Dorf on Law

-- Posted by Neil H. Buchanan This post was almost titled, "Another Mindless Pundit Pens Another Mindless Generational Mea Culpa."  Last Sunday, it was New York Times opinion columnist Frank Bruni's turn to dish out the pablum about how badly current middle-aged people have screwed over current younger people.  It was the usual stuff about how "entitlements" are going to destroy the economy, how older people vote in large numbers and redirect money toward themselves, and all that.  And when I say "the usual stuff," I mean it.  I have read near-clones of this column over the years by other professional hand wringers.  Not everything Bruni wrote is wrong, of course, because there is plenty to complain about in our environmental policy, but the fiscal stuff is just ridiculous (and trite).  The people who write such columns generally seem to mean well, but they have no idea what they are talking about. Bruni relies on the supposed expertise of one f...

-- Posted by Neil H. Buchanan Earlier this week, I published the second part of my two-part series of columns on Verdict regarding the role that "mobility" arguments play in debates over inequality and poverty.  Having first debunked (both on Verdict and the companion Dorf on Law post last Thursday) the claims that America's economy is a great "blender" in which rich and poor find their economic fates easily changed, I turned my attention to various claims about long-term trends in inequality.  At its core, my argument is that the debate over poverty and inequality is ill-served by a focus on whether income and wealth have gotten more or less equal, and on whether they will become more or less equal in the future.  Instead, the focus should be on the consequences of inequality, for whoever happens to experience those consequences at any given time, as well as for society as a whole. Even if one agrees with me that the present and impending consequences ...

by Michael Dorf I recently obtained a copy of a new book by Harvard Law Professor Laurence Tribe and recent Harvard Law School graduate Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution . It's a terrific book. Here I'll provide a brief overview. First, the disclaimers. Tribe was my principal mentor in law school and continues to be my friend. That has not prevented us from disagreeing on the merits of various legal questions, of course, most recently in our respective differing analyses of the options that would face the president in the event of a debt ceiling crisis, but I am hardly an objective observer of Tribe's work. Meanwhile, Joshua Matz's early career in the law thus far looks quite similar to my own a quarter of a century earlier: He has co-authored a book with Tribe ( as I did ); he's currently clerking for Judge Reinhardt on the Ninth Circuit (as I did); and will next clerk for Justice Kennedy at the SCOTUS (as I did). As it happ...

by Sherry F. Colb My Verdict column for this week  examines the recent U.S. Supreme Court case of Hall v. Florida .  The Court in Hall  invalidated Florida's method for identifying intellectually disabled people for purposes of exempting them from qualification for capital punishment, pursuant to Atkins v. Virginia . Though states retain some discretion in determining how to identify people who are intellectually disabled for these purposes, its discretion is not boundless.  In Hall , the Supreme Court said specifically that if an individual's I.Q. score falls within the Standard Error of Measurement (SEM) of 70, which it understood to include scores of 71-75, then a determination of whether he or she is intellectually disabled must also include consideration of other evidence of intellectual disability, such as impairment in adaptive functioning.  In my column, I suggest that this decision may represent a majority of the Supreme Court's tonal departure from...

by Michael Dorf On Saturday I was on a panel called "One Year Later: U.S. Law and Politics in the Post-DOMA World", as part of the first-ever Cornell University LGBT Alumni Reunion . Even though it was a beautiful spring/summer day outside, we still drew a good-sized crowd for what turned out to be an extremely interesting discussion. My role was mostly as table setter; although the audience included lawyers, many were not lawyers, and so I set out the background to United States v. Windsor , what the SCOTUS decided, and what questions it left open. At least for me, the other panelists' presentations were more interesting: Diana Adams , Dale Bernstein , Art Leonard , and moderator Jason McGill focused most of their attention on the slew of activity in the courts and elsewhere since Windsor , as well as on the practical problems that still bedevil same-sex couples and other non-traditional families. At some point in the next week or two, I expect that there will be ...

-- Posted by Neil H. Buchanan In my Verdict column yesterday , and my accompanying Dorf on Law post , I confronted one of the more persistent conservative arguments regarding poverty and inequality.  Sure, they will say, poverty and inequality might be bad if they persisted for a long time, but there is so much economic mobility in the U.S. that we need only wait some acceptably short amount of time (with the maximum acceptable time period never specified, of course), and the poor will no longer be poor.  The former poor will be replaced by newly poor, but those people also will not be at the bottom for long. This argument is surely a chestnut, but it has always been a bad joke.  "T hinkers " like Paul Ryan (ironic quotes very much appropriate here) acknowledge that there is persistent poverty, but they argue that it is all the government's fault.  If only we had not tried to fight a War on Poverty, they say, then we would not have created a nation of people wh...

-- Posted by Neil H. Buchanan The recent national rediscovery of economic inequality, and the apparent desire on the part of many Democrats finally to take it seriously, necessarily means that we will be going over a lot of very old ground.  The fact is that concerns about inequality have been around for millennia, and there are long scholarly traditions in philosophy, economics, and other fields dealing with the many aspects of the problem. Those arguments have certainly not led to consensus, even among those who genuinely wish to deal with persistent inequality (and especially with poverty).  In good faith, people can disagree about how to address inequality (taxes, spending, property redistribution, and so on), and even individual theorists can puzzle over how much is enough.  There are, in other words, some very useful discussions that we could be having, trying to figure out how to proceed in the face of high and rising inequality. Unsurprisingly, however, we a...

by Michael Dorf My latest Verdict column discusses Monday's SCOTUS ruling in  Bond v. United States , in which the Court avoided deciding a question about the scope of the Treaty Power, instead deciding the case on statutory construction grounds, as I more or less predicted it would in  my post about the case back in January. Readers of that earlier post won't be surprised to learn that I'm not fond of the separate opinion of Justice Scalia, in which he says that he would overrule Missouri v. Holland . I'm even less fond of the separate opinion of Justice Thomas, in which he says he would limit the scope of the Treaty Power to those covering 18th century ideas of international affairs. And perhaps surprisingly, I'm not especially happy with the majority opinion by CJ Roberts (joined by Justice Kennedy and the liberals). I say that the Chief Justice may have planted a time bomb--a freestanding plain-statement rule for federal laws that regulate in areas ...

by Michael Dorf In a recent paper in the Texas Law Review , Andy Koppelman responds to my review (in that same journal) of his book, The Tough Luck Constitution . At the risk of perpetuating what might seem like an infinite loop of commentary and counter-commentary, here I want to respond to one substantive point in Koppelman's paper and then make a broader point about the nature of our disagreement. In his book, Koppelman contends that the arguments that were made against the constitutionality of the Affordable Care Act (ACA) in National Fed. of Indep. Business v. Sebelius  (the ACA Case ) were not just bad, but: 1) tainted by a very unattractive philosophy of "tough luck libertarianism"; and 2) from a professional standpoint, frivolous. In my review (which I summarized on DoL here ), with respect to 1), I agreed with Koppelman's normative assessment of tough luck libertarianism, but I contended that it played less of a role in persuading the conservative Jus...

by Michael Dorf Last week's Supreme Court decision in Hall v. Florida   invalidated the Sunshine State's methodology for measuring intellectual disability--and thus ineligibility for the death penalty. Florida's strict numerical IQ cutoff of 70, the Court said, "creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional." Here I want to focus some attention on what may be an emerging jurisprudence of constitutional risk. To begin, note a possible implication of  Hall : that assignment of the burden of persuasion on the question of intellectual disability may have to be shifted to the state, and by more than a preponderance. This point was made by Justice Alito in dissent. He wrote: As Hall concedes, the Eighth Amendment permits States to assign to a defend­ant the burden of establishing intellectual disability by at least a preponderance of the evidence. See Tr. of Oral Arg. 12. In other words, a def...