Dorf on Law

Editor's Note: Thursday brought the sad news that Professor and former Dean of Hofstra Law School Monroe Freedman died. Freedman was widely regarded as the father of legal ethics as a legal academic discipline. Here is a personal remembrance by his colleague, Professor James Sample . ------------------------------------------------------------------------------------------------------------------------ The second time that I went to law school the classroom was a car. Campus was a daily grind of gridlock. The professor was my passenger. Professor’s curriculum consisted of intellect and integrity; of laughter and love.  Curricular entry points were as vast as the globe and entirely at Professor’s discretion. Student was Driver.  Despite persistent preparation, Student was invariably ill-equipped to be entirely alone on Socratic Island.   And yet, for Student, the education was glorious.  Why?  Because Professor was Monroe Freedman. Occasionally, P...

by Michael Dorf Wednesday's SCOTUS decision in Yates v. United States  is interesting for what it may say about King v. Burwell -- the challenge to the subsidies on federal exchanges to be argued next week--but also, as I'll explain shortly, because of a point made by Justice Kagan in dissent. In Yates, the Court held that a fisherman who tossed his illegal catch into the sea to prevent federal authorities from confirming his law violation did not violate a statute forbidding the "destr[uction]" of "a tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States  . . . ." Did the Court say that fish are sentient beings, someones not somethings , and thus not tangible objects? I--along with the other vegan bloggers here at DoL--can only wish. No, Justice Ginsburg--writing for a plurality of herself, Justice Breyer, Justi...

-- Posted by Neil H. Buchanan My new Verdict column, " Education Is Everything, but It’s Not the Only Thing ," was published today.  In it, I discuss the different ways in which education matters to economic outcomes, and the ways in which it does not.  I close the article by reminding readers that economic outcomes are hardly the be-all and end-all of education.  I might pick up on that latter topic in a future column or a Dorf on Law post, but for now, I will let today's column stand on its own.  I encourage everyone to read it. Here, I will pick up on the theme of my Dorf on Law post from earlier this week.  There, I commented (yet again) on the closed-mindedness of the modern economics profession and, in particular, its failure to live up to anything close to the standards of a science (much less a field devoted to free academic inquiry).  The basic problem is that current economists are not open to differing modes of analysis, because they...

by Michael Dorf My new Verdict column could be considered the fourth installment in a series on the ruling by Judge Hanen enjoining the Obama policy of expanded deferred action for undocumented immigrants. In Part 1 , I criticized Judge Hanen's over-the-top rhetoric and questioned his bottom line about the reviewability of the agency action at issue, but, noting how unreviewable presidential power not to enforce the law should trouble progressives even more than it troubles conservatives, I concluded that the opinion had a silver lining. In Part 2 , Professor Buchanan explained how that silver lining might be deployed if and when the debt ceiling shenanigans return next fall. Part 3 was a magnum opus by Professor Kalhan, which revealed how Judge Hanen either misrepresented or misunderstood immigration law and that therefore, contrary to the ostensibly limited ruling, the opinion was anything but "narrowly crafted." The Verdict column is Part 4. It offers general rea...

-- Posted by Neil H. Buchanan As an economist who earned a law degree and now teaches in a law school, I am always interested when news organizations discuss the economics profession.  The overwhelming motivation for my lateral career move was that the economics profession is deeply ideological in the worst possible way: Its norms and expectations are strongly tilted toward conservative-friendly conclusions, but it hides behind the veneer of "science" to make it appear that there is nothing subjective about the enterprise. This is not to say, of course, that one cannot reach non-conservative conclusions from economic models.  And it is certainly true that there are liberal economists out there.  Even so, the field has come to be dominated by an approach that rewards and emphasizes methods and techniques that strongly skew the analysis toward conservative results. For example, when the world's most prominent liberal economist, Paul Krugman, wants a "reality chec...

by Michael Dorf Professor Marvin Chirelstein died last week. He was a giant in tax law. With the possible exception of the late great Marty Ginsburg of Georgetown (husband of Justice Ginsburg), Marvin had no rivals in his generation of tax law professors--and given changes in the legal academy, I very much doubt that one will emerge in a later generation. Marvin's career and personality have been fondly and fittingly eulogized already, including on the official Columbia Law School website , by Dan Shaviro , and by Paul Caron . Here I'll add a few anecdotes and tie them into a thought about Marvin's legacy. As others correctly note, Marvin had a marvelous dry wit. He was often generous. Larry Zelenak notes (in Paul's entry) the style and grace of Marvin's intellect, citing a 2013 contribution to The Green Bag   in which Marvin fondly recalled two great antagonists whom Marvin knew and liked: Robert Bork and Ronald Dworkin. Larry calls attention to the paper in ...

By Anil Kalhan In a comment to Professor Dorf’s piece assessing Judge Andrew Hanen’s opinion and order blocking some of the Obama administration’s recent executive actions on immigration, Professor Steven Shiffrin poses the question of whether the injunction should be understood not as questioning the “prosecutorial discretion aspect” of the Obama administration’s initiatives, but rather as being “concerned with that part of the policy affording affirmative benefits”—an argument that, as he notes, is presented by Professor Michael McConnell in Wednesday’s Wall Street Journal . According to Professor McConnell’s quick take, Judge Hanen’s opinion “carefully lays out the legal case against the program” and ultimately concludes that “prosecutorial discretion is limited to nonenforcement and doesn’t entitle the executive branch to grant affirmative benefits such as work permits and welfare without statutory authority and notice-and-comment rule-making.” Such “benefits,” he asserts, h...

by Sherry F. Colb In my Verdict column for this week , I discuss the case of Rodriguez v. United States , which raises the question whether police may, absent reasonable suspicion, extend an already-completed traffic stop to allow for a dog sniff for narcotics.  In my column, I focus on two questions that interested the Justices during oral argument: what difference the order of police activities during a traffic stop should make, and which questions and activities by police are and are not legitimate incidents of a traffic-related stop.  The sequencing question basically asks whether it matters that police in this case conducted the entirety of the traffic-stop-related activity (including issuing the written warning) before conducting the extra step of having a dog sniff for narcotics rather than having instead interrupted the traffic-related inquiries and activities for a dog sniff and then continued on with the traffic-related matters.  Several Justices and the gove...

By Eric Segall Ed Whelan, whose views I discussed in Part I , has suggested that I did not accurately represent his position. He wrote the following (quoting from an earlier work and leaving out a line or two about originalism): [T]he justification for the definition of marriage as the union of a man and a woman is the same now as it was in 1868. Marriage developed in this country, and everywhere in human civilization, because societies recognized that opposite-sex couples generally have the capacity to procreate. Marriage exists to increase the likelihood that children will be born and raised in stable and enduring family units by the mothers and fathers who, often unintentionally, naturally generated their very existence . As Prop 8 proponents showed in their Supreme Court brief (pp. 31-35), leading thinkers over the centuries—including many on the Left, like Bertrand Russell, anthropologist Claude Levi-Strauss and sociologist Kingsley Davis—have consistently recognized the cen...