Dorf on Law

By Mike Dorf Yesterday's NY Times carried  a story about a lawsuit in federal district court alleging that the federal government is violating the First Amendment by censoring the religious speech of VFW honor guards at a military cemetery in Houston, TX.  The complaint lists causes of action under freedom of speech, free exercise of religion, the Establishment Clause, and the Religious Freedom Restoration Act (which was held invalid by the Supreme Court as applied to states and localities in 1997 but remains valid against the federal government). Juxtaposing the Times story with the complaint  and supporting affidavits, it appears that there is an important disputed question of fact: Does the Department of Veterans Affairs require private speakers to obtain prior family approval to recite religious messages while permitting non-religious messages without prior family approval (as the complaint alleges), or does the policy require family approval for any spoken text...

By Mike Dorf In the wake of Hurricane Irene, many people who had not previously had cause to think about the question are probably now discovering that their homeowners' insurance does not cover flood damage.  My own homeowner's policy is fairly typical.  It excludes flood coverage with a boldface capital "NOT" followed by the definition of a flood (taken from the National Flood Insurance Program):  "A general and temporary condition of partial or complete inundation of normally dry land areas from overflow of inland or tidal waters or from the unusual and rapid accumulation of surface waters from any source." That's clear enough and for someone like me, it's pretty safely ignored.  After all, I live near the top of a 1200 foot hill, with no bodies of water on higher ground.  But language like that is also undoubtedly ignored by thousands of people who, in retrospect, needed flood insurance.  Why do homeowner's policies generally exclude flo...

By Mike Dorf In my latest Verdict  column , I argue that the Tea Party movement is a sign of the breakdown in the Republican coalition.  I use three incidents -- proto-Tea Party opposition to TARP; the Tea Party opposition to a deal on the debt ceiling; and fights over immigration that pit Tea Party types against employers -- to show how increasingly the interests of Wall Street and corporate America diverge from the ideology of what I call the populist right.  I characterize the fight as a battle for the soul of the Republican Party.  Here I want to explore the possibilities that the rift offers for realignment.  Specifically, I want to ask: How would American politics look if the Democratic Party were to replace the Republican Party as the party of Wall Street and big business? A pro-business Democratic Party is not at all difficult to imagine.  Indeed, many people on the left would say that is already what we have.  After all, President Clinto...

-- Posted by Neil H. Buchanan [Note: The fourth paragraph below has been edited in response to a comment from a reader.] Why are so many people unemployed? Why does the economy continue to produce so few jobs, as we face the very real prospect of a renewed recession? The answers to these questions are, of course, hotly disputed. Some theories are better than others, while many ideas that have been floated are simply not serious. The silliest suggestion by far, however, comes from NYT op-ed columnist Joe Nocera. In his most recent column, Nocera argues that the National Labor Relations Board is responsible for businesses holding back on hiring. He does not, thankfully, argue that that is the whole story, but he nonetheless claims that the NLRB and the Democrats who support its decision are "paralyzing" the economy. Nocera claims that the NLRB has overreached by filing a complaint against Boeing, preventing the company from moving some of the work for its Dream...

-- Posted by Neil H. Buchanan Both of my posts last week were concerned with the depictions in popular culture of important social issues. On Thursday, I discussed the negative and inaccurate depictions of vegans in movies and television, while Friday's post described the disturbing tendency of movies and TV shows to portray prostitution as a non-problematic "profession," ignoring or winking at the coercion and violence (or the threat thereof) that is almost surely the reality for prostitutes (especially the child slaves of sex traffickers) around the world. The discussions on the comment boards for the two posts were interesting and instructive. In response to my concern about the negative depictions of vegans, Professors Dorf, Colb, and other readers argued convincingly that being ridiculed is actually a good sign, because it means that we have become influential enough to be worth singling out for ridicule. That is not a guarantee of ultimate success, but I...

By Sherry F. Colb My Verdict column for this week is about Florence v. Board of Chosen Freeholders , a case that the U.S. Supreme Court will be hearing this coming Term.   Florence involves a challenge to a policy under which detention facilities strip-search all arrestees prior to entry. The policy applies even to those people charged with minor, non-indictable offenses, and it requires no reason to suspect that an individual searched is actually in possession of drugs, weapons, or other contraband.  The Supreme Court upheld a similar policy in the 1979 case of Bell v. Wolfish , but the facts of Florence  are arguably distinguishable, as I discuss in the column.  Though I make no strong outcome predictions, I will boldly say here that Justice Kennedy's vote will be important.  Justice Kennedy has a somewhat uneven record when it comes to prisoners' rights, having recently written a majority opinion on the side of California prison reform in Brown v. Pl...

Lisa 's back with another post about legal education. --------------------------------------------------------------------------------------------------------- There’s been a lot of talk lately about the Wake Forest Law first-year student who started a blog about her desire to transfer to Yale .  She has been criticized, not for her ambition, but for her unapologetic and public display of it on the Internet. But there’s no doubt that Tammy Hsu is one of many first-year law students who aspire to transfer to another (often “higher-ranked”) law school.  In fact, according to a recent article in the Journal of Legal Education by Jeffrey Rensberger of South Texas School of Law, 5% of second-year law students in any given year have transferred from another institution.  Back in the early 90s, I made the difficult decision to transfer from the University of Texas to Harvard Law School.  Since then, I’ve had a number of students ask for advice about the transfer process...

By Mike Dorf Texas Governor Rick Perry  made news  last week when, in answer to a question from a child, he said that evolution is "a theory that's out there" and proceeded to erroneously describe biology instruction in the Lone Star State.  Another Republican Presidential hopeful,  Michele Bachmann , has also expressed doubts about evolution and said she favors the teaching of creationism or intelligent design in public schools. Mitt Romney  accepts evolution  (although perhaps only in Massachusetts and not at the federal level !), as does  Jon Huntsman .   Ron Paul does not .  I couldn't be bothered to Google whether the other Republican candidates accept evolution, but I'll guess that Herman Cain and Rick Santorum do not, while Newt Gingrich changes the subject.  (Okay, I couldn't resist.  After I wrote that, I looked it up and I was pretty much right on all three.  I'd urge you to verify that for yourself excep...

-- Posted by Neil H. Buchanan Last weekend, I saw a movie called " The Whistleblower ," a 2010 film starring Rachel Weisz as an American police officer who signed up to work for a Blackwater-like security contractor in Bosnia in the 1990's. Weisz plays the real-life Kathryn Bolkovac, who was assigned to work on the peace-keeping mission with the UN forces in Bosnia after the Dayton accords. Bolkovac discovered a sex trafficking operation, and she further discovered that the ring was protected by ineffective local and international laws, corruption, and negligence (at best) by officials with the authority to do something about it. The film is an indictment of, among other things, military subcontracting; but mostly, it is a heartbreaking account of the horrors of what we so euphemistically call "the sex trade." The filmmaker, Larysa Kondracki, makes all the right choices in depicting the horrendous violence and terror faced by the young girls who are forc...

-- Posted by Neil H. Buchanan Because of this summer's budget controversies, I was not able to write my annual post celebrating my transition to veganism. (See my original 2008 post describing my decision to become a vegan here , and my first and second anniversary posts here and here . I have also written about veganism at other relevant times, the most recent of which was here .) Today, with the policy world providing a bit of breathing room, I return to celebrate three years of cruelty-free living. In the 1980's, during the height of the manufactured hysteria about so-called political correctness, some stand-up comedians were complaining that they were no longer able to make jokes about particular groups of people. The easy racist jokes had (finally) become off-limits, and the less adaptable wags wondered whom they could safely ridicule. The sarcastic answer became: the French (because everyone still hates the French), and the Amish (because they do not watch ...

By Mike Dorf Last week I boldly (or foolishly) predicted that the constitutionality of the individual mandate in the Affordable Care Act and the University of Texas affirmative action case would make it to the Supreme Court in the upcoming Term, while the challenges to DOMA and California's Prop 8 would take a little longer.  Today I want to handicap the political payoff of SCOTUS decisions in the various cases.  For simplicity, I'll lump the DOMA cases and the Prop 8 case under the general heading of same-sex marriage.  So, the questions I'll address here are: Who would benefit from the various possible rulings on the three issues? Let's start with the ACA.  In a recent Washington Post story , I was quoted as saying that the 11th Circuit's decision invalidating the mandate fast-tracks the case to the Supreme Court.  That was me making a prediction, but it's also my normative view: Politics aside, given that this case will eventually reach the SCOTUS, it...

Having said just about everything I believe I have to say about the constitutionality of the Affordable Care Act, I am giving over today's post to Nick Bravin, a DC-based lawyer, writer, con law teacher, Olympic fencer , former law clerk to Justice Ginsburg, and once upon a time, sort of my student.  Here's Nick: ------------------------------------------------------------------------------------------------------------ Pulsing through the legal and political opposition to the Patient Protection and Affordable Care Act of 2010 is the urgency and paranoia of Henny Penny.  If the law is allowed to stand the sky will fall, Florida District Court Judge Roger Vinson told us in his opinion striking down the Act in January – or worse, the federal government will be able to invade the smallest crevices of our lives, even make us eat broccoli.  On Friday, a divided panel of the Eleventh Circuit affirmed Judge Vinson’s ruling invalidating the individual mandate, if not all of hi...

By Mike Dorf In my latest Verdict column , I take a crack at writing a speech for President Obama based on the assumption that he wants to be more combative as he begins his re-election bid.  In my role as volunteer speechwriter, I adopt a more partisan tone than in my usual writing, on the theory that this is what the genre requires--even though Obama himself, to this point, has tried to appear above the fray.  I had the idea for the column early last week (when I thought I would write it as a blog post), and so I felt a bit prescient when, on Friday, he delivered a speech that, as reported about, appeared to go in the direction I was suggesting in my (then-written-but-not-yet-published) proposal.  After I watched and listened to the Obama speech, however, I concluded that the real version fell short of my fantasy version in at least three respects. So, go read my column, imagining the 2008 campaign Obama delivering it.  Then spend a few minutes with the fol...

By Mike Dorf The  Supreme Court Review Session  at the Practicing Law Institute last week was, as anticipated, great fun and very informative.  There was some disagreement among us panelists about whether to characterize the 2010 Term as "boring," but a general consensus emerged that the coming Term promises to be more exciting.  That assessment certainly was not based on the cases already on the Court's docket .  There are a few mildly interesting questions:  whether the police need a warrant to attach a GPS tracking device to a car; the scope of the "ministerial exception" to Title VII; and whether FCC indecency regulation is unconstitutionally vague.  But none of these is a blockbuster. The anticipation of importance relates to the following issues that will be posed in cases that are likely to come to the Court within the next several months: 1) Whether the individual mandate of the Patient Protection and Affordable Care Act is within Congre...