Dorf on Law

by Neil H. Buchanan Although my next scheduled veganniversary column is almost eleven months away, I want to offer a few thoughts here about the meat-related causes of the Amazon crisis that Professor Dorf discussed in his column yesterday .  I will also draw from a column in the previous day's New York Times , which carried an op-ed by Farhad Manjoo under the pleasingly bold (and somewhat jarring) title: " Stop Mocking Vegans ." Those two pieces, along with my two - part 11th veganniversary column last month, provide a good framework within which to talk about the ethics of eating meat and the role that small-c capitalism has played in moving us at least a bit in the right direction.  The fact is that veganism -- or at least large-scale partial veganism -- is a necessary and central part of any effective response to the global climate crisis. Overcoming people's attitudes about veganism, however, remains a frustratingly stubborn barrier.

by Michael C. Dorf The immediate cause of the unfolding catastrophe in the Amazon is political. Jair Bolsonaro, like other right-wing populists elected to power in recent years, strongly signaled indifference to environmental devastation, which emboldened farmers, ranchers, and miners to set fire to the rain forest in order to clear land for commercial gain. Under intense domestic and international political pressure, the Bolsonaro government has begun deploying the military to put out the fires and begin enforcing environmental laws. These efforts are of course welcome, although Bolsonaro's rejection of aid offered by G-7 countries and his own record cast doubt on his commitment. In any event, the long-term crisis is only partly amenable to government-led solutions, in Brazil and throughout the world. Consumer eating habits must also change.

by Neil H. Buchanan When I write about economics, I typically explore the many ways in which orthodox theory is wrong.  Very, very wrong.  In particular, I have spent a great deal of time (see recent links here ) explaining how the notion of economic efficiency (or Pareto efficiency, for the jargon nerds) is a facade that allows conservative economists to pass off rank opinionating -- Minimum wages are bad!  Corporate taxation distorts the economy! -- as objective science. My counterclaim is not that those of us who dissent from the orthodoxy possess what mainstream economists only claim to possess: an objective theory that transcends morality, politics, and human judgment.  Instead, I say simply that there is no way to wring philosophy and ethical choices out of policy decisions, so we should respect facts and logic but be aware of where those things end and human judgment begins. This does not always prevent areas of agreement between the majority and the dissenters.  For examp

By Eric Segall I'd like to call attention to a wonderful new essay by Professor Thomas Colby titled "Originalism and Structural Argument" published in the Northwestern University Law Review. Colby raises serious questions about federalism and separation of powers cases that most originalists favor but which are difficult to reconcile with originalist methodologies. Colby, a long-time critic of originalism, especially the so-called “New Originalism,” contends that cases like Printz v. United States (Congress can’t commandeer state executives unless it does so incidentally through laws applicable to private actors too), Alden v. Maine (states have sovereign immunity from federal question suits in their own courts), and Seminole Tribe of Florida v. Florida (states can’t be sued in federal courts by citizens of their own states), are all based on non-textual, structural arguments arguably inconsistent with the originalist canon. Colby’s arguments are strong and should b

by Michael C. Dorf Just days after Donald Trump likened himself to a Biblical King of Israel, he asserted a power that might be better associated with the King of America . Miffed that China was taking the predictable and predicted step of responding to Trump's tariffs on Chinese goods with tariffs on American goods, Trump tweeted the following remarkable edict: "Our great American companies are hereby ordered to immediately start looking for an alternative to China, including bringing our companies HOME and making your products in the USA." "Start looking for an alternative to China" is sufficiently nebulous that one might think or hope that the order was meaningless, but no, later the same day Trump followed up with a tweet that showed he had spoken to someone in the administration with some legal training who had told him how he might justify enforcing some sort of actual trade restriction. He invoked  the Emergency Economic Powers Act (EEPA) of 1977.

Note to Readers: Yesterday, Verdict published my new column: " Elections, the Economy, and Trump: Part One ."  There, I explain why Donald Trump's claim that the economy is great (and thus that he should be reelected) is pure nonsense as a matter of economic reality.  My column here discusses a different topic entirely, but I encourage interested readers to take a look at that Verdict piece as well. by Neil H. Buchanan Earlier this week, I returned to my recent musings about the incoherence of economic efficiency as a theoretical construct, much less as a practical guide to law or policy.  There is, I am both happy and sorry to report, more to say. My overall point in that column was that the lack of a baseline against which to measure economic efficiency (in any context) is especially devastating to any conception of what counts as a regulatory taking -- that is, a claim that the government has done something that made an owner of property poorer by changing (o

by Michael C. Dorf Earlier this week , President Trump re-floated an idea that he and various GOP politicians have previously proposed: the notion that via unilateral executive action, he could effectively cut the capital gains tax by indexing the cost basis of investments to inflation.  As of this writing, Trump has backed away from that idea; but given how quickly he changes his mind, this or a similar proposal could be back on the agenda within a matter of weeks or days, if not minutes.  Notwithstanding that uncertainty, therefore, this seems like a good moment to offer an analysis of Trump's proposal. As Prof Buchanan explained in a column last year, even a person who somehow concludes that such indexing would be a good idea as a matter of policy must nonetheless concede that a different policy choice has been made by Congress, which provided for inflation indexing in other statutory provisions but not in the capital gains provision. Accordingly, an  Office of Legal Cou

By Eric Segall Social media pundits, constitutional law professors, mainstream journalists, and conservative politicians are all agog about a brutally honest amicus brief filed in a Second Amendment case by Democratic Senators Whitehouse, Hirono, Blumenthal, Durbin and Gillibrand. Republican Senator Lindsey Graham called the brief    " an extraordinary threat from one branch of government to another." As the Washington Post notes , "t he Wall Street Journal editorial board dubbed it the opposite of an amicus filing — an 'enemy-of-the-court brief' — a nd the National Review’s David French called it “astonishing.” Even, liberal law professor Larry Tribe said the  brief " was inappropriately — and stupidly— threatening,” The case involves a relatively silly New York City gun law that has been repealed and cannot be reinstated absent a change in governing New York State law. In other words, the case is almost certainly moot, as the amicus brief correctly

by Neil H. Buchanan The search for a neutral, non-ideological, apolitical answer to policy questions is both admirable and doomed to fail.  It is admirable because we should all want to live in a world in which there is a way to say with confidence, "This is simply true , not as a matter of political preference but as a matter of logic and evidence."  It is doomed to fail because, in the end, policy questions are political, and there is no natural baseline against which we can measure any and all policy alternatives. That is not to say, of course, that there are no objective facts or even that there are no reliable conclusions that can be drawn from facts.  There are no facts, for example, supporting the claim that Barack Obama bugged Donald Trump's offices (nor are there facts supporting much of anything that Trump says).  There are , however, facts that so strongly support the conclusions that species evolve and that the climate is changing -- just to choose two l

by Michael C. Dorf In both the US and the UK, serious people now worry that the leaders of government could attempt to retain power after being voted out of office. DoL blogger Neil Buchanan has repeatedly explained ( e.g., here ) why we have reason to fear that Donald Trump could lose the 2020 election yet receive enough support from Republicans in Congress and elsewhere to claim a fig leaf of legitimacy for staying on while claiming voter fraud or the like. Meanwhile, last week the NY Times reported on a looming scenario in which Boris Johnson could lose a parliamentary vote of no confidence yet defy convention and the tacit assumption behind the Fixed-Term Parliaments Act that a sitting PM should yield power to a new PM capable of forming a government pending a new general election; instead, Johnson might call a new election but remain in office pending its outcome, even after the no-confidence vote. And all of that would happen as the UK crashed out of the EU. The Times articl

by Neil H. Buchanan Yesterday was my first official day as an employee of the University of Florida.   The day included the usual experiences for a professional worker: seeing my office for the first time, signing up for internet service, getting a parking pass (which I will not need, thankfully), meeting a bunch of friendly new faces, getting lost in the building, and so on.  It also meant that I am once again covered by health insurance ... I think. Because I occasionally write about health-care policy issues, this seems like a good moment to revisit a few of the many things that are so wrong with the current system in the U.S. -- not just for people who are uninsured or underinsured, but also for the very lucky ones like me who have what at least seems to be adequate (albeit expensive) coverage.  We often become so accustomed to those background facts that it is all too easy to allow the political conversation about health care to become utterly abstract. I am at this very mo

by Michael C. Dorf Last week and weekend, I had the good fortune to attend the 12th annual Rocky Mountain Ethics Congress  (RoME), hosted by the University of Colorado Center for Values and Social Policy. Prof Colb gave one of three keynote addresses during the four-day conference, in a speech that was also the 2nd annual Tom Regan Memorial Lecture , co-sponsored by the Culture & Animals Foundation . For those unfamiliar with Regan's work, he was a pioneer in the animal rights movement. I italicize "rights," because while Peter Singer's Animal Liberation inspired much of the modern movement, Singer is a utilitarian who, following Bentham, regards rights as nonsense on stilts. Regan was the first philosopher to make a comprehensive set of deontological arguments for animal rights as such. Although Prof Colb and I acknowledge the importance of Regan's work, as she put the point in her lecture, the way that scholars pay tribute to one another is by critical e

by Neil H. Buchanan Although the national conversation has -- rather incredibly -- already moved on from the El Paso and Dayton mass shootings (now covering awful-but-still-less-bad issues like Jeffrey Epstein and not-at-all-important matters like Joe Biden's flubs), I am still thinking about what it means to live in a country in which white supremacists are starting to take action on their hatreds more frequently and openly. There is no doubt that what the white supremacists are doing counts as terrorism , because they are terrifying people to the point that children are being equipped with Kevlar backpacks and people are now afraid to do normal things in their daily lives.  The point of terrorism is to make people feel that they are never safe.  That is what domestic abuse does to an isolated spouse (almost always the wife, of course), and it is what national or international networks of terrorists aim to do to people in general. This then raises a particularly grim questio

by Diane Klein The news of Jeffrey Epstein's death (apparently by suicide) in the federal Metropolitan Detention Center in Manhattan early on the morning of Saturday, August 10, 2019, has taken the Internet by storm, and spawned a thousand conspiracy theories .  Of course, there is a great deal that is still not known, and won't be known, until a much more thorough investigation is undertaken.  One thing is certain: the criminal prosecution of Jeffrey Epstein is over.  The death of the defendant brings any such legal action to an end. Does that mean all the lawyers go home?  Not by a long shot. The legal farrago that is the Epstein matter carries on .

By Eric Segall Last Friday, two things happened to me related to originalism. I received in the mail reprints of an article I wrote for Constitutional Commentary (no link yet) called "Originalism Off the Ground." The piece was a response to yet another Arthurian attempt by Professors Will Baude and Stephen Sachs to convince the world that Originalism is indeed our law. The thrust of my piece was that the collective work of Will and Steve on originalism and history (I will use their first names because I consider them friends) has failed to address the core realist critique that constitutional law is mostly the sum of the Justices' value preferences, and originalism and all other meta theories play at most a negligible role. The second thing that happened on Friday was that Steve put on Facebook a link to his and Will's new essay titled "Originalism and the Law of the Past," published by the Law and History Review. The SSRN link is here . The third and fo

by Neil H. Buchanan Democrats seem to over-learn certain lessons.  They lost to Ronald Reagan in 1980 and 1984 and decided that the U.S. was a "center-right nation" and that the best thing to do was to become Republican lite.  Bill Clinton later decided to cave to Republican demands for a balanced federal budget and -- when the dot-com bubble created prosperity and a temporary surplus -- Democrats decided that being fiscal hawks was the best approach, leading to Obama's foolish "pivot" to austerity in 2010. As I have argued frequently (most recently here ), Democrats have somehow convinced themselves that their policy views are unpopular, even though the Republicans are under water with voters on every major issue.  Somehow, it is always Democrats who are engaged in soul-searching and wondering why not everyone agrees with them about everything.  The big newspapers and networks are also now in an infinite do-loop as well, asking how "heartland voters&qu

by Michael C. Dorf A recent Washington Post  op-ed by Harry Litman occasioned by the mass shootings in El Paso and Dayton calls for the enactment of a federal statute criminalizing domestic terrorism as such. In light of various statements by law enforcement and other officials condemning the respective acts as domestic terrorism, Litman points to the seeming oddity that there is no federal domestic terrorism statute. (He acknowledges that the PATRIOT Act defines domestic terrorism but complains that it does not state a specific crime of domestic terrorism.) Partly Litman makes a practical point. He says that a specific domestic terrorism law would "bring such crimes into the rubric of predicate offenses for providing material support to terrorists [and] would also provide more resources for the [FBI] on the data-gathering side as well as the prosecution side." Perhaps that's true, although it's not clear that existing legislation is insufficient. Rather, one mi

by Michael C. Dorf A former colleague of mine used to say that popular misconceptions about the law could sometimes be useful. The example he gave most frequently was the widespread but false belief that for a contract to be binding it must be written. That is not true, except in particular circumstances. Traditionally, the so-called statute of frauds made unenforceable oral contracts that could not be performed in a year or less, contracts for the sale of real estate, and various other oral contracts. Modern statutory schemes expand the categories for which a written contract is necessary. For example, the widely adopted Uniform Commercial Code requires a writing for a contract for the sale of goods for the price of $500 or more. However, as a general matter, oral contracts are binding. Nonetheless, the popular belief that all contracts must be written to be binding has a salutary effect. It induces those who hold the belief to put their contracts in writing, which in turn greatl

by Neil H. Buchanan [Note to readers: The two mass shootings over the weekend continue -- quite rightly -- to consume people's attention.  I wish that I could think of something to add to the discussion, but for now, my thoughts are jumbled and my feelings are raw.  I have thus decided to write today on a different topic, one that is important but less immediate and less emotional.] One of the most notoriously awful aspects of Donald Trump's campaign rallies in 2016 was the howling chants of "Lock her up!"  Indeed, the people who thrill to Trump's brand of ugliness so much that they decide to attend his speeches in person clearly reveled in those chants, relishing the two-minutes-hate pulsing thrill of imagining the hated Hillary Clinton being led off in an orange jumpsuit. Reportedly, those chants continue to be part of the audience-participation show that is a 2019 Trump rally.  And we can certainly imagine that something like this will become part of the

by Michael C. Dorf As recently reported , the State of Arizona is trying to sue members of the Sackler family and Purdue Pharma in the US Supreme Court, invoking (in its complaint and accompanying brief ) both a federal jurisdictional statute  and Article III, Section 2 of the Constitution, which provides in relevant part: "In all cases . . .   in which a state shall be party, the Supreme Court shall have original jurisdiction." The case falls within the subject matter of the federal courts because, in compliance with the prior paragraph of Article III, Section 2, it is a "controvers[y] between a State and citizens of another state." While the Eleventh Amendment curtailed such jurisdiction where states are defendants, it left such jurisdiction intact where states sue as plaintiffs. Still, bringing this lawsuit in the US Supreme Court in the first instance is problematic in at least four ways.

by Michael C. Dorf The fourth season of Malcolm Gladwell's podcast Revisionist History  includes a great deal of material of relevance to lawyers. Episodes 1 and 2 critique the LSAT and time-pressured law school exams on the ground that they reward quick thinkers at the expense of slower-but-deeper thinkers. There's much in those episodes with which I agree. For just about all of my 27 years in law teaching I have given either 24-hour or 8-hour take-home exams rather than 3-hour in-class exams for exactly the reason that these episodes underscore: The real-life practice of law often puts time pressure on attorneys, but (except perhaps during a trial when an attorney must make split-second decisions whether to object to proffered evidence) rarely does actual legal practice involve the kind of time pressure that the LSAT and in-class exams place on test-takers. That said, these episodes overclaim. For example, Gladwell contrasts chess grandmasters who are the best speed playe

by Neil H. Buchanan Based on my reading of much of the recent commentary from so-called centrists and NeverTrump conservatives, it appears that they experienced something of a group orgasm in watching this week's Democratic presidential not-at-all-debates.  Why?  Because they have convinced themselves that the less liberal candidates brutally exposed the supposedly crazy liberals for being totally unrealistic about health care.  In the estimation of this pearl-clutching crowd, Liz Warren and Bernie Sanders were laid low by the cold reality of centrist logic. This is nonsense, of course, but it would nonetheless be useful to learn something about how progressives can change the framing of the health care debate going forward.  More generally, it is important to understand the difference between a healthy debate and an unhealthy debate at this stage of a campaign. The short version of my argument below is that it is not at all healthy to frame opposition to Sanders and Warren