Showing posts from July, 2011

Constitution Shmonstitution

By Mike Dorf I began work on my latest Verdict column on Friday, when a deal to raise the debt ceiling looked like a 50-50 proposition.  It now looks much more likely, so I've retooled the column as something of an evergreen addressing the following question: What should the President do when faced with only unconstitutional options?  It's a bit of a follow-up to, and expansion of, my earlier blog post on the topic.  I explain how our constitutional law stubbornly refuses to acknowledge a substantial role for balancing, which is how the issue would be addressed in most other constitutional democracies. Developing criteria for deciding among unconstitutional options presents one interesting possibility that should pretty clearly be rejected: Namely, doing whatever the heck you want.  Let me explain. In the example I discuss in the column, I assume that the President has three unconstitutional options: 1) Ignore the debt ceiling and borrow in violation of separation of p

We Sure Could Use an Advisory Opinion Right About Now

By Mike Dorf Consider this another in my occasional series that might be titled something like  What's Wrong with our Constitution .  A couple of weeks ago,  I explained  how the impasse over the debt ceiling would not arise in a parliamentary system of government.  Now to explain how the American conception of judicial review may be leading both Congressional Republicans and President Obama to keep driving straight ahead rather than swerving to avoid the collision. First, a disclaimer: The metaphor of a game of "chicken" to which I have just alluded is almost entirely misplaced, because Obama and the Senate Democrats have already conceded an enormous amount to the Republicans.  Recall that in the past, the debt ceiling was simply raised.  The only reason we are even at an impasse is because of the Republicans' decision to use the occasion of the debt-ceiling bill as an opportunity to extract spending cuts that they were unable to achieve during the ordinary budget

Guest Post on Teaching Legal Writing by Professor Lisa McElroy

[Below is a guest post by Drexel Law Professor Lisa McElroy .] Last week, Bryan Garner published   an editorial in the New York Times   about the importance of good legal writing pedagogy; his piece was part of a series on how and whether law school education should change for the better.  At first, when I read Mr. Garner’s editorial, I was pleased; after all , lawyers and judges have been saying for years   that they look first to a young lawyer’s legal writing skills when deciding whether to hire her.    Echoing this sentiment,   Educating Lawyers   (better known as the “Carnegie Report”) and CLEA’s   Best Practices for Legal Education , both published in 2007, called on the legal academy to improve and increase offerings in legal writing and other legal skills.    That’s because, as Garner notes, ”[C]lear writing equates with clear thinking.”    (And I’ll go even further to say that most budding lawyers don’t know exactly what they think until they try to write it down). I shoul

Fairness versus Utility and the Fourth Amendment Exclusionary Rule

By Sherry F. Colb In my column this week, I discuss the U.S. Supreme Court's decision in Davis v. United States , which held that if police conduct a search that is authorized under existing appellate precedent interpreting the Fourth Amendment, then the evidence that results from that search is admissible at trial, even if the High Court announces (after the search but before the conviction becomes final) that such searches actually violate the Fourth Amendment.  The Court takes the position that the exclusionary rule, under which a judge keeps illegally obtained evidence from the jury's consideration at trial, is a costly way of inducing police to comply with the Fourth Amendment.  Suppression ought therefore to be limited to cases where it will most effectively deter Fourth Amendment violations -- cases in which police have behaved culpably (i.e., deliberately, recklessly, or with gross negligence) in performing a search or seizure.  In my column I discuss the changing fa

The Missing Piece in the Private Finance Analogy

By Mike Dorf In their dueling speeches on the debt ceiling impasse, both President Obama and Speaker Boehner reached for a very familiar analogy between the government and private actors.  President Obama analogized our situation to that of a family that is maxing out on its credit card.  Speaker Boehner contrasted the responsible behavior of companies that balance their books with the behavior of governments that do not. As any competent macro-economist will tell you, the analogies are deeply flawed.  Individual families and businesses do not have the capacity to manipulate interest rates and the money supply, but the government does.  Individual families and businesses acting in ways that don't correlate with the behavior of others do not cause contractionary cycles through the paradox of thrift when they save money.  But drastic government reductions in spending in a recession can trigger that effect.  Etc. Nonetheless, with polls showing that most Americans don'

Defining True Threats

By Mike Dorf Last week, in United States v. Bagdasarian , a panel of the U.S. Court of Appeals for the Ninth Circuit held, 2-1, that the defendant, who was described by Judge Reinhardt's majority opinion as "an especially unpleasant fellow," did not violate the law forbidding threats of violence against Presidential candidates when he posted messages on the internet using racist language that approved of violence against then-candidate Obama.  The opinion was joined by Chief Judge Kozinski, with a dissent by Judge Wardlaw.  It's interesting and noteworthy in part because of an introductory portion of the opinion in which the court places Bagdasarian's comments in the context of political invective throughout history as well as characterizing some of the opposition to candidate Obama as significantly racist. The case itself is interesting because of how the court deals with the evidence of whether Bagdasarian posed a "true threat" both objectively an

New Incentives to Relabel Spending as Tax Cuts

-- Posted by Neil H. Buchanan There has been a lively discussion on this blog and elsewhere regarding the President's constitutional obligations and options in the current political impasse, with the possibility of a government default looming only weeks away. When Professor Dorf informed me that Professor Tribe wanted to publish a second guest post on the topic here on Dorf on Law, responding to my most recent post , I was delighted, and I suggested that we give him the last word on that debate. Our exchange has brought clarity to some issues, and it was generous of Professor Tribe to provide two guest posts, but all good things must end. Reading the content of his second post confirms my sense that the back-and-forth between us has graduated to the stage where it would be better continued (if the parties decide to do so) in a journal format, rather than on various blogs. (If nothing else, it is notable that my most recent post and Professor Tribe's response were both cl

Professor Tribe Replies to Professor Buchanan Replying to Professor Tribe Replying to . . . .

Updated with a new Postscript at 1 pm Eastern Time [Below is another guest post on the Debt Ceiling by Harvard Law Professor Laurence Tribe.  In the interest of getting to closure, Professor Buchanan will let this be the last word on this exact topic for now, although he'll be back on Friday with some thoughts on other aspects of the debt ceiling and budget debate.  Now here's Professor Tribe:] In his latest  post  Professor Buchanan again argues that the debt ceiling violates the Constitution. Responding to my recent  post  to the contrary, he says I “ignore[] [his] actual argument,” according to which “the current political crisis is  premised  on the fact that the current debt limit will be binding” in the sense that, but for that statutory limit in 31 U.S.C. § 3101, the Treasury as of August 3 “would otherwise be legally authorized to borrow money in excess of the current debt ceiling” (emphasis added). That, Professor Buchanan maintains, is “the only way for the curren

No Constitutional Options

By Mike Dorf Let's say you and your friend agree that you will meet at a local movie theater to see the "8 o'clock showing of Harry Potter and the Deathly Hallows, Part 2."  You further agree that you will buy the tickets at 7:30 and your friend will arrive at 7:50.  You arrive at the theater at 7:30 and notice that the 8 pm showing of HPDH.2 is sold out but that there are still tickets available for the 9 pm show.  You also notice that the Tree of Life is playing at 8 pm.  You have accidentally left your wallet and cellphone with your friend, and have exactly $22 in cash with you, just enough to buy tickets for the two of you for one or the other film.  The clerk in the booth tells you that he only has a few tickets left for each film.  You and your friend have similar taste in movies, so you expect that she would prefer to see HPDH.2 to Tree of Life, other things being equal, and you also know that she would rather see either film than just wander around the larg

Borrowing, Spending, and Taxation: Further Thoughts on Professor Tribe's Reply

-- Posted by Neil H. Buchanan Over the weekend, Professor Laurence H. Tribe posted some thoughts here on Dorf on Law, responding to my July 11 column on Verdict and my July 12 and July 15 posts on this blog. In turn, my column and posts had been largely written in response to Professor Tribe's influential op-ed in The New York Times , in which he argued that President Obama lacks constitutional authority (under the 14th Amendment, and more generally under separation-of-powers principles) to ignore the debt limit, should Congress fail to raise the limit before the Treasury loses its ability to pay all of its legal obligations. I continue to agree with Professor Tribe that the best solution would be for Congress and the President to find a way forward through standard political procedures, resolving a political crisis that is completely avoidable. Even in light of Professor Tribe's additional arguments, however, we continue to disagree about what the President's