Dorf on Law

by Sherry F. Colb In my Verdict column for this week, I discuss an issue that arises in a book, co-authored by me and Michael C. Dorf, entitled Beating Hearts:  Abortion and Animal Rights .  The issue is how the pro-life and pro-animal rights movements ought to handle the violence dilemma, that is, the question when--if ever--violence is morally permissible in defense of one's cause.  My column concludes that violence is impermissible both for pro-life and animal-rights activists, because there are peaceful alternative means of rescuing fetuses or animals and of educating people and effectively communicating the message that fetuses/animals are entitled to be free of human violence, without having to resort to violent means.  In this post, I want to discuss an objection to this line of argument that emerged when Professor Dorf and I were presenting our work at a colloquium held at Queen's University in Kingston, Ontario. Just to make the issue as clean and uncomplicated as

by Neil H. Buchanan There are a few procedural steps remaining, but it appears that the secret deal between departing Speaker John Boehner and the White House will allow the country to avoid a default as well as a government shutdown, and that this budgetary peace will last into the next presidential administration.  I will publish a Verdict column discussing the upsides and significant downside of that deal early next week, but for now, I can at least acknowledge that the answer to the titular question in my October 2 Dorf on Law post, " Thanks for Nothing, John Boehner!  Will He Leave Behind a Budgetary Mess? " is, "Mostly not." I am happy to have been proved wrong.  It is true that the bar is set incredibly low when a Speaker of the House can be called a statesman simply for allowing the government to stay open and to pay its bills.  It is also true that Boehner himself is no moderate, and that he gleefully participated in the takeover of the House by radic

by Michael Dorf One week ago, I posted a critique of a certain move that is sometimes made to defend originalism and other constitutional theories that produce the wrong result in Brown v. Board of Education . I argued that it is not sufficient that these theories allow for stare decisis because the " Brown  test" is about what a theory produces rather than what it preserves. Prof. Larry Solum then offered some thoughts and posed some questions for me, which I answered on Monday . That same day, Prof. Solum added some additional thoughts based mostly on my first post on this subject. Meanwhile, Prof. Paul Horwitz raised questions about the canonical status of Brown  and canonical status more broadly. Here I'll respond first to Horwitz and then pivot to Solum and a couple of others. Although Horwitz agrees with just about everyone that Brown is rightly decided, he worries about the notion that it--or any case--is sacrosanct. His concern is that a practice that trea

by Neil H. Buchanan As I write this post, the latest news is that there have been secret negotiations between the White House and congressional Republicans that might simultaneously avert a November 3 debt ceiling-related default while also preventing a government shutdown on December 12.  All of this could break down, of course.  [Update: As of 9am Tuesday, 10/27, the deal is reported to be moving forward.]  No matter what happens, Professor Dorf and I will surely weigh in as the story develops.  Here, I want to offer some musings on an issue that is related to the debt ceiling, but that is interesting no matter what the outcome of the current politically manufactured crisis might be. In one of the few interviews that I have given recently about the debt ceiling -- where the paucity of interviews is, as I noted in my post last Thursday , caused by an eerie lack of interest by the press in the debt ceiling, even as potential catastrophe looms -- the reporter asked a series of perc

by Michael Dorf In my Friday post , I argued that there is something wrong with an argument that is sometimes offered to rescue those brands of originalism that produce the "wrong" results in sacrosanct cases like Brown v. Board . The argument asserts that this is not a worry because originalism is compatible with stare decisis , which preserves Brown . As I explained, that argument misconceives the problem, which is that the rightness of  Brown and perhaps a few other cases are settled intuitions. It is not sufficient that an originalist judge would not overturn Brown . Any acceptable approach to constitutional interpretation (or construction) must say that Brown was rightly decided. In a response to my post, Prof. Larry Solum posted a terrific set of comments, questions, and requests for clarification on Legal Theory Blog . I've given his questions some thought and will answer them here. Rather than restate the questions and the reasons Prof. Solum asks, I'll

By Eric Segall Last Thursday, George Will wrote yet another op-ed advocating that non-elected, life tenured judges play a stronger role in protecting individual liberty (read that as economic liberty), and that this issue should be used by the GOP both in the next presidential campaign and to appoint the next Supreme Court Justice. This argument, against the judicial restraint philosophy advocated by Robert Bork and Ed Meese circa 1980, has been given deep scholarly meaning by Professors Richard Epstein of NYU and Professor Randy Barnett of Georgetown, two of this country’s most intelligent and deep-thinking legal academics. Both of these men have written scores of articles and books arguing that our Constitution, properly understood, as well as society’s current best interests, lie in judges strongly enforcing a libertarian conception of government power where minimum wage laws, union protections, and even non-discrimination laws are inherently suspect. They have been joined by ri

by Michael Dorf I taught Brown v. Board of Education to my 1L Con Law class yesterday and part of our discussion was jurisprudential: What methodology does the Court use? What weight, if any, does the Court give to the original understanding of the Fourteenth Amendment? What was the original understanding? Etc. Here I want to use that opening to register a criticism of one particular sort of argument that self-styled originalists sometimes make about Brown and about the relation between  stare decisis and originalism more generally. A relatively small number of constitutional decisions are so central to our constitutional culture that any interpretive methodology that fails to produce them is, ipso facto, improper. We can disagree over how many such decisions there are but if there is anything on the list, it's Brown . As Steve Sachs argues in an insightful paper defending a (very modest) version of originalism, Brown might be said to be right simply “because  Brown ." Y

by Neil H. Buchanan There is something very odd about the current debt ceiling stare-down.  The estimate of the drop-dead date has now been moved up twice, and the current November 3 estimate is only twelve days away.  Yet, to read the news, one would think that this was not a particularly important matter.  Not only has there been next to nothing in The New York Times about the debt ceiling thus far, but the usual flood of phone calls from reporters that Professor Dorf and I have experienced during earlier stare-downs has been but a trickle this time around. There was one very good piece in USA Today last week, in which a reporter not only accurately described the Buchanan-Dorf trilemma analysis, but he even asked the White House press secretary about it.  The response was infuriatingly dismissive, reflecting the Administration's insistent belief that only they are willing to face the "hard truths" about the debt ceiling.  The reporter also elicited an amazing ass

by Michael Dorf On Monday the US Court of Appeals for the Second Circuit upheld most of the provisions of Connecticut and New York laws limiting assault rifles and magazine size that were challenged under the Second Amendment as made applicable to the states in the McDonald case . The ruling follows a fairly familiar pattern that has emerged in the lower courts following DC v. Heller  and McDonald . Here is a summary of the court's reasoning: (1) The court determined whether the weapons banned were in "common use" and "typically possessed by law-abiding citizens for lawful purposes." The appeals court found that, although the banned weapons are not as common as the handguns at issue in the SCOTUS cases, they are common enough to satisfy the common use requirement and that, while there is some doubt about the numbers, sufficiently many law-abiding citizens possess these weapons that they satisfy the second requirement as well. (2) The court next determined

by Neil H. Buchanan One of the great pleasures of being a professor, especially an aging professor, is that one accumulates contacts and colleagues who are incredibly smart, and who occasionally get back in touch to share a fascinating idea that is in the very early stages of development.  Professor Elizabeth Anderson, a philosopher at the University of Michigan who used to teach some courses at the law school there, is one of those people who pops back into my life every now and then with an always-provocative email.  I took her "Race, Sex, and Affirmative Action" course when I was a 2L, and in my ensuing career as a law professor, I have assigned one of her many excellent articles, " What is the Point of Equality? " to my seminar students. Although she is not a specialist in tax law, Professor Anderson's interest in distributive justice frequently leads her to think about tax policy questions.  For example, a number of years ago, she and I had an interesti

by Michael Dorf My latest Verdict column discusses the Chase Utley suspension for his hard slide that broke Mets shortstop Ruben Tejada's leg in Game 2 of the National League Division Series. I use the controversy over the play--and the ensuing suspension and appeal-- to make a number of points about the law. The larger context for the column is the idea that games and sports can provide interesting insights into law in other contexts. In this post I want to make some further points that I couldn't fit into the column and that mostly involve a discussion of baseball rules for their own sake. (Hey, the DoL banner says this blog covers "Law, Politics, Economics, and More." File this post under "More.") I won't rehash the details of the Utley/Tejada play here, however, so I urge readers who are not baseball fans or haven't otherwise been following this story to read the column first. Let's begin with the relevant rule that Joe Torre, on behalf