Showing posts from February, 2014

The Provocative Rhetorical Power of Slavery in Policy Analysis

-- Posted by Neil H. Buchanan [Update: In the post below, I discussed the film "12 Years a Slave" at some length.  I did not know as I wrote that post, of course, that the Best Picture Oscar would be awarded to that movie several nights later.  Indeed, I had forgotten all about the Oscars.  In any event, even though the award was not necessary to validate what is one of the most important films of recent years, it was a well deserved recognition of a powerful achievement.] My new Verdict column , published yesterday, is mostly devoted to an extension of my analysis of the "baseline problem" (which I also discussed in a Dorf on Law post two weeks ago).  On Monday, I will publish a post that summarizes that column, and that further develops the core of my argument. Today, however, I want to take a bit of a detour.  In yesterday's column, as I will explain below, I struggled with how to use the example of slavery to further my argument.  Based on my

Arizona SB 1062 Post-Mortem: Statewide, It Would Chiefly Have Licensed Sex Discrimination. That's Right, Sex Discrimination.

By Mike Dorf In vetoing  Arizona SB 1062 , Governor Brewer pointed to its possible "unintended and negative consequences."  I've been thinking about those consequences and I came to a surprising conclusion: If SB 1062 had been enacted, its chief statewide effect--indeed possibly its only statewide effect--would have been to create a religious right of businesses to discriminate on the basis of sex.  That's right, sex. Not sexual orientation.  Or at least not mostly sexual orientation.  Let me explain. As numerous commentators have noted, even without SB 1062, it is already permissible under Arizona law for private parties to discriminate on the basis of sexual orientation--even if they are merely ordinary bigots rather than religiously motivated bigots.  Thus, while the intention of the sponsors of SB 1062 may have been to provide a shield for sexual orientation discrimination, at the state level that shield was not necessary. I suppose they may have worried that i

Is The Right's Religious Freedom Focus a Strategic Blunder?

By Mike Dorf Continuing with the theme of religious exceptions to general laws that I explored on SCOTUSblog  and here on DoL in connection with the pending Supreme Court cases on the ACA contraception mandate and RFRA, my latest Verdict column looks at the Arizona bill now on Governor Jan Brewer's desk that would expand the state's RFRA, and at similar bills around the country. As I explain in the column, these bills differ somewhat from each other. Whereas other state bills would explicitly license religious exceptions to laws forbidding sexual orientation discrimination, the Arizona bill would expand the state RFRA generally. If enacted, it would provide broader religious exceptions (including exceptions for for-profit businesses) from laws restricting race discrimination, protecting the environment, etc. Nonetheless, the clear impetus for the Arizona bill is the same as the impetus for the more expressly homophobic bills that have been introduced in sister states: Fea

Are Legal Writing Professors Like Nurses?

by Lisa McElroy In a recent blog post on the Wall Street Journal’s website , Jacob Gershman quoted from a poem and article penned by Georgetown legal writing professor Kristin Tiscione .  Those who are fortunate enough to know Kris know that she is a thoughtful, professional, highly competent professor who has taught an entire generation of Georgetown students. Although the poem artfully expressed the frustrations of the 94% of legal writing professors who are not eligible even to apply for tenure, it was the comments that caught my eye. The first two comments on the post compare podium professors to doctors and legal writing professors to nurses. I’d like to start out by saying that the commenters who said things like “Why should a nurse be paid the same as a doctor?” were incredibly insulting to nurses.  Anyone who has ever had to stay overnight in a hospital – even for a happy reason like delivering a healthy baby – knows that nurses represent the front lines of healt

Ted Eisenberg

By Mike Dorf I just wanted to take a moment to note the tragically premature death of my dynamo of a colleague, Ted Eisenberg. A first tribute to Ted can be found here .

Why is RFRA Still Valid Against the Federal Government? (Cross-Posted on SCOTUSblog)

By Mike Dorf [N.B. I posted a nearly identical version of the following essay on SCOTUSblog 's symposium on the contraception mandate cases. I'm reposting/cross-posting here on DoL for the benefit of those readers who didn't read it there.] The Supreme Court granted certiorari in Sebelius v. Hobby Lobby Stores, Inc . and Conestoga Wood Specialties Corp. v. Sebelius to resolve a question of statutory construction:  Does the Religious Freedom Restoration Act of 1993 (RFRA) entitle a for-profit corporation to an exemption from the requirement of providing employees with health coverage that includes contraception, on the ground that the owners of the corporation have religious objections to providing such coverage?  That is an important question that the other participants in this symposium and the Justices themselves are now considering. In this essay, however, I want to ask an antecedent question: Why is RFRA constitutional as applied to the federal government?  In p

Blaming the Professors, Part II: Kristof's Confused Anti-Intellectualism

-- Posted by Neil H. Buchanan Two days ago, I wrote a Dorf on Law post in response to a NYT op-ed column by Nicholas Kristof.  Kristof, writing in last Sundays' "Review" section, argued that professors have made themselves irrelevant to the great public debates, by becoming too specialized and obscure (and none-too-subtly suggesting, as I will discuss below, that academics are too liberal). I argued in response that Kristof is simply wrong to suggest that the media and political worlds are starving for enlightened guidance from an indifferent academy.  What Kristof identifies as a matter of under-supply (not enough professors trying to influence the public discussion) is in fact a matter of inadequate demand on two fronts: people in the media who don't know and don't care to find out if there are actual experts available to weigh in on important topics (with media outlets preferring instead to propagate an incestuous conversation among the usua

Delay in Posting Part II of my Critique of Kristof's Attack on Professors

UPDATE: The follow-up post is now available here: Dear Readers, Normally, my Friday post would have been published by now.  Because of unforeseen circumstances, however, I will publish the follow-up to yesterday's post tomorrow morning. My apologies for the delay.  Thank you for reading Dorf on Law . Sincerely, Neil H. Buchanan

Are Public Intellectuals AWOL? A Test Case

-- Posted by Neil H. Buchanan This past Sunday,  New York Times columnist Nicholas Kristof caused a stir among academics by publishing a column carrying the well-meaning title: " Professors, We Need You! "  (Apparently, in some editions of the paper, the article's title was, "Smart Minds, Slim Impact.")  The article has generated plenty of reaction, including five Letters to the Editor that the Times selected for official publication.  Because Kristof's column is on such an important topic, but especially because he so badly misses the mark in more than one important way, I am going to respond to his column in my Dorf on Law posts today and tomorrow.  In today's post, I will argue that Kristof completely misdirects the blame for the problem that he describes.  Tomorrow, I will discuss his laughably dangerous descriptions of various academic disciplines, and their places in the media and political universe. To give Kristof his due, his column was

Marius the Giraffe and Abstract and Concrete Harms

by Sherry F. Colb In my Verdict column this week , I wrote about the Copenhagen Zoo's slaughter of Marius, a healthy, 18-month-old giraffe who, according to the zoo, would not contribute to the genetic fitness of his species if he were bred.  I discussed the implications of people's outrage on behalf of Marius for our conduct toward other animals, including -- most significantly -- those whose bodies (meat) and bodily secretions (dairy and eggs) many of us consume on a regular basis.  In this post, I want to take a moment to examine why people are better able to empathize with Marius the giraffe than with the cows, chickens, and fishes in whose slaughter we participate by consuming their flesh, their milk, and their eggs. One explanation for the disconnect is that we are emotionally invested in regarding the animals whom we regularly harm as "different" -- in some morally relevant way -- from the animals we love, including our companion dogs and cats but also incl

A Historical Perspective on Right-Wing Populism

By Mike Dorf One of the fascinations of studying history is the discovery that what one regards as fixed constellations of policy positions were previously aligned very differently.  For example, modern-day liberals like myself have a hard time figuring out who are the good guys and who are the bad guys in the political fight at the turn of the 18th to 19th centuries between Jeffersonian Democratic-Republicans and Federalists. On one hand, Jefferson's party (and later Andrew Jackson's) was clearly the small-d democratic force, as against the elitism of Adams and the Federalists. On the other hand, the Jeffersonians were based in the South and their states' rights positions were tied to the preservation of slavery. Jeffersonian/Jacksonian populism was the populism of white men. To be sure, one might try to see the past as it appeared to the the people of the time, without viewing it through the lens of contemporary concerns. But it is hardly clear that this is even possi

Are Universities Special For Free Speech Purposes?

By Mike Dorf Not long ago I received an inquiry from a Buzzfeed reporter about a bill in Congress that would pull federal funding from universities that participate (or whose sub-parts participate) in the boycott of Israeli universities. I'll come to the specifics in a moment, but first a few preliminaries. Although I disagree with many of the policies of the Netanyahu government, especially with respect to the occupation of Palestinian territory, I also oppose academic boycotts of Israeli institutions. For one thing, the targets of such boycotts tend to be the sorts of Israeli academics who themselves are highly critical of Israeli policy, but more importantly, I think that the threshold for an academic  boycott needs to be especially high. It's one thing for a university (or other entity or an individual) to decide not to purchase goods on ethical grounds. Thus, I think it's perfectly sensible for student activists who oppose sweatshop labor to campaign to remove i