Dorf on Law

By Mike Dorf Yesterday I gave the Keynote Address at the annual luncheon of the Boston Bar Ass'n .  My remarks were too long to reproduce fully in a blog entry, but I'll nonetheless try to summarize the high points.  The title of my speech was "The Cross-Ideological Consensus on Freedom of Speech."  Here's the condensed version. Consider three Free Speech Cases the Supreme Court decided in the term that ended this past June:   1) In Holder v. Humanitarian Law Project  the Court split on ideological lines (except for Stevens joining the conservatives) to uphold the application of the "material aid" law to people who wanted to assist the non-violent wings of listed terrorist organizations by training them in peaceful conflict resolution. 2) In  Citizens United v. FEC the Court split 5-4 on ideological grounds to invalidate the ban on corporate independent expenditures for "campaign speech" during the statutorily defined election period. 3)

By Mike Dorf As I have previously explained ( here and here ), under the most straightforward reading of existing Commerce Clause precedents, the individual mandate in the health-care reform law is valid.  To my mind, the fact that Congress has not previously directly required anyone to participate in a market transaction is simply beside the point, given the clear economic impact of failing to purchase health insurance.  And that's to say nothing of the law's sustainability as an exercise of the taxing power. Nonetheless, I have come to think that just as in the run-up to Bush v. Gore , I am underestimating the framing power of politics.  Then, I thought that given the traditional deference shown to state courts on matters of state law, the SCOTUS wouldn't take the case.  I didn't reckon with the possibility that ideological and partisan druthers would frame the issue for conservative Justices quite differently than for liberal Justices.  (Note first that I'm

By Mike Dorf Last week I was a panelist on an ABA-sponsored "webinar" discussing last Term's "crush video" case, U.S. v. Stevens , and its aftermath.  My assigned task during the affirmative presentations was to describe the Supreme Court's First Amendment holding in the case, but during the Q&A, I raised the issue that has concerned me about the Stevens case since the Court first granted cert: Whether the law banning depictions of deviant animal cruelty was counter-productive to the wellbeing of non-human animals because it permits people who enjoy the fruits of animal suffering and death by eating and wearing them to feel as though they are better than people who derive sexual or other pleasure from observing photos and videos of such suffering and death.  (I have blogged about this issue before, and Sherry Colb wrote a FindLaw column on the topic.)  We had a lively and respectful exchange on the efficacy of the law at issue in Stevens and about 

-- Posted by Neil H. Buchanan (from London) Professor Dorf apparently viewed my departure from the country as an opportunity to turn his attention to economics, posting some very useful thoughts last Thursday about the new national obsession with government spending. I have very mixed feelings about how knowledgeable Mike -- a con law scholar -- is about Keynesianism, given how little con law I know. (My reference to Griswold last week hardly counts.) Need I ever return to the U.S.? Maybe. In the extremely good discussion of Mike's post on the comments board, a question arose about the value of wasteful (and even destructive) government spending. Even someone with a rather sophisticated understanding of Keynesian policy recommendations during a recession could understandably -- though incorrectly -- conclude that Keynes was indifferent to the content of the spending that a government might undertake to bring the economy back to full employment. Indeed, the scorn among some

By Mike Dorf On Wednesday, I was the commentator on a Federalist Society-sponsored presentation by libertarian lawyer  Clark Neily at Cornell Law School.  Mr. Neily argued for more robust judicial scrutiny of all laws that infringe liberty, regardless of whether they infringe fundamental rights.  I expressed skepticism about the possibility of cabining this approach, given the experience of the Lochner era.  All in all, it was a fun, respectful exchange. Here I want to comment on a point Mr. Neily made in passing.  Although his core argument focused on rights, he also expressed the view that the Supreme Court's acquiescence in the growth of the federal government called into question the notion of a government of enumerated powers.  The same argument was made by Thomas Jefferson in opposing the Bank of the United States during the Administration of George Washington.   Jefferson lost internally.  Once in office, the Jeffersonians permitted the Bank's charter to expire, w

By Mike Dorf On last Thursday's Wall Street Journal op-ed page, Daniel Henninger penned a piece titled "It's the Spending Stupid," in which he touted that slogan as a sign of the times.  And sure enough, that very day I saw two bumper stickers with that slogan on them.  According to Henninger, tea partiers and Americans more broadly have been concerned for a long time about " the federal-spending balloon," with the concern boiling into rage quite recently.  I think Henninger is probably right--at least superficially--about most of the tea partiers but quite wrong about the broader point. Here's the heart of Henninger's case: The most important and startling number in American politics today is Congress's approval rating: 23%. This is a no-confidence vote. The second branch of government is losing the country. Surely it's about the spending. What else? That Congress hasn't spent enough? In a word: Yes.  When it mattered most, Congr

By Mike Dorf In my latest FindLaw column I consider the constitutionality of a bill sponsored by Sen. Arlen Specter that would require the Supreme Court to permit television cameras in the court except in those rare instances in which doing so would violate the due process rights of a party.  As I explain in the column, although the bill raises some serious issues of separation of powers, those issues are probably best resolved in favor of the law's validity.  Nonetheless, on grounds of inter-branch comity, I conclude that Congress should not enact the law.  Here I want to address the question of what procedure the Court ought to use to resolve this and related questions of courtroom procedure and etiquette. As I say in the column, on the merits I think this is a relatively easy question: The Court should open itself to tv camera coverage.  The concern that the dynamic of oral argument would change seems to me overblown and, in any event, outweighed by the public interest.  Au

-- Posted by Neil H. Buchanan Early in August, I was stopped in Ithaca for a traffic violation. The officer said that I had failed to stop at a stop sign. I told him that I did stop, and he tried a number of tactics designed to get me to admit that I did not. When none of those ploys succeeded, the clearly-frustrated officer gave me the ticket anyway; but he did tell me that I could contest the ticket in court. Based on Professor Dorf's recent experience with a nearby town's traffic court, as well as word of mouth from other friends and colleagues who live in other New York towns, I had reason to believe that there is a semi-formal plea bargaining system at work in most of the state's traffic courts; so I thought I would go through the process to see what would happen. I also thought that it would be interesting just to see it all through to the end, even if there was no offer-in-compromise forthcoming. (Being on sabbatical has its advantages.) There are actual

By Bob Hockett I wonder whether, like Neil (see last Friday's great post) and like me, you who are reading this post have noticed the frequency with which a new word appears to be finding its way into the public statements of Republicans and their wealthy clients these days.  The word is 'uncertainty.' Wednesday morning last week I heard the representative of a trade group, who is lobbying for the repeal of certain regulatory paperwork requirements to which some businesses are subject, employ the 'u' word in justifying the sought repeal.  Businesses, he said, were faced with 'uncertainty' insofar as they had to fill out such forms, which is unfortunate indeed during slump times when firms are still hesitant about new investment outlays and hiring, and when banks are in any case hoarding. The weekend immediately preceding that Wednesday, I heard House Minority Leader Boehner employ the same word in attempting to justify new lower tax rates for milliona

-- Posted by Neil H. Buchanan The imminent expiration of the 2001 tax cuts has continued to dominate the political debate this week. In a post on this blog on Tuesday, Professor Dorf nicely described the political dynamics of the debate; so when I sat down to write my FindLaw column for the week (published yesterday here ), I thought I would discuss the economic arguments in favor of the Republicans' desire to extend the tax breaks for people with incomes over $250,000 per year. (I had also discussed the extension of the Bush tax cuts earlier this month in a radio interview, which is available here .) As some people have finally started to point out, extending the cuts for the lower 98% also helps the highest 2%, because the extension of the tax cuts will apply to the first $250,000 for everyone, even the rich. Therefore, the real argument is about extending the considerable tax advantages in the 2001 bill that benefit only the richest taxpayers. Perhaps unsurprisingly, t

By Bob Hockett (N.B. This post is cross-posted on ReligiousLeftLaw.com ) As someone whose law school was recently compared to this artist by the Wall Street Journal --  http://blogs.wsj.com/law/2010/02/03/the-cornell-law-mystery-continues-or-why-cls-is-like-lady-gaga/ -- I suppose I am under something akin to a fiduciary duty to learn more about Lady What's-Her-Name. But alas, I doubt I could pick her out of a lineup that included herself, Brittney Spears, Madonna, or even Debbie Harry in some of her past guises. As it happens, I often am plagued by this problem, and in a much more general way, where celebrity is concerned. In the past, for example, I have wondered 'just what's the difference between Rob Lowe, Matthew Broderick, and Tom Cruise, anyway' or even among Lee Iacocca, Ed McMahon, and Helmut Kohl for that matter. Incessantly assaulted by their vaguely cross-reminiscent images as I've been, I have done what I suppose any creature with limited RAM

By Sherry F. Colb In my FindLaw column for this week, I discuss the D.C. Circuit case of United States v. Maynard , in which the court held that police must adhere to Fourth Amendment "reasonable search" requirements when using a GPS device to monitor the location of a target's vehicle 24/7 for a month.  The column considers the viability of this holding, part of a circuit split, once the Supreme Court takes the question whether GPS monitoring qualifies as a "search" falling within the protection of the Fourth Amendment.  The D.C. Circuit's theory is that unlike people on the street (who can see your car out in public), no individual in public will -- in the absence of GPS technology -- be in a position to observe all of your comings and goings in your car.  Such observation enables an understanding of your routines, and departures from those routines, that conveys far more information about you than the discrete snippets available for public viewing when