Dorf on Law

By Mike Dorf As promised earlier in the week, I've now watched and listened to the oral argument in Perry v. Schwarzenegger .  After a couple of quick observations, I'll come to the point that inspires the title for today's post: 1) The lawyers all acquitted themselves quite well.  The panel gave Robert Tyler--the lawyer for the Imperial County Deputy Clerk who sought to intervene--a hard time for two gaps in his knowledge of the case, but on both occasions I thought the judges were a bit unfair.  Judge Hawkins called Tyler out for not knowing whether the County Clerk (as opposed to the deputy) was elected or appointed.  Tyler at first said he didn't know, leading to his chastisement, then he said he thought she was appointed, then said he didn't know who appointed her, and then at the end of his argument apologized because one of his associates had handed him a note saying she was elected after all.  This created some awkward moments but they were all for ...

By Sherry Colb In my FindLaw column for this week, I discuss Kentucky v. King , a case that the U.S. Supreme Court has taken to decide under what circumstances police may lawfully enter a dwelling without a warrant on the basis of an "exigent circumstance" -- an emergency -- that the police have themselves created.  In the column, I discuss how the necessarily normative concept of "proximate cause" might bear on a court's decision to attribute an exigent circumstance to the police themselves (rather than to happenstance) and thus to deny police the benefit of that exigency. In this post, I want to discuss a different issue that arises, somewhat tangentially, from Kentucky v. King , and that is the question of pretext.  To the extent that police -- in bad faith -- act in a manner that purposefully generates an exigent circumstance, with the goal of utilizing that exigency to pursue a warrantless entry, police have engaged in pretextual behavior.  They have p...

By Mike Dorf I haven't yet finished watching the video of the Ninth Circuit Prop 8 oral argument.  (In fact I've just started.)  I may blog about one or more tidbits in it later in the week.  For now, I want to use the case to explore the problem of issue voting versus outcome voting.  This is a problem that is almost always potentially present for a multi-judge court addressing multiple issues, so there's nothing really special about Perry v. Schwarzenegger here, but the case does present a nice vehicle for introducing readers to the problem. On appeal, Perry   presents multiple issues and sub-issues but for our purposes we can simplify it as follows: 1) Is there an Article III case or controversy on appeal such that the court's exercise of jurisdiction is consistent with the Constitution? 2) On the merits, should the district court's decision invalidating Prop 8 be reversed? In order for the court to reverse the district court ruling (i.e., in...

By Mike Dorf Perhaps the most interesting reaction that I've seen to the latest WikiLeaks trove comes from Hamid Karzai.  According to the NY Times , Karzai took the position that " people might say things casually in private that might not reflect their more considered and accurate positions."  (That's a quote from the Times story.  Although the next sentence quotes Karzai, this particular line is not attributed directly to him; it's simply the author's prose characterizing Karzai's position.)  I find this statement interesting because: a) It's almost the exact opposite of the conventional wisdom; and b) it strikes me as correct, at least some of the time. According to conventional wisdom, what people say casually reflects what they are really thinking.  That is why politicians caught on open mics can pay such a high price for being overheard.  Think Jesse Jackson's "hymietown", George Allen's "macaca," and Ronald Rea...

-- Posted by Neil H. Buchanan My FindLaw column this week continues a discussion, which I began in my Dorf on Law post last Tuesday , of the public's confusion regarding the financial crisis. My primary goal in that column is to confront the odd increase in the use of the term "Ponzi scheme," as a disapproving description of seemingly any government policy -- from Social Security to basic monetary policy. Today, however, I will deviate from my usual pattern of devoting my DoL post to the same topic as my FindLaw column. I invite readers to read and comment on that column here, if they wish; but I will devote the rest of this post to a different, albeit familiar, issue. On Wednesday of this week, I returned to my occasional gig as an interviewee on KCBS radio in San Francisco. The subject of the interview ( podcast here ) was that day's scheduled release of the Deficit Commission's final report . My previous on-air interviews had shown that the anchors o...

By Mike Dorf Since the announcement that the 9th Circuit panel hearing the  Perry case includes Judge Stephen Reinhardt (for whom I was a law clerk 20 years ago), there has been considerable speculation about what, if anything, this portends for the case.  Everyone agrees that Judge Reinhardt is likely to be quite sympathetic to the plaintiffs' case on the merits.  How this will play out in the long run is unclear, however.  For example, Orin Kerr observes that Judge " Reinhardt writes like there is no Supreme Court, and as a result his opinions have a remarkable ability to annoy the Justices."    Here I want to focus on the first half of that statement. If Professor Kerr means to say that Judge Reinhardt disregards governing Supreme Court precedent, then I strongly disagree.  Judge Reinhardt cares a great deal about judicial craft, including citing or distinguishing governing precedent.  Where he believes himself clearly bound by Supreme C...

By Mike Dorf The unbelievably thorough Pentagon Report  on the likely consequences of repealing DADT removes the principal argument available to Senators who have resisted repeal.  Perhaps that means that one or more Republicans will join with the Democrats to repeal DADT in the lame-duck session.  If not, it will be interesting to see what reasons they give for voting against repeal.  Here I'll predict a few: 1) Some Republicans will say that it is inappropriate for so momentous a policy shift to be undertaken by a lame-duck body.  After all, they'll note, we just had an election in which the voters preferred the Republicans, even though they knew that the Democrats favored repealing DADT.  Thus, the argument will be couched as a defense of democracy rather than (or in addition to) a defense of the policy.  One tactical disadvantage of this argument is that it only works in December.  Once the new Congress is seated next year, anyone voting a...

By Mike Dorf In my latest FindLaw column , I draw some parallels (and also some distinctions) between the Yankees' contract negotiations with Derek Jeter and the violence on the Korean peninsula.  With the Jeter negotiations stalled , here I'll focus on the latter--obviously more momentous--situation. In the column, I explore a number of explanations for the most recent attack by North Korea against South Korea, including the possibility that it is an effort to blackmail South Korea into once again providing large amounts of food and other aid.  Over the last couple of decades, periodic attacks from North Korea have led to a rush of diplomacy, which in turn led to aid packages for North Korea.  Although North Korea has tested missiles capable of reaching Japan, and shares a border with China, it has mostly restricted its outright attacks to South Korea.  Why? One clear answer is vulnerability.  Seoul is 35 miles from the North Korean border and thus vulner...

By Mike Dorf As reported in the  Sunday NY Times , retired Justice John Paul Stevens has written a review essay in the NY Review of Books in which he explains why, over the course of his time on the Supreme Court, he came to think that the death penalty was unconstitutional.  (The essay is a review of David Garland's new book, Peculiar Institution: America's Death Penalty in an Age of Abolition . )   In a nutshell, when Stevens joined fellow centrists Potter Stewart and Lewis Powell to co-author the lead opinion in Gregg v. Georgia in 1976, he anticipated that the procedural safeguards that opinion required would be followed.  However, over the ensuing decades, as the Court turned more conservative, Gregg was watered down and other claims that had merit were rejected. That, at any rate, is a nutshell of the Times story.  The actual essay says a good deal more, and is well worth reading.  Here I want to focus a bit on what Justice Stevens says and i...

On this Thanksgiving 2010, I just thought I'd thank my readers for your, uhm, readership. Thanks. Mike PS  People often ask me what vegans eat for Thanksgiving.  The answer is mostly the same stuff you eat, minus the turkey corpse, plus some sort of grain-based meat, like this one .