Dorf on Law

I have a column posted today on FindLaw's Writ discussing the oral argument in Kennedy v. Louisiana , a case that poses the question whether executing rapists of children violates the Eighth Amendment ban on cruel and unusual punishments. In my column, I focus on some of the revealing questions posed by the Justices in their attempts to determine the stare decisis significance of an earlier case, Coker v. Georgia , in which the Supreme Court struck down the death penalty for the rape of adult women. Here, I wish to focus on a different aspect of the case that came up in oral argument: the Eighth Amendment principle that prohibits the granting of excessive discretion to a sentencing body determining whether to impose capital punishment on a particular defendant. In Furman v. Georgia , a case that had the effect of declaring all existing death penalty laws unconstitutional, the Supreme Court said that a judge or jury in charge of capital sentencing must be given more guidance...

This is a follow-up to my post yesterday on facial versus as-applied challenges in the Supreme Court. (I told you I was obsessed with this subject.) I have a hypothesis about the apparent extremity of the Court’s doctrine in this area---which makes it nearly impossible for a plaintiff to bring a successful facial challenge, except under the relatively narrow First Amendment overbreadth doctrine: I suspect that the (conservative and perhaps all of the) Justices view facial challenges as a backhanded effort by liberal advocacy groups to get more than they’re entitled to. Consider that the facial challenge issue frequently arises in death penalty cases and abortion cases. In each context, the (conservative) Justices may reason more or less as follows: These lawyers are categorically opposed to the challenged law. They don’t think the government should be [executing people/regulating this kind of abortion] at all, but they’ve chosen to point to one small alleged defect in the...

Readers of my academic work (all 7 of them) know that I have long been interested (obsessed?) with the question of the circumstances under which a court may hold a law invalid "on its face" rather than or in addition to "as applied" to particular facts. For years, the Supreme Court and lower courts have struggled with this somewhat arcane question, a struggle that has been exacerbated by the fact that it often arises as a threshold issue preliminary to the court's reaching some highly controversial substantive issue involving abortion, the death penalty, flag burning, and the other hot-button matters on which the courts are called to opine. As a result, judges and Justices with strong views on the merits (whether liberal, conservative or other) are tempted to manipulate the facial/as-applied question as a way of helping the case come out the way they want on the merits. The Roberts Court in the last year has been ESPECIALLY attentive to the facial/as-applied d...

Today, in Crawford v. Marion County Election Board , the Supreme Court applied a relaxed standard of judicial scrutiny to Indiana's law requiring voters to show a government-issued form of identification. The plurality opinion of Justice Stevens (joined by CJ Roberts and Justice Kennedy) found the state's interests in modernizing its election system, preventing fraud, and inspiring confidence in the state's electoral machinery to be sufficient to defeat the plaintiffs' challenge to the law---even though the opinion acknowledged that the record contained "no evidence of" "in-person voter impersonation at polling places" "actually occurring in Indiana at any time in its history." Because the plaintiffs had not produced concrete numbers of otherwise-eligible Indianans who would be unable to vote as a result of the law, Justice Stevens said that the facial attack on the law must fail. The political sub-text of the case was obvious. Indeed, i...

As first reported yesterday by the NY Times and then widely thereafter, in March the Justice Dep't sent letters to Congress explaining why, in its view, the CIA could engage in so-called enhanced interrogation techniques without running afoul of international and domestic law. Whether a particular method of interrogation amounts to an "outrage[] upon personal dignity" or "humiliating and degrading treatment" in violation of Common Article 3 of the Geneva Conventions regarding treatment of detainees, DOJ said, depends in part on the purpose for which the interrogation is undertaken. According to Deputy Ass't AG Brian A. Benczkowski's letter: "The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act.” There is undoubtedly a certain logic to this line of reasoning. For example, if we were not...

Over on FindLaw , Professors Vik Amar and Alan Brownstein have a take on the Summum case that differs from my take (as expressed in my own FindLaw column on the topic a couple of weeks ago) in two key essentials. First, Amar and Brownstein say that government property can be a public forum---and thus the First Amendment can bar the government from discriminating based on the content of private speech in that forum---even though the private speech takes the form of permanent rather than temporary private statements. Second, they say that when the government opens up public property to the display of a wide variety of messages, some of which are inconsistent with one another, it cannot plausibly claim that this amounts to "government speech" to which the strictures of the First Amendment do not apply. Both points are valid, but it's not clear to me that they are especially relevant to the actual Summum case. Let's begin with the permanence question. Amar and Brow...

On Wednesday the New York Times ran an editorial called " Million Dollar Meat ," in which it suggested that if PETA prevailed in its efforts (about which I blogged here ) to end the raising and slaughter of animals for meat, this would represent a bad result for the animals as well as for the "cultural and historical bond between humans and domesticated animals." Referring to those who disagree with this position as "radical animal-rights activists," the editorial characterized the contrary view as follows: "better for animals not to exist at all if there is a chance that they would suffer." "It will be a barren world," the Times editors lamented, "if the herds and flocks disappear in favor of meat grown in a laboratory tank." The position of the Editorial is faulty in a number of respects, of which I shall select two for elaboration, one having to do with the reality of modern "farming" and the other with the the...

Yesterday, in Virginia v. Moore , the U.S. Supreme Court held that the Fourth Amendment does not prohibit police from arresting a person on the basis of probable cause to believe that he has committed a no-arrest misdemeanor under state law. In an opinion by Justice Scalia, the Court said that (1) materials from the founding era do not support the view that the Fourth Amendment was intended to incorporate statutes, and (2) balancing intrusiveness against need (the appropriate test in the absence of evidence of the original understanding), arrest on the basis of probable cause for any crime, however minor, is reasonable, and there is no reason to change the calculus because a state chooses to protect more privacy than the Fourth Amendment, a change that would be hard to administer, in practice. The crime at issue in Moore was driving on a suspended license. The police in the case had probable cause to believe that Moore was committing this crime. Under Virginia law, however, the po...

The arrest of Ben-ami Kadish on charges of divulging nuclear and other military secrets to Israel during roughly the same period when Jonathan Pollard was doing the same will, no doubt, lead to a revival of the claim that spying for an ally is not a serious offense. Here I'll simply say for the record that this is a wildly implausible notion. We can grant that spying for an ally is not as bad as spying for an avowed enemy. Unlike the enemy, the ally can generally be expected not to use the stolen information to the direct detriment of the victim country, because the interests of the victim country and the ally generally overlap. But the key word here is "generally." The interests of the United States and Israel (or any ally) are not identical, which is why, even though we share some intelligence with Israel and other allies, we don't share all of our intelligence, which in turn is why Israel needed Pollard and (apparently) Kadish to get these particular secrets. L...

Yesterday's NY Times contained an editorial urging the Senate to take action on a bill---already passed by the House---that would, for the first time, grant federal protection to journalists to protect their sources. As the Times notes, the House version of the bill already permits the shield to be pierced for a criminal investigation or prosecution, where other means of obtaining the information have been exhausted (and in some other circumstances), and that the Senate version might be still more permeable. Not surprisingly, the Times editorial does not identify what may be a substantial omission from the bill, because it is an omission that does not work against the Times. The bill would only provide protection for people who earn their living as journalists. Here's the definition of a "covered person" from the House bill: a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that conc...

P.E.T.A. (People for the Ethical Treatment of Animals) has reportedly announced that it will award a million-dollars to anyone who can design a commercially viable method for producing meat from a test-tube by the year 2012. "In-vitro meat production would use animal stem cells that would be placed in a medium to grow and reproduce. The result would mimic flesh and could be cooked and eaten." The New York Times reported on Monday that offering this prize was very controversial within PETA, with one member expressing the view that " as the largest animal rights organization in the world, it's our job to introduce the philosophy and hammer it home that animals are not ours to eat." In this blog post, I want to take up the question of whether the production of "in vitro meat" is objectionable from the point of view of animal rights. Let me offer an argument that I view as a variation on the position expressed above by the PETA member who viewed PETA...

In a blog post last week on the Supreme Court decision in the lethal injection case, Baze v. Rees , I drew a parallel between the Court's approach to medical evidence there and its approach in last year's Partial Birth Abortion Ban Act decision in Gonzales v. Carhart . Both rulings, I said, showed a willingness to defer to legislatures on medical judgments, even where serious doubts are raised that the legislative judgment rests on medical grounds. In my latest FindLaw column I draw another parallel between Baze and Carhart . Both cases, I note, permit interests in "dignity" to prevail over more tangible interests---avoidance of excruciating pain in one case, avoidance of health risks in the other. Here I'll note an irony on which I don't dwell in the column. It seems that dignity only counts as a constitutionally significant interest in the Supreme Court's jurisprudence when offered as a ground for opposing a rights claim. For example, in Cruzan v...

According to this story on the Huffington Post, a McCain fundraising letter quotes a Hamas leader as hoping for an Obama victory. Even though Senator Obama has condemned Hamas (a point omitted from the fundraising letter), the implication is clear: If a terrorist organization is hoping for an Obama victory, then America-loving Americans should try to defeat him. This view is not entirely misguided. If an organization whose goals and tactics I find deplorable supports a candidate, that is a reason to examine whether the candidate shares the goals and tactics I deplore. But in the particular case, if we examine Obama's record and statements, we find absolutely nothing in them to suggest common ground with Hamas. Indeed, we need look no further than the latest rantings of al Qaeda's Ayman al Zawahri for confirmation of the proposition that one shouldn't necessarily assume the opposite of what terrible people believe. Zawahri says that the United States has no good option...

That was Stalin's famous rhetorical question aimed at dismissing the power of the Pope. Given the important role that the Catholic Church played in ending the Communist system that Stalin imposed on eastern Europe (especially in Poland), Stalin's dismissal of the Papacy's soft power was obviously misguided then, and it would remain so now. Even as church attendance has plummeted in Europe over the last two generations, membership in the developing world has remained strong. Thus, what the Pope says is important. And the thing he said yesterday that garnered the most attention was widely reported as a jab at secularism in the United States. In fact, the Pope's statements---with which I'll go on to disagree somewhat below---was a bit more nuanced. Here's a question the Pope was asked on his plane, and his answer: Vatican newspaper writer Andrea Tornielli : Holy Father, in receiving the new ambassador of the United States of America, you cast in a positive lig...

The Supreme Court today handed down Baze v. Rees , holding that the three-drug "cocktail" used by Kentucky and the vast majority of other lethal injection states to perform executions, does not pose a sufficiently "substantial risk of serious harm." If a method of execution, when properly carried out, is humane, then it does not become categorically inhumane, the plurality opinion (by CJ Roberts joined by Kennedy and Alito) said, merely because there exists "a slightly or marginally safer alternative." There are numerous interesting aspects to this case (and I'll be talking about some of them with Nina Totenberg on NPR later today), but here I'll just flag one---the connection with a case the Court does not cite: Gonzales v. Carhart , last year's decision upholding the federal Partial Birth Abortion Ban Act. There, recall, the argument was made by the plaintiffs that the Act was unconstitutional for its failure to include a health exception, ...

Yesterday, in a surprisingly touching ceremony, my Columbia Law School basketball jersey was "retired." Backstory: For the last seven years, Columbia and NYU law schools have had an annual basketball game between student teams to raise money for public interest law, with a 10-minute faculty game at halftime; I've played in each of these games, earning a kind of incredibly minor celebrity status as a result (as documented, for example, here ); last week, I played in my last such game, both because of my impending move to Cornell and the nagging injuries that go with my advanced age (even older than Robert Parish when he retired). Today, a colleague of mine noted that I'm probably the only member of an American law school faculty to have his basketball jersey retired. If so, that's because of the ridiculousness of the category. Which brings us, once again, to the topic of law school rankings. No doubt, every law school dean could find some set of criteria by wh...

Last week, Senator Barack Obama provided some material for controversy-addicts awaiting their next fix: he suggested that people suffering economic woes for a long period of time become bitter and therefore cling to religion, guns, and anti-immigrant/outsider sentiment. Before long, both Hillary and McCain pounced on these statements as evidencing Obama's elitist and patronizing view of the world. Hillary produced the memorable one-liner, "people embrace faith not because they are materially poor but because they are spiritually rich." Right-wing columnist William Kristol then published an op/ed in the New York Times on Monday insisting that Obama's statement mattered (and should accordingly be discussed and fretted over some more) because it unmasked him -- he pretends to respect faith, gun rights, and working class concerns about immigration, but when he faces an audience of friendly listeners at a San Francisco fundraiser, he lets his hair down and admits that ...

[ This is a little longer than usual. Seeing that it is more a personal narrative than a dense theoretical musing I hope you will indulge me. Thanks ] The title read: "Presidential Guard Attacks Barghouti 's Children". A picture of Barghouti's son was attached to the article;* he looked much older than when I last saw him six years ago. Marwan Barghouti is a prominent Palestinian leader. A moderate, that turned to extremism during the "Second Palestinian Intifada" (2001/2). He was captured by Israeli forces in 2002 and tried for ordering terrorist attacks. He was convicted and has been incarcerated ever since. Barghouti was tried in a civil court (rather than a military court), which is unusual for Palestinians tried for security offenses. It seems that the idea, which was pathetically executed, was to use his trial as a means to vicariously try the Palestinian Authority and Palestinian terror, which at the time were running rampant. This was during the afte...

Responding to calls for UC Berkeley to fire John Yoo, Boalt Dean Chris Edley (who taught me administrative law 20 years ago) has a nice defense of academic freedom here . Edley repeats the standard (and well-founded) criticisms of Yoo's performance as a lawyer for the Office of Legal Counsel but concludes that under the relevant university statutes, this isn't a close case. Yoo has tenure and, Edley suggests, tenure's protection for someone like Yoo is not merely an example of a rule that is justified in the aggregate leading to bad results in a particular case; rather, protecting someone like Yoo, Edley argues, is the very point of tenure. I should say for the record that I agree with Edley's bottom line. However, I actually am not a big believer in tenure as an institution peculiar to universities: Yes, having tenure makes faculty free to speak their minds, but habits of mind are formed when junior faculty are trying to get tenure, and thus encouraged to be inoffen...

The emergence and disappearance of immigration as an issue in the Republican (and to a much lesser degree and in the opposite direction, the Democratic) primaries, coupled with the failure of immigration reform last year, does not mean that the underlying problems---a porous southern border; the lax enforcement of labor laws that makes hiring undocumented workers attractive to employers in the first place; etc---are going away. That's the big picture. But there's also a small picture, and it's a disturbing one, in which those parts of the federal bureaucracy responsible for processing immigration (including citizenship) applications subject immigrants to petty indignities and risk of deportation for no other apparent reason than institutional callousness. Today's NY Times front page carries a story describing how legal residents risk deportation for technical errors in complying with the maze of requirements when they attempt to become citizens. And a couple of week...

Even after the public spectacle of Joe Lieberman whispering in John McCain's ear to inform him that Iran is not arming al Qaeda in Iraq, Sen. McCain repeated the error earlier this week in a Senate Armed Services Committee hearing. McCain's recidivism on this issue tends to rule out the possibility that he just "misspoke" in the way that anybody---especially somebody who is sleep-deprived or jet-lagged---can occasionally become tongue-tied. I'll identify three possible explanations for the repeated error: 1) McCain's age. This seems unlikely. McCain is 71, substantially older than either Hillary Clinton (60) or Barack Obama (46), but not so old that one would expect to see dementia or much age-related memory loss. Moreover, while McCain routinely confuses Shiites and Sunnis, he doesn't confuse other categories, like liberals and conservatives, or Ohio and Iowa. 2) McCain's worldview. In the neocon view of the Middle East, ancient sectarian battle ...

That's what NYC Mayor Michael Bloomberg termed the decision of New York State legislative leaders (i.e., Assembly Speaker Sheldon Silver) to kill the plan for "congestion pricing" in mid-to-lower Manhattan without even a floor vote. Bloomberg's full statement (available here via the Village Voice) describes the environmental and economic benefits that congestion pricing would have achieved, and vows both to pursue other options and one day to fight again. It's a good argument but one that doesn't seem to confront the root psychological cause of the defeat of the plan. Congestion pricing was designed as a Pigovian tax: The marginal cost of each additional vehicle in mid-to-lower Manhattan is felt in part by each additional driver and her passengers, but in even larger part by others: more traffic means it takes longer to get to one's destination and more pollution. This is what economists call a negative externality. By making drivers pay extra to drive in...