Dorf on Law

by Michael Dorf There are now three announced candidates for the Republican nomination for President (Senators Cruz, Paul, and Rubio), with at least another two very likely (former Governor J. Bush and Governor Walker), and the strong possibility of others (e.g., Governor Christie, former Governor Huckabee, former Senator Santorum). That's a crowded field. Meanwhile, former First Lady/Senator/Secretary of State Clinton stands alone on the Democratic side. It's possible that a serious challenger will emerge, but that seems unlikely. The list of potential serious challengers under public discussion is short: VP Biden, who has not ruled out a bid but polls very far behind Clinton and, unlike other also-rans, would have no interest in running for the sake of getting the VP nomination; Senator Warren, who has repeatedly ruled out running; former Governor O'Malley, who is almost completely unknown outside of Maryland and the national political class; former Senator Webb, who loo...

by Neil H. Buchanan Last week, after Kentucky Senator Rand Paul announced his doomed candidacy for the 2016 Republican presidential nomination, I received an inquiry from a reporter for PolitiFact.  Longtime readers of Dorf on Law might recall that I have had my, shall we say, issues with PolitiFact ( here ) and similar organizations ( here ).  Even so, I could not resist responding to the latest inquiry from a reporter who wanted to know whether there was any way to slice and dice the data to make sense of Paul's claim that the national debt is "tripling under Obama." The reporter added: "I've ran the numbers, and that's just not true -- it's about doubled looking at public debt, and increased about 70 percent looking at the total debt.  My question for you is about context: Regardless of the truth of Paul's statement, is it fair to attack a president based on debt increases in terms of the raw dollar amount? (I'm thinking about things like ...

by Michael Dorf Late in last week's NCAA Division I men's basketball championship game between Duke and Wisconsin the ball went out of bounds as several players were grasping for it. In real time, it was difficult to tell who had touched it last but the referee judged that it was a Wisconsin player and thus awarded possession to Duke. Because the play occurred within the last two minutes of the game, the referees were able to review it via instant replay. They did so and were unable to tell who touched the ball last. Thus, the original call of Duke ball was left standing because the extraordinarily high standard of Rule 11, Sec. 1, Art. 1 was not satisfied. That rule requires "indisputable evidence that the call on the floor was incorrect" in order for instant replay to change the call. As it happens, the referees were wrong. There was indisputable evidence that the ball had been last touched by Duke player Justise Winslow--as millions of viewers watching the re...

By Michael Dorf I don't usually promote conferences and the like on my blog but I'm making an exception today as a kind of thank-you to Lee Epstein, who co-organized a conference last fall that I found very interesting. Accordingly . . .  The 14 th  annual workshop on Conducting Empirical Legal Scholarship, co-taught by Lee Epstein and Andrew D. Martin, will run from  June 15-June 17  at Washington University in St. Louis. The workshop is for law school faculty, lawyers, political science faculty, and graduate students interested in learning about empirical research and how to evaluate empirical work. It provides the formal training necessary to design, conduct, and assess empirical studies, and to use statistical software (Stata) to analyze and manage data. Participants need no background or knowledge of statistics to enroll in the workshop. Registration is  here . For more information, please contact  Lee Epstein .

by Eric Segall Reasonable people can and do disagree over whether allowing religious exemptions from generally applicable laws is good policy or bad policy or constitutionally required or even constitutionally forbidden. The Hobby Lobby decision focused a lot of attention on these questions and now these issues are again in the news as states debate whether to enact RFRAs and whether people with sincere religious objections to same-sex marriage must comply with generally applicable non-discrimination laws. Although the policy and constitutional questions may be difficult, one thing should be admitted openly by all those in favor of religious exemptions: what they are advocating for amounts to religious preferences, not religious equality. As Mike noted at the end of his post on Wednesday, the federal RFRA was enacted in response to a kind of inequality among religions: General laws permitting wine--which is used for sacramental purposes by millions of Catholics and Jews--but f...

by Sherry F. Colb In my column for this week , I discuss the State of Indiana's conviction and sentencing of Purvi Patel to twenty years imprisonment for feticide and the neglect of a dependent, in connection with her having (according to the State) taken abortifacient drugs at 25 weeks gestation and then delivering a live fetus which she discarded in a dumpster.  In the column, I discuss the competing empathies that ought to have animated a case like this and the troubling nature of the decision to criminally prosecute Ms. Patel and ultimately sentence her to twenty years in prison. In this post, I want to focus on a different Indiana prosecution for feticide, one that I mention only briefly in my column.  In this other case, in 2011, a woman named Bei Bei Shuai attempted suicide while she was pregnant.  She survived the suicide attempt, but the fetus did not, and she was subsequently prosecuted for feticide (though charges were eventually dropped).  Even more ...

by Michael Dorf                                                                                                                                                    Most of my latest Verdict column considers one of the two main objections that was lodged against the pre-amended Indiana RFRA and the failed version of the Arkansas RFRA bill that drew so much criticism last week. They were criticized on the ground that they would have applied in private litigation. I explain why a simple-minded version of this criticism misses the mark but why there are also more subtle versions that have more to recommend them. Here I want t...

by Neil H. Buchanan This past weekend, I participated in the 18th Critical Tax Conference , which this year was hosted by Northwestern University's law school.  I suspect that I will end up blogging about more than one of the presentations that I heard there.  Today, I will focus on a new draft article by Professor Shu-Yi Oei (Tulane Law School) and Diane Ring (Boston College Law School).  The title of their draft paper asks: " Can Sharing Be Taxed? "  (Frequent readers of Dorf on Law might recognize Professor Oei's name from my recent laudatory post on her 2012 paper: Who Wins When Uncle Sam Loses? Social Insurance and the Forgiveness of Tax Debts (46 U.C. Davis Law Review 421 (2012).) Actually, I am mostly using this latest Oei/Ring paper as an opportunity here to offer a few negative thoughts on the taxi-substitute service Uber.  In less than a year, Uber has gone from being almost completely unknown, to suddenly finding itself the hottest of hot Silic...

by Michael Dorf One of my favorite games to play when I teach Federal Courts is "what kind of a holding is this?". Let me explain with an example. In Bivens v. Six Unknown Named Agents , the Supreme Court recognized a cause of action for a person alleging that FBI agents violated his Fourth Amendment rights. What was the basis for the Court's holding? The Fourth Amendment? Some general constitutional principle requiring a remedy for every violation of a constitutional right? If so, is that a free-floating principle or is it located in some particular provision, such as the Due Process Clause (here, of the Fifth Amendment)? Or perhaps this is, as later cases indicate, not a constitutional holding at all. But then what is it? The seemingly best answer is federal common law, but true federal common law can be displaced by Congress without Congress providing any substitute. So perhaps Bivens is what is sometimes called constitutional common law , i.e., a set of judge-made d...

by Neil H. Buchanan The latest news from Indiana is that the governor has now signed an amendment to the state's new Religious Freedom Restoration Act, specifying that the new law will not authorize discrimination, including discrimination on account of sexual orientation.  Everyone is amazed by how quickly this all happened, and the outcome is both surprising and delightful. One question that has been raised along this very short road is whether the unamended version of Indiana's law could have caused the bad outcomes that raised people's hackles in the first place.  Was Apple's CEO Tim Cook simply misinformed when he wrote his op-ed condemning the law?  Even on the comments board for my Dorf on Law post earlier this week , readers fought about whether there was really anything to fight about.  Maybe this was all political theater. I disagree with that assessment, but let us imagine that the amendment really was unnecessary, which would require us to imagine...