Dorf on Law

by Michael Dorf This is just a quick follow-up to my  Verdict  column  and two prior posts on the Salaita affair ( here  and  here ). 1) As  Brian Leiter notes , there is a move afoot to boycott the University of Illinois in response to its un-hiring of Salaita. I dislike academic boycotts generally, and I think it especially odd to boycott an academic institution on free speech grounds. Better, it seems to me, to try to persuade (rather than coerce) the University to correct its error. 2) Speaking of persuasion, the letter I noted in Friday's blog post is now publicly available. 3) While disclaiming any expertise with respect to the First Amendment issues in the Salaita case, on Concurring Opinions , Dave Hoffman disagrees with my promissory estoppel analysis. After saying some nice things about me personally (which I hereby reciprocate about him), he attempts to pull rank, noting how he's a contracts teacher and scholar, whereas I'm not. Th...

by Michael Dorf My Verdict column on the Salaita case on Wednesday prompted a good deal of discussion on Twitter, Facebook, etc. I also received a fairly large number of private emails, some agreeing in whole or in part, others raising objections. One supportive comment came from a former colleague who asked whether she could include parts of my column in a letter from legal scholars with specialties including free speech and academic freedom to the Chancellor of the University of Illinois, urging the latter to reverse course and submit Salaita's name to the board of trustees after all. I agreed and our letter--which makes very clear that signatories take a wide range of views on the underlying substance and tone of Salaita's controversial tweets--is in the works. Here I want to explore a practical question raised by a response I received from one of the scholars I invited to consider signing the letter. This person replied: After reading the letter, I was inclined to si...

-- Posted by Neil H. Buchanan This morning, the editors of The New York Times published two editorials applauding the O'Bannon case, claiming that the outcome will prevent universities from "exploiting the very students they have always purported to protect," and applauding the demolition of "[t]he myth of the pure 'student-athlete.' ” Meanwhile, Verdict had already published my latest column , in which I take a very different view of the landscape of college sports. In my column, I return to an argument that I first offered here on Dorf on Law last December , where I described why there is nothing inherently wrong with "unpaid labor" in the context of nonprofit organizations.  At a minimum, as I will describe at greater length in a future post/column, none of the identifiable problems with college sports would be solved by paying cash to players, whereas such payments would certainly make matters worse in a number of important ways. In ...

by Michael Dorf [Warning: Point 3 of this post repeatedly uses a mildly profane term. Do not read aloud to young children.] My new Verdict column addresses the academic freedom issues raised by the recent decision of the University of Illinois board of trustees to disapprove a tenured appointment for Steven Salaita, in apparent response to his strongly-worded tweets criticizing Israel's military operations in Gaza. In response to charges that the university thereby violated Salaita's academic freedom, the university's defenders have drawn a distinction between firing a faculty member for his extracurricular statements and not hiring him in the first place. In turn, many academics have dismissed this defense as relying on a technicality. I argue in my column that the firing/not-hiring distinction is--in this context--not even a technicality. Under state law principles of promissory estoppel, Salaita probably was already de facto hired; and the First Amendment limits the...

-- Posted by Neil H. Buchanan In my Dorf on Law posts last Tuesday and Thursday , I commented on an op-ed in the NYT by Laurence Kotlikoff, an economist at BU who has been peddling something called "generational accounting" for approximately a generation now.  As I noted, my first law review article (after I transitioned from being an economist into legal academia) included an extended analysis of the many flaws of Kotlikoff's approach, flaws that are obviously designed to bias the results toward extreme right-wing policy preferences.  I was thus shocked to discover that generational accounting is "still a thing" -- not just in the fevered dreams of one right-wing ideologue, but with bipartisan support in the U.S. Senate. For those readers who do not have time to read both of my previous posts (or my law review article), I offer this quick summary of Kotlikoff's approach.  He argues that the U.S. government is currently bankrupt , based on forecasts ...

by Michael Dorf Last week, James Brady died at the age of 73. Brady, then White House Press Secretary, was shot in 1981 by John Hinckley, who was attempting to assassinate President Reagan. Although Reagan suffered a punctured lung, following medical attention he recovered quickly. Brady, however, was permanently disabled; his speech was slurred and he needed a wheelchair. He and his wife Sarah spent much of the rest of his days working to tighten gun control laws. Obviously, they did not succeed in substantially reducing access to guns, but things could have been even worse were it not for the Brady Handgun Violence Protection Act (a federal law requiring background checks) and the ongoing efforts of the Brady Campaign. Many people in Jim Brady's circumstances would, quite understandably, devote the balance of their lives to their own comfort. He was a magnificent example of someone who found purpose in his own tragedy. So let me first say, rest in peace. As is my wont, I also...

by Michael Dorf Earlier this week, a New York Times article by Adam Liptak used some recent remarks by Justice Ginsburg as an occasion to ask the question whether the current Supreme Court is more sympathetic to gay rights claims than to women's rights claims. Because four Justices on the current Court (Roberts, Scalia, Thomas, and Alito) tend to vote against  both gay rights and women's rights, while another four (Ginsburg, Breyer, Sotomayor, and Kagan) tend to vote for both gay rights and women's rights, the real focus of the article is Justice Kennedy, who joins (indeed, leads) the liberals in voting for gay rights -- as the author of the majority opinions in  Romer v. Evans , Lawrence v. Texas , and United States v. Windsor ) -- while joining the conservatives in cases that work against women's rights -- most recently in Burwell v. Hobby Lobby , but also in Ledbetter v. Goodyear ,  Gonzales v. Carhart (the federal Partial Birth Abortion Ban Act case), and...

-- Posted by Neil H. Buchanan In my Dorf on Law post two days ago , I described the surprising and unwelcome return of something called "generational accounting," which the economist Laurence Kotlikoff and various co-authors have been hawking for the past twenty years.  This was a bit of a bad acid flashback for me, because I had written extensively about this in a law review article that was published in 2005.  To find this staring out at me from my morning newspaper on the first day of August in 2014 was, to say the least, an unpleasant development. Kotlikoff has spent much of his career claiming that the United States government is going "bankrupt," using an accounting method to measure what he calls the "fiscal gap" in a way that makes it seem as if current budgetary policy is completely out of control.  He was given space on the NYT op-ed page last Friday, where he trotted out his usual rhetorical tricks, ending with a smarmy claim that budgeta...

By Sherry F. Colb In my Verdict column for this week, I discuss the case of Paroline v. United States , in which the U.S. Supreme Court confronted the question of how to interpret a federal law providing for restitution for victims of child pornography.  In the column, I review the different approaches of the majority and the two (very much opposed) dissenting opinions, and I also suggest that the restitution focus at the Court (and in the federal statute as well) ignores a whole group of victims of child pornography who could virtually never meet an individualized causation requirement established as a prerequisite to receiving monetary compensation: those victims whose later exploitation was fueled and motivated by prior possessors' demand for child pornography. In this post, I want to talk about a very different matter that goes mostly undiscussed in the Supreme Court's opinions in Paroline :  the tension between the majority's worries about disproportionate rest...

-- Posted by Neil H. Buchanan My Dorf on Law post last Thursday asked: " Is the Attack on Social Security Finally Over? " Along with its companion piece on Verdict the same day, that post noted that the political fear-mongering campaign against Social Security, which has been a perennial favorite for nearly all Republicans as well as many Democrats (including President Obama), appears to be in remission.  The annual Social Security Trustees' report was issued last week to virtually no notice (buried on page A14 of The New York Times , for example), and the shouting shows on TV and radio were notably quiet on the subject. I did not imagine, of course, that this meant that Social Security would remain politically unimportant for very long.  The forces arrayed against that overwhelmingly successful government program have too much to gain, both politically and financially, to leave it alone forever (or even for a few years).  Even so, it seemed possible that the dishon...