Dorf on Law

-- Posted by Neil H. Buchanan In two posts earlier this month ( here and here ), I discussed some of the social justice-related reasons that we tax large "prizes" and gifts.  In both posts, I referred to a classic argument in the tax policy literature, which is a variation on the "no free lunch" notion that every decision to favor one party will disfavor one or more other parties.  Shortly after writing those posts, I had reason to re-read a recent article by Professor Shu-Yi Oei, who is currently the Hoffman F. Fuller Associate Professor of Tax Law at Tulane University Law School. (Note: Oei is pronounced "wee.") Professor Oei's article provides an innovative framework for thinking about the nature of policy tradeoffs, in a way that extends my analysis from a static (moment in time) analysis to a dynamic (as time passes) framework. In so doing, she offers an important insight in how to think about the justice of "giving people a break." ...

By Eric Segall Recently I was asked to join a thoughtful amicus brief in the same-sex marriage cases currently before the Court arguing that the Justices should strike down the bans on the ground that they discriminate on the basis of gender. The reasoning is that the only reason Jim can’t make marry Jack is that they are both men. If Jack were a woman, they could marry (sexual orientation is irrelevant to these bans, at least on their face). I think the legal arguments in the brief are strong but I declined to join it because I think the brief ignores the reality of what is really at stake in the same-sex marriage debate. Although the bans don’t mention sexual orientation, their goal is quite clearly to reserve for heterosexuals the benefits of marriage. Supporters of these bans know that there is no rush to marry among (and between) one gay man and one lesbian woman, but there is among two gay men or two lesbian women. Denying them marriage is not, as I argue below, some neutra...

-- Posted by Neil H. Buchanan In his Dorf on Law post this morning, " Is There a Silver Lining in Judge Hanen's Injunction Against the Obama Immigration Policy? " Professor Dorf examined yesterday's headline-making ruling from a U.S. District Court in Texas, which enjoined the Obama Administration's program that would effectively remove the threat of deportation for several million undocumented immigrants.  The post made the point that the judge who issued the ruling had very reluctantly endorsed some "liberal" legal doctrines.  The possible silver lining in the ruling, according to Professor Dorf, is that "the principles of reviewability of agency inaction articulated by Judge Hanen's opinion are, on the whole, commendable." As the title of this post suggests, I agree with Professor Dorf that there is a silver lining in yesterday's ruling.  For me, the interesting question is in thinking about how the principles reinforced by the ...

by Michael Dorf Yesterday, U.S. District Court Judge Andrew Hanen issued a 123-page opinion  preliminarily enjoining the Obama Administration's program of deferred action for undocumented immigrants. The opinion is ideological in ways that I'll elaborate, and it may well be wrong, but if it's wrong, it's wrong in applying  a principle that liberals and progressives support, not in those principles themselves. More than half of the opinion addresses questions of standing. The plaintiffs are states that say that they will suffer various adverse consequences from deferred action. Judge Hanen credits their claims, focusing on the added state costs of issuing driver's licenses to undocumented immigrants granted deferred action. He also includes a very long but ultimately unnecessary discussion of the Supreme Court's 2007 decision in Massachusetts v. EPA . In that case, the Court allowed Massachusetts to sue the federal government to compel the latter either to ...

by Michael Dorf My post last week on Roy Moore's efforts to forestall same-sex marriage in Alabama prompted a number of interesting comments both on and off the blog. Some of those comments related to a point I have made before--namely, Moore's view, with which I agree, that the rulings of a lower federal court do not bind state courts as a matter of precedent in cases with different parties. Here I want to clarify the limited nature of my agreement with that proposition. I'll use a recent blog post and forthcoming law review article by Professor Amanda Frost to frame my remarks. Professor Frost correctly notes that although the view expressed by Moore is the conventional wisdom, the Supreme Court has never definitively decided the question whether state courts are obligated to follow federal precedents of lower federal courts, and that at least some courts have taken the position that they are. She describes what I'll cheekily call the Dorf/Moore position as the...

-- Posted by Neil H. Buchanan It says a lot about this country that, in a week that included a President's attempt to secure war-making authority from Congress, the dominant news story was the announcement that the host of a satirical comedy program would be leaving the show ... sometime relatively soon.  Yet that is the status of Jon Stewart, whose impending departure from The Daily Show has been the subject of extensive coverage in the press and commentary from politicians.  During his sixteen years as anchor of the show, Stewart became a very important part of the American political landscape. I have certainly been a fan.  I actually watch a lot more TV than most of the people I know, with a lot of favorite shows, but the only shows that I simply will not miss seeing are The Daily Show , its infant offspring The Nightly Show with Larry Wilmore (although Wednesday's installment this week was a big swing-and-a-miss), and Last Week Tonight with John Oliver on HBO....

by Michael Dorf My latest Verdict column went up yesterday but I pre-empted my accompanying blog post in order to discuss the breaking story regarding SSM in Alabama. Here I'll add some thoughts to go with the column. In it, I explain why the anti-vaxxer case would likely be a loser in court but my main point is to unpack the seemingly odd anti-vaxxer coalition comprising elements of the libertarian right and the alternative-medicine left. Drawing on a terrific article by American University Professor Lewis Grossman  (who will be a visiting professor at Cornell next fall), I trace the roots of what he calls "American health libertarianism." I conclude that, viewed in historical context, the left/right coalition is not so odd after all. In the course of the column, I explain why anti-vaxxers would likely lose a constitutional claim, even though infringements on the right to refuse medical treatment trigger strict scrutiny: 1) Everyone would concede that public health...

by Michael Dorf Yesterday the buzz was all about the SCOTUS refusal to stay the same-sex marriage order in Alabama and the mixed reaction thereto by Alabama probate judges caught between the federal courts and a directive from Alabama Chief Justice Roy Moore. My own comments thereon can be found in  NY Times , LA Times , the Wall Street Journal ,  and a widely published AP story (e.g., here ). In this post, I want to consider a puzzle raised by Moore's directive at which I hint in the Times quote: Assuming that Moore is correct that lower federal court rulings do not generally bind state courts, does that have any relevance with respect to marriage licenses? Or, as the title of today's post indicates: Is Moore simply defying federal law (qua Faubus) or is he a sophisticated, albeit conservative, practitioner of the art of judicial federalism (qua Van Devanter)? Let's entertain the possibility that CJ Moore is a latter-day Van Devanter. Despite his past history of de...

-- Posted by Neil H. Buchanan In my Dorf on Law post this past Friday , I discussed the mini-controversy that erupted regarding the tax treatment of the Most Valuable Player award (a Chevrolet truck) that New England Patriots quarterback Tom Brady won on February 1 in the Super Bowl.  Professor Dorf, in the comments section of that post, offered an interesting question/musing that, I think, deserves some further thought.  Here, after summarizing the controversy, I will offer some preliminary thoughts on the purposes of taxing gifts. The short version of the story is this: Brady wins truck.  Truck is Gross Income for income tax purposes.  If truck is worth $34,000 and Brady is in the top income tax bracket (39.6%), he will pay a bit less than $13,500 in income taxes.  Or, to put it differently, he is able to buy a $34,000 truck for $13,500, a $20,500 discount from what mere mortals would pay.  But Brady clearly does not need a truck (or anything else, h...

By Eric Segall It is official. We are all originalists now, and interestingly, at the same time, there are no real originalists left. I know this because a number of prominent originalists have suggested that the 14th Amendment, as originally understood, prohibits bans on same-sex marriage. If that is true, originalism can mean anything and everything. First, let's start with two famous folks who strongly self-identify as originalists but don't believe or haven't yet said that gays and lesbians have a right to marry (each other). I have already provided substantial evidence in this essay that neither Justice Scalia nor Justice Thomas take originalism seriously (at least when deciding cases) as there are huge swaths of constitutional law through which they have both rammed through a robust and living Constitution. No other Justice on the Court comes close to qualifying as an originalist. What about people not on the Court? Robert Bork is dead. Ed Meese no longe...