Dorf on Law

By Mike Dorf Last week I debated the Cato Institute's  Ilya Shapiro  on a range of issues arising out of the Supreme Court's ruling on the Affordable Care Act.  If you want to waste an hour of your life, you can watch it below.  (For email readers, here's a link .  Please note that in both the embedded version and the version at the link, the questions during the Q&A are inaudible, but the answers are audible and should provide enough context so that you can figure out what the questions were about.)  As you will see, the debate was quite wide-ranging.  Here I want to take the opportunity to expand on one point I raised in my initial remarks.  The relevant discussion begins at the 15:50 point of the video.  I said in the debate that the challenge for the government in the ACA case was to give an example of a mandate the government could not impose under an appropriate limiting principle that would nonetheless sustain the minimum cov...

-- Posted by Neil H. Buchanan After the first week of classes this semester, a student told me that she had read some of my on-line writings and was surprised to see that I do not think of federal budget deficits as horrible, horrible, horrible. She was neither endorsing nor condemning the standard view. Instead, she was simply saying that she had never seen anyone make the case for deficits, and she wanted me to explain why I do not think that deficits are to be avoided at all costs and at all times. In the last paragraph of yesterday's post , I offered shorthand version of a response to that student's query: "Some fiscal deficits are bad. Some are good. As a long-term proposition, it does not make sense to run annually balanced (or even long-term balanced) budgets. Debt should rise over time. Some government spending is bad. Some is good. Apparently, that is not easy to understand." Indeed, it is not. In response to my post, one of the regular commenter...

-- Posted by Neil H. Buchanan During the national political conventions, a lot of old errors are inevitably going to resurface. This week, the Democrats and their sympathetic media commentators get their turn. For me, the biggest annoyance is the return of the Democrats' most dangerous bragging point: We turned deficits into surpluses, so we are the truly fiscally responsible party! Among a seemingly endless number of examples, consider this morning's New York Times op-ed column by Gail Collins . To her credit, Collins seems to have finally moved past her weird fixation on the story about Mitt Romney's dog. And most of today's column is her usual mixture of not-as-shallow-as-it-could-be analysis and cutesy snark. She is not the best commentator out there, but she is usually not out to lunch. More importantly, she is (along with her eight NYT op-ed page colleagues) among the most widely read commentators in the world. Collins, in describing Bill Clinton's conv...

By Sherry Colb In my Justia Verdict column this week , I offer a critical analysis of two hypothetical scenarios with which Professor Jonathan Haidt begins his 2012 book, The Righteous Mind:  Why Good People Are Divided by Politics and Religion .  He presents the scenarios, which involve a family eating a dog and a man having sex with a dead chicken, to trigger moral disgust, after which he suggests that what divides people over moral questions is frequently people's responses to their moral disgust rather than the presence or absence of that disgust in the first place.  I propose in my column -- through some disgusting hypothetical stories of my own -- that Haidt may be exhibiting a blind spot in suggesting that the scenarios he describes involve disgusting but harmless behavior. In this post, I want to consider Haidt's point that disgusting but (actually) harmless behavior often triggers the same reactions in people who may otherwise occupy opposite poles of the pol...

By Mike Dorf   (updated with an addendum at the end) For those readers who enjoy watching a good heavyweight fight, I highly recommend Judge Dick Posner's  review of Justice Scalia's book with Bryan Garner.  The title of the review says (nearly) all: The Incoherence of Antonin Scalia .  But that parenthetical qualifier is important, because in fact Posner does not just say that Scalia and Garner repeatedly contradict themselves--although Posner does say that; Posner also says that they lie. Well that's not exactly right.  Posner doesn't use the L-word, but he does say that Scalia and Garner repeatedly misrepresent the cases they cite as supposed examples of virtuous textualism.  Most readers of the book, Posner says correctly, will not go look up the cases cited in the footnotes, but he did, and he discovered that the cases simply don't say what Scalia and Garner claim they say.  Posner's point here is not simply that Scalia and Garner are sl...

-- Posted by Neil H. Buchanan Today, I offer a simple observation: One of the themes at the Republican convention this week -- "We Built It" -- is (almost surely unintentionally) deeply self-revealing. For those of you who might somehow have missed it, the right-wing universe went nuts a few weeks ago when President Obama said the following : "If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you've got a business -- you didn't build that. Somebody else made that happen. The Internet didn't get invented on its own. Government research created the Internet so that all the companies could make money off the Internet. The point is, is that when we succeed, we succeed because of our individual initiative, but also because we do things together....

James Laurie/Shutterstock.com -- Posted by Neil H. Buchanan In the classic comedy film " A Fish Called Wanda ," a character named Otto (played perfectly by Kevin Kline) ostentatiously reads books and makes a very big deal about his knowledge of philosophy. He is, however, actually a dimwit, and quite defensive about it. At one point, Otto says to Wanda (Jamie Lee Curtis): "Don't call me stupid." Wanda: "Oh, right! To call you stupid would be an insult to stupid people! I've known sheep that could outwit you. I've worn dresses with higher IQs. But you think you're an intellectual, don't you, ape?" Otto: "Apes don't read philosophy." Wanda: "Yes, they do, Otto. They just don't understand it." Paul Ryan is no ape. He seems to understand (at least at a basic level) the limited amount of philosophy that he has ...