Dorf on Law

-- Posted by Neil H. Buchanan On November 1, I wrote a post here on Dorf on Law that asked: " What Can We Say About Government Shutdowns That Is Not (Completely) Related to the Debt Ceiling? "  That post focused on the "other half" of the big fiscal policy crisis that enveloped the country until October 16, to wit, the government shutdown.  (The "first half," of course, was the debt ceiling .)  In that post, I engaged with the question of whether there is anything to say about the government shutdown that does not simply boil down to talking about the political consequences of the two sides' failure to reach an agreement.  That is, is there a legal -- ideally a constitutional -- argument that would help us to avoid a possible future filled with more shutdowns and budget brinksmanship? I then tentatively -- one might even fairly say gingerly -- said some positive things about an argument that the historian Sean Wilentz offered at a "debate...

by Sherry F. Colb In my column for this week on Verdict , I discuss a federal lawsuit in Wisconsin that challenges a statute, informally known as the "cocaine mom" act, which provides for the incarceration of women abusing drugs and refusing to undergo treatment.  In the column, I suggest some ways in which fetal protection laws, like the Wisconsin one, resemble anti-abortion legislation, along with some important ways in which the two types of legislation differ.  In this post, I want to suggest that fetal protection policies may actually serve to undermine the objectives of the anti-abortion movement. When a state passes a law to protect fetuses and embryos from maternal use of alcohol and other substances, the ostensible purpose is to prevent the ingestion of the prohibited substances and to compel the pregnant woman to take better care of her pregnancy.  In the case the law might have contemplated, a pregnant woman goes to her doctor, and the doctor discovers that...

By Mike Dorf As recently reported in the NY Times , state six states are currently refusing to issue spousal ID cards or to process federal benefits applications for same-sex spouses of military service members on the ground that to do so would violate state laws that deny legal recognition to same-sex marriages--despite the fact that Defense Secretary Hagel has taken the position that same-sex military spouses should be entitled to fully equal treatment with opposite-sex military spouses.  Here I ask whether there is any basis in law for the resistance of state officials. The short answer is no.  State officials say that it would violate state law for them to comply with the orders but even assuming that is so, the state officials must comply because the Supremacy Clause means that in cases of conflict, federal law prevails over state law--unless the federal law itself is invalid.  Is there any reason for thinking that the federal government lacks...

By Mike Dorf In two recent DoL posts ( here and here ), Anil Kalhan described the extraordinary nature of the recent ruling by a panel of the US Court of Appeals for the 2d Circuit removing SDNY Judge Scheindlin from any further role in the litigation over NYC's stop-and-frisk policy.  I agree with Professor Kalhan's analysis but here I want to ask a basic question that has been puzzling me and presumably puzzling readers as well:  Given that Mayor-elect deBlasio will abandon the Bloomberg/Kelly stop-and-frisk policy regardless of how the litigation turns out, does any of this matter?  The short answer is maybe, but for reasons that readers may find surprising. Obviously the case matters for the legacy of the Bloomberg Administration.  With their time in office drawing to a close, Mayor Bloomberg and Police Comm'r Kelly no doubt wish to remove what they regard as a major blemish from their record: The legal ruling by Judge Scheindlin that one of their chief crim...

By Anil Kalhan WNYC's @brigidbergin brings us this heartwarming photo of pals @deBlasioNYC and @MikeBloomberg having a laugh. pic.twitter.com/ZWS2viwIxc — Paul DeBenedetto (@pauldebenedetto) November 6, 2013 Events have moved quickly this week in the City of New York’s appeal of U.S. District Judge Shira A. Scheindlin’s decisions concluding that the New York Police Department has engaged in unconstitutional racial profiling in its “stop and frisk” practices. On Wednesday, several prominent lawyers and law professors—NYU Law School Professors Burt Neuborne, Norman Dorsen, and Arthur Miller; Yale Law School Professor Judith Resnik; and former New York City Corporation Counsel Frederick A.O. Schwartz, Jr.— filed a motion on behalf of Judge Scheindlin challenging last week’s decision by Second Circuit Judges José A. Cabranes, John M. Walker, Jr. and Barrington D. Parker, Jr., summarily concluding that she had violated the canons of judicial conduct and, on that basis, immediat...

-- Posted by Neil H. Buchanan One of the most disappointing outcomes at the polls on Tuesday was the defeat of a school financing bill in Colorado.  That is not the kind of thing that makes pulses race, of course, but it was a significant moment in American politics.  A well-funded effort (including money from the Gates Foundation, and others) put an initiative on the ballot that would have added $1 billion in annual funding for Colorado's public schools, focusing the additional funding on the poorest schools in the state, with funding coming from a tax increase that was explicitly progressive.  The measure was defeated by a 2-to-1 margin. In explaining the defeat, a former Democratic governor of the state argued, according to a news report , that the effort "ran aground against a public made newly cynical by the government shutdown and the botched start of the president’s health care effort."  If that is right, then it is a perfect example of how the radical Re...

By Mike Dorf The recent 50th Anniversary issue  of  The New York Review of Books contains three wonderful nuggets for lawyers, law professors and the simply law-curious: (1) A marvelous interview with Justice Stephen Breyer on his love of French author Marcel Proust, in which Breyer reveals himself to be not only un homme de lettres but a person of deep feeling rather than the technocrat one might assume he is from some of his work on the Court; (2) a clear-eyed essay by David Cole in which he discusses what an end to the "war on terror" would require and look like, during the course of which he analyzes President Obama's May speech at the National Defense University and the excellent new book, What Changed When Everything Changed: 9/11 and the Making of National Identity   by my soon-to-be-colleague Joseph Margulies; and (3) a posthumous essay  by Ronald Dworkin, taken from remarks that Dworkin delivered in Rome last year on the occasion of his well-deserved re...

By Anil Kalhan Last week—a day late for “ Mischief Night ,” but right in time for Halloween—a motions panel of the U.S. Court of Appeals for the Second Circuit, consisting of three long serving and distinguished Circuit Judges, José A. Cabranes , John M. Walker, Jr. , and Barrington D. Parker, Jr. , issued what must surely rank among the most bizarre stay orders that court has ever issued. The stay was (rather belatedly) sought by the City of New York in an appeal from an August decision by U.S. District Judge Shira A. Scheindlin —herself a long serving, distinguished, and highly respected judge in the Southern District of New York—holding that the New York Police Department’s “stop and frisk” practices involve impermissible racial profiling in violation of the Constitution. Only days before the City’s stay motion was filed in late September, the Second Circuit, in an order signed by Judge Richard Wesley, had denied the City’s previous (and also belated) motion for an expedited appeal...

By Mike Dorf Last week, Jess Bravin reported  in the Wall Street Journal  that Justice Kennedy recently announced that he does not officiate at weddings because the Justice has "a theory that federal judges can't take authority from state laws"--although, as Bravin also reported, Justice Kennedy is not sure whether the theory is valid. I must say that I admire Justice Kennedy (for many reasons but including) for adopting this rule. Having a rule  means that he can simply invoke the rule in turning down requests by former clerks and others who ask him to preside at their weddings. Without such a rule, if he performed any weddings, he would have to explain to some people why he was not presiding at their weddings.  But of course, the fact that a rule is useful as a means of avoiding tough line drawing or as a means of letting people down easily doesn't mean that the rule is constitutionally required.  I have a rule that I will not change a student's exam grade...