Dorf on Law

With the tax troubles of President Obama's cabinet nominees dominating the headlines these days, even tax professors are having their moments in the media cycle. For no obvious reason, I found myself being interviewed on San Francisco's KCBS radio yesterday morning. The interviewers were very well informed and asked good questions, and their first question best captured the mood of the moment: "Does everyone in Washington have tax problems?" Of course, I am not "in Washington," even though I am in Washington. I could do my job in, say, Newark or Greenwich Village. (In fact, I have.) Moreover, despite my training in economics and law, I am (happily) on no lists for possible appointment to government office. Still, I could not help but wonder what would happen if my tax situation were to become a matter of public debate. I actually have recently become aware of an issue that might raise an eyebrow or two. My employer provides me with a laptop computer (...

On FindLaw today, I have a column about a Wisconsin case in which a girl died of diabetes because her parents decided to pray for her health instead of taking her to the doctor for treatment. The parents, charged with reckless homicide, claim that they had a constitutional right, as a matter of religious freedom, to utilize faith-healing to help their daughter. Accordingly, they claim, the prosecutor is acting in violation of the First Amendment. The trial judge has thus far rejected such arguments. My column addresses the broader question of how the law should handle religiously motivated anti-social behavior. In this post, I am interested in examining the relationship between people violating the law (or indeed, deciding to opt out of a majority practice, whether or not their conduct violates the law), out of "conscience," on the one hand, and out of religious conviction, on the other. In either case, people feel that what they have chosen to do (or, in the case of ...

Remember the extensive questionnaire that the Obama transition team asked job applicants to complete? Not to say "I told you so," but recall that shortly after it was leaked to the press, I argued (in a FindLaw column ) that vetting would screen out and chill good applicants while failing to prevent attacks on nominees. I expected that even a virtuous nominee could always be "Swiftboated" if opposed on policy or other grounds. (For a hilarious, albeit preposterous and fictional example of how this might be done, see the first chapter of Christopher Buckley's terrific book Supreme Courtship .) I did not expect Obama's nominees to be tripped up by tax delinquencies, mostly because so many of the questions on the questionnaire inquire about finances and, specifically, taxes. Thus we have the following possibilities: 1) Some potential nominees did not have to fill out the questionnaire at all because President Obama or his transition staff had already decid...

As reported in today's NY Times ( here ), the certiorari petition in Sullivan v. Florida (docket sheet here), raises the question of whether a sentence of life in prison without eligibility for parole is cruel and unusual punishment for a non-capital crime committed by a 13-year-old. The state has until February 20 to file a response to the petition. (Respondents are not required to file a response to a cert petition and, in fact, are often well-advised not to file a response: Doing so consumes resources and may alert the Court to the importance of the case; if the Justices are considering granting review, they will call for a response, at which point the respondent makes its arguments why the Court should not hear the case.) The Times story (although apparently not the cert petition itself) raises three separate issues: proportionality, juvenality, and innocence. The first two appear to be intertwined in this case; the third (mostly) does not. Let's consider them in turn. The...

Rod Blagojevich famously intoned that "a Senate seat is a fucking valuable thing. You don't just give it away for nothing." It turns out that a Senate seat---or to be more precise, the opportunity to name someone to a Senate seat---may be a thing of negative value. So it proved for Blagojevich and so it has proven in New York thus far for Caroline Kennedy, Governor David Paterson, and, perhaps ultimately for new Senator Kirsten Gillibrand. Resentment from NYC and suburban voters over Gillibrand's support of gun rights and her vote against the TARP (despite its obvious benefits for New York if not the nation) could lead to a primary challenge in 2010 that leaves Gillibrand without her Senate seat and with no House seat either. Such is the Midas touch that sole appointment may create. To be sure, governors in the past have made wise interim appointments and certainly the voters are fully capable of making unwise decisions in electing officials. Nonetheless, there ...

In Part 2 of his critique of my FindLaw column on the Presidential Oath, Ed Whelan argues that I am mistaken in saying that self-proclaimed textualists like Justice Scalia cannot in good faith divine purposes in statutes. Whelan quotes Justice Scalia's essay/book A Matter of Interpretation, in which Justice Scalia says that judges engaged in statutory construction should look for a statute's "'objectified' intent," which, Whelan says---and I agree---is not different in substance from what I called a statute's "objective purpose." However, it's not entirely clear that Justice Scalia was saying judges should look for objective purpose; he may only have been saying that's what they in fact do seek, or what they traditionally have sought, when purporting to look for legislative intent. The relevant passage occurs at page 17 of Justice Scalia's essay/book, in the course of a critique of legislative intent. But I'm willing to grant...

"STUDIES SHOW VEGETARIANS HAVE BETTER SEX" proclaims the ad (see above) that PETA wished to run during the Superbowl. As reported (e.g., here ), NBC declined to run the ad because it "depicts a level of sexuality exceeding [NBC] standards." (Full list of objections here ). Herewith, a few observations: 1) The rejection of the ad---and its subsequent viewing on Youtube and elsewhere---is arguably a boon to PETA. Going "viral," the ad may get viewed and discussed as much as or more than it would have if it had run during a Superbowl timeout, and PETA saves the cost of the advertising buy. Indeed, one wonders whether PETA didn't hope to have the ad rejected for just these reasons. 2) I question the ad's efficacy in getting people actually to "Go Veg." Sure the ad will be watched a lot, but it's hard to imagine a lot of grocery shoppers, in deciding between the pumpkin and the hamburger, thinking "Hmm, I like the taste of red m...

Continuing my oscillation between feeling optimistic and pessimistic, I thought that it would be invigorating to take a moment to bid farewell to some of those who are no longer in positions of power in the United States government. What follows is a partial alphabetical list of people who served (or tried to serve) within the last eight years and whose departure from office surely enriches us all: Former Vice Presidential Chief of Staff David Addington Former Senator George Allen Former House Majority Leader Dick Armey Former Attorney General John Aschroft Former Secretary of State (Ohio) Ken Blackwell Former U.N. Ambassador John Bolton Former President George W. Bush Former Vice President Dick Cheney Former Senator Larry Craig Former Press Secretary Ari Fleischer Former Senate Majority Leader Bill Frist Former Presidential Candidate Rudy Giuliani Former Attorney General Alberto Gonzalez Former something-or-other Monica Goodling Former would-be Treasury Secretary Phil...

Conservative lawyer/pundit Ed Whelan notes on the online version of the National Review that my FindLaw column earlier this week erred in stating that the only official acts of any importance that President Obama took between his first and second oaths were the signing of two executive orders. Not so, Whelan notes. He also officially nominated various Cabinet and sub-Cabinet officials. Thus, if Obama needed to recite the oath correctly to be able to have his Presidential acts count---a point that both Whelan and I doubt but that my column assumes for the sake of argument so as to explore other issues---then these nominees would have to be re-nominated and re-confirmed to exercise power lawfully themselves. Neat! Apologies from me for not noticing that these nominations were made official on Day 1---although, truth be told, this fact actually makes the main argument in my column more relevant. Because I wrongly assumed that all Obama did was sign the executive orders, I had to ma...

One of the longstanding unwritten rules in U.S. politics is that "the President can hire whomever he wants," that he has the right to choose "his team." The only exceptions to that rule of which I am aware are for non-policy issues such as being an alcoholic or violating some evolving category of laws or procedures. I have always disagreed with the notion that the Senate's advisory role on administrative appointments should be deferential to the point of ignoring policy concerns. While it is true that the President was elected by the people (or, in some cases, by just enough people to win the Electoral College), the Senate should still look closely at the views of the people whom the President appoints, precisely because those appointees were unknown to voters at the time of the election. Moreover, under the current norms, policy differences are often simply hidden under a fig leaf of concern about some non-substantive violation. If we are going to have hone...