Dorf on Law

By Mike Dorf Over the course of the summer I may take an occasional day off from blogging.  Normally when I do so, I'll just go a day without posting but I thought I'd post a warning to that effect, because the email and reader feed has been a bit buggy lately.  I think those kinks have been worked out.  If in the coming months a weekday passes when you don't get an update from DoL, just assume I'm being lazy (or, uhm, working on "other projects"). Meanwhile, for Memorial Day, I'll simply thank past and present members of the armed forces for their service and sacrifice, and express a hope for their safe return.

-- Posted by Neil H. Buchanan “Right now, jobs matter more than deficits. And even if the deficit is your top concern, imagine what will happen to it if hundreds of thousands more Americans lose their jobs.” A strong, succinct defense of deficit spending from an Obama economic advisor, or a leader in Congress, or the President himself? No. According to this New York Times news article , the speaker was Gerald W. McEntee, president of the American Federation of State, County and Municipal Employees. The most direct, unadulterated, and honest defender of deficit spending during the weakest economy in over 70 years is a union head, and the head of the public employees' union, to boot. Democrats have been pandering to anti-union sentiment (even while expecting unions' continued support -- and getting it) even longer than they have been pandering to deficit hysteria. It is hardly a surprise that Mr. McEntee's defense was not front-page news. The news article itself di...

Posted by Sherry Colb   In my FindLaw column this week, I discuss the case of Graham v. Florida , in which the Supreme Court held that sentencing juvenile non-homicide offenders to life imprisonment without the possibility of parole ("LWOP") violates the Eighth Amendment prohibition against cruel and unusual punishments, by virtue of gross disproportionality between crime and punishment.  In the column, I explore the possibilities that may open up after this ruling, in which the Court took seriously the extreme deprivation entailed in imprisoning someone for the rest of his life.  I propose, among other things, that some of the cases addressing disproportionality in the capital context might now become usable precedent in challenging prison sentences more generally. In this post, I want to raise the possibility that the persistence of the death penalty in the U.S. may account for the Court's failure, up until this point, to take seriously the grave deprivation that a...

By Mike Dorf As I noted in my FindLaw column last week , the Supreme Court's recent decision in U.S. v. Comstock   strengthens the already very strong case for upholding the individual mandate in the health insurance reform law as valid Commerce Clause legislation.  I wrote in the column that nevertheless, " it is possible that five Justices could vote to invalidate the individual mandate to purchase health insurance. In my view, doing so would be very difficult to square with the rulings in Raich and  Comstock , but predicting how the Supreme Court will rule on any issue is an inexact science at best."  What I had in mind was the possibility that the Court could disregard or give an idiosyncratic interpretation to its precedents, in the fashion of Bush v. Gore.   I did not mean to suggest that this is a close case on which reasonable minds could differ about how to faithfully apply the precedents. What, then, explains the fact that Republican attorneys ge...

By Mike Dorf Yesterday's Supreme Court decision in Lewis v. Chicago   marked a good day for the Court.  In a unanimous opinion authored by Justice Scalia, the Court held that African-American applicants to become Chicago firefighters who earned scores in the "qualified" range but not in the "well qualified" range could bring a disparate impact lawsuit if it was timely relative to when the City applied the categories, even though untimely relative to when the City first  made the classifications .  That's perfectly sensible.  Under the relevant statute and regs, a plaintiff has 300 days to file from "after the alleged unlawful employment practice occurred."  Each time the City used the tainted list--the one drawing only from the "well qualified" pool--it produced a new  disparate impact, i.e., a new "unlawful employment" decision. Give all the Justices high marks for a sound procedural holding that puts aside whatever ideolog...

With a sizable chunk of the American public under the belief that a center-left President pursuing what are, by international standards, center-right policies, counts as a socialist, it is appropriate to ask what, exactly, is the alternative that appeals to them, this thing called "libertarianism."   I would borrow a phrase from the 19th century German social democrat August Bebel.  "Anti-semitism," he famously said, "is the socialism of fools."  To my mind, libertarianism is the liberalism of naifs. As Neil observed on Friday , the spotlight that comes with being a major-party nominee for Senate may turn Rand Paul's principled opposition to basic civil rights into an opportunity to jettison a principle or two.  But Paul is, of course, mostly a vehicle for the tea partiers rather than a phenomenon in and of himself.  Thus, the more apt question is why now.  We can grant that the public are angry, and understandably so, but at a time when our most sev...

By Mike Dorf Herewith a few reactions to today's  D.C. Circuit's ruling in Al Maqaleh v. Gates  that the constitutional right of alien enemy combatants to file a federal habeas petition--found by the Supreme Court in Boumediene v. Bush to cover detainees at Gitmo--does not extend to detainees at Bagram Air Base in Afghanistan: I.  It's now very hard to characterize detention issues (as opposed to treatment issues) as simply a mess created by the Bush Administration.  As the DC Circuit opinion noted, the Obama Administration was given the opportunity to take a different view, but stuck with the Bush Administration's position that Boumediene does not cover Bagram.  Neal Katyal--who successfully represented Gitmo detainees in the Hamdan case--argued for the government  in Al Maqaleh , and the panel that ruled for the government included two liberal judges: Harry Edwards and David Tatel.  (The third member of the panel, and the author of the unanimous...

-- Posted by Neil H. Buchanan In my most recent FindLaw column , I discuss the claims that laws designed to change the way people eat (mandating less salt, lower fat, clearer labeling, etc.) are a violation of freedom of choice. I argue that they are not, essentially by extending the argument that there is no meaningful "no government" baseline that allows people to say, "But for the government, this is what would happen." Even more than in other areas of policy, such as tax law , it is simply bizarre to try to imagine a "state of nature" in which the government plays no role in shaping our food choices. Unsurprisingly, however, food lobbyists have insisted on describing such laws as being an overreach by the "food police." The column is available here , and I certainly do hope that people will read it. Normally, I would devote this entire post to discussing an issue related to the column. Here, however, I will diverge from the usual patte...

By Mike Dorf In my latest FindLaw column , I explain why Monday's Supreme Court decision in United States v. Comstock   portends upholding of the individual mandate, if and when a challenge to the   federal health care reform legislation reaches the Supreme Court.   Comstock upholds the power of Congress to authorize civil commitment of federal prisoners found to be sexually dangerous (e.g., child molesters), even after their sentences for federal crimes have run.  I explain that the reasoning of Comstock appears to make the individual mandate an even easier case for sustaining federal power.  Nonetheless, I warn that it's not always possible to predict Supreme Court outcomes based on doctrinal analysis of prior cases.  (Think Bush v. Gore .)  Here I want to explore the possibility of a different--more political--explanation for the decision in Comstock  and other federalism cases: At least some Justices abandon their views about the scope of fe...

By Mike Dorf I realize that the complaint of some Republicans that Elena Kagan lacks judicial experience is opportunistic.  Nonetheless, points made opportunistically or otherwise insincerely can be correct.  Thus, it's worth asking whether judicial experience is essential--or even helpful--for a Supreme Court Justice.  My answer, unsurprisingly: Not essential; possibly helpful. To get a handle on the issue--and to avoid confusing the matter with ideological considerations--we might usefully compare and contrast Kagan with the three Democratic appointees currently on the Court: Justices Ginsburg, Breyer, and Sotomayor.  All three served for substantial periods as federal appeals court judges before being named to the Court, Ginsburg on the D.C. Circuit, Breyer on the First Circuit, and Sotomayor on the Second Circuit.  Before that, Sotomayor was a federal district judge, while the other two were law professors, Ginsburg at Rutgers then Columbia, Breyer at Ha...

By Mike Dorf Back in January, I posted the con law exam I gave to my 1Ls in the fall ( here and here ).  If you enjoyed those, have I got a treat for you!  Below is the exam I gave to my upperclass students in Federal Courts last week.  I won't be posting a model answer, nor will I be grading any proposals in the comments.  So have fun with this. Question 1 (50 percent)             You are an aide to Senate Majority Leader Harry Reid.  He has asked you to review the following bill, which he would like to introduce in Congress. Only Natural Persons Have A Right Of Free Speech Act (“ONPHAROFSA”) 1.         No state, federal or other court in the United States shall have jurisdiction in any case to grant relief of any sort on the ground that any provision of state or federal law infringes the freedom of speech of a corporation or of a person or entity that is funded...

By Mike Dorf Writing in Sunday’s NY Times, both Frank Rich and Maureen Dowd called attention to the fact that the social conservative line of attack against Elena Kagan is increasingly looking like a thinly veiled campaign of innuendo to the effect that Kagan is a lesbian.  As Dowd’s column (which takes the form of a parody of a recent email blast from Joe Biden) suggests, the right is being abetted in this endeavor by the adamant denials of the Administration and others.  (Memo to file: When seeking to defuse a political issue even remotely involving sex, do not enlist Eliot Spitzer  as a character witness; if he offers to help, say he can be most useful talking about financial matters.) To be clear, for broad public consumption, social conservatives have not been openly saying either that 1) Kagan is gay; or that if so, 2) that disqualifies her from serving on the Court.  Instead, the focus has nominally been on Kagan's constitutional views, especiall...

-- Posted by Neil H. Buchanan An article in Wednesday's New York Times describes a provision in the Senate's financial overhaul bill that would apply new consumer protection regulations to auto dealers. Naturally, the dealers are not pleased. Just as naturally, given my public writings about the underhanded sales methods of car dealers ( here , here , and here ), I am quite encouraged. For the first time, it looks very likely that real consumer protections will be enacted to bring some sanity to the chaotic and high-stakes world of car sales. The article describes some of the worst tactics that auto dealers use to cheat customers, including one that I had never heard of before: the "yo-yo deal." (I was actually surprised not to have heard of something so basic, because I once shared an apartment with a guy who worked as a new car salesman. His stories of how he was trained to cheat people were hair-raising. Even so, he quickly adopted the rationalization that ...

In the lull between the nomination of and confirmation hearing for a new Supreme Court Justice, reporters need to find an angle. One such angle is how, if confirmed, Elena Kagan will become the fourth (more or less) native New Yorker on the Supreme Court, one from each borough, except for Staten Island: Scalia (Queens); Ginsburg (Brooklyn); Sotomayor (Bronx); and Kagan (Manhattan).  In seeking explanations for this curiosity, one popular story line is that New Yorkers are "tough."  I said just that in a story  for Tuesday's edition of A.M. New York and so said Fordham Law Professor in a similar story in yesterday's N.Y. Times.  Here I want to explore just what such toughness might mean, and cast some doubt on this storyline (including my own contribution to it). Let's begin with the question: Are New Yorkers tough?  Well, that depends in part on what we mean by toughness.  I think the core idea is that they don't back down from a confrontation.  Thi...

My FindLaw column this week discusses a petition that the NMPF (National Milk Producers Federation) filed with the FDA, asking the latter to make producers of nondairy food stop using words like "milk," "ice-cream," "cheese," "yogurt," and "sour cream" to label their products.  As I explain, the FDA has issued regulations that affirm the NMPF's approach to the "dairy" words, defining milk as lacteal secretions from a cow.  My column assesses the merits of the claim that it is nondairy producers who are misleading consumers about their products. In this post, I want to use the non-dairy milk debate as a lens through which to consider the more general idea of substitutability.  Specifically, when do people consider it accurate and fair to say that one product, idea, or practice is meaningfully equivalent to another? Milk Milk and dairy products are actually a paradoxical example of the substitutability phenomenon. ...