Legal Commentary - Michael Dorf Archive

WHAT'S WRONG WITH THE JUSTICE DEPARTMENT'S NEW POSITION ON THE RIGHT TO BEAR ARMS -- AND WHAT ISN'T
FindLaw columnist and Columbia Law School Vice Dean and professor Michael Dorf comments on Solicitor General Theodore Olson's recent decision to inform the Supreme Court, through identical footnotes in two briefs, of the Justice Department's switch of position regarding the proper interpretation of the Second Amendment. Dorf disagrees with the new position on the merits, but says those critics who have voiced the view that Olson was not entitled to switch, or should have announced the switch in some other way, have missed the mark entirely.
Wednesday, May. 15, 2002

AMERICANS' FAITH IN THE SUPREME COURT--AND IN THE CONSTITUTION:
A NEW SURVEY SHOWS BUSH V. GORE'S EFFECT WAS LIMITED
FindLaw columnist and Columbia Law School Vice Dean and professor Michael Dorf examines some empirical evidence that conflicts with many commentators' prediction that the effect of the Bush v. Gore decision would be to shake the public's faith in the Supreme Court as an institution. Dorf also explains how this evidence might suggest a new way to resolve the classic problem of the tension between democratic majority rule that is effected through elective office, and the existence of an appointed Supreme Court that protects individual rights even in the face of contrary majority decisions.
Wednesday, May. 01, 2002

CAN THE LEGAL PROFESSION IMPROVE ITS IMAGE?:
AMERICANS BELIEVE LAWYERS TO BE NECESSARY BUT DISHONEST, SURVEY FINDS
FindLaw columnist and Columbia Law School Vice Dean and professor Michael Dorf comments upon the results of a survey that asked a sample of Americans whether they thought lawyers were honest or dishonest, harmful or helpful, and overcompensated or fairly paid. The survey invites interesting comparisons of perceptions of the relative honesty of politicians, police, and lawyers. Dorf explains why the results may be less disheartening to lawyers than they appear.
Wednesday, Apr. 17, 2002

HOW A RECENT, UNANIMOUS SUPREME COURT PUBLIC HOUSING DECISION "EXILES COMPASSION FROM THE PROVINCE OF JUDGING"
FindLaw columnist and Columbia Law School Vice Dean and professor Michael Dorf critiques a recent, unanimous Supreme Court decision. At issue is a statute that determines when public housing tenants can be evicted due to relatives' or guests' drug activities on their premises. HUD interpreted the statute to allow eviction even when the "tenant did not know, could not foresee, or could not control behavior by other occupants of the unit," and the Court agreed.
Wednesday, Apr. 03, 2002

ADMITTING ERROR AND ADMITTING FINGERPRINTS:
IS THERE A SOUND FACTUAL BASIS FOR THE LAW?
FindLaw columnist and Columbia Law School Vice Dean and law professor Michael Dorf discusses two interesting recent rulings by respected U.S. District Judge Louis Pollak. The first ruling found crime-scene fingerprint evidence insufficiently reliable to support an expert's testimony of a match; however, the second ruling reconsidered and reversed the first, based on additional expert testimony about fingerprint matching. Dorf also examines whether other rules of evidence and principles of law might, despite their lengthy pedigrees, nevertheless lack empirical foundation.
Wednesday, Mar. 20, 2002

WHY CONGRESSIONAL POWER TO DECLARE WAR DOES NOT PROVIDE AN EFFECTIVE CHECK ON THE PRESIDENT
FindLaw columnist and Columbia Law School Vice Dean and professor Michael Dorf discusses the Constitutional balance between the President's and Congress's war-related powers, and the effect of the War Powers Resolution, in which, in response to the Vietnam War, Congress tried to shift that balance.
Wednesday, Mar. 06, 2002

CAN ONE NATION ARREST THE FOREIGN MINISTER OF ANOTHER?
THE WORLD COURT SAYS NO
FindLaw columnist and Columbia Law School Vice Dean and professor Michael Dorf discusses an important recent ruling by the International Court of Justice. The case addresses the conflict between universal jurisdiction -- the asserted right of any nation-state to bring prosecutions in its domestic courts against persons charged with serious human rights violations anywhere in the world -- and diplomats' ability to conduct business without fear of arrest.
Wednesday, Feb. 20, 2002

A BRIEF HISTORY OF EXECUTIVE PRIVILEGE, FROM GEORGE WASHINGTON THROUGH DICK CHENEY
FindLaw columnist and Columbia Law School Vice Dean and professor Michael Dorf discusses the history of executive privilege, which is likely to be asserted by the Bush Administration in the GAO's lawsuit against Vice President Cheney. Dorf explains how executive privilege played a role in Aaron's Burr's trial, during which Chief Justice John Marshall issued a subpoena to President Thomas Jefferson, and in the Nixon tapes case decided by the Supreme Court. Dorf also explains why, ironically, the D.C. Circuit decision that allowed the proceedings of then-First Lady Hillary Clinton's health care task to be conducted secretly may also end up helping Cheney succeed in his dispute with the GAO.
Wednesday, Feb. 06, 2002

WHAT IS AN "UNLAWFUL COMBATANT," AND WHY IT MATTERS:
THE STATUS OF DETAINED AL QAEDA AND TALIBAN FIGHTERS
Dorf clarifies the legal status of the al Qaeda and Taliban detainees at Guantanamo Bay. Dorf explains the Geneva Convention test governing whether a detainee is a prisoner of war or an unlawful combatant; considers the consequences of each status for the detainees and the Administration; and discusses the two Supreme Court cases that create the basic legal framework within which the Administration must operate.
Wednesday, Jan. 23, 2002

THE LOWER COURTS WORK THROUGH A RECENT SUPREME COURT RULING DISTINGUISHING DISCRIMINATORY INTENTIONS FROM DISCRIMINATORY EFFECTS
FindLaw columnist and Columbia Law School Vice Dean and professor Michael Dorf discusses the lower court fallout from the Supreme Court's recent decision in Alexander v. Sandoval. As Dorf explains, lower courts have held after Sandoval that a plaintiff can sue under the Americans with Disabilities Act to challenge policies with a discriminatory effect on the handicapped, but a plaintiff cannot sue under a federal civil rights statute to challenge policies with a racially discriminatory effect. Dorf explains the reason for this discrepancy -- and suggests the remedy may be an amendment to the federal civil rights statute.
Wednesday, Jan. 09, 2002