Showing posts from April, 2009

Justice Souter to Retire (Updated Post)

(Updated as this story has now been confirmed and updated a second time as I've thought some more about it.) Gulp! And so the question on everyone's mind (okay, on my mind ) is this: What will it take to change Senate Judiciary Committee Rule IV in the event that the post-Specter-shift Republicans decide to play hardball? In today's Republican Party, Orrin Hatch and Lindsey Graham look like the best hopes to move Pres. Obama's nominee to the full Senate. But let's suppose that the Republicans (now minus Specter) on the Judiciary Committee decide they want to filibuster Pres. Obama's nominee (oh, i don't know, let's say Pam Karlan ) in the Committee , recognizing that the Dems (either with Al Franken seated or with the cooperation of one of the Maine Senators) can break a filibuster in the full Senate. Senate Rule XXVI authorizes each committee to make its own rules, which is how we get Judiciary Committee Rule IV. That can be amended by the committe

Specter and Naked Political Ambition

In two posts last summer ( here and here ), I discussed Sen. Joe Lieberman's career after his decision to become an independent rather than a Democrat (but to continue caucusing with the Democrats). I noted Lieberman's surprisingly low profile in the Senate and his apparent lack of an affirmative agenda, and I concluded that Lieberman simply was desperate to keep his Senate seat as a goal in itself. I thus agreed with Michael Dorf's earlier assessments that "Lieberman has made plain that the cause about which he cares most deeply is Joe Lieberman," and "[B]ehind Lieberman's disarming wit lies the soul of an opportunist." Which brings us to Arlen Specter. Whatever one might think of my assessment of Joe Lieberman's motives, one has to give Specter credit for removing all doubt about his. In his announcement that he has decided to become a Democrat after several decades as a Republican Senator from Pennsylvania, he stated quite openly that he

Disparate Impact, Double Effect, and Euthanasia

On FindLaw today, I have a column that considers Ricci v. DeStefano , a case argued before the U.S. Supreme Court last week, in which white firefighters challenge actions taken by the City of New Haven Fire Department as violations of the Fourteenth Amendment Equal Protection Clause. The Fire Department had given an examination to determine whom to promote in its ranks but, after a hearing, decided not to certify the results of that examination because they produced a disproportionately white set of promotion-eligible individuals (and an all-white group of individuals to be automatically promoted). The Fire Department argues that if it had certified the test results, it would have been guilty of "disparate impact" race discrimination under Title VII (in which a facially neutral act resulting in a racially disproportionate outcome must satisfy "business necessity" to avoid violating the statute). My column examines the "damned if you do/damned if you don

The Flyover Debacle: Head(s) Must Roll

Earlier this week, people in lower Manhattan and Jersey City were panicked by the sight of a jumbo jet flying at a very low altitude, apparently being pursued by a jet fighter. The airplane made a pass around the southern tip of Manhattan, near Ground Zero, making unusual turns and changes in altitude. This sight sent workers and residents from around the area into the streets, generating a rush of calls to the 9-1-1 emergency line and creating fears that another planes-as-bombs terrorist attack was underway. As it turned out, the jumbo jet was one of the planes that is sometimes used as Air Force One, and the purpose of the flight was to "update" the military's photos of the plane with New York City in the background. Incredibly, the people who approved the flight ordered the New York Police Department and other responsible entities not to tell the public in advance that this was an exercise. If this sounds to you like a perfect example of why research organizations

How Specter's Defection Could Make It Harder to Confirm Pres. Obama's Judicial Nominations

Does Arlen Specter's defection from R to D strengthen the President's hand in Congress? Perhaps overall but not on judicial appointments because breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority. Before today, Specter was likely to be that one Republican. Now what? Posted by Mike Dorf

Climate Change and the Clean Air Act As Is

Last week, the Administration announced its much anticipated “endangerment” finding on greenhouse gases and the Clean Air Act (CAA). Quite cleverly, the finding was a preliminary step only: it concluded that six major GHGs combine to function as “air pollution” that may be “reasonably anticipated to endanger public health and welfare” under Title II of the Act (on mobile sources). This had the virtue (to EPA) of protecting EPA’s discretion to treat different types of GHG sources differently. So just out from NYU yesterday: a roadmap for regulating four of the six GHGs under the CAA as currently structured (assuming the finding is finalized as planned). The NYU report outlines (1) the legal arguments that the CAA fully authorizes EPA to create a “cap-and-trade” program for the six major GHGs, (2) the way that such a program could operate at or near an “economy wide” scale, and finally (3) that standard cost/benefit analyses would support EPA moving forward with such a program qui

The Future of Universities

Mark Taylor writes in the NY Times today about how to restructure universities. I agree with much of what he says, especially the point that graduate education as currently practiced is a bad deal for most grad students in the arts and sciences--who receive low pay and, absent a tuition waiver, a mountain of debt, but frequently have no realistic chance of eventually landing tenure-track positions (which was the justification for this apprenticeship model in the old days). Taylor also points to (familiar) flaws in the institution of tenure, although he does not reckon its benefits or the consequences for free inquiry were it abolished. Likewise, Taylor makes a case for replacing sub-sub-specialization within departments with inter-disciplinarity and project-based organization. Here the basic model is something on the order of a team of superheroes, each with his or her own special skills (e.g., a biologist, a climatologist, a physicist, a guy who shoots laser beams from his eyes) a

Is Turnabout Fair Play?

On Monday the Supreme Court will hear oral argument in Bobby v. Bies . My colleague John Blume is arguing on behalf of the respondent, who is under a death sentence from the Ohio courts. In addition, a number of my federal courts students have worked on the case under the auspices of the Cornell Law School Death Penalty Project . For those reasons, I have some reason to be less than fully objective and, accordingly, I won't here either make a pitch for an outcome or hazard a prediction. I would note a peculiarity of the case that will make it an interesting test of some of the Justices' various commitments. Given the procedural complexity of the case, however, doing so will require a bit of background. Bies was convicted of murder and sentenced to death for the murder of a boy. (As in most such cases, the crime was gruesome.) At his sentencing hearing, Bies's lawyer argued for life imprisonment rather than death partly on the ground that Bies's mental retardation

Cross-Ideological Common Ground on Torture and Discrimination, Sort of

Former VP Cheney and others (including a commenter on this blog) have criticized the Obama Administration for releasing the Bush OLC memos authorizing harsh interrogation techniques but redacting information about the supposed effectiveness of waterboarding, etc., as a means of obtaining actionable intelligence. On its face, the criticism is odd because the legal prohibition of torture is a prohibition of effective torture as well as ineffective torture, as even the Bush OLC memos themselves acknowledge. The severity or permanence of injury that some technique does not differ at all based on whether or not it leads to truthful and actionable intelligence or simply leads to the person being interrogating saying whatever he thinks the interrogators want to hear. Thus, it appears that what Cheney and others are saying is: "Whether or not waterboarding was illegal, it was the right thing to do." That's not an inherently implausible claim. Just about everyone who thinks ab

Meet the New Dorf on Law, Same as the Old Dorf on Law

Hey there DOL Nation. I have changed the look of Dorf on Law and relocated the URL from to but don't worry: I also wrote a line of code on so that your old bookmarks will still work. However, if you are used to getting the Dorf on Law feed or subscribing by email, your old subscription may no longer work. If it doesn't, just click on the subscription link on the sidebar to the right and re-subscribe. (If signing up for email again, click "posts," then "atom" and then follow the email link) It will take all of about 15 seconds. Why the change? Two reasons: 1) I had been using external hosting, which meant some occasional downtime. That should be fixed now. 2) Hey, it's got new colors. It's uhm, one louder. Posted by Mike Dorf

A Few More Thoughts on Local Government

In my post on Tuesday, I discussed the possibility that the current problem of severe local and state government budget crises across the United States might result in a (very positive, in my view) reduction in the number of local governments, with towns and villages forced to join forces as a way to save money. When, for example, two towns with a total of 2500 residents maintain separate police forces, school systems, sewer districts, local governments (executives, legislatures, and judiciaries), and so on, there is an awful lot of wasteful duplication of functions (not to mention nearly unavoidable failures to communicate and coordinate across jurisdictions). In comments on this blog's message board and in off-list emails, some readers have raised issues that are worthy of further discussion, a few of which I will try to address here. First, as I mentioned in my original post, I am not aware of any estimates of how much money could really be saved by combining services across

Must the U.S. Extradite Alleged Torturers if they are not Prosecuted Domestically?

In my latest FindLaw column (available here some time Wednesday afternoon), I argue that if the Obama Administration ultimately decides not to prosecute anybody for committing torture during the Bush years, the President ought to consider pardoning all those involved---and simultaneously explaining that the pardons are meant to acknowledge rather than deny wrongdoing. Here I want to raise a related concern. Under Article 7 of the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , signatories are obligated either to extradite violators or to submit their cases to the "competent authorities" to consider bringing charges. These competent authorities, the provision goes on, "shall take their decision in the same manner as in the case off any ordinary offence of a serious nature under the law of that State." President Obama or his aides seem to be keenly aware of that provision, because earlier today he told reporters that

Big Changes in a Crisis: State and Local Government

Late this past December, I inaugurated what I hoped would be a series of posts discussing some large changes that we could make in various areas of the economy and society, changes that might only be possible in a time of severe crisis. I did not realize it at the time, but the basic idea was captured by Rahm Emanuel, soon to be the chief of staff of the Obama White House, in his pithy observation that "you never want a serious crisis to go to waste." Some interests are so entrenched that our only hope for ever dislodging them is to ride the wave of an era-defining change in attitudes and expectations. After my initial promise to write that series of posts, I wrote one post in which I discussed changing the automobile industry in the United States to be more environmentally responsible and customer-friendly. I then let the "big changes in a crisis" series lapse, in part because of the whirl of news and events surrounding the new administration, but also in large m

Roxana Saberi and Geopolitics

The conviction and sentencing of American (and Iranian) citizen Roxana Saberi after a secret trial is an outrage for which, of course, the Iranian government bears full responsibility. That said, the latest news about Saberi's case raises at least two issues connected to U.S. policy. First, there was the bizarre news that Iranian President Mahmoud Ahmadinejad had sent a letter to the prosecution urging that Saberi be given a fair trial. It's hard to know whether this is even true, or what it would mean for Ahmadinejad to request a fair trial. It's also possible that the letter was a publicity stunt aimed at Iranian domestic opinion. Ahmadinejad faces a challenge from, among others, "reformer" and former President Mohammad Khatami. ("Reformer" is in quotation marks because it's practically part of Khatami's name.) Or perhaps instead (or in addition), this was a publicity stunt aimed at the U.S. Ahmadinejad may have calculated that his poli

What is a Hard Case for Justice Thomas?

As noted in a NY Times article , Justice Thomas made a rare public appearance recently. The article paints an interesting picture of the Justice, who describes himself as sometimes morose. Putting aside such issues of temperament and mood, here I want to focus on what Justice Thomas says about judging. The article concludes as follows: “This job is easy for people who’ve never done it,” he said later. “What I have found in this job is they know more about it than I do, especially if they have the title ‘law professor.’ ” Prima facie, that's a fair point. It's generally easier to criticize someone else's decisions than to make those decisions yourself. Thus, what Justice Thomas appears to be saying is that the burdens of responsibility make decision making harder. That's almost certainly right. And yet, subject to some critical scrutiny, the point would seem to undermine Justice Thomas's philosophy of judging. More than any other Justice in recent history, Ju

The Third Dimension

Now that our taxes are behind us for another year, let's take a break and talk about movies: Almost a year and a half ago, in " Tech for Tech's Sake ," I described my reactions after seeing two recent three-dimensional (3D) films: "Beowulf" and a re-release of "A Nightmare Before Christmas." Although the two movies used very different animation techniques, each was heavily marketed for its "3D experience." For both movies, my reaction was that the technology was little more than a gimmick and that the use of 3D actually detracted from the viewing experience. This was especially surprising considering that 3D films have been around for over 50 years. Documentaries about the 1950's regularly include scenes of movie audiences wearing the telltale red-and-blue glasses, screaming and leaning backward when something on screen seemed to be coming toward them. As I mentioned in my earlier post, this was most memorably captured thirty years ag

Contraception and Abortion

In my FindLaw column today, I discuss a recent speech by a spokesperson for Feminists For Life (FFL), in which she said that FFL does not take a position on contraception (because some members favor it and some oppose). I criticize FFL's failure to take a position and argue that especially for an organization that is categorically opposed to all abortions yet prioritizes feminism, it is critical to support women's access to contraception. In this post, I would like to explore an argument that some people have made about one form of contraception: birth-control pills. The argument has several components. First, birth-control pills have side effects that its makers did not initially fully appreciate and thereby gave women the illusion that they could "harmlessly" avoid the risk of pregnancy. Second, birth-control pills provide protection against one risk of sex (pregnancy) without doing anything to protect against sexually transmitted diseases (STD's). As a

Orange Pekoe, Earl Grey, Cubby Wubby Womb Room* . . .

The talk of American politics this week is the so-called "tea parties" or "tea bagging" of politicians. There is much to be said on the topic, and everyone is having some fun. The obvious reference to very non-conservative sexual practices is one place to start, for those whose humorous tastes stopped developing in the 10th grade (not that there's anything wrong with that). Others have pointed out that the protests are anything but spontaneous uprisings of regular folks but are, instead, heavily financed by the usual suspects on the ideological right. While the protests seem to be about a miasma of issues ranging from corporate accounting to simply opposing everything about Barack Obama (his citizenship, his religion, his Obama-ness), the gist of the tea party movement is, obviously, about opposition to taxes. As today is the date on which tax returns must be filed (unless you fill out an incredibly simple form for an automatic six-month extension to fil

Symbols in the Same-Sex Marriage Debate

As the fight over same-sex marriage evolves, we can note two of its current features: 1) Each side will accuse the other of wasting time on a divisive social issue when there are more immediate and pressing problems for government to solve. Except in the four states in which same-sex marriage is already legal, this issue would seem to favor the social conservatives, since it's the liberalizers who aim to change the status quo. But there's an asymmetry that cuts in the other direction: Pro-same-sex-marriage political activists who are actually gay have a great deal more at stake in this debate than do anti-same-sex marriage political activists (most of whom presumably aren't gay). For the people in the political middle and thus potentially in play, it's the anti's on this issue who will tend to look like they're getting all worked up over something that is almost purely symbolic. Sure, most anti's claim that they're in it to defend traditional marriag

So You Want to be a Federal Appeals Court Judge?

The Legal Times recently broke the news that SDNY Judge (and my former Columbia Law School colleague and all-around good guy) Jerry Lynch noted in his response to the Senate Judiciary Committee questionnaire regarding his nomination to the 2nd Circuit that he did not seek out a promotion; rather, Sen. Schumer asked Lynch whether he was interested. I suppose that's news, although it hardly amounts to juicy gossip. There is something a bit off-putting about the customary practice as described in the LT story, whereby potential candidates for circuit clerkships are supposed to promote themselves to sponsoring Senators, and so Lynch scores a few points for modesty, but only a few: Surely he would have been on the short list for a 2nd Circuit vacancy in any event; he's one of the youngest Democratic appointees on the SDNY, with both prosecutorial and academic credentials from his pre-judicial career, and has presided over some high-profile cases. Perhaps more newsworthy than which

Some Bologna About Academic Freedom

Consider the recent news that three American states (Indiana, Minnesota and Utah) are undertaking pilot programs to standardize university curricula in particular majors. The programs are of a piece with the so-called "Bologna Process" in Europe, which aims to create comparable standards across much of Europe, so that prospective employers wishing to hire, for example, a chemical engineer, will have some assurance of what a degree in chemical engineering means. (Presumably "bologna" lacks its American idiomatic meaning in Europe; it's also worth noting that the University of Bologna is the oldest continuously degree-granting university in the world, so that sophomoric jokes aside, "Bologna Process" is quite an apt name.) Predictably, Bologna-like programs have led to the expression of concerns about academic freedom by the American Association of University Professors (AAUP), whose president was quoted (in the story linked above) as saying that if y

All Those Trillions Must Mean Something, Right?!

Earlier this week, I discussed the meaninglessness of the gross federal debt as a measure of the U.S. government's fiscal position. I pointed out that of the current debt of roughly $11 trillion, about $5 trillion of that should not count as government debt because it is "intragovernmental holdings" of debt, accounting entries that keep track of what one agency of government owes another, not what the government owes its creditors. Almost all of the intragovernmental debt represents the value of Treasury securities held in the Social Security Trust Fund, which is currently growing by about $140-150 billion per year because Social Security taxes currently exceed benefits paid -- that is, the Social Security system is running a huge surplus. I thought that at least that claim was uncontroversial, because the preference for using net debt rather than gross debt is bipartisan and essentially unchallenged. Earlier today, however, I came across the website for a recent PBS


It's certainly welcome news  that the FDA will require new approval for medical devices that were on the market already in 1976 when the law changed to require approval for medical devices and were exempted from approval at that time.  That's long overdue. The change is of a piece with regulatory practice in a number of contexts.  The FDA itself sometimes requires a drug manufacturer that has received pre-market approval of its drug to conduct post-marketing studies , which can either confirm or cast doubt upon the initial judgment that the drug's benefits outweigh its risks. Likewise, in other specific contexts, the law either expressly requires periodic re-evaluation or regulates via an open-ended standard that itself has room for growth: E.g., a requirement that a device, drug or whatever be "safe and effective" would seem to require an updating of the baseline for both safety and effectiveness as technology improves.  In this way, standards (rather than rules)