Dorf on Law

Posted by Sherry F. Colb My Justia Verdict column  this week takes up the U.S. Supreme Court's recent decision to grant review in . Miller v. Alabama and Jackson v.  Hobbs .  The two cases together raise the question whether the Eighth Amendment ban on cruel and unusual punishments permits a mandatory sentence of life imprisonment without the possibility of parole (LWOP) for homicides committed by fourteen-year-old perpetrators.  In my column, I discuss different features of the cases before the Court that may each play a role in disposing of the question presented, including the notion that "death is different" (whether the death comes in the form of homicide or, more conventionally, the State's penalty for homicide), the categorical or discretionary significance of  a mitigating factor like youth, and the interaction between culpability and consequences.  In this post, I would like to focus on  a different dimension along which Miller  and J...

By Mike Dorf My family and I spent Thanksgiving at the home of a friend who invited a number of other guests I had not previously met.  During the course of a pleasant evening, one of these guests made the following statement (which I quote more or less from memory): "Because the law treats corporations like people with rights of free speech, they don't have to list ingredients on labels.  They just do it as a kind of advertising."  I found this statement so astonishing that I was dumbstruck and by the time I thought to intervene, the topic of conversation had changed.  To return to it to correct this woman's mis-impression would have been pedantic, if not bullying, and accordingly I let it go.  I return to it now because I think it is an interesting window on how the lay public understands the Citizens United decision. To begin, the factual claim about the law is plainly false.  By statute and regulation , foods can only be offered for sale with la...

-- Posted by Neil H. Buchanan In my post last Tuesday , adding to Professor Dorf's response to the now-infamous NYT article in which David Segal critiqued (nearly every aspect of) American law schools, I defended the "case method." I argued that the case method is as an essential part of learning and understanding the "practical" things that go into the actual practice of law, including writing and negotiating contracts. I also spent a bit of time discussing the value (and the process) of producing legal scholarship, but it is fair to say that the bulk of that post was devoted to a defense of the value of studying law through the careful reading of cases, as a means to learn and understand the principles of law. In an email, a reader suggested that I had missed the real point of Segal's article, which might not have been a call for dropping the case method and "teaching black letter law" at all, but rather an argument that "a thorough, ...

By Mike Dorf Most of the news coverage of the recent  California Supreme Court ruling in the Prop 8 case has treated it as though it completely decides the question whether the Prop 8 sponsors have standing to pursue their appeal of the district court ruling invalidating Prop 8.  Here I'd like to question that assumption. The Ninth Circuit asked the California Supreme Court to address the following question: Whether under article II, section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative‘s validity or the authority to assert the State‘s interest in the initiative‘s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so. The California Supreme Court answ...

-- Posted by Neil H. Buchanan Professor Dorf's post here on Monday mentioned a front-page article from Sunday's New York Times, in which David Segal assailed the supposed problem that law schools do not teach "lawyering." That article has understandably generated a lot of heated reaction from law professors, who have objected to nearly every aspect of Segal's dangerously slanted analysis. The article will still be highly influential, however, because it appeared on the front page of the Sunday Times , and because it feeds the established narrative about woolly-headed academics versus put-upon students. Like everyone else who has criticized the article, I have no objection to the idea of critically examining any aspect of the law school model -- or, indeed, of critically examining any socially important institution. The law school experience is far from perfect, to say the least, and we all need to think carefully about how to assist our students and grad...

-- Posted by Neil H. Buchanan The U.S. Supreme Court has agreed to hear a challenge to the Patient Protection and Affordable Care Act of 2010 -- also known as the ACA, or "the health care law," or (from more hostile quarters) "Obamacare." Professor Dorf's post on this blog last Monday summarizes the issues and analyzes the key points of the case. Last Wednesday, I was interviewed for a news piece discussing the various questions raised by the case. (If the video is ever posted online -- which is not guaranteed -- I will post a link on this blog.) To prepare for the interview, I reviewed the issues that were so hotly debated earlier this year and last year. I do not claim to have read everything that has been written on this heavily debated topic -- far from it, given the demands of my "day job" -- but I will offer a few thoughts here that I have not yet come across in my perusal of the issues (or that at least have not been the focus of debate...

By Mike Dorf My latest Verdict column addresses the question why amicus curiae briefs by scholars speaking on their own behalf have proliferated in recent years.  The column was occasioned by a recent NY Times piece that discusses a new article draft by Harvard's Dick Fallon, in which Fallon complains about such briefs and sets out his own criteria for signing on.  I figure somewhat uncomfortably prominently in both the Times story and the Fallon article, and so I thought it was worth acknowledging that I believe I am treated fairly in both.  I use the column as the occasion to pivot to a somewhat different question: Why have scholars' briefs proliferated?  My answer, in part, is that legal scholars have been getting the message from judges and Justices that they don't read our scholarship, and so we've tried to repackage it in briefs. I said all I want to say right now on that topic in the column, so here I'll pivot again to another issue I raise in the colu...

Posted by Mike Dorf mostly for Bob Hockett Last week the NY Daily News ran an Op-Ed by DoL contributor Bob Hockett , arguing that the Bloomberg administration should not have cleared the Occupy Wall Street protesters from Zuccotti Park.  Newspapers have stricter word limits than blogs, so I'm posting the full version of Bob's argument below.  Here it is: --------------------------------------------------------------------------------------------------------- Mr. Bloomberg, Tear Down This Wall by Robert Hockett   Those arguing the legalities of last Tuesday’s developments around Zuccotti Park are missing what matters most.  The real question has never been whether City or other governmental authorities constitutionally  may  place certain ‘time, place, and manner’ restrictions upon exercises of the right to political speech.  The question is whether they should.  And the answer to that question is easy:  they shouldn’t – at least non...

-- Posted by Neil H. Buchan an In yesterday's post , I discussed the impending failure of the so-called supercommittee to fulfill its purpose -- to propose a ten-year deficit reduction bill that would be fast-tracked through Congress. If the committee does fail, current law -- which could change at any moment, as I discussed yesterday, and as I will explain further below -- says that there will be automatic "trigger cuts" affecting spending on both nondefense and defense programs. My analysis was mostly backward-looking, because I used the post as an opportunity to explain how a failure by the supercommittee would be worse than a counterfactual history in which we had never created the supercommittee in the first place. The debt ceiling deal in early August 2011 was clearly a bad idea at the time, and it is now clear that it was even worse than we thought -- especially if the supercommittee tries to pretend that it did not fail, by putting together a deal that no one wi...

-- Posted by Neil H. Buchanan The deal that allowed the debt ceiling to be increased this past summer -- formally, the Budget Control Act of 2011 -- famously included the creation of the so-called "supercommittee," a 12-member House/Senate bipartisan panel that is supposed to write fast-track legislation to reduce deficits by $1.5 trillion over a ten-year period. If the committee fails to do so, automatic cuts of $1.2 trillion are to ensue. (This is the so-called "trigger mechanism.") The committee's deadline is Nov. 23, next Wednesday. At this point, the committee appears to be hopelessly deadlocked -- although that could be a simple matter of brinksmanship. Here, I will discuss an interesting aspect of the discussion of the nature of the automatic cuts, followed by some thoughts on the consequences of a full or partial failure by the committee to produce a proposal. The news coverage of this complicated legislative dance has described the trigger mechanis...