Showing posts from October, 2012

On Dog Sniffs and Innocent Privacy

By Sherry F. Colb Today on Verdict appears part 1 of a two-part series of columns in which I discuss the cases of Florida v. Jardines  and Florida v. Harris , both of which are set to be argued before the U.S. Supreme Court October 31 (today).  Both of the two cases raise questions about dog sniffs for narcotics:  the question in Jardines  is whether bringing a dog to the front door of a suspect's home to sniff for narcotics constitutes a Fourth Amendment "search" that triggers the probable cause requirement; and the question in Harris  is when a dog's positive alert after sniffing a vehicle from the outside for narcotics may be considered sufficiently reliable to support probable cause to perform a conventional search of the vehicle. In both decisions, the Florida Supreme Court sided with the criminal defendant, holding that (1) a dog sniff from outside the front door of a suspect's residence does constitute a search for which police must have probable cause

Cowboys/Giants Game May Have Raised Deep Question: What is a "Body Part?"

By Mike Dorf With Hurricane Sandy wreaking its havoc on the coast and currently headed for Ithaca (perhaps as a mere tropical storm), I thought I'd devote today's post to the relatively frivolous distraction of a dissection of a football rule.  For those of you who still have internet access, perhaps this will prove amusing. Near the end of Sunday's Cowboys/Giants football game , Cowboys wide receiver Dez Bryant caught what was initially ruled a game-winning touchdown pass in the back of the end zone, but following instant replay review, the pass was ruled an incompletion.  As the announcers explained, and as I shall explain momentarily, the revised ruling was correct. The replay showed that Bryant caught the ball while he was in the air but that the first part of his body to land was his hand, and his hand landed partially beyond the back of the end zone.  Under Rule 8, Section 1, Article 3, if a receiving player "touches the ground inbounds with both feet or wi

Presidential Dog Whistles

By Mike Dorf A recent NPR News story  discusses the fact of the Presidential candidates' silence on a number of issues.  I'm quoted with respect to two such issues: campaign finance and Supreme Court appointments. I express puzzlement that the Obama campaign didn't try to tie Citizens United --which is broadly unpopular--more closely to Mitt Romney.  It would have been a logical move, given that Romney has cited Justices in the majority as his models, that he said "corporations are people my friend," and that he has the financial support of outside groups funded by billionaires.  To be sure, Obama hardly has clean hands on campaign finance, but he holds the relatively high ground here, which should be all that counts.  With respect to the Supreme Court, I explain the silence on the ground that there are risks for both sides because the party activists who care about the litmus-test issues in the courts tend to take positions -- either right or left -- that mig

Calling It As It Is

-- Posted by Neil H. Buchanan In my new Verdict column, published yesterday , I describe the current leadership of the Republican Party -- very much including Mitt Romney and Paul Ryan -- as "sociopathic."  Needless to say, I did not do so lightly.  This is not a matter of mere name-calling, where (for example) Obama-haters empty their limited thesauruses by calling him a communist, fascist, socialistic Kenyan.  All of these words actually have meanings, and sociopathy does as well. As I explain in my column, sociopaths display extreme anti-social tendencies, being willing to violate norms that apply to others in the self-centered pursuit of their own immediate gain.  These antisocial attitudes are manifested in "a pattern of behavior in which social norms and the rights of others are persistently violated," and in a person's "disregard for social norms, rules, and obligations."  As I describe in the column, when one starts to look at even a small

I Am America, and So Can Medicare

-- Posted by Neil H. Buchanan [Earlier this week, my annual review article was published by Jotwell: The Journal of Things We Like (Lots) .  In Does Anyone Really Understand Medicare? Richard Kaplan Does, and You Can, Too , I review Dick Kaplan's article: Top Ten Myths of Medicare , 20 Elder L.J. 1 (2012)).  With less than two weeks until Election Day, getting the facts on Medicare is more important than ever.  The text of my article is reprinted below.] When former Massachusetts Governor Mitt Romney chose Paul Ryan to be his running mate in the 2012 United States Presidential election, he guaranteed that Medicare would become a central battleground of the campaign.  Ryan, a veteran Congressman from Wisconsin, is widely known for his efforts to turn the federal Medicare program into a voucher program (with the value of the vouchers deliberately calibrated not to keep up with health care costs over time), a transformation that would change everything about Medicare except

The Centrality of the Ex Post Facto Clause

By Mike Dorf My most recent Verdict column discusses last week's ruling by the DC Circuit in Hamdan v. United States . As I explain in the column, the court threw out Hamdan's conviction because the law under which he was charged criminalized violations of the law of war, but at the time of Hamdan's charged conduct, material support for terrorism--the charge brought against him--was not a violation of the international law of war.  I treat the ruling as an occasion to reflect upon the fact that more than eleven years after 9/11, the government still has not fully sorted out how to deal with detainees who are non-state actors. Here I want to use the Hamdan case as an opportunity to raise some questions about the point of the constitutional prohibition on ex post facto laws.  The court construes the law under which Hamdan was charged as having no retroactive effect in order to avoid the constitutional question that would otherwise arise under the Ex Post Facto Clause of

Constitutional Avoidance in the 2nd Circuit DOMA Case

By Mike Dorf Last week's ruling by the Second Circuit in Windsor v. United States   employed intermediate scrutiny to invalidate Section 3 of the Defense of Marriage Act (DOMA), the portion that defines marriage as opposite-sex marriage for purposes of federal law.  Readers of this blog and any of my other work will realize that I agree with the bottom line.  I also like the fact that the court used heightened scrutiny rather than mere rational basis review.  With that said, here I'd like to explore the court's reasoning in getting to intermediate scrutiny, which appeared to employ a somewhat unusual version of the principle of constitutional avoidance. The Second Circuit opinion begins by acknowledging that some other jurisdictions have invalidated parts of DOMA using either conventional rational basis review or what is sometimes called "rational basis review with bite" or with "teeth."  Half-jokingly, I have sometimes called this "extra crispy

Wait Wait, Candy Crowley and Implicit Rules

By Mike Dorf Over the weekend, I was the first listener-contestant on  Wait Wait Don't Tell Me .     Audio of my segment is available  here .  As you'll notice if you listen, the three questions I was asked were very easy.  Indeed, I predicted them in advance, in order (as my students can attest).  Predicting the questions was not a great challenge.  As a regular listener to the show, I have a pretty good sense of the sorts of questions that get asked in any given week.  E.g., -- spoiler alert -- my first question concerned the biggest humorous line of the week: "binders full of women." Of course, even though I successfully predicted my questions--and thus won Carl Kasell's voice on my voicemail, to be recorded soon!--before the show started I didn't know that I had predicted the questions correctly.  Accordingly, after learning on Tuesday of last week that I would be on the show, I spent a ridiculous amount of time studying the news of the week.  But sti

Context-Free Facts

-- Posted by Neil H. Buchanan The vacuous nature of most political discussions in the U.S. has led many people to call for more fact-checking, and for other methods to restrict politicians and their surrogates from simply making things up.  Certainly, anyone watching the Romney/Ryan campaign is left gasping for air, agape at the lack of concern for the truth that the Republican ticket has shown. Our first line of defense, of course, should be a free press.  But as nearly everyone has now noticed, even the supposedly liberal "mainstream media" is committed to a form of inane even-handedness that simply boils down to uncritically reporting what the two parties say.  "Naturally, both sides disagree." After the press failed in its primary duty to sort truth from lies, a cottage industry of "truth squads" and fact-checkers arose, specifically to address political controversies.  In short order, however, it became clear that the fact-checkers themselves (w

The Last Two Weeks of the Campaign Are Directly Ahead: Cue the Liberal Populism

-- Posted by Neil H. Buchanan Because I write my Dorf on Law posts on Thursdays and Fridays (with occasional exceptions), I have devoted my posts in the last two weeks to writing immediate responses to the first Presidential debate and the Vice Presidential debate (which took place on a Wednesday and a Thursday, respectively).  I have sequestered myself from the media chatter, offering unadulterated analyses of the debates, focusing on the candidates' discussions of the actual issues. It has been a painful experience.  Thankfully, this week's Presidential debate took place on Tuesday night, leaving me free not to watch the debate.  (And Professor Dorf quite rightly passed on writing about the debate yesterday morning.) I have thus spent the last day or so watching and reading the bloviatiors' reactions to the debate, as well as various clips from the debate.  I have discovered that Obama was quickly deemed the winner, rather conclusively.  Because I am supporting Ob

Fisher v. UT and the Baby Bear Interpretation of Strict Scrutiny

By Mike Dorf There's an old joke that is retold by Woody Allen (as Alvy Singer) in Annie Hall:   Two elderly women are at a Catskill mountain resort, and one of them says, "Boy, the food at this place is really terrible." The other one says, "Yeah, I know.  And such small portions." Allen uses the joke as a metaphor for life, but it also bears on a peculiar aspect of Fisher v. University of Texas , which was argued in the Supreme Court last week.  One of the arguments advanced by the plaintiff is that the university does not need to supplement its formally race-neutral admissions procedures with a partly race-based admissions procedure because the race-based procedure only adds a small amount of racial diversity to the entering class.  To which one wants to say: Isn't the fact that the university minimizes the use of race a virtue of the program, rather than a vice? During the oral argument in Fisher  last week, Justice Kennedy in fact pursued exactly t

Against Debate

By Mike Dorf Regular readers of this blog will have picked up that Professor Buchanan does not find the Presidential and Vice Presidential debates enlightening -- to say the least.  (See posts here , here , here , and here ).  I agree and am thus not looking forward to tonight's debate, except perhaps as a way to avoid watching Yankee after Yankee strike out against Justin Verlander.  (Speaking of expectations, you know you have reached some sort of low point when you are grateful that one of your prime sluggers merely strikes out rather than hitting into a double play.  But I digress.) I share Professor Buchanan's dismay both about the substance of the debates and the way in which the "who won" question focuses on nonsense: Who sounded like he would appeal to swing voters?  Who looked more presidential?  Etc.  After the first debate, there were some efforts to fact-check the candidates, but these were predictably drowned out by the coverage of "who won."

And What About Masochistic Children? (Guest Post by Antonio Haynes)

Today's guest post is by Antonio Haynes , currently a Visiting Fellow at Cornell Law School.  ---------------------------------------------------------------------------------------------------------------------------------- And What About Masochistic Children? By Antonio Haynes In my guest column today on Verdict , I discuss the recent controversy in Texas surrounding a male vice principal’s corporally punishing two female students.  In the column, I argue that the perceived “creepiness” of a male administrator paddling female students stems from a widely held, but often unstated assumption that eroticized violence is deeply problematic.  I conclude that when they implicitly raised the possibility of sadistic school administrators, the girls and their mothers tapped into an insidious fear of sexual deviance that completely distracted the conversation from the real issue at hand—the tremendous levels of actual violence that corporal punishment necessarily en