Dorf on Law

By Bob Hockett This past Tuesday's off-year election results, followed by Wednesday's RNC decision no longer to endorse primary candidates, followed in turn by Thursday's and Friday’s bemusing, astroturfed "tea party" assaults on the US Capitol, call to mind a disturbing, if less amusing, precedent. It is often observed that the seeds of the trouble with theocratic insurgents now faced by Pakistan were sewn years ago by elements in the Pakistani government itself. How? Via the fostering, training, organizing and financing of the Taliban and associated theocratic movements as tools in the Pakistani intelligence service's perceived rivalry with India and, somewhat less intensely, neighboring Shiite Iran. Pursuant to an all too familiar "blowback" dynamic, the "monster" that Pakistan nurtured ultimately grew out of hand to the point not only of consuming Afghanistan, but now of threatening to consume Pakistan itself. Acid attacks upon w...

By Mike Dorf In my pos t on Monday, I promised to come back to a practical question raised by Steve Shiffrin's book, The Religious Left and Church/State Relations .  Shiffrin argues that the religious left is better positioned than the secular left to contend with the religious right over church-state separation issues.  Although Shiffrin does not make the argument, one might extend the logic to other issues as well.  If the problem with public reason is that it fails to capture all of the sources of value that inform most Americans' judgments about basic issues of political justice, then we might expect public reason to fail not only with respect to church-state issues but also with respect to other issues.  Thus, one might think that the best way to meet the arguments of the religious right on abortion and gay rights (to name the two social issues of greatest concern to the religious right) would be to send the religious left, rather than the secular left, into ...

-- Posted by Neil H. Buchanan In a particularly good example of the value of blogs and comment boards, my latest FindLaw column (available here later today) picks up on comments from two Dorf on Law readers who responded to my post on October 22. In that post, I had discussed how to protect people against abuses by credit card companies, banks, mortgage companies, etc. One reader raised the point that it is possible to use equitable doctrines of contract law (especially unconscionability) to rein in financial actors. Another reader suggested that creating a regulatory agency (the proposed Consumer Financial Protection Agency, which I endorsed) would be arguably better for business because it would reduce the (mythical) tsunami of lawsuits that is bringing down American businesses. In today's FindLaw column, I analyze the choice between regulation-by-lawsuit and regulation-by-executive-agency. Both are forms of regulation, because both necessarily involve the government in dec...

By Bob Hockett The Supreme Court heard oral arguments Monday in a fascinating case that DoL readers might find particularly interesting in a time of financial turbulence. The case is Jones v. Harris Associates, LLP, No. 08-586, wherein plaintiff, a mutual fund investor, challenged fees charged by the fund's investment advisor under Section 36(b) of the 1940 Investment Company Act. The case is of interest not only for a number of doctrinal and economic reasons, but also for the two judges it pitted against one another below. For the case finds its way up to SCOTUS after a Seventh Circuit decision not to rehear the case en banc after first finding for the defendant. And that rehearing decision split 5-5 with Chief Judge Easterbrook writing for the winning side in the dispute, and Judge Posner writing for the losing side. (The eleventh judge recused.) Of additional, albeit related interest is the cast of amici who filed briefs with the Court, which constitutes a partial Who's W...

By Mike Dorf Over on FindLaw, I have now posted my second column in my two-part series on objections to the individual mandate.  In this one, I tackle the question of whether there is affirmative power in Congress.  My conclusion: Yes, under either the commerce clause or the taxation power.  I also say that members of Congress should satisfy themselves that this is the sort of thing that is properly within their purview. I don't have anything to add here about the federalism point, but I do want to say one more thing about the libertarian objection, which I addressed in my prior column and two blog posts ( here and here ).  There is a version of the libertarian objection that I do share: Namely, that the government should not be dictating healthy behavior.  Suppose, for example, that Congress included as part of its health reform legislation a provision requiring all Americans to see a doctor and then to exercise according to a customized age/height/weig...

By Mike Dorf On Friday, Cornell Law School celebrated the publication of my colleague Steve Shiffrin 's new book, The Religious Left and Church/State Relations .  I've discussed much of the underlying work with Steve (whom I greatly admire) but I must confess at the outset that I haven't yet read the book (though I plan to do so), and so these comments are based on the panel.  It featured commentary by Kent Greenawalt , Sally Gordon , and Bernadette Meyler . Shiffrin argues that the religious left is better positioned to respond to the religious right than is the secular left.  By the "religious left" he more or less means to refer to people who self-identify as religious and who support separation of church and state at least in part based on their religious convictions. Shiffrin's pragmatic case notes that the great majority of Americans have some religious convictions, and so arguments that banish such convictions from the public sphere--as the Rawlsian...

By Mike Dorf In response to my FindLaw column and accompanying blog entry last week on the libertarian objection to the proposed individual mandate in various pending health care bills, I received a number of emails and came across various commentaries on the web taking issue with my view.  Here I want to respond to a couple of what I think are clearly misguided objections and then unpack one that, in my view, has more bite. 1) Some critics accused me of ignoring what they regard as the best objection to the individual mandate--that there is no power in Congress to require it.  (E.g., here .)  Yet I quite clearly say at the beginning of the column that there are two primary objections to the individual mandate, and the second one contends "that the federal government lacks the authority under the Constitution to impose the mandate or to penalize those who do not comply."  I then say that I will object this second objection--an objection that constitutional law...

Posted by Neil H. Buchanan [Note: The first billboard that I saw when I arrived in Austria earlier this week was for Burger King (advertising Der Whopper), which was grimly funny from the standpoint of American cultural imperialism but simply grim for me as a vegan. I am tempted to write this post about being a vegan in a foreign land, but I'll save that for perhaps another day.] This month's issue of The Progressive (contents apparently unavailable online to non-subscribers) includes an interview with Joseph Stliglitz, the Columbia economist who is perhaps best known for his fierce attacks on the economic orthodoxy known as the IMF-Washington Consensus. Stiglitz, who also won the quasi-Nobel prize for his brilliant work on the shortcomings of markets due to imperfect information, has spent the last few years arguing that the neoliberal prescriptions (deregulating financial markets, radically reducing social safety nets, etc.) that the US and its international arms impose on...

Posted by Sherry F. Colb My column on FindLaw today focuses on conservative critiques of the hate crime bill that President Obama is scheduled to sign into law today.  The law would extend federal hate crime status (subject to federal prosecution) to otherwise criminal acts that involve victims selected on the basis of sex, sexual orientation, and disability.  Some critics have suggested that hate crime laws amount to "thought crime" laws because they differentially punish conduct on the basis of what's going on in the perpetrator's mind.  My column explains why this critique is ill-founded and would, in any event, prove too much for the critics' own taste. In this post, I want to raise a distinct question about hate crime laws, which is whether it makes sense to single out classification (e.g., selecting a victim because he is gay) rather than underlying purpose (e.g., harming a person belonging to a group you hate). Consider an example.  A robber might de...

By Mike Dorf In a speech last week at a Columbia University conference on academic freedom, University of Chicago President Robert Zimmer made a number of sensible points about the value of academic freedom, including the observation that the general principles of academic freedom shared by modern universities will be implemented differently at different institutions depending on their respective histories and cultures.  In particular, he noted that for his own university, the principles articulated in a 1967 report by constitutional law professor Harry Kalven are especially salient.  Zimmer pointed to Kalven's statement "that the University, as an institution, should take no political positions and should remain neutral on such matters (except of necessity those in which it is a direct party), in order to ensure that [it has] a maximally open environment."  Here I want to suggest that, as applied by the University of Chicago, this principle is problematic. Zimmer ...