Dorf on Law

-- Posted by Neil H. Buchanan I hope that all Dorf on Law readers have enjoyed the holiday break, and that at least some of us took seriously Professor Colb's moving call to allow our professed values to change the way we think about what we eat. Although it is not our usual practice to publish Dorf on Law posts on weekends, I wanted to take just a moment to bring attention to two "must reads": (1) Thomas Palley, a progressive economist (which is, despite all evidence to the contrary, not an oxymoron), has penned a satirical essay, " Economists Without Borders (Economistes Sans Frontieres) ," which manages to be surprising in two important ways: (A) It uses the ebola virus as a leaping off point for humor, and (B) It shows that economists can be funny. (2) In his post two days ago (which I also highly recommend, but which loyal readers will surely have already read), Professor Dorf briefly mentions a guest Verdict column by Cornell Law Visiting Prof

by Michael Dorf I have now read a large number of excellent (and an even larger number of less-than-excellent) analyses of the grand jury's non-indictment of Darren Wilson for killing Michael Brown. I confess to not having sifted through the gigantic record of evidence presented to the grand jury. I will say that the sheer size of that record supports the charge by critics that prosecutor Bob McCulloch was not treating this as an ordinary case in which he selectively presents evidence tending to establish probable cause to indict. Indeed, McCulloch does not even deny this accusation. I thus share the crtitics' view that a more zealous prosecutor could have pretty easily gotten an indictment here. On Tuesday, a student asked me whether McCulloch's proceeding in the way he did was defensible. I said that the best defense of his conduct would go like this: It's true that a grand jury is usually a rubber stamp for a prosecutor but in an ordinary case, a prosecutor fir

by Sherry F. Colb In my Verdict column for this week, I discuss the case of Warger v. Shauers .   Warger  involves Federal Rule of Evidence 606(b) , which prohibits, among other things, the introduction of juror testimony in an effort to undermine the validity of a verdict.  The petitioner, Gregory P. Warger, wants to introduce a juror's testimony about a fellow juror's comment during deliberations, not  as itself an error affecting the verdict but instead as evidence that the latter juror materially lied during voire dire and should never have been seated on the jury.  In my column, I consider whether the petitioner's distinction -- between prohibited juror testimony about a fellow juror's improper statements during deliberations and permissible juror testimony about a fellow juror's disclosure during deliberations of lies during voire dire -- is tenable. In this post, I want to explore the meaning of a deliberate "lie."  In Warger , the petitioner c

-- Posted by Neil H. Buchanan It is a short holiday week, and even if I had something to say about the big national news story from Ferguson, Missouri, I would rather write about something relatively frivolous.  And, as Professor Dorf's recent personal remembrance of his days as a jock demonstrated, nothing quite matches sports for its marriage of complete unimportance with intense interest.  When it comes to American college football, I have written some rather serious things (see most recently here ) about the institutions of higher learning that serve as host/sponsors to the lucrative games, and I hold what appears to be a minority view about how the lucre should be spent. Today, however, none of that matters, for I want to talk about the College Football Playoff (tm).  More accurately, I want to complain about the consistent inanity of the talk among college football commentators about the playoff.  Not that this should surprise anyone.  This is still a world in which peop

by Michael Dorf I begin by establishing my disinterested bona fides with respect to the dispute about whether the president has authority to defer deportation of, and other enforcement measures against, undocumented immigrants in certain favored categories. I do not consider myself an expert in immigration law and I shall try to set aside whatever views I might hold about immigration policy, which are, in any event, only those of a reasonably well informed citizen rather than an expert. Back in December 2012, Prof. Buchanan and I wrote the following in one of our debt ceiling papers : we find deeply troubling any suggestion that the president can simply choose not to enforce some law on the ground that he disagrees with the policy underlying that law. At a minimum, we would expect the president to offer some justification for not enforcing a law. With respect to marijuana possession and deferred action on unlawful immigration, the Obama Administration has invoked the traditional p

by Michael Dorf My retirement from my favorite sport looked nothing like Derek Jeter's retirement from his. There were no standing ovations, no sneaker ads, no ESPN encomia . That's fair enough. If not quite the second coming of Babe Ruth that some of his fans seemed to believe, Jeter was nevertheless a truly great professional baseball player and a certain first ballot Hall-of-Famer, whereas I was never more than a mediocre recreation league basketball player. So what did my retirement from basketball look like? Not much. One second I was boxing out for a rebound. The next moment my back seized up and I could barely move. Nothing dramatic precipitated the injury. I didn't jump and then land awkwardly. There was no sudden twisting motion. I was fine. And then I wasn't. The pain and reduced mobility only lasted for about a day but, coming on top of everything else, I knew it was time. Well past time. When I was in my early thirties, I had what should have been a &q

-- Posted by Neil H. Buchanan In my new Verdict column, " Disdainful Economists, Hubristic Jurists, and Fanatical Republicans: A Recipe for Single-Payer Health Care? " I try to figure out what the "end game" is for the great debate over the U.S. health insurance system.  That is, if Republicans (in Congress and/or on the Supreme Court) succeed in damaging or killing the Affordable Care Act, what would happen next?  I suggest that one possible answer is ... wait for it ... single-payer health care in the United States! (As an aside, I hope that people will read the column simply for the section in which I explain the recent mini-controversy over arrogant remarks by Jonathan Gruber, an Obama Administration economist, who repeatedly mocked the "stupid voters" who had to be fooled for their own good.  Short version: He's just saying what all economists -- liberal and conservative -- think.  "We're smart.  Everyone else is an idiot.") Th

by Michael Dorf In my latest Verdict column I warn of a possible danger in King v. Burwell , the latest SCOTUS challenge to Obamacare: I explain that even if a majority of the Court rejects the petitioners' argument that subsidies should not be permitted on a federally run health insurance exchange, the Affordable Care Act could still go up in flames depending on how CJ Roberts votes. Suppose that CJ Roberts concludes that subsidies are unavailable but that Justice Kennedy splits with the other conservatives to say that they are available. The law survives 5-4, right? Maybe not, I argue in the column. Perhaps Justice Kennedy will adhere to his view from NFIB v. Sebelius that the individual mandate is unconstitutional and non-severable from the rest of the ACA, including the subsidies. Confused? Go read the column. It explains the murky law governing when a Justice adheres to his prior dissenting vote. The column addresses the question of how each of the four dissenting NFIB Ju

-- Posted by Neil H. Buchanan In my Dorf on Law post this past Thursday , I noted that the post-midterms political conversation was initially dominated by promises from the Republicans that they would prove that they can "govern responsibly."  This essentially meant that they were promising not to shut down the government again.  Although few people specifically discussed the debt ceiling separately, the clear implication was also that their hostage-taking strategy of 2011-14 would not be used in 2015. My favorite line describing the new political reality came from unnamed aides to rising Senator Majority Leader Mitch McConnell, who described Senator Ted Cruz as an "army of one."  Cruz was the architect of the 2013 shutdown, and he is not only completely unrepentant, but he apparently has convinced many of his followers that they "won" the shutdown.  With Cruz being attacked so bluntly, the clear implication is that the Establishment-connected extrem

by Michael Dorf Last week, Justice Thomas, joined by Justice Scalia, issued a brief statement respecting the denial of the stay application in Maricopa County v. Lopez-Valenzuela . The statement made waves because it criticized the Court's failure (thus far) to grant certiorari in the same-sex marriage (SSM) cases, even though Maricopa County  was not a SSM case. Together with the dissent by the same duo from the denial of the stay application in Moser v. Marie --which is a SSM case-- Maricopa County provides a glimpse into the generally opaque cert process w/r/t SSM. It appears that seven Justices have been voting to deny cert in these cases. Presumably at least five of those Justices--and presumably they are Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan--have been voting to deny because they are content with the lower court rulings invalidating state SSM bans. More interestingly, the voting pattern suggests that CJ Roberts and Justice Alito have either had a change

by Michael Dorf On Monday, the Supreme Court issued two unanimous per curiam opinions summarily reversing decisions of federal appeals courts -- i.e., granting certiorari and reversing on the merits in one fell swoop, without the benefit of oral argument. The Court sometimes does this when the lower court has misapplied or misinterpreted federal law but the issue is not sufficiently complicated or divisive to warrant full consideration. Civil procedure scholars are chewing over the first order, in Johnson v. City of Shelby .   There the Court held that dismissal (in this case at the summary judgment phase but more generally at the pleadings stage as well) is not appropriate where a plaintiff's complaint contains sufficient facts to make out a valid legal claim but fails to identify the particular statute creating the cause of action at issue, here 42 U.S.C. § 1983. The ruling is somewhat surprising because it cuts against the grain of two important cases that tightened the plea

-- Posted by Neil H. Buchanan With a few races still left to be decided, the new House of Representatives in 2015 will have 244 Republicans and 186 Democrats.  Even on the assumption that the remaining five seats all end up in the Democratic camp, and even assuming that all Democrats would vote for any increase in the debt ceiling that would be needed, and even assuming that the Republican leadership would again break the so-called Hastert Rule by allowing the House to vote on something that a majority of the Republicans oppose, that would mean that the Republicans need to come up with 27 members who would vote to increase (or suspend, or repeal) the debt ceiling.  (Let us leave aside the possibility of a filibuster by Republican senators, even though a non-published analysis that I have seen from Merrill Lynch suggests that the big players in the financial markets are worried even about that.) At the very least, this suggests that the reassuring talk from people like soon-to-be Se