Dorf on Law

by Sherry F. Colb In my Verdict column this week , I discuss the case of City of Los Angeles v. Patel , on which the U.S. Supreme Court recently granted certiorari.  The case raises several questions about a Los Angeles law that authorizes police to demand access to hotel guest records without any basis in individualized suspicion, a warrant, or any sort of neutral pre-search review of the decision to target a particular hotel.  The people bringing the case are hotel operators who argue that the statute violates their privacy interests in their guest records.   In my column, I discuss one of the questions that is not raised in this case, namely, whether the guests who stay at hotels subject to the Los Angeles law could complain about their  Fourth Amendment rights being violated by the law.  The reason the question does not arise in this case is that, under existing Supreme Court precedents, the answer to this question is plainly "no." It may surpris...

-- Posted by Neil H. Buchanan This past weekend, I attended a conference, " Legal Scholarship We Like and Why It Matters ," which was held at the University of Miami School of Law.  The conference celebrated the fifth anniversary of Jotwell - The Journal of Things We Like (Lots) , to which I contribute one article each year.  (My Dorf on Law post discussing my most recent piece is here .  The first paragraph includes links to previous years' writings.) The initial Call for Papers for the Jotwell conference provided three broad categories for paper topics, with two questions under each category.  I chose "III. Improving the World: Legal Scholarship and Its Influence," and Question 5: "What makes legal scholarship influential? Note that influence is not necessarily the same as 'greatness'. Also, influence has many possible meanings, encompassing influence within or outside the academy."  My task, then, was to write a paper that describes ho...

By Michael Dorf One already-standard account of the midterm election results points to the role of largely unlimited anonymous cash in elections following the Supreme Court's invalidation of various provisions of federal campaign finance law over the last several years. An election night segment  on  The Daily Show in which "money" celebrated its huge victory over "ideas" nicely captures the trope I think the Court's campaign finance cases are too restrictive in at least two ways: They employ a too-narrow conception of "corruption"; and they unrealistically assume a great difference between the impact of direct campaign contributions and "independent" expenditures. That said, I want to register some skepticism about both the scope of specifically campaign money's influence and the ability of campaign finance regulation to address the broader corrupting influence of money on politics without infringing even a more modest view of f...

by Michael Dorf Today's ruling by the U.S. Court of Appeals for the Sixth Circuit rejecting a constitutional right to same-sex marriage makes it nearly certain that the SCOTUS will finally have to grant cert in a SSM case. The Sixth Circuit has a majority of Republican appointees, and while that's no guarantee that an en banc petition would be futile, I would expect the plaintiffs to seek certiorari rather than first seeking en banc review. (I don't know whether the 6th Circuit ever goes en banc sua sponte but I'll assume that's very unlikely.) Having been burned before, I won't predict with a hundred percent confidence that the SCOTUS (eventually) takes the case, but that's certainly the way to bet. Here now three quick reactions to the Sixth Circuit opinion: 1) My main reaction is to note that the tone of Judge Sutton's majority opinion is almost elegiac, more in sorrow than in anger. But there's a mixed signal in there. He's not sad bec...

-- Posted by Neil H. Buchanan In my Dorf on Law post earlier this week, published on the morning of the mid-term elections, I wrote: "A truly inane conventional wisdom will surely have congealed among the commentariat by about 10pm this evening.  If that conventional wisdom turns out to be inane in an interesting way, I might comment on it in a future post."  Well, there has been a lot of congealing, but nothing very interesting. The only notably weird assertion that I saw was a New York Times story in which the reporter claimed that the Republicans won by "handl[ing] the extremists" in the party.  Weird within weird, one of the examples of the party establishment's supposed successes was getting Cory Gardner, "one of the party’s strongest candidates this election," into the Colorado senate race.  Apparently, handling "extremists" does not mean abandoning people with a record of extreme views, or even abandoning people who continue...

by Michael Dorf My new Verdict column discusses some parallels between the Bush Administration's post-9/11 detention policies and the reaction of various governors to the perceived Ebola threat. The core claim is that in both contexts, government officials relied on very old precedents without paying adequate attention to how modern civil liberties law appears to have overtaken those precedents. I conclude by noting that even though this meant that the Bush Administration suffered some setbacks in the SCOTUS, in the end the government was given broad deference. Tentatively drawing a parallel with Ebola, I suggest that grossly restrictive Ebola policies will be struck down but that merely unwisely over-restrictive policies will remain in place unless public opinion turns against them. That concluding note leads me to wonder whether Ebola fears had much of an impact on the midterm elections. There certainly were multiple efforts by Republicans to capitalize on such fears ( e.g.,...

-- Posted by Neil H. Buchanan Today is voting day for the mid-term elections, about which I currently have nothing to say.  A truly inane conventional wisdom will surely have congealed among the commentariat by about 10pm this evening.  If that conventional wisdom turns out to be inane in an interesting way, I might comment on it in a future post. For now, however, I will note that today is the closest thing we have to an official start to the next presidential election campaign.  Like Christmas shopping season, which is supposed to begin officially the day after Thanksgiving, but which seems to start earlier every year, the 2016 presidential campaign has been going on in one form or another since election night two years ago.  Even so, after today's voting, whatever remaining restraint that has been exercised by the pundit class will be a distant memory. So here is my first shot at this not at all pressing matter.  We do not know whether Hillary Clinton w...

by Michael Dorf Last week I asked whether state courts can gratuitously give to federal appeals court precedents more binding force than they have of their own accord--which is to say ANY binding force. My answer was no. The binding effect--or as it turns out here, lack of binding effect--of a federal appeals court precedent on a state court is itself a question of federal law, and states are not generally free as a matter of state law to "over-enforce" federal law. My post on this subject generated a very interesting discussion, in the comments, in private correspondence, and on other sites. The most potent challenge to my position comes from Steve Vladeck, both in his appearance on Oral Argument the week after mine and in a blog post . Christian Turner favorably cited Vladeck's argument on his blog (in the course of making some broader points). Professors Vladeck and Turner, as well as others, rely on Danforth v. Minnesota for the proposition that states can in fa...

-- Posted by Neil H. Buchanan My new Verdict column revisits a classic question in egalitarian liberalism: Should policy be aimed only at helping people at or near the bottom of the income spectrum, or is it also important to reduce high incomes and wealth?  Put differently, is the problem poverty and economic vulnerability, or is it "income disparity" more broadly?  My column comments in particular on a recent NYT op-ed by USC Law Professor Edward Kleinbard, who offered the most plausible progressive/liberal case that I have yet seen to the effect that the best policy agenda is simply to ignore the rich, focusing instead on making sure that we create a government that is large enough to do what needs to be done to help the poor and middle class, funded by some combination of taxes on everyone.  Although I am not ultimately convinced, the op-ed is definitely worth reading and thinking about. In private correspondence, Professor Kleinbard mentioned to me that he di...

by Michael Dorf Absent breaking news that takes me in a different direction, I expect that next week I'll have another Ebola quarantine column on Verdict that attempts to put some of the legal controversy in a broader context, but here I want to note my frustration over the failure of even the relatively responsible media coverage of the issue to address what seems to be an important question in evaluating the rationality of the state quarantine measures that are stricter than the recommendations of the CDC. The question is this: Is there a non-negligible risk of spreading the virus from an Ebola-infected person who is just on the cusp of developing symptoms? The issue is relevant to the wisdom of the quarantine policies and presumably would also be relevant to potentially imminent litigatio n between nurse Kaci Hickox and the state of Maine. According to a literature review on the CDC website , the Ebola virus level in the blood of a person with an ultimately fatal infection p...