espouse pragmatism as a kind of post-ideological moderation. And of course, th

Bla(g) Bla(go) Bla(o)

My latest FindLaw column argues that Rod Blagojevich differs in (substantial) degree but not in kind from other American politicians. My core claim is not that everyone is at least a bit corrupt but that what makes corruption of the Blagojevich variety objectionable is present to varying degrees in ordinary lawful politics. Here I'll briefly address the efforts to tie the incoming Obama Administration to the sins of Blagojevich. There are the silly claims: They're both from Illinois! And then there are the superficially plausible claims: If Obama's people have nothing to hide, why did they have to change their answers about who spoke to Blagojevich when? And aren't Rahm Emanuel's conversations with Blagojevich aides inherently illicit? I have no inside information and so I acknowledge it's theoretically possible that a conversation like the following took place: Emanuel: We'd like you to name CANDIDATE X to the seat. Blagojevich: Well, a Senate seat is a

Technical Difficulties

Dreamhost, which hosts Dorf on Law, has been having major technical difficulties for the last 24 hours. It now appears that my site has returned, but is VERY slow. I'll post something more substantive when it's working more reliably. Apologies. Meanwhile, check out my latest FindLaw column . Posted by Mike Dorf

Seen Milk?

Under a fairly conventional narrative, conservative Christian political activism emerged in response to Roe v. Wade , and only in recent years turned attention to opposing gay rights, especially same-sex marriage. This narrative is sometimes combined with a normative claim that the Supreme Court erred in Roe , and that but for Roe , our political system would long ago have reached a stable compromise on abortion. Anybody who believes this narrative should see the film Milk , which portrays the political career of the late Harvey Milk, the first openly gay elected official in America. (Actually, everybody should see Milk , which is a terrific film for which Sean Penn will likely win a Best Actor Oscar.) For anyone too young to remember, the film shows how, by the mid-1970s, religious conservatives were fully engaged in opposing gay rights, opposing local anti-discrimination laws and seeking laws that would dismiss gay and lesbian teachers from their jobs. It's worth noting that t


In a post here 11 days ago, Neil Buchanan looked forward to the Obama Inauguration as an opportunity for the U.S. to "become the good guys again." There and in a follow-up , Neil explained how the Bush Administration policies on detention and treatment of prisoners at Gitmo and in Iraq have been counter-productive, providing motivation and recruits for radical Islamists. I don't disagree with the assessment but I do want to raise a question about the notion that we used to be the good guys. I've just finished reading Stephen Kinzer's book Overthrow: America's Century of Regime Change from Hawaii to Iraq . The book makes clear that George W. Bush hardly invented the idea of using force to displace foreign regimes deemed insufficiently friendly to American interests. Here are a few of Kinzer's key points: 1) Prior to the 1890s, the expansion of the U.S. was a process that occurred within the North American continent and many Americans thought that as a

"What Do We Have to Do to Put You in a New Car Today?"

In the midst of the unrelenting negative news about the auto industry, I have to admit that one piece of the story has put a bit of a smile on my face. As the auto manufacturers shrink and look for ways to cut costs, local car dealers are on the chopping block. I would be amazed if I am the only person who is enjoying this moment of schadenfreude , because car salesmen are typically held in even lower public esteem than mob bosses, mimes, or lawyers. The sleazy tactics employed by auto dealerships are the stuff of legend and extensive legislation. Among many other tricks, these include putting customers in an office that is monitored by closed-circuit television to watch a husband and wife discuss their highest acceptable price, turning up the heat in the offices, and physically blocking the door as an angry and frustrated customer tries to leave. The movie "Fargo" includes a memorably cringe-inducing sequence with a car dealer running through his manipulative bag of tric

Non-negotiable Obligations

In my column on FindLaw this week, I take up the question whether composing student term papers for purchase is either legitimate or constitutionally protected speech. The topic came to my attention when I heard a radio interview with a former term-paper ghostwriter of this sort and read an article by him (in which he describes and rationalizes his behavior). It will probably surprise no one that I reject the claim that writing term-papers for hire is either legitimate or protected by the First Amendment. In this post, I want to consider the more general topic of negotiable and non-negotiable debts. What I would call negotiable debts are those obligations that we may delegate to someone else for payment on our behalf. Many (though not all) financial debts work this way. If, for example, I cannot afford to pay my rent this month but my brother can and -- more importantly -- is willing to pay it (in exchange for my undying gratitude or a few home-cooked meals), there is nothing wro

Clarence Thomas Versus Barack Obama -- Not

The blogosphere and much of the professional media as well have been reporting that Justice Clarence Thomas referred the case seeking to have President-elect Obama disqualified to the full Supreme Court out of spite or pique. I suppose it's theoretically possible that is true, but there does not appear to be any actual evidence for this view. In fact, the record is quite to the contrary. As required, the petition for a stay of judgment pending the filing of a certiorari petition in Donofrio v. Wells was originally filed with the Third Circuit Justice, i.e., Justice Souter. He denied the stay. Then, as permitted by Supreme Court Rule 22 (full rules here ), the petitioner himself got to pick which Justice to ask for a second opinion. According to the docket sheet, Donofrio chose Justice Thomas . Justice Thomas at that point had three options: 1) He could grant the stay; 2) he could deny the stay; or 3) he could refer the stay application to the full Court. He chose option 3

The Trial of the Century of the Month

If tragedy repeats as farce, how does farce repeat? It's hard to imagine anyone other than the defendant himself getting very excited about the sentence in the latest O.J. Simpson case. But it's also easy to forget just how obsessed the country became with his murder trial. Whole law school courses (in evidence, criminal law, criminal procedure, etc) were taught using the Simpson case as raw material. And of course, the larger culture embraced the Simpson trial for what it said about celebrity, race, domestic violence, and a host of other subjects. I vividly recall complete strangers asking me what I thought about OJ (or as a woman who worked at a dry cleaner I frequented at the time inexplicably referred to him, "Big Bird"). Looking back, it's also hard not to run together the media circus surrounding the Simpson case and the Monica Lewinsky affair. One completely appropriate frame in which to view the mid to late 90s is distraction: As serious enemies of t

Pirates and Negotiations

It's easy to see why an individual, organization or nation would both want to establish a firm policy of not negotiating with pirates, hostage takers and the like, and, in any given crisis, would want to pay the ransom. The policy removes the incentive for future acts of piracy, hostage taking, etc., while once one's own family members, fellow citizens, or even super tanker is being held, it's hard to avoid doing what it takes to get them back. But suppose that paying the "ransom" is actually in the long-term interest of the victim. To be concrete, let's assume the following: 1) It is in the long-term interest of India to relinquish sovereignty and control over Kashmir; 2) A substantial fraction of the people who are now interested in committing terrorist acts against the civilian population of India would lose their motivation (either abandoning terrorism altogether or directing their actions at non-Indian targets) if India were to relinquish Kashmir; but 3

Party Like It's 1893?

Two or three weeks ago I might have said we are all Keynesians now. But recently some conservatives have begun to express concern about too much government spending via stimulus and other measures. (This was apparently a somewhat effective point used by Saxby Chambliss in the Georgia runoff.) One talking point is that the New Deal did not in fact end the Great Depression. This is, strictly speaking, true, but it undermines rather than supports the opposition to massive government spending. Roosevelt's efforts to balance the budget created another dip in 1937, and it wasn't until the truly massive stimulus of WWII that the economy turned around. Here's my prediction: In the relatively near future, fiscal conservatives will talk less about the Great Depression and start talking about the near-great depressions that preceded it. In 1893, for example, following over-expansion in railroads, banks collapsed, consumer confidence plummeted, foreigners withdrew capital, and th