Dorf on Law

by Sherry F. Colb In my Verdict column for this week, I discuss the recent case of Maryland v. King , in which the Supreme Court upheld a Maryland law authorizing the collection of DNA samples from people arrested and booked for violent (and other serious) crimes.  In a two-part earlier column, here and here , I discussed the merits of the case in more detail, but my column more closely examines Justice Scalia's dissenting opinion and the central role that governmental intentions play in that dissent. In this post, I want to focus more generally on Justice Scalia's approach to disagreements with his colleagues.  First, I should note that in person, Justice Scalia is a very friendly, charismatic, and charming individual.  I had the privilege of sharing a lunch with the Justice (and my co-clerks) about twenty years ago, and the three hours flew by (Justice Blackmun told us afterward that he feared we had defected).  I certainly do not know the Justice well, but h...

By Mike Dorf A few years back, I gave a lecture (described here ) in which I remarked upon and tried to explain the surprising fact that both liberal and conservative Justices on the Supreme Court had come to embrace freedom of speech.  It wasn't always that way.  For much of American history, almost no one among legal elites embraced freedom of speech.  In the early 20th century, liberals began to embrace free speech, although most notably in the dissents of Justices Brandeis and Holmes.  Liberals remained mostly silent through the Cold War/McCarthy era, not really embracing free speech until the Civil Rights Era.  And conservatives only came along in the late 80s/early 90s.  There are two interesting phenomena there: the fact that it took liberals so long to come around and the fact that conservatives came around at all. To explain the latter phenomenon, I pointed to four factors that, I hypothesized, galvanized the right. They are: 1) Commercia...

By Mike Dorf Consider the juxtaposition of the trial of Bradley Manning--and more generally, of the Obama Administration's vigorous pursuit of leakers/whistleblowers and journalists facilitating leaks--with the Administration's simultaneous efforts to mine phone and internet records of millions of presumptively innocent private parties.  Taken together, these policies suggest what I'll tentatively call the Bush/Obama Privacy Doctrine, under which the government is entitled to privacy but individuals are not. Of course I recognize that the foregoing is not entirely a fair comparison.  The government and private individuals are not identically situated.  They have different interests in maintaining privacy/secrecy and the sorts of reasons that may be advanced for overriding privacy/secrecy may be different.  Thus, it is at least possible that each of the actions is justified: the prosecution of Manning; surveillance of journalists in order to ferret out leakers; mi...

-- Posted by Neil H. Buchanan [UPDATE: The video of my lecture is now available here .  My formal presentation begins at the 7:12 mark, and runs for about 32 minutes.] Two weeks ago, in a relatively lighthearted pos t here on Dorf on Law , I mentioned my recent "Inaugural Lecture" at a university in Vienna, Austria.  After mentioning the lecture, however, I quickly changed the subject, choosing to talk about Viennese opera, transportation infraustructure, and "vegan schnitzel."  In today's post, I return to discuss the lecture itself, especially the comments and questions from my European audience.  Describing a contrived U.S. political crisis that could destroy the world economy is difficult enough among Americans.  Europeans are genuinely befuddled, but in ways that are often instructive. When I delivered the lecture on May 23, the debt ceiling had just "woken up" from its 15-week hibernation.  The U.S. Treasury was forced immediately to re-e...

-- Posted by Neil H. Buchanan Every year, when the Social Security trustees issue their annual report, I cringe.  It is painfully predictable what will happen next: Newspapers will run articles talking about "Social Security's imminent collapse," politicians on both sides of the aisle will talk about the need to either "shore up the system" (Democrats) or "stop fooling people" (Republicans) and "end this Ponzi scheme" (the most uninformed idiots), and people besotted by the " magic of Bowles-Simpson " will claim that everyone must get serious about fiscal responsibility.  And every year, people like me will end up writing pretty much the same things, trying to debunk the hype. This year, everything played out as usual, although it does seem that even the most avid players were all but mailing it in.  My Verdict column today begins with a familiar argument: There are actually three long-term forecasts from the trustees, all bas...

By Mike Dorf Occasioned by the passing of Senator Lautenberg, my latest Verdict column sets out two criteria that I believe that governors generally ought to apply in naming interim replacements to fill Senate vacancies: 1) Name someone of the same political party as the departed Senator; and 2) name someone who will not run for election in the special or general election, i.e., a caretaker Senator.  Both criteria aim to preserve the status quo: The first criterion respects the state electorate's most recently expressed party preference for the seat; the second criterion avoids conferring the advantage of incumbency on a candidate who never was elected. The column explains why governors typically do not name a member of the opposite party and only sporadically name a caretaker.  It then argues that state or federal laws that constrain a governor's choice along the foregoing lines are probably unconstitutional.  I conclude that we are left with suboptimal re...

By Mike Dorf The latest episode of the NPR radio show This American Life   addresses the question of patent trolls by following up an episode  from two years ago, focusing on the efforts by Nathan Myhrvold's company Intellectual Ventures (IV)  to enforce a 1998 patent that claimed invention of an internet storage system--and more.  It's highly entertaining radio but, in my view, mostly goes after the wrong target. Okay, here's the basic setup (spoiler alert!).  Two years ago, the TAL/Planet Money team went out to talk with folks at IV, trying to determine whether IV was simply a gigantic patent troll--as its critics charged.  The people at IV said no, it's a company that helps little-guy inventors get paid for, and bring to market, their inventions.  When the reporters asked for examples of such little-guy inventors, they were given the name Chris Crawford.  They track down Crawford but he won't talk to them and as of two years ago it looked ...

By Mike Dorf As we await the end of the SCOTUS Term, expect speculation about the same-sex marriage cases to heat up.  Here I want to get a jump on my fellow pundits by asking a question that may very well become highly salient before long. Suppose that the Court invalidates DOMA Sec. 3 on grounds that do not require all states to recognize SSM (and that the holding in Perry --the Prop 8 case--likewise leaves some, most or all states the option of not recognizing SSM).  The obvious consequence will be that federal law will treat same-sex couples who are married under the law of the state in which they reside as married.  But what about same-sex couples who are in a state-recognized domestic partnership or civil union that confers the benefits of marriage without the word "marriage"?  If DOMA falls, will such couples be treated as married for purposes of federal law? This is hardly a hypothetical question.  The following states currently permit same-sex uni...

-- Posted by Neil H. Buchanan Because of the kind of writing that we do on Dorf on Law , we occasionally imagine that we can place an op-ed piece in one of the big-time newspapers (the ones that still exist).  This is almost always a fool's errand, because the odds are ridiculously stacked against any over-the-transom submission to such places.  At least, that's what I tell myself.  In any event, DoL readers (and writers) are not the slaves of those dastardly editors.  Enjoy! While the Debt Ceiling Slept   When Americans woke up on Sunday, May 19, the debt ceiling woke up, too.   Remember the debt ceiling?   Earlier this year, Republicans in Congress were again threatening to allow the federal government to default on its obligations, by refusing to increase the debt ceiling.   When the politics of that latest hostage-taking episode turned against them, they temporarily suspended the ceiling. On February 4, there...

-- Posted by Neil H. Buchanan In a Dorf on Law post almost two weeks ago, I argued that the recent IRS non-scandal-scandal is another good moment to wish that our journalists had not been depleted and dumbed down to the point where we now actually receive better independent commentary from late-night comedians.  When relying on those comedians works, it works well.  There are times when it is truly amazing to see how well Jon Stewart and Stephen Colbert can cut to the heart of a matter, in a way that straight journalists never could. As I pointed out in that post, however, the danger is that Stewart and Colbert (and SNL, and the networks' late night guys) are often ill-suited to the task of speaking truth to power.  They frequently take cheap shots and easy outs, sometimes making matters worse.  For example, shortly after I wrote that post, Stewart ran a segment about one of the IRS officials who is under fire, Lois Lerner, and her decision to invoke the 5th Ame...