Showing posts from September, 2014

Writing About the Debt Ceiling is Apparently Not Easy

-- Posted by Neil H. Buchanan A colleague recently forwarded to me a link to a law student note, Unconstitutional Debt Ceilings , 103 Georgetown L. J. Online 29 (2013), in which a 2013 Michigan Law graduate provided a short argument to the effect that the federal debt ceiling is unconstitutional.  Because Dorf on Law brings in new readers all the time, I cannot presume that everyone reading this post is aware that Professor Dorf and I have written a series of academic articles, Verdict columns, and blog posts regarding the debt ceiling, in which we emphatically reach the same result.  (I also published a book on the subject last year: The Debt Ceiling Disasters .)  I thus read the student's note with interest.  [Note: I initially misread the star-footnote, thinking that the author of the note had been a Georgetown Law student.  Although I went to Michigan, my mostly positive assessment below was formed when I thought that the author attended GW's cross-town rival.  So the

WWJHED (What Would John Hart Ely Do) About Campaign Finance Regulation?

By Michael Dorf In a terrific essay in The Atlantic last week, Garrett Epps took the opportunity of the lull before the start of the Supreme Court Term to note the seeming perversity of the Roberts Court's views about how to define vulnerable minorities in need of judicial protection. Juxtaposing the results and reasoning of last Term's decisions in McCutcheon v. FEC ,  Town of Greece v. Galloway , and Schuette v. BAMN , Epps notes that the conservative majority seems to think that "rich people and Christians are minorities, but [racial] minorities are not." Of course, these cases involve different doctrines and it's possible to construct an argument for each result without exactly contradicting any of the other results, but still, the pattern is arresting. Here I want to examine a premise of the analysis Epps provides--that it is the special role of the courts to look out for vulnerable minorities. That view was given its canonical form in footnote 4 in the 1

The Rhetoric vs. the Reality of the California Teacher Tenure Decision

-- Posted by Neil H. Buchanan Last month, I wrote a series of posts ( here , here , and here ) in which I discussed the new tendency among "centrist" liberals to join with conservatives in attacking teachers' unions, and in particular to claim that tenure for teachers is harming schoolchildren.  In my Verdict column today , I return to those issues, describing why uniquely strong job protections are necessary for school teachers. As I note, the at-will employment model is bad for everyone, and all workers should have due process protections that they currently lack.  However, if only some people will have access to tenure protections, teachers should be at the top of the list.  That conclusion is based not just on what the teachers deserve, but on the positive effects of tenure on the schools overall.  I describe how the empirical evidence fails to show any harm from tenure, and relatedly that there is no evidence that educational outcomes have been improved in juri

Hobby Lobby Post-Mortem Part 11: How RFRA Connects Social Conservatism to Libertarianism

by Michael Dorf Regular readers of this blog will recall that in June and July, Professors Buchanan, Colb, and I wrote a series of ten posts on the Hobby Lobby case  (found at 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , and 10 ) as well as two Verdict columns ( here and here ). Having thus devoted a great deal of thought to all of the issues surrounding Hobby Lobby , I was happy to agree to participate in a "debate" on the merits of the case sponsored by the Cornell Law School chapter of the Federalist Society. Thus, on Monday of this week, I debated  John Malcolm of the Heritage Foundation. I put "debate" in quotation marks because the event was not, strictly speaking, a debate. I spoke for about 20 minutes, most of which was devoted to explaining to the audience (a majority of whom were 1Ls) exactly what was at stake in Hobby Lobby , and only in my last five minutes did I lay out some concerns, based mostly on my Verdict column. Mr. Malcolm then spoke for about 25 m

Scotland, Hawai'i, and How to Talk to Non-Lawyers

by Michael Dorf My new Verdict column uses the occasion of the Scottish independence referendum to discuss the international law governing secession. I juxtapose the UK's scheduling of a referendum vote on independence with Crimea's unilateral secession (and subsequent annexation by Russia). I explain and provide some normative support for the general rule in international law: Unilateral secession is impermissible, with the caveat that there is modest support for an emerging norm allowing secession by a badly oppressed minority group. After I wrote the column but before it went live, I had occasion to talk with a friend who grew up in Ireland and holds views of the English that are not uncommon among natives of the Emerald Isle. He expressed disappointment in the Scottish vote, which he attributed to fear. But he also opined that it was only a matter of time before other secession movements succeeded. He asserted confidently that Hawai'i would be next. I was surpris

Isn't a Little Legal Assistance Better Than None At All? Maybe Not

-- Posted by Neil H. Buchanan One of the little-known duties of tenured faculty is to review the scholarship of our colleagues, for the purposes of various internal reviews, consideration of submitted articles and books for scholarly journals and academic publishers, and so on.  This often seems like a burden, in that it distracts from one's own teaching and writing, and the scholarship to be reviewed is frequently in fields of law with which one is not intimately familiar.  Often, however, the opportunity to see what is happening outside of one's own corner of the academic universe can be an unexpected pleasure. Last week, I reviewed an article by one of my GW Law colleagues, Professor Jessica K. Steinberg , who teaches in our clinics.  Prior to her arrival at GW a few years ago, she was on the legal staff of Stanford's Community Law Clinic, working on landlord-tenant disputes and other issues involving low-income clients.  Some of that work inspired her to write In Pu

What Would Cert Denials in the SSM Cases Mean?

by Michael Dorf Speaking at the University of Minnesota Law School last week, Justice Ginsburg made news when she said that there would be "some urgency" for the SCOTUS to take a SSM case if the Sixth Circuit were to reject a right to SSM, but a judgment that falls in line with other circuits would mean there would be "no need for us to rush." Although SSM opponents seized on these remarks as evidence of disqualifying bias (good luck with that), in fact the more natural reading of Justice Ginsburg's juxtaposition of the two situations reflects the application of a straightforward certiorari criterion: Until at least one federal appeals court rules against a right to SSM, there will be no "circuit split" on the issue warranting the immediate attention of the SCOTUS. I think that is almost certainly how Justice Ginsburg meant her remarks (although I also think it just about certain that, when the Court decides a challenge to a SSM ban, she will vot

Sometimes Legislative Purpose is Clearer than the Effects of a Law

by Michael Dorf Ever since Roe v. Wade in 1973, pro-life politicians at the state and federal level have sought to undermine the abortion right in two main ways. First, by enacting new abortion restrictions and making their voices heard in the judicial selection process, they seek to have Roe overruled or, failing that, substantially weakened. Second, they have enacted laws and policies that do not curtail the right in principle but make it substantially more difficult to exercise. A recent piece by Jeff Toobin in The New Yorker calls attention to both strategies in the context of a case challenging a Texas statute now before the US Court of Appeals for the Fifth Circuit. The law requires that abortions be performed in ambulatory surgical centers. Toobin is a gifted popularizer but, as I have noted before , his knowledge of constitutional law is not very deep, and this latest piece shows it. He says that Justice O'Connor "almost single-handedly . . . rewrote abortion law,

Are the NFL's Billionaires Actually Bad Businessmen?

-- Posted by Neil H. Buchanan As of this writing, the commissioner of the National Football League is Roger Goodell.  Given the controversies that have recently embroiled the league (spousal abuse, child abuse, and the ongoing litigation regarding how the league concealed medical evidence regarding brain injuries), predicting Goodell's expiration date has become a bit of a parlor game.  I confess to being interested in that question on its own merits, but here I want to use that issue to discuss some questions about how leaders of organzations are evaluated, and what can get them fired.  Finally, I will ask whether the NFL's owners are showing themselves to be bad businessmen. One theory regarding Goodell's job security was offered last weekend by the Times op-ed writer Joe Nocera.  To regular readers, I promise that this post is not primarily about Nocera's own puzzling ability to keep his job.  At some point, it just becomes sad .  There are bigger issues here,

The Meaning of "Harmless" in Describing Sexual Offenses

by Sherry F. Colb In my column for this week , I take up the issue of whether prohibitions against incestuous marriage are distinguishable from prohibitions against same sex marriage (SSM).  The reason to discuss this issue is that various opponents of SSM (and of same-sex consensual sexual relationships more generally) have sometimes invoked prohibitions against incest in defense of their position. They say something like this:  "people seem to be okay with incest laws, so why do they suddenly become offended by laws against same-sex relationships, which stem from the same moral foundation?"  I propose in my column that there is at least one  important distinction between anti-incest laws and anti-gay laws that make the latter far more suspect and objectionable than the former. Nonetheless, I do not conclude that bans against incest or incestuous marriage (for consenting adults) are therefore legitimate, only that they are not as bad as SSM bans.  One reason to draw distin

The Fragile Psychology of 21st Century Conservatives

-- Posted by Neil H. Buchanan With very few exceptions, the Dorf on Law posts and Verdict columns that Professor Dorf and I write are fully independent projects.  That is, they are not only solely authored, but each of us rarely even knows in advance what the other will be writing about.  This is, in part, a matter of pure logistics and conservation of energy, because it would frankly be too time consuming to coordinate our topics.  It is also, of course, a matter of different interests and areas of expertise.  Most of the time, each of us just waits to see what shows up on the days when the other is writing. It was, therefore, something of a pleasant surprise to note last week that our writings on Wednesday through Friday (Professor Dorf's Verdict column and his Wednesday and Friday Dorf on Law posts, along with my Verdict column and Thursday pos t) all converged on the same theme.  Working from very different starting points, we both noted how the presumption that con