Dorf on Law

By Sherry F. Colb In my column for this week, I examine a recent arrest of a New York City woman for self-inducing an abortion, a misdemeanor for which she could face up to a year in jail.  As I suggest in my column, the "self-induced" aspect of the woman's abortion turns out to be largely irrelevant to her particular case.  It turns out that the feature of her case distinguishes this woman's arrest is the designation of a pregnant woman who obtains an abortion as a culpable offender.  In the column, I explore some implications of this designation. In this post, I want to focus on what I had originally imagined had driven the New York City arrest: the decision of a woman to terminate her own pregnancy rather than seek a licensed physician's services.  Under New York law, a woman who wishes to have a legal abortion must involve a licensed physician. At first glance, it might seem reasonable to require the involvement of a medical professional in a procedure ...

-- Posted by Neil H. Buchanan At the end of any year, it is tempting to try to find a grand theme to tie together the political and social events of the preceding twelve months. I might attempt to do that in future years, but today, I will instead engage in something much more modest. There are, as always, many seemingly indestructible bad arguments in the air regarding taxes and justice. Without claiming that these are the worst of those arguments, or even to try to set a hierarchy among them, I thought that I would briefly discuss three especially weak arguments that have shown impressive staying power. -- " Why Don't Rich Progressives Just Give Their Money to the Government Voluntarily? " The most recent version of this argument appeared in a fake news report , with an attractive young "journalist" interviewing some wealthy members of the "Patriotic Millionaires" group who had come to Washington to lobby for higher taxes on the rich. The f...

By Mike Dorf My latest Verdict column  examines Newt Gingrich's recent attack on the federal judiciary.  I conclude that his historical argument is basically right: Thomas Jefferson and Abraham Lincoln did question the constitutional basis for judicial supremacy, while Jefferson and FDR (as well as others) attempted to change the law in order to neuter or intimidate the federal judiciary, so as to achieve substantive results they favored.  I also conclude that Gingrich's normative views are misguided.  He places too little value (if any) on an independent judiciary. Here I want to note how Americans' habit of fetishizing the Constitution makes Gingrich's argument appear stronger than it is.  The horrid things that Gingrich proposes to do to the federal judiciary--including dragging them before Congress to explain their decisions, impeaching those judges whose decisions Congress disapproves, stripping the courts of jurisdiction to hear categories of cases tha...

By Mike Dorf The death of Kim Jong-Il has understandably led to considerable discussion of the late dictator's eccentricities, along with much speculation about how the succession of power will proceed.  Here I want to use the Dear Leader's demise as the occasion to explore some questions about the demise of communism itself. By my count, North Korea and Cuba are the only remaining communist countries on the globe.  China, Vietnam, and Laos are nominally communist but each is much better described as a single-party authoritarian state with a substantially market economy.  They officially adhere to communism as a means of justifying the party's monopoly on political power but are not in any meaningful sense communist.  Communist parties participate in electoral politics in some democratic countries, even to the point of endangering their long-term democratic character (as in Venezuela, where the communist party is allied with Hugo Chavez's socialist party), but n...

-- Posted by Neil H. Buchanan In my Dorf on Law post this past Friday , I discussed Newt Gingrich's recent appalling claim that our child labor laws are "truly stupid," and his proposal to put young children to work as janitors in schools -- supposedly to instill responsible working habits that (he wrongly claimed) such children cannot possibly learn at home, because (he also wrongly claimed) they have no role models who have jobs. In my post, I noted that I had recently discussed with my seminar students a story that I heard years ago, about a person who takes a job and does well in that job, but who does not realize that he is expected to show up every day, whether he needs money that day or not. As one reader of my Friday post noted in an email, this story was probably widely true in certain colonial African nations in the late 1800's, where wage work was not the norm in agrarian societies (and where people had not yet been dispossessed from their lands, which wou...

-- Posted by Neil H. Buchanan The cult of "Newt the Idea Guy" continues unabated. My doubts about Newt Gingrich's reputation as a font of ideas (see here , here , and here ) are based on the observation that Gingrich has done nothing to support the widely-held belief that he is a source of new ideas. To the contrary, he does nothing more than repeat old conservative ideas -- loudly and self-importantly. Even so, the media narrative has become entrenched, actively promoting the idea that "Newt Gingrich as president could turn the White House into an ideas factory" (as the title of a Washington Post article asserts), or confirming that "[i]deas erupt from the mind of Newt Gingrich — bold, unconventional and sometimes troubling and distracting" (as an article in the New York Times insists). Once one peels away the hagiography, however, one is left with nothing more than an observation that Gingrich says a lot of things. As I approvingly quoted Maure...

-- Posted by Neil H. Buchanan After months of arguing against austerity measures in the U.S. and Europe -- both of which are in the midst of extended slumps that threaten to get worse, with interest rates near zero -- I have understandably received some feedback from readers who have asked for my take on the empirical evidence that supposedly supports the idea of "expansionary austerity." This is the claim that a government can cut government spending (and possibly increase taxes as well), in an effort to cut deficits, yet still see the economy expand, because businesses will be so excited about the government's reduced footprint on the economy that they will expand their investment spending and hire more workers. The evidence to support this idea (not really a theory, but just an empirical assertion about the response of business decision makers to particular stimuli) was and is unconvincing. There have been some attempts to mount a serious academic defense of expansio...

By Mike Dorf With nearly all U.S. troops (save a handful of military advisers) exiting Iraq, the question being asked most commonly is "was it worth it?". Well, to paraphrase former President Clinton, that depends on what the meaning of "it" is.  Actually, there are two uses of the word "it" in the question, and presumably they have different referents.  The first "it" appears to refer to the positive goals achieved by the Iraq war; the second "it" refers to the costs. Let's take the first "it" first.  To state the obvious: The original stated goal of the March 2003 invasion of Iraq was to prevent Saddam Hussein from attacking the U.S. and its allies with the weapons of mass destruction that he supposedly possessed or was in the process of acquiring; because Iraq turned out not to have a WMD program, obviously the loss of thousands of American and Iraqi lives was not an appropriate price to pay to avert the harm from a...

By Lisa McElroy The New York Times has been keeping the law professor blogosphere in business. How? By running story after story about the deficiencies in legal education. I wrote about one of them here , but that was just one. To be honest, I’ve lost count of how many there have been; starting early in 2011, it seems like the paper of record has devoted itself to discussing law school ad naseum, with articles, opinion pieces, and letters about the law school experience , Socratic method , the case against law school, law school economics , law school scholarships , the (according to David Segal) lack of lawyering courses , and more. The latest: David Segal (the man behind most of the law school coverage madness) has called for questions about law school , presumably to fuel another few articles. But I’m puzzled – much like one of the commenters who responded to Segal’s request. As AngryKrugman asked on Sunday , “Why are you so concerned about law schools when many undergradu...

My latest Verdict column offers a thus-far-overlooked ground for the Supreme Court to rule for the federal government in Arizona v. United States , the pending case that will resolve whether Arizona’s S.B. 1070 is preempted by federal immigration law.  I argue that the Supreme Court’s endorsement of a version of the “unitary executive” theory in Printz v. United States in 1997 implies that even when a state voluntarily undertakes to enforce federal law, if that “assistance” is unwanted by the federal executive, then the state’s actions are forbidden by the “take care” clause of the Constitution.  In this view, Congress’s attempt to authorize states to provide assistance that the federal executive does not want would amount to a violation of separation of powers.  As I explain in the column, I myself don’t like the unitary executive theory but the Court’s conservatives do, and thus this line of reasoning should give them grounds for ruling for the U.S. and against Arizo...

-- Posted by Neil H. Buchanan As we all should have expected, last week's Angela Merkel-led austerity program for Euro Zone countries failed to wow the financial markets. Meanwhile, the IMF this week began pushing still more stringent austerity measures on Greece, even as analysts begin to think about the possible panic that a Greek exit from the Euro could cause. One scenario includes this: "Instead of business as usual on Monday morning, lines of angry Greeks form at the shuttered doors of the country’s banks ... As the country descends into chaos, the military seizes control of the government." Bizarrely, the prospect of that kind of chaos is now being offered as an excuse for the Merkel treaty, based on the weird argument that more stringent austerity measures will protect them against break-up: "And it was largely this prospect that drove leaders last week to agree to adopt strict fiscal rules that they hope will wrap the 17 European Union nations that us...

By Mike Dorf About ten years ago, I was contacted by a man who claimed to be an independent filmmaker.  He said that he was working on a film in which Abraham Lincoln is reanimated as a zombie and runs for President, but disrupts the debates by attempting to eat the brains of the other candidates.  The purported filmmaker asked me whether I thought zombie Lincoln would be eligible for the Presidency.  I thought this was probably some sort of prank, but provided an answer in exchange for a film credit as a "script consultant" if the film was ever made.  To date, the film hasn't been made, or if it was made, it hasn't been released.  Perhaps it was a prank after all. In the meantime, percolating in the back of my mind has been the question: Would zombie Lincoln be eligible for the Presidency?  Finally the question bubbled forward to the front of my mind, where it made it into the following exam that I just administered to my constitutional law students. ...

By Sherry F. Colb In my Justia Verdict column this week, I analyze HHS Secretary Kathleen Sebelius's decision to reverse a recommendation by the FDA to approve over the counter (OTC) distribution of emergency contraception to any girl of reproductive age.  Secretary Sebelius, by ordering the FDA to reject the OTC application, kept in place the requirement that girls under seventeen produce a prescription before purchasing the morning after pill.  My column considers and evaluates various arguments that Sebelius and others have made in defense of her decision, including the contention that the morning after pill is actually an abortifacient.  In this post, I want to consider the restriction of reproductive rights in the context of a story that appeared in the New York Times over the weekend. The story focused on a eugenics policy that prevailed in North Carolina (along with most of the states in the U.S.), a policy through which many people who were deemed geneticall...

By Mike Dorf Students, lawyers and academics from other countries frequently tell me how odd they find it that the U.S. Constitution has been interpreted to provide virtually no protection for social and economic rights -- or what we sometimes call "positive" or "affirmative" rights, in contrast to "negative" rights.  A negative right, as the term suggests, is a right against government interference, whereas a positive right is a right to government assistance.  Thus, in the U.S., one has a right not to be beaten by the police, but one lacks a right to the assistance from the police when one is being beaten by a private party, as the Supreme Court held in the DeShaney case in 1989. By contrast, many constitutions throughout the world enshrine positive rights to such goods as education, housing, and health care.  Europeans, Latin Americans, and others who come from countries with such constitutions sometimes say that civil and political rights (of the ...

-- Posted by Neil H. Buchanan Chancellor Angela Merkel declared success late last week, having forced the rest of the Euro Zone nations to agree to a series of measures designed to force countries to cut spending, now and in the future. (See news articles here and here .) The Obama Administration, seeing potentially disastrous consequences for the world and U.S. economies (and, as a direct implication, for Obama's re-election chances), was unsuccessful in getting the Germans to ease off on their insistence on continued across-the-board austerity. The immediate criticism of the new pact followed the line from the Obama team (described in the second news report linked above): Merkel succeeded in enacting supposedly needed reforms that will force "irresponsible" countries to be more fiscally upright in the long run, but at the potential cost of never getting to that long run. There is a lot to be said for this line of attack. While not precisely analogous to the ...