Dorf on Law

Earlier this month, NBC and its affiliates marked the one-year anniversary of the untimely death of their former colleague Tim Russert, the long-time host of "Meet the Press." It seemed a bit odd even to mention such an anniversary, but I suppose that one of the perks of being in the media is that you can celebrate your friends whenever you like. When Keith Olbermann devoted an entire segment of his show to another round of over-the-top eulogies for Russert, however, this was too much. It reminded me of an extremely harsh -- but completely accurate -- take-down of Russert by Lewis Lapham in Harper's (available here ) that was mostly devoted to describing the almost comic public displays of grief over Russert's passing last summer by the national media and political establishments. The problem is not in grieving the death of a fellow human being, of course, but in the completely baseless claims made by Russert's eulogists that he was a steely media conscience wh...

The Supreme Court decided all but one of the cases on its docket before adjourning for the Term. The case held over for reargument is Citizens United v. FEC . That case involves the application of campaign finance rules to a movie that was highly critical of Hillary Clinton. I discussed this Term's oral argument here . In its order setting the case for reargument, the Court has added the following question presented: "For the disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce , and a part of McConnell v. FEC , which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002?" McConnell v. FEC was more or less gutted two Terms ago by the Court's subsequent decision in Wisconsin Right to Life v. FEC , holding that the key provision upheld on its face in McConnell was invalid as applied. The more interesting issue here is whether the Court will overrule Austin , which upheld ...

The Court ruled 5-4 that the New Haven Fire Dep't violated Title VII by throwing out the test. The Court created a safe haven against Title VII disparate impact claims to avoid the damned-if-you-do-damned-if-you-don't problem. I'll post at length on the case later in the week to accompany the FindLaw column I'll now set about writing. The opinion is available here . Posted by Mike Dorf

Employment, we know, is a lagging indicator, so that even if economic recovery begins in earnest later this year, labor force participation (itself a more meaningful number than unemployment) will likely remain low for considerably longer. Support for gay rights by politicians, it turns out, is also a lagging indicator, as noted in this NY Times story on how politicians appear behind the culture with respect to acceptance of homosexuality. (Interestingly, for many years after progressives routinely used the terms gay and lesbian, the Times itself continued to insist on the clinical "homosexuals." Are newspapers also a lagging indicator? But I digress.) Although this is not the point of the Times article, I would suggest that it holds a broader lesson about the value of courts. A conventional critique of judicial recognition for rights that are the subject of political contestation points to the greater popular legitimacy of elected bodies to resolve such matters. The standard...

Breaking News: The notorious Waxman-Markey bill, H.R. 2998, just passed the House. A good rundown of this monster is here at thinkcarbon . Now it is on to the Senate to see if this too-weak-to-succeed beast of a federal law will make to it the President’s pen. Here are some thoughts as we all consider the multitude of relevant factors and sources of uncertainty bearing on “environmental legislation” of this kind: federal legislation that aims to attack truly massive problems whose time horizons stretch literally decades and centuries into the future. First, it is certainly worth noting that anything of this kind made its way through the House’s gauntlet of eight (8!) committees with primary jurisdiction. My hat is off to the management team that pulled this through the House of Representatives at all. Second, the true test lies ahead, unfortunately. The Senate has yet to pass its own version. A Senate version will then move into a conference of some kind for reconciliation with...

An article in yesterday's New York Times, " California May Be Forced to Issue I.O.U.'s ," reports that the government of the state of California might -- for only the second time since the Great Depression -- give its creditors "registered warrants" in lieu of actual payment in cash, check, or electronic transfer. What is a registered warrant, you ask? It's either money or not money, a contract or not a contract, and meaningful or meaningless. Allow me to be a bit more specific. The basic idea is that these warrants are a way for California to "pay" their bills when due by promising to pay their bills later. Why issue an I.O.U. to someone who is already presumably holding a valid legal claim against you? Good question, one that goes to the very core of the "money from thin air" question that I have discussed in a series of posts this Spring and Summer ( here , here , here , and here ). But first, a bit more about the registered ...

My FindLaw column for this week (available here ) discusses a recent decision from the New York Court of Appeals (New York's highest court), holding that police must have a warrant, supported by probable cause, before attaching a GPS device to a suspect's car and thereby remotely monitoring the suspect's travels. The state court's ruling rests entirely on New York State constitutional law -- its analogue to the Fourth Amendment right against unreasonable searches and seizures. In my column, I discuss the implications of avoiding the federal constitutional question while simultaneously distinguishing the facts of People v. Weaver (involving a GPS device) from the facts of the most factually similar federal precedent, United States v. Knotts (involving a primitive "beeper" tracking device). In this post, I want to focus on a different question. If -- as the dissenters in Weaver argue -- the GPS device is really no different from police watching us from the s...

On the surface, Monday's decision in Northwest Austin Municip. Util. Dist. No. 1 v. Holder did not decide much: Holding that § 5 of the Voting Rights Act permits a utility district that does not register its own voters to "bail out" of section § 5 (if it qualifies for bailout), the Court declined to reach the question whether § 5 remains constitutional these many years since its enactment. Yet, as some commentators have already noted (e.g., Tom Goldstein here ), it's hard to read the majority opinion of CJ Roberts as anything other than a warning to Congress that, if it doesn't change § 5, the Court will strike it down. Here I want to ask how one might go about reconciling the very strong suggestion of the majority that a statute could be constitutionally valid in 1966 (as the Supreme Court said of the VRA § 5 in South Carolina v. Katzenbach ), but be unconstitutional in 2009, without any substantial change in the text of either the statute or the Constitution. T...

Last Thursday, in " Money Out of Thin Air " and in a related column on FindLaw, I tried to debunk some of the recent hand-wringing about how the Federal Reserve (the Fed) has supposedly put us on a path toward hyper-inflation. The complaint that we are now creating money out of thin air is ridiculous, simply because that is how money is always created. If, on the other hand, the concern is that the Fed is creating too much money, then the problem with that argument is that the chain of causes and effects that is supposed to connect the Fed's current actions with inflation simply does not hold up to empirical testing (either in terms of how much money the Fed is actually creating or how such money creation would lead inexorably to increasing rates of inflation). In this past Sunday's NYT Business section, the economist (and former Fed vice chair) Alan Blinder offered his assessment of the situation, and his conclusions were essentially the same as mine. (He does n...

At the end of last week, Judge Sotomayor quit the Belizean Grove, an organization of professional women that served to provide networking and mentoring opportunities of the sort that old boys' networks have long provided for men. (Mission statement here .) The judge had initially defended her membership in BG on the ground that it wasn't for women exclusively; no man had ever applied. (News story here .) The organization's stated goals seem inconsistent with this characterization, but not entirely so. By way of comparison, most student identity groups at law schools (e.g., Black Law Students Association, Asian Pacific American Law Students Association, etc.) are open to members who are not part of the identity group, even though they draw few such people, given their missions. Still, the notion that BG just happened to be all-female was a tough sell, and so it wasn't surprising to see Judge Sotomayor move off of that argument and simply resign. In her letter ann...

On Wednesday, the U.S. Court of Appeals for the 2d Circuit issued an order denying rehearing en banc in United States v. Fell . Fell was convicted and sentenced to death for murder. He actually killed three people (including his own mother) but two of the murders occurred in Vermont, and were thus purely state law matters. The third murder involved the transportation of his victim across state lines (from Vermont to New York), which made Fell eligible for federal prosecution and the federal death penalty. A 3-judge panel affirmed his conviction last year. Absent intervention by the Supreme Court, Wednesday's ruling likely clears the way for Fell's execution--the first for a federal death penalty in the 2d Circuit in decades. Judge Calabresi wrote a dissent from the denial of en banc reconsideration, in which he argued (among other things) that federalism issues arising out of the fact that Vermont---where the trial occurred---has no state death penalty, warranted en banc r...

In a guest column on FindLaw appearing later today, I take on the questions of whether the Fed is printing money "out of thin air" and, if so, whether that is bad. (Answers: (1) Yes, because that is how money is always created. (2) No.) In that column, I pick up on an argument that I mentioned in passing in a Dorf on Law post back in April: Doesn't the Fed cause inflation when it increases the money supply? In my FindLaw column, I set aside the intervening steps of the argument and simply point out that reality has been very unkind to the argument that inflation and money creation are directly related. In this post, I'll discuss those intervening steps to show that the Fed's current policy is both sensible and reversible. Most people who took an undergraduate economics course will probably remember the equation MV=PQ. Like most of what we learn in college, however, the meaning of that equation has probably been lost in the mists of time. Known as the Quan...

In my latest FindLaw column , I pile on the Obama Justice Department for its wretched brief in Smelt v. United States , a challenge to the Defense of Marriage Act (DOMA). In the column I question the Administration's claim that in taking the oath of office, the President commits himself to mount a vigorous defense of all duly enacted laws. I argue further that even if there is a duty to defend DOMA, there is freedom to decide how to defend it. Here I want to further explore the scope of the President's duty to defend acts of Congress against constitutional challenge. Suppose that Congress passes a bill that the President believes is unconstitutional. The President can--and we might well say he must--veto the bill. But suppose that Congress overrides the veto, or that the bill was signed by one of the President's predecessors, or even that the President himself signed a piece of omnibus legislation believing that one of its provisions was constitutionally invalid. (Pre...

Having recently attended the annual conference of the Law & Society Association, I have been thinking about the different ways that scholars are treated when presenting work to their academic colleagues. Many academic fields outside of law have developed cultures in which scholarly presentations are virtually acts of sado-masochism, with the audience gleefully savaging the authors and disparaging their work as unworthy or even embarrassing. One example of this approach was when a visiting scholar asked a host, in preparation for his presentation to the host's colleagues, whether the local custom was to sit or stand while speaking. The host replied: "If I were delivering this paper, I'd hide under the desk." This culture of destructive criticism was very much the norm in most economics venues when I was still attending conferences in that field. I have been told that such an approach is common in other social science fields as well, although I have not verified t...

The farce/tragedy unfolding in Iran raises a broader question: Why do non-democratic regimes bother with sham elections? In Iran, this is arguably a double sham: First, Ahmadinejad may well have stolen this election, i.e., the vote totals showing him winning in a landslide may be wholly fictitious. Second, no matter who won, real power in Iran still resides with the religious establishment, which decided who could run for president and still makes the major decisions. Iran is nonetheless an interesting case in part because SOMETHING was at stake in elections that could have been fairly conducted and tabulated. But what about obvious cases, such as elections in the old Soviet Union, in which only one candidate appeared on the ballot, and in which the number of people reported to have voted was obviously just made up? North Korea recently held parliamentary elections in which--surprise surprise--Kim Jong Il won the support of 100% of the voters based on 100% turnout in his district. ...

In my post on Tuesday, I pointed to reasons why the parade of horribles set forth in the dissent of C.J. Roberts in the Caperton case is unlikely to come to pass. But at least the Chief Justice was engaged with the likely impact of the decision. He thought that the harm from a possible flood of new meritless Caperton claims seeking recusal would outweigh the benefits of a few additional recusals. Justice Scalia wrote an additional brief dissent in which he agreed with that prediction but seemed more concerned with the legitimacy of the majority's action. Here's the core of his analysis on the legitimacy point: Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed—which is why some wrongs and imperfections have been called nonjusticiable. The contrast bet...

In late 2006, when I was still living in New York City, I posted on this blog " New York -- Worst State Government Ever? " in which I argued that New York State's government was in a meaningful sense not a democracy, because it is run by "three men in a room" -- the governor, the House leader, and the Senate leader -- only one of whom had any real chance of being dislodged from his office by an election. Moreover, unlike the federal government and most other state governments, the government in New York vests nearly complete power over the legislative process in the leaders of the two houses, making it virtually impossible for any other legislator to influence political decisions. As I prepare to move to New York state for my sabbatical year, I now find that New York has figured out a way to make matters worse. The Republicans' long-time stranglehold on the state Senate was finally broken in 2008, changing the party of one of the three men in the room. Th...

Today on FindLaw, I have a column discussing the Supreme Court case of Kansas v. Ventris . In this case, the Court held that even when the police obtain a defendant's self-incriminating statement by violating the Sixth Amendment Massiah right to counsel, the statement is nonetheless admissible for the limited purpose of impeaching the defendant's credibility at trial. The column explains what the Massiah right to counsel is and how the Court reaches its conclusion that violations need not necessarily result in suppression. One feature of the decision revolves around the judgment that Massiah violations occur during the suspect's interrogation rather than during the trial, when the resulting evidence is offered. Timing questions like this are not unique to Massiah violations but permeate the law more generally. In the criminal area, for example, some crimes happen more or less all at once (a gunman shoots a victim, and the victim dies immediately), while others take...

It is no secret that many law professors daydream about what a terrific job they would do if named to the Supreme Court. Who knew that, conversely, the Chief Justice enjoys playing law professor? In his dissent in Caperton v. A.T. Massey Coal Co. on Monday, C.J. Roberts posed no fewer than 40 hypothetical questions that, he argued, the majority opinion left unresolved and thus would, he worried, become the subject of protracted litigation. Many of these questions would be excellent fodder for extended classroom discussion or exams. Whether they effectively make the point that the Chief Justice (joined by Justices Scalia, Thomas and Alito) was aiming at is another question entirely. The majority opinion by Justice Kennedy finds a due process violation where a West Virginia Supreme Court justice refused to recuse himself in a case in which one party, who had $50 million at stake, had spent more money (over $3 million) successfully trying to elect that very justice than the sum tota...