Dorf on Law

In my column for this week, I discuss an Israeli criminal case in which the defendant was recently sentenced to 18 months imprisonment for "rape by deception."  The particular defendant deceived the victim by lying to her about his marital status and his religion (he led her to believe that he was single and Jewish, but was actually married and Palestinian Muslim).  The column takes up the question whether it is ever legitimate to call consensual sex "rape" because the perpetrator lied to bring about the victim's consent. One hypothetical fact pattern that I did not discuss in the column is the subject of this post.  A woman, Lilith, wishes to have sex with a married man, Adam.  Adam, however, is committed to being faithful to his wife, Eve, and he has repeatedly shunned Lilith's advances.  One day, Lilith sees Eve leaving town for a trip and decides this is her big chance.  Lilith goes to a makeup and hair artist and with a picture of Eve and has hersel...

By Mike Dorf First, an apology to everyone who was expecting part 3 of my series on constitutional polymorphism.  I'll get to it next week. Okay, so now a quick observation about yesterday's scintillating Supreme Court roundup session at the Practicing Law Institute .  A number of commentators had observations about the large number of per curiam opinions the Supreme Court issued last term--that is, short unsigned (usually unanimous) opinions in cases in which the Court granted certiorari and decided the merits in one fell swoop, without merits briefing or oral arguments.  Herewith, a mixture of my own further observations and those of the panelists. 1) The expanded use of per curiams is especially odd in a period when the Court's docket is about 50% the size of what it was 20 years ago.  They could easily grant 10-20 more cases and decide them after plenary consideration. 2) The expannded use of per curiams undercuts the canonical view that the Supreme Cour...

-- Posted by Neil H. Buchanan Recently, Bob Hockett posted " SSRN: Stop Socialism Right Now " on this blog, in which he (hilariously, in my opinion) mocked Republicans for claiming that President Obama is a socialist. His broader point was that Obama's detractors seem to be opposed to having the government attempt to solve any problem. With a claim that is already absurd on its face, Hockett did not have to travel down a long road in applying reductio ad absurdum to the idea that government is always the enemy. With no line to draw separating core government functions from evil socialism, one cannot help but share his suspicion that Obama's detractors also oppose America's publicly-provided courts, police, and so on. Hockett's post led to a spirited exchange on the comments board. Professor Orin Kerr, my colleague at George Washington Law School, argued that the exaggerated claims on the far right that Obama is a socialist are matched by absurd claims on the...

By Mike Dorf With New York in the midst of one of its perennial budget delays--with the usual opera buffa made more preposterous by the seriousness of the financial situation--it's easy to become cynical about the entire legislative process.  I want to resist that impulse by applauding a recent small but important legislative accomplishment.  In the last couple of weeks the legislature passed and then Governor David Paterson signed a law repealing a number of unconstitutional provisions of New York's loitering law.  That may seem like a no-brainer, but it is surprising how laws that have been declared unconstitutional in court can remain on the books for years and do considerable mischief.  Here is how I put the point in a letter to Governor Paterson last Thursday (lightly edited here): Dear Governor Paterson:             I am writing to urge you to sign A05537 into law.  The bill would eliminate unconst...

By Mike Dorf The Pentagon Papers Case is remembered mostly for what it held--that the govt was not entitled to enjoin publication of the Pentagon Papers, even though they were illegally divulged by Daniel Ellsberg, because the govt's general assertions of a national security interest did not justify a prior restraint.  Yet implicit in that holding was the possibility that in a case in which the govt did make a sufficient showing of a particularized national security risk, it could get an injunction.  Here I want to consider the application of that tacit principle to WikiLeaks. To begin, the internet/offshore nature of WikiLeaks means that, as a practical matter, injunctive relief would be pointless.  The operators of WikiLeaks would not obey an injunction and they may be beyond the jurisdiction of U.S. courts.  However, suppose that someone connected with WikiLeaks were to come into U.S. custody.  Would the First Amendment bar his prosecution or civil lia...

By Mike Dorf My prior post on "constitutional polymorphism" inspired some vigorous challenges in the comments.  After briefly summarizing them, I want to offer what I now regard as a better example than the one I gave earlier in the week.  In a third (and probably final) post on this subject next week, I'll connect my thoughts on polymorphism to the "new originalism." Recall that "polymorphism" refers to the idea that a single word or phrase in a single statute or constitutional provision might mean different things in different contexts.  Justice Scalia has attacked polymorphism in statutory interpretation but, as I noted in Monday's post, Jon Siegel wrote an excellent article explaining both that it is not novel (as Scalia claimed) and that it can sometimes be normatively justified.  I suggested that polymorphism may provide a good account of how it is that the Senate's role in confirming executive officials is to defer substantially to ...

-- Posted by Neil H. Buchanan At the beginning of this month, I wrote a column for FindLaw ( here ) discussing the easy case for extending unemployment benefits for the long-term unemployed. Shortly after I wrote that column, I was contacted by a producer at a public radio station in Wisconsin. He wanted me to appear on an on-air debate program to argue against an (to that point unnamed) opponent of extending unemployment benefits. Last week, I was contacted by a producer at another public radio station, this one in New Hampshire, who asked me to do the same thing. In both cases, I declined. Here, I will discuss the very difficult question of whether to engage in a public debate, when the underlying issue is completely one-sided. First, however, it is worth recalling why the underlying issue -- the extension of long-term unemployment benefits (which have finally been enacted, over the objection of Senator Ben Nelson as well as every Republican Senator not from Maine) -- is a non-q...

By Mike Dorf In my latest FindLaw column , I discuss Lindsey Graham's speec h last week explaining why, despite disagreeing with Elena Kagan on issues and philosophy, he would vote to confirm her.  In a nutshell, Graham says that the proper role of the Senate in judicial confirmations is to check the nominee's professional qualifications and character, but not his or her substantive views.  I argue that Graham's approach is certainly a legitimate one with a respectable tradition, but not, as he says, the only approach permitted by the Constitution.  In the course of examining Graham's argument, I explain that one reason his invocation of Alexander Hamilton's views from Federalist No. 76 appears misplaced is that Hamilton was talking in the relevant portion of that essay about the role of the Senate in confirming executive officials, not judges or Justices.  It's appropriate, I say, for the Senate to apply more substantive standards when considering nomination...

By Mike Dorf A front-page story  by Adam Liptak in yesterday's NY Times explains that the current Supreme Court is more conservative than at any time in decades.  Although that is the headline and the subject of about half the story, the other half is essentially a summary of the findings of political scientists who study the Court by coding decisions as conservative or liberal.  Liptak either quotes or cites all but one of the leading poli sci "attitudinalist" (the exception being Jeff Segal ) and though he also mentions criticisms of the attitudinalists' methodology, he notes that these are marginal quibbles and that "the measures are generally accepted in the political science literature."  That is a fair characterization--although potentially a misleading one because the attitudinalists' measures and findings are generally not accepted in the legal academic literature.  They are generally (though not invariably) ignored by legal academics. To b...

By Mike Dorf From the Department of Shameless Promotion, I have the following announcements: 1) As in past years, I'll be appearing again as a panelist at the annual Supreme Court roundup session of the Practicing Law Institute.  The program is all day August 3 in PLI's midtown office, and features a star-studded lineup (Erwin Chemerinsky, Tom Merrill, Drew Days, Sherry Colb, Jeff Toobin, Joan Biskupic, Burt Neuborne, Marty Schwartz, Leon Friedman, and for comic relief, moi.)  PLI is a non-profit provider of Continuing Legal Education.  If you can't make the live session, you can listen in via the live webcast .  And there are full and partial scholarships available for academics. 2) Tired of your legal analysis in complete sentences?  Follow FindLaw's Writ via Twitter .  There's also a Facebook page .  Both are just getting going so neither yet has the following of Shitmydadsays , but give it  time.