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Showing posts from November, 2015

Wholesale Versus Retail Policy Making

by Neil H. Buchanan In the idealized model of the modern legislature, the representatives of the people are assigned to work in policy areas in which they have some interest and expertise, and they then consult with expert staff in drafting and amending laws.  Even then, the plausible levels of expertise and specificity that can be brought to bear on policy questions at the legislative level are quite limited, leading to decisions to delegate to executive agencies a limited amount of authority with appropriate oversight. The net result does not necessarily have to be small-c conservative, because the political process itself can still wreak dramatic changes on the policy priors of the people's representatives, leading to dramatic changes in how the mechanisms of the modern state attack perceived problems.  It does, however, suggest that the system is designed in a way that will almost always prevent large-scale changes in process and result (both legislatively and administrativ

Demagogic Politicians and Gung-Ho Operatives

by Neil H. Buchanan In my two most recent Dorf on Law posts, I have attempted to explain why the widespread panic in the U.S. in the aftermath of the Paris attacks is wrong, dangerous, and self-defeating.  The pertinent part of the first post included my claim that the " Now we'll get 'em!" narrative makes no sense, because it is obvious that we had more than enough reason even before Paris (including beheadings, bombings, takeovers of large parts of countries, and so on) to want to stop the Islamic State.  If obvious and effective solutions existed, we would have long since solved this problem.  It strikes me as totally absurd to imagine that the Paris attacks, notwithstanding how horrifying they were, could lead to a productive change in strategy against ISIL.  And as far as refugees are concerned, the people who are freaked out about whether asylum-seekers might need to be vetted should be pleased to learn that we already do that. In the second post , I ack

Preparing for the Worst, In Light of New Information

by Neil H. Buchanan Although the Republicans' reactions to the terrorist attacks in Paris vacillate between horrifying and disgusting, there are important questions to ask about whether there are reasonable and appropriate responses going forward.  As I noted in my Dorf on Law post this past Thursday , we are fortunate that the current occupant of the White House is an adult, and there is at least a good chance that his replacement will be a woman who -- despite her longtime tendency to play politics with important issues -- would certainly not do any of the crazy and self-defeating things that her Republican opponents have proposed. One thing we have learned in the last week, which is both reassuring and obvious in retrospect, is that the government of the United States already was taking extraordinary measures to make sure that refugees who apply for asylum in the U.S. are carefully scrutinized, all but eliminating the possibility that would-be terrorists could infiltrate th

Adjusting IQ Scores For Eligibility for Execution

by Sherry F. Colb In my Verdict column for this week , I discuss a practice that some courts have accepted whereby minority defendants' IQ scores are adjusted upward so that they become eligible for execution (despite their initial score that would have placed them in the category of intellectually disabled). Under Atkins v. Virginia , the intellectually disabled are ineligible for execution, so the referenced practice provides a way to execute people who are otherwise exempt from execution, and it does so on the basis of race.  In my column, I suggest that this practice is not only a plain violation of the Equal Protection Clause that the Supreme Court should address, but that it is highly vulnerable to satire as well. In this post, I want to suggest that condemning the raising of IQ scores in the capital context does not carry with it an implicit condemnation of skepticism about such standardized test scores for minority applicants for educational or employment opportunities.

Even Mere State Refusal To Assist the Federal Government In Resettling Syrian Refugees Could Be Unlawful

by Michael Dorf In the wake of last week's attacks on Paris, a majority of U.S. governors have announced that they will exclude Syrian refugees from their states. In light of the rigorous procedures already in place for screening refugees, the governors' proposed policy is wrongheaded, cruel, and potentially counter-productive , but I will focus here on a largely overlooked issue with respect to its legality. As others have noted, states lack the power to exclude refugees whom the federal governmernt admits, if what is meant by "exclude" are state laws or policies that forbid Syrian refugees from residing in their states. The federal decision to admit a refugee for settlement in the U.S. would preempt a state law forbidding a refugee from residing in any particular state. But maybe (some of) the governors mean something more modest. Refugee settlement often involves cooperation of state and federal agencies, and states can refuse to cooperate with the feds. Althou

How Much Are We Willing to Spend on Being Well Regulated?

by Neil H. Buchanan My new Verdict column discusses the economic consequences of reacting foolishly to fear and panic, focusing on the extraordinary suspension of rational thought that the Republicans have displayed in response to the recent terrorist attacks in Paris (and Beirut).  I quote from Professor Dorf's post here earlier this week , in which he pointed out that the Republicans' overreaction to the 9/11 attacks led to the creation of the ISIS monster, to make the point that we have spent trillions of dollars in the pursuit of policies since 9/11 that have made matters worse, not better.  Rather than measuring benefits against costs, we are left with the sad realization that we have paid dearly, only to discover that we have made matters much worse. It is true, of course, that Democrats jumped on that bandwagon, too.  Hillary Clinton might well have won the presidency in 2008 if she had not decided to show that she was "tough" by voting to authorize the 2

Diversity and Remediation

by Michael Dorf In his NY Times column on Monday, Charles Blow began his discussion of recent campus activism over racial inequality with an apology of sorts: In the aftermath of the Paris attacks, the campus protests appear to have left the news cycle. Others--especially right-wing pundits--make the point much more ferociously. For example, in the immediate aftermath of the attacks, noted former NY Times Iraq War fabulist Judith Miller tweeted "Now maybe the whining adolescents at our universities can concentrate on something other than their need for 'safe' space." That view has been expressed widely by people who were inclined to see the campus activists as whiners even before Paris. How can they complain about an email about hypothetical offensive Halloween costumes when there are real human monsters killing people in Paris? The complaint has a surface appeal, but only in the way that a parent chastising a child for failing to clean her plate while children o

Grading Republican Presidential Candidates on an Incredibly Generous Curve

by Neil H. Buchanan Last week's Republican non-debate was both different from and the same as the fake debates that had gone before.  It was different in the sense that people occasionally disagreed with statements made by other candidates on some policy questions, but it was still essentially the same waste of time in which candidates talked past each other and pundits tried to say who won by determining whose vapid statements would most impress Republican base voters. Focusing on what was different, The New York Times ran a long article the following day, " G.O.P. Fight Now a Battle Over What Defines a Conservative ," in which the reporter Jonathan Martin tried to make the case that the debate represented an "abrupt transition from vague promises ... to a new season of the campaign shaped more by the glaring policy fissures that are dividing Republicans over what exactly to do about the nation’s problems."  I suppose that is right in a certain sense.  A

Lafayette, vous êtes ici

by Michael Dorf As I recounted on the tenth anniversary of 9/11, very shortly after the attack I received a sympathetic and encouraging email from a French colleague with whom I had become friendly when she was a visiting faculty member at Columbia. Having just sent her a similar note, I am struck by the shared outpouring of affection for and solidarity with the French people currently being expressed by many Americans. I share that sense of affection and solidarity, and so I don't want this post to be read as sounding a sour note. And yet . . . In his initial public statement after the attacks, President Obama noted that "France is our oldest ally," which, while true, does not quite capture the complexity of the relationship. Yes, there is a special bond between France and the United States--two republics forged in late-18th century liberal revolutions. Yet French support for the American side in our Revolutionary War came under the ancien régime. True, Americans in

Distinguishing Coddling From Censorship

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by Michael Dorf The 2004 animated film The Incredibles   teaches two lessons: First, if you're going to be a superhero or supervillain, don't have a cape; and second, in a culture in which everyone earns trophies for participation, true excellence tends to go unacknowledged. Here I'll focus on the second lesson, relating it to recent instances of campus unrest and backlash thereto. In the more than a decade since the release of The Incredibles , matters appear only to have gotten worse--at least as judged by mainstream journalism and pop culture. Millennials, we are told, have been pumped so full of self-esteem since birth that they cannot handle the slightest criticism or adversity. The notion that millions of members of a generation share a single set of character traits is, of course , ridiculous. In my experience teaching older millennials--who have been showing up in law school for the last few years--they are not appreciably different from the GenXers who preced

Ben Carson's Overlapping Magisteria

by Michael Dorf Dr. Ben Carson's ascent to front-runner or (depending on the poll) co-front-runner status in the Republican presidential field has brought with it intensified scrutiny of his past statements. I don't have a view on the extent to which his prior claims about West Point are exaggerations or how they might bear on his fitness for the presidency, nor do I have an opinion about the stabbing claim--which seems mostly grist for comedians . I do want to try to think through the implications, if any, of Carson's reaffirmation of his view that (some of?) the ancient Egyptian pyramids were built as grain storehouses pursuant to the plans for surviving seven lean years by the Biblical Joseph in his role as adviser to the pharaoh. To frame the discussion, I will assume that Carson's view is demonstrably false by the standards of archeology because there is overwhelming evidence that the pyramids (which are not hollow) were built as tombs (hundreds of years before t

The Lessons of Fetal Viability

by Sherry F. Colb In my Verdict column for this week , I raise the question whether there is an inconsistency between being a committed ethical vegan, on the one hand, and being pro-choice on abortion, on the other. The column follows another on the question of whether violence has any ethical place in a principled movement for animal rights or for the rights of human fetuses.  Both columns address issues raised in Beating Hearts: Abortion and Animal Rights , a book co-authored by me and fellow blogger Michael C. Dorf, that takes up some of the common challenges and dilemmas that face the pro-life and animal rights movements. In this post, I want to dwell on a line that our current constitutional law doctrine draws between protected abortions and those abortions that may, in general, be subjected to criminal prohibition. That line is viability. In Roe v. Wade  and then again in Planned Parenthood v. Casey , the U.S. Supreme Court held that after viability, except where a woman'

Measuring the Chilling Effect of Late-Term Abortion Limits

by Michael Dorf Late last year I participated in a conference at the University of Chicago Law School on empirical work in constitutional law. In a post at the time, I provided very brief overviews of each of the papers. The papers have now been published in the NYU Law Review . They are well worth reading. Here I will say a few more words about my paper, co-authored with Princeton political scientist Brandice Canes-Wrone: Measuring the Chilling Effect . After describing our paper, I'll offer some thoughts about how our findings might bear on the Texas  and Mississippi abortion cases currently before the Supreme Court on petitions for certiorari. Here is the abstract for our article: Supreme Court doctrine grants special protection against laws that “chill” protected speech, most prominently via the overbreadth doctrine. The overbreadth doctrine permits persons whose own speech is unprotected to challenge laws that infringe the protected speech of third parties. The Court