Dorf on Law

By Mike Dorf Updated with CNN link. I have a new piece on CNN.com explaining my view that the health care litigation poses an unimportant legal question but an important political question.  Meanwhile, my latest Verdict column analyzes Tuesday's merits argument in the health care litigation through the lens of three sets of hypothetical questions, each of which poses the problem of how the lawyers would cabin the principles they respectively espouse to win the case.  As I note in the column, for the plaintiffs, there were two hard questions. 1) Justice Breyer's question: If the federal government cannot impose affirmative mandates, does that mean that, e.g., the federal government could not require inoculation against a deadly communicable disease?  Aren't there other vital things the federal government needs to mandate?  E.g., jury duty, the draft.  As I read the plaintiffs' answers, they would like to limit their no-mandate rule to the Commerce Clause on the t

-- Posted by Neil H. Buchanan I'm a bit under the weather today, so I'll just encourage readers to take a look at my new Verdict column: " An Educated Population Is Essential to a Nation’s Prosperity, yet Some Politicians Are Demonizing Our Educational System for Political Advantage ." In less than a generation, we've gone from conservative presidential candidates promising to be "the education President" to saying (in Romney's almost exact words): "Find a cheap college, and don't expect help in paying for it." Oy.

On Justia's Verdict today, you can read the second of a two-part series in which I analyze the Supreme Court's recent decision in Howes v. Fields , holding that a suspect serving jail time may be interrogated by police without receiving the Miranda  warnings, because being incarcerated does not necessarily qualify as  "custody" for purposes of triggering an entitlement to warnings.  I take the position that this ruling represents a departure from both the precedents and the underlying philosophy of Miranda v. Arizona . In the Dorf On Law blog post  that appeared here last week, I argued that to suggest that a person can be in jail but not in custody is fundamentally dishonest in ways that anesthetize our conscience against reacting to what may in truth be grave wrongdoing, a function served by dishonest language in other contexts as well, including the use of the word "necessary" in describing practices required to satisfy consumers' demand for animal

By Mike Dorf Today the Supreme Court hears oral arguments on the validity of the mandatory coverage provision (mcp) of the Affordable Care Act.  As I noted yesterday (in point 5), even if the Court were to strike down the mcp, it would be child's play for Congress to re-enact it in a slightly different form to accomplish the same purpose, and have the new version sustained.  Nonetheless, the political and policy stakes are very high because the Congress that enacted the ACA has changed enough since the 2010 midterm election that a judicial decision to invalidate the mcp would effectively be irreversible by Congress.  Thus, if one thinks, as I think and as many health economists think, that w/o the mcp, the ACA would be substantially less effective at getting healthy people into the insurance pool than it would be with the mcp, a decision by the Court invalidating the ACA would be a major policy blow. Here I want to consider whether that should matter, and if so, in which direc

By Mike Dorf Today the Supreme Court begins the first of three days of oral arguments on issues surrounding the constitutionality of the minimum coverage provision (aka the "individual mandate") of the Patient Protection and Affordable Care Act.  Over the last week I have been giving sound bites to the press covering the arguments, but the truth is I have only one substantially new point to add to what I--and many others--have been saying for the last couple of years.  My post tomorrow will elaborate that one new thing, but for today I thought it would be useful to recount what I believe are the main points: 1) Today's argument will focus on the tax Anti-Injunction Act.  As a matter of plain old statutory construction, the Anti-Injunction Act objection to the Court's even resolving the merits now is reasonably strong--at least given the terms in which the issue has heretofore been argued.  Yet delaying merits adjudication would potentially lead to the waste of bil

-- Posted by Neil H. Buchanan Each time I teach the basic Federal Income Taxation course, I have the mixed pleasure of teaching the famous case of Eisner v. Macomber . The 1920 case is included in nearly every tax law casebook, although it is not clear why. Our income tax system includes something called the "realization doctrine" (which I will explain momentarily), and Macomber is a foundational case in that area of law. Even so, the Supreme Court's reasoning in Macomber is so muddled -- one might even say, so ridiculous -- that the case is arguably more trouble than it is worth, in the context of trying to teach tax law. (The case is bad on tax, and simply embarrassing on constitutional law.) Why do I continue to teach the case, as I did again just this week? In part, I do so because everyone else does so. Macomber is one of those cases that should be part of the shared knowledge of everyone who has studied the income tax. That might not be a good thing, but I

-- Posted by Neil H. Buchanan My new Verdict column discusses some recent positive changes in the public debate about taxes. I have always been struck by the weakness of the empirical evidence regarding the supposed harms and dangers of taxes, yet even the more liberal big-name economists have always been rather passive on the issue. It is not surprising, I suppose, when Paul Krugman gets on the case; but I was pleased to see that Christina Romer and Uwe Reinhardt are also now beginning to push back against some of the conventional wisdom. They are both reliably center-liberal, of course, but at least we are finally seeing some fight from the mainstream non-conservative economists on taxes. In part, my column is a continuation of my Verdict column last month , in which I discussed how unsurprising it is that economists are largely incapable of contributing usefully to the public debate. In today's column, I recount an incident from a few years ago, in which a highly prom

Posted by Sherry F. Colb In my  column  for Justia's Verdict this week, part 1 in a 2-part series, I take up the recently decided Supreme Court case of  Howes v. Fields .   In  Fields , the Court held that a suspect could be incarcerated in jail but nonetheless be characterized as free of custody for purposes of  Miranda v. Arizona .  such that police could interrogate him for hours without first giving him warnings.  In the two parts of the column, I suggest that  Fields  represents a major departure from earlier case law and from the underlying objectives of  Miranda .  In this post, I would like to focus on a phenomenon exemplified by  Fields  but not unique to the area of custodial interrogation:  the use of words to obscure rather than expose the truth. The word at issue in  Fields  is "custody."  Colloquially, "custody" can mean anything from being under arrest to living with one's father after one's parents divorce.  In the Fifth Amendment/ Mi

-- Posted by Neil H. Buchanan Having now returned from my speaking tour/working vacation in Hong Kong, Australia, and New Zealand, I have been thinking about issues large and small that confronted me during my travels. One set of thoughts concerned matters of national culture that are probably impossible to measure, but that are nonetheless palpable to an outsider visiting a country. (Warning: In this post, I will heedlessly engage in broad statements along the lines of "Americans think ..., while Aussies are ... ." I understand the perils of such broad-brush statements, and I offer them with the acknowledgement that no such statements should be read as assertions of universal truth. I am merely trying to summarize in reasonably concise form a few things that I thought I saw over the last month.) I will say nothing here about Hong Kong, which is fascinating in its own right. Instead, I will comment on a few aspects of what I saw in Australia and New Zealand, concerning th

By Mike Dorf An important sticking point in the Dharun Ravi prosecution was the question of whether Ravi's actions invading Tyler Clementi's privacy were motivated by anti-gay bias.  I didn't closely follow the trial evidence but I did read the New Yorker  story on Ravi a couple of months ago that gave some reason to doubt that Ravi is homophobic.  A friend of Ravi's said that Ravi is a "dick" who is " so much of a jerk that it may seem like he’s a homophobe but he’s not.”  Apparently, the jury didn't buy the jerk-but-not-a-homophobe defense (although an alternate juror apparently did). Meanwhile, the Ravi case has led to renewed interest in an issue that has generated substantial controversy from time to time: Should the law punish hate-crimes more severely than otherwise comparable crimes motivated by more mundane impulses than illicit bias, such as revenge, anger or avarice?  In Wisconsin v. Mitchell the Supreme Court unanimously upheld a

-- Posted by Neil H. Buchanan "It would just look bad ." Everyone, I think, has either uttered that sentence, or heard someone else say it, at some point in their lives. The idea is that the underlying merits of whatever is at issue might cut in one direction, but there is something about the "optics" that counsel making an otherwise-wrong choice. This was brought to mind during the conference in Hong Kong that I attended a few weeks ago. One of the scholars at the conference, who teaches at an Italian university, had served on a task force for the European Union, which had been created to offer expert advice on tax treaty issues between EU countries and Hong Kong (and thus, ultimately, China). The task force had completed its duties the previous year. The professor noted, however, that he had not visited Hong Kong during the time that he was on the task force. He said that he had suggested that the members of the task force might benefit by actually visiting

By Mike Dorf To raise money to support those Cornell Law students participating in the spring break service trip, yesterday I competed in the 2nd annual Cornell Law Faculty Pie-Eating contest.  The video below cuts off before the weighing of the uneaten pie portions, but as you can read on the Twitter feed , I won!  Let me just say for the record, eating nearly two pounds of pumpkin pie in just over three minutes is harder than I would have thought. But mostly, I just wanted to take this opportunity to boast about my most ridiculous accomplishment ever. (If you're getting this blog post by email and don't have embedded video, you can find the video here .)

By Mike Dorf Campaigning in Mississippi and Alabama, Newt Gingrich recently promised gasoline prices of $2.50/gallon, while all of the Republican candidates have criticized President Obama for supposedly adopting environmental policies that make it difficult for oil and gas companies to increase production.  Indeed, some Republicans have claimed that the Obama Administration actually wants higher gas prices as a means of limiting demand.  As the Washington Post noted yesterday , that claim is mostly untrue.  Indeed, the story to which I've just linked shows that the Administration has hardly been an environmentalist's dream.  What emerges pretty clearly--and has been evident in American politics for quite some time--is that virtually no politician will deliberately pursue a policy of higher energy prices. There is, of course, a short-term policy rationale for that reluctance.  During our current, rather fragile, economic recovery, high energy prices will cut into other cons

By Mike Dorf In a recent essay in the New Yorker , Dahlia Lithwick reviews a new book by Dale Carpenter that tells the story behind Lawrence v. Texas .  As Lithwick and (in much more detail) Carpenter explain, the Supreme Court's decision of the case was based on a false picture of the facts: John Geddes Lawrence and Tyron Garner did not have a longstanding deep personal relationship, nor were they even engaged in sex when they were apprehended by the Houston police.  In order to help bring a test case, they agreed not to contest the police version of the facts (alleging that they were caught in flagrante delicto) and the movement lawyers in turn concealed the somewhat tawdry nature of their non-relationship relationship so as to keep before the Justices a sanitized, middle-class image of same-sex relationships. As reported by Lithwick, the story sounds fascinating and I look forward to reading Carpenter's book.  But as a constitutional lawyer, I'm tempted to say: Wel