Showing posts from May, 2020

Of Economics, Legal Reasoning, and Religion: Conservatives' Opportunistic Escape Hatches

by Neil H. Buchanan I have at various times thought that there was hope that the people with whom I disagree on matters of public policy and legal issues were at least making some kind of internal sense.  That is, I thought that perhaps it was possible to follow their logic and apply it to new questions, and even if the answers to which their logic might lead were "not conservative," at least the other side would have to admit that their own approach to answering such questions had led us there.  Fair is fair. I miss those days of optimistic youth.  As Professor Dorf and I have both announced this week ( here and here , respectively), we recently wrote a law review article, " A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism ," in which we note not only that conservatives are playing rigged games in both economic analysis and legal interpretation but that the way in which they have rigged both games is surprisingly similar.  We

We Can Have a Fairer, More Prosperous World: The Deep Emptiness of Efficiency as a Concept Is Even Deeper Than It Seems

by Neil H. Buchanan Pretty much everyone who has studied even a tiny bit of economics is likely to have come across the familiar "efficiency-equity trade off," which posits not only that there are two distinct concepts called efficiency and equity but that they are in conflict.  If we want more efficiency, the logic goes, we must accept less equitable outcomes.  If we want more equity, we must give up some efficiency.  Sound familiar? This is, in fact, not only wrong as a matter of logic but tragically so in its consequences.  Even though it is wrong, however, the liberal/conservative divide in the U.S. (and probably in many other countries as well, although what counts as left-ish in this country is clearly to the right of center in any other country to which we might compare ourselves) is in some ways built around this false choice.  Liberals have accommodated themselves to the idea that they are trading away some amount of efficiency when they promote things like minim

Of Lynchings, Grand Jury Secrecy, and the Rot of Racism in the United States

By Eric Segall On July 25, 1946, about sixty miles east of Atlanta, two African-American couples, Roger and Dorothy Malcom and George and Mae Murray Dorsey, were dragged from their car at gunpoint, tied to a tree, and shot approximately 60 times. The attack came to be known as the Moore’s Ford lynchings.  Despite the police interviewing almost 3000 witnesses, and a grand jury investigation that lasted for 16 days with over 100 witnesses, no one was ever arrested for these terrible and gruesome murders, which took place in public. Some people believe this heinous crime was the last mass lynching in our country. Historian Anthony Pitch, who had already written one book on the subject,  spent the last six years of his life trying to unseal the grand jury materials relevant to the lynchings. He believed that this racist crime and the likely coverup of those who committed it was a major event in American history as well a tragic saga of race in America. He prevailed in front o

A New Buchanan/Dorf Paper Explains Why We Don't See More Conflict Between Law & Economics and Originalism/Textualism

by Michael C. Dorf In my Memorial Day essay yesterday , I approvingly referred to two recent criticisms of economists by Professor Buchanan ( here and here ). Readers may be wondering whether we're done criticizing mainstream economics. If so, wonder no more. We're not. Professor Buchanan (who is himself an economist by training) and I have  an article forthcoming in the Cornell Law Review  that explains why Law & Economics (L&E) is bunk even when it is not being invoked to promote policies that will kill tens of thousands of people. In  A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism , we look at L&E alongside the other leading conservative approach to law: originalism in constitutional interpretation and textualism in statutory interpretation (collectively O&T). We address a puzzle: Given that L&E and O&T are grounded in different frameworks and prescribe different methodologies, why do they so rarely result in open

For Memorial Day: Remembering All the Fallen

by Michael C. Dorf On this Memorial Day, I think it appropriate to remember not only those who lost their lives defending the United States against human enemies but the roughly one hundred thousand Americans who have thus far perished due to COVID-19. Some of those deaths were probably inevitable, but as the widely varied experiences of different countries show, a great many were not. And a recent study concluded  that even short delays in imposing social distancing and quarantine measures resulted in tens of thousands of additional lives lost.

Distinguishing Habeas from Conditions of Confinement Challenges is Needlessly Formalistic

by Michael C. Dorf I have joined an amicus brief that will shortly be filed in a pending case by a prison inmate at heightened risk from COVID-19 due to his age and pre-existing conditions. As readers surely know, prisons and jails have become hotspots for the spread of the novel coronavirus. Designed to house prisoners in small quarters and often over-crowded by ordinary standards, prisons and jails either cannot or do not provide the sort of social distancing that can reasonably mitigate the risk of spread. Consequently, authorities in some jurisdictions have released nonviolent and otherwise low-risk offenders. However, not all jurisdictions have followed this path, and some that have are doing so in ways that raise questions. Accordingly, lawsuits have been filed. My goal today is not to describe any particular lawsuit in particular, but to make what should be an obvious point about risk and then to propose a commonsense change to state and federal procedural law governing litigati

Why Are Some Economists So Awful Right Now? Part 2

by Neil H. Buchanan A bit more than a month ago, I published a Dorf on Law column under the title: "Why Are Some Economists So Awful Right Now?"  I have now added "Part 1" to that title, and today's column is an addendum to my discussion there. Part 1 focused mostly on two people (Tyler Cowen, who holds formal credentials as an economist, and Richard Epstein, who holds no such credentials but is considered a big shot among the right-wing Law & Economics crowd), both of whom have been particularly awful about the current pandemic.  Both essentially say that they know more than epidemiologists, or at least (per Cowen) that maybe epidemiologists are not all that smart and should not be taken seriously. To that small brotherhood we can now add Kevin Hassett, former chair of Donald Trump's Council of Economic Advisors (CEA), who was made a Senior Advisor to the President on April 15 of this year.  Hassett, who had mostly flown under the radar even whe

Do "Fake Friends" Violate the Fourth Amendment? Guest Post by Michael Mills

Note from Sherry F. Colb: When the current public health emergency led law school instruction for the second half of the Spring to shift online, we (Cornell and many other schools) also adjusted our grading policy. Based on principles of compassion, equity, and integrity, we shifted all grading to pass/fail. Everyone who earned a passing grade under these very trying circumstances deserves a great deal of credit, but I also hoped to recognize outstanding performance in some way. Accordingly, I offered to publish two of the top essays for my criminal procedure exam. Below is one of the exam answers of Michael Mills, a law student who has now just completed his second year at Cornell. I have omitted the prompt, because the answer speaks for itself. -------------------------------------------------------------------- Do "Fake Friends"  Violate the Fourth Amendment?  by Michael Mills We tell our friends a lot. We turn to them to share our accomplishments when we’re happy.

Holding the States and Cities Hostage to Enable Corporate Recklessness

by Neil H. Buchanan Mitch McConnell announced earlier this month that he, Donald Trump, and their Republican enablers will "take a pause" before moving forward on any further economic relief bills.  And why not?  Democrats capitulated to McConnell's insistence that the bills that have been passed thus far leave out states and cities, which desperately need fiscal relief.  Meanwhile, Lindsey Graham has said that extending unemployment benefits will happen "over our dead bodies." On the other side of the ledger, there is still a half-trillion dollar slush fund that Trump's Treasury lackey Steve Mnuchin can dole out to Republican-friendly corporations.  The deal so far, just as it was with the 2017 tax cut, is to provide crumbs to the masses and feasts for the wealthy.  But it is always possible to grab for more, and McConnell knows a good hostage when he sees one.  What does he want?  An end to corporate accountability, of course. Here, I want to disc

Inspector General Firings Highlight the Danger of the Unitary Executive Theory

by Michael C. Dorf During the oral argument last week in Trump v. Vance , the President's attorney, Jay Sekulow, rested part of his case on the assertion that the President "is himself a branch of government. He is the only individual that is a branch of government in our federal system." Sekulow meant thereby to invoke the so-called unitary executive theory. The textual root of the theory comprises the first sentence of Article II: "The executive power shall be vested in a President of the United States of America." You see? , say the unitary executive theorists. All executive power is vested in the President . From that proposition, unitary executive theorists derive various further ones, such as the one for which Sekulow was arguing--that the President should be immune from a state grand jury subpoena, which could distract said entire branch of government from his/its vital work. It's easy and completely appropriate to ridicule Sekulow's answer

Using the Crisis to Advance a Preexisting Agenda: Not a 'Both Sides Are Equally At Fault' Situation

by Neil H. Buchanan Two weeks ago, I wrote here on Dorf on Law that progressives are most definitely not wrongly exploiting the current economic crisis to, as the editors of The Washington Post put it, "use emergency legislation intended to rescue the economy as a vehicle to achieve long-sought progressive goals."  I tried to contrast two types of responses to a crisis: what one could call the "exploitation" move by advocates who push their unrelated policy agendas, as opposed to the "now more than ever move" by advocates who make the case that things that they have always favored have now become even more important due to the crisis. It is actually somewhat tricky to distinguish the two, because both responses can be characterized as beginning with: "As I've been saying all along ... ."  A key difference is in whether the policy agenda is actually relevant to the crisis.  Thus, I argued that progressives' calls for massive spen

Fun With Logic and Its Antithesis in the Trump Era

by Neil H. Buchanan My new Verdict column , published today, is the first of a two-part analysis in which I make the case for federal disaster relief to states and cities whose budgets have been decimated by the pandemic-related economic crisis.  The second part, to be published either tomorrow or next week, will focus on a potential workaround if Mitch McConnell, Donald Trump, and their tribe continue to oppose such relief. Today's column, however, is more of an exercise in counter-punching.  Indeed, it essentially amounts to a series of responses to Republicans' absurd talking points, in particular McConnell's claim that such relief to states and cities would cause the federal government to "pay for the Democrats' mistakes," or something like that.  I point out, among other things, that it would be incredibly easy to put states and cities into the same financial position that they would have been in if there had been no crisis, which would mean that any

Bridgegate & the Pathological Perspective on Trump's Financial Records

by Michael C. Dorf In my Verdict column this week, I discuss the prospects for holding corrupt government officials accountable in the wake of the Supreme Court's unanimous decision in Kelly v. United States reversing federal convictions for the "Bridgegate" officials. I obliquely suggest that the Court has gone overboard (in this and prior cases) in narrowing acts of Congress that aim at corruption, even as I acknowledge a risk of over-criminalization. Here I want to briefly tie my observations on the Kelly case to yesterday's arguments in the Trump financial records cases.

Lawyer Highlights and (Mostly) Lowlights in the Congressional & Grand Jury Subpoena Oral Arguments

by Michael C. Dorf The big news from today's oral SCOTUS oral arguments is that there appears to be a greater likelihood that the Court will allow the Manhattan grand jury subpoena to stand--or at least will deny Trump's categorical objections to it--than that it will give its blessing to the House committee subpoenas. The conservative Justices seemed receptive to NY County DA Carey Dunne's argument that the Manhattan case is essentially controlled by Clinton v. Jones . If the president's interest in avoiding distraction does not suffice to give him categorical temporary immunity from civil litigation, then it surely does not suffice to overcome the state's stronger interest in the vindication of its criminal law. To be sure, Trump lawyer Jay Sekulow argued that Jones was a wholly different case because it arose in federal court. But while Sekulow was very loud, he wasn't very persuasive for two main reasons. First, the Court in Clinton v. Jones said only th

Deconstructing Justice Thomas: The Greatest Non-Judge Justice of Them All

By Eric Segall "He does not believe in stare decisis , period."       Justice Antonin Scalia on Justice Clarence Thomas What constrains Supreme Court Justices who serve for life and do not have to worry about re-election? Some people have caricatured my thesis that the Court is not a court and the Justices are not judges by suggesting that I believe there are no limits on the Justices' decision making, but that is not true. As I discuss below, there are a number of limits on how the Justices do their job. I have to discuss these limits at some length before I can get to why Justice Clarence Thomas is the greatest non-judge Justice of them all. So please bear with the preface to that argument.

Justice Thomas's Faux-Originalist Critique of Overbreadth is Radically Underinclusive (and Wrongheaded in Other Ways Too)

by Michael C. Dorf On Thursday, in US v. Sinening-Smith , the Supreme Court, speaking through Justice Ginsburg, unanimously reversed a decision of the Ninth Circuit on the ground that that court so over-stepped its role in the adversary system as to have abused its discretion. According to the SCOTUS, by inviting amici to argue points not directly presented by counsel without adequate justification (such as the need to assure itself of proper subject matter jurisdiction, which courts must raise  sua sponte ), the court impermissibly took over the appeal. To be sure, "a court is not hide-bound by the precise arguments of counsel," Justice Ginsburg acknowledged, "but the Ninth Circuit’s radical transformation of this case goes well beyond the pale." Yet just ten days earlier, the Supreme Court itself had issued an order in the pending cases involving Donald Trump's financial records, seeking briefing on the political question doctrine. No doubt to head off charge

It Turns Out Clarence Thomas is no Glossophobe; He's Just Polite

by Michael C. Dorf By  some measures , up to 75 percent of people suffer from glossophobia , the fear of public speaking.   Yet many people who appear to be glossophobes actually might not be. I knew a college debater who, in ordinary conversation, was very quiet, leading those who didn't know her to conclude that she was shy, perhaps painfully so. However, during a debate, she spoke eloquently, confidently, and appropriately loudly. My working hypothesis was that she was not at all nervous about speaking in public; she was simply very polite and thus unwilling to break into an existing conversation. It's probably not an accident that my debater acquaintance was a woman. A large body of social science research identifies and analyzes the causes of gender and racial gaps in participation in classroom discussions. It turns out that females and members of disadvantaged minority groups are not just more reluctant than white males to interrupt others in an ordinary conversation. The

What Should Be Bad Enough to Make Politically Savvy People Abandon Joe Biden?

by Neil H. Buchanan If a verifiable and undoctored video emerged this morning showing Joe Biden using the n-word repeatedly, his remaining time as the Democrats' presumptive presidential nominee would be measured in days if not hours.  And that is true even though Donald Trump is an unabashed racist, and even though a racist-enough-to-use-that-word-privately Biden would still be a much better president in every way. If a verifiable and undoctored video emerged this morning showing Biden calling Jared Kushner "proof that the rich are stupid and hate Americans," that would generate a great deal of consternation across the political spectrum.  It would surely become a meme of the campaign, with Republicans repeatedly hammering on it even as Biden and every Democrat explained that Biden's comment was expressed in frustration, in a moment of exhaustion, as a joke, or whatever.  But it would almost surely not -- and should not -- result in Biden's being forced to wi

Free Speech for Robocallers? A Preview of the Severability Issue in Barr v. American Ass'n of Political Consultants

by Michael C. Dorf Listeners tuning in live to hear Supreme Court telephonic oral arguments today will likely be most keenly interested in the cases involving claims at the intersection of religious freedom and what's left of the Affordable Care Act's employer-mandated contraception coverage. But there's another case to be argued today, Barr v. American Ass'n of Political Consultants  (AAPC) , and it involves the free speech rights of robots! As longtime readers know, I favor rights for sentient robots on the same grounds that I favor animal rights, so you can imagine how excited I am to see the possibility of robots getting their due in the highest court in the land. Okay, fine. AAPC has nothing to do with the rights of robots. It's a case about the rights of robocallers--that is to say, the human beings who want to send pre-recorded or auto-dialed messages to mobile phone users. That's right, this is a case brought by perhaps the least popular demographic in

Fair or Not, Biden Must Go

by Neil H. Buchanan This column addresses the 2020 U.S. presidential election.  Because I have not written directly on this topic for the past two months, I feel the need to begin by reiterating two points that I have made many times over the past few years: (1) In anything like a fair election (even the ones that have passed for "fair" in this country), Donald Trump would lose to anyone the Democrats nominate; but (2) Even if he loses, Trump will not leave office. After updating those two caveats, I will explain why Joe Biden should withdraw from the presidential race -- or , if he will not volunteer to do so, why the Democrats should ease him out involuntarily.

What's at Stake in Today's Trademark Oral Argument?

by Michael C. Dorf The Supreme Court kicks off its unprecedented live audio May oral argument schedule today with a nifty little trademark case. In US Patent & Trademark Office v. , the Court is reviewing a decision by the US Court of Appeals for the Fourth Circuit, which allowed trademark registration for, even though the term merely combines a generic term for making reservations ("booking") with a top-level domain (".com"). As the Fourth Circuit summarized its reasoning, "adding '.com' to [a generic term] can result in a non-generic, descriptive mark upon a showing of primary significance to the relevant public." In the Supreme Court, the Solicitor General argues that the Fourth Circuit decision is inconsistent with longstanding principles of trademark law. The SG's brief cites the aptly confusingly captioned Goodyear's Rubber Manuf'g Co. v. Goodyear Rubber Co. (1888) . Just as that case held that the ad

The Futility of Originalist Analysis in Second Amendment Cases

By Eric Segall ( Cross-posted @ Second Thoughts ) In his dissent to the Supreme Court’s dismissal of New York State Rifle & Pistol Association v. City of New York on grounds of mootness, Justice Alito wrote the following about the merits of the case: “neither the City, the courts below, nor any of the many amici supporting the City have shown that municipalities during the founding era prevented gun owners from taking their guns outside city limits for practice.” After arguing that the plaintiffs should have won on originalist grounds, Alito then discussed the city’s justifications for its law (now repealed), finding that those purposes were constitutionally insufficient. In this post, I want to focus on Alito’s originalist comments.