Dorf on Law

by Michael Dorf Yesterday I noted that Professor Orin Kerr had responded to the challenge posed by CJ Roberts and written the definitive article on  The Influence of Immanuel Kant on Evidentiary Approaches in Eighteenth Century Bulgaria . Professor Kerr now informs me that this landmark paper will be published in The Green Bag . Readers familiar with the lightheartedness of that publication will recognize that this is a particularly appropriate placement, but they would be mistaken in thinking that Professor Kerr's article is unserious. It truly is the last word (albeit also the first word) on the influence of Kant on evidentiary approaches in Eighteenth Century Bulgaria. Congratulations to Professor Kerr on a job well done.

by Neil H. Buchanan A national controversy has erupted over Indiana's recent adoption of a state-level version of the Religious Freedom Restoration Act (RFRA).  Apple CEO Tim Cook, who recently came out as gay , wrote an impassioned op-ed in The Washington Post , describing the Indiana law as part of a "wave of legislation" nationwide that "would allow people to discriminate against their neighbors."  Cook described the law (and a similar one in Arkansas) as "say[ing] individuals can cite their personal religious beliefs to refuse service to a customer or resist a state nondiscrimination law." The political comedian Andy Borowitz has been especially strong on this issue, penning fake news reports with the headlines " Indiana Defines Stupidity as Religion " and " Indiana Governor Stunned by How Many People Seem to Have Gay Friends ."  The defensive response from Governor Mike Pence and his supporters has amounted to the claim...

By Michael Dorf The state briefs in the pending SSM cases have been filed by the representatives of Kentucky ,  Michigan , Ohio , and  Tennessee . They include a predictable mix of three arguments: (1) restricting marriage to heterosexuals serves the rational, non-animus-y interest in addressing the evils of accidental procreation; (2) changes in the institution should come, if at all, through democratic means; and (3) the traditional institution of marriage does not encompass same-sex couples. Needless to say, I'm not persuaded, and I very much doubt that the SCOTUS will be. But prompted by the particulars of the state briefs on point (3), I want to note a very brief follow-up to my March 16 post   regarding the brief that Professor Tribe and I submitted, in which we argue that, in addition to striking the challenged laws on equal protection grounds, the Court ought to strike them on the ground that they violate the fundamental right to marriage. All four of th...

by Michael Dorf Last December, in the course of reporting on the anti-intellectualism of various members of the Article III judiciary (both liberal and conservative), I promised  a "laudatory blog post for anyone who gets a U.S. law review to publish an actual article on Kant's influence on 18th Century Bulgarian evidence law." Professor Orin Kerr has now written the (understandably extremely short) article , but so far as I know, has yet to have it accepted for publication in a law review. I'll update with the full laudatory mention if and when that happens. (And no, this is not an early April Fool's post.)

by Michael Dorf Last week's SCOTUS decision in Young v. UPS   featured an interesting disagreement about the scope of the Pregnancy Discrimination Act (PDA) between the majority--Justice Breyer, writing for himself and Justices Ginsburg, Roberts, Sotomayor, and Kagan, with Justice Alito concurring in the jugdment--and the dissent-- Justice Scalia, writing for himself and Justices Kennedy and Thomas. At issue was the second clause of the PDA. The first clause defines discrimination on the basis of preganancy as sex discrimination, and everyone agrees that this clause bars intentional discrimination on the basis of pregnancy. The second clause adds: "and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . .  as other persons not so affected but similar in their ability or inability to work . . . ." The dissenters thought that this provision merely clarifies the anti-discrimination norm, w...

by Michael Dorf On Monday, Justice Kennedy sent the blawgosphere into a bit of a tizzy when, in the course of testifying before the House Appropriations Committee, he answered a question about statutory interpretation by saying the following: We routinely decide cases involving federal statutes and we say, "Well, if this is wrong, the Congress will fix it." But then we hear that Congress can’t pass a bill one way or the other. That there is gridlock. Some people say that should affect the way we interpret the statutes . . . . That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of . . . government that are committed to proceed in good faith and with good will toward one another to resolve the problems of this republic. That statement was tizzy-inducing because it can be read as bearing on King v. Burwell , in particular, to an exchange between Justice Scalia and Solicitor General Verrilli. In response to the suggestion by...

by Neil H. Buchanan In my new Verdict column , published today, I continue a discussion that I began two weeks ago in a Verdict column and its associated Dorf on Law post .  In those earlier pieces, I discussed whether the debt ceiling statute, and the constant threat of a constitutional violation that the mere existence of the debt ceiling creates, requires a president to engage in executive actions designed to delay as long as possible a potential drop-dead date.  The politically salient part of the analysis was that those executive actions would most definitely include large increases in tax collections, which is hardly what the Republicans who love to use the debt ceiling for bargaining leverage would find appealing. Today's Verdict column begins by noting the various ways in which a president would be compelled to act, if he wished to avoid being guilty of failure to prevent a default or other constitutional violation.  The new, main point of the column is t...

by Michael Dorf My latest Verdict column discusses  a recent Harvard Law Review essay by Suzanna Sherry, in which she reviews Richard Epstein’s book, The Classical Liberal Constitution . Sherry says (correctly) that Epstein defends a view of economic rights as no less fundamental than “personal” rights such as contraception, abortion, and marriage. She also says that liberal progressives have failed to respond adequately to the argument by offering a full-throated defense of personal liberty that excludes Lochnerian economic liberty. I argue that this charge is unfair. I point to constitutional theories by the likes of John Hart Ely and Jim Fleming that draw just this distinction. I might have pointed to any number of others. Indeed, it is practically a cliche that liberal constitutional theory of the last four-plus decades has been obsessed with distinguishing Roe from Lochner . The main point of my column is not, however, to defend liberal constitutional scholars agai...

by Neil H. Buchanan Having frequently complained about the low quality of the U.S. media ( as recently as four days ago , in fact), it is worth pondering whether the media from other countries are equally bad, or worse.  My best interviews have been on the BBC and Al Jazeera, whereas easily the worst interview I have ever seen -- much less participated in -- was on CNN.  (The CNN interview was so bad, in fact, that it was never aired, because the reporter simply did not understand the issue well enough even to ask coherent follow-up questions.) That most definitely does not mean that all foreign news sources are of equally high quality.  Vladimir Putin apparently imagines the day when a Russia-based news agency will be a significant force in international news coverage.  I was recently contacted by something called Sputnik News.  A very cursory search on the web suggests that this is a recently renamed news agency (formerly RIA Global, or something like that...

by Eric Segall I was recently asked to guest teach a class at Michigan State Law School on the topic of the appropriate judicial role and whether the Supreme Court is or is not a real court (I argue in my book the Court is not a real court). I was quite flattered and happy to do it but also thought the students might like to hear about this topic from a real judge so I asked my friend and sometimes writing partner Judge Posner if he would meet with the class as well. He graciously agreed and through the marvels of modern technology (well almost, as there were a few glitches on my end) we had a Skype with people in three different states. There was a general consensus in the room among Judge Posner, myself, and several faculty members (Mae Kuykendall, Jim Chen and David Blankfein-Tabachnick) that the legal realist account of how judges decide cases was mostly accurate. We all agreed that legal doctrine rarely drives results in hard cases and that judges are, and should be, a...

by Neil H. Buchanan Two years ago, in " The Downside of Outsourcing Political Oversight to Comedians ," I commented on the unfortunate fact that Jon Stewart and Stephen Colbert had come to fill the role that a robust political media should have been playing, if only we still had anything resembling a healthy political press in this country.  Lacking that important corrective that should be provided by a skeptical press, the only people left to speak truth to power were the late night comedians. The problem, of course, is that those comedians are comedians first and foremost.  Even people who are as smart as Stewart and (especially) Colbert cannot be expected to have absorbed either journalistic norms or anything resembling deep knowledge of any subject matter.  Both Stewart and Colbert have excellent BS meters, and their commentaries have often been extremely important to the political discourse in this country.  As I described last month in " Is It Too Soon To S...

by Michael Dorf In a very clever NY Times Op-Ed on Tuesday, University of Chicago Law Professor Will Baude offers a plan B in the event that the federal government loses in King v. Burwell : The government could "announce that it is complying with the Supreme Court’s judgment — but only with respect to the four plaintiffs who brought the suit." Professor Baude explains that the Court's judgment would only be formally binding as to those plaintiffs. Although the courts would treat the ruling in King as a binding precedent, few cases would arise for the very reason that the law's challengers had such difficulty finding plaintiffs in King itself: Most people are happy to take the subsidy and purchase health insurance on the federal exchanges. But even if most people would be happy with their subsidies, wouldn't the Administration be violating the law by giving those subsidies following a (hypothetical) ruling that the law doesn't allow them? Without naming t...

by Sherry F. Colb In my column for this week , I take up the question of how to talk, within a pro-choice framework, about the grief that women experience when they miscarry a pregnancy.  In this post, in the interest of full disclosure, I want to talk a little about my own miscarriage.  It happened many years ago, and it was not an especially "bad" one, in the scheme of things.  It happened early--before my "6-week visit."  Nonetheless, I felt extremely sad and distraught at the time, and I occasionally still think about how old "he" or "she" would be now if I had been able to take that pregnancy to term. The very word "miscarry" encourages women to think of pregnancy loss as a personal failure, and I felt additionally isolated in my grief by the seeming triviality (by society's lights) of what had happened.  What I had lost was still only an embryo or an early fetus.  Yet it felt like more to me. Though my column explores th...

by Neil H. Buchanan The Hillary Clinton email story broke two weeks ago .  As is now well known, the former Secretary of State exclusively used a private email account during her four years as the nation's top diplomat, and there is continuing uncertainty about whether she has complied with record-keeping laws and other seemingly dreary aspects of public bureaucratic life.  Because we are talking about Hillary Clinton, this was big news. Here on Dorf on Law , I offered some musings about the story three days after it hit the headlines.  Professor Dorf followed with some further thoughts last Monday .  In my post, I made the rather obvious stipulation that there was no way to know where the story would fall on the spectrum between full-on scandal and one-day story.  Two weeks on, what do we know?  Here, I will offer some thoughts on the substance of the scandal, along with some further thoughts about the political implications of the story. To state t...

by Michael Dorf N.B.  The following essay is being cross-posted today on Notice & Comment , the blog of the Harvard Law & Policy Review , which is the official law review of the American Constitution Society. ----------------------------------------------------------------------------------------------------------------------- Equality and Liberty in the Same-Sex Marriage Case Since the Supreme Court’s 2013 decision in United States v. Windsor , invalidating Section 3 of the Defense of Marriage Act, a clear majority of lower courts to hear challenges to state laws forbidding same-sex marriage have found for the plaintiffs. Some state executive officials—like those in New Jersey and Pennsylvania—graciously accepted defeat and did not appeal. Some—like those in Virginia—saw the light and became vigorous advocates for the rights of their gay and lesbian citizens. But other state officials sought relief in the highest court in the land. They asked the Justices to stay ...