Dorf on Law

-- Posted by Neil H. Buchanan It is a bit awkward to write about the so-called Tea Party Movement, because it seems fairly clear that the "movement" is rather small and fractured, that it is to a significant degree an "astroturf" movement driven by organizations like Dick Armey's FreedomWorks lobbying group, and that it has been the beneficiary of exaggerated coverage by television news organizations. If nothing else, people in colonial dress shouting insults about the president make for a good show. Fewer than a thousand people show up at well-advertised protests, and the group's first "national convention" was little more than a poorly-attended series of photo ops; yet all of the major news organizations have lavished coverage on the groups' supposed political ascent. The numbers, however, seem to add up to no more than -- and probably a lot less than -- Ross Perot's supposedly game-changing Reform Party in the 1990's; so skepticis

By Sherry F. Colb In my column  for this week, I discuss the new Nebraska law that, when it goes into effect, will prohibit abortions after twenty weeks.  The reason for the selection of twenty weeks is the belief that this is the point at which a fetus becomes capable of feeling pain, i.e., sentience.  My column takes up the question of what implications the sentience line in an abortion law might have for our thinking about animal rights. In this post, I want to explore a different feature of commonality and contrast between those who support fetal rights and those who support animal rights:  the impact of exposing the otherwise-hidden violence involved. I still remember seeing my first anti-abortion poster.  I was in college at the time, and I was spending a summer internship as a (nonprofessional) counselor at a rehabilitation center for mentally ill clients.  The building where I worked had many floors, and one floor was rented by an abortion clinic. As a result, every mor

By Mike Dorf On Monday, the Supreme Court granted cert in Schwarzenegger v. Entertainment Merchants Ass'n   (EMA).   The case involves a California law restricting the sales to minors of certain violent video games .  The Ninth Circuit struck the law down , declining, as other circuits had declined, to extend Supreme Court precedents permitting the government to restrict children's access to some erotic-but-not-obscene-for-adults materials to cover violence.  The Supreme Court had apparently been holding the case pending its resolution of Stevens (the animal cruelty depictions case).  Had the Court in Stevens accepted the argument that depictions of animal cruelty are sufficiently similar to child pornography to warrant a categorical exception, then it might have "GVR'd" (granted cert, vacated, and remanded) the EMA case for reconsideration.  The Ninth Circuit said in EMA that it would not create a new categorical exception for "speech as to minors,"

By Mike Dorf I recently received the copy-edited version of my forthcoming book, The Oxford Introductions to U.S. Law: Constitutional Law (with Trevor Morrison ).  In the chapter on suspect classifications in equal protection I had used the term "mentally retarded," following the language of the leading case on the subject, Cleburne v. Cleburne Living Center .  The copy editor suggested substituting "developmentally disabled," noting in the margin that although "mentally retarded" is still in use, it is regarded as offensive.  Not wanting to give offense, we made the change.  (A friend since noted that in her view "developmentally delayed" is preferable to "developmentally disabled" although "delayed" strikes me as the wrong term for an adult.)  Here I'd like to reflect a bit on how and why the names for disempowered groups change over time. Let's begin with disability.  Many years ago, persons with physical disab

-- Posted by Neil H. Buchanan In my most recent FindLaw column (available here ), I extend the analysis is my last Dorf on Law post ( here ) of the claim that nearly half of Americans do not pay taxes. Many mainstream analyses of that claim rightly called it out as a distortion, because it conflates federal income taxes with all taxes. The more interesting question is whether it would really be a bad thing if some people paid no taxes at all, a question that I raised at the end of my DoL post and focused on exclusively in the FindLaw column. After pointing out the impossible line-drawing problem raised by assertions that all (non-poor) citizens should have a "minimal stake in financing the government," I offered the following analysis: (1) Some people receive benefits through the tax system, making them "nontaxpayers," while others receive benefits through other agencies of government, making them "taxpayers" who receive benefits in a formally separate w

By Mike Dorf There is a longstanding debate about to what extent Senators may vote against an otherwise professionally qualified Supreme Court (or other judicial) nominee based on disagreement with that nominee's judicial philosophy or ideology.  At some level, of course, the answer is that Senators can vote however they want on such matters, constrained only by politics.  But in practice there was, until relatively recently, a debate that pitted the following two positions: 1) The only legitimate grounds for opposing a nominee are professional qualifications.  Under this view, the President gets to pick Justices who share his views about the law and even Senators who hold quite different views must then vote to confirm, absent such disqualifications as incompetence or lack of judicial temperament. versus 2) Senators are entitled to vote against an otherwise professionally qualified nominee where that nominee holds ideologically "extreme" views.  Under this view,

By Mike Dorf In my latest FindLaw column , I discuss the evolution of Justice Stevens from a moderate conservative to the "leader of the Supreme Court's liberal bloc."  I offer reasons why, other things being equal, Justices are more likely to become more liberal over time than more conservative.  My diagnosis, with a wink at Stephen Colbert ("Reality has a well-known liberal bias"): The law has a liberal bias.  (Read the column to see what I mean.)  In light of my analysis, how do we account for the fact that the Supreme Court has not gotten more liberal over the last 40 years?  Herewith, a few factors: 1) Maybe I'm just wrong and the law doesn't have a liberal bias. 2) The Court will shortly have 4 Democratic appointees and 5 Republican appointees but for most of the last 40 years, there have been substantially more Republican appointees than Democratic ones.  Nixon appointed 4 Justices (Burger, Powell, Blackmun, Rehnquist), Ford 1 (Stevens), Car

By Mike Dorf (Below is a slightly amended version of the original post, modified to clarify my argument in response to a private email.) Three Justices who were on the Supreme Court in 1989 remain on the Court today: Justices Stevens, Scalia and Kennedy.  That was the year the Court decided Texas v. Johnson , finding that a state could not, consistent with the First Amendment, forbid flag desecration.  Justices Scalia and Kennedy joined Justice Brennan's majority opinion.  (So did Justices Marshall and Blackmun.) Justice Stevens dissented (as did CJ Rehnquist and Justices White and O'Connor).  The Stevens dissent was less emotional than that of the Chief Justice but still wholly unsatisfying as a matter of logic.  It boiled down to the assertions that a) the flag is a unique symbol and b) permitting flag desecration would tarnish the flag as a symbol.  Assertion a) is inherently untestable, while b) has proven false.  If anything, the legalization of flag burning has made

By Mike Dorf* I hate to be the one to say "I told you so" (oh, all right, I love it), but based on reports of the oral argument yesterday, it appears that the Christian Legal Society may become the victim of its own aggressive legal strategy.   In his opening brief on the merits and his reply brief , Michael McConnell pressed the claim that Hastings Law School does not even-handedly enforce its "all-comers" rule against all student organizations.  Rather, McConnell said, the school had singled out the Christian Legal Society for adverse treatment.  Yet as Hastings , respondent-intervenor Hastings-Outlaw , and respondent's amici (including the AALS , represented by yours truly) noted in our briefs, the parties stipulated before the district court that Hastings in fact has and enforces an all-comers rule.  We suggested that if the Court thought the case turned on whether Hastings discriminates against the CLS based on its religious viewpoint, then it should Di

By Mike Dorf In my next FindLaw column (available later this week) I'll discuss the evolution of Justice Stevens's views and offer some general thoughts on what leads moderates to become more liberal over time.  Here I want to offer a comment on a front-page story by Adam Liptak in yesterday's NY Times.  Liptak quotes a number of studies and sources in support of the general proposition that in recent years, Presidents (especially Republican Presidents) have gotten better at screening out Justices susceptible to ideological drift.  That's broadly consistent with a 2007 article of mine (not cited in the Times story, ahem!), in the Harvard Law & Policy Review. My thesis was that a single factor--substantial service in the executive branch of the federal government--explained why Republican nominees either proved to be generally reliable conservatives (if they had such experience) or ended up as moderates or liberals (if they lacked such experience).  I also hypo

-- Posted by Neil H. Buchanan Yesterday was "tax day," the official filing deadline for federal income taxes in the United States. (Actually, anyone can receive an automatic six-month extension to file, if they submit a simple form and pay a reasonable estimate of their tax liability. But no matter.) The media's Pavlovian coverage of anti-tax protests focused on this year's big talking point from right-wing politicians and pundits: the estimate (which has been available since last June yet managed to emerge just in time for April 15 punditry) that roughly 47% of all taxpayers will have zero net federal income tax liability for 2009. Here, I will run through some of the obvious ways that that number is being used to dishonest effect. Most of these points, happily, have already been made in prominent news outlets; but the dishonest claims continue unabated. I will then address a more fundamental question: Would it really be bad if large numbers of people paid no taxes

By Sherry Colb In my column this week, I discuss a Ninth Circuit decision finding that the district court was wrong to grant a preliminary injunction to the National Meat Association, blocking the State of California from enforcing its Downed Animal Law (which prohibits slaughter and requires immediate euthanasia of non-ambulatory animals).  This case raises, among other things, the issue of when "humane" legislation simply condones the infliction of suffering and death on farmed animals and when when it represents a break with the "animals are here for our use" paradigm.  I suggest that one could read the Downed Animal Law as recognizing -- in a negligible but perhaps symbolically significant way -- the non-instrumental worth of nonhuman animals.  In my discussion, I briefly mention a hypothetical law that might ban the slaughter of baby animals and what the impact of such a law would be on the experience of farmed beings.  This brief mention made me think about

By Mike Dorf One of the supposed desiderata of a Supreme Court nominee is the ability to build consensus for a position.  According to what is becoming conventional wisdom, people interested in seeing the Court move to the left (or right) would do better with a moderately liberal (or conservative) Justice who can attract swing Justices than with a firebrand who will cast votes that are individually farther left (or right) but who will alienate those in the middle, and thus move the Court as a whole in the other direction.  Here I want to question the ability of any President to act on this supposed wisdom. To begin, the current Court doesn't have swing Justice s .  It has one swing Justice, Anthony Kennedy.  On the issues that exercise political activists (e.g., abortion, affirmative action, gun control, school prayer, detainees), as Kennedy goes, so goes the Court.  Thus, a President interested in reaching other members of the Court is really simply interested in reaching Just

By Ori J. Herstein Unbound: Harvard Journal of the Legal Left is one of the seventeen journals published by Harvard Law School. As far as I can tell it is a fairly new student-run electronic publication. Unbound seems to aspire to provide a forum and a home for leftish legal academics with a bent towards continental style theory; a place where such thinkers will not be required “to justify [their] existence to unsympathetic critics.” I view this rhetoric as a reaction to unreflective bashing and snobbery often directed from within analytical circles at intellectuals of the continental, post-structural, and post-modern variety. A particular grotesque example of this anti-intellectual trend is the infamous NY Times obituary of Jacques Derrida. In trying to make a small contribution to combat this regrettable phenomenon I actually wrote an article defending Judith Butler from such uncharitable criticism (apologies for this shameless plug). Thus, even though I am a card carrying libe