Dorf on Law

by Michael Dorf A recent New Yorker  article by Jill Lepore uses the Democratic primary challenge by Fordham law professor Zephyr Teachout to NY Governor Andrew Cuomo as an occasion to problematize the concept of political corruption. I generally think highly of Lepore but this article strikes me as misguided, for reasons I shall explain below. But first, some context. Teachout and (my former colleague) Columbia law professor Tim Wu are challenging, respectively, Cuomo and his running mate Kathy Hochul. The Teachout/Wu campaign makes what is essentially a two-pronged pitch: (1) Cuomo and Hochul are too conservative for the Democratic Party nomination; and (2) there are serious concerns about Cuomo's integrity. Given Cuomo's name recognition and generally favorabile (albeit slipping) ratings, Teachout is a long-shot for the gubernatorial nomination but Wu has a better chance at the second spot on the ballot. Hochul is not much better known than Wu and her record as a (fo...

-- Posted by Neil H. Buchanan [Note to Readers: My new Verdict column was published this morning: " One Wrong Answer to Some Very Important Questions: Understanding Why Cash Payments to College Athletes is a Bad Idea ."  I discuss that column in the latter part of the post below.] According to an old adage, when all you have is a hammer, everything starts to look like a nail.  There are actually two ways to understand that adage, one innocent and one cynical.  The innocent interpretation simply says that a well-meaning person would make the best use of whatever tools are currently available.  Although there might exist more appropriate tools for a particular job, sometimes a hammer is the only tool at hand.  Therefore, if you have to drive a screw into a block of wood, you look at the screw as if it were a nail, and make the best of a bad situation. In the cynical view, a person with a hammer starts to think the hammer is the only useful tool on earth....

by Michael Dorf In my new Verdict column I endorse the proposal for police to be equipped with wearable cameras to record police-citizen interactions. I note the legitimate concerns raised by these proposals but conclude that they can be accommodated through careful implementation. On the whole, I agree with the view that recording is win-win: It will protect citizens against abusive policing and protect honest police against bogus allegations of abuse. Nonetheless, I explain why recording police is no panacea. There will still be disputes over what the recordings show (as in the aftermath of the Rodney King beating) and the dangers inherent in all police-citizen conflicts will mean that, even when police know they are being recorded, they will sometimes use deadly force with tragic consequences. Thus, I argue that policy makers should take steps to reduce the frequency of police-citizen interactions with the potential for violence. I suggest that the increased risk of events like t...

-- Posted by Neil H. Buchanan Last Friday, the editors of The Washington Post announced that they will no longer refer to the city of Washington's NFL team by its official name, the Redskins.  "[W]hile we wait for the National Football League to catch up with thoughtful opinion and common decency, we have decided that, except when it is essential for clarity or effect, we will no longer use the slur ourselves."  Here, I will not engage with whatever remains of the debate over whether the team name should be changed, since that would simply be piling on.  (Sorry, but a post like this has to include at least one sports pun.)  Instead, I am interested in why the owner of the Redskins, Daniel Snyder, is missing out on a way to play both sides of the ball and profit from a name change.  (Last pun.  I promise.) Along with TV money, merchandising revenues fuel modern sports, at both the professional and college levels.  Selling team jerseys and other ...

by Michael Dorf In my post last week on the indictment of Rick Perry, I criticized the argument by the Perry camp that the use or threatened use of the governor's veto power for nefarious purposes cannot be the basis for a criminal charge because the state constitution assigns to the governor the power of vetoing legislation. I said that this argument was weak, "at least if not further qualified." I then explained both why the maximalist argument made by Perry is weak and how a more nuanced version of the claim could be stronger. Later in the week, Professor Volokh defended the maximalist view. Some of what he wrote addresses other issues raised by the Perry indictment, but to the extent that Volokh has offered a response to my prior post (which he quotes at length), I am not persuaded. Volokh argues that the legislature cannot, through ordinary legislation, impose limits on the executive's constitutionally conferred veto power. Before explaining where I think ...

-- Posted by Neil H. Buchanan My Dorf on Law post earlier this week discussed two recent entrants in the teacher-bashing sweepstakes: a billionaire-backed group that is bringing suit in New York State to end tenure for schoolteachers, and an op-ed by New York Times columnist Frank Bruni.  Bruni endorsed a Colorado law that can end even effective and experienced teachers' careers, if student test scores do not increase for two consecutive years. Bruni's op-ed was almost endearing in its inanity, uncritically buying into the idea that the only way to improve the educational system is to give heroic administrators the ability to inspire their troops (and to sack those who are not willing to "walk through fire together"). The broader story being spun by the anti-tenure groups is that schools are bad because teachers have too much job security. Falsely claiming that tenure makes it impossible (or nearly impossible) to fire ineffective teachers, this crowd makes it...

by Michael Dorf A recent New Yorker essay by Malcolm Gladwell provides a potentially interesting way to think about the events in Ferguson. Gladwell's essay was published just before the eruption in Ferguson, so he does not discuss it. A Washington Post  op-ed by Allyssa Rosenberg applies the lessons Gladwell draws in his essay to Ferguson and the larger problem of the racialization of poverty and violence, but mostly by accepting Gladwell's claims. Here, after briefly describing Gladwell's claims, I want to raise some questions about his analysis. Gladwell's essay centers around a 1972 non-fiction book by Francis Ianni, A Family Business: Kinship and Social Control in Organized Crime , that was the basis for The Godfather and many subsequent popular fictional portrayals of organized crime in general and the Italian mafia in particular. The Godfather films suggest that mafia life is a trap: "Just when I thought I was out," laments Al Pacino as Michael ...

by Michael Dorf The Supreme Court order granting a stay of the ruling of the 4th Circuit regarding Virginia's same-sex marriage ban makes it nearly certain that the Court will grant cert to decide the constitutionality of laws banning same-sex marriage in time to be decided during the upcoming (October 2014) Term. No one can be surprised by this order, given the similar SCOTUS disposition in the Utah case back in January. But the Utah case was different in an important respect: The underlying merits decision was a ruling of the district court; thus, one could understand the SCOTUS grant of a stay there as merely based on the view that the status quo ante ought to be preserved so that the appeals court could hear the case without risking putting marriages in limbo. (Of course, there was enough of a delay between the district court ruling and the time when the Supreme Court stay was granted, that limbo wasn't avoided anyway, but that's a different point.) By contrast, t...

by Sherry F. Colb In my Verdict column for this week, I discuss a decision by the U.S. Court of Appeals for the Fifth Circuit holding a Mississippi abortion law unconstitutional, as applied.  The law at issue, like an increasing number of state laws, requires that doctors who provide abortions must have admitting privileges at a local hospital.  The doctors at the one existing abortion clinic in Mississippi attempted to acquire admitting privileges at seven local hospitals, but all requests were denied, expressly because of the doctors' participation in abortion services.  The Fifth Circuit held that the law in question, given the circumstances, effectively eliminated abortion services from the state of Mississippi and thereby imposed an undue burden on the right to terminate a pregnancy.  My column analyzes the unusually fact-specific nature of the ruling and why it needed to be that way. In this post, I want to turn from the subject of abortion to the subjec...

-- Posted by Neil H. Buchanan A few weeks ago, Stephen Colbert interviewed someone named Campbell Brown.  I had never heard of Brown, but it turns out that she was formerly one of the interchangeable talking heads on those network morning shows before moving on briefly to host her own low-rated show on CNN (a network that airs nothing but low-rated shows).  Brown appeared on Colbert to promote her new union-busting group (the funders of which she insistently refuses to name) , putting a happy face on an anti-teacher-tenure lawsuit that her group has filed in New York State. Brown probably assumed that she would get an easy ride on Colbert , expecting him to play the clown while she recited her talking points and smiled demurely.  Instead, Colbert proved that he has actually become an excellent interviewer, asking pointed questions and making trenchant comments that left Brown flat-footed.  (For example, when she tried to hide behind feel-good assertions that eve...

by Michael Dorf I begin with a disclaimer: My judgment regarding Rick Perry is questionable. When he first announced his candidacy for the 2012 Republican Presidential nomination, I thought he was a lock to get it. But in my defense, that was before I had any real exposure to Perry, as opposed to seeing his paper credentials. By early January 2012 I did recognize that Perry's main obstacle to obtaining the GOP nomination was what I called his "difficulty sounding like an adult human with the capacity for speech and thought." Until Friday, it looked as though Perry and his advisors had concluded that he had overcome that obstacle for 2016, probably counting on some combination of popular amnesia, the magical smarts-conferring power of glasses, and the revelation that Perry's dreadful performance in the 2012 campaign may have been a product of health and medication issues. But now this . Governor Perry's defense team is at least initially taking the position t...