Dorf on Law

by Neil H. Buchanan I grew up during the so-called Second-Wave of Feminism in the 1960's and 1970's.  By the time I went to college in 1977, calling myself a feminist was as natural as calling myself a biped.  It was simply an obvious fact.  (I do know, of course, that there is resistance in some quarters to the idea that a man can be a feminist.  I disagree, but I understand the argument.)  My undergraduate years at Vassar were unique, because they spanned the period in which the college went from being merely nominally coeducational (having formally admitted men beginning in 1969, but enrolling only about one male student for every nine female students through 1975) to approaching a 55-45 female-to-male ratio by the Eighties. The entering class before mine was the first to reflect the new reality.  This meant that, when I was a Freshman (yes, we did use that term), the Junior and Senior classes were 90% female, while only a bit more than half of the ...

By Michael Dorf My latest Verdict column discusses Monday's Supreme Court ruling in Kerry v. Din . I am highly critical of the bottom line: The U.S. government denied an entry visa to the spouse of a U.S. citizen without providing any factual explanation, simply pointing to a broad statute, but five Justices found no procedural due process violation. As I explain in the column, the plurality opinion of Justice Scalia is cruelly formalistic. He says that procedural due process protections aren't triggered at all because the government isn't denying the respondent and her husband the right to marry; it's only denying them the ability to live together in the country of her citizenship. It would be too easy to quote Anatole France here, so I won't. Meanwhile, in the course of the column, I note but don't comment on the potential implications of the plurality opinion for same-sex marriage. Here I'll just note the obvious: the plurality can be u...

By Eric Segall The 27th floor view of the sun glistening off Lake Michigan is simply stunning. In front of shelves lined with over forty of his own books, Judge Richard Posner shakes my hand warmly. I am in Chicago for the week to visit with the most influential legal scholar of the last fast fifty years who also happens to sit on the United States Court of Appeals for the Seventh Circuit. Over the next five days, we will have numerous private conversations, I will see him interact with his three law clerks, watch him ask questions from the bench in a high profile religious freedom case, and listen in as he participates in a video conference with a number of state and federal judges. Much has been said and will be said about the most important judge in America not on the Supreme Court, but the most accurate is this: he keeps it real. I came to know Judge Posner five years ago when I sent him a draft essay. Never having met him, I introduced myself in the email and hoped...

by Michael Dorf In Fallback Law, a 2007 article in the Columbia Law Review , I explored (among other things) the limits, if any, on coercive fallback laws. A fallback law is a provision of a law that states that, in the event some provision of a law is held invalid, a substitute provision (i.e., a fallback) will take its place. Congress and state legislatures sometimes include such substitutive fallbacks and, even when they don't, they usually implicitly or explicitly provide for a de facto fallback in the form of the original law minus the invalid part--i.e., they provide for severability. The point of both substitutive fallback provisions and severability is to ensure that the inclusion in a statute of one constitutionally questionable piece does not doom the whole law in the event that the courts strike down the questionable piece. Substitutive fallbacks and severability clauses aim to preserve as much of the legislative output as possible. By contrast, a  coercive ...

by Michael Dorf The comment spam is getting out of hand. Finding no magic words to make it go away, I'm adopting a new policy of moderating comments posted two days or longer after a post first goes up. You'll still be able to comment on new posts without moderation and for later comments I'll do my best to sort genuine comments from advertisements for gold, handbags, witch doctors, and so forth, but I may not always succeed. Thus, if you (and by you, I mean a reader interested in commenting on the post or responding to another comment on the post, rather than a spammer) find that a comment you attempted to post isn't going up, please email me offlist and I'll do my best to rectify it.

by Neil H. Buchanan For no particular reason, I started binge-watching the original CSI: Crime Scene Investigation earlier this year.  The king of all crime procedural shows, CSI has been on the air since October 6, 2000, and the binge now requires watching 336 episodes (with a series-ending two-hour movie set to air in September).  At this point, I am in the middle of the ninth season, now watching shows that first aired in early 2009. A show as influential as CSI (three spinoffs, countless copycats) has already been analyzed many times, from academic and public policy perspectives.  For example, there is a Wikipedia page devoted to a so-called " CSI Effect ," defined as follows: "The CSI effect, also known as the CSI syndrome and the CSI infection, is any of several ways in which the exaggerated portrayal of forensic science on crime television shows such as CSI: Crime Scene Investigation influences public perception" (footnotes and links omitted).  To watc...

by Michael Dorf With the list of announced and unannounced-but-likely candidates for the Republican and Democratic presidential nomination at around 20, it is now the season to mock the seemingly delusional aspirants--as in this hilarious bit by Jon Stewart going after Lincoln Chafee's metric platform and Rick Perry's non-oops-and-now-smart-with-glasses platform. Why are there so many candidates who have no realistic chance of capturing their respective nominations? Presumably because running for president is a way of getting things besides the nomination. Here I'm going to list all of the things I can think of. Readers are invited to add anything I missed in the comments. (1) You never know . Even if there's a clear front-runner, it's always possible that the front-runner will stumble in some way. This approach seems sounder on the Democratic side than on the Republican side, simply because there are so many fewer Democratic candidates. If a video emerges of ...

Posted by Sherry F. Colb In my column for this week , I discuss the U.S. Supreme Court case of Heien v. North Carolina .  In Heien , a police officer stopped the petitioner for driving with only one working brake light. As it turned out, however, according to a later state court of appeals decision, North Carolina law allows people to drive with one working brake light.  The state supreme court nonetheless ruled that the police officer complied with the Fourth Amendment when he stopped the driver, Nicholas Brady Heien, because the ambiguous language of the statute at issue could have led a reasonable person to conclude that two working brake lights were required.  The question faced by the U.S. High Court was whether such a reasonable mistake about the law (which led to a stop for a non-offense, after which the officer, conducting a consent search, found cocaine, for which Heien was charged with attempted trafficking) meant that the officer who conducted the stop did or...

by Neil H. Buchanan Law professors are often derided by other academics as "not real scholars."  The complaint, in the end, boils down to little more than credentialism, because it is still possible to be a tenured or tenure-track professor in law without a Ph.D. or equivalent, whereas that is generally no longer possible in any of the traditional academic fields.  Although I left Rutgers-Newark's law school before I would have been up for tenure, the stories there about the university-wide tenure committee's condescension and hostility toward law professors would make one's hair curl.  From everything that I have seen and heard, such negative attitudes are common among non-law academics across the academic landscape. The classic model of becoming a legal academic did not involve post-law school graduate study.  The successful future top-tier law professor would graduate from a top-five law school (or, if we are being honest about it, almost always Yale or Har...

By Michael Dorf Today's SCOTUS decision in Zivotofsky v Kerry should become a classic case in the sense that it should be (and I expect that it eventually will be) a consensus "principal case" in constitutional law casebooks for years to come. The various opinions are all interesting and fairly well-reasoned. Here, after a brief setup I'll offer a counter-intuitive hypothesis: Although the case invalidates an Act of Congress as interfering with an exclusive presidential power, it may be remembered over the long term as a limit on exclusive presidential power (i.e., vindicating congressional power over foreign affairs). The case arises out of a conflict between the Executive and Congress. As Justice Kennedy recounts for the majority, since President Truman on behalf of the U.S. recognized the State of Israel, U.S. policy has not recognized any country or other entity as having sovereignty over Jerusalem, concerned that doing so would undermine the prospect (however...