Dorf on Law

By Mike Dorf Speaking of the fungibility of money--which I was speaking about just yesterday --what should one make of last week's Supreme Court decision in  Arizona Christian School Tuition Organization ("ACSTO") v. Winn ?  The case holds that taxpayers lack standing (qua taxpayers) to bring an Establishment Clause challenge to a state tax credit for those who donate to organizations that provide private school scholarships, including scholarships for private religious schools that discriminate on the basis of religion.  The plaintiffs argued that the state could not--consistent with the Establishment Clause--directly fund religious discrimination, and so it could not do it through the tax code. That argument might be wrong on the merits.  After all, a line of Supreme Court cases holds that where the government makes some benefit (such as a sign-language interpreter or private school vouchers) available to private parties, the fact that some of those private pa...

By Mike Dorf In my last post , I noted that the social conservative opposition to funding Planned Parenthood during the budget showdown (and more generally) was not directly about opposition to funding abortion, because federal law already bars federal funding of abortions.  Rather, I said, this was an effort to cut off funding to an organization that uses other funds to pay for abortions.  One reader emailed to ask me whether the conservatives didn't have a point, given the fungibility of money: Federal funding for, say, cancer screenings by PP doctors enables PP to re-direct funds that would have otherwise gone to fund the cancer screenings to pay for abortions, so people who object to funding abortion have legitimate grounds to object to funding any organization that performs abortions. I wrote back to this reader that he may be right but that conservatives do not consistently apply this principle.  (Liberals don't either.)  After all, in recent years, conserv...

By Mike Dorf As an occasional contributor to Democratic candidates and causes, I receive frequent snail-mail, texts, and emails from various organizations.  Today's email had me dizzy from the spin.  The Democratic Legislative Campaign Committee proclaimed that "[t]he Republicans blinked" and that " today the Democrats have shown that they will not be bullied by the Tea Party into abandoning our core values."  If that's true, it's only because Democrats no longer have any core values.   By seemingly any measure, "who won the 2011 budget shutdown showdown?"  is a no-brainer: Republicans, of course. 1) Speaker Boehner originally proposed $33 billion in cuts; Obama and  the Dems agreed to that figure; under pressure from the tea party right, Boehner then  said he wanted deeper cuts--and he got deeper cuts.  The deal struck  at the 11th hour on Friday night calls for $38 billion in cuts. 2) Those cuts come from programs that dispropor...

By Ori Herstein “The murder of whom?” you may ask. Of no one of great significance: a talented Israeli film and stage actor who was not particularly famous or well-known, not even by Israeli standards. Mer was gunned down in cold blood earlier this week ( see here ) The masked murderer was most likely an Islamic fundamentalist. The assassination occurred in the Palestinian city/refugee camp of Jenin outside the “Freedom Theater,” a community theater Mer founded to bring culture and creativity to the largely bleak lives of the people and children of the Jenin refugee camp. The endeavor apparently angered local religious zealots because of its secular nature. Mer erected the Freedom Theater on the ruins of the theater previously run by his mother, which had also been devoted to the children of Jenin. Several of the children involved in that theater grew up to die in the second intifada. Some turned to terrorism (for a documentary on their stories see here ). And still Mer per...

-- Posted by Neil H. Buchanan The buzz this week in Washington has been all about the new Tea Party/Republican proposal to effectively phase out Medicare and Medicaid. Following the standard practice, the press has been quick to label this plan "bold," while noting its political risks. I will have more to say about that proposal sometime soon, so I will limit myself here to pointing out ( again ) that anyone can propose a big, bold plan to reduce the deficit. It takes no expertise to throw around a few big numbers and then declare that politicians must take up the challenge to save the republic by imposing pain on the people. What is surprising is that this week's proposal is not focused on gutting Social Security. The current proposal was supposedly written by the blatantly overrated Wisconsin Congressman Paul Ryan, who has previously proposed ending Social Security (in all but name) as well. For now, however, it is Democrats and nominal liberals who continue to do...

-- Posted by Neil H. Buchanan In a recent class discussion about Social Security, I was pointing out the surprising similarities between pay-as-you-go (PAYGO) financing and "fully-funded" financing. Although there are many important differences between the two methods of financing a nation's retirement system, I noted that PAYGO (the basis for the U.S. Social Security program) is no different from a fully-funded system of accounts in an aggregate sense. (Interested readers can find an explanation of this fact in my Sept. 2, 2010 FindLaw column .) A student asked whether it was nevertheless true that fully-funded financing (which typically means individual retirement savings accounts) is fundamentally safer than PAYGO financing, because the government can cut Social Security benefits at any time -- notwithstanding their status as "entitlements" -- while private accounts are "your money," which the government cannot take away. Regular readers of this ...

By Mike Dorf At the end of last week, the Cornell Environmental Law Society hosted an extremely well-organized and well-run conference (with over 500 people in the audience) focused on energy policy in general and in particular, on questions arising out of proposals to permit "hydrofracking" of the Marcellus Shale in New York State (and elsewhere in the region).  Hydrofracking or simply "fracking" is short for "hydraulic fracturing," a process by which natural gas is extracted from permeable rock by blasting large quantities of sand, water, and chemicals through it.  The process is controversial because of the risk that the chemicals will find their way into drinking water and cause other environmental damage.  Industry, meanwhile, argues that it is safe and that natural gas is, on the whole, less damaging to the environment than other means of obtaining and using fossil fuels, such as coal mining and drilling for oil.   Here is a useful website that ...

By Mike Dorf Last week's oral argument in Wal-Mart Stores, Inc. v. Dukes was officially about whether the case against Wal-Mart for sex discrimination in violation of Title VII satisfies the legal requirements set forth in Federal Rule of Civil Procedure 23 for a class action.  But evident just below the surface is an ambiguity in anti-discrimination law. As late as the early 1970s it was possible to argue that the Constitution forbade government actors from taking actions that had a disparate impact on a racial minority or other protected group, regardless of whether that disparate impact was intended.  Then the Court held that the Constitution only forbids intentional discrimination.  Disparate impact can be relevant to proving intentional discrimination but is not, standing alone, unconstitutional.  As the Court said in the leading sex discrimination case, it is not sufficient for a plaintiff to show that a defendant took the measures it did in spite of the ...

By Mike Dorf In a move that has set the blawgosphere abuzz, last week Yale Law School made it official: The institution will henceforth be known simply as “YLS.” At a press conference announcing the re-branding, Deputy Dean Tracey Meares invoked high-profile books on non-legal subjects by YLS professors like Stephen Carter, Jed Rubenfeld, and Amy Chua as part of the justification for the new moniker.  “L could just as easily stand for ‘literary’ . . . or ‘ludicrous,’” Meares said. Citing the need to appeal to “today’s applicants, who were raised on initials--from JLo to ARod,” Associate Dean for Admissions Asha Rangappa said she thought the change was a good idea. Despite the enthusiasm from faculty and administrators, the move has garnered mixed reviews from students, especially the five of them considering careers as practicing lawyers.  “I could see dropping the word ‘law,’” admitted 1L David Fortenbaugh.  “I mean that was practically false advert...

By Mike Dorf For better or worse, President Obama's articulation of his reasons for committing U.S. air power to the civilian protection mission in Libya is already coming to be known as the "Obama Doctrine."  Rather than try to sum it up myself, I'll quote the key passage from Monday night's speech , in which the President explained the factors that led him to the decision he took, which tacitly includes reasons for why he has not authorized similar action in other countries where civilians are under threat: In this particular country – Libya; at this particular moment, we were faced with the prospect of violence on a horrific scale. We had a unique ability to stop that violence: an international mandate for action, a broad coalition prepared to join us, the support of Arab countries, and a plea for help from the Libyan people themselves. We also had the ability to stop Gaddafi's forces in their tracks without putting American troops on the ground. Let...