Showing posts from June, 2019

The Census and Gerrymandering Cases and the Right-Wing End Game

by Neil H. Buchanan Why do courts exist?  More precisely, why do constitutional courts -- courts whose jurisdiction is not simply criminal and civil adjudication but that covers questions of the sort that currently reach the U.S. Supreme Court -- exist? Two answers to that question arise from very different choices in the design of a democracy.  One choice is whether to have direct or representative democracy.  If there is not going to be rule by plebiscite or town hall meeting, then there must be rules to set up and maintain a representative democracy.  The other choice is whether the government will be purely majoritarian or will instead live within limits on what it can do and under what conditions.  Note that one could have counter-majoritarianism even without representative democracy, just as the reverse is true, but in any event, we in the United States currently have both. Once we have answered those two questions, we need constitutional courts.  We need them to decide wh

Vivid Pictures, Public Revulsion, and the Supreme Court

  by Neil H. Buchanan We are waiting for the ever more intensely hyper-conservative Supreme Court to reveal itself, thus far without much fanfare.  Yes, there have been some notable wins for the conservative movement, and Professor Dorf noted three days ago that last week's decision in Gundy v. U.S. "should probably be understood as the case that marked the beginning of the Roberts Court's open war on the administrative state." Professor Dorf notes that Gundy is "not exactly Lochner , but it serves similar aims and interests."  As I argued last Fall, a key part of the long game in the conservative movement's judicial strategy is to restore the Lochner Era's fealty to narrow reactionary economic dogma, which involves holding that all ameliorative government actions are not merely bad policy but unconstitutional. I subsequently argued that the Court's new hyper-conservative majority might not be as restrained as some people expect it to

The Supreme Court Should Clean Up How Justices Are Noted as Joining Parts of Opinions

by Michael C. Dorf In today's ruling in Kisor v. Wilke , Justice Kagan writes in part for the full Court and partly for a plurality. The case rejects the proposal to overrule, and then goes on to clarify, the doctrine known as Auer deference, under which courts give some deference to agency interpretations of their own ambiguous regulations. One key point is that such deference applies only to genuinely ambiguous regulations. And there are some. As Justice Kagan writes: For various reasons, regulations may be genuinely ambiguous. They may not directly or clearly address every issue; when applied to some fact patterns, they may prove susceptible to more than one reasonable reading. Sometimes, this sort of ambiguity arises from careless drafting—the use of a dangling modifier, an awkward word, an opaque construction. But often, ambiguity reflects the well-known limits of expression or knowledge. There is an irony lurking here, because Justice Kagan's own opinion--or at least


by Michael C. Dorf On Verdict , I discuss the SCOTUS decision in Iancu v. Brunetti . The title of my column:  After Supreme Court Ruling, Are Profane Trademarks Truly “FUCT”? In light of the subject matter, I use profanity, so consider yourself forewarned. Meanwhile, I'll have a substantive post up later today, after the next round of decisions is handed down.

When Does a Taking Occur?

by Michael C. Dorf For me, yesterday's most painful decision came in Food Marketing Institute v. Argus Leader Media , in which the Court adopted an expansive (and in my view woodenly textualist) reading of a Freedom of Information Act (FOIA) exception that will make it considerably harder for the public to obtain important information from the government about private actors. I find the decision painful not only because it will harm the public interest (at least in a few cases) but because the Court rejected the position staked out by FOIA and First Amendment scholars in an amicus brief for which I was counsel of record. The brief was a collaborative project of Cornell Law School's terrific First Amendment clinic (on whose advisory board I sit). Still, the clinic has quite a few more irons in the FOIA (yuck yuck). So we live to fight another day. Meanwhile, today I want to say a few words about another decision handed down last week. In Knick v. Township of Scott , the Cour

Wrap-Up of Three End-of-Last-Week's SCOTUS Cases and Anticipation of Today's Coming Decisions

by Michael C. Dorf The Supreme Court could wrap up its current Term today. Even if it adds another day of announcements, one or more important cases will likely be handed down today. If so, I'll blog about at least one of them later today or tomorrow at the latest. Meanwhile, I want to use this morning's first post to register brief comments on three cases handed down at the end of last week: (1) Flowers v. Mississippi , in which the Court, 7-2 in an opinion by Justice Kavanaugh, found a violation of the defendant's right to a jury selected without racial bias; (2) American Legion v. American Humanist Assn , in which Justice Alito, writing for a majority in important respects, rejected an Establishment Clause challenge to the Bladensburg Cross, but in a way that does not exactly invite numerous new religious-themed monuments erected and maintained at public expense; and (3) Gundy v. US , in which the Court rejected a nondelegation challenge to a federal statute delegati

Even If Trump Leaves, the Best Case Scenario Is Still Horrible

by Neil H. Buchanan What will the country and the world be like if Donald Trump ever leaves the White House (voluntarily or otherwise)?  How much permanent or long-lingering damage have he and the Republican Party already done to the country and the world?  Joe Biden's fatuous claims that he can get us "back to normal" notwithstanding, what is realistic?

Is It Too Late to Save Our Constitutional Democracy? A Very Minimal Case for Optimism

by Neil H. Buchanan Donald Trump has become increasingly brazen about his willingness to say or do anything to stay in power.  Most recently, he has casually admitted that he would gladly accept interference from a foreign government to win the 2020 election, and he blithely (but forebodingly) commented that, unlike Richard Nixon, "I don't leave."  All of this and more has led people to wonder what will happen if Trump refuses to leave office peacefully next year. Nancy Pelosi is surely right that it is important for the Democratic nominee (whoever she or he is) to win as resoundingly as possible, even though my best guess continues to be that nothing will stop Trump from crying foul after a loss.  In fact, the bigger the loss, the more likely it is that he will claim "massive voter fraud." This suggests that we might already be beyond the point of no return, which would mean that we are currently living through the time period after the lethal dose of p

Standing is What Standing Does: The Incoherence of the Personal Injury Requirement

By Eric Segall On Monday, the Supreme Court by a 5-4 vote held that the Virginia House of Delegates did not have Article III standing to appeal a three-judge lower court opinion declaring unconstitutional the state's redistricting efforts and replacing the state's map with one the Court created. There may (or may not) be valid reasons for the Court to decline to hear the case, but lack of Article III standing should not have been the basis for the decision.

The Relevance of Emotion to Abortion

by Sherry F. Colb In my Verdict column this week, I explore the question of which emotions people associate with self-defense and revenge, respectively. I suggest that we tend to think of fear in connection with self-defense or defense of others and anger with revenge and. I propose that because reality is more complicated, juries may mistake legitimate self-defense for criminal aggression. In this post, I want to apply the ideas from the column to the distinct area of abortion and, in particular, to the exceptions that pro-life legislation sometimes contains to its prohibition against the procedure.

Liberty and Polarization in Yesterday's SCOTUS Opinions

by Michael C. Dorf The Supreme Court decided two cases yesterday in which various Justices invoked "liberty" in odd ways. In Gamble v. US , the Court rejected an invitation to abandon the "separate sovereigns" principle under which double jeopardy protection does not extend to dual prosecution for the same conduct under substantively the same statutes at the state and the federal level. As I argued on the blog , I think the Court got it right, even though I also think a couple of Justice Alito's points in the majority opinion were off-target. I won't rehash my argument now. Instead, I'll just note an odd argument made in each of the dissents (by Justices Ginsburg and Gorsuch). Justice Alito aptly summarizes it thus: "because the division of federal and state power was meant to promote liberty, it cannot support a rule that exposes Gamble to a second sentence." Alito's response is persuasive: Yes, he says, there is a sense in which feder

The Court Was Right to Reaffirm Separate Sovereigns in Gamble, But it Says Two Questionable Things En Route

By Michael C. Dorf In Gamble v. United States , the Supreme Court rejected an invitation to overrule the longstanding principle according to which the Double Jeopardy Clause of the Fifth Amendment does not apply to a federal prosecution following a state prosecution. The particular case involved a federal felon-in-possession-of-a-firearm prosecution following a conviction on state charges for the same conduct, but Justice Alito's 7-2 majority opinion reaffirms the principle in its entirety. It applies regardless of whether the state or federal trial occurs first and regardless of whether the first trial ended in conviction or acquittal (or some other disposition following the attachment of jeopardy). There is an if-it-ain't-broke-don't-fix-it quality to the majority opinion. The Court recognized the separate-sovereigns principle over 170 years ago, and neither of the petitioner's chief arguments carries the heavy burden needed to overrule such a longstanding precede

Watch This Space For SCOTUS Analysis Later Today

by Michael C. Dorf With just a handful of SCOTUS announcement days remaining on the calendar and important decisions pending on the census, gerrymandering, the Establishment Clause, and more, this morning I shall wait to see what fresh hell emanates from 1 First Street, NE, and then post a quick take. Stay tuned!

Advice From Alexander Hamilton: The Next Democratic President Might Need to Pardon Trump

by Michael C. Dorf There is no real equivalence between Donald Trump's gleeful and repeated encouragement of his supporters chanting "lock her up" in reference to Hillary Clinton's use of a private email server and recent statements about Trump by House Speaker Nancy Pelosi (“I don’t want to see him impeached. I want to see him in prison") and by Senator Kamala Harris (in a Harris administration, DOJ "would have no choice" but to prosecute Trump for obstruction). Pelosi made her remark in private and as a way to tamp down impeachment, while Harris made her statement in response to a question. Moreover, as the Mueller report documents, there is substantial evidence that Trump committed crimes that would subject him to indictment and conviction were it not for the DOJ policy against indicting a sitting president. By contrast, Clinton's email server use was reckless but not the sort of act that typically warrants prosecution. Nonetheless, in a La

Home Ownership, Capitalism, and That Elusive Efficiency Thing

[Note to readers: My new Verdict column, " Elected Dictators? The Limits of What Government Officials Can Do With Their Power ," was published this morning.  Although my column below focuses on a very different topic, I encourage everyone to read the Verdict piece as well.] by Neil H. Buchanan During and immediately after the Great Recession, politicians and policy analysts understandably spent a great deal of time thinking about mortgages and home ownership.  This obviously made sense, because so much of the financial crisis that nearly pushed the global economy into a second Great Depression -- averted only because the Bush and Obama administrations (and just enough Republicans and Democrats in Congress) actually did the right things and saved the economy with necessary but unpopular bailouts -- was driven by the mortgage market. My take on the situation was that the crisis had exposed the folly of our obsession with home ownership as part of the American Dream.  M

Litigation Versus Disclosure Versus Regulation as Means of Inducing Cost-Internalization: A Comment on the Insys Bankruptcy

by Michael C. Dorf As then-Professor Guido Calabresi's pathbreaking work explained, the tort system can be a kind of substitute for or complement to regulation. As applied to manufacturers, tort damages serve not only to compensate victims but also to induce cost internalization. In this blog post, I shall use the news of the bankruptcy filing by Insys Therapeutics--maker of fentanyl--as an occasion to discuss some of the advantages and disadvantages of the tort system relative to other mechanisms for promoting cost internalization. I'll discuss taxes, regulation, markets, and disclosure.

Is Economics the Problem, Or Is It the Economists?

by Neil H. Buchanan My career move from economics into law began twenty years ago, and it was not a happy divorce.  Over the years since then, I have often been asked to explain why I was willing to leave economics behind (as a professional matter, not as an intellectual one, given that my writing continues to be dominated by economic policy topics such as budget deficits), and my answers have reliably elicited hostile feedback from people who think that economics is a beautiful and important thing. Those negative responses, however, have always had a confused air about them, vacillating between a defense of the field of economics and a defense of economists themselves.  Is it the thing or the people who do that thing that matters? Am I saying, in blunt terms, that economics sucks or that economists suck? It could be both, actually, and too often economists truly are guilty of intellectual dishonesty.  Ultimately, however, it is the disembodied field itself that is the problem.

Free Speech and Boycotts Revisited

by Michael C. Dorf ( cross-posted at The Volokh Conspiracy ) In Arkansas Times v. Waldrip , the US Court of Appeals for the Fourth Circuit will decide whether an Arkansas law requiring public entities (including contractors with the state) to certify that they do not boycott Israel or companies that do business with Israel violates the First Amendment. The district court held that it does not. Various champions of free speech have filed briefs arguing that political boycotts are protected free speech. Three scholars who also fashion ourselves champions of free speech -- Professors Andrew Koppelman, Eugene Volokh, and I -- take the opposite view. You can read  our brief here . You can read a summary of our argument in a blog post by Prof Volokh here . His blog post also contains links to the briefs on the other side. Here I'll add a few words that go beyond what I wrote on this topic back in February and what we say in the brief.

Abortion and Eugenics Part 2: Attributing Motives

by Michael C. Dorf (Updated with Audio) This morning during the 10 am hour, Prof Colb and I will be on air in Philadelphia on WWDB-AM Talk 860 and everywhere else via  TuneIn, iHeartRadio, and streaming from the webpage . We'll be joining Laurent Levy, host of The Other Animals . (Update: Here's the audio . We come in at the 11:30 mark.) We'll be talking about some of the topics in our book Beating Hearts: Abortion and Animal Rights . Certainly the abortion piece is much in the news. Meanwhile, as Prof Colb's post on Wednesday on the insanity defense and so-called humane animal products shows, human treatment of animals remains relevant to just about everything. Depending on how the radio segment goes, I may write a follow-up post. Meanwhile, I want to use this space today to talk a little bit about attributions of motives in the abortion debate.

Everything Is Both Efficient and Inefficient as a Matter of Economics

by Neil H. Buchanan In policy debates, and especially in tax policy debates, the ultimate ace in the hole (note that I avoided saying "trump card") is an efficiency argument.  My side favors an efficient policy, but your side foolishly stands for inefficiency!   Everyone wants to be on the right side of that divide -- because no one could affirmatively defend being inefficient!! -- which means that the outcome of the efficiency debate matters greatly to everyone. That is not to say that everyone is willing to favor efficiency over everything else.  One of the classic questions in policy analysis, after all, is the supposed "equity/efficiency tradeoff," wherein the people who favor a policy because it helps the poor specifically or mitigates inequality more generally say that any inefficiency caused by their policy is more than made up for by the moral value of reducing inequity. But why does that debate always find its combatants in the same positions, with co

Humanely Raised Animals and the Insanity Defense

by Sherry F. Colb The U.S. Supreme Court recently granted certiorari in  Kahler v. Kansas . The case asks whether abolishing the insanity defense violates the Constitution. In my Verdict column this week , I discuss the case and make some arguments in defense of allowing abolition. In this post, I want to discuss a feature of the insanity defense that it arguably shares with animal welfare regulations and customs that purport to protect animals from cruelty.

The Undead Nature of Orthodox Economics

by Neil H. Buchanan Orthodox economics, as taught in thousands of Econ 101 classrooms around the world and as written down in millions of textbooks for the past few generations, carries the unmistakable message that "markets are good" and thus that "government (intervention) is bad."  Especially for a field that hides behind the positive/normative distinction -- "We are scientists who offer positive (i.e., neutral) analysis, leaving the normative choices to the philosophers and politicians" -- it is quite striking how blatantly obvious those normative conclusions are. As one might imagine (and as most readers are well aware), there has long been quite a bit of resistance to those normative prescriptions.  Outside of economics, it is a running joke to note the cult-like worship of "the free market" and the resistance by economists to any objections to their beliefs.  Even within economics, many scholars seem to defy their own orthodoxy by argu

Dicta and the Original Meaning of Article III

by Michael C. Dorf A recent order in a pending Sixth Circuit case asks the parties for supplemental briefing on the original meaning of the cases or controversies language in Article III and its relevance to the distinction between holding and dicta. The order is especially notable because it directs the attorneys to explain how the Corpus of Founding Era American English  bears on the question. To my mind, the order raises numerous issues. Here, I'll address the following: 1) How useful is the corpus for discerning original meaning as a general matter? 2) Even assuming the answer to question 1) is "at least somewhat," should lawyers who haven't chosen to cite it be directed by courts to do so? 3) Even assuming the answer to question 2) is "yes, at least sometimes," is this such an occasion? 4) Does the original meaning of Article III determine the line between holding and dicta, even on originalist premises? 5) How should one translate that origi