Dorf on Law

-- Posted by Neil H. Buchanan In a Dorf on Law post last April, I reluctantly offered a critique of the in-house columnists who write for the op-ed page of The New York Times . My reluctance grew from my conviction that it is all too easy to fall "into the pattern of waking up, reading the op-ed page, and then blogging about" something especially silly in one or more of that day's columns. In the ensuing fifteen-plus months, I have successfully restrained myself from giving into this temptation too often. This is especially surprising, given the juicy targets offered on a daily basis. The most promising target of potential commentary, of course, is David Brooks. His toxic (and puzzling) combination of faux-populism and pseudo-intellectualism is on display twice a week, yet only two of my DoL posts ( here and here ) have been devoted to responding to his columns. It was especially difficult to ignore a column last month in which he offered yet more proof that som...

What follows here is an exchange between Sherry Colb and Melanie Joy, inspired by Professor Joy’s book, Why We Love Dogs, Eat Pigs, and Wear Cows:  An Introduction to Carnism . The first two exchanges will appear today.  The second two will appear on Monday. PART I: From SC to MJ: In Why We Love Dogs, Eat Pigs, and Wear Cows:  An Introduction to Carnism , I think you have very insightfully and accessibly elaborated a phenomenon at work in people who consume animal products.  They distance themselves from the creation of those products in just the ways that you describe, and they rest on a societal institutional framework erected to cope with any errant anxiety (both moral and health-related) very much as you suggest.  So here's the question:  Do you think that lacto-ovo vegetarianism functions with respect to eggs and dairy products much in the way that carnism functions with respect to flesh?  Like vegetarianism in an "omni" world, veganism i...

By Sherry F. Colb In my column for this week, I discuss the recent case of Ontario v. Quon , in which the U.S. Supreme Court rejected a public employee's claim that the government had violated his Fourth Amendment right against unreasonable searches and seizures when it examined his personal text messages, sent and received on an employer-issued pager.  In the column, I criticize the majority, not for the outcome in the particular case, but for expressing a general reluctance to address employee privacy questions in the electronic context. In this post, I want to focus on a different aspect of the case -- the significance of the fact that an employer has provided a pager or an email account, in assessing the employee's reasonable expectation of privacy in his communications. At first blush, the employer's having issued the pager might seem very important.  Presumably, the employer's goal in providing the device is to facilitate work, not to provide a vehicle for ...

By Mike Dorf As a long-suffering Knicks fan, I have been watching the free agent bidding these last few days with anticipation and dread.  My first thought upon learning that the Knicks had come to terms with Amar'e Stoudemire was "he must have a latent injury that will prevent him from ever playing effectively again."  But then I started thinking about the economics of free agency and had a few observations. 1) Top players who say they want to win a championship are not entirely sincere.  They want to win a championship so long as that's consistent with close-to-maximizing their income.  Lebron James, Dwyane Wade, Chris Bosh et al could have decided that they would all evenly split a couple of max salaries among themselves to create a kind of all-star team for the Knicks, Bulls, Nets, or any other team with a lot of cap room.  Occasionally a player will do something like this--but usually it's a player who has played for many years with a particular team wh...

In commemoration of Independence Day, I thought I'd quote what seems the most currently relevant line from the Declaration of Independence .  Needless to say, when T Jefferson et al accused George III of plundering our seas, they did not have in mind the reckless exploitation of oil in the Gulf of Mexico.  But still, it makes you think . . . . Runner-up: "For transporting us beyond Seas to be tried for pretended offences."  This one only comes in second because it's more something we do to others, rather than having done to us by the Brits.  (Yes, I realize that many of the offenses these days are real, but with no charges . . . .") Happy Independence Day.

-- Posted by Neil H. Buchanan In the early 1980's, The Harvard Lampoon ran a parody issue of Newsweek magazine. Among the more memorable pieces therein was an opinion piece by a columnist named George Fwill entitled, "Why I Like the Feudal System." Almost thirty years later, the real-life columnist George F. Will continues to challenge the limits of parody. Most recently, he has argued that cutting off unemployment benefits for the long-term unemployed (the affected population of former workers currently numbering over 1.2 million people, growing to 2 million within two weeks) is just plain good economics. In a recent appearance on ABC, Will made one familiar argument (People will just be lazy if you pay them to do nothing) and one relatively novel one (People will not spend their unemployment benefits, because those benefits are not "permanent income"). I take issue with both arguments in my most recent FindLaw column , published yesterday: "The Deba...

By Mike Dorf I have a new  Op-Ed in the NY Daily News in which I argue that the majority's reasoning in Christian Legal Society (CLS) v Martinez vindicates the position that Elena Kagan took, along with her Harvard colleagues, in urging the Court to rule that excluding the military from using the career services office was consistent with the Solomon Amendment.  Although the SCOTUS ruled unanimously against Kagan's position in Rumsfeld v. FAIR , the CLS reasoning cuts the other way.  In a nutshell: In FAIR , the Court said that, as used in the Solomon Amendment, the requirement of equal access meant that military had to be allowed to recruit on campus even though it violated a nondiscrimination condition applicable to all employers; by contrast, in CLS , the Court said that Hastings did not act in a way that adversely singled out CLS in applying its all-comers policy.  In other words, in FAIR,  the military seeking an exemption from an access policy was a ma...

By Mike Dorf During his acceptance speech for the 1984 Democratic Presidential nomination, Walter Mondale made the following statement: Whoever is inaugurated in January, the American people will have to pay Mr. Reagan's bills. Taxes will go up, and anyone who says they won't is not telling the truth. Let's tell the truth -- Mr. Reagan will raise taxes and so will I. He won't tell you. I just did. That didn't work out so well for Mondale and indeed, it is practically a truism of American politics that promising tax increases--even desperately needed tax increases--is an excellent way to lose an election.  To be clear, I don't think tax increases are needed now.  I'm with Buchanan and Krugman in thinking we desperately need deficit spending right now.  But that's a wholly different point. Here I want to draw an analogy between the Mondale phenomenon and the ongoing debate over constitutional interpretation.  In my latest FindLaw column , I conclud...

By Mike Dorf Last year, in Ricci v. DeStefano , Justice Alito wrote a truly remarkable concurrence in which he painted a picture of ugly racial politics in New Haven (as I observed here ).  That concurrence--and more generally Justice Alito's votes on race cases--placed him squarely on the side of those white Americans, especially those Italian-Americans, who take the view that race-conscious government decision making has gone too far.  Justice Alito called attention to a statement by an African-American New Haven minister who opposed promoting some of the white firefighters because "t hey just have too many vowels in their names." What a difference a year makes. In Justice Alito's opinion for the Court in McDonald v. Chicago , race is a predominant theme.  The crucial portion of the opinion is Part III, in which Justice Alito applies the test for determining whether the 2nd Amendment right is incorporated.  And the core of that portion of his analysis is a disc...

By Mike Dorf A recent NY Times story  reports on how many law schools are inflating their grades in the hope of providing their students with a competitive edge relative to their competitors.  For me, the story reinforces a point I have long made in internal discussions of grading on each of the three faculties of which I have been a member: The fight against grade inflation is a bad idea because it disadvantages our students.  Here I'll add a few observations. 1) Grade inflation driven by efforts of law schools to give their respective students an edge is a collective action problem: individually rational decisions to raise grades eventually end up making grades virtually meaningless everywhere.  But prospective employers--rightly or wrongly--want law schools to sort their students, and if not given grades, they will turn to other, often less effective, more subjective, and potentially unfair methods.  The traditional way to address a collective action prob...