Showing posts from June, 2010

Read My Lips: No Judicial Activism

By Mike Dorf During his acceptance speech for the 1984 Democratic Presidential nomination, Walter Mondale made the following statement: Whoever is inaugurated in January, the American people will have to pay Mr. Reagan's bills. Taxes will go up, and anyone who says they won't is not telling the truth. Let's tell the truth -- Mr. Reagan will raise taxes and so will I. He won't tell you. I just did. That didn't work out so well for Mondale and indeed, it is practically a truism of American politics that promising tax increases--even desperately needed tax increases--is an excellent way to lose an election.  To be clear, I don't think tax increases are needed now.  I'm with Buchanan and Krugman in thinking we desperately need deficit spending right now.  But that's a wholly different point. Here I want to draw an analogy between the Mondale phenomenon and the ongoing debate over constitutional interpretation.  In my latest FindLaw column , I conclud

Race and Guns

By Mike Dorf Last year, in Ricci v. DeStefano , Justice Alito wrote a truly remarkable concurrence in which he painted a picture of ugly racial politics in New Haven (as I observed here ).  That concurrence--and more generally Justice Alito's votes on race cases--placed him squarely on the side of those white Americans, especially those Italian-Americans, who take the view that race-conscious government decision making has gone too far.  Justice Alito called attention to a statement by an African-American New Haven minister who opposed promoting some of the white firefighters because "t hey just have too many vowels in their names." What a difference a year makes. In Justice Alito's opinion for the Court in McDonald v. Chicago , race is a predominant theme.  The crucial portion of the opinion is Part III, in which Justice Alito applies the test for determining whether the 2nd Amendment right is incorporated.  And the core of that portion of his analysis is a discu

Grade Inflation

By Mike Dorf A recent NY Times story  reports on how many law schools are inflating their grades in the hope of providing their students with a competitive edge relative to their competitors.  For me, the story reinforces a point I have long made in internal discussions of grading on each of the three faculties of which I have been a member: The fight against grade inflation is a bad idea because it disadvantages our students.  Here I'll add a few observations. 1) Grade inflation driven by efforts of law schools to give their respective students an edge is a collective action problem: individually rational decisions to raise grades eventually end up making grades virtually meaningless everywhere.  But prospective employers--rightly or wrongly--want law schools to sort their students, and if not given grades, they will turn to other, often less effective, more subjective, and potentially unfair methods.  The traditional way to address a collective action problem is through regul

Double Dip a Done Deal. D'Oh!

-- Posted by Neil H. Buchanan Let me begin with a sincere (but resigned), "I hope I'm wrong." Economic forecasting is a dangerous business, especially for someone who is a natural pessimist. To adapt an old joke, I have successfully predicted nine out of the last two recessions. Even so, all of the pieces now seem to be in place for what we have feared all along: a policy-induced relapse into a second bout of recession, without ever having emerged from the Great Recession. In this post, I will explain why this sorry outcome now seems inevitable, what could be done to stop it, and what should be done after we fail to stop it. Although there has been some encouraging news about the economy over the last few months (e.g., auto companies skipping their summer shutdowns), there is no question that the situation is still quite bad. The unemployment rate still hovers just below 10%, with the real rate of involuntary idleness well above that. Even so, given that unemploymen


By Mike Dorf Monday's decision in Holder v. Humanitarian Law Project  (HLP)  is, of course, most notable for upholding the federal "material support" statute against a First Amendment challenge, but in the course of getting to that result, the majority opinion by CJ Roberts says some things about free speech doctrine more generally that will likely have the effect of broadening protection for free speech. A threshold point of contention was whether the law should be judged as content-based (and thus subject to strict scrutiny) or content-neutral (and thus subject to what is nominally intermediate scrutiny but under the SCOTUS precedents amounts to a test that is fairly easy to meet).  The government argued that the law should be deemed content-neutral because it is a regulation of conduct--here, material support--that is often non-expressive (e.g., providing money, goods, or services to a terrorist organization) and only happens to be expressive in this particular c

Custody, Prison, and Pretense

By Sherry F. Colb In my FindLaw column for this week, I discuss the Supreme Court's decision in Maryland v. Shatzer .  The respondent in the case, Michael Blaine Shatzer, Sr., was convicted of sexually abusing his three-year-old son.  He challenged the conviction on the ground that the trial judge erroneously ruled his confession admissible, in violation of his right to counsel.  His argument was that he gave his confession in response to an interrogation that should never have taken place.  Under Edwards v. Arizona , a suspect in custody who asks for a lawyer may not be further interrogated by law enforcement officials unless and until the suspect has an attorney with him.  This means that if the police come back to the suspect at a later point, while he is still in custody, and seek to interrogate him, any responses to that interrogation will be suppressed (warnings and waiver notwithstanding) unless the suspect himself initiated the conversation with the police. With this l

Confirmation Symbolism

By Mike Dorf A Supreme Court Justice can be expected to serve for decades; yet questions from Senators inevitably focus mostly on the here and now.  The resulting myopia can be accentuated by accidents of timing.  Consider the Sotomayor hearings.  The case most discussed by Sotomayor's interlocutors was Ricci v. DeStefano .  It's easy to see why the case made such good theater: 1) It involved race/affirmative action, which Sotomayor and Dems generally support, while Repubs and most Americans oppose it (though public support/opposition varies a good deal depending on how it's described by pollsters); 2) the Supreme Court opinion in Ricci directly reversed a ruling by Judge Sotomayor; and thus 3) the case gave Repubs their best opportunity to portray Sotomayor as a militant practitioner of identity politics, combining her vote in Ricci with the "wise Latina" remark. That was good tv, to be sure, but Ricci is simply not a very important case.  Its holding--that th

Blaming the Boomers

-- Posted by Neil H. Buchanan My latest FindLaw column (available here ) revisits the controversy over the Rand Paul interview on "The Rachel Maddow Show" last month. Although I initially described my reactions in a Dorf on Law post ( here ) shortly after the interview, my analysis on FindLaw focuses on two issues: (1) The incorrect subsequent framing of the controversy as a pointless rehash of a long-resolved policy debate from 1964, and (2) The disturbing underlying similarity (despite large apparent differences) between Paul's view of business regulation and President Obama's view. I will expand only on the first point here. In my column, I refer to an opinion/analysis article (available here ) in The New York Times by the political reporter Matt Bai. I cannot recall any of Bai's other articles at the moment, but I had developed a generally positive opinion of his work over time. His article about the Paul/Maddow controversy, however, was something else.

Scalia Outflanks the Court on the Privacy Side

In Ontario v. Quon , the Supreme Court unanimously held that the police department of Ontario, California acted reasonably--and thus did not violate the 4th Amendment--when it retrieved private text messages sent by one of its employee officers from his department-issued pager (including some sexting) in order to determine whether overage charges from the service provider were properly billable to the department or should be charged to employees.  The Court is unanimous in the result and unanimous in most of its reasoning, except that Justice Scalia doesn't join one sub-Part of Justice Kennedy's majority opinion. This time, the language Justice Scalia finds offensive does not invoke legislative history (as discussed here ) but Justice Kennedy's broader disquisition on the role of the Court in deciding 4th Amendment cases involving new technology.  Here is the core of the point Justice Kennedy makes: The Court must proceed with care when considering the whole concept of

The Mystery of LPs

By Mike Dorf There is a wonderful scene in Dan Kennedy's hilarious memoir of his brief stint as a middle manager in the record industry during its collapse-- Rock On: An Office Power Ballad --in which Kennedy succinctly describes the problem facing the industry, even without the worry of free file sharing: With individual songs available on iTunes for 99 cents apiece, the record labels could no longer charge $15 for a CD with two songs that listeners wanted to buy and ten or so others that they had to buy to get those two. That struck me as a trenchant analysis, until I started thinking about an earlier transition.  In my youth, popular music came packaged mostly as albums: eventually as CDs but before that as vinyl LPs that spun at 33 and 1/3 rpm and played about 22 minutes per side.  But not that much earlier, pop music typically came packaged as "singles"--a misnomer because each 45 rpm record had both an A-side, featuring the song listeners wanted to buy, and a B-

Podcast for Children and Childish Adults: Nightlystory

By Mike Dorf File this post under "shameless promotion of other ventures."  The good news is that like DoL, this other venture is completely pro bono.  Here goes. Every night for the last several years, I have been making up stories of 5-10 minutes length for my two daughters, featuring their respective alter egos, code-named Rowena and Ophelia.  I occasionally include their friends.  The stories frequently feature time travel and other adventures, and mix material genuinely for children (mine are currently 8 and 6) with my own inside jokes that only adults can follow.  The quality is, admittedly, variable, depending on my own level of creativity on any given night, and how well the kids are behaving.  (They sometimes interrupt.)  But I've beta-tested it with a few friends and family, and there seems to be enough interest to launch it to the wider world. Now you can listen in. I've created a podcast which you can access  via the web  or by searching for "night

The Reality Behind My Confirmation Fantasy

By Mike Dorf My latest FindLaw column imagines how the confirmation hearing for Elena Kagan might go.  Here I'll just note all of the places in which I used more or less actual past statements from the nominee and the Senators for my text. -- The description of the "pincer movement" comes from then-Professor Kagan's article in the 1995 U Chicago L Rev. -- Sen. Sessions has been vociferously arguing that Kagan's refusal (until the ruling in FAIR v. Rumsfeld ) to exempt the military from Harvard's anti-discrimination policy amounts to hostility to the military. -- Sen. Specter's switch to the Democratic Party occurred shortly after his vote against confirming Kagan to be SG.  Citing Scottish law, he voted that the charges against Pres. Clinton were "not proved." -- As a Senator, Joe Biden called the confirmation hearing for then-Judge John Roberts a "kabuki dance."  Most of the balance of the statement I have attributed to him

My Strange Guilty Plea

By Mike Dorf A few weeks ago, I received a speeding ticket for allegedly driving 53 mph in a 35 mph zone.  The alleged infraction occurred on a highway on which the regular speed limit is 55 mph but is punctuated by periodic "speed zones."  According to the state trooper who pulled me over, I was in one of these speed zones when he stopped me.  I wasn't so sure I was traveling nearly as fast as he said, or thought perhaps he had clocked me on his radar as I was beginning to decelerate from around 55 to around 35 as I entered the speed zone.  But he gave me the ticket anyway. On the suggestion of a colleague, I contacted the D.A. in the municipality responsible for prosecuting these cases.  She sent me a form affidavit on which I then told the above story, attached a copy of my clean driving record, and asked for a lesser charge.  About a week later I received a plea offer in the mail.  Instead of charging me with "speeding in zone (10-20 mph above limit)," a

Good and Bad Social Science Research: Medical Costs

-- Posted by Neil H. Buchanan A new on-line legal periodical, whimsically titled Jotwell: The Journal of Things We Like (Lots) , was launched last Fall. The idea behind the journal is to have law professors write short (500-1000 word) entries describing an important book, article, or work-in-progress in their field that they have read recently. The journal is, by all accounts, off to a very good start. The Tax Law section of Jotwell is edited by Allison Christians of Wisconsin and George Mundstock of Miami, and they were nice enough to invite me to be among the inaugural group of Contributing Editors. My first entry, " Health Care Costs and Fiscal Infirmity ," was posted last week. I discuss an article that appeared in June 2009 in The New Yorker , written by Harvard Medical School professor Atul Gawande: " The Cost Conundrum: What a Texas town can teach us about health care ." I argue that tax policy is going to be driven in the next few decades by health car

Souter's Harvard Balancing Act

Most of the discussion I have seen of retired Justice David Souter's Harvard commencement speech --both laudatory and critical--has focused on the primary distinction Souter drew at the level of jurisprudential philosophy between what he called the "fair reading" model (by which he more or less means textualism or original-public-meaning originalism) and his own view (which we might associate with what is sometimes called "living Constitutionalism").  Here I want to add a few thoughts that operate at the level of doctrine.  I'd like to suggest that Souter's distinctive view of fundamental rights has, almost without anybody noticing, become the law. In his speech, Souter ascribed the need for judges going beyond the four corners of the text to two factors: 1) the generality of much of the Constitution's key phrases; and 2) the fact that the Constitution serves conflicting values. He laid greater emphasis on the second point, and I shall focus there

Institutional Versus Linguistic Textualism

By Mike Dorf As I observed in my FindLaw column and accompanying blog entry last week, Justice Scalia's allergy to legislative history appears to be stronger than the corresponding distaste felt by any of his colleagues.  Monday's decision in Kapruski v. Costa Crucierc, S.P.A.  provides further evidence of distance between Justice Scalia and even the Court's other textualists--at least with respect to the felt need to make a point.   Kapruski unanimously holds that the question of whether a complaint that mis-names the defendant will count as timely under Federal Rule of Civil Procedure 15(c), should be resolved by asking whether the new defendant had notice of the suit during the period permitted for service under the statute of limitations (and the applicable tolling and service rules).  Justice Scalia joined Justice Sotomayor's opinion for the Court except for its reliance on the Notes of the Advisory Committee. Here is the substance of Justice Scalia's o