Dorf on Law

[A brief introduction. I am an attorney and a scientist. I attended Rutgers Law School in Newark where I was taught Criminal Procedure by fellow Dorf on Law blogger and good friend Sherry Colb. I worked as a patent and anti-trust attorney for Sidley and Austin in Manhattan until 2003. At that point I left the practice of law and became a Director at the World Anti-Doping Agency laboratory at UCLA. After a few years there, I left to form my own company - The Agency for Cycling Ethics and now Scott Analytics - where I develop and administer anti-doping programs for both professional and Olympic sport. I also serve regularly as a consulting expert for anti-doping cases and have been involved in almost every high profile doping case over the last five years. I will generally be writing here about legal issues involved in sports, with a likely heavy slant towards anti-doping in professional and Olympic sport. Today, however, I am going to focus on a bit of esoterica of Major Leage Baseball ...

I'll begin with a confession: I've only skimmed the California Supreme Court opinion upholding Proposition 8 as a permissible "amendment" that did not have to go through the more demanding process required for "revision" of the state constitution. I do not consider myself an expert in California constitutional law, in any event. Did the majority read the prior precedents too narrowly in holding that only structural changes require the revision process? Was Justice Moreno right that permitting a change that disadvantages a minority group on the basis of prejudice must itself satisfy the strict scrutiny test? That certainly would not be true at the federal level, but the federal Constitution does not distinguish between "amendments" and "revisions"---except to the extent that changes depriving any state of its equal suffrage in the Senate require a more rigorous process (obtaining that state's consent) than other changes require. I fin...

I have another guest column on FindLaw this week, "Mortgages, Housing, and the American Dream: Do We Really Need to Own Our Homes?" to be posted later today ( here ). In that article, I pick up on my Dorf on Law posts from last August ( here , here , and here ) to argue that the United States should move away from its fixation on the idea that success in life must include owning one's own home. Here, I would like to expand on a point that I make only tangentially toward the end of that column: "In fact, everything that one can do in a house can be done in a rental. The difference is that the renter will be given an explicit price up front for doing what she wants, whereas the cost of doing what one wants to a house is hidden until the house is up for sale." The more I think about those two sentences, the more I am shocked that Americans think about owning their homes as being fundamentally different from renting. If there were a market for rentals (includi...

In my latest FindLaw column I discuss the case of Bowen v. Oregon , which is before the U.S. Supreme Court in a petition for certiorari. The issue is whether the Sixth Amendment right to a jury trial includes a requirement -- for serious criminal charges -- that conviction must be by a unanimous vote. The Court previously upheld the Oregon approach (which, like Louisiana but unlike the 48 other states, allows "split-verdicts") in Apodaca v. Oregon , but parties suggest that this 1972 decision merits re-examination, in the light of what we have learned about jury deliberation in the interim. My column discusses the way in which a unanimity requirement would and would not alter the manner in which groups of jurors (and, in fact, groups of people more generally) deliberate and reach decisions. In this post, I want to focus on a different aspect of the case: the breakdown of Justices in Apodaca , which upheld the validity of non-unanimous verdicts under the Sixth and Fourtee...

That's more or less the argument I make in my commentary over on CNN.com. With apologies to my DOL readers who expect an accompanying blog entry making additional points, I'll leave it at that. I have a nasty cold (not the swine flu!) and so will take a break for a bit. If I'm well enough tomorrow, I'll post something on the California Supreme Court ruling upholding Prop 8. Posted by Mike Dorf

I'll have a piece on the nomination on CNN.com in a few hours. Meanwhile, read Neil's post on empathy below! Posted by Mike Dorf

On Friday, Professor Dorf posted " Empathy and Justice ,"in which he offered some helpful thoughts about the "empathy" furor, that is, the attacks from President Obama's political opponents in response to his statement that he will pick a Supreme Court justice on the basis of, among other things, the potential justice's "empathy." What, the conservatives have asked, could that possibly mean? Surely it is a code word, but for what? Being "pro-abortion"? Plenty of cyber-ink has spilled -- and cable TV commentary has been bellowed -- on the topic. My reaction to Obama's comments was that there was no code being used. Of course, it is not surprising that Obama's opponents would assume that he was using code, because that is their modus operandi . (For example, several years ago, when George W. Bush talked about justices who oppose Dred Scott , liberals scratched their heads and asked, "Huh?" We learned soon thereafter ...

An article on the front page of Saturday's NY Times examined models for President Obama's plan to hold a small number of terrorism suspects for "prolonged detention." These include: quarantine of people with infectious diseases; pre-trial detention of criminal suspects; and preventive detention of people who are mentally ill and dangerous or sexually violent predators. However, as I was quoted saying in the article: "We have these limited exceptions to the principle that we only hold people after conviction . . . but they are narrow exceptions, and we don’t want to expand them because they make us uncomfortable.” And why do they make us uncomfortable? Because they violate a presumption of liberty, the core notion that people should enjoy the most basic freedom---freedom from confinement---absent some very good reason. We could go further and say that the more the basis for confinement looks like a fear of criminality, the more uncomfortable we are (or shoul...

I have thus far resisted addressing the criticism directed by some conservatives at President Obama's stated goal of selecting a Supreme Court nominee who, among other things, has a strong sense of empathy for his or her fellow human beings and the difficult circumstances in which they sometimes find themselves. I have resisted mostly because the critique is laughably implausible. Obama never said that he thought empathy was the only characteristic necessary for judging, nor did he say anything like what the critics attribute to him: I want judges who will ignore the law and vote based on their own subjective preferences for some people and interests over others . Instead, Obama made a point that is and has been a commonplace for over a century: In the sorts of hard cases that reach the Supreme Court, there are usually legitimate legal arguments for a variety of results; in following the law as they best understand it in such cases, judges will invariably be influenced to some exte...

My new column discussing the Social Security trustees' report is up on FindLaw: " The 2009 Social Security Trustees' Report: Good News Behind the Headlines ." Interested readers can also peruse my Dorf on Law blog posts from last Thursday and from late February of this year as well as a still-relevant column on FindLaw from 2001: " The Trillion-Dollar Breach of Contract: Social Security And The American Worker ." -- Posted by Neil H. Buchanan

The re-emergence of health care reform as a major issue in U.S. politics is a promising development. The lack of health care coverage for millions of Americans is a continuing national shame, and even those with insurance are often stuck with inadequate care, hidden costs, and the threat of losing everything to a medical catastrophe. Moreover, as I have noted in several recent posts, the key to preventing long-term fiscal problems for the federal government is to reduce the growth of health care costs, which would not only stabilize the finances of Medicare and Medicaid but would improve the bottom line of every American business. One of the most notoriously expensive parts of the U.S. health care system is administrative costs -- which basically boils down to private insurers hiring people whose job it is to shift costs to other private insurers, which are in turn hiring people to push those costs back, with everyone ultimately trying to get the patient to pay as much as possible. ...

On Monday, I posted about a disturbing aspect of the Supreme Court's decision in Ashcroft v. Iqbal : The Court's expressed willingness to withhold a cause of action against federal officers for violations of constitutional rights on an ad hoc right-by-right basis. For an excellent discussion of this problem in broader perspective, see this forthcoming law review article by David Baltmanis and James Pfander. In my latest FindLaw column , I explore the likely implications of Iqbal for pleading practice in the federal courts. I conclude that Iqbal will lead to a higher rate of dismissals in just about all categories of civil lawsuits before any discovery is completed. My column also faults the majority in Iqbal for its statement that the possibility of a deliberate policy of discrimination against, and abuse of, Arab and Muslim men in the post-9/11 investigation was too remote to warrant discovery. Post-Abu Ghraib and post-torture memos, I say, allegations that abuse was no...

Last month, in a post critiquing the op-ed columnists who write regularly for The New York Times, I argued that the general shallowness of the pundits' columns has become more worrisome as the news has become less about celebrity scandals and more about life, death, and economic survival. The following week, I discussed a Maureen Dowd column in which she tried to sound intelligent about economic policy but managed to completely mangle the analysis. Following in those undistinguished footsteps, David Brooks wrote a column last week -- with the unpromising title "Fiscal Suicide Ahead" -- that offers further insight into the untrained and unqualified mind of an op-ed columnist who is trying to say something scary and safely mainstream about government deficits. Brooks starts with one of his classic moves, which is to attack a non-conservative for being too egg-headed: "Barack Obama came to office with a theory." A theory? Not a worldview, not a core motivati...

Later in the week I'll have a (highly critical) FindLaw column up on today's decision in Ashcroft v. Iqbal . For now I'll just note a small piece of the opinion that I found jarring. The majority says that it is assuming without deciding that there is a Bivens action for religious discrimination in violation of the First Amendment. Bivens (for those of you who never took or forgot some of what you learned in federal courts) is a Supreme Court decision that permits lawsuits against the federal government for civil rights violations; a federal statute (42 U.S.C. sec. 1983) provides a cause of action against state officials for such violations but Congress never enacted a similar statute for violations by federal officials; Bivens is a judge-made cause of action that fills this gap, and it is generally interpreted to be the equivalent of section 1983. Although the legitimacy of Bivens might have been subject to question in 1971, when it was decided, by now Congress has c...

The Obama Administration's decision to reboot the military commissions has already sparked debate over at least two questions: First, whether the President has thereby flipped positions from the campaign; and second--and more substantively--whether trials before ordinary civilian courts would not be adequate. Here, I want to raise a third question: whether the analysis that led the Administration to this decision was sufficiently inclusive of indirect harms resulting from the terrible public relations imagery of restarting the military commissions. I can begin by acknowledging that there could be something to the "mend-it-don't-end-it" justification for using military commissions. The problem with the military commissions authorized by President Bush, President Obama says, was their lack of key procedural safeguards: limited ability of the accused to choose his lawyer; extensive use of hearsay evidence and the concomitant inability to confront witnesses; and the pos...

It is hard to disagree with Jim Buckmaster's characterization of the hysteria over the attacks allegedly committed by BU Med School student Philip Markoff as, well, hysteria. Of course these are heinous charges but isn't Buckmaster clearly right that the danger of attacks on people offering sexual services arises out of those offers rather than the medium--Craigslist versus print ads--used to communicate the offers? Sadly, the risk to sex workers from johns is endemic to the job. And the risk of detection of a person intent on killing a sex worker depends on what measures he takes appropriate to the medium. A perp who calls from his home phone or answers a Craigslist ad via his own computer and/or account is much more likely to be detected than someone who calls from a payphone or uses an internet cafe and pays with cash. Indeed, this all seems so obvious that it is tempting to see the anti-Craig's List reaction to the Markoff case as really about something else. And ...

[Note: The post below has been edited to fix an error at the end of the first paragraph. The last sentence of that paragraph now correctly states that the projected date that the Medicare trust fund is likely to reach a zero balance is 2017. NHB] On May 12, the Trustees of the Social Security program released their annual financial report , which provides (among other things) 75-year projections of the financial flows associated with the program as well as the size and projected path of the Social Security trust fund balance. The standard media response to the annual release is to focus on the date at which the trust fund is projected to be depleted, and this year is no exception. The headlines have emphasized that the depletion date for Social Security has been moved up to 2037 from last year's estimate of 2041, the change being directly related to the depth of the recession. Medicare's finances present immediate challenges, with the trust fund for that program likely to...

In my column for this week, available here , I discuss a phenomenon known as the "holier-than-thou effect," (which I will call the "HTTE") in which individuals systematically overestimate the odds that they will do the right thing when faced with a moral choice. By contrast, people seem far more accurate at assessing others' moral fortitude (with predictions that turn out to be on the money when applied to the predictors as well). My column takes up the question of how an appreciation for the HTTE might move our criminal justice system away from harsh retribution and toward a more compassionate and rehabilitation-oriented approach to anti-social conduct. In this post, I want to explore a different aspect of the HTTE -- its ability to make us resistant to the results of empirical research. Ironically, in other words, the very trait on display in the HTTE studies makes it extremely difficult or impossible for us to realize that we too might be guilty of the HTT...

The deportation to Germany of 89-year-old John Demjanjuk may be an occasion to think about the so-called "death-row phenomenon." No, Demjanjuk does not face execution in Germany, which has no death penalty. However, one aspect of his case does raise an issue that has also arisen in the death penalty context. At the end, Demjanjuk's lawyers argued that he is too old, sick and frail to be deported, an argument rejected by courts in both the U.S. and Germany. But only just barely. One could well imagine that had matters gone only slightly differently, Demjanjuk could have easily slipped into senile dementia or some other condition that would have precluded deportation and/or trial. Or he could have died before the process ran its course. Yet clearly Demjanjuk himself bears substantial responsibility for his age, illness, and frailty. The Justice Dept initiated proceedings to strip Demjanjuk of his U.S. citizenship over 30 years ago, and it has been sixteen years ...

Yesterday, I attended the commencement ceremony at the College of Wooster in Ohio. My nephew, Ross Buchanan, graduated magna cum laude with a degree in history. Other than affording me the opportunity to play the role of proud uncle, being on the Wooster campus for only the second time in my life brought to mind a fascinating story that my mother (Wooster '47) told me many years ago. The story, oddly enough, has some relevance to current issues of fiscal policy. Or maybe not. At the beginning of the 1946-47 academic year, the women of Wooster's Senior class were called to an assembly in the college chapel. The chairman of the Sociology Department addressed the assembled soon-to-be graduates, and he announced that he had been studying world population statistics in the immediate aftermath of the massive carnage of World War II. His conclusion: So many men and women had died in the war that the human race was in danger of dying out. (Note: Upon hearing this for the first time, ...