Showing posts from July, 2014

Is the Attack on Social Security Finally Over?

-- Posted by Neil H. Buchanan [Note: This post is a companion piece to my latest Verdict column: Message to Young People: Social Security Will Be There For You, Unless You Let Wall Street Take It Away From You .] This year's go-round on the Social Security "drop-dead date" carousel was notable for its near invisibility. In previous years, the annual release of the Trustees' report would be breathlessly reported by every media outlet, with commentators decrying the failure of politicians to deal with this supposed crisis in the making.  This year, not so much. Indeed, I would not have devoted this week's Verdict column to the topic, except that it appears that young people have actually come to believe the anti-Social Security hype.  True, they are not up in arms about it, but they appear to have adopted a desultory "We know we're screwed, but what else is new?" attitude.  It seemed worthwhile to take another crack at trying to help young pe

Human Shields in International Humanitarian Law and in Domestic Criminal Law

by Michael Dorf As I post these thoughts, there is no ceasefire in place to stop the immediate bloodshed in Gaza and Israel, much less any apparent progress towards resolving the larger conflict. But, as with my most recent post inspired by the latest outbreak of violence, I am going to address a general issue it raises, rather than assess the current situation or the broader conflict. I realize that in treating a very real tragedy as merely the insipiration for an intellectual discourse, I risk coming across as detached or unfeeling, so let me assure readers that I take very seriously both Israel's security concerns and the devastation in Gaza. As with my last post on the current Israel/Hamas conflict, I want to discourage comments on topics other than the one I address here, and to announce in advance that I won't respond to any such off-topic comments. With that warning/disclaimer out of the way, I come to the question that concerns me: Can we learn anything about the hu

Keeping the Outsiders Outside, by Chiding Them for Their Bad Manners

-- Posted by Neil H. Buchanan Earlier this year, I wrote a series of Dorf on Law posts in which I commented on a testy exchange between "orthodox left" economists and "heterodox left" economists.  (The last of my posts, which contains links to the previous posts in the series, can be found here .)  The orthodox team's most prominent member is Paul Krugman, while the heterodox left is ably represented by James K. Galbraith and Tom Palley.  Lately, there has been another go-round between Krugman and Palley, which sheds some further light on the orthodox/heterodox divide, and which provides additional evidence in support of my analysis back in May.  Specifically, Krugman is showing once again that he prefers "the jerks to the right of him," as I once described it, and he continues to dismiss and marginalize his potential allies on the left. To review the basics, both the orthodox left and the heterodox left are in broad agreement on what would consti

A Text So Clear It's Invisible

by Michael Dorf My latest Verdict column discusses last week's dueling D.C. Circuit and 4th Circuit opinions respectively invalidating and affirming the authority of the IRS to extend refundable tax credits to people purchasing health insurance on federally-established, as opposed to state-established, exchanges. I note that the DC Circuit relies on textualist arguments, which leads me to explain what textualism is and its virtues, such as they are. I note that moderate textualism has been largely accepted but argue that the DC Circuit applies an extreme version of textualism. I contend in the column that what makes the DC Circuit version of textualism extreme is, among other things, the fact that it arrogates to the court the power to decide when language is sufficiently clear to foreclose the IRS interpretation of the statute. Here I want to suggest that my column is perhaps too generous to Justice Scalia in accusing the DC Circuit of implementing a more extreme version of

19th Century Contract Formalism From a Unanimous 21st Century Supreme Court

by Michael Dorf Next week, I'll once again be speaking at the annual Practicing Law Institute Supreme Court Review session  (in-person in NYC, group-cast in Atlanta and Cleveland, and also available via webcast). I'll be participating in all of the panels but I have primary responsibility for presenting Bond v. United States (about which I wrote a column and a blog post ), S chuette v. BAMN  (about which I wrote a column and a blog post ), ABC v. Aereo (about which I wrote a post-argument blog post and another post-opinion blog post ), and Northwest v. Ginsberg .    My presentations on these cases will be based in substantial part on my earlier writing but because I haven't yet written anything about Northwest , I thought I'd preview my remarks on that case here. I apologize for reporting on a case almost four months after it was handed down and I realize that I may end up making points that others have already made elsewhere. But the case struck me as sufficient

Veganism, Year Six: The Familiar and the Unfamiliar

-- Posted by Neil H. Buchanan On July 24, 2008, I posted " Meat, Dairy, Psychology, Law, Economics ," here on Dorf on Law , in which I described how I had decided to become an ethical vegan, after several years of having been a vegetarian.  Every year since then, on or near the 24th of July, I have posted various thoughts that have been inspired by the anniversary of having made the decision to become a vegan.  Those posts are available here: 2009 , 2010 , 2011 , 2012 , and 2013 ( part I and part II ).  Very occasionally, I will also write a vegan-related post at some other time of year. In these posts, I tend not to adopt the academic style of my other writing, which would in this case involve discussing the deep moral questions raised by veganism.  I have done so, in part, because my co-bloggers cover that territory so very, very well.  For example, any readers who did not happen to read Professor Colb's post yesterday , in which she capped off our Hobby Lobby pos

Hobby Lobby Post-Mortem Part 10: When Is There Complicity?

by Sherry F. Colb In my Verdict column for this week , I discuss and analyze an underdeveloped dimension of the Supreme Court's ruling in Burwell v. Hobby Lobby .  The Court held in Hobby Lobby  that the Religious Freedom Restoration Act ("RFRA") protects closely held corporations with religious objections to health insurance coverage requirements under regulations passed pursuant to the Patient Protection and Affordable Care Act ("ACA").  The requirements at issue in Hobby Lobby  require employers that provide health insurance coverage to their employees to include within that package coverage for two kinds of intra-uterine device and two types of morning-after pill that the corporations consider religiously objectionable abortifacients.   The Supreme Court accepts the respondents' claim that they believe that life begins at conception.  This claim, coupled with an acknowledgment from the U.S. Department of Health and Human Services ("HHS") th

Inequality Studies Across Academic Discipilnes: The Piketty Effect

-- Posted by Neil H. Buchanan Jotwell : The Journal of Things We Like (Lots) , a playfully named but serious publication, is one of the few successful online writing ventures that relies upon a wide range of authors.  Usually, large-scale unpaid ventures are overwhelmed by free-rider problems, but Jotwell has managed to thrive on a model in which each author submits one post per year.  Divided into nineteen sections, from Administrative Law to Work Law, the journal asks its authors to write 1000-word essays describing the best article or book in a given field that the Jotwell author has read in the past year.  I published Dorf on Law companion posts to my previous "jots" in 2013 , 2012 , 2011 , and 2010 . Last year's jot summarized an article in a major economics journal, written by Peter Diamond and Emmanuel Saez, which summarized a body of work on income inequality that they had published with a frequent co-author, a young French economist named Thomas Piketty. 

The (ir)relevance of firepower

by Michael Dorf Let me begin with a disclaimer. This is a post about one aspect of the current military confrontation between Hamas and Israel, not about the larger conflict over Palestine and Israel. I will just say, with considerable dismay, that over the last two decades I have come to think that an observation once made by Abba Eban about the Palestinians has now become a fair characterization of the Israelis (especially under Likud-led governments): "They never miss an opportunity to miss an opportunity." In any event, in a perhaps-futile effort to focus on just one issue, I won't respond to questions, comments, or accusations regarding  my views  about the larger conflict. Here I want to inquire into the relevance--or irrelevance--of an obvious fact about the current conflict: Israel has much more sophisticated weaponry and troops, and has been using them to much greater effect, as reflected in the very different death tolls. Before Israel crossed the border int

New Verdict Column: Businesses and Religion

-- Posted by Neil H. Buchanan In my new Verdict column , I summarize many of the arguments in the "Hobby Lobby Post Mortem" series of 9 posts that Professor Dorf and I have written since June 30, adding some thoughts on why even reluctant businesses might feel pressured, post- Hobby Lobby , to "find religion." Normally, a new Verdict column is accompanied by a Dorf on Law post, exploring in more detail one or more questions raised in the column.  Today is an exception to that rule, because I have nothing further to add here on Dorf on Law .  Interested readers can find the column here .  My Dorf on Law post for the day, addressing the politics of budgets and debt ceilings, is available immediately below (if you are viewing the main page of the blog) or here .

How Long Can the Craziness Be (Somewhat) Controlled?

-- Posted by Neil H. Buchanan In anticipation of the upcoming academic year, the media affairs people at my law school asked me what to expect with regard to budget-related news.  They were, of course, especially interested to know when the debt ceiling would become a big issue again, because that is when they will surely be most active in helping reporters and producers arrange interviews with me.  (My tiny amount of fame is, as I've said before, an oft-ignored social and personal harm caused by the Republicans' debt ceiling madness.)  What can we expect going forward? It is important to start by noting that this is an especially odd moment in American politics, when the Tea Party-fueled craziness of the last few years is viewed as being somewhat in remission.  That description is broadly accurate, I suppose, but it is all a matter of comparison.  On last night's "Daily Show," for example, Jon Stewart noted that there is still a lot of chatter on the far extr