Dorf on Law

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...

by Neil H. Buchanan Today, Verdict published Part Two of my two-column series analyzing the Greek/euro disaster.  Part One , published on Tuesday, was devoted mostly to describing the simple economics of the situation, as well as the baselessness of German claims that "playing by the rules" means never, ever renegotiating debts.  (I was gratified to see that the economist Joseph Stiglitz simultaneously wrote an op-ed for The New York Times which was fully consistent with my analysis, and which made further important arguments.)  My associated Dorf on Law post , also published on Tuesday, further developed the point that many types of debt are (and should be able to be) renegotiated all the time, both as part of formal bankruptcies and in ongoing party-to-party dealings. Today's Part Two considers three additional issues: (1) the possible (horrifying) consequences -- for Greece, Germany, Europe as a whole, the U.S., and pretty much everyone else -- of the politica...

by Michael Dorf My Verdict column for this week asks whether the makers and disseminators of the videos showing Planned Parenthood officials seeming to haggle over prices the organization charges for fetal body parts could be liable for defamation for misleading editing. Whereas the raw footage shows clearly that the officials are discussing partial reimbursement for expenses associated with collection, storage, and transport of fetal remains (which is legal), the editing and captioning creates the impression of for-profit sale (which is a crime). I explain in the column that defamation liability is a possibility although I caution about the dangers of censorship that arise when journalists are held to answer in damages for editing out context, given that editing is essential to journalism. In this post I want to raise a question about the ethics of undercover cause journalism. Putting aside deliberately misleading editing, I have considerable sympathy for the tactics of citizen j...

by Neil H. Buchanan This week in Verdict , I am publishing a two-part column about the Greek/European economic and political crisis, which dominated the news until very recently.  Part One was published today, and Part Two will be published on Thursday. In today's column, I explain why the economic conditions that have been imposed on the Greek people are so ruinous, to say nothing of being self-defeating for the creditor countries.  The economics behind this story continue to be quite simple, and I am hardly the first economist to describe the insistence on ever-deeper austerity policies as both cruel and insane.  Continued austerity simply makes it ever-harder for Greece to pay its debts, which all but guarantees that the country will soon need further debt negotiations to avoid the next possible full-on default.  Yet the leaders of the key European institutions -- quite clearly at the insistence of the most politically and economically powerful country in Eur...

By Michael Dorf Tomorrow I will be speaking at the Practicing Law Institute's annual Supreme Court Review session . This is the seventeenth such session and, if memory serves, I have been a panelist since just about the beginning. It's always a fun-filled day. UC-Irvine Dean Erwin Chemerinsky and Touro Emeritus Professor Marty Schwartz organize the festivities as we range over the SCOTUS Term just completed. PLI is a non-profit provider of continuing legal education but it has a lot of expenses (including travel expenses but no pay for us speakers) so it charges for attendance or remote access. That's my way of saying that if you want to attend or watch, you'll need to pay. (Some scholarships are available.) In addition to commenting on cases presented by other speakers, each speaker is assigned the responsibility for presenting a portfolio of cases. My portfolio includes  Texas Dep’t of Housing v. Inclusive Communities Project, Inc. , which holds that disparate-imp...

by Neil H. Buchanan Seven years ago today, I published a post here on Dorf on Law describing why I had decided to become a vegan.  Each year since then, I have written what I now call my "veganniversary" post, discussing some aspect of veganism.  Last year's post ( here ) contains links to all previous veganniversary posts. As I described in last year's post, my general approach has been to leave the academic and philosophical discussions of veganism to Professors Colb and Dorf, whose forthcoming book (soon to be announced on this blog) amply demonstrates their mastery of the intellectual issues raised by veganism.  I have, instead, focused on what it is like to live life as a vegan, often discussing other people's fears and concerns about veganism, and so forth. I also examine how veganism is treated in popular culture, noting the increasing acceptance of veganism in our society, but also gnashing my teeth at the insistently ignorant dismissals of veganism...

by Neil H. Buchanan A Dorf on Law reader contacted me recently, asking me to clarify the major parties' competing theories on how to create economic prosperity.  This reader, a non-economist (horrors!), asked if I could lay out the differences between the Republicans' and Democrats' approaches to economic policy, and explain what the evidence says about which approach is right (or, one supposes, possibly that both are wrong). In some ways, I could argue that this is a very timely question, because -- with only 474 days to go before Election Day!! -- the Republican presidential candidates are already talking about taxes.  A lot.  OK, so I will argue that this is a very timely question, but for a very specific reason: Almost surely, no one (and certainly none of the Republicans) will actually explain why their economic plans will lead to greater prosperity.  There will instead be an unstated presumption that it is self-evident where the key to prosperity is store...

by Sherry F. Colb In my Verdict column for this week, I discuss a proposal offered by Adam Benforado, author of Unfair:  The New Science of Criminal Injustice , that instead of trying criminal cases "live" before juries, we instead record the trials and edit out inadmissible material, objectionable questions, along with objections and rulings on those objections, only then showing the results to juries and thus protecting jurors from information that would likely taint their consideration of cases.  In the interview with Benforado in which he discussed this proposal, he mentioned a second one as well, one that I will examine in this post. Benforado suggested (in the interview and, presumably, in the book as well, which I have only just begun to read) that instead of the jury watching a recording of the actual witnesses at trial, the recording of the trial should replace the witnesses with avatars.  Let us evaluate both upsides and downsides of this proposal.  Be...

By Michael Dorf In the wake of Obergefell v. Hodges , some commentators observed that by basing the decision chiefly on the fundamental right to marry--with principles of equality playing a supporting role--the SCOTUS missed an opportunity to establish that sexual orientation is a suspect or semi-suspect classification, and thus to strike a blow for LGBTQ equality more broadly. Had the Court instead (or in addition) squarely held that heightened scrutiny applies to discrimination based on sexual orientation, that would have implied, among other things, that LGBTQ government employees (at all levels of government) would be protected against workplace discrimination and that the government may not discriminate on the basis of sexual orientation (absent a very good reason) in any context. Last week's ruling by the EEOC that Title VII of the 1964 Civil Rights Act already  bars workplace discrimination on the basis of sexual orientation fills some of the gap left open by Obergefell ...

By Michael Dorf My latest Verdict column deconstructs the best line in last month's decision in  Horne v. Dep't of Agriculture : "Raisins are not dangerous pesticides; they are healthy snacks." The majority opinion finds a government marketing order requiring raisin growers (and "handlers," which I treat as identical for simplicity) to set aside a potentially large subset of their raisins for the government is a Taking of the "physical appropriation" variety. In an earlier blog post I criticized Justice Sotomayor's dissent as in tension with her majority opinion--released the same day--in Los Angeles v. Patel .  In the column, I juxtapose the Horne majority, written by CJ Roberts, with his dissent a few days later in Obergefell v. Hodges . Whereas the Obergefell dissent's multiple comparisons of the majority opinion in that case to Lochner v. New York seem misplaced, the implicit reweighing of government policy with respect to economic ...

by Neil H. Buchanan Professor Dorf and I each recently wrote ( here and here ) about the crisis in Greece's economy and the German-led effort to punish the Greeks for their supposed sins.  I plan to write my next Verdict column about the insanity that has prevailed in that standoff thus far.  Today, however, I want to look at how one of the supposedly reasonable, so-called centrist anti-deficit groups in Washington has tried to exploit the Greek crisis for domestic political gain.  As we shall see, their approach to the issue exposes not just their political opportunism, but their lack of understanding of macroeconomics as well. In a Dorf on Law post earlier this year, I discussed an analysis by one of the "deficit scold" think-tanks -- organizations that exist solely to stoke fears about the U.S. debt situation.  Referring to one such organization, I wrote: Because this group is indistinguishable from any of the other astroturf deficit-scold groups that l...

by Michael Dorf Politics will play a large role in shaping the pending debate in Congress over whether to pass a resolution rejecting the executive agreement with Iran. Even before they had an opportunity to review the agreement, hawkish and otherwise merely anti-Obama Republicans were busy denouncing it as a bad deal or even as appeasement with Obama cast as Chamberlain and Iran cast as Nazi Germany. Meanwhile, those pro-Israel Democrats who (mistakenly) think that Jewish American voters take their cue from PM Netanyahu and AIPAC are at best lukewarm, not wanting to appear soft on Iran but also not wanting to undercut a Democratic president. As a substantive matter, the coming debate will likely focus on nitty-gritty issues, such as whether the inspections regime will be effective. Those issues are important and, subject matter aside, I am sympathetic to the notion that Congress should play a role in approving or disapproving major international agreements. But I want to suggest h...