Dorf on Law

-- Posted by Neil H. Buchanan My FindLaw column this week, published yesterday , discusses the recent attack on the IRS building in Austin. My major purpose in writing the column was to defend the IRS and its employees against the irresponsible and utterly false attacks from those politicians and commentators who pander to anti-IRS and anti-tax sentiment. As I often tell my students in the basic Federal Income Taxation course, the truly surprising thing about the IRS is how well it is run. Even though it is systematically and chronically under-funded (precisely because of the political pressures that reflect -- and reinforce -- public hatred of the agency), and even though it faces the Herculean task of interacting each year with virtually every adult and business in the country, it has an enviable record of professionalism. Consider the records of just a few other agencies (public and private). During George W. Bush’s tenure, the Department of the Interi...

By Mike Dorf As promised yesterday , here is a further thought on my latest FindLaw column . In the column, I argue that issues of constitutional law are never fully settled, because they are always open to the possibility of re-examination. If I'm right, that creates a problem, because one of the basic purposes of law is what is sometimes called "the settlement function," i.e., the law's ability to resolve questions so that everyone knows the answer and energy is not wasted fighting over the law's meaning. Settled law permits people to rely on the law, and thus to make investments based on relatively certain expectations. People who think the settlement function of law very important relative to other functions of law (such as substantive justice) tend also to have a commitment to rules rather than standards and, typically, to static interpretive approaches (such as originalism) rather than dynamic ones (such as living Constitutionalism). Constitutions the...

By Mike Dorf My latest FindLaw column explains how nothing in constitutional law is every really, finally settled. It's always open to being disrupted. Tomorrow I'll add some further illustrations. Today, I'll elaborate on an oblique reference in the column to a "recent small-government manifesto." Those who follow the link will find that it points to something called The Mount Vernon Statement ("MVS"). The MVS was unveiled last week by a small collection of somewhat prominent (albeit old) conservatives. It was meant to pay homage to the late William F. Buckley's Sharon Statement of fifty years earlier. Herewith a few observations about the MVS: 1) Like the original Buckley manifesto, the MVS is highly libertarian. The Constitution to which its authors commit themselves is not the current version, which includes an assortment of amendments moving the country in a more egalitarian direction (not the least of which are the Reconstruction...

Yesterday's SCOTUS per curiam opinion in Wilkins v. Gaddy , would not be noteworthy were it not for the remarkable separate opinion by Justice Thomas, joined by Justice Scalia. In 1992, in Hudson v. McMillian , SCOTUS held that abuse of a prisoner can constitute cruel and unusual punishment even if no serious physical injury results. In Wilkins , the Court reversed a 4th Circuit decision that essentially ignored Hudson . The 4th Circuit affirmed a district court decision dismissing a prison abuse lawsuit because, in the judge's view, the injuries suffered by the plaintiff were "de minimis." In a moment, I'll quote the abuse allegation, but first let's focus on the Thomas/Scalia opinion. They agree with the rest of the Court that the 4th Circuit approach in Wilkins is inconsistent with Hudson , and thus should be reversed under existing precedent. However, Justice Thomas says (as he did in 1992) that Hudson itself was wrongly decided. According to Jus...

By Robert Hockett One of the more interesting features of Republican opposition to a variety of salutary proposals made by the Obama Administration and the Democratic Caucus in the Congress, I find, is that so many features of these proposals to which Republicans currently -- and flamboyantly -- object originate with ... well, Republicans themselves .    A particularly interesting case in point here is that of the "individual mandate" feature of the health insurance reform measures passed in the House and Senate shortly before the winter break.  That is a feature about which Neil, I, and especially Mike here at DoL have written at length both here and elsewhere from a number of angles -- fiscal, financial, and constitutional alike.  What is interesting about the mandate from the angle of vision I am adopting in this post is the fact that it was originally proposed as an alternative by Republicans  -- Republicans then opposing early v...

-- Posted by Neil H. Buchanan Two weeks ago, The New York Times ran a news article by Eric Lichtblau under the headline: " Lobbying Imperils Overhaul of Student Loans ." In the article, Lichtblau describes an Obama administration proposal (already passed by the House) to save federal money on subsidized student loans, and he explains how the lenders who currently enjoy the subsidies that the proposal would recapture are fighting back with a lobbying blitz. The article is very well-written and informative, a textbook example of reporting without editorializing. Still, there is something vaguely creepy about the tale that Lichtblau tells. His story boils down to this: (1) There was a proposal to save money, (2) The affected industry began lobbying Congress, so (3) The proposal now might fail. Readers might wearily shrug their shoulders and think, "What else is new! Of course the lobbyists will win." That was certainly my first reaction. As I have thought mo...

Posted by Sherry Colb In my column for this week, I discuss a woman (who goes by the pseudonym of "Amy") who was, as a child, a victim of child molestation.  The perpetrator, her uncle, filmed his abuse of her, and the results have been circulating among pedophiles for over a decade.  With an attorney's help, Amy has been seeking restitution from the people whom police have found  in possession of child pornography in which she appears.  Some courts have been quite receptive to her pleas, while others have not.  My column focuses on whether it is just to require people in possession of child pornography to pay compensation to the children or former-children who appear in that pornography. In this post, I want to explore the relation between consumers of the products of abuse and the abuse itself.  I suspect that many pedophiles who purchase and watch child pornography do not consider themselves remotely as culpable as the people who abuse the children ...

By Mike Dorf With the decennial census now under way, a familiar practice has again (and rightly) come under fire : The census counts prisoners as residing wherever the prison in which they are incarcerated happens to be, rather than in the communities from which they originate. However, in nearly all states, prisoners aren't allowed to vote. As a result, the count is depressed for disproportionately poor and minority communities from which prisoners disproportionately come, while the disproportionately non-minority, disproportionately rural communities in which prisons are located get a population bonus. Here I'll try to clear up a little bit of the confusion in the public discussion of this phenomenon. In 2006, Congress asked the Census Bureau to explore the feasibility of counting prisoners at their prior homes rather than in prison. The Census Bureau produced a document raising a host of objections. The biggest problem would be the need to meet with and interview ...

Consider the juxtaposition of two recent profiles of AG Eric Holder. Writing in the current New Yorker , Jane Mayer describes how Holder "has tried to depoliticize" decisions about such matters as how and where to try terrorism suspects. Although she notes that Holder is not politically naive, she does portray a struggle between Holder's view and the political shop in the White House (read Rahm Emanuel). Meanwhile, an article in yesterday's NY Times may suggest the exact opposite by its title--" After 9/11 Trial Plan, Holder Hones Political Ear ." However, the substance of the Times article conveys much the same picture as Mayer's portrait in The New Yorker: despite his extensive political experience, Holder is temperamentally disdainful of politics. In the wake of the Obama Administration decision not to try KSM in NYC, Holder is trying to be more pro-active politically, but it hardly comes naturally. Here I'll express skepticism about the po...

By Mike Dorf A new blog, Religiousleftlaw.com , has just been launched by three of my Cornell colleagues-- Steve Shiffrin , Eduardo Penalver , and DoL contributor Bob Hockett --along with sometime DoL commenter Patrick O'Donnell and prominent con law scholar Michael Perry . Although I have previously expressed skepticism about the ability of religious language to win over the great middle of Americans who profess some degree of faith, I could be wrong about that, and in any event, the blog promises much of interest to progressives regardless of their religious views and to everyone interested in ideas. Kudos! Now a short comment on a post on religiousleftlaw.com by O'Donnell entitled Marxist & Buddhist? . O'Donnell provides an extended quotation from a 1993 speech by the Dalai Lama in which he explains his goal of reconciling Buddhism and Marxism. There is much in what the Dalai Lama says here with which I agree--and that shows him to be a very sophisticated th...

-- Posted by Neil H. Buchanan In my FindLaw column this week (published here yesterday), I return to two of my favorite topics: Social Security, and intergenerational obligations. Many readers of this blog will recall that I have been rather obsessed with the question of justice between generations for the last several years. (See, e.g., here , here , and here .) In fact, my sabbatical is largely devoted to expanding my work on generational justice beyond the fiscal policy questions that motivated my interest in the subject in the first place. Until now, I have been surprisingly successful in avoiding bringing this part of my academic life into my FindLaw columns; but in this case, I was provoked: David Brooks wrote an especially uninformed and misleading column last week repeating the "greedy seniors are cheating the young" mantra that sparked my earlier work in this area. The bulk of my FindLaw column is devoted to summarizing the major analytical finding in the art...

By Mike Dorf (Updated with addendum at the end) In my latest FindLaw column , I use the occasion of a recent University of Florida Law School speech by Justice Clarence Thomas as an occasion for talking about the "noble lie" of formalism in the law. Here I want to raise a largely unrelated issue: Why does Justice Thomas almost never ask questions from the bench? During the Q&A session, he gave what I thought at first was a joking answer in response to a question of what a lawyer can say to convince him that the lawyer's client should win the case. Justice Thomas said that it would help "if my colleagues would let me talk." I took the line to be a joke because, of course, his colleagues do "let" him talk; he simply chooses not to talk in the vast majority of cases. The usual question is why not. Based on my admittedly unscientific methods, I think that by far the most common hypothesis among people at least loosely familiar with the Cour...

By Mike Dorf Yesterday the President committed himself to "a sense of purpose that transcends petty politics.” Who could be against that? To be for petty politics one would have to be, well, petty. I'm not against compromise. I also agree with President Obama's stated concern that compromise doesn't mean that he simply caves into whatever the Republicans want. As he put it, "I'm willing to move off some of the preferences of my party in order to meet them halfway, but there's got to be some give from their side as well." To be sure, in my view, much of what the Dems are proposing is already a compromise of preferences of the core of the Democratic Party--e.g., the unwillingness to propose single payer on health care. But even putting that criticism aside, I wonder whether the President isn't making a fundamental miscalculation here in assuming that the Republicans actually care about their own policy preferences rather than simply obstr...

By Paul Scott Yesterday on NPR I heard a report that Nebraska Democrat Senator Ben Nelson will join with Republicans to oppose the nomination of Craig Becker to serve on the National Labor Relations Board. Purportedly this means that it is likely that "Democrats cannot find the 60 votes needed to overcome a GOP filibuster of the nominee." I honestly don't know a thing about Craig Becker and why he should or should not be appointed to the NRLB. But hearing this filibuster talk yet again focused for me how pathetically weak are the Democrats. My question for the Democrats is a simple one. Why are you conceding defeat on this - and more importantly on Health Care - without actually forcing a filibuster? It is not as if the Republicans can just say "the Democrats don't have sixty votes, so they lose." Actually carrying out a filibuster is a painful process that, among other things, essentially involves living in the Senate Building. So make them do ...

By Mike Dorf Last week, in a column and accompanying blog post , Sherry highlighted a peculiar Kansas law/interpretation of law, under which force in self-defense is legal but the threat of force is not.  File this post under "anything Kansas can do, Texas can do weirder." Yesterday's NY Times carried the story of a nurse who is being prosecuted for reporting on a doctor with whom she worked who was, she said, operating unsafely and unethically.  The weird part: Even though she appears to be legally protected against firing, suspension and "other adverse personnel action" by a Texas whistleblower protection law , nurse Anne Mitchell is now facing a criminal trial for "misuse of official information" for reporting the doctor's missteps to the medical board. The Times story presents the case as more of a contradiction than it necessarily is.  The whistleblower law only protects reports in good faith, and the prosecution in the criminal case,...

-- Posted by Neil H. Buchanan Because of FindLaw's publishing schedule, there will be a change in the weekly schedule on Dorf on Law. On Thursdays, Mike Dorf and Sherry Colb will (on alternate weeks) discuss their newest FindLaw pieces. I will permanently move to Fridays, even on the weeks when I have not written a FindLaw column. Posts on Mondays through Wednesdays (and occasionally on weekends) will continue to be provided by Mike, and every now and then by other DoL bloggers. I'll be back this Friday with further discussion of the deficit brouhaha in Washington. Thank you for reading Dorf on Law.

-- Posted by Neil H. Buchanan In two earlier Dorf on Law posts -- " Tech for Tech's Sake ," a bit more than two years ago, and " The Third Dimension ," last Spring -- I commented on the use of three-dimensional technology in modern movies. (In the original post, I drew an analogy between 3-D movies and a recent trend in the academic legal literature. I have since dropped any pretense that this is anything but a discussion of movies by an amateur film buff.) Referencing 3-D versions of "Beowulf," "A Nightmare Before Christmas" (which I had also seen in 2-D years before), and "Monsters vs. Aliens," I expressed surprise that a fringe technology that had been around since the 1950's had suddenly become the new fad in Hollywood. On the merits, I concluded that 3-D technology not only was not a revolutionary breakthrough but was possibly even a distraction that diminished the movie-going experience. For some reason, Hollywood has i...

 By Mike Dorf During the last economic contraction--after the bursting of the dot-com bubble at the turn of the century--a number of prominent law firms appeared to be using the following stratagem: Instead of laying off associates, they were letting people go for ostensibly poor performance.  To the outside world this looked better than layoffs because it did not communicate that business had slowed down, but to the young lawyers who were let go, it was cruel.  On top of the loss of a job, they were saddled with the stigma of having been fired for performing badly, making it that much harder to get a new job.  Strictly speaking, the dismissed lawyers perhaps could have sued the firms for defamation if and when they told prospective employers that the former lawyers had performed badly, but suing a former employer is almost never in the interest of someone trying to find a new employer.  And so the young lawyers simply had to take the hit. In the current eco...

By Sherry Colb In my column for this week, I examine a Kansas Supreme Court decision holding that under Kansas law, permissible self-defense includes only actual violence, not the threat of violence.  This means, in the particular case, that a defendant who threatened to hurt his alleged assailant as a means of self-protection may be prosecuted without resort to a self-defense instruction for the jury.  If the defendant commits no actual violence, in other words, he could not have acted in self-defense.  The column discusses the perversity of this ruling and notes that it effectively illustrates the pitfalls of unthinking "plain meaning" interpretation of statutes. Here, I want to focus on the difference between violent threats and violent actions, because there are some potentially noteworthy distinctions.  Along one dimension, of course, threats are less harmful than actual violence.  Having an assailant say "I will shoot you if you don't hand over your ...

By Mike Dorf As I noted last week, I recently attended a conference on The Judiciary and the Popular Will.  In my earlier post on the conference, I previewed my paper.  Here I'll say a little bit about some of the other papers. The presenters included a fair number of political scientists and poli-sci-oriented law profs.  Both groups were interested in measuring the size of the effect of public opinion on Supreme Court decision making and the mechanism by which it is transmitted.  Supporting data will come eventually in the published papers, but a preliminary observation is in order: I was surprised by the degree to which the number crunchers found evidence of a direct effect of public opinion on Supreme Court decisions.  I had taken for granted that the chief mechanism by which public opinion influences the Court is judicial appointments: Presidents select and Senates confirm Justices who, broadly speaking, share the public's values.  Nothing I lear...