Dorf on Law

By Bob Hockett Some commentators are already labeling last Tuesday's electoral results those of a 'status quo' election. Yet whether it proves status quo or not rides much more decisively upon what the President, the Democrats, and indeed all of us do now than upon what we all did before Tuesday. The real question confronting us, then, is whether we shall enable the President and his party finally to become that bold, visionary, latterday New Deal White House and Caucus that so many of us hoped for in 2008. And only we - and they - can answer that question. To elaborate briefly: Since winning election four years ago, the President and his Party have consistently taken primarily timid and tentative steps along each path we'd hoped they might stride with courageous conviction. Where we'd hoped for full-scale mortgage-loan principal-reduction and Main Street relief to reverse our calamitous housing-crash debt-deflation, they brought Wall Street assistance and HAM...

-- Posted by Neil H. Buchanan My first order of business today is to concede -- happily -- that my prediction in last Friday's Dorf on Law post turned out to be wrong: "There will be at least one state (probably Ohio) in which there is a mysterious difference in the official count and the best forecasts before, and on, election day."  As it turned out, either the armed standoff between the two parties that I discussed later in that post has now reached equilibrium (wasteful though it is), or the election was not close enough to steal.  In the latter case, it would have been unwise for anyone to try to intimidate enough voters, hack enough electronic machines, and so on to try make a difference (and to be caught doing it), because the election was really out of reach. We do know, of course, that there were still instances in which Democratic-leaning precincts ended up with extremely long waiting times, that various dirty tricks were employed (robo-calls to elderly...

  -- Posted by Neil H. Buchanan In my new Verdict column , I return to a few of my favorite topics: public investment, generational justice, and the Romney/Ryan campaign's dishonesty.  I begin by describing a truly odd rhetorical move in a Romney campaign ad that ran during the final days before the election.  (Although I live in a Blue state, next to an even Bluer district, the local TV market covers Virginia, which was a key swing state this year.  Hence, I had the displeasure of experiencing a bombardment of advertisements for the last several months.  This was not Ohio, but it was bad.) The ad was designed to combat Romney/Ryan's massive gender gap problem.  The campaign decided, characteristically, to rewrite Romney's history -- in this case, with regard to abortion, contraception, Planned Parenthood, and all of the craziness from the primary campaign.  Again, this dishonesty is not shocking, given the track record.  The unexpected move ...

by Sherry F. Colb The second of my two-part series of columns about the Fourth Amendment dog-sniff cases in the Supreme Court appears today on Justia's Verdict.   Rather than further discuss the dog sniff cases here however, I want to use this post to voice a critique of oral argument in the U.S. Supreme Court.  I think that it sometimes turns what could be a useful exchange between the advocates and the Justices into an opportunity for Justices to test and for attorneys to showcase (or fail to showcase) skill at thinking on their feet.  On the assumption that we ought to be resolving cases on the merits, this theater does a disservice to the needs of the litigants and "the people" more generally. What brought this issue to my mind was reading the transcript of oral arguments in Florida v. Jardines  (the case asking whether a dog sniff for narcotics at the front door of a suspect's home represents a Fourth Amendment "search") as well as Florida v. Har...

By Mike Dorf Views about human nature, broadly defined, can play an important role in shaping various people's political ideologies.  For example, old-school communists believed in the essential malleability of human nature.  Thus, Lenin and his followers sought to create a new Soviet man (and woman) who would work in collective enterprises simply because he (or she) sought the greater good for the collective. The failure of large-scale collectivization in the Soviet Union, China and elsewhere can be taken as pretty good evidence that most human beings will not labor for their fellow human beings with nearly the same vigor as they will labor for themselves and their families.  That failure also strongly suggests that the totalitarianism that emerged in communist countries was not merely a historical accident but a necessity: In order to get people to accept collectivization, the state had to employ extreme force.  We may thus view the period from 1917 to 1991 as ...

By Mike Dorf Back in 2004, when Justice Scalia was taking some heat for his refusal to recuse himself from a case involving Vice President Cheney's energy policy task force based on their having gone on a duck-hunting trip together, I came to his defense .  Here was a key portion of my analysis: Suppose that Justice Scalia and his friend Vice President Cheney had also been accompanied on their duck-hunting trip by Justice Scalia's friend Justice Ruth Bader Ginsburg. (If you have difficulty imagining Justice Ginsburg duck hunting, imagine the threesome at the opera instead.) Would anyone think that her impartiality would be called into question because of social interaction with the Vice President? Would the Sierra Club have sought her recusal?  Of course not. And why not? Because Justice Ginsburg is, as a matter of judicial philosophy, less prone to accept claims of executive power than Justice Scalia.  The real objection, as everyone who understands what's going...

-- Posted by Neil H. Buchanan This is my last scheduled Dorf on Law post before Election Day.  Accordingly, I hereby offer my official prediction: There will be at least one state (probably Ohio) in which there is a mysterious difference in the official count and the best forecasts before, and on, election day.  This is not a bold prediction, by any means.  In fact, it is probably safer than predicting that the New York Yankees will receive heavy media coverage during the off-season. This prediction is independent of the outcome of the Presidential race.  Even so, it raises some important issues.  We know that Republicans have been engaged in a long-running effort to suppress voter turnout.  We know that some key Republican donors and fundraisers are also the people who control the voting machine industry.  We know that the key swing states currently have Republican governors (who are, at least in the cases of Ohio, Wisconsin, and Florida, prime e...

-- Posted by Neil H. Buchanan Last week, I followed the evidence in my ongoing discussion of the notion of "false equivalence" -- in which I (like many observers) have been rejecting the idea that "both sides are equally bad" in American politics ( see, for example , here , here , and here ) -- and reached a very unfortunate and unexpected conclusion.  In my Verdict column on Thursday and Dorf on Law post on Friday , I described how the leadership of the Republican Party has been taken over by a group that can best be described as "sociopaths."  Relying on standard and clinical definitions of sociopathy , I discussed how the Republican leadership's anti-social behavior has become driven by (among other symptoms) an unmistakable "disregard for social norms, rules, and obligations." Of course, making such an observation is rather shocking.  Indeed, part of the sinister brilliance of the Republican Party leadership's current strategy...

By Sherry F. Colb Today on Verdict appears part 1 of a two-part series of columns in which I discuss the cases of Florida v. Jardines  and Florida v. Harris , both of which are set to be argued before the U.S. Supreme Court October 31 (today).  Both of the two cases raise questions about dog sniffs for narcotics:  the question in Jardines  is whether bringing a dog to the front door of a suspect's home to sniff for narcotics constitutes a Fourth Amendment "search" that triggers the probable cause requirement; and the question in Harris  is when a dog's positive alert after sniffing a vehicle from the outside for narcotics may be considered sufficiently reliable to support probable cause to perform a conventional search of the vehicle. In both decisions, the Florida Supreme Court sided with the criminal defendant, holding that (1) a dog sniff from outside the front door of a suspect's residence does constitute a search for which police must have probabl...

By Mike Dorf With Hurricane Sandy wreaking its havoc on the coast and currently headed for Ithaca (perhaps as a mere tropical storm), I thought I'd devote today's post to the relatively frivolous distraction of a dissection of a football rule.  For those of you who still have internet access, perhaps this will prove amusing. Near the end of Sunday's Cowboys/Giants football game , Cowboys wide receiver Dez Bryant caught what was initially ruled a game-winning touchdown pass in the back of the end zone, but following instant replay review, the pass was ruled an incompletion.  As the announcers explained, and as I shall explain momentarily, the revised ruling was correct. The replay showed that Bryant caught the ball while he was in the air but that the first part of his body to land was his hand, and his hand landed partially beyond the back of the end zone.  Under Rule 8, Section 1, Article 3, if a receiving player "touches the ground inbounds with both feet or wi...