A Viewer's Guide to the Ninth Circuit Oral Argument in the Proposition 8 Case
FindLaw columnist and Cornell law professor Michael Dorf comments on the recent oral argument, before a three-judge panel of the Ninth Circuit, in the case involving a challenge to Proposition 8, California's anti-same-sex-marriage ballot initiative. Dorf covers the issue of standing (that is, whether the initiative sponsors were the legally-appropriate persons to defend Prop. 8 and if not, who is); explains an interesting argument that was raised, as to whether taking away a right is different and perhaps worse than not granting it in the first place; and considers the initial issue that the panel faces as to what level of judicial scrutiny ought to be employed in evaluating Prop. 8. Finally, Dorf considers the role that specific prior precedents may play in the panel's decisionmaking.
Monday, December 13, 2010
What Hal Steinbrenner and Kim Jung-Il Have in Common: Lessons in Brinksmanship
FindLaw columnist and Cornell law professor Michael Dorf examines two very disparate situations and considers what they have in common, as a matter of strategic thinking. The first situation is the current, tense standoff between North Korea, on one hand, and South Korea and its allies, including the U.S., on the other. The second situation is the contract negotiation with longtime Yankees shortstop and team captain Derek Jeter. At first glance, the two situations could hardly seem more dissimilar. But, as Dorf explains, they share the vital element of brinksmanship, and the context of each may make it difficult for the parties to act rationally.
Monday, November 15, 2010
A Supreme Court Arbitration Case Poses a Difficult Question of Federalism
FindLaw columnist and Cornell law professor Michael Dorf comments on a tricky and important case in which the Supreme Court recently held oral argument. As Dorf explains, the case presents the question whether the Federal Arbitration Act forbids California from overriding a contractual waiver of the right to bring a class action. Accordingly, the ruling will be important for consumers and businesses nationwide. Dorf also notes that the deeper issues of federalism that the case raises (such as how to determine if a state has consistently applied its own law) are mirrored in important precedents -- including Bush v. Gore.
Monday, November 15, 2010
The Supreme Court Considers Free Speech and Violent Video Games: A First Step Into the Brave New World of Virtual Reality?
FindLaw columnist and Cornell law professor Michael Dorf comments on the violent-video-game case in which the Supreme Court will hear oral argument tomorrow, November 2d. Dorf explains the two specific questions on which the Court granted review, and the key First Amendment precedents that relate to them -- including one very recent precedent from earlier this year. He also raises larger questions, such as whether video games should be considered to be different from other media for First Amendment purposes, and whether the enhanced virtual reality experiences that we will likely see in the future -- which will create a much more real-seeming virtual reality -- will require a different constitutional analysis than the games at issue here.
Monday, November 1, 2010
The Supreme Court Grants Review in a Treaty Power Case
FindLaw columnist and Cornell law professor Michael Dorf comments on a treaty power case that the Supreme Court recently opted to review. As he explains, the case involves the question whether a criminal defendant has standing -- that is, the legal wherewithal -- to argue in court that Congress lacked the constitutional power to pass the law under which she is being prosecuted. Dorf notes that, in this instance, the answer is clear: The U.S. Court of Appeals for the Third Circuit wrongly held that the criminal defendant lacked standing. Dorf points out that, in light of the clarity here, it is puzzling why the Court granted certiorari, rather than summarily reversing the Third Circuit. He also notes that while the Court need not reach the separate treaty-power question that is also raised by the case, it is a fascinating question -- and he explains why.
Monday, October 18, 2010
Some Possible Hidden Complications of a Senate Proposal to Permit Retired Justices to Pinch-Hit for Their Recused Colleagues
FindLaw columnist and Cornell law professor Michael Dorf comments on Senator Patrick Leahy's proposal to allow retired Supreme Court Justices to come back to serve on the Court on a case-by-case basis, whenever a case would otherwise be decided by eight Justices, leading to the chance of a 4-4 split. (Such situations occur when a Justice recuses herself, and Justice Elena Kagan is likely to have to frequently recuse herself this Term because she previously served as Solicitor General of the United States, arguing cases before the Court.) Dorf contends that Leahy's idea is a good one, but points out that it carries some risks. Among them are the risks that the decision as to whether a retired justice would be called on, and the question of whom that retired justice would be, could both be ideologically-fraught. However, as Dorf explains, those risks could be addressed with the right system.
Wednesday, October 6, 2010
Arlen Specter's Swan Song: Mandating Cameras in the Supreme Court
FindLaw columnist and Cornell law professor Michael Dorf comments on a recent decision by a New York State trial judge. As Dorf explains, the decision was based on the U.S. Supreme Court case of Batson v. Kentucky, which held that when trial attorneys use their peremptory challenges to exclude potential jurors, they cannot do so in a discriminatory way. It has long been clear that Batson applies when peremptory challenges are based on race or sex, but in this case, as Dorf notes, the judge ruled that Batson applied because the attorney at issue had been excluding hunters from the jury. Dorf contends that, while this extension of Batson may seem far-fetched, the judge's ruling may actually have been the correct one, for hunters are exercising their constitutional right to bear arms.
Monday, September 20, 2010
Are Hunters a Constitutionally-Protected Group? A New York Judge Says Yes
FindLaw columnist and Cornell law professor Michael Dorf comments on a recent decision by a New York State trial judge. As Dorf explains, the decision was based on the U.S. Supreme Court case of Batson v. Kentucky, which held that when trial attorneys use their peremptory challenges to exclude potential jurors, they cannot do so in a discriminatory way. It has long been clear that Batson applies when peremptory challenges are based on race or sex, but in this case, as Dorf notes, the judge ruled that Batson applied because the attorney at issue had been excluding hunters from the jury. Dorf contends that, while this extension of Batson may seem far-fetched, the judge's ruling may actually have been the correct one, for hunters are exercising their constitutional right to bear arms.
Thursday, September 9, 2010
Four Secrets to Law School Success
FindLaw columnist and Cornell law professor Michael Dorf offers law students four key pieces of advice that will help them in succeeding in law school. Building upon his prior columns regarding the first-year curriculum, and on how to think like a lawyer, Dorf now focuses upon some important distinctions that law students should keep in mind. Among these are the distinctions between hard and easy legal questions; between good and bad confusion when it comes to studying the law; and between a deconstructive classroom discussion, and the constructive process of crafting an exam answer. Dorf also advises students to have fun in law school, both inside and outside the classroom.
Monday August 23, 2010
A Federal Judge Strikes Down California’s Proposition 8: Will the Ruling Ultimately Advance or Retard Civil Rights for LGBT Americans?
FindLaw columnist and Cornell law professor Michael Dorf comments on the recent, headline-making decision by U.S. District Judge Vaughn Walker to strike down California's anti-gay-marriage Proposition 8 -- on the ground that the Proposition violates the U.S. Constitution in two separate respects. Dorf discusses what the ruling's larger implications may be; considers whether the U.S. Supreme Court is ready to recognize a same-sex marriage right; assesses the risk of backlash from the decision; and analyzes whether the "Society is not ready" argument has any relevance to the legal issues the case raised. In addition, Dorf questions whether Prop 8's sponsors even had the legal right to be its sole defenders in federal court in the first place.
Monday August 9, 2010
Senator Lindsey Graham Puts Ideology Aside to Vote for Elena Kagan: His Stand is Honorable, But Is It Constitutionally-Required?
FindLaw columnist and Cornell law professor Michael Dorf comments on Republican Senator Lindsey Graham's recent remarks regarding his vote to send Elena Kagan's Supreme Court nomination from the Senate Judiciary Committee to the full Senate. As Dorf explains, Graham said that he was satisfied with Kagan’s professional qualifications, her character, and her understanding of the difference between law and politics. Graham also said that he disagreed with Kagan’s judicial philosophy, but that he recognized that her views were mainstream among Democrats. Given how Graham felt about Kagan, was he duty-bound, under the Constitution, to vote as he did -- as Graham himself suggested? Dorf suggests that the answer is actually "No" -- and explains the complex, interesting constitutional history that informs the analysis of this issue.
Monday July 26, 2010
Cases on Arizona's Immigrant-Investigation Law and the Defense of Marriage Act Show the Cross-Ideological Interplay Between Federalism and Individual Rights
FindLaw columnist and Cornell law professor Michael Dorf comments on recent two federal cases that address disparate subject matter -- immigrant rights, and same-sex marriage, respectively -- but both shed light on issues of federalism and individual rights. As Dorf explains, these two cases illustrate how federalism and rights concerns do not always line up the same way ideologically, nor do they always align with the same political party. In the immigrants' rights case -- the federal government's suit targeting Arizona's controversial law on immigration -- the federal government is taking a liberal position. But in the same-sex marriage case, the federal government is taking a conservative position by advocating against the recognition of state-authorized same-sex marriage for federal-law and federal-benefits purposes. Dorf explains and explores the interplay of federal and state law -- and the question whether federal law preempts (that is, trumps) state law in each case.
Monday July 12, 2010
The Potentially Far-Reaching Implications of the Supreme Court's Ruling that the Second Amendment Binds the States
FindLaw columnist and Cornell law professor Michael Dorf weighs in on the Monday, June 28th, Supreme Court ruling holding that the Second Amendment's right to bear arms applies against the States, and not only the federal government, and that, therefore, the Second Amendment limits States' and localities' ability to ban handguns. The Court's ruling builds on its prior ruling that the Second Amendment limits the District of Columbia's ability to ban handguns. As Dorf explains, in this case, the Court had to confront not only the issue of whether the right to bear arms -- and specifically, a right to keep a gun for the defense of one's self and family in one's home -- applies against the States, but also what the constitutional basis for that holding is: the Due Process Clause, or the Privileges or Immunities Clause? Dorf also considers whether this Monday's decision indicates that the Court is open to incorporating -- that is, applying -- more, or even all, of the Bill of Rights to the States, and not simply to the federal government.
Tuesday June 29, 2010
What's in Store for Elena Kagan? An Imagined Confirmation Hearing
What can we expect from this month's upcoming confirmation hearings for Supreme Court nominee, and current Solicitor General, Elena Kagan? FindLaw columnist and Cornell law professor Michael Dorf offers a humorous and telling account of how he imagines the confirmation hearings might go -- especially if Kagan and her questioners were much more candid than they are likely to be in reality.
Tuesday June 15, 2010
A Unanimous Supreme Court Decision on the Foreign Sovereign Immunities Act Highlights Ongoing Divisions Over Legislative History
FindLaw columnist and Cornell law professor Michael Dorf comments on this week's ruling in Samantar v. Yousuf, a human-rights case that was brought against the former Vice-President, Defense Minister, and Prime Minister of Somalia -- who then claimed immunity under the Foreign Sovereign Immunities Act. As Dorf explains, the Supreme Court was unanimous in denying immunity, but splintered as to how, precisely, to read the Act. Dorf discusses the different perspectives on statutory interpretation -- textualist and purposivist -- that informed the Justices' views.
Wednesday June 2, 2010
The Supreme Court's Decision About Sexually Dangerous Federal Prisoners: Could It Hold the Key to the Constitutionality of the Individual Mandate to Buy Health Insurance?
FindLaw columnist and Cornell law professor Michael Dorf offers an interesting take on the Supreme Court's decision, issued this week, regarding the civil confinement of federal prisoners who have served their criminal sentences, yet are found to be mentally ill and "sexually dangerous." Dorf explains the basis for the Court majority's holding allowing the civil confinement of such criminals, and also notes the basis for the dissent. In addition, he connects the issues the case raises to the issues raised by those who object to the federal government's imposing a mandate on individuals to purchase health insurance -- and explains the role such issues might play in Supreme Court nominee Elena Kagan's confirmation hearing, and how Kagan might best respond.
Wednesday May 19, 2010
The New Arizona Immigration Law Raises an Old Question: What is "Reasonable Suspicion"?
FindLaw columnist and Cornell law professor Michael Dorf comments on a provision of Arizona's highly controversial new immigration law -- requiring a law enforcement official who possesses "reasonable suspicion" that a person with whom he has lawfully come in contact may be an illegal immigrant to seek to ascertain that person's immigration status. Drawing on Supreme Court precedent, Dorf explains how "reasonable suspicion" has been defined. He also comments on the law's requirement that the basis for the suspicion must be "articulable" -- that is, more than just an unexplainable hunch. Dorf notes that in some instances, hunches have been shown to be more accurate than an analysis of articulable factors -- but adds that there may still be good reason for courts to require an articulable basis for suspicion before the legal requirement can be fulfilled.
Monday May 3, 2010
Becoming Justice Stevens: How and Why Some Justices Evolve
FindLaw columnist and Cornell law professor Michael Dorf reflects on the career of retiring U.S. Supreme Court Justice John Paul Stevens. In particular, Dorf focuses on Stevens's career on the Court as a case study of how Justices evolve during their tenure. Dorf tackles questions such as why some Justices -- including Stevens, who moved toward more liberal stances on topics such as the death penalty and affirmative action -- tend to move leftward during their years on the Court. He also notes examples of other Justices whose views changed in important ways, and raises the question why Justices often seem to become more liberal: Is the explanation changing social attitudes, a liberal bias in American law, and/or another factor or factors?
Wednesday April 21, 2010
A Federal Judge Rules Against the Government in a Warrantless Wiretapping Suit
FindLaw columnist and Cornell law professor Michael Dorf comments on a recent court decision regarding warrantless wiretapping and the Foreign Intelligence Surveillance Act (FISA). Dorf focuses, in particular, on comparing and contrasting the Obama Administration's stance on this issue with the Bush Administration's prior stance -- pointing out that the stances are much more similar than some might have expected or predicted. He evaluates some factors that might be thought to explain the similarity -- including the fact that the plaintiff organization in the wiretapping case at issue has since been dissolved due to its alleged support for Al Qaeda; the political cost of allowing courts to reject or diminish the state secrets privilege; and the differing institutional dynamics that may change the views of a Senator who later becomes President.
Monday April 1, 2010
What Weight Should Congressional Precedents Have in Constitutional Interpretation? Lessons of the "Slaughter Rule" Debate
FindLaw columnist and Cornell law professor Michael Dorf discusses the recently controversial "Slaughter Rule," which the Democrats considered using in order to get healthcare legislation passed. Dorf explains how the rule would have been applied: First, the House would have enacted a "self-executing rule" including a provision deeming the Senate bill to be passed upon the subsequent House passage of the reconciliation bill. Second, the House would have passed the reconciliation bill and -- as a result of the self-executing rule -- it would have been passing the original Senate bill as well. Though the debate over the Slaughter Rule is now moot, Dorf points out that a larger question that this debate raised is not: Should longstanding Congressional practice matter when it comes to judging constitutionality? Republicans contended the Slaughter Rule was unconstitutional; Democrats pointed out in response that it had been use since the 1930s.
Wednesday March 24, 2010
Justice Scalia Suggests that the Legal Academy is Out of Touch: Is He Right?
During a recent Supreme Court oral argument, Justice Antonin Scalia humorously suggested that an attorney's argument might better qualify him for a place on a law school faculty, than help him prevail before the Court. But is the legal academy really so irrelevant to the Court's decisionmaking as Scalia implied? FindLaw columnist and Cornell law professor Michael Dorf argues that the answer is clearly "No." Dorf points to changes in tenure and hiring practices that have increased law professors' expertise in related subjects such as Economics and History, and notes that, even in the particular case where Scalia mocked the attorney, law professors' work still proved to be directly on point.
Wednesday March 8, 2010
Nullification, Secession, and Guns Show Constitutional Meaning is Never Settled
FindLaw columnist and Cornell law professor Michael Dorf offers a number of case studies that show that the meaning of our Constitution can change markedly over time. Dorf begins by considering the contention -- made by some in the Tea Party movement -- that the federal government cannot constitutionally impose a mandate on individuals to purchase health insurance. Dorf points out that two centuries of precedent support the constitutionality of such a mandate, but also notes that if constitutional interpretation on this point were to change drastically, it would not be the first time in history that this had happened. He then follows up with particular examples of marked changes, over American history, in constitutional interpretation.
Wednesday February 24, 2010
Clarence Thomas, Sonia Sotomayor, and the Noble Lie
FindLaw columnist and Cornell law professor Michael Dorf discusses Justice Clarence Thomas's recent speech at the University of Florida law school, focusing in particular on Thomas's views on the Court's decisionmaking process and the types of criticisms of the Justices' approaches that may be accurate, versus those that are off-base. After examining Justice Thomas's perspective, Dorf puts forth his own view: that while the Justices' interpretive methodology surely matters, it is impossible to discount the key -- though sometimes subconscious -- role that their ideology also plays.
Wednesday February 10, 2010
The Supreme Court Rejects a Limit on Corporate-Funded Campaign Speech
FindLaw columnist and Cornell law professor Michael Dorf analyzes the Supreme C0urt's recent -- and highly significant -- Citizens United decision, which invalidated a provision of federal law that had importantly limited corporations' ability to fund campaign speech. Dorf argues that the decision is especially notable for what it says about the Court's placid acceptance of the often disturbing ways in which money influences American politics. In addition to offering thorough commentary on the decision, Dorf also assesses its likely impact. He concludes that the decision probably should not be read to foreshadow the invalidation of all campaign-finance regulation, but predicts that it may be a significant step toward more permissive rules in this area.
Monday January 25, 2010
How to Think About the Tiny Cancer Risk Posed by Airport Scanners
FindLaw columnist and Cornell law professor Michael Dorf comments on the question of how we should weigh the tiny risk of cancer caused by full-body airport scanners -- which have increasingly been demanded after the foiled Christmas Day terrorist bombing attempt on an airliner headed to Detroit -- against the scanners' potential preventive and deterrent effect. Citing specific cancer statistics, Dorf quantifies the radiation risk. Then, he considers the extent to which such scanners will truly prevent or deter terrorist attacks -- rather than, for example, displacing them so that they focus on targets other than airplanes. He also raises questions such as, Could the money that would be devoted to the scanners save more lives if spent elsewhere? And, should we take into account, as a benefit that the scanners provide, their ability to ensure that travelers experience less fear when they fly -- or, as a cost of the scanners' use, travelers' experiencing what the ACLU has deemed a "virtual strip search"?
Wednesday January 13, 2010
The Supreme Court Reviews a Conflict Between Equality and Freedom of Association
FindLaw columnist and Cornell law professor Michael Dorf discusses the difficult constitutional questions that arise when an organization claims that it needs to limit its membership, in order to be consistent about the message it seeks to send. In particular, in the Supreme Court case that Dorf covers, the branch of the Christian Legal Society (CLS) at the University of California, Hastings College of Law claims that its anti-gay tenets should allow it to exclude gays, yet still received funding from the law school, as other student groups do. Dorf explains the relevant Supreme Court precedents on the right to "expressive association" -- a First Amendment-based right that the Court has ruled does, under some circumstances, allow a group to exclude classes of persons from its membership in order to send its message. He also raises an interesting compromise solution to the dispute, but notes that the Court is unlikely to adopt the compromise.
Monday December 14, 2009
A Supreme Court Ruling Means Prisoner Abuse Photos Stay Secret
FindLaw columnist and Cornell law professor Michael Dorf comments upon the Supreme Court's ruling -- issued Monday, November 30 -- regarding 21 photographs of abusive treatment of detainees in Afghanistan and Iraq. As Dorf explains, although technically the ruling simply tells the U.S. Court of Appeals for the Second Circuit to reconsider its decision to order the photographs' release, practically the decision is very likely to ensure that the photographs never see the light of day. Dorf contends that the Court's decision to effectively dispense with the Freedom of Information Act's requirement of national security classifications means that we will never know if the decision regarding these particular photos was the correct one, in that security concerns truly outweighed the public's right to know.
Wednesday, December 2, 2009
Is There a Constitutional Right to Sign a Petition Anonymously?
FindLaw columnist and Cornell law professor Michael Dorf comments on a case from the U.S. Court of Appeals for the Ninth Circuit, which raises the question whether the Constitution protects the right to keep one's name secret from others when one signs a petition relating to a political issue. The case has already been to the Supreme Court once, and now, review is again being sought. As Dorf explains, the case arose with respect to signatures on petitions by those who support a referendum to repeal Washington's "everything but marriage" act. (As its nickname suggested, the act allows gay couples to gain all the rights incident to marriage, without using the term "marriage" itself.) Do these signatories have a right not to have their names and address revealed, even though Washington's Public Records Act says this information can be made available to the public? Dorf notes that, as a matter of constitutional law, the question is surprisingly difficult, and explains why.
Monday, November 16, 2009
The Constitutionality of Health Insurance Reform, Part II: Congressional Power
In the second in a two-part series of columns rebutting common constitutional objections to health insurance reform, FindLaw columnist and Cornell law professor Michael Dorf takes on the objection that contends that the federal government lacks the authority under the Constitution to mandate individuals to purchase health insurance and to penalize those who do not comply. Dorf analyzes key Supreme Court Commerce Clause and taxing power precedents, and concludes that Congress does have the necessary power under the Constitution-- although he notes that, of course, Members of Congress are free to choose to vote against the mandate on the ground that they would prefer, as a policy matter, to leave health insurance decisions to states or to individuals themselves.
Monday, November 2, 2009
The Constitutionality of Health Insurance Reform, Part I: The Misguided Libertarian Objection
In the first in a two-part series of columns rebutting constitutional objections to health insurance reform, FindLaw columnist and Cornell law professor Michael Dorf takes on the objection that the "individual mandate" -- which would require Americans to either buy health insurance or face a financial penalty -- is unconstitutional. Dorf begins by explaining why, once insurers are barred from denying coverage based on pre-existing conditions, the individual mandate will be vital. He then focuses on a paper by libertarian Michael Cannon as a good statement of the objection to the individual mandate, and argues that Cannon's constitutional arguments do not ultimately hold water. In particular, Dorf cites a list of affirmative obligations placed by government upon individuals that have never raised, and should not raise, doubts about their constitutionality.
Wednesday, October 21, 2009
Does the Second Amendment Bind the States?
FindLaw columnist and Cornell law professor Michael Dorf discusses the complex, interesting law and precedent surrounding the issue of how, and to what extent, the rights enumerated in the Constitution's Bill of Rights apply -- or, in technical terms, are "incorporated" -- not just against the federal government, but also against the states. In particular, Dorf focuses on an upcoming Supreme Court case that raises the question whether the Second Amendment's right to bear arms applies against the states and their subdivisions. Since the Court recently struck down the District of Columbia's handgun ban on Second Amendment grounds, the Court's answer to the incorporation question in the Second Amendment context may affect the fate of state and local gun laws.
Wednesday, October 6, 2009
Football and Federalism: A Case Centers on NFL Drug Testing
FindLaw columnist and Cornell law professor Michael Dorf covers a recent decision by a panel of the U.S. Court of Appeals for the Eighth Circuit that raises interesting questions of federalism. In the decision, the three-judge panel allowed Minnesota Vikings players Kevin Williams and Pat Williams to challenge the league’s drug-testing regime under Minnesota law, despite contrary provisions in the collective bargaining agreement between the league and the players' union. Dorf notes that the case is interesting because, had the decision come out the other way, it would have substantially undercut American federalism, by effectively forbidding states from applying their laws to protect or regulate NFL players.
Wednesday, September 23, 2009
Was the Deal Capping Drug Cost Savings Inappropriate?
FindLaw columnist and Cornell law professor Michael Dorf discusses the following deal, which recently was made by the Obama Administration: The Pharmaceutical Research and Manufacturers of America (PhRMA) has agreed that it will give $80 billion worth of discounts to patients over ten years, and spend $150 million for advertising in support of the President’s health care plan. In exchange, the White House has agreed that savings from drug discounts will be capped at the $80 billion; the government will not use its purchasing power to negotiate deeper price cuts. Dorf contends that there are problems with the deal -- but the involvement of industry is not among them. Instead, Dorf says, it is the free speech implications of the bill that should give us pause, for even if the deal does not technically violate the letter of the First Amendment, it does violate the Amendment's spirit.
Wednesday, September 9, 2009
Did the Supreme Court Recognize an Innocent Person's Right Not to Be Executed?
FindLaw columnist and Cornell law professor Michael Dorf comments on a recent, high-profile decision by the Supreme Court to direct that a hearing be held in the case of death row inmate Troy Davis, who has put forward strong evidence that he is innocent of the crime for which he was convicted and sentenced to death. Dorf clarifies the ins and outs of the Court's habeas corpus jurisdiction, which it exercised in this case; and details the split among the Justices regarding whether it is unconstitutional to execute someone for a crime he did not, in fact, commit but for which he was properly convicted and sentenced.
Wednesday, August 26, 2009
Should the Supreme Court Alter Its Approach to Campaign Finance Regulation?
FindLaw columnist and Cornell law professor Michael Dorf analyzes the legal doctrines in play in Citizens United v. Federal Election Comm'n, a case in which the
Supreme Court will hold a special oral argument on September 9. As Dorf explains, while the case directly concerns the question whether a feature-length film
entitled "Hillary: The Movie" falls under campaign finance reform laws, it also is likely to raise key questions about First Amendment-based limitations upon
campaign finance legislation. Indeed, as Dorf notes, the case may prove to be a forum for the Court to significantly change doctrine in this area -- but not
necessarily in a way that would be optimal.
Wednesday, August 12, 2009
Should Congress Change the Standard for Dismissing a Federal Lawsuit?
In the wake of a recent Supreme Court decision that importantly changed federal pleading standards, FindLaw columnist and Cornell law professor Michael Dorf argues that Congress should seriously consider revising those standards to once again more closely track the "notice" pleading system set forth in the Federal Rules of Civil Procedure. Dorf details both how the Court's decision transformed pleading standards, and also what a statute that would effectively supersede the Court's decision might look like. He also contends that his own proposed statute -- available via a link to his blog -- would be preferable, in important ways, to the current proposal being circulated by Senator Specter in Congress.
Wednesday, July 29, 2009
Judge Sotomayor Proves Insufficiently Activist for Some Republican Senators
FindLaw columnist and Cornell law professor Michael Dorf comments on the ongoing confirmation hearings of Obama Supreme Court nominee Sonia Sotomayor, previously a judge on the U.S. Court of Appeals for the Second Circuit. Dorf notes that Sotomayor's answers, thus far, have shown her to be a very strong believer in precedent. As a result, Dorf notes, the hearings have ironically caused Republican Senators to ask why Sotomayor is unwilling to disregard precedent on conservative issues such as applying the Second Amendment to the states, and claims of "reverse" discrimination against white employees. Dorf concludes that Sotomayor's Republican questioners have scored few points -- for attacks on her speeches will be dwarfed by the weight of the numerous judicial decisions she has authored or joined, and attacks on her judicial philosophy have only revealed her tendency to hew to precedent.
Wednesday, July 15, 2009
The Supreme Court Decides the New Haven Firefighter Case
FindLaw columnist and Cornell law professor Michael Dorf discusses the controversial recent Supreme Court decision that arose from a New Haven fire department's decision not to use certain test results for promotions when it discovered that the results would not lead to a single African-American firefighter's promotion. Dorf covers three interesting questions raised by the decision: In light of the fact that the Court announced a new standard, why didn't it remand for lower federal courts to apply that standard? Can Congress, if it chooses, overturn the Court's result? And, how might the decision affect the confirmation hearings of Supreme Court nominee Sonia Sotomayor, who was one of three federal appellate judges who joined the decision that the Court overturned?
Wednesday, July 1, 2009
The Obama Administration Defends the Defense of Marriage Act
FindLaw columnist and Cornell law professor Michael Dorf comments on the controversy over the Obama Administration's decision to argue that the federal Defense of Marriage Act (DOMA) is constitutional -- despite President Obama's promise, when he was running for election, to sign (and not veto) future legislation repealing DOMA. Dorf argues that the current Obama Administration litigation stance on DOMA is not necessarily directly inconsistent with the candidate's promise, for President Obama could consistently believe DOMA to be constitutional, yet also believe that it should be repealed. However, Dorf points to troubling particulars of the Obama Administration's litigation stance that, he argues, betray the spirit of Obama's campaign promise.
Wednesday, June 17, 2009
What is Sonia Sotomayor's Judicial Philosophy?
FindLaw columnist and Cornell law professor Michael Dorf identifies the judicial philosophy of Supreme Court nominee Sonia Sotomayor as legal realism. Dorf explains what embracing a legal realist philosophy entails, and contrasts Sotomayor's approach to the formalist philosophy embraced by Chief Justice John Roberts and Justice Clarence Thomas. He also contends that Sotomayor's judicial philosophy is the central fact into which the Senate Judicial Committee should -- and, given the ground rules of confirmation hearings, can -- inquire.
Wednesday, June 3, 2009
The Supreme Court Dismisses a 9/11 Detainee's Civil Lawsuit
FindLaw columnist and Cornell law professor Michael Dorf discusses a very significant civil procedure decision that the Supreme Court handed down this week. The decision, Ashcroft v. Iqbal, concerns a complaint filed by a man who alleges that, after 9/11, he was brutally abused while in immigration detention. As Dorf explains, a majority of the Supreme Court held that the man's suit could go forward as against his jailors, but not as against the then-Attorney General or then-FBI Director. Dorf notes two important aspects of the decision: its effect of creating great uncertainty as to how fully-particularized allegations in a civil complaint must be; and its seeming assumption that -- despite famous counterexamples -- Bush Administration wrongdoing must have been the work of a few bad apples, not the result of a conscious policy.
Wednesday, May 20, 2009
The Supreme Court Upholds the FCC's Policy on "Fleeting Expletives"
FindLaw columnist and Cornell law professor Michael Dorf discusses the Supreme Court's recent, 5-4 decision upholding the Federal Communications Commission's position that even "fleeting expletives" -- that is, expletives used as intensifiers, and not to refer to excretion or to sex -- are banned from the airwaves and if used, can result in a fine. Dorf explains the reasons why the case divided the Court, and explores an interesting aspect of Justice Thomas's view. He also offers some possible solutions to a puzzle: Why did the Court use the terms "S-Word" and "F-Word" when it had used the actual expletives at issue -- "shit" and "fuck" -- in prior opinions? Did the arrival of Chief Justice Roberts trigger the change? And, did the use of the euphemisms strengthen the majority opinion's logic, or undermine it?
Monday, May 4, 2009
Why President Obama Should Consider Pardoning those Who Designed, Authorized, and Carried Out the Bush Policy of Abusing Detainees
FindLaw columnist and Cornell law professor Michael Dorf discusses a number of questions that are especially timely in light of the recent release of four memos by Bush Administration attorneys that authorized methods of interrogation which many eminent legal experts believe constituted torture under the applicable law. These questions include: Was there any plausible legal basis for the memos' conclusions? Should the Obama Administration prosecute those who designed, authorized, and/or carried out the policies to which the memos gave their blessing? And, might pardoning those who were inculpated in these practices and policies actually be a better solution than simple non-prosecution, in that pardons would at least admit that what was done was criminal? Dorf argues that President Obama should seriously consider the pardon option.
Wednesday, April 22, 2009
Why the Supreme Court Decision Upholding Cost-Benefit Analysis Under the Clean Water Act Should Not be Used to Discredit Best-Practice Standards
FindLaw columnist and Cornell law professor Michael Dorf offers an in-depth look at a recent, important Supreme Court decision at the intersection of environmental law and administrative law. Dorf explains three types of standards that regulators may use when evaluating particular technologies (design standards, performance standards, and best-practice standards); their pros and cons; and how they can be combined. He also comments on how the Justices' ideologies may have played a role in the way they split their votes in the case.
Monday, April 6, 2009
What Constitutional Rights Should Schoolchildren Have? Two Recent Cases Underscore the Ways in Which Children Are Not Simply Miniature Adults
FindLaw columnist and Cornell law professor Michael Dorf examines the constitutional rights of schoolchildren, focusing on a federal appellate case in which the Supreme Court recently granted certiorari, and another in which the Court is also likely to grant review. The cases concern, respectively, schoolchildren's rights against strip-searches seeking contraband, and schoolchildren's own rights not to recite the Pledge of Allegiance (separate from their parents' rights not to have their children be required to do so). One of Dorf's key themes is that it is wrong to reflexively grant children lesser constitutional rights than we grant adults; instead, Dorf contends, children should enjoy different constitutional rights than adults enjoy, because children's rights should be tailored to their status and situation.
Monday, March 23, 2009
Do the Supreme Court's Current Justices Hold Sincere Views About States' Rights? A Failure-to-Warn Case Reveals an Apparent Inconsistency
FindLaw columnist and Cornell law professor Michael Dorf examines some evidence -- including the Supreme Court's recent decision in Wyeth v. Levine, a major case on whether federal law preempts state law -- that may indicate that the Justices are ultimately driven by results, not legal reasoning. Dorf's argument is based in part on two observations: First, the Justices who tend to be most sympathetic to states’ rights claims when the issue is the scope of congressional power tend also to favor a broad view of federal preemption, even though preemption displaces state law with federal law. Second, the Justices who take a broad view of congressional power tend to take a narrow view of preemption. In light of these inconsistencies, he asks, is the best explanation.
Monday, March 9, 2009
Can Anyone Protect Clients From Bad Lawyering? Some Lessons of a Recent Appeals Court Case
FindLaw columnist and Cornell law professor Michael Dorf proposes some interesting new approaches to the question of how clients can tell if their lawyers are good or bad, and thus protect themselves from malpractice or, short of malpractice, poor lawyering. Dorf begins by discussing a recent case in which Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit castigated two attorneys who decided to file an appeal in a criminal case even though it was likely to lengthen -- not shorten -- their clients' sentences. He then goes on to consider the problems with the billable-hour and contingency-fee systems, respectively and to suggest borrowing from sports' teams "outcome measures" to improve our ability to assess lawyer quality -- on the theory that just as there are sophisticated ways to measure whether a player is truly earning his or her salary, so too there can be more sophisticated ways to assess if a lawyer is truly earning his or her fee.
Monday, Feb 23, 2009
When is Special Treatment Unequal Treatment? Reflections on Tim Geithner, Michael Phelps, and Rod Blagojevich
FindLaw columnist and Cornell law professor Michael Dorf examines whether recent events involving three famous people's acts truly represent instances of unequal treatment for them, as compared to the treatment ordinary people would have received, as some have claimed.
Specifically, Dorf analyzes the controversies over Treasury Secretary Tim Geithner's admitted nonpayment of taxes, Olympic swimmer Michael Phelps's admitted use of marijuana, and former Illinois Governor Rod Blagojevich's alleged scheme to trade money for political favors, which led to his impeachment. Dorf cautions that, in comparing the acts and fates of prominent persons and ordinary persons, it is important to take not only the context of the acts, but also the context of the lives as a whole into account.
Monday, Feb 9, 2009
When Did Barack Obama Officially Become Eligible to Act as President? What the Oath "Do-Over" Reveals About Legal Interpretation
FindLaw columnist and Cornell law professor Michael Dorf discusses the now-famous do-over of the Presidential oath that was taken by Barack Obama, and administered by the Supreme Court's Chief Justice, John Roberts. Dorf addresses the question of the validity of the presidential actions Obama took before the do-over -- specifically, the signing of two executive orders. In addition, he considers the deeper meaning of the oath controversy, as a window into the interpretive difference between textualists, who focus on the letter of the law, and those who look to the law's (or in this case, the oath's) spirit and purpose.
Monday, Jan. 26, 2009
All the President’s IMs: Are Federal Record-keeping Laws Out of Step With Modern Communications?
FindLaw columnist and Cornell law professor Michael Dorf discusses the roots of President-elect Obama's well-known reluctance to give up his Blackberry when he takes office. In particular, Dorf describes the 1978 law -- the Presidential Records Act (PRA) -- that has caused Obama's advisors to strongly recommend that he do so. Dorf notes that, even apart from the PRA, security concerns may counsel against Obama's keeping his Blackberry, and considers whether, if those security concerns could be addressed, the PRA should be amended to exempt certain electronic communications. Dorf also notes a complicating factor here: Executive orders by former Presidents Reagan and George W. Bush purport to limit the PRA's scope, but Obama may well reverse or alter those orders -- thus putting a broader set of his own Blackberry communications in play.
Monday, Jan. 12, 2009
The Era of Big Government is Starting Over: Will the Obama Administration Transform American Constitutionalism in the Way that FDR Did?
FindLaw columnist and Cornell law professor Michael Dorf considers whether President Obama will effect the same kind of constitutional transformation that FDR did with his New Deal. Dorf begins by reviewing exactly how FDR ended up transforming constitutional law, by lessening the importance of states' rights and economic rights, and greatly increasing administrative agencies' role. He then goes on to sketch what the Obama Administration's constitutional revolution might look like, covering topics such as international action, the public/private distinction, and the possible creation of new rights.
Tuesday, Dec. 30, 2008
What the Alleged Misdeeds of Rod Blagojevich Teach Us About Lawful Politics
FindLaw columnist and Cornell law professor Michael Dorf makes an interesting argument: While the allegations against Illinois Governor Rod Blagojevich describe contemptible and illegal behavior, Dorf contends, it is also behavior that is not as anomalous, in our electoral system, as we might like to believe. With respect to each of the following three allegations, Dorf makes a parallel to other disturbing, yet perfectly legal, behavior: The allegation that Blagojevich tried to penalize Chicago Tribune journalists for negative coverage and effectively pay for positive coverage; the allegation that Blagojevich extorted contributions in exchange for government favors; and the allegation that Blagojevich tried to obtain benefits for himself or his wife in exchange for appointing a particular person to fill President-elect Obama's now-vacant Senate seat. Dorf thus contends that Blagojevich's alleged misdeeds touch on much deeper issues in American politics.
Monday, Dec. 15, 2008
Does the Fourth Amendment Follow the Flag? In an Understandable but Problematic Ruling in a Terrorism Case, A Federal Appeals Court Says Yes, But Only at a Distance
FindLaw columnist and Cornell law professor Michael Dorf comments on a recent -- and potentially very significant -- decision by the U.S. Court of Appeals for the Second Circuit. As Dorf explains, the Second Circuit rejected U.S. citizen Wadih El-Hage's Fourth Amendment challenges to warrantless searches of his home in Kenya and warrantless electronic surveillance of his phone conversations there. Because the searches were conducted by U.S. agents (with the cooperation of local governments), El-Hage argued that the Fourth Amendment applied. The Second Circuit ruled against him -- but was the ruling motivated by constitutional law, or fear of releasing El-Hage, who was convicted of involvement with the 1998 Al Qaeda bombings of embassies in Kenya and Tanzania? Dorf suggests the ruling -- while understandable in light of the context -- is problematic on the legal merits.
Wednesday, Dec. 03, 2008
Why the Obama Transition Team's Intrusive Questionnaire May Exclude Some of the Best Job Candidates, or Deter Them From Applying
FindLaw columnist and Cornell law professor Michael Dorf comments on the broad questionnaire President-elect Barack Obama's transition team is requiring potential staffers to fill out. Citing particular questions that are troubling, Dorf contends that some of the information sought is not properly relevant to an applicant's qualifications for an Obama Administration job, and expresses concern that some of the questions will either cause well-qualified applicants to be screened out, or deter well-qualified applicants from seeking out jobs with the Administration. At a time when the country truly needs the best and the brightest, Dorf argues, minor personal peccadilloes ought not to be the focus; finding the best possible person for the job should.
Monday, Nov. 17, 2008
What Barack Obama's Victory Means, and How It Should be Used
FindLaw columnist and Cornell law professor Michael Dorf comments on how Barack Obama, as president, should build on his historic election victory, suggesting several policy options that Obama should pursue. First, Dorf argues that Obama should use government spending -- especially on aging infrastructure and public education -- as part of an economic stimulus plan that will also be bolstered by tax cuts for the middle class. Second, Dorf contends that Obama is right to counsel a withdrawal from Iraq, but may be wrong in offering a companion plan to bolster troops in Afghanistan, which is notoriously difficult for world powers to attempt to occupy. Third, Dorf suggests that Obama should offer former rival John McCain an administration position -- perhaps in an area relating to campaign finance, the treatment of detainees, or global warming, all topics on which McCain has expressed moderate views.
Wednesday, Nov. 05, 2008
The Supreme Court Puts Ideology Aside in Deciding a Small But Important Ohio Election Case that Could Affect the 2008 Presidential Election
FindLaw columnist and Cornell law professor Michael Dorf explains and analyzes the Supreme Court's recent opinion resolving a voting controversy in a key swing state, Ohio. As Dorf explains, the practical effect of the Court's decision was to eliminate a risk that thousands of newly-registered Ohio voters would be purged from the rolls. Because those voters are predominantly Democrats, the decision's effect was therefore to favor Obama. Dorf praises the Court's conservative Justices for staying consistent with their prior decisions, rather than departing from them to favor McCain. At the same time, he points out that only after Bush v. Gore is this kind of nonpartisan hewing to precedent in a close election seen as cause for celebration, rather than par for the course.
Tuesday, Oct. 21, 2008
Why the Constitution Neither Protects Nor Forbids Tax Subsidies for Politicking from the Pulpit, And Why Both Liberals and Conservatives May be on the Wrong Side of this Issue
FindLaw columnist and Cornell law professor Michael Dorf discusses a recent, controversial movement under which a number of pastors have chosen to violate a longstanding federal law, the Johnson Amendment. The Amendment states that churches and other nonprofits cannot both claim a tax exemption, and also endorse political candidates. Dorf considers and rejects various arguments suggesting that the Amendment is unconstitutional -- as a violation of the right to freedom of speech and/or free exercise of religion, or as clashing with the Establishment Clause by entangling the state in church affairs. He concludes that none of these constitutional arguments is valid under existing Supreme Court precedent -- and notes, too, that the sides conservatives and liberals are, respectively, taking in the debate over the amendment seem anomalous in light of their other beliefs.
Monday, Oct. 06, 2008
From "Bucket of Warm Piss" to Bench Coach: What the Modern Vice President Does Every Day
With even GOP nominee Sarah Palin asking, "What is it exactly that the V.P. does every day?," FindLaw columnist and Cornell law professor Michael Dorf offers some clear answers -- covering administrations from the Framers' day to the present. As Dorf explains, the common view of the vice president's duties as less than significant was accurate through much of American history. However, beginning with Walter Mondale, vice presidents have played a more substantial role. In particular, Dorf notes, Vice Presidents Gore and Cheney have both occupied formal policymaking positions and acted as "bench coach" to the president, providing advice and a sounding board. Finally, Dorf comments on what it may mean for Palin potentially to step into this more modern vice-presidential role.
Wednesday, Sept. 24, 2008
What the Iowa Supreme Court's Recent Public Indecency Decision Reveals About Statutory Interpretation
FindLaw columnist and Cornell law professor Michael Dorf discusses a recent, interesting Iowa Supreme Court decision reversing a conviction for indecent exposure. The court held that the following fact situation did not fit the statute's language: A partially-nude man masturbated outside two women's bedroom windows and yelled profanities. The women never saw his nudity, but the police officer who chased and arrested him did. Dorf explains how this case illustrates a perennial conflict within statutory interpretation: Textualists focus on a statute's language, whereas purposivists look to the legislature's likely intent. Here, the statute's language seemed a poor fit with the situation, but it seemed clear that the legislature would have wanted to reach the conduct at issue. Thus, a difference in interpretive philosophy divided the Iowa court.
Wednesday, Sept. 10, 2008
Some Potential Legal Implications of an Obama/Biden White House: What Biden's Senate Record Reveals
FindLaw columnist and Cornell law professor Michael Dorf takes an interesting perspective on Vice Presidential candidate Joe Biden's record -- focusing not on Biden's temperament or foreign policy experience, but rather on Biden's service on the Senate Judiciary Committee and his views on judicial confirmation and other law-related issues. As Chair of the Committee, Biden presided over the Bork and Thomas confirmation hearings; Dorf considers how those experiences might influence his views. Dorf also examines Biden's beliefs regarding the proper role of Congress -- including Biden's view that Congress, not just the Supreme Court, may play a legitimate role in defining the contours of certain constitutional rights; and Biden's opposition to unilateral Presidential action regarding "war on terror"
Wednesday, Aug. 27, 2008
If the Government Plans to Hold Salim Hamdan Indefinitely, Despite His Sixty-Six Month Sentence, What Was the Point of Putting Him on Trial?
FindLaw columnist and Cornell law professor Michael Dorf comments on the various options for employing either military detention or criminal punishment in the "war on terror" -- focusing especially on the case of Salim Hamdan. Hamdan, who had served as Osama bin Laden's driver, was recently sentenced to serve sixty-six months in prison as a result. Because Hamdan has already served most of that time as a detainee at Guantanamo, he may soon be eligible for release. But will the government release him? Dorf comments on why it might, or might not.
Monday, Aug. 11, 2008
What California's Trans Fat Ban Teaches Us About Federalism
FindLaw columnist and Cornell law professor Michael Dorf offers an interesting new perspective on the decision by California to join New York City and a few other jurisdictions in banning the use of trans fats: Dorf contends that the ban illustrates why it has proven impossible to remain true to the Framers' original vision of federalism in our modern, highly-nationalized economy. Dorf tracks the evolution of the Supreme Court's federalism jurisprudence, and explains why a conservative movement on the Court that was once hailed as a "federalism revolution" has, in retrospect, had only a modest effect. He also considers Justice Clarence Thomas's views on federalism, and how they contrast with those of other conservatives on the Court.
Tuesday, Jul. 29, 2008
The Application for an ICC Warrant to Arrest Sudanese President Al Bashir on Charges of Genocide: An Important But Potentially Counterproductive Symbolic Gesture
FindLaw columnist and Cornell law professor Michael Dorf discusses the decision this week by Luis Moreno-Ocampo, the Prosecutor for the International Criminal Court (ICC), to request an arrest warrant for the President of the Sudan, Omar Hassan Ahmad Al Bashir. As Dorf explains, there is little question that Al Bashir has indeed committed the offenses the warrant will describe: genocide, crimes against humanity, and war crimes against much of the civilian population of Darfur. But will the issuance of a warrant improve or worsen the situation? Dorf explains why issuing a warrant for Al Bashir may actually do more harm than good.
Wednesday, Jul. 16, 2008
The Supreme Court's Blockbuster Second Amendment Ruling: What the Court Resolved and What it Left Open
FindLaw columnist and Columbia law professor Michael Dorf discusses the Supreme Court ruling on gun rights that has recently made headlines. Dorf explains the different approaches to interpretation used by the majority and the dissenters, and considers ways in which gun-rights groups may seek to extend the ruling -- for instance, by arguing that gun rights extend to guns worn by civilians in public, not just guns kept in the home. In addition, Dorf considers what the Court ought to do when it is arguable that a constitutional provision -- or, at least, its original meaning -- may have become obsolete under the different conditions that apply in today's society.
Friday, Jun. 27, 2008
Did the Supreme Court Violate or Vindicate the Constitution in the Latest Guantanamo Bay Decision? The Difference Between Separation of Powers and Checks and Balances
FindLaw columnist and Columbia law professor Michael Dorf comments on the Supreme Court's recent, historic split decision holding that the Constitution guarantees the right to invoke the writ of habeas corpus to foreign detainees held as enemy combatants at Guantanamo. Dorf considers the role of ideology in the Justices' split, and contends that the split also reflects a methodological split, between formalism and a more practical approach. In addition, he explains how the distinct concepts of separation of powers and checks and balances informed the Justices' reasoning here, as they considered whether the federal courts provided a necessary check on the Executive in this context.
Monday, Jun. 16, 2008
Does the Constitution Permit Government to Favor Religion over Nonreligion? Justice Scalia Says Yes
FindLaw columnist and Columbia law professor Michael Dorf discusses a controversial position staked out by Justice Antonin Scalia in a recent speech: that the government can constitutionally favor religion over nonreligion. Dorf argues that Scalia's view has scant support in Court precedent, and that there is compelling evidence against it in the Constitution itself. He also notes that, since the next president is very likely to have the chance to nominate one or several Supreme Court Justices, this issue is an important component of any promises that are made to nominate candidates who are, or are not, in the mold of Scalia.
Wednesday, Jun. 4, 2008
The California Same-Sex Marriage Ruling: What it Says, What it Means, and Why It's Right
FindLaw columnist and Columbia law professor Michael Dorf takes a close look at the very recent California Supreme Court ruling holding that California's Constitution forbids restricting marriage to opposite-sex couples alone. Dorf offers clear, specific answers to key questions such as: Will the ruling have effects outside California? Can the ruling be overturned by California voters, and if so, how? Are charges that the California justices were overreaching in order to make social policy fair, or misplaced?
Monday, May. 19, 2008
Does the Foolhardy McCain/Clinton Proposal for a "Gas Tax Holiday" Expose a More Fundamental Flaw in Democracy?
FindLaw columnist and Columbia law professor Michael Dorf assesses the positions of presidential candidates Clinton, McCain, and Obama regarding a "gas tax holiday" -- which Clinton and McCain support, and Obama opposes. After careful analysis of the economics of the tax holiday proposal, Dorf concludes that Obama is right to oppose it, for, he says, it cannot be justified as a policy matter. However, Dorf expresses doubt about whether Obama's stance is as wise as it is principled, for in democracies, he notes, proposals that appear effective, even when they are not, may still succeed in winning votes from those who hope and believe they will benefit.
Wednesday, May. 07, 2008
How the Supreme Court's Lethal Injection Ruling Elevates Appearances Over Reality
FindLaw columnist and Columbia law professor Michael Dorf takes strong issue with the Supreme Court's recent ruling holding the current three-drug lethal injection protocol constitutional. Dorf focuses in particular on one argument that was expressly accepted by Chief Justice Roberts: that the administration of a three-drug cocktail that risks inflicting intense pain might still be justified by the need to stop the prisoner from experiencing convulsions that might disturb spectators. Dorf takes Roberts to task for accepting the risk of severe pain in order to preserve mere appearances. He also draws a parallel to the aesthetic considerations that drove the prior "partial birth" abortion ruling, which allowed fetuses to be dismembered in the womb, but not outside it.
Monday, Apr. 21, 2008
A Small Religion Brings a Big First Amendment Question to the Supreme Court: When Does Private Religious Speech Become Government Speech?
FindLaw columnist and Columbia law professor Michael Dorf discusses a First Amendment case that the Supreme Court recently decided to review. The case concerns members of the Summum religion who seek to place monuments honoring their religion's "Seven Aphorisms" in two city parks in Utah. Their request was denied, even though other groups had received permission to place similarly-sized Ten Commandments monuments in the parks. As Dorf explains, the case is a complex one, involving three aspects of the First Amendment: private citizens' right to speak in a public forum; the government's right to convey its own messages; and the Establishment Clause ban on government favoritism among religions.
Monday, Apr. 07, 2008
With the Supreme Court Poised to Redefine the Right to Bear Arms, Far-Reaching Questions Loom
FindLaw columnist and Columbia law professor Michael Dorf discusses the issues, and the recent oral argument, in one of the blockbuster cases of this Supreme Court term -- District of Columbia v. Heller. In Heller, as Dorf explains, the Court has the chance to decide the scope of the Second Amendment's right to bear arms in a modern context. Does the right apply only to militia service, or to every individual? Does it apply against the federal government alone, or the states as well? Does it differ with respect to different types of firearms? And can the Court reach a narrow holding in Heller, as it seems Chief Justice Roberts would prefer, or must it reach a broad one?
Monday, Mar. 24, 2008
Who Killed the "Living Constitution"?
FindLaw columnist and Columbia law professor Michael Dorf responds to Justice Antonin Scalia's attack, in a speech last week, on the concept of a "living Constitution." Dorf argues that, properly understood, the metaphor of the "living Constitution" reflects a sensible interpretive method -- one that simply holds that, while Framers' intent and original understandings do carry some weight as we decide what a particular constitutional provision means today, they are not the end of the story.
Monday, Mar. 10, 2008
Did Justice Stevens Pull a Fast One? The Hidden Logic of a Recent Retroactivity Case in the Supreme Court
FindLaw columnist and Columbia law professor Michael Dorf offers an in-depth analysis of a recent Supreme Court decision regarding the constitutional right of criminal defendants to confront their accusers. The case raises both an issue of retroactivity and an issue regarding whether a state court may protect criminal defendants' rights even more avidly than the Supreme Court does. As Dorf explains, the way the Justices divided in this case seems puzzling at first glance, but the pivotal role Justice Stevens played may offer an explanation.
Monday, Feb. 25, 2008
Is The Bush Administration Right to Seek the Death Penalty for 9/11 Captives?
FindLaw columnist and Columbia law professor Michael Dorf discusses the Bush Administration's decision to seek the death penalty, via statutorily-authorized military commission proceedings, for Khalid Shaikh Mohammed and five others who allegedly played roles in the 9/11 attacks. Dorf considers the various arguments for the imposition of the death penalty, and explains why each might or might not apply in these extraordinary circumstances -- considering factors such as the difficulty of deterring someone on a suicide mission with the threat of the death penalty, and the possibility that executions could lead to the deaths of more innocent people.
Wednesday, Feb. 13, 2008
Bush's War on Earmarks: The Right Message from the Wrong Messenger
FindLaw columnist and Columbia law professor Michael Dorf argues that President Bush is right on the merits with respect to his opposition to "earmarking" -- the practice by which Congresspersons use legislative history to direct funds to particular programs not specified in the text of an appropriations bill -- but hypocritical in combining this stance with other views the President also holds. In particular, Dorf contends, the amount of money expended through earmarking is dwarfed by the revenue lost by Bush tax cuts, and cost by the Iraq War. In addition, Dorf argues, the President cannot both use signing statements to put his own gloss on legislation, and object to Congresspersons' doing the same through earmarking.
Wednesday, Jan. 30, 2008
When Does Taking Account of Discrimination by Others Amount to Discrimination Itself? A Question Posed By the Obama and Clinton Candidacies
FindLaw columnist and Columbia law professor Michael Dorf takes on an interesting question that some voters may be pondering with respect to the Democratic presidential primaries: Suppose you would like to vote for Hillary Clinton or Barack Obama, but you fear that other voters will not vote for these candidates for sexist or racist reasons, respectively, and thus, they will lose. Is it wrong for you to then switch your vote to another candidate -- say, John Edwards? Dorf parallels this question to an interesting question raised by a past Supreme Court decision: whether societal bias against interracial couples can constitutionally affect a family court's custody decision. The Court said no. Should voters also say no to casting their vote in a way that takes others' anticipated bias into account?
Monday, Jan. 14, 2008
Picking an Attorney in Chief: How the Lawyers Running for President Are Portraying their Legal Experience in their Campaigns
FindLaw columnist and Columbia law professor Michael Dorf considers how each presidential candidate with a law degree is spinning his or her legal background in the context of the campaign. Among the candidates with a plausible chance of winning the primaries, Dorf points out, only John McCain and Mike Huckabee are not attorneys. That leaves Mitt Romney, Rudolph Giuliani, Hillary Clinton, Barack Obama, and John Edwards -- yet each has an individual take on the significance of his or her legal degree. Dorf considers how each lawyer-candidate has dealt with America's skepticism about attorneys by attempting to turn the degree into an asset, or at least neutralize it.
Wednesday, Jan. 02, 2008
The EPA Versus the Department of Transportation: Three Puzzles in a Federal Court Ruling and the Pending Energy Bill
FindLaw columnist and Columbia law professor Michael Dorf comments on two recent developments relating to environmental regulation -- a federal judge's decision upholding California's proposed carbon emissions standards for automobiles, and pending energy legislation including provisions that are, in effect, gas mileage requirements. Dorf considers how these developments relate to deeper questions regarding environmental and energy policy, such as whether different federal agencies' regulations should overlap, whether state and federal regulations should overlap, and the merits of gas mileage requirements versus gas taxes.
Monday, Dec. 17, 2007
What's at Stake in the Latest Guantanamo Bay Case?
FindLaw columnist and Columbia law professor Michael Dorf explains the importance of the issues raised by the "war on terrorism" case being argued at the Supreme Court today, which asks if Guantanamo detainees possess the right to habeas corpus. In his analysis, Dorf discusses whether the Constitution establishes a right to habeas corpus and if so, whether it means what it meant when the Constitution was ratified, or whether its meaning has evolved over time. Dorf also considers whether Congress provided an acceptable substitue for habeas corpus in the Military Commissions Act.
Wednesday, Dec. 05, 2007
The U.S. Court of Appeals for the Ninth Circuit Dismisses a Challenge to Warrantless Wiretapping But Leaves Plaintiffs With a Sliver of Hope
FindLaw columnist and Columbia law professor Michael Dorf discusses a recent decision by the U.S. Court of Appeals for the Ninth Circuit that dismissed a challenge to warrantless wiretapping, citing the "state secrets" privilege. Dorf discussess the details of both the warrantless wiretapping program and the privilege, and explains why it's possible that, on remand, the district court will find for the plaintiffs on an issue the Ninth Circuit did not address: whether the Foreign Intelligence Surveillance Act supersedes the state secrets privilege.
Monday, Nov. 19, 2007
Does the First Amendment Protect Highly Offensive Speech at a Funeral and Directed at the Deceased?
FindLaw columnist and Columbia law professor Michael Dorf analyzes U.S. Supreme Court precedent to determine whether the Court would likely hold that the First Amendment allows protesters to disrupt funerals by picketing with placards bearing offensive messages. Dorf concludes that the Court would likely uphold as constitutional reasonable restraints on such picketing. This analysis, as Dorf explains, is relevant to the status of a recent $10.9 million federal civil jury award in a suit brought by the father of a Marine killed while serving in Iraq. The father sued picketers at his son's funeral, alleging that they disrupted the funeral by displaying highly offensive signs, and violated defamation law by posting related messages on their website.
Monday, Nov. 05, 2007
Harry Potter and the Framers' Intent
FindLaw columnist and Columbia law professor Michael Dorf takes on the issue of what the best way is to interpret a given text -- by reference to author's intent, contemporaneous public understanding, or simply the words of the text itself. In addition to considering how this issue arises in the debate over the role of "original intent" in interpreting the Constitution, Dorf also considers the issue in the context of a literary revelation currently making headlines: "Harry Potter" author J.K. Rowling's disclosure that she intended one of her characters to be gay, even though her books do not make that clear.
Monday, Oct. 22, 2007
Does the Sexual Harassment Verdict Against Isiah Thomas and the Knicks Demonstrate the Perils of Corporate Management Unconstrained by Shareholder Democracy?
FindLaw columnist and Columbia law professor Michael Dorf uses the recent sexual harassment verdict against Isiah Thomas and the Knicks to consider the influence of various corporate governance options on entities' -- and especially sports teams' -- litigation exposure and performance. Dorf describes the advantages and pitfalls of owners' retaining close control, but points out that other alternatives are not ideal either, for each comes with its own pros and cons. He also comments briefly on the unique situation of media ownership.
Monday, Oct. 08, 2007
The Supreme Court and the Butterfly Effect
FindLaw columnist and Columbia law professor Michael Dorf discusses the way the "butterfly effect" may apply to Supreme Court decisions. The phrase "the butterfly effect" describes the way a single incident or action can have a surprisingly great effect over time. Dorf considers some potential past "butterfly effect" cases such as Bush v. Gore, Buckley v. Valeo, and Roe v. Wade. In addition, he describes two cases the Court will decide in the Term that begins this October that may also create a "butterfly effect"; one concerns the controversial Military Commissions Act and whether it infringes detainees' habeas corpus rights, and another pertains to gun control laws.
Monday, Sep. 24, 2007
A Federal District Judge Holds the Amended Patriot Act Unconstitutional
FindLaw columnist and Columbia law professor Michael Dorf comments on a recent holding by a federal district judge that the amended Patriot Act violates both the First and the Fourth Amendments. Dorf contends that the judge's opinion -- while unconvincing in some particulars -- is correct to treat the Bill of Rights in a holistic manner, recognizing that the protections of one amendment can inform the way the scope of another is interpreted.
Wednesday, Sep. 12, 2007
The Sins of Alberto Gonzales, and Advice for the Next Attorney General
FindLaw columnist and Columbia law professor Michael Dorf discusses the resignation of Attorney General Alberto Gonzales, arguing that Gonzales himself -- not politics, as President Bush suggested -- was responsible for his fate. Dorf contends that while many saw Gonzales as a bungler, he is better described as a hard-core ideologue -- one willing to rely even on interpretations of the law that the Supreme Court had already rejected. In addition to critically assessing Gonzales's tenure, Dorf also makes recommendations as to how the next Attorney General can best improve the somewhat troubled Department of Justice that Gonzales leaves behind.
Wednesday, Aug. 29, 2007
The Supreme Court Wreaks Havoc in the Lower Federal Courts--Again
FindLaw columnist and Columbia law professor Michael Dorf discusses a recent, split Supreme Court decision that, while it has attracted little media attention, has made a tremendous splash in the lower federal courts. The decision grapples with the question of what standard should govern a federal trial court's review of the sufficiency of the allegations of a complaint -- generally, and especially in the antitrust context. Dorf notes that the current Court, while otherwise highly-qualified, contains only one former trial court judge, and thus that the Court may be relatively weak in its ability to judge what rules of pleading may be best as applied in a trial court setting in particular cases.
Monday, Aug. 13, 2007
New York State Imitates the U.S.-Attorney-Firing Standoff But With a Key Difference: An Elected Attorney General
FindLaw columnist and Columbia law professor Michael Dorf discusses a New York controversy that is directly parallel to the federal controversy over the firing of U.S. attorneys -- but that occurs, as Dorf explains, in a somewhat different legal context. The New York controversy revolves around an investigation initiated by aides to Democratic Governor Eliot Spitzer, targeting Republican New York Senate majority leader Joseph Bruno. Spitzer says the aides were acting independently of him, but Bruno is seeking testimony before hte State Senate, including from Spitzer himself, on the matter. Spitzer, however, says the State Senate has no authority to do so.
Monday, Jul. 30, 2007
Meet the New Federal Rules of Civil Procedure: Same as the Old Rules?
FindLaw columnist and Columbia law professor Michael Dorf considers the effect of the revision of Federal Rules of Civil Procedure -- emphasizing clarification and simplification -- that is set to take effect this December. Dorf explains the origins of the rules, the role of the Rules Advisory Committee, the relevance of the supersession clause of the Rules Enabling Act, and possible interpretive issues that may arise as a result of the revision and how to solve them.
Wednesday, Jul. 18, 2007
The Supreme Court's Split Over Public School Integration: Who Really Betrayed Brown's Legacy?
FindLaw columnist and Columbia law professor Michael Dorf examines the reasons behind the 5-4 split in the Supreme Court's recent decision regarding racial integration in public schools. The Court held that Seattle and Louisville school boards violated the Equal Protection Clause when they opted for particular programs that took students' race into account as a factor in school assignment, in order to try to mirror the district's racial balance within particular schools. Dorf explains why the practical impact of the decision is unclear, in light of swing Justice Anthony Kennedy's narrow objection to aspects of these programs in particular (but not necessarily all such programs). Dorf also considers the freighted question of which side of the Court's divide honored, and which betrayed, the legacy of Brown v. Board of Education.
Monday, Jul. 02, 2007
The Supreme Court's Most Kafkaesque Decision: Penalizing a Criminal Defendant for Relying on a Court's Official Statement of the Due Date for His Habeas Corpus Appeal
FindLaw columnist and Columbia law professor Michael Dorf discusses a recent, 5-4 Supreme Court decision with a harsh result: Because a habeas corpus appellant relied on a federal district court judge's written order containing a mistaken date regarding the time limit for him to submit his appeal, he now has lost his only chance to appeal his sentence of fifteen-years-to-life. Dorf argues that there is no plausible legal justification for this oppressive result, and points out that the defendant has been put in a truly Kafkaesque situation, reminiscent of The Trial.
Wednesday, Jun. 20, 2007
A Mootness Dismissal Illustrates the Supreme Court's Split Personality: Is it a Constitutional Court or a Court of Error?
FindLaw columnist and Columbia law professor Michael Dorf explores the tensions within the Supreme Court's conception of its own role, as expressed in the Court's decision this week to dismiss as moot a case raising an important question regarding the U.S. Sentencing Guidelines. As Dorf notes, mootness is just one among a series of justiciability doctrines the Court uses to limit its own jurisdiction to cases that pose a concrete dispute between the parties, rather than an abstract issue of law. Yet on the other hand, the Court has made it clear that, in selecting which cases it will review, it looks not to the concrete consequences for the parties, but rather to the national importance of the question presented.
Wednesday, Jun. 06, 2007
Google Wins the Right to Display Thumbnails and to "Frame" Copyrighted Material Used Without Permission: A Mostly Sensible Ruling by the Ninth Circuit Court of Appeals
FindLaw columnist and Columbia law professor Michael Dorf weighs in on a recent ruling by the U.S. Court of Appeals for the Ninth Circuit regarding alleged copyright infringement by the search engine Google. Dorf contends that the Ninth Circuit was correct to rule that Google did not infringe the copyright of Perfect 10, Inc.'s pornographic photos. Perfect 10 had complained that Google Image searches -- in part due to third parties' unauthorized posting of Perfect 10's photos -- often yielded results that included "thumbnails" of such photos, and that Google also "framed" other images of the photos on its own site.
Wednesday, May. 23, 2007
The President's Disingenuous Arguments Against Expanding the Federal Hate Crime Law
FindLaw columnist and Columbia law professor Michael Dorf discusses President Bush's threat to veto a law that would expand the federal anti-hate crime law, to protect victims who are targeted due to their sexual orientation. Dorf explains the reasons one might reasonably oppose the current federal anti-hate crime law, but he also contends that to support the current law, but oppose its expansion to encompass sexual orientation hate crimes, is merely pandering to those who oppose equalizing the status of gay persons under the law.
Wednesday, May. 09, 2007
How the Firing of Don Imus Undermined First Amendment Values: An Analogy to Secondary Boycotts
FindLaw columnist and Columbia law professor Michael Dorf explains why private actions that silence speech, such as the firing of radio personality Don Imus, may render speech in America significantly less free -- even though, formally, only the government can violate the First Amendment. Drawing an interesting analogy to antitrust and labor law -- which hold that while boycotts of employers are permissible, "secondary" boycotts of employers' business associates are not -- Dorf explains the dangers of letting not only stations, but also sponsors, determine what can and cannot be said on the air.
Monday, Apr. 23, 2007
The Supreme Court's Global Warming Ruling May Not Slow Global Warming, But it Does Restore Some Common Sense to Standing Doctrine
FindLaw columnist and Columbia law professor Michael Dorf discusses the Supreme Court's recent ruling that the EPA has authority, under the Clean Air Act, to regulate emissions of greenhouse gases by new automobiles. Since the EPA still has the latitude to decline to regulate, Dorf points out that the ruling, in itself, cannot do anything to stop global warming -- unless and until this or the next administration wants to do so. Dorf also stresses the direct effect that we can be certain the ruling will have: It sets a strong precedent for allowing the doctrine of standing -- the legal right to come to court to seek enforcement of a given law -- to become more sensible and realistic.
Monday, Apr. 09, 2007
Al Gore May Be a Hypocrite For Living in an Energy-Intensive Mansion, But He's Right About the Need for a Carbon Tax
FindLaw columnist and Columbia law professor Michael Dorf considers the various defenses Al Gore's supporters have raised to justify Gore's living in a 10,000-square-foot mansion while also pushing for "green" solutions to global warming. Dorf deems Gore's best defense his carbon-balancing -- that is, his decision to contribute to "green" charities that plant trees or invest in wind power, with positive effects that counteract the negative effects of Gore's own energy use -- but finds this defense, too, not entirely satisfactory. Dorf, however, applauds Gore for emphasizing the need for a carbon tax, and explains why such a tax is crucial.
Monday, Mar. 26, 2007
The FBI's Misuse of National Security Letters Reveals the Often-False Dichotomy Between Security and Privacy
FindLaw columnist and Columbia law professor Michael Dorf discusses the recent report by the Justice Department's Inspector General on the FBI's use of National Security Letters (NSLs) -- warrantless requests for customer information issued to entities including Internet Service Providers, banks, and telecommunications companies. Dorf points out that some of the problems the report unearthed -- such as poor recordkeeping, overuse of the "exigent" designation, and production of more information than had been requested, due to confusion on the part of the NSL recipient -- jeopardize both individual privacy and national security, two values that are often opposed, but here militate in the very same direction.
Wednesday, Mar. 14, 2007
A Federal Appeals Court Upholds the Jurisdiction-Stripping Provisions of the MilitaryCommissions Act of 2006, But Overlooks the Possibility of an Evolving Conception of Habeas Corpus
FindLaw columnist and Columbia law professor Michael Dorf discusses a recent decision by a 2-1 majority of a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit. The decision -- which Dorf predicts will ultimately be reviewed by the Supreme Court -- includes two holdings. The first is that a federal statute --the Military Commissions Act of 2006 -- stripped federal courts of the jurisdiction to hear federal lawsuits, including even habeas corpus petitions, by Guantanamo detainees. The second is that the MCA, in this respect, does not violate the U.S. Constitution's Suspension Clause, which governs the circumstances in which habeas corpus can be suspended. Dorf analyzes each holding, and the reason for one judge's dissent, and considers which interpretive rules and sources ought to be relevant here.
Wednesday, Feb. 28, 2007
Is Giuliani's Abortion Triangulation Coherent?
FindLaw columnist and Columbia law professor Michael Dorf analyzes Presidential candidate Rudolph Giuliani's changing position on abortion. As Dorf explains, Giuliani's stance in 1989, during his first campaign for New York mayor, was that Roe v. Wade should be overturned. That campaign was unsuccessful. In 1993, however, Giuliani ran (and won) as a pro-choice candidate. Giuliani's current position, as Dorf summarizes it, is pro-life as a personal matter, pro-choice as a political matter, and anti-Roe as a matter of constitutional law. Dorf comments upon whether these three positions are reconcilable.
Wednesday, Feb. 14, 2007
Universities Adjust to State Affirmative Action Bans: Are the New Programs Legal? Are They a Good Idea?
FindLaw columnist and Columbia law professor Michael Dorf discusses the options that public universities may still have, in light of a spate of new state-level measures that ban the direct use of affirmative action, to try to increase the number of minority students who will attend. Dorf considers the effectiveness and legality of four particular plans the universities could try to employ: open or lottery-based admissions; affirmative action programs based on class, not race; a policy of admitting all high school seniors in the state with GPAs in the top ten percent of their classes; and considering as a factor in admissions whether the applicant has overcome prejudice or discrimination.
Monday, Jan. 29, 2007
The Big News in the Rehnquist FBI File: There is None
FindLaw columnist and Columbia law professor Michael Dorf discusses the opening of former Chief Justice William Rehnquist's FBI file -- and warns that its contents' importance is not as great as some have suggested. Key revelations in the file, Dorf explains, involve Rehnquist's use of the painkiller Placidyl, his eventual addiction to it, and the temporary paranoia that resulted from his detox. Dorf notes that it seems hypocritical for Rehnquist to both have been, temporarily, a drug addict, and to fail to extend any sympathy to addicts who were involved in the cases before him. However, Dorf also notes that while the evidence is strong that Rehnquist suffered an addiction, it is far from clear that it had any effect at all on the Chief Justice's job performance.
Monday, Jan. 15, 2007
A Federal Appeals Court Upholds the Government's Seizure of Computer Records of Major League Baseball Players' Drug Tests
FindLaw columnist and Columbia law professor Michael Dorf illuminates the complex constitutional issues surrounding the government's decision to seize computer records reflecting the results of baseball players' drug tests. Dorf explains both why a federal appeals panel ruled in favor of the government, and why the dissenting judge asked, "What happened to the Fourth Amendment? Was it repealed somehow?"
Tuesday, Jan. 02, 2007
The Bush Administration Wins a Round on Military Commissions, But the District Court Ruling May Have a Silver Lining for Detainees
FindLaw columnist and Columbia law professor Michael Dorf discusses the recent federal district court decision in the Hamdan case. As Dorf explains, the Supreme Court, in its earlier, landmark decision in Hamdan, had invalidated the Bush Administration's proposal to try "war on terror" detainees before military commissions. But now that Congress has passed the Military Commissions Act, the legal issue has changed significantly -- requiring the district court to address three complex questions regarding detainees' rights. Dorf notes two important limits the decision puts on executive discretion with respect to "war on terror" detainees.
Monday, Dec. 18, 2006
The Supreme Court Oral Argument in the Global Warming Case Reveals What's Wrong with the Standing Doctrine
FindLaw columnist and Columbia law professor Michael Dorf explains both the issues of substance, and of jurisdiction, posed by the "global warming" case now before the Supreme Court. Dorf notes, in particular, why application of the "standing" doctrine may mean the Court dismisses the case without even reaching the merits of the issues it presents. Dorf notes that this isn't the only case in which the standing doctrine has perverse results: He argues that, as a result of conservative interpretations of the doctrine, it leads to the wrongful dismissal of other environmental cases, and of civil rights cases as well.
Monday, Dec. 04, 2006
Chief Justice Roberts Advocates the Passive Virtues, Even as the Supreme Court's Docket Reveals their Subtle Vices
FindLaw columnist and Columbia law professor Michael Dorf cautions that what scholar Alexander Bickel called "the passive virtues" may not, in practice, be virtues at all. Bickel -- and now, Chief Justice Roberts -- favored federal courts' decisions to limit their own power and jurisdiction by, for example, issuing narrow rulings confined to the facts and arguments directly before the court. But Dorf points out -- citing a number of past and pending Supreme Court cases in which this kind of methodological conservatism, he argues, has only backfired, to the detriment of the Court and the nation.
Monday, Nov. 20, 2006
In a Brief, Unsigned New Opinion, The Supreme Court Sends the Wrong Signal on Voter ID and Voter Fraud
FindLaw columnist and Columbia law professor Michael Dorf analyzes a brief, unsigned new Supreme Court opinion regarding voting rights that he argues may indicate the Court is taking the wrong road on this important issue. Dorf is concerned, in particular, that the opinion suggests the Court may be taking feelings of disenfranchisement -- spurred by near-baseless fears of non-citizens voting -- as seriously as it does actual disenfranchisement. The result, he notes, could be that voter ID requirements are upheld despite little evidence of voting fraud, and much evidence that many (especially the poor and minorities) will not be able to cast a vote even though they have a right to do so.
Monday, Nov. 06, 2006
Mark Foley's Name is on the Ballot. Should Voters Be Told That He's Not Really Running?
A Florida Judge Says No, and Bush v. Gore Suggests She May Be Right.
FindLaw columnist and Columbia law professor Michael Dorf weighs in on a current Florida election dispute, and examines parallels between that dispute and the Florida election dispute that led to Bush v. Gore -- although, he notes, this time, Democrats and Republicans have switched positions. The current dispute relates to whether, under Florida law, a notice can be posted telling voters, accurately, that if they vote for Mark Foley for Congress, the vote will really go to Republican-Party-chosen substitute Joseph Negron.
Monday, Oct. 23, 2006
Why The Military Commissions Act is No Moderate Compromise
FindLaw columnist and Columbia law professor Michael Dorf discusses the controversial Military Commissions Act -- and argues that, contrary to claims, it is not a moderate compromise, but an extreme approach to a number of war-on-terror issues. These issues include torture; the use of military commissions, as opposed to either courts-martial or civilian federal courts; and the use of the writ of habeas corpus. Dorf draws on a debate in which he participated along with Boalt Law School professor and torture memo author John Yoo.
Wednesday, Oct. 11, 2006
The Nation's Top Military Court Rules that a Senator Cannot Wear Two Hats: Does the Ruling Call Into Question Reserve Duty by Members of Congress?
FindLaw columnist and Columbia law professor Michael Dorf comments on the larger issues raised by a recent decision of the nation's highest military court, the U.S. Court of Appeals for the Armed Forces (CAAF). In the course of its ruling, the CAAF held that the Constitution's Incompatibility Clause forbade Senator Lindsey Graham from simultaneously serving in Congress, and holding an "Office under the United States" (that of military court judge on an intermediate appeals panel in the case). Dorf asks: What does this mean for Congresspersons and Senators who are also standby military reservists? Are they, too, violating the Incompatibility Clause? And if they are, could a suit be brought to challenge their dual service?
Monday, Sep. 25, 2006
Can Congress Fire Rumsfeld?
FindLaw columnist and Columbia law professor Michael Dorf asks a provocative question: With Secretary of Defense Donald Rumsfeld facing harsh criticism from both sides of the aisle, could Congress -- consistent with the Constitution -- simply opt to fire Rumsfeld -- even if the President were to disagree? Dorf explains why Congress can't simply "unconfirm" Cabinet members, and why simply eliminating Rumsfeld's position wouldn't work either. Finally, he asks: If the Constitution's express removal mechanism, impeachment, were invoked by Congress, what might the charges be? And would they count as "high crimes"?
Wednesday, Sep. 13, 2006
If Pluto's Not a Planet, Is Ketchup a Vegetable, a Fetus a Person, or Same-Sex Marriage an Oxymoron? Natural Kinds in Science and Law
FindLaw columnist and Columbia law professor Michael Dorf borrows from science and philosophy to shed light on some confusions in contemporary legal debates. Dorf argues, for example, that those who claim a fetus simply IS a person, or marriage simply IS between a man and a woman, are misleadingly using the language of "natural kinds" to duck some serious and difficult philosophical and legal questions.
Monday, Aug. 28, 2006
Joe Lieberman's Run as an Independent is Bad for the Democratic Party, But Is it Good for Democracy?
FindLaw columnist and Columbia law professor Michael Dorf puts into political, historical, and theoretical context Senator Joe Lieberman's decision to run as an independent after losing the Connecticut Democratic primary. Dorf explains why elections in our system tend to boil down to two-party contests -- but also explores the positive role third-party candidates like John Anderson and Ross Perot have played. Dorf contends, however, that Lieberman's third-party candidacy doesn't fit the model of those that have been helpful, for it neither raises new, previously sidelined issues and ideas, nor does it give previously ignored voters a voice. He suggests, therefore, that Lieberman should reconsider his decision to run.
Monday, Aug. 14, 2006
Playing With Fire: The Administration's Draft Bill on Detainees Would Violate the Geneva Conventions and Thereby Put Americans at Risk
FindLaw columnist and Columbia law professor Michael Dorf discusses a draft bill, revealed by the New York Times, that provisionally indicates the Bush Administration position on the legislation relating to government detainees that is being proposed in the wake of the Supreme Court's decision in Hamdan v. Rumsfeld. In Hamdan, the Court invalidate the President's military-commission plans for two reasons: Congress had not endorsed them, and they violated the Geneva Conventions. With Congress now ready to act, the Geneva Conventions issue looms large. Dorf reads the draft bill to suggest that the Administration is pushing to allow violations of the treaty -- a move he argues would put our own Geneva-Convention-protected soldiers in grave danger of ill treatment abroad.
Monday, Jul. 31, 2006
A Former Client Sues Disgraced Washington Lobbyist Jack Abramoff: What the Case Reveals About American Politics
FindLaw columnist and Columbia law professor Michael Dorf discusses the lawsuit recently filed by the Alabama-Coushatta Tribe of Texas against now-infamous D.C. lobbyist Jack Abramoff. Dorf explains why Abramoff's moral turpitude, as acknowledged in his plea agreement, may not translate into a winnable legal claim for the Alabama-Coushatta. He also notes, more generally, that the gap between our current law on what is permissible in lobbying, and our intuitions about right and wrong, is a disturbing one.
Monday, Jul. 17, 2006
The Hidden--and Obvious--Lessons in the Supreme Court's Divided Ruling Invalidating Military Commissions
FindLaw columnist and Columbia law professor Michael Dorf breaks down the key rulings in the Supreme Court's recent blockbuster decision in Hamdan v. Rumsfeld, and also comments on less obvious ways the decision may turn out to be important. In addition, Dorf explains why the decision may not, to some extent, be as momentous a victory for civil liberties and human rights as it seems. Among other points, Dorf notes that indefinite detention without trial is still a possibility, and that some places of detention abroad (though not Guantanamo) may be outside federal court habeas corpus jurisdiction, meaning protections may be able to be evaded by sending detainees there.
Friday, Jun. 30, 2006
In the Wetlands Case, the Supreme Court Divides Over the Clean Water Act--and Seemingly Over How to Read Statutes as Well
FindLaw columnist and Columbia law professor Michael Dorf discusses the Supreme Court's recent split in the "wetlands case" -- which raised the issue of how to interpret the Clean Water Act. Dorf explains how the Justices' respective views on how statutes should be interpreted informed their views on what the Act means when it refers to "navigable waters." Dorf also asks whether, in the end, the Justices really differ deeply when it comes to their views on statutory interpretation -- or whether these views may be more similar than commentators typically acknowledge.
Wednesday, Jun. 21, 2006
The Supreme Court Finds No First Amendment Protection for Government Employee Speech Pursuant to Official Duties
FindLaw columnist and Columbia law professor Michael Dorf discusses the Supreme Court's recent split decision rejecting a Deputy D.A.'s First Amendment claim. The D.A. was fired by his supervisor because he took on the role of internal "whistleblower" -- arguing that a prosecution based on a faulty search warrant should be abandoned. Why wasn't the D.A.'s speech protected? Dorf explains the majority's logic, and the dissent's -- and why each embodies a very different concept of the First Amendment.
Monday, Jun. 05, 2006
The Indictment of the Milberg Weiss Law Firm and America's Love/Hate Relationship with Class Action Litigation
FindLaw columnist and Columbia law professor Michael Dorf discusses the indictment recently issued against the Milberg Weiss law firm and others allegedly acting in concert with the firm. Dorf discusses the role of named plaintiffs in class actions like the ones in which Milberg Weiss was involved, and explains why, if the indictment is accurate, the law firm's side payments to named plaintiffs could mean that the interests of others in the same plaintiff classes in the same suits were disserved. Dorf also considers the broader question of the pros and cons of class actions, as opposed to individual lawsuits -- covering the justification for them, the basic rules that govern them, and the laws that have limited them.
Monday, May. 22, 2006
What the Moussaoui Sentence Teaches About "Mitigating" Evidence
FindLaw columnist and Columbia law professor Michael Dorf discusses the jury's sentencing verdict -- and its answers on the verdict form -- in the Zacarias Moussaoui trial. Dorf uses this trial, and its specific issues, to explore the more general question of when information truly mitigates criminal culpability -- and when it does not. Does an abusive childhood mitigate culpability even when the defendant had the required state of mind when he committed the crime to be convicted for it? Should the defendant's wish to die -- and his wish to be honored as a martyr -- be taken into consideration, and do such wishes cut in favor of, or against, imposition of the death penalty?
Wednesday, May. 10, 2006
Can the Government Limit Speech to Protect a Captive Audience?
A Court Rejects a High School Student's Claimed Right to Anti-Gay Speech While Legislatures React to Offensive Protests at G.I. Funerals
FindLaw columnist and Columbia law professor Michael Dorf discusses the concept of the "captive audience," a key part of First Amendment doctrine. He focuses on two recent instances in which a "captive audience" argument may make a difference: In one, a public high school student wore an anti-gay T-shirt that classmates, required to attend, were effectively forced to see. In another, state legislatures are considering legislation to stop certain protests that offend mourners at funerals for Iraq War soldiers; the mourners are effectively forced to endure the protests if they want to honor their loved ones by attending.
Wednesday, Apr. 26, 2006
The Supreme Court Denies Review in the Case of "Dirty Bomber" Jose Padilla, But an Unusual Troika of Justices, Including the Chief, Issues a Warning to the Government
FindLaw columnist and Columbia professor Michael Dorf analyzes the opinions accompanying the Supreme Court's decision to deny review in the case of Jose Padilla, which raises the question of whether an American citizen apprehended in the U.S. can be deemed by the executive an enemy combatant subject to trial by military tribunal. Dorf argues that the most notable feature of these opinions is Chief Justice Roberts' decision to join one of them -- a decision that may (or may not) indicate Roberts will be less pro-Executive-Branch than one might have predicted.
Wednesday, Apr. 12, 2006
A New York Appeals Court Orders the State Legislature to Fund New York City Schools . . . Or Does It?
FindLaw columnist and Columbia law professor Michael Dorf explains why, despite a written ruling from the highest court in New York on the issue of funding for City schools, those who must comply with the decision are not entirely sure what they must do. Dorf explains what's at stake, explores the legal roots of the decision, and considers what are arguably ambiguities in the remedy the decision mandates.
Wednesday, Mar. 29, 2006
Does South Dakota's New Abortion Ban Cross the Line Between "Test" Legislation and Defiance of the Supreme Court?
FindLaw columnist and Columbia law professor Michael Dorf discusses the fine line between a state's testing a Supreme Court precedent, and its simply flouting it. Dorf considers what side of the line a new South Dakota statute falls on. On the one hand, he notes, the statute challenges established precedents on abortion rights. On the other hand, though, South Dakota may have reason to believe -- in particular, based on the personnel changes that have brought Chief Justice Roberts and Justice Alito to the Court -- that those precedents are vulnerable.
Wednesday, Mar. 15, 2006
The Supreme Court's Unanimous Decision Recognizing a Religious Right to Use Hallucinogenic Tea
FindLaw columnist and Columbia law professor Michael Dorf clarifies the complex legal background of the Supreme Court's recent, unanimous decision recognizing a right to use hallucinogenic tea in religious services -- despite the fact that the tea contains a drug banned by federal law. Dorf explains how the Court's cases interpreting the First Amendment's protection of the free exercise of religion have evolved over the years, and solves the seeming conundrum of why the Court protected the religious use of hoasca here, yet sixteen years ago, refused to grant an exemption from federal drug law for the religious use of peyote.
Monday, Feb. 27, 2006
What are the "Inherent" Powers of the President? How the Bush Administration Has Mistaken Default Rules for Exclusive Rights
FindLaw columnist and Columbia law professor Michael Dorf discusses the Bush Administration's theory of Presidential power vis-a-vis Congress. The theory has been used in defense of, among other examples, the President's signing statement asserting a power to disregard the McCain anti-torture amendment, and the President's authorization of the NSA's warrantless wiretapping despite Congress' prior passage of the Foreign Intelligence Surveillance Act (FISA). Dorf argues that the Administration's reading of the Constitution is untenable -- pointing to powers (such as the pardon power) that Congress cannot limit by legislation, and noting that the powers at issue are not among them.
Monday, Feb. 13, 2006
The Supreme Court's Surprisingly Unanimous Abortion Decision: A Parting Gift for Justice O'Connor?
With the Supreme Court plainly divided on issues related to abortion, how can one explain why its latest abortion decision was 9-0? FindLaw columnist and Columbia law professor Michael Dorf explores this conundrum, considers possible explanations, and offers insight into Supreme Court dynamics along the way. He also considers whether this abortion decision is unique, or signals the way the Court might lean in the future.
Monday, Jan. 30, 2006
Should Judges Testify at a Colleague's Senate Confirmation Hearing? The Separation-of-Powers Concern Raised by the Alito Hearings
FindLaw columnist Michael Dorf discusses an unusual development in Judge Samuel Alito's Supreme Court confirmation hearings: Seven of Judge Alito's colleagues on the U.S. Court of Appeals for the Third Circuit testified in his favor. Dorf considers the objections that might be raised against this kind of testimony, and concludes that it does raise a significant separation-of-powers concern.
Monday, Jan. 16, 2006
Hell Hath No Fury Like a Conservative Jurist Scorned: The Government's Overreaching in the Case of Jose Padilla
FindLaw columnist and Columbia law professor Michael Dorf analyzes recent developments in the case of American Jose Padilla -- held for over three years in military custody by the Bush Administration on charges he'd plotted to explode a "dirty bomb" in the U.S., and finally indicted on different charges. Dorf addresses three key questions in the case: Will the Supreme Court opt to review the September 2005 federal appeals court ruling deeming Padilla's detention in military custody legal? Should it? And, given the government's recent request to transfer Padilla to civilian custody -- something the appeals court has thus far refused to do -- does the Court even have the power to review the September 2005 ruling anymore?
Wednesday, Jan. 04, 2006
Howard Stern Goes Into Orbit, Taking the First Amendment With Him
With Howard Stern making headlines for shifting his controversial radio show exclusively to satellite radio, Dorf explains the legal background that informed Stern's move. He also asks and answers questions such as, Will the FCC be able to regulate satellite radio as it does "terrestrial" radio? And does the FCC's baseline system of regulating "terrestrial" radio make any sense given modern technology?
Monday, Dec. 19, 2005
What's at Stake in the Roberts Court's First Abortion Case: Surprisingly Little
FindLaw columnist and Columbia law professor Michael Dorf discusses the oral argument, and the issues, in the first abortion case to confront the new Roberts Court. The case involves a New Hampshire law providing for prior parental notification of minor's abortion requests. As Dorf explains, it seems clear that the law has a constitutional defect, so the decision is likely to focus on the issue of what the proper remedy may be.
Monday, Dec. 05, 2005
The Senate Votes to Curb Habeas Corpus Petitions by Guantanamo Bay Detainees: How the Bill Threatens the "Unwritten Constitution"
FindLaw columnist and Columbia law professor Michael Dorf discusses the bill passed by the Senate -- and soon to be considered by the house -- that curtails, with only two exceptions, habeas corpus petitions by persons detained at Guantanamo bay. Dorf explains why, technically, the bill will very probably will be held to be constitutional -- but argues that this isn't the kind of area where a technicality ought to govern; the spirit of the relevant Constitutional provisions ought to be honored too.
Monday, Nov. 21, 2005
A Catholic Majority on the Supreme Court: The Good News in Judge Alito's Nomination, and a Warning
FindLaw columnist and Columbia law professor Michael Dorf points out that, if nominee Samuel Alito joins the Supreme Court, a majority of Justices will then be Catholic. Dorf notes that this development shows, happily, that anti-Catholic bias has diminished, and considers whether it might be otherwise significant for the Court. Does religion tend to correlate with interpretive style or political bent? Dorf consults the Court's history to find out.
Tuesday, Nov. 08, 2005
A Supreme Court Order Affords Some Insight Into The Roberts Court's View of Roe v. Wade: Must Prison Officials Transport an Inmate to an Abortion Clinic?
Will the Roberts Court eventually overrule Roe v. Wade? FindLaw columnist and Columbia law professor extracts some evidence of what some of the Justices' thinking may be -- by closely examining the context of a brief, recent Supreme Court. The order left intact a lower court's decision to compel a prison to transport a female inmate to a clinic for an abortion -- despite Justice Thomas's having opted to temporarily stay the order to allow full Court consideration. Dorf examines, among other issues, why two open Roe opponents, Justice Scalia and Justice Thomas, opted not to dissent from this order; and explains why the lower court's order was predicated on Roe v. Wade.
Wednesday, Oct. 26, 2005
A Crash Course in Constitutional Law for Harriet Miers--and Everybody Else
FindLaw columnist and Columbia law professor Michael Dorf offers readers a crash course in constitutional law -- explaining the main structural provisions that set up the basic relationships that form the core of our Constitution, as well as how these ground rules have been interpreted over time. Dorf canvasses the controversial subject of federalism, as well as the concept of separation of powers, and the basic principles governing the area of individual rights.
Wednesday, Oct. 12, 2005
Did Houston Officials Learn Too Much from Katrina? The Salience Fallacy and What to do About it
FindLaw columnist and Columbia law professor Michael Dorf discusses examples of the "salience fallacy" -- decisionmakers' tendency to focus on risks that have been graphically illustrated recently, while ignoring other, potentially greater risks. Using examples ranging from Hurricane Katrina, to the Maginot line, to child airline safety belts, Dorf explains why focusing on recent events can mean policies are not based on a solid cost-benefit balance. He also explains how governments can avoid falling prey to the salience fallacy -- and make sure they are aware of, and properly weight, all the different risks and benefits related to a given policy.
Tuesday, Sep. 27, 2005
Does it Matter Whether John Roberts Becomes an Associate Justice, or the Chief?
Why Both the President and Democratic Skeptics Are Wrong to Think it Does
FindLaw columnist and Columbia law professor Michael Dorf challenges the conventional wisdom, when it comes to President Bush's decision to nominate John Roberts not only to the Supreme Court, but, now, to become its Chief Justice. Dorf argues that, contrary to popular belief, the Chief Justice "wields scarcely any greater power than the other members of the Court." Dorf draws on both the Court's history, and the specific rules of its workings, to support his point. He also argues, again drawing on knowledge of Court procedure, that any argument that President Bush's decision to nominate Roberts for Chief Justice is geared to accommodate the Court, rather than serve Bush's politics, is specious.
Monday, Sep. 12, 2005
Justice Stevens Adds Fuel to the Fire Over the New London Eminent Domain Case
FindLaw columnist and Columbia law professor Michael Dorf discusses Justice Stevens's recent remarks, during a speech, about the recent, controversial Takings Clause decision he authored -- which allowed New London, Connecticut to force the sale of private homes to a private development. Stevens made clear to his audience that his constitutional judgment in that case was "entirely divorced from my judgment concerning the wisdom of the program." What, exactly, did Stevens mean? And is the constitutional rule his decision applied also unwise -- and anti-free-market? Dorf points out the nuances of Stevens's remarks, and notes that the Court's decision may actually end up being pro-, not anti-, free market.
Monday, Aug. 29, 2005
Should the Law Punish Adultery? The Troubling Case of General Kevin Byrnes
FindLaw columnist and Columbia law professor Michael Dorf uses the well-known recent case of General Kevin Byrnes -- whose adultery meant he lost his command, suffered damage to his reputation, and may also lose retirement pay, even though his affair was with a civilian, and he and his wife were separated at the time. Is there any justification for regulations such as the one that was applied so punitively to General Byrnes? Dorf argues the answer is no, and explains why.
Monday, Aug. 15, 2005
The Five-Minute Law School: Everything You Learn In Your First Year, More or Less
FindLaw columnist and Columbia law professor Michael Dorf does summer mini-law school programs one better, by offering (tongue-in-cheek) the essentials of law school's first year in a single column. In the spirit of the five-minute university created by Saturday Night Live's "Father Guido Sarducci," Dorf offers the five-minute law school. Pay attention! This will be on the five-second exam.
Wednesday, Aug. 03, 2005
"The Nation's Second-Highest Court" Upholds Military Commissions
FindLaw columnist and Columbia law professor Michael Dorf discusses an important recent "war on terrorism" ruling from the U.S. Court of Appeals for the District of Columbia Circuit. In that ruling, the court upheld the Bush Administration's plans to try suspected Al Qaeda terrorists before military commissions -- rather than courts martial, civilian criminal courts, or any other alternative. Dorf explains the multiple bases for the court's ruling -- and also focuses on what the plaintiff's attorneys said was the problem with it: The court allowed "enemy combatant" status to be assumed, not proven in court.
Wednesday, Jul. 20, 2005
Should a Woman be Named to Succeed Sandra Day O'Connor? What Her Own Opinions Suggest
FindLaw columnist and Columbia law professor Michael Dorf discusses whether President Bush should prefer -- or even insist upon -- a female nominee to succeed retiring Supreme Court Justice Sandra Day O'Connor. Dorf explains how diversity issues -- relating to geography, race, religion, and gender -- have played out so far, in the Court's history. He also looks to Justice O'Connor's own opinions regarding preferences granted in order to increase diversity -- and considers whether the Justice's own views suggest that the President should prefer, or even insist upon, a female successor for her.
Tuesday, Jul. 05, 2005
The Case of the Half-Million Dollar Typo: The Supreme Court Traps Property Owners in a Catch-22
FindLaw columnist and Columbia law professor Michael Dorf discusses this week's Supreme Court decision on property rights -- in particular, "regulatory" takings. The case involved hotel owners who had to pay over half a million dollars to correct a very expensive typo on papers they had submitted to the government. It also involves, as Dorf explains, the complex intersection of state and federal litigation -- and questions of whether, and how, a plaintiff or defendant can lose the right to sue in federal court.
Wednesday, Jun. 22, 2005
The Supreme Court Upholds Congressional Power to Override California's Medical Marijuana Law: Judicial Federalism Gets Really Interesting
FindLaw columnist and Columbia law professor Michael Dorf discusses the Supreme Court's recently-issued ruling in Gonzalez v. Raich -- the "medical marijuana case." There, the Court held that, despite California law purporting to legalize cultivation and use of marijuana for medical purposes alone, such cultivation and use remain illegal, pursuant to the broad prohibitions of the federal Controlled Substances Act. Dorf looks at why even some justices who endorse "states' rights" federalism joined the 6-3 majority here.
Wednesday, Jun. 08, 2005
In Vino Veritas? The Supreme Court's Decision on Interstate Wine Shipment Creates Some Odd Bedfellows Among the Justices
FindLaw columnist and Columbia law professor Michael Dorf discusses a recent Supreme Court decision that created odd bedfellows: In a 5-4 decision on wine sales, liberals aligned with conservatives, and conservatives with liberals. Dorf considers why, and in so doing, explains the basis for a ruling that will give a boost to e-commerce: The Court held that a state cannot -- as New York and Michigan had done -- allow consumers to buy wine directly from in-state sellers, but not out-of-state sellers.
Monday, May. 23, 2005
Why Houston Rockets Coach Jeff Van Gundy Is a More Fitting Free Speech Hero Than New York Times Reporter Judith Miller
FindLaw columnist and Columbia law professor Michael Dorf reminds us that the truest free speech heroes may not always be the most obvious ones. Judith Miller of the New York Times is risking jail to protect her confidential sources, in connection with the Valerie Plame leak investigation -- in a case that may reach the Supreme Court. Yet, Dorf argues, rather than choosing Miller as our free speech ideal, we would do better to look to Houston Rockets Coach Jeff Van Gundy, who has also sought to protect confidential sources -- whose reports challenge the integrity of NBA referees.
Wednesday, May. 11, 2005
Why Al Qaeda Conspirator Zacarias Moussaoui's Guilty Plea Probably Won't Save His Life
FindLaw columnist and Columbia law professor Michael Dorf assesses the guilty plea of Zacarias Moussaoui, indicted on the theory he was the "twentieth highjacker" in the 9/11 plot. Moussaoui's guilty plea was not based on any promise of leniency from the government; why, then, did he enter the plea -- given that he now faces the death penalty? Dorf explains that there are often good reasons for defendants' entering guilty pleas without any promise of leniency in capital cases -- but adds that these reasons do not seem to fit Moussaoui's situation.
Wednesday, Apr. 27, 2005
Does a Transgendered Biological Male Have The Right Use a Women's Restroom in New York City?:
Why a Local Gender Identity Discrimination Ban Has Become Controversial
FindLaw columnist and Columbia law professor Michael Dorf discusses several recent developments relating to New York City's anti-discrimination law, and their likely consequences: A recent settlement stipulates that a biological male who is transgendered (he identifies as a woman) may use the women's restroom at a New York security firm. And the City's official guidelines support this outcome. But a recent court decision indicates that the City's Human Rights Law does not require this result. Dorf explains why, if other companies follow the example of the security firm that settled its case, this aspect of the Human Rights Law may become very controversial. He also examines the similarities and differences between race-based and gender-based segregation.
Monday, Apr. 11, 2005
How the Schiavo Federal Court Case Might Have Been Won
FindLaw columnist and Columbia law professor Michael Dorf argues that while the claims Terri Schiavo's parents, the Schindlers, have made on her behalf were weak, there were other, stronger claims that might have been presented in court. In particular, Dorf argues, the Schindlers and their attorneys could have taken far better advantage of the law Congress passed regarding Terri, and of the Cruzan ruling -- the U.S. Supreme Court precedent regarding patients who, like Terri, are in a persistent vegetative states.
Saturday, Mar. 26, 2005
Evangelicals Debate a Broadened Agenda: How Much Mixing of Religion and Politics Does the First Amendment Permit?
FindLaw columnist and Columbia law professor Michael Dorf takes a look at the fine constitutional lines that govern how religion and politics can interact. Dorf notes that Evangelical Christians are considering a "call to civic responsibility" that would likely increase activism on some causes beloved by Republicans, and others, by Democrats. But Dorf explains how the Constitution and the Supreme Court have set some limits on religiously-motivated laws, if they lack a parallel secular purpose.
Wednesday, Mar. 16, 2005
Thanks to a Joint Statement by Top Law Journals, Law Review Articles Will Get Shorter, But Will They Get Better?
FindLaw columnist and Columbia law professor Michael Dorf discusses the cause, and the possible effect, of a joint statement issued recently by a set of top law journals making clear that they strongly encourage the submission of shorter law review articles. Dorf examines what caused law review article lengths to bloat in the first place, and predicts that the joint statement's effect may, unfortunately, be to shrink only the most original and worthwhile portion of law review articles -- with the background material and citations remaining intact.
Monday, Feb. 28, 2005
New York Mayor Michael Bloomberg's Response to a Same-Sex Marriage Ruling:
Should Executive Officials Defend Laws They Consider Unconstitutional?
FindLaw columnist and Columbia law professor Michael Dorf discusses the recent decision by New York Mayor Michael Bloomberg to appeal a Manhattan county court's ruling that, under New York's Constitution, marriage must be available not only to opposite-sex, but also to same-sex couples. As Dorf explains, this decision raises not only the same-sex marriage issue, but also an issue of whether officials in a state or federal executive branch can independently interpret their constitutions, or whether they must always defer to the interpretation, or what they predict will be the interpretation, of the courts.
Monday, Feb. 14, 2005
The Supreme Court Upholds Suspicionless Dog Sniffs
FindLaw columnist and Columbia law professor Michael Dorf discusses an important recent Supreme Court decision --one with two very interesting dissents. The opinion holds that when a drug-sniffing dog "alerts" to indicate the presence of drugs in a car trunk, no Fourth Amendment "search" has occurred -- and thus, the drugs in the trunk may be used as evidence at trial. Dorf considers the implication of the decision for police activities involves dog sniffs directed at persons, not cars, and involving bomb-sniffing dogs.
Tuesday, Feb. 01, 2005
The Use of Foreign Law in American Constitutional Interpretation:
A Revealing Colloquy Between Justices Scalia and Breyer
FindLaw columnist and Columbia law professor Michael Dorf discusses an interesting colloquy between Supreme Court Justices Antonin Scalia and Stephen Breyer regarding the various ways foreign law should -- or should not -- inform the interpretation of the U.S. Constitution. Dorf contrasts Scalia and Breyer's views; points to several recent cases in which the Supreme Court has already taken notice of foreign law as directly relvant to its decision; and points out a way in which foreign law's influence on issues decided in U.S. courts will be inevitable.
Wednesday, Jan. 19, 2005
The Justice Department's Change of Heart Regarding Torture:
A Fair-Minded and Praiseworthy Analysis That Could Have Gone Still Further
FindLaw columnist and Columbia law professor Michael Dorf contrasts the positions taken in a key, highly controversial Office of Legal Counsel memo on torture dated August 2002, with a new, December 2004 memo on the same subject by the same office. Dorf finds the new memorandum to be generally fair, professional, and in line with OLC traditions, but notes one topic on which the new memo falls short: It does not repudiate the old memo's claim that Congress lacks the power to prohibit torture undertaken at the behest of the President, acting in his capacity as Commander in Chief.
Wednesday, Jan. 05, 2005
Why It's Unconstitutional to Teach "Intelligent Design" in the Public Schools, as an Alternative to Evolution
In 1987, the Supreme Court struck down a Louisiana law that said evolution could not be taugh in public school unless "creation science" was taught alongside it, as an alternative. But now, as FindLaw columnist and Columbia law professor Michael Dorf explains, cases about another evolution "alternative" are now again in the legal system -- and may well make their way up to the Supreme Court once again. This time, the evolution alternative is "intelligent design" -- which relies on gaps in the fossil record and other uncertainties to contend that an intelligent agent must have been guiding the course of life on Earth. Dorf argues that laws mandating that "intelligent" design be taught ought to be struck down as unconstitutional, but fears courts that are cautious about policing the religion/science divide may not agree.
Wednesday, Dec. 22, 2004
A Federal Appeals Court Rules That Universities Can Bar Military Recruiters Without Losing Federal Grant Money:
A Welcome Result Based on Flawed Reasoning
FindLaw columnist and Columbia law professor Michael Dorf discusses a recent federal appellate decision that, he argues, reached a good result based on unconvincing reasoning. The decision struck down a federal law that says, in effect, that universities that bar military recruiters from campus due to the discriminatory "don't ask, don't tell" policy can no longer receive federal funds. It held that the law violates the First Amendment. But was the court right that recruiting access is within the purview of a university's First Amendment rights? And was it right that the government must fund even those universities with whom it disagrees? Dorf considers the arguments on each side.
Wednesday, Dec. 08, 2004
Does the Constitution Permit the Blue States to Secede?
With Permission, Perhaps; Unilaterally, No
FindLaw columnist and Columbia law professor Michael Dorf brings realism to the hyperbole by asking in all seriousness the question many have posed in jest: Under the U.S. Constitution, could the blue states -- or the red states -- choose to secede? Dorf examines the Constitution and Lincoln's arguments on secession with respect to the Civil War, and concludes that unilateral secession is unconstitutional -- but secession with mutual consent may be constitutional. But he also notes the issues "mutual consent" secession would raise.
Wednesday, Nov. 24, 2004
Should Democrats Move to the Right on Cultural Issues?
Lessons of the 2004 Presidential Election and the Civil Rights Movement
FindLaw columnist and Columbia law professor Michael Dorf critiques a possible strategy for Democrats that has been suggested in the wake of President Bush's re-election. As Dorf explains, the strategy would counsel the party's adopting more conservative stances on gay rights and abortion -- and, for example, consenting to Supreme Court nominees with similar stances on these issues. Dorf argues this strategy for Democrats would be not only wrong, but ineffective.
Wednesday, Nov. 10, 2004
Should Sinclair Management Be Liable to its Shareholders for Putting Politics Over Business?
Why Corporate Law Alone Cannot Provide an Answer
FindLaw columinst and Columbia law professor Michael Dorf discusses the raft of suits currently faced by Sinclair Broadcast Group, based on their decision to air a program entitled"A POW Story: Politics, Pressure and the Media." Apparently, Sinclair was originally going to simply air footage from "Stolen Honor: Wounds That Never Heal," an anti-Kerry documentary. Instead, it included in "A POW Story" -- in addition to footage from "Stolen Honor" -- some additional clips from a pro-Kerry documentary and commentary from Kerry supporters. Dorf focuses, in particular, on the suit that alleges that Sinclair management's choice to air "A POW Story" violated corporate law principles.
Monday, Oct. 25, 2004
How Both the Bush and Kerry Plans for Medical Malpractice Reform Override the Rights of Patients--and the Interests of the States
FindLaw columnist and Columbia law professor Michael Dorf explains both the Bush and Kerry plans for reforming medical malpractice litigation over the next four years -- and finds both wanting. Dorf contends that such reform should have two goals -- compensating patients damaged by genuine malpractice, and minimizing competent doctors' chance of incurring litigation and insurance costs -- but argues that neither the Bush nor the Kerry plan can meet both goals
Wednesday, Oct. 13, 2004
Have We Heard the Last of Yaser Hamdi?
Why His Promise Not to Sue the Government May Not be Binding
FindLaw columnist and Columbia law professor Michael Dorf asks and answers a provocative question: Is the government's agreement with Yaser Hamdi binding? (Hamdi is an American citizen whom the government has held for years as an "enemy combatant".) Among other things, the agreement requires Hamdi to waive his right to sue the government. But as Dorf explains, a key Supreme Court precedent suggests that waiver may not be valid -- and that Hamdi could still sue.
Wednesday, Sep. 29, 2004
Can Justice Truly Be Blind?
Reflections on the New York Yankees, Serena Williams, and Frank Quattrone
FindLaw columnist and Columbia law professor Michael Dorf discusses three recent, high profile incidents in which decisions were questioned -- and bias on the part of the decisionmaker was suggested. The particular bias claimed was bias against the prominent and successful. Dorf explains why there will inevitably be room for bad calls in any system of law or rules -- but why such calls will tend to favor, not harm, the powerful "Goliaths" of the world.
Wednesday, Sep. 15, 2004
Why "Swift Boat Veterans for Truth" and Other "527" Organizations Can't Be Silenced
FindLaw columnist and Columbia law professor Michael Dorf asks and answers the provocative question: If President Bush and John McCain were to press for legislation to restrict "527 organizations" such as "Swift Boat Veterans for Truth," would such legislation be constitutional? Dorf answers no: In his view, it would likely violate the First Amendment to regulate political speech this way, despite the recent decision in McConnell v. FEC upholding the Bipartisan Campaign Reform Act.
Wednesday, Sep. 01, 2004
Kerry Stands by His Iraq War Vote
And Stands, With Bush, Against Constitutional Principles
FindLaw columnist and Columbia law professor Michael Dorf discusses Senator and Presidential candidate John Kerry's recent claim that even if he had known then what he knows now, he still would have voted to authorize the use of force against Iraq in October 2002. Dorf asks: How can this be, given that two of the justifications for the war (WMDs and possible terrorism connection) have not panned out, and the third is tenuous at best? The answer, Dorf suggests, is that Kerry --like Bush -- believes in an imperial presidency, but Dorf argues that the Constitution's grant to Congress of power to declare war shows that it rejected an imperial presidency.
Wednesday, Aug. 18, 2004
Is There A Constitutional Right to Sexual Privacy?
Finding None, a Federal Appeals Court Upholds Alabama's Sex Toy Prohibition
FindLaw columnist and Columbia law professor Michael Dorf explores the implications of a federal appeals court's recent decision to uphold Alabama's anti-sex-toy law despite several rounds of strong constitutional challenges. Dorf notes that as with so many controversies as to whether a given freedom is a constitutionally specially protected "fundamental right," the answer depends largely on how the right in question is described.
Wednesday, Aug. 04, 2004
In the Event of a Terrorist Attack Affecting the Election, Who Decides Whether to Delay?
What the Constitution and Federal Statutes Say
FindLaw columnist and Columbia law professor Michael Dorf explains how the U.S. Consitution, and federal statutes, would apply should a terrorist attack affect November's election. How would ballots be cast and counted? Who would decide if the election should be delayed? Dorf calls upon Congress to act to remedy the uncertainties, and add uniformity, to the current legal situation.
Wednesday, Jul. 21, 2004
The Likely Impact of the 2004 Presidential Election on the Composition and Decisions of the Supreme Court
FindLaw columnist and Columbia law professor Michael Dorf contrasts the way the Supreme Court will likely look if the Bush presidency goes into a second term, and if there is a Kerry presidency. Dorf focuses first on abortion rights -- noting that two conservative Court appointments could potentially overrule, or drastically curtail, Roe v. Wade. Then he goes on to discuss a wide range of constitutional law areas that probably will -- or in some cases, probably will not -- be affected by the results of November's election.
Wednesday, Jul. 07, 2004
Can a State Make it a Crime to Refuse to Identify Yourself to the Police?
In a Narrow Ruling, the Supreme Court Says Yes
FindLaw columnist and Columbia law professor Michael Dorf discusses an interesting recent ruling by the Supreme Court that, as he explains, implicates both the Fourth Amendment's prohibition on certain searches and seizures (including arrests), and the Fifth Amendment's prohibition on government-compelled self-incrimination. The question the Court addressed was whether a state can constitutionally make it a crime for a person to refuse to identify himself or herself to the police. A majority of the Court answered yes.
Wednesday, Jun. 23, 2004
Reagan and the Courts:
A Sober Assessment
FindLaw columnist and Columbia law professor Michael Dorf discusses former President Reagan's legacy when it comes to both the Supreme Court, and the lower federal courts. Dorf assesses the Reagan appointee Justices -- O'Connor, Scalia, and Kennedy; Reagan also elevated Rehnquist to Chief Justice. He also argues that, when it comes to the lower federal courts, Reagan appointee judges have often exhibited a disappointing lack of the same compassion many praised in Reagan himself.
Wednesday, Jun. 09, 2004
What a Chinese Height Discrimination Case Says About Chinese (and American) Constitutional Law
FindLaw columnist and Columbia law professor Michael Dorf discusses some exciting recent developments in Chinese Constitutional Law that may end up mirroring developments in American Constitutional Law in the time of Marbury v. Madison. Dorf focuses in particular, in a set of cases that will likely force courts to decide if height discrimination -- a common practice by which shorter potential employees are disfavored, or even outright excluded -- is an illegal violation of equality under Chinese law.
Wednesday, May. 26, 2004
The Supreme Court Gives Partisan Gerrymandering the Green Light--or at Least a Yellow Light
FindLaw columnist and Columbia law professor Michael Dorf analyzes the recent 5-4 decision in an important Supreme Court case about partisan gerrymandering -- that is, the apportionment of voters to legislative district in a political manner. Among other points, Dorf notes the potential significance of Justice Kennedy's decision to cast his vote with the other four in the majority, but not to join their opinion.
Wednesday, May. 12, 2004
Rejecting the All-or-Nothing Approach in the Moussaoui Case and the Guantanamo Detainees Oral Argument
FindLaw columnist and Columbia law professor Michael Dorf compares two recent war-on-terrorism cases, and applauds the courts involved for taking a balanced, rather than an extreme, approach. One case is that of Zacarias Moussaoui -- who allegedly conspired to try to become "twentieth hijacker" in the 9/11 attacks. Moussaoui asked for his indictment to be dismissed unless he could call certain witnesses; the government said it need not produce the witnesses due to national security concerns; the court let the indictment stand but compelled the government to produce the witnesses' statements. The other case is the Guantanamo detainees case before the Supreme Court, in which the Justices seem to be looking for a middle ground.
Wednesday, Apr. 28, 2004
Can Ethnic Hatred be Eliminated by Eliminating Ethnicity?
The Rwanda Experiment
FindLaw columnist and Columbia law professor Michael Dorf discusses Rwanda's approach to addressing its rifts -- divisions that ten years ago, caused terrible neighbor-on-neighbor slaughter there -- by deeming all citizens simply "Rwandan," and none Hutu or Tutsi. Can this kind of attempt to eliminate ethnicity ever work -- and is it ever a good idea? Dorf considers provocative questions of ethnicity, assimilitation, and identity as they relate to America, Rwanda, and other countries.
Wednesday, Apr. 14, 2004
A Federal Appeals Court Bars Release of "Partial Birth" Abortion Records,
And Offers an Interesting Perspective on Privacy Rights
FindLaw columnist and Columbia law professor Michael Dorf discusses a recent decision by the U.S. Court of Appeals for the Seventh Circuit, authored by well-known jurist Richard Posner. The decision rejects the Justice Department's bid to get a Chicago area hospital to turn over patient records for women who have had so-called "partial birth" abortions. Although the women's names and identifying information would be omitted before attorneys saw the records, Judge Posner argues that their privacy would still be compromised. Dorf assesses the argument, illuminating the difference between anonymity and privacy.
Wednesday, Mar. 31, 2004
Justice Scalia's Persuasive But Elitist Response to the Duck Hunting Controversy
FindLaw columnist and Columbia law professor Michael Dorf discusses the continuing, heated controversy over Justice Antonin Scalia's refusal to recuse himself from a case involving Vice President Dick Cheney -- despite the fact that Scalia and Cheney went duck hunting together. Dorf argues that a careful look at the relevant law on recusal shows Scalia's defense of his decision is persuasive. But Dorf takes issue with the elitist tone, and implications, of Scalia's opinion explaining his choice not to recuse himself.
Wednesday, Mar. 24, 2004
The Supreme Court's Recent Ruling that Federal Age Discrimination Law Protects the Old, but not the Young:
Dodging the Deeper Issue
FindLaw columnist and Columbia law professor Michael Dorf discusses a recent Supreme Court decision interpreting the Age Discrimination in Employment Act (ADEA). While the majority of the Court held that the act does not protect those who face discrimination due to their youth, two dissenters disagreed. Dorf argues that, while this is a close case, there is much to be said for the dissenters' point of view.
Wednesday, Mar. 03, 2004
Three Bad Reasons--and One Very Good Reason--to Oppose a Constitutional Amendment Barring Same-Sex Marriage
FindLaw columnist and Columbia law professor Michael Dorf discusses the arguments against a proposed amendment to the U.S. Constitution that would ban same-sex marriage. Dorf argues that three of these arguments don't hold water: the argument deriving from states' rights; the argument claiming that constitutional amendments can legitimately expand, but not contract, individual rights; and the argument that relies upon a general hostility to constitutional amendment. However, he argues there is one very powerful argument against the amendment: the moral argument for treating gay persons as equal.
Wednesday, Feb. 18, 2004
Does the First Amendment Protect Janet Jackson and Justin Timberlake?
A Brief Primer on the Constitutional Law of TV Decency Regulation
FindLaw columnist and Columbia law professor Michael Dorf discusses the recent controversy over the Super Bowl halftime show by Janet Jackson and Justin Timberlake, in which Jackson's breast was revealed. FCC Commissioner Michael Powell says he is now investigating the entire halftime show. Dorf discusses the FCC regulations and Supreme Court decisions that his investigation may implicate.
Wednesday, Feb. 04, 2004
Caucuses and Democracy in Iowa and Iraq:
Should Direct Elections Be Held Instead?
FindLaw columnist and Columbia law professor Michael Dorf discusses the conjunction of two important news stories -- the story of the current Presidential primary caucuses, and the story relating the proposed U.S. plan for Iraqi elections, which would also employ caucuses. Dorf considers the pros and cons of caucuses, and contrasts the likely results of elections employing caucuses and direct elections, respectively, in Iraq. He also argues that the Bush Administration should consider extending the deadline for Iraqi elections in order to allow a Constitution to be put into place, which will make the caucus/direct election choice a more genuine one.
Monday, Jan. 19, 2004
Do Symbolic Pardons Do More Harm than Good?
The Lenny Bruce and Swiss Humanitarian Cases
FindLaw columnist and Columbia law professor Michael Dorf discusses the significance of the pardons recently given to deceased comedian Lenny Bruce and to Swiss humanitarians who, during World War II, helped Jews escape Nazi persecution. Dorf questions the value of pardons that come so belatedly, and are not accompanied by compensation to those who were wronged.
Wednesday, Jan. 07, 2004
Should Foreigners Be Permitted to Make Campaign Contributions to U.S. Candidates?
Surprisingly, the Answer May Be Yes
FindLaw columnist and Columbia law professor Michael Dorf explores both constitutional and policy arguments relevant to the controversy over foreigners' campaign contributions to U.S. election. Dorf contends that the case for allowing such contributions is far stronger than one might at first think.
Wednesday, Dec. 24, 2003
How Should Courts Handle Frequent Filers?
A Trampling Incident at a Florida Wal-Mart Highlights a Dilemma
FindLaw columnist and Columbia law professor Michael Dorf discusses a recurring problem for the judicial system: What should be done with plaintiffs who file numerous cases? These plaintiffs' filings may be meritless, but on the other hand, they also may truly seek to recover for law violations that genuinely harmed them. Dorf comments upon how the legal system should address "frequent filers" -- such as the woman who recently sued Wal-Mart alleging she was trampled in a holiday shopping rush, and was discovered to have also sued Wal-Mart repeatedly in the past.
Wednesday, Dec. 10, 2003
Could Justice Scalia's Affirmative Action Dissent Become a Self-Fulfilling Prophecy?
FindLaw columnist and Columbia law professor Michael Dorf discusses a recent dissent by Justice Antonin Scalia to the Supreme Court's denial of review in an affirmative action case. Dorf points out that, had Scalia, not dissented, the denial of review would have meant little, for the Court denies review in many more cases than it accepts. But Scalia's dissent, ironically, may suggest to lower courts and practitioners that the Supreme Court's view of affirmative action is every bit as liberal as Scalia decries it to be. Dorf considers this boomerang effect, and why Scalia may find it an acceptable cost of dissenting.
Wednesday, Nov. 26, 2003
Why the Lawsuit Challenging Tennessee's "Choose Life" License Plates
FindLaw columnist and Columbia law professor Michael Dorf takes on an intriguing and complex First Amendment case: The suit by the ACLU and Planned Parenthood to block Tennessee from continuing its specialty license plates program, under which drivers can opt for either generic or specialty plates. Some of the specialty plates bear the phrase "Choose Life," and part of the fee collected will be earmarked for an anti-abortion organization that will use the money to promote adoption services. Other specialty plates carry other messages, and benefit other organizations, but there is no pro-choice plate.
Wednesday, Nov. 12, 2003
How The Florida Legislature and Governor Have Usurped the Judicial Role
in the Schiavo "Right to Die" Case
FindLaw columnist and Columbia law professor Michael Dorf discusses the controversial case of Terri Schiavo: She is in a persistent vegetative state; her husband would like to disconnect life support, saying that was her wish; but her parents oppose him. Although a court ruled in favor of Terri's husband, the Florida legislature then intervened. Dorf argues that this intervention was contrary to both the U.S. and Florida Constitutions.
Wednesday, Oct. 29, 2003
America's Favorite Pastime Exposes a Necessary Evil in the Legal System
Harmless Error in Baseball, and in Law
FindLaw columnist and Columbia law professor Michael Dorf parallels concepts of "harmless error" in baseball, and in the law. To illustrate his point, Dorf focuses on the recent controversy over the game-deciding ruling by the umpires in Game 3 of the American League Divisional Playoff Series between the Boston Red Sox and the Oakland Athletics. That ruling forced umpires to apply a little-known baseball rule that authorized them to decide how far a runner would have advanced, had he not been obstructed (and thus whether or not the obstruction was "harmless").
Monday, Oct. 13, 2003
The Legal Status of the Don't-Call Registry:
Sooner or Later, They'll Leave You Alone
FindLaw columnist and Columbia law professor Michael Dorf discusses both the specifics, and the ultimate upshot, of the litigation involving the federal "do not call" registry, which allows consumers to avoid receiving telemarketing calls. Dorf contends the district court ruling that has delayed the list from being enforced against telemarketers misconstrued First Amendment precedent, and thus is likely to be reversed on appeal.
Tuesday, Sep. 30, 2003
The Supreme Court's Extraordinary Campaign Finance Reform Oral Argument
FindLaw columnist and Columbia law professor Michael Dorf discusses an issue so important it caused the Supreme Court to interrupt its summer vacation: campaign finance reform. The legislation under attack is the Bipartisan Campaign Reform Act (also know as McCain-Feingold). Dorf explains the legal challenges, the political landscape, and what the Court's ruling may look like when it appears -- as it likely will soon.
Wednesday, Sep. 17, 2003
A New Proposal to Permit Lawyers To Cite "Unpublished" Opinions
Does It Go Far Enough?
FindLaw columnist and Columbia law professor Michael Dorf considers a controversial practice of some federal appellate courts: Designating a large number of opinions as "unpublished" or "non-precedential" (although they are available on electronic databases), and then prohibiting attorneys from citing them in briefs. Dorf discusses a proposed new rule that would alter this practice, and argues in favor of simply abolishing it instead.
Tuesday, Sep. 02, 2003
Why Federal Law May Keep the Terminator off the Air Until After California's Recall Election:
FindLaw columnist Michael Dorf explains the strange intersection of the California recall, the First Amendment, and communications law. In particular, Dorf considers the constitutionality -- and wisdom -- of the FCC regulation requiring equal time for other candidates whenever there is a broadcast featuring one candidate -- even if the broadcast is a Schwarzenegger movie; episode of Diff'rent Strokes including Gary Coleman; or Saturday Night Live skit featuring Don Novello, a.k.a. "Father Guido Sarducci."
Wednesday, Aug. 20, 2003
Balancing Privacy and Fair Trial Rights Against the Public's Right to Information In the Kobe Bryant Case
FindLaw columnist and Columbia law professor Michael Dorf discusses two important recent constitutional issues in the Kobe Bryant case. First, did it violate the First Amendment for the judge to threaten to punish members of the media who dared to violate his order and publish or broadcast the names or photographs of the alleged victim, her family members, witnesses, or potential jurors? Second, how should Bryant's Sixth Amendment right to a fair trial affect the judge's imminent decision whether to keep the case records sealed for now?
Wednesday, Aug. 06, 2003
Can Kobe Bryant Be Convicted On "He Said, She Said" Evidence Alone?
FindLaw columnist and Columbia law professor Michael Dorf takes issue with the widely-expressed view that if the case against star athlete Kobe Bryant comes down to "he said, she said," Bryant will certainly be acquitted. Dorf also discusses the Colorado statutes that define the crime alleged in the complaint against Bryant, and stipulate what evidence relating to his accuser may be admissible in court.
Wednesday, Jul. 23, 2003
A TV Appearance by Two Supreme Court Justices Indicates How Much the Court Continues to Value Image Control
FindLaw columnist and Columbia law professor Michael Dorf discusses the recent, controversial television appearance by two Supreme Court Justices, Sandra Day O'Connor and Stephen Breyer. Dorf lauds their decision to appear, but notes some troubling signs, in their comments, that the Court's Justices continue to try to control the conversation about their performance.
Wednesday, Jul. 09, 2003
The Supreme Court's Divided Rulings in the University of Michigan Affirmative Action Cases:
What Does it All Mean?
FindLaw columnist and Columbia law professor Michael Dorf provides a thorough, thought-provoking guide to the Supreme Court's recently-issued decisions about affirmative action at the University of Michigan's undergraduate program, and its law school. Dorf contends that the decisions will not only affect affirmative actions programs at schools nationwide, but also afford significant insight into how the court operates, and even into individual Justices's psychology.
Wednesday, Jun. 25, 2003
The Unanimous Supreme Court Decision in The Iowa Gambling Case:
When Is a Difference Also an Inequality?
FindLaw columnist and Columbia law professor Michael Dorf puts a recent, unanimous Supreme Court ruling into the broader context of the legal history of economic regulation. The Court's decision allowed Iowa to impose different tax rates on slot machines at racetracks and riverboats, respectively. Dorf explains why all nine Justices agreed that to do so was constitutional, and why certain kinds of non-economic regulation would have been treated very differently.
Wednesday, Jun. 11, 2003
How Abortion Politics Impedes Clear Thinking on Other Issues Involving Fetuses
FindLaw columnist and Columbia law professor Michael Dorf discusses two controversial legal proceedings involving fetuses, and whether they undermine Roe v. Wade. The first is the decision by California to charge Scott Peterson with homicide in connection with the death of the unborn child carried by his wife, Laci. The second is the decision by Florida Governor Jeb Bush to seek the appointment of a guardian for the fetus in a case that will decide whether a severely mentally disabled woman should have an abortion after a pregnancy resulted from her rape.
Wednesday, May. 28, 2003
The Real Threat to Second Amendment Values Isn't the Assault Weapon Ban:
It's Rumsfeld's Standing Army
Drawing on seminal historical and legal sources, FindLaw columnist and Columbia law professor Michael Dorf discusses a less discussed, but still highly significant, side of the Second Amendment: One of its main purposes was to deter the rise of full-time "standing" armies, as opposed to homeland-linked militias. Dorf argues that Secretary of Defense Donald Rumsfeld's strategies run the risk of creating just such a standing army, untethered to the American public's will or wishes.
Wednesday, May. 14, 2003
Does Federal Tort Reform Unduly Infringe on State Sovereignty?
FindLaw columnist and Columbia law professor Michael Dorf discusses a potential conflict between tort reform proposals that would apply a nationwide cap on pain and suffering and punitive damages, and state sovereignty, overriding state remedies and in some cases, states' own caps. Do such proposals violate the Constitution? Dorf discusses.
Wednesday, Apr. 30, 2003
A Multi-Stage Process for Post-War Iraq
FindLaw columnist and Columbia law professor Michael Dorf sketches out a four-step process to govern the transition in post-war Iraq. Two of the steps involve constitution-making -- first, of an interim constitution, and then of a permanent constitution. Drawing on both South African and American history, Dorf explains why having two stages in the process of constitution-making is often wise.
Wednesday, Apr. 16, 2003
Guiding Principles for the Loyal Opposition:
Anti-War But Not Anti-U.S.
FindLaw columnist and Columbia law professor Michael Dorf confronts the question on the minds of many: Now that the war on Iraq has begun, and continues, what position should the "loyal opposition" -- those who support the U.S., but oppose the war -- adopt? Should they call for the war's immediate cessation? Or should they change their views and support the Administration, taking into account the cost of withdrawing now? Dorf offers four principles to be considered as individuals frame their own answers to these questions.
Wednesday, Apr. 02, 2003
Is the War on Iraq Lawful?
FindLaw columnist and Columbia law professor Michael Dorf discusses two leading legal questions relating to the Iraq war: Has it been properly authorized by prior U.N. resolutions, as the Administration claims, or by any international law theory as to when war is legitimate? And, has it been properly authorized by Congress? Dorf also explains why it may matter if war is lawful or not, despite the fact that it can obviously proceed either way.
Wednesday, Mar. 19, 2003
The Supreme Court Rejects Racketeering Liability for Anti-Abortion Protesters, But Fails to Admit How Close the Question Actually Was
FindLaw columnist and Columbia law professor Michael Dorf argues that the recent, 8-1 decision by the Supreme Court holding that the RICO statute does not reach violent anti-abortion protesters made the question seem easier than it actually was. Indeed, Dorf points to a Court precedent interpreting similar statutory language that reached an opposite result.
Wednesday, Mar. 05, 2003
The Misguided Quest for Geographic Uniformity in Capital Punishment:
Why It Conflicts With Constitutional Jury Trial Rights
FindLaw columnist and Columbia law professor Michael Dorf argues that while there is a case to be made for national uniformity in some legal areas, the application of the death penalty is not such an area. Dorf contends that the constitutional guarantee of an in-state jury trial indicates that states are entitled to differ in the frequency with which they seek and apply the death penalty, contrary to Attorney General Ashcroft's recent suggestions.
Wednesday, Feb. 19, 2003
Why A Recent Supreme Court Copyright Ruling May Have Important Implications for Second Amendment Gun Rights As Well
FindLaw columnist and Columbia law professor Michael Dorf explores an important but, for many, unanticipated potential consequence of the Supreme Court's recent decision in Eldred v. Ashcroft. The decision famously declined to strike down legislation extending the copyright term for past and future works by twenty years. Dorf notes, however, that its logic may also have important consequences for Second Amendment interpretation -- consequences that may impede gun control legislation.
Wednesday, Feb. 05, 2003
THE THIRTIETH ANNIVERSARY OF ROE V. WADE:
WAS IT RIGHTLY DECIDED? WILL IT BE OVERRULED?
FindLaw columnist and Columbia law professor Michael Dorf comments on the profoundly controversial decision in Roe v. Wade on its thirtieth anniversary. Dorf discusses a number of arguments against Roe that make hash of the Constitution and Supreme Court precedent, and others that are much more tenable. He also explains what the future may hold in store for Roe if the balance on the Court changes.
Wednesday, Jan. 22, 2003
IS IRAQ IN "MATERIAL BREACH" OF ITS OBLIGATIONS UNDER THE U.N. RESOLUTION?
A GEOPOLITICAL QUESTION, NOT SIMPLY A LEGAL ONE
FindLaw columnist and Columbia law professor Michael Dorf takes a look at one aspect of the question on everyone's mind: Will there be war with Iraq, and if so, will it be justified? Dorf examines what it would mean for Iraq to be in "material breach" of the U.N. Resolution requiring it to accurately disclose its weapons of mass destruction capabilities.
Wednesday, Jan. 08, 2003
WHAT'S WRONG WITH RANKINGS, WITHIN AND OUTSIDE THE LAW- AND WHY THEY'RE USEFUL NONETHELESS
FindLaw columnist and Columbia law professor Michael Dorf takes a look at Americans' compulsion to determine who's number one -- and in particular, at US News and World Report's annual law school rankings. How closely should future law students rely on the rankings? Can schools game the rankings? How do the rankings intersect with schools' affirmative action programs? Dorf answer these questions and more, and notes an alternative law school ranking system students might also want to consider.
Wednesday, Dec. 25, 2002
IN PRAISE OF JOHN RAWLS, THE MAN WHO MADE MORAL PHILOSOPHY RESPECTABLE AGAIN --AND WHOSE VIEWS ALSO PROFOUNDLY INFORMED AMERICAN LEGAL THOUGHT
FindLaw columnist and Columbia law professor Michael Dorf discusses the influence of the recently deceased John Rawls. Dorf explains how Rawls's thought -- and in particular, his books A Theory of Justice and Political Liberalism -- not only changed American moral philosophy, but also important influenced constitutional thinkers' conception of how decisions should be made, and what justice and fairness might mean.
Wednesday, Dec. 11, 2002
ASHCROFT AND REHNQUIST GO ON A SHOPPING SPREE:
THE PROBLEM WITH CHOOSING JURISDICTIONS AND JUDGES BASED ON PREDICTED RESULTS IN THE SNIPER AND TERRORISM CASES
FindLaw columnist and Columbia law professor Michael Dorf discusses whether
there is anything wrong with the government's selecting judges and
jurisdictions favorable to the results they want. The Attorney General has
made clear that he wants the sniper suspects tried in a death penalty state,
and it appears that the government is also choosing sympathetic courts for
its terrorism-related cases. Indeed, Dorf argues that even Justice Rehnquist
has joined the game.
Wednesday, Nov. 27, 2002
UNSOLICITED ADVICE TO LAW SCHOOL APPLICANTS:
WITH PROSPECTS NEWLY LIMITED, BE SURE YOU
WANT TO BECOME A LAWYER
FindLaw columnist and Columbia law professor Michael Dorf answers a question
troubling many: With a bad economy, and so many applicants flooding the law
schools, is going to law school now a good idea -- or a bad one? Dorf
explains how the economic downturn is affecting lawyers, and what law
students can expect when they graduate.
Tuesday, Nov. 12, 2002
ESCHEWING LAW IN FAVOR OF FORCE:
THE PROBLEM WITH THE ADMINISTRATION'S NATIONAL
AND U.S. UNILATERALISM
FindLaw columnist and Columbia law professor Michael Dorf discusses the Bush
Administration's recently-released National Security Strategy -- which
outlines the U.S.'s plans to prevent other countries from achieving
superpower status. Dorf discusses how the Strategy plays into the
dichotomies between unilateralism and multilateralism, and between law and
force, and explains why the Strategy makes us seem like bullies even to our
Wednesday, Oct. 30, 2002
SUPREME COURT OCTOBER 2002 TERM PREVIEW: PART TWO
In Part Two of a two-part series on the upcoming Supreme Court term, FindLaw
columnist and Columbia law professor Michael Dorf discusses cases on
terrorism-related issues, race and the death penalty. Dorf argues, however,
that the Court's influence may be eclipsed this year by issues that are not
on its docket: the war and the economy.
Wednesday, Oct. 16, 2002
SUPREME COURT OCTOBER 2002 TERM PREVIEW--PART ONE
In Part One of a two-part series, FindLaw columnist and Columbia law
professor Michael Dorf previews for readers the upcoming Supreme Court term
that will open this month. In this column, Dorf discusses important Court
cases on topics ranging from Megan's Law, to "Three Strikes and You're Out"
laws, to cross-burning, to copyright, to federal family medical leave, to the
rights of non-citizens.
Wednesday, Oct. 02, 2002
FLORIDA STRIKES AGAIN:
WHAT THE LATEST ELECTION SNAFU SAYS ABOUT MACHINES
FindLaw columnist and Columbia law professor Michael Dorf discusses the
recent debacle regarding problems with the voting machines used for the
Florida gubernatorial primary -- which former Attorney General Janet Reno
very narrowly lost. Though Reno herself has conceded, Dorf notes that there
are several important lessons we can take from the future from Florida's
problems with tallying votes -- and one of the lessons, he explains, is quite
Wednesday, Sep. 18, 2002
THE STORY BEHIND THE SUPREME COURT'S
REFUSAL TO HEAR A RECENT JUVENILE DEATH PENALTY CASE
FindLaw columnist and Columbia law professor Michael Dorf discusses an
extremely rare occurrence: Supreme Court Justices' directly contradicting
themselves on exactly the same issue within a very short period of time. The
contradictions occurred when the Justices recently differed over whether to
accept a case that raised the issue of the constitutionality of the execution
of juvenile offenders. Dorf explores the possible reasons for the
conflicting positions, and also explores another conflict -- between the
"rule of four" to take a case, and the "rule of five" to stay an execution.
Wednesday, Sep. 04, 2002
WHO DECIDES WHETHER YASER HAMDI, OR ANY OTHER CITIZEN,
IS AN ENEMY COMBATANT?
FindLaw columnist and Columbia law professor Michael Dorf discusses the government's positions -- both substantive and procedural -- in the case of Yaser Hamdi, an American citizen captured during the Afghanistan conflict. The government claims Hamdi was a member of the Taliban and thus an enemy combatant. (Enemy combatants can be detained indefinitely without the right to a lawyer.) Dorf reviews its arguments, and criticizes, in particular, the government's contention that the military alone -- without judicial review -- has the right to determine whether Hamdi was indeed an enemy combatant.
Wednesday, Aug. 21, 2002
SURVEY SHOWS AMERICANS BELIEVE MORE MEASURES -- ESPECIALLY CAMPAIGN FINANCE REFORM -- ARE NEEDED TO RESPOND TO CORPORATE ACCOUNTING SCANDALS
How can the U.S. restore public trust in the markets, and ensure corporate accountability, after the recent scandals involving Enron, WorldCom and other companies? The Sarbanes-Oxley Act offers a partial solution, but should more be done? Drawing on a recent Columbia Law School survey, FindLaw columnist and Columbia law professor Michael Dorf discusses the public's attitudes towards investing in the market, and the ways people believe the problems might, and might not, be solved.
Wednesday, Aug. 07, 2002
CONFLICTS OF INTEREST AREN'T ALL BAD:
LESSONS FROM THE CORPORATE ACCOUNTING SCANDALS AND BEYOND
FindLaw columnist and Columbia law professor Michael Dorf discusses the delicate balance between eliminating conflicts of interest insofar as is possible, and increasing managers' incentives to perform. Dorf discusses two arguable conflict of interest cases -- the case of Enron and Arthur Andersen, and the case of an expert witness in a commercial law case who amended his treatise before he testified -- and also discusses the effect of having stock options that are, or are not, indexed to the market.
Wednesday, Jul. 24, 2002
A TRIAL COURT RULING THAT THE
FEDERAL DEATH PENALTY IS UNCONSTITUTIONAL
LEAVES A KEY QUESTION UNANSWERED
FindLaw columnist and Columbia law professor Michael Dorf discusses last week's surprising ruling by Southern District of New York federal judge Jed Rakoff, striking down the federal death penalty as violative of the Constitution's due process clause. Dorf argues that the ruling is both broader and narrower than it seems.
Wednesday, Jul. 10, 2002
THE HIDDEN INTERNATIONAL INFLUENCE IN THE SUPREME COURT
DECISION BARRING EXECUTIONS OF THE MENTALLY RETARDED
FindLaw columnist and Columbia law professor Michael Dorf discusses the
intriguing question of why Justices Kennedy and O'Connor, who believe the
death penalty itself is constitutional and routinely apply it in particular
cases, nevertheless voted with the majority to bar executions of the mentally
retarded in the recent case of Atkins v. Virginia. Dorf isolates one factor
that, he argues, may have played a greater role than the Court's decision
indicates -- the influence of a growing international consensus against
execution of the mentally retarded.
Wednesday, Jun. 26, 2002
THE NEW CENTRALIZERS:
WHAT BUSH AND BLOOMBERG HAVE IN COMMON
FindLaw columnist and Columbia law professor Michael Dorf notes the current
push towards centralization of government on both the national and local
levels -- exemplified by the proposed Department of Homeland Security and the
proposed centralization of New York City schools. Dorf cautions that even as
Republican leaders embrace the virtues of centralization, they need to be
aware of its vices -- for instance, it could cut off the voices of the
world's Coleen Rowleys. Dorf proposes a solution that draws on the
experiences of the private sector.
Wednesday, Jun. 12, 2002
WHOSE CONSTITUTION IS IT ANYWAY?
WHAT AMERICANS DON'T KNOW ABOUT OUR CONSTITUTION--
AND WHY IT MATTERS
FindLaw columnist and Columbia Law School Vice Dean and professor Michael
Dorf analyzes the startling results of a Columbia Law School survey that
attempts to ascertain how much Americans know about the U.S. Constitution.
The answer seems to be: Not as much as one might hope. Dorf explains the
topics as to which Americans are, and are not, informed, and argues that
ordinary Americans, not just legal experts, need to know what the
Wednesday, May. 29, 2002
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