Dorf on Law

Posted by Sherry F. Colb In my column for this week, I discuss the case of a prisoner, Paul Cortez, who has been unsuccessful in his efforts to persuade prison authorities to supply him with vegan food in prison.  About a year ago, Cortez became a vegan when he came to see the consumption of animal products (accurately) as participation in unjustified violence toward nonhuman animals.  My column takes up the questions whether Cortez is entitled to accommodation under a federal statute (RLUIPA) and why, even if he is not, a decision to refuse to facilitate a commitment to nonviolence in prison may be independently ill-advised. In this post, I want to explore tentatively the relation between ethical veganism (by which I mean the decision to avoid animal products because the violence involved in producing such products is wrong) and conventional religion, as a question separate from the doctrinal one of whether statutory and constitutional protections for religious exercise ...

By Mike Dorf On Thursday of last week, I gave a lecture in the "Distinguished Lecture Series" at Drake University on the topic of "Same-Sex Marriage, Labels, and Social Meaning." Readers interested in figuring out whether I managed to distinguish myself for anything other than the dark circles under my eyes, frequent blinking, and long-windedness should feel free to check out the recording ( windows media here , mp3 audio here , mp4 video here ). The early draft of the paper on which the lecture is based--like the lecture itself--is an effort to make sense of what's at stake in cases challenging state laws that offer all of the legal benefits of marriage but not the term "marriage" itself to same-sex couples interested in entering civil unions. The answer, which I think is rather obvious and which is prominent in the state court decisions that have recognized a same-sex marriage right is a right not to be relegated to the status of second-class c...

By Mike Dorf As Barry Friedman observes in The Will of the People , one of the most striking features of the last 20 years or so is that the Supreme Court has come under sustained criticism from both the left and the right for its ostensible judicial activism. Each side, of course, has been unhappy about different cases, but the combined effect was and remains unsettling. As the median Justice, Justice Kennedy, in particular, is simultaneously denounced as a radical lefty for supporting gay rights and the rights of detainees, and as a radical righty for voting to invalidate affirmative action and campaign finance regulation. Both sides could be simultaneously right. If one thinks that in general courts should defer to the outputs of legislative bodies, then a jurisprudence that invalidates some laws as insufficiently liberal and other laws as insufficiently conservative would be highly problematic. But few criticisms of the Court take this form. In general, critics tend to den...

-- Posted by Neil H. Buchanan With the passage of the big health care bill, the media is beginning to ask: What will fill the void? One favorite candidate is Social Security. In my FindLaw column next week (and, most likely, my DoL post next Friday), I will discuss the current state of the Social Security debate more broadly. Here, however, I will focus on a news column in yesterday's New York Times, an article that I described in an interview on a San Francisco radio show as "completely irresponsible," adding that "[t]here's no reason why it should have been written at all, much less put on the first page." The article in question, " Social Security to See Payout Exceed Pay-In This Year ," included a subtitle in the print edition: "At Tipping Point Years Ahead of Projection." After I describe the underlying facts and the report from the Congressional Budget Office on which the article is based, I will explain why my assessment of t...

By Robert Hockett Now that Senator Dodd has released his proposed plan for finance-regulatory reform, some DoL readers might appreciate a quick breakdown of its principal provisions, along with a brief bit of commentary. For what it might be worth, I think in sum that the bill represents a helpful, if nevertheless still but tentative, step forward. Among other things, it would bring the following long-awaited improvements to our presently hole-riddled 'system' of financial regulation. First, the bill would impose more careful oversight of, and potentially required downsizing of, financial firms that approach 'too big to fail' size. It also would require these firms -- either in addition to or rather than taxpayers -- to finance a sort of 'bailout insurance' fund to the tune of $50 billion. Comment: It's often been heard of late that 'too big to fail' should be understood to carry the entailment 'too big to permit.' I confess to agnosticis...

By Paul Scott This is just a short note on an effect of the new legislation as I read it. Heath-care costs to individuals have been capped at something less than 2.5% of an individual's taxable income. This comes about by the interplay of three provisions: 1) The prohibition of denying coverage based on pre-existing conditions; 2) the rate setting rules; and 3) the maximum penalty for going uninsured. It may be the case that these three never significantly intersect. But I suspect they sometimes will. Under Section 111, the existence of a pre-existing condition cannot serve to limit or deny coverage. Under Section 113, there are only three factors effecting rates for an individual: age, location and family status. That someone may have a pre-existing condition is not grounds for a different rate. Under Section 59B, individuals without acceptable health-care pay a tax equal to 2.5% of their adjusted gross income after subtracting out the applicable exempted amount ...

By Mike Dorf My latest FindLaw column addresses an issue raised by the abortive effort in the House of Representatives to pass health care reform via a "self-executing rule": What weight should be given to longstanding congressional practice in constitutional interpretation? (Short answer: Some.) Here I want to post a letter that UC Berkeley Law Professor Dan Farber and I sent to Representative Slaughter, Chair of the House Rules Committee, back when the self-executing-rule option was still on the table. After the letter, I have a few final thoughts on this fascinating little issue. The Honorable Louise M. Slaughter Chair, House Rules Committee 2469 Rayburn, House Office Building United States House of Representatives Washington, D.C. 20515 Dear Representative Slaughter: As teachers and scholars of constitutional law, we are writing to express our strongly held view that the currently proposed self-executing rule for House enactment of health care reform woul...

Posted By Sherry F. Colb Monday of last week, I had the honor of hosting Professor Gary L. Francione here at Cornell Law School, where he gave a lunch workshop to my colleagues and then lectured to the students in my Animal Rights seminar.  Both the workshop and the classroom lecture were fascinating and engaging, and they each exposed the audiences to important ideas and arguments that might have previously been unfamiliar.  In this post, to shed light on some of the issues that arose in the faculty workshop,  I want to focus on some of the questions that my colleagues posed to Professor Francione. Are We Really All Michael Vick? About three years ago, when many people were expressing outrage about Michael Vick’s cruelty to dogs, Professor Francione published an editorial entitled “We’re All Michael Vick.”  In it, he argued that what offended so many people about Michael Vick’s behavior toward dogs is morally no different from what most of us do every day:...

- posted by Craig Albert I was struck, in the House votes on the health care bill yesterday, by the urban-rural divide in the vote tally. There are 75 cities in this nation whose population exceeds 250,000, and the total population of those cities is about 55 million. The House members representing 56 of those cities voted in favor of the bill, while those representing 18 voted against (Miami split). The "no votes" came predominantly from small cities. Apart from Fort Worth and Oklahoma City, all of the urban "no" votes were from cities ranked 40th and smaller by population, totaling less than 7 million. Now, if you look at the map, it's easy to see that gerrymandering concentrates Democratic power within cities, while Republican districts are drawn to go to the city border and no farther. But I wonder whether the well-documented disparities between urban and rural areas in availability of health care services has given rise to a difference in attitude tow...

-- Posted by Neil H. Buchanan Last week, Professor Dorf posted some thoughts about the political activities of Virginia Thomas, who is married to Supreme Court Justice Clarence Thomas. Citing reports that Ms Thomas is the leader of a group of anti-government political activitists, Mike concluded that there is nothing unethical about what she is doing, even though her activities are "disturbing." Indeed. Put another way, the issue really boils down not to process but substance: It is the content of her revealed political views that should give us pause, not that she is doing these things as the spouse of a highly-placed government official. The anti-government groups are (as far as anyone can tell) surprisingly small in number both compared to their recent influence on American politics, and also -- both as a cause and effect of that puzzling influence -- compared to the media's fascination with their activities. Even so, it is impossible at this point to preten...

-- Posted by Neil H. Buchanan Last month, I posted " 3-D Fails Another Test ,"in which I returned to the question of whether 3-D technology in movies is much ado about nothing. Having seen "Avatar" first in 2-D, then in 3-D, I concluded that the record-setting film was just as visually awesome in either format, with no extra awesomeness accruing from the newer technology. Given that this was simply my opinion offered on a slow news day, I was not surprised to see readers (both on the comment board, and in private emails) offering both agreement and disagreement with my idiosyncratic opinion. One reader, however, posted something of an invitation on the comment board. Disagreeing with me regarding 2-D vs. 3-D, he added: "Avatar should be regarded as an IMAX 3D movie, that happened to be shown in Digital 3D and 2D because IMAX theaters aren't the norm." Intrigued, I decided to see "Avatar" once more, this time in IMAX 3-D. My conclusion: ...

By Robert Hockett Neil has been so persistent, so lucid, and so thorough in addressing current fears -- which for the most part have struck me as what I'll call 'crocodile' fears -- about the longterm U.S. fiscal position that I have felt no need to comment on the subject here thus far.  That has been the case notwithstanding some awareness of and even more interest in the subject at my end.  I've nevertheless intended to offer a few cents of my own on the matter for a while now, and so, with Neil's blessing, I post on it now. What I wish to highlight and address is a curious gap that I find in much current discussion of U.S. federal expenditures and the federal deficit.  Specifically, I find it remarkable that while tax-cutting is widely acknowledged -- particularly by Republicans and 'Tea Party' types -- to be capable of generating higher tax revenues and hence reduced deficits in the longer term, the counterpart claim that can be m...