Dorf on Law

-- Posted by Neil H. Buchanan Three days ago, my Dorf on Law post focused on an odd controversy regarding how people say they will respond to the potential tax increases on the wealthy that might soon become reality in this country.  With many conservatives still surprised by the (completely predictable -- and accurately predicted) re-election of President Obama, apparently more than a few are now in panic mode.  They are certain that Obama will somehow get a big tax increase enacted into law, and they are promising to react badly if he does. In some ways, this is reminiscent of the last, worst argument that supporters of the now-forgotten Romney/Ryan ticket offered earlier this month, the essence of which was: "Vote for Romney, because we're going to be even more obstructionist if Obama wins a second term.  At least something will get done with Romney in the White House."  Many commentators rightly denounced that threat as tantamount to blackmail.  Simi...

-- Posted by Neil H. Buchanan Three days ago, my Dorf on Law post focused on an odd controversy regarding how people say they will respond to the potential tax increases on the wealthy that might soon become reality in this country.  With many conservatives still surprised by the (completely predictable -- and accurately predicted) re-election of President Obama, apparently more than a few are now in panic mode.  They are certain that Obama will somehow get a big tax increase enacted into law, and they are promising to react badly if he does. In some ways, this is reminiscent of the last, worst argument that supporters of the now-forgotten Romney/Ryan ticket offered earlier this month, the essence of which was: "Vote for Romney, because we're going to be even more obstructionist if Obama wins a second term.  At least something will get done with Romney in the White House."  Many commentators rightly denounced that threat as tantamount to blackmai...

Posted by Anil Kalhan This fall, I have been privileged to participate as a moderator and panelist in a terrific series of events convened across the country by Human Rights First, Dialogues on Detention: Applying Lessons from Criminal Justice Reform to the Immigration Detention System . The fourth of these day-long events will be held tomorrow (Friday, November 30) at Loyola University New Orleans Law School. As described on the HRF website: The Dialogues convene experts, academics, policymakers, practitioners, advocates, and the private bar working in the immigration detention and corrections/criminal justice fields, as well as formerly detained individuals, to share knowledge, experiences, and best practices. We aim to help shift the national conversation on immigration detention, build alliances between stakeholders in both fields, and lay the groundwork for future improvements in policy and practice. * * * Although detention in each context occurs under different legal authoriti...

By Sherry F. Colb In my Verdict column for this week , I discuss a European Court of Human Rights (ECHR) decision upholding a German court's injunction against the publication by PETA (the People for the Ethical Treatment of Animals) - Deutschland (PETA-D) of a series of posters that compare the animal cruelty and slaughter of the animal-based food industry to the Holocaust.  In my column, I take up three questions:  (1) Was the PETA campaign strategically wise?, (2) Does comparing nonhuman animal victims to human victims  necessarily insult or degrade the status of the humans?, and (3) Might the offense that people take reflect something less noble than an identification with human victims of the Holocaust? In this post, I want to offer the hypothesis that comparing victims of distinct harms disserves the victims of both harms.  To analyze this hypothesis, let us consider an analogy that members of the pro-life movement sometimes draw, between the Holocaust ...

By Mike Dorf Yesterday the Supreme Court granted a petition for rehearing in Liberty University v. Geithner , asking the Fourth Circuit--which had previously rejected this challenge to the Affordable Care Act on the ground that it was barred by the Tax Anti Injunction Act--to consider the case again in light of the June ruling upholding the ACA. Why send the case back rather than just let it die?  Well, for one thing, the Supreme Court's ruling in June effectively reverses the Fourth Circuit's holding with respect to the Tax Anti Injunction Act.  On remand the Fourth Circuit will initially have to determine whether there is any reason to interpret the challenge to the employer mandate differently from the challenge to the individual mandate when it comes to timing. On the merits, it is nearly impossible to imagine the Fourth Circuit holding that the ACA exceeded the affirmative powers of Congress.  In addition to the taxing power argument that prevailed in the Sup...

-- Posted by Neil H. Buchanan There is an emerging category of news article that has become ubiquitous in the post-election period.  Call it the "Rich Folks Can't Believe What Happened, and They Don't Know What To Do Next" story.  Essentially, there is a big freak-out going on among the high-income people who believed the Fox News-iverse's narrative that Mitt Romney and Paul Ryan would easily win the election.  Those people are now suddenly confronted with the unbearable thought that their taxes might go up somewhat in the near future.  Many of them, apparently, do not know what to do now. The news media has been filled with stories about companies announcing that they are laying people off in advance, just to be ahead of any tax increases that might be imposed.  Faced with the dreaded "Obamacare" implementation, other companies are cutting some employees off from all health care coverage.  Business media are filled with advice about how to pay taxe...

By Mike Dorf My latest Verdict column asks what issue or issues should frame President Obama's second term.  I end up advocating what I call a "cost-internalization" agenda, but before coming to that proposal I consider and reject the notion that whatever grand bargain emerges from the fiscal cliff negotiations should be the centerpiece of the second term.  I agree that it is important to avoid the fiscal cliff but I express disagreement with the conventional wisdom that appears to be accepted by all parties: that it's important to dramatically reduce the deficit now.  Instead, I note that the long-term driver of the deficit (and other economic ills) is health-care cost inflation. How did we arrive at the conventional wisdom?  Some substantial portion of the responsibility belongs to Warren Rudman, who passed away yesterday.  Rudman was a genuine patriot who cared deeply about the country, but he was also a deficit hawk whose legacy has arguably made us wor...

By Mike Dorf Much of the attention in DC over the last few days has turned to John McCain's efforts to prevent Susan Rice from becoming Secretary of State--apparently so that the post can go to his fellow failed Presidential candidate, John Kerry.  Meanwhile, ambitious current and former under-secretaries of this, that and the other thing and deputy directors of something else are no doubt polishing up their resumes in the hope of moving up the DC food chain in the second Obama administration.  For many such people, the endoscopic questionnaire is a small indignity to bear in exchange for the chance to serve the public interest and/or exercise vast power. Some number of the applicants for positions in the administration and--should the president get around to filling vacancies--Article III judgeships, are academics, which may prove problematic.  After all, in modern times, a strong academic record of publications provides opponents of any potential nominee with consi...

By Mike Dorf The legalization of recreational marijuana by the states of Colorado and Washington does not change anything in principle from the status quo ante in which various states (including Colorado and Washington) had legalized medical marijuana.  Before, as now, state legalization created an apparent enforcement conundrum for the federal executive officials (largely in the DEA and the FBI) responsible for enforcing the federal Controlled Substances Act.  At least since the Supreme Court's 2005 decision in Gonzales v. Raich ,  it has been clear that federal power under the Commerce Clause extends to marijuana grown within a state for purposes of consumption within that state, even if legal under state law.  In this post, I want to make a few observations about the relations between state and federal law enforcement in areas in which authority overlaps but policy differs. Prior to the middle of the 19th Century and the Supreme Court's ruling in Cooley v. Boa...

-- Posted by Neil H. Buchanan In my ongoing series of posts (most recently, yesterday's ) shining a spotlight on the sociopathy that has come to dominate Republican policies and tactics, I have tried to be clear that this critique does not apply to all Republican or conservative voters, nor does it even apply to all Republican leaders.  We must bear in mind, however, that this critique does apply to a large part of the party's base, and to a vast majority of its leaders.  The "Let 'em die!" attitudes of the hard-core Tea Partiers are hardly a fringe view among Republicans, after all -- and certainly not among their leaders. Even so, it is important to try to separate good faith from bad, and muddle-headedness from ill intent.  In that regard, I recently received an email from a Republican friend who protested that many Republican leaders are sincere in their beliefs that the policies they espouse are actually good for the nation.  This is apparently meant to...

-- Posted by Neil H. Buchanan The election is over, and tempers have cooled a bit.  Was my decision to call many of the leaders of the Republican Party sociopaths (see my most recent Dorf on Law post on that theme , which contains links to a previous post and a Verdict column) an example of something written in the heat of the moment, best left alone or recanted, now that the votes have been counted? I guess I can see why one might think so, but the answer is no.  My argument was not, in fact, generated by the heat of partisan battle.  As I said at the time, this is not at all the same thing as those in the Fox News-iverse who call Obama a communist, fascist, socialist, Kenyan, Nazi.  Words have meaning, and none of those words can at all correctly be applied to Obama.  Sadly, the leaders of the Republican Party have, for many years now -- and certainly during this election cycle -- been displaying behavior that fits the definition of sociopathy.  In p...

By Mike Dorf "Kicking the can down the road" is not usually a positive metaphor.  One who engages in can-kicking fails to tackle a problem, instead deferring it to later, when it may be far worse.  But can-kicking may sometimes be a good policy, or at least a better option than the alternatives.  In my latest Verdict column , I argue that the President and Congress would do well to kick the can down the road, punt, cop out, etc., rather than addressing the supposedly "real" problem represented by the fiscal cliff.  Republicans want to avoid tax hikes for the wealthy, while Democrats want to avoid deep spending cuts.  I argue that they can both get what they want (for now) if they simply agree to let the short-term deficit grow. But won't that add to the debt?  In the short run, yes, but in the long run maybe not.  The Bush wars and tax cuts (the latter renewed by Congress and President Obama two years ago) are major drivers of the deficit and debt,...

by  Antonio M. Haynes In my guest column yesterday on Justia, I discussed “The Safer Sex in the Adult Film Industry Act,” an initiative approved by Los Angeles County voters that will mandate the use of condoms on adult film sets.   As I discussed in the column, if viewed as a content-based restriction of non-obscene speech, the Act cannot survive strict scrutiny.   In my view, the Act also visits serious dignitary harms on the workers of the adult film industry.   Required condom use, I suggested, is problematic because it deprives workers in the adult film industry of the “dignity of risk.” The “ dignity of risk ” is a phrase that grew out of the experience of those who advocated the deinstitutionalization of the developmentally disabled during the 1970s.   Today, the phrase is often used by those who advocate allowing elderly patients to continue to live independently as long as possible.   At its core, the concept reminds us that part of the...