Dorf on Law

By Mike Dorf Free-speech claimants are often unsympathetic.  At worst, they can be grossly offensive: Neo-Nazis claiming a right to march in a neighborhood of Holocaust survivors; Klansmen claiming a right to burn crosses; homophobic zealots claiming a right to picket military funerals.  At best, free speech claimants may be annoying people who would interrupt harried pedestrians and travelers with unwanted information.  Zechariah Chafee, a great champion of free speech, once described the Jehovah's Witnesses, whose free speech rights he repeatedly supported, as a "sect distinguished by great religious zeal and astonishing powers of annoyance." To say that freedom of speech protects unpopular messages and messengers is not to say that it should protect all unpopular messages and messengers simply in virtue of their unpopularity; rather, it is to say that disagreement with, or offense at, the message is not a sufficient basis for regulation.  Here I take no posi...

By Mike Dorf Any number of left-leaning commentators have opined that Wisconsin Governor Scott Walker's real aim in attempting to curtail the collective bargaining rights of public employee unions is to break the political power of the unions.  According to this conspiracy theory, the corporate and other moneyed constituencies that support Walker want to bust the unions to curtail their political power so that the unions can no longer act as much of a counterweight.  Paul Krugman set out a version of this story in a February 20 op-ed  and I'm inclined to think he is onto something.  But regardless of whether the political effects of union-busting efforts are the underlying motivation for those efforts or mere side-effects, they are harmful to the health of the political system overall. The most far-sighted work of political science of the Founding Generation was James Madison's Federalist No. 10 , in which he both warned of the danger of a political faction comin...

By Mike Dorf A couple of weeks ago, I participated in a 3-on-3 basketball tournament as part of a fundraiser for students doing pro bono work in Louisiana: Participating teams each paid a registration fee, which then went into the pool of funds; the winning team and the runner-up team received donated prizes.  In order to ensure that all participants got to play at least two games, the organizers of the tournament announced that the 16 teams would play an initial round of randomly paired games, with the eight winning teams then going to the "winners' bracket" and the eight losing teams going to the "losers' bracket."  Each bracket would then play single-elimination games until the championship game featured the winner of the winners' bracket against the winner of the losers' bracket.  Nearly everybody participating should have understood that this arrangement created an incentive for teams to deliberately lose their first-round game, so as to have...

-- Posted by Neil H. Buchanan Last week, in " Health Care, Incentives, and Complexity ," I briefly mentioned a recent column by the New York Times economics writer David Leonhardt. After questioning Leonhardt's assertion about the incentive effects of health insurance co-pays, I noted parenthetically: "I will have more to say about that column in a future post." This is that future post. Leonhardt's column was (at least as an initial matter) concerned with the effects of union contracts on states' budgets. His central claim is quite far-reaching: It has become conventional wisdom to say that public sector unions are inherently problematic because they can use their political influence to win lavish pay from politicians. But that’s not quite right. The real problem with most union contracts for public workers is not the money — it’s almost everything else. The strength of the column is its demonstration that public employees' pay is any...

-- Posted by Neil H. Buchanan The budget difficulties currently facing almost every state government in the country have led to calls for cuts in public employees' pay and benefits. While the dramatic political standoffs in Wisconsin and Ohio are ultimately not about budget questions, political leaders who are not trying to use budget crises as pretexts to wage a larger political battle against unions are nonetheless calling for cuts to public employees' compensation. For example, Mayor Bloomberg of New York City recently wrote : "If contract terms or labor laws from years past no longer make sense, we the people should renegotiate — or legislate — changes. Benefits agreed to 35 years ago that now are unaffordable should be reduced." People like Bloomberg thus take for granted the rather radical notion that it is acceptable simply to throw out deals that people had agreed upon, and on which they had relied in planning their lives. The standard deal for public emp...

By Mike Dorf Give Chief Justice Roberts credit for wit.  In last week's unanimous opinion for the Court in FCC v. AT&T , he artfully rejected AT&T's argument that because a corporation is a "person" under the Freedom of Information Act, the Act's exemptions for "personal privacy" necessarily attach to corporations no less than to natural persons.  Not so, the Chief Justice said: The adjectival form of a word need not take its meaning  from the noun form.  He gave the examples of "crab" and "crabby,"  "corn" and "corny," and "crank" and "cranky."  After some further  exegesis of the statute, he then concluded his opinion thus: "The  protection in FOIA against disclosure of law enforcement information  on the ground that it would constitute an unwarranted invasion of  personal privacy does not extend to corporations.  We trust that AT&T  will not take it personally." Alt...

By Mike Dorf To my amazement, the phrase "robots versus aliens" yields about 86,000 hits on Google, but none of them, I suspect, in the sense I have in mind, which is not as a proposed feature film. No, I take the inspiration for the title of today's post from a recent NY Times story  about how sophisticated computer software does a better job at finding relevant documents than lawyers and paralegals do, and at a fraction of the cost.  The article implied that such discovery bots would put thousands of lawyers out of work. Color me skeptical, mostly because those lawyers were already losing their jobs.  In recent years, as clients have become increasingly cost-conscious, law firms have outsourced a substantial portion of document discovery to English-speaking lawyers and paralegals in lower-cost locales: in a word, to aliens.  (The term "alien" is sometimes deemed offensive when used to refer to non-citizens rather than extra-terrestrials.  I mean no of...

By Mike Dorf Last week's decision in Snyder v. Phelps --invalidating a jury award against Fred Phelps and the Westboro Baptists for their offensive protest near the funeral of a fallen U.S. Marine--produced essentially the same lineup as last year's ruling in United States v. Stevens , invalidating as overbroad a federal statute forbidding depictions of animal cruelty.  In both cases, Chief Justice Roberts wrote the Court's opinion and only Justice Alito dissented.  Because Roberts and Alito were named to the Court almost simultaneously and are rightly  regarded as very close to one another ideologically, it is worth asking why Alito, and only Alito, dissented in these two free speech cases.  I'm not interested in saying who's right and who's wrong, but in getting at the nature of the disagreement. One might think that Justice Alito is a throwback to an earlier era when conservatives were relatively unsympathetic to free speech claims.  As I argued in...

-- Posted by Neil H. Buchanan In my post yesterday , I used some recent personal experiences as the springboard to discuss the complexity and perversity of the current U.S. health care system. Even as a person with stable long-term employment, an upper-middle class income, and relative sophistication when dealing with legal matters, I have found that the current system is so opaque that it can only be even partially understood after a person has an incident that triggers insurance coverage. I noted, for example, that my most recent experience with an emergency room visit resulted in a total out-of-pocket cost to me of over $1,200, a number that was more than twice as high as it should have been, because of the mere happenstance of the "network status" of the ambulance that took me to the hospital. I should have added, moreover, that there is no way for me to be sure that this is really the total. For all I know, there are other adjustments and costs that are still working...

-- Posted by Neil H. Buchanan Discussions of public policy issues are, of necessity, carried on in abstract and impersonal terms. Most economists, for example, have never experienced long-term unemployment; but they must somehow try to understand that problem, to devise ways to reduce it. Moreover, personal experiences can be idiosyncratic, rather than illustrative; and the person experiencing them can have emotional responses that might make him less objective than he ought to be. Even so, personal experiences can also bring unseen problems into the light, and bring into focus problems that have been acknowledged but poorly understood. For example, calls to have members of Congress file their own taxes, or to have governors register their own cars with their states' DMVs, are based on the belief that there is nothing quite like lived experience to break through a person's apathy about others' plight. Health care is one of those issues for which seeing how the other 95% ...