Law Students

If John McCain was born in the United States, aren't Guantanamo prisoners here, too?

Posted on May 02, 2008
John McCain was born in the Panama canal zone, a fact that delights pop legal scholars and has produced of a handful of newspaper articles about whether the Senator is constitutionally eligible to serve as the next President, since Article II of the Constitution requires that presidents be "natural born citizens...

What Pennsylvania Means

Posted on April 26, 2008
I'm back from three weeks in Philadelphia. I'm obviously disappointed by what happened Tuesday, though happy that we kept it to less than 10 points and excited by the energy and enthusiasm of all the volunteers I worked with.The national media have been playing Pennsylvania as a potential game-changer for the Democratic race, one that has party elders (read: super-delegates) beginning to doubt Obama's strength as a potential general election nominee...

Hiatus

Posted on April 03, 2008
I'm headed down to Philadelphia for the next couple of weeks to help with Sen. Obama's GOTV effort in Pennsylvania. As a result, I'll be on hiatus from blogging. Wish me luck!Best,Peter

Hoist on their own petard

Posted on March 26, 2008
Talk about being hoist on their own petard. A lawyer involved (on the pro-environmental side) in the automakers' lawsuit against California's car emissions standards spoke at Yale today about a recent court decision holding that Vermont could adopt California's emissions standards, if and when the EPA ever signs off on California imposing them...

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Obama's latest kerfuffles

Posted on March 15, 2008
It's incoming on several fronts for the Obama campaign today, with controversial statements by his (now retired) pastor finally bubbling up from the the blogs to the headlines and disclosures of additional Rezko money to his state legislative races.Obama's candid statement on the HuffingtonPost might help to allay the pastor issue, or at least keep it from dominating more than a couple of newscycles...

The Silly "Big State" Argument

Posted on March 12, 2008
Stephen Colbert tackled this subject a few days ago, a did a far better job than I can. But that won't prevent me from overing my 2 cents.The Clinton campaign's recent argument that she is the better general election nominee because she bests Obama in primaries in the "big states" that will matter in November is silly: the primary electorate is different from a general election electorate, and ability to win the former is, at best, indirect evidence of any talent for winning the latter...

OPEC, Oil Production, and Environmentalism

Posted on March 10, 2008
OPEC's refusal to increase oil production over the past three years marks a sharp departure from the cartel's historical practice of regulating output to keep global prices within a "band" established by the cartel. Although the band strategy reduced short-term profits, it quite consciously promoted OPEC's longer-term domination of world oil markets--it discouraged oil exploration in high-cost, non-OPEC countries, it eliminated economic incentives to invest in alternative sources of energy, and reduced political pressure in western nations to free themselves of OPEC oil...

The Spitzer Mess--It was a sting of Spitzer

Posted on March 10, 2008
Now I don't want to defend what Spitzer did, which was illegal, hypocritical, and wrong. There is, however, an interesting investigatory angle to the story: According to this New York Times story, the feds didn't just happen to snare Spitzer during a routine investigation into a prostitution ring...

It isn't just Pennsylvania

Posted on March 06, 2008
The Obama campaign needs to make clear over the next couple of weeks that Pennsylvania is just one of a dozen or so remaining contests and that, while it is the largest remaining state (excluding a possible do-over in Florida and Michigan), it isn't going to decide the primary...

Where's this race headed?

Posted on March 05, 2008
Pennsylvania? Puerto Rico? The Convention? I think the Democratic race will be decided sometime between the final primary and the Convention itself in late August. After her wins last night Sen. Clinton has every right to keep fighting on, and, assuming she wins Pennsylvania, will have little reason to drop out before the last primaries--something that is particularly true if, as I now expect, Florida and Michigan schedule do-overs to coincide with Puerto Rico's race on June 7...

When Should A Democrat Quit?

Posted on March 03, 2008
This question has been the subject of much discussion over the past week. My humble thought is that a candidate has every right to keep pursuing the Democratic nomination long as she (or he)has a legitimate shot at winning either a majority of the pledged delegated or a majority of the popular vote--excluding Florida and Michigan...

Where are Barack's Numbers?

Posted on March 02, 2008
We're two days into March, and the Obama campaign still hasn't released February fundraising totals. All they've said is that they're "significantly" ahead of Sen. Clinton's $35 million haul. There are two possible reasons for the radio silence--and either one of them makes me think that we won't get a number until after the primaries this Tuesday...

Mortgages, Walking Away, and Morality

Posted on March 02, 2008
A growing number of Americans stuck with real estate losses, according to the Wall Street Journal, have decided to mail their keys to the lender and walk away from their homes. In several states--notably California--state law prohibits a mortgage lender from going after any assets other than the home that secures a mortgage, so other than a temporary headache and the destruction of one's credit record, a borrower stuck with house worth less than his mortgage loses nothing if he lets the property fall into foreclosure...

Staggering

Posted on February 29, 2008
The sums that Hillary Clinton and Barack Obama raised this month are staggering--$35 million for Clinton (so far), and a possible $50 million haul for Barack.Both candidates raised the overwhelming majority of that money online, mostly from smaller donors, a fact that should fundamentally alter the campaign finance debate going forward...

Obama's Taxing and Spending

Posted on February 28, 2008
The Wall Street Journal concedes that Obama's major proposals are essentially budget-neutral:One challenge is to tally up his tax cuts and spending increases to see whether they're matched by tax increases and spending cuts, as he says they are. To skip to the bottom line: Sen...

The Showdown in Cleveland

Posted on February 27, 2008
Sen. Clinton's deadpan challenge, "Meet me in Ohio. Let's have a debate about your tactics and your behavior in this campaign," left me hoping for fireworks Tuesday night, a political equivalent to the shootout at the O.K. Corral.I was disappointed. Sure, the debate had its moments--Sen...

(Not) Vetting Barack

Posted on February 26, 2008
For some time now, the Clinton campaign has insinuated that if the press would only cover the scandalettes in Obama's past, Clinton would have locked up the Democratic nomination by now. The real problem for Clinton, however, isn't that the press hasn't checked into Barack's record--it's that when they do, they find that, to quote the immortal Gertrude Stein, "there's no there there...

Mortgage Bailout

Posted on February 24, 2008
It is anything but a surprise that a mortgage bailout plan drafted by one of the nation's biggest lenders, Bank of America, amounts to little more than federal taxpayers buying lots of under-performing loans from the very banks that (foolishly) wrote them in the first place...

Obama and Cockiness

Posted on February 24, 2008
Interesting. The New York Times has picked up on just a hint of cockiness in Barack's latert appearances: Mr. Obama is on an electoral roll, polls show him pulling closer in Ohio and Texas, crowds show him the Big Celebrity Love, what?s not to like? A touch of cockiness is discernable in his manner now; he is like a gambler convinced his every dice roll will come up double sixes...

Last Night's Democratic Debate

Posted on February 22, 2008
Barack Obama won last night's debate by not losing it. Hillary was her usual, masterful self at the debate, quick with facts and figures and generally on top of her game. But for the the first time in the 19 Democratic debates we've had so far, Obama seemed an almost equal master of minutiae, and his performance will blunt the escalating chorus of criticism that he's a talker lacking specifics...

Our missile defense program

Posted on February 21, 2008
Of course the American military shot down a disabled spy satellite to test--and demonstrate--our missile defense program; as Gail Collins points out in her column today, the official safety explanation simply isn't compelling on its own. And seen for what it was, the test was a spectacular success: we not only hit the satellite, we appear to have punctured its fuel tank, a nice, small, hard target probably not much bigger than the warhead we'd need to hit on an incoming missile...

An independent Kosovo

Posted on February 18, 2008
While I'm all for an independent Kosovo, I predict that today's events will produce a couple of unintended consequences:1) Darfur. Kosovo's independence is the final nail in the coffin of any hope that Sudan's government will acquiesce to a robust U.N...

Obama's Speech in Virginia

Posted on February 10, 2008
Obama's speech Tuesday night at the Virginia Democratic Party's JJ dinner was an entirely typical political speech, and, coming from Barack Obama, that made it interesting.I heard Obama deliver his stump speech when I was campaigning in New Hampshire...

A (very modest) defense of super delegates

Posted on February 10, 2008
Judging from the cable network talking heads blabbering on about the election returns last night and today's headlines in the New York Times and Washington Post, super delegates have emerged as the political issue du jour. There are nearly 800 of these in the Democratic party--congressmen and senators, governors, state party officials, and garden variety "insiders"--who may hold the balance of power between Barack Obama and Hillary Clinton...

Let's vote again in Michigan and Florida--and let's have the campaigns help pay for it

Posted on February 08, 2008
The last thing our party needs is a bitter August fight over seating delegates. The second-to-last thing our party needs is to have disenfranchised voters living in two important November swing states. John McCain will be a tough enough opponent this fall without internal divisions on our side of the aisle--Democrats need to enter the general election season unified and ready to go...

Edwards drops out

Posted on January 31, 2008
As I predicted, Edwards is now out of the race. Rumblings deep down in the press coverage of his decision to quit the presidential campaign suggest that pressure from financial and union backers did, indeed, affect his decision: they wanted a chance to cast their lots with a candidate more likely to win...

Off to S.C.

Posted on January 23, 2008
Along with 20 or so other YLS students, I'm off to South Carolina tomorrow (Wednesday) to campaign for Barack Obama. It should be exciting--we need to win this one!Updates on my return.

Will Edwards Drop Out?

Posted on January 23, 2008
There has been quite a bit of speculation about whether John Edwards will soon quit the presidential race, particularly after his dismal 4 percent showing in Nevada. As recently as last month the Edwards campaign explained that it had a "four state" strategy--try to win one of the four early states, Iowa, New Hampshire, Nevada and South Carolina, or, at the very least, do consistently well and generate some momentum going into Feb...

The Primaries, or, my time in New Hampshire

Posted on January 20, 2008
Apologies for the long hiatus from blogging. Meryl and I were in France from December 26th to January 6, and we've had exams since the 8th. For my first post back, I want to write about the two days in between--January 7th and 8th--which Meryl and I spent in New Hampshire volunteering for the Obama campaign...

On Vacation

Posted on December 21, 2007
I'm going to be on vacation until early January. I'll be posting when I can, but probably won't be making regular updates for the next two weeks.Merry Christmas!

What Backlash Against Activist Judges?

Posted on December 19, 2007
In the past few years, conservative academics and even a few liberal law professors have claimed that activist judges of the 1960s and 1970s spurred a great public backlash against the judiciary, and that the activist decisions of that era did grave damage to the popular legitimacy of the judiciary...

Political Warfare

Posted on December 16, 2007
At the final Democratic debate in Iowa, the moderator asked John Edwards how he would accomplish his "agenda after spending a lot of months calling [Washington special interest] groups corrupt." He looked a little taken aback by the question, which assumed he would have to work within Washington to accomplish his policy goals, and his answer suggested that he rejected that premise:[S]ome people argue that we're going to sit at a table with these people and they're going to voluntarily give their power away...

The last Democratic debate

Posted on December 14, 2007
The last Democratic debate was a spectacularly uneventful affair, which wasn't surprising given that no candidate wants to risk a negative storyline this late in the game. Instead, the candidates stuck to their well-rehearsed pitches, and all of them managed a pretty competent job of it, despite having flown from Iowa to Washington and back in the space of a day...

The Bali Global Warming Conference

Posted on December 13, 2007
Those who advocate a free-market solution to global warming lack the courage of their convictions. A true free market system would treat greenhouse gas emissions like any other property regime: it would assign an initial distribution of property rights in greenhouse gas emissions and let the free market trade them at will...

The U.N., Kosovo, and Darfur

Posted on December 12, 2007
A professor here, Lea Brilmayer, made an interesting point at lunch today about a possible link between Kosovo's impending independence and Sudan's backtracking on its plan to let peacekeepers into Darfur. Regardless of the objective merits, from the Sudanese perspective the Kosovo precedent has to be troubling: U...

Harvard for free?

Posted on December 12, 2007
With Harvard announcing dramatic tuition cuts for all but the very wealth, I thought I'd link to some of my past writing on the subject. Here and here.

Some more bad news for the dollar

Posted on December 12, 2007
One thing the dollar has long had going for it was its status as the international currency of business. Businesses bought dollars (and helped prop up the dollar's value relative to other currencies) just because, well, other businesses wanted to conduct business in dollars...

Beware Bushies Bearing "Environmental" Proposals

Posted on December 11, 2007
It looks like Bush may veto the bill raising American auto-mileage standards to 35 miles per gallon because unless it specifies that the Department of Transportation--not the Environmental Protection Agency--has primarily responsibility for regulating tailpipe emissions...

Oprah's Obama Endorsement

Posted on December 11, 2007
Ideally, endorsements do two things. First, they get a political candidate a bit of media attention, and perhaps some credibility with reporters. Second, though endorsements by themselves rarely convince voters to support a candidate (few Americans cast their vote for a candidate just because someone else tells them to), an effective endorsement can get voters to take a look a candidate and give the candidate himself an opportunity to make his pitch for their vote...

Are we more we growing more similar across national boundaries than within our own?

Posted on December 10, 2007
Liberals in America's great coastal cities have felt a certain disquietude in recent years that, just perhaps, they have more in common with the liberal elites of London, Madrid, Bombay and Buenos Aries than they do with the hoi polloi of middle America--or even the contractors, widget makers, and service industry denizans who make limousine liberalism such a comfortable ideology...

The Huckabee Flack

Posted on December 10, 2007
The fact that the New York Times and the Wall Street Journal ran virtually identical stories Sunday about Mike Huckabee's 1992 comments on AIDS and alleged assistance in getting a convicted rapist paroled was the first sign the Arkansan's opponents were taking him seriously: when that kind of story breaks in multiple places at once, it is because a rival campaign plants it, not because of some sudden insight on the part of the reporters...

Binding Emissions Targets

Posted on December 09, 2007
I'm not surprised that the Bush Administration rejected committing the U.S. to binding reductions in greenhouse gases. I wonder, though, whether Bush's refusal to do so means that we'll ultimately see reductions greater than we would if Bush was willing to set a target during his presidency...

Law, Economics, and the Subprime Mess

Posted on December 06, 2007
In liberal circles, the law and economics movement has a bit of a bad reputation--it's seen a tool that lets large business interests justify relatively small damage awards for personal injuries. But a deeper impact of the law and economics movement has been its contribution to a broad shift in the law's understanding of fault, and of fault's relationship to to the party that should pay for some injury...

Small State Primaries

Posted on December 05, 2007
Mike Huckabee's meteoric rise over the past few weeks is another illustration of the virtues of allowing a few small states to hold the first presidential primaries. Huckabee, the affable former governor of Arkansas, has raised little money and, until recently, drew even less media attention--two facts that would have doomed his candidacy beyond any hope if he actually had to compete in the next few weeks in the populous American states...

Does Reading Matter?

Posted on December 04, 2007
The WSJ's Daniel Henninger had a thought piece last week about a new study showing that total recreational reading--books, magazines, newspapers, and online sites--has dwindled to just seven minutes each day. The study, by the National Endowment for the Arts, excluded the countless hours that modern office workers spend slowly going blind from staring at computer screens at work, as well as text-messages and several other forms of communication that might fall within a broad definition of reading...

The voters in New Hampshire

Posted on December 03, 2007
Meryl and I were in New Hampshire this past Saturday, knocking on doors to try to persuade undecided voters to support Barack Obama next month. And while I do think we need to open the primary system up to a broader selection of states, my few hours in New Hampshire gave me at a modicum of appreciation for the current system...

The Supply-Side Theory of Religion, or, How to Build a Mega-Church in New England

Posted on November 30, 2007
I confess my skepticism a few years ago when Rodney Stark, Roger Fink and other economists argued that Americans are more religious than Europeans because we have a free market for religious services. Basically, this "supply side" theory of religion argued that American churches have to offer innovative, popular religious services or the bank will foreclose on church property and send the pastor packing--a fact that encourages ministers to drum up new religious "business...

CNN GOP Debate

Posted on November 30, 2007
I didn't watch the GOP debate last night (hey, I'm a Democrat), but I have some sympathy for Republicans irate that CNN and YouTube offered up a number of questions from known supporters of various Democratic presidential candidates. What seems particularly galling to the right is that the prevalence of Democratic questions focused the debate on the issues that Democrats think matter to Republicans--guns, god, abortion, and gays--rather more than the issues that many Republicans think matter to republicans (national security; lower taxes; government spending)...

Marriage

Posted on November 28, 2007
A few weeks back I went to a talk here at Yale by Patrick Sammon, the head of the Log Cabin Republicans, a group of gay and lesbian conservatives who are trying to promote gay rights within the GOP. The talk was hosted by the Yale Law Republicans and also by the Yale OutLaws, the law school gay and lesbian organization, and it attracted a pretty diverse group of students...

Why do so many Americans support the writers' strike?

Posted on November 26, 2007
More than 60 percent of Americans say that they side with the writers in their strike against the Hollywood studies, according to today's Times article. That's a remarkable figure given the general American apathy towards union disputes, an apathy that often verges into distaste, and makes one wonder what lessons there might be for other trade unions...

Democratic Supreme Court Picks?

Posted on November 19, 2007
Being at Yale, there's a certain (self serving?) presumption on the part of the students and faculty that a Democratic president would appoint legal academics or federal judges to the Supreme Court, should any vacancies arise. Yet at last Thursday's debate, several of the Democrats actually seeking the presidency suggested that they want Justices who come from the outside the insular worlds of the academy and the bench...

Talk about bad press for Wal-Mart

Posted on November 19, 2007
For a company already facing a PR nightmare over its health-insurance program, surely Wal-Mart should have known that this would only make it look worse:JACKSON, Mo. -- A collision with a semi-trailer truck seven years ago left 52-year-old Deborah Shank permanently brain-damaged and in a wheelchair...

International Law and Pakistan

Posted on November 18, 2007
There is some deep irony in the Bush Administration's conclusion--revealed in the New York Times this weekend--that "legal restrictions" prevented the U.S. from offering Pakistan our best technology for securing its nuclear warheads. Bush's is, after all, an administration that ignores legal restrictions on torture, on domestic spying, and on due process rights, programs that, whatever their merits, seem less critical to American security than securing known nuclear warheads against anti-American terrorists...

Tonight's debate

Posted on November 16, 2007
Hillary's solid performance in tonight's debate isn't important because of the minuscule audience tuned in to CNN from 8-10; it's important because it cuts off the downward spiral she'd been in since her mediocre performance in Philadelphia two weeks ago...