Dorf on Law

-- Posted by Neil H. Buchanan Earlier this week, Carolina Academic Press published my new book: The Debt Ceiling Disasters How the Republicans Created an Unnecessary Constitutional Crisis and How the Democrats Can Fight Back .  It is being published exclusively as an e-book, and it is currently available through Amazon in the Kindle format.  We anticipate that it will be available through Apple and GooglePlay soon. The official publication date was Monday, September 9, which we chose because that was the date on which Congress returned from recess, supposedly to work on legislation to keep the government running past the end of the fiscal year on September 30, and also supposedly to deal with the debt ceiling.  Remember that the government officially hit the debt ceiling on May 19, the moment when the debt ceiling was revived after its Republican-inspired hibernation , which means that we have been operating under "extraordinary measures" for months. Here are the s...

By Mike Dorf Retired Justice Albie Sachs of the Constitutional Court of South Africa was visiting Cornell for the last few weeks as the A.D. White Professor at Large--a university-wide designation under which he will make a few more such visits during the next few years.  For those unfamiliar with Sachs, he is simply a giant, a world-historical figure who was a key figure in the anti-apartheid struggle (losing an arm and the use of one eye when he was bombed by agents of the regime, as well as spending years in exile and prison), a leading drafter of South Africa's post-apartheid constitution, and, as a Justice, one of the key figures in setting the path of its construction.  Sachs is also a wonderful person, a good man as well as a great man. And so, naturally, I write to criticize him!  Or at least to register a reservation about something he said. Last week, Justice Sachs gave a lecture on the Fourie case --the 2005 judgment of the SA Constitutional Court, autho...

By Mike Dorf Over the weekend, I wrote a column asking whether President Obama might bomb Syria even if Congress voted down the resolution authorizing him to do so.  The column was finalized and went live yesterday.  We live in world of short news cycles and so events have arguably already overtaken the column, although I think that it says some things that have salience beyond the immediate crisis. In any event, the action now focuses on a Russian-brokered proposal for Syria to turn over its chemical weapons to an international team.  With the endorsement of Russia, China, France, the U.S., and perhaps the Assad regime itself, the proposal could well render the prospect of a missile strike moot.  That would surely be for the good.  An internationally supervised transfer will be much more effective at preventing a future chemical strike by Syria and securing the chemical weapons than would be the necessarily cruder tool of a U.S. cruise missile at...

By Mike Dorf The ancient maxim  primum non nocere --first, do no harm--has been taught to new medical doctors for many years.  Whether the medical and pharmaceutical industries in fact observe this principle is open to serious doubt, but they ought to.  It is a basic principle about modesty and unexpected consequences. But it is more than that; it is also a principle of moral responsibility, and one that the people who are pushing for U.S. military action in Syria appear to have mostly overlooked.  Let me explain. As I have written before, I believe that the proposed use of force by the U.S. to punish Bashar al-Assad's regime for its ghastly use of chemical weapons is clearly illegal under international law and, although I also believe that there are some circumstances in which it is appropriate to violate the law in the service of the greater good, I do not think that the Obama Administration has come close to making a persuasive argument that this is such a c...

-- Posted by Neil H. Buchanan Back in February, as Professor Dorf and I were completing our third article about the debt ceiling , we spoke at Columbia Law School about the issues that are at stake in the debt ceiling confrontations.  We repeated our argument that the President must, as a constitutional matter, issue sufficient debt to fund the spending that Congress has appropriated (while collecting as much tax revenue as Congress has authorized), even if doing so requires him to issue debt in excess of the statutory ceiling.  In short, we summarized our articles, as we had been asked to do. In a Dorf on Law post written immediately after that trip, I summarized some of the discussions during the Q&A of our main talk.  One listener asked about the political risks that the President would face in following our advice, suggesting that (as I summarized the point) "those political risks should themselves be counted among the issues that a President can or should ...

-- Posted by Neil H. Buchanan In an exchange of Dorf on Law posts recently, Professor Dorf and I expressed our disagreements with various philosophical justifications for orthodox economic, cost-benefit approaches to analyzing social problems.  (My posts are here and here .  Professor Dorf's post, sandwiched between those two, is here .)  The immediate motivation for our posts was a NYT column by famed ethicist Peter Singer, who offered a highly stylized, loaded numerical example clearly designed to show that some moral dilemmas should not be especially controversial. In particular, Singer described two alternative recipients of a philanthropist's money: a fund that will be used to build a new wing on an art museum, or a fund dedicated to curing victims of a blindness-causing disease called trachoma.  Properly deployed, Singer informs us, $100 could prevent one person from experiencing 15 years of blindness.  Singer then says that, even at ten times the co...

by Mike Dorf Professor Colb's latest Verdict column discusses the recent ruling by the New Mexico Supreme Court in Elane Photography v. Willock .  As she explains, the NMSC rejected a free speech objection from a wedding photographer who was required by the state's public accommodations law to provide services on an equal basis to same-sex couples as to opposite-sex couples.  As the column notes, my colleague Steve Shiffrin and I filed an amicus brief in the case, urging the court to rule as it did--so I am pleased with the outcome.  Here I want to explore a possibility that Prof. Colb raises at the end of her column. The photographer argued that she was not discriminating against anyone on the basis of sexual orientation; she just didn't want to be compelled to express approval (through flattering photographs) of same-sex marriage.  The court rejected that argument partly on the ground that discriminating against same-sex marriage is tantamount to discrim...

by Sherry F. Colb First, a bit of self-promotion:  I spoke with Erin Red for her podcast, Red Radio, and you can listen to it here , if you like. Now, to the topic at hand.  I realize that the title of this post will sound strange to many people.  Of course fish "count" as animals.  They are not, after all, plants, fungi, or minerals, right?  My question, however, arises from an observation that I have made as a vegan:  Many people do not consider fish to be "animals" and thus believe that eating fish might be consistent with being vegan. At a dinner one evening, for example, one of the people with whom I was dining asked me what "vegan" means.  I explained that it means that I choose not to consume animal products, including dairy and eggs (as well as wool and leather).  She then asked what's wrong with dairy and eggs, wondering whether I believe that life begins at conception when it comes to a newly fertilized chicken egg.  At th...

By Mike Dorf Today's NY Times includes a story about Justice Kennedy by Adam Liptak: Surprising Friend of Gay Rights in a High Place .  In addition to quoting me a number of times (shameless self-promotion accomplished!), the piece includes the quotation from Justice Kennedy that I've used to title this post: "Freedom is always a work in progress."  That line is susceptible of two, contradictory, interpretations.  Justice Kennedy might be saying that it takes time to accomplish full liberation, and so marriage equality advocates should not expect the SCOTUS to find a general right to same-sex marriage (SSM) in the very near future.  Or he might be saying that he and the Court are already prepared to complete the task. Evidence for the former view might be found in the federalism-focused language of Justice Kennedy's majority opinion in  United States v. Windsor .  As Chief Justice Roberts wrote in dissent, that language indicates that the majority sees ...

By Mike Dorf Suppose that President Obama and Secretary Kerry agree with  my recent post  arguing that the planned missile strike on Syria without an invitation for protection from a country that has been attacked (such as, perhaps , Turkey or Israel) or UN Security Council Authorization, would plainly violate international law.  On what grounds might they justify doing it anyway?  I can think of three possible sets of reasons, each problematic in its own way. (1) They don't give a damn about international law.  That's a fair description of at least some people who worked in the Bush Administration--although even most of them went through the motions of trying to argue that their policies complied with international law.  In any event, I don't think it's a fair account of Obama, Kerry and their underlings. (2) They realize that there is not now a customary international law norm permitting individual sovereigns to use military force on humanitarian gr...