Dorf on Law

-- Posted by Neil H. Buchanan Last Thursday, my Dorf on Law post discussed the emergence of New York Governor Andrew Cuomo as a loud voice blaming teachers for the problems in the schools.  Cuomo's actions and words have made it abundantly clear that he blames tenure and the teachers' unions for making it too difficult to fire as many people as Cuomo thinks should be fired.  In that post, I again made light of the bizarre statistical illogic of comparing the percentage of students whose tests scores fall below some cutoff level with the percentage of teachers who are evaluated as "ineffective": "91 percent of teachers around the state of New York are rated either effective or highly effective, and yet 31 percent of our kids are reading, writing or doing math at grade level."  How could that be so?! I would have left it at that, but within minutes after publishing my post, I came upon that day's editorial page of The New York Times .  There, the n...

by Michael Dorf Last Wednesday, on the fifth anniversary of Citizens United v. FEC , about half a dozen protesters briefly disrupted the Supreme Court's proceedings. The next day, Sheldon Silver, the long-time Speaker of the New York State Assembly, was arrested on corruption charges. The timing was coincidental but the events are nonetheless closely related. (Silver is being replaced as Speaker but for now he says he intends to keep his seat.) Let's start with Citizens United.  According to one well-known criticism of the Supreme Court's campaign finance jurisprudence, the Court makes two errors. First, the Court says that the only interest that justifies campaign finance limits is the interest in avoiding corruption or the appearance of corruption, thereby ruling out of bounds the possibility that campaign finance limits might be adopted in the interest of political equality--to ensure that inequalities in the distribution of material resources do not spill over int...

by Eric Segall On March 4, the Supreme Court will hear oral arguments in King v. Burwell,  yet another challenge to the Affordable Care Act ("ACA"). This time around, the plaintiffs are claiming that the IRS acted illegally by providing federal subsidies on health insurance exchanges created by the Secretary of HHS because the ACA only authorizes such subsidies on an “exchange established by the state.” The government’s response (on the textual issue) is that a different section of the ACA provides that if the states do not create their own insurance exchanges, HHS will set up “such exchange.” The government clearly has the better of the textual argument because under the well-established Chevron doctrine, if the law is ambiguous (and here it is), the agency’s interpretation only has to be reasonable. Much has been and will be written on that question but that debate is not the focus of this blog post. Instead, I want to focus on the retelling of history by the...

-- Posted by Neil H. Buchanan Three years ago, in a Dorf on Law post titled (in what is easily my most cringe-worthy play on words) " Owed on a Grecian Urge ," I described how Greece had become the reflexive cautionary tale for those in the United States and Europe who view themselves as fiscally "responsible."  In the time since then, the misuse of the Greek story has become utterly commonplace, with Republicans routinely saying that President Obama and the Democrats are going to turn the United States into Greece any day now (even though our debt-to-GDP ratio remains slightly below that of Germany, which is supposedly the paragon of fiscal probity). As I noted, Greece does seem to be the one and only case of a European country whose economic troubles were significantly attributable to pre-crisis fiscal mismanagement -- but I should emphasize that their budgetary problems arise mostly from a chronic failure to collect taxes owed, not from "out of control ...

by Michael Dorf In my latest Verdict column , I argue that the SCOTUS cert grant in the Sixth Circuit same-sex marriage (SSM) cases makes it all but a foregone conclusion that the Court will recognize a right to SSM by the end of the current term. I say that the important question now is how the Court goes about finding a right to SSM: Will the Justices apply nominally rational basis scrutiny while finding the "accidental procreation" argument irrational? Will they say that laws denying SSM are rooted in constitutionally impermissible "animus"? Or will they say--as I propose they should--that laws discriminating on the basis of sexual orientation must be subject to heightened scrutiny? Readers interested in why I would prefer an express holding that sexual orientation is a suspect or semi-suspect classification are invited to check out the column. Here I want to address what may strike all but the most dedicated Supreme Court junkies as a non sequitur: Did the c...

By Michael Dorf Last October, I received a summons for jury duty. Because it was the middle of the semester, I postponed my service to what should have been winter break, but as it worked out, I ended up with a new summons to appear on the first day of second-semester classes. I had mixed feelings about the prospect of serving on a jury for any substantial length of time. True, it would be disruptive, but not more disruptive for me than for anyone else with a job and other responsibilities. I figured out that in the event that I was chosen for a jury, I could teach some partial classes during the lunch break and make up the others later in the semester. And I thought it would be educational to serve on a jury. No such luck. I have now been called for jury duty about half a dozen times but each time I am excused--presumably because one or the other side uses a peremptory challenge on me. That makes some sense, I suppose. If I were a lawyer picking a jury, I would worry about a law...

-- Posted by Neil H. Buchanan It is fair to conclude that Governor Andrew Cuomo of New York wants to be President.  If Hillary Clinton chooses not to run in 2016, Cuomo would immediately be cast as the favored candidate of the Democratic "centrist" establishment.  He certainly has spent a great deal of time and effort trying to prove that he is not a liberal, at least not on economic issues.  And he seems especially keen to provoke a confrontation with New York State's teachers and their unions, apparently in the belief that this will make him appear not to be "captured by special interests," or something like that. At this point, it is becoming rather tiresome to read supposedly non-editorial news reports (like this one ) saying that Cuomo's proposals, "atypically for a Democrat, will put him in direct conflict with teachers’ unions."  Atypically?  It is surely true that more Democrats than not support the positions favored by teachers and the...

by Sherry F. Colb In my Verdict column for this week , I discuss a newly-signed New York State bill that will criminalize the tattooing and piercing of one's companion animals (with some exceptions).  In the column, I suggest that although the law appears to be well-motivated, it exposes the deep contradiction between the intention to protect nonhuman animals from unnecessary violence, on one hand, and the practices in which most of the population engages (and which the law thoroughly supports and endorses), on the other.  The question for this post is what one ought to do, given a legal regime that arbitrarily singles out a small proportion of cruelty against animals to criminalize.  Should a conscientious prosecutor simply refuse to pursue animal cruelty at all, or should she prosecute offenders, notwithstanding the fact that they are--in their conduct--doing nothing worse than what the overwhelming majority of the population does when it  lawfully participates ...

-- Posted by Neil H. Buchanan My latest Verdict column picks up on a point that Professor Dorf made in his Verdict column last week , which is that the recent police slowdown in New York City (which, thankfully, appears to be ending ) exposes how vulnerable our civilian leaders might be to lawless actions by the people who have taken on the responsibility of enforcing the laws.  After making that initial point, Professor Dorf's column mostly focused on the underlying dispute and the free speech issues surrounding the "tacit strike."  My concern was in thinking in more detail about the consequences of what could amount to organized extortion: "You (Mayor de Blasio and any other civilians who are saying and doing things that we don't like) had better change your tune, or else bad things could happen to your city!" I think that today's column says all that I wanted to say about the importance of civilian control of the police and military.  Here, the...

by Michael Dorf In Spike Lee's gripping 1989 film Do the Right Thing  (spoiler alert!), Smiley, an intellectually disabled man, periodically appears on screen attempting to sell pictures of Dr. Martin Luther King, Jr. and Malcolm X. The film ends with a scroll of two quotations: one from Dr. King decrying violence as necessarily counterproductive for justice movements; and another from Malcolm X, endorsing violence in "self-defense" against bad people in power. The film portrayed the choice between their respective philosophies as a difficult one, but for white America, of course it was a no-brainer. White Americans looking for an African American to canonize naturally chose Dr. King, seeing his message of non-violence as much more acceptable than Malcolm X's "by any means necessary." And that explains why the juxtaposed quotes and closing scene--in which Lee's character Mookie starts a riot in response to a police killing of a friend--caused such c...

by Michael Dorf The Supreme Court cert grant in the SSM cases from the 6th Circuit included two rephrased questions presented: "1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?" An astute observer emailed me asking whether this is not a bit odd. After all, one might think that the answer to both questions is no, so long as the state doesn't license or recognize any marriages, same-sex or opposite-sex. But in fact, the states all do license and recognize opposite-sex marriages, so the objection is academic. Moreover, under the Court's fundamental rights jurisprudence, states probably cannot simply deny marriage to everyone. Accordingly, I don't read much significance into the Court's rephrasing of the cert questions. It s...

by Michael Dorf It will come as no surprise to regular readers of this blog that I am not optimistic about the legislation likely to emerge from the new Congress. However, I do see one possible salutary outcome: Perhaps Republicans in the Senate will "go nuclear" and abolish the filibuster for ordinary legislation. When the Democrats abolished the filibuster for executive appointments and lower court judges in 2013, Republicans cried foul. Senators Alexander and McConnell warned, in essence, that what goes around comes around. Now that the Republicans have their Senate majority but fewer than 60 seats, it will be tempting for them to follow Harry Reid's lead and finish off the filibuster for ordinary legislation. (They have no incentive to eliminate it for Supreme Court nominees during a Democratic Presidency; more about the Supreme Court in a postscript below.) Democrats should be sanguine about this possibility. The filibuster is bad for small-d democracy for the ...

-- Posted by Neil H. Buchanan Remember Mitt Romney?  He was the guy who dismissed the 47% of Americans who, per Romney, "believe that they are victims, that they are entitled to health care," and who will never "take personal responsibility and care for their lives."  Well, he might be back, if the political rumors of the week are to be believed.  Given that Romney's comments about "the 47%" were probably the biggest gaffe in his gaffe-prone 2012 presidential campaign, it is a mild coincidence that this week also saw the publication of a study that completely undermines the conservative mythology about the people with no "skin in the game," that is, who supposedly pay no taxes. Romney is by no means the only conservative who has tried to misuse that statistic, and he will surely not be the last.  Here, therefore, I will briefly summarize that politically explosive distortion, and then I will describe the new study of state-level taxes th...