Showing posts from June, 2008

Admit Nothing

Earlier this month on this blog, Mike discussed some recent examples of political figures who were caught in sexually charged situations -- Clarence Thomas, Bill Clinton, Larry Craig, and Elliot Spitzer -- and concluded that "the worst thing a public official can do if caught in a sexually charged situation is resign or announce his intention to resign, because that tends to validate the shamefulness of the conduct." On the comment board, I added the example of Barney Frank, the Democratic Congressman from Massachusetts who now chairs the Financial Services Committee. Frank faced a sex scandal of his own back in 1990 (ironically, a scandal in which he was most aggressively attacked by Sen. Larry Craig), but he asserted his innocence in the affair and was ultimately reprimanded by the House after the Ethics Committee found no evidence of involvement in illegal activity by Frank. (Details here under "Reprimand.") While the salacious details of these and other sex-ba

Guns in Public Housing

Wasting little time, the NRA is bringing suit against cities and suburbs with the country's most restrictive gun laws. Although San Francisco's city-wide ordinance banning guns by city residents had already been held invalid on California state law grounds, the NRA has targeted another San Francisco policy---the housing authority's insistence that tenants in public housing agree not to have guns as a condition of their leases. I have a speaking part in this NPR story on the issue, in which I say that the lawsuit will almost certainly lose in the lower federal courts because, until the Supreme Court overrules Presser and Cruikshank , the Second Amendment does not apply against the states. Although Justice Scalia has said in his off-the-Court writings that this continues to be true, I would not bet a lot of money against the Court incorporating the Second Amendment when the issue comes before it. Here I'll raise an issue that I discussed with the NPR reporter but that

Five Days? But I'm Mad Now!

Updated: Thus spake Homer Simpson, upon being told by the salesman at Bloodbath and Beyond that state law imposed a waiting period on the purchase of guns. Speaking of the Heller case, here's my column on FindLaw should be up some time today. For this post, I'll quote my conclusion: Yesterday’s decision may have the eventual consequence of removing strict gun control laws from the list of options available to local elected officials. If so, and if the gun control advocates turn out to have the better of the empirical argument, then the Court’s decision in Heller “will almost certainly cause more Americans to be killed.” Those are not my words. That is what Justice Scalia had to say in dissent earlier this month in Boumediene v. Bush . He then added that sacrificing American lives “would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic.” No doubt Justice Scalia believes that a personal right to armed self-

Lock and Load!

As predicted ( by me and everyone else) the Supreme Court affirmed the DC Circuit, 5-4 on an ideological split. Opinion available here . I'll have a FindLaw column up on the subject some time tomorrow. Posted by Mike Dorf

Death or Torture?

In questioning the logic of yesterday's decision in Kennedy v. Louisiana , Justice Alito poses the following pair of hypothetical examples in his dissent: With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. See, e.g. , Tison v. Arizona , 481 U. S. 137 (1987). In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second? Justice Alito thus appeals to the moral intuition that rape or torture can be at least as bad as, or worse than, murder. He might have made the point even more

Where Do Gun Rights Come From?

(Updated twice) Tomorrow, the Supreme Court will decide DC v. Heller. Based on the oral argument and the fact that Justice Scalia is due for a majority opinion, it's likely that the Court will rule against the District. How broadly or narrowly the Court rules will play an important part in what the decision means in practice: Will states and municipalities that are not federal enclaves have more, less or the same power to restrict guns? What test will the Court use for deciding whether a regulation that falls short of a prohibition on a class of firearm is valid? Strict scrutiny? Undue burden? Reasonable relation? Etc. These are important questions and they will be much mooted in the coming days, weeks and even years. For now, though, I simply want to note how completely the dominant understanding of the Second Amendment will have changed in such a short time. As recently as 1990, retired CJ Warren Burger referred to the notion that the Second Amendment confers a personal

Word Bans in Criminal Court

At some point today, FindLaw will post my column about word bans in criminal court. The gist of the backstory is that courts around the country have increasingly imposed restrictions on the words that witnesses in criminal court may use, in an effort to prevent wrongful convictions. Such words include "rape," "victim," "drunk," and "homicide." I argue in my column that limits like these, though deriving from good intentions, are flawed, both because they distort and confuse the content of what witnesses are trying to tell a jury and because they artificially distinguish between so-called neutral facts and prejudicial opinions, as the now-discarded federal common law "opinion rule" did prior to passage of the Federal Rules of Evidence. In the case of some crimes, moreover, word bans affirmatively harm victim-witnesses who are asked to speak as though it is they (rather than the members of a jury) who must presume the defendant's

Tea Leaves and Smoking Guns

Nothing very exciting from the Supreme Court today. I recommend Scotusblog for updates, now and always. As Tom Goldstein notes there, the only remaining undecided case on the docket from the March argument calendar is DC v. Heller , the Second Amendment case. The only Justice who hasn't announced a majority opinion from March is Justice Scalia. Thus, Justice Scalia likely is the author of the majority (or perhaps the plurality) opinion in Heller , which means that it should soon be possible to pack a pistol in DC. The next day that opinions come down will be Wednesday. The Court is almost sure to wrap up its term by the end of the week. Posted by Mike Dorf

Torture, Moral Philosophy and Dinosaurs

Today’s NY Times has a fascinating story about the interrogation of Khalid Shaikh Mohammed (“KSM”), his chief interrogator (whom the times fingers on the justification that his identity was never classified), and the CIA program of enhanced interrogation (waterboarding, etc) more broadly. The article includes the astounding fact that KSM was waterboarded about a hundred times over the course of two weeks. It draws no firm conclusions on whether the harsh treatment---I would say torture---of KSM was worthwhile, but is nonetheless a useful starting point for thinking about torture as actually practiced. One possibility that the story suggests is that the torture of KSM did not yield any information that he would not have provided absent torture. The basic technique was for the “knuckledraggers” (paramilitary) to administer the rough treatment and then when the prisoner was willing to talk, the eggheads (like KSM’s interrogator) would be sent in. KSM developed a rapport wi

The Shame of Resignation

Based on what I know of the case, I agree with the informed observers who say that Judge Alex Kozinski broke no law and didn't even do anything especially embarrassing in failing to secure his personal web server against people looking for dirt. (In the interest of full disclosure, I also should say that, even though I don't agree with all of his opinions, I have been an admirer of Judge Kozinski since the time he interviewed me for a clerkship nearly 20 years ago, and I got to know him during my clerkship with Judge Reinhardt, as the two Ninth Circuit titans are good friends.) Thus, I consider absurd the calls for Judge Kozinski's resignation (or impeachment!) by a small number of self-appointed moral guardians (like this one by the Concerned Women for America ). Here let me suggest that even if Judge Kozinski were terribly embarrassed by the fact that he finds some oddball (but non-obscene) porn amusing (and perhaps even titillating), the worst thing he could do to hi

A Fool For a Client

Yesterday, the Supreme Court decided Indiana v. Edwards , holding that a criminal defendant can be competent to stand trial but not sufficiently competent (under constitutionally permissible state law standards) to represent himself. Much of the opinion is devoted to showing that the issue was not resolved by prior cases. Whether or not persuasive on that point, the bottom line seems right, as I previously explained briefly ( here ). Justice Scalia, joined by Justice Thomas, dissented. They viewed the result as inconsistent with the defendant's right to represent himself, as recognized in Faretta v. California . In his Edwards dissent, Justice Scalia makes what I regard as the best argument for the right of self-representation: Without it, the state could force a defendant to accept a lawyer he doesn't want. That does indeed seem harsh, but harsher than forcing the defendant to go to prison? Surely the defendant's larger interest is in a fair trial, and if he cannot

The Usual Suspects

A minor controversy arose last week when the Obama campaign announced the hiring of a new economic policy director, Jason Furman. As the New York Times explained , a group of union leaders expressed disappointment that Furman was chosen, because they perceive that he represents the more corporate-oriented wing of the Democratic party and will skew policy against the interests of workers, especially union members. Furman, for his part, assured everyone that his job is not to make policy but to consult with a wide range of experts on Mr. Obama's behalf. ''My own views, such as they are, are irrelevant,'' Mr. Furman said. This is the right thing to say, of course. It echoes very closely the playbook of, among many others, John Roberts in his confirmation hearings for Chief Justice: "Just calling balls and strikes, folks. Nothing interesting to see here." While the stakes in Furman's job are surely lower than Roberts's, there is every reason to


My latest FindLaw column explains the disagreement between the majority and dissent in Boumediene as partly a conflict between (1) checks and balances (maj); and (2) separation of powers (dis). If that shorthand is not sufficient to explain what I mean, please read the column. Here I want to raise an issue that was called to my attention by attorney and writer Doug Parker (who, among other things, has an excellent article on Justice Kennedy forthcoming in The Green Bag ). In an email to me, Doug notes that Justice Kennedy's opinion in Boumediene states: "Some of [the petitioners] were apprehended on the battlefield in Afghanistan, others in places as far away from there as Bosnia and Gambia." The opinion goes on to treat all the petitioners the same. As Doug says, and I agree, it is hardly self-evident that battlefield captives (i.e., people taken captive on a battlefield) should be entitled to the same procedural protections as people that the U.S. and its allies ha

The Paper Bag Princess

Last week, a family friend – a woman who was an active member of founding generation of feminists, in the 1970s – gave my baby daughter a well-known kids’ book called “The Paper Bag Princess.” The book tells the story of a princess whose castle and fancy clothes are destroyed by a fire-breathing dragon. The dragon also carries away her fiance. The princess courageously pursues the dragon, cleverly tricks it, and saves the fiance. Rather than thanking her, however, he criticizes her for her messy appearance. The princess concludes that the prince is actually a “bum,” and the last picture in the book shows her skipping happily off into the sunset alone. This seems to me to be a real “old school” feminist book, whose ultimate message is that women are more courageous and clever than men, that they should be celebrated for giving insensitive men the what-for, and that ending up uncompromised/ing and alone is a happy ending. (Never mind that it was written by a man.) Som

Fighting or Spreading the Smears?

There are two schools of thought about how a political candidate should respond to false rumors and smears. One school of thought says to ignore them---that rebutting them just gives them greater play. Call this the "John Kerry" approach. A second school of thought says you have to get out in front of the story (even if it turns out to have more than a grain of truth to it). Call this the "Bill Clinton" approach. Given Kerry's defeat and Clinton's two victories in national elections, one might think that the Clinton approach is clearly superior. And so the Obama campaign has apparently concluded. In a section of the Obama campaign website called " Fight the Smears, " one can find "smears" circulated by Obama political enemies and "the truth," showing the smears to be false. This is a highly risky strategy. Psychological studies show that repetition of a story---even for the purpose of rebutting that story---will tend to

Congrats to Anil Kalhan

Anil's two-part series on the abusive treatment of Pakistani journalists won first prize in the category of Outstanding Piece Covering the Political Turmoil in Pakistan: All Media, awarded by the South Asian Journalists Association , beating out a report on CNN. SAJA will be holding its 2008 convention in NYC this coming Thursday through Saturday. Anil, in what will probably be his last public appearance as a Fordham Law School Visiting Assistant Professor (before taking up a tenure-track position at Drexel in July), will appear on a panel on Pakistan in Peril on Saturday at 11:30 at Columbia's Lerner Hall. Posted by Mike Dorf


In an article in yesterday’s New York Times, Jonathan Mahler discusses how unusual it is for the Supreme Court to uphold a challenge to a president’s wartime powers, as the Court did recently in Hamdi v. Rumsfeld , Rasul v. Bush , Hamdan v. Rumsfeld , and now Boumediene v. Bush . ( Boumediene is a rebuke of Congress, too, insofar as it invalidates statutory stripping of federal jurisdiction to hear habeas corpus applications, but it's also fairly viewed as a rebuke to the president.) The reason for the usual deference to the executive, Mahler says, is “not hard to see”: “The justices presumably lack the expertise of White House military advisers, and they don’t want to be accused of interfering with efforts to keep America safe.” This explanation must be correct, as far as it goes. Who wouldn’t be moved by those concerns if asked to undo something that the president claimed was necessary to protect the nation? (For my part, I hope I would be less worried about being “accused o

American Constitutional Unxceptionalism

An article by David Savage in the L.A. Times portrays Justice Kennedy's opinion in Boumediene as of a piece with his penchant for looking to foreign and comparative law for guidance in constitutional issues. The article---which accurately quotes me as agreeing with the basic thesis---notes that the opinion rests mostly on U.S. sources. The foreign cases cited are English cases, which are obviously relevant in assessing the historical scope of a legal form (habeas corpus) that the colonies and later the U.S. inherited from England. Nonetheless, Savage argues, and I agree, that Justice Kennedy's frequent exchanges with jurists on the world stage was likely influential. I say in the story that the Kennedy opinion is "entirely in line with post-World War II human rights law . . . . One principle is you don't detain people without a trial." Now, this is indeed a principle of international human rights law (i.e., I agree with myself). See, for example, Article 9.

And Now For Something Completely the Same

Okay, so I know I said I wouldn't be blogging again until Monday, but I just came across Larry Solum's post responding to my post on what makes the Constitution law, and what its content consists in. Solum has persuaded me that I need to stop relying on hearsay reports of his views and read his article for myself. Fair enough, but for now I just want to narrow the scope of our disagreement. Solum and I both endorse Hartian positivism. I say that the original 1789/1791 understanding of the Constitution could be important in 10,000 years if the people who accept the Constitution in 12,008 think that the original understanding is relevant. Solum says the same thing. He also notes, correctly, that my original post used both normative and descriptive language, although in the comments, I clarified that my main point was descriptive. I certainly can't give Solum a hard time for failing to read the comments on my blog post when I haven't read his article! I'm temp

Take That, Linda Greenhouse!

Today's unequivocal opinion in Boumediene v. Bush will provide grist for numerous mills---legal and political---for years to come. Here I'll note three quick thoughts (with apologies for stepping on Neil's post , but the magnitude of the news demands a quick response): 1) The highly charged 5-4 ideological split, with Justice Kennedy swinging liberal, shows that analyses of this Term as less ideological than last Term---such as this one by Linda Greenhouse---were premature, and based on relatively low stakes cases. If, as I suspect, the Court decides Heller (the DC gun case) by a 5-4 margin (with Justice Kennedy likely swinging conservative there), no one will care that there were some non-ideological splits in lower-profile cases. 2) Based on my preliminary perusal of Justice Kennedy's opinion, it appears that he rejects a territorial test in favor of a functional test. That suggests that moving Gitmo prisoners to places that are more clearly outside US sovereign

Post Mortem on Clinton's Candidacy: Skipping a Step

I have made unmistakably clear in previous posts ( here and here ) that I am no fan of Hillary Clinton. The latter stages of the 2008 Democratic nominating process were never for me a matter of choosing between two wonderful candidates, as some people described it (before things became ugly). Obama seemed fairly promising, admittedly with open questions about the actual content of his "change we can believe in" slogan; but to me, Clinton was never a serious option. It was, therefore, not a choice of the "greater of two goods" but between someone who appeared to hold genuine promise and someone whom I simply did not trust. This is not to pile on Clinton in the wake of her withdrawal from the race but simply to acknowledge up front that I have publicly expressed a strong viewpoint about Clinton and whether she should have been the nominee. Today, though, I want to look at Clinton's loss through the lens of women's rights. While many people in the last we

The Spitting Recidivist

At some point today, my column will appear on FindLaw . It discusses a recent case in which an HIV-positive defendant was sentenced to 35 years imprisonment for spitting at a police officer. In the column, my focus is on the counterfactual nature of one of the jury’s fact-findings: that the man’s spit was a “deadly weapon.” Because the CDC has not found evidence of even a single instance of HIV transmission through saliva in the 25 years since AIDS was identified, I argue, a jury should not be allowed to make a finding to the contrary. In this blog post, I wish to focus on a different aspect of the case: the defendant’s status as a recidivist, which contributed to the length of his sentence. In the U.S., much turns on a defendant’s prior criminal record. “Three strikes” laws throughout the country, for example, mandate life imprisonment for people who are convicted of a particular class of crime (not by any means always violent or even especially serious) after having b

Justice O'Connor's Legacy

Yesterday's story on Justice O'Connor in USA Today contends that her legacy---defined in substantive terms---is fading fast. The story (accurately) quotes me for the proposition that it's not especially surprising that a case-by-case incrementalist would not leave a long-lasting legacy. I am also quoted, also accurately, for the proposition that insofar as CJ Roberts likes to leave liberal precedents on the books, even as he guts them in substance, he may be leaving open a path for a future liberal Chief Justice, to take him at his word and return the favor. Here I want to clarify a point: I did not mean the points about Justice O'Connor as a criticism. Even Justices who write with a broad brush can see their precedents overruled, and to the extent that split-the-difference compromises do leave a Justice's decisions more vulnerable to overruling, that is not necessarily a bad thing. I suspect that Justice O'Connor herself would say something to the effect t

Con Law in 12,008

Here’s another post inspired by my week in Cleveland . Our panel on constitutional theory consisted of myself, Kim Roosevelt, Steve Griffin, and Mark Tushnet. A not insubstantial portion of the discussion centered around the “new originalism” (to which I also referred in my lunchtime speech). Like the old originalism, the new originalism has, as one of its justifications, a theory of legitimacy. As Griffin said, summarizing Larry Solum (about whose work Griffin has blogged at Balkinization) but not purporting to be stating his own views, given that the Constitution contains an amendment mechanism in Article V, there ought to be at least a pretty strong presumption against changing its meaning by other mechanisms. Here I’ll rehearse a couple of answers to this claim, mostly as an excuse to set out a thought experiment (point 2 below). (1) If we were just starting our collective project of constitutional interpretation today, this argument would have some force. However,

Another Report from the AALS Con Law Conference: Guilt by Association?

So much of interest happened at the AALS Con Law Conference last week, that I thought I’d devote a few more posts to it. This one is a follow-up on the notes I posted regarding my keynote speech at the lunch on Friday. In an ad lib, I ventured that the median point of opinion in the legal academy is probably about one standard deviation to the left of the median of public opinion in general, while the median point of opinion in the U.S. Supreme Court is about half a standard deviation to the right of the median of public opinion. Nothing turns on whether I have these numbers right; the key is that law professors are, on average, substantially more left/liberal than the current Supreme Court Justices, on average. That seems unassailable. I offered my assessment of the academic/judicial divide as part of the explanation for the growing distance, over the last 20-30 years, between the concerns of the legal academy and the concerns of the judiciary. In the Friday afternoon s