Dorf on Law

By Mike Dorf DoL has heretofore been an Anthony Weiner-free zone, and while I continue to find nothing especially law-blog-worthy about this scandal, Weiner's apology to former President Bill Clinton last week did pique my interest--not in Weiner's recent troubles themselves, mind you, but in a related question.  Weiner's apology to Clinton prompted Jon Stewart to ask snarkily: "For what? Copyright infringement?"  Nicely played. In fact, however, Weiner was expressing contrition because Clinton had officiated at the wedding of Weiner and Huma Abedin. That led me to wonder: By what authority did he do so? After I posed this question to a colleague last week, said colleague helpfully directed my attention to Article 3, Section 11 of the New York Domestic Relations Law.  It allows a wedding to be solemnized by: 1. "A clergyman or minister of any religion, or by the  senior  leader, or  any  of the other leaders" of the Ethical Culture society; 2....

-- Posted by Neil H. Buchanan At the tax sessions of the recent Law & Society meetings , a running joke developed regarding my objection to the use of the word "efficiency." In an early session, a scholar referred to an economic argument that relied on the idea of efficiency, and I pointed out during Q&A that there was no coherent meaning of that concept, either in the specific context mentioned by the author, or more generally. In subsequent sessions, when someone would use the word efficiency or its variants, he or she would smile and say, "Sorry, Neil, I know this will bother you, but ..." That was all in good fun, but I do continue to marvel at the power of a word and a concept that are so dangerously misleading. I have had a long-standing plan to write an article explicitly discussing what is wrong with the concept of efficiency in theoretical or policy analysis, but other projects always came first. I now think that I should move this project up on...

-- Posted by Neil H. Buchanan My annual contribution to Jotwell -- the Journal of Things We Like (Lots) -- is a review of the book "The Trouble With Billionaires," by Linda McQuaig and Neil Brooks. I briefly mentioned that book toward the end of a post earlier this year . I encourage readers to read my review and, more importantly, to read the book.

-- Posted by Neil H. Buchanan The Law & Society Association's annual conference was held in San Francisco this past weekend. For the seventh year in a row, there was a large slate of tax-related sessions, with a total of 46 papers presented on twelve different panels. (The tax sessions for the three full days of the conference can be found here , here , and here .) As the organizer of those sessions, I take on the task each year of trying to put together papers with similar themes onto panels, which (I hope) allows scholars with overlapping interests to interact in ways that will generate insights and help advance the work of all of the authors. The challenge in creating sessions is in finding four or five papers that fit together in some coherent sense. Often, it is easy, when (as usually happens) there are a group of papers on international tax issues, another on gender-related issues in tax, another on charitable organizations, and so on. Other sessions require a bit mo...

By Mike Dorf A recent AP story  reports that in Alamogordo, New Mexico, a billboard ad shows one Greg Fultz holding the outline of an infant and the caption " This Would Have Been A Picture Of My 2-Month Old Baby If The Mother Had Decided To Not KILL Our Child!"  The story goes on to relate that Fultz's ex-girlfriend contends she had a miscarriage, not an abortion, but would want the billboard taken down regardless, and a "domestic court official" agrees.  (Presumably the domestic court official is a magistrate or judge of some sort, rather than, say, the cashier n the courthouse cafeteria.)  Let's see whether that's the right result. (1) I'm not an expert in New Mexico tort law, but in a couple of minutes of research I was able to ascertain that New Mexico does not appear to be especially idiosyncratic with respect to the relevant causes of action: Defamation; false-light publicity; publicity given to private life; and intentional infliction ...

By Mike Dorf According to this NY Times story , it appears that efforts to ban circumcision are meeting with greater success than in the past, at least in two California cities. If such a ban is enacted, it could lead to a ruling on an important question about religious freedom. I'll use the possible ban as a "teachable moment," here a moment to teach about the incredibly complicated law of religious freedom. In 1990, in the Smith case , the Supreme Court held that there is no infringement on religious freedom if a state law that applies to everybody happens to impose a greater burden on people whose interest in engaging in the forbidden conduct (or refraining from the required conduct) is driven by a sense of religious obligation.  The particular case involved peyote: Oregon forbade peyote use by everyone, and the Court ruled that the Free Exercise Clause wasn't even implicated when Oregon applied that general prohibition to Native Americans who wanted to use pe...

By Mike Dorf Having followed some of the press coverage of the John Edwards indictment, I was under the impression that the government case against him was a stretch or at least likely to be difficult to prove. Then I read the indictment ( here , if you scroll down a bit), and thought a little bit about the government's theory of the case.  It now strikes me that if the government proves the facts alleged, its case is pretty strong. At its core, the indictment alleges that Edwards knowingly: 1) in violation of federal campaign finance law, accepted money well in excess of the individual campaign contribution limits; 2) spent that money to hide his extramarital affair with Rielle Hunter; and 3) in violation of federal campaign finance law, failed to disclose either the donations or the expenditures.  Edwards does not appear to contest number 2), which is not, in and of itself, illegal.  Instead, his defense appears to be that, with respect to 1), the hundreds of thous...

-- Posted by Neil H. Buchanan In yesterday's post , I noted a somewhat mysterious non-trend in the U.S. housing market. With financial institutions holding millions of empty homes, which they seized from now-evicted households (who learned the hard way that owning a house is a very tenuous form of financial security), and with millions of people being forced to rent, there has been no evident move by profit-seeking companies to buy those houses and rent them to those people. Even if banks do not want to get into the real estate management business, after all, there are already large companies that own and manage hundreds or even thousands of buildings in states across the country. This suggests that there are people who know how to manage rental arrangements in more than one apartment building. Why, I asked, would we not see at least a few of those profit-seeking companies (or some start-ups) buying up empty houses and turning them into rentals (priced to reflect the differe...

-- Posted by Neil H. Buchanan There was more bad news about the U.S. housing market this week. After plunging from their peak in 2006, housing prices had stabilized over the last few years, even recovering a tiny bit as the economy continues to struggle. The latest data, however, show that those minor gains have all been lost, with April's prices hitting a new post-bubble low. Also, the latest numbers show that home ownership is at a several-decade low (although more than 60% of households still own their homes). Naturally, experts and forecasters disagree about the prospects for the immediate future. The more optimistic group says that the market has finally hit its low, but that the recovery will be long and uneven. The pessimists say that there is still reason to believe that prices will plunge further. As prices have given back only about half of their gains since 2000, there is at least reason to worry that we have not reached a "natural bottom," whatever that ...

By Mike Dorf Yesterday, in Ashcroft v. Al-Kidd , the Supreme Court unanimously ruled that former Attorney General John Ashcroft was entitled to qualified immunity against a federal lawsuit alleging that Ashcroft ordered the use of material witness warrants as a pretext for detaining terrorism suspects against whom there was insufficient evidence to justify detention for crime.  All eight participating justices (Justice Kagan was recused) thought that it had not previously been clearly established that using a material witness warrant in this way is unconstitutional.  There were, nonetheless, some rather serious disagreements, which I'll attempt to explain and referee here. 1) Justice Scalia, writing for a five-justice majority (himself, CJ Roberts, and Justices Kennedy, Thomas, and Alito), also reached the merits of the claim.  Citing a substantial body of precedent that, for the most part, makes a government official's subjective state of mind irrelevant to the lawfu...