Showing posts from June, 2011

Some Thoughts -- Both Personal and Otherwise -- About Same-Sex Marriage

-- Posted by Neil H. Buchanan "Did I say hooray?" Professor Dorf's post analyzing New York's Marriage Equality Act was appropriately celebratory. With the initial surprise now giving way to deep satisfaction, attention has turned to what it all really means, who deserves credit for this historic turn of events, and what can be learned for other major political battles. One bittersweet aspect of the new world in New York involves thinking about all of the people who did not live to enjoy the spoils of victory. Thousands of people died before their time, never imagining that marriage would have been an option for them during the course of a full lifetime. (One such couple was Gabriel Casuso, who died in 1988, and Kevin Buchanan, who died in 1991. It is a joy to imagine how those two men, who would now be in their mid-50's, would have celebrated the right to have their relationship recognized by the state as a marriage.) As The New York Times columnist Frank

We're Back! Former FindLaw Columnists Move En Masse to New Site: Verdict

By Mike Dorf From 2000 through the end of 2010, I wrote bi-weekly columns for FindLaw's Writ . FindLaw then discontinued the publication and since January I have received occasional inquiries about whether it would be revived. Today I am delighted to announce that the answer is basically yes--at a new home. All ten of the former Writ columnists are now writing for Verdict , a new online publication run by the free legal research website Justia .   Verdict contains archives of all of our old columns, going back to 2000 in the case of those of us who started at Writ  that long ago. Three of the ten Verdict columnists are also DoL contributors: Neil Buchanan, Sherry Colb, and yours truly. Our Verdict author pages are, respectively, here , here , and here . In substance, Verdict will operate much like Writ did, although it will be more tightly integrated with social media and otherwise updated to reflect the changes in online publications over more than a decade. But we'll

Violent Video Games: Present, Past, and Future

By Mike Dorf The Supreme Court's decision in Brown v. EMA --invalidating California's law barring the sale of violent video games to minors absent parental consent--produced four opinions.  Here are a few thoughts on each. 1) Justice Scalia wrote the majority opinion for himself and Justices Kennedy, Ginsburg, Sotomayor, and Kagan.  So much for any notion that women would be more sympathetic to the regulation of violence than men would be.  All three female Justices voted the most free-speech libertarian position.  Tiny sample size? Of course.  I'm just saying . . . .  Meanwhile, Scalia and Kennedy breaking liberal here is not really a surprise. Each one (and especially Kennedy) has a pretty strong free speech libertarian streak.  This has been known since 1989, when they both joined the liberals to strike down the flag-burning law in  Texas v. Johnson .   As for substance, the majority opinion makes considerable use of the Cato Institute brief, which pointed to prior i

The Puzzling Insistence on a Non-Severability Clause

By Mike Dorf During the last few days of negotiations over New York's same-sex marriage law , the swing Republican state Senators insisted on additional protections for religious institutions and individuals, as well as a "non-severability clause," i.e., a provision that states that in the event that any part of the law is held invalid, the whole law will be held invalid.  Here is the critical non-severability language in the new law: "If any part of this Act shall be adjudged by any court of competent jurisdiction to be invalid, the remainder of this Act shall be invalidated." In contracts, a non-severability clause is sometimes called a "blowup" clause because it means that one defect "blows up," i.e., destroys, the whole contract. The core idea--whether in legislation or in private contracting--is that some seemingly secondary provision of the legislation or the contract is in fact vitally important to at least one party. By including

Some Implications of NY's New Same-Sex Marriage Law

By Mike Dorf Herewith, a few reactions to the passage last night of the Marriage Equality Bill: 1) Hooray! A great day for the Empire State. 2) Andrew Cuomo is now the front-runner for the Democratic Presidential nomination in 2016.  He already has fiscal conservative street cred. By 2016, the economy will have turned around and he can take credit for that. He spent political capital on the same-sex marriage issue and won, with some crucial Republican support. 3) The actions of the NY Republican Party during this debate were fascinating. The Republican leadership and the vast majority of Republican members of the NY legislature opposed legalizing same-sex marriage but nonetheless did not use their procedural leverage to block a vote.  Senate Majority Leader Dean Skelos deserves considerable credit for honoring his earlier commitment to bring the issue to the floor and for making this a "conscience vote" rather than insisting on party discipline.  I think there is a b

AARP: Craven or Clever?

-- Posted by Neil H. Buchanan The late Spring is usually accompanied by breathless news coverage of the Social Security Trustees' annual reports, which summarize the financial conditions of the Social Security and Medicare programs. The headlines almost always highlight the so-called "depletion dates," which are the years in which the various trust funds for the programs will reach a zero balance. In the last couple of years, those dates have been going down, because of the short-term effects of the Great Recession and its grueling aftermath: fewer tax collections, more payouts. This year, the depletion date for Social Security (in the "mid-range scenario," the forecast using conservative assumptions that -- although not as extreme as those in the "high-cost scenario" -- are still decidedly less favorable than the experience of the last 50 years) was reported to be 2036, down from 2037 last year and 2038 the year before. Nothing surprising or dramat

The Wal-Mart Case and the False Promise of Economics in Law

-- Posted by Neil H. Buchanan Yesterday, Professor Dorf offered an analysis of the Wal-Mart decision, providing a useful summary of why the decision was a radical departure from previous practice, as well as describing how future plaintiffs might get around the ruling to pursue class actions -- most likely with smaller classes. He approvingly quoted a New York Times editorial concluding that the Court's decision would "increas[e] the cost and the stakes of starting a class action." This fits in well with the now-standard critique of the Roberts Court, that its decisions are decidedly friendly to big business, making it more costly (or even impossible) to bring cases against large corporations. As many commentators have noted, the result in a case like Wal-Mart is that many meritorious cases will never see the light of day, because the stakes in each individual case are simply too low. This is a problem in any system with expensive procedures, a problem th

Some Observations on the Wal-Mart Case

By Mike Dorf Monday’s Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes is notable for multiple reasons. Here I’ll briefly address three. 1) Over the last quarter of a century, the scholarly interests of the legal academy have been drifting ever further from the concerns of courts. “Doctrinal scholarship,” in which legal scholars ask how various legal questions ought to be resolved by courts, has increasingly fallen out of fashion. Much of this drift is a healthy reflection of legal scholars bringing to bear a more diverse set of tools from related disciplines, such as history, philosophy, economics, statistics, psychology, and other fields. The work of the modern legal academy thus often reflects the professional norms of these other fields in which the scholars were trained--typically more descriptive and less prescriptive. On the whole, this means that whereas a generation or two ago a typical legal scholar imagined himself (and very rarely herself) as a kind of “sh

The Baker-and-Florist Objection to the Pending NY Same-Sex Marriage Bill

By Mike Dorf In my post yesterday , I noted that New York State Senate Republicans who are either on the fence or opposed to the pending bill to legalize same-sex marriage in the state have sought a broader religious exemption than the one in the current version of the bill. I said that I regarded this opposition as insincere because the existing exemption is quite broad. One commenter proposed that the critics ought to be challenged to come forward with  what they really want in the nature of changes to the bill. After doing a bit of research, I found that a number of objections have focused on the absence of protection for individuals--rather than religious organizations--who, on religious grounds, do not want to participate in same-sex marriages.  In particular, a number of people have raised the objection that religious bakers, florists, and other merchants and purveyors of services might not want to provide their services for same-sex weddings. My first thought was: Really?

Same-Sex Marriage in New York and the Mostly False Choice Between Legislation and Adjudication

By Mike Dorf As I write, New York appears poised to become the most populous American state to legalize same-sex marriage by legislation. The bill could pass as early as today or it could be derailed by an eleventh-hour stalling tactic of the Republican leadership. Late last week, Republican opponents of the bill were arguing that it needed more robust exemptions for religious organizations. I regard this as a delaying tactic (or worse) because the bill  already makes clear that religious organizations will not be required to perform or grant their facilities for the performance or celebration same-sex marriages. Further accommodations could be imagined but to my mind they would be unwarranted: E.g., religiously-affiliated hospitals could be given the legal right to deny same-sex spouses the patient-visiting privileges that are accorded opposite-sex spouses. That would go too far because, as far as I know, it doesn't violate any religious doctrine to allow any particular person

What Will Obama Give Away?

-- Posted by Neil H. Buchanan Wednesday's New York Times included an article about a U.S. Bankruptcy Court decision that invalidated the Defense of Marriage Act (DOMA). The decision's author, Judge Thomas B. Donovan, wrote that "no legally married couple should be entitled to fewer bankruptcy rights than any other legally married couple," and his opinion was signed by 20 of the 24 judges on his court (in the Central District of California). The House Republicans who are now defending DOMA in an appeal of a decision by the U.S. District Court in Massachusetts have decided not to appeal the Bankruptcy Court opinion, apparently on the implausible ground that "doing so would be prohibitively expensive." As an advocate of gay civil rights, I view all of this as good news. Naturally, I view the possibility of legislation legalizing gay marriage in New York as bigger news; and whatever one might think about the Republicans' choice to drop the bankruptcy cas

The Efficiency/Equity Non-Tradeoff

-- Posted by Neil H. Buchanan " Remapping Debate " is a new online journal dedicated to the idea that good journalism involves more than merely reprinting the press releases from official Republican and Democratic sources on an issue. Their shocking claim is that journalists must actually gather and -- gasp! -- intelligently assess the facts and arguments relevant to a story. Investigative journalists should, under this model, challenge conventional wisdom and explore all of the evidence with a skeptical mind. This is a definition of journalism that has all but disappeared, replaced by the idea that journalists are somehow biased if they challenge the conventional wisdom and dare to question baseless assertions by the spokespeople of the powerful interests in the world. Earlier this week, one of Remapping Debate's reporters interviewed me about a piece that he was writing about the connection between economic growth and living standards. A recent article in The New

When, If Ever, Is Voting Speech?

By Mike Dorf My post yesterday mentioned but did not get into the merits of the dispute in  Nevada Comm'n on Ethics v. Carrigan  between, on the one hand, Justice Alito, and, on the other hand, the rest of the Court, speaking through Justice Scalia. They divided over whether the casting of a legislative vote is an exercise of the "freedom of speech" for purposes of the First Amendment.  Alito said it is; Scalia and the rest of the Court said it is not.  Who's right? Before answering that question, it's important to clarify why the question matters. The Supreme Court's cases sometimes appear to say that whether a person intended to speak is not relevant; what matters is whether the government, penalizes people because of the message they communicate .  Thus, a law that targets the communicative element of flag burning violates the First Amendment (as the Court held in Texas v. Johnson ), whereas a law that forbids people from destroying their draft cards

The Campaign Finance Issue Lurking in Nevada Comm'n on Ethics v. Carrigan

By Mike Dorf The unanimity of result in the Supreme Court's decision in Nevada Comm'n on Ethics v. Carrigan  disguises a very interesting disagreement lurking beneath the surface. The case upholds, against a First Amendment challenge, a Nevada law that forbids legislators from casting legislative votes on matters that would materially affect the legislator or someone with whom the legislator has a close personal or business relationship.  Justice Scalia wrote the majority opinion, which appeared to rely on two independent grounds for rejecting the challenge: 1) Laws requiring recusal of legislators (and in analogous circumstances, judges) have been in continuous force at the state and federal level since the Founding, without anyone ever seriously contending that they violated the First Amendment, so their pedigree validates them; and 2) When a legislator votes for or against a bill, he or she is not engaged in speech at all, but merely engaged in government conduct, s