Dorf on Law

by Michael Dorf Real proxy wars can be extremely dangerous. Great powers with conflicting interests fight proxy wars rather than directly engaging each other militarily because they realize the disaster that could ensue in the latter case. But where the great powers provide close support for their proxies, they risk direct engagement. Such is the potentially existential risk to nearly all life on Earth now playing out in Syria as Russian planes attack anti-Assad forces that are backed by the U.S. and other western powers. Thus, one hopes that loose talk by presidential candidates about shooting down Russian jets over Syria is simply talk. Whereas the prospect of World War III is terrifying, metaphorical proxy wars conducted at the Supreme Court are, well, only metaphorical. But interesting nonetheless. On Monday the Supreme Court heard oral argument in FERC v. Electric Power Supply Ass'n . As I shall explain, the case involves arguments that appear to be proxies for a longsta...

by Neil H. Buchanan The first quasi-debate among the Democratic presidential candidates is in the books, and the overwhelming consensus is that Hillary Clinton won .  Every sports metaphor in the book has been applied to her performance: home run, hit it out of the park, blowout, shutout, and so on.  Liberals are apparently agog, and even conservatives are grudgingly admitting that she had a great night. Because of this consensus, the single-digit candidates are under increasing pressure to drop out (although it still seems clear that Martin O'Malley's strategy boils down to being the non-socialist who can step in if a really big Clinton scandal breaks), Bernie Sanders's supporters are reportedly giving Clinton a second look, and the movement to draft Joe Biden has supposedly all but disappeared.  Whew!  For someone who was supposedly dead in the water, Clinton must be feeling pretty good about herself.  With those kinds of reviews, who wouldn't? I am desc...

by Sherry F. Colb In my Verdict column for this week , I  take up the question of why pro-life members of Congress and other advocates have been uninterested in pressing for increased access to contraception, given that wide access to contraception dramatically reduces the rate of abortion (by reducing the rate of unwanted pregnancy).  I suggest that their view might be explained as the product of a deontological perspective, rather than a consequentialist perspective, on the act of abortion.  In particular, I propose that a retributive approach to the wrongdoing of abortion aims to effect moral persuasion upon the parties responsible for abortion as well as to punish those who decide, notwithstanding the putative immorality of the procedure, to provide it or to undergo it nevertheless.  For similar reasons, perhaps, those who are morally outraged and focused on the evil of criminal conduct may be most interested in providing severe and long-term punishments for th...

by Neil H. Buchanan It is Nobel season, and "The Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel" has been awarded to Angus Deaton , an economist at Princeton.  My areas of study in economics do not significantly overlap with Deaton's expertise, which means that although I probably was supposed to read one or two of his papers for a required course while I was in graduate school (Who can remember this many years down the road?), my only familiarity with his work at this point comes through a handful of second-hand sources who have rushed articles into publication over the last day or so. I will have a comment or two to make about the substance of Deaton's work in a moment, but I must first note that there is finally something new to say about the annual "not really a Nobel" debate.  Long-time readers of Dorf on Law know that, almost every year when the economics award is announced, I say something snarky about the "fake Nobel...

by Michael Dorf Whole Woman’s Health v. Cole is perhaps the most closely-watched petition for a writ of certiorari currently pending before the Supreme Court. It poses the question whether the U.S. Court of Appeals for the Fifth Circuit erred in upholding two provisions of a restrictive Texas abortion law--one that requires doctors performing abortions to have admitting privileges at a hospital within 30 miles of where the abortion is performed and another that requires that any facility at which abortions are provided satisfy the standards for "ambulatory surgical care" centers. Pretextually written so as to appear to promote the safety of abortions, the provisions have the purpose and effect of making it (more) difficult for women to obtain abortions in Texas. In my view, the Court ought to grant cert and, after briefing and argument, reverse. As Linda Greenhouse and Reva Siegel argue persuasively in a forthcoming article in the Yale Law Journal, the challenged provis...

by Michael Dorf Because I live in a small town where I either walk, bicycle, or drive my own car wherever I go, I don't have occasion to use Uber (or one of the similar services, like Lyft) when home. A couple of years ago I downloaded the Uber app, thinking I would use the service when traveling but on each of my trips to major cities in the last couple of years I've ended up using mass transit or conventional taxis. Accordingly, I haven't felt a need to look deeply into the question whether the supposed advantages of such services over conventional taxi services are built entirely on their evasion of conventional regulations or whether they provide a genuinely different service. My friends who use Uber regularly--including some who consider themselves progressive on regulation and labor matters--claim that Uber is actually better for drivers without undermining useful regulation, but that could just be motivated reasoning. In a post back in April, Prof. Buchanan laid...

by Neil H. Buchanan My new Verdict column, " Budgetary Nonsense Across the Republican Landscape ," uses the Trump candidacy as an excuse to talk about the Republicans' uniformly crazy attitudes about deficits and the national debt.  I quote extensively from Trump's appearance on "The Late Show with Stephen Colbert" on September 22, in which Trump's series of laughable statements included this bizarre assertion about the federal debt: "You know, when you get up to the 24 trillion . . . 23 . . . 24, that’s like a magic number . . .  They say . . . Can I tell you what? They say it’s the number at which we become a large-scale version of Greece, and that’s not good. And we’re very close to that number. Not good." I had never heard anyone make this "magic number" claim before, which is yet further proof of the bizarre anti-genius that is Trump.  Yet we have all heard Republicans -- presidential candidates and otherwise -- make sim...

by Michael Dorf In yesterday's post , Prof. Buchanan took note of two arguments that we have been hearing for characterizing a debt-ceiling impasse differently from the way in which we have been characterizing it. Both of those arguments aim to avoid the conclusion that should Congress fail to raise the debt ceiling, anything the president might do in response--including nothing--would be unconstitutional. Under each, tools of statutory interpretation would be used creatively to find that Congress somehow has tacitly instructed that in the event of such a scenario, the president should prioritize some spending over some other spending. As Prof. Buchanan explained in reliance on our earlier jointly published work, these arguments fail. Here I'll examine the psychology underlying their appeal and then connect it to my latest Verdict column . Conventional wisdom in Washington says that should the drop-dead date pass without a debt ceiling increase, the president will have to ...

by Neil H. Buchanan What I have called the "drop-dead date" is the day on which, if Congress does not increase the debt ceiling, it will be impossible for President Obama to pay all of the nation's obligations without issuing more debt (or collecting more taxes) than Congress has authorized.  That date is, strangely enough, not the date on which the country hits the statutory limit on debt.  If it were that simple, the debt ceiling would have had to be increased on March 15 of this year, when a prior congressional enactment ended a temporary suspension of the debt ceiling and reset the limit at exactly the amount of debt that existed on that day. Instead, Treasury has to guesstimate when it will have used up all of its " extraordinary measures ," at which point new borrowing becomes necessary to prevent a first-ever government default.  As I noted in my Dorf on Law post this past Friday, the latest guess from Treasury is November 5, which is now less than ...

By Eric Segall The Supreme Court’s new Term starts today and it promises to be a blockbuster. The Justices have already agreed to hear important cases on affirmative action, public sector unions, and the death penalty, with abortion and voter ID cases likely to also be on the agenda. But, perhaps the most important case this term, or maybe any term since Bush v. Gore , is Evenwel v. Abbott. In this case, the Supreme Court will wrestle with a fundamental political issue: for purposes of redistricting in state and local elections (and probably federal as well), do states need to count all the people who live in the districts or just eligible voters? The answer has major practical implications for each political party and for our country as a whole. It also raises a difficult and core issue of political philosophy: whom do our elected leaders represent? For much of our history, states were allowed to carve out their electoral districts without judicial interference. The Consti...