Dorf on Law

-- Posted by Neil H. Buchanan I did not plan it this way, but my last two Verdict columns ( here and here), and their associated Dorf on Law posts ( here and here ), had a common theme: challenging the conventional wisdom about certain facts. When John Kenneth Galbraith coined the term "conventional wisdom," he was mostly talking about commonly held beliefs about broad policy questions, not about basic facts. For example, it became the conventional wisdom in the late 1980s that "Reagan ended inflation." That is a highly debatable proposition, but it is not falsifiable in the sense that a simple factual assertion can be checked or falsified. Did the sun rise in the South this morning? Who won last night's game? Then there are policy-relevant beliefs about facts. What is most interesting is when the evidence simply does not line up with our widely-held beliefs about what the evidence says -- or what it "must certainly" say. Consider four recent ...

-- Posted by Neil H. Buchanan My latest Verdict column, published today , is mostly a response to a snarky comment by Mitt Romney in a recent debate. (Yes, I realize that the adjective "snarky" is now redundant when describing anything Romney says.) Accusing President Obama of being like European "socialist democrats" in pushing for (slightly) more progressive taxes, Romney said: "Guess what? Europe isn’t working in Europe. It’s not going to work here." Romney and his colleagues have been saying so many outlandish and utterly false statements at these debates that it was tempting to leave this one alone. This claim, however, was at least a deviation from the usual run of climate change denial, "let 'em die" health care absolutism, and immigrant bashing, so that it was worth taking the time to sort through a few responses. The bottom line was quite obvious: The blame runs in the opposite direction, from the U.S. to Europe. The economic ...

By Mike Dorf Here 's an interesting story about a small town in Alabama (Bay Minette) that will offer mandatory church attendance as an alternative to incarceration or a fine for non-violent offenders.  The story quotes an ACLU official condemning the policy as "blatantly unconstitutional" because "government can't force participation in religious activity."  Yet getting to that result is not so easy under the existing Supreme Court precedents. The story quotes the town police chief  as follows: "You show me somebody who falls in love with Jesus, and I'll show you a person who won't be a problem to society."  Now, insofar as that statement shows that the program aims to advance Christianity in particular, it renders the program infirm under the Establishment Clause.  But maybe we can gloss the statement a bit.  Perhaps, if pressed, the police chief would say "and not just Jesus; you show me someone who falls in love with the teachi...

By Mike Dorf In my latest Verdict column , I argue that the legal battle over the constitutionality of the individual mandate in the Patient Protection and Affordable Care Act raises a relatively unimportant constitutional question: Whether or not Congress has the authority, either under the taxing power or the commerce power, to mandate that individuals purchase a service (or good) from a private actor, Congress will remain nearly omnipotent.  As I explain in the column, even if the Court invalidates the mandate, Congress could accomplish essentially the same thing using other powers. Of course, I also explain, Congress won't, because of the politics.  I then go on to lament that result as a matter of policy.  The large-n studies by health economists show that being within the "flat of the curve," i.e., having health insurance at all, makes a substantial difference relative to not having health insurance, but having different kinds of health insurance doesn't mak...

By Mike Dorf A little over a week ago, an en banc 9th Circuit court invalidated a Redondo Beach, CA ordinance banning “stand[ing] on a street or highway and solicit[ing], or attempt[ing] to solicit, employment, business, or contributions from an occupant of any motor vehicle."  The law was ostensibly meant to address congestion arising out of congregating day laborers seeking work, but as in other communities in which this issue has arisen, such legitimate concerns become mixed with anti-immigrant sentiment. The en banc majority found that the law was facially invalid as overbroad.  Streets are, in the Supreme Court's category, a "traditional public forum," and while reasonable time, place, and manner regulations of speech are permissible in such a forum, the Redondo Beach ordinance, in banning an entire category of speech, was not such a regulation.  Chief Judge Kozinski disagreed strongly.  He wrote: "If I could dissent twice, I would."  S...

-- Posted by Neil H. Buchanan This past Spring, I wrote three Dorf on Law posts ( here , here , and here ) discussing issues that arose during my appearance before the House Ways and Means Committee. After the hearing, I received a "Question for the Record" (QFR), which is a means by which committee members can ask witnesses questions outside of the time limits of the hearing, but still have the responses entered into the Congressional Record. The question was from Rep. Bill Pascrell (D-NJ), who wanted me to comment specifically on how we might better support families as they try to save money for future education expenses. The pertinent part of my response is copied below. As readers will see, the budget crises affecting states and cities for the past several years have had the surprising and perverse effect of making public K-12 education look more and more like fee-based education. This has serious implications for families who wish to save for higher education, which ...

-- Posted by Neil H. Buchanan Last Friday, I commented on the possibility that President Obama will be the beneficiary of lowered expectations, with even fierce left-of-center critics like Paul Krugman giving him too much credit for proposals that are clearly inadequate to the problems we face. I closed the post by repeating my frequent observation that Obama's timid measures, in addition to being economically weak, are political losers that undermine any excitement one might have about a second term. I am, of course, hardly the only person to have made that latter point. Apparently in response to the growing calls for the President actually to stand for something, the White House earlier this week unveiled an aggressive strategy to take a stand for economic populism. In his announcement of a new economic policy strategy (couched, inevitably, in the form of a long-term debt reduction plan), the President used strong, liberal language to defend the notion of taxing the rich and...

Post by Sherry Colb In my column for this week, I write about the Supreme Court's upcoming case, United States v. Jones , in which it will decide whether attaching a GPS device to a car and thereby monitoring the car's whereabouts for an extended period of time constitutes a "search" for purposes of the Fourth Amendment, requiring a warrant based on probable cause.  Because I have written about the GPS tracking issue before, my column discusses the nearly-indistinguishable invasion of having police track the location of people's cell phones, an intrusion that may fall outside the definition of Fourth Amendment "search" no matter how the Court decides Jones . In this post, I want to address a different issue that is, at least implicitly, raised by police tracking of people's movements:  Is there an invasion of privacy if the target never finds out about it?  This question arises because the sorts of surveillance involved with a GPS often occur wi...

Last week, reading Mike and Neil’s posts about their memories of 9/11, I thought a lot about whether I should blog about my own. At first, I decided not to, because the official story, the one my students know about how I experienced that day, is likely quite similar to the stories of many other law professors – and frankly not all that interesting. I had to tell my students that the attacks on the World Trade Center and the Pentagon had occurred.   I was in my car when I heard, driving the eighty miles from my home north of Boston to my job at Roger Williams Law School in southern Rhode Island, listening to NPR and drinking my coffee.   I was about half an hour from school when the news of the first plane hit the airwaves; I was just pulling into the parking lot when the anchor announced that America was under attack, as evidenced by the impact of the second plane.   I walked into school through the basement cafeteria and stopped to watch the television footage o...

By Mike Dorf During last week's Republican Presidential debate, Mitt Romney tried to pin Rick Perry down on Social Security.  Because Perry had written in his book that Social Security was (in his view) constitutionally dubious, Romney argued that Perry must want to eliminate Social Security.  Perry parried Romney's thrust with a the following Texas two-step: 1) Social Security has been on the books for 70 years so it's a fait accompli (a "slam dunk" in the non-Frenchified world of Perry-speak) that won't be taken away from current recipients and those nearing retirement; but 2) For the long term, we ought to rethink Social Security, and one way to do so would be to take responsibility for old-age public pensions away from the federal government, and handing it over to the States. At that point, Romney announced that he thought it would be better to leave Social Security as a federal program. As I noted in my blog post on the Romney-Perry exchange la...

-- Posted by Neil H. Buchanan [Note: In response to a comment on my post last Thursday, I promised to write something today about the cross-national evidence that supposedly supports the idea of "expansionary austerity," i.e., economic growth following cuts in government spending. I have decided to put off that discussion for another day in the near future. ] The standard pattern in presidential elections during the last thirty years or so has been for the Democratic nominee to distance himself from liberal positions and groups, especially labor unions, until the last two weeks of the campaign, at which point he starts to sound like the love child of Walter Reuther and Michael Moore. I know that some people would characterize this as a matter of rallying the base after (dishonestly) trying to sound like a centrist, but it is difficult to characterize any of the Democratic nominees post-McGovern (with the possible exception of Mondale, although I think even that is a stretch...