Dorf on Law

By Mike Dorf My latest Verdict  column discusses a recent decision by the Supreme Court of Israel invalidating a law that exempts ultra-orthodox Jews from military service on grounds that the law violates the equality rights of the  Israelis who do not get the exemption.  After explaining the ruling, I use it as a springboard for discussing a couple of issues in the U.S.: affirmative action and religious exemptions.  Here I want to add a few thoughts on the former. As I explain in the column, the dissent in the Israeli case argues that laws benefiting minorities shouldn't be subject to judicial invalidation because the majority that is disadvantaged can use the political process to gain redress, and thus the heavy artillery of judicial review should be reserved for laws that disadvantage minorities.  That argument should be familiar to Americans because it is similar to an argument made by liberal supporters of race-based affirmative action in support of a ...

By Bob Hockett Neil's characteristically brilliant and trenchant posts over the past week on the American romance with home-ownership prompt me to say a bit more on the subject myself. The following observations are of course not offered as counterclaims to Neil's claims, but as complements to them - even as this post itself is best seen as a compliment to Neil. So the first thing to say, if only in passing, is that Neil is quite right in recognizing that the remark made in my last post , to the effect that I did not wish to offer aid and comfort to those who characterize the recent mortgage crisis as proof that the non-wealthy are not fit to own homes, was not occasioned by anything Neil has argued here in previous posts. Those posts have indeed been very important interventions in the national conversation concerning finance, and I would never wish to be taken to be associating them in any way with another class of interventions by others which I did have in mind...

-- Posted by Neil H. Buchanan I have been traveling through Australia for the past week or so, where I have given talks at Monash University in Melbourne and the University of New South Wales in Sydney. Each time, I delivered a version of " Will the United States Government Ever Again Have a Functioning Budgetary System? " which I first delivered at the University of Hong Kong last week. It has been intriguing to try to describe U.S. budget politics to foreign academics, even those who (like many Australians) are quite familiar with U.S. law and politics. Yesterday, for example, after I noted that the largest (by far) impediment to long-term budgetary stability for the U.S. was lack of control over our health care costs, I found myself trying to describe just how inefficient the U.S. health care system is. After describing the basic numbers and trying to provide an analytical account of how much administrative waste is built into our system, I ended up sharing a personal s...

Posted by Sherry F. Colb In my column for this week, I take up the question of compensated kidney donation (i.e., the sale of one's extra kidney).  I raise the question because of the legality and increasing popularity of paired kidney exchanges. Paired exchanges occur when a pair of people, a willing kidney donor and a patient in need of a kidney transplant (but not a match for the willing donor), join with other such pairs until every person in need of a kidney is matched with one of the willing donors in the group.  This arrangement allows people to donate kidneys to save their loved ones even though the two people in the pair are not a match for each other. The New York Times recently ran an article  about paired-exchange chains, and the tone of the article was extremely positive and laudatory, a tone that I think most readers would find appropriate.  I suggest in my column that it may therefore be time to legalize kidney sales, which I argue do not differ...

-- Posted by Neil H. Buchanan In my post on Monday , I responded (only somewhat defensively) to Professor Hockett's most recent Dorf on Law post , in which he offered some extremely helpful thoughts on how best to handle the ongoing problem of mortgage foreclosures on U.S. homeowners. He described three categories of distressed borrowers, each of which calls for a different policy remedy. I continue to think that his analysis represents a major breakthrough that might allow us finally to make real progress on the foreclosure problem. My complaint, such as it was, involved Professor Hockett's comment that some people (ahem!) might "throw the baby out with the bathwater" and claim that the foreclosure crisis proves that individual home ownership is a fundamentally bad idea. I do, in fact, believe that individual home ownership is a bad idea, and that the current problems at least strongly demonstrate some of the reasons that people generally should not be single-asse...

By Mike Dorf If you had asked me just a month ago to list issues that Republicans might use to try to appeal to conservative voters, I'm pretty sure that contraception would not have made my top 20.  What would have?  Well, let's see, there would be the social issues: Abortion; same-sex marriage; school prayer; affirmative action; rights of criminal defendants; teaching of creationism; etc.  There would have been the anti-government issues: bailouts; deficits; debt; size of government; too much regulation; global warming is a hoax; Obamacare is a conspiracy; taxes; taxes; and taxes.  There would have been appeals to patriotism: Dems and Obama in particular are weak on defense; multilateralists; Europhiles; insufficiently supportive of Israel; apologists for America; etc. And maybe there would be some made up non-issue issues like flag burning, the Pledge of Allegiance, and the "Ground Zero Mosque."  But contraception?  Really? Acco...

-- Posted by Neil H. Buchanan In a recent post here on Dorf on Law , Professor Robert Hockett discussed some important policy analysis and advocacy in which he has recently engaged (with co-authors), including a legislative proposal to help homeowners who are unable to stay current on their mortgages. Hockett's work is in that category of insightful analysis that seems screamingly obvious as soon as a smart person says it, but that was not being said at all until that person came along. The starting point of Hockett's analysis is that troubled mortgagors can be usefully grouped into categories, and that different policies will be helpful for people who fall into the different categories. As he points out, "one size fits all" really makes no sense here. Until Hockett and his co-authors got to work, however, one size fits all was really all we were getting -- and it was failing miserably. Here is my thumbnail summary of Hockett's categories of troubled borrowers...

-- Posted by Neil H. Buchanan In my new Verdict column , I return to the question of whether the United States government is somehow compromised by having about one-tenth of its total debt held by the Chinese government. (Yes, that is correct: one-tenth. All of the talk about how we owe all of our debt to the Chinese is simply loose talk.) The answer is -- as I have argued multiple times -- a resounding no. What is different about this latest column is that I also look at the issues from the perspective of Chinese citizens, based on some conversations that I had with a few Chinese scholars during my recent stay in Hong Kong. Chinese citizens -- like Americans -- apparently express serious misgivings about their government having loaned money to the U.S. government, but their concerns are no more valid than are the silly claims on our side that “the Chinese now own us.” In the column, I mention in passing the oft-heard argument that the Chinese government might be ab...

By Mike Dorf When I first heard that Rick Santorum said he wanted to "throw up" when he read then-candidate JFK's famous  religion speech , I had an admittedly churlish reaction of the sort I can only publish on a blog that bears my own name and in no way implicates anyone else with better judgment: Well, that makes sense, I thought.  If you're Rick Santorum, getting people to associate your name with vomit would actually be a step up from the Google bomb. But I digress.  So anyway, what made Senator Santorum want to throw up?  It was Kennedy's endorsement of an "absolute" separation of church and state.  And I thought: Oh come on.  Kennedy can't have said he endorsed an absolute separation of church and state.  Nobody endorses an absolute anything.  But then I looked it up and sure enough, Santorum was right.  Here's what JFK said: "I believe in an America where the separation of church and state is absolute."  And that's not a...