Dorf on Law

Last week, a class action was filed against Microsoft for for deceptive practices in marketing Windows Vista. According to the complaint (which you can read here courtesy of the Seattle Post-Intelligencer), while Vista's release was being delayed, computers were sold with stickers identifying them as "Vista capable," even though the only version of Vista they can run is Vista Home Basic. That edition does not include the cool features that ostensibly make Vista different from its predecessors. The complaint quotes an unnamed reviewer for the proposition that Home Basic is "the most pointless edition of Windows that Microsoft has ever released." As someone who once purchased a computer that was Windows ME capable and then foolishly redeemed the coupon to "upgrade" from Windows 98 when ME became available, that strikes me as extremely damning. The case was brought in federal court as a diversity action, which is permissible under the Class Action Fa...

The big news yesterday out of Washington was the opinion in the Court’s global warming case, Massachusetts v. EPA . The case pit a dozen states and a dozen environmental organizations against the Bush Administration, ten other states, and many polluters. As Supreme Court opinions go, it was a real PR event. The Administration, apparently worried over how it was being spun, trotted people out all day trying to counter-spin. (It was probably for nil: if people know anything about this White House’s environmental record, it is its record of denying climate change.) Significantly, the Court rejected the Administration’s argument that global warming’s threat to all means no particular person can have standing to challenge an agency’s inaction that may be exacerbating it. Unfortunately, though, the relief granted by the narrow 5-4 majority was anything but blockbuster. While the Court rejected the Administration’s interpretation of standing doctrine, it left open the possibility that ...

A couple of months ago I agreed to post a haiku on Mass. v. EPA on the blog of the Columbia Chapter of the American Constitution Society, when the case was decided. Here's what I've come up with: The Earth gets hotter. Massachusetts can complain. EPA comply. Jamie Colburn will post a more substantive piece on the case later today, and I'll have a FindLaw column on it on Monday, April 9.

The Bush administration undoubtedly overreaches when it contends that the President's power as Commander in Chief precludes Congress---which has more enumerated powers relative to war than the President does---from "micro-managing" the war through troop withdrawal deadlines and the like. Yet surely the administration has a point (albeit a different one) in objecting to Speaker Pelosi's acting as messenger to Syria on Israel's behalf at a time when the State Department opposes direct talks with Syria. (Whether that opposition makes sense is a different matter.) The Constitution's Article II gives the President the power to "receive Ambassadors and other public Ministers," while providing Congress with no parallel authority for conducting diplomacy---other than the power to confirm U.S. diplomats. The conventional wisdom holds that the government should speak with one voice on matters of foreign relations, and having Congress conduct its own diploma...

The opinion is here . I haven't had a chance to digest it yet, but will post something for tomorrow.

In a column in Saturday’s New York Times, Stanley Fish discusses a recent Time Magazine article on public schools’ teaching of the Bible as a secular subject. Fish doesn’t take sides as to whether it should be permitted. Rather, he questions the value in it, given that the First Amendment prohibits public schools from teaching students that the Bible is true. “The truth claims of a religion—at least of a religion like Christianity, Judaism and Islam—are not incidental to its identity; they are its identity,” he writes. “[I]f you’re going to cut the heart out of something, why teach it at all?” The priority Fish gives to truth claims is supportable as to some religions, at least if you would rely on the views of practitioners. Many Protestant Christians would presumably concur, for example. Not very many practicing Jews probably would, though, and while there’s no telling what Fish means by religions “like” Christianity, Judaism, and Islam, he’d certainly be mistaken as to many r...

While surfing for material for yesterday's post, I came across a strange blog indeed: The official page of Iranian President Mahmoud Ahmadinejad . Although M-Jad (as his hip-hop friends no doubt call him) doesn't blog as frequently as I do, he does have a country to run into the ground and half the world to freak out. What he does post is fascinating: replies to queries from his admirers all over the world, but especially Americans opposed to the Iraq war and the Bush Administration policies.There's even a feature by which readers can post comments, although judging by the near-uanimous praise in the comments, my guess is that if you were to post a critical comment it would either never appear or be removed post-haste. But maybe not. For example, scattered among the glowing praise---e.g., "I support Iran nuclear program too. US is biggest danger for all Middle East;" "Keep it up Mr.President you are our hero;"---one finds a smattering of uncensored c...

Among the reasons that the Bush administration has given for not treating al Qaeda and other Taliban captives as prisoners of war is that as blatant violators of the laws of war themselves, these detainees forfeit the protections of the Geneva Conventions. In a 2002 FindLaw column , I explained why the claim was plausible, especially with respect to al Qaeda, but I should have noted then that even suspected al Qaeda members are entitled to the Geneva Conventions' protection until their status was determined by a competent tribunal, pursuant to Article 5 of the 1949 Convention . Since that time, my column has sometimes been cited in support of the administration's decision not to afford Gitmo detainees POW status, even though I made clear at the time that even if the administration's approach was legally justified, that didn't necessarily make it right as a matter of policy. The crisis over the captive British sailors and marines highlights the point. Iran's parad...

When Dolly the sheep's life was announced in 1997, few thought of her as the Brave New World of meat consumption (itself a small cause for hope I guess). But many interesting posts to the blog recently on eating meat and responding to climate change have had me thinking about just how complicated being an omnivore is in our culture--and how much more complicated it is about to become. Companies like ViaGen have been arguing for years that cloning livestock might eliminate major sources of uncertainty in animal production and thereby reduce the moral and environmental costs that mass animal agriculture represents. For example, hatching only the chickens that are able to thrive in the confinement houses Pilgrim's Pride, Tyson, and the others maintain may be a way to reduce cruelty (it may even be the most profitable way). From my own experience with the Clean Water Act in the Chesapeake Bay watershed, I can attest that making the use of phosphorous- and nitrogen-reducing chi...

That's the title of a brand new book by Dorf on Law blogger and Rutgers Law Professor Sherry Colb. Actually, as you can see from the cover (left), the full title is When Sex Counts: Making Babies and Making Law . You can buy it from Amazon , Barnes & Noble or directly from the publisher . Beginning with a riff on the Supreme Court's famously obtuse distinction between pregnant and non-pregnant persons in Geduldig v. Aiello , the book addresses a host of sex equality issues by observing the centrality of reproduction and pregnancy (or the capacity for pregnancy) to nearly all of them. I think this is a rare and successful effort to write across the spectrum of sex equality issues. But don't take my word for it. Here are the blurbs: "With deft writing, clear thinking, and deep knowledge, Sherry Colb illuminates the dark intersection of law and sex. She displays both journalistic verve and scholarly rigor. The result is a wonderful book that makes advanced think...