Dorf on Law

One of the most universal human cognitive defaults is the out-of-sight-out-of-mind phenomenon.  Even after passing the stage as infants where we are no longer confused about object permanence, we can quickly forget about something that is not immediately salient on an ongoing basis.  In fact, many of the cognitive biases that make up the messy field of behavioral economics (and its subfield in legal scholarship) are based on people's tendency not to think about anything that is not in front of them (or has not been there very recently). I will get back to writing directly about the ongoing collapse of the US constitutional system next week, but I thought I would begin the new year by recalling that the much-decried "divisiveness" in American political and social culture can be traced in some part to the ability of favored minorities of people to separate themselves from Others.  This has happened in every major culture at every point in history, at least based on my li...

The Roberts Court’s major question doctrine, which seriously limits the ways Congress may delegate power to the Executive, is libertarian living constitutionalism at its worst. If you don’t believe me, please read this long quote from a 1984 Supreme Court decision, Bob Jones v. United States , ruling 8-1 that the IRS was well within its discretion to prohibit tax exempt status for private educational institutions which discriminate on the basis of race.  Ever since the inception of the tax code, Congress has seen fit to vest in those administering the tax laws very broad authority to interpret those laws. In an area as complex as the tax system, the agency Congress vests with administrative responsibility must be able to exercise its authority to meet changing conditions and new problems. Indeed as early as 1918, Congress expressly authorized the Commissioner "to make all needful rules and regulations for the enforcement" of the tax laws. Revenue Act of 1918. The same provisi...

For today's classic, I'm reposting my new year's post from last year , which mostly expressed my anxiety that the Supreme Court and other actors were facilitating a second Trump presidency. I take no pleasure in saying that I was proven right. Below you'll find most of the post as it originally appeared. (I've omitted points 5 and 6.) --------------------------------- A Few End-of-Year Loose Ends -- Mostly Featuring You-Know-Who As the year draws to a close, I wanted to add a few final thoughts to the holiday and new year's wishes provided by my co-bloggers last week. (1) As readers may have seen, on Friday of last week, my Verdict column implored the Supreme Court to grant Jack Smith's petition for cert before judgment to reject Donald Trump's claimed immunity to prosecution and to summarily affirm the Colorado Supreme Court's ruling that Trump is ineligible for the Presidency under Section 3 of the Fourteenth Amendment. Barely were the electrons dr...