Showing posts from January, 2007

Barbaro's Legacy

I confess I really do love thoroughbred horse racing. But while jockeys and trainers certainly deserve (and receive) substantial credit for their accomplishments, let’s face it -- the one doing the most work is the horse. I’m absolutely convinced that thoroughbreds love to race (if you’ve ever stood close to the edge of the track and felt the electricity when they pass, you know it’s true). But what happens to them after they can no longer race? Sadly, many see tragic ends because their owners either cannot afford to continue to care for them or choose not to do so. Enter Barbaro. Barbaro, of course, was undefeated entering into the Kentucky Derby, won that race like nobody’s business, and then suffered a terrible injury in the first part of the Preakness. It was an injury that most horses would not have survived even briefly. But for eight months he hung on, undergoing surgeries and various other treatments, and gave us many periods of great optimism until finally a hoof infection pro

Kobe Bryant and Intent

The NBA suspended Los Angeles Lakers star Kobe Bryant for one game as punishment for elbowing San Antonio Spurs guard Manu Ginobili in his previous game. Bryant and the Lakers objected to the suspension because, according to Bryant, he did not intend to elbow Ginobili. League officials disagreed, noting that Bryant threw his arms backwards (striking Ginobili) after attempting a shot, an "unnatural" motion in basketball, according to Stu Jackson of the NBA front office. Bryant had an explanation: He flailed his arms as he did in an effort to draw a foul call. He hoped to draw attention to himself but did not intend to hit Ginobili. Bryant's explanation is credible because there is no known animosity between him and Ginobili. I'm not especially interested in the merits of this dispute (except to the extent that Bryant's absence was the key to the Knicks' victory over the Lakers), but I do think it interesting that Bryant's exculpatory account was that h

Spaced Out About Taxes

In an Associated Press story that has been posted on a number of news sites (see, e.g., here ), we learn that the lucky winner of a sweepstakes has declined to accept his award because of the tax consequences. Having won a "free trip to outer space," our lucky winner calculated that the award (which has a value of $138,000) would cost him about $25,000 in taxes. He concluded that this was more than he was willing to spend, and he declined the award with the philosophical comment: “I was, however briefly, a potential astronaut." The article reports that he "doesn't blame anyone." That doesn't stop other people from blaming the IRS, of course. The sub-headline on's website reads: "IRS brings hype over suborbital ticket giveaways back down to earth." Even, which is notable for its even-handed treatment of tax issues, couldn't resist this headline: " IRS Grounds Prize Winner from Trip to Outer Space." The ar


What do the government of Nouri al-Maliki and under-performing New York public schools have in common? Each is likely to be subject to a new regime of performance benchmarks: If they don't meet specific targets on schedule, they'll lose support. In the case of Iraq, that means American troops. In the case of many New York City schools (and other schools throughout the state), that means dollars. Let's take New York first. The state's new governor, Eliot Spitzer, announced yesterday that performance benchmarks would be part of a package of new financial assistance to schools throughout the state. Schools that do not meet the standards imposed by their "contracts" will lose funds, their principals will be fired, and in some instances the schools will be shut down. The approach is not new. Other states--and to a large extent federal assistance pursuant to No Child Left Behind--include performance benchmarks with incentives and accountability for failure.

My FindLaw Column Today on Affirmative Action Bans

My column on FindLaw's Writ today is titled Universities Adjust to State Affirmative Action Bans: Are the New Programs Legal? Are They a Good Idea? In it, I consider 5 approaches to boosting minority enrollment in states, like Michigan, California, Washington, and Florida, that ban race-conscious affirmative action: (1) Open or lottery-based admissions; (2) Class-based affirmative action; (3) Guaranteeing admission to all public high school students who graduate at or near the top of their class; (4) Considering "prejudice or discrimination overcome" as an admissions criterion; and (5) Improving the quality of secondary education. I'd be quite interested in hearing about other approaches that have been tried or proposed.

Gates is Right That Congressional Opposition "Emboldens the Enemy" But So What?

On Friday, Defense Secretary Gates said that formal Congressional opposition to the Bush troop increase in Iraq "emboldens the enemy," leading, predictably, to condemnations of this comment by members of Congress. At some level, of course, the members of Congress are right. This sort of talk is not that different from the various efforts by Bush Administration officials over the last five years to label as unpatriotic any opposition to the administration's strategic goals or tactical decisions. But it's also likely that Gates is right: There probably are some Iraqi insurgents who will read Congressional opposition to troop increases as a sign that if only they (the insurgents) persist in their attacks, the Americans will pack up and go. This is both common sense and a lesson of recent history. Lawrence Wright's The Looming Tower (an excellent read) makes plain how Osama bin Laden inferred from American retreats in Lebanon and later in Somalia that the U.S. was

Obama @ Harvard

Today's NY Times has a fascinating story about Barack Obama's days at Harvard Law School, and especially his selection and tenure as the first African-American President of the Harvard Law Review. This could be a good opportunity to play "six degrees of Barack Obama" and point out that I was a year ahead of Obama in law school, that we took a seminar together, and that the Larry Tribe law review article referenced in the Times piece for which Barack served as a research assistant lists me in the same asterisk footnote. (The article is The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics , 103 Harv. L. Rev. 1 (1989). The footnote states, in part: " I am grateful to Rob Fisher, Michael Dorf, Kenneth Chesebro, Gene Sperling, and Barack Obama for their analytic and research assistance . . . ." Yes, that Gene Sperling, who later became President Clinton's National Economic Adviser.) I could point all that out, but I won't

Greenburg on O'Connor on Bush v. Gore

I've ordered my copy of Jan Crawford Greenburg's new book on the Supreme Court, but since it hasn't yet arrived I've been contenting myself with the various reviews of the book, including David Garrow's in the LA Times. He's certainly a big fan, as are many other reviewers. One thing Garrow notes about the book is the incredible access Greenburg was able to get, both to current and former members of the Court and to former clerks. Justice O'Connor, for example, apparently spoke "on the record" with Greenburg for four hours. And it looks like she actually said some meaningful things. Garrow summarizes a few of the rather blunt things Greenburg reports O'Connor to have said about Bush v. Gore, including that the Florida Supreme Court was "off on a trip of its own." But that's not the most striking thing O'Connor said about the case. For that, check out this passage from Garrow: O'Connor admitted to Greenburg that the

Can We Talk About Mammograms For A Minute?

Yesterday it was reported, both on the "Today" show and in the Wall Street Journal (and probably in other places, but those are the ones I saw), that the CDC is somewhat concerned because the percentage of women getting mammograms has fallen over the past few years. I saw nothing in either report to indicate that anyone was advancing any theories as to why this would be the case, and I certainly have no real research to propose one myself. I will, however, make an observation. In my own experience -- which is limited to the greater New York City area -- it is actually not so easy to get a mammogram. Personally, I have "good" health insurance. If I want to get a routine mammogram that my insurance will cover, however, I generally have to schedule it months ahead of time. For a mammogram that is not routine ( i.e. , one that is recommended to investigate a specific potential problem), the wait is less; however, it can still be several weeks. I can get one faster if I

Iowa Political Markets and the Iraq Surge

Political insiders have long known that the best way to predict the results of American elections is to follow the Iowa political markets , on which anybody can buy "shares" in outcomes of particular races. Trading on the 2008 Presidential race has been open since June 2006, and the stock prices are quite interesting. For the category of winner-take-all, one buys shares in either the Republican or Democratic candidate. One share of the Democrat returns a dollar if a Democrat wins and nothing if a Republican wins, and vice-versa. If the odds were even money, then Democratic and Republican shares would both be trading at $0.50. As it happens, the Democratic candidate has been ahead almost continuously since this market opened in June. However, in mid-November, the Republican candidate started to gain ground and essentially pulled even on November 19. Since then, the Republican price has fallen fairly continuously, while the Democratic price has risen. As of yesterday, th

Lawyers Prosecuting the Powerful

A couple of days ago Neil Buchanan posted a few ideas about how to sell the value of defense lawyers to the public. I don't have much to add directly on that thread, but three current cases do, it seems to me, show one great virtue of lawyers in a system of limited government: Because we lawyers consider ourselves guardians of the principle that no one is above the law, lawyers serve as a vital check against the accumulation of tyrannical power. That's conventional wisdom for defense lawyers putting the prosecution to its proof, but it's even more clearly illustrated in cases in which lawyers act to prosecute high-ranking government officials. Thus, Israeli Attorney General Menachem Mazuz sees it as his duty to prosecute the country's President, Moshe Katsav, for rape and other crimes. Likewise, special prosecutor Pat Fitzgerald is aggressively building his case against Scooter Libby, and there's little doubt that he would have gone after Rove or even Cheney if

Spanking and "Correction"

I am somewhat alarmed to learn from Paul that Canadian law protects the right of parents and teachers (?!) to use reasonable force against children for "correction." I would certainly acknowledge concerns about selective enforcement, though such concerns are hardly unique to spanking regulations (and perhaps are better aimed at laws that are affirmatively harmful, such as drug laws). However, I find unpersuasive the notion that anyone has a "right" to use physical force (however "reasonable") to "correct" a child. There is no evidence that hitting a toddler has any beneficial effects for the toddler, and older children appear to gain nothing from the practice either. Spanking (or, to use a less pc term, "hitting") children seems, therefore, to serve the parent's interests in retribution or in releasing pent-up anger rather than the child's interest in learning to behave properly. The law's choice of the word "corre

Primary timing

There's a new round of competition among states to leap-frog their primaries and caucuses over one another. (See today's NYT article .) The timing of primaries and caucuses is an almost incomprehensible amalgam of national party rules, state party rules and state laws. Some states, like New Hampshire, have exercised enormous clout in the past. New Hampshire has managed to retain its first-in-the-nation primary through national party rules that would refuse to seat delegates chosen through any primary held earlier than New Hampshire's. We need a national policy, not a state-by-state race to February. Now, not surprisingly, some big states (California, Illinois and Florida) are pushing a move to the week after New Hampshire, so as to increase their influence in the nominating process. It seems to me that this year, in which no incumbent president or vice-president is seeking his party's nomination, would be an ideal year for bringing some order to the primary/caucus proce

Spanking Martha Stewart

I hope it's not too late to weigh in on Mike's earlier post about the proposed spanking bill in California. I haven't read the draft law, if one exists at this point, so I'm speaking from a somewhat general position. Mike asks why one might oppose such a law, and says that since religion doesn't seem to be the foundation for the opposition, a general fear of the "nanny state" might be behind it. I detect, though I may be wrong, a whiff of disagreement in his description of such a position. Let me offer a few responses that don't necessarily depend on opposition to the nanny state as such, although they certainly may support wariness about "nanny state" legislation. They all amount to the same basic thing: that however commendable such a law might be in ideal circumstances, there is no guarantee that its application would be ideal. We might take three cuts at such an objection. The first is a basic vagueness/overbreadth objection: however car

Shut Up and Write Scholarly Articles

Paul Krugman has a very interesting piece on Milton Friedman in the current New York Review of Books (not yet available online). Krugman praises Friedman's work as a positive economist, especially his demonstration that inflation and unemployment are not inversely correlated over the long run -- Friedman successfully predicted stagflation. Krugman notes that real-world trials discredited Friedman's claims for the power of steady-as-she-goes monetarism but concludes that overall Friedman's reputation as a giant on the order of (and in opposition to) Keynes is largely deserved. At the same time, Krugman criticizes Friedman's accomplishments as a popularizer and public intellectual. The arguments Friedman made for deregulation were not derived from Friedman's academic work and, in some instances, Krugman says, downright dishonest. Although I share Krugman's views on the merits of Friedman's brand of laissez-faire, I want to put in a word in tepid defense of

Why Do People Need Lawyers?

Returning to some themes discussed recently by Michael Dorf ( Are Lawyers UNIQUELY Amoral? ) and Paul Horwitz ( Attacking Firms that Represent Guantanamo Detainees ), I'm intrigued by the public's continuing dismissive attitude toward defendants who ask for lawyers. TV cop shows, including the best ones ("Homicide: Life on the Street" being my all-time favorite), always present a lawyer as an impediment to achieving justice. "He lawyered up" is a common complaint from investigators. Along similar lines, the New York Times recently ran an article describing how criminal suspects almost compulsively feel the need to talk. The article quoted a criminal attorney saying that she always tells her clients simply to shut up--but they rarely do. From the public's perspective, this is apparently good news. If guilty people feel the need to confess, after all, why are those amoral lawyers telling them not to do so? Those of us who have been through law s

The Scapegoat Defense

Some Democrats were apparently gleeful that Scooter Libby's lawyer chose, in his opening argument, to claim that Libby was being made to take the fall for Karl Rove. The celebration, I want to suggest, is not just premature, but fundamentally misguided. This is almost a no-lose proposition for the White House. The argument -- as I understand it -- is that Rove came up with the idea of outing Valerie Plame as a means of discrediting or at least downplaying the importance of Joseph Wilson. Nonetheless, Scooter was the one who was sent to talk to the press to sell the story, and because Scooter was a busy guy with important things to do like keeping us safe from terrorism, he got confused about what he learned about Plame, from whom, and when. But really Rove -- who also talked to the press about Plame -- was the bad guy. I fail to see how this will harm the White House (any more than it already had before the trial began). Rove apparently acknowledged in his grand jury testimony

Lincoln, Jackson(s), Habeas, and Torture

Abraham Lincoln famously complained that in insisting on the availability of habeas corpus in the midst of the Civil War, his critics were advocating that "all the laws, but one, go unexecuted, and the government itself go to pieces, lest that one be violated." Along with Robert Jackson's "The Constitution is not a suicide pact," Lincoln's line has become something of a motto of those who advocate limiting civil liberties in times of war and other threats to national security. In fact, another Jackson got there first. In defense of his refusal to comply with a habeas order, Andrew Jackson, then the American major general charged with defending New Orleans against British attack in the War of 1812, asked: "Is it wise to sacrifice the spirit of the laws to the letter, and by adhering too strictly to the letter, lose the substance forever, in order that we may, for an instant, preserve the shadow ?" Caleb Crain quotes Jackson's question in a f

A pretty good day for the Supreme Court

The Justices decided 3 cases today and got 2 of them pretty clearly right (IMHO). In Jones v. Bock CJ Roberts wrote for a unanimous Court that lower federal courts can't impose additional procedural hurdles on habeas petitioners beyond those contained in the Prison Litigation Reform Act (and other statutes). For admin jocks, think of this as the Vermont Yankee of habeas. In Osborn v. Haley Justice Ginsburg wrote for the Court that a federal court ruling remanding to state court a case removed under the Westfall Act is reviewable, despite the existence of a statute that says it's not reviewable. Justices Scalia and Thomas dissented on the ground that, well, the statute says the case is not reviewable. Justice Ginsburg's majority opinion seems to rely on a kind of implied "obviousness exemption." The Westfall Act makes the AG's determination that the facts justifying removal authoritative on the federal courts, and the lower court here disregarded the AG&#

Exploratory Committee Fluff

I decided to check out the websites of the exploratory committees for some of the announced candidates. I discovered that they're almost entirely about fundraising and fluff. For example, if you go to the Clinton or Obama official Senate sites, you'll find quite a lot of information under "issues," but on their respective exploratory committee sites ( here and here ), you'll find no "issues" heading at all. Likewise for Rudy Giuliani , Mitt Romney , and Tom Vilsack , to name just a few of the thousands of candidates. The pattern seemed so consistent that I wondered whether there is some FEC rule barring mere "exploratory committees" from officially taking stances on issues. But it turns out that's not the case. Apparently the FEC treats an exploratory the same as an actual campaign committee. And not every exploratory committee avoids issues. The Denns Kucinich site has an issues section, for example, as does the Sam Brownback si

Seventh Amendment & the PSLRA

Provisions of the federal securities laws don’t frequently produce constitutional disputes. The heightened pleading standard of the Private Securities Litigation Reform Act of 1995 , which transformed securities fraud complaints and redefined the battleground on motions to dismiss, didn’t seem to be an exception. Now, though, the Supreme Court has granted cert on a late-blooming Seventh Amendment issue, in Tellabs, Inc. v. Makor Issues & Rights, Ltd. The provision at issue, enacted apparently in order to make it easier for corporations and corporate officers to defraud shareholders, requires complaints in covered actions to “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” Put simply, it extends the particularity requirement of Federal Rule of Civil Procedure 9(b) to allegations of scienter. (Rule 9(b) expressly permits plaintiffs to allege scienter generally, although some courts haven’t interpreted i

Whence the Opposition to California's Proposed Spanking Ban

A proposal by California Assemblywoman Sally Lieber (D) to make spanking of a child under three years old a misdemeanor has drawn sharp opposition from state Republicans, although not from the new kinder gentler Governator (himself a frequent spankee as a youth). Developmental psychologists are virtually unanimous that spanking very young children is ineffective or counter-productive, as it teaches them to resort to violence themselves. So why the opposition? One possibility is religion. "Spare the rod, spoil the child" is a Biblical maxim, and in fact, some religious conservatives continue to promote spanking. However, based on my brief web-surfing of conservative Christian websites, it appears that even most religious conservatives believe spanking should be used rarely, that other forms of discipline should be preferred, and that spanking should never be administered in anger. I don't see the opposition to a proposed spanking ban as primarily based in religion. My

John Roberts Speaks

Jeffrey Rosen has an article in this month’s Atlantic in which he reports on an interview he conducted with John Roberts last July. The article is largely uncritical and covers many of the same themes Roberts emphasized in his confirmation hearings: the importance of judicial modesty, the value of narrow rulings, and Roberts’ asserted lack of an overarching agenda. But there were a couple aspects of the interview I found noteworthy. First, I was surprised that Roberts was so candid about his desire for unanimity on the Court and his frustration with justices who care more about their own records than about the credibility of the court. Though he didn’t identify anyone by name, Roberts did criticize justices who act like law professors and seem "concerned with the jurisprudence of the individual rather than working toward a jurisprudence of the Court.” The reference to law professors might be read as a swipe at Justices Scalia, Ginsburg, and Breyer, who were all academics before jo

Oh, Brother

Time for a break from these trivial conversations about supposed Asian invasions , supposed Muslim invasions , intimidation (by government officials) of white shoe lawyers , intimidation (of potential jurors) by white shoe lawyers , Canadian parliamentary maneuvering , New York legislative non-maneuvering . Enough with all of this frivolity , already — it’s time to talk about something consequential. Yes, it’s time to talk about Bollywood, Reality TV, and the Law. (And no, despite how it sounds, that’s not a course that I have either taken or taught.) Now that the “Celebrity Bigot Brother Big Brother ” kerfuffle has hit the paper of record , some of you may already know a smidgen about the drama rocking the UK, the Subcontinent, and the South Asian diaspora this week. (Primers here and here , and for the pathologically obsessed, up-to-the-minute updates here .) The show features a couple of Hollywood has-beens low on media attention these days — Jermaine Jackson, of those Jacksons,

Chief Justice Barak's Revolution

Chief Justice Barak has been the dominant figure in the Israeli Supreme Court for over 20 years. Prior to his appointment, the Israeli Supreme Court was perceived as marginal to the politics of the state. Chief Justice Barak's value laden rhetoric and his so called activism have transformed the Israeli Supreme Court and its public image. The Court is perceived as an independent actor with its own (moderate liberal) agenda. This perception generates two kinds of opposition. On the one hand, the religious and conservative forces perceive the Court as an enemy of religious and conservative values. Consequently there are persistent attempts at limiting the Court's powers and/or changing its composition. On the other hand, the radical left perceives the Court as a means of legitimating the practices characterizing the brutal occupation of the territories. The willingness of the Court to examine and review issues such as targeted assassinations, demolition of houses and torture and t

Cyberlaw 2.0

At the height of the first dot-com boom, it seemed like nearly every twenty-something aspiring law professor held himself or herself out as an expert in "cyberlaw," by which they meant the law governing the internet. Some of these budding scholars took the view that the internet changed everything, so that legal rules and standards about intellectual property, antitrust, personal jurisdiction, you name it, had to be rethought from the ground up when applied to transactions in cyberspace. Others took a more modest view, seeing the internet as merely the latest in a long line of technological transformations to which legal doctrine could and would adapt. But whether they advanced revolutionary or evolutionary models, most of those writing about cyberlaw were writing about the regulation of the internet. Problems of the interaction between the internet and the real world continue to arise. For example, tax law has struggled with the question of what jurisdiction has author

Less Than Half a Loaf for AG Gonzales

In his testimony before the Senate Judiciary Committee today, AG Gonzales said he couldn't provide the operational details of the warrant application process the Bush administration had worked out with the FISA court. This did not sit well with the Senators. Interestingly, had the administration never initiated warrantless wiretaps, it almost certainly could have kept these details secret. As I noted in my previous blog entry, warrant applications are typically ex parte and while FISA requires the Justice Dep't to provide Congress with an annual report, that report almost certainly would not have included details of any novel procedures. But by circumventing the FISA court in the first instance, the administration raised suspicions which may now lead to political pressure to provide greater details. Had the administration been willing to settle for the half a loaf of FISA court approval for its electronic eavesdropping in the first place, it would have been assured of greate

FISA Court Negotiations

A year ago, the Justice Department issued a "fact sheet" detailing what it called the "myth v. reality" of its warrantless surveillance program. Among the supposed myths rebutted by the document was that "the Administration could have used FISA but simply chose not to." The Department explains that it could not have used FISA because its multiple layers of approval take too much time to respond to the fast-moving needs of counter-terrorism. Maybe that's right; maybe not. It's impossible to know given that the government has not revealed operational details of its surveillance program, claiming national security reasons. But if the FISA process was too slow a year ago, why is it fast enough today? In announcing that henceforth the govt would seek FISA warrants for the wiretaps that, to this point, it has performed without a warrant, the Justice Department stated that it had worked out with the courts an "innovative" approach that

Voir Dire in the Libby Case

According to a story in today's NY Times, Scooter Libby's lawyers are asking prospective jurors their views about the Bush Administration in an effort to ferret out biased jurors. This may seem a legitimate line of questioning. For example, one woman said “'nothing that could be said here'” would make her believe anything good about the administration." That should probably result in a dismissal for cause, although perhaps not if a follow-up question revealed that this woman meant she wouldn't believe anything good about the administration's policies but she would base her verdict on the evidence. The questioning of another juror presents a still harder case. The story reports: "Another man, after about 15 minutes, acknowledged that his low regard for Mr. Cheney might figure into how he evaluated his testimony if it was in conflict with other witnesses." Is this disqualifying? What if the witness in question were a convicted perjurer? Sure

The Problem(s) with Decapitation

What makes the fact that Barzan Ibrahim al-Tikriti was decapitated so disturbing? (I'm assuming others were disturbed. If you weren't, you'll disagree with nearly all of this post.) Here are three candidate explanations: 1) Coming so close on the heels of the taunting at Saddam's execution, the botching of al-Tikriti's execution will likely fuel suspicions among Sunnis in Iraq and beyond that the Shiite-led government is deliberately abusing its power to humiliate Sunnis. This in turn will further fuel sectarian violence. 2) Decapitation is a cruel method of execution. Although the guillotine was promoted in its day as humane, there is plenty of anecdotal evidence that the severed head sometimes remains alive for a small period. This is certainly one of the reasons why the hangman is supposed to try to avoid decapitation. 3) Decapitation has been used by terrorists in Iraq and elsewhere as a particularly brutal form of murder. The accidental decapitation of a

Of holidays and strikes

Here's a thought loosely inspired by the official commemoration of the birthday of Dr. Martin Luther King, Jr. I'm increasingly dubious about the wisdom and propriety of marking the significance of a person's accomplishments through an official holiday. We don't yet have "Martin Luther King Day Sales" but it seems only a matter of time. No doubt early celebrations of Lincoln's birthday (now merged into "Presidents' Day") were not wholly commercialized, but as the event recedes in time, the commemoration becomes increasingly disconnected from the achievements commemorated. Relatedly --- or at least it seems to me that there is a relation here --- I do not understand the notion of a "strike" as a form of political protest. I recently received an email calling for a "student strike" to protest President Bush's planned troop increase and the Iraq War more generally. Now I certainly understand that in order to hold a pr

Catfight Between Rice and Boxer?

The New York Times reported on Saturday that an exchange between California Senator Barbara Boxer and Secretary of State Condoleeza Rice has led to much critical commentary – largely from conservative bloggers – accusing Boxer of being anti-feminist. The controversy surrounds Senator Boxer’s comment to Secretary Rice suggesting that neither woman was in an ideal position to appreciate fully the consequences of committing more troops to this war, because Senator Boxer’s children and grandchildren are, respectively, too old and too young to serve, and because Secretary Rice does not have children. Rice was apparently offended by these remarks and responded later that she thought it was okay to be a single woman and not to have children, implying that Boxer had impugned the legitimacy of her life choices. Commentators have similarly characterized Boxer’s remarks as turning the clock back on women’s rights. In one sense, we might view all of this commentary quite cynically. The very pe

Are lawyers UNIQUELY amoral?

One of the comments on Paul's post regarding Stimson's attack on the law firms representing Gitmo (and other) detainees notes that the view expressed by Stimson is fairly widespread. The comment (by Caleb) points to the fact that laypeople commonly ask aspiring or practicing lawyers how they would or do approach representing someone guilty of a heinous crime. I would add to the evidence of the public's discomfort with the seeming amorality of legal practice the fact that tv and movie dramatizations frequently show lawyers facing such moral dilemmas---and that often the "right" thing for the lawyer to do is to find some way to rat out or otherwise turn on his client. In the more sophisticated versions of these dramas, someone makes the rule-utilitarian argument, explaining that everyone has a role to play in our adversarial system of justice, and that even if a lawyer's skills occasionally spring a guilty person, that is a small price to pay for keeping the

Attacking Firms That Represent Guantanamo Detainees

At the Volokh Conspiracy, Jonathan Adler notes a Washington Post editorial discussing an interview given by Deputy Assistant Secretary of State Cully Stimson. According to the report, Stimson pointed to a recent FOIA request seeking the names of law firms representing detainees in Guantanamo, adding, "You know what, it's shocking . . . . I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms . . . ." Not content to rest there, Stimson suggested that while some firms would "maintain" that they were taking these cases "out of the goodness of their heart," "others are receiving monies from who knows where, and I'd be curious to have them explain that." Adler expresses the hope that Stimson was "shooting from the hip, rather than exp