Dorf on Law

by Neil H. Buchanan My new Verdict column, " Why Clinton and Sanders Are Both Right (and Trump Is Wrong) About International Trade ," extends some points about economic theory that I made in two Dorf on Law posts earlier this month ( here and here ).  In this post, I want to expand on the broad political point that I make in that column, regarding how the notion of "free trade" is treated by supposedly responsible journalists, pundits, and politicians.  That treatment is, in fact, irresponsible in how it portrays Senator Bernie Sanders's positions on trade policy. My column draws a clear distinction between Donald Trump on one hand and the Democratic presidential candidates on the other.  Whereas Hillary Clinton and Bernie Sanders might both be attacked by self-styled free traders as being in favor of protectionism, they are both in fact engaging in an important debate about what types of policies will make us better off.  Calling something a "free t...

by Sherry F. Colb In my column for this week , I discuss the mixed legacy of Dr. J. Marion Sims, the father of modern gynecology, who developed a surgery to repair obstetric fistulas by experimenting on enslaved African American women.  In the column, I suggest what one might say about such experiments from a utilitarian moral perspective, and I draw an analogy between human and animal experimentation. In this post, I want to pose the question that I did not pose in the column:  is it legitimate to utilize surgeries (and other products) that have come about through morally outrageous behavior?  In other words, should we hesitate to take advantage of a surgery that was developed in the immoral way that obstetric fistula surgery was developed?  Similarly, should we be reluctant to use the information that was gathered through immoral hypothermia experiments during the Second World War? My first inclination is to say no, that we should not hesitate to use inf...

by Neil H. Buchanan In a Dorf on Law post earlier this month, I noted an odd commonality between two very different policy issues.  In the oral argument regarding the Texas abortion case, specifically referring to the admitting privileges requirement in the challenged statute, Justice Breyer asked: "What is the benefit to the woman of a procedure that is going to cure a problem of which there is not one single instance in the nation?"  Not one single instance.  I then noted that Republicans repeatedly argue that family farms and businesses are frequently sold off and broken up in order to pay the estate tax, even though there is not one single instance in which that has been shown to have happened. After writing that post, I started to think about other examples of this phenomenon, and about variations on this kind of fantasy-driven argumentation.  The concept of being "reality-based" became a meme among liberals after a political appointee in the George W. B...

by Michael Dorf The main point of my post last Thursday --on the oral argument in Zubik v Burwell --concerned the effect of the Religious Freedom Restoration Act (RFRA). I suggested that where a provision of another federal statute fails RFRA's least-restrictive-means test, the right remedy for a court to choose or for the executive to adopt preemptively should not necessarily be to invalidate that other statute as applied to the RFRA claimant. Instead, given the principle that statutes should be read in harmony with one another, I proposed that RFRA could be read to delegate to the executive in the first instance, and then to the judiciary where the executive does not accommodate, the authority to fashion an exception that would otherwise be unauthorized. The particular context was a suggestion during the oral argument by Chief Justice Roberts and Justice Alito. They said that the contraception mandate the administration has imposed under the Affordable Care Act (ACA) fails th...

by Neil H. Buchanan My latest Verdict column, " Social Security Will Be There When Today’s Young People Retire ," was inspired by my continuing discussions about Social Security with people in their twenties.  With so much disinformation spewing from Republicans about Social Security, especially from the establishment candidates (with the front-runner's views being wrong in a different way), it is constantly necessary to debunk all of the hysterical warnings about "bankruptcy" and all that.  [Update: That column has now been republished by Newsweek under the title " No, Social Security Is Not, Repeat Not, Going Bust ."] The biggest takeaway from that column is that the worst-WORST-case forecasts do not show Social Security "running out of money," as even some journalists now describe it.  Even in that worst case, millennials would still receive modest but important benefits.  I show, for example, that a single person whose gross salary i...

by Michael Dorf Yesterday's oral argument in Zubik v. Burwell  raised a great many interesting and important questions. After setting out the background to the case, I'm going to zero in on one that is of special interest to me, which is not to say it is the most important: Could the federal executive effectively create new private contraception-only insurance programs on the exchanges, even if not directly authorized to do so by statute? With important exceptions, the regulations implementing the Affordable Care Act (ACA) generally require employers that provide health insurance to their employees to provide plans that include contraceptive coverage with zero deductibles. In 2014, in Burwell v. Hobby Lobby , the SCOTUS held that under the federal Religious Freedom Restoration Act (RFRA), Hobby Lobby and similarly situated corporate employers whose ownership group had moral objections to providing (some kinds of contraception) to their employees could opt out using the same...

by Michael Dorf In my Verdict column today, I invoke two studies that were recently featured on the NPR podcast Hidden Brain  to ask whether boredom might explain the appeal of Donald Trump. The studies find that boredom increases feelings of nostalgia and prejudice--both key elements of Trump's appeal. I do not literally argue that Trump's attraction rests on the ennui of his target audience, but I try to connect the studies to some larger themes. Here I want to move beyond the question of why people support Trump to ask a question inspired by his treatment of the press. Trump's best-known attack on the press was his boycott of the Fox News debate immediately preceding the Iowa caucuses based on Trump's belief that Megyn Kelly had treated him unfairly (by asking him questions) in an earlier debate. But that is hardly the only example. At his rallies, Trump routinely derides the press en masse, jeering at the reporters caged in their pen at the back. The fact tha...

By Eric Segall I recently placed on SSRN an essay that is forthcoming in the Cornell Law Review on Line titled “Originalism as Faith.” Professor Larry Solum responded to the piece on his Legal Theory Blog, and suggested I made three “mistakes” about his views. My essay discusses the role (or lack thereof) originalism plays in constitutional interpretation and critiques a recent article in the Columbia Law Review by University of Chicago Law Professor Will Baude titled "Inclusive Originalism." My main thesis is that Baude's "inclusive originalism" specifically and "New Originalism" more broadly, either inaccurately describe constitutional decision-making by mislabeling non-originalist decisions as originalist, or define originalism in a way that is indistinguishable from non-originalist methods. Either way, Professor Baude and other New Originalists overstate the importance of original meaning to constitutional law. I suggest at the end of thi...

by Neil H. Buchanan In a Dorf on Law post last week (cross-posted at Newsweek's website under the title " From Austerity to Free Trade, Elites Play Catch-Up "), I discussed some rather surprising recent concessions by some top-flight economists, who now admit that they have been over-selling the virtues of "free trade" for decades.  (I will explain the scare quotes below.)  I specifically stated that, notwithstanding this surprising news, almost "no one thinks that we should now rip up all trade agreements and go back to what economists call 'autarky.'"  That is, saying "freer trade is not always good" is not the same as saying that all trade is bad.  Conversely, however, we now can say with greater certainty than ever that not everything that purports to enhance "free trade" is automatically virtuous. One of the things that makes economists' hearts beat with pride is the idea that their insights are deep and often...

By Michael Dorf Last week Prof. Colb and I were fairly busy promoting our book Beating Hearts: Abortion and Animal Rights . We wrote an essay mostly drawn from the book's Introduction that gives a capsule summary of our thesis and argument. That essay was published in The Chronicle of Higher Education . We were also interviewed about the book   by Prof. Gary Francione  and Anna Charlton, who were filling in for Bob Linden by hosting Go Vegan Radio. The show aired live (where available) on the Genesis Communications Network on March 13, and is now available here as a podcast. (Our segment begins at the 32:45 mark and runs through 57:12). Our discussion with Francione and Charlton ranged over a number of issues, including the question whether there is common ground between people like us--whose views about the morality of late-term abortion are colored by our views about sentient creatures, whether cows, pigs, or substantially developed human fetuses--and people who oppose ...