Showing posts from September, 2009

Unexecuted Warrants and the Dog that Didn't Bark

By Sherry Colb My FindLaw column this week discusses the case of a man who sued the District of Columbia for issuing a warrant for his arrest without probable cause. The man was never actually arrested, so the column takes up the question -- currently before the D.C. Circuit Court of Appeals -- whether the issuance of an invalid arrest warrant either inflicts or threatens injury sufficient to allow a litigant into federal court. I argue that it does and that the Fourth Amendment often concerns itself with government conduct whose injurious nature is far more abstract than the sorts of injuries that the law generally addresses. In this post, I want to connect the essence of the Fourth Amendment -- and its guarantee of the right to "be secure against unreasonable searches and seizures" -- with the Arthur Conan Doyle mystery in which Sherlock Holmes figures out that a stranger could not have been the intruder because the dog did not bark (and the dog would have barked if

Is the Constitutional Law of Health Care Reform the New Global Warming?

By Mike Dorf Until very recently, even mainstream news organizations felt a misguided sense of obligation, when covering global warming, to present the issue as though there was a real debate about whether human beings have made a substantial contribution to the phenomenon.  Crackpot skeptics and industry flacks were given equal or nearly equal time with scientists speaking for the overwhelming consensus.  Thankfully, that approach has largely faded with respect to global warming. But the root cause of the problem remains and is worse than ever: Journalists labor under a professional obligation to provide "balance" in their stories but they are generalists who typically lack the expertise necessary to evaluate the evidence for the positions taken by people on different sides of any question.  Hence they simply quote people expressing a variety of views (and often fall into the trap of framing questions as though there are exactly two sides).  This problem has been exacerb

What Maynard Keynes, James Dean, and Now Richard Posner All Have in Common

By Bob Hockett The G-20 group of industrialized and industrializing countries have just met in Pittsburgh to consider coordinated next steps we might take to restore and maintain global financial stability. Meanwhile, the Angelides Commission – the U.S.’s latterday “Pecora Commission” – finally has begun meeting in Washington to ascertain “what went wrong” in financial markets these past several years or more. More or less simultaneously, House and Senate Committees chaired by Congressman Frank and Senator Dodd, respectively, have at last begun meeting to consider possible improvements to – perhaps even a complete “overhaul” of – our U.S. “system” of financial regulation. In the lead-up to these interesting developments, a lively debate has emerged in the academy, the press, the “blogosphere,” and even the more popular media, not only about “what went wrong,” but also and relatedly about more fundamental questions. Many distinguished names have figured into the discussion thus far,

Senator Kirk and the Constitutionality of Expedient Law Switching

Massachusetts Governor Deval Patrick's selection of Paul Kirk as interim Senator pending a special election to fill the seat left vacant by Ted Kennedy's death provides an opportunity to consider the constitutionality of a phenomenon I'll call "expedient law switching." Readers will recall that back when John Kerry was running for President, Massachusetts Republicans urged changing the law so that the governor--then Republican Mitt Romney--would be able to name an interim replacement. The majority-Democratic legislature declined to do so, although the point proved moot when President Bush won the 2004 election. But the law left Massachusetts with a problem: when Ted Kennedy died, it was going to have only one Senator for the many months it would take to organize a special election. And so, presto!, the majority-Democratic Massachusetts legislature obliged by giving the now-Democratic governor the power to name an interim Senator, which he just did. Republicans

Government is Neither Friend nor Enemy

My new column, " Stop Denigrating Government: There is No Economy Without It ," is now up on FindLaw. In it, I make two basic points: (1) The "left" in the United States is not pro-government but is, in fact, highly skeptical of all human institutions, understanding that government institutions can be used to counterbalance the excesses of non-governmental institutions (especially for-profit corporations); but the government itself is prone to excesses that must be reined in. (2) The notion that "government is the enemy of business" is incoherent, because business could not exist in any but a primitive form without a robust and reasonably reliable government sector. (Tax scholars know this as "the Murphy/Nagel point.") It is surprising that those points even need to be made, but the current political moment is full of surprises. In this post, I want to expand on those points and to address a provocative question raised by the Murphy/Nagel arg

The Next Steps After the Minnesota Vikings Drug Testing Case

In my latest FindLaw column , I analyze the recent 8th Circuit decision in Williams v. NFL . The court held that Section 301 of the federal Labor Management Relations Act does not preempt lawsuits under two Minnesota statutes relied upon by two Minnesota Vikings to challenge the NFL's disciplinary action against them for using a banned substance. (They took a supplement that they did not realize contained a banned diuretic, which can be used to mask evidence of performance-enhancing drugs.) I explain in the column why principles of federalism support the 8th Circuit ruling. Here I want to ask what happens now. The same federalism-based reasons I offer in the column in support of the 8th Circuit's interpretation of Section 301 counsel against Congress taking action to preempt state law with respect to drug testing of professional athletes. Could the NFL and the NFL Players Association gut protections like those in the Minnesota statutes by agreement? Maybe. As the 8th Circ

The Iqbal Overruling Strategy

Readers of this blog ( here and here , for example), and of my FindLaw columns ( here , here and here ) know that I am a critic of the Supreme Court's rulings in Ashcroft v. Iqbal and Bell Atlantic v. Twombly , which together made it easier for federal district courts to dismiss civil lawsuits. I am hardly alone in my critical position. And now it seems that plaintiff groups (and plaintiffs' lawyers' groups) are gearing up to respond. As explained in this National Law Journal article by Tony Mauro, the effort to change the law is proceeding on two tracks: (1) A bill in Congress; and (2) The Rules Advisory Committee process. As I noted in one of my columns and an accompanying blog post , the bill proposed by Senator Specter has some technical flaws but these are likely to be corrected in the legislative process. As for the Rules Advisory process, there is the worry that, as U Penn law professor Steve Burbank (quoted in the Mauro article) says: "The process is

Was There Ever a Time When Liberals Abandoned Legislative Change for the Courts?

A recent New Yorker article by Jeff Toobin profiles President Obama's approach to picking judges and to the role of the judiciary more broadly. To summarize: 1) Obama, having come of age as a lawyer during a period of retrenchment on liberalism and conservative judicial activism under Chief Justice Rehnquist, lacks the faith in courts as an engine of social change that one sees in somewhat older Democrats; 2) he therefore has relatively little interest in pursuing a political agenda via judicial appointments; 3) this "pragmatic" approach fits well with his broader "post-partisan" vision of American politics; and 4) on judicial appointments as on just about everything else, Obama has not been rewarded by Republicans, who treat even his centrist nominees to the courts and the administration as bomb-throwing pinko practitioners of identity politics. I agree with much of the analysis in Toobin's article, but I want to question a premise of step 1: In Toobin&#

Now Is the Time to Support the Public Option

In late July and early August -- before the farcical theater of the town hall meetings had degraded the public debate on health care to lows previously unseen in this country -- I argued ( here and here ) that progressives who favor the adoption of a single-payer health plan should not automatically support the Public Option as the next best approach to universal care. The standard argument at that point was that there were three choices: single-payer, the Public Option, and a better-regulated private insurance system. With single payer unfortunately (and, I would suggest, unnecessarily) having been ruled out of the debate, the choice between the two remaining alternatives was supposedly simple: anti-government conservatives would prefer the non-Public Option aspects of the extant health care reform proposals (elimination of "pre-existing condition" exclusions and other reasons to deny care, enactment of universal mandates to buy coverage, and subsidies to allow lower-income

Lethal Injection in Ohio

On Tuesday, the state of Ohio attempted to carry out a sentence of execution against Rommell Brown, convicted of raping and murdering a 14-year-old girl 25 years ago. The attempt failed. After two hours, the executioners gave up attempting to find a useable vein through which to administer the lethal injection. (More details here .) As a result, Brown was granted a one-week reprieve by Ohio Governor Ted Strickland. What will happen now? In 2008, in Baze v. Rees the U.S. Supreme Court held that as practiced by Kentucky, the standard "cocktail" used for lethal injections is not unconstitutional. That ruling might be thought to bar any further objections by Brown, except that Baze is best read to reject the challenge to lethal injection as it was practiced in Kentucky. The case does not stand for the proposition that any version of lethal injection is per se constitutional, nor does it foreclose the argument that lethal injection would be cruel and unusual punishment as

Time Isn't On Anybody's Side

Although the Washington Redskins logo is probably less offensive than the logo of the Cleveland Indians , the name "Redskins" is, if not inevitably derogatory, sufficiently so to render the trademark in that name invalid under a provision of the Lanham Act denying trademark protection to any mark that "[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." So said the Patent and Trademark Office (PTO) in response to a 1992 filing by Native Americans objecting to the "Redskins" name. After over a decade and a half of litigation, this past May the DC Circuit affirmed the trial court's ruling in favor of the football team on grounds of laches. Laches, for the uninitiated, is a legal doctrine that denies recovery to plaintiffs with otherwise meritorious suits on t

Punctuated Equilibria and Forgotten Presidents

In Bruce Ackerman 's magisterial account of American constitutional history (Vol. 1 here ; Vol. 2 here ; no Vol. 3 yet), We the People make higher law during "constitutional moments"--that is, periods of heightened citizen engagement in politics--while during normal times, the People are largely absent from the political stage, represented only imperfectly by the democratic process. Ackerman's approach has two distinctive features. First, it denies that formal compliance with the prior rules is necessary for constitutional moments to produce constitutional change. Thus, in each of the three leading moments--the Founding, Reconstruction, and the New Deal--the mechanism of change is dubious: The Constitutional Convention of 1787 violated the unanimity rule of the Articles of Confederation; the 14th Amendment was ratified under duress; and the New Deal made no textual change at all, even as it led to a new understanding of the roles of Congress, administrative agencies

Cass Sunstein's View of Organ Donation

Today, my column on FindLaw ( here by noon) discusses some of the controversy that kept the Senate from voting on Professor Cass Sunstein's April nomination as head of OIRA until the middle of September (he came to a vote last Thursday and was confirmed). Sunstein co-authored a book in which he suggested that we might help alleviate the organ shortage in the U.S. by assuming, in the absence of an affirmative statement otherwise, that a deceased person had been willing to donate organs to patients in need of a transplant. My column discusses the general question of "default" settings -- what we (legally and customarily) assume until told otherwise -- and how such settings manifest themselves in the contexts not only of organ donation but of medical treatment, pregnancy, and abortion as well. Selecting a default setting can reflect anticipated preferences in the real world, or it may instead reflect a policy preference. In this post, I want to call attention to the rela

They Want Big Brother Out of Their Drinking Water

I don't know whether the editors of the NY Times were acting out of a sense of irony, but I found arresting the juxtaposition of the following two stories on the front page (of the web version; in the print version there's a front-page photo for the first story): 1) A report on the rally of anti-government protesters concerned about the size of government; and 2) A report on the widespread under-enforcement or non-enforcement of the Clean Water Act, to the clear detriment of public health. I suppose it's possible that the protesters want cuts in government programs other than clean water enforcement, but I doubt it. Economic libertarians have long taken aim at environmental protection laws generally, and the EPA in particular, as examples of what they regard as government overreaching. It's tempting to dismiss this latest protest as more of the same from a vocal but mostly marginal group. Yet the anti-government sentiment is pretty clearly the only opposition on off

Working Backwards

Regular readers of Dorf on Law know that Sherry Colb, Mike Dorf, and I each write columns every other week on FindLaw . Typically, we write a column and then post a companion piece here discussing some aspect of the column in further detail. For my column this week, I reversed the process. My Dorf on Law post last Thursday discussed the problem of early retirees who lose their health insurance, suggesting that there is a potential path leading from that problem to universal single-payer health care -- a destination, moreover, that would be a boon to American business. Having received some very helpful feedback, both on the Dorf on Law comment board and in conversations with some colleagues, I expanded on those thoughts in my FindLaw Column this week. Interested readers can find it (along with a new photo of my almost-smiling face) here . -- Posted by Neil H. Buchanan


The President's speech on Wednesday night was supposed to be his moment to take back the debate from the crazies and ignite those who support his agenda for progressive change. The worry, as Maureen Dowd again put it earlier this week , is that "the president is getting to be seen as an easy mark." The real story, however, is becoming ever more clear, and that is that Obama is not a progressive who is being rolled by his opponents but rather that he is an even worse example of a center-right faux progressive than Bill Clinton ever was. I sampled some of the responses to Obama's speech on the Huffington Post, a reliably partisan Democratic source. Paul Begala, a former Clinton advisor, was delighted, titling his post " Why I Loved Obama's Health Care Speech ." It's true that, from a purely partisan standpoint, Obama's speech should make Democrats happy. He increased the likelihood that he would get a "win" on the issue of health ca

Campaign Finance, Corporate Personality & Corporate Law

Based on the oral argument in the Citizens United case (which I previewed here and which is summarized nicely here ), it appears that the Supreme Court is likely to overrule the precedents establishing governmental authority to regulate political speech by corporations. If so, under the Buckley v. Valeo framework, it will still be possible to limit corporate campaign contributions in the same way that individual campaign contributions can be subject to reasonable limits, but there will be no more limiting independent expenditures of general corporate treasury funds. Perhaps the most interesting suggestion during the oral argument came from the Court's newest member. Justice Sotomayor mused that maybe the real problem is rooted in the old decisions finding that corporations have constitutional rights. (Justice Ginsburg gestured in the same direction.) Although I'm sympathetic to the goal of upholding campaign finance regulation, I think there's no realistic chance that

The Tiny Kernel of Sanity in the Insane Objections to Obama's Platitudinous Back to School Speech

In my latest FindLaw column , I hit the Obama Administration pretty hard for the deal it apparently struck last month with PhARMA capping drug discounts at $80 billion. Although I defend the notion of negotiating with industry over whether and how to regulate, I call the additional element of the deal--whereby PhARMA funds $150 million in pro-health-care-reform ads--problematic on free speech grounds. At the end of the column (which you should read if you want to make sense of what comes next), I invoke Thomas Jefferson's view that "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical." As I explain in the column, Jefferson's view cannot be taken literally because government routinely appropriates taxpayer dollars for programs--including programs that have speech elements to them--that some people will oppose. For example, state-funded universities appropriately teach evolution in their bio

Pres. Obama's Manifesto, and that Other One

Now that the White House has released the text of the President's speech welcoming America's youth back to school, the notion that it is some sort of socialist proclamation can be laid bare as utterly delusional. The speech extols hard work and individual responsibility as the patriotic duty of all Americans and a means towards individual self-advance that will have the side effect of improving the economy for all. It is, in essence, a bourgeois manifesto. The irony here is head-spinning. The actual Communist Manifesto of Marx and Engels makes the opposite point. Though written over 160 years ago, the Manifesto remains a powerfully insightful document--and in its diagnostic if not its prescriptive elements--it is arguably more relevant to our times than President Obama's homey advice. Consider the core points of the opening (and to my mind most trenchant) chapter of the Manifesto: On the economy : Capitalism, to succeed, requires ever-expanding markets, and thus glob

College Advice from the NY Times faculty

This week's Sunday NY Times Week in Review section offers advice from nine renowned faculty to new college freshmen. The shared core of the advice is sound, if obvious: Learn to write well and explore unfamiliar domains of knowledge with well-regarded teachers and your fellow students. Yet the assortment of advisers and advice is peculiar. With the exception of two natural scientists (biologist Nancy Hopkins and physicist Steven Weinberg), all of the Times guest experts write and teach in the humanities. There are no social scientists, unless one counts history as social science. (There are two historians.) And even the two natural scientists offer bromides that could have come from specialists in any field. (Follow your passion; try new things.) Yet for some time now, more students have been majoring in business subjects and economics than any other field. Perhaps the Times deliberately omitted any representatives of these fields because, especially in hard economic times

Justice Stevens

The news that Justice Stevens has selected only one law clerk for the Supreme Court Term that begins in October 2010 has understandably fueled speculation about the possibility that he will retire at the end of the Term that is about to begin now. Herewith, a few thoughts: 0) By way of background, each active Justice is entitled to 4 law clerks. For many years, Justice Stevens only hired 3, although in recent years he has taken the full 4. (The late CJ Rehnquist also only hired 3, perhaps because that meant he and his clerks could play doubles tennis without leaving anybody out. Really.) Each retired Justice is entitled to one law clerk, and the law clerk for a retired Justice usually "affiliates" with an active Justice because there usually isn't enough work for a retired Justice to fully occupy that law clerk. 1) There really is no explanation for hiring one rather than his usual full complement of 4 law clerks OTHER than that Justice Stevens at least wants to give