Dorf on Law

By Mike Dorf In District of Columbia v. Heller , Justice Scalia, writing for a majority of the Supreme Court, identified self-defense as "the core lawful purpose" of the arms that the People are entitled to keep and bear in their individual capacities.  The ruling thus vindicated an individual right view of the Second Amendment, but not the individual right for which many gun enthusiasts had long agitated.  They had argued that the right to keep and bear arms may have been incidentally useful for self-defense but that its core purpose was insurrection. Although I am on record as expressing doubt about the historical basis for  any individual right view of the Second Amendment, I would say that there is better historical evidence for the insurrectionist view than for the self-defense view.  Most prominent is Madison's Federalist No. 46 .  In the course of explaining why the People ought not to fear an overreaching federal government, Madison argues that the...

-- Posted by Neil H. Buchanan A friend of mine is enrolled in a certificate program at a top-10 U.S. business school. This friend recently sent me an email, the pertinent part of which reads: The instructor [in the "Investments" course] is a very handsome young man, in his mid- to late-thirties. He has the well-dressed, privileged, but sweet look I was used to on Wall Street in the 80s. The kind of young man so beloved by his fraternity brothers, his trust fund advisors, and his Brooks Brothers tailor that he is secure and happy and isn't even aware he might be a little outside the mainstream of American workers. So anyway--at last week's class, he made some passing comment about how tax cuts for the rich stimulated the economy more than tax cuts for the poor. I perked up because I was pretty sure that was the opposite of what I usually hear, and I wanted to make sure I had heard him right. I raised my hand and said, "But isn't it true that lower-income peopl...

By Mike Dorf During his State of the Union, President Obama proposed shaking up the government's organizational chart.  He said: We live and do business in the Information Age, but the last major reorganization of the government happened in the age of black-and-white TV. There are 12 different agencies that deal with exports. There are at least five different agencies that deal with housing policy.  Then there's my favorite example: The Interior Department is in charge of salmon while they're in fresh water, but the Commerce Department handles them when they're in saltwater. I hear it gets even more complicated once they're smoked. There may well be good arguments for re-rationalizing the organization of federal agencies to spur competitiveness (as suggested  here ).  But the President's examples don't demonstrate that. The administrative state emerged because of the complexity of the modern world.  A Congress of generalists cannot craft intelligent reg...

By Mike Dorf Here is a brief stream-of-consciousness reaction to the State of the Union. 1) Justice Scalia should send chocolates and flowers to CJ Roberts and Justice Kennedy.  By joining the Court's four Democratic appointees in showing up at the SOTU, they prevented an extremely awkward scene of seeming partisanship on the Court.  That story would have resonated strongly with the criticisms that some have leveled at Justice Scalia for his appearance at Michele Bachmann's Constitutionathon, giving the latter story a longer shelf-life. 2) The pre-speech analysis I heard (on NPR) foretold of President Obama's metaphor of a plane and its engine. I thought it was a pretty clunky metaphor but figured it would be better when the President presented it.  It wasn't, as the chamber's non-reaction confirmed.  The core problem was that the metaphor made a muddle of the central message of the speech, which is that the economy has averted disaster and now we need to turn...

Last week, the New York Court of Appeals rejected a request for discretionary review in People v. Hoffstead , a June 2010 decision of the Appellate Term (an intermediate appellate court in New York State).  Having done a fair bit of pro bono  work on this case over the last several years, I was very gratified to see it end in a way that benefited my client. Eric Hoffstead, a homeless man, asked a New Rochelle police officer for a dollar, whereupon he was arrested for violating a New York state statute forbidding all begging, including peaceful, non-threatening begging.  A search incident to arrest revealed a small quantity of a controlled substance.  Hoffstead was charged with begging and drug possession.  Through his lawyer, he successfully urged the trial court to dismiss the begging charge on the ground that the begging law was unconstitutional under the First Amendment as made applicable to the states via the Fourteenth, as well as under the New York Stat...

By Sherry Colb The blogosphere is now saturated with discussions of Amy Chua's new book, Battle Hymn of the Tiger Mother.  Everyone has an opinion about what Chua describes as parenting "the Chinese way," by insisting on excellence, obedience to authority, achievement of the highest grades, and intensive study and musical practice throughout childhood.   Some think this a terrific method for building highly competent, self-assured adults who will know, through a virtuous cycle, that they can do anything to which they set their minds.  Others view it as an exercise in child abuse that will regularly yield self-hatred, burnout, and social ineptitude.  And still others see it as a quaint but doomed attempt to wield influence over the next generation when in truth, peers affect the trajectory of a child’s important actions and choices much more than anything parents attempt to do. At lunch last week, my colleagues and I were discussing Chua's book, and someone a...

-- Posted by Neil H. Buchanan, from Melbourne, Australia I have spent the last week in Australia, officially to present a paper at the Australian Treasury on Wednesday, and to deliver a speech at the Australasian Tax Teachers' Association annual conference today. (Unofficially, who wouldn't love a job that entails the occasional free trip to enjoy a week of summer in January?) It has been a fascinating and delightful experience. While I have been here, I have taken some effort to read the Australian newspapers, to get a sense of how they view the U.S., and how they cover the rest of the world. (Interestingly, the Australian newspapers are still broadsheets, 16 inches across. The American papers have truly experienced what George Costanza would ruefully call shrinkage.) Two amusing comments appeared in the same column in The Sydney Morning Herald 's Business Section (not a likely source of comedy) on Monday, January 17. In "US surfs on choppy recovery and we catch ...

By Mike Dorf In yesterday's SCOTUS opinion in NASA v. Nelson , Justice Alito's majority opinion assumes that there is a constitutional right against government collection and disclosure of private information--what the Court calls "informational privacy"--but that the procedures used by NASA to screen job applicants did not violate that assumed right because: a) the government had a legitimate basis for seeking the information; and b) safeguards are in place to prevent the government from disclosing private information to third parties. There is no dissent from the result but Justice Scalia, joined by Justice Thomas, goes at Justice Alito's reasoning pretty hard in a concurrence in the judgment.  Much of the Scalia opinion attacks the majority for assuming the existence of a constitutional right rather than first deciding whether it exists and only evaluating the particulars of the case if the answer is yes.   Eugene Volokh nicely excerpts the relevant port...

By Mike Dorf Last week, I posted about Judge Griffith's DC Circuit  dissent   from the denial of en banc review in  Abdah v. Obama.   In  comments and  private emails, various readers took issue with my use of   Abdah  to discuss detention by U.S. officials at one site rather than another, given that the case law to date has mostly dealt with transfers from U.S. custody to foreign custody.  The leading decision is 2008's unanimous  Munaf v. Green , which held that: a) U.S. courts have habeas jurisdiction to hear petitions from U.S. citizens held by U.S. forces participating in a multilateral force and seeking to prevent being transferred to a foreign sovereign seeking to vindicate its criminal law; but b) that such allegations did not, as a matter of substantive law, entitle them to relief. I agree that cases like  Munaf are different from cases in which a petitioner objects to being transferred from one place to an...

By Mike Dorf Last week the Justice Dep't asked the 9th Circuit to hold in abeyance the appeal of an earlier district court ruling invalidating Don't-Ask-Don't-Tell (DADT) while the steps to implement the policy's repeal are taken.  The plaintiffs Log Cabin Republicans oppose the motion on the ground that so long as DADT remains in effect--which it does given the statutorily prescribed delay in implementation along with an existing stay of the district court order--service members suffer unconstitutional harm under the policy, and so the appeal should proceed as scheduled.  All things considered, I think the government probably has the better of the argument here, although the question of when it is appropriate to continue litigating over a repealed law or policy can be complicated. The decisive consideration here, I think, is the fact that DADT almost certainly will be gone before the current litigation can realistically be expected to conclude.  This is not a cas...

By Mike Dorf [Spoiler Alert: This post gives away the endings of the films  Black Swan and The Wrestler .  If you haven't seen the films--and want to--stop reading now, see the films, then resume reading.  Now, on to my post . . .] I have thus far resisted the urge to remark on the  controversy over Yale Law Professor Amy Chua's book, Battle Hymn of the Tiger Mother and her recent Wall Street Journal op-ed .   I'll leave for the seemingly millions of commenters the questions of whether what Chua calls the traditional "Chinese" mother's approach to child-rearing is cruel and/or effective, and if effective, at what.  Here I want to examine the other side of the coin, what Chua characterizes as the contemporary "Western" approach to raising children, with its supposed emphasis on praising children for mediocrity and undue attention to their self-esteem. Now, I happen to agree with Chua and others that some of the self-esteem business is rather s...

-- Posted by Neil H. Buchanan News reports last week indicated that five countries in Europe have begun to "seize" the assets of citizens' retirement accounts, in an effort to fill state budget gaps. While there is reason to suspect that these reports are misleading or overblown, I will accept arguendo the veracity of the reports. This raises several interesting issues. Any discussion of pensions anywhere seems automatically to implicate the debate over Social Security in the United States. According to last week's news, two countries saw their governments take over public pension assets that had been designated for individuals, while three others took ownership of the assets of private retirement accounts. That these five are all being taken as essentially equivalent is, however, itself an interesting phenomenon. Recall that former President Bush, when he proposed a partial privatization of Social Security six years ago, used the rhetoric of ownership to distin...

By Mike Dorf On Tuesday, the DC Circuit denied en banc review in Abdah v. Obama .  An earlier ruling (in Kiyemba v. Obama ) had held that a Gitmo detainee has no right to notice that he is about to be transferred to a place--such as Bagram Airbase in Afghanistan--where it may be impossible to obtain habeas relief because the Congressional judgment to provide for no statutory jurisdiction is valid under the Suspension Clause.  In a dissent from the denial of en banc review, Judge Griffith (joined by Judges Rogers and Tatel) argued that detainees do in fact have such a right to notice of the impending transfer.  Judge Griffith reasons in two key steps: 1) Boumediene v. Bush recognizes a right of detainees to all of the protections of habeas circa 1789; and 2) under English common law as received by the colonies circa 1789, the writ included the right to notice of, and thus an opportunity to protest against, such a transfer. Indeed, in a nice piece of legal jujitsu, Judg...

By Mike Dorf (NB: This post is expanded from its original form in response to a comment.) In this, my third and final post on the Ninth Circuit en banc decision in  Byrd v. Maricopa Cty Sheriff's Dep't , I consider whether the privacy interests that the court found sufficient in that case to declare non-emergency cross-gender strip-searches of pre-trial detainees unconstitutional under the Fourth Amendment would also justify the now-defunct Don't Ask Don't Tell (DADT) policy (which has not been phased out yet). In an earlier post on DADT, I argued that the privacy rationale for the policy--members of the armed services supposedly don't want to be ogled in the shower by a person who could be sexually attracted to them--did not withstand serious scrutiny.  Here I want to ask what will almost certainly turn out to be a purely hypothetical question: If DADT were somehow to come before a court in the 9th Circuit, would Byrd  strengthen the anti-ogling rationale?  ...

By Mike Dorf In yesterday's post , I explored the light that analysis of the 9th Circuit decision in  Byrd v. Maricopa Cty Sheriff's Dep't sheds on the nature of reasonableness under the 4th Amendment.  Here I consider the implications of the court's conception of privacy for sex equality claims by third parties.  Recall that the case holds that a non-emergency cross-gender strip search of pre-trial detainees is unreasonable absent an emergency that precludes waiting for a guard of the same gender as the detainee to perform the strip-search. Byrd--the plaintiff detainee in the case--made a half-hearted attempt to raise a sex discrimination claim, arguing that the defendant permitted female detainees to insist on a female guard to perform the strip-search but denying the same right to insist on a same-gender guard to male detainees.  However, that claim was not sufficiently developed and accordingly the 9th Circuit made short work of it. But consider a diffe...