Dorf on Law

By Mike Dorf As I write this post, the ball is back in the Republican-led House of Representatives, which seems intent on making some changes to the Affordable Care Act as the price of agreeing to any measure designed to avert a government shutdown.  Meanwhile, the emerging Democratic party line -- voiced by Illinois Senator Dick Durbin over the weekend and more or less repeated by President Obama today -- goes like this: We are willing to negotiate over budget issues as well as the terms of the ACA, but not (as Durbin put it) "with a gun to our head."  Thus far, Republicans aren't moving, due to some combination of: (1) the belief that in fact they have more leverage while holding the gun to the Democrats' head; (2) the failure to understand that the gun is pointed at their own heads to an equal or greater extent as it is pointed at the Democrats'; and (3) blind rage. With events moving quickly, I thought I'd dash off a very quick observation and then per...

By Mike Dorf The summary judgment ruling in Garden State Equality v. Dow   raises interesting substantive questions but as a federal jurisdiction scholar, I can't help but find myself fascinated by a seemingly arcane procedural aspect of the case: If it is affirmed by the NJ intermediate appellate court and the New Jersey Supreme Court, will SCOTUS review be possible?  I think the answer is just barely yes, but for reasons that readers may find surprising.  The case implicates a very nice question of federal procedural law: When does a state court discussion of federal law create a case that arises under federal law within the meaning of Article III and the relevant federal jurisdictional statute? Let's begin with the NJ background.  Back in 2006, in Lewis v. Harris , the NJ Supreme Court held that the NJ Constitution obligates the state either to recognize same-sex marriage or to create an institution that affords same-sex couples all of the legal benefits of ma...

-- Posted by Neil H. Buchanan Thanks to a comment from a friend of Dorf on Law , I can now correct some information from Friday's short post regarding the methods for accessing and reading my ebook, The Debt Ceiling Disasters . Amazon provides an app which allows Kindle books to be read on a computer.  The app can be downloaded here: https://read.amazon.com/. So, here are the three sources from which the ebook can be purchased:  -- Amazon: http://www.amazon.com/Debt-Ceiling-Disasters-Constitutional-ebook/dp/B00EZSM6KK/ -- Apple iTunes: https://itunes.apple.com/us/book/the-debt-ceiling-disasters/id700348690?mt=11 --  Google Play: https://play.google.com/store/books/details/Neil_H_Buchanan_The_Debt_Ceiling_Disasters?id=6YeyAAAAQBAJ

By Mike Dorf Desperate times demand desperate measures and so I'm accelerating my Monday blog post to Saturday. No, that's just a little joke.  The real desperate measure I have in mind is what I'm going to call the "Coalition Option."  It rests on the assumption that Speaker John Boehner is one of at least 17 Republicans who are neither themselves believers in the Tea Party agenda nor so afraid of a primary challenge from a Tea Party candidate that they are willing to back the plan to shut down the government and/or default on U.S. obligations in order to take a stand against Obamacare and what they regard as unsustainable debt.  That is, I'm going to assume that Boehner and at least 16 other Republicans would be willing to join with the 200 Democrats to form a majority in favor of funding the government and paying the government's bills.  Doing so would violate the "Hastert Rule"--under which the Speaker only brings to the floor measures that...

-- Posted by Neil H. Buchanan My new book, The Debt Ceiling Disasters: How the Republicans Created an Unnecessary Constitutional Crisis and How the Democrats Can Fight Back , was originally available only on Kindle .  It is now available also on the iTunes store , and on Google Play .  The latter format appears to be the only one that can be read on a standard computer (desktop or laptop), rather than Kindles or smartphones/tablets.  Enjoy! UPDATE: Amazon provides an app which allows Kindle books to be read on a computer.  The app can be downloaded here: https://read.amazon.com/.

-- Posted by Neil H. Buchanan Given the strong possibility that Republicans will not increase the debt ceiling before the October 17 date when the government will be unable to pay all of its bills, many people have been trying to figure out just what the Treasury Department will do if the President decides not to issue additional debt at that point.  If Treasury cannot make good on some obligations, what are its choices?  Republicans claim that there is only a "default" if Treasury fails to pay interest on outstanding Treasury securities, and they say that there is more than enough tax revenue coming in to cover those obligations.  Apparently, those Republicans believe that nothing else would count as a default.  They are, of course, wrong.  As Professor Dorf and I argued in our first Columbia Law Review article last October, the argument that the government's debt includes only principal and interest on Treasuries does not take its own logic seriously....

-- Posted by Neil H. Buchanan In my new column on Verdict today , I argue that the reelection of Angela Merkel as Chancellor of Germany is bad news for everyone.  Basically, I argue that austerity and the euro are bad, and Merkel is the most powerful champion of austerity and the euro, so Merkel's reelection is bad.  Q.E.D. I do allow for the possibility that Merkel could yet see the light, but I deem that unlikely.  I also note that she is hardly alone among German political and economic elites in her views on these issues, because the policy community there has learned the wrong lesson from the rise of Hitler.  They think that everything rides on preventing a return of hyper-inflation, and they are willing to inflict extreme pain (on other people, of course) to prevent placing even the tip of one toe on what they view as an impossibly slippery slope.  For some reason, they do not think that mass unemployment (especially when it is caused by powerful forei...

By Mike Dorf My latest Verdict column asks whether last week's mass shootings will lead to legislative action on gun control.  I suggest that the answer is no, not just because of the strength of the gun rights lobby but also because of the fact that gun rights supporters are more likely to be single-issue voters than gun control supporters are.  I then provide some analysis of the mechanism by which voter preference intensity translates into public policy. Here I want to consider another factor: the role of the Supreme Court.  In particular, I'd like to offer a hypothesis about why the Court's pro-gun-rights rulings in DC v. Heller and McDonald v. City of Chicago did not strengthen the political position of gun control proponents. Before coming to my hypothesis, however, I need to explain why one might have thought that Supreme Court defeats for gun control would strengthen rather than weaken the position of control proponents. After all, Americans often regard ...

By Mike Dorf Last week, Dan Alonso , the chief assistant district attorney in New York County, gave a talk at Cornell in which he promoted the recommendations of a task force (described here ) that looked into reforming state laws governing the prosecution of white collar crime.  Although he embargoed full disclosure of those recommendations, today (and possibly already by the time this post runs), Alonso's boss, DA Cyrus Vance, Jr., will unveil the full package of proposed reforms at a press conference.  Here I want to discuss one such proposed reform that is no secret because Vance and others (including Governor Andrew Cuomo ) have made the case for it already: Replacing the automatic transactional immunity that grand jury witnesses receive with use-and-derivative-use immunity. First, the background.  A witness called to testify before any kind of court has a Fifth Amendment right against self-incrimination.  Yet witnesses to crime are often criminal suspects t...

By Mike Dorf Although it is too soon in his papacy to draw definitive conclusions, it now appears that Pope Francis is a genuine reformer who seeks to shift the focus of the energy of the Catholic Church from its "obsession" with sexual morality towards aiding the least fortunate.  And it appears that his reformist plans extend to other areas as well.  As I said, though, it's still too soon for a definitive assessment, as the Pope already appears to be walking back some of the implications for abortion of his interview with  La Civilta Cattolica . But let's suppose that the preliminary assessment turns out to be correct and that Pope Francis turns out to be a reformer.  If so, how did he become Pope?  After all, the College of Cardinals that elected him was packed with conservatives by his conservative predecessors. The question applies to other contexts as well.  How did Deng Xiaoping become premier, and implement market-oriented reforms that aband...

-- Posted by Neil H. Buchanan As I was channel surfing last night, I came across a segment on Rachel Maddow's show about the Beltway's response to the non-attack on Syria.  Her point was that even though the American people were (and are) overwhelmingly opposed to military intervention, and Congress balked at giving its blessing, and the situation has now at least temporarily been resolved through diplomatic means, the pundit class is in a collective fit over Obama's supposed failure to provide leadership.  She noted that the usual suspects seem to be quite unhappy that they did not get a new war.  As much as I have complained recently about the Beltway establishment's treatment of budget issues (e.g., yesterday's Dorf on Law post ), I must say that their war-mongering is even more disgusting. Maddow then interviewed former Congressman Barney Frank, who pointed out that members of Congress and the punditocracy have often complained about Presidential arrogance ...

-- Posted by Neil H. Buchanan On Tuesday of this week, the Congressional Budget Office (CBO) issued its new report, " The 2013 Long-Term Budget Outlook ."  If I was correct in my blog post from last Friday -- " The Worst Economic Reporting in History: Has It Ever Been Thus? " -- the news articles describing the report should have been extremely bad; and they were.  I did not expect to be proved right so quickly, and I would like to have been proved wrong. How bad was it in The New York Times , which continues to be head and shoulders above a very unimpressive group of peers?  Mixed, but still bad.  The Times news article (not an op-ed) managed to be both sober-sounding and deeply misleading.  In other words, business as usual. But first, the good news.  The article's headline, and arguably its main point, was that Congress's only "successes" in cutting spending over the last few years were in exactly the areas where it matters least to the ...

By Sherry F. Colb In my column for this week , I discuss the abortion case of Cline v. Oklahoma Coalition for Reproductive Justice , on which the Supreme Court granted certiori in June.  The case raises the question whether an Oklahoma abortion statute violates a woman's constitutional right to terminate her pregnancy.  The statute provides that if a doctor wishes to prescribe RU-486, an abortion medication indicated for the first trimester of pregnancy, he or she must do so in accordance with FDA labeling instructions from 2000, when the drug was first approved.  The problem with this requirement, as I discuss in the column, is that it -- among other things -- demands a dosage that is three times what doctors currently consider medically sound.  The result is thus to deter doctors from prescribing the medicine at all, by demanding malpractice by those who do, and thereby to effectively (and intentionally) create an impediment for women in Oklahoma who wish to obt...

By Mike Dorf Another Constitution Day  is upon us.  As I noted last year , a law hatched by the late Senator Robert Byrd mandates that institutions receiving federal funds (like Cornell) commemorate the anniversary of the Constitution with an annual day of educational programming.  Here is the program at Cornell: Noon Panel: "The State of the Constitution" with me, my colleague Josh Chafetz, Rich Ford of Stanford, and moderated by my colleague Chantal Thomas. 3:45 Panel: "The Constitution in the World" with Cornell English Professor Liz Anker, my colleague Laura Underkuffler, Noah Feldman of Harvard, and moderated by my colleague Aziz Rana. What am I saying about "the State of the Constitution"?  Well, to be honest, until the weekend, I didn't realize that the panel even had a title.  I was told simply to say something about the Constitution, connecting it to my scholarship if I wanted.  Here's the condensed version of my remarks: Since t...

By Mike Dorf What should we make of the eight scenarios of, by turns, consensual and non-consensual sex that Yale University has published to provide guidance to its undergraduates (and others) about what counts as a violation of the university policy requiring affirmative consent for sexual contact?  Reminiscent of a similar policy adopted by Antioch College twenty years ago, the Yale policy has predictably been ridiculed from what we might loosely call the boys-will-be-boys right, as in this (admittedly pretty funny and not all that offensive) parody on Gawker . I suppose that the best one can expect from the general culture is the tone of the NY Times story on the Yale policy: recognizing the existence of a real underlying problem but still bemused by the efforts of nerds of my generation to formulate a policy for a generation of twerkers whose social world we barely understand, even if (perhaps because?) they are our own children. Meanwhile, some feminists critique the ...

-- Neil H. Buchanan My new Verdict column , published yesterday, carries the somewhat ungainly title, "How to Succeed in Sounding Impressive When Talking about Budgets and Deficits Without Really Trying: Understanding the Degraded Media Environment When It Comes To Reporting and Discussing U.S. Budgetary Matters." The ultimate purpose of the column is to summarize what we actually know today about federal spending, deficits, and so on.  The deficit has fallen dramatically in the past few years, and it will fall further, with projections showing that deficits will be completely sustainable for at least the next ten years.  The long-term forecasts have radically improved as well, with health care inflation having moderated significantly. In short, even if one were a deficit worrier, the news lately has been nothing but good.  The only danger, and it is a very real possibility, is that the looming government shutdown and/or debt ceiling-related default will tank the ec...