Showing posts from July, 2013

A Very Tentative Proposal to Amend Federal Rule of Evidence 501

By Mike Dorf My latest Verdict column discusses the recent 4th Circuit ruling in United States v. Sterling .  In that case, the appeals court ruled that NY Times reporter James Risen could not invoke any privilege under either the First Amendment or federal common law as a basis for shielding a source who is being prosecuted under the federal Espionage Act.  I argue in the column that the First Amendment holding is reasonable, in light of the Supreme Court's seemingly categorical ruling in Branzburg v. Hayes .  However, I also argue that the court was too quick to reject a common law privilege because much of the argument against judicial recognition of a common law privilege turns on considerations of institutional competence.  Legislatures, it is said, are better positioned to make the complicated judgments about the circumstances in which the privilege should apply and when it can be overrridden.  However, I note that a court-recognized common law privilege--precisely because

Lifetime Warranty

By Mike Dorf I recently purchased a $7 cell-phone charger to plug into the cigarette outlet of my car.  The packaging boasted that it came with a "lifetime warranty."  I wondered to myself what that might mean.  Here was a phrase I had seen numerous times before but upon reflection I couldn't come up with a meaning that made any sense. A longstanding regulation promulgated by the Federal Trade Commission provides the following helpful guidance: If an advertisement uses “lifetime,” “life,” or similar representations to describe the duration of a warranty or guarantee, then the advertisement should disclose, with such clarity and prominence as will be noticed and understood by prospective purchasers, the life to which the representation refers. But what if the advertisement or product packaging does not specify the life that the warranty references?  Let's consider a few possibilities: (1) The product is guaranteed for the lifetime of the purchaser.  That'

Two Promos and a Query: What Impact Does the Supreme Court Have?

By Mike Dorf Promo Number One: On Wednesday, Prof. Colb will be a guest on Victoria Moran's weekly one-hour radio show, Main Street Vegan , from 3 pm to 4 pm Eastern time on Unity Radio.  They'll be talking about her book, Mind If I Order the Cheeseburger , and related topics. Instructions for how you can listen live (and call in!) or later download the podcast can be found here . Promo Number Two : As I noted in a few posts over the last couple of weeks ( here , here and here ) tomorrow I'll be speaking on the Practicing Law Institute's annual Supreme Court Review panel .  Other panelists include Prof. Colb, UC Irvine Dean Erwin Chemerinsky, Columbia Law Profs. Tom Merrill and Ted Shaw, NYU Law Prof. Bert Neuborne, and more.  It's still not too late to sign up for a fun-filled day and CLE credit. Okay, enough selling, now some thinking.  I'll take the PLI program as my point of departure.  Each year, the program covers the range of the Supreme Court dock

How Can Democrats Respond to Republicans' Embrace of the Dark Ages?

-- Posted by Neil H. Buchanan Through no particular grand plan, I found myself taking three trips to Europe this year, spending almost two of the last three months in various countries in Old Europe.  In addition, I also took my first true vacation from blogging (and writing in general) ever, from late June until yesterday.  Inevitably, I found myself returning with a new perspective on U.S. political debates.  As yesterday's Verdict column and Dorf on Law post indicate, I have lately been thinking about our political dysfunction in the context of the centuries-long arc of the Enlightenment and its detractors. Whatever value that longer perspective might bring to the table still leaves us with a question that was implied by the end of yesterday's post.  I said that "[o]ne cannot respond with reason to those who have explicitly abandoned reason."  As a commenter on that post asked: What then should Democrats (and other sane people) do, given that Republicans a

The End of Knowledge and Reason?

-- Posted by Neil H. Buchanan Two months ago, while still working at my gig in Vienna, I posted some thoughts about that city's wonderful public transportation system (as well as a few comments about vegan eating in the city that invented wiener schnitzel).  At the end of that post, I noted that I would soon return to Europe for a honeymoon, with stops in London, Edinburgh, Dublin, Berlin, and Stockholm.  Anticipating that I would become obsessed with the economies and infrastructures of each of those cities, I suggested that my honeymoon would involve "[m]ore social science field work." Well, we are back, and my prediction was only mildly true.  Under the right circumstances, even I am able to set aside my professional interests and just enjoy the moment.  Even so, I did find myself at one point confronted with an unexpected situation, which led me to think in a different way about some of the issues on which I write.  While on a tour bus in Edinburgh, the tour guid

Unwanted Sex

By Sherry Colb In my column for this week, I wrote about the topic of sexual surrogacy, an arrangement in which a sex therapist has sex with a patient in exchange for payment.  In my column, I discuss the question whether sexual surrogacy is distinguishable from prostitution and how we ought to think about the practice, from a legal and ethical standpoint.  One of the things that bothers me about prostitution (and thus, about sexual surrogacy as well) is the fact that, almost by definition, the job involves someone who would prefer not to be having sex with a particular person nonetheless having sex with him or her because it is part of her (or his) job.  In other words, someone is having unwanted sex. As a college student, I worked for over a year on a study of stress and pregnancy at Columbia Psychiatric Institute.  The work involved conducting two telephone interviews of each of many pregnant women, each interview lasting approximately one hour.  I still remember two of the man

Alberto Gonzales and David Strange Are Wrong About SSM and Immigration

By Mike Dorf In a NYTimes Op-Ed last week, former Attorney General Alberto Gonzales and immigration attorney David Strange argue that a three-decades-old decision of the U.S. Court of Appeals for the Ninth Circuit-- Adams v. Howerton -- obligates the Obama Administration to exclude same-sex spouses of U.S. citizens at the border, notwithstanding the Supreme Court’s invalidation of the Defense of Marriage Act in the  Windsor  case last month.  I think they are wrong for a number of reasons. (1)  Adams  is not and never was binding on the whole country.  At most it was binding in the states comprising the Ninth Circuit--although even then, there is at least some authority for the executive branch adopting a uniform national policy even though it contradicts the law in particular circuits.  I'm not a big fan of this "non-compliance" approach when (as during the Reagan Administration) it puts individuals to the expense of bringing lawsuits to vindicate their rights, but

Was Justice Kagan's Snarkiness in Genesis Healthcare v. Symczyk Justified?

By Mike Dorf This is yet another post reacting to one of the relatively minor cases the SCOTUS decided last Term. Last week, I discussed two Takings cases ( here and here ) because I'm scheduled to make a presentation on those cases at the Practicing Law Institute Supreme Court Review session next week.  I'm also giving a presentation on class actions.  Most of that presentation will focus on the cases I discussed in a column  in April, but in the interest of thoroughness, I've read all of the cases that relate to class actions. One such pretty minor case is Genesis Healthcare Corp. v. Symczyk , which is not directly about class actions but about a similar mechanism for representative litigation under a provision of the Fair Labor Standards Act.  That provision allows an individual with a FLSA claim to sue on behalf of herself as well as "similarly situated" individuals.  The question in the case was whether, if the individual plaintiff's claims have been

Fear of a Raisin Glut

By Mike Dorf As I noted yesterday , I'm in the process of reading some of the "lesser" SCOTUS opinions that I skipped over in the excitement of the end of the Term.  Here's a dispatch on one such opinion, Horne v. Dep't of Agriculture . Facts and Procedural Posture: The Hornes grow grapes and process them into raisins.  Pursuant to a Depression-era statute, the federal Dep't of Agriculture (DOA) regulates raisin producers.  It brought agency proceedings against the Hornes for failure to comply with various requirements.  The Hornes defended on the ground that they are not "handlers" of raisins within the meaning of the relevant statute and regs, and thus not subject to the requirements.  They also argued that one aspect of regulation--the requirement that they turn over a percentage of their raisins to the DOA--was an unconstitutional taking of property without just compensation.  They lost in the agency and in the federal district court and the

Just Reach Deep Down and Let the Scary Out

By Lisa McElroy “I might seem like I’m brave, but deep inside I’m terrified.” “Why did you never tell me this before?” -    Sully and Mike, MONSTERS UNIVERSITY Earlier today, when I published an essay in Slate about my experience with mental illness, I might have seemed brave.  But deep inside, I was terrified. Despite my fear, I decided to publish the piece, anyway, mostly because I had spent most of my life, and all of my life in academia, living in fear.  Worrying.  Panicking. My friend Mark McKenna , an IP professor at Notre Dame, was patient and kind in listening to me debate whether or not to “come out” of the closet about my anxiety disorder.  He asked me why I wanted to do it.  I told him that I wanted to help others in the academy who were not (as many might have thought) merely eccentric or socially awkward, but who were – like me – living with a real disease.  I wanted to encourage them to seek treatment.  I wanted to tell them that they were not alone

Distinguishing Taxes from Takings: A Belated Look at the Koontz Case

By Mike Dorf In the excitement of the Supreme Court's end-of-Term decisions regarding affirmative action, same-sex marriage and voting rights last month, I did not have occasion to read all of its opinions in the somewhat lower-profile cases.  I am now reading some of those cases, partly simply to keep up and partly in preparation for my annual appearance later this month on the Practicing Law Institute's Supreme Court Review session in NYC.  One case I'll be discussing is Koontz v. St. Johns River Water Management Dist. , which did not get much media attention because it was handed down the same day that the Court invalidated Section 4 of the Voting Rights Act.  But Koontz  is an important and interesting case. The Takings Clause of the Fifth Amendment (as incorporated against states and their subdivisions by the Fourteenth Amendment) requires government to pay just compensation to property owners whose property the government takes using the power of eminent domain.

Filibuster Reform Redux: Who Blinked and Who Won?

By Mike Dorf In my post on Sunday, I asked whether there is a logical basis for drawing the particular line that Sen. Harry Reid's plan to end the filibuster for executive nominees would have drawn: between executive nominees, on the one hand, and judicial nominees plus legislation on the other.  In that post, I kept my analysis strictly non-partisan.  To the extent that I considered party effects, I did so generically, asking about the party that controls the Senate, the party to which the President belongs, etc., rather than looking at it in terms of the Democratic and Republican parties. In this post, I want to shift gears a bit and ask whether the filibuster is systematically better for one or the other of the particular parties.  My analysis is prompted by the deal that the Senators have just reached to avert filibuster reform (for now).  To judge from the  reports , it looks like the Republicans blinked.  Faced with resolve by the Democrats to eliminate the filibuster fo

EPIC's Mandamus Petition and the "Holy Grail" of Federal Jurisdiction

By Mike Dorf My latest Verdict column addresses the procedural question raised by the Supreme Court mandamus petition of Electronic Privacy Information Center (EPIC) challenging the government's collection of Verizon customer "metadata."  I explain why the Court is arguably without jurisdiction to grant the petition and, in any event, almost certainly won't grant it as a matter of its equitable discretion.  For the latter point (spoiler alert!), I rely on the fact that EPIC has other options available: In particular, it can simply sue Verizon and/or government officials for injunctive relief in federal district court. Here I want to raise a question that my analysis in the column suggests.  Suppose Congress thinks that federal district court litigation of FISA court orders should also be foreclosed and accordingly strips all courts, including the U.S. Supreme Court, of the authority to entertain challenges to NSA surveillance.  Would that be permissible? Alumn

Should Filibuster Reform Stop at Executive Nominees?

By Mike Dorf Sen. Harry Reid currently plans to move the "nuclear option"--eliminating the filibuster by an ordinary majority vote--but only with respect to Senate confirmation votes for nominees to the excecutive branch.  Should this succeed, the filibuster will survive (for now) for legislation and for judicial nominees.  Is that a sensible line? The conventional argument for distinguishing between executive branch nominations, on the one hand, and legislation and judicial nominations, on the other hand, is that the President is entitled to have his own team for carrying out policy through the executive branch, whereas Senators get an equal say in legislation and the staffing of the federal judiciary, a co-equal branch.  Other things being equal, getting rid of the filibuster makes it easier for the President to have his nominees confirmed. That's the conventional wisdom but is it right?  I'm not so sure. We might begin by asking why the Senate plays any role