Dorf on Law

By Michael Dorf [N.B. 1: In advance of the oral argument in Hobby Lobby last week, I was on MSNBC. Video available here .  Note that at the very end of the segment I appear distracted. That's because the MSNBC engineer cut my audio while the host was still speaking, so I thought the line had gone dead.  The hazards of live tv! NB 2: In addition to my twice-to-thrice weekly posts here on DoL and my bi-weekly columns on Verdict , I now have authoring privileges on the Huffington Post , where I shall, from time to time, write short essays for a somewhat more general audience than my general readership.  My first such essay  is now available there.  I am also reproducing it below:] ----------------------------------------------------- More than half a century ago, a young Yale law professor named Robert Bork wrote in  The New Republic  that requiring private business owners to open their doors to all members of the public regardless of race or sex would enact into law a &quo

-- Posted by Neil H. Buchanan Earlier this week , a regional director of the National Labor Relations Board (NLRB) issued a decision that could be the turning point in the relationship between universities and the athletes who represent them on football fields.  The director concluded that football players at Northwestern University (one of fourteen current members of the Big 10 conference) are employees of the university, and thus are eligible to hold a vote to form a union.  Although there are many miles to go in this legal marathon, this decision could end up changing everything in college sports. There are, of course, a daunting array of legal questions that follow from this decision.  Some have straightforward answers, such as whether this decision (if ultimately upheld) would apply to athletes at state universities.  (No.)  Others are generating excited discussion among various groups of legal analysts.  My colleagues in tax law, for example, are already having a field day (

-- Posted by Neil H. Buchanan Did you know that economic scientists occasionally must force themselves to be more than just scientists, and instead to base their arguments on political philosophy?  Gasp!  That is the "dirty little secret" that conservative economist Greg Mankiw revealed in his column in last Sunday's New York Times Business Section.  Of course, framing the non-revelation in that way was very much designed to reassure people that economists are scientists in the first place, patiently offering "our understanding of how the world works", but who face the "necessity" of stepping outside of their scientific comfort zone -- because, you know, economic policies might actually harm some people. Mankiw's writing is often difficult to take seriously, and this column appeared to be yet another example of why orthodox economists should not reveal in public how truly narrow they are.  He has, after all, spent the last year or so explici

By Mike Dorf My latest Verdict column asks why the argument for religious exceptions was mostly advanced by liberals in 1990 in Employment Division v. Smith but is mostly advanced by conservatives in the Hobby Lobby/Conestoga Wood case. I offer five factors that bear on the question. Here I want to add one brief thought on an issue that arose during the oral argument . Consider an exchange between Justice Alito and SG Verrilli. Justice Alito posed a hypothetical question in which Congress bans kosher and halal slaughter on grounds that it is cruel. Would kosher and halal butchers that were organized as corporations be able to complain about such a law? SG Verrilli said that they might be able to, because such a law would single out religion, and thus fall outside of the "neutral" category of Smith and RFRA, triggering heightened scrutiny under the Free Exercise Clause. That in turn led Justice Alito to change the hypo to a law that requires that animals be stunned befor

by Mike Dorf As I noted in my Verdict column on First Amendment exceptions two weeks ago, claims for such exceptions have been much in the news lately--prompting a veritable mountain of commentary, including a fair bit from yours truly. Here I want to add a few more shovels of dirt to that mountain, but first, a couple of pieces of shameless self-promotion. First, during the 10-11 am hour today, I'll be on MSNBC, talking about the Hobby Lobby cases, while the oral argument is going on in the courtroom. You know, in case you don't have anything better to do. Second, pretty much as I anticipated in yesterday's post , during our discussion of Elane Photography , Professor Epstein mostly criticized public accommodations laws as such, largely agreeing with me that it's difficult to find free speech exceptions to such laws without undermining the laws themselves. Here I want to follow up that discussion with a point I might have made had the discussion taken a differe

By Mike Dorf (Updated at 10:12 am Eastern Time and again at 1:54 pm Eastern Time) Later this morning, I'll be recording a discussion of the Elane Photography case for a National Constitution Center  (NCC) podcast to be posted soon. By the time you read this post, the Supreme Court will likely have made an announcement either granting or denying cert in the case, so the discussion should be timely. (Update 1: The SCOTUS took no action on the case today, so a cert decision will come later.) The discussion will be moderated by NCC President (and GW Law Prof) Jeff Rosen, and will include both me and U Chicago Law Professor Richard Epstein. Once it's ready, I'll post a link to the audio in an update to this post and, depending on how the discussion goes, I may have a follow-up post. (Update 2: Audio now available here .)  Here I want to address an issue that I've been pondering in thinking about the discussion. The format for the NCC program is a discussion, rather t

-- Posted by Neil H. Buchanan In a post here on Dorf on Law a few weeks ago, I returned to the question of whether there is any coherent meaning to the concept of economic efficiency.  There isn't.  A few years ago, after having spent many years trying to get people to stop calling things efficient or inefficient , because the terms have no content, I gave a talk at a conference in which I announced a change of strategy.  Specifically, I told people to call everything that they like efficient and everything that they dislike inefficient . This suggestion, although admittedly cheeky, was based on two ideas.  First, this is what orthodox economists do all the time, apparently in most cases without being aware that they are doing so.  And second, a person who takes my advice would always be right (even though she would also always be wrong).  That is, there are defensible assumptions and baselines that can make any situation or policy appear to be efficient or inefficient.  If

-- Posted by Neil H. Buchanan One of the pleasures of teaching the same course many times is that one occasionally sees issues from an unexpected perspective.  Often, this happens in response to an out-of-left-field question from a student, or sometimes it is just a matter of seeing something as if for the first time.  No matter the reason, I had such an experience this week in my Federal Income Taxation class. On Tuesday, we discussed Eisner v. Macomber , the famous 1920 case in which the U.S. Supreme Court decided, 5-4, that it violates the Sixteenth Amendment for Congress to tax income that has not been "severed" from its original source, for a taxpayer's "separate use, benefit and disposal."  It is an utterly confused opinion, which has been roundly repudiated by scholars and courts, with the Supreme Court itself distinguishing Macomber effectively out of existence in 1940's Helvering v. Bruun decision.  Even so, most tax professors still teach Mac

by Sherry F. Colb In my Verdict column for this week , I discuss the case of Burrage v. United States , in which the U.S. Supreme Court held that for a defendant's heroin distribution to have "resulted" in a death, it has to be the case that the heroin customer would not have died "but for" his use of the heroin in question.  I use the Court's decision as an occasion to consider the central role that "causing harm" has played in assessments of culpability and punishment.  Since differing outcomes (and thus the causal relationship between defendants' actions and those differing outcomes) are so often outside the hands of the defendants, I examine the legitimacy of punishing identically situated defendants differently on the basis of a fortuity, on the basis -- in other words -- of "moral luck." Moral luck refers generally to the assessment of moral judgment against someone for things that lie beyond that person's control.  Trea

by Eric Segall Last week in Atlanta, the Georgia bar celebrated the 225th anniversary of the United States Constitution by holding a hall of fame legal conference.  The participants included Supreme Court Justice Antonin Scalia as well as appellate heavyweights Richard Posner and Alex Kozinski, and a bevy of our most prominent constitutional law professors, commentators, and Supreme Court reporters. Although there were many themes to the conference, the most consistent thread was the tension between those who believe in a “living” constitution and those who believe in a Constitution defined by its “original meaning.” The proceedings began with ultra-liberal Erwin Chemerinsky and arch conservative Richard Epstein debating whether the Constitution is dead or alive. Chemerinsky observed that if the Constitution only has the meaning it did when ratified, then racial segregation in public schools would be constitutional, women would not have equal rights, and Congress would be disabled

By Mike Dorf Late last year, I blogged about the then-proposed King Amendment to the Farm Bill, which would have precluded states from regulating agricultural products more strictly than sister states.  The amendment was not enacted but a pending federal lawsuit--originally filed by Missouri but now joined by four other states plus the governor of a fifth, aims to achieve through litigation the core of what the King Amendment aimed to achieve through legislation.  According to the amended complaint  in Missouri v. Harris , California cannot legally enforce its law forbidding the sale of eggs produced by methods other than those approved in Proposition 2 by California voters in 2008. In 2008, California voters approved Prop 2 by a nearly two-to-one margin. The provision regulates the conditions of confinement of animals raised for food in California, requiring that each animal be given sufficient room to lie down, stand up, turn around, and spread his or her limbs. Thus, effective