Dorf on Law

By Mike Dorf Making the rounds to promote his new book, Justice Scalia recently sat for a very substantive interview with Chris Wallace .  Much of the discussion about that interview has focused on what Justice Scalia said in defense of his dissent in the Arizona immigration case, including a not-too-subtle put-down of Judge Posner (who had previously criticized the dissent).  A lot of what Justice Scalia said was the sort of thing that any Justice would have said in similar circumstances.  But one exchange stood out to me as either disingenuous or reflective of a serious lack of self-awareness.  Here it is: WALLACE:  Finley Peter Dunne, the famous Chicago humorist once wrote, "The Supreme Court follows the election returns." How political is the court? SCALIA:  I don't think the court is political at all. People say that because at least in the recent couple of years - since John Paul Stevens and David Souter had left the court, the break out is ofte...

By Mike Dorf I went to one basketball game at Madison Square Garden last season and it happened to be Jeremy Lin's breakout game against the Nets in February.  Like many other long-suffering Knicks fans, I was appalled but not surprised when James Dolan let Lin go in what appeared to be a fit of spite, but I can't honestly say that I have a good reason for caring.  Likewise, my excitement at the recent addition of Ichiro Suzuki to the Yankees is nothing more than, as Jerry Seinfeld put it, rooting for the clothes . For most Americans, watching the Olympics on network tv is continuous with the experience of cheering for professional sports, except instead of rooting for the players who happen to be wearing the shirts with the team name from their home town, they root for the players who wear the USA shirts.  Actually, the connection to the U.S. Olympic team should be stronger than the connection to the professional athletes who play for their home town team because mos...

-- Posted by Neil H. Buchanan Imagine that you live in a country that has decided democratically that it wants to have a national soccer team that is competitive at World Cup levels. Currently, the country's soccer teams are pathetically bad, and have been for years. You and your fellow citizens have decided that there will be a public/private partnership, in which the government and businesses will fund a full-scale national soccer development program. Strategists are assigned to develop a plan to fund youth soccer camps, developmental leagues, and so forth. Soccer is now so important that even your country's anti-government/anti-spending crowd initially agrees that this is a good idea. The program is a success. After several years, there are young players from your country who are as good as any who grew up in the world's soccer powerhouses. Your country's national team is winning championships, pushing the likes of Germany, Brazil, and Italy around the fiel...

By Sherry Colb In my Verdict column for this week, I discuss a German court's decision to outlaw non-medical circumcisions of male children.  I conclude that the prohibition is under-inclusive relative to similar secular harms that parents inflict on their children.  In this post, I want to explore a different sort of under-inclusiveness that we find in the German court's prohibition of circumcision:  an under-inclusiveness relative to religious harms that courts and legislatures regularly tolerate, when the religion in question is a dominant one. What harms does religion inflict?  One need not be a devotee of the so-called fundamentalist atheists (such as Sam Harris, Richard Dawkins, and Christopher Hitchens) to acknowledge that some religious teachings can cause significant distress in young children.  Religious parents frequently teach their offspring that God is watching their every move and surveilling their every thought, searching -- like a CIA agent...

By Anil Kalhan Last week, Chicago Mayor (and former Obama White House Chief of Staff) Rahm Emanuel reentered the national political fray, advising Mitt Romney that he should “ stop whining ” about the attention being given to his record at the helm — or was it “retroactively” not at the helm ? I can’t keep track any more — of Bain Capital. Emanuel did not add, but might have, that it was not, after all, as if anyone had sent Romney a dead fish . That same week, however, Emanuel made an even more consequential, if less widely noted splash with his announcement of the proposed “ Welcoming City Ordinance ,” which (it has been reported) he may formally introduce at the City Council meeting scheduled for later this morning. The ordinance would clarify and extend existing policies restricting the circumstances under which Chicago police officers may inquire about immigration status during encounters with members of the public: The ordinance builds on an existing ordinance and longt...

By Mike Dorf Predictably,  both those who favor and those who oppose stronger gun control laws have pointed to the  Aurora massacre as evidence for their position.  The gun control crowd has the more straightforward argument: James Holmes purchased the weapons and ammo he used to commit the massacre legally; therefore, existing state and federal laws are too lax.  But the gun-rights crowd is not without an argument.  They (or at least some of them) say: Miscreants will find weapons whether they are legal or not; if some law-abiding civilians had been armed themselves, they could have taken Holmes out before he fired as many rounds as he did. Who is right in this debate?  That's ultimately an empirical question that data ought to be able to answer.  Consider that there is a very strong correlation between (state-by-state) rates of gun ownership and rates of per capita gun deaths, as touted here by the Violence Policy Center, a pro-gun-control group...

-- Posted by Neil H. Buchanan Four years ago tomorrow, in a post here on Dorf on Law , I discussed the proximate events that led to my decision to become a vegan. Each year since then, I have written an annual "veganniversary" post (although this is the first year that I have used that bad neologism). Last year's anniversary post includes links to the others. This year's celebration is an especially happy one, because I now live in the DC area's "vegan central," Takoma Park (Maryland). Takoma Park has long had a reputation for being especially welcoming to vegans (as well as for its more generally progressive atmosphere), and it was only a matter of time before I moved here. What makes TP most interesting, however, is its demonstration of just how simple it is for a place to be vegan-friendly. This is a truly small town, with about two blocks of "downtown" shops, including four (count 'em) restaurants. The diner that just opened (fran...

-- Posted by Neil H. Buchanan My written commentary on the ACA decision to this point has focused almost exclusively on the issues raised in the various opinions in the case: the form-versus-substance aspects of the taxing power ( here ), the dissenters' concession that Congress has the power to do what it did in the ACA case ( here ), and the extremely forgiving definition of "coercion" that the majority used in striking down the Medicaid expansion ( Verdict column here , Dorf on Law post here ). I have not, however, commented on the pivotal role that Chief Justice Roberts played in the outcome of the case. There has been some extremely good analysis of Roberts's unexpected and historic role. Professor Colb ( Verdict column here , Dorf on Law post here ) discussed (among other important points) coercion in a different context -- the four dissenters' apparent attempt to put pressure on the Chief Justice to play on their team. Professor Dorf lauded Roberts fo...

-- Posted by Neil H. Buchanan Remember the Affordable Care Act case? The one that seemed like it was going to completely rewrite the political and Constitutional map for years to come? Well, the decision came and went, and now the Republicans are apparently trying to figure out why the public is bored with their attempts to continue to make a huge deal of Obama's (and Romney's) health care reform law. Who knew that the public's short attention span could be so good for the political conversation? I, for one, continue to find the Supreme Court's decision fascinating. In my Verdict column two weeks ago , I discussed the dissent's elevation of form over substance regarding the taxing power. Then, in my Dorf on Law post the same day , I explored the dissenters' concession that even they would have said that Congress could impose a mandate (taking away people's freedom), so long as the mandate had been explicitly labeled a tax. In my new Verdict column toda...

By Mike Dorf A regional court in Cologne recently ruled that circumcision of male infants and young boys is harmful to them and therefore illegal.  The decision drew criticism and protest from Jewish and Muslim leaders in Germany and elsewhere, including a committee of the Knesset, Israel's parliament.  (AP story here , courtesy of HuffPo.)  Here I want to raise a question about the length of the shadow that a country's past misdeeds should cast over its current policy decisions. To get to the issue that interests me, I'm going to make a number of potentially controversial assumptions.  I am not committed to any of these assumptions--so if you disagree with one or more of them, please don't flame me about it.  The assumptions are really really not the point.  It's the analysis that follows from them. Okay, here are the assumptions: (1) Circumcision has some medical benefits, most prominently the reduction in the risk that future sexual partners of cir...

By Mike Dorf My latest Verdict column discusses the Supreme Court's decision last month in Knox v. SEIU, Local 1000 .   In a line of cases going back to 1977's  Abood v. Detroit Board of Education , the Supreme Court has allowed that in so-called "agency" or "closed" shops, a union may be empowered to bargain on behalf of all workers in the bargaining unit, whether or not they are union members, and to charge non-members of the union for the bargaining activities, so long as the union gives non-members the opportunity to opt out of the portion of union dues that go for "ideological" activities unrelated to bargaining.   As I explain, the Knox  case presented a relatively narrow question: Do the same rules that govern how a union may charge non-members who are part of the bargaining unit for bargaining activities on an annual basis apply to a special mid-year assessment, where the assessment is for non-bargaining activities?  The Court answered...