Showing posts from March, 2008

The Seven Aphorisms

Today the Supreme Court granted certiorari in an amusing but potentially important case from the 10th Circuit, Summum v. Pleasant Grove City. (10th Circuit panel decision here , preceded by dissent from denial of en banc rehearing and response to that denial). A city park in Pleasant Grove City, Utah, contains a 10 Commandment monument and some other displays and monuments that were donated by private organizations. Summum is a religious organization headquartered in Salt Lake City. It sought to place a monument containing the "Seven Aphorisms"---rival principles that Summumists (Summumians? Summumistas?) believe were given to Moses by God and then destroyed before the 10 Commandments were given as a second-best substitute. They're explained here . (You have to admire a religion that has as a tenet "Nothing rests; everything moves; everything vibrates." Heraclitus meets string theory!) The city turned Summum down; Summum sued and eventually won in the 1

ExpressO and Expressways

Academic legal journals differ from academic journals in most other fields in two principal ways: 1) Most academic legal journals are student-edited; and 2) authors can submit to multiple legal academic journals simultaneously. By contrast, in most other fields, the journals are faculty-edited (i.e., "peer-reviewed") and, perhaps as a result, authors can only submit to one journal at a time. If your first-choice journal rejects your article (and doesn't give you an opportunity to revise and re-submit), only then can you submit your article to a second journal and perhaps thereafter, successive journals. Most academics in fields other than law, and quite a few legal academics, find it bizarre that students--typically students in their second year of law school--make decisions about what articles to publish. Having published articles in both student-edited and peer-reviewed journals, including faculty-edited law journals and faculty-edited physics journals (back before I

Hillary Clinton and the Issues

In the current heated political climate, most of the discussion about the Clinton and Obama campaigns has focused on tactics, strategy, and the potential harm to the Democratic Party of a continuation of Clinton's "kitchen sink" approach (or, as one pundit has described it, the "Tonya Harding Strategy"). As much fun as it is to talk about such issues, I've been thinking lately about the candidates' policy positions. I guess someone ought to. Throughout the campaign, I've been genuinely confused by the accepted wisdom that both Clinton and Obama ought to be equally acceptable to a liberal/progressive like me. Before the gloves came off, people were talking about a Dream Ticket of Clinton and Obama, or Obama and Clinton. All I could think was, "Are they kidding? Why would I want Clinton to be president or vice president? Obama wasn't my first choice, but he's at least arguably motivated by the things that concern me. But Clinton ?!

Spitzer's Kristen, The Blogosphere And The Law Of Defamation

In order to prove and recover for defamation, public figures and officials must prove that the harmful publication of the erroneous information was done with “real malice”. In contrast, for private persons, demonstrating negligence will suffice. There are several justifications for this disparity. One of these justifications is that public figures and officials, unlike private persons, have access to the mass media, allowing them to defend their good name and control their public persona. In contrast, the presumption is that when the media shines a spotlight on a private person, that person is as helpless and powerless as a cork at sea. In the aftermath of the Spitzer scandal I ask myself whether this factual observation, underpinning the "access justification” for the private/public distinction in the law of defamation, is as valid as it once was. For me, the most interesting aspect of the Spitzer scandal was the role played by Ashley Dupre's (AKA "Kristen") MySpace

Lawyer Jokes Work in Either Direction

How about those yuksters up at the Supreme Court? In yesterday's oral argument in Indiana v. Edwards , Justices Kennedy and Scalia each made fun of lawyers (sort of), but to support different results. The case presents the question of what standard of competency a defendant must meet in order to waive his right to counsel. Current law indicates that competency to stand trial is the same standard as competency to waive counsel. This is odd. To be competent to stand trial, one must be able to understand the proceedings and assist in his own defense. A defendant could satisfy that standard and still be unable actually defend himself. By way of analogy, I think I would be competent to assist a professional basketball team. I understand the game reasonably well and I could assist by doing things like getting towels and Gatorade for the players. But I certainly am not competent actually to play in a professional basketball game. Justice Kennedy took a somewhat different tack at

More Medellin Musings

Justice Breyer's dissent in Medellin v. Texas provides textual, historical and practical grounds to reject the majority's presumption that, absent language to the contrary, a treaty should be deemed non-self-executing. As I noted yesterday ( here ), Breyer's best point is a straightforward reading of the Supremacy Clause, which makes treaties "the supreme Law of the Land." But in addition to the points made by Justice Breyer, another argument has been advanced by critics of the Medellin ruling. Here is what my colleague Lori Damrosch, quoted in USA Today , had to say: The court admits that the international judgment is binding on the United States in international law, but it does not accept that the courts of Texas are bound to carry it out. ... This perplexing result will make it more difficult for the United States to insist on compliance by other states … under the Vienna Convention and under the provisions of at least 70 other (comparable) treaties. Why

Supreme Court to Bush: Don't Mess With Texas

Today's Supreme Court decision in Medellin v. Texas has something for everyone. To greatly oversimplify, Texas violated Medellin's rights under the Vienna Convention on Consular Relations when it failed to inform him, upon arrest, of his right, as a foreign national, to consult with diplomatic authorities from Mexico. Medellin was eventually convicted of murder and sentenced to death, but then on state collateral review, he raised his Vienna Convention objection for the first time. That was too late, under the Texas rules, and so the Texas courts didn't reach the merits of his claim. Meanwhile, the International Court of Justice (ICJ) said that states are entitled to enforce reasonable procedural rules affecting how someone raises a Vienna Convention claim, but that rules like the Texas rule are not reasonable under the circumstances. (The best argument for the ICJ position is that the procedural default is a Catch-22: The prisoner doesn't raise his objection in a


As the American death toll in Iraq topped 4,000 just on the heels of the 5th anniversary of the start of the war, Vice President Cheney had this to say : The president carries the biggest burden, obviously . . . He's the one who has to make the decision to commit young Americans, but we are fortunate to have a group of men and women, the all-volunteer force, who voluntarily put on the uniform and go in harm's way for the rest of us. The bit about the burden on President Bush relative to the troops and their families is simply too preposterous to discuss, but the invocation of the volunteer nature of our military force merits a few words. Cheney's point in using both the adjective and adverb form of "volunteer" seems to be something like this: Don't feel too bad for the dead, the wounded, the traumatized, and the merely extremely disrupted. They knew what they were getting into. Very nice. But there is also a serious point here too, and it connects, albeit o

Second Amendment Minimalism?

As promised last week, my latest FindLaw column argues that there's almost no way for the Supreme Court to strike down the challenged law in D.C. v. Heller--- as it appears inclined to do---without addressing both the standard of judicial review and the question whether the Second Amendment is incorporated against the States. Unless that is, the Court writes the sort of opinion that it wrote in several important cases last Term, purporting to adhere to precedents but in fact disregarding them or making other, equally unpersuasive moves. Here I'll raise a question about CJ Roberts and the Roberts Court more broadly. What is attractive to him/them about this brand of faux minimalism (which even Justice Scalia decried last Term in roughly the same way)? One possibility is that Roberts, Alito and occasionally Kennedy are in fact maximalists who feel the need to pose as minimalists to maintain an image of moderation consistent with their statements at their respective confirmati

State Courts, Inc.

Here's a brief follow-up to Neil's post yesterday on Jeff Rosen's NY Times magazine article on the Supreme Court. The Chamber of Commerce has not restricted its activity to training business-side lawyers for U.S. Supreme Court arguments. It has also been active at the state court level in getting business-friendly judges elected. In the Wall Street Journal today, James Sample of the Brennan Center observes: "The U.S. Chamber of Commerce got involved in 13 judicial races in 2004 and won 12." Sample's larger point (available here ) is that the flood of money in state judicial elections is creating an extraordinary appearance (and probably the reality) of impropriety. Worth a read. Posted by Mike Dorf

The Supreme Court and the Chamber of Commerce

This past Sunday, the New York Times Magazine printed an article by my GW colleague Jeffrey Rosen provocatively titled, "Supreme Court, Inc.: How the nation's highest court became increasingly receptive to the arguments of American business." In the article, Rosen describes a decades-long effort by the U.S. Chamber of Commerce to change legal jurisprudence in this country such that the Chamber's members (that is, large American corporations) would be more likely to win in court -- and by implication, less likely to be sued in the first place. Rosen's article is characteristically well written and engaging, and I learned a lot from it. One can reasonably question whether Rosen puts too much emphasis on the importance of Supreme Court litigators, since he spends a great deal of time describing how the Chamber went about hiring the most brilliant legal minds it could find -- many, like Rosen, former Supreme Court clerks and thus presumptively brilliant. These star

A Second-Best Opinion

Last September I argued ( here ) that peremptory challenges are a gigantic waste of time. But so long as we have them, courts will be faced on occasion with the task of deciding whether one side or the other has used its peremptory challenges unconstitutionally. Yesterday, in Snyder v. Louisiana , did trial courts and trial lawyers a great service in actually grappling with the details of one such case. Snyder was convicted of first-degree murder in Louisiana after the prosecutor used his peremptory challenges to strike all 5 of the 36 prospective jurors who were African American. Snyder's lawyer filed a timely objection but the trial judge credited the prosecutor's supposedly race-neutral explanation. Normally that would have been the end of the matter, as a judge's findings of fact---including the factual question whether a peremptory challenge was race-based---are entitled to substantial deference on appeal. But the Supreme Court made clear yesterday that there is a

Guns and States

Yesterday's oral argument in D.C. v. Heller (audio here and transcript here ) strongly suggests that there are five votes for interpreting the Second Amendment as protecting the right of individuals to possess and use firearms for self-defense against human (and per Justice Kennedy's suggestion) non-human attackers. (Justice Kennedy suggested in a rhetorical question that settlers out beyond the reach of organized forces needed firearms to protect themselves from "hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that"). As numerous commentators have already indicated, if the Court does indeed find an individual right of private possession and use of firearms, that will be the beginning, rather than the end of the matter. One thing the Court will have to decide is what standard of judicial review applies to laws infringing the right. Another question will be whether the right is incorporated against the States or only applies agains

Why Rev. Wright's Comments Do Not Disqualify Senator Obama

Attention has recently focused on the incendiary comments of Rev. Jeremiah Wright, Barack Obama's pastor at Trinity for many years. In the clips -- shown repeatedly on the news and on web sites -- Rev. Wright expresses contempt and rage at rich whites who he believes control the country and at the U.S. itself. He also praises Obama as the only candidate who knows what it is like to be black in America. Predictably, questions about Senator Obama's own racial views and his own patriotism have arisen in the wake of these clips. Some talking heads have suggested, in fact, that his affiliation with a person who expressed such offensive sentiments, apparently on more than one occasion, may disqualify him from seeking office. Such claims are foolish. And if we all pause to consider them for a moment, their patent absurdity will become inescapable. Barack Obama is a grownup, not a naive child who clings only to people who are perfect and who view the world exactly as he does. As he exp

Stop the Madness

With March Madness nearly upon us, this might be a good time to reflect upon the effects of the "one and done" phenomenon. A couple of years ago, the NBA changed its rules so that rookies are not eligible until they are at least 19. As a result, high school players who would have gone right to the pros (think Kobe Bryant, Kevin Garnett and Lebron James) now must wait a year, and so most of them end up playing college ball for exactly one year before declaring themselves eligible for the draft. Reasonable minds can differ over whether the 19-year age minimum is, on balance, a good idea. The NBA adopted it in part because it wanted (slightly) more mature players. Yet there are many reasons in principle to think the policy does more harm than good, aptly summarized by the Big O, NBA legend Oscar Robertson, in a NY Times op-ed last year . To be sure, the minimum age of 19 has been defended on the ground that it leads star high school basketball players to go to college for a

Apologies to Email Subscribers for Reruns

For reasons I don't yet understand, subscribers to Dorf on Law by email have been getting emailed copies of blog posts that are weeks old and that they should have received long ago. I'll look into this and will, I hope, fix it soon. Posted by Mike Dorf

March Madness on Dorf on Law

For those of you who lack access to a NCAA tourney pool of your own---or more likely, for those of you who think you'll do better competing against a bunch of law geeks than the people at your office---I've created a "Dorf on Law" group pool. It costs nothing to join and you win nothing if you fill out the winning bracket, nothing that is, other than everlasting glory, i.e., kudos on this blog. To sign up, you first need to click here . That will take you to the ESPN tourney page. If you don't have an ESPN username and password, you'll need to create one. This process takes about a minute. I advise you to uncheck the defaults, which sign you up for spam. After you pick a username and password, create your bracket and click on join a group. Search for "Dorf on Law," which should come up right away. (I had to pick a group motto, so I chose a quotation from CJ John Marshall.) Then click to join and you're done. Good luck! Posted by Mike Dorf

Cruel, Inhuman or Degrading Treatment and the Right to Keep and Bear Arms

In his post on Friday , my new co-blogger Ori Herstein takes issue with Jeremy Waldron's reading of the language in various human rights documents prohibiting "cruel, inhuman or degrading" treatment. The colloquy in the comments---between readers, including Waldron himself, and Herstein---is well worth reading. The question that divides Herstein, Waldron, Marty Lederman, and others is whether an authoritative text forbidding "A or B" forbids conduct that is just A and also forbids conduct that is just B (Waldron and others) or whether it only forbids conduct that is "A and B" (Herstein). At first blush, Waldron seems obviously right about this as a matter of simple logic. Forbidding "A or B" means forbidding that which is A or that which is B. If someone says "I'd like strawberry sorbet. I don't want coconut sorbet or lemon sorbet," it would be inaccurate to say you could abide her wishes by providing her a dish of coco

Jeremy Waldron at Columbia

Yesterday was the annual Law and Philosophy talk at Columbia University Law School. The guest speaker was NYU's Jeremy Waldron. The title of the lecture was: "Inhuman and Degrading Treatment: a Non-Realist View", which boiled down to observations on the meaning and a mapping of possible interpretations of the terms "inhuman" and "degrading"; key terms in most legal prohibitions on torture in national and international law. There was also a basic survey of interpretative theories of legal standards (objective, contextual and deliberative). Waldron's is an atomistic reading of the rule - every term is read in isolation. If an action falls under one of the prohibiting terms ("inhuman" or "degrading") the conduct is prohibited. I think that a holistic interpretive approach is warranted. The rule should not be read as a prohibition on 1) “inhuman" treatment or 2) "degrading" treatment, but rather as a single pro

Hiding in Plain Sight

Spitzer's Scarlet Number scandal has rekindled a very old debate about the proper legal treatment of prostitution. Is it a victimless crime? Assuming, as seems obviously right, that a great many young women who trade sex for money do so reluctantly, under at least economic duress, is criminalization the right answer? Should law enforcement resources be targeted at pimps, prostitutes, and/or---as Eliot Spitzer himself contended not too long ago---johns? These are important policy questions to which I do not have any easy answers, but I do want to point out what seems to me a mistaken assumption in this debate: The assumption is that prostitution is, as a matter of positive law, forbidden, and the hard questions are normative. Of course, I do not deny that prostitution is illegal in every state (save parts of Nevada) and the District of Columbia, nor do I deny that the Mann Act and other federal criminal statutes apply to some acts of prostitution. So I admit that the "law

And the winner is . . .

The Name-the-Spitzer-Scandal Contest produced a number of fine entries, which you can read in the comments section. (Note to email subscribers. You'll have to go to the web version to see the comments.) I would have been happy to defer to the consensus choice of readers, but none seemed to emerge. And so I have to make the call myself. I want to begin by criticizing my own initial entry, "Eliot Mess" or "Eliot's Mess." Although this does have multiple layers of meaning, it's at bottom just a play on the Governor's name and the fact that he used to be a hard-nosed prosecutor. It fails to capture what was ultimately the core of the scandal and the reason Spitzer could not survive it: hypocrisy. Spitzer's whole brand was a kind of squeaky cleanness, and the reference to Eliot Ness certainly captures that. However, "mess" is just too generic to capture that what Spitzer did was to violate the very norms he so assiduously sought to

More Academic Esoterica

Meanwhile, back on the Volokh Conspiracy , my friend Randy Barnett is peeved at my characterization of his prior response to my FindLaw column as "academic esoterica." But I stand by my characterization, at least for the blogosphere. As one snarky comment on one of my earlier posts on this point noted, you know you've left the domain of a discussion for general readers when you are accused of error for confusing "ambiguity" with "vagueness," two words that most English language thesauruses treat as synonyms. Still, to avoid hurt feelings or misunderstanding from any ambiguity and/or vagueness in my earlier comments, I'll say now that I think that the sorts of arguments that Barnett and others make in favor of their particular brand of originalism should be taken seriously and met. I just don't think that the best forum for doing so is this blog. And thus Barnett is not being entirely fair when he quotes one paragraph of one of my blog po

Rashomon With a Vengeance

I have been struck recently by how differently Clinton supporters and Obama supporters view news coverage of the campaign. Clinton supporters are absolutely sure that the news coverage is strongly anti-Clinton, and often in a sexist manner. Meanwhile, Obama supporters see just the opposite: For example, a front-page NY Times story treats as breaking news the fact that Obama's first book admitted occasional cocaine usage in high school and college, with the body of the story going on about how his contemporaries don't recall this being so. What a lame excuse to tout cocaine usage. Or take the fact that today's front page of the NY Times has no story on Obama's victory yesterday in Mississippi, buying into the Clinton narrative that states with a lot of black people (or a lot of highly educated people or whatever) don't "count." I don't bring this up to rebut the Clinton camp's arguments so much as to confirm what psychologists have long known: Peopl

Contest: Name the Spitzer Scandal

Every good sex scandal eventually generates its share of fascinating legal questions, but first, the scandal needs a name. I'll reveal my own choice at the end of this entry (no peaking!) but first some general thoughts. "Spitzergate" is already making its way into the news but it's just sooooooo derivative, as is anything with "gate" in it. Indeed, at this point, calling any scandal a "gate" should be the equivalent of not giving the scandal a name at all, as "gate" has become a working synonym for "scandal." What makes for a good scandal name? The name should be catchy, it should encapsulate what the scandal is all about, and if possible, it should have multiple layers of meaning. That's why I always favored "The Lewinsky Affair" back in the 1990s. The rhythm called to mind less comic episodes like "The Dreyfus Affair," even as "affair" had its clear double meaning. The NY Post headline

Can't We All Just Get Along?

In an extended post on the Volokh Conspiracy , Randy Barnett takes issue with both my account of originalism and my defense of living Constitutionalism. I try to avoid academic esoterica in my blog posts, so I'm not going to give a point-by-point rebuttal here. Instead, I'll use this post to express some skepticism about the utility of the term "originalism" once it is rendered compatible with living Constitutionalism, as Barnett and some others want to render it. The key move for "compatibilists" (not my term) is to say that a good originalist can leave space for the living Constitution once the original meaning runs out. Barnett gives a nice example: To decide whether thermal imaging is a search for Fourth Amendment purposes, we can't consult the original public meaning of the term "search," because the term had no content with respect to that question in 1791. We are thus in the domain of what Keith Whittington calls "construction,&

It's Alive. It's Alive!

In my latest FindLaw column , I use a recent speech by Justice Scalia condemning "the living Constitution" as an occasion to defend the metaphor and the philosophy for which it stands. My core point in the column is that Scalia and other originalists mischaracterize the position of "living Constitutionalists" as seeking to displace the Constitution with their own values rather than being bound by the Constitution and the original understanding. You can read the column to see whether you think I make a persuasive case. Here I want to tackle a related objection that Justice Scalia has made to non-originalist methods of constitutional interpretation. He has set it out most forcefully in his 1989 article in the Cincinnati Law Review, Originalism: The Lesser Evil . Here is what Justice Scalia says: Apart from the frailty of its theoretical underpinning, nonoriginalism confronts a practical difficulty reminiscent of the truism of elective politics that “You can'

She Said, He Said

In my entry over the weekend , I described what I called the facts of Steele v. Isikoff. In fact, the case was decided on a motion to dismiss, and so these were merely the plaintiff's allegations, assumed to be true by the court for purposes of deciding the case. Michael Isikoff emailed me objecting to the characterization. Isikoff and Newsweek alleged in their answer that there was never a deal to keep Steele's comments off the record. A fair point. I apologize for the misimpression. In his email to me, Isikoff also pointed out that the case had an alternative holding---namely, that even had there been an enforceable contract, it would not have been binding because Steele planned to lie. That's also true but not especially relevant. When a court offers two reasons for its decision, either of which would be independently sufficient to sustain the result, they are both treated as the holding of the case. This principle is set forth in comment o to section 27 of the Re

Democracy (Fetishism) in America

The debate over whether to initiate new primaries in Florida and Michigan demonstrates, once again, the almost sacred status bestowed on arguments from democracy, elections and the principle of majority-rule. In recent American politics arguments anchored in these institutions have often functioned as trump cards - once they are drawn all debate must end. After all, who among us is against democracy? Lately this dynamic is found not only in the commonly held view that Senator Barack Obama simply cannot oppose the inclusion of Florida and Michigan in the delegates tally or resist the alternative of a new vote, but also in the notion that the super delegates to the Democratic Party's convention must not cast their votes in defiance of the sanctity of the majority's vote; even though the very reason for having super delegates is to supplement and at times even override the outcome of the majority. This fetishism with voting, elections and "democracy" has characterized

Monsters & Contracts

What goes around comes around. President Clinton appointed Judge Colleen Kollar-Kotelly to the federal district court in 1997. Three years later, she had occasion to rule on a contract action by Julie Hyatt Steele against Newsweek, the Washington Post, and reporter Michael Isikoff. Steele talked to Isikoff about the alleged harassment and/or relationship between President Clinton and Kathleen Willey. Steele and Isikoff agreed that their discussion was "off the record," but Isikoff's story printed her name and statements anyway. Steele sued for breach of contract. After rejecting the defendants' argument that the First Amendment protects a reporter in naming sources regardless of any agreement with those sources, Judge Kollar-Kotelly nonetheless ruled for the defendants. She held that under Virginia common law, an agreement between a reporter and a source that the latter's comments are "off the record" is not meant to create a legally enforceable c

"These Shadowy Groups"

During the 2004 Presidential election campaign, the Swift Boat Veterans For Truth damaged not only John Kerry's White House prospects but also the image of so-called "527" organizations, so named for the section of the U.S. Tax Code that governs them. The Bush campaign never endorsed the Swift Boat smears, but it never fully denounced them either (even as Bush said that he respected Kerry's Vietnam War service). Bush instead denounced what he and his spokespeople called "shadowy 527 groups." There are, however, two very different problems with 527s. One problem, the one dramatized by the Swift Boat ads, is that they can lie with impunity. They say things that the campaign of the opposing candidate or party can't say directly without fear of blowback. The second problem is that 527s facilitate evasion of campaign finance limits. Wealthy individuals and groups can pour unlimited funds into political advertising by 527s, so long as they don't coor

Paying for High Grades and Behavioral Economics

I have just finished reading a very entertaining and provocative book by Dan Ariely, called Predictably Irrational . It provides an overview of behavioral economics, an approach to human behavior within the economics discipline that rejects the neoclassical view that all (or even most) human behavior is rational. Ariely recounts wonderful experiments that demonstrate the degree to which human behavior is irrational but predictably so (hence the title). By knowing our own rational shortcomings, he argues, we can design our world to produce better outcomes. I highly recommend the book, in part because the experiments are often amusing and sometimes shocking. In one experiment, for example, college students are asked a series of questions about their sexual proclivities under two distinct conditions: in one, the students are simply answering the questions in a calm state; in the other -- and I am not making this up -- the students are, by instruction, masturbating to pornography, havi