Dorf on Law

-- Posted by Neil H. Buchanan Earlier this week, I attended an event in New York City, sponsored by GW Law's new Center for Law, Economics, and Finance ( C-LEAF ). C-LEAF is the brainchild of Larry Mitchell, a former GW Law professor who is now dean at Case Western in Cleveland. Now under the leadership of Professor Art Wilmarth, the center has been running a series of events designed to bring the business and policy communities together to discuss issues of common interest. The New York event, "Headwinds in the Global Economy and Strategies for Regaining Traction," brought together a panel of three experts -- Corinne Ball (GW Law alumna and partner at Jones Day), Paul Roth (founding partner of Shulte Roth & Zabel), and former Secretary of the Treasury John Snow (also a GW Law alumnus) -- to discuss the aftermath of the global financial crisis and the possibility of a Euro Zone-led crisis going forward. All three panelists have serious expertise in thes...

-- Posted by Neil H. Buchanan Was Tony Soprano America's greatest fictional capitalist? One occasionally hears of real-life mafia bosses who defend their activities as "just doing business," and who are willing to say with a straight face that they are simply pursuing profit in a competitive environment. I suspect that some of them actually believe their own words. The difference between the mob and regular businesses is, we hope, that the latter are operating within the law. Prosecutors who have tried to bring criminal charges related to the 2008 financial crisis, however, have discovered that the laws are so vaguely written that it is nearly impossible to bring a case. If that is true, does that mean that no one did anything wrong, or that the law cannot and should not be changed to prevent future crises, or something else entirely? For a long time, it was extremely difficult to prosecute mafia bosses, under the laws that then existed. Congress then passed RICO, wh...

By Mike Dorf (with t hanks to my colleague  Tom McSweeney  for pointing me to some historical sources) A couple of days ago at breakfast, I was playing the podcast of my latest Verdict column to check the sound quality, when my seven-year-old daughter overheard the opening line: " Can Congress use its commerce power to require people to eat broccoli . . . .?" She asked me what I was talking about.  I opted not to try to explain to her all about Wickard v. Filburn, Gibbons v. Ogden, or the Bank debate in the Washington Administration.  Our conversation went more or less like this: Me: Well, suppose there was a law that said people have to eat broccoli. Her (incredulous): Is there such a law? Me: No, but what if there was? Her: That wouldn't be so bad. Me (encouraged): Why's that? Is it because you like broccoli anyway? Her: It's okay but you and mommy make me eat it. Me: But what if there were a law that said everyone had to eat it? Her: That...

By Mike Dorf Yesterday's NY Times contained a letter from Yale Law Professor Bruce Ackerman criticizing the Times's misbegotten crusade to convert law schools into trade schools (previously discussed by me here and here , and by Professor Buchanan here  and here ).  Ackerman criticizes the Times for opining that law is merely "a means rather than an end, a tool for solving problems."  On "the contrary," Ackerman writes, "law also helps define our fundamental problems." Because "[m]any law students will become our future leaders," Ackerman argues that they must be educated in the case method as well as the sort of "social science and philosophy" that have purchase on such first-order tasks, rather than merely being taught how and where to file a piece of paper, as the Times reportage suggests. I largely agree with Ackerman but I can anticipate a possible response: Perhaps graduates of Yale and some other elite law schools w...

Posted by Mike Dorf My latest Verdict column is co-authored with Duke Law & Poli Sci Professor Neil Siegel.  In it we argue that the Supreme Court can reach the merits of the challenges to the Patient Protection & Affordable Care Act (ACA), notwithstanding the federal tax Anti-Injunction Act (AIA).  Most lower court judges have thus far reached the same conclusion but, we explain in the column, their reasoning is faulty.  Based on the arguments that have been put forward so far, the better view appears to be the one taken by the Fourth Circuit and by Judge Kavanaugh, in dissent in the DC Circuit: that the AIA forbids pre-enforcement challenges to the ACA, meaning the law can only be challenged in a tax refund action, which would not be filed until 2015 and might not reach the Supreme Court until 2017. The parties and courts to have considered the matter thus far have assumed that the question whether the AIA bars the current challenges turns on whether the A...

-- Posted by Neil H. Buchanan For the end of a long week (and semester), maybe a bit of armchair analysis of the presidential horse race will soothe the soul. In a pre-primary season of endless surprises, one of the most unexpected changes in fortune is the resurgence of Newt Gingrich's chances to win the Republican nomination. All but written off early in the summer, with many Republicans trashing him after his entire staff quit on him, Gingrich has recently become at least the non-Romney du jour , now leading the field in many polls. One temptation is to view this as simply another spin of the wheel, with Gingrich's rise to be followed in a few weeks by another spectacular fall, leaving the field by default to Mitt Romney and the next non-Romney. Given the time frame, however, it is quite possible that Gingrich's otherwise-inevitable fall will not come soon enough for him to lose the Iowa caucuses. If he wins there, then the entire game changes, and he could actually ...

By Mike Dorf I've been thinking about nemeses lately. The latest king of nerd rock cool, Jonathan Coulton, has a wonderful song called "Nemeses" on his newish album, Artificial Heart.  (You can hear the whole song, indeed, the whole album, at JoCo's download site .)  It makes the point that a really good nemesis provides a sense of purpose and more.  A really good nemesis enables you to define yourself in contradistinction.  I finally finished reading Walter Isaacson's deeply engrossing Steve Jobs , which makes that point (among many others) about Jobs and Bill Gates--who were not just nemeses but also frenemies. One can quibble about whether it is better to have a nemesis or to simply be the dominant player.  The world of sports provides some interesting cases.  Navritalova had Evert. Magic had Bird. Russell had Wilt. Jordan stood alone.  So did Gretzky.  The dominant players are incredibly impressive but their particular accomplishments may ...

Posted by Sherry F. Colb My Justia Verdict column  this week takes up the U.S. Supreme Court's recent decision to grant review in . Miller v. Alabama and Jackson v.  Hobbs .  The two cases together raise the question whether the Eighth Amendment ban on cruel and unusual punishments permits a mandatory sentence of life imprisonment without the possibility of parole (LWOP) for homicides committed by fourteen-year-old perpetrators.  In my column, I discuss different features of the cases before the Court that may each play a role in disposing of the question presented, including the notion that "death is different" (whether the death comes in the form of homicide or, more conventionally, the State's penalty for homicide), the categorical or discretionary significance of  a mitigating factor like youth, and the interaction between culpability and consequences.  In this post, I would like to focus on  a different dimension along which Miller  and J...

By Mike Dorf My family and I spent Thanksgiving at the home of a friend who invited a number of other guests I had not previously met.  During the course of a pleasant evening, one of these guests made the following statement (which I quote more or less from memory): "Because the law treats corporations like people with rights of free speech, they don't have to list ingredients on labels.  They just do it as a kind of advertising."  I found this statement so astonishing that I was dumbstruck and by the time I thought to intervene, the topic of conversation had changed.  To return to it to correct this woman's mis-impression would have been pedantic, if not bullying, and accordingly I let it go.  I return to it now because I think it is an interesting window on how the lay public understands the Citizens United decision. To begin, the factual claim about the law is plainly false.  By statute and regulation , foods can only be offered for sale with la...

-- Posted by Neil H. Buchanan In my post last Tuesday , adding to Professor Dorf's response to the now-infamous NYT article in which David Segal critiqued (nearly every aspect of) American law schools, I defended the "case method." I argued that the case method is an essential part of learning and understanding the "practical" things that go into the actual practice of law, including writing and negotiating contracts. I also spent a bit of time discussing the value (and the process) of producing legal scholarship, but it is fair to say that the bulk of that post was devoted to a defense of the value of studying law through the careful reading of cases, as a means to learning and understanding the principles of law. In an email, a reader suggested that I had missed the real point of Segal's article, which might not have been a call for dropping the case method and "teaching black letter law" at all, but rather an argument that "a thoroug...