Tuesday, September 17, 2019

Anti-Tax Populism versus the Actual Boston Tea Party (and History in General)

by Neil H. Buchanan

This past weekend, I was in Boston for the first time in a few years.  Because I had never gone to any of the local tourist attractions during the ten years that I lived there, my brother and I decided to go to a few of the Revolutionary War-era sites that are scattered around the area.  I was not expecting to end up with fodder for a column here on Dorf on Law, but I guess this proves that I am never truly off the clock.

In any case, I found it interesting to compare and combine the information provided at two historic sites.  The Boston Tea Party site includes a replica of one of the merchant ships involved in that historic moment, which was included as part of a guided tour of an onsite museum/tourist attraction.  A few miles away, the Bunker Hill site in Charlestown included a demonstration of musket firing along with narrated information about the battle there in 1775.

As I will explain below, there is an interesting difference between the way the two historic sites treat the supposedly anti-tax message of the American Revolution.  But even taking those differences into account, the overall conclusion is that modern conservatives have (deliberately or not -- but probably deliberately) mangled American history in the service of their present-day reactionary agenda.

Monday, September 16, 2019

Joe Biden, Hipster

 by Michael C. Dorf

"It's not [that poor parents] don't want to help. They don't — they don't know quite what to do. Play the radio, make sure the television — excuse me, make sure you have the record player on at night, the — the — make sure that kids hear words. A kid coming from a very poor school — a very poor background will hear 4 million words fewer spoken by the time they get there." -- former Vice President Joe Biden at the Sep 12, 2019 Houston Democratic Presidential Debate in response to the question "what responsibility do you think that Americans need to take to repair the legacy of slavery in our country?".

Hey America, it's me, Joe Biden, Uncle Joe as a lot of the young folks call me. So listen, I've been reading where people say I'm out of touch, but the truth is I'm only a hair older than Bernie and uhm, the Senator from, uhm, the woman from, my friend . . . Elizabeth! . . . and of course Donald B. Trump.

What a bunch of malarkey. I'd beat any of them in a foot race, a game of darts, or one of those electronic measuring fitness thingies on that what is it called? Wii consoles.

So anyway, I read somewhere they're saying that no one uses record players anymore and this means that I'm not ready to lead America into the 25th century. That's double malarkey. Hippies, excuse me, hip stars, hip stirs, yes hipsters have record players. Or as we called them when I was growing up as a white working class boy in Scranton, phonographs.

Friday, September 13, 2019

Why Are Big Businesses' Executives So Awful Except When They're Not?

by Neil H. Buchanan

When I linked to The Washington Post's website moments ago, a bright red CNN-like banner above the name of the newspaper announced:


The linked article's sub-headline reads: "Faced with pressure to curtail suspicious opioid shipments, an alliance fought back with every weapon at its disposal."

Another day, another example of grotesque corporate greed and soullessness.  There is a reason that Big Pharma has joined Big Banks, Big Airlines and the more general Big Business as bogeymen for any American with even a mild dollop of populist sentiments.

And all of those Big institutions, in turn, have been responsible for some truly awful things, most especially including a sustained and highly successful political attack on labor unions, which led to companies underpaying workers and backing (and largely writing) laws that enable various strategies to deny benefits and so on.  Epic inequality did not come out of nowhere.

I say all of this to make clear that I do not have a soft spot in my heart for large corporations.  I am, however, interested today in the phenomenon of big businesses occasionally doing surprisingly positive and even progressive things, the most recent example having to do with guns.

Thursday, September 12, 2019

The Myth of the College or University Professor Uninterested in Teaching

by Michael C. Dorf

From time to time I hear from former students. Whether they are reporting on their successes (or much less frequently, their challenges), seeking a reference for a job, or asking for my advice on a case on which they're working, I'm almost always glad to hear from them--although my policy with respect to advice on cases is to help only with matters that they are handling pro bono and then only if they've cleared my involvement with the client and/or the lead attorney. Occasionally, a student will write a simple note of thanks, which is invariably gratifying. Sometimes the note of thanks is a backhanded compliment, as in "I'm surprised that something I learned in your class turns out to be useful in practice."

Very occasionally I receive a note like the one I was incredibly gratified and humbled to receive last week, from a recent graduate just generally thanking me for my guidance. When that sort of thing happens, I usually feel some regret at not having done the same for the teachers and mentors who were instrumental in my own intellectual and professional development. Because they are no longer with us, I think in particular of Dan Meltzer, whose Federal Courts class thirty years ago influences mine just about every day, and Judge Stephen Reinhardt, who taught me that anything worth writing is worth rewriting ten or twenty times. I wish I had been more gushing in my thanks when they were alive.

I was extremely fortunate to have been taught by great scholars who were also great teachers, people like Bernard Bailyn, Larry Tribe, Robert Nozick, Stanley Hoffman, and Judith Shklar. I also took courses from lesser-known scholars and sections with grad students just getting started who were terrific instructors. Whatever skill I have as a writer I owe chiefly to my seventh and eighth grade English teachers (Ms. Green-Lee and Ms. Petersen, whose first names I don't recall and may never have known). I also had some not-great teachers, including some who were renowned scholars.

My own experience as a student turns out to be fairly typical. I had great teachers who were also great scholars. I had not-so-great teachers who were great scholars. I had great teachers who were not-so-great scholars or not scholars at all. And I had not-so-great teachers who were not scholars or not-so-great scholars. There was for me, as in general, no correlation between teaching and scholarly acumen.

Wednesday, September 11, 2019

Bolton Was Awful; His Successor Could Be Worse

by Michael C. Dorf

What should a reasonable person think about the departure of John Bolton as National Security Adviser? In just about any other administration, it would be very welcome news. Bolton is a Strangelovian hawk who learned nothing from the US misadventure in Iraq that he and others of his ilk promoted. Trump reportedly fired him (or was at least happy to see him go) for the right reason: Bolton was a source of resistance to one of Trump's few sensible impulses--his preference for diplomacy over force in foreign affairs.

And yet . . . Bolton probably provided a useful check on Trump's not-at-all-sensible foreign-policy impulses: his emphasis on showmanship over substance; his elevation of personal relations with foreign leaders over details; his embrace of authoritarians at the expense of liberal democratic values and human rights; and his desperation to "make a deal" so that he can claim victory even when the deal at hand is a bad one or at best a worse version of the prior status quo that Trump impetuously undermined.

Tuesday, September 10, 2019

The Paradoxically Perfect Millennial as a Cover for Republicans' Attacks on Higher Education

by Neil H. Buchanan

Virtually nobody talks about how responsible and well behaved millennials are, not even millennials themselves. As with all younger generations, there are complaints from oldsters like me (but not including me) about how shallow and pampered "kids today" can be.  Why can't they be like we were ... perfect in every way?

Even so, there is a subset of millennials who have suddenly become the poster children for the argument not to do anything about student debt and high tuition costs.  As I noted in my most recent Verdict column last week, there is a new refrain from those who are looking for an excuse not to have the government fix the mess that higher education financing has become in the last generation, which is that some young people did it right, and it would be unfair to those responsible young heroes to make it easier for anyone else.

This is, of course, a shamelessly opportunistic argument on the part of the Republicans, who think that subsidized higher education is just another form of (cue the scary music) socialism.  They could not care less about poor kids who somehow manage to work three jobs while going to school and graduating -- in part because almost no such people exist.  The reality is that college is now so out of reach (due in large part to Republicans' budget cutting at the state and federal levels) that fewer and fewer kids from modest beginnings can finish college.

But what of the few -- and for all we know, it might be only one hardy soul -- who "did everything right" and got through college without debt (and without any help from anyone else, i.e., they did what was literally impossible by "pulling themselves up by their own bootstraps")?  Should our admiration for such sacrifices make us decide to do nothing about those who were not able to reach that happy result?  Should we decide not to adopt a new program that would deliver better results?

Referring to those few people who (much like the perfect millennials) somehow manage to get through a medical crisis without being driven into bankruptcy, I noted in my Verdict column that they might respond to a new program that makes it easier for people in the future to deal with these financial challenges: "Gee, I wish this new program had existed back then.”

And that is understandable.  I argued that that is not, however, an excuse to do nothing now, because "that is simply how change works. Using it as an excuse to do nothing elevates individual pique and resentment above social and economic progress."  Why would someone say, "No, you can't make anyone's life better than mine was," rather than, "Wow, it's so great that no one will have to go through what I went through ever again"?

Monday, September 09, 2019

A Unified Theory of Originalism and Living Constitutionalism

By Eric Segall

A recent article by Professor Randy Barnett, one of our country's leading originalist scholars, and Evan Bernick, currently a law clerk for Judge Sykes of the Seventh Circuit, articulates what the authors call a "unified theory of originalism." Their thesis is succinctly stated in the first paragraph of their article:
Constitutional originalism is defined by a commitment to the original meaning of the letter of the constitutional text. Our thesis is that originalism must be committed to the Constitution’s original spirit as well—the functions, purposes, goals, or aims implicit in its individual clauses and structural design. We term this spirit-centered implementation 'good-faith constitutional construction.'
There is much to commend in this attempt to describe how judges should decide hard constitutional cases. In fact, absent a theory of judicial review that advocates for a clear error, strongly deferential approach (my personal preference), Barnett and Bernick have articulated a powerful guide for judges to use to decide whether laws violate the Constitution.  But like most originalist scholarship that does not include strong deference, what Barnett and Bernick are suggesting is indistinguishable from how most so-called living constitutionalists think judges should decide cases. They could have titled their piece "A Unified Theory of Judicial Review for Originalists and Living Constitutionalists," and they would not have had to change a single word.

Friday, September 06, 2019

Universal Support for Universal Public Goods: Fighting Back Against the Democrats' Naysayers

by Neil H. Buchanan

Means-tested program participation.  Could any words bring more joy to the heart of a neoliberal policy wonk?  Sure, he will tell you, it is important to provide for the needy, but we must be prudent and make sure that every such program is targeted EFFICIENTLY.  Ergo: means-tested program participation.  Oh, the thrill!

Why this dollop of extra sarcasm to start the day?  The debate within the Democratic Party, which is sometimes described as Center-versus-Left or Establishment-versus-Insurgents, is in many ways ultimately a debate about neoliberalism's inherently incremental approach to everything.  More to the point, it highlights just how much the supposedly Reasonable Moderates buy into the logic of flinty conservative presumptions about how government should work.

To take but one example, Joe Biden was on "The Late Show with Stephen Colbert" two nights ago, and Colbert asked him if he favors Medicare for All.  Biden's response was almost like a nervous tic: "No, $30 trillion."  What did that mean?  Biden's big talking point about health care is simply to repeat the estimate that Bernie Sanders's program would cost $30 trillion over ten years.

That our current non-system will cost more than $50 trillion over that timeframe is apparently not worth mentioning, but in any case Biden immediately added that we need to incrementally fix the Affordable Care Act -- which itself was a neoliberal's incrementalist dream, with means-tested program participation all over the system -- maybe adding a public option (although I doubt that he would fight for that when the time came).

So the self-described realistic people are the ones who cannot even get the big picture right, choosing instead to reinforce the notion that "we'd have to raise taxes by $30 trillion" while ignoring how much more we would save.  That is what counts as leadership, I guess.  To be clear, I have no problem with someone saying that a political fight over Medicare for All is currently unwinnable, but it is dishonest and self-defeating to act as if Republicans are actually right when they are in fact merely exploiting voters' confusion to maintain the awful status quo.

What of means-tested program participation more generally? At the Democrats' first debate in July, another so-called reasonable candidate, Pete Buttigieg, responded to a question about plans to make college tuition free: "I just don’t believe it makes sense for working-class families to subsidize tuition for billionaires. The children of the wealthiest of Americans can pay at least a little bit of tuition."

Little people should not subsidize rich people.  How is that not the height of reasonableness?  Glad you asked.

Thursday, September 05, 2019

The Electoral College is Tainted, But so is the Rest of the Constitution, and America for that Matter

by Michael C. Dorf

In my latest Verdict column, I discuss a recent 10th Circuit opinion finding that the Electoral College protects so-called faithless electors--who vote in the Electoral College for a candidate other than the one to whom they were pledged--against post-appointment state interference. I describe the opinion as a plausible reading of Article II and the Twelfth Amendment but one that undervalues the democratizing trends of the last two centuries.

I also suggest in the column that while the opinion does not directly implicate National Popular Vote (NPV), an effort to circumvent the Electoral College, the 10th Circuit's combination of wooden formalism and reverence for the anti-democratic design of the Constitution could lead to invalidation or chilling of NPV. That's unfortunate, I argue, because the Electoral College is a suboptimal means of selecting a president. I favor its elimination or, failing that, its circumvention.

A fair number of Democratic politicians, including some presidential candidates, also favor electing the president by a national direct popular vote. They make three sorts of arguments: (1) The EC is less small-d democratic than national direct popular vote; (2) the EC advantages rural over urban and thus white over minority voters; and (3) the EC is a legacy of slavery. I agree with point (1), but (2) and (3) are dubious.

Wednesday, September 04, 2019

How Many Bullets Do You Need?

by Michael C. Dorf

(N.B.: My latest Verdict column discusses a recent Tenth Circuit ruling about so-called faithless electors, tracing a possible implication for a longstanding effort to circumvent the Electoral College. Today's blog post, however, is unrelated. It is also cross-posted on Take Care.)

Unless the Supreme Court dismisses New York State Rifle & Pistol Assoc Inc. v. City of New York as moot (as the respondents have urged), some time between now and the end of June 2020 the justices will decide their first major Second Amendment case in nearly a decade. Since the Court's landmark rulings in the Heller (2008) and McDonald (2010), the lower courts have allowed a wide range of prohibitions on firearm possession. The Supreme Court's refusal to review any of those decisions on its plenary docket--prior to the cert grant in NYS Rifle & Pistol--even led Justice Thomas, in a 2018 solo dissent from cert denial, to accuse his fellow justices of treating the Second Amendment as "a disfavored right."

I hope he's right about that. If not, maybe we will get a procedural reprieve. Perhaps the Court will dismiss as moot. If not, perhaps it will dismiss the writ as improvidently granted so that the lower courts can entertain arguments to the effect that Heller was wrongly decided based on evidence obtained by electronically searching 18th century documents, as proposed in an audacious brief and even more audacious motion for oral argument time by attorney Neal Goldfarb.

Tuesday, September 03, 2019

This Is No Time for NeverTrumpers to Coyly Threaten Not to Support Some Democrats

by Neil H. Buchanan

Let us say, for the sake of discussion, that you were perfectly happy with the Republican Party until well into the 2016 primary process, and you somehow convinced yourself that 16 of the 17 candidates in your party were a "deep bench" of presidential-level talent.  You would have voted for Ted Cruz, and you actually thought that the guy who turned out to be the weaker Bush brother was somehow impressive.  You turned away only when it became clear that a corrupt, vulgar, opportunistic liar whose only deep commitments were to racism and protectionism took over your party.

The protectionism part was easy, because so-called free trade has always been a supposedly conservative commitment.  (I say "so-called free trade" because there is no such thing as a rule-free trading system, but I digress.)  Saying that Donald Trump is not a true conservative or Republican on that basis makes perfect sense.  (The Big Government stuff, and especially the hysteria about budget deficits, are another matter entirely, being entirely situational for Republicans since long before 2016.)

The racism part?  Hmmm.  You, as someone who stood by your not-so-grand old party throughout its decades of race-baiting (the Southern Strategy, Reagan and "strapping young bucks" and "welfare queens," the first Bush's Willie Horton ugliness, and on and on), are not exactly in a position to claim to be horrified by the idea that your party would stoke and exploit white supremacist hatreds.

Still, maybe you genuinely believed that such bigoted pandering was a detestable but necessary path to power, and you were able at least to make yourself believe that your party did not actually want to act on that stuff.  It is true that you were fine when supposed "thought leader" Paul Ryan rose through the ranks pushing long-since-discredited drivel about dependency theory, which was an excuse to, among other things, specifically target nutrition programs for poor children for budget cuts.

But when Trump made the bigotry explicit, and you saw just how many in your party actually believed the things that you thought/hoped were merely strategic feints, you broke with your party and decided to oppose it in its current, mutated form.  Even better, you have remained steadfast even as other conservatives who once opposed Trump have gotten back on board.  Tax cuts and extremist judges are worth less to you than the rule of law and the preservation of constitutional democracy.

Congratulations, you have found that you have a level to which you will not stoop in pursuit of raw political power!  I do not mean that as (or only as) sarcastically as that sounds, because the essential underpinning of pluralist republican governing systems is a belief that there are some shared political values that are inviolable.  We might have hoped that people would have gotten here long before Trump came along, given Republicans' decades-long efforts to suppress voting and use extreme tactics to retain power.  (See esp. Bush v. Gore, but the list is long.)  Oh well.

Yet here we are, at long last, agreeing that some things are too basic to our shared fates to allow your former compatriots and their cult leader to destroy them.  What should you do now, knowing that you are going to end up supporting someone for president in 2020 whom you never would have considered supporting under any other circumstances?

Monday, September 02, 2019

Everybody Complains About the Weather; Let's Do Something About It

by Michael C. Dorf

For the eleventh consecutive year, on Saturday September 7 I shall participate in the annual AIDS Ride for Life, a 102-mile bike ride around Cayuga Lake to raise money for a wonderful local organization -- the Southern Tier AIDS Program, Inc. (STAP) -- that provides resources and services to people in my community dealing with or concerned about HIV/AIDS and related matters. (That's not intended as an ask for donations, but if you want to donate via my sponsorship page, of course I'd be grateful. Below, I shall make some asks for different causes.)

The ride proceeds rain or shine. In some years, the weather is ideal. In other years, it can be chilly in the morning, hot in the afternoon, intermittently wet, and/or windy. An entirely sensible person would check the weather forecast on the morning of the ride to see whether to bring rain gear, arm warmers, etc. I do that, but I am not entirely a sensible person, so I start checking the weather forecast for the day of the ride as soon as it shows up in the fourteen-day forecast. I do the same sort of thing for other events that can be affected by weather, such as upcoming trips, outdoor games, etc. This is not sensible behavior, because knowing the forecast fourteen, ten, or even five days in advance does not in any way affect what I'm going to do on the day of the event. The weather forecast more than two or three days in advance is, at least in my experience, so subject to change as to be virtually useless.

Uncertain weather forecasts are for me, as for most people most of the time, a source of mild anxiety and inconvenience. By contrast, and as everyone reading this essay is undoubtedly aware, the devastation caused by Hurricane Dorian in the Bahamas and the storm's imminent arrival somewhere in the southeastern United States underscore the deadly seriousness of the business of weather forecasting. Knowing that a hurricane is approaching days in advance can provide people with the opportunity to take appropriate precautions.

Friday, August 30, 2019

Race to the Top: The Environmental Crisis, Animal Products, and Individual Choices

by Neil H. Buchanan

Although my next scheduled veganniversary column is almost eleven months away, I want to offer a few thoughts here about the meat-related causes of the Amazon crisis that Professor Dorf discussed in his column yesterday.  I will also draw from a column in the previous day's New York Times, which carried an op-ed by Farhad Manjoo under the pleasingly bold (and somewhat jarring) title: "Stop Mocking Vegans."

Those two pieces, along with my two-part 11th veganniversary column last month, provide a good framework within which to talk about the ethics of eating meat and the role that small-c capitalism has played in moving us at least a bit in the right direction.  The fact is that veganism -- or at least large-scale partial veganism -- is a necessary and central part of any effective response to the global climate crisis.

Overcoming people's attitudes about veganism, however, remains a frustratingly stubborn barrier.

Thursday, August 29, 2019

Amazonia, Deforestation, Feed Crops, and Collective Action

by Michael C. Dorf

The immediate cause of the unfolding catastrophe in the Amazon is political. Jair Bolsonaro, like other right-wing populists elected to power in recent years, strongly signaled indifference to environmental devastation, which emboldened farmers, ranchers, and miners to set fire to the rain forest in order to clear land for commercial gain. Under intense domestic and international political pressure, the Bolsonaro government has begun deploying the military to put out the fires and begin enforcing environmental laws. These efforts are of course welcome, although Bolsonaro's rejection of aid offered by G-7 countries and his own record cast doubt on his commitment.

In any event, the long-term crisis is only partly amenable to government-led solutions, in Brazil and throughout the world. Consumer eating habits must also change.

Wednesday, August 28, 2019

The Housing Market Continues to Prove That Economics Is a Guessing Game -- Even For Dissenting Economists Like Me

by Neil H. Buchanan

When I write about economics, I typically explore the many ways in which orthodox theory is wrong.  Very, very wrong.  In particular, I have spent a great deal of time (see recent links here) explaining how the notion of economic efficiency (or Pareto efficiency, for the jargon nerds) is a facade that allows conservative economists to pass off rank opinionating -- Minimum wages are bad!  Corporate taxation distorts the economy! -- as objective science.

My counterclaim is not that those of us who dissent from the orthodoxy possess what mainstream economists only claim to possess: an objective theory that transcends morality, politics, and human judgment.  Instead, I say simply that there is no way to wring philosophy and ethical choices out of policy decisions, so we should respect facts and logic but be aware of where those things end and human judgment begins.

This does not always prevent areas of agreement between the majority and the dissenters.  For example, most economists who pray at the altar of efficiency nevertheless believe in responsive monetary policy to stabilize the economy, and most also agree that countercyclical fiscal policy is a good idea at least in relatively extreme cases like the Great Recession of 2008-09.  We all agree that spending public money to subsidize individual businesses or industries is either a waste or at least must be justified by some policy goal (such as developing alternative energy technologies).

Perhaps the safest area of agreement and overlap, however, is in our attitudes toward home ownership subsidies, most particularly our universal disparagement of the mortgage interest deduction (MID) in the tax code.  Recent evidence suggests, however, that at least one of the underlying points of agreement is one on which we might all be wrong.  What if the MID simply does not matter much at all?

Tuesday, August 27, 2019

Strange Bedfellows: Structural Arguments and Originalism

By Eric Segall

I'd like to call attention to a wonderful new essay by Professor Thomas Colby titled "Originalism and Structural Argument" published in the Northwestern University Law Review. Colby raises serious questions about federalism and separation of powers cases that most originalists favor but which are difficult to reconcile with originalist methodologies. Colby, a long-time critic of originalism, especially the so-called “New Originalism,” contends that cases like Printz v. United States (Congress can’t commandeer state executives unless it does so incidentally through laws applicable to private actors too), Alden v. Maine (states have sovereign immunity from federal question suits in their own courts), and Seminole Tribe of Florida v. Florida (states can’t be sued in federal courts by citizens of their own states), are all based on non-textual, structural arguments arguably inconsistent with the originalist canon. Colby’s arguments are strong and should be wrestled with by originalist scholars who favor the results in these and similar cases.

Monday, August 26, 2019

Congress Should Fashion a Jeffersonian Fix to Trumpian Royalism

by Michael C. Dorf

Just days after Donald Trump likened himself to a Biblical King of Israel, he asserted a power that might be better associated with the King of America. Miffed that China was taking the predictable and predicted step of responding to Trump's tariffs on Chinese goods with tariffs on American goods, Trump tweeted the following remarkable edict: "Our great American companies are hereby ordered to immediately start looking for an alternative to China, including bringing our companies HOME and making your products in the USA."

"Start looking for an alternative to China" is sufficiently nebulous that one might think or hope that the order was meaningless, but no, later the same day Trump followed up with a tweet that showed he had spoken to someone in the administration with some legal training who had told him how he might justify enforcing some sort of actual trade restriction. He invoked the Emergency Economic Powers Act (EEPA) of 1977.

To be sure, when asked a question at the G-7 meeting in France, the mercurial Commander in Chief acknowledged having "second thoughts" about his escalation of the trade war with China. But then a White House spokesperson claimed that the only second thoughts Trump was having regarded whether to escalate even further. And then Trump announced a new round of trade talks with China, while praising Xi Jinping. Whether Trump attempts to follow through on his ostensible order should those talks fail to produce a deal is thus entirely unclear. I won't hazard a prediction of what will happen five minutes after I publish this column. Instead, I'll focus on the legal and policy questions raised by the initial assertion--that the EEPA gives him the authority to order US companies to cease doing business with China.

Friday, August 23, 2019

Conservative Posturing vs. the Logical Incoherence of Efficiency in the Takings Context

Note to Readers: Yesterday, Verdict published my new column: "Elections, the Economy, and Trump: Part One."  There, I explain why Donald Trump's claim that the economy is great (and thus that he should be reelected) is pure nonsense as a matter of economic reality.  My column here discusses a different topic entirely, but I encourage interested readers to take a look at that Verdict piece as well.



by Neil H. Buchanan

Earlier this week, I returned to my recent musings about the incoherence of economic efficiency as a theoretical construct, much less as a practical guide to law or policy.  There is, I am both happy and sorry to report, more to say.

My overall point in that column was that the lack of a baseline against which to measure economic efficiency (in any context) is especially devastating to any conception of what counts as a regulatory taking -- that is, a claim that the government has done something that made an owner of property poorer by changing (or wiping out) the value of the property.

The problem is even worse than it seems, however, because the theoretical baselessness of economic efficiency makes it impossible objectively to measure the value even of a classic (non-regulatory) taking, that is, an actual seizure of property.  Any change in government rules will of necessity change what would count as the fair-market values of all property, and indeed a change in those rules (motivated by some other policy purpose) could even make some properties valueless.  For example, an owner of rural land who would be happy to have a new highway go through the property can be left with nothing if the engineers determine that the highway's route should be changed.  Thereafter, "just compensation" for actually seizing that property would be (by assumption) zero.

Here, I want to expand on an important aspect of the baseline problem in the takings context, partly because it is so fascinating but mostly to connect these arguments to a theme that has shown up repeatedly of late here on Dorf on Law, which is that conservatives' pretensions to offering objective, neutral, and non-ideological analyses in both economics and law are a lot of hot air.

Thursday, August 22, 2019

Trump's (Sort of Revived) Proposal to Cut Capital Gains Taxes Unilaterally is Illegal, But Could He Get Away with it?

by Michael C. Dorf

Earlier this week, President Trump re-floated an idea that he and various GOP politicians have previously proposed: the notion that via unilateral executive action, he could effectively cut the capital gains tax by indexing the cost basis of investments to inflation.  As of this writing, Trump has backed away from that idea; but given how quickly he changes his mind, this or a similar proposal could be back on the agenda within a matter of weeks or days, if not minutes.  Notwithstanding that uncertainty, therefore, this seems like a good moment to offer an analysis of Trump's proposal.

As Prof Buchanan explained in a column last year, even a person who somehow concludes that such indexing would be a good idea as a matter of policy must nonetheless concede that a different policy choice has been made by Congress, which provided for inflation indexing in other statutory provisions but not in the capital gains provision.

Accordingly, an Office of Legal Counsel memo (from p. 136 of the link) in the Bush I administration concluded that the President and Secretary of the Treasury lack authority to construe cost in the calculation of taxable capital gains as inflation-adjusted cost. As Prof Buchanan notes, proponents of executive unilateralism on capital gains argue that the 2002 SCOTUS ruling in Verizon Communic. Inc. v. FCC fatally undercuts the argument of the Bush I OLC, but that's just not true. As Daniel Hemel & David Kamin explain convincingly in a recent article in the Yale Journal on Regulation, the Verizon case at most undercuts one relatively unimportant argument on which the OLC memo relied. Overall, there remains no good basis for executive unilateralism here.

But wait. Could the Trump administration get away with a unilateral executive capital gains tax anyway? Suppose that Trump asks AG Barr to pressure OLC to rescind the Bush-era memo, that it complies by giving a torture-memo-style fig leaf of cover, and that the IRS then treats all returns taking advantage of the inflation-adjusted basis as lawful. Would anyone have standing to challenge the new policy? It's true that the government's failure to collect tax revenue lawfully owed by some taxpayers could harm the rest of us, but that sort of diffuse harm is a so-called generalized grievance for which standing is disallowed. So Trump could get away with it, right?

Wednesday, August 21, 2019

The Truth Hurts: Why All the Angst About the Senators' Amicus Brief?

By Eric Segall

Social media pundits, constitutional law professors, mainstream journalists, and conservative politicians are all agog about a brutally honest amicus brief filed in a Second Amendment case by Democratic Senators Whitehouse, Hirono, Blumenthal, Durbin and Gillibrand. Republican Senator Lindsey Graham called the brief  "an extraordinary threat from one branch of government to another." As the Washington Post notes, "the Wall Street Journal editorial board dubbed it the opposite of an amicus filing — an 'enemy-of-the-court brief' — and the National Review’s David French called it “astonishing.” Even, liberal law professor Larry Tribe said the brief "was inappropriately — and stupidly— threatening,”

The case involves a relatively silly New York City gun law that has been repealed and cannot be reinstated absent a change in governing New York State law. In other words, the case is almost certainly moot, as the amicus brief correctly suggests and Professor Tribe argues in his remarks about whether the Court should hear the case. But the hoopla isn't about federal jurisdiction but rather the Court as a political institution. The brief is remarkably snarky while also being astutely accurate. As a matter of strategy, the brief may not succeed. As a matter of truth-telling, academics should be praising its substance, if not its style. 


Tuesday, August 20, 2019

Takings and Efficiency: Incoherence Meets Incoherence

by Neil H. Buchanan

The search for a neutral, non-ideological, apolitical answer to policy questions is both admirable and doomed to fail.  It is admirable because we should all want to live in a world in which there is a way to say with confidence, "This is simply true, not as a matter of political preference but as a matter of logic and evidence."  It is doomed to fail because, in the end, policy questions are political, and there is no natural baseline against which we can measure any and all policy alternatives.

That is not to say, of course, that there are no objective facts or even that there are no reliable conclusions that can be drawn from facts.  There are no facts, for example, supporting the claim that Barack Obama bugged Donald Trump's offices (nor are there facts supporting much of anything that Trump says).  There are, however, facts that so strongly support the conclusions that species evolve and that the climate is changing -- just to choose two leading examples-- that one can readily conclude that anyone who denies those scientific conclusions is acting in bad faith.

Even so, it is a fool's errand to try to describe a method by which policy choices can be compared against a neutral baseline to deem them efficient or inefficient.  I have run through various versions of that argument in columns here on Dorf on Law over the past few months (here, here, here, here, and here).

Today, I want to extend that argument to the legal doctrine known as takings, demonstrating that the problems with the efficiency notion carry over to the takings doctrine, rendering it just as subjective as every other attempt to apply orthodox economic theory to real-world problems.

Monday, August 19, 2019

Brexit, Boris, Trump, and the Relative Virtues and Vices of Constitutional Entrenchment

by Michael C. Dorf

In both the US and the UK, serious people now worry that the leaders of government could attempt to retain power after being voted out of office. DoL blogger Neil Buchanan has repeatedly explained (e.g., here) why we have reason to fear that Donald Trump could lose the 2020 election yet receive enough support from Republicans in Congress and elsewhere to claim a fig leaf of legitimacy for staying on while claiming voter fraud or the like. Meanwhile, last week the NY Times reported on a looming scenario in which Boris Johnson could lose a parliamentary vote of no confidence yet defy convention and the tacit assumption behind the Fixed-Term Parliaments Act that a sitting PM should yield power to a new PM capable of forming a government pending a new general election; instead, Johnson might call a new election but remain in office pending its outcome, even after the no-confidence vote. And all of that would happen as the UK crashed out of the EU.

The Times article points to a similarity between the US and the UK, indeed, to a similarity among all constitutional democracy: given the impossibility of anticipating and constraining every opportunity for amoral would-be tyrants to seek advantage, no politico-legal system can operate without some degree of good faith by a critical mass of key officials. Perhaps in the US that would mean the Supreme Court and in the UK the Queen stepping in to block the de facto coups of Trump and Johnson, respectively.

However, in both countries there are reasons to doubt that the deus ex machine would come to the rescue: here the Republican-majority Court's willingness to appear (some might say to be) partisan could lead to invocation of the political question doctrine (see this past Term's political gerrymandering case) or some substantive basis (see Bush v. Gore) for sustaining Trump's coup. In the UK, the Queen might well adhere to the longstanding norm of royal political neutrality, even as Johnson was flouting other longstanding democratic norms.

I agree with the observation that democracy everywhere depends on norms and some measure of good faith. But just as the similarities in appearance, repugnance, and buffoonery between Trump and Johnson mask key differences (as explored recently by John Oliver), so too the differences between the US and the UK may be important in how and perhaps even whether each country survives an attempted coup by its respective clown-tyrant.

Friday, August 16, 2019

America's Health Care Dysfunction Gets Real

by Neil H. Buchanan

Yesterday was my first official day as an employee of the University of Florida.   The day included the usual experiences for a professional worker: seeing my office for the first time, signing up for internet service, getting a parking pass (which I will not need, thankfully), meeting a bunch of friendly new faces, getting lost in the building, and so on.  It also meant that I am once again covered by health insurance ... I think.

Because I occasionally write about health-care policy issues, this seems like a good moment to revisit a few of the many things that are so wrong with the current system in the U.S. -- not just for people who are uninsured or underinsured, but also for the very lucky ones like me who have what at least seems to be adequate (albeit expensive) coverage.  We often become so accustomed to those background facts that it is all too easy to allow the political conversation about health care to become utterly abstract.

I am at this very moment supposed to be choosing my health care plan (along with dental and vision), yet I am instead writing this column about the absurdities of the current system, explaining why this is not an acceptable way to run a nation's health care system.  The very desire to delay this annoyance is, of course, a key bit of evidence that there is something very wrong with the way even supposedly good coverage is administered.

One conclusion is clear: We can and must do better.

Thursday, August 15, 2019

More Things in Heaven and Earth: What the Law Can Teach Moral Philosophers

by Michael C. Dorf

Last week and weekend, I had the good fortune to attend the 12th annual Rocky Mountain Ethics Congress (RoME), hosted by the University of Colorado Center for Values and Social Policy. Prof Colb gave one of three keynote addresses during the four-day conference, in a speech that was also the 2nd annual Tom Regan Memorial Lecture, co-sponsored by the Culture & Animals Foundation. For those unfamiliar with Regan's work, he was a pioneer in the animal rights movement. I italicize "rights," because while Peter Singer's Animal Liberation inspired much of the modern movement, Singer is a utilitarian who, following Bentham, regards rights as nonsense on stilts. Regan was the first philosopher to make a comprehensive set of deontological arguments for animal rights as such.

Although Prof Colb and I acknowledge the importance of Regan's work, as she put the point in her lecture, the way that scholars pay tribute to one another is by critical engagement with their ideas, and so she offered a critique of a point Regan made. Although Regan was (like us) a vegan who thought nearly all animal exploitation unjustified, he also thought that in triage situations, it is morally permissible, indeed obligatory, to prefer human life to other animal life. Thus, to use his examples, should four humans and one dog find themselves on a lifeboat that could only support four such mammals, the dog should be thrown overboard. Even more arrestingly, Regan said that one should throw over a million dogs before tossing a single human.

In her lecture, Prof Colb explained that although Regan thought experimentation on animals is wrong, his lifeboat examples open the door to experimentation and ultimately to all animal exploitation. I won't attempt to summarize the lecture (other than to say it was awesome), because my main interest in this essay is in the rest of the conference. As one of two legal scholars attending a conference of philosophers, I came away thinking there are many opportunities for fruitful engagement between legal scholars and philosophers. We legal scholars see where philosophy can be helpful; I'm going to suggest that philosophers can do more with the law.

Wednesday, August 14, 2019

Terrifyingly Effective Terrorism: White Supremacists versus the Field

by Neil H. Buchanan

Although the national conversation has -- rather incredibly -- already moved on from the El Paso and Dayton mass shootings (now covering awful-but-still-less-bad issues like Jeffrey Epstein and not-at-all-important matters like Joe Biden's flubs), I am still thinking about what it means to live in a country in which white supremacists are starting to take action on their hatreds more frequently and openly.

There is no doubt that what the white supremacists are doing counts as terrorism, because they are terrifying people to the point that children are being equipped with Kevlar backpacks and people are now afraid to do normal things in their daily lives.  The point of terrorism is to make people feel that they are never safe.  That is what domestic abuse does to an isolated spouse (almost always the wife, of course), and it is what national or international networks of terrorists aim to do to people in general.

This then raises a particularly grim question: Who is "best" at creating terror?  The answer is that, although white supremacists are possibly the least organized of all terrorist groups, they seem to have stumbled upon the most effective way to terrorize people.  How does that work?

Tuesday, August 13, 2019

Every Decent Person v. The Estate of Jeffrey Epstein: What Now?

by Diane Klein

The news of Jeffrey Epstein's death (apparently by suicide) in the federal Metropolitan Detention Center in Manhattan early on the morning of Saturday, August 10, 2019, has taken the Internet by storm, and spawned a thousand conspiracy theories.  Of course, there is a great deal that is still not known, and won't be known, until a much more thorough investigation is undertaken.  One thing is certain: the criminal prosecution of Jeffrey Epstein is over.  The death of the defendant brings any such legal action to an end.

Does that mean all the lawyers go home?  Not by a long shot. The legal farrago that is the Epstein matter carries on.

Monday, August 12, 2019

Originalism as Current Law? Yet Another response to Baude and Sachs

By Eric Segall

Last Friday, two things happened to me related to originalism. I received in the mail reprints of an article I wrote for Constitutional Commentary (no link yet) called "Originalism Off the Ground." The piece was a response to yet another Arthurian attempt by Professors Will Baude and Stephen Sachs to convince the world that Originalism is indeed our law. The thrust of my piece was that the collective work of Will and Steve on originalism and history (I will use their first names because I consider them friends) has failed to address the core realist critique that constitutional law is mostly the sum of the Justices' value preferences, and originalism and all other meta theories play at most a negligible role.

The second thing that happened on Friday was that Steve put on Facebook a link to his and Will's new essay titled "Originalism and the Law of the Past," published by the Law and History Review. The SSRN link is here. The third and fourth sentences of this essay state that "originalism is best understood as a claim about modern law-which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders' law, unless lawfully changed."

Their entire essay (with one small exception discussed below) ignores the argument that the "law" of the past in constitutional law is composed of imprecise text, contested history, political practices that often lead to opposing perspectives about the issue of the day, and Supreme Court precedent which is mostly dictated by values, politics, and experiences, not history. In sum, once again, Will and Steve do not address in any serious way the realist critique. They are avoiding it like the plague (I have drawn their attention to it on numerous occasions in person and in writing). For two legal positivists, this avoidance is important.

Friday, August 09, 2019

The Foolishness of Overestimating Trump

by Neil H. Buchanan

Democrats seem to over-learn certain lessons.  They lost to Ronald Reagan in 1980 and 1984 and decided that the U.S. was a "center-right nation" and that the best thing to do was to become Republican lite.  Bill Clinton later decided to cave to Republican demands for a balanced federal budget and -- when the dot-com bubble created prosperity and a temporary surplus -- Democrats decided that being fiscal hawks was the best approach, leading to Obama's foolish "pivot" to austerity in 2010.

As I have argued frequently (most recently here), Democrats have somehow convinced themselves that their policy views are unpopular, even though the Republicans are under water with voters on every major issue.  Somehow, it is always Democrats who are engaged in soul-searching and wondering why not everyone agrees with them about everything.  The big newspapers and networks are also now in an infinite do-loop as well, asking how "heartland voters" -- understood as what used to be known as Reagan Democrats -- feel about every issue.

The 2016 election was an even bigger shock to the Democrats (and the world) than 1980.  Reagan was seen as an easily beatable doofus, but at least he had been a governor and knew how to deliver a speech -- and had never bragged about sexually assaulting women.  We must of course learn to take nothing for granted, but that does not require treating Trump as some kind of political god who can only be beaten if all of the forces of the universe align in exactly the right way.

This is yet another version of what has long been called the Democrats' defensive crouch.  But it is worse, in ways that are causing Democrats inadvertently to make Trump stronger.

Thursday, August 08, 2019

Second Thoughts About the T Word

by Michael C. Dorf

A recent Washington Post op-ed by Harry Litman occasioned by the mass shootings in El Paso and Dayton calls for the enactment of a federal statute criminalizing domestic terrorism as such. In light of various statements by law enforcement and other officials condemning the respective acts as domestic terrorism, Litman points to the seeming oddity that there is no federal domestic terrorism statute. (He acknowledges that the PATRIOT Act defines domestic terrorism but complains that it does not state a specific crime of domestic terrorism.)

Partly Litman makes a practical point. He says that a specific domestic terrorism law would "bring such crimes into the rubric of predicate offenses for providing material support to terrorists [and] would also provide more resources for the [FBI] on the data-gathering side as well as the prosecution side." Perhaps that's true, although it's not clear that existing legislation is insufficient. Rather, one might think that the resource problem, if there is one, stems from the Trump administration's decision to direct funds away from programs that combat far-right extremist violence.

Meanwhile, it's not as though the absence of a domestic terrorism statute means the El Paso killer is likely to go unpunished. He faces the possibility of state and federal murder charges. Consider another domestic terrorist, Timothy McVeigh. He was found guilty and executed based on charges of conspiracy to use and use of a weapon of mass destruction, destruction by explosives, and first-degree murder. Like the El Paso killer, he could also have been charged under state law. (I am only discussing the El Paso killer, because the Dayton killer is dead.)

Litman acknowledges that there is no shortage of laws under which the El Paso killer can be prosecuted, but he says that the possibility of charging him with these other crimes should not stand in the way of a federal domestic terrorism statute, in the same way that the existence of murder and other laws should not stand in the way of hate-crime legislation. Just as there is expressive value in calling hate-crimes what they are, so there might be expressive value in calling terrorism what it is.

There is, but there is also danger in doing so.

Wednesday, August 07, 2019

Good Faith in Law and Moral Obligation

by Michael C. Dorf

A former colleague of mine used to say that popular misconceptions about the law could sometimes be useful. The example he gave most frequently was the widespread but false belief that for a contract to be binding it must be written. That is not true, except in particular circumstances. Traditionally, the so-called statute of frauds made unenforceable oral contracts that could not be performed in a year or less, contracts for the sale of real estate, and various other oral contracts. Modern statutory schemes expand the categories for which a written contract is necessary. For example, the widely adopted Uniform Commercial Code requires a writing for a contract for the sale of goods for the price of $500 or more. However, as a general matter, oral contracts are binding.

Nonetheless, the popular belief that all contracts must be written to be binding has a salutary effect. It induces those who hold the belief to put their contracts in writing, which in turn greatly simplifies proving the existence and terms of a contract should a dispute arise. One might think that the resulting certainty has such great value that it justifies an actual legal rule requiring all contracts to be written to be binding, but there are countervailing reasons to think that most oral contracts ought to be enforceable. I am not now interested in resolving the policy question whether to extend the requirement of a writing to all contracts. Instead, I'm interested in exploring the potentially salutary effect of what might be thought to be a related misperception of contractual obligation--that contracts impose moral as well as legal obligations.

In my latest Verdict column, I discuss recent criticism by Golden State Warriors head coach Steve Kerr of NBA players demanding trades while they have considerable time remaining on their contracts. Kerr pretty clearly had in mind Anthony Davis's successful demand that the New Orleans Pelicans trade him to the Los Angeles Lakers and Paul George's successful demand that the Oklahoma City Thunder trade him to the Los Angeles Clippers. Kerr said that NBA players have every right to sign wherever they want when they are free agents, but that while they remain under contract, they owe their effort and loyalty to the teams the are on. He appeared to use the language of moral obligation, not just legal obligation.

Tuesday, August 06, 2019

Lock Him Up!

by Neil H. Buchanan

[Note to readers: The two mass shootings over the weekend continue -- quite rightly -- to consume people's attention.  I wish that I could think of something to add to the discussion, but for now, my thoughts are jumbled and my feelings are raw.  I have thus decided to write today on a different topic, one that is important but less immediate and less emotional.]

One of the most notoriously awful aspects of Donald Trump's campaign rallies in 2016 was the howling chants of "Lock her up!"  Indeed, the people who thrill to Trump's brand of ugliness so much that they decide to attend his speeches in person clearly reveled in those chants, relishing the two-minutes-hate pulsing thrill of imagining the hated Hillary Clinton being led off in an orange jumpsuit.

Reportedly, those chants continue to be part of the audience-participation show that is a 2019 Trump rally.  And we can certainly imagine that something like this will become part of the Trump cult's response to whomever is the Democratic nominee next year.  After all, they started the "Send her back!" baying when Trump decided to attack U.S. Rep. Ilhan Omar.  Name a possible Democratic nominee, any of them, and tell me that the Trump crowds will not do something like that again.  If one is honest, it is impossible to deny that this is inevitable.

Does it matter what the content of the chant is?  And would it make anti-Trump voters equivalently awful if they were to start shouting "Lock him up!" at campaign events?  I think that the answers to those questions are yes and no, respectively, but they are certainly interesting questions that deserve some respectful consideration.  What do you do when an unindicted criminal is in the White House?

Monday, August 05, 2019

Arizona's Long-Shot Original Jurisdiction Opioid Case in the SCOTUS

by Michael C. Dorf

As recently reported, the State of Arizona is trying to sue members of the Sackler family and Purdue Pharma in the US Supreme Court, invoking (in its complaint and accompanying brief) both a federal jurisdictional statute and Article III, Section 2 of the Constitution, which provides in relevant part: "In all cases . . . in which a state shall be party, the Supreme Court shall have original jurisdiction." The case falls within the subject matter of the federal courts because, in compliance with the prior paragraph of Article III, Section 2, it is a "controvers[y] between a State and citizens of another state." While the Eleventh Amendment curtailed such jurisdiction where states are defendants, it left such jurisdiction intact where states sue as plaintiffs.

Still, bringing this lawsuit in the US Supreme Court in the first instance is problematic in at least four ways.

Friday, August 02, 2019

Malcolm Gladwell Mangles Casuistry

by Michael C. Dorf

The fourth season of Malcolm Gladwell's podcast Revisionist History includes a great deal of material of relevance to lawyers. Episodes 1 and 2 critique the LSAT and time-pressured law school exams on the ground that they reward quick thinkers at the expense of slower-but-deeper thinkers. There's much in those episodes with which I agree. For just about all of my 27 years in law teaching I have given either 24-hour or 8-hour take-home exams rather than 3-hour in-class exams for exactly the reason that these episodes underscore: The real-life practice of law often puts time pressure on attorneys, but (except perhaps during a trial when an attorney must make split-second decisions whether to object to proffered evidence) rarely does actual legal practice involve the kind of time pressure that the LSAT and in-class exams place on test-takers.

That said, these episodes overclaim. For example, Gladwell contrasts chess grandmasters who are the best speed players with those who are the best players at a normal pace. Fair enough, but Gladwell fails to recognize that even those he calls tortoises are better at speed chess than nearly everyone else in the world, while even those he calls hares are better at normal-pace chess than nearly everyone else in the world. And likewise in law. Time pressure is a source of variation in performance, but it's not the only source and rarely the most important. Time pressure will affect the performance of various excellent lawyers differently. Some excellent lawyers are truly outstanding under time pressure; others are excellent; some are merely very good. By contrast, incompetent lawyers will be incompetent at any speed.

In the balance of this post, I want to focus on another set of flaws in Season 4 of Revisionist History. Episode 5 begins a three-part mini-series on casuistry--a method of moral reasoning closely associated with the Jesuits. The word casuistry is sometimes used as a synonym for sophistry or fallacious reasoning, but Gladwell uses it in its original and literal sense, as case-by-case reasoning rather than deductive reasoning from general principles. (Casuistry derives from the Latin casus, meaning case). I share some of Gladwell's appreciation for this form of reasoning, but I think his key illustrations misfire badly.

Thursday, August 01, 2019

Debating Republican Talking Points: Bad Strategy or Good Practice for the General Election?

by Neil H. Buchanan

Based on my reading of much of the recent commentary from so-called centrists and NeverTrump conservatives, it appears that they experienced something of a group orgasm in watching this week's Democratic presidential not-at-all-debates.  Why?  Because they have convinced themselves that the less liberal candidates brutally exposed the supposedly crazy liberals for being totally unrealistic about health care.  In the estimation of this pearl-clutching crowd, Liz Warren and Bernie Sanders were laid low by the cold reality of centrist logic.

This is nonsense, of course, but it would nonetheless be useful to learn something about how progressives can change the framing of the health care debate going forward.  More generally, it is important to understand the difference between a healthy debate and an unhealthy debate at this stage of a campaign.

The short version of my argument below is that it is not at all healthy to frame opposition to Sanders and Warren on health care (or other Democrats on other issues) in ways that reinforce Republican narratives.  There is a way to hone arguments and to develop responses to Republicans' attacks, but that requires making clear that that is what we are doing.

Wednesday, July 31, 2019

Supreme Court 2018 Term in Review: Waaaaay Too Soon to Say that Kavanaugh-for-Kennedy Was Not a Game Changer

by Michael C. Dorf (cross-posted on Take Care)

As I noted last week, tomorrow I'll be spending the day joining a great collection of law professors, lawyers, one journalist, and one judge to talk about the most recent SCOTUS term and preview the coming one. In last week's post I previewed my remarks on a case at the intersection of the dormant commerce clause and the 21st amendment. I also promised that I would follow up with two more posts: one on the Term in general and the other with some additional commentary on one of the Term's blockbusters for which I also will be providing an overview at the PLI conference: the Bladensburg Peace Cross Establishment Clause case. I'm going to break that promise (kinda) by talking about both in today's post.

But first, a reminder: You can still sign up to see the day-long event live in NYC, at one of various satellite locations, or from the comfort of your computer. Here's an alphabetical list of the panelists: Joan Biskupic; Erwin Chemerinsky; Sherry Colb; Me; Miguel Estrada; Leon Friedman; Judson Littleton; Janai Nelson; Burt Neuborne; Cristina Rodriguez; Martin Schwartz; Ted Shaw; and (Hon.) Jeff Sutton.

Tuesday, July 30, 2019

Does It Matter Exactly How the Supreme Court Mangles the Law to Help Trump?

by Neil H. Buchanan

When Anthony Kennedy was still on the bench, and especially in his final term, the Supreme Court issued many horrible decisions.  Citizens United: Shelby County v. Holder; the anti-union case in 2018 (Janus); the Ohio voter purge case (Husted v. Randolph Institute); Masterpiece Cakeshop.  The list is a long one.

One of the Court's worst decisions in decades, of course, was the Muslim Travel Ban case (Trump v. Hawai'i), which is widely and rightly considered to be this generation's Karematsu -- a description so apt that John Roberts felt compelled to include in his opinion a doth-protest-too-much section that essentially said: "We're not issuing a new Korematsu.  See, we're explicitly admitting decades later that Korematsu itself was a bad decision.  How dare you say that our new case is like that other case ... that we have now disavowed?!"

What made the Muslim Travel Ban case egregious as a legal matter was its tortured excuses for ignoring the boatloads of evidence of bias on the part of Donald Trump and his Administration, an example of judicial rationalization that is still breathtaking in its dishonesty.  Another very recent decision also exposes the majority's willingness to engage in judicial duplicity.

My question here is whether the particular kind of duplicity that the Court's conservatives use when reaching these decisions matters.  I think it ultimately does not, but it is at least worth exploring the question.

Monday, July 29, 2019

Original Intent, Original Meaning, or Let's Call the Whole Thing Off

By Eric Segall

Michael Rappaport and John O. McGinnis, two of our country's leading academic originalists, recently stated in an essay for a Northwestern University Law Review Originalism symposium that "the debate over original intent and original public meaning has launched scores of law review articles." This observation is both accurate and unfortunate, but not for the reasons provided by the authors.

In their essay, Rappaport and McGinnis try to bring the warring sides to the table and closure to this debate. According to the authors, both sides believe that the meaning of the constitutional text is fixed at ratification, but they "diverge sharply on the object of their interpretation."  Those who believe in original intent think it is the enactors' subjective intentions that matter while those who favor the original public meaning approach believe that constitutional interpretation should be guided by the meaning of the text as "reasonably understood by a well-informed reader at the time of the provision's enactment."

Rappaport and McGinnis argue that judges today should engage in constitutional interpretation through "original methods originalism," whereby judges are bound by the methods of interpretation that were accepted at the Founding (or presumably in 1868 for the Fourteenth Amendment). They argue that this method demonstrates that public meaning originalists have the better of the argument. Their evidence is persuasive to this reader with the caveat that obviously the intentions of those who wrote and ratified the constitutional text provide at least relevant evidence as to what the text likely meant to the "well-informed" reader of the time. I do not think either author would argue with that proposition.

I am writing about their essay for a different reason, however, than taking sides in the debate over intent versus meaning. Both Rappaport and McGinnis have devoted their enormous energies to books, law review articles, blog posts, essays, and op-eds, discussing how originalists should go about their business.  I will assume for sake of argument, and I think their book "The Good Constitution" supports this hypothesis, that they are talking normatively, not descriptively. Neither man would argue that originalism of any stripe has been the dominant method the Supreme Court has used over time to decide constitutional cases.

As a theoretical matter, their original methods originalism has properly drawn much academic attention because, and, I'm obviously a case a point, originalism is all the rage right now. But if they expect judges deciding real cases that matter to real people and implicate real laws and policies to adopt their interpretative model, they will be sorely disappointed. As I've written many times in this space, the Justices care little about original meaning and/or original intent when reaching their conclusions (as opposed to after-the-fact rationalizations) and mostly about the actual consequences of their decisions. Paraphrasing retired Judge Posner, constitutional law is about values, politics, and experiences, not text, logic, or history. Ironically, the main example used by Rappaport and McGinnis in their essay to support their interpretative preferences also demonstrates how little "interpretation" matters to judges deciding real cases or even to people debating pressing constitutional questions.

Saturday, July 27, 2019

Supreme Court Becomes Another Brick in Trump's Wall

by Michael C. Dorf

**Updated and corrected

Friday's Supreme Court order permitting the Trump administration to begin construction on a border wall using funds that were appropriated by Congress for other purposes was not exactly a ruling on the merits. Nonetheless, if one follows the clues in Justice Breyer's separate opinion, it becomes apparent that five justices have tacitly accepted Trump's absurd claim that the situation at the southern border addresses "unforeseen military requirements." That language appears in the 2019 military appropriation act that the government relied upon to shift funds to border wall funding. The government's argument parallels the equally absurd claim that the declaration of "a national emergency . . . that requires use of the armed forces" (as required by another statute) authorizes the freeing up of other funds to build the border wall.

Below I explain why the Court's order might reflect a favorable view of Trump's substantive position, but first I ask readers to pause over the three serious legal flaws contained within that position.

Friday, July 26, 2019

Lab-Grown Meat and Other Followups to "Veganism, Year Eleven"

by Neil H. Buchanan

Yesterday, I published my annual veganniversary column here on Dorf on Law: "Veganism, Year Eleven: Capitalism and Freedom."  In it, I offered my standard update on what it is like to live as a vegan, noting that "veganism is ascendant" in the sense that in the first-world places that I frequent, the food industry is enthusiastically responding to market demand for better and wider vegan choices.

I then noted that this virtuous cycle -- better vegan products encourage more people to eat vegan food (even people who do not self-identify as fully vegan), which encourages more restaurants and food stores to supply better vegan options, which encourages still more people to eat vegan food, and so on -- is one of the best arguments available in favor of capitalism properly understood.  That is, if capitalism is the system by which demand and supply interact in ways that are superior to central planning -- put differently, if Adam Smith's invisible hand has any meaning at all -- then the expanding availability and consumption of vegan food is capitalism par excellence.

Because of my preference for writing about political issues, I then used that column to note that the Democrats who are now being red-baited -- including those who call themselves democratic socialists -- are in fact better capitalists than are Republicans, who claim to love "the free market" but in fact really only love rich people and will rig the system to allow even bad capitalists to remain rich.

Washington Post economics columnist Catherine Rampell offered a related argument today, demonstrating that "Trump is the true socialist" by using government to subsidize big agriculture and engaging in central planning to prop up failing industries like coal.  The Republicans' hypocrisy is rank.  The subtitle my column yesterday refers to conservative icon Milton Friedman's superficial bestseller, Capitalism and Freedom, which became a bible for people who misunderstand Adam Smith and who rail against Big Government.

All of which means that, as usual, I used the veganism part of my veganniversary column as an excuse to talk about something else.  I do so not because I think of veganism as unimportant -- I am glad to have embraced veganism, so much so that I celebrate it on this blog annually -- but because my comparative advantage is in writing about economics and law, not vegan philosophy.  (Even my word choice there, comparative advantage, tips the reader to my default mindset.)

Even so, one reader of yesterday's column posted a series of questions on the comments board, seeking my views on some ethical and practical matters.  As those questions were quite interesting, I will use the remainder of this column to answer them, focusing in particular on how I feel about the prospect of lab-grown meat.

Thursday, July 25, 2019

Veganism, Year Eleven: Capitalism and Freedom

by Neil H. Buchanan

Yesterday was the eleventh anniversary of my becoming a vegan -- my veganniversary, as I still insist on calling it -- making today's column the first opportunity to offer my annual musings on all things vegan.  (Interested readers with time on their hands might want to read one or more previous veganniversary columns: 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, and the original announcement in 2008.  In my excitement in 2008, I also wrote a followup column a week later.)

I will divide my thoughts today into two categories.  First, I will offer some very anecdotal observations about living as a vegan in a world where attitudes about veganism are becoming interestingly complicated.  Second, I will use the increasing availability of vegan foods in mainstream stores and restaurants to make a point about why I am happy to call myself a capitalist in the way that Senator Elizabeth Warren calls herself a capitalist -- and, honestly, in the way that Senator Bernie Sanders and Rep. Alexandria Ocasio-Cortez would accurately call themselves capitalists if they were not so committed to their democratic socialist label/brand.

First, the annual summary of what it is like being a vegan in the worlds in which I operate:

Wednesday, July 24, 2019

The Troubling Resemblance of Asylum Eligibility to the Tort System

by Michael C. Dorf

In my latest Verdict column, I criticize what I dub the Trump administration's new "Apply in Guatemala or Mexico" rule barring migrants who arrive at the US-Mexico border from seeking asylum here if they did not previously seek asylum in a country they traversed en route. As I explain, absent a safe-third-country agreement of the sort that Guatemalan President Jimmy Morales did not enter with the US earlier this month, the policy is plainly illegal. I also argue that if such an agreement were entered, it too would be illegal, albeit not subject to judicial challenge. In this accompanying essay, I want to say a few words about asylum eligibility more broadly. As indicated by the title, I'll then suggest a troubling similarity to the tort system.

The federal asylum statute was enacted to implement in domestic law the international obligations of the US under the Convention Relating to the Status of Refugees. Both domestic and international law contain an obligation to provide asylum to refugees who have fled their home countries due to persecution based on "race, religion, nationality, membership in a particular social group, or political opinion."

Substantial case law in the US and elsewhere construes each of those terms, especially what counts as  "persecution" based on membership in a "particular social group." For example, in the column, I note that a court has enjoined the Trump administration's narrowing of a prior policy allowing people fleeing gang violence or domestic violence to qualify. According to the Trump policy (promulgated by then-AG Jeff Sessions in a particular case and an accompanying policy memo), persons fleeing gang or domestic violence should be denied asylum absent particularized proof that their home government either condoned or demonstrated complete helplessness to prevent the private violence. Although the court ruling enjoining this policy is based partly on procedural grounds, it also explained why the policy is substantively problematic: the Trump administration set an unreasonably high standard for showing that a government is unwilling or unable to prevent persecution by private actors.

Yet while the Trump administration has adopted an unduly stingy approach to the granting of asylum (or preliminary relief based on a "credible fear"), the domestic and international legal standard itself is stingy in one very important regard: it requires admission of refugees fleeing persecution but not other sorts of desperate circumstances.

Tuesday, July 23, 2019

Robert Mueller's Testimony Should Be Unnecessary; It Could Be Harmful; Use it to Open Impeachment Inquiry

by Michael C. Dorf

Tomorrow's scheduled appearance of Robert Mueller before Congress will be covered breathlessly by the media but will likely be unenlightening and unimportant. I base that assessment on the following: (1) Mueller has already made clear that he does not intend to say anything that's not in his Report; (2) that rules out an answer to the one question to which his answer could possibly move the needle on public opinion--whether, absent the DOJ policy he followed barring indictment of a sitting president, Mueller would have concluded there was sufficient evidence to charge Trump with  obstruction of justice; (3) absent new revelations, which (1) forecloses, the Senate will not remove Trump even if the House were to proceed to impeach him; and therefore (4) the public hearing holds substantial risks for Democrats.

After explaining the logic of (1) - (4), I'll suggest that (5) Democrats can mitigate those risks and maybe even benefit by playing their cards right.

Monday, July 22, 2019

Should Congress Codify the Dormant Commerce Clause?

by Michael C. Dorf

On Thursday of next week, I shall participate (as I have since its inception two decades ago) in the annual Practicing Law Institute Supreme Court Review. As always, it's a star-studded cast. Tickets for the live full-day panel, whether in-person in NYC, at a groupcast location, or via your computer, are still available. (I don't get a cut of the door; we panelists all volunteer our time.)

I'll be on just about all of the panels, mostly discussing cases that I've blogged or written Verdict columns about already, but invariably something falls through the cracks. Accordingly, today's entry discusses a case that involved the intersection of the 21st Amendment and the Dormant Commerce Clause. In the next two installments of my preview of the Review, I'll say something about the Establishment Clause case involving the "Bladensburg Peace Cross" (beyond what I wrote here and here), and I'll also provide my take on the Term as a whole.

But for now I want to say a few words about Tennessee Wine & Spirits Retailers Ass'n v. Thomas. After a very brief summary of the facts and holding, I'll turn to a questionable assertion by the majority in support of a proposition with which I ultimately agree.

Friday, July 19, 2019

Remembering Justice Stevens

by Anne M. Voigts

The difficulty in writing about the life of someone like Justice John Paul Stevens is in knowing where to start.  He led an exceptionally full life, and those of us who were lucky to share some part of that life for one Supreme Court term were in awe of his energy, and kindness, and humility (if not his notoriously spartan lunches).

Others will write about his opinions in cases like Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., or Bush v. Gore, but one far less prominent case embodies his fundamental decency and compassion.

Thursday, July 18, 2019

The Disconcerting Many-Worlds Theory

by Michael C. Dorf

The Supreme Court Term is over, while the new one hasn't begun. There's plenty of legal news to blog about, most of it terrible, but it's summer, and I need a break. Hence, today I shall discuss a topic unrelated to law: How should I feel about an infinite multiverse? I realize that's a bizarre question, so I'll begin with the backstory of how I got interested in it.

Wednesday, July 17, 2019

Why Trump's Latest Outrage Struck a Nerve

by Michael C. Dorf

[Note: In the next several days, I shall post a remembrance of retired Justice John Paul Stevens, who passed away last night. He was a great and a good man. For now, though, here's more on our racist president.]

In an excellent and sobering blog post on Monday, Prof Martin Lederman described Donald Trump's tweets urging four Congresswomen, three of whom were born in the US, to go back to where they came from, as nothing new about Trump's character. As Prof Lederman has argued in other fora as well, what's so alarming is not Trump but the failure of all but a handful of never-Trump Republicans and conservatives to unequivocally condemn the president's racism.

I don't disagree with Prof Lederman that Trump's enablers are the real story, but I want to suggest that there is something new here--not because it will lead Trump's devotees to abandon him, but because this latest outrage from the Outrager in Chief is personal for more people than nearly all of his prior outrages were.

Tuesday, July 16, 2019

Civilization and Taxes, Through an English Lens

by Neil H. Buchanan

Because of travel commitments, I regret to report that I am not able to offer readers a new column here on Dorf on Law today.  (With the latest racist rants coming out of the White House, perhaps it is better for my mental health not to engage for the time being.)  I did, however, recently publish my annual "jot," which is an essay for the online legal magazine "JOTWELL -- The Journal of Things We Like (Lots)."

This year's jot is titled "The Law of Taxation Is the Lynchpin of Civilization," in which I review the introductory chapter of a book edited by John Snape and Dominic de Cogan, two tax scholars from English universities (Warwick and Cambridge, respectively).  Although the book that their chapter introduces is excellent on its own merits, the Snape/de Cogan lead-in is truly outstanding and easily stands on its own as a contribution to knowledge.  I like it (lots), and I commend it to readers' attention.

One quick thought comes to mind, inspired by the now-standard "full disclosure" statement.  I have had some early discussions with Snape and de Cogan regarding possible academic collaborations of various sorts.  In some sense, then, one could say that my positive review of their work on Jotwell (and here) is a bit of an "inside job," that is, a glowing assessment not based on the merits of their work but on a personal connection.  To draw such a conclusion, however, would be incorrect.

Such an inference is, in fact, a classic example of reverse causality.  That is, it is not that I am reviewing Snape and de Cogan positively because I am planning to work with them; rather, I am excited to work with them because I view their work so positively.  Indeed, frequent readers of this blog are likely to note that Snape and de Cogan have independently written about many of the issues that have consumed my attention over the years.  Combining our efforts is thus eminently sensible.

In any event, the "jot" can be found at this link, and I am also providing it here for the convenience of our readers.  Enjoy!