Dorf on Law

By Mike Dorf Well, it's that time of year again: Time for me to post another of my exams.  This one is from my Federal Courts class.  It was administered a few weeks ago as an open book, one-question, 8-hour, self-scheduled, take-home.  It was topical when administered but already has been somewhat overtaken by events.  E.g., Japan has a new Prime Minister. I suspect that readers of this blog will enjoy the exam a bit more than my Fed Courts students did. ------------------------------------------------------- Absent new federal legislation, in early 2013, three sets of events—collectively sometimes known as the “fiscal cliff”—will occur.  First, federal taxes will increase for most U.S. taxpayers due to the expiration of the payroll tax holiday and of tax cuts enacted in 2001 and 2003—and extended in 2010.  Republicans in Congress have expressed the desire to extend tax rate cuts for all taxpayers, while Democrats in Congress and President Obama have stated that they would

-- Posted by Neil H. Buchanan The abstract of a recent paper by a young tax scholar states as an uncontroversial premise that "fundamental tax reform ... is a necessary part of any solution to the looming budgetary crisis."  This is false.  Whether the author is referring to short-term budgetary issues, or (as seems clear from the context) to the long-term budget picture, fundamental tax reform is simply not a necessary part of any solution.  Fundamental tax reform can take many forms, some of which might be good ideas (while others are surely bad ones), but they are not a necessary part of solving any budget crisis that might be worrying us.  (It is also not clear that there is a looming budgetary crisis at all, but I digress.) Why would an excellent young scholar make such a basic factual error?  Because so many other papers include the same error.  Even when tax scholarship really has nothing to do with budgetary issues (when, for example, an author is concerned about

-- Posted by Neil H. Buchanan Today and tomorrow, I am publishing my final two Dorf on Law posts of 2012.  Two years ago, in my final post of 2010 , I asked which of the topics that I had written about during the year was the most important.  Was it Social Security, government finances, health care reform, or something else?  I ultimately concluded that the topic about which I had written the least -- veganism -- was the most important in terms of how much it matters to the quality of life in the world. I continue to believe what I wrote back then.  Even so, this year was a particularly interesting year for my more frequent analytical stomping grounds, with a few new issues thrown into the mix.  For example, I only wrote about suppression of non-Republican votes once or twice, but it is a hugely important issue.  The broader theme of lying and anti-social attitudes -- sociopathy -- on the part of many, many Republicans emerged as the campaign season proceeded.  The ACA case provide

By Mike Dorf My new Verdict column is Part One of a two-part series that takes the pro-gun-control reaction to the Newtown massacre as an occasion to ask what kinds of gun control legislation would likely survive Second Amendment scrutiny by the Supreme Court.  The short answer is that just about anything that has sufficient support to be enacted by Congress is likely to be upheld by the SCOTUS, but that's because it's hard to imagine national consensus building behind really serious gun control. Accordingly, I consider litigation involving state legislation in two gun-control-friendly states: New York and Illinois. My column also asks the broader question of whether there is a Second Amendment right to possess firearms outside of the home. As I note in the column, shortly after the  Heller  case was decided, I wrote a symposium paper  arguing that the doctrinal tools exist to argue that the Second Amendment does not apply outside of the home, and Darrell Miller followed

-- Posted by Neil H. Buchanan Last Thursday, Professor Dorf wrote a very respectful (but quite clear-eyed) post discussing Robert Bork, in response to the announcement that the former judge and professor had died at the age of 85 the day before.  Here, I will add a few thoughts, both about Bork's judicial philosophy and about the truly distorted picture of his non-confirmation that has emerged over the last 25 years. On the latter point, one could not find a more perfectly distilled version of the "Bork as victim of a dishonest liberal cabal" lie than one penned by New York Times columnist Joe Nocera last year. Nocera's title says it all: " The Ugliness Started With Bork ."  No, it most definitely did not; and anyone who knows even the most basic facts about U.S. judicial history knows better.  Fortunately, the Times ran an op-ed last week that laid out those facts, by Rutgers historian David Greenberg.  As Greenberg reminds us, any "ugliness&qu

By Mike Dorf As Professor Buchanan indicated in his post earlier today, our new debt ceiling paper has now been published in the online edition of the Columbia Law Review ("Sidebar").  It's a short paper (by law journal standards), so I'll let it speak for itself. I will simply add that we wrote it last week, fully expecting that we would have to make substantial revisions on the fly when President Obama offered the Republicans a sweet deal (from what should have been their perspective).  We then watched in amazement this week as the deal was rejected.  For more on that point, I recommend Professor Hockett's treatment just below this post.

By Robert Hockett Many of our more cultivated readers, particularly the cinephiles among them, might be at least passingly familiar with Ed Wood’s 1959 anti-classic, Plan 9 from Outer Space . Designated ‘the worst movie ever made’ by the redoubtable Medved brothers, the film’s science-fiction-meets-horror-story plot involves a plan by extraterrestrials to plague earth-dwellers with zombies, whom ( which ?) they resurrect by stimulating the pituitary and pineal glands of corpses, all in order to distract the earthlings from constructing a world-imperiling doomsday weapon. Among other inspiredly camp curiosities, the film posthumously stars Bela Lugosi – known in the film as ‘the Old Man’ – in the form of film clips that Wood had shot of Lugosi for other purposes prior to his death. Shift now to a parallel universe not that far from the world of Plan 9, in which what transpires is not the worst movie ever made, but surely the worst legislative story ever told.

-- Posted by Neil H. Buchanan In my new Verdict column this week, I take aim at the astonishing gift basket that President Obama offered to the Republicans earlier this week.  I then point out that, once again, the Republicans came to the country's rescue -- in their weird way -- by refusing to take "yes" for an answer.  Actually, Obama did not merely say "yes."  What he basically said was: "I know I'm in a great negotiating position right now.  But will you please let me give you almost everything that the majority of the country just rejected in the election, anyway?"  Bruce Bartlett quotes me in his new column for The Fiscal Times today, where he extends the case for Obama as center-right Republican-in-everything-but-name.  (OK, that is a bit of an exaggeration, but not much -- at least on economic issues.) Even so, Speaker Boehner did say no, because he is in thrall to the crazies who have taken over his party.  (Which is not to say tha

By Mike Dorf The news came today that Robert Bork passed away.  Consider this an affectionate if quixotic eulogy from one who thought Bork was wrong about nearly everything. Looking back on Bork's long career, there is much with which to find fault. He opposed what became the 1964 Civil Rights Act, even saying it was based on a principle of "unsurpassed ugliness."  When others refused, Bork fired Archibald Cox to execute the Saturday Night Massacre.  His early work in antitrust law played an important role in extinguishing the portion of that body of law that focused on political economy, thus helping to pave the way for the WalMartification of America. In all of these and other matters, Bork displayed a tone-deafness for the struggles of the oppressed, but--and here is the tribute--I believe that it all came from a set of principles rather than any meanness of spirit.  I only met Bork once, nearly 16 years ago, when Ted Koppel pitted us against one another on Night

By Sherry Colb On Justia's Verdict today appears the second part of my two-part series of columns on the question whether rapists ought to have parental rights to visitation with their biological children resulting from rape.  In this second column, I consider the issue of burdens of proof in determining whether a father did in fact conceive his biological child in rape, on the assumption that an affirmative finding should yield divestment of any parental entitlements. In this post, I want to consider the relationship between causation and responsibility, a relationship on which the denial of parental rights to rapist fathers of children conceived in rape is largely predicated   This issue of causation is on my mind because of the gun-rights/gun-control exchanges that have occurred in the wake of  the tragic killing of twenty children and seven adults in Newtown, Connecticut last Friday.  Gun-control advocates have argued that the slaughter ought to move us finally to pass ser

By Mike Dorf [Warning, Spoiler Alert: This post discusses the new Tom Wolfe novel Back to Blood .  If you haven't read the novel but plan to do so, I won't be spoiling the whole experience for you, but I do discuss one aspect of one of the plot lines.] As a longtime fan of Tom Wolfe's fiction, I nonetheless readily acknowledge the shortcomings in his work, including what I regard as the three most serious: (1) Wolfe trades in crude stereotyping in painting all of his characters; (2) his female characters ring false, as though written by an adolescent boy who has had little contact with actual adult women, rather than a man of letters now in his eighties; and (3) his reactionary sensibility enables him to astutely highlight the naivete about human nature of a certain brand of progressivism without ever coming to grips with the noble instincts that underlie it.  But as a reader I have also tended to overlook these flaws because Wolfe is such a wonderful writer. He paints

By Lisa McElroy (written on Friday, Dec. 14 but posted Sunday afternoon, Dec. 16) This morning, I am on my way to Belize, where my eleven year-old daughter and I will participate in Mayan rituals harkening the end of the world. As I fly through the clouds, I’m exquisitely aware that, for numerous parents in Newtown, Connecticut, today is really the end of the world.  Unlike mine, their children are not sitting safely beside them, begging to watch one more show on Direct TV, chewing gum to keep their ears from popping painfully. Instead, the popping their children heard in their ears this morning was that of gunfire; the pain they felt was that of bullets penetrating their skin. I’m trying hard to understand just how that could be, on all kinds of levels. Why these particular children, in this particular town, at this particular school, on this particular day?  Why not my own children, who attend a school much like the one in Newtown?  Why any children at all? When

Posted by Anil Kalhan Boxed In: The True Cost of Extreme Isolation in New York’s Prisons (New York Civil Liberties Union, 2012) Last week, the New York Civil Liberties Union filed a lawsuit challenging the state of New York’s routinized use of solitary confinement and other forms of extreme isolation in its prison system as violating the Eighth Amendment. According to the complaint, which draws from a report that the organization published earlier this year , New York uses extreme isolation as an administrative sanction more extensively than any other prison system in the country. From 2007 to 2011, the state imposed over 68,000 extreme isolation sentences for violations of prison rules, and on any given day, it holds approximately 4,500 individuals – constituting fully 8 percent of its total prison population – in its “Special Housing Unit” isolation cells. As the NYCLU recounts, the circumstances and consequences of such extreme forms of confinement are exceptionally severe: