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The case involves a relatively silly New York City gun law that has been repealed and cannot be reinstated absent a change in governing New York State law.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. 

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.

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.

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.

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.

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?

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.