Dorf on Law

What, exactly, is the relation between socially conservative activism and the economy? Under one view---which we can associate with Thomas Frank's What's the Matter with Kansas? --- tough economic times provide the opportunity for conservative political leaders to appeal to people who are suffering economically by scapegoating cultural elites (the sort of people who favor abortion rights and legalizing same-sex marriage) as the cause of their problems. No doubt there is some of that going on now, and if the economy were to become substantially worse, then all manner of dangerous social movements might arise, many of them offering simplistic solutions that scapegoat various minority groups. But there is another effect at work as well: So long as people hold out some reasonable hope that the economy will get better, they will reward political leaders who appear to be focusing on getting us closer to economic recovery. Under this logic, politicians who focus unduly on cultural ...

I've just returned from the roughly biannual Constitutional Theory Conference, hosted this year by the USC Gould School of Law. It was a good time for all involved but I couldn't shake the feeling that our debates over such questions as how much weight should be given by U.S. Supreme Court Justices to original understanding in constitutional interpretation, were largely inconsequential because of the marginal role the U.S. Supreme Court plays in American law and policy. Of course I don't mean to deny that Supreme Court decisions can have enormous consequences. Bush v. Gore is an obvious example. But note that in Bush v. Gore the importance of the case stemmed from the particular stakes rather than any larger point of law. When the Supreme Court has taken a stand in recent years---as in the cases arising out of the Gitmo detentions, it has mostly taken the position that Congress needs to speak more clearly. Even the detainee case that was most constitutionally freighte...

Last week, I argued that the emergence of the economic crisis has made it especially unfortunate that the current crop of op-ed columnists for The New York Times (with two notable exceptions) is not up to the task of discussing the critical issues of our time in anything but superficial terms. While training in economics is neither necessary nor sufficient to allow one to discuss the crisis in a helpful way, it is turning out that the talents of the Times's current opinion columnists are particularly ill-suited for writing about the economic crisis in a way that enhances public discussion of the issues. A particularly frustrating case is Maureen Dowd, whose columns tend toward (sometimes genuinely funny) barbed comments about political personalities in the service of an overall message of cynicism about the culture in Washington. For me, these columns amount to a guilty pleasure (an assessment in which I suspect that I am not alone). Unfortunately, Dowd is so embedded in the p...

[Note: In my post on Wednesday, I stated that my next post would "address some of the more silly comments about economics that some of the Times op-ed writers have offered recently." I will publish that post on Monday morning.] One of the more amusing aspects of the debate over the fiscal stimulus package and President Obama's first budget has been the attempts by Republican politicians to score points by decrying line items from the budget that (they think) sound silly, hoping that voters will conclude that Democrats just want to waste money on bizarre projects with no social value. These items are then picked up by the echo chamber and turned into momentary causes celebres . (Being a liberal, I am compelled to use a French phrase.) High-speed rail from Disneyland to Las Vegas? How horrible! As this example demonstrates, it is not even necessary that the program actually have been proposed by any real politician, only that it sound outrageous. What is both interes...

There was little surprise in the Court’s announcement of Entergy v. Riverkeeper yesterday. By a margin of 5-1-3, the Court upheld EPA’s interpretation of Clean Water Act (CWA) § 316(b). CWA 316(b) requires EPA to establish performance standards for so-called “cooling water intake structures,” the sometimes-giant intakes of water that power plants and other industrial sites operate which tend to obliterate the life in the water that passes through them. The text of the Act tells EPA that it should set such standards to require the “best technology available for minimizing adverse environmental impact.” EPA had concluded this language allowed it to weigh the costs of various technologies against the environmental benefits they would produce—an interpretation many criticized as unfaithful to the “legislative intent” and/or true meaning of the CWA. The technology EPA reviewed ended up being tiered as between new installations of a certain (large) size, large existing-, and small exis...

President Obama wants to negotiate further reductions in the U.S. and Russian nuclear arsenals. (Story here ). Why? An attack by either country using just one nuke would be devastating, and the use of a dozen or so could end human civilization as we know it. (Modern nukes are MUCH more potent than the bombs that caused horrific consequences at Hiroshima and Nagasaki.) The difference between the current limit (2,200 warheads) and the proposed new limit (1,500) is thus, by itself, pretty meaningless. So it has to serve some other function. Here are some possibilities: 1) It's good symbolic politics. A summit meeting at which President Obama and President Medvedev and/or PM Putin sign a nuclear arms control pact could begin to repair the frayed relationship between the two former superpowers (yes, get used to it), and enhance the international standing of each, reminding the world (i.e., China) that these are still the most powerful countries in the world (as measured by how m...

On FindLaw today, I have a column discussing the case of Sycloria Williams, a woman who sought an abortion in her 22nd or 24th week of pregnancy and -- due to her doctor's failure to arrive in time -- delivered her fetus, reportedly still alive, on her own, at the clinic. After delivery, a co-owner of the clinic allegedly cut the umbilical cord and then placed the live fetus into a biohazard bag, which she then allegedly sealed and discarded (but which was subsequently discovered by police after the fetus's body had begun to decompose). The column takes up the question of what exactly makes this case as disturbing as it is, by distinction both from the abortion that Williams had sought to have, and from the abortions that an overwhelming majority of women who terminate their pregnancies undergo. My objective in this blog post is to focus on the perspective of Sycloria Williams, the woman who went to the clinic to have an abortion. Quite apart from the morality or immorality...

In my "Obeying Our Overlords" post on Monday, I mentioned in passing that the New York Times op-ed columnist Nicholas Kristof had recently been a panelist on a public affairs show, a show on which he discussed inter alia some questions about international economic policy. In a particularly uncharitable moment (even for me), I then noted that Kristof was "completely unqualified to speak on the subject." This suggests a related question: On what subject, if anything, is Nicholas Kristof qualified to speak or write? Which, in turn, raises the question of what qualifies any op-ed columnist for his or her job. In honor of "fools' day," I thought it worthwhile to consider the nature of the newspaper op-ed and its practitioners, particularly at the highly influential New York Times. I should say that I am a bit uncomfortable in going down this path, not because of the obvious hypocrisy of a blogger opining about other people's rights to opine. Th...

The most important provision of the Constitution is the one giving each State an equal voice in the Senate. How do we know? Because while everything else in the Constitution can be amended by a 2/3 vote in each house of Congress followed by ratification by 3/4 of the States, the Constitution provides a special rule for equal representation in the Senate: "no state, without its consent, shall be deprived of its equal suffrage in the Senate." And yet, there is poor Minnesota, which for all of the current session of Congress thus far, and potentially for months to come, has had but one Senator, while the courts sort out Norm Coleman's challenge to Al Franken's razor-thin victory. Mostly this is a problem for the Democratic Party, which would have 57 Senators if Franken were seated. Add in the two Independents who caucus with the Democrats---Bernie Sanders, who is effectively a Democrat, and Joe Lieberman, who is pretty close on most issues---and that would mean that ...

Earlier this month, the premier of China gave a speech in which he expressed concern about the management of the U.S. economy. In the context of his country's holding of over a trillion dollars in U.S. Treasury securities, the remarks were widely seen as saying, in effect, "We own you now. Do what we tell you or we'll cut you off. Then you'll really be in trouble." Despite plenty of evidence that the Chinese leader's comments were bluster and aimed at his domestic political audience, this story has gained some currency in the U.S. The comments were immediately seized upon by U.S. pundits, politicians, and others to support their contentions that U.S. fiscal policy must become more "responsible" by reducing U.S. deficits and debt as soon as possible. Shortly after his remarks were reported here, I attended a conference on budget policy in which people discussed the "warnings" as if they were important. Last night, by chance I watched ...