Dorf on Law

By Mike Dorf The death of Nelson Mandela has understandably led to a worldwide outpouring of grief and admiration for a true giant.  Here I want to add a lawyer's take on how to think about his place in history. As the title of this post suggests, it is tempting to think about Mandela as one of the few Twentieth Century world-historical figures who successfully battled injustice for his people through the espousal of universalist principles and non-violence. I think that is broadly accurate but that it leaves out some nuance. Gandhi is sometimes said to have been an absolute pacifist.  After all, he opposed violence even by Jews against Nazis, as in this 1938  essay , and if one thinks that satyagraha is the right strategy in response to Nazis it's hard to see when one would advocate the use of force.  Still, the point is somewhat murky.  In Martin Buber's 1939 reply  to Gandhi, Buber quoted a 1922 speech in which Gandhi said that he would prefe...

-- Posted by Neil H. Buchanan When people see numbers with a lot of zeroes, they become very confused.  When those large numbers are preceded by a dollar sign, people become very confused and angry.  Exhibit A, of course, is the national debt.  Just say the words " trillion dollars ," and watch the eyes roll back in people's heads.  When it comes to college football and TV, you can almost see people's minds turn off as soon as they learn that billions of dollars are involved.  They are sure that something is wrong, but they are not sure what, or who, exactly is the problem.  But boy, is that a lot of money! In my Dorf on Law post yesterday , I returned to the fraught financial relationship between American universities and their football players.  I argued there (as well as in yesterday's Verdict column and previous writings, links to which appear in yesterday's post) that college football (and men's basketball) players should not be paid in cash...

-- Posted by Neil H. Buchanan In late 2011 and early 2012, I wrote a series of Dorf on Law posts ( here , here , here , and here ), and one Verdict column ( here ), discussing the argument that colleges should pay cash salaries to their athletes in money-generating sports.  Over the last two weeks, I have written three posts ( here , here , and here ) about how recent rules changes in professional and college football have been misunderstood, drawing an analogy (with the help of some readers) to the recent changes in the filibuster rules in the U.S. Senate. Obviously, I have not followed through on my vow from two years ago to stop paying attention to football.  Today, my Verdict column is again devoted to the question of how college football players are compensated.  My motivation in writing that column was two-fold. First, I felt the need to respond to a surprisingly large number of commentators who assert as fact that college football players are "paid nothin...

by Sherry F. Colb In my column for this week on Verdict , part 1 of a 2-part series, I begin analyzing the case of Burrage v. United States , which asks under what circumstances a heroin dealer may be held to have caused the death of his customer for purposes of a federal statute attaching an enhanced mandatory minimum sentence when heroin dealing results in death.  The column first explains different types of factual causation, including "but for" causation and "independent sufficient causation."  Under either of these tests, it appears that the defendant in Burrage  should have been acquitted.  The column next discusses the issue of proximate cause, the sort of causation that the law considers adequate to justify the attribution of legal responsibility. Let us assume that a heroin dealer did in fact cause the death of his customer, because his customer would not have died in the absence of the heroin sold to him by the dealer and did in fact die because h...

By Mike Dorf Today, Cornell Law School hosts a panel on Prof. Colb's book, Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans . As is customary with these faculty book celebrations, we will hear from three panelists, followed by a response from the author.  The panelists are: UCLA Law Professor Taimie Bryant ; Cornell Law Professor (and occasional DoL contributor) Bob Hockett ; and lawyer, activist/author/podcaster and adjunct law professor (at Brooklyn, Cardozo and Columbia Law Schools) Mariann Sullivan.  I'll be the moderator.  It's also customary at these events that the guest speakers do not give the honoree advance warning of what they're going to say and, because this is an academic forum, speakers almost invariably find that in addition to praising the book, they offer points of disagreement and criticism. (For an illustrative, albeit lengthy, example, you can watch the celebration of my last book here .) Given the ground rules, it...

By Mike Dorf Last week the SCOTUS granted cert in Sebelius v. Hobby Lobby and two related cases, which together raise the question of whether the Dep't of Health and Human Services (HHS) regulations implementing the Affordable Care Act--which exempt many religiously-scrupled employers from the obligation to provide their employees with health insurance plans that include contraceptive coverage but do not exempt large for-profit corporations--are invalid as applied to a closely-held for-profit corporation that is owned by persons with religious objections to providing contraception (because, in the lead case, some forms of contraception act as abortifacients). The case does not present a constitutional question. Under Employment Division v. Smith , the government's failure to provide religious exemptions from a general law does not give rise to a Free Exercise claim.  Instead, the claimants argue that the Religious Freedom Restoration Act (RFRA) requires exemptions. Reade...

By Mike Dorf Today is "Thanksgivingukkah," the extraordinarily rare--as in  once in 70,000 years --convergence of Thanksgiving and the first day of Hannukah. The strange confluence has provided pundits with the opportunity to promote oddball recipes like turkey corpse cooked in Maneschewitz wine or sweet- potato latkes. For me, as both a vegan and an ethnically-identifying-but-non-religious American Jew, the coincidence of these two problematic holidays provides an interesting opportunity for reflection. I find that the two holidays are in some ways mirror images: The core message of Thanksgiving was a pleasant lie but the holiday has become a horror show, whereas Hannukah's origins are terrible but it has become mostly harmless.  Let me explain. When I was in elementary school in the early 1970s, I was taught that the first Thanksgiving occurred in 1621 and it was a celebration of peaceful cooperation between native Americans (then still called Indians) and the ...

-- Posted by Neil H. Buchanan Last Thursday, I posted some thoughts here on Dorf on Law about the controversy over new National Football League rules that were passed before this season, which are part of the ongoing effort to try to reduce the carnage of injuries to offensive players, especially quarterbacks.  (OK, "carnage" is clearly too strong a word.  Carnage describes what happens to the animals who will be killed to be served on American dinner tables tomorrow, while we watch football players injure each other.  But I digress, and tomorrow's post by Professor Dorf will expand upon the question of how vegans feel about Thanksgiving). Whatever one thinks about the new rules (versions of which have also been adopted by the NCAA for college games), the prevalence of serious injuries in football is frightening.  After 11 games of a 16 game season, 32 NFL teams this year have placed a total of 47 quarterbacks on the injured reserve list.  In the college r...

By Mike Dorf In my latest Verdict column , I discuss filibuster reform in the Senate. I ask whether Democrats should fear that when Republicans next control the Senate, they will abolish what's left of the filibuster. I conclude that with respect to appointments, the filibuster systematically favors neither Republicans nor Democrats (assuming equal likelihood of control of the chamber over the long run, which is what one would predict in a two-party system). I also argue, however, that over the long run, the ability of 41-50 Senators to filibuster aids Republicans because, other things being equal, Republicans are more likely to win by preventing the government from doing anything than Democrats are. Even though "the era of big government is over," as President Clinton said, Democrats still favor bigger government than Republicans do--and that means that the ability to prevent Congress from doing anything is, on average, more useful to Republicans than Democrats. S...

-- Posted by Neil H. Buchanan This past Thursday was a bit of an odd day for me.  In writing my Verdict column , as I was trying to come up with a list of things that Republicans might offer to Democrats as part of "real bargaining" (as opposed to hostage-taking), I noted that "Democrats want Republicans to stop filibustering the President's judicial nominees."  Later in the day, when I wrote my Dorf on Law post , I described how the lack of a neutral baseline defining the rules of "true football" made recent complaints about rules changes in the NFL ring hollow. Several commenters on my DoL post noted immediately that my analysis there could easily apply to Republicans' complaints about the changes that Democrats had passed in the filibuster rules that day.  One commenter said that he assumed that I had intended the comparison.  I have to admit that I was not doing any such thing.  I had, in fact, not even been checking my usual news sites f...