Dorf on Law

By Michael Dorf Today's Hobby Lobby ruling raises all sorts of fascinating questions. Here I'll just record three thoughts. 1) The case just is not that important.   We tend to focus on Supreme Court cases one Term at a time, but some Terms have more important cases than others. Even if one regards Hobby Lobby as the most important case of this Term, this is a relatively sleepy Term. To be sure, a ruling that publicly traded for-profit corporations are entitled to religious exceptions under RFRA would have been potentially important. Indeed, it's even possible to read the decision as having that implication. Justice Alito writes: "No known understanding of the term 'person' includes some but not all corporations." So even though the case only formally addresses closely-held corporations, it is possible to read it as implying RFRA rights for publicly traded corporations too, as Justice Ginsburg says in dissent. But even if a later case extends Hobby ...

by Sherry F. Colb Over the last few months, I have repeatedly heard  a peculiar claim articulated by a variety of vegan advocates on different vegan outlets.  The claim is this:  Even though it might seem that people consuming so-called "humane" animal products poses an obstacle to the movement for veganism, "research" shows that the opposite is true.  "Research" shows that when people decide to purchase "humane" animal products, this choice increases the odds that those same people will eventually decide to become vegan.  When I first heard this claim, I was intrigued.  Could it be that animal farmers encouraging people to purchase their "local, sustainable, and [allegedly] humane" animal products were actually helping the vegan cause? The answer is that the research on which people have based this conclusion gives us no reason to imagine that "humane" animal products bring people closer to veganism .  My own conclusion, ...

by Michael Dorf The Supreme Court "unanimously" decided two cases today. In NLRB v. Noel Canning , the Court invalidated President Obama's use of the recess appointment power while the Senate was in pro forma session. In  McCullen v. Coakley , the Court invalidated the Massachusetts 35-foot buffer zone around entrances to facilities (other than hospitals) where abortions are performed. I put "unanimously" in quotation marks above because each case produced a 5-4 split with a heated concurrence in the judgment that read more like a dissent. Thus, in both cases, the majority consisted of the four liberals plus one of the two slightly less conservative conservatives. In Noel Canning , Justice Kennedy joined the majority opinion of Justice Breyer and in McCullen , CJ Roberts reprised his role from the 2012 Health Care Case , writing a majority opinion joined by the liberals.   (In McCullen , Justice Alito wrote his own concurrence in the judgment rather than joi...

by Michael Dorf The SCOTUS decided two technology cases yesterday, each of which may be more interesting for what it says about methodological issues than for what it says about how the Court evaluates technology. 1. ABC v. Aereo : In my prior post on this case, I said that I thought the crucial question was the one identified by Judge Chin in the district court: whether there is any non-copyright-evading reason for Aereo to structure its technology and business the way it does. I suggested an analogy to the substance-over-form doctrine of tax law. The majority appeared to be thinking along the same lines. By a vote of 6-3, the Court, per Justice Breyer, ruled against Aereo on the grounds that Aereo's retransmission of broadcast television is a "public performance," notwithstanding the fact that it only retransmits one subscriber at a time through a dedicated tiny antenna and storage. The lineup in Aereo is interesting. The majority consists of the liberals plus CJ...

By Sherry F. Colb My Verdict column for this week discusses mediation as a modality for dispute resolution, a modality in which I have begun training for volunteer work.  The column examines some ways in which mediation offers more than litigation does and  may also reflect a more optimistic and empowering perspective on human interaction than the litigation approach does.  In this post, I want to focus on areas in which mediation might be viewed as inappropriate. Let me begin by recalling my first encounter with the idea of mediation.  As a law student, I joined the Battered Women's Advocacy Project, in which I had occasion to assist women seeking restraining orders against their batterers.  During my training, one of the things I learned was that judges who faced a woman seeking a restraining order sometimes directed the woman to first try mediation.  At the time, I did not know what mediation was, but I was told  that mediation is complete...

by Michael Dorf Yesterday's SCOTUS ruling in Utility Air Regulatory Group v. EPA  has implications for such matters as the survival of life on planet Earth. And one suspects that things aren't going to go so well for us Earthlings when Justice Scalia begins his plurality opinion by stating that the EPA "recently set standards for emissions of 'greenhouse gases' (substances it believes contribute to 'global climate change') from new motor vehicles." By using the phrase "it believes", Justice Scalia signals that others do not believe that these substances contribute to global climate change. Indeed, by putting both "greenhouse gases" and "global climate change" in scare quotes, Justice Scalia suggests that the whole subject matter is nonsense. It would be as if the Court were to confront a regulation by the Zombie Violence Prevention Agency and begin its opinion thus: "The ZVPA recently set standards for the containme...

-- Posted by Neil H. Buchanan Earlier this month, in " A Taxonomy of Excuses for Poverty and Inequality ," I offered a draft version of the series of arguments that conservatives have offered over the years in response to liberals' calls for redistributive economic policies.  The list is set up as a series of fallback arguments -- "A, but if not A, then B, and if not B, then C," and so on.  I have already received some helpful suggestions to add to the list, and I invite further thoughts from readers. Although I made it clear in that post that I am unpersuaded by the arguments that I was summarizing, that post was more of a listing exercise than anything else.  Having taken that initial step, I now plan to write a long series of posts in which I address the various list items, exploring the theory and evidence in some detail regarding each conservative claim.  This series of posts will be open-ended and of no planned length, and I suspect that I will add to ...

-- Posted by Neil H. Buchanan In my Dorf on Law post last Friday , I argued that all of the twice-a-week columnists for The New York Times op-ed page should be fired.  Further, I suggested that they should not be replaced by better permanent columnists, even though my reason for wanting to dump the existing group is that so many of them are so bad. If it were simply a matter of improving the quality of the home team, it would have made sense to keep the acceptable-to-good (which, in my view, would be limited to Charles Blow, Gail Collins, and Paul Krugman) and find replacements for the others. That was apparently what Salon 's Alex Parreene was arguing, when he wrote : "Blow up the Times Op-Ed page, and start again!"  Instead, I questioned why the Times would even want to maintain a group of regulars, virtually none of whom have any known expertise, to continue to write stale commentary, when it would be quite easy to print guest commentary in their places. A comm...

by Michael Dorf Dissenting from the denial of certiorari in Elbrook School Dist.  v. Doe  (scroll down), Justice Scalia, joined by Justice Thomas, began thus: Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency. Justice Scalia's analogy conflates two different meanings of the word public . The word sometimes refers to the government . Thus, cases that limit the expression of religious views on public property, i.e., government property ,   do so because some such expressions risk conveying the mes...

by Michael Dorf My new Verdict  column discusses how secular liberals (like me) ought to talk to religious conservatives. The column was inspired by my experience speaking on a panel on the Hobby Lobby case in which all three panelists (including me) approached the issue by asking how the secular society ought to treat religious claims for exceptions from general rules. The column explains that there is something peculiar about that framing, given that we non-believers are actually a minority. I note how this approach is pervasive among secular liberals, as captured by the title of Brian Leiter's book, Why Tolerate Religion? The column doesn't attempt to answer Leiter's question, instead focusing on how that sort of framing limits the conversation. And to be clear, I didn't and don't mean to single out Leiter. I make plain in the column that I am as guilty as he is of the framing problem. Nearly all secular liberals approaching the problem of religious exceptio...

by Michael Dorf One of the seemingly stranger possible outcomes of the ISIS advance in Iraq is an alliance between the United States and Iran to stabilize Iraq (as discussed here ). But the outcome only seems strange. Here I'll very briefly explain why. From 1990, when the U.S. decided to confront Saddam Hussein's Iraq for its invasion of Kuwait, the U.S. has been in an on-again-off-again informal alliance with Iran. President George H.W. Bush launched Operation Desert Shield less than two years after the ceasefire that ended the Iran-Iraq War, at a time when Iran and Iraq remained bitter antagonists. The first Gulf War, by weakening Saddam, and the second Gulf War, by removing him from power and replacing the Sunni-dominated Baath Party with a Shiite-dominated government, did a great deal to further the regional interests of Iran. Promoting Iranian interests can hardly have been the purpose of the U.S. in going to war in Iraq, but that was its foreseeable and actual conse...

by Michael Dorf A few minutes ago, the SCOTUS handed down Abramski v. United States . The Court holds that a person who falsely states on a federal form that he is purchasing a firearm for himself when he is actually purchasing it for someone else has made a "materially" false (and thus criminal) statement, even if the person for whom the firearm is really purchased is lawfully entitled to own firearms. I haven't looked at the issues closely enough to figure out what I think about the decision, but I will note that the Court divides 5-4 (with Justice Kennedy joining the liberals to make the majority). Thus, with the exception of Justice Kennedy, the result exactly tracks the justices' respective views about the Second Amendment. That would be unremarkable if the dissenters thought that the law needed to be construed narrowly to avoid raising a constitutional issue under the Second Amendment, but they didn't. The disagreement between the majority and the dissen...

by Michael Dorf A little bit less than a year ago, I wrote a post comparing the circumstances of a sports fan deciding which non-home-town team to favor to the circumstances of U.S. foreign policy makers deciding on which side, if any, to support in a foreign armed conflict. I made special reference to the Spurs-Heat NBA Finals and to the conflict in the Middle East. Now, a year later, p lus ça change, plus c'est la même chose. I can be brief about basketball. I reported that in last year's NBA Finals I was initially ambivalent about the outcome but found myself cheering for the Spurs. This year my enthusiasm for the Spurs has been unequivocal based partly on the sense that they deserved it, having come so close last year, and partly on my admiration for their team play. I don't hate the Heat--and I found the criticism of Lebron James for getting severe muscle cramps in game 1 idiotic--but having watched way too much basketball in my lifetime, I have rarely seen a team...