Showing posts from April, 2014

Reasonable Legal Mistakes

by Sherry F. Colb In my Verdict column for this week , part one of a two-part series, I consider a case on which the U.S. Supreme Court recently granted certiorari, Heien v. North Carolina .  In  Heien , police stopped a vehicle on the basis of reasonable suspicion to believe that one of the vehicle's brake lights was not functioning.  Once the police stopped the vehicle, they obtained consent for a search and subsequently found evidence of drug trafficking.  On appeal, however, the North Carolina Court of Appeals held that the traffic law in North Carolina actually permits a vehicle to have only one working brake light. The North Carolina Supreme Court assumed (but did not decide) that the Court of Appeals was correct in its interpretation of North Carolina law regarding brake lights.  Nonetheless, the state high court found that the officer's mistake of law -- if it was a mistake at all -- was a reasonable one and that when an interpretation of the law is objectively reas

Unforced Errors: Taxes, Servitude, and Duress

-- Posted by Neil H. Buchanan Two months ago, in a post here on Dorf on Law , I expressed my extreme discomfort with everyday uses of the word "slavery" in our political discourse.  My point of departure was the casual analogies to slavery that one sometimes sees in anti-tax diatribes.  The "tax protest" movement includes people who claim that taxes violate the Thirteenth Amendment's ban on slavery and involuntary servitude in the United States, but they are hardly the only people who devalue the reality of slavery through glib abuse of language. My latest Verdict column, published yesterday , picks up on my discussion of the more mainstream versions of the taxes-as-servitude argument that are often invoked by American conservatives.  I leave aside the "enslaving the beachcomber" argument, which I described briefly in my earlier Dorf on Law post, because that argument deserves a separate response.  (That argument is, by the way, one that even som

Rewarding Socially Beneficial Innovation: A Further Thought on the Aereo Case and High-Frequency Trading

By Michael Dorf In Professor Hockett's preview of the Aereo oral argument last week, he argued that it would be wonderful if, in considering how to resolve the particular dispute under the Copyright Act, the Justices paid some considerable attention to the broader question of the implications of public ownership of the airwaves. In a related spirit, I want to use the oral argument (transcript now available here ) as the launching point for a discussion about how Congress and the courts ought to think about innovation--both in the current context and more broadly. First, a reminder of the dispute's basics: Aereo has facilities in various cities around the country at which it rents tiny antennae and disk space on an individualized basis, thereby allowing its customers to receive via the internet recorded broadcast programming. As Prof. Hockett explained, the key question in the case is whether Aereo's service amounts to a "public performance", and thus infringe

Piketty and the Dangers (Again) of Arguendo Reasoning

-- Posted by Neil H. Buchanan There has been an explosion of interest in Thomas Piketty's new masterpiece, Capital in the Twenty-First Century .  My most recent post (last Friday, here ) was written after I attended an event at a DC think tank, where I witnessed one extraordinary example (out of many, many examples) of the red-baiting that Piketty's book has inspired among American right-wingers.  I also plan to write my annual scholarship review for the Jotwell website about the book, and the discussion among economists and other scholars promises to continue for months, if not years. Today, due to limited time, I will make only one point about the response thus far to Piketty's book.  In a blog post yesterday ( here ), Paul Krugman argued against lefty economists who object to Piketty's methodological choice to use orthodox economic tools to explicate his arguments.  In particular, Piketty uses "aggregate production functions" as a starting point, and h

The Burkean Argument Against Gitmo Trials, And A Stray Thought About Incorporation of the Bill of Rights

by Michael Dorf The recent report of snooping on Gitmo defense lawyers by the FBI is disturbing, to say the least. More than twelve and a half years after 9/11, the special-purpose tribunals for trying those of the perpetrators in U.S. custody still appear to be a work in progress. As discussed in the NY Times  story linked above, not only are defense lawyers and their staff being surveilled by the FBI, but the CIA had been secretly afforded the ability to cut the courtroom video feed based on its own determination of national security, quite apart from the determinations of the presiding military judge. It is tempting to see these missteps as evidence that the current Gitmo process, while affording more protection for defendants than the original system devised by the Bush Administration, remains essentially a system of kangaroo courts. And it may well be. But there is something else that is wrong with the system: It was built mostly from the ground up. We might thus criticize th

SCOTUS Rejects "Political Process" Challenge to Michigan Affirmative Action Ban

By Michael Dorf My latest Verdict column unpacks yesterday's SCOTUS ruling in Schuette v. Coalition to Defend Affirmative Action . The column speaks for itself. Here I want to add the observation that I find each of the five separate opinions unsatisfactory in one way or another. Justice Kennedy (for the plurality of himself plus CJ Roberts plus Justice Alito): I agree with the core reasoning of this opinion but it contains an objectionable paean to the positive liberty (in Berlin's sense) of citizens to make their own decisions about race-based affirmative action. That sentiment would be easier to swallow if Justice Kennedy, CJ Roberts, or Justice Alito had ever voted to uphold an affirmative action program. But as none of them has, it's hard to take them seriously when they say that they just want the voters to be able to have their say; they want voters to have their say when they reject race-based affirmative action, but not so much when the voters choose it. The

What Rents May Broadcasters Charge?

By Bob Hockett When I first moved to Ithaca some years ago, I was relieved by something that some people told me about television in this town – something that I suspect few would have counted as good news.  This was that it is impossible to receive television broadcasts by air in this region, such that one must seek cable or satellite service to see any television at all. This came as a relief rather as Ulysses' being bound to the mast of his ship on approaching the Sirens is said to have relieved him .   I didn’t want to be tempted by television into wasting time, and feared that I would be thus tempted were I able simply to turn on the television unthinkingly when tired and then receive eye-catching and ultimately addictive broadcasts.   The fact that cable or satellite access would require one’s affirmatively seeking it out and then waiting for weeks before installation, I figured, meant that I wouldn’t end up getting cable or satellite service, hence wo

Whom to Punch in the Nose: Bundy, Putin, Both, or Neither?

by Michael Dorf Popular fiction and conventional wisdom offer the same advice: When faced with a bully, don't give in, for that will only embolden him; better to stand up to the bully because every bully is ultimately a coward. To be sure, not everyone says the bully's victim should punch the bully in the nose, especially if the bully is bigger than his victim or has bully friends. Maybe the victim can enlist others in his defense, or (contrary to the unofficial rules of the schoolyard), go to the authorities. I don't mean to be flip about a serious subject. In the last decade or so, bullying has been (rightly) recognized as a serious problem, and there is lots of good advice out there. Here I want to briefly explore its application (or non-application) to two ongoing crises: the standoff between the federal Bureau of Land Management (BLM) and rancher Cliven Bundy and his defenders; and the conflict in Ukraine. In each conflict, each side views (or at least portrays)

What's a Little Red-Baiting Among Friends?

-- Posted by Neil H. Buchanan There was an event earlier this week, held at the Urban Institute here in Washington, that captured perfectly what is wrong with " This Town ."  The Tax Policy Center (TPC), a policy group jointly supported by the Urban Institute and the Brookings Institution, hosted a discussion on April 15 (announcement with video here ) to mark the release of Thomas Piketty's important new book, Capital in the Twenty-First Century . This was clearly meant to be an Important Event that should be taken seriously in This Town, so it was predictable that the organizers would invite a liberal policy wonk and a conservative policy wonk to chat with Professor Piketty about his book.  TPC Director Len Burman, an economist who is himself a veteran of these dog-and-pony shows, thus hosted Dean Baker of the Center for Economic and Policy Research (The Liberal) and Kevin Hassett of the American Enterprise Institute (The Conservative).  Because Piketty's book is