Dorf on Law

-- Posted by Neil H. Buchanan Today, I offer a simple observation: One of the themes at the Republican convention this week -- "We Built It" -- is (almost surely unintentionally) deeply self-revealing. For those of you who might somehow have missed it, the right-wing universe went nuts a few weeks ago when President Obama said the following : "If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you've got a business -- you didn't build that. Somebody else made that happen. The Internet didn't get invented on its own. Government research created the Internet so that all the companies could make money off the Internet. The point is, is that when we succeed, we succeed because of our individual initiative, but also because we do things together....

James Laurie/Shutterstock.com -- Posted by Neil H. Buchanan In the classic comedy film " A Fish Called Wanda ," a character named Otto (played perfectly by Kevin Kline) ostentatiously reads books and makes a very big deal about his knowledge of philosophy. He is, however, actually a dimwit, and quite defensive about it. At one point, Otto says to Wanda (Jamie Lee Curtis): "Don't call me stupid." Wanda: "Oh, right! To call you stupid would be an insult to stupid people! I've known sheep that could outwit you. I've worn dresses with higher IQs. But you think you're an intellectual, don't you, ape?" Otto: "Apes don't read philosophy." Wanda: "Yes, they do, Otto. They just don't understand it." Paul Ryan is no ape. He seems to understand (at least at a basic level) the limited amount of philosophy that he has ...

By Mike Dorf Ann Romney's speech last night at the Republican National Convention was widely expected to be an effort to "humanize" her husband.  Although it was a well-crafted speech in some ways, I do not think it succeeded in that task. The speech was pretty good as a statement of the case for the Republican ticket.  The argument in the speech went like this: 1) These are tough times; 2) Mitt Romney's success in the private sector and as governor of Massachusetts show that he can successfully lead the country; and 3) The way to do so is by unleashing the power of the private sector.  That's it.  I don't agree with propositions 2) and 3), but the argument for the Republican ticket isn't meant to appeal to the likes of me.  It's meant to appeal to swing voters. Okay, but what about the humanizing part?  To begin, you know that you are playing catch-up when your candidate needs humanizing.  And despite the recent efforts of the Romney campaign t...

By Mike Dorf With the Republican Convention postponed by a day, this may be a good time to consider one of the main  divisions between Republicans and Democrats over the last generation: views about the appropriate size of the capital gains tax.  Republicans favor keeping the capital gains tax rate low or lowering it still further--in some proposals, to zero .  Democrats, by contrast, typically favor taxing capital gains at the same rates as ordinary income is taxed.  Here I want to explore one of the claims sometimes made in favor of a low or zero capital gains tax rate: That people whose gains are being taxed already paid tax on the income that formed the basis for the original investment that now has experienced a capital gain, and so it is unfair or "double taxation" to tax them on capital gains. This claim is pretty clearly nonsense, as explained very nicely here .  I can illustrate relatively simply.  Suppose Smith is an accountant who earns $100,...

By Mike Dorf My latest Verdict column enters the fray over Rep. Todd Akin's comments about rape and abortion.  After briefly delving into the science of traumatic insemination--including links to a picture of a duck penis and a Daily Show segment on bedbug sex--I explain that Akin's comments may be most significant because they undermine a claim that the pro-life movement has been making in various forms for a number of years now: that pro-life = pro-woman.  Although I do not use the term "war on women," other commentators have, as have Democratic politicians, seizing on Akin's comments to reinforce a view of the Republican Party as hostile to the interests of women. Here I want to interrogate the metaphor of a "war on women," using as my point of comparison the claim by FoxNews and other conservative pundits that liberals have been engaged in a "war on Christmas." We can begin by dividing "war on" usages into two categories: ...

-- Posted by Neil H. Buchanan [Update: Professor Dorf pointed me to an NPR story, which reported that Paul Ryan was a major architect of George W. Bush's ill-fated Social Security privatization plan, which I discuss below. No surprise that Ryan's fingerprints would be all over that failed plan. It does, however, make the political miscalculation that I describe in this post even more difficult to fathom.] This week, a political firestorm is engulfing a veteran Republican Congressman who seems to think that women have super-smart uteruses. As the comedian Andy Borowitz imagined Todd Akin's reasoning : "It’s almost like Spider-Man’s ‘spidey sense,’ if you will, except the tingling goes on down in the lady parts." Even the national Republican Party and its funding affiliates (including Karl Rove's group) have jumped ship, leaving the party's defiant nominee for a U.S. Senate seat to fend for himself. (Amazingly -- and this tells us more than we would eve...

Note from Mike Dorf:   In response to the doubts I raised about his argument concerning the constitutionality of Rep. Ryan (or anyone else) simultaneously serving in the House and as VP, Seth Barrett Tillman has written the following reply.  In addition to addressing that concrete question, it nicely frames some important questions in constitutional interpretation.  Now here's Seth. ---------------------------------------------------------------------------------------------------------- Professor Dorf and I agree on (at least) one thing. The position – that the President and Vice President are not Offices under the United States (as that expression is used in the Incompatibility Clause) – is not compelled by the text of the Constitution. The text-reliant position is strengthened by various post-1789 documents and incidents, including, among others: (i) President Washington’s conduct in regard to accepting both the key to the Bastille from LaFayette ...

By Mike Dorf On October 10, the Supreme Court will hear oral argument in Fisher v. University of Texas .  Judging by the volume of amicus briefs the Court has received, the case could be a blockbuster.  (For links to the amicus briefs and other documents in the case, click here .)  Or at the very least, we know that a lot of people and organizations think so.  I'm one of those people, working (pro bono) for one of those organizations.  Very ably aided by the students in the Stanford Law School Supreme Court Litigation Clinic, Pam Karlan, Jeff Fisher, Kevin Russell, Tom Goldstein, and I have written and filed a brief on behalf of the Association of American Law Schools.  (Pam and I also wrote the AALS amicus brief in Grutter v. Bollinger .) Below, I'll set forth the core of our brief's argument, but first I want to note how, in the course of working on it, I came to see this case as much more significant than I originally comprehended.  When the Co...

By Mike Dorf My latest Verdict column discusses the recent en banc decision of the Eighth Circuit , which upheld a South Dakota law that requires that a woman seeking an abortion be told that suicide and suicidal ideation are a "known risk" of abortion--even though there is no evidence that abortion causes suicide (or suicidal ideation).    The court found that the warning was neither false nor misleading.  I explain in the column why this is wrong.  Here I want to ask a somewhat broader question: Is there a free speech right not to be required by the government to lie?  And I want to suggest that although the answer is yes in many circumstances, it may not always be yes. In the Eighth Circuit en banc ruling, the court accepted that it would violate the abortion right for the government to require a doctor to provide a patient with false or misleading information about the risks of abortion.  The court inferred such a principle from the Supreme Court...

By Mike Dorf Seth Barrett Tillman's argument that the Constitution permits the same person to serve simultaneously in Congress and as either President or VP is elegant and seemingly airtight.  Nonetheless, I'm not persuaded by it, at least not yet.

Introductory note from Mike Dorf: This guest post by  Seth Barrett Tillman --a Lecturer in Law at the National University of Ireland, Maynooth--builds on some of his prior academic articles on the Constitution's Incompatibility Clause (three of which you can find here , here and here ).  The post is made timely by the news that Paul Ryan will be on the ballot in Wisconsin both for VP and for his House seat.  Meanwhile, because of the way my software looks, Professor Tillman's post has my name at the bottom, but that's just because it's being posted from my account.  Just after his post, I'll have a short post of my own commenting--and he'll post a reply later in the week. ------------------------------------------------------------------------------------------------------------------------------- Congressman and Vice President and President of the Senate: Can Paul Ryan hold them all at the same time? by Seth Barrett Tillman I want t...