Showing posts from May, 2008

The Rules Committee

I've been sitting here fascinated by the debate in front of the Rules & Bylaws Committee of the Democratic Party, and wondering why there was such a lack of coordination between the advocates for the Florida and Michigan motions. The Florida proposal was well-reasoned and based in the rules, while the Michigan proposal was strident and really didn't offer the committee a principled resolution. My bet, however, is that the Florida "Ausman" proposal is going to be adopted in full, with 100% of the superdelegates seated and a 50% seating of the pledged delegates; that the same remedy will be applied to Michigan; and that the Michigan delegate votes will be split 34-30 between Clinton and Obama. I offer no prediction on whether it's half votes for all, or full votes for half. I offer no prediction on the Florida split. Other entertaining bits: the tension between Harold Ickes and James Roosevelt. Do you think that they fought over a rattle while Harold's dad a

The Professional Literature System of the American Legal Academy – Why Has It Not Been Fixed Already?

We are now well into the aftermath of the law review submission season. The dust has settled on everyone's submissions and all, from the hopeful students to the Ivy League professors, know how well they did on the law review market. It is now time for both aspiring and established legal academics alike to complain and reflect critically about the student-run system of law reviews. Of course, there is nothing novel in these critiques; by now they are well-known and widely shared. There is no need to reinvent the wheel in order to fix many of the problems with the current law review system. The academic profession long ago found a better, if far from perfect, approach to academic publications – the blind peer-review system. For example, in a past post Michael Dorf suggested a model along these lines. Seeing that the system of professional publication of the American legal academy has been broken for some time now, the real puzzle in my eyes is not how to fix it but rather why it was

Gubernatorial Activism

I have watched with amusement over the years as the charge of "judicial activism" has morphed from meaning something like "a judicial decision to overturn the will of the people" into something more like "a judicial decision the speaker doesn't like." A nice recent example of the latter was in Sen. McCain's May 6 speech , in which he condemned Kelo as an instance of judicial activism---even though the Kelo case left to elected bodies the decision whether to use the power of eminent domain for redevelopment projects. It was the losing side in Kelo that sought intervention by the courts to block the political process. Kelo may or may not have been rightly decided. ( I happen to think it was rightly decided, although I thought the New London plan was a bad idea.) But if it was wrong, that is not because it was an activist decision, unless "activist" is now simply a synonym for wrong. Meanwhile, it turns out that charges of activism h

Nobody Likes a Sore Loser

At the end of Tuesday night's Western Conference final game 4, Brent Barry attempted a 3-point shot that would have given his San Antonio Spurs the victory and tied the series 2-2. Barry missed badly, but not before he appeared to have been fouled by Los Angeles Lakers guard Derek Fisher. Under the NBA's "continuation" rule, Barry would have been awarded three free throws with no time on the clock, and Barry, an excellent free throw shooter, could well have won the game right there. To make matters worse, the referee who did not call a foul was Joey Crawford, who has had a stormy relationship with the Spurs---most famously calling a technical foul on Spurs All-Star Tim Duncan for laughing while seated on the bench. Yet to their great credit, the Spurs have not complained about the non-call. To be sure, their case would not be especially strong. For one thing, it's not entirely clear that Fisher fouled Barry. Barry pump-faked, Fisher jumped, but then Barry dr

Hearsay, the Sixth Amendment, and the Presumption of Innocence

In my FindLaw column today, I talk about Giles v. California , a case that the U.S. Supreme Court is currently considering. The case asks whether a murder defendant suffers a Sixth Amendment violation when the deceased victim's earlier statements (accusing the defendant of a prior assault) are admitted into evidence, given the defendant's inability to cross-examine the victim about her statements. The column's focus is on explaining the relationship between hearsay (out-of-court statements offered into evidence as proof of what the statements assert) and the Sixth Amendment right of criminal defendants to be "confronted" with the witnesses against them (a right that ordinarily includes cross-examination). The column also discusses the rigid originalism that characterizes at least four of the Justices' thinking about this relationship, as evidenced during oral argument. In this post, however, I want to discuss a different aspect of the Sixth Amendment issue


The Supreme Court decided two employment discrimination cases today involving retaliation. In Gomez-Perez v. Potter the Court found that as applied to federal-sector employees, the Age Discrimination in Employment Act (ADEA) forbids retaliation against employees for complaining about age discrimination, while in CBOCS West, Inc. v. Humphries , the Court found a similar prohibition on retaliation against employees who complain about race discrimination under 42 U.S.C. sec. 1981. Interestingly, Justice Alito wrote the majority opinion in Gomez-Perez and joined the majority in CBOCS , while CJ Roberts dissented in Gomez-Perez and joined the majority in CBOCS . Only Justices Scalia and Thomas dissented in both cases. The decisions turn on the wording of the relevant statutes, comparisons with other statutes, and the Court's prior decisions, but at bottom they also turn on how the Court views the anti-discrimination laws. At least where the complainant himself or herself is the

Canadian S Ct on Gitmo

Here's an interesting little decision by the Supreme Court of Canada. Last week, in Minister of Justice v. Khadr , the Court applied the rule that the ordinary principle under which Canadian law does not apply extra-territorially, itself does not apply (and so Canadian law does apply extra-territorially), where Canada has participated in a process that violates its international law obligations. At issue was a request by Omar Ahmed Khadr---a Canadian being held at Gitmo---for records of interviews conducted there by Canadian officials. Under the Canadian Charter, if the interviews had occurred in Canada, Khadr would have a right to the material. The Charter normally would not apply because Gitmo is not in Canada, but Khadr's detention there violated the Geneva Conventions. The Supreme Court of Canada---which has long had a John Marshall-esque ability to say a lot while not actually saying very much---avoided the delicate question of whether Gitmo in fact violates internatio

California's Majoritarian Difficulty

Over on FindLaw , my fellow columnist Vik Amar registers a small disagreement with me over how to characterize the interplay between the California Supreme Court and the voters of California. In explaining why I thought the Cal S Ct was right to apply the principle of equal protection as expounded in its cases, rather than simply following public opinion on the permissibility of banning same-sex marriage, I said " California constitutional law [does not] embrace the view that minority rights turn on the majority's willingness to recognize those rights." Not so fast, says Amar. " In a very real sense, California constitutional law – and all constitutional law, for that matter – does embrace that exact view" because the continued existence of minority rights depends on the majority not amending the constitution to eliminate them. He approvingly quotes the other Professor Amar (his brother Akhil) for the proposition that " [i]n the end, individual [and mi

What’s in a Name?

It has been reported that Senator Obama is now putting a stronger emphasis on the Jewish vote, especially in Florida – a key state for the national election. It has also been reported that as part of this effort Senator Obama, in a recent appearance in a Florida synagogue, asked the audience not to judge him according to his skin color or his name, referring in part, I assume, to his Muslim middle name – Hussein. I found this appeal offensive and worrisome. It should surprise no one that some American Jews have certain concerns with Senator Obama’s candidacy: his past statements about negotiations with Iran, his short public record on matters of foreign policy and Israel, his affiliation with Rev. Jeremiah Wright and the general sense he gives of a naïve belief in the effectiveness of talks and negotiations and of an overly strong reluctance to use force when needed. For many American Jews (naturally not for all) these factors raise questions as to the decisions and sentiments Senat

Civil Disobedience vs. Selfish Greed

About a month ago, Wesley Snipes was sentenced to the maximum three years in prison after being convicted on three misdemeanor tax charges. Given my obvious interest in the case (see here , here , and here ), I felt a considerable urge to weigh in on the decision here on Dorf on Law; but all I could think to say was, "Hurrah!" Dorf on Law has a stated preference for shorter posts, but that would be too little of a good thing. Yesterday brought news, however, that U.S. District Judge William Terrell Hodges has granted bail to Snipes while defense lawyers pursue an appeal. The question of bail in this case is a difficult one. As the judge pointed out, the appeal process could stretch out over many months or even years, raising the prospect that Snipes could be jailed for nearly the entirety of a sentence that could ultimately be reversed. The injustice of such an outcome is indeed troubling, but the judge's reasoning at least raises the question of whether such consi

The Murder of Kuritsa the Chicken and the Disrespectful Effect of the Equality-of-Respect Critique of Victim Impact Statements

The final episode of the Israeli version of Survivor aired on Saturday. One of the season’s dramas was the tale of Kuritsa the chicken. As the Survivors first landed on the island they encountered two chickens running around on the beach; they ate one chicken early on, while the other chicken gradually became a minor character on the show. It would steal food, shelter from the rain with the Survivors, run around the camp and was generally a source of laughter, annoyance and affection; it even infiltrated popular culture. Her name, given by her fellow Survivors, was “Kuritsa” (which means “chicken” in Russian). In a recent episode, one of the most infamous Survivors decided to prepare a farewell-to-the-island dinner party for himself and the remaining Survivors, and proceeded to chop off Kuritsa’s head. Upon returning to the camp, some of his fellow Survivors were appalled and refused to join in the subsequent meal. A moral conundrum came to light – if most participants had thou

Leveling Down

After concluding that California's prohibition of same-sex marriage violated the state Constitution, the California Supreme Court had to face the question of whether to remedy the violation by making marriage available to same-sex couples as well as opposite-sex couples or by eliminating marriage for everyone. The Court concluded that the former course would be both (much) less disruptive and what the legislature would prefer. It also suggested---though it did not officially hold---that eliminating marriage for everyone would itself be unconstitutional because marriage is a fundamental right. Suppose, however, that there is no fundamental constitutional right (under either the federal Constitution or the relevant state constitution) to have the state recognize your relationship with the term "marriage," but that it does deny equal protection (as a matter of either state or federal constitutional law) for the state to call opposite-sex couples "married" but to

Real and Fake Child Pornography

Monday's Supreme Court decision in United States v. Williams upholds against an overbreadth and vagueness challenge the federal Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today ("PROTECT") Act. Herewith, a few observations, beginning with the silly and moving to what I intend as a serious policy proposal. 1) Justice Scalia, who wrote the majority opinion, was apparently unamused by Congress's penchant for titling statutes with an eye towards descriptive acronyms (compare the USAPATRIOT Act). He said that Congress "produced legislation with the unlikely title of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 117 Stat. 650. We shall refer to it as the Act." 2) The challenged provision of the PROTECT Act forbids offers to provide not only genuine child pornography but also "any material or purported material in a manner that reflects the belief, or that is intended to cau

Does the Supreme Court Have an Anti-Chaos Rule?

In a recent post , Mike Dorf (tongue firmly in self-referential cheek) announced "Dorf's Law," which "states that courts do not provide a remedy for really really big constitutional problems where doing so would create chaos." He applied this anti-chaos rule to an argument by my GW Law colleague John Duffy that, if accepted by the courts, could invalidate patents worth hundreds of billions of dollars to their holders. Mike suggested that the Supreme Court regularly faces such possibilities, given that the Court is frequently asked to declare a constitutional principle that could upset years or even centuries of precedent. If, for example, the Court found a constitutional infirmity in the jury selection process, one could imagine such a result leading to a finding that every jury trial in the history of the country was invalid. That would, by any standard, create chaos. If the anti-chaos rule exists, however, any student of the law would want to know just wha

Do Prohibitions on Same-Sex Marriage Amount to Sex Discrimination?

My latest FindLaw column sets out the core argument of the California Supreme Court in the Marriage Cases , speculates about the consequences, and defends the result. Because the column is short and the decision is (unnecessarily) long, I don't address everything in the opinions. Here I want to consider one feature of the case: En route to finding that restricting marriage to opposite-sex couples constitutes impermissible discrimination on the basis of sexual orientation, the California Supreme Court says it does not constitute sex discrimination. Herewith, a few observations about this point: 1) It's odd that the Court even addressed the argument, because it is so obviously irrelevant to the ruling. Having found two independent doctrinal grounds for subjecting the marriage law to strict scrutiny---denial of the fundamental right to marriage and discrimination on the basis of sexual orientation---the Court could have simply said that it did not need to reach the question

Out of Gitmo and Into Legal Limbo?

Under the headline, "U.S. Planning Big New Prison in Afghanistan," the NY Times reported today that, well, the U.S. is planning a big new prison in Afghanistan. The prison would hold Taliban an al Qaeda fighters from Afghanistan and elsewhere. It also could be use to hold prisoners now at Gitmo, should the U.S. close the prison there. According to a Pentagon spokesperson quoted in the story: "The driving factor behind this is to ensure that in all instances we are giving the highest standards of treatment and care.” Perhaps, but let me suggest another possibility: If the government loses the Boumediene case, and the Supreme Court holds that Gitmo detainees are constitutionally entitled to habeas corpus because of the de facto sovereignty the U.S. exercises over Gitmo, the only way for the government to hold foreign captives without risking interference by a civilian court would be to hold them in a facility that is unambiguously located in the territory of a foreign

The California Ruling and the Presidential Election

A few hours ago, the California Supreme Court ruled that the California Constitution protects the right of same-sex couples to marry. I haven't read the entire opinion yet, but it's crystal clear from what I have read that the Court relied only on the California Constitution, and not the U.S. Constitution. Because state high courts are the final authority on the meaning of state law---including state constitutional law---there is no way this case will go to the U.S. Supreme Court. The federal issues it raises involve what respect other states will owe California same-sex marriages (in light of the federal Defense of Marriage Act and the Full Faith & Credit Clause of the federal Constitution's Article IV), but those issues are not present in this case, and are no different from the ones raised by the Massachusetts ruling in Goodridge in 2003. Apparently one can't (yet) be a serious candidate for President and say that one thinks same-sex marriage should be legal, bu


It's easy to read too much into the news that Earthlink will pull the plug on its Philadelphia WiFi network, once heralded as the future of internet connectivity. Free marketeers will say that this failed experiment shows the folly of government efforts to pick winning technologies. And they'll be wrong---or at least they'll be overstating their case greatly. In a great many areas, the government provides (either free or on a subsidized basis) the infrastructure on top of which private enterprise runs: roads, sewers, sanitation, fire protection and many other services can be---and at various times in various places have been---privately provided, but national, state and local provision of such services have also been extraordinarily successful. All technologies eventually become outdated. The Roman aqueducts were a marvel of public engineering. The fact that modern cities typically use underground pipes as a means of obtaining their water hardly shows that the Romans

Genes and Denial

My latest FindLaw column is about the Genetic Information Nondiscrimination Act (or "GINA"), which has passed both the House and the Senate, nearly unanimously, and now awaits the President's likely signature. In the column I discuss how unusually uncontroversial a path this legislation has taken by comparison to other nondiscrimination measures in the past. I propose that GINA places us in the position that John Rawls proposed for the creation of just rules: behind a veil of ignorance. In this post, however, I want to focus on a different aspect of discrimination that is difficult to defeat: the role of denial. When healthy, wealthy, and wise people choose to spend their time with other people who are similarly blessed, they may do so in part to deny the reality of their own vulnerability to hardship and misfortune. Confronting the reality -- by being around people who have suffered -- makes more challenging the belief that everything works out for the best or tha

Justices Scalia and Thomas Go to the Mat

Yesterday's largely inconsequential Supreme Court decision in Gonzalez v. United States confirms (once again) that Justices Scalia and Thomas are not simply conservatives. Each one has what we might describe as a Hillary Clinton-esque willingness to fight every conceivable battle as though it were Armageddon. In a 1989 case, Gomez v. United States , the Supreme Court held that the Federal Magistrates Act did not permit a magistrate (rather than a life-tenured Article III judge) to preside over jury selection (" voir dire ") in a federal felony case, absent the defendant's consent. Two years later, in Peretz v. United States , the Court held that the Act and the Constitution do permit a magistrate to preside over such jury selection if the defendant does consent. Yesterday's case raised the interstitial question of whether the consent necessary to validate the magistrate's role must be obtained directly from the defendant, or whether it is permissible for d

Dreams & Nightmares

As it becomes increasingly clear that Senator Obama will be the Democratic nominee, speculation will focus---as it inevitably does between the primaries and the convention---on who his running mate will be (and who Senator McCain's running mate will be). Obama will be under considerable pressure to offer the slot to Senator Clinton, as a means of healing the rift that the primary contest opened between their supporters. The arguments against a so-called "Dream Ticket" are strong: 1) Clinton probably doesn't want the VP job; she doesn't need it as a stepping stone to the White House; the best reason for her to take it would be the hope that the ticket would lose in 2008, so that she'd be well positioned for a run in 2012, rather than having to wait until 2016; if so, Clinton might take the slot and not campaign with full vigor, which is a reason not to pick her; 2) Clinton has very high negatives, so that adding her to the ticket would energize Republicans and

Was the Long Primary Fight Inevitable?

With press coverage of the Democratic presidential intramurals (finally) recognizing the impossibility of a Clinton nomination, the post mortems have begun in earnest. Today's New York Times Week in Review section includes a discussion of the argument that this will all turn out to have been good for Obama, by ____ (fill in the blank with: toughening him up, forcing him to be more of a populist, etc.). A friend, however, recently sent me an email suggesting a more fundamental question about the nominating process: "Did the Democrats set up a situation that couldn't be resolved until very late in the primary season?" The arguments for this conclusion are pretty convincing. The Republican primaries and caucuses were to a large degree winner-take-all, while the Democrats use a system of proportional representation all but guaranteeing that multiple candidates will receive at least some delegates. In addition, the winner of the popular vote in some states receives le

Gaffes and Journalism

In alphabetical order, here are what I regard as the leading Presidential candidates' leading gaffes (although I don't have a measure for saying what counts as the gaffiest): Clinton: "Sen. Obama's support among working, hard-working Americans, white Americans, is weakening again." McCain (singing): "Bomb bomb bomb, bomb bomb Iran." Obama: "it's not surprising then that they get bitter, they cling to guns or religion . . . ." I want to begin by acknowledging that there is at least some prima facie reason to pay attention to these sorts of statements---and to these three in particular. Each one suggests that the rap on the candidate is right: Clinton is consciously trying to sell herself as the white Democrat, thus deliberately damaging a coalition at the heart of the Democratic Party; McCain is a hothead who will get us into yet another war; Obama is an egghead who doesn't connect with socially conservative working-class Americans. A

A Counterintuitive Democratic Strategy on the Courts

By now, others have picked apart the substance of Senator McCain's recent speech about the judiciary. (For one particularly good analysis, see Jack Balkin on his eponymous blog .) Here I want to ask what strategy the Democratic candidate should use in combating what is almost certain to be a frequent attack theme from the McCain campaign in the general election: that the Democratic nominee is extremely liberal for having voted against the confirmation of both CJ Roberts and Justice Alito (as both Clinton and Obama did). The obvious response would be to try to paint McCain as the true radical, both by pointing to actual decisions of Roberts and Alito, and by tying them to Scalia and Thomas (who tend to be regarded by as much further to the right). The Democratic candidate could say something like this: I believe that it's the job of the President to nominate consensus-building moderates. President Clinton did that with Justices Ginsburg and Breyer, and Republican Presidents

Patent Chaos and "Dorf's Law"

Writing in the NY Times on Tuesday, Adam Liptak reported that, as a result of analysis by GW Law Prof John Duffy, the courts may have to "undo thousands of patent decisions concerning claims worth billions of dollars." Duffy's analysis is excellent, but I want to suggest here that the bigger the problem is, the smaller the problem will be. How's that? Let me explain. In a little-noticed provision of a 1999 appropriations measure, Congress changed the way that patent judges of the Board of Patent Appeals and Interferences are appointed. As a result, all such administrative judges appointed since 2000 have been named by the Director of the Patent and Trademark Office, but the Director is not the Head of a Department (since he serves under the Commerce Secretary). Thus, these judges were appointed in violation of the Appointments Clause of the Constitution, Art. 2, sec 2, cl. 2. And thus, cases on which they have sat are invalid. Duffy argues that because of the