Dorf on Law

by Neil H. Buchanan Although my next scheduled veganniversary column is almost eleven months away, I want to offer a few thoughts here about the meat-related causes of the Amazon crisis that Professor Dorf discussed in his column yesterday .  I will also draw from a column in the previous day's New York Times , which carried an op-ed by Farhad Manjoo under the pleasingly bold (and somewhat jarring) title: " Stop Mocking Vegans ." Those two pieces, along with my two - part 11th veganniversary column last month, provide a good framework within which to talk about the ethics of eating meat and the role that small-c capitalism has played in moving us at least a bit in the right direction.  The fact is that veganism -- or at least large-scale partial veganism -- is a necessary and central part of any effective response to the global climate crisis. Overcoming people's attitudes about veganism, however, remains a frustratingly stubborn barrier.

by Michael C. Dorf The immediate cause of the unfolding catastrophe in the Amazon is political. Jair Bolsonaro, like other right-wing populists elected to power in recent years, strongly signaled indifference to environmental devastation, which emboldened farmers, ranchers, and miners to set fire to the rain forest in order to clear land for commercial gain. Under intense domestic and international political pressure, the Bolsonaro government has begun deploying the military to put out the fires and begin enforcing environmental laws. These efforts are of course welcome, although Bolsonaro's rejection of aid offered by G-7 countries and his own record cast doubt on his commitment. In any event, the long-term crisis is only partly amenable to government-led solutions, in Brazil and throughout the world. Consumer eating habits must also change.

by Neil H. Buchanan When I write about economics, I typically explore the many ways in which orthodox theory is wrong.  Very, very wrong.  In particular, I have spent a great deal of time (see recent links here ) explaining how the notion of economic efficiency (or Pareto efficiency, for the jargon nerds) is a facade that allows conservative economists to pass off rank opinionating -- Minimum wages are bad!  Corporate taxation distorts the economy! -- as objective science. My counterclaim is not that those of us who dissent from the orthodoxy possess what mainstream economists only claim to possess: an objective theory that transcends morality, politics, and human judgment.  Instead, I say simply that there is no way to wring philosophy and ethical choices out of policy decisions, so we should respect facts and logic but be aware of where those things end and human judgment begins. This does not always prevent areas of agreement between the majority and the dis...

By Eric Segall I'd like to call attention to a wonderful new essay by Professor Thomas Colby titled "Originalism and Structural Argument" published in the Northwestern University Law Review. Colby raises serious questions about federalism and separation of powers cases that most originalists favor but which are difficult to reconcile with originalist methodologies. Colby, a long-time critic of originalism, especially the so-called “New Originalism,” contends that cases like Printz v. United States (Congress can’t commandeer state executives unless it does so incidentally through laws applicable to private actors too), Alden v. Maine (states have sovereign immunity from federal question suits in their own courts), and Seminole Tribe of Florida v. Florida (states can’t be sued in federal courts by citizens of their own states), are all based on non-textual, structural arguments arguably inconsistent with the originalist canon. Colby’s arguments are strong and should b...

by Michael C. Dorf Just days after Donald Trump likened himself to a Biblical King of Israel, he asserted a power that might be better associated with the King of America . Miffed that China was taking the predictable and predicted step of responding to Trump's tariffs on Chinese goods with tariffs on American goods, Trump tweeted the following remarkable edict: "Our great American companies are hereby ordered to immediately start looking for an alternative to China, including bringing our companies HOME and making your products in the USA." "Start looking for an alternative to China" is sufficiently nebulous that one might think or hope that the order was meaningless, but no, later the same day Trump followed up with a tweet that showed he had spoken to someone in the administration with some legal training who had told him how he might justify enforcing some sort of actual trade restriction. He invoked  the Emergency Economic Powers Act (EEPA) of 1977. ...

Note to Readers: Yesterday, Verdict published my new column: " Elections, the Economy, and Trump: Part One ."  There, I explain why Donald Trump's claim that the economy is great (and thus that he should be reelected) is pure nonsense as a matter of economic reality.  My column here discusses a different topic entirely, but I encourage interested readers to take a look at that Verdict piece as well. by Neil H. Buchanan Earlier this week, I returned to my recent musings about the incoherence of economic efficiency as a theoretical construct, much less as a practical guide to law or policy.  There is, I am both happy and sorry to report, more to say. My overall point in that column was that the lack of a baseline against which to measure economic efficiency (in any context) is especially devastating to any conception of what counts as a regulatory taking -- that is, a claim that the government has done something that made an owner of property poorer by changing (o...

by Michael C. Dorf Earlier this week , President Trump re-floated an idea that he and various GOP politicians have previously proposed: the notion that via unilateral executive action, he could effectively cut the capital gains tax by indexing the cost basis of investments to inflation.  As of this writing, Trump has backed away from that idea; but given how quickly he changes his mind, this or a similar proposal could be back on the agenda within a matter of weeks or days, if not minutes.  Notwithstanding that uncertainty, therefore, this seems like a good moment to offer an analysis of Trump's proposal. As Prof Buchanan explained in a column last year, even a person who somehow concludes that such indexing would be a good idea as a matter of policy must nonetheless concede that a different policy choice has been made by Congress, which provided for inflation indexing in other statutory provisions but not in the capital gains provision. Accordingly, an  Office of...

By Eric Segall Social media pundits, constitutional law professors, mainstream journalists, and conservative politicians are all agog about a brutally honest amicus brief filed in a Second Amendment case by Democratic Senators Whitehouse, Hirono, Blumenthal, Durbin and Gillibrand. Republican Senator Lindsey Graham called the brief    " an extraordinary threat from one branch of government to another." As the Washington Post notes , "t he Wall Street Journal editorial board dubbed it the opposite of an amicus filing — an 'enemy-of-the-court brief' — a nd the National Review’s David French called it “astonishing.” Even, liberal law professor Larry Tribe said the  brief " was inappropriately — and stupidly— threatening,” The case involves a relatively silly New York City gun law that has been repealed and cannot be reinstated absent a change in governing New York State law. In other words, the case is almost certainly moot, as the amicus brief correctly ...

by Neil H. Buchanan The search for a neutral, non-ideological, apolitical answer to policy questions is both admirable and doomed to fail.  It is admirable because we should all want to live in a world in which there is a way to say with confidence, "This is simply true , not as a matter of political preference but as a matter of logic and evidence."  It is doomed to fail because, in the end, policy questions are political, and there is no natural baseline against which we can measure any and all policy alternatives. That is not to say, of course, that there are no objective facts or even that there are no reliable conclusions that can be drawn from facts.  There are no facts, for example, supporting the claim that Barack Obama bugged Donald Trump's offices (nor are there facts supporting much of anything that Trump says).  There are , however, facts that so strongly support the conclusions that species evolve and that the climate is changing -- just to choose ...

by Michael C. Dorf In both the US and the UK, serious people now worry that the leaders of government could attempt to retain power after being voted out of office. DoL blogger Neil Buchanan has repeatedly explained ( e.g., here ) why we have reason to fear that Donald Trump could lose the 2020 election yet receive enough support from Republicans in Congress and elsewhere to claim a fig leaf of legitimacy for staying on while claiming voter fraud or the like. Meanwhile, last week the NY Times reported on a looming scenario in which Boris Johnson could lose a parliamentary vote of no confidence yet defy convention and the tacit assumption behind the Fixed-Term Parliaments Act that a sitting PM should yield power to a new PM capable of forming a government pending a new general election; instead, Johnson might call a new election but remain in office pending its outcome, even after the no-confidence vote. And all of that would happen as the UK crashed out of the EU. The Times articl...