Dorf on Law

By Mike Dorf Last week, a judge in the Netherlands rejected a challenge to the country's new ban on foreigners' entrance to Dutch "coffee shops," where marijuana has long been sold.  Dutch citizens will still be able to visit coffee shops with a government-issued "weed pass."  I haven't been able to find the actual opinion, but the news stories (e.g., here ) report that the law was challenged as violating Dutch anti-discrimination law, and was upheld on the ground that it was justified to fight criminality associated with the international drug trade. The coffee shop owners have indicated that they will appeal and the case could eventually end up before the European Court of Justice (ECJ) on the ground that it violates the provisions of the EU Treaties governing free movement of goods, services and persons.  But if so, the ban will likely be upheld under reasoning along the lines of a December 2010 ECJ ruling that upheld a similar law that only appl...

By Mike Dorf On Wednesday, the Supreme Court heard oral argument in Arizona v. U.S.   (Transcript and other important case docs here .)  There has been much press coverage of the case already, so I'll raise a few offbeat observations. The Chief Justice as Traffic Cop During the oral argument, I noticed that something happened that seems to be happening with increasing frequency.  Two Justices simultaneously started speaking and then CJ Roberts intervened to effectively "call on" one of them.  In this instance (at pp 30-31 of the transcript ), Justices Sotomayor and Alito both started asking a question, and so CJ Roberts called on Justice Alito.  I recall (although haven't bothered to locate in the transcript) another instance during one of the Affordable Care Act arguments, when Justices Sotomayor and Ginsburg started at the same time, and CJ Roberts called on Justice Ginsburg.  And I am pretty sure I've seen this happen other times in the last couple...

-- Posted by Neil H. Buchanan In my new Verdict column today, I began a multi-part series of columns in which I will discuss the likely policies that would be implemented during a possible Romney presidency. Before proceeding to the substance of that task, however, today's column laid the groundwork by discussing two threshold issues: whether Romney can win (that is, whether it is even worth our time wondering about what he would do as President), and what broad principles would inform his approach to setting his policy agenda. On the first point, I emphasize just how weak and problematic Romney is as a candidate. Given everything that is going in Romney's favor -- led, first and foremost, by the still-weak economy -- it is simply shocking that the early polls show a statistical dead heat. Even an ultimately close election should, at this stage, look bleak for any incumbent presiding over this economy. That Obama's political team is so frequently inept should only str...

By Mike Dorf Here's a puzzle: Why aren't Paul Krugman's Keynesian views more popular?  Krugman has been more or less running around with his hair on fire ever since the start of the Great Recession arguing that the U.S. needed a much larger stimulus than it got and explaining why, per Keynesian theory, austerity measures in Europe would not lead, and have not led, to growth. It's not hard to see why American Tea Partiers resist Keynesianism.  The American right has long sought to reduce the size of American government--or at least to reduce taxes--and they regard Keynesian stimulus as simply a means by which the left justifies expansion of government programs that the right wants to eliminate.  That's the political explanation, anyway, but it usually travels with a number of economic claims. One such claim is nicely ridiculed by Krugman's repeated discussions of the "Confidence Fairy," a being he treats as about as real as the Tooth Fairy.  Belie...

-- Posted by Neil H. Buchanan I recently watched a TV panel discussion about tax complexity, in which an economist made an interesting point about the "individual mandate" of the ACA and the sophistry of the activity/inactivity distinction.  She noted that the mortgage interest deduction -- that most sacrosanct of tax breaks -- can readily be characterized as a mandate to buy houses.  How?  If a person does not want to engage in the activity of owning a home, then that person will end up paying more in taxes than if he decides to engage in that activity.  This logic extends at least to all "tax expenditures" (that is, the tax-based government subsidies so popular among Republicans and Democrats alike), if not all tax rules more generally, because the system is set up to make taxes higher -- a tax penalty -- for those who do not take advantage of the tax-favored behavior. Of course, this argument is not exactly new, or even all that different from many arguments...

By Mike Dorf My latest Verdict column discusses last week's SCOTUS decision in  Filarsky v. Delia , unanimously holding that part-time government employees are entitled to qualified immunity when performing functions that would give rise to qualified immunity if performed by full-time government employees.  As I explain in the column, the decision is sensible on its own, but troubling when juxtaposed with the Court's decision earlier this year, in  Minneci v. Pollard .   In Minneci , the Court declined to recognize a damages remedy (aka a " Bivens " action) against guards in privately-run federal prison.  I note the tension between the two decisions: A broad willingness to make law beyond the text enacted by Congress when doing so benefits civil rights defendants ( Filarsky ) but unwillingness to make law beyond Congressionally enacted text to benefit civil rights plaintiffs.  I say that the most logical explanation for the juxtaposition of results is th...

-- Posted by Neil H. Buchanan The online version of The Wall Street Journal had an interesting article last week, questioning the value of undergraduate business majors. It turns out that 20% of all undergrads in the U.S. major in business, more than double the next most popular major ("social sciences and history," which is actually about a dozen majors combined into one category). I knew that the number was high, but this was a truly surprising number. As a former economics professor, I have some interest in this subject. As a current law professor, I also see some parallels between this discussion and the current call for teaching more "practical skills" to law students. At both the undergraduate level and in law school, I continue to think that "learning to think and communicate effectively" is what we should be teaching. Here, I will discuss a few points from the WSJ article, and then I will compare and contrast these points in the undergraduat...

-- Posted by Neil H. Buchanan Now that the Republican Presidential field is down to Mitt Romney and two delusional men, the Romney campaign is taking its presumptive-nominee status and turning its attention to attacking President Obama nonstop. No problem. That is what campaigns do, and if anything, Romney's people must surely be feeling deprived. Their guy was never going to lose the nomination (unless he acted as if he could not lose). Nevertheless, they lost about two months of good early-season sliming, and they are keen to make up for lost time. There is no reason to think that this campaign is going to somehow move to a higher plane than recent campaigns. Now-Senator Al Franken's book-length observation that the Bush/Cheney '04 campaign was based on "fear, smears, and queers" was spot on, and the McCain/Palin '08 campaign (with one or two notable moments of honor) intensified the sense that all bets are now off in political campaigns. And with ...

By Sherry Colb In my column for this week, published today on Justia's Verdict , I discuss the competing visions of reality that, respectively, animate supporters and opponents of "Stand Your Ground" laws.  These are laws of the sort that police cited for their initial failure to arrest George Zimmerman for killing Trayvon Martin.  In the column, I focus on the fear that typically precedes violence in self-defense and the sorts of situations that are likely to give rise to that fear. In this post, I want to take up a related issue concerning people who experience some strong feeling -- whether it is fear or sexual arousal -- in response to another person's clothing.  The issue is how we ought to respond when the person who experiences that feeling goes on to act on the feeling in a manner that would ordinarily represent violence in violation of the criminal law. About a month ago, Geraldo Rivera reportedly stated the following: "I am urging the parents of b...

By Mike Dorf Last week I attended a lecture by Professor Hanno Kube   of Gutenberg University on the European Debt Crisis and the Rule of Law.  Professor Kube made a number of very interesting points about the origins of the crisis, the impact of the crisis and the response on democratic governance in the member states of the European Union, and the relation of the EU Treaty organization to other treaties signed by EU member states.  Here, however, I want to focus on a narrower argument that he also presented.  It went more or less like this: 1) Article 125 of the EU Treaty  forbids the EU or its member states from assuming the debts of any member states; 2) the bailout package for Greece is a de facto assumption of Greek debt; and 3) therefore the bailout package violates Article 125.  Here I want to focus primarily on move 3, and then I'll say something about what this argument might entail for U.S. statutory interpretation. First, as the wording...

By Lisa McElroy In the fall of 1981, I was a thirteen year-old high school freshman. Ruth Bader Ginsburg was a judge on the D.C. Circuit. Sonia Sotomayor was a young prosecutor in New York. Elena Kagan was a recent college graduate, still considering law school. And Sandra Day O’Connor was a newly minted Associate Justice on the United States Supreme Court. At a commemoration of the thirtieth anniversary of Justice O’Connor’s first Term on the Court last Wednesday, Justices Ginsburg, Sotomayor, and Kagan told the audience exactly where they were when they heard the news that President Ronald Reagan had fulfilled his campaign promise to appoint the first woman Justice (Justice Ginsburg, for example, was driving home and heard it on the radio). I don’t remember exactly when I heard. I just know that this scrappy Arizonan lit a fire under me – and apparently under a lot of other women like me. A lot of them were at Washington, D.C.’s Newseum on Wednesday night. Like me, they got there ear...

-- Posted by Neil H. Buchanan With Rick Santorum's withdrawal from the 2012 Presidential race, the punditocracy is now focusing on the possible choices for Mitt Romney's running mate, as well as on the head-to-head contest between Romney and President Obama. A few have commented on Santorum's future prospects, focusing on his assertions that "the fight is not over," and similar comments. To me, however, the most interesting question is whether Santorum will become the presumptive nominee in 2016 (or, should Romney beat the odds and be the incumbent in 2016, in 2020). Will the political class decide that it is "Santorum's turn"? To be clear, there is no good reason why a party's presidential nomination should go to the person who is (through some mysterious process) deemed to be next in line. The party's voters can presumably find a candidate's qualities appealing (though not quite appealing enough) in one year, but not in the very dif...

By Mike Dorf Last week, The New Yorker  published my letter to the editor criticizing Jeff Toobin for an earlier article in which Toobin in turn had criticized Judge Brett Kavanaugh for the latter's suggestion (in his dissent in the DC Circuit version of the health care litigation) that a President could, if he thought the minimum care provision of the Affordable Care Act was unconstitutional, simply choose not to enforce the Act--even if the courts were prepared to uphold it.  I wrote: Jeffrey Toobin takes Judge Brett M. Kavanaugh to task for attributing to the President the power not to enforce a federal statute, even if the courts have upheld it (Comment, March 26th). Citing the 1803 landmark case of Marbury v. Madison, Toobin asserts categorically that this “is not how it works.” He thus overlooks a longstanding debate about the scope of judicial precedent. Thomas Jefferson declined to enforce the Sedition Act, on the ground that it violated the First Amendment, even ...