Dorf on Law

Happy new year!  Sorry, that's all I've got today. Peace, MCD

By Mike Dorf It is tempting to view the modest but real accomplishments of the lame-duck session of Congress as heralding a new era of bipartisanship.  And sure enough, both center-right and center-left pundits (e.g., Ross Douthat and Thomas Friedman  of the Times) have recently succumbed to just that temptation--with each adding that it's easier to compromise on cutting taxes and spending money than on raising taxes or cutting budgets.  I think this view misreads the core dynamic at work in the lame-duck session. Given the obvious parallel between the mid-term elections of 1994 and 2010, the Obama White House has been looking to Bill Clinton's example as a roadmap to governing and to winning re-election in 2012.  It is hard to know exactly what aspects of the Clinton playbook the Administration will borrow, just as it is hard to know to what extent the Republican leadership will deviate from the quite unsuccessful Gingrichian approach.  But here's an impor...

-- Posted by Neil H. Buchanan This is my final post of 2010. Reflecting on the year, I am genuinely surprised by how much of my time here on Dorf on Law (as well as on FindLaw ) was spent discussing government budgetary issues. Yes, that is my main area of professional interest; but even I would never have imagined that there could have been so much to say about these issues. Unfortunately, there is no shortage of misunderstanding (and worse) about the government's finances; and during a time of severe economic upheaval, the craziest and silliest ideas can gain a foothold in the public's mind. It seemed necessary to respond ... and respond, and respond. Even so, in the spirit of end-of-year musing, I have recently wondered what, among the issues that I write about, truly matters the most. If I could be the proverbial "king for a day," what is the one thing that I would change or fix? One way to answer that question is to engage in a simple exercise in revealed...

By Mike Dorf In the waning moments of the recently-concluded lame-duck session of Congress, and in the waning moments of his remarkable Senate career, Senator Arlen Specter introduced a new bill to restore notice pleading in the federal courts.  Readers may recall that shortly after the Supreme Court's decision in Ashcroft v. Iqbal , Senator Specter proposed a bill that would have restored the pleading standard of Conley v. Gibson .  I was generally supportive of legislatively overruling Iqbal (and Bell Atlantic v. Twombly , known collectively among proceduralistas as " Twiqbal "), but I criticized the original Specter bill because I thought that Conley itself was unclear. As Senator Specter  graciously acknowledged  in a statement in the Senate last week, he was persuaded to change his approach by the criticisms and suggestions passed along to him by myself and 13 other lawyers and law professors.  I am not confident that the substitute bill is...

By Mike Dorf An article in Saturday's NY Times called attention to a seeming perversity in the legal system, especially in New York State: Indigent persons confined in mental hospitals who are the victims of serious torts committed by the State may win a damages judgment but end up having their award substantially reduced or collecting nothing because the State offsets the judgment award by the value of the care which the State has provided gratis.  The Times story recounts some truly horrific stories--including the rape of a patient in a Staten Island facility, who ended up losing more than 40% of her $250,000 judgment this way (and that's before accounting for attorney fees).  Here I want to unpack what exactly is objectionable in this phenomenon. In principle, there is nothing wrong with counterclaims and setoffs.  Suppose A owes B $10,000 to compensate him for work that B performed to improve A's property.  A acknowledges the debt but doesn't have the liquidit...

By Mike Dorf Because I teach a one-semester constitutional law course, I don't spend much time on the Free Exercise or Establishment Clauses of the First Amendment (just one class on each).  One of the things I barely mention in that short time is the question of how to identify genuine religious beliefs.  Over-simplifying the doctrine in this area, I usually tell my students that the courts generally credit testimony that someone sincerely holds a set of religious belief. To be sure, there are rare instances of a judge finding--as an issue of fact--that someone does not in fact hold the religious views she professes to hold or that a system of ritual and belief that has the form of a religion is not in fact a religion.  My favorite example is the 1968 case of United States v. Kuch , in which a Georgetown woman claiming to be the "Primate of the Potomac" in the "Neo-American Church," and thus responsible for supervising the "Boo Hoos" in her regi...

-- Posted by Neil H. Buchanan All of the signs point to 2011 being an important year for Social Security. The Obama Administration seems intent on taking some hacks at the program, with the President's temporarily-forgotten Deficit Commission providing cover for those who want to cut Social Security. (Their mission statement did not even include Social Security reform, but the commission nonetheless decided to weigh in on the program's future. And the Administration applauded.) Some in the Congressional leadership also seem to want to go after Social Security. Last week on C-SPAN, I caught a few moments of an appearance by Steny Hoyer, the current House Majority Leader. Someone posed a question that was essentially what I would have asked: With the Social Security shortfall not even being a sure thing, and with any problem lying decades in the future, why spend time now on Social Security? Hoyer basically admitted that there was no meaningful connection between any propos...

By Sherry Colb In my column for this week, I discuss the case of Plata v. Schwarzenegger , in which the Supreme Court is reviewing a three-judge federal district court's order that the California prisons reduce their overcrowding from 200% of capacity to 137.5% of capacity, within two years.  If the Supreme Court affirms the order, then California will probably have to release approximately 40,000 prisoners (though it can, in theory, build more prisons or pay for prisoners to be transported to facilities outside the state prison system).  The underlying constitutional violation, to which the overcrowding reduction measure is addressed, is a state of medical care that is so deficient that it violates the Eighth Amendment prohibition against cruel and unusual punishments.  Because other approaches to the problem have failed, the California federal court concluded that the only way to remedy the problem is reduce the overcrowding substantially. In my column, I discuss th...

By Mike Dorf Amidst the justified celebration of the repeal of Don't-Ask-Don't-Tell (DADT), we might pause to marvel at the fact that two Republican Senators--Richard Burr (R-NC) and Ensign (R-NV)--voted against cloture but for repeal.  That is unusual, and potentially ominous, in that it suggests that at least for some Senators, the threshold for filibustering a bill is now lower than the threshold for opposing that bill.  Should that inversion broadly take hold, it will become even more difficult that it is now for legislation to pass the Senate anytime the President's party has less than 60 votes. Until the relatively recent past, a filibuster was a rarity.  A Senator who opposed a pending bill or a nominee but did not feel that the issue was overwhelmingly important would vote for cloture and then against the bill or nominee on the merits.  As we have seen beginning some years ago but with greater frequency during the first two years of Pres. Obama's term...

By Mike Dorf Seventeen years after the Supreme Court decided Bowers v. Hardwick --finding the claim to a fundamental right of consenting adults to engage in same-sex sexual intimacy "at best, facetious"--the SCOTUS reversed course.  In Lawrence v. Texas   the Court repdudiated Hardwick and, with it, the homophobia that underwrote the decision.  Now, seventeen years after Congress codified the prohibition on military service by openly gay and lesbian men and women, Congress has voted to repeal that prohibition.  I don't go in much for numerology but I think there may be a lesson in that numerical coincidence. To begin with the obvious, in law and politics, seventeen years is a long time.  Both Hardwick and Don't-Ask-Don't-Tell ("DADT") were heavily criticized from day one. Momentum for their overturning built slowly however.  There were quite possibly the votes on the Supreme Court to overrule Hardwick as early as 1996, when the Court decided Romer v...

-- Posted by Neil H. Buchanan In my FindLaw column this week , I describe the worrisome opportunism of some of the leading progressive commentators regarding the politics of deficits. With the Obama-Republican tax bill becoming law, it has become all too tempting for people like Rachel Maddow and Keith Olbermann to become committed deficit hawks. And really, if you were looking for a good situation in which to oppose a policy's effect on the deficit, the tax cuts for the rich (both income taxes and estate taxes) are Exhibit A. There really are bad ways to increase the deficit, and this is a great example. My problem is that this short-term fun -- not only attacking the bad policies, but pointing to the Republicans' utter hypocrisy about deficits -- feeds the narrative that deficits are bad, bad, BAD. Not just these deficits, but all deficits. And that is not just false, but it is false in a way that completely undermines the progressive agenda. Public investment and counter-cyc...

By Mike Dorf Continuing in a tradition I began a little while back, I offer the exam I recently gave for my first-year Con Law students.  They had 8 hours to complete it.  Because grading the real exams is work enough, I won't comment on any readers' comments.  There are three questions of equal weight. ------------------------------------------------------------------------------------------------------------ Question 1             Under the individual mandate provisions of the Affordable Care Act (sometimes called “Obamacare” by its detractors), a person who does not otherwise have health insurance is required to purchase such insurance if he or she can afford to do so.  Based on the definitions in the Act, that means that any otherwise uninsured person who can purchase health-care insurance for no more than eight percent of his or her monthly income and is above the poverty line, must purchase such ins...

By Mike Dorf In my latest FindLaw column and my post on Monday , I took issue with the framing of the relevance of Romer v. Evans as standing for the proposition that taking a right away is necessarily constitutionally problematic.  Of course, during the oral argument in Perry , the panel understood that rights can sometimes be taken away.  Judge Reinhardt made the point in his colloquy with attorney Charles Cooper.  The judge acknowledged that in general the people of a state can amend their constitution, even taking away rights, but he went on to suggest that this power is limited by Romer , and one question in Perry is whether that limit applies in this context.  As I explained Monday, I don't think Romer stands for the proposition that some rights can't be taken away.  I won't rehash that argument today.  Instead, I want to ask whether, quite apart from Romer,  there are rights that can't be taken away.  Think of today's post as addressing ...

By Mike Dorf In striking down the individual mandate provision of the Patient Protection and Affordable Care Act, Judge Hudson reached a conclusion that I think is pretty clearly wrong, as I've noted before  and as I'll unpack a bit more below.  But first I should say that en route to that conclusion, Judge Hudson did get something important right: He rejected the federal government's argument that because the Act was challenged on its face, it had to be upheld unless, pursuant to United States v. Salerno , the Act would be invalid in any set of circumstances to which it might be applied.  Judge Hudson cited the Supreme Court's decision in City of Chicago v. Morales  for the proposition that the Salerno no-set-of-circumstances test is not generally the law.  ( Morales and other opinions by Justice Stevens in turn cite my 1994 Stanford Law Review article for this proposition.)  Even more importantly, Judge Hudson pointed out the oddity of judging the que...

By Mike Dorf One of the most intriguing aspects of the Prop 8 litigation concerns the question of whether California (and other states with similar laws) made it more likely that its law would be found unconstitutional by extending the benefits of marriage to same-sex couples without the word marriage.  The competing views go as follows: On the one hand, having (more or less) extended all of the tangible benefits of marriage to same-sex couples, California has lost the ability to claim certain government policies as rationally supporting its decision to withhold the term "marriage."  For example, suppose the government claims that children do best (other things being equal) if raised by two parents of the opposite sex.  I happen to think this claim is false, and even if it were true, I don't think it would be a sufficient basis for denying same-sex couples the right to raise children (either those biologically connected to one or both of them or adopted children)--but...

-- Posted by Neil H. Buchanan This week's news has been dominated by discussion of the deal between President Obama and Congressional Republican leaders on taxes. In the current state of affairs (as of roughly 10pm last night, which is the last time I checked), House Democrats have announced near-unanimous agreement that they will not vote for the current version of the deal, and still-Speaker Nancy Pelosi will not bring such a bill to the floor. No one is saying what will have to change before the House Democrats go along. Herewith, a few strands of thought on matters economic and political: -- One way to view the deal is to simply add up the numbers and compare which party's priorities received more money. The (generally excellent) economics writer for the New York Times, David Leonhardt, summarized it this way : "Of its estimated $900 billion-plus cost over two years, roughly $120 billion covers the high-end tax cuts and the estate tax cut, $450 billion covers Mr. Obam...