Dorf on Law

Remember the stimulus bill? Back in February, Congress debated the package of spending increases and tax cuts that President Obama had proposed to mitigate some of the damage of the recession that had begun in December 2007 and had accelerated into the beginning of his presidency. The debate over the stimulus bill became one of the more tragicomic episodes in recent Congressional history. As part of an ongoing project, I recently asked a research assistant to pull up some of the floor speeches about the stimulus bill. The commentary was even funnier than I remembered. Even though the legislation has long since passed, I cannot resist sharing two observations from reading the transcript. At one point, all of the Republicans were making a big deal about a funding provision that they said would really be spent on "mouse habitat restoration." Speaker after speaker repeated this attack line, including one representative who complained about "$30 million for a rat in San Franc...

Despite my own warning to ignore such nonsense, I've been thinking a bit about Judge Sotomayor's "wise Latina" remark. Here it is (with emphasis added by me) in full context: Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life . Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court...

On Sunday, anti-abortion activist Scott Roeder shot and killed Dr. George Tiller at church while the latter was distributing church bulletins to the congregation. Dr. Tiller worked at one of a small number of clinics in the United States that offer abortions beyond 21 weeks of pregnancy. Anti-abortion activists had targeted the clinic and Dr. Tiller for violence in the past, including a bombing and a shooting in which the perpetrator had attempted to kill Dr. Tiller. Former patients of the doctor have described him as compassionate and warm at an unbearably painful time in their lives. Pro-life advocates, including Bill O'Reilly (who reportedly referred to Dr. Tiller on 28 episodes of his show) have described him as a "baby killer" and mass murderer. Despite their condemnation of him, however, pro-life organizations have been quick to distance themselves from the murder, contending that violence is no answer to abortion and that the better path is conversion. Earlier ...

Last Thursday, I continued my jeremiad against individual home ownership. The essence of my argument is that the social pressure to own a home -- pressure that is reflected in many different public policies -- is harmful to both individuals and society in ways that go far beyond the immediate housing-initiated economic crisis. Because of my professional habits, I focused on the tax advantages conferred on home ownership and suggested that we should eliminate those advantages if we want to solve the underlying problem. Today, I will begin to explore some politically realistic ways to deal with the problem. To summarize, the biggest problem with individual home ownership is that it concentrates risks in ways that can be ruinous to people whose homes lose value. Moreover, this personal tragedy can become a problem for the rest of the country when people are, to put it simply, stuck where their houses are but the jobs are not. Also, as one of the comments on my recent post noted, the...

In my latest FindLaw column , I ask what a judicial philosophy is and what Judge Sotomayor's judicial philosophy is, in particular. I conclude that, by contrast with the Supreme Court's conservatives (focusing on Justice Thomas and Chief Justice Roberts, because of points they made in their respective confirmation hearings), who are formalists, Judge Sotomayor is a legal realist. (If these categories are unfamiliar to you, please read the column, where I explain them. Actually, please read the column even if the categories are familiar to you.) As I also say in the column, to say that a judge is a legal realist is only to begin to describe her or his judicial philosophy. Recognizing that values and background influence a judge's decisions, we still have the question of what a judge should strive to do. One way to characterize that inquiry with respect to constitutional cases is to ask about the pattern of deference and non-deference to political actors that emerges fro...

Does a lawyer representing herself enjoy the protections of the attorney-client privilege? The attorney-client privilege protects communications between privileged persons (i.e., lawyers and those assisting them) made in confidence for the primary purpose of securing, obtaining, or providing legal advice. In the case of self-representation at least one puzzling element of the attorney-client rule is “communications.” In what sense can one (in her role as client) communicate with herself (in her role as lawyer)? For one, internally talking to oneself is better described as thinking than communicating. And, even writing or verbally expressing to oneself one’s thoughts and mental impressions seem more like solitary activities than acts of communication. After all, not unlike the Tango, it necessarily takes at least two to communicate. But does it? It occurs to me that, when done over time, one may communicate information to oneself. Leaving a note to oneself on one’s desk listing “things ...

In a typical week during the course of a semester, professors are given the opportunity to attend one or, at most, a handful of works-in-progress seminars given by colleagues or visiting scholars. Academic conferences intensify the experience by scheduling multiple panels over the course of several days, usually with a panel of between three and five scholars presenting similarly-themed papers to a self-selected audience and a chair/discussant. Depending on the conference, there can be as few as one panel per time slot or as many panels as the physical space permits. For those of us who are tax scholars, the number of tax papers that one can see presented at our home institutions during the semester is pretty low (unless you are at one of the few law schools that sponsors a tax colloquium). At the AALS annual meetings, there is exactly one tax panel presented each year. There are also specialized tax conferences, my favorite being the annual Critical Tax Conference (most recently h...

I'm in complete agreement with John Dean in his assessment of the risks inherent in the federal court challenge to California's same-sex marriage prohibition being spearheaded by uber-lawyers Ted Olson and David Boies: There is a substantial probability that the 9th Circuit will invalidate the ban, teeing the case up for the Supreme Court; at that point, a SCOTUS decision upholding the same-sex marriage ban could set back the cause of marriage equality by a decade. Indeed, I would add that there's a further risk: If the Supreme Court were to invalidate the ban, that could inspire a backlash that would re-energize the currently moribund religious right, and possibly even lead to a constitutional amendment banning same-sex marriage. Given the progress that is being made with a state-by-state approach, this is a very high-stakes gamble. Based on my own discussions with various players in the LGBT legal community, I agree with Dean's view that there is a great deal of j...

[A brief introduction. I am an attorney and a scientist. I attended Rutgers Law School in Newark where I was taught Criminal Procedure by fellow Dorf on Law blogger and good friend Sherry Colb. I worked as a patent and anti-trust attorney for Sidley and Austin in Manhattan until 2003. At that point I left the practice of law and became a Director at the World Anti-Doping Agency laboratory at UCLA. After a few years there, I left to form my own company - The Agency for Cycling Ethics and now Scott Analytics - where I develop and administer anti-doping programs for both professional and Olympic sport. I also serve regularly as a consulting expert for anti-doping cases and have been involved in almost every high profile doping case over the last five years. I will generally be writing here about legal issues involved in sports, with a likely heavy slant towards anti-doping in professional and Olympic sport. Today, however, I am going to focus on a bit of esoterica of Major Leage Baseball ...

I'll begin with a confession: I've only skimmed the California Supreme Court opinion upholding Proposition 8 as a permissible "amendment" that did not have to go through the more demanding process required for "revision" of the state constitution. I do not consider myself an expert in California constitutional law, in any event. Did the majority read the prior precedents too narrowly in holding that only structural changes require the revision process? Was Justice Moreno right that permitting a change that disadvantages a minority group on the basis of prejudice must itself satisfy the strict scrutiny test? That certainly would not be true at the federal level, but the federal Constitution does not distinguish between "amendments" and "revisions"---except to the extent that changes depriving any state of its equal suffrage in the Senate require a more rigorous process (obtaining that state's consent) than other changes require. I fin...