Dorf on Law

By Mike Dorf The Snowden case has shone a spotlight on just how many people hold top secret clearances: according to a Washington Post story , as many as 4 million, including half a million private contractors.  With so many top secret clearances, it is inevitable that some people with such clearances will prove untrustworthy--absent some incredible system for issuing these clearances and probably even with one.  My own experience casts doubt on the existence of any such incredible system. From time to time, I receive a phone call or a visit from either an FBI agent or other investigator performing a background check on a former student of mine who is being considered for a job (typically as a prosecutor) that requires a security clearance.  The investigator proceeds to ask a series of questions, to which nearly all of my answers are "not to my knowledge."  Here are some examples: Does Jane have a gambling problem?  Does Jane abuse alcohol or drugs?  Do...

By Sherry F. Colb In my Verdict column for this week, I discuss the case of Alleyne v. United States . In  Alleyne , the Supreme Court recently held that under the Sixth Amendment right to jury trial, a criminal statute may not raise the mandatory minimum sentence on the basis of a fact-findings by the judge in the case.  In my column, I discuss the appealing features of Justice Thomas's majority opinion so holding, but I ultimately conclude (spoiler alert!) that Chief Justice Roberts's dissenting opinion is more compelling. In this post, I want to explore an assumed feature of the Sixth Amendment jury trial right jurisprudence -- that this right protects criminal defendants by requiring that juries rather than judges do the fact-finding that  exposes defendants to higher sentencing ranges, at both the high and low ends of the range.  Here is my question about this assumption:  Might it be difficult for the jury to really do this protective job without...

by Mike Dorf As someone who supported Scott Stringer in earlier campaigns, I confess to having had mixed emotions upon learning that former NYS Governor Eliot Spitzer had entered the race for NYC Comptroller.  On the one hand, I felt bad for Stringer, who is an earnest, hard-working politician and, prior to Spitzer's entry into the race, was a lock for the position.  On the other hand, I was as amused as the next guy.  First Mark Sanford successfully runs for Congress.  Then Anthony Weiner runs for Mayor.  And now Spitzer.  The jokes pretty much write themselves. There are differences, of course: as Frank Bruni's astute NYT column today notes, Sanford won his congressional race because he was a Republican running in a heavily Republican district; Bill Clinton weathered the Monica Lewinsky scandal because he had large reserves of public good will, by contrast with both Weiner and Spitzer, neither of whom was ever much loved by the public (and both of ...

By Mike Dorf A recent NY Times story reveals that the FISA court has created a secret body of case law (in more than a dozen decisions) that gives the NSA broad powers to engage in warrantless electronic surveillance.  Much of the story focuses on the content of that body of law--as gleaned from the revelations of Edward Snowden and confidential sources.  There are legitimate worries that the FISA Court has gone farther in allowing surveillance than the existing Supreme Court precedents allow but, of course, without access to the FISA Court's rulings, it is impossible to know whether the rulings are justified. And that points to a profound process concern.  At least since the time of Hammurabi (nearly 4,000 years ago), the very idea of legality has been associated with publicity.  From the perspective of the individual, knowledge of the law is necessary in order to conform one's conduct to the law.  Maybe that wasn't Hammurabi's purpose in inscribing his co...

By Mike Dorf The news that Venezuela and Bolivia have offered Edward Snowden asylum could moot the question of whether Snowden is legally entitled to asylum under international law.  If Snowden accepts one of the offers and manages to get himself to Venezuela or Bolivia (or perhaps Nicaragua, which is also apparently toying with an asylum offer), then it will be up to the Venezuelan or Bolivian authorities to determine whether he is actually legally entitled to it--and presumably the offer of asylum reflects the conclusion by the respective governments either that Snowden is entitled to asylum or that they don't care whether he is entitled to asylum because granting it is a way to poke the Yankee imperialists in the eye (or perhaps both). The legal issues raised by Snowden's asylum requests are quite interesting and have implications beyond his case.  Various signatories to the UN Convention and Protocol Relating to the Status of Refugees implement the treaty in slightly ...

By Mike Dorf In keeping with my somewhat light summer schedule, today's post is simply an advertisement for Sherry's book, Mind If I Order the Cheeseburger: And Other Questions People Ask Vegans , which is now available everywhere, including Amazon , Barnes & Noble , and from the publisher , Lantern Books.  Find more info, including testimonials, at mindifiorderthecheeseburger.com .

By Mike Dorf How should President Obama, Secretary Kerry and other U.S. government officials think about yesterday's coup in Egypt, the ongoing civil war in Syria and policy towards the Middle East (and the rest of the world) more broadly?  Historians would no doubt point to parallels with other tragic betrayals: The storming of the Bastille and the Declaration of the Rights of Man gave way to the Terror and eventually to Napoleon; the anti-Tsarist revolution of early 1917 gave way to the Bolshevik revolution and civil war, ultimately paving the way for seven decades of misery under Soviet Communism; the broad-based coalition of anti-Shah groups enabled the Ayatollahs to claim power in Iran; etc.  Thus, historians who, at the beginning of the Arab Spring, cautioned that this movie probably wouldn't end well, may well be saying "we told you so" at this point. Fair enough.  I'm not a historian.  As an American constitutional lawyer, I don't have a whole lot ...

By Mike Dorf On a recent day trip to Seneca Falls, Professor Colb and I took our daughters to see the memorial to the Declaration of Sentiments , issued in July 1848 and commonly considered a watershed in the movement to win suffrage for women.  I had read the Declaration before, but reading it in stone ( literally ), I was struck by a number of points that seem worth noting as we celebrate Independence Day. (1)  The link between the movement for women's suffrage and for the abolition of slavery is difficult to miss.  The lead organizers--Lucretia Mott, Elizabeth Cady Stanton and Mary M'Clintock--were all well-known abolitionists and saw their struggle as a logical outgrowth of abolitionism.  The list of men who signed is equally striking for its inclusion of abolitionists, especially Frederick Douglass.  Thinking about these links from the perspective of constitutional law underscores just how much of a betrayal Section 2 of the Fourteenth Amendment would h...

By Mike Dorf In the wake of last week's rulings in Shelby County  and Windsor , various commentators have noted that the Supreme Court rejected protection for African Americans, while it offered protection for gays and lesbians.  For example, Michael Lerner offers his take here .  He offers some important insights  but of course, the framing is a bit odd.  The Supreme Court is a they, not an it.  Four Justices--Roberts, Scalia, Thomas, and Alito--said no to both African Americans and LGBT Americans.  Four Justices--Ginsburg, Breyer, Sotomayor, and Kagan--said yes to both.  And exactly one Justice--Kennedy--did what Lerner analyzes in his essay: said yes to LGBT Americans but no to African Americans. Can a coherent argument be made for each of those three juxtapositions?  In light of the different contexts of the respective cases, I think so, but here I simply want to note that the various configurations occupy three of the four possible p...

By Mike Dorf In my new column on Verdict ,   I identify a possible trend in recent Supreme Court cases, including those authored and joined by conservatives as well as those authored and joined by liberals: a tendency to be especially skeptical of laws that take a form that is either unprecedented or rarely used before.  I give three examples: 1) The claim by the five conservative Justices in the Affordable Care Act case last year that the individual mandate was unprecedented; 2) the claim by the same five Justices last week in the Shelby County case that the strictures of Section 5 of the Voting Rights Act were unprecedented; and 3) the claim by the liberals plus Justice Kennedy in the DOMA case that Congress had departed from a longstanding tradition of accepting state definitions of marriage.  In each instance, the claim of novelty was at least part of the basis for viewing the law's constitutionality skeptically. As I say in the column, I'm not necessarily...