Dorf on Law

By Mike Dorf Writing in the NY Times Week in Review , Adam Liptak notes that Justice Stevens is the only Protestant on the Supreme Court and that should he be replaced by either Judge Garland or SG Kagan (both Jewish), for the first time in U.S. history, there will be no Protestants on the Court.  The article goes on to note a consensus (from which U Chicago's Geoff Stone is portrayed as a rare dissenter) for the proposition that religion is simply not a significant factor in Supreme Court identity politics today.  Whereas in the past, Presidents and Senators worried about geographic balance and religious identity in picking Justices, according to this consensus, now they worry about race, sex and ethnicity.  I mostly agree with this consensus but I want to register three caveats. 1) While I agree that the selection of an otherwise qualified and ideologically mainstream Protestant, Catholic or Jew would not cause much of a religion-based stir, it's certainly possible...

-- Posted by Neil H. Buchanan In my FindLaw column this week (link here ), I discuss the scariest consequence of a prolonged, deep recession/depression: unrest boiling over into social mayhem and even political upheaval. Even though there are encouraging signs that the worst of the Great Recession is behind us, there is still the danger that things could take another turn for the worse, because of natural events like a foreign political crisis or another wave of housing foreclosures (stretching the definition of "natural," I confess), or because of a 1937-style bout of political stupidity that results in enactment of contractionary fiscal policies (i.e., attempts to reduce the deficit during a still-nascent recovery). Even if the economy does not actually turn down again, there is every reason to believe that the job market will continue to be depressed for months (if not years) to come, making it likely that the political environment could get uglier and more dangerous. Ju...

By Mike Dorf Michael Lewis--author of Liar's Poker , Moneyball , and The Blind Side --is back with a new book, The Big Short: Inside the Doomsday Machine.   It tells the story of the financial crisis from the perspective of the small number of people who saw it coming and figured out how to profit from it.  As suggested by the title, they "shorted" mortgage-backed securities.  Because such securities were not traded on exchanges (part of the problem with them, of course), they could not be shorted in the same way that a normal stock is shorted (by making a contract to sell it in the future at some price lower than it is now trading, and then, when that future date comes, buying the stock at its still lower market price and turning around and selling it for a profit at the contract price).  Instead, the protagonists of The Big Short  mostly bought credit-default insurance on derivatives of mortgages they didn't own.  In that way, they not only profited fro...

By Mike Dorf The D.C. Circuit ruling in the Comcast case will almost certainly be misunderstood by some in the public as a judicial statement that net neutrality is somehow contrary to the public interest.  Of course the case says nothing of the sort.  It holds simply that Congress had not delegated the authority to the FCC to pursue its net neutrality policy in the manner in which it pursued that policy.  Congress could provide the FCC with the necessary authority in a heartbeat, if the political will is there.  It's also possible that the FCC could seek cert, although I don't see a reversal by the Supremes as very likely. Here I want to express a tiny bit of skepticism about net neutrality--not even skepticism, actually, just agnosticism; thus the title of this post.  Consider what Comcast was accused of doing: interfering with P2P networking apps.  Now, is that a violation of net neutrality?  That depends on how one defines neutrality.  Un...

My latest FindLaw column discusses last week's ruling by Federal District Judge Vaughn Walker, finding that Al Haramain and its lawyers had made out a sufficient case to establish liability by the government defendants for FISA violations.  Much of the column addresses the question of why the Obama Administration has followed in the footsteps of the Bush Administration by taking such a hard line on the state secrets privilege.  Here I want to raise a broader question about that privilege itself. Successful government invocation of the state secrets privilege results in the dismissal of a civil lawsuit even though the plaintiff might well have a meritorious case on the merits.  This is an extreme measure, as we can see by contrasting dismissal with two alternatives. First, there is the possibility of sealing sensitive portions of the case.  In Al Haramain , as in other cases, lawyers for the plaintiffs were given top secret clearances and sworn to secrecy. ...

By Mike Dorf Over half a century ago, Herbert Wechsler wrote an article that has been much-maligned for two reasons, one good and one not so good.  The article, Toward Neutral Principles in Constitutional Law , published in the 1959 Harvard Law Review, was roundly and rightly criticized for Wechsler's puzzling statement at the end that he had not yet figured out how to write an opinion that would succeed where he thought the Supreme Court had failed in Brown v. Bd. of Educ.   Wechsler said he could not see how one could have a principled basis for preferring the right to associate of African Americans over the right not to associate of whites.  This was a very odd charge by Wechsler because it ignored the fact that Jim Crow was a set of legal institutions that themselves drew distinctions, not on the basis of association versus non-association but on the basis of race. Yet Wechsler's misplaced cri de couer at the end of the article was hardly the central point. ...

-- Posted by Neil H. Buchanan My FindLaw column this week ( here ) extends my critique of the recent front-page article in The New York Times that claimed to show that Social Security has reached a "tipping point" and is now in much worse shape than we thought it was. Those who read my Dorf on Law post last Friday ( here ) will find the first half of the FindLaw column very familiar, as I again try to explain the fundamental errors that the article's author commits. The second half of the column discusses a more fundamental question about Social Security's finances, i.e., whether the decades of annual surpluses (memorialized in the Trust Funds) were truly "saved." I show that they were, in the only meaningful sense in which it is possible for an entire economy to "save" for the future. The broader point that I make in the column is that the "intergenerational deal" represented by Social Security is under attack by people who want to b...

By Mike Dorf The announcement that US News would include a new category of "faculty hotness" in its 2011 law school rankings continued to generate controversy yesterday, as law school deans scrambled to position themselves as above the fray while secretly ensuring that their own schools were not shortchanged in the hotness category. NYU Law School Dean Richard Revesz denied that the 62-page glossy " Faculty in Paradise " magazine--featuring pictures of NYU Law faculty frolicking on the beach clad only in skimpy swimsuits--was a bid to secure a high US News hotness rating, but several other deans with whom I spoke were skeptical. Said University of Pennsylvania Law School Dean Mike Fitts, "Oh c'mon. Are you telling me that  Sam Issacharoff is hotter than Steve Burbank ? No way. There are at least a dozen hotter faculties than NYU. We just don't feel the need to be so ostentatious about it." Meanwhile, US News found itself defending the ...

Posted by Sherry F. Colb In my column for this week, I discuss the case of a prisoner, Paul Cortez, who has been unsuccessful in his efforts to persuade prison authorities to supply him with vegan food in prison.  About a year ago, Cortez became a vegan when he came to see the consumption of animal products (accurately) as participation in unjustified violence toward nonhuman animals.  My column takes up the questions whether Cortez is entitled to accommodation under a federal statute (RLUIPA) and why, even if he is not, a decision to refuse to facilitate a commitment to nonviolence in prison may be independently ill-advised. In this post, I want to explore tentatively the relation between ethical veganism (by which I mean the decision to avoid animal products because the violence involved in producing such products is wrong) and conventional religion, as a question separate from the doctrinal one of whether statutory and constitutional protections for religious exercise ...

By Mike Dorf On Thursday of last week, I gave a lecture in the "Distinguished Lecture Series" at Drake University on the topic of "Same-Sex Marriage, Labels, and Social Meaning." Readers interested in figuring out whether I managed to distinguish myself for anything other than the dark circles under my eyes, frequent blinking, and long-windedness should feel free to check out the recording ( windows media here , mp3 audio here , mp4 video here ). The early draft of the paper on which the lecture is based--like the lecture itself--is an effort to make sense of what's at stake in cases challenging state laws that offer all of the legal benefits of marriage but not the term "marriage" itself to same-sex couples interested in entering civil unions. The answer, which I think is rather obvious and which is prominent in the state court decisions that have recognized a same-sex marriage right is a right not to be relegated to the status of second-class c...