Dorf on Law

-- Posted by Neil H. Buchanan Earlier this week, in a post titled " Government Size and (Non)Corruption ," Professor Dorf discussed a recent report that two doctors in Florida: (1) receive the highest Medicare reimbursements in the country, (2) are major contributors to the Democratic Party, and (3) according to the report in the Times , "have turned to the political system in recent years to defend themselves against suspicions that they may have submitted fraudulent or excessive charges to the federal government." As Professor Dorf suggested, the appearance of a connection between points #2 and #3 would, under a different set of campaign finance laws, actually pose a problem for the doctors.  Looks pretty sleazy, right?  But, in our system, there is simply no need for the doctors to do anything that would rise to a quid pro quo -- which, as Linda Greenhouse recently discussed , is now the only thing that the Supreme Court recognizes as corruption, even in t...

by Sherry F. Colb My column on Justia's Verdict this week analyzes a Minnesota Supreme Court decision, State v. Melchert-Dinkel ,  holding that the First Amendment precludes the criminal prosecution of someone for  advising or encouraging  another person to commit suicide, although the freedom of speech does tolerate a prohibition against someone assisting  another in committing suicide, even with words.  The issue arose in a case in which the defendant had reached out to two suicidally depressed people over the Internet by falsifying his identity (as a compassionate female nurse who also planned to commit suicide) and urging the two people to kill themselves by hanging in front of a web-cam, so the defendant/convict could watch.  Ultimately, both of the defendant's targets did kill themselves. The majority remanded the case to the trial court to clarify whether the conviction of Melchert-Dinkel rested on impermissible grounds (the advising and encour...

By Michael Dorf Last week brought news that doctors receiving very large Medicare reimbursements made very large campaign contributions to Democratic campaigns and PACs, and that in turn they may have received special consideration to avoid punishment. I haven't checked out the rightwingoverse reaction to the story, but it wouldn't surprise me if it went something like this: Aha! This sort of thing shows that government-funded health insurance is rife with fraud and therefore people (like those left-wing crazies at Dorf on Law) who argue for Medicare for All would simply drive up the price of health care. Well, okay, they probably aren't mentioning DoL expressly, but I would be surprised if that's not the general reaction. Here I want to take it seriously. My first reaction is that this is chiefly a corruption problem, rather than a government spending program. Supreme Court decisions like Citizens United , and now McCutcheon , hold that wealthy individuals and...

By Michael Dorf The latest issue of the New York Review of Books  includes a review by Cass Sunstein of the new book, Would You Kill the Fat Man? The Trolley Probelm and What Your Answer Tells Us About Right and Wrong , by David Edmonds. (Only the very beginning of the review is available for free online. The rest is behind a subscription paywall, so if you're not a NYR subscriber, you'll have to trust me for my description.) The title of the book refers to a famous hypothetical scenario in moral philosophy, a variant of the so-called "trolley problem." In this post, I'll very briefly explain the problem, and then suggest that Sunstein's otherwise fair-minded review omits (express) discussion of an important feature of moral reasoning. A) In the classic trolley problem, you see a trolley hurtling out of control towards five people tied to the track. You stand by a switch. If you throw the switch, you can divert the trolley to a second track, but there is ...

-- Posted by Neil H. Buchanan Yesterday, in my Verdict column and here on Dorf on Law , I argued that now is the time to push for a single-payer national health care plan, one version of which is Medicare for All , which would simply expand the covered population of the popular Medicare program from over-65-year-olds to everyone, regardless of age. The first-year enrollment numbers in the ACA's new health care exchanges -- the much-touted 7.1 million, which met and exceeded the (somewhat arbitrary) 7 million target -- were significant because that was the last moment at which the system could have simply failed on its own terms.  That is, we have already seen the implementation of certain aspects of the law, such as the (very, very popular) inclusion of children up to age 26 on their parents' policies.  Such features could have been repealed, as a technical matter, without destroying the law itself. The only question would have been the politics: If Republicans had dec...

-- Posted by Neil H. Buchanan Although I have occasionally mentioned single-payer health care, and done so quite approvingly, I am not sure if I have ever directly and simply said that I support it.  Whether or not I have done it before, I did so quite explicitly today in my Verdict column .  To the extent that I am doing something in that column beyond merely stating the obvious (that I have been in favor of single-payer all along), the timing of the column is probably what matters most, for reasons that I will explain in this post. The big news in the last few weeks on the health care front has been the surprising success of the Obama Administration in getting more than 7 million people to sign up for coverage on the new health care exchanges.  This is big news, because it undermines the only real plank of the Republicans' 2014 electoral platform.  (Sorry, but "Obama the imperial president " is just not going to fly.)  Seven months before the mid-term ele...

By Michael Dorf Flash Boys: A Wall Street Revolt , is the latest book by Michael Lewis, and like his other work--e.g.,  Liar's Poker; Moneyball; The Blind Side; The Big Short --it's a great read. Flash Boys  was previewed in last week's NY Times Magazine , and has been all over the news, so I will only summarize it very briefly here, before coming to my two main points. Flash Boys tells how, mostly since the onset of the Great Recession, stock trading has become systematically rigged so as to take money out of the pockets of investors and put it into the pockets of "high frequency traders" (HFTs) and the proliferating exchanges and big banks that (literally) rewired the trading rules so as to advantage HFTs.  Lewis explains that the HFTs use superfast computers and connections to deploy various arbitrage schemes that add no value to the market. The scheme that gets the most attention in Flash Boys is electronic front-running. Here's how it works. Let...

by Sherry F. Colb First, the good news.  The New York Times ran a prominent story about the company "Beyond Meat," and the story highlighted the fact that the flavor and texture of the company's plant-based chicken strips are indistinguishable from the taste of the charred flesh of an actual slaughtered bird.  This is progress.  So what's the bad news?  The bad news is that the person tasked with writing the story is plainly neither vegan nor favorably inclined towards veganism,, and she therefore presents the story in a way that treats "real" chicken as the gold standard.  And by "real" chicken, I mean the actual muscle tissue of what was once a living and breathing animal before she or he was slaughtered at the age of seven weeks old, at which time birds still make the "cheep cheep" sound of baby chicks, because they are, in fact baby chicks. How do I know that the reporter is neither vegan nor even apparently open to veganism and t...

By Michael Dorf My latest Verdict column criticizes  McCutcheon v. FEC , last week's SCOTUS ruling that invalidated the federal aggregate campaign contribution limits. I use the Netflix series  House of Cards as a vehicle for exploring the benighted view of politics held by a majority of the Roberts Court. Here I want to focus on two lines that appear in the plurality opinion, but before coming to the lines in question, let me put them in context. In McCutcheon , the plurality repeats and reinforces a view that has been expressed in prior cases as well--that the only government interest that can provide sufficient ground for overcoming the free speech rights of donors to political campaigns is the interest in avoiding quid pro quo corruption or the appearance thereof. As I explain in the column, and as Justice Breyer argues at length in dissent, even accepting the premise, the McCutcheon plurality applies an overly narrow view of what constitutes quid pro quo corruption o...

-- Posted by Neil H. Buchanan In my Verdict column and Dorf on Law post earlier this week, I expressed a decidedly negative view of university administrators.  In my telling, they are engaged in a relentless campaign to destroy higher education, thus undermining the modern university's role as a pillar of the Enlightenment.  Although there is all too much evidence that my description accurately captures the trend among university administrators, many of whom are intensifying efforts that have been ongoing for decades, my comments should definitely not be read to say that it is easy to run a university well, or that all administrators are acting in bad faith. For those administrators who understand the importance of university stewardship (and there are many, many such administrators), the challenges of making universities work is never an easy one.  I have enough self-awareness to know that deans, provosts, chancellors, and presidents are doing jobs that I would a...