Showing posts from April, 2013

Guest Post by Eric Segall: The Real Reason So Many Law Professors Failed to Predict the Favorable Reception of the Commerce Clause Argument in the Health Care Case

By Eric Segall There has been a lot of talk on various blogs about David Hyman's forthcoming article detailing how many law professors and others wrongly predicted how the Court would decide the commerce clause issue in the ACA case. It is true that almost every law professor who decided to make a prediction about the case opined the Court would uphold the mandate under the combination of the commerce clause and the necessary and proper clause. And, as Professor Hyman points out, these predictions were uttered alongside high pitched and adamant statements about the frivolous nature of the arguments against the mandate. For what it is worth, and relevant to the thesis of this short piece, I argued both that the arguments against the mandate were frivolous, and that the Court might nevertheless strike it down. That I could be right on both points should not be surprising. Professor Hyman’s article fails to dig deeply enough into the most obvious reason for the disconnect bet

So Much For Sequester Leverage

By Mike Dorf As a professional who flies with some frequency for work and other reasons, I was relieved that Congress decided last week to reallocate FAA funds in such a way as to reduce the disruptive impact of the sequester on air travel.  As a citizen and a Democrat, I was disappointed, though not really surprised, that once again the D's had lost a game of chicken with the R's. The backstory should be familiar.  Despite the right's mantra-like talking point in which President Obama owns the sequester, it was more or less a co-creation of the Republicans and Democrats in 2011.  As part of that year's deal by which the Republicans agreed not to ruin the country's two-centuries-plus record of paying its debts, both sides agreed to the creation of the "Supercommittee," which would propose budget cuts and tax increases to cut the deficit.  The sequester was part of what the academic literature calls a "penalty default"--an alternative so dista

Special Note for Dorf on Law's Email Subscribers

-- Posted by Neil H. Buchanan Readers who receive daily emails from Dorf on Law did not receive an email this past Thursday containing my post, "A Non-Progressive Budget from the President, and the Answer to the Chicken-Egg Question."  You can find that post at this link: .  My apologies for mistiming my post.

Buchanan: The Next Generation, and the Conservative Cloud

-- Posted by Neil H. Buchanan Almost four years ago, I wrote a post here on Dorf on Law in which I noted that my nephew, Ross Buchanan, had just graduated from the College of Wooster in Ohio.  In the time since then, he has been teaching high school, first in Seattle, and then for three years as a Fulbright Scholar in South Korea.  Starting this Fall, he will be entering the Ph.D. program in History at the University of Texas in Austin.  Ross was in middle school and then early high school in a suburb of Toledo when I was in law school, which is the time I came to know him best (because I lived nearby, in Ann Arbor); and it was easy to see even then that he was going to be an academic.  He had a keen interest in public policy, and his insights into intellectual issues were truly precocious. Meanwhile, last Friday, my Dorf on Law post discussed the especially odd thinking that appears to lie behind the gold buggery that has moved from the most extreme right wing of the Republica

A Non-Progressive Budget from the President, and the Answer to the Chicken-Egg Question

-- Posted by Neil H. Buchanan In my new Verdict column today , I discuss the budget proposal that President Obama announced two weeks ago.  Regular readers of Dorf on Law know that I have long since given up on the idea that the President is progressive economically, and this budget offers strong evidence to reinforce that conclusion. Readers who think that I have been unfair to Obama-the-liberal for lo these many years will be pleased to see that I explicitly distinguish Obama's economic views from his other policy views.  I begin the column with a comment about his views on gun control, which have moved from standard-for-Obama cautious noncommitment (parroting right-wing talking points regarding the Second Amendment, but passively favoring some controls) to full-throated support for as much regulation as could be hoped for.  (If anything, he surprised me by being willing to support liberal outcomes that were politically difficult.)  Sandy Hook obviously changed him. I did

Foreigners Suing Foreigners for Foreign Conduct: Remaining Loopholes

By Mike Dorf My latest Verdict column discusses last week's SCOTUS ruling in Kiobel v. Royal Dutch Petroleum .   I argue in the column that notwithstanding the Court's seemingly sweeping rejection of extraterritorial application of the Alien Tort Statute (ATS), in light of Justice Kennedy's concurrence, the actual holding may  not be that far from the test proposed by Justice Breyer for the more liberal wing of the Court: namely, that foreigners may sue based on conduct occurring in the territory of another sovereign where the case sufficiently touches on U.S. interests. Other commentators have noted further wrinkles.  For example  Tom Lee suggests  that even after Kiobel , treaties that are not self-executing may nonetheless be deemed to provide the basis for causes of action under the ATS.  And, as I note in the column, commentators (including Tom) also suggests that failed states (like Somalia) could be treated as lacking a sovereign, and thus more akin to the high

Another Way to Read the FBI Memo Re Public Safety

By Mike Dorf In my first post yesterday I said that the 2010 FBI memo  argued that in terrorism cases the "public safety" exception to Miranda may be broader than in regular criminal cases.  I then went on to note how some of the factors at play in the regular public safety case suggest a narrower, not broader, public safety exception.  In response to my post, I received a couple of suggestions from readers that I was misreading the FBI memo  in its initial step and, upon reflection, I think these readers are probably right.  That reassessment does not relate to most of what I wrote yesterday but in the interest of completeness, I thought it worth elaborating the point here. Recall that the "money quote" I included in my blog post went like this: There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely in

Tsarnaev, the AUMF, Hamdi, Haupt, Padilla, and the Confederate Soldiers: Drawing the Boundary Between Criminal and Military Cases

By Mike Dorf The White House just charged   Dzhokhar Tsarnaev in a civilian criminal court.  Provided the government wants to execute or otherwise punish Tsarnaev, that was always the only real option.  After all, in the Hamdan case , the Supreme Court held that military commissions could not be used to try detainess without congressional authorization.  Congress provided such authorization in the Military Commission Acts of 2006 and 2009, but only for aliens, not citizens. So what were  Senator Lindsey Graham and others going off about over the weekend in suggesting that   Tsarnaev be sent off to Gitmo as an enemy combatant to whom the constitutional rules of criminal procedure do not apply?  One possibility is that they hoped to strip Tsarnaev of his citizenship first, then ship him to Gitmo.  This may actually be realistic because Tsarnaev is a relatively recently naturalized citizen, but I think it may first require a treason conviction in a civilian court--and so would defeat

The Scope of Miranda's Public Safety Exception

By Mike Dorf By now it has been widely reported that federal investigators and prosecutors plan to interrogate  Dzhokhar Tsarnaev without first reading him his Miranda warnings, pursuant to the "public safety" exception to Miranda v. Arizona .   That exception allows the government to interrogate a suspect without first issuing the Miranda warnings, and then introduce any evidence obtained as a result, when the initial interrogation is undertaken for the purpose of protecting the public from an immediate threat.  A leaked 2010 internal FBI memo contends that in certain terrorism cases, the exception can be broader.  [NB: I've since rethought that reading of the memo, as described in a short follow-up post .]  Here is the money quote: There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not relate

FDR, MLK, and Absolutism on the Right

-- Posted by Neil H. Buchanan A few weeks ago, there was a big public relations push for former Reagan budget director David Stockman's new book.  The blitz, complete with an appearance on "The Daily Show with Jon Stewart" and an op-ed in The New York Times , revealed Stockman as a man who has completely lost it -- a Reagan conservative who has migrated to the rightward edge of the political spectrum (and in some ways beyond), complete with claims that we should return to the gold standard, and other fringe views.  On Dorf on Law , Professor Robert Hockett aptly described Stockman as the equivalent of an alien abductee.  That is, Hockett colorfully argued, Stockman has become one of those people who might initially seem sane and even reasonable, but after a few moments of conversation, one realizes that he is someone with whom one should not even make eye contact. A few days after Professor Hockett's post, I added a few comments on the Stockman screed, in the

When Economists Say What Politicians Want to Hear

-- Posted by Neil H. Buchanan Anyone who has been paying attention to the debates in the U.S. and Europe about austerity and debt has heard (at least indirectly) about a 2010 paper by two Harvard economists, Carmen Reinhart and Kenneth Rogoff, that purports to show that countries with government debt levels exceeding 90% of national income experience severe economic damage, in the form of much slower growth (and sometimes shrinkage).  The paper drew a great deal of attention, mostly because it confirmed what the political class had already decided was the correct path: inflicting pain on citizens during the deepest economic downturn since the Great Depression -- actually, in some European countries that have taken the austerity medicine (including the U.K.), the current situation is even worse than the Great Depression -- in the name of growing more quickly in the future. I had been aware of the R-R paper ever since it made news, but I do not recall writing about it, because it str