Dorf on Law

Richard Rorty, who died yesterday, will undoubtedly be remembered most for his contributions to the fields he came to value least: metaphysics and epistemology. Rorty's views about the point of philosophy were sensible enough but to my mind his expression of them never quite rivaled that of William James. (Rorty was a better writer than the other great pragmatists, Pierce and Dewey, but that's not saying very much). Rorty's distinctive contribution to philosophy---set out in the first few chapters of Philosophy and the Mirror of Nature--- is a challenge to the traditional view of the relation between the world and our conception of it. In traditional philosophy, our minds try to create as close a model as possible of the world as it really is as they can; they try to mirror nature. Rorty challenged this way of thinking, and though he wasn't completely original---Wittgenstein in particular made similar claims about the relation between the world and our language--...

"who needs enemies?" would be the idiomatic way to complete that question, but that's not fair. I will admit that when I saw that Americans in general and President Bush in particular are widely popular in Albania, my first reaction was to assume that Albania had slipped back into autocracy and that our popularity was of a piece with the "popularity" of North Korea's dear leader. But no, Albania continues to be on the road to democracy. It appears that they just like us. They really really like us. In fact, Albanians are grateful for US support for ethnic Albanians in Kosovo and other foreign policy moves of the past. That should be welcome news except that somehow Albanian gratitude towards and warm feelings for Americans has translated into unflagging support for Bush Administration policies, including the Iraq war and, most recently, Guantanamo detentions. Albania has become the country of choice for releasing detainees whose home countries either ...

Vladimir Putin's surprise offer to cooperate with the United States on a missile defense capable of detecting and intercepting missiles from Iran or elsewhere has been greeted as a positive sign for US/Russian relations, and it may well be. But it also raises questions about the potential unintended consequences of missile defense. When President Reagan first committed billions to what was then known as the Strategic Defense Initiative (SDI or, pejoratively, "Star Wars"), it seemed, in principle, like a good idea. Reagan believed---correctly---that there was something immoral about relying for our defense against the threat of nuclear attack on a reciprocal threat to attack and kill millions of innocent civilians who had the bad luck to live under Soviet rule. Much better to defend ourselves with a shield that deflects or destroys the enemy's missiles without threatening civilian lives. But the Cold War version of SDI had two basic flaws. First, the technology did...

Rudy Giuliani had no problem living in the home of a gay couple when his wife kicked him out of the house for having an affair, but in his view Don't Ask Don't Tell --- premised on the notion that men and women who daily risk life and limb from snipers and IEDs would freak out if they knew exactly which of their fellow soldiers were gay --- is working well. And anyway, as he said at the latest Republican debate: "at a time of war, you don’t make fundamental changes like this." Mitt Romney said more or the less the same thing but his sellout on this issue is slightly easier to take because the whole premise of his campaign is that he didn't really mean any of those liberal things he said and did when he was Governor of Massachusetts; he was just kowtowing to a liberal constituency then but now freed from the bluest of blue states he's a true-blue conservative. Romney's approach is something like the Saturday Night Live parody of Hillary Clinton's vot...

Yesterday, Major League Baseball Commissioner Bud Selig asked Jason Giambi---who has pretty much publicly admitting to having used illegal steroids in the past---to cooperate with the investigation being conducted on baseball's behalf by former U.S. Senator and all-around Mr. Fix-It George Mitchell, or else . The official press release from MLB indicates that Giambi is more likely to be disciplined (or likely to be disciplined more severely) if he does not cooperate than if he does. This in turn raises two questions. First, disciplined for what? From what I have read, Giambi has only admitted to steroid use before baseball officially prohibited it. To be sure, even at the time, steroids were a Schedule III controlled substance under the law, and since Giambi almost certainly wasn't getting his via legal channels, his obtaining of the steroids may well have been a criminal offense. But as far as baseball is concerned, so what? Surely the league does not have the power to...

Mootness doctrine works in mysterious ways. As I note in my FindLaw column today, Monday's Supreme Court dismissal on mootness grounds of Claiborne v. United States highlights the awkwardness of mootness doctrine itself. Here I'll note a bizarre connection to the Scooter Libby case. Claiborne presented the question whether a federal district judge, in departing downwards from a Sentencing Guidelines range, may rely on factors that have already been considered by the Sentencing Commission, absent extraordinary circumstances. The district judge in Claiborne thought that the answer was yes, in light of the Supreme Court's conversion of the Guidelines from mandatory to advisory in United States v. Booker . The Eighth Circuit disagreed and the Supreme Court would have given a definitive answer, perhaps as early as Monday, had Claiborne not died last week, thus mooting the case. Suppose the Supreme Court had agreed with the district judge. In that case, it might have writt...

For those of us waiting to see what effect the replacement of Justice O’Connor with Justice Alito would have on the Supreme Court, the last couple months have begun to provide some concrete evidence. First, there was the Court’s decision in Gonzales v. Carhart , which upheld a federal law banning the abortion procedure known as “intact dilation and evacuation.” When the Court struck down a similar Nebraska law in 2000, Justice O’Connor wrote a concurrence in which she stated that the law was invalid because it did not include an exception to protect the life or health of the pregnant woman. The federal law did contain an exception to protect the woman’s life, but not her health, so it seems likely O’Connor would have voted to strike it down. Alito voted to uphold the law, and since the decision was 5-4, his vote in the case was decisive. Second, the Court ruled 5-4 in Schriro v. Landrigan that a federal district court did not abuse its discretion in denying a habeas hearing to a de...

I haven't read the Second Circuit's decency ruling yet, but I liked this moment from today's New York Times coverage of the decision. The story quotes FCC chairman Kevin Martin as saying, "'The court says the commission is "divorced from reality." It is the New York court, not the commission, that is divorced from reality.'" He adds that if the agency is unable to prohibit some vulgarities during prime time, "'Hollywood will be able to say anything they want, whenever they want.'" How subtle! The problem lies not with the law, the Commission, or even the ruling as such; it's those potty-mouthed hedonists living in our bicoastal Sodom and Gomorrah, New York and "Hollywood." And the Second Circuit is not a multi-state federal circuit, it's "the New York court." Thank goodness we have folks from the moral, non-licentious, non-vulgar heartland of America -- or, anyways, Washington, D.C. -- to set...

Paul Caron at TaxProf has a couple of interesting posts ( here and here ) on churches either permitting or directly participating in political activities that, under the IRS rules, pretty clearly violate their tax-exempt status. The first of these posts deals with a sermon by Minister Bill Keller. Here are the juiciest bits of the sermon: If you vote for Mitt Romney, you are voting for satan! This message today is not about Mitt Romney. Romney is an unashamed and proud member of the Mormon cult founded by a murdering polygamist pedophile named Joseph Smith nearly 200 years ago. The teachings of the Mormon cult are doctrinally and theologically in complete opposition to the Absolute Truth of God's Word. There is no common ground. If Mormonism is true, then the Christian faith is a complete lie. There has never been any question from the moment Smith's cult began that it was a work of satan and those who follow their false teachings will die and spend eternity in hell. ...

UPDATE (6/7/2007): An updated and more complete discussion of the issues in this post may be found in my column for AsiaMedia on Wednesday . ** A couple of weeks ago, in response to a New York Times editorial critical of continued U.S. support for General Pervez Musharraf, Pakistan's U.N. ambassador, Munir Akram, took a break from his duties as diplomat to perform a quick stint as media critic (thanks, SAJAforum ). In a letter to the editor printed last week, Ambassador Akram complained that the Times 's "repeated references to our president as a military dictator are offensive. President Pervez Musharraf was elected in accordance with Pakistan’s Constitution by our national and provincial parliaments. His re-election will be similarly democratic." [ link ] It will be recalled that Musharraf was swept into office with 98 percent of the official tally in an April 2002 referendum that presented voters with no opponents and the following ballot question: Do you want t...