Dorf on Law

by Neil H. Buchanan Last week, I retrieved a voice mail message from my home telephone line.  The speaker sounded as if English was his second language, and it was clear that he was reading the following words: "Hi, this is Officer Ron [or maybe Loren?] Schneider [or maybe Snyder?] from the IRS Department.  The reason for this call is to inform you that the IRS has issued an arrest warrant against you, and your physical address is under federal investigation.  So call me back to get the detailed information about your case.  My call-back number is 646-630-8992.  I repeat, it's 646-630-8992.  It's very important important we hear from you today.  Thank you." I knew that it was some kind of scam as soon as I heard the words "IRS Department," which is as much of a tip-off of an ill-informed con artist as Ted Cruz's "IRS Code " nonsense.  A quick reverse phone lookup on whitepages.com confirmed that this is a known scam, with my entry of...

by Michael Dorf During the last few years of the public debate over same-sex marriage, social conservatives found themselves making arguments against SSM that some conservative intellectuals sincerely believed but that did not reflect the actual basis for much (perhaps most) of the opposition to SSM. The actual basis for much of that opposition was a view--often but not always rooted in religion--that homosexuality is immoral or even disgusting. But in polite circles, that's not the argument that was advanced. The argument offered was that marriage as an institution evolved for the purpose of providing a stable home for children conceived accidentally through heterosexual sex and that therefore extending the institution of marriage to same-sex couples was not required by its core purpose. This argument was coherent as an argument against a constitutional right to SSM, because it responded to the objection that denying same-sex couples the right to marry is irrational and thus u...

by Michael Dorf On Wednesday, Texas and nine other states (as well as various localities and officials) sued the United States , seeking to block implementation of the policy regarding access to restrooms by transgender students set forth in the May 13 "Dear Colleague" letter from the Justice Department and the Department of Education. The lawsuit raises a number of procedural questions regarding jurisdiction and the Administrative Procedure Act--procedural questions of the sort that I often blog about. Indeed, readers may recall that I addressed only a technical procedural question a couple of weeks ago, in my post on the dueling lawsuits by the U.S. and North Carolina over the latter's "bathroom law." For today, I want to bracket the interesting procedural questions raised by this latest Texas v. U.S. case --not to be confused with U.S. v. Texas ,   the immigration case now before the SCOTUS. The two cases are similar. In both, Texas argues that the Obama ...

by Neil H. Buchanan A bit of a mini-debate has emerged recently among pundits over whether Bernie Sanders will be to Hillary Clinton in 2016 as Ralph Nader was to Al Gore in 2000.  Politico published a long-ish article making this claim ten days ago, and an op-ed columnist for the Washington Post weighed in on the issue the next day.  A simple Google search of "sanders nader" turns up multiple hits on the issue.  (For what it is worth, Nader himself has had good things and not-so-good things to say about Sanders this year.) One of the reasons that I want to weigh in on this question is that I firmly reject the premise of the analogy, which is that Ralph Nader cost Al Gore the presidency in 2000.  Not only do I reject that claim now, but I rejected it from the very beginning, as I will explain momentarily.  Even so, I have reluctantly come to agree with the conclusion of that analogy, which is that Sanders and his supporters are now significantly increa...

by Michael Dorf Monday's SCOTUS ruling in Foster v. Chatman --finding that Georgia violated Timothy Foster's right to a capital trial before a jury selected without racial bias--makes no new law. The majority opinion of CJ Roberts methodically parses the trial record to show that Foster made out a prima facie case of racial bias and that the prosecutor's ostensibly race-neutral justifications for using four of the nine peremptory challenges it had to eliminate all of the Black jurors were, not to put too fine a point on it, bullshit. The Chief shows how the prosecutor's story was internally inconsistent and highlights documentary evidence that is pretty damning, such as the following notes: On each copy [of the venire list], the names of the black prospective jurors were highlighted in bright green. A legend in the upper right corner of the lists indicated that the green highlighting “represents Blacks.” The letter “B” also appeared next to each black prospective ju...

by Neil H. Buchanan What do people in other countries think about the possibility that Donald Trump will be the next President of the United States?  What, for that matter, must they think about a country with a major party that would nominate that particularly absurd demagogue? I recently returned from a three-week trip to Australia and New Zealand, where I had been invited to give talks about tax policy and the U.S. elections.  Reflecting on that trip and my interactions with people in those countries allows me to take a bit of a step back from the day-to-day news cycle.  Even though I remained completely engaged with U.S. news sources while I was abroad, being so far away from home was still enough to give me some perspective. It is possible now to think back on what I was thinking as I left the U.S. in late April, as opposed to where things stand today.  The picture has changed so completely, so quickly, that it is necessary to remind myself that it was not...

by Michael Dorf What, if anything, is wrong with a presidential candidate releasing a list of the names of his or her prospective SCOTUS nominees, as Donald Trump recently did? The most obvious objection to the list is that it politicizes Supreme Court nominations. There is a naive version and a sophisticated version of this objection. The naive objection says that injecting prospective SCOTUS nominees into a presidential election campaign politicizes the appointments process. No one who is remotely sophisticated makes this objection in this form, but it is tempting for people who want to view Trump's list as nothing special to respond to the naive objection. For example, a HuffPo story notes the connections of people on the list to current Republican senators, which elicits from attorney Ken Gross this nothing-to-see-here-so-move-along response: “What else is new? ... You do things to ingratiate yourself to senators and others to garner their support. ... It’s politics as...

by Michael Dorf As per my custom, I am posting the Federal Courts exam I administered this past semester. It features President Bernie Sanders. This is not an endorsement. In order to make the scenario realistic, I needed an anti-NAFTA president (for which Donald Trump would also have worked) but also one who is otherwise internationalist (for which Trump would not have worked). The instructions told students they had eight hours to complete the exam, and it was take-home, open-book, with a 2500-word limit. I also asked students to assume that Hughes is a state of the U.S. The three questions are of equal weight. Submit answers in comments, but I'm done grading, so I won't comment further myself. -------------------------------- The following facts should be assumed for questions 1 and 2. In November 2016, Bernie Sanders is elected president, and Democrats win very narrow majorities in the House and Senate (50 Democrats plus Vice President Elizabeth Warren). Du...