Showing posts from July, 2008

Animal Rights and the Law

Animal protection issues are a frequent topic on Dorf on Law, with my post last week discussing the transition to veganism ( Meat, Dairy, Psychology, Law, Economics ) being only the most recent of many examples. As an academic who does not practice or produce scholarship in the area of animal law, however, my impact on the welfare of animals is limited to my own choices and whatever effect my blogging on the issue might have. I started to wonder: Who are the people who are having a seriously positive impact on the well-being of animals, the people who have dedicated all or part of their professional activities toward addressing these important issues? It turns out that I did not need to look far, because two of my colleagues at GW Law are doing very important work in this area. Professor Joan Schaffner is the director of the Animal Law Program at GW, and she and Professor Mary Cheh have created the Animal Welfare Project . (Professor Cheh also serves on the City Council for Washi

Would He Rather Write or Be President?

Today's NY Times has an interesting article on Barack Obama's years teaching at the University of Chicago Law School. The gist: Obama was a very popular teacher, partly because he was not ideologically driven, asking hard questions of all positions; however, he was not much engaged with the rest of the faculty and was not at all interested in legal scholarship (which he did not write). Overall, this is a positive portrayal. The main negatives come from Prof. Richard Epstein, who acknowledges Obama's popularity as a teacher but bemoans his lack of engagement with the scholarly side of the enterprise, including economic libertarians like himself. Indeed, Epstein accuses Obama of deliberately keeping his views on controversial issues to himself so as to maintain his political viability. Here's the Times quote: Nor could [Obama's] views be gleaned from scholarship; Mr. Obama has never published any. He was too busy, but also, Mr. Epstein believes, he was unwilling

Is Clarence Thomas Really a Jeffersonian?

In my latest FindLaw column (now available here ), I use the occasion of the enactment of California's trans fat ban to explore how a fundamental premise of early American federalism has been largely eroded by the integration of the national economy. The premise was that substantial portions of the economy truly were local, so that states could be given primacy over them. I explain how, absent federal regulation, interstate firms are likely to comply with the most stringent state regulatory regime, and then to seek federal laws that set lower standards while preempting state laws. Along the way, I link Clarence Thomas to the anti-bigness tradition of Thomas Jefferson and Louis Brandeis. Here I want to problematize that linkage by noting that Justice Thomas seems every bit as committed to the big business agenda of the conservative wing---indeed of all nine members ---of the current Supreme Court. To put the point in a way that doesn't single out Justice Thomas, it's st

On the Democratic Charms of the French Bourgeoisie (Part one)

(A couple of month ago, I drafted this up, but kept putting off posting it, because I thought it was too long and perhaps a little dilettantish. A conversation I had last week with Antoine Garapon, a noted French judge and legal scholar, has convinced me that I should post it anyway. ) Some six months ago, on January 31st, the New York Times ran an editorial by Roger Cohen entitled “America’s Riveting Democracy” in which he praising the US for having “the most vital, open, self-renewing and democratic society on earth.” While his ‘argument’ in this regard was pretty silly (but oh-so-typical of so many American political comparativists), it did get me thinking about the nature of ‘democracy’: particularly, how we might go about evaluating (and thinking about) what we might call – for lack of a better term – it’s ‘vitality’. To being with, we might first try to identify a democratic ‘vitality’. To me, American democracy, while certainly entertaining (Cohen’s principal point) is not pa

Life can be so cruil

Like every other tech-interested person on the planet, I tried out cuil today to see whether it would indeed by the Google-killer it advertises itself as. (Cuil also advertises itself as superior to Microsoft's search engine, but Microsoft doesn't need an external enemy to kill it. Vista will do that by itself.) I'm undoubtedly not the only one to have gotten a "server busy" notice, nor am I the first to comment that this is really inexcusable. There are likely hundreds of thousands if not millions of potential early adopters who now won't bother with Cuil. If you shoot at the king, don't miss. Cuil sells itself as superior to Google in two respects: 1) It searches more pages; 2) It gives better results because it's not just a popularity contest. I get 1). Searching more pages does seem better than searching fewer. But the attack on Google's page-rank system seems misguided. That system can be gamed (as former Pennsylvania Senator Rick Sa

Courtesy and Crowding

Continuing my theme of posts with no clear bottom line but a mystery for readers to solve, here's a puzzle inspired by my recent travels. When I lived in Los Angeles in 1990-1991, I had the impression that drivers were unusually courteous. Having just spent two days in the City of Angels, I got the exact opposite impression. Here are three possible explanations: 1) Angelinos have become less courteous in the last 17 years; 2) As I've gotten older, I've become more crotchety, so that stuff that didn't used to bug me, now does; 3) When I came to L.A. in 1990, I was moving from Boston, which has notoriously discourteous drivers (conditioned to be that way by driving on too-narrow roads); I've come for this most recent visit after living and driving for a month in Ithaca, where drivers are courteous, it being a college town without a whole lot of traffic. I'm inclined towards explanation number 3 and more generally towards the view that crowding people makes the

The Banality of Karadzic and a Thought on Abu Ghraib

How was it possible, many people want to know, for infamous indicted war criminal Radovan Karadzic to fool so many people for so long into believing that he was a soft and fuzzy alternative medicine guru? Perhaps Karadzic, a talented if evil politician, also simply has a gift for deception. Maybe, but I'm more inclined to think that Karadzic wasn't simply play-acting in the role of Dr. Dragan David Dabic . Or if he was, it was because everybody is always play-acting at his various personalities. Hannah Arendt famously coined the term "the banality of evil" to explain how Nazi war criminals, including especially Adolph Eichmann, could seem so ordinary in their concerns and the portions of their lives that did not involve mass murder. Arendt's theory has been criticized over the years and I have long been persuaded by a somewhat different view, what Ervin Goffman called the "dramaturgical" account of personality. The core idea is that people have some

Meat, Dairy, Psychology, Law, Economics

Over the weekend, I visited the Farm Sanctuary in Watkins Glen, NY. The Sanctuary is a haven for animals who have been rescued from factory farms and dairies: cows, chickens, turkeys, pigs, sheep, goats, etc. It is also a very low-key public education and advocacy organization. Having been a vegetarian for a number of years, with the intention of at some point becoming a vegan, this visit triggered my decision to eliminate all animal products from my diet and wardrobe. It was a powerful experience. I actually did not learn anything new during my visit, but the experience made salient the things that I have known as an intellectual matter for some time now. Interestingly, the Sanctuary tends to underplay the gruesome nature of how animals are treated in factory farms and dairies, preferring instead to allow visitors simply to spend time with these wonderful animals who would otherwise have lived miserable lives and died violent deaths on the way to your grocer's shelves. In t

Gridlock and the Mortgage Crisis

Michael Heller's new book, The Gridlock Economy , makes a powerful case for the proposition that our economy suffers from "too much ownership." Parlaying into public debate an idea he has expounded in the academic literature, Heller laments the tragedy of the anti-commons . As the first reviewer on the Amazon site linked above notes, the book is very timely for its explanation of the current mortgage crisis---not how we got into it but why it's hard to get out. Banks loaned money to people who couldn't afford the interest payments because, in a rising housing market, those borrowers could always sell the house---or go further into debt based on home equity loans to service the existing debt. When the bubble burst, the banks and the entities that had bought slices of the loans were left holding the bag. That wouldn't have been a disaster if not for the crucial fact that over the last decade as never before, the right to receive interest payments on mortgage

Pickens, Realpolitik, and the Labels of Cap & Tax

T. Boone Pickens burst onto Al Gore’s stage this week with his urgent call for massive fuel switching by the US away from “foreign oil” and toward wind, solar, and natural gas. Parts of the blogosphere and MSM have been aflutter about the climate change possibilities being considered in the US—note, for example, Mike’s post over the weekend! There are, of course, several different reasons to be worried about “peak oil” and the future of this, our most important, energy source. Pickens seems most interested in the financial and security concerns of paying $700 billion a year into OPEC economies just to fund our addiction. In a nutshell, he wants to build massive wind farms in the center of the country (where there’s a lot of wind) so that we can switch all of our natural gas supply to vehicles and thereby reduce our demand for oil by ~ 40%. This, of course, can only happen with an unprecedented effort from the federal government. Now, as Mike pointed out, asking the federal gov

Opportunism and Power

Last Thursday, I posted some thoughts about independent Senator Joseph Lieberman's unique and temporary position in the current Congress as the Senator who could most plausibly switch from caucusing with the Democrats to the Republicans, thereby putting the Democrats out of power in the upper house. I offered two observations: (1) Lieberman has done nothing on matters of policy to advance anything that might be called a "Lieberman agenda," which I would have thought a public-spirited career public servant (and former presidential aspirant) would want to do if freed from the purgatory of being "just one vote out of 100" in the Senate; and (2) Since Lieberman seems not to have a unique policy agenda, his decision to run as an independent in 2006 against the Democrat who defeated him in his party's primary was evidence of personal opportunism, a choice to keep his Senate seat simply because he likes to be a Senator and not to advance any version of the public

Are Lions Murderers?

I have written a column that will appear some time today (Monday) discussing the Spanish Parliament's likely adoption of resolutions recognizing limited human rights in Great Apes. Such rights include entitlements not to be tortured, killed, or held in captivity. In the column, I discuss an argument made by some of the resolutions' detractors -- that all human beings should enjoy these rights before we grant them to any nonhuman beings -- as well as one argument made by its defenders -- that the resolutions are the first step along the path to recognizing that our consumption of animals for food, clothing, entertainment, and experimentation is wrong. I respond to these arguments in the column, so I want to take the opportunity in this blog post to discuss a different question that often arises in discussions about animal rights (including some comments that have appeared in response to my own past posts). The question is this: how can it be immoral to torture, kill, and co

Gore, Carbon, Taxes, Cap & Trade

Al Gore's bold call to take the entire electrical grid off of carbon sources within a decade will be, and already has been, dismissed as prohibitively expensive and wildly unlikely. No doubt it will be defended as a useful statement of principle---the sort of truly ambitious plan against which much more modest proposals can be measured. Another way to put that point: Gore's ambitious goals can be used to give some political cover for those who want to do something valuable but less ambitious. Here I want to raise a question, more in the interest of sparking a debate than anything else. The question is whether there is anything to be said for a cap-and-trade program versus a simple carbon tax. A useful summary of the advantages of a carbon tax over cap-and-trade can be found here . The argument in the other direction can be found here . I think I'm persuaded that a straight tax is, all things considered, better policy than cap-and-trade. Certainly the dramatic effects

Double Jeopardy en Espanol

In the United States, the Fifth Amendment's Double Jeopardy Clause (incorporated against the States via the Fourteenth Amendment's Due Process Clause) has been interpreted to have the following two consequences (among others): 1) The prosecution cannot appeal an acquittal; and 2) The prosecution of a defendant (whether it results in conviction or acquittal) by Jurisdiction A does not bar his subsequent trial for the same acts by Jurisdiction B, where A and B are "separate sovereigns." This rule was dramatically illustrated when the police officers who were acquitted on California state law charges of beating Rodney King were subsequently tried on federal charges. California and the U.S. government are separate sovereigns (as are different U.S. states, but not different local governments within a state). Meanwhile, as dramatically illustrated by yesterday's rulings in connection with the Madrid bombings, Spain has the exact opposite set of rules: 1) Prosecutors c

What Does Lieberman Want?

Senator Joseph Lieberman's defeat in the 2006 Connecticut Democratic primary and subsequent general election victory as an "Independent Democrat" created one of the more delicate political balances in U.S. history. With Lieberman (and the socialist Independent Bernie Sanders of Vermont) in their caucus, Senate Democrats hold a 51-49 margin in the Senate, giving them all the power (agenda setting, committee majorities, subpoena power, etc.) that goes with majority status. Keeping Lieberman in the caucus has thus been essential to his Democratic colleagues, putting Lieberman in a position with potentially enormous power. One could imagine a cartoonish situation where Lieberman snaps his fingers and announces that he is bored, leading to frantic efforts by the party leadership to find ways to please his fickle tastes. Surprisingly, nothing even mildly in that direction has happened. Lieberman requested and received the chairmanship of the Homeland Security and Governmental A

Prosecutorial Discretion at the ICC

In my FindLaw column (updated link here ) on the warrant application against Sudanese President Al Bashir, I argue that, although it's impossible to predict with certainty, the International Criminal Court proceedings are likely to do more harm than good. I also say, though, that Luis Moreno-Ocampo nonetheless made the legally correct judgment because the UN Security Council, in referring the matter to the ICC prosecutor's office, already made the judgment that, if genocide charges were factually justified, it was, all things considered, appropriate to prosecute. In other words, I assume a rough division of labor in which the Security Council makes the strategic/consequentialist decision about what will further collective peace and security, while the prosecutor makes the judgment about what is factually and legally warranted. That's not the only way to read the situation, however. Moreno-Ocampo also had the prosecutorial discretion not to seek an arrest warrant, even if

We Need More Cooks!

In dueling statements on Iraq and Afghanistan, Sen. McCain and Sen. Obama exchange I-told-you-so's. McCain says: Obama and I both thought the Bush Admin bungled the war early on, but I supported the surge, which is working, while he opposed it, so I have better judgment. Obama says: The military component of the surge has reduced violence but there still is inadequate political reconciliation in Iraq and, more importantly, McCain's judgment is terribly suspect because he supported the invasion of Iraq, which I opposed. For my money, even if one thinks the surge was the right call given where matters stood a year ago, this is a losing game for McCain to play. The tactical question of whether to surge or not is so obviously less important than was the strategic question whether to invade in the first place. How this will play out politically is not entirely clear. Elections tend to be about the future more than the past, and so voters would likely be more interested in what

Al Bashir

The indictment of Omar Hassan Ahmad Al Bashir is gripping, if disturbing, reading. I'm working on a FindLaw column on it for Wednesday afternoon, but for now I'll just record a chilling highlight. The indictment observes that Al Bashir: employed a policy of exploiting real or perceived girevances between the different tribes struggling to prosper in the difficult Darfur environment. He promoted the idea of a polarization between tribes aligned with the Government, whome he labeled "Arabs," and the three groups he perceived as the main threats, whom he labeled "Zurgas" or "Africans." The image is only one of many devices used by AL BASHIR to disgues his crimes. Boht victims and perpetrators are "Africans" and speak "Arabic." It's worth noting how much of the Western narrative of the Darfur tragedy has been shaped by Al Bashir's propaganda, accepting that in fact this is a conflict between "Arabs" and "

Dorf on Film: Waiting for Professor Melfi

In the heyday of psychotherapy, Hollywood films often portrayed psychoanalysts as miracle workers. Think of Ingrid Bergman in Hitchcock’s Spellbound , for example. But recently, Hollywood has more often offered contemptuous views of therapists. Think here of Woody Allen as Zelig, rushing off to teach his class in “advanced masturbation.” Among its many charms, “The Sopranos” was notable as a recent Hollywood product that portrayed psychoanalysis in a sympathetic, if morally ambiguous, light. (Yes, I know “The Sopranos” was a tv show, but, well, it’s not tv, it’s HBO.) But if Hollywood has begun to portray psychotherapy in a more balanced fashion, its views of academia remain highly stereotyped. Three relatively recent films are notable. The Squid and the Whale , Smart People and The Visitor all feature late-middle-aged men as academics who are by turns, emotionally empty, fatuous, lazy, and ultimately engaged in churning out meaningless bl

A New Role for Senator Clinton

Having been rather harsh in my assessments of Sen. Hillary Rodham Clinton (see, for example, here ), I noted with considerable interest the senator's vote against the recent expansion of the government's wiretapping powers. As most everyone knows by now, earlier this week the Democrats in the Senate once again found themselves cowering in the face of the Bush administration, with half of them voting with Republicans to expand the Foreign Intelligence Surveillance Act. I will not engage here with the question of why this was a low point in American politics, leaving that to what appears to be about 90% of the blogosphere. Instead, I will note simply that this vote could be Sen. Clinton's opening to create an important new role for herself now that she is not running for president. During the primaries, I was rather late to the Obama party. I never trusted Clinton, but Obama seemed like a promising enigma at best. Left with a choice of Clinton vs. Obama, of course, the c

"Informed" Consent to Abortion

I currently have a column up on findlaw about an Eighth Circuit decision vacating an injunction against enforcement of a South Dakota statute that requires abortion providers to tell their patients that an abortion will kill a unique human being. Planned Parenthood challenged this version of the statute, passed in 2005, on several grounds, including the First Amendment right of the physician not to be a mouthpiece for the government's moral message about abortion (as opposed to conveying relevant facts, which the government may compel a doctor to do) . I argue in my column that this First Amendment argument is persuasive, notwithstanding the definition section of the S.D. statute, which defines a "human being" as a living member of the species Homo sapiens . I note that the definition provided exposes the moral rather than factual nature of the compelled communication -- the statute asks doctors to tell patients that embryos are defined as "human beings," a

What is NEPA For Today?—The Sonar Case Part 3

Like many of our disruptions of the Earth, high energy “active” sonar has enabled us to do seemingly miraculous things like locate and track a very distant (quiet) submarine. The trouble is always what it costs to do these things. Researchers have drawn causal connections between active sonar and serious harms to different sea creatures, especially beaked whales. These connections have firmed up so much over the last few years that even the U.S. Navy institutionalized a layer of review in (most) peace-time uses of active sonar in an effort to minimize the damage. But who is to say when lots of disruption and damage become too much? In the NEPA case now before the Supreme Court, Winter v. Natural Resources Defense Council , it looks like the usual suspects will once again have that question hashed out for them. (The usual suspects are the administration v . the lower ranks of its agencies, the Ninth Circuit v . SCOTUS, the states, and perhaps Verbal Kint.) But in this third post

Isolation, Engagement and Confrontation

The recent announcement by President Bush that he would attend the opening ceremonies at the Olympic Games in Beijing implicates both an old debate about how to influence malign regimes. One school of thought says that beyond a certain threshold of evil, bad regimes should be isolated to hasten their collapse. The other school says that isolating measures---such as boycotts and other economic sanctions---punish the people who live in these regimes, but only stiffen the resolve of the rulers, who typically have ways of evading the sanctions for themselves, their cronies, and the military. This second school of thought says that engaging bad regimes through trade, diplomacy and cultural contact will gradually soften them. Interestingly, the urge to isolate versus to engage is not itself strongly correlated with ideology. For example, in the U.S., left/liberals wanted to isolate apartheid South Africa but to engage with Cuba, while conservatives had the opposite preference set. Perh

From Belgian Endive to Crocs

There are many reasons why the Dukakis Presidential campaign of 1988 will be remembered as one of the least inspired efforts in modern political history. Some will point to the ridiculous image of Dukakis in a tank . Others will note his emotionless, robotic (not in the Wall-E sense!) answer to the question of how he would react if his wife were raped and murdered. Still others will note how Lee Atwater et al snookered Dukakis with the Pledge of Allegiance and other cultural issues. For me, though, the best symbol of the problematic nature of the Dukakis campaign came early, when, trying to woo Iowa voters, he suggested that they should diversify from a corn (and soybean) economy to grow more exotic, high-value crops like Belgian endive. In the 2008 Presidential election, the by-now standard media narrative casts Sen. Obama as the heir to Dukakis---much more charismatic to be sure, but still the choice of the egghead set, what right-wingers (and others) derisively call "latte

Some Tentative Thoughts About Freedom

With the Independence Day holiday weekend now behind us, I've been thinking about the concept of freedom. This is hardly unplowed ground, of course. Along with the founding documents of the United States and countless other countries, freedom's contours have been explored by scholars over the centuries and across the political spectrum. FDR's famous " Four Freedoms Speech " -- describing freedoms of speech and expression, to worship, from want, and from fear -- sets a rather high standard as well. For a simple blog post on a Monday morning, I offer two much more modest thoughts. First, freedom is one of those words whose meaning has become hopelessly muddled. Along the lines of the argument from George Orwell that I noted in a post last week , this lack of clarity makes the word both potent for demagogues and -- more to Orwell's larger point -- potentially confusing for its users. If we do not really know what we mean when we use the word freedom, invok