Dorf on Law

-- Posted by Neil H. Buchanan One of the unexpected benefits of writing on a blog is that readers -- both in comments and in off-line correspondence -- often ask questions and offer insights that spur further reflection, or spark a healthy digression, or sometimes simply provide further evidence supporting an argument that I have made in a post. No one, after all, can hope to read even a slice of everything that is out there, and any writer should be grateful to those who point to evidence that would otherwise have escaped notice. In my extended and repeated critiques of government austerity, I have been especially fortunate to have readers who respond to my posts by adding to the pile of evidence that shows just how weak the pro-austerity case is. Last year, for example, when I wrote a Verdict column about the shockingly bad economic studies that claim to make the case for expansionary austerity, much of my work was done for me by a reader who provided not only URL's but direc...

by Sherry F. Colb In my Verdict column for this week -- Part 1 of a 2-part series -- I discuss the set of Texas amendments to the state's Woman's Right to Know Act, a group of amendments that I call "the Sonogram Law."  The Sonogram Law, passed approximately one year ago, requires abortion providers to give women an ultrasound at least 24 hours prior to her abortion (or 2 hours prior, if she certifies that she lives at least 100 miles from a provider) and display the ultrasound image for the woman, explaining in detail the contents of the image, playing any audible fetal heart sounds, and explaining those sounds to the woman as well.  A group of Texas providers challenged the constitutionality of the Sonogram law as it affects physicians, but my column focuses on the constitutionality of the law as it affects women seeking an abortion.  I examine how the Sonogram law resembles and differs from abortion regulations that the Supreme Court has considered in the past. ...

by Bob Hockett The past year - or two, depending on whether you look both directions or only to rightward - seems to have brought something new to the long sorry annals of money-crankery. What was new two years ago was the emergence of sizable numbers of people - benighted, sure, but nonetheless numerous people - who seemed to believe they held 'theories' of money. These were of course sundry 'tea party' and crypto-libertarian types who viewed Ron Paul as something more than a droll drooling bumpkin savant. They took him seriously. Some appeared even to take him for some sort of 'prophet.' Let's call him the Apostle Paul, for reasons that I'll elaborate more fully below. In following Paul these poor people began losing their innocence - their monetary virginity, so to speak. They began learning to pronounce words associated with recondite subjects the existence of which people like this had not known before. Before lon...

-- Posted by Neil H. Buchanan In my new Verdict column this week, I discuss the last-ditch efforts by economic conservatives to defend "expansionary austerity," the claim that cutting government spending (and, for at least some fans of the theory, raising taxes) will -- contrary to decades of accepted Keynesian wisdom, as found in nearly every economics textbook -- result in a net increase in a country's economic output and employment. This non-Keynesian result, we are told, will occur because of an increase in spending by businesses and consumers that will more than make up for the government's drag on the economy. The most surprising economic story of the last few years has been that the governments of nearly every advanced economy have publicly embraced austerity measures, putting into disastrous practice an anti-government ideology that was surely going to exacerbate our profound economic troubles. And as Keynesians predicted, those economies have weakened, rat...

By Mike Dorf The lawsuits recently filed by Catholic dioceses around the country raise a number of interesting legal questions.  In this post, I'll take a look at the main issues.  I'm using as my point of departure the lawsuit filed by the Fort Worth, Texas Diocese (complaint available here ) but the analysis would be the same for other cases. I'll begin with a very brief overview.  As part of the Patient Protection and Affordable Care Act (PPACA), employer-provided health insurance plans must cover preventative care for women, including, as interpreted by the executive branch, sterilization and contraception, which in turn includes contraception that works by preventing implantation (and is thus regarded by some people as a form of abortion).  Such insurance plans cannot include any extra co-pays or premiums for this coverage. Religious employers are exempt but the regulations define religious employers to refer (more or less) to churches and the like, rather...

By Mike Dorf As I write, the jury in the John Edwards case is still out, deliberating about the fate of the former Senator.  Here I want to reflect a bit about the seeming peculiarity of an element of two of the crimes that the prosecution has attempted to prove.  As  I noted nearly a year ago , as a predicate for finding that Edwards violated campaign finance laws with respect to the money provided by Bunny Mellon, the government must prove that Mellon  intended the money as a campaign contribution.  The oddity on which I want to remark is the notion that a criminal defendant's guilt or innocence turns on a third party's mental state.  My analysis will lead me to note a connection to the Dharun Ravi case. The complete jury charge in the Edwards case can be found here .  For count 2, the judge summarized the charge as follows:  [B]efore you can find Mr. Edwards guilty, the government must prove beyond a reasonable doubt that, while he w...

By Mike Dorf My latest column on Justia's Verdict  uses the JPMorgan Chase trading loss as a point of departure to discuss a common conservative argument against regulation: That providing people and firms with express or implied insurance will lead those people and firms to take risks that are not cost-justified.  In the column, I briefly discuss bailouts of banks and the auto industry, deposit insurance, and at the end, health insurance.  Although the column does not use the term "moral hazard," it does invoke that concept, which is slightly broader than the notion that insurance dampens incentives.  Moral hazard includes the idea that people will be more willing to spend others' money than their own.  In this post, I want to say a few more words about the idea of moral hazard in the health field. The ideologically conservative argument against third-party health insurance goes much like the argument against insurance in other contexts: In a well-function...

By Mike Dorf            Continuing my tradition of posting my exams, below is the Federal Courts exam I gave this past semester.  Students had 8 hours and were permitted to use whatever materials they wished (other than the interactive contents of another mind).  They  were required to answer each of the four questions, which were weighted equally.  I also included the following general instructions: Assume that Hughes is a State of the United States.  The (fictional) Federal District Court for the State of Hughes is within the (fictional) Twelfth Circuit.  In answering all questions, assume that you are a law clerk to Judge Barbara Hand, who sits on the Federal District Court for the District of Hughes. Once again, I set this out as an exercise.  If you find this interesting, feel free to comment, but I won't grade comments.  Grading the real exams was enough of a treat! --------------------------------------...

-- Posted by Neil H. Buchanan Even for those readers who do not obsessively follow such matters (that is, normal people), this week was a rather interesting one in the politics of deficits and debt. Speaker of the House John Boehner announced on Tuesday that he and the Republicans are planning to use the debt ceiling later this year to try to extort more spending cuts from the White House. He made it clear that they would refuse to raise the debt ceiling, unless the increase in the ceiling is matched by larger spending cuts. (It is not at all clear why that is a helpful or meaningful metric, even in the twisted minds of anti-government fanatics. Why not a two-for-one tradeoff? Or more? Why are the two even connected? But let us leave that aside for now.) The same day, Republican Presidential nominee-to-be Mitt Romney tried to change the subject from gay marriage back to the economy by excoriating President Obama for the increase in deficits and debt during Obama's Presidency...

-- Posted by Neil H. Buchanan Let us start with the obvious: Humans have well-known limitations on their capacity for perceiving and processing information. Those limitations can make it especially challenging for those who try to offer nuanced or complicated arguments. For example, litigators who represent defendants in criminal trials say that a jury has to have someone to blame. Even if the legal question before them is whether there is a reasonable doubt that the defendant committed the murder, it turns out that juries will often (usually?) convict, if the answer is "no" to the following question: Is there someone else who seems more likely to have committed the murder than this defendant? That the evidence against the defendant is weak, mutually inconsistent, or lacking credibility apparently matters little. "My client didn't do it," in jurors' minds, can only be supported by proving that "This other guy really did it." The combined roles ...