Showing posts from January, 2016


by Sherry Colb In my Verdict column for this week , I discuss a phenomenon in which pro-life advocates have been providing support in custody battles over frozen embryos to the side of the battles that seeks implantation (and thus a full "life") for the embryos.  My column contends that unlike in abortion-related battles, there is something very clean and uncontroversial about a fight for frozen embryos on pro-life grounds:  if one truly believes that a one-celled zygote is as entitled to live as a newborn baby, then a custody battle over an embryo in which one side seeks to kill the embryo and the other seeks to give it life through implantation is a ridiculously easy battle. Of course the side wanting implantation ought to win, because the "best interests of the child" (the appropriate standard if one is in fact dealing with a child) lies with the parent who will provide the child with a safe and nurturing environment for growth and development rather than a gar

Stuff Happened In Flint

by Neil H. Buchanan Because of a one-off scheduling change, I have published two new Verdict columns this week.  I will discuss and expand upon today's new column (which focuses on labor unions) in a Dorf on Law post next Tuesday.  Today's post builds upon my Verdict column that was published two days ago, " Republicans Should Learn From Flint That Governing on the Cheap Costs Too Much ," in which I respond to the penny-wise-pound-psychotic disaster in Flint, Michigan, where a Republican governor and state legislature have inflicted incalculable damage on the poor and mostly minority residents of a city of 100,000 people. Once one emotionally processes the utter depravity of what happened in Flint, the story can be seen as an almost perfect example of what economists like me have been saying forever: The government has an important role to play in every economy, budget cuts can be disastrous, infrastructure spending is essential, investing in people pays off (

Rights, Rules, and Legal Scholarship's Influence on the SCOTUS

by Michael Dorf My latest  Verdict column discusses last week's Supreme Court oral argument in Heffernan v. Paterson . Heffernan, a police officer, was demoted because his supervisors mistakenly believed that he was engaged in political activity favoring the mayoral challenger, when in fact he was simply picking up a sign for his mother. The city of Paterson argues that in order for him to state a valid claim under the First Amendment he must allege both that: (1) he was engaged in protected speech or association; and (2) that he was subject to an adverse employment decision because of government hostility to speech or association. Because Heffernan only alleges (2) but not (1), the city says he loses. Heffernan--supported by the federal government as amicus curiae on this point--argues that only (2) is necessary for a successful free speech claim. My column does not reach a firm conclusion on the bottom line, but I am highly critical of a distinction that the city, through la

When Parents Are Determined to Cheat Their Kids

by Neil H. Buchanan Frequent readers of Dorf on Law will not be surprised to learn that I am working on a series of articles about the past, present, and future of Social Security.  Tomorrow, I will be presenting a draft of the first of those papers, entitled Social Security Is Fair to All Generations , at SMU's Dedman School of Law.  I will soon be posting a draft of that paper to SSRN.  When I do, I will surely write a Dorf on Law post to describe that article in more detail than I will provide here.  For now, I want to discuss one argument that I recently added to the paper.  I do so mostly as a way of thinking out loud, and in particular to see whether the argument deserves more than a side comment in a footnote.  I suspect that it does, but I can be convinced either way. The big empirical question that I address in the paper is whether the Baby Boom generation "saved" for its own retirement.  In particular, the Social Security system is often disparaged for not

Beating Hearts: Abortion & Animal Rights -- Now Available

by Sherry Colb & Michael Dorf  Regular readers of this blog are undoubtedly by now well aware (indeed, sick of hearing) that we have a book forthcoming on abortion and animal rights. As of today, the book is no longer forthcoming. It's available for purchase at the Columbia University Press website , online retailers including Amazon  and  Barnes & Noble , and bricks-and-mortar bookstores. (The "official" publication date is March 6, 2016, but the book can be purchased and ships now.) When we have told people about the book, we have sometimes been met with puzzlement. What do these topics have to do with one another? It's as though we have announced that we wrote a book on apple sauce and windmills. Beating Hearts connects abortion and animal rights because, as we explain in the Introduction, both the pro-life movement and the animal rights movement challenge conventional understandings about the role that humanity--the fact of belonging to the human s

Symposium on "Invisible Justices"

By Eric Segall On February 11, the Georgia State University Law Review is hosting a comprehensive symposium on Supreme Court transparency. The participants will debate cameras in the Court, recusal practices, ethics requirements, anonymous certiorari votes, and the absence of any rules governing the Justices' papers. They will also discuss whether Congress can and should interfere in these issues. Here is a link  to the conference. Members of the judiciary who will be participating include Justice Willet of the Texas Supreme Court, Justice Nahmias of the Georgia Supreme Court, Judge Posner of the 7th Circuit (via Skype) and Judge Dillard of the Georgia Court of Appeals. The media will be represented by Adam Liptak of the New York Times, Robert Barnes of the Washington Post and Dahlia Lithwick of SLATE. Academics include, in addition to yours truly, Erwin Chemerinsky, Eugene Volokh, Vik Amar, Michael Gerhardt, Sonja West, Nancy Marder, RonNell Anderson Jones, Lauren Sudell Lu

Choosing a President's Parents Wisely

by Neil H. Buchanan Long before political pundits became fascinated by Donald Trump and his strangely resilient presidential campaign, business pundits had been even more puzzled by Trump's reputation for being a great businessman.  Some of the longstanding criticisms of Trump's business record have re-emerged in the campaign, such as his repeated use of the bankruptcy process , as well as his general strategy of ex post negotiation by threat , where he ends up extracting better terms for himself simply by siccing lawyers on his counterparties and threatening not to pay even on the most obvious claims.  He also is arguably the king of frivolous lawsuits .  Where is the Republican Party that hates lawyers ? That so much of Trump's fortune was ultimately built on government money is also at odds with his uber-businessman myth.  And we do not even need to get into the emptiness of his book The Art of the Deal.  (Morsel: Step 7 of his 11-step formula -- "inspired"

The Right Against Compelled Speech Versus A Right To Silence

by Michael Dorf As I noted here last week, my most recent  Verdict column  discusses  Cressman v. Thompson , in which the 10th Circuit rejected a compelled-speech objection to the display of what the plaintiff regards as a pantheistic image. I argue in the column that the 10th Circuit erred and I urge the SCOTUS to grant cert and reverse, even as I worry that a too-broad compelled-speech opinion could endanger anti-discrimination law. Here I want to follow up by considering a question about how the state might respond in future cases if Mr. Cressman ultimately wins. Below is the standard-issue Oklahoma license plate. When Cressman first approached the state authorities, he sought permission either to cover over the Sacred Rain Arrow image in roughly the left fifth of the plate or to receive a no-added-cost "vanity" plate--by which he actually meant a "special" plate --that would not bear the Rain Arrow image. Accordingly, if Cressman wins at the Supreme Co

Litigation Strategies Again: What Lessons Do We Learn From Winning?

by Neil H. Buchanan In my Dorf on Law post last Tuesday , I questioned the conventional wisdom among left-leaning legal strategists who frequently express concern about moving "too far, too soon" in trying to achieve progressive social change.  That concern is most frequently offered in resistance to bringing legal challenges on issues that are presumed to be somehow unripe in the minds of the public and/or the judiciary, such that (the logic goes) it is in various ways the wiser course to take a go-slow -- or simply a "maybe later, if we're lucky" -- approach.  As I noted in that post, I will write a post this summer in which I investigate how this logic applies to the question of animal rights.  Here, I want to discuss the relevant issues in a broader sense. As I acknowledged in last Tuesday's post, and as I will explain in more detail below, there is an undeniable logic to the idea that rash attempts to achieve social change in an unwelcoming environ

For MLK: On Speechmaking

By Michael Dorf In honor of Martin Luther King, Jr.'s birthday, I want to say a few words about speech making. I recently listened to part of a podcast in which someone* made the following observations: MLK was one of the greatest, perhaps the greatest, speech maker in our nation's history. He was clearly an extraordinarily gifted public speaker. And yet if you invited someone to a dinner party and that person proceeded to orate in the way that MLK did in his public speeches, you would correctly judge the person a lunatic. The takeaway, with which I agree, is that there is a difference between a powerful speech in an oratorical style and a conversation. That's not to say that one cannot be a powerful public speaker while speaking in a conversational style. Indeed, there are contexts in which a conversational style--even in public--is much preferred. I happen to work in two professions--academia and as a lawyer--in which launching into a speech of the form "I have

Bill Cosby's Propensities

By Sherry Colb In my column for this week , I discuss the rule against character evidence and how it might be applied to Bill Cosby's case.  The rule in question, Rule 404 (under Pennsylvania state law), provides that evidence of a person's character may not be introduced in evidence to show that the person acted on a particular occasion in a manner that corresponded with that character.  An example would be in a murder trial, one could not offer evidence that the defendant had committed several murders in the past, as tending to make it more likely that he committed the one of which he now stands accused.  The character rule has a caveat, however, that permits the introduction of prior bad acts evidence if offered to show something other than  character (and in a criminal case, the probative value outweighs any unfair prejudice).  A non-exhaustive list of examples includes proving identity or absence of mistake. As I explain in the column, fans of the general rule would te

Generation Swapping in Presidential Politics

by Neil H. Buchanan My new Verdict column asks the question: " Are Baby Boomers Better to Millennials Than Millennials Are to Themselves? "  With polls showing that Bernie Sanders's strength lies overwhelmingly among younger voters, many people have been wondering why the 74-year-old curmudgeon is so big with the kids.  My answer: It's the policies, stupid!  Please allow me to explain. It has long been obvious that, at least in the United States (and perhaps elsewhere, although I simply do not know), political life cycles tend to run from liberal to conservative.  There are plenty of counter-examples, of course, but the basic idea is that idealism is a luxury in which a person can indulge when he is willing to crash on a friend's floor for the weekend and his biggest concern is where the next party is.  As time passes, however, responsibilities like mortgages and child-rearing (and a growing sense of being entitled to live in comfort) create fears about secur

Why Does Passage Through Government Coffers Launder Money?

by Michael Dorf In my new Verdict column , I argue that the Supreme Court should grant cert in Cressman v. Thompson , a case in which an Oklahoma man raises a free-speech objection to the standard-issue state license plates. Those plates include an image that he (reasonably) regards as pantheistic, a view he wishes not to express. He cites  Wooley v. Maynard  for the proposition that he has a constitutional right to tape over the image to vindicate his right against compelled speech. The U.S. Court of Appeals for the 10th Circuit rejected his claim on grounds that I find unpersuasive. Nonetheless, as I explain in the column, there is a risk that a sloppily (or maliciously) written opinion vindicating Cressman's right could jeopardize anti-discrimination law. Accordingly, I urge a view of the right against compelled speech that is broader than the one adopted by the 10th Circuit but nonetheless reasonably cabined. Here I want to discuss the compelled-speech case already pending