Dorf on Law

by Michael Dorf In my latest Verdict column , I discuss a recent ruling by a federal district court striking down an Idaho "Ag-Gag" law--i.e., a law forbidding, among other things, gaining access to an agricultural facility under false pretenses as well as recording what happens there without government authorization or permission of the facility's owner. As I explain in the column, although the immediate context of the case is a victory for animal welfare* investigators, it has potentially far-reaching consequences for investigative journalists and activists much more broadly. In this post, I'll address an ambiguity in free speech doctrine concerning the implications of the ruling. As I note in the column, the main thrust of the opinion is that Idaho's law is content-based and therefore must be subject to strict scrutiny, which it fails: Idaho lacks a compelling reason for singling out investigators of farms for restrictions on speech. But in this as in othe...

by Neil H. Buchanan Each year, when the Social Security trustees issue their annual report, I have dutifully written columns and posts explaining why the possibility that the Social Security retirement trust fund might someday reach a zero balance -- the guesstimated date of which is really the only item in the annual report that receives any mention in the press or from politicians -- does not mean that the system will be "bankrupt," nor that post-Baby Boomers will be left with nothing, and on and on. Last year, things were a bit different, with everyone all but ignoring the release of the trustees' annual report.  This caused me to wonder aloud (if a bit sardonically) in a post here on Dorf on Law , " Is the Attack on Social Security Finally Over? "  Of course, it is not, but the release of this year's annual report attracted so little attention that I thought I might actually skip a year.  It was not to be so, however, and my new Verdict column, ...

by Michael Dorf Last week's Republican presidential debate featured three main invocations of the Constitution as a blueprint for action in the respective (hypothetical) administrations of various candidates. (1) Multiple candidates opined that the federal government now undertakes tasks that, in our federal system, ought to be left to the states. For example, Jeb Bush averred that the federal government ought not to have a role in setting curricula for primary education, while Mike Huckabee said that "there are a lot of things happening at the federal level that are absolutely beyond the jurisdiction of the Constitution," citing federal environmental policy and education policy. In general, the Tenth Amendment appeared to hover over the event, with the notable exception (in this as in other matters) of Donald Trump, whose chief complaint about the Affordable Care Act was that it creates (or more properly, leaves in place) separate state-by-state insurance markets, ra...

by Michael Dorf During the first Republican primary debate (well, technically the second if you count the warmup act at 5 pm), I took to Twitter to provide my instant reactions, most of which were simply snark. (If you don't follow the Twitter feed for this blog, which is usually just links to posts and Verdict columns, you can see my tweets  here .)  Here I'll add a few big-picture observations. 1) It's tempting to ask "who won the debate?"--albeit not in the sense of who was the most persuasive to any particular viewer. Along that dimension, I would give the nod to Kasich or Paul, but that's because Kasich was the closest thing onstage to a liberal on the role of government in helping people (especially with health care) while Paul's foreign policy views are a better fit for a Democrat than for most Republicans. But my first choice for the Republican nomination is not especially salient because I'm not a Republican. So we want to know how the vari...

by Neil H. Buchanan Last Tuesday and Thursday, in what amounted to my own personal "Greek week," I published a two-part Verdict column ( here and here ) and associated Dorf on Law posts ( here and here ) discussing the economic and political crisis in Greece.  That crisis has brought into question the viability of the common currency of the Eurozone (and The European Project more broadly), with some commentators suggesting not only that Greece or Italy might drop out, but that France and Germany might now decide to give up on the whole misbegotten, premature idea of fiscal union without political union. In my various writings last week, I described how and why the German government (as the de facto leader of Europe) has been inflicting gratuitous and unyielding pain on the Greek people.  Invoking an almost comically rigid version of contract formalism, Germany's leaders have turned the entire affair into a morality play, somehow convincing themselves that they are...

by Sherry F. Colb For my column this week on Verdict , I discuss some of the reasons that people on both sides of the abortion issue would be outraged if an abortion provider were able to profit from the sale of fetal body parts and tissues.  The discussion stems from the undercover footage of conversations at Planned Parenthood in which officials there discussed what actually appeared to be the reimbursement of expenses associated with donations  of fetal parts rather than the payment of cash for fetuses.  The column takes up the issues of both  incentivizing abortion and organ sale as well as the commodification associated with selling someone's parts for cash. In this post, I want to turn to a very different subject, the subject of executions and the Supreme Court's decision in Glossip v. Gross .  There are connections one could draw between an entitlement to dignity (which helps explain the stigma attached to selling fetal organs for a profit) and the me...

by Neil H. Buchanan The annual scholarly conference of the Southeastern Association of Law Schools (SEALS) was held last week in Boca Raton, Florida.  As has become her custom, Professor Jennifer Bird-Pollan of the University of Kentucky Law School organized a number of tax-related panels, including the now-annual roundtable at which a dozen or so tax professors discuss issues large and small related to our field.  Here, I will summarize and expand on the comments that I made at this year's roundtable, focusing on what I think is an interesting question about the politics of tax and budgetary policy making in the United States in the 21st Century. [Before I turn to those remarks, however, I do want to respond to a passing remark that Professor Eric Segall reported in his Dorf on Law post yesterday .  Professor Segall, summarizing a SEALS panel on which he participated last week, made some very interesting points about Supreme Court transparency.  I was troubled, ...

By Eric Segall On Wednesday of last week I co-moderated (along with Eric Berger) a panel on Supreme Court transparency at the Southeastern Association of American Law Schools (SEALS) conference. It was a fascinating discussion covering mostly the lack of cameras at the Supreme Court but also the Justices’ anonymous votes on granting or denying certiorari, the Court’s recusal practices (or lack thereof), and the lack of rules concerning their taxpayer-funded papers. Diverse views were expressed and, to my surprise, there were numerous thoughtful folks in the room not altogether sure that more transparency in the Court would actually be a good thing. I want to discuss a few of the highlights here though I cannot do justice to the entire conversation. Mark Graber of the University of Maryland got the ball rolling by suggesting that perhaps transparency was not always a positive force. He asked whether any of us would openly admit that we were sitting in this delightful conference roo...

by Michael Dorf Amidst the furor over dentist Walter Palmer's killing of Cecil the Lion, on Wednesday a New York trial court judge ruled against the Nonhuman Rights Project's habeas corpus action on behalf of two chimpanzees--Hercules and Leo--being held as research subjects by Stony Brook University. In this post I shall discuss two possible readings of the events as seen from the perspective of someone (i.e., me) who thinks that just about all human exploitation of nonhuman animals is unjustified: One possibility is that in extending compassion to a (particular) lion and chimps, people move towards seeing other sentient nonhumans as deserving of similar respect; the other is that particular characteristics of lions, chimps, and certain other animals end up reinforcing the distinctions that people draw between the animals that may be used and those that should be treated better. I assume that most readers have been following the Cecil story closely enough that I don't...

by Michael Dorf As I noted earlier in the week, on Tuesday I was one of the panelists for the Practicing Law Institute's all-day Supreme Court Review session. Many interesting topics were discussed. Here I want to consider one set of them: The rudeness of Justice Scalia's dissent in Obergefell v. Hodges , especially these lines: "The opinion is couched in a style that is as pretentious as its content is egotistic"; "If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began [as the majority opinion begins] I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie." These lines raised a number of questions. (1) Is this really new? Supreme Court litigator Kannon Shanmugam (who is a former clerk for Justice Scalia) reminded everyone that Justice Scalia has been snarky for...