Dorf on Law

A few days ago, Mike posed the following question regarding Pakistan: Is it possible to support the pro-democracy forces without risking the replacement of an autocratic but friendly regime with a fanatical hostile one? My own initial reaction was that intense fear of that prospect, which Mike described as "terrifying," might often cause Americans to overestimate the actual risk. (Yes, John Edwards , I'm talking to you.) Now, over at Chapati Mystery, our colleague Sepoy goes a step further, arguing not simply that it is possible to support the pro-democracy forces without that feared outcome materializing, but that doing so in fact offers the best hope of avoiding it. His essay offers some useful background on the current standoff in Islamabad at the Lal Masjid (and in particular, its roots in the Islamization policies implemented during the 1980s by the last military dictator in Pakistan supported by the United States, General Zia ul Haq). The full post is well worth...

In an insightful article in the 1996 Michigan Law Review, Harvard law professor Carol Steiker argued that the Burger and Rehnquist Courts had made their peace with the liberal criminal procedure precedents of the Warren Court by maintaining their form and in some cases even extending them, but rendering them mostly toothless through a variety of procedural devices. (The article is Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers , 94 Mich L Rev 2466 (1996), available at Hein, WestLaw and Lexis, but only by subscription). Here is Steiker's own summary of her thesis: The Burger and Rehnquist Courts have not altered radically - and indeed, occasionally have bolstered - the Warren Court's constitutional norms regarding police practices. The edifice constructed by the Warren Court governing investigative techniques under the Fourth, Fifth, and Sixth Amendments remains surprisingly intact. Rather than redrawing in any drastic fashion the line bet...

That's right. 2 for the price of 1. First the film rec: El Método (imdb page here ) is a wicked little Spanish film (originally a play) that was released in Spain in 2005 but only now is hitting the U.S. arthouse circuit (with English subtitles). The plot outline is simple enough: 7 finalists for an exec job with a Madrid firm in an unspecified industry, with the winner to be determined by an unspecified tournament that is a cross between an episode of Survivor and the Milgram experiment. And now the Title VII question (modest spoiler alert): At one point the 6 then-remaining applicants are asked to imagine themselves in a post-nuclear holocaust bomb shelter that can accommodate 5 people for 20 years. Whom do they exile? They are further told that each applicant must make an argument for staying in the shelter based on his or her "demonstrable" skills. Their c.v.'s are then shared. The group quickly allocates 3 slots, leaving a competition for the remaining 2. ...

The controversy over the Libby commutation raises a question that has been with us from the framing of the Constitution: Does the vesting of the pardon power in the President lead to corruption, as Presidents use it---or the lesser included power to commute a sentence---to reward their friends and cronies? The issue is all the more acute since the 22nd Amendment ensured that second-term Presidents would pay no direct political price because they know they don't have to face the voters. By way of comparison, it's worth noting that many states have gone away from the traditional system whereby the Governor in his or her discretion grants clemency, and towards vesting the power to grant clemency in a Pardon & Parole Board. Even in states where the Governor maintains the nominal power to pardon or grant clemency on his or her own motion, that power is often not exercised so as to avoid "politicizing" the process. Indeed, even at the federal level, pardons are gener...

My FindLaw column for next week will tackle the subject of the "rape exception" that some abortion opponents would recognize to a proposed abortion ban. This exception provides a useful opportunity to glimpse what pro-life advocates find objectionable about abortion. One aspect of the rape exception that I will not discuss in the column is the practicality of such an exception, assuming that one favors it in principle. If only rape victims are allowed to have an abortion, many women who are desperate to terminate an unwanted pregnancy will feel forced to lie and say they were raped. One could respond to this "moral hazard," of course, by requiring a woman to report to the rape to the police before she may terminate on that basis. As everyone knows, however, rape victims often choose not to report the crime because of the stigma and humiliation associated with victimization and the often-callous treatment they face as they navigate the criminal justice system. T...

During the period of July 4 -14, it seems appropriate to reflect on an all-too-common pattern followed by popular revolutions against rotten regimes: after the old regime is toppled, the various factions that overthrew it begin to fight among themselves, often with the least democratic faction prevailing. That is certainly how things played out in the French, Russian and Iranian revolutions, with the American revolution of 1776 standing as a rare exception. How to prevent this path is of more than theoretical interest now that nuclear-armed Pakistan appears to be under siege from several sides: tribal revolts in the hinterlands, an Islamist challenge in Islamabad (and elsewhere), and a movement for democracy and the rule of law among those who rightly object to the regime's treatment of the judiciary. Is it possible to support the pro-democracy forces without risking the replacement of an autocratic but friendly regime with a fanatical hostile one? The Bush administration pretty...

In honor of the Fourth of July, I commend to my readers the Declaration of Independence . Yes, its fine language about equality must count as rank hypocrisy, written and consented to, as it was, by slaveholders, but one can nonetheless see clearly in the broad language and the specific grievances the skeletal charter of a quite attractive liberal democratic regime. Indeed, some of the grievances against George III are eerily relevant to our own time and our own regime headed by a man named George. To wit: . . . He has affected to render the Military independent of and superior to the Civil power. . . . For depriving us in many cases, of the benefits of Trial by Jury: For transporting us beyond Seas to be tried for pretended offences . . . For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments . . . . Happy Independence Day (to readers in/from the U.S.).

Nina Totenberg's (excellent) Supreme Court roundup piece for NPR's Morning Edition is now available (in both audio and a transcript) here . Totenberg talks with a lineup of some of the usual academic (and other) talking heads (including yours truly). Meanwhile, if you somehow missed my shameless self-promotion over the last few days, you can find the Talk of the Nation story here , and last week's All Things Considered story on executive privilege here .

During our Talk of the Nation segment yesterday, Ted Olson repeatedly returned to the theme that the labels "liberal" and "conservative" over-simplify the various positions taken by the various Justices on various issues, a point with which I agree. Indeed, if you listen to the full show, you'll hear that I actually made this very point in response to the first question I was asked, even though Olson then proceeded to "disagree" with my supposed claim that such labels are fully accurate (although he otherwise agreed with most of my analysis). Nonetheless, Olson turns out to be right that we disagree about the accuracy of the terms liberal and conservative. We disagree about the degree to which political labels over-simplify. Olson said that the Court's decision in FEC v. Wisconsin Right to Life, Inc. could be characterized as liberal because it upheld a free speech claim, even though the 5 most conservative Justices were in the majority and t...

I'm possibly one of the few liberals who agrees with President Bush that "the prison sentence given to Mr. Libby is excessive." Two and a half years in prison is a lot of time for a non-violent crime. The problem is not Bush's decision to commute Libby's sentence; it's his failure to take similar action for the federal inmates serving still longer sentences for nonviolent offenses, especially drug offenses. It's also not obvious that Libby should do no time at all. In other words, Bush may have been right (inconsistency aside) to reduce Libby's prison time but wrong to reduce it to zero. Of course there's another dimension to this case: the suspicion that the Libby commutation was a reward for his keeping the administration's secrets (thus far and into the future). But for that offense, Libby was only ever going to be the fall guy.