Showing posts from 2007

Damned if you do . . . .

In response to my post about how a social worker whose job is to discern the wishes of people who die alone probably killed the creatures the deceased cared about most (her dogs), I received an email pointing me to another horror story, this one perpetrated by the Department of Children's and Family Services (or whatever DCFS stands for) in Chicago against the parents of a baby with unexplained broken ribs. It makes riveting reading on the Lag Liv blog , authored by a University of Chicago law student and mother. (Go to the October Archives and start reading at Oct. 5. The saga continues for months.) To make a long story short, this is pretty clearly a case of bureaucrats run amok. A doctor and various social workers conclude that the baby's injuries are the result of abuse at his parents' hands---based only on the injuries---and then stick to that conclusion even as the evidence mounts that the injuries arose during delivery. But read it for yourself for the full ho

George Bush's War

In my role as amateur film critic, here are a few thoughts inspired by Charlie Wilson's War . "Based on" a true story, the film depicts one Congressman's successful effort to gain covert funding for supplying sophisticated weaponry to the mujahideen forces in Afghanistan fighting the Soviet occupation. In retrospect, of course, U.S. backing of the mujahideen has been cited as an example of the law of unintended consequences: The very people we armed and trained to fight the Russians in the 1980s became the Taliban and al Qaeda in the 1990s, turning their attention (at least in the case of the latter) to the U.S. Charlie Wilson's War lets Congressman Wilson himself off the hook for this particular bit of blowback by showing Wilson, after the defeat of the Soviets, vigorously but vainly campaigning for aid to rebuild Afghanistan's civilian infrastructure. Instead, we ignored Afghanistan as it descended into civil war and worse. The lesson, it seems, is that

Murder in Rawalpindi

From Rawalpindi comes shocking news that Benazir Bhutto has been assassinated. Many details remain uncertain, but the horrific basics are clear enough: Benazir Bhutto was killed at a PPP rally in Rawalpindi [along with at least 30 others]. . . . The election rally, with “foolproof security”, was held at Liaqut Bagh - a site which had already seen the assassination of another Prime Minister of Pakistan, Liaqut Ali Khan. There were earlier reports of security threats on her rally - similar reports were issued before the suicide attack on her in October. [ link ] Sadly, the South Asian subcontinent has been down this road before. More than once , in fact -- but one moment stands out as eerily reminiscent: [An] heir to a miraculous name, disappeared in a fiendish conjurer's trick: amid the theatrics of an electioneering stop, and in the puff of smoke from a bomb... Apart from the egregious act of violence that killed [the former Prime Minister], the bloody shirt of extremism and commun

Substituted Judgment

This past week, my favorite radio show, This American Life , focused on the theme of "home alone," with stories about people living alone (episode here ). The first of three segments considered people who lived alone and then died alone, with most of the segment taken up with the saga of an elderly woman named Mary Ann. Lying on death's door in the hospital, Mary Ann calls the one human being she barely knows---the woman who delivers her prescriptions from the pharmacy---to plead that she feed her two dogs, whom Mary Ann has left tied up in her home. Mary Ann tells the woman that she will reimburse her for the costs, saying the dogs are all she has. Days later, Mary Ann dies. Emily, the social worker whose job it is to piece together Mary Ann's life sufficiently to arrange a burial and the disposal of her estate, arrives at the house and the very first thing Emily does is to call animal control to take away the dogs, presumably to a municipal shelter where they a

Bada Bing

Who says tax law isn't sexy? TaxProf Blogger (and U Cincinnati Law School Associate Dean) Paul Caron has posted an item picked up from the AP about a new Texas tax of $5/customer on the patrons of strip clubs, dubbed by wags the "pole tax." The AP story, quoted in turn by Caron, states: Jonathan Turley, a constitutional law expert at George Washington University, said the Texas tax goes too far. "It seems clear legislators are targeting strip clubs because they're unpopular," Turley said. "Laws like this would expose any unpopular industry to punitive taxes. It could be abortion clinics." Let's give Professor Turley the benefit of the doubt here and assume that he was quoted out of context. There is, after all, nothing per se unconstitutional about legislators targeting for taxation those activities that are unpopular. So-called "vice" taxes on tobacco products, alcohol and other products or services the state wishes to discou

Happy Holidays!

And so with that once-innocuous expression, I throw my support in the War on Christmas to the side of the unholy warriors. Okay, I'll be among the first to admit that the whole concept of a War on Christmas is absurd. The notion that religious Christians in 2007 America are an oppressed group is mostly a clever political strategy for a powerful group to claim the mantle of victimization. That said, in a country of 300 million people and almost as many bloggers, one can always find someone to say something legitimately hurtful. Thus, when I googled "war on Christmas 2007," the first entry to pop up was this blog entry from something called the Atheist Revolution blog . Tooling around a bit on the blog, I concluded that its author is a reasonable person who does not mean to deliberately insult religious people. Nonetheless, the "war on Christmas" entry does contain the following addressed to a local school board member who defended the posting of "Merry

The New Politics of Delay

In what probably should be chalked into the ‘not too surprising’ column, the Bush administration last night rejected California’s request for permission to regulate cars as sources of greenhouse gas (GHG) emissions under Clean Air Act Section 209. Under 209, states are preempted from regulating cars as sources of pollution with one exception. CA can do so if it gets a waiver from EPA (CA petitioned for the waiver in December 2005). The process is laid out in Section 209(b) of the Clean Air Act. The conventional wisdom was that EPA had little room to deny the waiver in this case. Under the Act, it was free to do so if (A) anything in the CA petition was “arbitrary and capricious” (the California Air Resources Board actually put together pretty solid arguments); (B) CA did not need State standards to meet “compelling and extraordinary conditions” (more on this below); or (C) the CA standards and accompanying enforcement procedures were not “consistent” with the federal regulation of

People Are Getting Smarter and Dumber, Says New Yorker Magazine

In last week's New Yorker magazine, Malcolm Gladwell reviewed James Flynn's new book, What Is Intelligence , in which Flynn provides strong evidence that average I.Q. is increasing over time worldwide. (Review here , while the link lasts.) Both Flynn and Gladwell use Flynn's data to debunk claims about inherent racial differences in IQ and, more broadly, to question what exactly it is that IQ tests measure. What IQ tests measure, they both say, is the capacity for abstract as opposed to concrete reasoning, a capacity that is progressively developed and rewarded as societies move from pre-industrial to industrial to post-industrial. Thus differences between populations within societies can be accounted for by socio-economic conditions without any need to posit inherent and inheritable differences. Meanwhile, in this week's New Yorker, Caleb Crain writes an essay about the global decline of reading, attributable largely to the increase of tv viewing. (The data show

Immunity for Phone Companies?

Suppose an FBI agent approached a generally law-abiding citizen that I'll call "Shmerizon," and the following conversation ensued. FBI Agent : I'd like you to whack Shmarlos the Shmackal. He's a terrorist. Shmerizon : By whack, you mean . . . . FBI Agent : You know what I mean. Shmerizon : Uhm, isn't that illegal? FBI Agent : I'm with the government. If I tell you to do this in the interest of national security, it's not illegal. Understand? Shmerizon proceeds to kill Shmarlos, even though another citizen, Shmest, when presented with the same demand, refused to act without a court order. Now suppose that instead of prosecuting Shmerizon for murder, and without denying that what Shmerizon did was clearly illegal at the time notwithstanding the FBI Agent's statements, the government decides that Shermizon should be given retroactive immunity for the murder because he shouldn't be punished for helping out his government in time of need. Even

California Can Regulate Carbon Emissions, Maybe

Intrigued? Check out my FindLaw column on the topic here . Feeling cheated by the absence of a full blog post from me today? Sorry about that. At least the column is a bit longer than usual. And you can read Jamie's post , just below. I've got exams to grade. Posted by Mike Dorf

What Effect Does Precedent Have on Agency Statutory Interpretation?

Or better yet, what effect ought precedent have? The recent ruling in the Eastern District of CA has many in the environmental community cautiously optimistic about improving fuel efficiency in the US. The ruling was a denial of summary judgment sought by the Ass'n of Int'l Auto Mfrs—an industry group that, according to its website, promotes competition, advances technology and invests in America (and who could be against all that?). What AIAM argued was that CA, in seeking to adopt auto emissions standards aimed at reducing greenhouse gas emissions, was preempted from doing so on several grounds. Each was rejected and, indeed, CA and its intervenor friends were granted their own summary judgment to the effect that, in the event EPA approves the "waiver of preemption" which CA has sought under the Clean Air Act, CA will be empowered to impose emissions standards on new vehicles. This may be in some tension with NHTSA's authority to balance energy efficiency

The "Spin Cycle" in Musharraf's Institution Laundering

Yesterday, former General Pervez Musharraf purported to "lift" the Emergency he declared on November 3rd, claiming that he has now "revived" the Pakistan Constitution of 1973. Members of Pakistan's civil society are not particularly impressed . And they shouldn't be. Musharraf's claim to have "lifted" the Emergency makes sense only if we understand the word "lifted" to mean " institutionalized and made permanent via a one-man constitutional convention ." Most of the actions he has taken during the last six weeks remain in place, and even his orders purporting to "lift" the Emergency simultaneously implement a raft of permanent constitutional amendments designed to consolidate his grip on power. Let's take stock of where things now stand compared to where they stood on November 2nd: Musharraf has laundered the judiciary by dismissing all Supreme Court and High Court judges who refused to take a new oath of loy

Harvard's Ten Percent Solution and the Alternatives

The announcement that Harvard College will henceforth charge students whose families earn between $120k and $180k per year only 10 percent of their annual income for tuition is surely a positive development. (Harvard is already free for students whose families earn less than $60k per year, and there is now a graduated scale up to the $120k.) Still, there is at least one possible oddity in the program and a deep question raised by it. First, the oddity. Until now, Harvard has considered assets, including home equity, along with income, in determining financial aid eligibility. This is common practice among universities, but it has perverse effects. It rewards families that don't save for college by giving them extra aid relative to families with the same income that sacrificed the expensive lifestyle to save. Further, excluding just some assets from the calculation is easily manipulated. If, e.g., Harvard counts money in the bank but not home equity against aid eligibility,

Too Hot to Handle??

Fridays tend to be a slow blog-traffic day so I'm going to use my post today to promo the two “hot topic” panels I’ll be doing at the upcoming Association of American Law Schools annual conference just after new year’s. I’ll be doing a panel on the Second Amendment issue in the D.C. gun case. That topic is so “hot” that the conference organizers have decided to schedule it for 8:30 a.m. on a Saturday. More about that one tomorrow. The other hot topic is . . . wait for it . . . abortion. I guess it’s always hot. Anyway, here’s the info: AALS HOT TOPIC panel on "Reproductive Justice after Carhart" Friday, January 4, 2008 10:30 a.m.-12:15 p.m. Petit Trianon, 3rd floor, New York Hilton Moderators : Pamela S. Karlan, Stanford Law School Jack M. Balkin, Yale Law School Panelists : Michael C. Dorf, Columbia University School of Law Reva B. Siegel, Yale Law School Kenji Yoshino, Yale Law School Angela P. Harris, University of California, Berkeley S

Steroid-Powered Rocket to Rescue of Barry Bonds?

The Mitchell Report , detailing widespread steroid use by Major League Baseball players, may carry a silver lining for Barry Bonds. In addition to the obvious juicers---sluggers like Bonds, Jose Canseco, Mark McGwire, Jason Giambi, Sammy Sosa---the report names, indeed headlines with, pitcher Roger Clemens. It also names pitchers Andy Petttite, Jason Grimsley, Steve Bechler (who died in spring training in 2003), Ron Villone and others as users of performance-enhancing substances. The report (and I confess to not having read all 311 pages plus appendices) suggests at one point that pitchers started taking performance-enhancing drugs in earnest once it became apparent that juiced hitters had gotten the advantage. And for some players, at least, the drugs pretty clearly worked. For example, the report indicates that Clemens had his best seasons while on the 'roids. So how does this report help Barry Bonds? Well, not at all in his perjury case. The fact that "everybody was d

Does Waterboarding Save Lives? Should It Matter?

Comes now former CIA Agent John Kiriakou to say that: (1) the waterboarding of the previously tight-lipped Abu Zubayda led him to give up Khalid Sheikh Mohammed and otherwise inform the govt about the operations of al Qaeda; (2) the capture of Khalid Sheikh Mohammed and the other use of the info obtained from Zubayda thus saved the lives of persons who otherwise might/would have perished in terrorist attacks; but (3) the U.S. should not engage in further waterboarding going forward because "time has passed, and we're more on our feet in this fight against al Qaeda, and I think it's unnecessary." How does this all fit together? First, as to conclusion (2), well maybe. If we're speaking in utilitarian terms, it's very hard to know whether more lives were saved as a result of the actionable intelligence obtained from waterboarding Abu Zubayda than will be lost as a result of the additional terrorist attacks to which it could lead. A conservative friend of min

Law Professor/Politician

Is it just me, or is there something a little odd about the fact that having been a law professor , even briefly, appears to count as a qualification for high political office? President Bill Clinton briefly taught constitutional law at the University of Arkansas, Barack Obama did the same at the University of Chicago, and today came word that Dmitry Medvedev, Vladimir Putin's handpicked successor, was a law professor at St. Petersburg University in the 1990s. Thus far, English language news reports about Medvedev (and I can't read the Russian ones, alas) emphasize two somewhat contradictory points: 1) Based on his prior writings and work, Medvedev appears to be a pragmatic moderate, someone with a technocratic bent, and probably the most liberal of the people Putin might have chosen as his successor; and 2) Medvedev is a person with no real political base or experience who will be utterly beholden to Putin, and thus essentially a puppet. Medvedev's law professor past pote

A Bad Day for Drug Warriors at the Supreme Court

In three cases decided today, the Supreme Court sided with criminal defendants convicted for drug-related crimes. But warning to readers: Drugs are still illegal, so don't start taking your bong hits (4 Jesus or anyone else) just yet. Here's my summary: 1) In Watson v. United States , the Court held that someone who receives a gun in exchange for drugs (here OxyContin) does not thereby illegally "use" a firearm during and in relation to a drug trafficking offense. Justice Souter so wrote for the Court despite the fact that in an earlier case, Smith v. United States (1993), the Court had held what in Watson it termed the converse: that someone who trades a gun for drugs does thereby use the gun. This distinction reminds me of nothing so much as the argument that when Monica Lewinsky performed oral sex on Bill Clinton, she had sex but he didn't. 2) In Kimbrough v. United States , the Court held that a district judge is entitled to depart downward from the (now j

Tech for Tech's Sake

I've recently seen two movies in 3-D: "Beowulf" and the re-release of "A Nightmare Before Christmas." Three-dimensional film technology has been around for about a half-century, but it has never been anything but a tiny niche technology, continuing decade after decade to be more of a gimmick than a serious theatrical artistic technique. It is telling that the director of "Beowulf" is Robert Zemeckis, who has made a career playing with new or fringe techniques -- some brilliant successes ("Who Framed Roger Rabbit?") and some not ("The Polar Express"). There is a good reason why 3-D has never caught on: It simply does not improve the movie-going experience. Having seen "A Nightmare Before Christmas" when it first came out in 2-D, it was especially disappointing to watch it in 3-D. The effects were affirmatively distracting, and the movie was a lot less fun to watch. "Beowulf" was proof that the technology is n

The Destruction of the Abu Zubaydah Interrogation Tapes

The CIA was under no legal obligation to videorecord its interrogation of Abu Zubaydah and Abd al-Rahim al-Nashiri, so, one might ask, why was it required to preserve the recordings it made? The answer, here as elsewhere in the law, is that the destruction of evidence is (sometimes) culpable while the non-creation of evidence is not. Large private firms understand this point and respond in two main ways. First, most firms have routine document destruction programs. A firm that is not under active investigation for wrongdoing is not generally required to keep the "documents" (used here in the broad sense to include not only hard copies of writing but electronic files of text, audio and/or video). Indeed, the law sometimes imposes affirmative obligations on firms to destroy documents that contain sensitive personal information regarding their clients, employees and others. Even where not legally required to do so, prudent firms purge their records periodically to avoid po

My Reasons

A couple of days ago, a reporter left me a message asking for my reasons for shifting institutional affiliations next academic year. Being too busy with end-of-semester business, I didn't return the call, but I thought I should answer. So here are my top 11 reasons (11 is one louder.): 11. The pattern on the carpet in my Columbia office is driving me mad. Mad, I say. 10. I'm not convinced that the special salad dressing I requested is really vegan. 9. Global warming. 8. I'm protesting President Bollinger's uncivil treatment of President Ahmadinejad. 7. I was told that dogs roam free on the Cornell campus. 6. Mike Bloomberg won't be mayor forever, you know. 5. I had such high hopes for the Knicks this season, but they've been dashed once again. 4. The paparazzi. 3. Why can't we all just get along? 2. With Noah Feldman gone from NYU, the faculty Dean's Cup game is no longer worth risking permanent injury. 1. The coffee in the faculty lounge h

Romney on Religion

Former Massachusetts Governor and Republican Presidential hopeful Mitt Romney today delivered a major speech detailing his views on church and state, as well as how his faith would inform a Romney Presidency. (Audio and transcript from NPR here .) The speech contained a few interesting points: 1) Invoking JFK, Romney admitted to being a "candidate from Massachusetts," a fact he had heretofore been trying to hide by disavowing just about everything he did as Governor of the Bay State. Indeed, the Founding Father cited most in the speech is another Massachusettsite, John Adams. 2) The basic note Romney struck was "render unto Caesar." He would make policy judgments based on policy considerations and the interests of the people, not taking instructions from his church. At the same time, he would not disavow his Mormon faith. Okay, so far so good. But then to drive the latter point home, Romney said: "Americans tire of those who would jettison their beliefs,

Boumediene Oral Argument

You can listen to the oral argument in Boumediene here . Unsurprisingly, the conservatives (well mostly Justice Scalia, actually) went after Seth Waxman (arguing for the detainees) on the constitutional question. Justice Scalia challenged Waxman to name a single precedent in which a non-citizen held outside the sovereign territory of the United States (or England) was entitled to habeas even though no statute so provided. Waxman couldn't do it but there are two reasons why this seems not so damning: 1) As to the U.S., even in Johnson v. Eisentrager , the Supreme Court indicated that location and alienage, standing alone, were not necessarily sufficient to defeat the constitutional claim; and 2) The practice in England, under a regime of parliamentary supremacy, does not translate directly. Furthermore, one could argue, as Judge Rogers did in dissent in the D.C. Circuit, that there is also no case in which a court expressly said the writ would not be available for someone like B

Gitmo Suicides and Boumediene

The Supreme Court hears oral argument tomorrow (that's Wednesday for those of you who don't read this blog at night) in the Boumediene case, which makes the timing of a story about suicide attempts at Gitmo . The question of how detainees are treated at Gitmo is not technically relevant to the constitutional issue in Boumediene , of course, but neither was the treatment of prisoners at Abu Ghraib strictly relevant to the 2004 decisions in Hamdi and Rasul . Nonetheless, the release of the Abu Ghraib photos so shortly after the oral arguments in those cases is widely credited with having seriously undermined the government's credibility and contributed to the results in those cases. Likewise here, stripped of its most technical aspects, the issue in Boumediene is whether the Constitution entrusts to the detention, treatment and trial of aliens held outside the U.S. (assuming Gitmo counts as outside the U.S.) to the Executive, subject only to such judicial review as Congre

So Long and Thanks for All the Fish . . .

. . . is what I might say (quoting the late great Douglas Adams ) were I not a vegan. Why so long? No, I'm not killing Dorf on Law. Professor Sherry Colb and I will be moving to Cornell at the end of the current academic year. As reported first by Brian Leiter (of course), Cornell has hired Sherry ("outed" by Brian as having the dubious honor of being married to yours truly), myself and a mysterious "third senior scholar" whose identity is known to me but Brian has not yet revealed, perhaps because this scholar was not available to confirm or deny the move. I sent emails today to my new colleagues at Cornell and my current colleagues at Columbia telling them, respectively, how delighted I am to be joining, and sad I am to be leaving, them. If that sounds like a contradiction, it isn't. It's the proverbial mixed emotions. Here I want to say a word to my current, former and future (i.e., next semester's) Columbia students, who might otherwise h

How About Live Audio, Your Honors?

According to a recent press release , the Supreme Court will release the Boumediene oral argument audio recording on Wednesday, very shortly after the conclusion of the argument. (My FindLaw column will preview the argument Wednesday morning. Read the column and then listen to the argument to hear how off-base my analysis proves to be!). Same-day audio for very high-profile cases is a nice idea, but here's a better one: Live audio for all oral arguments. Without revisiting the argument over cameras in the Supreme Court , there is nothing to be said for delaying audio an hour or two after the argument has occurred, rather than providing a live feed to interested media outlets. Surely the 1920s technology is available to the Court, and any worries about jeopardizing the Justices' privacy or the risk of Justices and lawyers "hamming it up" either doesn't apply to pure audio or, if it does, applies equally whether the audio goes out live or delayed by one or two

New Blog on Islamic Law

I don't usually post simply for the purpose of plugging another blog, but I'll make an exception to that principle for University of Pittsburgh law prof Haider Hamoudi, who has just started a new blog on Islamic law. His first post examines two recently noteworthy cases: the English woman jailed and exiled for calling a teddy bear Mohammed (in response to her students' request) and the Saudi woman sentenced to 200 lashes for being in a car with a man not her husband (and possibly for then having been gang raped). Hamoudi condemns these sentences but goes on to explain how the claim that they carry out "Islamic law" rests on numerous controversial premises. It's worth a read. Posted by Mike Dorf

Eisgruber Respondeth

For everyone wondering how Chris Eisgruber would respond to my question whether a tendency to defer to institutional settlements could really be cabined off from ideological values as "procedural," wait no longer. Chris said that while deference to institutional settlements is part of what makes a Justice "moderate" along the procedural dimension, the procedural value on which he principally relies is "open-mindedness" towards new claims of justice. I'm all for that too, but I should say that this too can be characterized as an ideological position. Self-styled originalists, after all, might say that it's the job of the Court to enforce the old Constitution and for the political branches to be open-minded towards new justice claims. In the end, my mild skepticism may boil down to the sort of skepticism one often sees towards all process-based theories. Think here of the criticism by Larry Tribe of John Ely's process theory. One further th

The Next Justice

Christopher Eisgruber is the Provost of Princeton University and a former law professor at NYU. He is one of the most elegant writers on constitutional law, both in his solo work and in his collaborations with his former NYU colleage (and current Dean of the University of Texas Law School) Lawrence Sager. Eisgruber's most recent book, The Next Justice , argues for a new approach to the selection of Supreme Court Justices. I'll be talking about the book on a panel at Princeton this afternoon and thought I'd very briefly preview my remarks here. Roughly half of The Next Justice addresses matters of constitutional (and to a much lesser extent, statutory) interpretation. In order to know what the confirmation process should look like, Eisgruber says, we need to know what it is that we want our Justices to do. His answer is that Justices apply "ideological" and "procedural" values in interpreting the open-ended (Sager would say "justice-seeking"

Middle Class Entitlements

“Entitlement programs” (to use the ugly phrase) will be an issue in the 2008 election. The ultimate Democratic candidate is likely to put forward a universal health care plan, and we can expect to hear more about President Bush’s recent veto of health care for children. The state and future of other social programs, such as social security, should be on the agenda as well, although perhaps only Senator Obama will be willing to talk about them. As an article in the Economist pointed out last month, the conversation about health care centers around universality of coverage, not around cost. (The Economist proposed that Senator John McCain was at least asking “the right question” in focusing on cost instead.) Coverage is incredibly important, and the number of uninsured Americans is disgraceful and growing. Most of the uninsured are, of course, poor. Yet the challenge for Democrats in the coming election may be to ensure that universal health care is talked about in wa