Dorf on Law

By Mike Dorf That's the punch-line to one half of an old joke: Q: What's a liberal? A: A conservative who's been indicted. Q: What's a conservative? A: A liberal who's been mugged. In announcing that the Obama Administration will seek to expand its authority to interrogate suspects without reading them their Miranda rights, AG Holder has left my head spinning.  We now have both Senator McCain and President Obama for limiting Miranda, while Glenn Beck ( GLENN BECK!!) on the other side.   says  of Faisal Shahzad:  " He’s a citizen of the United States, so I say we uphold the laws and the Constitution on citizens . . . .  He has all the rights under the Constitution. We don’t shred the Constitution when it’s popular." This bizarre turn of events would at least make political sense if Shahzad had been giving the FBI actionable intelligence but then clammed up as soon as he was read his Miranda  rights.  But there's no indication whatsoe...

UPDATED!  (See end of post) By Mike Dorf Under the Supreme Court's Fourth Amendment cases (the relevant ones discussed in a column I wrote in 2004), the police may not simply stop someone and ask him for his identity.  However, if the police have already lawfully stopped someone on reasonable suspicion of a crime, they can ask him for his identity, and pursuant to  Hiibel v. Sixth Judicial District Court of Nevada ,  a state can make it an offense for a person thus stopped not to self-identify.  The (legal advisors to the) drafters and legislators who supported AZ SB 1070  may well have been thinking about Hiibel when they wrote the law as they did: "lawful contact" will typically involve a Terry stop (explained in my FindLaw column last week), and so once someone is stopped, he can be asked for I.D., whereupon reasonable suspicion of immigration status violations could arise. That's fair enough, but recall that SB 1070 does not only apply when...

-- Posted by Neil H. Buchanan In my FindLaw column this week ( here ), I use the Gulf oil disaster as a jumping-off point to discuss the ways in which the very high costs of the American lifestyle have been hidden from the public. So long as we get relatively cheap gasoline and 99-cent hamburgers, it is all too easy to ignore the costs that we cannot see. Ultimately, those costs come back to haunt us, as the unfolding environmental disaster off the coast of Louisiana makes all too clear. In addition to that epic tragedy, I also use as examples last month's West Virginia mining disaster and the environmental havoc caused by the production of meat and dairy products. Here, I will describe the conceptual problem that underlies all of these problems, and I will offer a few more examples of how the phenomenon of hidden costs pervades the U.S. policy landscape. The oil gushing from the floor of the Gulf seems almost certain to wreak destruction on a scale never before seen. That des...

By Ori J. Herstein Dear 3Ls and LL.M.s, Below is advice that may help you transition into your new firm jobs. The tone is a little negative but this is only because I wish to help. A firm job can even be rewarding, interesting and fun if you approach it correctly. GOD GRANT ME THE SERENITY TO ACCEPT THE THINGS I CANNOT CHANGE There is a significant degree of luck in how one is assessed at a law firm. Some associates try to calculate every step they take and every word they say in an attempt to control how the firm perceives them. They also tend to read volumes into any trifle. Understanding that many of these calculations, efforts and assessments are both useless and baseless, and accepting that one’s control over one’s standing at the firm is limited, is a source of great relief. Be nice to people and try to do a good job: the rest is mostly out of your control. GIVE EVERYONE THY EAR, BUT FEW THY VOICE Everyone at a law firm gossips about everyone else in the firm. If ther...

By Mike Dorf How should you react to the news that Faisal Shahzad, the Pakistani-born U.S. citizen who is the chief suspect in the botched Times Square van-bombing, apparently received bomb-making training from radicals in western Pakistan?  Here are a few possibilities: 1) Feel terrified because the long-awaited export to the U.S. of tactics used widely in Iraq, Afghanistan, Pakistan, and elsewhere has finally arrived. 2) No surprise.  Shahzad is, after all, from Pakistan.  Although most Pakistanis are even more troubled by (because more affected by) street bombings than Americans, there are strongholds of virulent anti-Americanism in large parts of Pakistan.  Isn't that the most logical place for a Pakistani-American intent on bombing Americans to go to get training? 3) Breathe a sigh of relief.  Someone who had received bomb-making training actually bought non-explosive fertilizer?  Either their training or the quality of their recruits is ...

By Mike Dorf My latest FindLaw column uses the controversy over Arizona's new law (SB 1070) mandating that state and local govt officials investigate the immigration status of those whom they reasonably suspect of being undocumented as a point of departure for discussing the Fourth Amendment requirement that police be able to articulate the grounds for their suspicion.  Based on (popularized accounts of) research in neuroscience and psychology, I suggest that in many instances, suspicions of criminality would be more reasonable if their grounds were not articulated.  I nonetheless conclude that the existing requirement is sensible, and that the new law will thus likely lead to problematic applications. Here I want to address a secondary question.  Suppose you are angered by the new Arizona law or simply think it's a very bad law--perhaps because you think it will lead to racial profiling of Latinos (including a great many U.S. citizens) and/or that it will deter un...

By Bob Hockett So much has been said of late about Goldman Sachs -- by pundits, by members of Congress, and now by the SEC and, most recently, the DOJ -- that it might be helpful to disentangle the sundry 'issues' that seem to be implicated, though not yet adequately differentiated, by all the chatter.  As I see it, there are in fact three principal issues on the minds of those now talking about Goldman, while only one of them is what I'll call Goldman-Sachs-specific.  1.  The first 'issue' concerns Goldman's fortunes (pun intended) during our recent real estate bubble and burst, along with their nasty  sequelae .  Many have accused Goldman of profiting as real estate markets tanked, hence of having 'bet against American home-buyers' and profited by both their misfortunes and the misfortunes of others as the effects of the crash have radiated outward.  Goldman for its part has defended itself partly -- and I think unhelpfully --...

-- Posted by Neil H. Buchanan It is a bit awkward to write about the so-called Tea Party Movement, because it seems fairly clear that the "movement" is rather small and fractured, that it is to a significant degree an "astroturf" movement driven by organizations like Dick Armey's FreedomWorks lobbying group, and that it has been the beneficiary of exaggerated coverage by television news organizations. If nothing else, people in colonial dress shouting insults about the president make for a good show. Fewer than a thousand people show up at well-advertised protests, and the group's first "national convention" was little more than a poorly-attended series of photo ops; yet all of the major news organizations have lavished coverage on the groups' supposed political ascent. The numbers, however, seem to add up to no more than -- and probably a lot less than -- Ross Perot's supposedly game-changing Reform Party in the 1990's; so skepticis...

By Sherry F. Colb In my column  for this week, I discuss the new Nebraska law that, when it goes into effect, will prohibit abortions after twenty weeks.  The reason for the selection of twenty weeks is the belief that this is the point at which a fetus becomes capable of feeling pain, i.e., sentience.  My column takes up the question of what implications the sentience line in an abortion law might have for our thinking about animal rights. In this post, I want to explore a different feature of commonality and contrast between those who support fetal rights and those who support animal rights:  the impact of exposing the otherwise-hidden violence involved. I still remember seeing my first anti-abortion poster.  I was in college at the time, and I was spending a summer internship as a (nonprofessional) counselor at a rehabilitation center for mentally ill clients.  The building where I worked had many floors, and one floor was rented by an abortion cli...

By Mike Dorf On Monday, the Supreme Court granted cert in Schwarzenegger v. Entertainment Merchants Ass'n   (EMA).   The case involves a California law restricting the sales to minors of certain violent video games .  The Ninth Circuit struck the law down , declining, as other circuits had declined, to extend Supreme Court precedents permitting the government to restrict children's access to some erotic-but-not-obscene-for-adults materials to cover violence.  The Supreme Court had apparently been holding the case pending its resolution of Stevens (the animal cruelty depictions case).  Had the Court in Stevens accepted the argument that depictions of animal cruelty are sufficiently similar to child pornography to warrant a categorical exception, then it might have "GVR'd" (granted cert, vacated, and remanded) the EMA case for reconsideration.  The Ninth Circuit said in EMA that it would not create a new categorical exception for "speech as ...