Dorf on Law

Do today's young people have valid reasons to believe that they are being treated unfairly in the great intergenerational handoff from the Baby Boomers (and soon Gen X) to those who will follow?  The answer, frustratingly, is yes and no.  I have been writing about generational justice for most of the past two decades, and trying to figure out whether anyone is being cheated or is receiving undeserved windfalls remains a fuzzy and highly contingent inquiry. The fact, however, is that younger people in the US and some (many? most?) other countries do largely believe that they are on the wrong side of the tradeoff, and there are some strong arguments for the "yes, you're being cheated" side of the debate -- though, to be sure, there are some utterly fatuous arguments as well.  There are, moreover, specific policies and practices that could be changed to help out younger people as they take their first steps into adult life. As a counterpoint, my  Dorf on Law   colu...

One of the most interesting early developments regarding the Internet was that all legal efforts to protect children from sexual material were struck down. In 1997, the Court struck down the poorly drafted Communication Decency Act. And in 2004, the Court struck down the Child Online Protection Act. One of the Court's major arguments in these cases was that the prohibitions would inevitably prevent adults from their right to access these materials. The 2004 law, however, was modeled closely after the three-part Miller obscenity test; yet even that was not good enough. And in the 2004 case, there were supposedly less restrictive alternatives. Further, in the 2004 case, both Justice Kennedy and Justice Breyer used strict scrutiny but came out on opposite sides. Kennedy said that filtering devices were a better blocking mechanism, even though he did not mandate their purchase. Breyer wrote a dissent that decimated the filtering argument, and argued that criminalizing the sending o...

Greetings. President Carter's death is a sad event, especially given his humanitarian actions. But I actually have a tiny connection, though I never met him. In 1980, I was an intern for Senator Paul Tsongas. As the Convention approached, we all went to NYC to assist. I was given the job of handing out VIP credentials, though I certainly did not fit that description. But it's fair to say that these Conventions have some partying. So several interesting things occurred. Somehow I became friends with an important Democratic figure's son, who was my age. So he actually got me into Studio 54 one night. I am very much the opposite of cool but for one evening...I saw no drugs but I did see women in cages dancing above the ground. That was odd. More importantly, I snuck on to the floor of the Convention one night by riding a Carter oriented bus and using a credential. This was the night Senator Ted Kennedy gave one of his most famous speeches about liberalism. Even though he was ...

Special Counsel Jack Smith's report on the aborted prosecution of Donald Trump is noteworthy mostly for how noteworthy it isn't. I agree completely with what Professor Marty Lederman wrote in a thread on BlueSky : "The vast majority of what's in the report is not only uncontested but also was well-known to everyone, at least in broad detail, in February 2021. And it ought to be beyond controversy that a person who acted as Trump did is manifestly unsuited to hold any office, let alone the presidency." The recitation of facts takes up much less than half of the report. The report points to the overwhelming evidence that Trump knew that his claims of election fraud were false and that therefore he acted intentionally to subvert the election result. The bulk of the report addresses two issues: (a) it painstakingly explains why Trump's conduct was criminal and prosecutable, even after the Supreme Court's immunity ruling in Trump v. United States ; and (b) it ...

Regular readers of this blog know that I self-identify as a legal realist and have authored many posts about how law plays only a minimal role in Supreme Court decisions compared to the justices’ personal values, politics, and experiences. While my view that the "Court is not a court," only applies to the Supreme Court, legal realism as a descriptive doctrine is much broader. Every day in this country, state and federal judges make important and consequential decisions where they have almost complete discretion to resolve the controversy any way they wish to under applicable legal standards. When they do so, law plays less of a role in those decisions than most people think. For the purposes of this blog post, I will define legal realism as the view that in the actual resolution of concrete cases, judges frequently are not bound or even guided very much by formal legal materials such as constitutional provisions, statutes, regulations, or judicial precedents, and that there...

One of the most widespread beliefs in many modern societies is that people should own their residences rather than renting them.  We hear people say things like "owning a house is the only middle-class path to financial security" and "paying rent is just throwing your money down the toilet," spoken as if those assertions are unchallengeable truths rather than what they actually are: either misleading oversimplifications or outright silliness.  Either way, the results can be quite harmful to people who follow the conventional wisdom. Although home ownership has long been a key element of the mythology of "the American dream," the pervasive faith in the idea that owning is per se superior to renting is strong in other wealthier countries as well.  Here in the Great White North, I have learned that owning one's residence is part of "the Canadian dream," which at first made me wonder when the Canadians copied "our" dream; but in fact, i...

Note to readers: The column below, published on May 3, 2012, has special personal relevance today, as I have now re-exited the propertied class and become a vagabond. I emphasize in particular the final two sentences of the piece, which capture my vibe today: “For many people, … it will make sense to buy rather than rent. If I ever need to sell, I will be happy that such people exist.” The policy issues discussed in the piece are as relevant as ever, if not more so, as I will discuss in an upcoming column. Professor Buchanan Rejoins the Propertied Class Hypocrisy!! The State of Maryland recently registered a deed for fee simple ownership of land (on which a single-family home sits) to one Neil H. Buchanan. Granted, there are a dozen or so Neil Buchanan's in the world,  including  an English "Television presenter/producer, musician, guitarist, Actor" who once hosted a children's TV show called "Motormouth." There is also a mugshot of another Neil H. Buchanan ...

This morning, the New York Court of Appeals--the state's highest court--rejected Donald Trump's application in that court to forestall his sentencing on the hush-money-payment-coverup convictions, currently scheduled for tomorrow. The rejection , which was not accompanied by an opinion, is actually good news for Trump, because it removes one reason why the U.S. Supreme Court might reject his parallel request from that Court . So long as Trump was still seeking the same relief from the New York courts, SCOTUS might have rejected Trump's application on the ground that it was premature. With no more options for staying sentencing in the New York courts, Trump's procedural path to the Supreme Court is clearer. Is he entitled to a sentencing delay? He offers three grounds, only one of which, in my view, even comes close to a basis for relief from SCOTUS. I'll consider them in a different order from how they're presented in Trump's brief. First, Trump argues that ...

Henry P. Monaghan died last week. He was a towering figure in Federal Courts and Constitutional Law. On Verdict , I have a new column that describes the ongoing relevance of two of his better-known law review articles, but that barely scratches the surface of Henry's output. Henry did very important work on the overbreadth doctrine, first articulating the proposition that everyone has a right to be judged by a constitutionally valid rule of law. He explained how the concurrence in Bush v. Gore was less of an outlier than it appeared in real time, placing it within a line of cases in which the Supreme Court reviews state court rulings of state law non-deferentially in order to protect federal interests. He gave coherence to a wide range of SCOTUS practices that seemed unmoored by conceptualizing them as "constitutional common law."  He grappled comprehensively with the relation of supranational courts to domestic doctrines limiting the Article III judiciary. And much m...