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January 2009 - Posts
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Paternalism is a dirty word. The "nanny state," "Big Brother" and similar terms invoke the dire specter of government intruding on individuals' thoughts, behavior and choices. Public suspicion of paternalistic interventions is a formidable hurdle, and there are a variety of other social costs from such interventions. Nonetheless, such policies may help people save money, live safer, be healthier and make better decisions for themselves.
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President Obama's nomination of Harvard Law School Dean Elena Kagan to be the next solicitor general inspires reflections not only about who should be the solicitor general, but also about what should be the role of the SG. Under Bush, the Office of the Solicitor General has repeatedly sought to provide legal immunity to big business and state governments at the expense of the legal rights of ordinary Americans. Under Kagan, the OSG should change its course. Toward that end, we propose some principles to guide it.
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A law professor posits that the Federal Arbitration Act is entirely the creation of lawmaking federal judges and is a repudiation of the policy favored by Congress when it enacted the law in 1925.
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One of President-elect Obama's top domestic priorities will be restoring the integrity of the U.S. Department of Justice. The department has suffered from improperly politicized personnel decisions, controversial opinions by its Office of Legal Counsel and what appears to be a glaring lack of independence from the White House.
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As the financial crisis continues and billions are spent with modest results, little consideration has been given to changing the bankruptcy laws to improve the government's flexibility in dealing with distressed borrowers and industries. One change would permit bankruptcy courts to modify the terms of home mortgages. Others would relate to the auto industry. Congress can enact industry-specific laws that would facilitate a restructuring of debts and other claims without a formal bankruptcy proceeding.
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To address crises on several fronts, President-elect Barack Obama, a lawyer himself, has drawn on the legal profession more than any other to fill high-level posts. Eric Holder aside, his appointees merely happen to have a law degree. That economists in government are "economists," but most lawyers in government are not "lawyerly" suggests a problem. The vaunted image of the "citizen-lawyer," who deploys legal skills to serve the common good, has thoroughly disappeared from the popular imagination.
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