Dorf on Law

By Mike Dorf With House minority leader John Boehner having indicated that, if push comes to shove, he would support extending the Bush tax cuts even without including extension for families earning over $250,000, and with Senate minority leader Mitch McConnell standing firm in opposing any extension that does not include the whole package, it's easy to get sucked into calculating political costs and benefits.  One imagines that Rahm Emanuel et al are breathing a sigh of relief upon witnessing McConnell salvaging their political strategy for November.  Boehner's capitulation had threatened to rob Dems of their best argument against Repubs--that the latter are quite willing to sacrifice the welfare of the middle class and the working poor to protect the wealthy. Here I want to note three other aspects to this story: 1) The debate is, in a fundamental sense, over something quite arbitrary.  The Bush tax cuts made a number of changes, but here I'll focus on just one: l...

By Mike Dorf In a pair of articles in last Tuesdays NY Times, Adam Liptak offered an interesting statistical snapshot of law clerk hiring by the Supreme Court.  The main article  focused on how law clerks have become more ideologically polarized in recent years than a generation ago.  Although the article describes this as a general phenomenon, the accompanying graphic  indicates that it is substantially more pronounced among the conservatives.  During the Roberts Court period, Justices Scalia and Thomas have hired no clerks who previously clerked for Democratic appointees, whereas the liberals have hired a small but substantial number of clerks who previously clerked for Republican appointees.  (The body of the story does note that Justice Breyer hires almost as many former clerks for Repubican appointees as from Democratic appointees.)  But even treating this as a phenomenon of the conservative Justices only, the article raises a number of interest...

By Mike Dorf My latest FindLaw column takes aim at a recent ruling by a New York State trial judge who called a mistrial after determining that the defense attorney in a case before him had used her peremptory challenges to dismiss all the prospective jurors who are registered hunters.  Here I'll add two points (unrelated to one another): 1) the facts are quite intriguing.  The defendant Robert Robar is a hunter who allegedly shot at another hunter who had wandered onto the property where Robar was hunting.  (Insert Dick Cheney joke here.)  Robar's lawyer used her peremptory challenges to eliminate licensed hunters from the jury.  I inferred from that fact that the lawyer was worried that hunters would be especially unsympathetic to someone who shot at a hunter.  But one could almost as easily imagine that the prosecutor might have used his peremptories to eliminate hunters from the jury, relying on the directly contrary but prima facie plausible ...

-- Posted by Neil H. Buchanan This past Friday, I sat in on a guest presentation in Cornell Law Professor Robert Summers's jurisprudence seminar. Dr. Kristen Rundle, a rising star in the Department of Law at the London School of Economics and Political Science, described some of her ongoing research on the work of the late Professor Lon Fuller and his famed debated with Professor H.L.A. Hart. Like everyone who has gone to law school in the last half-century, I had heard of that debate ; but also like nearly everyone who has not gone on to become a professor of jurisprudence, I had never thought too much more about it, after coming across it on a syllabus in a 1L course. Dr. Rundle's presentation, however, was not only fascinating on its own but demonstrated that the Hart-Fuller debate is relevant to literally every area of the law. In my case, that means that it is relevant to tax law. Fuller took the position that the legitimacy of law is based on eight "principles o...

By Mike Dorf Last week, in Faculty Senate of Florida International University v. Winn  (hereafter FIU ), the 11th Circuit upheld a Florida law forbidding state universities from funding faculty travel to countries on the State Department's list of state sponsors of terrorism.  The law had been challenged as preempted by federal statutes and/or the Constitution itself.  Although the result may be just barely defensible, the 11th Circuit (per curiam) opinion is not especially persuasive. The main argument advanced by the panel in FIU is that Florida is not legally obligated by federal law to fund academic travel to any foreign country and, more broadly, has discretion over how to use its funds.  The court draws a contrast between the Florida law and the law found to be preempted in Crosby v. National Foreign Trade Council .  There, Massachusetts imposed restrictions on trade with Myanmar/Burma that went beyond what a federal statute forbade.  In d...

-- Posted by Neil H. Buchanan In my post this past Friday , I discussed some recent comments by a genuine card-carrying liberal, a consummate insider in the D.C. establishment, who completely misrepresented several issues in the debate over Social Security. A reader of this blog then offered some interesting thoughts in the comments section, thoughts that provide a good opportunity to clarify some important points. Even though I do not ultimately agree with the commenter's arguments, I do appreciate that he made his points so clearly. The basic objection to my post is that the Social Security system is merely one part of the fiscal picture of the United States, which means that any attempt to assess whether the Baby Boomers have cheated their children and grandchildren cannot focus on Social Security alone. I agree, with the caveat that Paul Krugman has repeated frequently : You have to be consistent about it. If you want to say that Social Security is merely one part of the fe...

Hey there DoL readers.  I hope you're enjoying the Labor Day Weekend.  I'm taking this opportunity to get in my last long bike ride before next weekend's AIDS Ride for Life  (100 miles around Cayuga Lake).  Although I don't usually ask readers for anything (other than their indulgence with my rantings and their comments if so moved), I think of this more as providing information than as dunning:  If you have some extra money burning a hole in your pocket, please consider a donation to this worthy cause .  All funds raised go for education, outreach, and services for people living with HIV/AIDS.  I'll be back with more opinionated if not informed legal commentary on Tuesday. Thanks! Mike

-- Posted by Neil H. Buchanan I keep expecting Social Security to return to the back burner, which would allow me to write about something else for awhile. The supposed problems facing our retirement system have, however, become a continuing topic of policy conversation. Most of that conversation is, of course, woefully misinformed, led by those on the right who never liked Social Security and want to end it. Last week's mini-scandal about former Sen. Alan Simpson, who is currently the co-chair of President Obama's commission to recommend ways to reduce the deficit, offered a rare view into this DNA-level hostility toward Social Security. Although the public discussion revolved around Simpson's use of one of the seven dirty words you can't say on TV -- an odd word choice for a guy from a farm state, who should be naturally inclined to use the word "teat" -- the real story is in Simpson's seething scorn for the entire idea of the Social Security system....

By Mike Dorf Attentive DoL readers may recall that when the Supreme Court affirmed the 9th Circuit ruling in Christian Legal Society (CLS) v. Martinez , it did not address the claim advanced by CLS that Hastings Law School had enforced its "all-comers" policy in a discriminatory manner, denying registered student organization (RSO) status to CLS but granting RSO status to other student groups that violated the all-comers policy.  CLS had argued that the all-comers policy was a pretextual ground for denying RSO status to CLS, the real ground being discrimination based on religion.  In declining to address this claim, the SCOTUS said that on remand "the Ninth Circuit may consider CLS’s pretext argument if, and to the extent, it is preserved." Unsurprisingly, the parties now take different positions before the Ninth Circuit as to whether the pretext argument is preserved.   CLS says it is , citing Justice Alito's dissent and bits of the record; Hastings says ...

By Sherry F. Colb In my FindLaw column this week, I consider the utility of requiring that a punishment be both cruel and unusual before it violates the text of the Eighth Amendment.  The U.S. Supreme Court typically does not divide its analysis into a "cruel" section and then an "unusual" section.  The way in which the infrequency of a punishment does make its way into the analysis, however, is in considering whether a particular penalty fails "evolving standards of decency that mark the progress of a maturing society."  The fact that much of the country (or the world) has turned its back on a particular penal practice -- like executing juvenile offenders, for example -- provides evidence that the practice is "cruel and unusual" and accordingly unconstitutional.  In this post, I want to consider a point that Justice Thomas made in his dissent from a recent Supreme Court decision, Graham v. Florida , which struck down sentences of life with...