Dorf on Law

by Sherry F. Colb In my Verdict column for this week, I discuss Ohio v. Clark , a case that the U.S. Supreme Court recently agreed to review during the coming term.   Clark  raises questions about when the introduction of out-of-court statements offered for their truth (i.e., hearsay) against a criminal defendant triggers the Sixth Amendment right of confrontation and thus requires exclusion in the absence of an opportunity for the defense to cross-examine the maker of the out-of-court statements. In this case, in response to questions by his teachers (about injuries on his face), a child identified his mother's boyfriend as the perpetrator.  At trial, the judge deemed the (three-year-old) child incompetent to testify but permitted his teacher to testify about his statements to her and another teacher identifying the defendant as the cause of his injuries.  What makes his statements potentially "testimonial" (i.e., the equivalent of in-court testimony and thus s...

-- Posted by Neil H. Buchanan My Verdict column and Dorf on Law post last Thursday extended my ongoing discussion of the misuse (by economists, policy types, and politicians) of the concept of "efficiency."  In particular, I discussed how it is possible, notwithstanding the free market mantras emanating from both U.S. political parties, that regulation by the government can be efficient. One way to restate my point is that, even if one sets aside my usual arguments about how to define efficiency in a coherent sense, there must be something that would qualify as "efficient regulation," because the economy is -- and must be, at all times -- regulated by the government.  What people call "unregulated" actually just means, in most cases, "Powerful entities get to do what they want, and the government enforces rules that back them up and that move wealth and power in their direction."  That is regulation, too, but the mouthpieces for those p...

By Michael Dorf As the Supreme Court waits for a Circuit split that may never arrive before granting certiorari in a same-sex marriage case, it is worth noting that the Court's role in ensuring the uniformity of federal law occasionally manifests itself in a different way: sometimes the Court resolves conflicts between a state court and the courts of the circuit that encompass that state. Supreme Court Rule 10 (a) expressly recognizes this sort of interest, listing state-circuit conflict just after inter-circuit conflict as a "consideration" in the decision whether to grant cert. (The Rule lists "considerations" rather than "criteria" because, as the Rule itself states, the factors are mere guidelines; granting or denying certiorari remains a matter of unreviewable discretion.) The main focus of Rule 10 appears to be national uniformity as such. Thus, 10(a) lists conflict between a federal appeals court and "a state court of last resort,"...

By Michael Dorf Although elected officials in some states that fall within the circuits that have invalidated same-sex marriage (SSM) bans have acquiesced to the inevitable by implementing SSM in their states, others appear to want to go down swinging. I have no sympathy for the substance of their (lost) cause, but here I want to suggest that their legal position has more to recommend it procedurally  than one might at first think. I'll focus on South Carolina, where there is a potential conflict brewing between the state and federal courts. As I'll explain, the South Carolina Supreme Court may be playing a subtle game. But first, a seemingly unrelated story. In 2007, I received a phone call from a NY Times reporter who was interested in a case from New Rochelle. A state court judge had thrown out the charges against a homeless man who was arrested for begging in violation of a state law that had been declared unconstitutional over a decade earlier, yet the state planned to...

-- Posted by Neil H. Buchanan In my newest Verdict column , which was published yesterday (and which I described and extended here on Dorf on Law ), I begin by arguing that many Democrats agree with the Republicans' positions on many issues, to the country's (and the Democrats') detriment.  Before proceeding to the central point of the article -- the bipartisan misunderstanding of concepts like efficiency and regulation -- I briefly mention budget deficit hysteria as an obvious point of agreement among many Democrats and all Republicans.  (Do not forget that the infamous Bowles-Simpson duo is nominally bipartisan, and the Obama Administration created that misbegotten commission at the insistence of "centrist" former Democratic Senator Byron Dorgan.) As part of that brief discussion about deficit mania, I wrote that the bipartisan commitment to annual balanced budgets "is a bit awkward, because it is simply inconsistent with another widely held notion, t...

-- Posted by Neil H. Buchanan The late night shows on Comedy Central, The Daily Show and The Colbert Report , have been especially strong lately, mocking the full-on craziness of the Foxiverse and other cable news shows in their coverage of the Ebola crisis.  I hesitate even to call it a "crisis," of course, because that feeds into the panic-mongering that Stewart and Colbert are ridiculing.  But given the death toll in several western African nations, I think it is reasonable to use that word.  Even so, it is obviously not true that Americans are all only moments away from being infected with this deadly disease, and it is truly sad that, once again, the voices of reason are provided by comedians, while right-wing politicians foment fear, and supposed journalists treat "Are we doomed?" as a matter of opinion, to be exploited for ratings.  Sad, but sadly unsurprising. In my new Verdict column, published today , I take an unusual angle in analyzing the right-wi...

by Michael Dorf Imagine a conservative judge on a panel on one of the courts of appeals in a circuit that has not yet ruled on the constitutionality of state laws forbidding same-sex marriage (SSM). Let's call him Judge Hetero.  Judge Hetero has considered all of the arguments, and his best legal judgment--informed as a judge's legal judgment inevitably is, by his values--is that there is no constitutional right to SSM. Hetero admits that the question is close in light of United States v. Windsor , but he thinks that CJ Roberts was ultimately correct in reading that case as a federalism decision. I know most of my readers do not   think this; I don't   think this; I think the opposite; but at least a few judges think this, and I'm asking you to assume for reasons that shall become clear that Hetero is one of these judges. If Hetero's court had been required to rule on the validity of a state SSM ban last week, he would have voted to uphold the ban. Now the quest...

by Michael Dorf I usually write a blog post to accompany my Verdict columns, but my column today is on the constitutionality of quarantines (in response to Ebola), about which I have nothing to add. I'll let the column stand for itself. Meanwhile, I'll be back with another same-sex marriage post in a few hours.

by Michael Dorf Yesterday's cert denials in the same-sex marriage cases surprised most observers, including me. The likely impact of the cert denials was pretty well understood almost immediately. As I explained a couple of weeks ago, given the practical impact for same-sex couples who marry in the states in the circuits where the stays are lifted and where additional lawsuits or actions by elected officials enable SSM, the cert denials amount to "a very strong signal that the Court's ultimate decision on SSM is a foregone conclusion in favor of invalidating state bans, because only by invalidating SSM bans would the Court avoid the uncertainty that would follow if multiple states had to deal with interim same-sex marriages that became retroactively illegal." The harder question is what were the internal dynamics of the Court that led to the cert denials. I don't have a good answer, but I do have some thoughts about the various factors that were in play. Here...

by Michael Dorf Today is the first Monday in October, i.e., the opening day of "October Term 2014" at the Supreme Court. The start of a new Term is an occasion for commentators to reflect on the state of the Court's jurisprudence overall or in particular areas, to lament some aspect of the Court's procedures (such as the refusal to permit arguments to be televised), and to preview the cases already docketed and those in the pipeline. Those are all fine enterprises, and I have tried my hand at each of them in the past, but today I want to suggest that the idea of a Supreme Court "Term" is an anachronism that should be abolished. Lower federal courts and most state courts do not have formal terms. Instead, they are in session continuously. That does not mean that they hear cases every day, of course. Federal appeals court judges typically sit in panels for a week at a time, then retreat to their chambers to write opinions and prepare for the next sitting. ...