Dorf on Law

By Michael Dorf I've still got exams and papers to grade, so I'll just let my  Verdict  column  elaborate on the headline. Happy new year!

-- Posted by Neil H. Buchanan As another year comes to a close on Dorf on Law , I have recently been thinking about the surprisingly large number of issues on which the basic facts should not be in dispute, but about which there is widespread ignorance.  We have long known about the big examples of climate change and evolution, of course.  There are also plenty of other examples of politically "controversial" issues that are actually not especially controversial among the public, such as whether there should background checks prior to gun sales (which had a 90+% approval rating before Republicans filibustered it last year), or to ban abortions outright (which has the support of only 21% of the public, compared to 28% support for "legal in all circumstances" and 50% for "legal only under certain circumstances"). I should at least mention the now-dominant misunderstanding of the election results from November 2014, which have been called everything fro...

By Michael Dorf Despite my best efforts to block "comment spam" on this blog, the spammers have found ways around my defenses. Thus, if you go to nearly any post that is more than a week old you will find advertisements for gold, pharmaceuticals, and other worthless items--sometimes in Chinese, Arabic, or other foreign languages. Some of the comment spam uses an algorithm that randomly quotes parts of the post, so that it appears to the casual observer as an actual comment, except that upon inspection it proves to be nonsense with links to spammers' sites. The comment spam appears to be more or less randomly distributed, but there is also an intersting bunching phenomenon, whereby one kind of comment spam appears to attract more of the same kind of spam. My personal favorite is an October 2012 post on the Ex Post Facto Clause. As I compose this post (on Friday, Dec. 26) it has 154 comments, nearly all offering to cast spells, presumably for a fee. The spellcaster spa...

by Michael Dorf It's the holiday season and that means I'm too burnt out, busy grading exams, and visiting family to write a new blog post. Thus, following my usual custom, I present the constitutional law exam I gave my students. For them, it was an 8-hour open-book take-home but you can take as much time as you like. Readers who wish to post answers are welcome to do so, but I won't grade those. Enjoy! ------------------ Question 1 of 1: After an outbreak of Ebola in El Salvador, officials with the Centers for Disease Control grow fearful that the disease could spread to Mexico and from there into the United States. In response, President Obama quickly negotiates a treaty with Mexico and Canada: the North American Ebola Free Zone Treaty (NAEFZT). The Senate ratifies it, as do the Mexican and Canadian governments. The Treaty obligates each country to “immediately adopt and implement effective Ebola border screening and to vaccinate 100% of the population against Eb...

-- Posted by Neil H. Buchanan Earlier this month, Professor Dorf posted an analysis of a lawsuit in which a lawyer brought a habeas corpus action in New York on behalf of Tommy, a captive chimpanzee.  The courts had rejected the plaintiff's claim, both in the trial court and on appeal.  Although Professor Dorf is certainly sympathetic to Tommy's situation, his bottom line was that the attempt to vindicate animal rights through innovative use of the courts is a doomed strategy, because judges almost universally share the same attitudes as the public at large regarding human exceptionalism.  Here is the final paragraph of Mike's post: "Some day, lawsuits on behalf of animals may be a sensible way to advance the cause of animal rights. But so long as the vast majority of people--including the vast majority of judges--reinforce their own psychological investment in the normality of exploiting and killing animals every time they sit down to a meal or put on their s...

by Sherry F. Colb In my Verdict column for this week , I discuss an Iowa case involving a man arrested for sexual assault for having had sex with his wife, a woman who was suffering from Alzheimer's disease at the time (she has now died of complications from the disease).  In the column, I take up the question of fairness to the defendant as well as the larger issue of whether we ought to be protecting Alzheimer's patients from having what may in fact be consensual sex, just because their mental capacities are diminished. In this post, I want to raise an uncomfortable possibility regarding how the law and our society treat people with a diminished mental capacity.  I think it is possible that rather than seeking to protect the autonomy of the vulnerable (and their corresponding interest in not being violated when they are in a diminished state), laws and policies may instead (or in addition) reflect a visceral sense of disgust. Many of us might find the prospect of sexual ...

-- Posted by Neil H. Buchanan Last Tuesday, my Verdict column and my Dorf on Law post discussed the possibility that the Republicans will impeach President Obama next year, as part of a renewed standoff when the debt ceiling is reinstated in the Spring.  My central argument was that the Republicans, who have arguably been using the debt ceiling to set an " impeachment trap " for the President, might instead find themselves trapped inside their own illogic, inexorably moving toward impeachment even as the party's establishment tries to prove that the party can "govern responsibly" (in the now-standard phrasing) and thus earn the trust of voters in 2016. As so often happens here on Dorf on Law , several readers offered thought-provoking responses on the Comments board for Tuesday's post.  Here, I want to discuss those comments, objections, and suggestions, because they have certainly helped me to think about this broad question more deeply and (I hope)...

by Eric Segall A few months ago I started writing an essay suggesting that women's rights organizations and other groups supporting the right of women to terminate their pregnancies should engage in civil disobedience. I was going to urge them to occupy state houses where anti-abortion legislation has passed or was being considered and to confront so called "abortion counselors" at family planning clinics with large numbers of counter-protestors. My motivation for the piece stemmed from desperation over the current state of abortion politics in America. But the piece wouldn't hunt. I couldn't find the right words or reasons to advocate such a strong stance. My fear was that such measures would just further incense those opposed to abortion rights, leading to more laws and more violence. So I started writing another piece about how both sides of the abortion debate should try hard to listen to and understand the other side’s arguments. I suggested we do...

-- Posted by Neil H. Buchanan Scheduling changes resulted in my writing two Verdict columns this week.  I discussed Tuesday's column in a post on Dorf on Law the same day . Turning from "impeachment traps" to torture, today's column compares the substance and the politics of the Senate's CIA torture report -- a scandal if ever there was one -- with what I have long called the "IRS non-scandal scandal." The comparison is powerful and revealing, but precisely for that reason, it is also uncomfortable.  After all, even to compare the vicious atrocities revealed in the torture report to anything else, and certainly to anything as minor as the things that some low-level IRS employees did to some groups applying for 501(c)(4) status, risks diminishing the horrors of what the CIA did at the behest of the Bush/Cheney people.  This meant that, in order to make any meaningful comparisons, it was necessary to discuss things at a higher level of abstraction...