Dorf on Law

In tomorrow’s hearing on Cass Sunstein’s nomination to head the Office of Information and Regulatory Affairs, we are sure to see some preening. The right opposes him for what he has argued on behalf of animal rights. The left opposes him for championing cost benefit analysis. (Bentham would cheer the President for this one, no doubt.) Sunstein’s offended just about everyone at some point in his long, distinguished career (funny how being a good academic will do that). Last year he argued that a President Obama ought not investigate or prosecute torturers while elsewhere arguing that states should shift to presuming consent to organ donation at death for all persons who don’t explicitly opt out. And so on. All of this would be good for a laugh if it didn’t involve one of the most important jobs in the world. OIRA is poised to become even more of a force in global risk regulation as we confront climate change, health care reform, and a suite of other potentially catastrophic publi...

In my post on Tuesday of this week, I discussed the Obama administration's recent proposals to change the taxation of foreign-earned corporate income. I concluded that the emerging debate about those proposals demonstrates that we might have reached the point where no tax policy changes are politically possible except those that make absolutely no one unhappy. Today, I will expand on that argument to suggest that the problem of political stasis has its roots in two basic phenomena: (1) Anything that can be called a "tax increase" is now political poison, and (2) It is always possible to oppose a tax increase by looking only at its possible negative consequences, ignoring the possible benefits of the tax increase as well as the possibly worse consequences that might follow if we reject the tax increase at hand. The tax changes that the administration has proposed are of two basic types, First, Obama's people are trying to close some fairly glaring loopholes in the law...

Jeff Rosen has just returned from overseas to discover that the blogosphere responded critically to his TNR piece on Judge Sotomayor. (Apparently he was in the part of London that does not have internet connectivity!) He has now fired off a reply . He begins by blaming his editors for picking a misleading title for his piece, which is at least a little odd because little of the criticism was directed at the title. He then defends his anonymous sourcing, to which I did not object but others did. He also provides some evidence raising questions about Judge Sotomayor's judicial temperment and tentatively pronounces her opinions good but not great. Eventually he comes to the footnote question, which, I'll admit, is hardly momentous for either Rosen or Judge Sotomayor. He says: Indeed, the footnote is hardly a model of clarity-and I can see why readers might not come to the same conclusion I reached. But the careful observers of the Second Circuit I talked to, who were famil...

Jeff Rosen's recent piece in The New Republic attributing criticism of Judge Sotomayor to unnamed prosecutors and clerks for other Second Circuit judges has itself come in for quite a good deal of criticism (quoted with links here ). I suppose reasonable people can differ over some of Rosen's methods but there is one aspect of the article that appears to bespeak inexplicable laziness on Rosen's part. I'm NOT talking about Rosen's disclaimer that he hadn't read enough of Judge Sotomayor's opinions to form an independent judgment about the quality of her work. That struck me as a fair admission; if the story were otherwise newsworthy, then it would be legitimate to run it with the disclaimer that it is a piece about what people say about her work, rather than an independent analysis thereof. The seemingly inexplicable error is the following statement in Rosen's article: Some former clerks and prosecutors expressed concerns about her command of technica...

In my post on Monday, I gave John McGinnis a hard time for what I considered a gratuitous criticism of Justice Souter's writing ("He was the worst writer on the court by a considerable margin.") In fairness to McGinnis, I should add that he is hardly the only person ever to have criticized the literary merits of Justice Souter's body of work. According to the common critique, Souter's writing is both unnecessarily archaic ("enquiry" in place of "inquiry") and convoluted in its sentence structure. I don't fully share that view, but I acknowledge it has some basis in fact. Here I'd like to examine the flipside: Good writing by Supreme Court justices. By my lights, any list of the best writers to have served on the Supreme Court would include: John Marshall; Joseph Story; Oliver Wendell Holmes, Jr.; Louis Brandeis; Robert Jackson; and Antonin Scalia. (Benjamin Cardozo would be on the list except that he wrote all of his best opinion...

One of the timeless problems in administering tax laws is that norms are often established by accident, with certain areas of the law unenforced and some loopholes left open long enough that the beneficiaries of the unintended largesse start to take for granted that they deserve to continue in their favored status. For example, a staple of the basic income taxation class in law schools across the country is the problem of employee fringe benefits. Not taxing such benefits raises horizontal equity problems and creates perverse incentives, with employers and employees being willing to exploit non-enforcement of taxes on, say, free meals at work by substituting untaxed benefits for taxed cash income. Tax professors thus are left to explain the messy responses over the years from Congress, which has attempted to adjust the tax rules to take reality into account while trying not to allow the tax base to be completely eroded. The joys of sections 119, 125, and 132 of the I.R.C. are among...

In my latest FindLaw column , I discuss the Supreme Court's recent decision in FCC v. Fox Television Stations, Inc. , which upholds the FCC's "fleeting expletives" rule against an administrative law challenge. Among other things, I call attention to the peculiarity that Justice Scalia's opinion for the Court uses the terms "S-Word" and "F-Word" in place of "shit" and "fuck" respectively. Here I'd like to explore another point about profanity that I don't address in the column. In challenging the FCC policy, Fox and the other broadcast tv network s argued, among other things, that profanity (at least of the fleeting variety) is so commonplace, that it's futile to try to protect the sensibilities of children by keeping it off prime-time tv. The Second Circuit had accepted this argument, reasoning that today's youth "likely hear this language far more often from other sources than they did in the 1970...

The battle over Justice Souter's legacy has begun. The orthodox conservative view is succinctly (albeit nastily) expressed by Northwestern Law Professor John McGinnis in this article in the National Law Journal. McGinnis says: Souter will be known wholly for doing the unexpected by becoming one of the most liberal justices on the court and participating in the plurality that reaffirmed the core of Roe. He leaves no independent jurisprudential mark and not a single memorable phrase in an opinion of which he was the ack­nowledged author. He was the worst writer on the court by a considerable margin. Putting aside the gratuitous literary evaluation, what should we make of the characterization of Souter as a liberal? I am quoted in the same National Law Journal article describing Souter as a conservative, albeit a very different sort of conservative than Justice Scalia--and for that matter, Justices Thomas, Roberts and Alito. Perhaps I can explain what I meant with an analogy to th...

My posts ( here and here ) on the possibility of a mini-filibuster in the Senate Judiciary Committee got quite a bit of play today. In addition to fielding some calls from reporters in which I had to make clear that I didn't even know whether such a maneuver would be deemed impermissible by a customary norm, I noted various bloggers and others running with the idea, including, among others, the NY Times , Rush Limbaugh (a reader of DOL?!), and most interestingly, this piece by Sam Stein on HuffPo . Stein confirms what I was able to learn by questioning the Capital Hill reporters who called me today--that Judiciary Committee Rule IV could indeed be used to block a vote if the Republicans on the Committee hold to party discipline. However, he also explains, as did a commenter on my second post, that the full Senate could "pull" a nominee out of Judiciary if the Committee refuses to vote, but that doing that would require the ability to break a filibuster in the full Se...

I recently learned about an upcoming half-day program in NYC, to be offered by Harvard Law Professor Bill Rubenstein. According to the promotional pitch, Rubenstein will tell current lawyers "everything [they] need to know to get a law teaching job." Touting his own roots as a lawyer seeking a teaching job but " worried about competing against candidates with Ph.D. degrees who knew how to navigate academia," Rubenstein promises to share the secrets he learned the hard way in his years as a faculty member and appointments committee chair at UCLA and more recently at Harvard. It's tempting to mock this program by comparing it to work-at-home and get-rich-real-estate schemes, and I suppose that I've just yielded to that temptation. But is that a fair comparison? That depends on whether one thinks that the sort of person likely to attend Rubenstein's seminar will derive much benefit from it. Here's what Rubenstein plans to cover: * how the Associ...