Dorf on Law

By Eric Segall There are at least fifteen people who have officially announced that they are running in the GOP primary to be the Republican nominee for President of the United States (the number increases almost hourly). It appears that as a group they oppose same-sex marriage, oppose the right to choose, want to repeal Obamacare, and don’t take climate change seriously. In other words, they are playing to the right wing of the party base. For Huckabee, Santorum, and a few others, these positions seem earnestly held and reflective of their far-right places on our political spectrum. But for the more mainstream (and serious candidates) like Jeb Bush, Rand Paul, Chris Christie, and Marco Rubio, who are running for more than a better contract and time slot from FoxNews, both their chances of winning the election, and the long term interests of the country (and even the Democratic Party), would be served if these candidates quickly move off these positions and started discussing the...

by Neil H. Buchanan In my June 25 post here on Dorf on Law , I discussed the realistic options available for financing retirement, in the current and future U.S. economy.  The old three-legged stool -- defined-benefit pensions from employers, Social Security benefits, and private savings -- is now down to a very unstable two legs.  As I explained, the disappearance of pensions provided by private employers is reversible in theory, but now that people are no longer working for one employer per lifetime, it would be quite difficult and expensive to do so.  Furthermore, the most plausible strategy to work around the multiple-employer problem (requiring employers to contribute to a fund that disburses benefits to employees) looks like a needlessly complicated version of Social Security -- or, if it was not needlessly complicated, it would simply be another version of Social Security. One conclusion, then, is that we could decide to enhance Social Security, expanding it t...

by Michael Dorf I begin with a confession. From fall 2002 through the summer of 2008, I lived in a building that had the word "TRUMP" displayed above each of the two main entries. It was one of a number of buildings that a real estate development group had built on the west side of Manhattan. My understanding at the time was that although Donald Trump was the front man for the developers, he put up only a small fraction of the money for the development, most of which came from other investors. And then the individual apartment units were sold, so that Trump owned virtually none of the building. I say "virtually" because he or another family member may have owned one or more units, but in any event, their ownership interest was relatively small. There were over 400 apartments in the building. During the nearly six years I lived in the building, "the Donald" was sited on the premises on only two occasions, but neither time by me. Although he had not yet ...

by Michael Dorf Senator (and presidential candidate) Ted Cruz recently announced his support for a constitutional amendment that would make Supreme Court Justices subject to retention elections. A number of commentators noted the irony that, in response to the perception that the Court was too politicized, Cruz was proposing to make it more political. For example, Prof. Randy Barnett is quoted in the WaPo story linked above saying: “The last thing we need is to make judges more like politicians, having to run for retention.” But that criticism may miss the point of the Cruz proposal. Presumably Cruz’s logic goes more like this: The Court is already deciding questions politically, so it ought therefore to be subject to the basic accountability mechanism of politics: elections. Like most politicians and commentators who criticize the Supreme Court for judicial activism, Cruz is highly selective. His evidence of the Court acting politically invariably involves the Court reaching lib...

by Neil H. Buchanan In his post here yesterday, Professor Dorf asked, " What Demands May Greece's Creditors Make, Consistent With Democracy? "  That is an important question, and how it is answered has important implications.  As Professor Dorf was careful to note, however, the answer to that question does not resolve the broader questions about how the Greek crisis is being handled by the political and economic leaders of Europe.  Although he argued persuasively that Greece's creditors actions were not per se anti-democratic, he nonetheless concluded "that European demands for more austerity from Greece are 'merely' stupid, cruel, and counterproductive, but not contrary to principles of democracy." That post sparked a lively and informative discussion on the comment board, some of which concerned Professor Dorf's specific question, but most of which concerned the broader issues raised by the Greek crisis.  Here, I will explain the boundar...

by Michael Dorf Much of the discussion by commentators sympathetic to this past Sunday's Greek "no" vote on the referendum whether to accept Europe's terms offered in exchange for additional credit and the ensuing negotiations yesterday has been couched in terms of democracy. ( This brief blog post by Paul Krugman is a good example.) Germany, the ECB, and (behind the scenes) the private banks to which so much of the Greek debt is ultimately owed were and are, in this view, unfairly attempting to leverage Greece's economic vulnerability to obtain political results: either the outright fall of PM Tsipras and Siriza or, at the very least, a change of policy that is dramatically inconsistent with their core commitments and the now-twice-expressed clear preference of Greek citizens. Is that an accurate characterization? Maybe, but it depends on a number of unstated assumptions about what creditors may fairly demand of debtors, both in general and in the special ca...

by Neil H. Buchanan In the aftermath of the liberal outcomes in the Supreme Court's recent marriage equality and health care cases, some commentators suggested that those outcomes would actually be good for conservatives, especially for the Republican presidential candidates.  In my Dorf on Law post last Wednesday , I acknowledged the logic behind that assertion, in that the Republicans could now choose to put aside their increasingly unpopular positions on both issues.  Although the evidence of the last week suggests that the Republican candidates are refusing to accept this generous gift from the Court, that could merely be a death rattle.  Or maybe not. What was truly odd, in any event, was the claim that these landmark rulings would serve to clear away the distracting wedge issues that Republicans have foolishly pursued, and that dropping those obsessions would now bring them back to their strengths.  That argument was offered succinctly by former Minnesota ...

by Michael Dorf The breathless arrival of Apple Music  last week occasions this set of reflections on music and technology, with a few comments about antitrust law thrown in. To set things up, I recount my own experience with recorded music technology. I was born at the tail end of the Baby Boom and so I grew up listening to music on vinyl and on the radio, occasionally supplemented by cassette tapes. I had an 8-track for a brief period but I abandoned it as quickly as everyone else did. Because I'm not a hipster, I happily made the transition to digital. I hung onto my vinyl records through the 1980s as I built my CD collection, and I was an early adopter of mp3 technology, first with a Rio and then with a series of iPods and lately, smartphones. When streaming became a thing, I signed up for Pandora and Rhapsody accounts, which I continue to use extensively. I pay the monthly subscription fees to avoid ads. I've never been especially committed to any one operating syste...

by Sherry F. Colb In my Verdict column for this week , I examine the case of Los Angeles v. Patel .  In particular, I discuss the significance of the majority's decision to rely on the abortion facial challenges analysis in Planned Parenthood v. Casey to inform its handling of the Fourth Amendment facial challenges question presented by Patel .  In this post, I want to call attention to another interesting parallel between the Court's handling of Fourth Amendment privacy, on the one hand, and abortion, on the other. When the Supreme Court first ruled that the Constitution protects abortion, in Roe v. Wade , it focused quite a bit on the doctor's role in making the decision whether to terminate a pregnancy. With respect to the first trimester, for example, the Justice said that "the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient's pregnancy should be ter...

by Eric Segall Justice Scalia is 79 years old and has served on the bench for almost 30 years. In 1995, I wrote an  article in part defending his rules-oriented jurisprudence from what I thought were unfair attacks from Professor Laurence Tribe and a budding young scholar named Mike Dorf. But that was then. Now, Justice Scalia has betrayed his own principles, and acted so inappropriately so often, that he should seriously consider retiring from the bench. His own legacy, and the good of the country, are both very much at stake. As far as his votes and written opinions are concerned, this term alone shows how Justice Scalia has veered far away from any reasonable level of internal consistency. His dissent in the same-sex marriage case was full of wild accusations that the Justices in the majority were failing to act as proper judges by invalidating state laws prohibiting same-sex marriage. For example, he lamented the “practice of constitutional revision by an unelected comm...