Dorf on Law

By Mike Dorf In my latest FindLaw column , I draw some parallels (and also some distinctions) between the Yankees' contract negotiations with Derek Jeter and the violence on the Korean peninsula.  With the Jeter negotiations stalled , here I'll focus on the latter--obviously more momentous--situation. In the column, I explore a number of explanations for the most recent attack by North Korea against South Korea, including the possibility that it is an effort to blackmail South Korea into once again providing large amounts of food and other aid.  Over the last couple of decades, periodic attacks from North Korea have led to a rush of diplomacy, which in turn led to aid packages for North Korea.  Although North Korea has tested missiles capable of reaching Japan, and shares a border with China, it has mostly restricted its outright attacks to South Korea.  Why? One clear answer is vulnerability.  Seoul is 35 miles from the North Korean border and thus vulner...

By Mike Dorf As reported in the  Sunday NY Times , retired Justice John Paul Stevens has written a review essay in the NY Review of Books in which he explains why, over the course of his time on the Supreme Court, he came to think that the death penalty was unconstitutional.  (The essay is a review of David Garland's new book, Peculiar Institution: America's Death Penalty in an Age of Abolition . )   In a nutshell, when Stevens joined fellow centrists Potter Stewart and Lewis Powell to co-author the lead opinion in Gregg v. Georgia in 1976, he anticipated that the procedural safeguards that opinion required would be followed.  However, over the ensuing decades, as the Court turned more conservative, Gregg was watered down and other claims that had merit were rejected. That, at any rate, is a nutshell of the Times story.  The actual essay says a good deal more, and is well worth reading.  Here I want to focus a bit on what Justice Stevens says and i...

On this Thanksgiving 2010, I just thought I'd thank my readers for your, uhm, readership. Thanks. Mike PS  People often ask me what vegans eat for Thanksgiving.  The answer is mostly the same stuff you eat, minus the turkey corpse, plus some sort of grain-based meat, like this one .

By Sherry Colb In my column for this week, I discuss the case of a heterosexual couple in the U.K. that is planning to sue for the right to enter into a civil partnership instead of a marriage.  The couple's claim is that the U.K. rule -- that only opposite-sex couples may marry and only same-sex couples may become civil partners -- violates its right to equality (as a straight couple).  The column takes up the question of whether such a claim is plausible, given that civil partnerships are quite plainly offered as a consolation prize for gay people rather than a true benefit denied straight people.  I examine the race and sex discrimination contexts for guidance on responding to this question. In this post, I want to highlight two areas (not addressed in the column) in which a member of a privileged group might feel legitimately aggrieved by being compelled to occupy a putatively privileged status:  the man who wants to be a stay-at-home dad, and the man o...

-- Posted by Neil H. Buchanan Last Friday, the local independent movie house held a special showing of " Inside Job ," the documentary film about the causes of the ongoing financial crisis. The viewing was followed by an audience Q&A led by Cornell Law Professor -- and Dorf on Law blogger -- Bob Hockett. Professor Hockett's discussion was extremely helpful to the audience, even though the first two questions were from (1) a person who thinks that we should go back on the Gold Standard, and (2) a guy who thinks that monetary policy is a Ponzi scheme. Defusing that kind of craziness -- which was rather unexpected in a college town -- was no easy task, but the entire session was great. It is a shame that only about a hundred people were able to join in the fun. The film itself was excellent, in almost all respects. It was directed by Charles Ferguson, who also directed 2007's " No End in Sight ," which explored the lies that led the U.S. into war in Ir...

"Radiation ... You hear the most outrageous lies about it. Half-baked, goggle-boxed do-gooders telling everybody it's bad for you. Pernicious nonsense! Everybody could stand a hundred chest X-rays a year. They ought to have 'em too.”  --- Repo Man ------------------------------------------------------------------------------------------------ By Mike Dorf Over the weekend, Tobin Harshaw blogged for the NY Times on the controversy surrounding the TSA's implementation of the full-body x-ray scans at airport security checkpoints.  Among the authorities quoted and cited by Harshaw is yours truly, with a short excerpt from my January FindLaw column on the cancer risk associated with the machines.  Harshaw characterizes me as thinking that "the health concerns are highly exaggerated."  I'm not sure that's how I would have put it, although I did say in the piece that by any measure, the cancer risk is tiny.  For me, the most salient factor is that t...

-- Posted by Neil H. Buchanan The preliminary proposal from Erskine Bowles and Alan Simpson, the co-chairs of the National Commission on Fiscal Responsibility and Reform (the Deficit Commission), continues to dominate discussion among budget wonks and political junkies. In my post last Friday , I discussed the narrative that surrounds the release of any bipartisan plan to reduce the deficit: solemn nodding and hearty congratulations to the authors for their boldness, bravery, and responsibility in taking on such a grave, patriotic duty. This was the reaction not just to the co-chairs' proposal, but also to a proposal released on Wednesday of this week by something called the Debt Reduction Task Force, which is part of another unknown entity called the Bipartisan Policy Center. Upon the release of that proposal, one group of deficit hawks quickly issued a press release saying "hats off" to the Task Force's co-chairs for "starting a more responsible discussion...

By Mike Dorf On Tuesday, Seth Stern--co-author of Justice Brennan: Liberal Champion --gave a presentation sponsored by the Cornell chapter of the American Constitution Society.  It was a lively session, and I came away from it eager to read the book.  After I do, I'll report back. For now, I'll just make an observation inspired by an Adam Liptak article in yesterday's NY Times.  Liptak notes a growing sense of dissatisfaction--both on and off the Court--with some of the opinions of the Roberts Court for their failure to provide clear guidance.  Interestingly, the disagreement over how much of a duty the Court has to provide guidance for future cases does not break down along ideological lines.  Liptak discusses a number of factors that contribute to the lack of guidance, including the perceived need to secure unanimity.  Here, I'll just add a thought about Justice Brennan. Although Justice Brennan favored rules in the First Amendment area, he was mor...

by Mike Dorf On Monday, the NY Times reported  on the growing trend of relatively high-interest loans being extended by major financial players to plaintiffs' lawyers as a means of funding litigation.  The story raises a number of interesting issues. 1) On the plus side, such debt-financed litigation enables lawyers who otherwise could not afford to front the legal costs to poor clients to do so.  It therefore enables the bringing of some meritorious cases that otherwise would not be brought simply because of the prohibitive cost of litigation. 2) On the minus side, the article notes how the combination of high interest rates and lack of up-front disclosure to clients of debt financing  means that clients can end up paying a very substantial portion of any recovery to lenders.  In addition, there are real concerns about client confidentiality.  Investors need to see materials about the case in order to figure out whether it's worth investing...

By Mike Dorf My latest FindLaw column attempts to unpack what's at stake in  AT&T Mobility LLC v. Concepcion , in which the Supreme Court heard oral argument last week.  Perhaps this is a fool's errand.  In her Slate piece on the oral argument, Dahlia Lithwick essentially described the case as impossible to understand, not least because it is inherently boring.  But I say, one web pundit's boredom is another's excitement.  Or something like that. Anyway, I explain in the column that a central issue in the case is whether California has consistently applied its doctrine of contract unconscionability.  That kind of question, I note, has arisen in other contexts.  I focus there on two comparisons. (1) In determining whether there are independent and adequate state law grounds to support a state court judgment, federal courts inquire into whether the state has consistently applied the rule it is applying in the particular case.  For ex...

By Mike Dorf During his recent trip to Asia, President Obama endorsed the idea of adding India to the permanent members of the UN Security Council.  As the world's second-most populous nation and its most populous democracy, India certainly has as much of a claim to permanent membership on the UNSC as, say, France, but of course, the Security Council's permanent membership is not determined by a rational calculation of current worthiness.  Indeed, giving India a permanent seat on the UNSC would itself call into question the legitimacy of the other permanent members. Even after the PRC was substituted for the nationalist government in Taiwan in 1971, the permanent membership could still be rationalized as a historical legacy: The victorious allies in WWII were the logical parties to guarantee the security of the post-war world.  China was one of those victors and given how close in time the Chinese civil war was to the end of WWII, and given the cooperation of national...

-- Posted by Neil H. Buchanan Earlier this week, the co-chairs of President Obama's anti-deficit commission issued a draft proposal . That document is non-binding, but it is garnering quite a bit of attention. I plan to write both my FindLaw column next Thursday and my Dorf on Law post next Friday on the report, critiquing some of its specifics as well as assessing its gestalt . Here, I will focus on the first big lesson that we can learn from the release of the report: Being a co-chair of this commission looks difficult, but it is actually the easiest job in the world. The two co-chairs of the bipartisan commission are Erskine Bowles, former chief of staff in the Clinton White House, and Alan Simpson, former long-serving U.S. senator from Wyoming. The press conference in which they announced their joint recommendations was a major media event. Both chairs sat grimly at a table and discussed their very, very difficult job. Simpson offered up gallows humor about how much every...

By Mike Dorf Federal district courts have recently taken action on gay rights on three fronts: (1)  Perry v. Schwarzenegger  found a right of same-sex couples in California to marry; (2)  Gill v. Office of Personnel Management   and its companion case invalidated the provision of the Defense of Marriage Act (DOMA) that denies federal recognition to same-sex marriages that are legal under state law (there Massachusetts); and (3)  Log Cabin Republicans v. United States   invalidated Don't-Ask-Don't-Tell (DADT).  Each case is currently pending on appeal.  The issue presented in each case will probably make it to the Supreme Court within the next few years.  Does the order in which they arrive matter?  Possibly. Let's begin by considering Perry and Gill.  In at least one respect, the respective pro-gay-rights arguments in the two cases   contradict one another.  An important part of the challenge to DOMA in  Gill...

By Sherry F. Colb In my column for this week, I discuss the case of United States v. Mitchell , which the Third Circuit has set to be argued en banc (before the whole court of appeals).  This case takes up the question whether federal law, which currently requires routine DNA sampling of people arrested for specified offenses (even before they have been tried and convicted) violates the Fourth Amendment right against unreasonable searches and seizures.  In my column, I consider the arguments made by the district judge (who refused to allow DNA sampling), including the copious data available in a person's DNA and the notion that people ought to be treated as "innocent until proven guilty." In this post, I want to ask whether the Supreme Court of the United States ought perhaps to reconsider its overall commitment to the idea that people relinquish privacy when they either discard or voluntarily convey materials (containing highly personal information) to third parties...

By Mike Dorf According to a recent NY Times story , the incoming GOP majority in the House hopes to undermine the health care law by refusing to provide funding for key elements--such as IRS enforcement of the individual mandate.  The plan raises a number of interesting issues. It might be useful to distinguish between two different versions of this tactic.  Under the "rider" approach, Congress passes a spending bill that has, as a rider, a prohibition on the use of funds for certain purposes, such as enforcement of the individual mandate.  House Republicans would be hard-pressed to get such a rider enacted because it would also have to pass the Senate, where Democrats have a majority, and even then, President Obama could veto it.  So, the rider approach could quickly lead to the sort of showdown/shutdown we saw in 1995.  Then, President Clinton was able to get the public to see House Speaker Gingrich and the Republican leadership as holding the budget hosta...

By Mike Dorf By now, most readers will have heard of Oklahoma State Question 755, which, having been approved by ballot initiative, is now part of the state Constitution.  But much of the public discussion has tended to ignore the actual language adopted.  It stipulates that Oklahoma courts when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions.  The courts shall not look to the legal precepts of other nations or cultures.  Specifically, the courts shall not consider international law or Sharia Law.  The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impres...

-- Posted by Neil H. Buchanan In my FindLaw column this week , I argue that the supposed anger among voters about the federal budget deficit and federal spending was an illusion. That is, the anger was real, but shouting about the deficit and "big government" was essentially a primal scream about the weakness of the economy. To put it another way, if the national debt were a trillion dollars higher today (due to an appropriately-large stimulus package), but the unemployment rate had steadily fallen into the 6% range, people would be a lot less angry about a larger level of debt. The bulk of the column expands on my claim that there is no credible economic case to be made that the recent increases in the deficits were bad, or that long-run deficits are bad per se , which means that voters' supposed public-spiritedness -- selflessly agreeing to give up on government-provided goodies, in the face of a clear economic imperative -- is based on nonsense. Even if some people ...