Dorf on Law

Yesterday was a banner day for stories about sexual harassment by people with the surname Thomas. First Anita Hill published an 0p-ed in the NY Times defending herself against charges leveled against her by Justice Clarence Thomas in his new book, My Grandfather's Son . Then, the jury in the sexual harassment case against Isiah Thomas and the New York Knicks returned a verdict for plaintiff Anucha Browne Sanders. The cases have further parallels as well. In both cases, the accused steadfastly maintained (and still maintains) that the charges were false. Both cases involve allegations by a professional African-American woman against an African-American man. And despite the intra-racial nature of each dispute, both were nonetheless racially charged. In 1991, then-judge Thomas famously referred to the portion of his confirmation hearings focusing on Hill's charges as a " high-tech lynching for uppity blacks who in any way deign to think for themselves," thus contend...

With a small number of important exceptions to which I'll return in a moment, ever since Erie RR v. Tompkins , federal law, including federal constitutional law, has been indifferent to the source of state law. Erie held that the common law as announced by state high courts is state law to be applied by federal courts in diversity (and in what are now called supplemental jurisdiction) cases. Indeed, even prior to Erie , federal courts accepted as authoritative state court constructions of state statutes. The exceptions fall into two principal categories: 1) Where state law questions are intertwined with federal questions, federal courts need not accept state court determinations of state law that defeat federal rights; and 2) Particular federal constitutional provisions in Article II and the Twelfth Amendment limit the deference to which state courts are otherwise entitled in interpreting state law. Three of the Justices in the majority in Bush v. Gore (Rehnquist, Scalia and Tho...

Today's the first Monday in October, meaning the start of a new Supreme Court term, and much of the buzz concerns a recently granted Kentucky case presenting the question whether lethal injection is a "cruel and unusual" method of execution. My veterinarian (okay, my dog's veterinarian) said to me shortly after the case was granted that the issue arises because of the medical profession's decision to forbid physicians to participate in executions. He (my vet) said that he could execute prisoners in a humane way, although he wasn't exactly volunteering. To be sure, the actual case presents the question whether the particular three-drug "cocktail" used in actual lethal injections poses too high a risk of severe pain for the expiring condemned criminal, even if administered properly. But part of that risk is surely due to the non-participation of doctors. So here's a tough question: Suppose that a method of execution is painless when carried ou...

As I noted in a post a couple of days ago , I was on jury duty Thursday and Friday. As civic duty goes, I certainly can't complain about the experience (although I admit that my earlier post could be read as doing just that). With American men and women in the armed services suffering grievous injuries and dying on a daily basis, the inconvenience of spending a couple of days or even a couple of weeks away from the ordinary routine of work is a small price to pay for a functioning legal system. (People living paycheck to paycheck who must take time off from work suffer a substantially greater hardship.) My point there, which I'll belabor here, is that one aspect of jury service---peremptory challenges---makes it substantially more burdensome than it needs to be, without generating any real benefit. I make that point fully aware that, in the scheme of things, the burden is relatively light (especially for people like me, who get paid in full during jury service). This was m...

I find Sherry's posts advancing her views on the rights of animals provocative and valuable. Her latest post is no exception. Like some of the commenters to her post, I do wonder about her statement that it is self-evidently true that, in the words of Justice Rivlin, "wild creatures, like pets, have emotions. They were endowed with a soul that experiences the emotions of joy and sorrow, happiness and grief, affection and fear." The sticking point for me is not the question of whether animals have emotions, on which I take no strong view, and which may have been the aspect of the quote to which Sherry responded most fervently. Rather, it's the statement that animals have souls. I don't see how this is self-evident. While I believe human beings may have souls, it is not self-evident to me that they do, and it is still less self-evident to me that the same thing can be said about animals. I suppose one could reason, in some natural law-like way, to this posit...

21 years ago, in Batson v. Kentucky , the Supreme Court held that a prosecutor's use of peremptory challenges on the basis of prospective jurors' race violates equal protection. Justice Thurgood Marshall joined Justice Lewis Powell's majority opinion, but also wrote a concurrence arguing that the Court should go further and completely ban peremptory challenges. Permitting any such challenges, Marshall said, would make it extraordinarily difficult to prove race discrimination in any given case. In the years since Batson , the Supreme Court has expanded both the categories of forbidden discrimination (to include sex and national origin as well as race) and the circumstances in which it is forbidden (including peremptories by criminal defense attorneys and by attorneys in civil cases). However, the Court has not taken up Justice Marshall's suggestion of eliminating peremptories altogether. That is most unfortunate. Given the ease with which a prima facie Batson violat...

On Tuesday evening, Mike and I attended a panel at Columbia Law School entitled “Cruel Farming Practices and the Law: The Israeli Ban on Foie Gras.” The panel, introduced and moderated by David Wolfson, a Lecturer-in-Law at Columbia, took up the subject of a 2003 Israeli High Court of Justice decision holding that the force-feeding of geese or ducks involved in producing foie gras violates the Animal Welfare Law. Panelists included Retired Justice Tova Strasberg-Cohen and Justice Eliezer Rivlin of the Israeli Supreme Court as well as two attorneys, Jonathan Lovvorn and Mariann Sullivan, who have litigated challenges to cruel farming practices in the United States . As the panel proceeded, I was struck by the salience of two positions that the Justices embraced. The first position was that nonhuman animals have personal rights against torture and harm that are entitled to weight, even when honoring those rights might have a negative impact on farmers and consumers. In...

Earlier this year, I posted some thoughts on the question of using downloads from the SSRN repository to evaluate the "scholarly impact" (or some other notion of importance) of faculty and law schools. My biggest concern remains that the use of these download data in rankings gives people an incentive to do the opposite of what SSRN was designed to do in the first place: encourage people to look at each others' work and to engage with it. Specifically, since we know that a decision to download a paper will pump up the author's rankings, that knowledge can cause us to pass over a paper either for straightforward strategic reasons ("I don't want to pump up his numbers!") or for more benign reasons ("I'm not sure what this paper says; but the very act of finding out will pump up the numbers for a paper that I might end up wishing I had not downloaded.") I'll add here that there is an additional difference between download counts and ci...

Columbia President Bollinger scolded Iranian President Ahmadinejad's denial of (or on Ahmadinejad's account, at least to Western audiences, questioning of the evidence for) the Holocaust on the ground that this denial (or questioning) is factually preposterous: The Holocaust, Bollinger noted, is extraordinarily well-documented historical fact. Fair enough, but the assertion of factually preposterous views (or even the questioning of extraordinarily well-documented facts) is not ordinarily denoted a moral failing. In the United States, millions of citizens disbelieve the extraordinarily well-documented scientific fact that human beings evolved from other species. Three of the out-and-out evolution deniers are candidates for the 2008 Republican nomination for President and President Bush himself has said that "the jury is out" on evolution. These are preposterous views, to be sure, but not the sort of thing that would get you imprisoned for espousing in Germany or Austr...

I'm on the BBC World Service at 1 pm Eastern Time talking about regulation of Holocaust Denial in Europe (and its non-regulation in the U.S.). Update: Well that was a bit of a bust. The BBC technicians couldn't patch in for much of the hour, so I ended up joining only the tail end of the conversation. We didn't get to the question above but instead talked about whether it was appropriate for President Bollinger to introduce President Ahmadinejad by calling attention to his flaws. I said that Bollinger was in a difficult position because: 1) He himself had not extended the invitation and (I'm guessing) probably would not have done so were it just up to him; 2) But he appropriately did not want to interfere with the autonomy of Dean Coatsworth; 3) And given the high profile nature of the event it was inevitably going to be seen as a Columbia event (rather than merely a SIPA event); 4) So he was obligated to say something; 5) But a merely polite "Heeeeeere's Ma...