Dorf on Law

-- Posted by Neil H. Buchanan My new Verdict column, which was published yesterday, correctly anticipated one of Paul Ryan's tactics in last night's non-debate.  I am not, however, taking a victory lap, because this was as easy to predict as anything in American politics: Ryan lied and evaded, and he looked simply shocked and hurt that anyone would question his honesty. The title of my column was: " Would I Lie to You? In the Debate and Elsewhere, Romney and Ryan Exploit the Manipulative Tactics of Car Salesmen (With Apologies to Car Salesmen) ." Readers old enough to remember the Eurythmics, a 1980's art rock duo, will now spend the rest of the day trying to get the tune and lyrics of a certain hit song out of their heads: Would I lie to you? Would I lie to you honey? (Oh, no, no, no) Now would I say something that wasn't true? I'm asking you sugar, would I lie to you? In addition to my arguments in that Verdict column and this morning's Do...

-- Posted by Neil H. Buchanan About twenty minutes into last week's Presidential debate, when the Romney strategy of brazen dishonesty and false moderation had become clear, I had the sinking realization that I had to brace myself not just for another 70 minutes of that assault on Americans' intelligence.  I also had four and a half hours of it yet to come, with one VP debate and two more Presidential debates still on the schedule.  The only good thing that I can say now is that we have reached the halfway point in this farce.  The end cannot come soon enough. It is by now utterly beside the point to try to "score" the debates.  Paul Ryan's performance last night was so devoid of truth that it is impossible even to try to describe what he was doing as "arguing."  Even when he was not following Mitt Romney's strategy of simply repeating flat-out lies, his responses to Vice President Biden's arguments were even more dishonest than the lies that...

By Mike Dorf I recently received a package, which, upon unwrapping, I discovered contained a bobblehead.  Here's a pic: A moment's observation reveals that the bobblehead is a likeness (more or less) of me, as verified below: But the package contained no card or other identification of the sender.  It came from an address in China via a website that enables users to upload a photo to create a custom bobblehead. The slogan on the base is "Damn the Absolute," which is a quotation of William James.  To my knowledge, I've never said "Damn the Absolute," although I have on various occasions expressed admiration for the views of William James and other American pragmatist philosophers. So we have a mystery.  Who sent me this bobblehead?  Was it meant affectionately, as it appears?  Or is it insidious?  Perhaps there's a tiny listening device implanted in it?  Anyway, sender, please reveal yourself (either on or off list, as you choose) so ...

by Sherry F. Colb In my column on Verdict  this week, the second in a two-part series, I discuss the Sixth Circuit's ruling in United States v. Skinner that when police track an individual's movements through his cellphone signal, they do not perform a "search"  for Fourth Amendment purposes and may therefore act without a warrant or probable cause.  In the column, I discuss the relation between this case and the U.S. Supreme Court's decision last term in United States v. Jones , holding that attaching a global positioning device to a man's vehicle and thereby tracking the man's location on the public roads does  qualify as a Fourth Amendment search and was accordingly unlawful in the absence of a search warrant.  In a follow-up post on this blog , I analyzed the larger issue of form over substance in the law. In this post, I wanted to address a completely unrelated phenomenon, one that I have come across several times in the last few weeks: ...

By Mike Dorf Consider this the first official entry in a series that has been in de facto existence for quite some time: Blog posts in which I pose (what I think is) an interesting question, acknowledge that I don't know the answer, also acknowledge that I lack the empirical research skills to design or carry out a study that would find the answer, nonetheless speculate on what I think such a study would likely find, and then conclude that somebody else should do the hard work of actually figuring out the correct answer.  So, adhering to the foregoing formula, here we go. Mitt Romney's substantial post-debate bounce has put me in full rationalization mode, with thoughts like the following ricocheting around inside my brain. Hey, maybe Romney wouldn't be the disastrous President that I fear.  Sure, he'd be beholden to the social conservative activists on judicial appointments, which would produce what I regard as normatively terrible results, but that might be good...

By Mike Dorf In observance of Columbus Day, I'll take this opportunity to plug a fascinating book I recently read-- 1493: Uncovering the New World Columbus Created , by Charles Mann.  As the book's subtitle suggests, Columbus did not so much "discover" the New World for Europeans as "create" it, in numerous ways. Some of these creations are familiar--or at least should be.  For example, tobacco, maize, tomatoes and potatoes were not known to Europe or Asia until they were transplanted as part of the "Columbian exchange."  Medieval Italy had no tomato sauce (and pre-Marco Polo had no pasta), while Ireland had no potatoes.  The introduction of New World plant species to Europe and Asia had far-reaching consequences for subsequent world history. Meanwhile, the introduction of European and African diseases to the New World had devastating consequences for the native populations.  Here's a tidbit I found revealing: The African slave trade rece...

-- Posted by Neil H. Buchanan In my post yesterday , I assessed the first Presidential debate of 2012 from the standpoint of the contestants' abilities to argue -- whether they could construct and defend arguments, respond to opponents' points, and marshal facts to support their points of view.  In other words, I assessed the debate as a debate .  I gave President Obama a mediocre grade, but I noted that he did display an ability to argue effectively (even though he missed out on a number of opportunities to do more).  Former Governor Romney, on the other hand, earned an "incomplete," because he continues to be unwilling to give the full picture of what he proposes.  Had I been forced to give Romney a grade on the argumentation skills that he actually showed during the proceedings on Wednesday night, I would have given him a D. As I noted in that post, I had deliberately sequestered myself from the chatter about the debate, in order to be able to write about wha...

-- Posted by Neil H. Buchanan In the classic comedy movie "Animal House," the dean of Faber College tells the members of Delta House their mid-term grades.  As he runs through the list, he starts with the C students and runs all the way down to the student with a 0.00 GPA.  Just when the audience thinks that it cannot get any worse, the dean announces that Daniel Simpson Day ("D-Day") "has no grade point average," because he has incompletes in every course. Barack Obama had his ups and downs in the first Presidential debate last night, but he earned a decent (but surely disappointing to his supporters) B or B- overall.  Mitt Romney has no grade, because he continues to insist on submitting incomplete work. This strategy, by which Romney continues to believe that he can become President simply by telling people as little as possible, is surely not a matter of Romney's having D-Day's insouciance.  (That would, among other things, be too French...

By Sherry F. Colb In my Verdict  column for this week, part 1 of a 2-part series, I discuss United States v. Skinner , a case in which the U.S. Court of Appeals for the Sixth Circuit held that the police may track a suspect's real-time location over time through his cellphone signals without having to obtain a warrant.  Location-tracking, in other words, is not a Fourth Amendment "search," under this decision.  In my column, I discuss differences between Skinner  and the recent U.S. Supreme Court case of United States v. Jones , in which the Court held that attaching a tracking device to a car and thereby monitoring a suspect's whereabouts on the public roads does  constitute a Fourth Amendment search and therefore violates the Constitution in the absence of a warrant supported by probable cause.  One important difference between Skinner  and Jones  lies in the fact that police in the latter but not the former case attached a...

By Mike Dorf California Governor Jerry Brown just signed into law a bill that forbids mental health providers from attempting to change the sexual orientation of any patient under the age of 18.  Here I want to explore two questions: 1) Why did California ban voluntary as well as involuntary sexual-orientation-change therapy for minors? and 2) Why doesn't the ban apply to such therapy for adults? 1) As the legislative findings contained in the law recount, efforts to "repair" or "cure" young people of homosexuality or bisexuality are flawed in various ways.  To name a few:    a) "Reparative" therapy begins from the outdated premise that homosexuality and bisexuality are diseases or otherwise inferior ways of being.    b) Reparative therapy doesn't work.    c) Reparative therapy harms minors subject to it.  The findings in the law list the following harmful effects: confusion, depression, guilt, helplessness, hopelessness, shame...