Dorf on Law

-- Posted by Neil H. Buchanan How long will the Tea Party wait for satisfaction? There was no political brinksmanship regarding the debt ceiling last month, with the House Republican leadership allowing a vote which resulted in the suspension of the debt ceiling until next March 15.  Does that mean that Professor Dorf and I have misspent almost three years of our middle age, devoting large chunks of our time to writing legal analyses about an issue that was ultimately dealt with -- however haphazardly -- by the political system? Hardly.  There is plenty of legal scholarship written in anticipation of possible legal problems that have not yet come to pass.  For example, good work has been done (see, e.g., here ) on proposed balanced-budget amendments, even though Congress has not (yet) passed such an amendment.  (Self-interest alert: I will probably write an article about balanced-budget amendments sometime soon.)  Given that there is still a debt ceil...

-- Posted by Neil H. Buchanan In my new Verdict column , I confront the widely held belief that the U.S. spends too much on elders and too little on children.  I confess that, when I first started hearing that claim several years ago, it "felt" true (in Stephen Colbert's now-classic sense of "truthiness").  We know that we have big federal programs to support retirees, and we also know that support for youth-related initiatives is spotty and inadequate.  No matter how one feels about the financing of Social Security and Medicare, it is easy to fall into the trap of thinking that society as a whole overspends on the geezers. Of course, this meme feeds all too smoothly into the generational conflict that budget hawks have been trying to gin up for years.  Even though the astroturf deficit-scold groups have been rather clumsy in trying to create outrage among 20-somethings (e.g., supposed "youth activists" on college campuses turn out to be paid shil...

By Michael Dorf My latest Verdict column discusses recent controversies regarding claims for exceptions from general laws, comparing and contrasting claims for exceptions grounded in four freedoms that receive protection in the First Amendment (and other sources of law): religion; speech; press; and association. Here I want to discuss a point of contact that I do not address in the column--what I'll call the sincerity problem. In legal regimes that entitle religiously-scrupled persons to exceptions from general laws--like the one created by the federal Religious Freedom Restoration Act (RFRA) and similar state constitutional or statutory provisions--there arises a threshold question: Does the claimant have a sincere religious belief? That matters because the entitlement to an exception turns on the religious character of an obligation. If Jim can't work at his government job on Sundays because he goes to church on Sundays, that will trigger protection under a RFRA-style re...

By Michael Dorf Yesterday I attended a talk by George Mason Law Professor Ross Davies on the history of solo actions by Supreme Court Justices. To oversimplify, Davies argued that, in general, the Court gives its members a great deal of room to freelance in their extra-judicial activities when those activities do not purport to take the form of adjudication. He made the further point that in the exercise of this discretion, individual Justices have reached widely divergent answers about what is appropriate. As an example, he pointed to the enormous variation in the time that individual Justices have said must be allowed to pass before their papers become public record.  E.g., Thurgood Marshall's papers became public immediately upon his death; David Souter has embargoed them for 50 years following his donation of his papers. Although Prof. Davies did not offer a policy prescription, it struck me that one approach that builds on his observations might be for the Court--or, wher...

By Clifford Rosky Just last week, I filed an amicus brief in Kitchen v. Herbert , the challenge to Utah’s constitutional amendment that bans same-sex couples from marrying.  The brief was filed on behalf of Utah’s largest LGBT organizations, Equality Utah  and the Utah Pride Center , and it was prepared with the generous help of attorneys at Zimmerman Jones Booher .  In writing this brief, we tried to do something a bit different with United States v. Windsor : Rather than trying to avoid or resist the Court’s discussions of federalism, we showed that the Court’s analysis of the State’s authority to define marriage actually supports the invalidation of state laws under Windsor . In Windsor , Justice Scalia and Chief Justice Roberts kicked off a national debate about how the Court’s invalidation of the federal Defense of Marriage Act would apply to state laws.  While Scalia predicted that it was “inevitable[] to reach the same conclusion with regard to state la...

-- Posted by Neil H. Buchanan On nearly any contested question, people who are thoughtfully engaged in the issue will regret the loss of nuance that comes when one is forced to choose a side.  Even on those issues for which the answers and solutions seem manifestly clear, there are still details that need to be explored, and it would be best if we could think about them without fear that asking honest questions will be taken as a sign of weakness or bottom-line ambiguity. Consider a few examples.  The debate over energy policy necessitates some excruciating inquiries into the tradeoffs among environmental harms -- types of damage, long-term versus short-term, and so on -- from different energy sources, along with the costs and benefits (and limits) of conservation.  In light of that, I have written (for example, here ) that the least-bad choice for the United States today is to rely more on coal and less on oil and nuclear power.  In the two years since I wrote t...

-- Posted by Neil H. Buchanan Two weeks ago, I wrote a pair of posts ( here and here ) responding to a shameful op-ed column in The New York Times by Nicholas Kristof.  Kristof purported to argue that the world is being impoverished by the increasing unwillingness of American professors to engage in public policy debates, because they are supposedly too busy being irrelevant and egg-headed.  That, however, was merely a diversion. In my second post, after I had dismissed the "cover story" of Kristof's column (the demonstrably false claim that professors are refusing to enter the public square), I noted that Kristof was doing nothing more than arguing that professors are too liberal.  The question was why he would devote his Sunday op-ed space to that argument.  "But if Kristof is a liberal (and most evidence suggests that he can be reasonably described as left of center), then what is the point of joining in what is usually the tired right-wing pastime of pr...

by Sherry F. Colb My Verdict column  this week discusses the recent Supreme Court case of Fernandez v. California ,  which held that one co-occupant can give the police valid consent to a search, even if the other co-occupant expressed his opposition to the search earlier (and is absent from the premises only because the police removed him in the course of a lawful arrest).  My column takes the occasion of this decision to talk about how the Court classifies  "consent" searches as "reasonable" searches and contends that the classification (and its doctrinal development) are less than ideal.  In this post, I want to talk about the relationship between consent and non-consent more generally. In its opinion in Fernandez , a majority of the Court contends that the consenting co-occupant's autonomy is best honored by treating her consent as decisive, notwithstanding the earlier objections of her now-absent (and abusive) boyfriend.  In response to this c...

By Mike Dorf In the late 19th century, all of my great-grandparents came to the United States from the area around the city of Lvov, in Galicia, a region that has traded hands among various nations over the centuries. Historically part of Poland, when my great-grandparents left, Lvov was officially known as Lemberg, as it had been part of the Austro-Hungarian Empire since the late 18th century. Today, Lvov is Lviv, a city in the west of Ukraine. Nonetheless, until the current crisis, I had never really thought of Ukraine as my familial "old country." The descendants of nearly all of my great-grandparents' families who remained in Galicia were certainly killed by the Nazis, and although there remains a remnant of the Jewish community in Lviv, it is just a remnant. Thus, I have tended to regard events in Ukraine much in the way I regard events in other foreign countries to which I have no personal connection. I am not indifferent, but I have felt no special concern for...

-- Posted by Neil H. Buchanan My most recent Verdict column , published last Thursday, asks if "conservatives really want people never to retire."  Obviously, I am not claiming to have heard any conservatives say that they do not want people to be able to retire.  Instead, I argue that the inevitable logical extension of their arguments must be either that they do not want anyone to be able to retire, or perhaps that they only want people who are wealthy to be able to retire. That is, I am not asking, "Can conservatives really mean it when they say that they do not want people to be able to retire?" but rather, "Don't conservative arguments naturally imply that people would not be able to retire, even though conservatives have never said so, and even if they would be uncomfortable with that implication?"  My column shows that, applying standard orthodox economic reasoning, conservatives' logic would, indeed, seem to lead to that unexpected concl...