Dorf on Law

By Mike Dorf My latest Verdict column  discusses the Supreme Court's decision on Monday in Elgin v. Dep't of Commerce .  By a vote of 6-3, the Court held that constitutional challenges to an administrative agency's dismissal decision must be brought before the Merit Systems Protection Board (MSPB), along with any statutory or other claims, rather than as freestanding claims in federal district court--even though the MSPB interprets its own jurisdiction as not extending to constitutional challenges. In the column, I raise questions about two issues with respect to which there is agreement between the majority (written by Justice Thomas and joined by CJ Roberts and Justices Scalia, Kennedy, Breyer, and Sotomayor) and the dissent (written by Justice Alito and joined by Justices Ginsburg and Kagan). The two points of agreement are: 1) that administrative agencies generally should not address facial constitutional claims; and 2) that a law which stripped all federal courts o...

-- Posted by Neil H. Buchanan I continue to be surprised that there is such concerted opposition to stimulus spending, given that nearly every major economy remains mired in the aftermath of the global financial crisis and the Great Recession. Over the last few weeks, I have been discussing (here on Dorf on Law, and in my columns on Verdict ) some defenses of the "expansionary austerity" view, which is the counter-intuitive argument that government should pull back in the face of a weak economy. (Being counter-intuitive is not necessarily a bad thing, of course.) The Austerions , as Tom Tomorrow dubbed them, insist that the benefits of austerity are either still to come, or will never come because they believe ( against both logic and evidence ) that governments worldwide are not actually currently engaging in austerity measures. Sometimes, however, one will hear a different argument: If there are experts on both sides, and they sincerely disagree about the wisdom or fooli...

by Mike Dorf The lead sentence of a story in the NY Times last week began like this: " Just 44 percent of Americans approve of the job the Supreme Court  is doing . . . ."  Yet, an examination of the actual survey results shows a somewhat more complex picture.  Here I'll note a few highlights: 1) That mere 44% does not entail 56% disapproval.  Only 36% disapproved, with 20% expressing no opinion on the question.  A 44/36 split is hardly overwhelming support, of course, but it's actually somewhat strong support when you consider two further factors: a) Both Republican and Democratic politicians have been demonizing the Court for quite some time now in order to rally their respective bases.  The Republicans decry "judicial activism" on, among other things, abortion, gay rights and the death penalty.  (They even decry judicial restraint on takings.)  Democrats go after the Court for activism on, among other things, campaign finance, gun righ...

-- Posted by Neil H. Buchanan I am currently attending the Law & Society Association's annual meeting , which began on Tuesday and ends today. This past Monday, the day before the larger conference began, the FemTax Working Group -- a new international collaboration of tax scholars whose work is informed by feminist legal theory, which was recently created by Asa Gunnarsson, Ann Mumford, Paloma de Villota, and Kathy Lahey -- held a one-day conference on " Feminism, Taxation, and Fiscal Policy ." The full-day event was a testament to the importance of bringing together a global group of scholars, to think creatively about important issues, and especially to do so in a way that highlights feminist concerns. One presentation at the FemTax conference especially caught my attention. Lily Kahng, a tax law professor at Seattle University (and a top-notch intellectual) offered some preliminary thoughts on a new project that she is developing. She is beginning to investiga...

-- Posted by Neil H. Buchanan In recent weeks, my posts here on Dorf on Law have largely been devoted to discussing why the major governments of the world have refused to engage in a classic Keynesian response to the ongoing economic disaster. Millions of people continue to suffer, with many out of work for years, yet governments here and abroad have taken the most perverse actions possible, throwing even more people out of work (both directly, by laying off government employees, and indirectly, through multiplier effects), with politicians arguing that this fiscal "responsibility" will help us return to prosperity any day now. The failure of the agenda that the Austerions are pushing, so-called expansionary austerity, is plain to see. Nevertheless, the Austerions are undaunted, claiming that their theory was never really given a fair test. In my discussion of that particularly bizarre claim, I wrote : "We can expect some Austerions now to claim that the problem was ...

by Sherry F. Colb In my Verdict column for this week, part 2 of a two-part series, I continue an analysis that I began last week of amendments to the Texas law that require abortion providers to perform an ultrasound on their patients twenty-four hours prior to an abortion, during which the provider must show the patient the embryo or fetus, play any fetal heart sounds audibly, and give a description to the patient of what is on the screen and what she is hearing.  In my column, I consider the burden of such "informed consent" procedures on a woman who will undergo an abortion.  In my blog post last week on the subject, I examine the potentially devastating impact of the procedure on the woman who decides against an abortion because of what she has seen and/or heard. In this post, I want to consider a statement in the opinion for the U.S. Court of Appeals for the Fifth Circuit, in which it describes the process of showing a pregnant woman an ultrasound and giving her ...

By Mike Dorf Today's unanimous SCOTUS ruling in Reichle v. Howards   only addresses a question of qualified immunity: Was it clearly established by SCOTUS or Sixth Circuit precedent in 2006 that a police officer (or as in this case, a Secret Service agent) who arrests someone in retaliation for the arrestee's protected freedom of speech, has violated the arrestee's First Amendment rights, even if there was an independent basis for probable cause to arrest, such that the arrest did not violate the Fourth Amendment?  The Supremes (per Justice Thomas) said no, it was not clearly established, and thus the defendant agents had qualified immunity against the arrestee-turned-plaintiff.  Although the Court had the discretion to address the underlying merits of the case, it chose not to do so.  In the course of recording a few observations about the qualified immunity issue the Court did decide, I'll take a crack at the merits question it chose to leave for a later day. T...

By Mike Dorf In an important forthcoming article , my colleague Kevin Clermont argues that standards of proof and the law's method for combining probabilities of independent events can best be explained by " fuzzy logic " and " belief functions " rather than by the product rule of conventional bivalent logic.  Confused?  Let me explain--and then apply the principle to the First Circuit's recent decision invalidating Section 3 of the Defense of Marriage Act (DOMA). Let's begin with what is sometimes called the "conjunction paradox."  In order to prevail in a civil case, a plaintiff bears the burden of proving her claim by a preponderance of the evidence, i.e., of proving that it is more likely than not that she is entitled to relief.  In instructing juries, judges routinely explain that this means that the plaintiff must prove each element  by a preponderance of the evidence.  By way of illustration, suppose that the plaintiff is suing the ...

-- Posted by Neil H. Buchanan Much of my recent writing has focused on the debate over austerity versus stimulus -- whether governments (in particular, the U.S. federal government and the governments of other major economic powers) should be decreasing or increasing spending on anti-recessionary items (like unemployment benefits and Food Stamps), and whether they might also use this opportunity to borrow at low rates to finance long-run investments. By their nature, such debates take on an abstract air, focusing on internal squabbles among economists and policy wonks, ignoring the reality in the outside world. Today's economic headline brings us back to reality. In " Weak U.S. Hiring Adds to Global Gloom ," The New York Times reports that the U.S. economy added a tiny number of jobs in May, and that the unemployment rate rose from 8.1% to 8.2% in April. We are now almost exactly three years past the official end date of the Great Recession, and we continue to see u...

-- Posted by Neil H. Buchanan One of the unexpected benefits of writing on a blog is that readers -- both in comments and in off-line correspondence -- often ask questions and offer insights that spur further reflection, or spark a healthy digression, or sometimes simply provide further evidence supporting an argument that I have made in a post. No one, after all, can hope to read even a slice of everything that is out there, and any writer should be grateful to those who point to evidence that would otherwise have escaped notice. In my extended and repeated critiques of government austerity, I have been especially fortunate to have readers who respond to my posts by adding to the pile of evidence that shows just how weak the pro-austerity case is. Last year, for example, when I wrote a Verdict column about the shockingly bad economic studies that claim to make the case for expansionary austerity, much of my work was done for me by a reader who provided not only URL's but direc...