Dorf on Law

-- Posted by Neil H. Buchanan Every year, I write a column for Jotwell: The Journal of Things We Like (Lots) , an online journal that began publication in late 2009.  Writers on Jotwell are assigned to write short-ish columns ("jots") describing the most important article/book/whatever in the writer's field of expertise that s/he has read in the past year (not including classics).  My Dorf on Law posts linking to my three previous jots can be found here , here , and here .  This year's jot was published last Friday. In that column, I discuss an article by the public finance economists Peter Diamond and Emmanuel Saez, The Case for a Progressive Tax: From Basic Research to Policy Recommendations , which they published a bit less than two years ago in the Journal of Economic Perspectives .  That journal is published by the American Economic Association, which created it in the 1980's as part of a reaction against the absurd arms race in the use of mathematics...

-- Posted by Neil H. Buchanan My new Verdict column today discusses (not in this order) Al Gore, Danny Ainge, Tim Geithner, and the IRS non-scandal scandal.  The unifying idea is that some falsehoods become known truths, and I try to explain how this can happen, even among the ideologically uncommitted. One possible explanation, which I do not discuss in the column, is "the Big Lie," where a phalanx of committed operatives convinces everyone that a lie is true through ceaseless repetition.  There is certainly a big element of that strategy afoot in Republican circles, at least since the Contract on America in 1994, so much so that the term "talking points" has now become an accepted term of speech.  Democrats have tried to mimic the Republicans' "message discipline" (another euphemism for the concept), with less success, but Newt Gingrich was uniquely successful in getting every Republican politician and sympathetic commentator to repeat, repeat, r...

By Mike Dorf My latest Verdict column uses the A-Rod saga as an occasion for considering the circumstances under which a judge orders a party to do something--go to prison based on a criminal conviction; pay money damages; or comply with an injunction--but then suspends judgment pending appeal.  I explain the relevant considerations and then go on to note that A-Rod's ability to continue to play baseball while his appeal of his suspension is pending makes a great deal of sense in light of the fact that he has not yet had his day in court (or rather, his day in arbitration, as authorized by the relevant policy agreement between Major League Baseball and the players' union). Here I want to say a few words about the opposite situation: contexts in which the law authorizes the taking away of something valuable before  a finding of liability.  The law allows for this possibility in various ostensibly extraordinary circumstances: In civil cases, courts grant preliminary i...

By Mike Dorf Tomorrow, Israeli and Palestinian negotiators resume peace talks.  As part of his assiduous efforts leading to these talks, Secretary of State John Kerry called for American Jews to express public support for the peace process.  As one such American Jew with what I regard as views that are fairly typical of what might be regarded as the "silent majority" of American Jews, I herewith submit my endorsement of such talks, with an aim of establishing something like the following: (1) A Palestinian state in Gaza and the West Bank to the east of the green line, with land swaps as necessary to compensate for the most-difficult-to-dismantle-or-relocate settlements; (2) security guarantees for Israel and Palestine; (3) Israeli access to Jewish holy sites in east Jerusalem, coupled with some arrangement that enables both Israel and Palestine to claim some measure of sovereignty in east Jerusalem; and (4) a full right of return for Palestinians to Palestine, with some sch...

By Mike Dorf In late June, Virginia's notoriously conservative Attorney General Ken Cuccinelli (who is running for Governor) filed a cert petition in the U.S. Supreme Court in  Moose v. MacDonald , seeking reversal of a  Fourth Circuit opinion  that granted habeas relief to one William Scott MacDonald.  MacDonald (who was 47 years old at the time of the relevant conduct) was convicted of the felony of soliciting a crime by a minor for asking a seventeen-year-old girl to perform oral sex on him, with Virginia's "crime-against-nature" (i.e., sodomy) statute serving as the underlying crime that MacDonald was found to have solicited.  The Virginia courts and the federal district court rejected MacDonald's arguments but the Fourth Circuit held that he was entitled to habeas relief because the anti-sodomy statute was facially unconstitutional pursuant to Lawrence v. Texas , and thus could not be constitutionally applied to anyone, including MacDonald.  Late la...

By Mike Dorf Due to my sloppiness in consulting my calendar while traveling, I scheduled two posts for Thursday and none for Friday.  As a result, Thomas Healy's excellent discussion of the impact Justice Holmes had on American free speech law was only on the top of the blog for a few hours on Thursday, and for email subscribers it ended up buried beneath Neil's latest post.  Accordingly, for those of you who missed it on Thursday, I urge you to take a look by following the link above. Meanwhile, the title of my post here is meant to suggest an answer to the question Thomas poses at the end of his post.  Holmes infamously wrote in Buck v. Bell  that "three generations of imbeciles are enough."  He thus upheld against a substantive due process challenge a law that authorized the involuntary sterilization of an institutionalized "feeble-minded" woman.  The case is generally regarded as monstrous and demonstrative of Holmes' attraction for eugenics, ba...

-- Posted by Neil H. Buchanan I am in Palm Beach, Florida, attending the annual conference of the Southeastern Association of Law Schools (SEALS).  Professor Jennifer Bird-Pollan, a young philosopher and tax scholar at the University of Kentucky, has organized a Tax Policy Discussion Group, in which about a dozen tax law professors will meet later today (3:15-6:15pm), for a wide-ranging discussion of current issues in tax policy.  Each of us will have only about 5-7 minutes to offer preliminary remarks, so that there will be plenty of time for discussion.  Here is the gist of what I would say, if I had more time to speak.  My actual comments will likely amount to reading aloud every fourth word of this blog post. Other than the Republicans' plans to shut down the government, and then to force a government default by refusing to increase the debt ceiling, the big fiscal discussion in Washington this Fall will be about "fundamental" tax reform.  I have two br...

By Thomas Healy In his Monday post , Mike raises an interesting question about the subtitle of my new book , “The Great Dissent:   How Oliver Wendell Holmes Changed His Mind – and Changed the History of Free Speech in America.”   What would have happened, Mike wonders, if Holmes hadn’t changed his mind about the First Amendment and written his famous dissent in Abrams v. United States ?   Would the country and the Supreme Court still have come around to a more expansive view of free speech?   Put another way, is it accurate to say – as my subtitle does – that Holmes changed the history of free speech, or would it likely have changed anyway as a result of other forces? Although I don’t address this question directly in the book, I thought about it a lot as I was writing, and I’m grateful to Mike for giving me an excuse – and an opportunity – to share those thoughts. First, let’s establish the parameters of the counterfactual at issue.   Although there are...

By Sherry Colb In my Verdict column for this week , I discuss the emergence of legislation banning abortion at 20-weeks-post-fertilization in various state legislatures and now as a bill in Congress.  My column addresses the difference between the viability line that now defines the constitutional distinction between permissible and impermissible abortion bans, and the 20-week line that emphasizes the fetus's alleged ability to feel pain at this stage. In this post, I want to examine an alternative approach to the issue of post-sentience abortions:  a requirement that the woman be offered anesthesia for the fetus prior to the procedure.  Various proposed state statutes have contained a provision of this sort.  It is distinct from a ban because it represents a regulation rather than an outright prohibition.  How might it affect people's thinking about abortion? At least one primary goal of the pro-life folks who have promoted a requirement that anesthe...

-- Posted by Neil H. Buchanan Last year, I was asked to review the job market papers for several entry-level professorial candidates in tax law, each of whom had written a paper in the "behavioral public finance" genre.  For each review, I had to stop myself from writing something like this: "Kill me now.  If I read another paper that jumps on the 'behavioral' bandwagon for no reason other than to follow the latest fad, I might just become a born-again believer in rational actor theory." Of course, I did not write anything like that, because it would be unfair to the young scholars, who innocently followed their advisors' sensible suggestions about how to position themselves in the job market.  In each case, what I actually wrote was that the young scholars had produced promising work (which was true).  It is not their fault that they had been advised to write in an area that has been over-grazed and is no longer producing much (if any) intellectual ...