Showing posts from January, 2008

Kidney Theft and A Modest Proposal

The front page of Wednesday’s New York Times reports that police uncovered an illegal kidney-transplant program in India . The program targeted day laborers and other poor people, who were either deceived and then forced to undergo kidney removal or persuaded to sell their kidneys, so that wealthy Indians and foreigners – known sometimes as “organ tourists” – could receive kidneys unavailable to them through ordinary channels. One of the victims of the kidney ring became so ill after his surgery that he could not work anymore to support his destitute family. The story is disturbing and sheds light on the power of wealth to motivate predatory conduct toward the less fortunate. In this post, however, I want to focus on the other people whose lives are implicated in the kidney story: the wealthy organ recipients. In a story of rich people raiding poor people for their organs, of course, the rich do not tug on our heart strings. It is often largely through the accident of birt

Mark my ears

As promised, my FindLaw column today examines President Bush's plan to ignore Congressional earmarks in the legislative history of budget bills. Yesterday, Bush issued an executive order doing just that. As I explain in the column, ignoring earmarks is not a bad idea, and given Supreme Court precedent, a legal one at that, but Bush is very poorly positioned to lead the fight against earmarks because: 1) they are small potatoes (about $17 billion annually) compared with the giant fields of potatoes (not to mention blood) he has poured into Iraq and has foregone through tax cuts; and 2) the premise that provisions outside a statute's text are not law is contradicted nearly every time that Bush issues a signing statement asserting his right to contradict a statute's text based on his own idiosyncratic and self-serving interpretation of the Constitution. Here I'll raise one tangential point. The Administration says it's not bound by earmarks contained only in legisl

State of the Union

In my FindLaw column tomorrow I'm going to discuss President Bush's proposal---set forth somewhat cryptically in a paragraph of his State of the Union last night and also scheduled to be embodied in an executive order some time today---to attack earmarks. Here I'll limit myself to two observations about the State of the Union. I should preface these observations with the disclaimer that I didn't watch the actual address and so I'm basing this on the text. First, it's notable that although the President said that the budget he will shortly propose to Congress "terminates or substantially reduces 151 wasteful or bloated programs totaling more than $18 billion," the speech mentions not a single program that Bush thinks warrants terminating or reducing. Indeed, he mentioned program after program that he said should be created or have its funding increased. Given that, given the fact that he also proposes to make his tax cuts permanent, given how small

Omygod, I agree with Bill Kristol---and another thing

The hiring of William Kristol to lend greater ideological diversity to the NY Times lineup of regular columnists was met in some quarters with consternation. Unlike William Safire, who was generally conservative but in a principled way that led him to criticize Republicans no less than Democrats, Kristol has generally been more closely associated with a partisan style of opinionating (which is not to say that he doesn't sometimes criticize Republicans too). Thus, liberal-to-moderate readers of the NY Times worried that Kristol might be the "wrong kind" of conservative. Whatever the merits of that worry, Kristol's column today is spot on, and but for the absence of her characteristic snarkiness, could have been penned by Maureen Dowd or (the never-snarky) Bob Herbert. Kristol correctly argues that former President Bill Clinton's effort to downplay Obama's (at that time merely) projected big victory in South Carolina by comparing it to Jesse Jackson's vi

Nonsense on Stilts No Longer

If he had been buried rather than preserved as a relic for University College London, Jeremy Bentham might well be spinning in his grave over recent developments at his home institution and in UK law. Or so I conclude based on my ever-so-brief trip across the pond. Bentham famously referred to natural rights (and viewed deontological theories of justice more broadly) as "nonsense on stilts." His views on law ran strongly towards the replacement of the common law with statutes enacted by legislatures pursuing the greatest good for the greatest number. And in a country with a tradition of parliamentary supremacy, Bentham's work cast a long shadow over English jurisprudence. In modern times, H.L.A. Hart, Joseph Raz, and other positivists may be seen as the heirs to the Benthamite view. Very broadly speaking, positivists believe it is possible to give a descriptive account of the law without making normative judgments. Positivism's fiercest and most determined criti

Time Served & Cheerio

Apparently the government is disappointed that Jose Padilla was sentenced to 17 years rather than life in prison for his terrorism conspiracy conviction. (See NY Times story here .) Fair enough. But part of the disappointment can only be described as mystifying. The government objected to the judge's crediting Padilla for time served for his time in military custody. I understand the form of the objection: During that time, Padilla was not being held in connection with any criminal charge, and so that custody should not have been deemed related to the criminal conviction. But the substance of the objection is preposterous. If Padilla had been held by a foreign power, that would be one thing; but he had no control over which division of the U.S. federal executive held him. Likewise, if Padilla's confinement had been un-prison-like, something closer to house arrest, that too might not qualify as time served. But Padilla was held in isolation for long periods of time and s

Unintended Consequences?

In the latest in their occasional Freakonomics column in this past Sunday's NY Times Magazine, journalist Stephen Dubner and economist Steven Levitt tell three stories of unintended consequences. One of their two principal modern examples involves the Americans With Disabilities Act, which, they say, had the perverse effect of lowering the employment rate of Americans with disabilities. Citing a study by economists Daron Acemoglu and Joshua Angrist , Dubner and Levitt explain: "Employers, concerned that they wouldn’t be able to discipline or fire disabled workers who happened to be incompetent, apparently avoided hiring them in the first place." An interesting story, but is it true? Well, for one thing, it's not clear that Dubner and Levitt understand the argument they're reporting: Fear of back-end lawsuits by dismissed members of a protected class is a frequent argument made against non-discrimination mandates in general, but the particular worry with resp


The official celebration of the birthday of Dr. Martin Luther King, Jr., is a good occasion to reflect on Senator Clinton's recent dig at Senator Obama. Suggesting that Obama is all windy rhetoric to her substance, Clinton compared King to Lyndon Johnson, who, as President, signed the Civil Rights Acts of 1964 and the Voting Rights Act of 1965. It takes a detail-oriented (and white?) President, Clinton suggested, to translate hopes into law. Putting aside the question of who deserves how much credit for what, it's worth recalling that King himself was a big believer in bringing about legal change. He was not someone who thought that changing hearts and minds was a substitute for changing the law. Rather, he thought that (in today's academic lexicon), it's important to work on both informal social norms and formal legal rules. Or as Dr. King put it much more pithily, "It may be true that the law cannot make a man love me, but it can keep him from lynching me, a

Stupid Laws, Take Two

A reader who wishes to remain anonymous sent me an interesting follow-up to my post on "stupid laws." I thought it sufficiently interesting to post it here. Note that I'm going to be tied up for the next few days and thus may not post again until the end of the long weekend. But perhaps one of the other bloggers will, or I won't be able to help myself. Anyway, here's what Reader X said: I understand when judges distinguish in moderate tones their rulings from their policy preferences---I believe Justice O’Connor has written in some opinions that “if I were a legislator, I might not vote for this law” or something to that effect. This writing has value, I think, because it has the potential to placate disappointed audiences. Sometimes a little rhetorical empathizing with a losing party can be conducive to that party’s acceptance of the outcome. This kind of language also furthers the perception (“illusion” for the strong realists) that law is not just politi

"The Constitution Does Not Prohibit Legislatures From Enacting Stupid Laws"

Thus spake Justice Stevens, concurring in yesterday's decision in New York State Bd. of Elections v. Lopez Torres , attributing the sentiment to Thurgood Marshall. The occasion for this remark was the upholding of New York's system of selecting nominees for judicial election by party convention (pejoratively, "smoke-filled rooms," although not in NYC, where the smoke would be prohibited) rather than by primary. In rejecting the 2nd Circuit's approach, which found a right to a "fair shot" of a candidate for judicial office to get on the ballot, Justice Scalia's opinion for the Court (which Justice Stevens joined) invoked the usual sorts of arguments one sees when a court says that the Constitution does not forbid all practices that could be questioned on policy grounds. Here I'll limit myself to two observations: (1) It's striking that just about nothing in Justice Scalia's opinion turns on the fact that this is an election for a judgesh

Another Hat

As I hinted in yesterday's post , I am now formally affiliated with a law firm. Since the 1st of the current year, I have been "Special Counsel" at Dewey & LeBoeuf , the post-merger name of the former Dewey Ballantine and LeBoeuf, Lamb, Greene & MacRae. Over the course of the last several years, I have collaborated with Dewey Ballantine on an ad hoc basis, with my work on the constitutional challenge to NAFTA Chapter 19 being the most substantial case. Needless to say, I'm delighted with the more formal affiliation. Of course, my primary professional role (both at Columbia for the duration of the current academic year and at Cornell beginning in July) remains that of scholar and teacher, but in forging an ongoing relationship with a law firm, I'm hoping to continue to bridge what I regard as a widening gap between the world of practicing lawyers and the academic world. I certainly do not subscribe to the view that legal academics must be practicing law

A Militia of One? Our Brief Says No Way

A short piece in Sunday's NY Times mentioned my debate late last year with Robert Levy of the Cato Institute, who is one of the lawyers representing the plaintiff in Heller v. D.C. , the Second Amendment case pending before the Supreme Court. The article mentions my rejoinder to the argument by Mr. Levy that the operative clause of a constitutional provision should be given its full natural meaning, even if the conditions in the prefatory clause do not hold. As I noted on this blog at the time ( here ), Levy provided an example in which "the right to keep and read books" is justified by a prefatory clause that states that declares "A well-educated electorate, being necessary to the self-governance of a free state . . . ." Levy thought it self-evident that the "keep and read books" clause would apply to all books, not merely those connected to educating the electorate, but I said this was hardly obvious; pornographic books, for example, might not be

Palmore Redux

In a comment on my post on Palmore v. Sidoti , one of my regular readers (Sobek) made what I regard as a valid objection to the outcome of the decision: That it is troubling to knowingly subject a child to prejudice in order for the court to keep its hands clean, rather than to make a custody decision based on the child's best interests. I'm not persuaded that this means the case was wrongly decided, but I do think it means the case was a difficult one. Indeed, I was so confounded by this point that I wrote my latest FindLaw column as an expansion of my earlier post. But in the column, I distinguish between Palmore--- which I now think is a hard case---and the Title VII cases that reject satisfying customer preference as a ground for discrimination. I then conclude that the question whether to vote in anticipation of others' potentially racist or sexist votes is more like Palmore . Here I'll just make one final observation: It should go without saying that there ar

Deadlines, deadlines

That is both a lament about how behind I am on so many fronts (but not blogging!) and a reference to the fact that in less than a year we have seen 3 high-profile cases in which a litigant paid dearly for missing a deadline. First, we had the Supreme Court's outrageous decision in Bowles v. Russell , denying a habeas corpus petitioner's right of appeal on the ground that he missed the properly calculated filing deadline, even though he complied with the deadline as calculated and told to him by the federal district judge. (See my discussion of the case here .) Then came the Texas man who was executed by lethal injection---despite a de facto moratorium on such executions pending the Supreme Court's review of the issue---because his petition for a stay was delayed by a computer malfunction and, in the words of the presiding judge of the Texas Court of Criminal Appeals, "we close at 5," even though other judges were in the courthouse and would have entertained the

Palmore v. Sidoti in the Voting Booth

In 1981, a Florida family court judge was faced with a battle for custody of a four-year-0ld white girl between her parents, both themselves white. The girl's mother initially had custody when the parents' marriage broke up, but the father sued for a change in custody based on the fact that the mother remarried a black man (after a brief period of cohabitation with him). The judge disclaimed any racist motives on his own part, but said that sadly, children of interracial couples face discrimination, and thus the best interests of the child favored giving the father custody. In a unanimous decision in the case, Palmore v. Sidoti , the Supreme Court reversed, holding that the judge's taking account of other people's discriminatory motives amounted to unlawful race discrimination on his part. The principle of Palmore v. Sidoti is a broad and important one. It explains why, for example, an employer violates Title VII if it denies a job to an applicant based on race (or

Blogging Chain Letter

I discovered yesterday that I have been "tagged ," i.e., singled out by another blogger as someone assigned to complete a task---in this case to make claims in 4 categories---and then to "tag" someone else. I was tagged by Jim Chen, blogger at Jurisdynamics and Dean of the University of Louisville School of Law . I hate chain letters but this one seemed kind of fun, so the compromise upon which I've settled is that I'll accept my assignment but not tag anybody else. Of course, if any other bloggers (or normal people) out there want to make their contributions, they should feel free to consider themselves hereby tagged. If this arrangement violates the rules of the "meme" (which is really just a polite way of saying chain letter or virus), so be it. I accept the curse of the cyber-gods. Here are the categories and my answers: 1) Headline I’m most fearful of seeing in 2008: Justice Stevens Announces Retirement: President-Elect Huckabee Promises

Feeling badly for Hillary Clinton?

– not exactly because she welled up on camera. On Monday, Mrs. Clinton’s eyes filled with tears when answering a question about how she managed to keep going through the difficult campaigning process. By Tuesday evening, she had won the New Hampshire primary. I felt badly for Clinton on Monday, and it hasn’t totally dissipated with the win. Predictably, Clinton’s tears are discussed in gender terms (see, e.g., Steinem and Dowd in the New York Times.) These particular commentators are women of the first feminist generation. They’re not the younger women that reportedly came out for Clinton in New Hampshire . Because there is a generation gap between these groundbreaking feminists and (“post-feminist”?) women in their twenties, it’s hard to know whether these younger women agreed with Gloria Steinem that Clinton ’s tears were “courageous,” or whether, not (yet?) hardened by the boardroom battles of the past few decades, they simply related to Mrs. Clinton personally

What's So Funny 'Bout Original Understanding?

Yes, yes, I know, the big news is the NH primary, but I haven't the heart to blog about it. Okay, maybe a tiny bit. A week ago, if you had said that Obama would win Iowa handily and finish 3 percentage points back of Clinton in NH, I'd have said that he had the momentum in this race. But the implosion of Clinton's lead over the weekend created such high expectations for Obama that a NH close second was a disappointment, giving Clinton the opportunity to claim that her campaign has the momentum. In the next week, look for the Clinton camp to sell the story that of course Obama will win South Carolina, given how many African American voters there are in the Democratic primary there, thus claiming that Obama's victory in SC "doesn't count," and leaving her supposedly with the momentum heading into "Tsunami Tuesday." As for the Republicans, what can I say? Fred Thompson, we hardly knew ye. Now, on to the title of this entry, which is a brief fo

The Wisdom of Crowds?

Here's something fun. Point your browser to one of the websites at which people can trade "shares" in candidates' likelihood of winning the nomination, the Presidency, above a certain fraction of the Electoral College and so forth. The Iowa Electronic Markets are the best known of these "political markets," but my personal favorite is Intrade because it's the easiest to use. In any event, it's considered a sign of the wisdom of crowds (also the title of an excellent book by James Surowiecki) that these markets more accurately predict the outcomes of the Presidential race than do opinion polls. Well, it may depend on your time frame. Over on Intrade, shares of Hillary Clinton to get the Democratic nomination were trading at 70 cents (meaning if you paid 70 cents you would earn a dollar if she got the nomination and nothing if she didn't) on January 1st, but as of 10:30 p.m. on January 7th, Clinton shares were down to 28 cents (with a bid/ask

Still too hot to handle

For those of you who were terribly disappointed that you were unable to attend the "hot topics" panel on reproductive rights at the AALS last Friday, you can find a useful summary here (on the aptly named Reproductive Rights Prof Blog ). Posted by Mike Dorf

13, 14 and 15 Versus 19?

No doubt much of the resentment of Hillary Clinton's initial campaign strategy of inevitability was sparked by a combination of a) the natural desire of voters not to be taken for granted; and b) the equally natural resentment that an air of entitlement provokes. And to the extent that Senator Clinton said and did things that suggested that she as an individual had a right to be the Democratic Party's nominee, these reactions are not only understandable, but justified. However, I believe that at least part of what Senator Clinton expresses is not exactly personal. She believes that it is her turn to be President because it is about time for a woman to be President. Or at least that's how her strongest supporters---including a great many blue collar women and older women---understand the pitch. The fact that Clinton (and thus women) may be denied her (and their) turn by an African-American man complicates this narrative in a way that is interestingly familiar. The relat

Abortion, Guns & Politics at the AALS

Here are a couple of thoughts from the two "hot topics" panels in which I participated at the AALS over the last couple of days: 1) On my reproductive rights panel, Yale Law Prof Jack Balkin made the claim that the Republican Party---which he distinguished from the social conservatives who are on part of the Republican coalition---has not, over the last generation, sought the reversal of Roe v. Wade , but has instead sought to chip away at the decision while leaving a core right protected. I objected that this has been the effect of some wobbly Supreme Court Justices, but that in fact during this period, the Party has sought to overturn Roe , even though I agreed with Jack's underlying premise that overruling Roe might well be bad for the Republican Party as an institution, because that would de-energize religious conservatives and energize liberals on the issue. Nonetheless, I said that but for the flukes of who controlled the Senate and the vagaries of judicial appoin

What Victory in the Iowa Caucuses Means

What do the victories of Barack Obama and Mike Huckabee in their respective parties' Iowa caucuses mean for each man's likelihood of becoming President? Certainly not nothing, but not all that much either. Let's look at elections since 1976, when both parties started paying serious attention to Iowa. And let's omit consideration of elections in which an incumbent won re-election, because incumbents win the Iowa caucuses easily. (Even Jimmy Carter, the last incumbent to face a serious primary challenge, defeated Ted Kennedy by a nearly 2-1 margin in 1980). That leaves us with five data points: 1976, 1980, 1988, 1992, and 2000. We find that the ultimate winner of the Presidency won his party's Iowa caucuses in a contested field in at most two of these five years: George W. Bush clearly won in 2000 and Jimmy Carter beat all of his opponents in 1976, although more people voted Uncommitted than for Carter. In each of the other three years, the ultimate winner los

Kenya on Fire

Kenya, long thought to be a relative bright spot amid Africa's troubles, now threatens to follow the path of its neighbors. The U.S. press has mostly portrayed this story as a mix of electoral shenanigans and tribal rivalry, which it no doubt is, but it is something more, and familiar. As Yale Law Prof Amy Chua has written in her book World on Fire (and in scholarly articles to the same effect), throughout much of the world, and especially in the developing world, extreme violence occasionally flares against an ethnically distinct minority group that disproportionately holds economic and political power. Her examples include ethnic Chinese in Southeast Asia, Jews in Russia, whites in Zimbabwe, Tutsis in Rwanda, and Indians in East Africa and Fiji. As many of the critical reviews of Chua's work have noted, she arguably overstates her case, but there is no gainsaying that she has identified a real and dangerous phenomenon. What the Kenyan example points out is that the dynami

Lawyers, lawyers everywhere, so how 'bout a billionaire?

In my latest FindLaw column , I examine how the frontrunning Presidential candidates who are lawyers (Clinton, Edwards, Guiliani, Obama, and Romney) spin their lawyerly experience to match the key themes of their campaign and to avoid activating negative stereotypes of lawyers. The answer---except for Romney, who has a law degree but was never really a lawyer---is to portray their legal careers as a form of public service. Meanwhile, Maureen Dowd observes today that not only are all 3 Democratic frontrunners lawyers; they're all married to lawyers (or in Dowd's characteristically catty phrase, "married to lawyers who talk too much.") With so many lawyers in the field, surely there must be room for a billionaire non-lawyer, right? So goes the thinking of Mike Bloomberg and the sycophants who surround him, whispering that only he can rescue the nation from the partisan swamp. I'll be the first to concede that with the exception of his preposterous, and luckily

Dynasties and Democracy

This week, the Pakistan People's Party named Benazir Bhutto's son, Bilawal, as chairperson of the party, even though he is only 19, still in college, and will not be leaving school to become a full-time politico just yet. His father Asif Ali Zardari and two others will serve as regents in the interim. Certainly, young Bilawal has to be one of the world's first major political leaders to have an active Facebook page at the time he entered politics. It's hard not to understand and agree with Tariq Ali's response to the news: The Pakistan People's Party is being treated as a family heirloom, a property to be disposed of at the will of its leader. Nothing more, nothing less. Poor Pakistan. Poor People's Party supporters. Both deserve better than this disgusting, medieval charade. * * * That most of the PPP inner circle consists of spineless timeservers leading frustrated and melancholy lives is no excuse. All this could be transformed if inner-party democracy