Dorf on Law

by Michael Dorf A number of commentators--including my colleague Jens Ohlin and Yale law professor Bruce Ackerman --have argued quite persuasively that President Obama lacks domestic legal authority to conduct military operations against the Islamic State (IS). There are really only two possible sources of such authority, and neither works. First, the President could be exercising his inherent power to defend the country against a foreign attack, in which case, at the least, the War Powers Resolution clock has started ticking, but as Ackerman points out, the Obama Administration's views with respect to Libya in 2011 (which I criticized at the time) suggest that the Administration does not regard the WPR as applicable. Second, the President could claim to be acting pursuant to the post-9/11 Authorization for Use of Military Force (AUMF) but as Ohlin and Ackerman (and others) point out, even under the broad view of the AUMF that includes authorization for targeting forces ...

by Michael Dorf In my column on Wednesday discussing last week's same-sex marriage rulings, I noted that in his opinion upholding the Louisiana ruling, Judge Feldman dismissed the many contrary rulings by other federal courts as based on "empathy" and "pathos." As I explained, the charge was backwards: once one considers the arguments in play, it appears that the opponents of SSM are the ones who have given in to unreason. Indeed, in recent years and across a range of issues, American conservatives have more generally come to believe their "guts," (to use Stephen Colbert's line), even when the actual facts as evinced by evidence are to the contrary. (E.g., climate change; evolution; U.S. history). That is not to say that there aren't plenty of liberals whose views of the world are faith-based rather than evidence-based; there are; I'm simply making a comparative point. Nonetheless, the claim that one's opponents have based their vi...

-- Posted by Neil H. Buchanan My latest Verdict column, published today , uses the recent controversy over reclining seatbacks on airplanes to make a larger point about the misuses of economic theory.  One of the foundations of the "law & economics" movement is known as the Coase Theorem.  Two weeks ago, a business columnist for The New York Times , Josh Barro, wrote a short, snarky piece in which he tried to use the common, bastardized version of that theorem to rationalize his proud willingness to be a jerk.  Here, I want to explore in further detail how economics is so often wrongly used to justify anti-social behavior. [Before continuing, however, I do think that it is important to take a moment to note that today is September 11.  Despite all of the horrible things happening in the world, it says something very good that today is a day on which most people will go about their lives as if it were any other day.  That does not dishonor the memory of...

by Michael Dorf In my latest Verdict column , I discuss last week's same-sex marriage (SSM) rulings: Judge Feldman's district court opinion upholding Louisiana's SSM ban; and Judge Posner's 7th Circuit opinion invalidating the Indiana and Wisconsin SSM bans. My column praises Posner's opinion overall but especially for his injection of a new argument into the growing genre of opinions striking down state SSM bans. As he foreshadowed during the oral argument, Posner performs a kind of judicial jujitsu. He turns the state claim that it is concerned about the consequences of accidental heterosexual procreation against the state: If the state were really concerned about those consequences, he says, it would permit same-sex couples to marry, because they are raising thousands of adopted children who were born as a result of such accidental heterosexual procreation. That's a very nice move, but as I note in the column, it is potentially vulnerable to a rejoinder...

-- Posted by Neil H. Buchanan Are executives overpaid?  If you are inquisitive and open to thinking about evidence and logic, that is a difficult and nuanced question.  If, instead, you are a mainstream economist, then this -- like all questions -- is easy.  Although an awful lot of work goes into dressing up the analysis, the answer boils down to this: Executives cannot be overpaid, because what they are being paid must be the amount that they should be paid.  Think I'm joking?  If only. The latest example of this nonsense showed up in a fawning news article by a New York Times sports reporter last week.  Two economists (one of whom teaches at a prominent law school) wrote a typical economics article , in which they claimed to show that college football coaches' salaries are justified by the coaches' jobs being CEO-like.  That is, they noted that big-time college football coaches run large organizations, in which they manage hundreds of people, ...

by Michael Dorf As a longtime fan of academic satire, I enjoyed Julie Schumacher's new book Dear Committee Members (favorably reviewed, e.g.,  here and here ). The book takes the form of discursive letters of recommendation from a middle-aged professor of English and creative writing at a fictional midwestern university. Schumacher herself teaches English and creative writing at the University of Minnesota but "Payne University" is not a thinly disguised version of Minnesota; it is instead a generic stand-in for academe. The protagonist, Jason T. Fitger, is also something of a standard type: a once-promising author whose debut novel was more successful than any of his subsequent works; a pedant whose awareness of his own pedantry makes him something of a lovable curmudgeon; a man whose sense of irony alone prevents him from spiraling downward into self-pity. Fitger is more sympathetic than the character played (brilliantly) by Jeff Daniels in The Squid and the Whale  ...

-- Posted by Neil H. Buchanan The big political news of this week was the Democrat's strategic withdrawal from the race for the U.S. Senate seat in Kansas.  The very unpopular Republican incumbent, Pat Roberts, had succeeded in defeating a Tea Party challenger in his party's primary, only to find himself with embarrassingly low poll numbers in a three-way general election race.  The embarrassment would have been bearable, however, because the Democrat and the independent candidate were splitting the anti-Roberts vote, so that polls showed Roberts set to win reasonably comfortably (perhaps along the lines of 38% to 32% to 30%). Democrats saw an opening, and they convinced their candidate to drop out of the race.  This immediately made the independent, an unknown named Greg Orman, a strong favorite to win.  And given that everything that matters in this election season boils down to control of the Senate, the change from a sure Republican win in Kansas to a loss ra...

by Michael Dorf A NYTimes story today on yesterday's ruling by a federal district judge upholding the Louisiana ban on same-sex marriage may give the inaccurate impression that I think the ruling is anything other than terrible. The story's author, Campbell Robertson, correctly quotes two disclaimers I gave in the course of a 15-minute discussion with him but not the main thrust of my comments. First, I am quoted as saying that the decision is a "well-crafted outlier." By that I merely meant more or less what Garrett Epps meant in his excellent first-take on the decision in The Atlantic : namely, that the opinion hangs together well, not that it is correct either legally or morally. Judge Feldman's opinion is well-crafted in the same way that Plessy v. Ferguson or Buck v. Bell ("three generations of imbeciles is enough") can be said to be well-crafted. Second, I am quoted as noting "some confusion" in the Windsor  opinion about the relati...

by Sherry F. Colb In my column for this week , I discuss the case of United States v. Lee , in which a defendant, Daniel T. Lee, appealed his conviction on the ground that he was denied the Sixth Amendment right to represent himself at his suppression hearing, though he was permitted to represent himself at trial. The U.S. Court of Appeals for the Seventh Circuit held that it was error to deny him the right of self-representation at the suppression hearing and that this error is not subject to harmless error analysis and therefore must be remedied by providing Lee with another suppression hearing before the district judge at which Lee may represent himself.  If he loses the suppression motion, then his conviction will be allowed to stand. In my column, I examine the reason for having a right to represent oneself and discharge one's attorney, as recognized by the U.S. Supreme Court in Faretta v. California , given that representing onself -- by contrast to the exercise of o...

-- Posted by Neil H. Buchanan In his post here yesterday , Professor Dorf raised an interesting and important question about statutory interpretation, suggesting that perhaps current practices are "unduly influenced by textualism."  Discussing the Sixth Circuit's opinion in  United States v. Miller , a hate crimes case, and Bond v. United States , a 2014 Supreme Court case interpreting a chemical weapons law, Professor Dorf suggested that even apparently clear statutory language can still be ambiguous in ways that might change the outcomes of cases. The point is subtle, but exceedingly important.  Conventional wisdom, as Professor Dorf describes it, requires a two-part inquiry, in which "one first determines whether the text is clear, and only if the answer is no does one look to background purposes to determine the best interpretation."  This Chevron -style approach essentially says that apparent statutory purpose is always trumped by clear statutory lang...