Dorf on Law

While surfing for material for yesterday's post, I came across a strange blog indeed: The official page of Iranian President Mahmoud Ahmadinejad . Although M-Jad (as his hip-hop friends no doubt call him) doesn't blog as frequently as I do, he does have a country to run into the ground and half the world to freak out. What he does post is fascinating: replies to queries from his admirers all over the world, but especially Americans opposed to the Iraq war and the Bush Administration policies.There's even a feature by which readers can post comments, although judging by the near-uanimous praise in the comments, my guess is that if you were to post a critical comment it would either never appear or be removed post-haste. But maybe not. For example, scattered among the glowing praise---e.g., "I support Iran nuclear program too. US is biggest danger for all Middle East;" "Keep it up Mr.President you are our hero;"---one finds a smattering of uncensored c...

Among the reasons that the Bush administration has given for not treating al Qaeda and other Taliban captives as prisoners of war is that as blatant violators of the laws of war themselves, these detainees forfeit the protections of the Geneva Conventions. In a 2002 FindLaw column , I explained why the claim was plausible, especially with respect to al Qaeda, but I should have noted then that even suspected al Qaeda members are entitled to the Geneva Conventions' protection until their status was determined by a competent tribunal, pursuant to Article 5 of the 1949 Convention . Since that time, my column has sometimes been cited in support of the administration's decision not to afford Gitmo detainees POW status, even though I made clear at the time that even if the administration's approach was legally justified, that didn't necessarily make it right as a matter of policy. The crisis over the captive British sailors and marines highlights the point. Iran's parad...

When Dolly the sheep's life was announced in 1997, few thought of her as the Brave New World of meat consumption (itself a small cause for hope I guess). But many interesting posts to the blog recently on eating meat and responding to climate change have had me thinking about just how complicated being an omnivore is in our culture--and how much more complicated it is about to become. Companies like ViaGen have been arguing for years that cloning livestock might eliminate major sources of uncertainty in animal production and thereby reduce the moral and environmental costs that mass animal agriculture represents. For example, hatching only the chickens that are able to thrive in the confinement houses Pilgrim's Pride, Tyson, and the others maintain may be a way to reduce cruelty (it may even be the most profitable way). From my own experience with the Clean Water Act in the Chesapeake Bay watershed, I can attest that making the use of phosphorous- and nitrogen-reducing chi...

That's the title of a brand new book by Dorf on Law blogger and Rutgers Law Professor Sherry Colb. Actually, as you can see from the cover (left), the full title is When Sex Counts: Making Babies and Making Law . You can buy it from Amazon , Barnes & Noble or directly from the publisher . Beginning with a riff on the Supreme Court's famously obtuse distinction between pregnant and non-pregnant persons in Geduldig v. Aiello , the book addresses a host of sex equality issues by observing the centrality of reproduction and pregnancy (or the capacity for pregnancy) to nearly all of them. I think this is a rare and successful effort to write across the spectrum of sex equality issues. But don't take my word for it. Here are the blurbs: "With deft writing, clear thinking, and deep knowledge, Sherry Colb illuminates the dark intersection of law and sex. She displays both journalistic verve and scholarly rigor. The result is a wonderful book that makes advanced think...

This past weekend, Justice Stephen Breyer was the guest on the "not my job" segment of Wait Wait, Don't Tell Me, the NPR weekly news quiz show (Click here for the show and then click on "not my job" to listen.) For those of you unfamiliar with the show, during this segment, accomplished people are asked ridiculous questions about subjects they don't know anything about. Breyer went 0 for 3 on questions about David Bowie, Iggy Pop and Ozzy Osbourne. Indeed, from his reactions to the questions, it appeared that Breyer had never heard of any of these people. To his credit, Breyer showed good humor, mostly by just showing up, but he's clearly not ready for prime time. During the shmoozey part of the show, for example, Breyer gave his standard stump speech about how the Court decides hard cases and that while they often disagree, he has never heard a voice raised in anger. "The job is mostly reading and writing," he explained for no apparent r...

Mike's post from earlier today raises an issue that I've been thinking about for some time. Do Al Gore's choices to live in a large house and to travel extensively contradict his claims that reducing global warming is a "moral issue" and undermine his credibility as a spokesman for environmental causes? The right-wing press certainly thinks so. While channel-surfing earlier this month, I noticed that some talking heads on Fox News were criticizing Gore and his receipt of an Academy Award (R), with the words "Hollywood Hypocrites" emblazoned across the bottom of the screen. Mike suggests a difference between "moral duties" and mere "policy matters" that is helpful for his exploration of the carbon offsets issue. To evaluate claims of hypocrisy, though, this difference is irrelevant. The question is whether one who advocates policies to mitigate environmental harms is a hypocrite if she continues to engage in activities that cause e...

In my FindLaw column yesterday , I argued that Al Gore undermines his ability to act as a spokesman for combating global warming by living in a very large house and jetting around the world --- even though he "carbon balances," i.e., pays green causes to plant trees, cover landfill and take other actions that compensate for his own generation of greenhouse gases. I compare these compensating measures to the purchase of papal indulgences and the payment of substitute soldiers by Civil War draftees. (I go on, however, to praise Gore's policy proposals.) Here I want to add another example. Suppose I think that it's wrong to eat animals and animal products (as in fact I do) but that I really like the taste of meat. Could I discharge my moral obligation (as I see it) to be a vegan by continuing to pack away the hamburgers and steaks but pay a carnivore to convert to veganism so that I "meat balance?" The very idea seems absurd. But I've been wondering...

No doubt we'll revisit Morse v. Frederick when the Supreme Court decides it, but for now I just want to note one small irony and a hilarious moment from the oral argument. CJ Roberts gave the respondent's lawyer a hard time for seeking damages against the principal. How was she supposed to know exactly what was and wasn't permitted by the First Amendment, given that the Justices and lawyers themselves were having a dickens of a time parsing the prior precedents? The lawyer gamely offered to accept only nominal damages. (He couldn't completely forgo damages because that would moot the case.) But Roberts wouldn't let go because of the larger point at stake and thus the impact on other cases. Thus the irony: It's certainly true that the Court's precedents governing student speech are less than crystal clear and that this probably justifies a finding of qualified immunity here. But the reason the Court's precedents are unclear is that since Tinker aff...

I've been telling reporters who ask about executive privilege that if Congress and the President ultimately strike a deal about the conditions under which Karl Rove, Harriet Miers and/or others testify about the Gonzales Eight Massacre, the terms of the deal will likely reflect the parties' relative bargaining power, which in turn will depend on how the issue is playing with the public. The latest Pew poll shows that most people aren't paying much attention to the story. To my mind, such inattention favors the administration. If people think that the scandal is much ado about nothing very much, they're unlikely to regard efforts by Congress to get to the bottom of the story as especially important. To be sure, public apathy could cut the other way: If people think the issue is no big deal, they might think the administration is overreacting by not just revealing everything there is to know about it. But I think that's unlikely. I would expect that the "pr...

Yesterday we learned that almost immediately upon taking office, Defense Secretary Robert Gates attempted to persuade President Bush to close Guantanamo Bay's Camp X Ray and hold trials of detainees within the United States. Gates, with support from Secretary of State Rice, argued that Gitmo is a PR disaster that is undermining U.S. foreign policy throughout the world. As the story has been reported, VP Cheney and AG Gonzales strongly objected, and have, for now at least, prevailed. This episode thus fits a familiar storyline that goes back to 2002-2003: the moderates in the Administration (then including Colin Powell), especially at State, make their arguments, only to be tuned out because of Bush's reliance on Cheney. Here I want to suggest a different reading: Bush is actually making these (disastrous) decisions. After all, it's not as though Bush has been doing Cheney's bidding on EVERY foreign policy question. The decision to strike a deal with North Korea is ...

Continuing the animal rights theme from yesterday, I bring you polar bear cub Knut, left. Knut's mother refused to care for him, so he is being hand-fed by zookeepers at the Berlin Zoo, despite the objection of self-described animal rights activist Frank Albrecht, who says Knut should be killed because "[h]and-rearing a polar bear is not appropriate and is a serious violation of animal rights." This is the sort of stupidity that gives animal rights -- indeed, people called Frank -- a bad name. How might it be a violation of Knut's rights to be hand-fed by humans instead of killed? Of course, there are some fates worse than death. Perhaps being in a zoo at all is such a fate. But if so, why does Albrecht object to hand-feeding rather than zoo-ing of Knut? Moreover, it's not clear to me that zoos are contrary to the interests of animals. Most modern zoos affiliate with and raise consciousness for organizations that aim to conserve the wild habitat of the kind...

Wednesday’s New York Times contained a letter to the editor responding to a recent article attacking modern methods of pork production. The letter, composed by the President of the National Pork Producers Council, asserts that “America’s 67,000 pork producers treat their animals humanely. They do so because it’s the moral and ethical thing to do, and it’s in their best economic interest.” Before even considering the merits of the claim, it is worth noting -- as I do in teaching my Evidence students about the impeachment of witnesses generally -- that the letter-writer has a bias that might render anything positive she says about the production of pork suspect. Beyond this general point, it is important to respond to the claim that those who traffic in animal flesh have an economic incentive to treat their animals humanely. For many well-meaning people who consume meat and other animal products, this argument has some appeal: why would one want to treat animals cruelly? Wo...

I've been reading the oral argument transcripts in Morse v. Frederick. Interesting reading. With the luxury of a Wednesday-morning quarterback, I'm not blown away by Kenneth Starr's argument (not that I could do better!); he seems to suggest that while Tinker's rule protecting student political speech should be maintained, there should be some kind of per se carve-out for drug-related speech, presumably for the reasons so eloquently offered by Mr. Mackey . I don't think those two principles sit together well. But let me move past that and focus on a related but different aspect of the argument. In effect, Starr and Edwin Kneedler, the Deputy SG, argue that public schools should be able, "under our policies of federalism . . . and democratic theory[,] to fashion [their] educational mission[s] subject constitutional safeguards." Pursuant to this principle, "a school does not have to tolerate a message that is inconsistent with its basic education...

One would think that an Administration that has tried at every turn to substitute unreviewable military tribunals for regularly constituted courts in its foreign policy would be skittish about using the term "show trials," especially in a week in which the confession of Walid Muhammad bin Attash to the bombing of the USS Cole was subject to uncertainty due to lingering concerns that it was the product of abusive treatment during his time in CIA custody. Yet there was the President yesterday warning Congressional Democrats not "to head down the partisan road of issuing subpoenas and demanding show trials" in their investigation into the facts of the Gonzales Eight Massacre. And that was in the prepared portion of his remarks. The President offered what he called a "reasonable way to avoid an impasse." Attorney General Gonzales would testify before Congress, while White House staff, presumably including Karl Rove, would meet with members of Congress in p...

As Marty Lederman notes in a comment to my earlier post today, Congress has the power to punish contempts directly, although it hasn't exercised that power in decades. In the 1935 case of Jurney v. McCracken , the Court upheld the Congressional contempt power even when it was exercised after the fact, which is the usual distinction between criminal contempt and civil contempt. So Marty may be technically right that the power is civil in nature, but in substance it's not different from criminal contempt. That in turn suggests that my invocation of the Bill of Attainder Clause is at best technically accurate: Because the contempt is nominally civil, there's no problem under the Bill of Attainder Clause, but the spirit of the Clause is certainly violated by imprisonment after the fact for "civil" contempt of Congress. Could that explain why the practice has fallen into disuse? Or is it possible that notwithstanding the old tradition of Congressional power to p...

You can listen to my segment on NPR's All Things Considered here . The most interesting thing I say in this segment involves the penalty for refusal to testify before Congress. I was asked what happens if the Senate subpoenas Karl Rove and Rove refuses to testify, invoking executive privilege. I said that one possibility would be for Congress to hold Rove in contempt. By statute , contempt of Congress can result in up to a year in prison, but Congress does not itself bring the prosecution. Instead, it refers the matter to the . . . wait for it . . . Justice Department. Ouch! Could Congress argue that just as executive privilege exists (to the extent that it does) to protect the President's independence from Congress, so Congress should be able to prosecute contempts directly, in order to protect it from over-dependence on the executive branch? If Congress itself acted as the trier of fact, that would likely violate the Bill of Attainder Clause because, except for impeac...

Adam Liptak has a piece in today's New York Times that refers to my reaction to the DC Circuit opinion in Parker . Liptak doesn't expressly mention the blog but he does quote my conversation with him -- on the declining citation of law review articles by courts. Here are the relevant three paragraphs: Michael C. Dorf, a law professor at Columbia, had a similar reaction to being cited dismissively in this month’s decision striking down parts of the District of Columbia’s gun control law. On the one hand, Professor Dorf said, “there’s no such thing as bad publicity.” On the other, he said it was vexing to see his article caricatured rather than engaged. The District of Columbia Circuit had, he said, at least tried to engage the legal scholarship on a difficult and important question. He had less sympathy for judges who have given up on the academy. “The claim by judges that they have no use for law review articles seems to me an anti-intellectual know-nothingism that is underst...

Much of the debate about the Gonzales Eight Massacre has been muddied, sometimes through deliberate obfuscation, because the word "political" has several different meanings. When we say that U.S. Attorneys are "political" appointees, we mean that they get their jobs through political connections and that once in office they can be required, even by threat of firing if necessary, to adopt the policy priorities of the administration in Washington. A U.S. Attorney who resisted the White House decision to seek the death penalty with greater (or lesser) frequency, or to devote prosecutorial resources to drug cases rather than insider trading cases, could be legitimately sacked for reasons of politics in the sense of policy. A U.S. Attorney cannot legitimately be fired for failure to prioritize corruption cases of Democrats over Republicans (or vice-versa). The distinctions can blur where a seemingly legitimate policy objective is used as a pretext for partisan aims. ...

The crisis in Pakistan over General Pervez Musharraf’s “suspension” of the Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry, has only deepened since Mike first posted about it earlier this week, but it continues to garner surprisingly little news coverage in the United States. Musharraf has still offered no details of the allegations against Chaudhry, but his suspension came one day after the now “non-functional” Chief Justice gave notice that he intended to investigate allegations of disappearances at the hands of Pakistani security forces, which have increased dramatically since 2001. (On the surge in disappearances, the Guardian has chilling details .) The move to dismiss Chaudhry is hardly the first time in the postcolonial history of the subcontinent that judicial independence has been threatened. In each of Pakistan’s four periods of military rule, the coup leaders have moved with some success to legitimize their usurpation in the courts, which have elaborated what Tayya...

The Montreal Gazette has an interesting interview with John Yoo, which has already drawn some incisive responses from Marty Lederman and Jonathan Adler . As Marty notes, among other things Yoo seems to confirm that the CIA does indeed use waterboarding. And as Jonathan notes, Yoo's overall defense of torture seems to depend in part on a highly contestable (but apparently entirely unexamined, by Yoo) assumption that death is always worse than torture. Both Marty's and Jonathan's posts are good reading. I want to stress a separate point reflected in these two paragraphs: Yoo's memo was leaked to the press in the summer of 2004, in the aftermath of the publication of pictures of U.S. soldiers torturing Iraqi detainees inside Abu Ghraib prison. Overnight, he became a celebrity - but for all the wrong reasons. He was held personally responsible for Abu Ghraib's horrors: The disgusting behaviour of U.S. service personnel was seen as the bottom of the slippery slope d...

A controversy emerged earlier this week regarding the use of the F-word in an academic paper. Actually, the controversy about the paper itself played out some time back; but the new controversy was over whether a provocatively-titled paper, " Fuck ," by Ohio State law professor Christopher Fairman, 28 Cardozo Law Review 1171 (2007), should be disqualified when counting the number of downloads for which a law school should be credited. Say what? The Social Science Research Network ( SSRN ) is a central repository into which scholars in many fields place their written work, where other scholars can then easily search for working papers on particular subjects and download papers that are interesting and/or potentially useful in one's own scholarly work. This provides a nearly ideal internet-era medium through which scholars can interact with each other at the draft stage of their writing, soliciting feedback from both supportive and skeptical critics and basically enhanci...

Yesterday I presented a couple of papers at the Georgetown Constitutional Theory colloquium (or whatever they call it exactly). One of the papers I distributed as background included substantial discussion of the Raich case in the Supreme Court. As it happened, one of my hosts was Randy Barnett, who argued the case in the Supreme Court and in the Ninth Circuit, and so naturally our discussion turned at some point to Wednesday’s Ninth Circuit ruling, about which I posted yesterday. We were puzzling over why Judge Pregerson insisted on reading Glucksberg ’s requirement that courts begin substantive due process cases with a “careful” description of the right as meaning that the right should be described “narrowly.” My first cut was straightforward: That’s more or less what Rehnquist meant by “careful” as he used the term in Glucksberg. I worked with the plaintiffs in that case and we took great pains to make clear that we were not asking the Court to recognize a right to sui...

Yesterday the 9th Circuit, in an opinion by Judge Harry Pregerson , affirmed the denial of a preliminary injunction against the enforcement of the Federal Controlled Substances Act to Angel Raich. Raich had previously lost a Supreme Court case in which she had argued that Congress lacked the power under the Commerce Clause to regulate purely intrastate cultivation and use of marijuana for medical purposes. Yesterday's ruling rejected, among other things, a necessity defense and a substantive due process claim.Actually, that's not quite right. The court actually acknowledged the validity at law of Raich's necessity defense but said that it didn't entitle her to a preliminary injunction as opposed to a jury instruction should she be criminally charged. According to the court, Raich might make a miraculous recovery or a medical breakthrough might provide an alternative to marijuana as a means of treating her chronic pain and wasting disorder -- even though the court a...

Here's the most preposterous reaction I've yet seen to General Pace's comments in support of keeping gays, lesbians and bisexuals out of the military. Rudy Giuliani told the NY Observer : "We're at war and now isn't the time to question our military's admissions policy." That might make some sense if there were a proposal to restrict eligibility for military service. Even if the restriction were otherwise reasonable, you could see someone thinking that during active warfare you don't want to deprive the military of fighting men and women. But given the extended and repeated tours, wouldn't this be exactly the time to question a policy that restricts service? I'm not naive enough to think that Giuliani actually meant what he said. Obviously he was trying to say something that would appeal to religious conservative primary voters but would not be utterly inconsistent with his record as a gay-friendly mayor. My guess is that he failed on...

Just in case you thought I have something against AG Gonzales, you can read my latest FindLaw column , which addresses the Inspector General's report on National Security Letters. I give Gonzales credit for acknowledging the problem.

Mea culpa. In my previous two posts, I mistakenly credited Thomas Healy with the winning entry in the "Name the Scandal" contest. It was actually Heathu. Now if only I knew who Heathu was, I could send him or her the prize. So, Heathu, please click here to provide personal details that I can use to send you your prize. ;-)

Has anybody else noticed the parallel between Pakistani strongman Pervez Musharraf's attempted suspension of Supreme Court Chief Justice Iftikhar Mohammad Chaudhry and the Gonzales Eight Massacre (as named by Dorf on Law blogger and Seton Hall law professor Thomas Healy)? For those who haven't been paying close attention, last week Musharraf "suspended" Chaudhry on vague charges that most observers believe to be trumped up pretexts to eliminate a jurist who has shown himself willing to follow the law. Chaudhry was taking seriously charges of government human rights violations and had the audacity to suggest that eventually there should be an election to choose Musharraf's successor. To be sure, a threat to judicial independence is a greater threat to the rule of law than is a threat to prosecutorial independence. As noted on this blog and elsewhere, there is at least a plausible argument that prosecutors ought not to be independent of the President. It's n...

The Gonzales Eight Massacre , by Thomas Healy (with an assist from me inserting "eight" to match the rhythm of "Saturday Night Massacre") First Runner Up: Eight Prosecutors Ousted by Eric Garber (again with an assist from me changing "men" to "prosecutors" because two of the fired prosecutors are women) Honorable Mention: GOP for "Gonzales' Ousted Prosecutors" by Trevor Morrison (clever and catchy but ineligible because the mainstream media would never actually call a scandal by an acronym that implicates an entire political party). Consolation Prize for Most Dogged Effort goes to Octopus Grigori for the following entries: Pink Slip Pickle [or Prosecutor Pink Slip Pickle] The Wrath of Miers [or The Wrath of Harriet] The War on Justice D.O.J.-gate Thanks to everyone for playing. Be sure to refer to "The Gonzales Eight Massacre" constantly until it catches on.

A few months ago I suggested that there needs to be a scarier term for global warming, something along the lines of "death tax." Now it's time for a new contest: Name the developing scandal involving the firing of the eight U.S. attorneys. Last week I referred to them as the "Justice Department Eight," and the same day Paul Krugman called them "the Gonzales Eight," which is probably more effective as agit-prop. But still, neither term refers to the scandal itself. It would be a shame if this scandal went unnamed, the fate of the great scandal of the Clinton years. (I favored "The Lewinsky Affair" for its double meaning but it never caught on.) Before I get to the contest, here's one thought on the merits. I noted in my Friday post on this subject that in principle the President, acting through the Attorney General, can fire a U.S. Attorney without providing a reason. In his piece yesterday on FindLaw , Carl Tobias makes a simila...

Featured on the most recent broadcast (and podcast) of the WNYC show On the Media is a terrific website called OpenCongress.org which is a very user-friendly site for tracking Congress. You can find out how any Senator or Congress member voted on any bill, and you can readily search pending legislation. You can even get RSS feeds updating you about action on particular bills. OpenCongress pulls much of the underlying material from Congress's own website, Thomas , which is a terrific resource but not quite as easy to use and a bit more staid. For example, it's easy to use either site to find pending bills and what bills an individual Senator or Representative has sponsored, but OpenCongress also gives juicy tidbits such as trends in the overall voting record of individual members of Congress. It also has a comment feature which should become valuable as the site grows. That said, the OpenCongress guest on On the Media was a little unfair in suggesting that Thomas is an in...

Unlike Mike , I have not thought seriously about whether the Second Amendment protects an individual or collective right, so I won’t enter that debate. But I do want to raise an issue that could be equally important if the Supreme Court agrees to review the D.C. Circuit’s decision in Parker : Even if the Second Amendment protects an individual right to bear arms, does that right apply against the states or only against the federal government? In two late 19th Century decisions, the Supreme Court held that the Second Amendment only restricts the federal government. These decisions were consistent with the Court’s broader position – announced in Barron v. Baltimore – that the Bill of Rights did not apply to the states, and they were reaffirmed by two early 20th Century decisions. Of course, the Court soon afterward began the process of incorporation that resulted in the application of nearly all the Bill of Rights against the states. But it has still not incorporated the Second Ame...