Dorf on Law

By Mike Dorf When I first heard that Rick Santorum said he wanted to "throw up" when he read then-candidate JFK's famous  religion speech , I had an admittedly churlish reaction of the sort I can only publish on a blog that bears my own name and in no way implicates anyone else with better judgment: Well, that makes sense, I thought.  If you're Rick Santorum, getting people to associate your name with vomit would actually be a step up from the Google bomb. But I digress.  So anyway, what made Senator Santorum want to throw up?  It was Kennedy's endorsement of an "absolute" separation of church and state.  And I thought: Oh come on.  Kennedy can't have said he endorsed an absolute separation of church and state.  Nobody endorses an absolute anything.  But then I looked it up and sure enough, Santorum was right.  Here's what JFK said: "I believe in an America where the separation of church and state is absolute."  And that's not a

-- Posted by Neil H. Buchanan I am currently in Hong Kong (in the airport, actually, waiting for a flight to Australia), where I participated in two tax scholarship-related events at the University of Hong Kong over the past few days. On Saturday, I was a commentator at the Taxation Law Research Programme's Third International Conference : "The European Union and Greater China: Understanding the Fundamentals of the New Taxation Relationship," an event that brought scholars from the Vienna University of Business and Economics to Hong Kong, to discuss tax issues related to trade between Europe and China. Yesterday, I delivered a lecture entitled: " Will the United States Government Ever Again Have a Functioning Budgetary System? " Both events were organized by Professor Richard Cullen and his colleagues, Dr. Xu Yan, Professor Wilson Chow, and Professor Andrew Halkyard. Everything was handled magnificently, and I have thoroughly enjoyed my first trip to Asia. A

By Mike Dorf My latest Verdict column previews the issues in Fisher v. University of Texas , the affirmative action case the Supreme Court added to its docket last week.  After tracing the historical interaction of the Court's doctrine and the responses by the University of Texas, I conclude by explaining how both liberals and conservatives each only pay lip service to colorblindness.  Here I want to delve a little deeper into one aspect of the case that could prove decisive before connecting it up with a theme I explore in the column. The question is what to make of the "critical mass" argument at work in Fisher .  Recall that in Grutter v. Bollinger , the majority opinion credited the University of Michigan Law School's interest in obtaining not just token representation of underrepresented minorities but a "critical mass," i.e., enough such students that no one feels isolated or like he or she is a spokesperson for the group.  In my blog post last we

By Mike Dorf Most of the coverage I have seen of the imbroglio over the scope of the religious exception to the contraception insurance mandate has focused on the conflict between interests in health care and religious interests in avoiding contributing money to support acts that individuals and institutions deem immoral.  Fair enough.  That is indeed the core question.  But there is another, more mundane, aspect to the controversy that has me puzzled. My puzzlement concerns the economic assumptions behind the compromise policy that President Obama has now settled upon.  Under this compromise, religiously-affiliated institutions (like Catholic hospitals) that object to paying for employee insurance policies that include contraception coverage will not be required to contribute to the cost of such contraception coverage, but the employees will still be eligible for such coverage from the insurers themselves.  According to the White House, insurers will want to cover contraception be

By Mike Dorf In my latest Verdict column , I use President Obama's recently expressed willingness to have SuperPACs support his re-election as an occasion to discuss the campaign finance mess and whether anything can be done about it.  I note that among people who think about the issue, public financing is the gold standard but that American politics will generally preclude the sort of generous public financing that would neutralize SuperPAC spending.  I then suggest that the federal government might consider attaching conditions to licenses for wireless carriage requiring free airtime for candidates for office.  Intrigued?  Go read the column. Now onto a related question: Why is running for office so expensive?  For years, we have been hearing about how the growth of the Internet means that it is now easier than ever to get a message out into the world.  It's also supposed to be cheaper.  That's why the shift from print to Internet has been so disastrous for newspapers

By Mike Dorf Today the SCOTUS granted certiorari in Fisher v. University of Texas , which poses the following main questions:  1) Whether the bump that UT gives in admissions to minority candidates in order to maintain a "critical mass" in particular fields survives scrutiny under Grutter v. Bollinger ; and 2) If so, whether Grutter v. Bollinger ought to be overruled. In addition, there is a threshold question of whether the plaintiff has standing (or the case is moot) in light of the fact that after she lost in the lower courts she enrolled in LSU, from which she has now graduated.  Herewith, a few very quick reactions. A) I strongly suspect the Court will reach the merits.  Given the glacial pace of litigation, it will not be that unusual for a challenge to university admissions to remain in the courts even after the original plaintiff has graduated.  Thus, one can readily envision the majority invoking the capable-of-repetition-yet-evading-review exception to m

By Robert Hockett As most of our readers know, and as a perhaps larger proportion of them than that of the nation at large, thanks to Neil, likely have known since at least 2007, sagging mortgage markets continue to act as a drag on our still underperforming economy. The White House and Congress were perhaps not as quick to catch on as we might have wished, though admittedly there have been several efforts, commencing with HAMP and HARP, to turn things around over the past several years. To the surprise of many in Washington, however, initiatives thus far attempted have yielded but modest results. (Let us hope that the latest refinancing initiative, along with future such initiatives applicable to Fannie- and Freddie-held mortgages, will fare better.) One factor that might account at least partly for the less than stellar successes of mortgage market repair efforts thus far attempted is their 'one size fits [nearly] all' character. For as it happens, differe

By Lisa McElroy Justice Sotomayor is known for being outgoing and friendly, down-to-earth and approachable. Even so, it’s not so often that people just walk up to her on the street and ask her to resolve their disputes. Unless she’s on Sesame Street, that is. Yes, a couple of weeks ago, preschoolers across America were treated to a guest appearance by none other than the Justice herself , as she sat down to have coffee and chat for a while in Spanish with Maria, a long time “Street” resident. As one of my Facebook friends commented (raising an “Amen” from another), when we were kids in the 1970s and we envisioned a more inclusive America, this is what we imagined. Now, even though the defendant in the case thought that Justice Sotomayor was “the perfect judge to hear [her] case,” the case before the Justice was one that almost certainly would not have made its way to the Supreme Court. After all, it involved the question of whether Goldilocks should have to fix Baby Bear’s cha

-- Posted by Neil H. Buchanan Since the beginning of the financial crisis, and continuing into the Great Recession and its never-ending aftermath, Paul Krugman has been beside himself about the dishonesty and outright hackery of many of his colleagues in the economics profession. In my Verdict column today , I offer explanations both for the phenomenon that Krugman describes, and for Krugman's inability to process the idea that his colleagues are so blatantly intellectually dishonest. My bottom line boils down to this: Of course many economists are being clueless or worse, because they are selected and trained for a completely different set of skills, and there are no incentives to force them to be non-ridiculous. Using cost-benefit analysis to explain why economists as a group are so useless does, of course, carry some irony. More importantly, however, the better economists really cannot see how their colleagues turned out the way they did, because (I think) they imagine that t

-- Posted by Neil H. Buchanan The Obama Administration announced its budget proposal earlier this week, to the usual round of insults from the other side. Because the budget has no chance of passing in the Republican-controlled House, the proposal is rightly being analyzed as a political statement -- an opportunity for President Obama to clarify for voters the vast differences between his priorities and those of his opponents. Here, I will take a moment to assess the broad message of the budget, before offering a few thoughts on the political impact that it might have. Finally, I will consider what this budget tells us about missed opportunities and political “realism.” In its broadest terms, the new Obama budget represents a return to solidly Keynesian economics. There is no reliance on the Confidence Fairy, or any other stealthy moves to undermine the importance of government in directly trying to solve important problems. Deficit reduction is finally -- FINALLY! -- described a

Posted by Sherry F. Colb In my column for this week, Part 2 of a two-part series in which I discuss and analyze the opinions in United States v. Jones , I elaborate on some of the differences between Justice Scalia's and Justice Alito's respective approaches to the Fourth Amendment implications of using a GPS device to monitor suspects' whereabouts.  In this post, I want to focus on something else:  judicial arrogance. Justice Scalia has regularly accused various of his colleagues on the U.S. Supreme Court of a type of judicial arrogance.  He suggests that they believe they know better than democratically elected representatives of the people and can therefore disregard the will of the majority of Americans and impose their own subjective vision of what the Constitution ought to (but does not in fact) mean.  This criticism is in part a Separation of Powers objection, a claim that judges are not authorized to undo legislative action under the circumstances in a particul

Posted by Anil Kalhan (Cross-posted at Chapati Mystery ) Right in time for Valentine’s Day, the Supreme Court of Pakistan has sent Prime Minister Yousaf Raza Gilani a love letter – in the form of charges for contempt of court .  That handwriting had been on the wall for weeks now, but was sealed with a kiss on Friday, when a bench of the Court led by Chief Justice Iftikhar Muhammad Chaudhry denied Gilani’s appeal to dismiss the contempt notice served upon him last month.  The appeal hearing itself appears to have been a stormy affair, with Chaudhry and other judges reportedly “ almost shouting ” at Gilani’s lawyer, Aitzaz Ahsan – who happened to serve as the Chief Justice’s own lawyer during the happier days of the lawyers’ movement back in 2007.  “How can you being a senior lawyer write this?” snapped the Chief Justice. “We are very embarrassed by remarks [in your filing].”  He apparently closed the hearing by simply saying, “ Sorry, Aitzaz .”  (With great warmth and affe

By Mike Dorf Last week I expressed skepticism about the validity of the distinction between failure-to-give and taking-away that Judge Reinhardt's opinion draws in Perry v. Brown .  I explained that while I understood the motivation of attempting to invalidate Prop 8 on California-only grounds, I didn't think the distinction should make much of a difference in the context in which it was invoked -- except perhaps as a piece of evidence in a case attempting to show that Prop 8 was motivated by "animus" in violation of Romer v. Evans .  Similar skepticism has since been expressed by others who share my general view that there ought to be a constitutional right to same-sex marriage.  For a nice overview of the issue in political context, see David Cole's essay in the NY Review of Books. But to say that the failure-to-give/taking-away distinction should not cut much ice in the Prop 8 case is not to deny that it is important in other contexts.  Here I want to ask

By Mike Dorf What is the cause of the political imbroglio over President Obama's decision (and then re-evaluation) regarding the obligation of Catholic-affiliated institutions to provide health insurance covering contraception?  Surely one explanation lies in the peculiar compromise that is the American employment-based health insurance system. If our system were designed along wholly free-market lines, then health care and health insurance would be purchased in a private market from private funds.  Under such circumstances, an employee of a Catholic hospital would be free to spend some fraction of her take-home pay to purchase birth control pills or to pay a premium for a health insurance policy that covers birth control pills, just as she would be free to spend some fraction of her take-home pay making other purchases that the Catholic Church regards as immoral--contributing to pro-death-penalty candidates, for example. At the other end, if we had a system of public health