Dorf on Law

By Mike Dorf Last week, the Washington Post reported on the publication, in a Virginia 4th-grade textbook, of the proposition that thousands of African Americans fought for the South during the Civil War.  No reputable historian believes this to be true, but Southern revisionists set on propounding the view that the "War of Northern Aggression" was not about slavery have made it on the internet.  From there, the claim worked its way into the textbook. To my mind, the most interesting aspect of the story is the defense offered by Joy Masoff--author of the controversial textbook and several others but not a professional historian.  Rather than saying something like, "oops, I thought I had properly sourced everything in the book, but I goofed on that one, my bad," Masoff instead stood her ground.  "As controversial as it is, I stand by what I write," she said. "I am a fairly respected writer."  I just love the self-refuting quality of this st

By Mike Dorf No, not the robocalls of Justice O'Connor's voice.   Apparently , those were sent out without her authorization.  I'm interested in the earlier notorious Supreme Court-related phone call.  Having previously defended Virginia Thomas's political activism as not necessarily inconsistent with her husband's judicial office, I'd like to think that I have the credibility to offer a few observations that are occasioned by her odd phone call to Anita Hill.  The opportunities for humor here are obvious, but other than pointing readers to a very funny piece by Andy Borowitz, I'll play it straight. 1) I'm hardly the first person to notice that the phone call was counterproductive for any aim that Ms. Thomas could have been rationally pursuing.  Most obviously, by leaving a RECORDED message that had a fair chance of making it to--and did in fact make it to--the national media, Ms. Thomas ensured that Americans who had either forgotten or never knew

In my column for this week, I discuss NYC Mayor Michael Bloomberg's recent request from the U.S. Department of Agriculture (USDA) for permission to exclude sugary soft drinks from the category of food and beverages covered by food stamps, for a two-year period.  This would mean that the money people receive in food stamps (a total amount that would not change) could not be spent on drinks that contain more than ten calories per eight ounces (with exceptions for fruit juices, dairy products, and non-dairy milks such as soy milk or rice milk).  The column takes up the issue of whether Bloomberg's request is legitimate, given that the Food Stamp exclusion (1) affects only poorer people who qualify for food stamps, (2) limits people's freedom to make their own consumption choices, and (3) leaves entirely unaddressed the negative impact of other unhealthy products, such as animal-based foods, on consumers' health. In this post, I want to address one potential defense of t

-- Posted by Neil H. Buchanan [CORRECTION: In my post below, I wrote that "I have never worked for the federal government." Professor Dorf reminded me that I was once (from August 2002 - July 2003) a federal judicial clerk. I regret the error.] In my latest FindLaw column, published yesterday , I discuss the attacks on public employees (some attacks being quite literal and deadly, although the thrust of the article is about rhetorical attacks) that have become distressingly common in the past few years. Public-sector workers (those dreaded "bureaucrats") have never been wildly popular, of course; but it seems fairly clear that they are coming in for an extra drubbing during the current economic disaster. It is a pretty ugly tactic, essentially turning middle-class people against other middle-class people by insinuating that government workers are overpaid and under-worked, at the expense of Real Americans. It is no wonder that there actually have been some viol

By Mike Dorf The juxtaposition of political yard signs with skeletons and jack-o-lanterns got me wondering whether there is a "Halloween effect" that arises from the close temporal proximity of said holiday and our general elections.  Herewith a few thoughts: 1) As an essentially pagan holiday, Halloween creates anxiety for the most religious elements of our society, especially evangelical Christians, many of whom view it as a celebration of witchcraft, the occult, and devil-worship.  These are strongly negative associations (at least when Christine O'Donnell isn't on the ballot), and so, I wonder whether the activation of such fears so close to the election mobilizes turnout of a constituency that, over the last couple of political generations, has tended to vote Republican.  I leave to those with better empirical skills the task of figuring out how to test the possibility of a Halloween effect. 2) While I'm speculating about the Halloween effect, I may as

-- Posted by Neil H. Buchanan Early last month, I wrote a post (" Friendly Fire on Social Security ") describing MSNBC talking-head Lawrence O'Donnell's gratuitous and completely inaccurate attacks on Social Security. O'Donnell has since been promoted from being a frequent guest host on Keith Olbermann's show to hosting his own prime-time talk show, "The Last Word." I have been avoiding that show, in part because I have been trying to clear the backlog of unfinished work from my recent globetrotting, but also because it is rather obvious that O'Donnell has nothing new or interesting to say. He is a partisan Democrat (having been a top aide to former Senator Daniel Patrick Moynihan of New York), but he is simply a conduit of conventional wisdom on all things economic, making him very much a "New Democrat." Last night (Thursday, October 21), however, I was taken in by a teaser for O'Donnell's show. Most of the show was dev

By Mike Dorf My post yesterday celebrated Lou Henkin's warmth and character.  Today I want to add a brief comment on a point of contention in the field that Lou did so much to build: international human rights law.  I'll begin by confessing that I am not an expert in international law, but I know enough about the lay of the land for some informed speculation. Lou sometimes said that he treasured what he called "human rights hypocrisy"--a term he used for countries (including the U.S. on more than one occasion but more typically dictatorships) that pay lip service to human rights even as they violate them.  In Lou's view, formal commitment to human rights in the form of accession to multilateral human rights treaties, even by chronic rights abusers, has constraining force. That view has been questioned by various scholars who argue that countries that sign human rights treaties are no more likely to respect human rights than those that don't--and that su

Columbia Law Professor Louis Henkin--accurately described as "the father of human rights law"--passed away last week.  For a flavor of the incredible breadth of Lou's work and influence, I recommend the NY Times obituary  and a moving piece by Clyde Haberman on Lou's funeral.  Anyone who has taught or worked in public international law knows what a towering figure he was.  Here I want to add a brief personal reflection. In the world of social and political activists, one often finds people who care deeply about "the people" but treat actual people badly, who passionately defend "human rights" even as they mistreat the human beings around them.  Lou was nothing like that.  Virtually to a person, everyone who knew him was fiercely loyal to him because they could see his fundamental decency. At the same time, Lou was a force to be reckoned with.  The Times obit recounts how, in WW II, he persuaded three German officers to surrender their 78-man u

By Anil Kalhan One year ago this month, the Obama administration announced ambitious plans to overhaul the immigration detention system, based on a comprehensive review conducted for Immigration and Customs Enforcement (ICE) officials by detention and corrections expert Dora Schriro. How has the administration fared in implementing these reforms? First, some background, drawing from my recent piece in the Columbia Law Review Sidebar. Since the mid-1990s, the number of individuals in immigration detention has skyrocketed, fueled by enforcement policies that subject ever-larger categories of noncitizens to removal charges and custody – most notably individuals alleged to be removable on many criminal grounds, which now include a sweeping array of offenses, both serious and minor. Many of these individuals have been deemed ineligible for the individualized bond hearings to which individuals ordinarily are entitled, and have therefore been categorically detained without regard to whet

By Mike Dorf In my latest FindLaw column , I discuss the cert grant in Bond v. United States , which poses the question whether a private party has standing to complain that a law exceeds congressional power under the 10th Amendment.  Because the answer is "duh, yes," I use the column mostly to explore the underlying merits of Bond , in particular the question of whether the current Supreme Court still views the treaty power as a freestanding source of power for Congress to regulate in subject-matter areas that would otherwise be beyond its competence. Here I want to raise a question about standing doctrine more generally: Is it a Frankenstein's monster?  First, let me define my terms.  The Frankenstein story--like some of the medieval Jewish golem stories on which it is arguably based, as well as the sorcerer's apprentice story, and tales of the genie unleashed from his bottle--contains the following basic theme: A monster is created to do its creator's biddi

-- Posted by Neil H. Buchanan Last Friday, I participated in Lewis & Clark Law School's " 15th Annual Business Law Fall Forum: Taxation and the Environment ." A gathering of law professors and economists (and, in my case, both), the Forum was an extremely productive day of discussion about how environmental damage has been caused by -- yet might be mitigated by -- tax incentives and fiscal policy. I presented some thoughts in the vein of my ongoing work on justice between generations, arguing that environmental mitigation is an especially compelling example of a moral obligation on the part of currently-living people toward unborn generations to come. As compared to overwrought concerns about, say, the Social Security program , it is not even a close call. The Lewis & Clark Law Review will publish a symposium issue in the Spring. Early in the conference, one of the law professors who specializes in pro-environmental tax policies argued that such taxes would be

By Sherry F. Colb In my column for this week, I consider the justice question whether people who knowingly transmit HIV through unprotected sex with unknowing partners ought to be subject to criminal punishment for their behavior.  In the column (spoiler alert!), I conclude that for various reasons, criminalization is not appropriate. In this post, I want to consider the implications of a competing impulse that I have, which leads me to believe (some of the time, at least) that knowing transmission of HIV (or any other serious illness) through unprotected sex is a grievous harm that deserves to be punished. One important reason for opposing criminalization is the view (which I share) that it is more likely to deter people from getting tested than it is to motivate them to share their HIV status with prospective sexual partners.  If that is true, then I might believe that people do , in general, deserve criminal punishment for knowingly transmitting HIV to unknowing victims, and

By Mike Dorf With yesterday's ruling by Judge Phillips striking down "Don't Ask Don't Tell," we appear to have reached a tipping point on judicial willingness to act to protect gay rights.  Together with earlier rulings this year, we now have federal district court rulings invalidating the Defense of Marriage Act, California's Prop 8, and Don't-Ask-Don't-Tell.  Although I agree with all of the rulings as a normative matter, I'm interested here in a causal account.  Both DOMA and Don't-Ask-Don't-Tell have been on the books since the Clinton Administration, whereas prior to the ruling in Perry v. Schwarzenegger , no federal court had invalidated a state law barring same-sex marriage, ever.  Why the seemingly sudden change?  I would point to two factors. First, and most obviously, norms have been changing.  Federal courts can sometimes get out ahead of public opinion, but given that federal judges come from the same basic pool as the nat

By Mike Dorf The NY Times has an interesting profile of Chris Coons , the Democratic candidate for Senate who got the nomination more or less by default.  The core of the Times story is that Coons has been avoiding direct attacks on Christine O'Donnell, essentially letting the media and his opponent's old videotape do the job for him, while he focuses mostly on his own solid, if boring, substance.  You could have written more or less the same story about Andrew Cuomo's approach to dealing with Carl Paladino (who is also not a witch, or so I'm told). Cuomo, of course, starts out much better known than Coons for a number of reasons: His father was governor; he was a Cabinet Secretary; he ran for governor himself a few years ago; he has been a successful attorney general; and perhaps most importantly, he seems to have avoided most of the scandals in which NY state politics has been embroiled in the last few years.  But the thing is, Coons will almost certainly end up

By Mike Dorf I've been spending a few days in California (it's "fall break" at Cornell) and accordingly thought this a good time to suggest to the good people of the erstwhile Bear Republic (and my home in 1990-91) how they might improve their law.  Accordingly, two suggestions: 1) NOW is the time to repeal prop 13, the 1978 ballot initiative that is widely credited with substantially undermining primary and secondary public education in Califorina.  Prop 13 had two crucial elements: a) a cap of 1% annual property tax; and b) a cap of 2% annual increase in assessed property value (except upon transfer), even when property values rise dramatically. Getting rid of a) might not be feasible, but if ever there was a time to get rid of b), this is it.  The point of b) was to prevent people from being taxed out of their homes by real estate booms around them.  That was a legitimate goal but the actual measure went well beyond the goal, and worse, it created its own

-- Posted by Neil H. Buchanan (back in Ithaca, NY, for a few days) My FindLaw column this week is a written version of some of my comments at Monash University's "Globalisation and Business Challenges in the post-Financial Crisis World" conference in Prato, Italy, last week. The title of my talk was: "How Soon Will the Next Crisis Come, and What Are We Doing Now That Will Hasten It?" My comments in Prato, and my FindLaw column, focused on the second question in that title, i.e., explaining how the U.S. policy response to the 2008-present crisis has been woefully inadequate, thus increasing the likelihood of a repeat performance of the recent near-catastrophe. The argument essentially boils down to three steps: (1) We have chosen not to engage in any structural reforms, especially on a large scale, such as bringing back the strict divide between commercial and investment banking, or enacting "too big to fail" limits to break up large institutions int

By Mike Dorf My latest FindLaw column considers a proposed bill by Sen. Leahy that would permit retired Supreme Court Justices to serve by designation on their old Court in cases in which one or more active Justices are recused.  As I explain in the column, even though Justice Kagan has already recused herself in 24 cases this Term, the proposal--if acted upon swiftly--would not actually make a difference in more than about 3 cases.  Nonetheless, I favor the proposal because it would be nice to see Justices O'Connor, Souter and Stevens returning for encores.  Here I'll add a few thoughts about judicial retirement and retirement more generally. 1) Under current practice, retired Supreme Court Justices can (and occasionally do) sit by designation on the lower federal courts, but for someone who spent a long time on the Supreme Court, it's hard to imagine that doing so is especially fulfilling.  Returning to the Supreme Court has got to be more gratifying.  Given how the

Hey DoL Readers, Do you sometimes wish that you had a better grounding in the basics of constitutional law?  Do my references to "tiers of scrutiny" or the "dormant commerce clause" sometimes leave you baffled?  If so--or even if not--then have I got a deal for you.  Buy my new book (with Trevor Morrison) on Constitutional Law.  Get it here , here , or here .  Info below. Thanks for reading! Mike Dorf Now Available!   Key Features: Provides a sophisticated theoretical framework to constitutional law that is nonetheless accessible to beginners. Covers leading cases and concepts, and includes numerous real-world and hypothetical illustrations. Addresses the constitutional aspects of many controversial topics, including abortion, campaign finance, capital punishment, gun control, affirmative action, the scope of executive power, and same-sex marriage. The Oxford Introductions to U.S. Law: Constitutional Law Michael C. Dorf with Trevor W. Morrison ISBN: