The Census and Gerrymandering Cases and the Right-Wing End Game

by Neil H. Buchanan

Why do courts exist?  More precisely, why do constitutional courts -- courts whose jurisdiction is not simply criminal and civil adjudication but that covers questions of the sort that currently reach the U.S. Supreme Court -- exist?

Two answers to that question arise from very different choices in the design of a democracy.  One choice is whether to have direct or representative democracy.  If there is not going to be rule by plebiscite or town hall meeting, then there must be rules to set up and maintain a representative democracy.  The other choice is whether the government will be purely majoritarian or will instead live within limits on what it can do and under what conditions.  Note that one could have counter-majoritarianism even without representative democracy, just as the reverse is true, but in any event, we in the United States currently have both.

Once we have answered those two questions, we need constitutional courts.  We need them to decide when the rules of representative democracy have been violated, and we need them to determine when the representative democracy's processes have produced laws and regulations that violate non-majoritarian interests and rights.

I do understand that most (if not all) Dorf on Law readers are aware of these fundamentals, but it is very much worth going back to these basic matters today.  With an empowered right-wing judiciary flexing its muscles under the Trump presidency, we are no longer arguing about close calls regarding, say, the limits of the commerce power or how to evaluate the competence of criminal counsel.  We are looking at the destruction of basic assumptions about how we answer both the representational question and the counter-majoritarian question.

My conclusion in this column is as extreme as the situation that we confront: The Supreme Court as currently constituted has continued to rewrite the rules regarding the non-majorities that will be protected, but much more fundamentally, the Court now stands poised to assist the Republican Party in ending representative democracy in all but form.  That is not a happy conclusion, and it is worth explaining.

Vivid Pictures, Public Revulsion, and the Supreme Court

 by Neil H. Buchanan

We are waiting for the ever more intensely hyper-conservative Supreme Court to reveal itself, thus far without much fanfare.  Yes, there have been some notable wins for the conservative movement, and Professor Dorf noted three days ago that last week's decision in Gundy v. U.S. "should probably be understood as the case that marked the beginning of the Roberts Court's open war on the administrative state."

Professor Dorf notes that Gundy is "not exactly Lochner, but it serves similar aims and interests."  As I argued last Fall, a key part of the long game in the conservative movement's judicial strategy is to restore the Lochner Era's fealty to narrow reactionary economic dogma, which involves holding that all ameliorative government actions are not merely bad policy but unconstitutional.

I subsequently argued that the Court's new hyper-conservative majority might not be as restrained as some people expect it to be.  Who is expecting it to be restrained?  I know that the idea sounds a bit counter-intuitive, but a conventional wisdom quickly emerged that Chief Justice John Roberts cares so very deeply about the "institutional legitimacy" of the courts that he will temper the passions of his four ideological siblings.  Maybe, but maybe not.

As I suggested in that later column, "if movement conservatives are thinking that they are inevitably going to lose their battle against demographics (and modernity), they might also be ready to decide to take everything that they can while they can still take it."  The question is whether they can fight against the reality of their electoral non-viability by continuing to rewrite the rules to favor their side.  In other words, can they make democracy both less democratic and less Democratic?

The answer is almost certainly yes, and the Court's decision today refusing to block partisan gerrymandering is one response to that problem, allowing the Republican politicians who stole the Supreme Court and the rest of the federal judiciary to fight against democracy tooth and nail.

One reason that the Court will probably get away with this is that assaults on democracy -- no matter how consequential -- are simply too abstract to capture people's collective imagination.  Put simply, the news media cannot show a dramatic photo of the corpse of American democracy, so no one will truly care.  Is that too cynical?

The Supreme Court Should Clean Up How Justices Are Noted as Joining Parts of Opinions

by Michael C. Dorf

In today's ruling in Kisor v. Wilke, Justice Kagan writes in part for the full Court and partly for a plurality. The case rejects the proposal to overrule, and then goes on to clarify, the doctrine known as Auer deference, under which courts give some deference to agency interpretations of their own ambiguous regulations. One key point is that such deference applies only to genuinely ambiguous regulations. And there are some. As Justice Kagan writes:

For various reasons, regulations may be genuinely ambiguous. They may not directly or clearly address every issue; when applied to some fact patterns, they may prove susceptible to more than one reasonable reading. Sometimes, this sort of ambiguity arises from careless drafting—the use of a dangling modifier, an awkward word, an opaque construction. But often, ambiguity reflects the well-known limits of expression or knowledge.

There is an irony lurking here, because Justice Kagan's own opinion--or at least the way the Court Reporter describes it--is ambiguous in a way that is unimportant here but could be important in other cases. It is unclear whether the first paragraph of her opinion speaks for her alone, for the full Court, or for the plurality. This is not even the first time in the past week that a SCOTUS opinion contained such an ambiguity. Consider this blog post a plea to the justices and the Reporter of Decisions (that's right, I'm talking to you Christine Luck Fallon!) to clean up this practice. It's a small, picky point, I cheerily admit, but one that could cause mischief in the future.

Profanity

by Michael C. Dorf

On Verdict, I discuss the SCOTUS decision in Iancu v. Brunetti. The title of my column: After Supreme Court Ruling, Are Profane Trademarks Truly “FUCT”? In light of the subject matter, I use profanity, so consider yourself forewarned. Meanwhile, I'll have a substantive post up later today, after the next round of decisions is handed down.

When Does a Taking Occur?

by Michael C. Dorf

For me, yesterday's most painful decision came in Food Marketing Institute v. Argus Leader Media, in which the Court adopted an expansive (and in my view woodenly textualist) reading of a Freedom of Information Act (FOIA) exception that will make it considerably harder for the public to obtain important information from the government about private actors. I find the decision painful not only because it will harm the public interest (at least in a few cases) but because the Court rejected the position staked out by FOIA and First Amendment scholars in an amicus brief for which I was counsel of record. The brief was a collaborative project of Cornell Law School's terrific First Amendment clinic (on whose advisory board I sit). Still, the clinic has quite a few more irons in the FOIA (yuck yuck). So we live to fight another day.

Meanwhile, today I want to say a few words about another decision handed down last week. In Knick v. Township of Scott, the Court held that a plaintiff whose property is taken by the government may file an immediate lawsuit in federal court alleging a violation of the Fifth Amendment's Takings Clause (made applicable to state and local action by the Fourteenth Amendment), rather than having to seek a remedy in state court first (via a so-called reverse condemnation action or its equivalent). The Court overruled an earlier decision to the contrary and split 5-4 on ideological lines. As I shall explain, the actual holding of the case may not be very important, but what it reveals is.

Wrap-Up of Three End-of-Last-Week's SCOTUS Cases and Anticipation of Today's Coming Decisions

by Michael C. Dorf

The Supreme Court could wrap up its current Term today. Even if it adds another day of announcements, one or more important cases will likely be handed down today. If so, I'll blog about at least one of them later today or tomorrow at the latest.

Meanwhile, I want to use this morning's first post to register brief comments on three cases handed down at the end of last week: (1) Flowers v. Mississippi, in which the Court, 7-2 in an opinion by Justice Kavanaugh, found a violation of the defendant's right to a jury selected without racial bias; (2) American Legion v. American Humanist Assn, in which Justice Alito, writing for a majority in important respects, rejected an Establishment Clause challenge to the Bladensburg Cross, but in a way that does not exactly invite numerous new religious-themed monuments erected and maintained at public expense; and (3) Gundy v. US, in which the Court rejected a nondelegation challenge to a federal statute delegating authority to the Attorney General to determine how a federal sex offender registration statute applies to people who committed offenses before the statute's enactment, but in which Justice Kavanaugh did not participate and in which the other four Republican appointees indicated their willingness to breathe new life into the hitherto largely moribund nondelegation doctrine, thus potentially imperiling regulation in many areas.

Even If Trump Leaves, the Best Case Scenario Is Still Horrible

by Neil H. Buchanan

What will the country and the world be like if Donald Trump ever leaves the White House (voluntarily or otherwise)?  How much permanent or long-lingering damage have he and the Republican Party already done to the country and the world?  Joe Biden's fatuous claims that he can get us "back to normal" notwithstanding, what is realistic?

Is It Too Late to Save Our Constitutional Democracy? A Very Minimal Case for Optimism

by Neil H. Buchanan

Donald Trump has become increasingly brazen about his willingness to say or do anything to stay in power.  Most recently, he has casually admitted that he would gladly accept interference from a foreign government to win the 2020 election, and he blithely (but forebodingly) commented that, unlike Richard Nixon, "I don't leave."  All of this and more has led people to wonder what will happen if Trump refuses to leave office peacefully next year.

Nancy Pelosi is surely right that it is important for the Democratic nominee (whoever she or he is) to win as resoundingly as possible, even though my best guess continues to be that nothing will stop Trump from crying foul after a loss.  In fact, the bigger the loss, the more likely it is that he will claim "massive voter fraud."

This suggests that we might already be beyond the point of no return, which would mean that we are currently living through the time period after the lethal dose of poison has entered the bloodstream but before the final convulsions of death.  (Dark enough imagery for you?)

Last week, Professor Dorf offered a very useful take on the situation, looking at it from a slightly different angle.  Responding initially to (and agreeing in part with) a piece by Ben Wittes on Lawfare that advised Pelosi and others to stop talking about prosecuting Trump, Dorf offered a way to think about how to get Trump to leave -- and, importantly, to leave peacefully (which means getting him to tell his "Second Amendment People" to stand down).

Trump will, Dorf observed, have even more incentive to try to stay lawlessly in the White House if he worries about being prosecuted as a private citizen.  Thus, even though Dorf acknowledges that this creates very bad incentives, the least-bad choice will be for Democrats to cut a deal with the then-defeated Trump: amnesty for Trump in exchange for a peaceful transition of power.

I have no idea whether that would work, but Dorf's analysis is certainly strong enough to persuade me that an amnesty deal is the lesser of evils.  In any case, here I want to make a Herculean attempt actually to be optimistic -- or at least much less pessimistic than has become my norm -- and make the best case I can conjure that we will never have to face these terrifying possibilities.  It is not an easy case, but I am willing to try.

Standing is What Standing Does: The Incoherence of the Personal Injury Requirement

By Eric Segall

On Monday, the Supreme Court by a 5-4 vote held that the Virginia House of Delegates did not have Article III standing to appeal a three-judge lower court opinion declaring unconstitutional the state's redistricting efforts and replacing the state's map with one the Court created. There may (or may not) be valid reasons for the Court to decline to hear the case, but lack of Article III standing should not have been the basis for the decision.

The Relevance of Emotion to Abortion

by Sherry F. Colb

In my Verdict column this week, I explore the question of which emotions people associate with self-defense and revenge, respectively. I suggest that we tend to think of fear in connection with self-defense or defense of others and anger with revenge and. I propose that because reality is more complicated, juries may mistake legitimate self-defense for criminal aggression.

In this post, I want to apply the ideas from the column to the distinct area of abortion and, in particular, to the exceptions that pro-life legislation sometimes contains to its prohibition against the procedure.

Liberty and Polarization in Yesterday's SCOTUS Opinions

by Michael C. Dorf

The Supreme Court decided two cases yesterday in which various Justices invoked "liberty" in odd ways. In Gamble v. US, the Court rejected an invitation to abandon the "separate sovereigns" principle under which double jeopardy protection does not extend to dual prosecution for the same conduct under substantively the same statutes at the state and the federal level. As I argued on the blog, I think the Court got it right, even though I also think a couple of Justice Alito's points in the majority opinion were off-target. I won't rehash my argument now.

Instead, I'll just note an odd argument made in each of the dissents (by Justices Ginsburg and Gorsuch). Justice Alito aptly summarizes it thus: "because the division of federal and state power was meant to promote liberty, it cannot support a rule that exposes Gamble to a second sentence." Alito's response is persuasive: Yes, he says, there is a sense in which federalism promotes liberty by dividing power, but it does not do so in every imaginable circumstance. He gives the example of the possibility of conduct being legal at the state level but illegal federally. He also gives the example of a single event giving rise to both state and local tax liability.

Justice Ginsburg responds in a footnote: "The analogy of the separate-sovereigns doctrine to dual regulation is inapt. The former erodes a constitutional safeguard against successive prosecutions, while the Constitution contains no guarantee against dual regulation." But that's a non sequitur. Justice Alito didn't invoke dual regulation as an affirmative basis for the separate-sovereigns doctrine; he invoked it defensively, to ward off the suggestion by each of Justice Ginsburg and Justice Gorsuch that there is some sort of free-floating obligation to ensure that federalism always promotes liberty. There is no such obligation.

If Justices Ginsburg and Gorsuch erred in their federalism-means-liberty argument in Gamble, at least they invoked liberty coherently. That's more than can be said for an aphorism that Justice Kavanaugh recited for the majority in another case decided yesterday--the ruling in Manhattan Community Access Corp (MCAC) v. Halleck that a private company administering a public access cable tv channel in NYC is not a state actor subject to the First Amendment. He wrote: "It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty."

The Court Was Right to Reaffirm Separate Sovereigns in Gamble, But it Says Two Questionable Things En Route

By Michael C. Dorf

In Gamble v. United States, the Supreme Court rejected an invitation to overrule the longstanding principle according to which the Double Jeopardy Clause of the Fifth Amendment does not apply to a federal prosecution following a state prosecution. The particular case involved a federal felon-in-possession-of-a-firearm prosecution following a conviction on state charges for the same conduct, but Justice Alito's 7-2 majority opinion reaffirms the principle in its entirety. It applies regardless of whether the state or federal trial occurs first and regardless of whether the first trial ended in conviction or acquittal (or some other disposition following the attachment of jeopardy).

There is an if-it-ain't-broke-don't-fix-it quality to the majority opinion. The Court recognized the separate-sovereigns principle over 170 years ago, and neither of the petitioner's chief arguments carries the heavy burden needed to overrule such a longstanding precedent. Justice Alito shows that there is very little basis for the petitioner's claim based on the original understanding. He also explains why incorporation of the Double Jeopardy Clause against the states via the Due Process Clause of the Fourteenth Amendment did not undercut the basis for the separate-sovereigns principle.

Justice Alito also explains the functional basis for the rule. The state and federal governments serve different constituencies with different priorities. Neither should be able to deprive the other of its opportunity to vindicate its interest in law enforcement via an incompetent or corrupt prosecution resulting in acquittal or via a sentence that the other jurisdiction regards as too lenient following a conviction. To be sure, as Justices Ginsburg and Gorsuch emphasize in their respective dissents, the separate-sovereigns principle can result in unfairness. If one were writing on a clean slate, perhaps that would justify a different approach, but in light of stare decisis, the concerns that the dissenters raise must be addressed through policies of forbearance and comity.

Yet while the bottom line and most of the reasoning of Justice Alito's majority opinion make sense, he makes two points that strike me as unpersuasive. Below I discuss each briefly, before adding a comment about the debate between majority and dissent about the nature of the Union and another about Justice Thomas's concurrence.

Watch This Space For SCOTUS Analysis Later Today

by Michael C. Dorf

With just a handful of SCOTUS announcement days remaining on the calendar and important decisions pending on the census, gerrymandering, the Establishment Clause, and more, this morning I shall wait to see what fresh hell emanates from 1 First Street, NE, and then post a quick take. Stay tuned!

Advice From Alexander Hamilton: The Next Democratic President Might Need to Pardon Trump

by Michael C. Dorf

There is no real equivalence between Donald Trump's gleeful and repeated encouragement of his supporters chanting "lock her up" in reference to Hillary Clinton's use of a private email server and recent statements about Trump by House Speaker Nancy Pelosi (“I don’t want to see him impeached. I want to see him in prison") and by Senator Kamala Harris (in a Harris administration, DOJ "would have no choice" but to prosecute Trump for obstruction). Pelosi made her remark in private and as a way to tamp down impeachment, while Harris made her statement in response to a question. Moreover, as the Mueller report documents, there is substantial evidence that Trump committed crimes that would subject him to indictment and conviction were it not for the DOJ policy against indicting a sitting president. By contrast, Clinton's email server use was reckless but not the sort of act that typically warrants prosecution.

Nonetheless, in a Lawfare column on Wednesday, Ben Wittes argued that Democrats should stop talking about prosecuting Trump, because (quoting Paul Rosenzweig) "you don’t protect norms by violating norms." Although I disagree with Wittes's implication (which may not have been intended) of equivalence, I agree with his advice to Democrats to stop talking about prosecuting Trump, because doing so very easily lends itself to the appearance that they share Trump's willingness to convert the US into the sort of country in which new governments routinely prosecute their predecessors for real and imagined crimes--thus undercutting the incentive of leaders who are defeated at the polls to relinquish power. It's true that the Trump-supporting critics of the Pelosi and Harris statements are shameless hypocrites, but any advice for US politicians operating in the real world must take account of the fact that shameless hypocrites litter the media landscape.

I also agree with Wittes on another point: that the NPR reporter's question that prompted Senator Harris to say that the DOJ would need to prosecute Trump contained embedded within it an implicit question about whether the next president ought to pardon Trump. Here I want to channel Alexander Hamilton, whose analysis in Federalist 74 may provide some useful context.

Home Ownership, Capitalism, and That Elusive Efficiency Thing

[Note to readers: My new Verdict column, "Elected Dictators? The Limits of What Government Officials Can Do With Their Power," was published this morning.  Although my column below focuses on a very different topic, I encourage everyone to read the Verdict piece as well.]


by Neil H. Buchanan

During and immediately after the Great Recession, politicians and policy analysts understandably spent a great deal of time thinking about mortgages and home ownership.  This obviously made sense, because so much of the financial crisis that nearly pushed the global economy into a second Great Depression -- averted only because the Bush and Obama administrations (and just enough Republicans and Democrats in Congress) actually did the right things and saved the economy with necessary but unpopular bailouts -- was driven by the mortgage market.

My take on the situation was that the crisis had exposed the folly of our obsession with home ownership as part of the American Dream.  My students, like all people in their mid-twenties and later, are bombarded with the idea that a person is not truly a grownup unless and until he or she is married, has a professional job, has children, and owns a house.  This is nonsense, but it is also powerful, and I see young people over and over again making bad financial (and other) decisions in the name of proving that they are adults.

In 2012, I collected twenty-one of my Dorf on Law columns (and one column from the now-defunct Writ) on this topic and put them online in a single document, Owning Versus Renting: Thoughts on Housing Policy, Tax Incentives, and Middle Class Dreams.  In the seven years since then, I have mostly left the topic alone.

At the annual Law & Society meetings earlier this month, however, Professor Danshera Wetherington Cords's presentation included some interesting facts about homeowners' insurance that sparked some thoughts about policies to improve the functioning of the housing market in the U.S.  Those thoughts tie in nicely to the recent political brouhaha about Socialism vs. Capitalism and to the concept of economic efficiency that I have critiqued in my three most recent Dorf on Law columns (here, here, and here).

The bottom line is that our policies related to home ownership demonstrate yet again that there is no "natural" non-government baseline for our laws, and we can have a robust capitalist system under any number of different legal regimes.  The best housing policies are those that would at least reduce the harms inflicted on middle- and lower-income Americans.

Litigation Versus Disclosure Versus Regulation as Means of Inducing Cost-Internalization: A Comment on the Insys Bankruptcy

by Michael C. Dorf

As then-Professor Guido Calabresi's pathbreaking work explained, the tort system can be a kind of substitute for or complement to regulation. As applied to manufacturers, tort damages serve not only to compensate victims but also to induce cost internalization. In this blog post, I shall use the news of the bankruptcy filing by Insys Therapeutics--maker of fentanyl--as an occasion to discuss some of the advantages and disadvantages of the tort system relative to other mechanisms for promoting cost internalization. I'll discuss taxes, regulation, markets, and disclosure.

Is Economics the Problem, Or Is It the Economists?

by Neil H. Buchanan

My career move from economics into law began twenty years ago, and it was not a happy divorce.  Over the years since then, I have often been asked to explain why I was willing to leave economics behind (as a professional matter, not as an intellectual one, given that my writing continues to be dominated by economic policy topics such as budget deficits), and my answers have reliably elicited hostile feedback from people who think that economics is a beautiful and important thing.

Those negative responses, however, have always had a confused air about them, vacillating between a defense of the field of economics and a defense of economists themselves.  Is it the thing or the people who do that thing that matters?

Am I saying, in blunt terms, that economics sucks or that economists suck?

It could be both, actually, and too often economists truly are guilty of intellectual dishonesty.  Ultimately, however, it is the disembodied field itself that is the problem.

What is most interesting, in fact, is that it is possible for many, many good and talented people to be engaged in a field of study without having a positive impact on the core of that field.  Indeed, there might well be a clear majority of economists doing work that I find interesting and useful, yet the field itself continues to be deeply problematic.  How is that even possible?

Free Speech and Boycotts Revisited

by Michael C. Dorf (cross-posted at The Volokh Conspiracy)

In Arkansas Times v. Waldrip, the US Court of Appeals for the Fourth Circuit will decide whether an Arkansas law requiring public entities (including contractors with the state) to certify that they do not boycott Israel or companies that do business with Israel violates the First Amendment. The district court held that it does not. Various champions of free speech have filed briefs arguing that political boycotts are protected free speech. Three scholars who also fashion ourselves champions of free speech -- Professors Andrew Koppelman, Eugene Volokh, and I -- take the opposite view. You can read our brief here. You can read a summary of our argument in a blog post by Prof Volokh here. His blog post also contains links to the briefs on the other side. Here I'll add a few words that go beyond what I wrote on this topic back in February and what we say in the brief.

Abortion and Eugenics Part 2: Attributing Motives

by Michael C. Dorf (Updated with Audio)

This morning during the 10 am hour, Prof Colb and I will be on air in Philadelphia on WWDB-AM Talk 860 and everywhere else via TuneIn, iHeartRadio, and streaming from the webpage. We'll be joining Laurent Levy, host of The Other Animals. (Update: Here's the audio. We come in at the 11:30 mark.) We'll be talking about some of the topics in our book Beating Hearts: Abortion and Animal Rights. Certainly the abortion piece is much in the news. Meanwhile, as Prof Colb's post on Wednesday on the insanity defense and so-called humane animal products shows, human treatment of animals remains relevant to just about everything.

Depending on how the radio segment goes, I may write a follow-up post. Meanwhile, I want to use this space today to talk a little bit about attributions of motives in the abortion debate.

Everything Is Both Efficient and Inefficient as a Matter of Economics

by Neil H. Buchanan

In policy debates, and especially in tax policy debates, the ultimate ace in the hole (note that I avoided saying "trump card") is an efficiency argument.  My side favors an efficient policy, but your side foolishly stands for inefficiency!  Everyone wants to be on the right side of that divide -- because no one could affirmatively defend being inefficient!! -- which means that the outcome of the efficiency debate matters greatly to everyone.

That is not to say that everyone is willing to favor efficiency over everything else.  One of the classic questions in policy analysis, after all, is the supposed "equity/efficiency tradeoff," wherein the people who favor a policy because it helps the poor specifically or mitigates inequality more generally say that any inefficiency caused by their policy is more than made up for by the moral value of reducing inequity.

But why does that debate always find its combatants in the same positions, with conservatives sure that their policies are efficient and liberals conceding the point?  The answer is that what the world knows simply as "economic theory" -- as if there could only be one such theory -- is actually a very particular economic theory that is (consciously or otherwise) built to lead to the conclusion that redistributive policies are bad.

I use the normative term "bad" rather than "inefficient" because, even though economics students are taught to say that the theory presented in their textbooks is objective and morally neutral, it takes studied ignorance to believe that being guilty of inefficiency is not presumptively a bad thing.  "It's inefficient" generally means "We shouldn't do it," or at least that we ought to have a very good reason to deviate from the ideal.

But what if the very concept of efficiency is inescapably empty?  What if any policy proposal, or any situation at all, can honestly be described both as efficient and inefficient, depending on the way we frame the analysis?  We need not ask "what if," because it is actually true that efficiency ultimately means nothing.  Understanding why that is true is an interesting journey.

Humanely Raised Animals and the Insanity Defense

by Sherry F. Colb

The U.S. Supreme Court recently granted certiorari in Kahler v. Kansas. The case asks whether abolishing the insanity defense violates the Constitution. In my Verdict column this week, I discuss the case and make some arguments in defense of allowing abolition. In this post, I want to discuss a feature of the insanity defense that it arguably shares with animal welfare regulations and customs that purport to protect animals from cruelty.

The Undead Nature of Orthodox Economics

by Neil H. Buchanan

Orthodox economics, as taught in thousands of Econ 101 classrooms around the world and as written down in millions of textbooks for the past few generations, carries the unmistakable message that "markets are good" and thus that "government (intervention) is bad."  Especially for a field that hides behind the positive/normative distinction -- "We are scientists who offer positive (i.e., neutral) analysis, leaving the normative choices to the philosophers and politicians" -- it is quite striking how blatantly obvious those normative conclusions are.

As one might imagine (and as most readers are well aware), there has long been quite a bit of resistance to those normative prescriptions.  Outside of economics, it is a running joke to note the cult-like worship of "the free market" and the resistance by economists to any objections to their beliefs.  Even within economics, many scholars seem to defy their own orthodoxy by arguing in favor of various types of government interventions in the economy.

Nearly everyone outside of economics and many within the profession thus seem to agree that one or more of the critiques of orthodox economic theory are powerful and important, if not dispositive.  Yet somehow that orthodoxy has never been jettisoned, and there is precious little evidence that it is in danger even today.  Indeed, it seems to have been killed countless times, yet it keeps coming back to life.  How can that be?

Dicta and the Original Meaning of Article III

by Michael C. Dorf

A recent order in a pending Sixth Circuit case asks the parties for supplemental briefing on the original meaning of the cases or controversies language in Article III and its relevance to the distinction between holding and dicta. The order is especially notable because it directs the attorneys to explain how the Corpus of Founding Era American English bears on the question. To my mind, the order raises numerous issues. Here, I'll address the following:

1) How useful is the corpus for discerning original meaning as a general matter?

2) Even assuming the answer to question 1) is "at least somewhat," should lawyers who haven't chosen to cite it be directed by courts to do so?

3) Even assuming the answer to question 2) is "yes, at least sometimes," is this such an occasion?

4) Does the original meaning of Article III determine the line between holding and dicta, even on originalist premises?

5) How should one translate that original meaning, given substantial changes in how federal courts function since the Founding?