Showing posts from July, 2009

Them's fightin' words

Most of the public discussion of the Skip Gates arrest has focused on race. Less (like Sherry's post on Monday and the very astute comments thereon) has focused on the abuse of police power. Here I want to raise a related concern that has gotten still less attention (with a few notable exceptions, such as here ): When, if ever, can mere words spoken to a police officer be the basis for an arrest and prosecution, consistent with the First Amendment (as made applicable to state and local offials via the Fourteenth Amendment)? Let's begin with the leading Supreme Court case, Chaplinsky v. New Hampshire . In that 1942 decision, the Supreme Court announced the so-called "fighting words" doctrine. Fighting words, according to the Chaplinsky Court, "by their very utterance inflict injury or tend to incite an immediate breach of the peace." These are two very different grounds for forbidding speech: 1) inflicting injury; 2) tending to incite a breach of the p

Heresy on Health Care

In my new FindLaw column, “ Should Advocates of Single-Payer Health Insurance Oppose the Public Option? ” (to be published later today), I take a position on health care reform that I would not have expected to take even a week ago. Specifically, I argue that the "public option" in health care reform -- that is, having the government create a new health insurance program to compete with private insurers like Blue Cross/Blue Shield -- is not the next best alternative to single-payer. If we are not going to have a single-payer health care plan -- and we obviously will not, this time around -- it would actually be better to have a regulated group of private insurers with no public option rather than adopting the "middle ground" of having many private insurers and one publicly-owned insurer. I realize that this is heresy among liberals, but so be it. I should point out that my argument is not another variation on the timeless liberal versus radical divide, i.e., whether

An Alternative to Senator Specter's Notice Pleading Bill

In my latest FindLaw column , I examine Senator Specter's proposal to restore notice pleading in the federal courts. I describe the pros and cons of the proposal in general, and then point to a few drafting flaws. Here I'll put my money where my mouth is. With thanks to my fellow proceduralists in the legal academy and on the civil procedure listserve, and a special nod to Kevin Clermont (my colleague) and David Shapiro (who taught me civil procedure when I was a law student 22 years ago), below is my proposal: A BILL To restore notice pleading in the federal courts. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ‘‘Notice Pleading Restoration Act of 2009’’. SECTION 2. SUFFICIENCY OF PLEADINGS IN FEDERAL COURTS. Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date

Why Borrow When You Can Pay Now?

The decision to borrow money, especially when that decision is made by a government, must be made with great care. People's attitudes about debt are colored not only by cold calculations about costs and benefits, along with predictions about the course of an uncertain future, but by deeply ingrained moral attitudes about the very notion of being obligated to another person. "Neither a borrower nor a lender be" seems like such sage advice that people will go to great lengths to avoid taking out loans. Yet we know that people, businesses, and governments regularly borrow, in good times and bad. If people and institutions did not continue to borrow money, there would have been no need to save the financial system from its recent (and ongoing) troubles, because people would not need financial institutions at all. They also -- it should be pointed out -- could not save money with interest, because that would require that someone else take temporary control of their money

Race, Police, and Henry Louis Gates

By now, most of us have heard about the recent arrest of Harvard Professor Henry Louis Gates, Jr. for disorderly conduct. Upon first hearing bits of the story, it was natural to assume that racism had something to do with it. After all, Professor Gates is 58 years old, wears glasses, and seems a highly unlikely candidate for a legitimate arrest. What, then, could explain what happened? Race. Maybe. Racism is undoubtedly a factor in many police decisions. Profiling is ubiquitous, and police have admitted using race as a proxy for likelihood of criminal conduct. That said, however, the facts of Gates's case offer a very plausible alternate explanation for what happened, albeit one that is not that much more flattering to the police. Consider the facts in greater detail. According to Gates, he was having a difficult time opening his own front door, after returning from a trip. He then asked his driver to help him force open the door. Someone saw two men trying to force open

Veganism, Year One

Exactly one year ago today, I posted " Meat, Dairy, Psychology, Law, Economics ," in which I discussed my decision earlier that week to become a vegan. In that post, I noted that the U.S. economy does not make it easy to be a vegan, concluding: "The most surprising thing about becoming a vegan is that it requires so much thinking!" A week later, however, I noted that being a vegan " is a lot easier than it looks." Given that Professors Colb and Dorf were the people directly responsible for my becoming a vegan, it was a nice coincidence that Professor Colb's post yesterday discussed the continuing hostility to veganism in the U.S. today, even among medical professionals. This gives me an opportunity to celebrate the one year anniversary of my transition, to discuss the personal challenges of veganism, and to reflect on possible changes in the law that might improve matters. Like anything that is unfamiliar, becoming a vegan has a learning curve

Obesity, Role Models, and Ignorance

In my column for FindLaw this week, I discuss a recent case in which the South Carolina Department of Social Services accused a mother, Jerri Gray, of child neglect and arrested her because her 14-year-old son, Alexander Draper, weighed 555 pounds. The column is critical of the government's decision to treat Gray as a criminal, in the light of what we in the United States generally eat and feed our children at home and what the government feeds them in the public schools. One could say that with school lunches as a model, it is not surprising that we have shockingly high and increasing rates of obesity (among adults and children) and the typical illnesses of affluence, including cardiovascular disease, cancer, and diabetes. In this post, I want to focus on a related set of questions that a pediatrician raised in a Science Times article (entitled "When Weight Is the Issue, Doctors Struggle Too") this week: "How on earth ... am I supposed to give sound nutritional

Judicial Sunsets and Affirmative Action

As I discussed last month, both the majority opinion and (to an even greater extent) the separate opinion by Justice Thomas in Northwest Austin Municipal Util. Dist. No. 1 v. Holder raise interesting jurisprudential questions for originalists about how to explain why it's permissible for the application of a principle to change as social attitudes change but it's impermissible for the principle itself to change with social attitudes. Here I want to put aside the more abstract jurisprudential questions to focus on the doctrinal nitty-gritty itself. My contention will be that "sunsetting jurisprudence"--judge-made legal principles that expire by their own terms--are actually quite common. I'll then use that point to debunk a silly but surprisingly common misconception. Recall that in NAMUDN1 the constitutional issue was whether the pre-clearance requirement of the Voting Rights Act was a valid exercise of Congressional power to enforce the 15th Amendment. The Cour

Under What Conditions Would I Conclude That Deficits Are Bad? Part 2

Last Thursday, in a post extending the analysis of my most recent FindLaw column , I asked whether the arguments that I regularly make in opposition to the conventional wisdom about federal budget deficits might have become my own version of conventional wisdom. The best way to answer that question is to ask whether there are any circumstances in which I would change my position and agree that budget deficits are bad. If not, then these arguments would be little more than a catechism, uncritically accepted as true. In that post, I confronted the first of the two arguments that I outlined in the FindLaw column, examining the arguments for and against deficit spending during an economic downturn. I concluded that the real issue is whether deficit spending would tend to reverse the momentum of the economy, slowing job losses or (more optimistically) adding jobs as the economy changes course in response to the stimulus created by (certain types of) government spending and (certain type

Pay for Performance

With center-right policies on offer from the Obama Administration in nearly every direction one looks--e.g., Afghanistan, detainees, health care reform, financial regulation, gay rights--it may be hard to recall that during the 2008 Presidential campaign, one of the more successful lines of attack by the right and center-right went like this: Obama talks about being a post-partisan pragmatist, but on the issues he's an old-school liberal. Sen. McCain challenged then-Senator Obama to name an issue on which he had bucked the Democratic orthodoxy and Obama came back effectively: He, Obama, supported merit pay for public school teachers, thus taking on the teachers' unions. And lately, the President and his Education Secretary have been talking up just this issue. Here I want to point out the oddity of choosing the current political moment as the time to push merit pay as part of the solution to what ails (some of) our public schools. We are now in the midst of two financial cri

Under What Conditions Would I Conclude That Deficits Are Bad?

In a FindLaw column that was posted yesterday, I discuss in some detail two arguments in favor of deficit spending: (1) During an economic downturn, deficits are appropriate and necessary (and beneficial) as a way to push the economy back in the direction of prosperity and full employment, and (2) At all times, deficits can be used to finance public investments such that the income that those investments produce will exceed the interest on the debt that is incurred to finance those investments. Both of those arguments are relatively uncontroversial among economists, though they remain (mysteriously) unknown to the public and politicians, making it necessary for people like me to repeat those arguments in as many public forums as possible. (I might also note that the latter argument is the starting point for my next law review article, on which I am busily working when I am not blogging or learning how to get around the teeming metropolis that is Ithaca, New York.) As always here on Do

Not Ready for Prime Time

There is---or at least there should be---no shame in a Senator not being an expert in administrative law, civil procedure, or Supreme Court jurisdiction. These are quite intricate areas of the law, and Senators are by nature generalists focused primarily on policy. To be sure, some members of the Judiciary Committee have, over the years, shown themselves to be real students of the law. Over 20 years ago, Joe Biden and Arlen Specter bested Robert Bork at his own game. And longtime Judiciary member Orrin Hatch knows his stuff (despite the error he made on Tuesday in characterizing the holding of Presser v. Illinois , as I noted in my FindLaw column yesterday). But most Senators, even most members of the Senate Judiciary Committee, cannot reasonably be expected to master all the intricacies of the law. So why do they pretend that they have? Yesterday's proceedings included the following Senators making a mess of the law in the following ways: 1) Al Franken was quite exercised

The Sotomayor Hearings So Far

My FindLaw column is now available here . (Sorry, no more. I have to go back to watching the hearings!) Posted by Mike Dorf

Lindsay Graham Asks a Tough Question

Later today I'll have a FindLaw column on the key developments thus far in the Sotomayor confirmation hearings. For now, I want to take a crack at the homework assignment that Senator Lindsay Graham gave Judge Sotomayor. I'll preface this by saying that, with one exception that I address in the column (regarding legal realism) so far I've found Sen. Graham to be the best of the questioners (R or D) by a fairly wide margin. From his opening statement ("Unless you have a complete meltdown, you are going to get confirmed") to his tough but fair questioning about the concerns about Judge Sotomayor's alleged bullying from the bench (not allowing her to attribute the complaints to her tough questioning, given that her 2d Circuit colleagues also ask tough questions but do not elicit the same reaction), Graham has struck me as honest, fair-minded, and astute. That's not to say, of course, that I agree with everything he has said or implied in his questions. Now

Will Michael Jackson's Death Be the Final Nail in the Estate Tax's Coffin?

It is hardly news that conservatives have been trying for years to abolish the estate tax. Well-funded efforts to re-brand the tax have had some effect in changing the terms of the debate, no matter the merits . Nonetheless, the Republicans have not yet succeeded in eliminating the tax (other than its scheduled one-year disappearance in 2010, which will probably never come about), even when they held the White House and both houses of Congress. In a bizarre twist, however, I now anticipate the political exploitation of Michael Jackson's death for the purpose of reigniting the push for estate tax repeal. And it just might work. (Note: This might already be happening. If so, I have not seen coverage of any moves in this direction.) The always exhaustive TaxProf blog has included a number of interesting posts since Jackson's death about the legal ambiguities surrounding the late singer's huge estate. ( See links here .) TaxProf also provided a link to an Associated Pre

Hear Senators Doing What They Love to Do Most

Sotomayor hearings are being webcast here . So far it's just Senators talking but at some point there will be Q & A. Posted by Mike Dorf

2d Edition of Constitutional Law Stories

The 2nd edition of Constitutional Law Stories , edited and with an Introduction by yours truly, is now available from Foundation Press . (Amazon doesn't yet have the 2d edition.) There are two brand new stories for this edition. I've dropped the chapters on Clinton v. Jones and the chapter on Brown v. City of Oneonta. I had included the Jones case as a window on constitutional interpretation outside the courts---in this example, focusing ultimately on the meaning of "high crimes and misdemeanors." Although I continue to regard the general topic as extremely important, given the function of the book and the series---providing vital background on canonical cases---it was hard to justify keeping the case. That was even more clearly true for the Oneonta case, which, while providing a fascinating window on equal protection doctrine---it pries open what we mean by racial classification---is unknown even to many constitutional scholars. The first new chapter is by Mike

The Day of the Bat?

In one of the odder pieces of journalism I've seen lately, the NY Times reported that new CIA Director Leon Panetta recently ended a CIA program that was adopted in the aftermath of 9/11 and that was kept highly classified on the orders of former VP Cheney (pictured with his trademark smirk). What makes the piece so odd is the almost completely unknown nature of the "program." Was it an intelligence operation? Targeted assassinations? Did it involve training bats to penetrate and destroy bin Laden's cave network? A nude bomb ? The reader is simply left wondering. We do learn, however, that: "When a C.I.A. unit brought this matter to Director Panetta’s attention, it was with the recommendation that it be shared appropriately with Congress. That was also his view, and he took swift, decisive action to put it into effect." Presumably Cheney's whole point in keeping the program from Congress was that it would be leaked and thus compromised if shared

Madoff & Inflation

In what I would describe as a case of victims imitating perpetrators, victims of (and onlookers to) Bernie Madoff's grand fraud have engaged in a kind of inflation of his crimes that bears at least a family resemblance to his very fraud: He sucked in investors by promising (and seemingly delivering) returns that substantially beat the market. In the response to Madoff, we can identify three examples of his victims (and others) treating him as a bigger fish than he really is. 1) The length of the sentence. Madoff was sentenced to 150 years in prison. Various news reports (e.g., this one ) have noted that under the Sentencing Guidelines, he will be required to serve at least 80 percent of that sentence. I'm not sure where that figure comes from, because by my calculation it's even higher. The Sentencing Guidelines themselves (large file warning!) say (at p. 3), that "the abolition of parole makes the sentence imposed by the court the sentence the offender will ser

Jobs and Health Care, Disconnected

In addition to his unfortunate decision to take the single-payer option off the table in the health care reform debate, President Obama made another important threshold decision that may seem less dramatic but in many ways constrains our choices even more severely. Specifically, he decided to continue the connection between health insurance coverage and employment. This decision is fully consistent with Obama's unwillingness to make major changes in the basic forms of our social institutions, but it is yet another example of a missed opportunity to do something that would have meaningfully enhanced prospects for genuine improvement going forward. No matter whether there is a public insurance option, continuing to run health care through the employer-provided model perpetuates a major part of the problem that led us to our current crisis. Tying insurance coverage to employment is so much a part of the American system that it is sometimes difficult even to remember how unnatural t