Dorf on Law

My new FindLaw column became so lengthy that it is being published in two parts, the first having been posted this morning and the second to follow tomorrow. In that column, "Can the Public Option in Health Care Reform Be Saved? Should It Be?" I revisit the "public option" in health care reform and explain in some detail why the best aspect of such a health care plan -- the pressure that a non-profit insurance plan would put on private insurers to lower costs and improve service -- is ultimately (spoiler alert!) unlikely to save the public option from the fate that I predicted here on DoL recently ( here and here , building on an earlier FindLaw column here ). The analysis in the column develops the ideas that I first articulated here last week, essentially examining why public misperceptions of government-financed programs will result in relentless pressure on a public insurer to try to meet goals of efficiency and low cost that will be unachievable. This is lik...

My latest FindLaw column previews the Supreme Court's upcoming re-argument in Citizens United v. FEC . I argue that the Court should not change its basic approach to the regulation of corporate and union expenditures designed to affect elections. Here I want to make a methodological point to follow up on my post yesterday . Attitudes towards campaign finance regulation do not break down exactly along the liberal/conservative ideological spectrum. For example, the ACLU has joined with generally conservative groups in opposing the regulation challenged in Citizens United . And both major political parties have, at times, challenged various campaign finance regulations. Meanwhile, good government organizations (like the League of Women Voters or the Brennan Center) tend to favor regulation, as do some conservatives who take a narrow view of the First Amendment in general. All that said, on the current Supreme Court, the Court's most conservative members tend to be the most ...

On Tuesday of last week, I was a panelist at the annual Practicing Law Institute all-day program reviewing the most recent Supreme Court Term. For me, it was an interesting day, and I hope it was useful for the audience members (both live and via the webcast). Most of the discussion focused on specific cases and doctrines, but during the introductory session and at various points throughout the day, we talked about jurisprudence more broadly. Here I want to follow up on a particularly interesting exchange. There was general agreement that then-Judge (now Justice) Sotomayor's performance at her confirmation hearings reflected some sort of triumph of the conservative view of law. Jeff Toobin was the most critical of Sotomayor, although just about everyone agreed that her effort to sound indistinguishable from John Roberts at his hearings was, at best, a necessary evil to get confirmed. But the question arose: Why was this a necessary evil? With 60 Democratic votes in the Senat...

In a recent post , Brian Leiter writes: "Perusing the law blogs, I'm encountering more and more folks who are now professed vegans." I'd be delighted to learn that he's identifying a trend here, although I wonder whether most of his perusing is of THIS law blog, with multiple references to veganism by our 3 principal bloggers (yours truly, Neil Buchanan, and Sherry Colb, all of us, as it happens, vegans). A recent post on TaxProf by Paul Caron notes that he is the father of a new vegan (which I interpret to mean that a child of his has just become vegan, rather than meaning that he has just fathered a child he intends to raise as a vegan, although I could be wrong), but Paul points back to two posts by Neil back here on DoL. There's a good deal of very interesting pro-vegan material on Gary Francione's blog , but that's hardly a new development. Gary has been an outspoken vegan for many years. Brian is inspired by the apparent growth in the numbe...

What are we to make of the fact that only 9 of 40 Republican Senators voted to confirm Justice Sotomayor? Here I'll run a few numbers and then float a hypothesis. For simplicity, let's define the President's party as the "ruling" party and the other party as the "opposition," even in years when the "opposition" has a majority of seats in the Senate. Given the first mover advantage, even when the President's party has been in the minority in the Senate, the President has nominated Justices who were either left of center (Dem Pres) or right of center (Repub Pres). We should note that over the last few decades, it is simply not the case that most members of the opposition party have opposed nominations. Looking at nominations since 1975 (except for the withdrawn cases of Judge Douglas Ginsburg and Harriet Miers), we see that most were confirmed with strong to unanimous support of the opposition party: Stevens, 1975, 98-0 O'Connor, 1981...

It is hard to imagine that anyone would seriously claim that the current public "discussion" about the Democrats' health care reform proposals -- or, for that matter, the public discussion of virtually any issue -- is productive. With loud, angry opposition to the plan being lavishly financed and deployed in public meetings throughout the country, as well as grotesque lies being promulgated daily (killing old people?), it is nearly impossible to believe that the merits of the actual proposals will determine the outcome of this legislative battle. But is the current situation unique, or does this look bad only by comparison to some misty Good Old Days that never existed? I fear that we have, indeed, reached a new low point, and that we have in fact begun to rip the fabric of some important norms, perhaps beyond repair. One of the most shocking things about the Bush era was the frequency with which the party then in office would simply exercise raw power without restraint...

Over the course of a decade and a half (and corresponding with my time as an undergrad and a law student), clerical and technical workers at Harvard struggled to form a union. Their most potent slogan was "we can't eat prestige," which was later turned into the title of a book recounting the period. The slogan was powerful because it captured a deep truth. Underpaid workers at Harvard were still underpaid workers, even if Harvard was a prestigious institution. The slogan was also, perhaps deliberately, misleading, for there was little prestige attached to being a secretary at Harvard. The prestige accrued largely to the faculty, students, and alumni. (The non-faculty administration are an intermediate case which I'll put aside.) What the clerical and technical workers were saying was that they couldn't eat the prestige that other people affiliated with Harvard were getting. And they were right. But what about the prestige hogs themselves? Could they eat p...

With the battle over health care reform now being waged in town hall meetings across the country, it seems depressingly possible that there will be no action at all to change our broken system this year or any time soon. It is thus imaginable that thinking through the merits of alternative proposals will soon be seen as a waste of time, with the smart money (and lots of it) on the ability of entrenched interests to protect their turf. Let us hope that it does not turn out that way. Stipulating that this could all become moot, it does seem at least possible that one result of the current political showdown will be a compromise in which the "public option" is dropped in favor of a package of regulatory changes designed to produce near-universal coverage. As I argued here and in a FindLaw column last week, such a result need not be viewed as yet another disappointing example of politicians' trading away the more progressive choice. Done even reasonably well, it could b...

My FindLaw column, which will appear ( here ) later today, discusses the case of United States v. Stevens , on which the U.S. Supreme Court granted review in April. The defendant in Stevens brought a First Amendment challenge to a statute under which he was convicted of knowingly selling depictions of animal cruelty with the intent of placing the depictions in interstate commerce for commercial gain. My column discusses several arguments for the validity of the statute, including the vulnerability of the animal victims, the role of market demand for videos in motivating acts of cruelty, and the unjustifiable nature of cruelty designed to satisfy the violent tastes of consumers. Each of these arguments, I demonstrate, counsels against the consumption of animals and animal products. I expect that many will find this conclusion startling. When I consumed animal products, before becoming a vegan, I too would have found the conclusion startling. How can eating a sandwich be morally co...

With health care now looking like a long shot, Washington seems likely to turn some attention back to climate change. As I’ve said, the climb to 60 in the Senate will be steep, though, largely because of how unresponsive people are to reason in its purest forms. Why do I say that? Look at the evidence. Agreeing (as did the G-8 in L’Aquila) to a rise in global temperatures of no more than 2 degrees Celsius as the environmental quality objective on climate change—or to cutting four fifths of 2005-level emissions by 2050 (as Waxman-Markey did)—is to adopt a groundless, made-up objective. Neither bears any connection to the physical realities or projected future tragedies of climate change. Indeed, from what I've read, we’re most likely to blow past 2 degrees pretty quickly no matter what we do from here on out. Moreover, even if we did somehow peg it there, there’s a whole planet worth of (tragic) variance within that seemingly diminutive average. In other words, these goals a...