Dorf on Law

-- Posted by Neil H. Buchanan Because of the kind of writing that we do on Dorf on Law , we occasionally imagine that we can place an op-ed piece in one of the big-time newspapers (the ones that still exist).  This is almost always a fool's errand, because the odds are ridiculously stacked against any over-the-transom submission to such places.  At least, that's what I tell myself.  In any event, DoL readers (and writers) are not the slaves of those dastardly editors.  Enjoy! While the Debt Ceiling Slept   When Americans woke up on Sunday, May 19, the debt ceiling woke up, too.   Remember the debt ceiling?   Earlier this year, Republicans in Congress were again threatening to allow the federal government to default on its obligations, by refusing to increase the debt ceiling.   When the politics of that latest hostage-taking episode turned against them, they temporarily suspended the ceiling. On February 4, there...

-- Posted by Neil H. Buchanan In a Dorf on Law post almost two weeks ago, I argued that the recent IRS non-scandal-scandal is another good moment to wish that our journalists had not been depleted and dumbed down to the point where we now actually receive better independent commentary from late-night comedians.  When relying on those comedians works, it works well.  There are times when it is truly amazing to see how well Jon Stewart and Stephen Colbert can cut to the heart of a matter, in a way that straight journalists never could. As I pointed out in that post, however, the danger is that Stewart and Colbert (and SNL, and the networks' late night guys) are often ill-suited to the task of speaking truth to power.  They frequently take cheap shots and easy outs, sometimes making matters worse.  For example, shortly after I wrote that post, Stewart ran a segment about one of the IRS officials who is under fire, Lois Lerner, and her decision to invoke the 5th Ame...

by Sherry F. Colb In my Verdict column for this week , I discuss anti-lawyer sentiment as a reflection of a more general "rugged individualist" ethos that says people should handle bullies on their own rather than seeking third-party (e.g. court) intervention.  In the course of offering my analysis, I acknowledge that even as we support victims seeking redress through third-party assistance, it is simultaneously useful to educate people about the choices that they have for handling bullies.  In this post, I want to discuss one form of quasi-bullying that people encounter and that is often not amenable to litigation:  the "can you do me a favor?" request. For many people, a request for a favor poses no special challenges.  If someone asks you to take care of something for them, and you are not inclined to do it, you simply say "no."  If you are such a person, then odds are good that you only occasionally encounter the sorts of unreasonable requests that...

By Mike Dorf Last week, the SCOTUS granted cert in Town of Greece v. Galloway .   The case presents the question whether the Town of Greece (near Rochester, NY) violates the Establishment Clause by beginning its town board meetings with an official prayer.  The Second Circuit found a violation , although it did so on grounds that appear to be limited to the particular factual record.  In light of Marsh v. Chambers --which upheld a state practice of beginning each legislative day with a prayer by an official chaplain on the ground that such prayers were part of a tradition going back to the Founding--the appeals court acknowledged that in general, opening the sessions of a town board with a prayer would not amount to an Establishment Clause violation. The Second Circuit thus cabined its holding with numerous caveats.  For example, the court said that sectarian prayers are not per se invalid.  But given a longstanding pattern by which the town invited only Chr...

By Mike Dorf In commemoration of Memorial Day Weekend, I'd like to (mostly) praise President Obama for his speech late last week at the National Defense University.  I'll begin with the praise. Obama is already being criticized by the right for abandoning a policy of targeting al Qaeda leadership just when, by his own lights, it has succeeded in weakening the organization.  If we take our foot off the gas now, they say, won't al Qaeda use the opportunity to rebuild?  That is a legitimate question--or it would be if it were posed by people who don't simply oppose a policy on the ground that the President supports it. In any event, although Obama did not directly address this anticipated criticism in his speech, the speech contains an implicit answer: The costs of going after "core" al Qaeda at full throttle now outweigh the benefits.  Those costs include gigantic sums of money that could be put to better use at home or abroad; civilian casualties; puttin...

-- Posted by Neil H. Buchanan In a post last week , I mentioned in passing that I am currently in Austria.  In fact, I am the PwC Visiting Professor of Law at Wirtschafts Universitat Wien (the University of Business and Economics in Vienna).  I am here for one month, teaching a course and delivering various lectures and seminars.  Yesterday evening was the big event, my featured lecture with a panel of discussants, in which I explained the U.S. debt ceiling and the dangers for the world economy and financial system that would result from putting the President in a trilemma .  (The gift that keeps on giving.) My hosts at WU are fantastic, and the students (many Austrians, of course, as well as many from around Europe and the world) are top notch -- masters and doctoral students, some pursuing pure tax degrees, while others are involved in interdisciplinary programs. Because this is the last post that I am scheduled to write during my stay here, and because I hav...

-- Posted by Neil H. Buchanan My new Verdict column today takes a different angle on the non-scandal-scandal involving the IRS.  I address the ubiquity of "tax expenditures," which are the "tax cuts" that Congress (on a VERY bipartisan basis) loves to pass, but which are the equivalent of direct spending by the federal government (mortgage interest deductions, research and development tax credits, child tax credits, excludibility of employer-provided health insurance, and on and on and on and on).  Both methods of subsidizing favored activities have the same impact on deficits and debt, but Congress (especially, of course, Republicans in Congress) loves tax expenditures and hates government spending. I have always been a bit of an outlier among tax scholars in my attitude about tax expenditures.  The standard view, which has a great deal to be said for it, is that Congress should stop mislabeling spending as tax reductions, essentially because it is better fo...

By Mike Dorf My new Verdict column discusses Monday's SCOTUS decision in Metrish v. Lancaster .  Writing for a unanimous Court, Justice Ginsburg's opinion says that regardless of whether Lancaster's due process rights were violated when he was not permitted to offer a diminished capacity defense that was on the books at the time of the crime charged, the Michigan state court decision denying him that opportunity was not an "unreasonable" interpretation of Supreme Court case law; thus, under the Antiterrorism and Effective Death Penalty Act (AEDPA), the Court said that Lancaster was not entitled to habeas relief.  My column locates Lancaster and AEDPA in the decades-long retreat from expansive notions of habeas as a collateral remedy expounded during the Warren Court era. Here I want to ask the question that the Court finds unnecessary to reach in light of AEDPA's deferential standard of review of state court applications of federal law: Were Lancaster...

By Mike Dorf Even as the IRS "scandal" continues to cause hyper-ventilation on the right, various progressives have been beating a different drum.  Tea Party and similar groups, they say, never should have been permitted tax exemptions in the first place because the relevant statutory language ( Section 501(c)(4) of the Internal Revenue Code ) says that an organization is entitled to such status only if it "exclusively" promotes the social welfare, but the IRS was merely requiring that such organizations "primarily" promote the social welfare, permitting them to engage in some political activity.  According to these critics from the left, the real problem is the longstanding regulation  and implementing tax opinions (described in an IRS tax manual ) that have been too permissive in granting tax-exempt status. Are these critics correct?  Well, no and yes.  On the face of it, it seems quite odd to interpret "exclusively" to mean "primaril...

By Mike Dorf Today I'll discuss two ways in which the IRS "scandal" reflects broader features of contemporary American politics.  I'll follow up tomorrow with a post that asks the question whether there is any realistic prospect of changing the policy by which the IRS interprets the exemption from taxation for 501(c)(4) organizations that are "operated exclusively for the promotion of social welfare" to mean organizations that are operated "primarily" for the promotion of the social welfare.  (Hint: The answer will be no.) (1) Separate Factoverses and False Equivalence Even judged only by the comments on one of Professor Buchanan's posts on the IRS/Tea Party "scandal" last week, I am reminded that Americans believe they are entitled not only to their own opinions but to their own facts.  Those informed by right-wing media insist that where there's smoke there's fire, that Tea Party activists were harassed by the IRS an...

-- Posted by Neil H. Buchanan At apparently the same time that I was writing my Dorf on Law post yesterday , the editorial board of The New York Times was reaching essentially the same conclusions .  Although they did not focus as much attention on the IRS non-scandal-scandal, they made the important point that this "week of scandals" that supposedly has changed everything is, in fact, a bunch of small-bore matters that have somehow been turned into a whole that is much bigger than its parts.  Even taking seriously the notion of "totality of the circumstances," there is still nothing but a disconnected handful of matters that Republicans are now screaming about. As if to show that content does not matter, the show trials are already set to begin.  Today, the House Ways & Means oversight subcommittee will hold the first of what promises to be many, MANY hearings on the IRS's "targeting" of Tea Party groups.  (As I said yesterday, the notion th...

-- Posted by Neil H. Buchanan Last Friday, a news story broke that quickly came to be known as "the IRS scandal."  Even the just-the-facts-ma'am TaxProf Blog has taken to posting daily collections of news stories under that title, accompanied by the number of days since the story broke, e.g., " The IRS Scandal, Day 7 " today.  Move over, Iranian Hostage Crisis!  (Who will be the new Ted Koppel, to emerge from this media frenzy?) This is not to criticize TaxProf, or anyone else who is calling this a scandal.  It is certainly being treated as one, by almost everyone, and it is difficult to resist a powerful narrative.  Something did go wrong at the IRS, and it should be investigated and put right.  There really are good reasons why everyone should worry about what happened.  Based on what we know, however, this is either a medium-sized story that is being blown up into a huge story for partisan (and media-driven) reasons, or it is a big story that is...