Dorf on Law

By Mike Dorf Yesterday, in the Hosanna-Tabor case , the Supreme Court found that the federal anti-discrimination laws contain a tacit "ministerial exception" that is broader than any exception that the EEOC was prepared to recognize.  Accordingly, the Court ordered the dismissal of a lawsuit under the Americans With Disabilities Act (ADA) by a teacher at a religious school on the ground that the church school at which she taught considered her a minister.  To subject the church to federal anti-discrimination law in this case would be tantamount to permitting lawsuits against the Catholic Church for refusing to ordain female priests, the Court thought. The Court had roughly three choices in Hosanna-Tabor : 1) No ministerial exception; 2) a relatively narrow ministerial exception that only covers clergy who lead congregations in the way that the minister of a typical Protestant sect does; or 3) a broad ministerial exception that covers nearly anyone that a religious congr...

Posted by Sherry F. Colb In my Verdict column for this week, I examine a recent finding that jurors have a difficult time distinguishing between two of the criminal law mental states through which the seriousness of an offense is ranked:  recklessness and knowledge.  In the column, I offer an explanation for juror confusion and propose some potential solutions to the problem. I conclude that confusion arises in part from the fact that neither recklessness nor knowledge is a "pure" mental state.  Recklessness requires a defendant to be aware of a substantial and unjustifiable risk of harm and to act anyway, notwithstanding that risk.  Knowledge requires a defendant to be aware of the virtual certainty of harm and to act notwithstanding that knowledge.  To be aware of something, however, whether it is an unjustifiably high risk or a virtual certainty, requires two things to be true, only one of which is subjective:  (1) the person must believe  that...

By Mike Dorf With Mitt Romney looking likely to become the Republican Presidential nominee, conventional wisdom holds that President Obama's campaign team faces a tough choice: whether to attack Romney as a flip-flopper or an out-of-touch plutocrat.  Here is how a recent NY Times article described the downside of the flip-flopper approach: "I ndependent voters might view Mr. Romney’s shifting positions as pragmatic. And by highlighting his evolving views, political analysts say, the Obama campaign risks unintentionally promoting the image of Mr. Romney as a moderate.  Yet the flip-flopper theme is so easy to sell, that it may be hard for the Obama team to resist. The question is how to play the flip-flopper card without inadvertently reassuring independents that a President Romney would actually be a reasonable centrist.  The answer, I think, is to tie Romney's flip-flopping to his out-of-touch-rich-guy-ness.  In other words, the Obama team should not be think...

By Mike Dorf Before "Who is Rick Santorum?" becomes no more than the "question" to the Jeopardy "answer," "who finished within eight votes of the winner of the 2012 Iowa Republican Caucuses?", it is worth reflecting on what then-Senator Santorum said that earned him history's crudest Google-bomb .  Here is the key passage from his 2003 Associated Press interview in which Santorum fretted about the implications of the Supreme Court ruling that a law banning homosexual sodomy is unconstitutional: We have laws in states, like the one at the Supreme Court right now, that has sodomy laws and they were there for a purpose. Because, again, I would argue, they undermine the basic tenets of our society and the family. And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the ...

-- Posted by Neil H. Buchanan Last year at this time, I gave up on college sports. After a lifetime of watching every game on Saturday afternoons, caring deeply about whether Michigan would win the Big Ten championship, and arguing about whether the Big Ten was a better football conference than the SEC (an argument that was at least colorable until about 2005), I gave up. In part, this was because I had taken extended trips abroad during the football seasons of 2009 and 2010, and I had not missed the games nearly as much as I thought I would. In larger part, however, it had simply become impossible to continue to ignore the game's obvious corruption. This was long before the Penn State scandal. The proximate causes of my disgust were the scandals revolving around Auburn's star quarterback, Cam Newton (who led his team to last season's national championship), and Ohio State's star players (who had been violating rules by selling team-related merchandise, ...

-- Posted by Neil H. Buchanan In my new Verdict column today , I use "Bowl Week" as an excuse to return to the subject of paying college football players. In October of last year, I wrote a post critiquing a widely-praised article by Taylor Branch in The Atlantic . I took Branch to task for two of his arguments, the more important of which was his response to those who point out that college football and basketball players are already being paid, in the form of scholarships. Actually, Branch did not make an argument, but rather drew a tortured analogy between college scholarships and the promises of heavenly salvation that were offered to slaves in the pre-Civil War United States. (I am not making this up.) A renewal of Branch's arguments in favor of paying college football players arrived this past weekend, courtesy of the inimitable NYT op-ed columnist Joe Nocera. Nocera devoted his column on Saturday , and a special article in the Sunday Magazine, to attacking ...

By Mike Dorf Thomas Frank's book (and subsequently a movie ),  What's the Matter with Kansas? , asks why so many blue-collar Americans vote against their economic interests.  The answer isn't hard to find, of course: For roughly the last generation in American politics, the Republican Party has housed social conservatism and economic libertarianism, while the Democratic Party has been home to social liberalism and a somewhat more progressive set of economic policies.  The Kansans who are not plutocrats but voting Republican pretty clearly place greater weight on social issues. There is no inherent reason why the coalition of social conservatives and economic libertarians that is the modern Republican Party should last forever.  Mike Huckabee's strong showing in the 2008 Iowa Caucuses could have presaged an interesting realignment.  As Arkansas governor, Huckabee had been a social conservative with an economically progressive streak.  It's not surprisin...

By Lisa McElroy I’m holding my breath and waiting for David Segal to come out with an article in the New York Times about the value of law school exams (or, as he is likely to write it, the lack thereof). He’ll time it carefully to coincide with the release of first-semester grades. He’ll bemoan the fact that the majority of law school courses culminate in an exam, and that the majority of law school professors give that exam very heavy weight, up to 100% of a student’s semester grade. He’ll comment on the laziness of law school professors, the uninformed pedagogy in the exam experience, and the lack of objectivity in the grading process. Here’s the thing: in this case, he might be largely right. I’ve been thinking a lot about exams lately. My ruminations have partly been inspired by Mike’s posting of his Con Law exam a few weeks ago ; I’ve also been remembering the Evidence exam I took in the fall of 1993, spurred in part by the internet release of Charles Nesson’s exam at Ha...

By Mike Dorf Just under four years ago, Democratic caucus-goers in Iowa chose among Hillary Clinton, John Edwards and Barack Obama.  At the time--and for several of the ensuing months--it appeared that the crucial choice was between Clinton and Obama.  In retrospect, it looks like the key choice was between, on the one hand, Clinton or Obama, and on the other hand, Edwards.  Had Edwards' marital infidelity and possible criminal violation of election laws surfaced after he had secured the nomination but too late to change the Democratic nominee, that might have been enough to turn the election over to Republican John McCain. Meanwhile, the choice between Clinton and Obama probably didn't matter much, and almost certainly didn't matter as much as those of us who cared about it thought at the time.  Even in 2008 the policy differences between Clinton and Obama were quite small, and on the two most identifiable issues, Obama has ended up adopting the views that Clin...

By Sherry F. Colb In my column for this week, I examine a recent arrest of a New York City woman for self-inducing an abortion, a misdemeanor for which she could face up to a year in jail.  As I suggest in my column, the "self-induced" aspect of the woman's abortion turns out to be largely irrelevant to her particular case.  It turns out that the feature of her case distinguishes this woman's arrest is the designation of a pregnant woman who obtains an abortion as a culpable offender.  In the column, I explore some implications of this designation. In this post, I want to focus on what I had originally imagined had driven the New York City arrest: the decision of a woman to terminate her own pregnancy rather than seek a licensed physician's services.  Under New York law, a woman who wishes to have a legal abortion must involve a licensed physician. At first glance, it might seem reasonable to require the involvement of a medical professional in a procedure ...