Showing posts from January, 2014

The Debt Ceiling Abroad

-- Posted by Neil H. Buchanan I am in the airport in Tokyo right now, returning home after two-plus weeks abroad.  Last night, I gave a talk to the Japan Tax Association, explaining the debt ceiling situation and the various arguments that Professor Dorf and I have offered in our writings.  (There was an interpreter, who would translate after every sentence or two.  The stop-and-go nature of that format was an interesting experience, to say the least.)  The Q&A there, like the Q&A after I delivered a similar lecture last week at the Australasian Tax Teachers' Association in Brisbane (Australia), alternated between polite versions of "What the hell is going on over there?!" and "Why can't the courts solve it?"  None of my answers satisfied anyone -- certainly not me. In a conversation before my lecture, I did learn that Japan's government, although structured as a parliamentary system, nevertheless nearly had a debt ceiling-like crisis very r

What's a Technicality in the Death Penalty Context?

by Mike Dorf My latest Verdict column uses the occasion of two recent executions gone awry to call for the Supreme Court to overrule Baze v. Rees  (which upheld lethal injection) and one or both of the two decisions that enable states to execute people who, according to the International Court of Justice, had their rights violated under the Vienna Convention on Consular Relations. I won't recap the argument here but I end the column by speculating that even though the SCOTUS continues to regulate the death penalty pursuant to the Eighth Amendment, it appears to be skeptical of what it may consider "opportunistic" challenges to the death penalty--i.e., challenges to a particular method of execution by lawyers who believe that all methods are unconstitutional or challenges to the violation of Vienna Convention rights by countries that don't care to assert their Vienna Convention claims in non-capital cases.  I make clear at the end of the column that while this kin

New Debt Ceiling Article by Professors Buchanan and Dorf

-- Posted by Neil H. Buchanan Professor Dorf and I are happy to announce that we have drafted a new article (our fourth) analyzing the debt ceiling, just in time for the February 7 reinstatement of that ill-considered law.  Readers who wish to read our draft on SSRN can find it here .  See also my new post immediately below , in which I summarize the new article and add some further musings.

The Debt Ceiling Does Not Put a Ceiling on Debt (Nor Should It)

-- Posted by Neil H. Buchanan As I noted in my Dorf on Law post this past Friday , Professor Dorf and I have very recently completed drafting a new law review article, again offering a constitutional analysis of the federal debt ceiling.  The article, Borrowing By Any Other Name: Why Presidential "Spending Cuts" Would Still Exceed The Debt Ceiling , is now up on SSRN (here ).  We are very happy that it will soon be published in the online Sidebar version of Columbia Law Review , which also published our other three debt ceiling-related articles ( here , here , and here ). In this post, I will summarize the main points of the new article,  Then, I will offer two additional observations related to the arguments that we make there.  I suspect that Professor Dorf will weigh in as well with further thoughts, perhaps as early as tomorrow (although we have not conferred about that). In last Friday's post, I noted that the new article is "non-'trilemma'-relate

What Interest Does a State Have in Limiting How Much Its Subdivisions May Tax?

By Mike Dorf An interesting intra-Democratic disagreement is currently playing out between New York City Democratic Mayor Bill de Blasio and New York State Democratic Governor Andrew Cuomo.  Among de Blasio's more popular campaign promises was the proposed establishment of universal pre-K in NYC, to be funded by a dedicated fund from taxes on the wealthiest city residents.  But recently, Governor Cuomo announced that he wants to create a state program of universal pre-K that would render the de Blasio plan unnecessary.  Rather than treat Cuomo's announcement as the highest form of flattery, de Blasio is (for now) pushing ahead with his plans. In a nutshell, de Blasio argues that his approach is still needed even if the state funds pre-K for (at least) the following reasons.  First, the city program would be up and running this year, whereas Cuomo plans to take five years to phase in the state program.  Second, de Blasio envisions a higher quality, and thus costlier, program

RFRA v. Bureaucracy: The SCOTUS Order in Little Sisters

By Mike Dorf On Friday, the SCOTUS issued an order in The Little Sisters  case .  The order reads, in full, as follows: The application for an injunction having been submitted to  Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances

Immeasurably Extraordinary Foolishness

-- Posted by Neil H. Buchanan [My apologies to Dorf on Law 's readers for missing my scheduled Thursday, January 23 post.  It turns out that internet access abroad, even in advanced countries, is not entirely reliable.] Well, the debt ceiling will be back soon. I don't like it any better than you do, but the whole mess is set to start up again in two weeks. The latest news is that the grace period created by the Treasury's use of "extraordinary measures" is likely to be very short this time around. According to a news article on Wednesday of this week, Secretary of the Treasury Jacob Lew has sent a letter to Congress explaining that the debt ceiling's "drop-dead date" is likely to come very soon -- certainly well before the mid-May date that Senate Majority Leader Harry Reid had been expecting. Here, I will briefly explain the background on all of this. Then, I will try to explain exactly what the extraordinary measures are that the Treas

The Rights of the Dead

by Sherry F. Colb In my Verdict column this week , I discuss the case of Marlise Munoz, a young woman who is pregnant and who, tragically, collapsed almost two months ago and is currently being sustained on life support in a Texas hospital.  Munoz's family has asked the hospital to remove her from life support, in deference to what they understand to have been her wishes.  The hospital, however, has refused to withdraw life support, citing a Texas law that prohibits the withdrawal or withholding of life support from a pregnant patient.  In my column, I analyze some ways in which the dilemma posed by Munoz's situation differs, both legally and morally, from the dilemma posed by the termination of an unwanted pregnancy in ordinary circumstances, and I draw some conclusions about the implications of those differences for Munoz's case. Because -- by some reports -- Marlise Munoz has already been declared brain dead, I turn my attention in the post to the more general issue

Did Personal Jurisdiction Just Get Personal?

By Mike Dorf Last week, in Daimler AG v. Bauman , the Supreme Court unanimously reversed a 9th Circuit ruling that had permitted a victim of the Argentine dirty war to sue Daimler AG in federal district court in California on the ground that Mercedes Benz (the predecessor corporation to the parent company of a subsidiary doing business in California) cooperated with human rights abuses by the Argentine junta.  The 9th Circuit had ruled that Daimler AG was an agent of the parent company, and thus its continuous and systematic contacts with California should be attributed to the parent; those continuous and systematic contacts were enough, the 9th Circuit said, to support "general jurisdiction", i.e., to permit lawsuits against the corporate defendant even when the alleged grounds for liability have no connection to the corporation's business in the forum state. The Supreme Court said that even attributing the sub's contacts to the parent company, that's not enoug

Academic Enabling of Inequality Denialism

-- Posted by Neil H. Buchanan My Verdict column last Thursday addressed the renewed focus on inequality among mainstream politicians and pundits in the U.S.  In my short Dorf on Law post on Friday , I noted that that column had immediately elicited an especially funny example of the red-baiting that has become par for the course from right-wingers in this debate. In today's post, I will make two broad points.  I will discuss another aspect of the big takeaway from my Verdict column, which is that academics (especially economists and economist wannabes) have enabled politicians and pundits to ignore (at best) inequality.  Before getting to that discussion, however, I will take a few swipes at New York Times columnist Bill Keller's recent Clintonian rejection of calls for redistribution. Keller, of course, is one of the best current examples of the kind of pundit who pretends to care about inequality, but who always somehow finds a reason to reject doing much about it.  To

Is My Face Red?

-- Posted by Neil H. Buchanan My new Verdict column was published yesterday: " The Great Inequality Debate, and the Reemergence of Distribution as a Respectable Subject of Discussion ."  In the column, I argue (surprise!) that the renewed concern with inequality among Democratic politicians is a very good thing.  I also discuss how academic economists (and economistic policy analysts) played an essential role in dismissing the subject of inequality from polite discussion for the past generation. I will offer some more thoughts along those lines in a Dorf on Law post this coming Monday.  However, I just arrived in Australia after a 36-hour travel marathon, and I need to sleep.  Even so, I cannot resist sharing part of a piece of hate mail that I received from a reader after my Verdict column was published.  It is just too fascinatingly bizarre not to share. As I note in passing in my column, one of the increasingly common moves on the right in the U.S. is to red-bait

Why Are Sidewalks A Public Forum For Speech?

By Mike Dorf Yesterday the Supreme Court heard oral argument in McCullen v. Coakl ey , which presents the question of whether the Massachusetts law requiring a 35-foot buffer zone around the entrance to reproductive health services providers violates the First Amendment rights of anti-abortion activists who seek to approach women seeking abortions to attempt to dissuade them from carrying out their plans. As one might expect, the Court is ideologically divided roughly along the lines that divide the Court on abortion.  Justice Kennedy, who is the swing vote on abortion but the closest Justice on this Court to a free speech absolutist, pretty clearly is going to join Justices Scalia and Thomas to strike down the law.  That's hardly news.  All three of them dissented in Hill v. Colorado , which sustained "floating" buffer zones.  And all three (essentially) dissented in Madsen v. Women's Health Center , which sustained a 36-foot buffer zone as part of an injunction.

Should Mental Illness Count As Religion?

By Mike Dorf My latest Verdict column uses the Little Sisters case as a jumping-off point to discuss religious exemptions. I argue that religious objections to "participating" in other people's activities are, other things being equal, more difficult to accommodate than objections to actions (or omissions) that one must take (or refrain from taking) oneself.  Spoiler Alert: Near the end of the column, I make the provocative comparison of the Little Sisters plaintiffs'   view of participation to objections to living in a society that tolerates blasphemous cartoons. Now, just in case any readers aren't already offended, I want to compare religion to mental illness--albeit in a limited sense. The column grapples with the following question: Is there anything special about religion that warrants giving people exemptions from general laws when they have  religiously -based objections but not when they have non-religiously-based objections?  Let me begin by bracket

Polygamy, Substantive Due Process and Free Exercise

by Mike Dorf A story in last Thursday's NY Times discussed the federal district court ruling that invalidated the "cohabitation" provision of the Utah bigamy law in the "Sister Wives" case ( Brown v. Buhman ).  That ruling lit up the blawgosphere when it was handed down last month, and as I'm late to the party, I don't want to now repeat points that others have made.  Instead, I want to take this opportunity to distinguish the case from the contemporaneous litigation over Utah's same-sex marriage prohibition. Given the rough simultaneity of the two cases, the fact that both involve Utah, and, most importantly, the fact that opponents of same-sex marriage often invoke polygamy as a kind of reductio ad absurdum of permitting SSM, it is understandable that the cases would be linked in the public imagination.  But in fact the Brown district court ruling is based on a quite different set of considerations. (1) Although the Brown plaintiffs sought bot

Is Chris Christie's Political Career Over? Should We Really Want It to Be?

-- Posted by Neil H. Buchanan The George Washington Bridge-related scandal (I refuse to call it "Bridgegate") that has engulfed the administration of New Jersey Governor Chris Christie reached a crescendo last week, and the path forward most likely involves ongoing investigations, along with occasional dribs and drabs of information that will be damaging but not lethal to Christie's governorship.  Unless something big happens that leads to outright impeachment or resignation (not at all a remote possibility), he will continue to serve as governor of the Garden State.  The question going forward will be the one that I (along with plenty of other commentators) addressed last week : How will this affect Republican presidential politics leading up to 2016? Normally, I would be among those people who think that it is ridiculous to talk about the next election now, given that we are only one year into President Obama's second term.  John Oliver, during his time filling