Showing posts from February, 2013

Bad Laws and Good Political Timing

-- Posted by Neil H. Buchanan In my new Verdict column today , I discuss whether President Obama is really required to carry out the spending cuts under the so-called sequester.  Given my early advocacy of the argument that the President would not be required to cut spending if the debt ceiling were to become binding, I have been asked whether there is a legal or constitutional work-around that could allow the President to refuse to enact the sequester cuts.  Given that both sides originally agreed to the sequester mechanism in the stated belief that such cuts would be a terrible idea -- so terrible that no one would ever allow them to become reality -- it is at least imaginable that there could be a way for the President to call them off.  Is there? The short answer is, of course, no.  The key difference between the debt ceiling and the sequester cuts could not be more fundamental.  The debt ceiling is a statute that is not problematic on its own terms, but in conjunction with th

Torture Versus Death and the Greater/Lesser Problem

By Mike Dorf My new column on Verdict  asks whether President Obama's targeted-killing policy is worse than former President Bush's torture policy.  I use as my point of departure a recent Wall Street Journal op-ed by John Yoo, who makes that claim.  (I don't link to the op-ed because the WSJ remains behind a pay wall.)  I then explore the intuition behind the claim.  As Jane Mayer acknowledges in a New Yorker  piece , " it’s better to be alive with no fingernails than dead."  Nonetheless, I end up agreeing with Mayer that Yoo is wrong--which is not to say there aren't legitimate grounds on which to criticize the targeted killing policy. Here I want to explore the broader logic underlying Professor Yoo's claim. That broader logic is sometimes captured by the proposition that the greater power to do X includes the lesser power to do Y. Let me make that more concrete by giving a famous example.  In the 1892 case of McAuliffe v. New Bedford , Oliver W

The Sequester, the Comfortable and the Super-Rich

By Mike Dorf With the sequester set to hit at the end of the week, readers might want to ask "how will the sequester affect me?"   Here 's a useful state-by-state breakdown of some of the likely impacts of domestic spending cuts, but I think it's fair to say that as in most things, the impact will be felt most severely by those who can least afford it. There are exceptions, however, and, in particular, one class of exceptions that are likely to be felt by an important group of voters: comfortable professionals like me and many readers of this blog.  How so?  Because air traffic controllers and TSA agents will be laid off, we can expect travel delays.  Or make that further travel delays beyond those we experience as normal these days.  I'll admit (to my shame) that practically my first thought when I read a list of projected cuts was this: "Hmm, I wonder whether I'll have to cut out early from the reception after my lecture next week in order to get to

A Vegan Perspective on the Horsemeat Scandal

By Mike Dorf Europe and the UK are currently experiencing a horsemeat scandal, or as one of my fellow vegans put it on her Facebook page, people are horrified to discover that they have been eating dead horse flesh mixed in with their dead cow flesh.  Because I find the prospect of eating dead bits of cows, chickens, pigs, fishes and other animals as morally repugnant as eating dead bits of horses, I'm tempted to say that I find the scandal itself somewhat scandalous, but I'll resist.  I was not always a vegan and back when I ate dead cows I too would have been horrified to discover that I had unwittingly eaten a dead horse.  Moreover, my horror would have been justified.  I was right not to want to eat horses; the problem was that I didn't generalize that revulsion to other animals. Thus, I was not surprised that a number of animal rights organizations have suggested that the horsemeat scandal provides what is sometimes called a "teachable moment."  The lesso

Difficult Political Choices in the Shadow of the Debt Ceiling

-- Posted by Neil H. Buchanan As planned , Professor Dorf and I spoke at two events at Columbia Law School yesterday.  The students on the Law Review were wonderful hosts, and the discussions at both events were quite stimulating.  Happily, the day was capped off with an agreement that our third scholarly article analyzing the debt ceiling ( currently available on SSRN ) will be published on Columbia Law Review's Sidebar .  With lightning-fast work, the piece will be up on the CLR website late next week.  A happy trifecta!  [Update: The article is now available here .] One of the issues that came up during yesterday's discussions was whether Professor Dorf and I are being unrealistic in thinking that the Obama Administration would even consider taking our advice seriously, given the political realities that the President faces.  A related question was whether those political risks should themselves be counted among the issues that a President can or should consider, if he

Spending Priorities, the Separation of Powers, and the Rule of Law

-- Posted by Neil H. Buchanan The debt ceiling is keeping us busy, here at Dorf on Law.  Later today, both Professor Dorf and I will be speaking at Columbia Law School, at the invitation of the Law Review editors who worked on our two articles in 2012. Over the weekend, we also finalized a new article , which Professor Dorf briefly described here yesterday.  In it, we extend our ongoing analysis of the constitutional issues surrounding the debt ceiling.  The short-hand versions of the two main sections of the article are: (1) Yes, there really is a trilemma, and (2) No, the debt ceiling is still not binding, even if everyone knows that they are creating a trilemma when they pass the spending and taxing laws. The latter point is important because already-existing trilemmas (such as the one that Congress and the President faced last month, before the Republicans capitulated by passing their " Debt Ceiling Amnesia Act ") do not exist when there are no appropriated funds f

Bargaining in the Shadow of the Debt Ceiling (aka Buchanan/Dorf Part 3)

By Mike Dorf With the sequester due to go into effect very soon and the need for a continuing resolution to keep funding the government due up just after that, readers of this blog may be wondering: "How does the prospect of hitting the debt ceiling again in May affect the bargaining position of the parties?"  Good question.  In our brand new debt ceiling paper , Professor Buchanan and I take a crack at that question and a few others.  It's short (by law review standards--33 pages) so you should read the paper for the full argument (because you have nothing better to do) but here I'll summarize very briefly. After recapping the last year and a half of craziness as well as our prior writing on the subject, we roll out two main parts of our argument.  First, we respond to those objections to our "trilemma" analysis to which we haven't previously responded or haven't responded systematically.  We make a number of new moves but the one that's per

Cameras in Courtrooms

By Mike Dorf Justice Sotomayor's change of heart regarding the wisdom of televising Supreme Court hearings provided the opportunity for the latest news coverage of the fact that the SCOTUS does not currently permit cameras in the courtroom.  This very good NY Times article by Adam Liptak notes a number of themes that have been noted by others as well, including: 1) That nominees to the Court say they favor cameras but then have a change of heart once they have been Justices for a few years; 2) that other countries (including Canada) follow the opposite pattern from ours, permitting televising of their high court appellate proceedings, but not of trials, where witnesses might be intimidated; and 3) that the usual reasons given for keeping cameras out of the courtroom include the fear that the public wouldn't understand what they are watching and that lawyers and Justices alike would play to the cameras.  Here I'll focus briefly on point 3). Let me begin by stating the o

The Return of the Social Security Debate, an Analogy to the Banking System, and a Progressive Solution

-- Posted by Neil H. Buchanan After I published my recent three-part series of posts about the workings of the Federal Reserve ( here , here , and here ), I received an email from a reader, who asked the following questions: Whenever I talk about so-called entitlements with my conservative friends, they respond by saying that Social Security is unsustainable. They say that there are too many old people, compared to young workers. When Social Security began, there were fewer old people and a lot more young workers. Now, the pyramid is reversed, they say. The only solution is to cut benefits. A common statistic they quote is that the government spends 4 dollars on every adult over 75 for every dollar they spend on someone under 18. So, they promise to keep benefits as they are for people 50 or up, and cut the benefits for future beneficiaries like me. Is that really the only choice? Are these numbers cited in a misleading way? The emailer's questions raise two separat

Requiem for a Hedgehog: Ronald Dworkin R.I.P.

By Mike Dorf Ronald Dworkin died yesterday.  There will doubtless be a great many memorials written in his honor.  I knew him a little and greatly admired his work, which is not to say I agreed with all of it .  But I think that it's impossible to gainsay his importance as a thinker about law.  Here I'll record a few thoughts about some of Dworkin's most important ideas, exploring the relationship among them. Principles Versus Rules : Dworkin's early work in academic jurisprudence took aim at H.L.A. Hart's version of positivism, which was then the leading model of law.  In The Concept of Law , Hart described law as a system of primary rules (rules that govern conduct of ordinary citizens) and secondary rules (rules that govern government officials), all grounded by an ultimate "rule of recognition," which is a widely observed convention that identifies the source of the law.  Hart's work falls within the great tradition of legal positivism, which

The Minimum Wage Debate, and Intellectual Honesty

-- Posted by Neil H. Buchanan In his 2013 State of the Union Address on Tuesday, President Obama called for an increase in the federal minimum wage to $9.00 per hour.  The editorial board of The New York Times pointed out that this was something of a retreat from the President, who endorsed a $9.50 minimum wage in 2008.  Hopes that his second inaugural address might have been the beginning of a newly aggressive liberal Obama thus took another small hit, but it would be churlish not to acknowledge that he at least said something forceful about this important issue. The predictable response, from the Fox-iverse and all the business pundits, was that the minimum wage kills jobs.  Because this is a debate that never goes away, and because those anti-minimum wage pundits always wrap themselves in the mantle of "solid economics," I will take this opportunity to describe how the minimum wage debate has played out among economists.  This is an especially interesting story, be

The Right to Remain Silent and the Act/Omission Distinction

by Sherry F. Colb In part 2 of my Verdict column this week, I continue my analysis of Salinas v. Texas , the case currently before the Supreme Court posing the question whether suspects outside of custody who have received no Miranda warnings have the right to remain silent and a corresponding right to exclude their silence from the prosecutor's case in chief at their criminal trial.  In this post, I would like to take up the question whether we really enjoy a "right to remain silent" at all. Under Miranda v. Arizona ,  police officers holding a suspect in custody must tell the suspect that she has the right to remain silent (along with several other famous warnings) before interrogating her.  The reason for the warning is to help safeguard the suspect's Fifth Amendment right against compelled self-incrimination in the inherently coercive atmosphere of incommunicado police interrogation. Outside of custody, however, and outside other contexts such as a criminal