Dorf on Law

[Note: After this post was sent out in the morning Dorf on Law email, I lightly edited the online version, to correct some typos, grammatical errors, and unclear phrasing that had survived the writing process.] -- Posted by Neil H. Buchanan My column today on Verdict discusses a welcome development in the discussion of the government's fiscal situation: the sudden realization that the "debt problem" is not such a problem after all.   Specifically, forecasts now show that the debt-to-GDP ratio is going to be falling for several years, and will only return to its current level about a decade from now.  That, at the very least, provides breathing room to determine whether the slowing of health care cost inflation is for real, and more generally to try to make that happen. I am not saying that this reality is now widely understood, but it has at least reached the point where political insiders like Tim Geithner admit it out loud.  The Center on Budget and Policy Pri...

Posted by Sherry F. Colb In my Verdict column for this week, I discuss Evans v. Michigan , a Double Jeopardy case pending in the U.S. Supreme Court.  The issue in Evans is whether the Fifth Amendment right against being tried more than once for the same crime precludes retrial when a judge, after the close of the State's evidence, grants the defendant's motion for a directed verdict on the basis of the judge's having mistakenly added an additional, non-existent element to the crime to be proved.  In my column, I discuss the issue in Evans  in the light of the Court's decision in Blueford v. Arkansas  last term. In this post, I want to consider the larger question of whether substance is more or less important to a just system than is process.  The Double Jeopardy Clause provides a primarily process-oriented right to criminal defendants, although it may serve substantive values, as I suggest in my column, by preventing an oppressive government agent from re...

By Mike Dorf **Updated: Here's the video link  or just watch below: This afternoon I'll be debating Alan Gura about the future of gun regulation in the U.S. in a Federalist Society sponsored event at Cornell .  I expect that we'll spend some of our time discussing state and local laws restricting public carriage of firearms, about which I wrote Verdict columns earlier this month ( here and here ).  In addition, I expect that we'll talk a bit about current efforts to tighten federal laws.  On that subject, I reproduce below a letter I recently sent to Sen. Dick Durbin, Chair of the Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights. ----------------------------------------------------------------- Dear Chairman Durbin:       I write to share with you my views regarding the constitutionality of current and proposed federal laws governing private possession of firearms. I come to this task as a consti...

By Mike Dorf For now, the DC Circuit opinion in Canning v. NLRB only has binding effect as between the parties to that case (or at least that's the Administration's position), but suppose the court's decision is affirmed by the SCOTUS.  Putting aside the merits of the rule (about which I expressed some doubts in my last post ), what would its scope be? Over the course of over six decades, there have been many hundreds of recess appointments that fall outside of the very narrow window in which the Canning court allows for recess appointments.  A Daily Kos blog post over the weekend suggested that Canning could backfire on Republicans by leading to the removal of recess appointees by past Republican presidents, but (as one commenter noted) this is plainly wrong: Quite apart from Canning , recess appointments expire at the end of the legislative session, so there are no more Republican recess appointees serving as federal officers (unless they were subsequently confirmed...

By Mike Dorf How outraged should Democrats be about Friday's ruling in Canning v. NLRB ? Quite a bit, I think, but it's not entirely clear to me that the ire should be directed entirely (or even mostly) at the DC Circuit panel that decided the case. Oh sure, it's easy to call the Republican appointees hypocrites or hacks, as the inimitable Charlie Pierce does over at Esquire . And maybe he has a point. Just as it was awfully suspicious that five conservatives discovered equal protection and renounced states' rights in Bush v. Gore , so too, one might be inclined to raise an eyebrow or two about the fact that a conservative panel waited for a Democratic Presidency to invalidate nearly all recess appointments. But even if there's more than a kernel of truth in such accusations, one can find a fair number of corresponding suspiciously timed Democratic flip-flops and more to the point, being a hypocrite or a hack doesn't necessarily make you wrong. So, is the ru...

-- Posted by Neil H. Buchanan I have been extremely critical of President Obama, starting even before he took office four years ago.  (Remember the controversy over the right-wing evangelist, whom Obama invited to give the invocation prayer at the first inaugural?)   He chose an economic team that was, completely predictably , a retread of the team that talked then-President-elect Clinton in 1992 into dropping his plans to increase public investment, and which happily set in motion the pro-Wall Street regulatory changes in 1999 that led to the financial crisis in 2008. As disappointed as I was during and immediately after the transition in 2008-09, however, I could never have imagined that Obama would adopt economic orthodoxy as much as he has, especially his turn toward deficit reduction in 2010.  He actively defended a much-too-weak stimulus, and he pushed for fiscal contraction when there was no evidence that the economy was even close to recovering.  By the...

-- Posted by Neil H. Buchanan Before I proceed to today's brief post, I wanted to point interested readers toward an extremely good series of videos and commentaries at another site.  Two weeks ago, during the height of the debt ceiling craziness, I was contacted by one C.G.P. Grey , a London-based writer/producer of educational materials, who was trying to make sense of the U.S. debt ceiling debate.  He had a great script nearly ready to go, and he was looking for some consultation on some final details. I am pleased to say that I had some small part in the final result, a video (less than four minutes long) that viewers can find here .  The script is available at Grey's website here .  Given the thousands of words that I have written on this topic, it is downright scary to see how much can be conveyed in so few words.  Not satisfied with doing me one better on the debt ceiling, Grey also managed to write a single blog post that bested me on two of my favo...

By Mike Dorf My Verdict column for this week is part 2 of my 2-parter on the 40th anniversary of Roe v. Wade .  ( Part 1 and the accompanying blog post appeared on Thursday of last week.)  In Part 2, I consider the claim that Roe went too far, too fast--that a less sweeping decision merely invalidating the Texas law at issue in Roe  would have invited a dialogue between the Court and the People, which in turn would have resulted in less contentiousness and roughly the same degree of liberalization of abortion law that Roe decreed.  I argue that these claims are highly speculative at best and probably false. Most of my argument against the too-far-too-fast hypothesis rests on two factual observations: (1) Its proponents overstate the degree to which state legislatures were in the process of liberalizing abortion law when Roe constitutionalized the subject; and (2) in the two decades since Planned Parenthood v. Casey , we have seen that legislatures given greate...

By Mike Dorf The Ken Burns et al film The Central Park Five tells the story of how five teenage boys came to confess to a notorious crime they did not commit: the 1989 brutal rape of a woman who came to be known as the "Central Park jogger." It's a story of an injustice perpetrated, discovered and not yet corrected.  The CP5, by now grown men, were exonerated in 2002 when serial killer Matias Reyes   acknowledged that he had in fact committed the attack and had acted alone. Re-examination of the evidence confirmed his confession. There had never been any physical evidence against any of The Five and Reyes was a DNA match for semen found on the victim. The Five filed a federal civil rights lawsuit against NYC and various government officials who were responsible for the investigation and prosecution of the crime. At least based on the portrayal of events in the film, the case looks like a possible winner for the plaintiffs--although the threshold for victory is high. ...

By Robert Hockett        A certain rightwing radio 'personality' with a for-some-reason perpetually wheezy, windbaggy voice and a wide following has apparently undertaken to illuminate for us the true significance of the Martin Luther King holiday as celebrated this year: It is that the Second Amendment to the U.S. Constitution guarantees what Americans of African descent should have regarded as one of the most important civil rights of all in the 1950s and 1960s - the right to take up arms. Had they but carried firearms, this personality excitedly suggests, ' they would [not] have needed Selma .'        It scarcely needs pointing out that the ironies here simply abound. For one thing, of course, the very reason we celebrate Dr. King, his movement, and their legacy in the way that we do as a nation is that, like the Mahatma whose example he and his followers followed, Dr. King expressly eschewed violent means of attainin...

-- Posted by Neil H. Buchanan This is just a quick (by my standards) Saturday post, to make two points: (1) I share both halves of Professor Dorf's reaction to yesterday's announcement by House Republicans that they will create three months of additional room under the debt ceiling.  Because the federal government formally hit the debt ceiling on December 31, 2012, this should take us through the end of the current continuing resolution under which the government is operating (March 27, 2013).  In negotiations for another continuing resolution to take us (at least part of the way) through the remainder of the fiscal year, presumably they will threaten default again. I will just add that Mike and I have been thinking longer-term for some time now, working through the logic regarding how our framework might apply to various strategies during budget negotiations going forward.  I think everyone in Washington is now presuming that something like " the Gephardt Rule ...

By Mike Dorf As a constitutional law scholar, I often find myself in the awkward position of benefiting professionally from constitutional crises: Each time some government actor finds some new way to violate the Constitution and threaten serious pain for the country, I have a new topic to teach and write about.  Thus, for the last year and a half, I have watched in a state of both dread and elation, as the possibility of an impasse over the debt ceiling both threatened the full faith and credit of the United States and shone a spotlight on my work (in this instance, co-authored with Professor Buchanan).  Accordingly, I was happy for the country and disappointed professionally when the news broke that House Republicans were caving on the debt ceiling.  Until I read the details . To begin, it is possible that no deal will be reached if Senate Democrats find the terms unacceptable. Apparently the offer to raise the debt ceiling would include in the same legislation a pr...

-- Posted by Neil H. Buchanan Over the last few years, I have occasionally poked fun at New York Times op-ed columnist Thomas Friedman.  Plenty of people do .  He is a bad joke, a phenomenon unto himself, selling millions of books to people who somehow are able to convince themselves that a series of non sequiturs and meaningless anecdotes -- published under almost-clever-sounding titles that do not even say what he apparently means them to say -- add up to something other than incoherent drivel.  And the self-importance.  Oh, the self-importance ! As part of my most recent reference to some prime Friedman nonsense (in my " Fake Centrism, Part 1 " post on December 27), I provided a link to a " Thomas Friedman Op-Ed Generator ," which Professor Dorf had brought to my attention.  It is hilarious.  After I wrote that post, one of my research assistants sent me a link to the Salon writer Alex Pareene's annual " Hack List ," which included a take-dow...

Editor's Note: The following post is by (and reflects the views of) Professor  Eric J. Segall of Georgia State University College of Law.  Professor Segall is the author of, among other things, the recent book Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges .   ----------------------------------------------------------------------------------------------------------------------------        The media attention on the Supreme Court has diminished significantly since June when the Court issued its opinion in the Affordable Care Act case. In the first half of 2013, however, the Supreme Court will have the opportunity in two potentially landmark cases to either further the cause of racial equality or set it back over fifty years.  The stakes of these cases for this country’s racial problems cannot be overstated. If history is any guide, however, the Court is likely to reject efforts by elected and politically a...