Dorf on Law

You won't see that slogan on any bumper stickers but, bizarrely, it appears to be one of the top two or three talking points of the Clinton campaign. Here's what Senator Clinton had to say on Sunday on ABC's This Week: I've been taking the incoming fire from Republicans for about sixteen years now, and I'm still here, because I have been vetted, I have been tested. There's not likely to be any new surprises. People understand who I am, where I'm from, what I believe in. The suggestion, as George Stephanopoulos picked up in a follow-up question, was that Senator Obama has skeletons in his closet that will come out as a surprise in the general election. That seems quite implausible, however. If there were something with which Obama could be legitimately attacked, given the stakes, it's pretty clear that the Clinton campaign would have already made it known (through surrogates, of course). Thus, in response, Senator Clinton said that she was not sayin...

One of the problems with American constitutional discourse is that it is so – how do I put this? – 'American'. Of course, this is not really a problem when it is being used to analyze issues arising under the American constitution. But American constitutionalism (and the particular experiences it embodies) also tends to dominate comparative and international constitutional discourse as well. And it is here where the problem lies. Simply put, much of the rest of the world, particularly but not exclusively the developing world, are confronted by constitutional developmental issues that the American experience simply never confronted. The American experience is innately conservative – we have conceptualized our constitution as a means of preserving a “more perfect” constitutional and social order, rather than as a means for building a new order. It is a constitution that seeks to restrain ‘government’. But much of the rest of the world is engaged in a process o...

Why were the Patriots so heavily favored to win the Superbowl? Of course, they're a very good team, but let me suggest that part of the answer was an inductive fallacy. The Patriots came into the game undefeated. However, they won some of their games---including their playoff games and their final regular-season game against the Giants---by small margins. Had a few balls bounced differently, they might not have been undefeated; indeed, they might not even have been in the Superbowl. Nonetheless, bettors and pundits looked at the 18-0 record and thought that it was almost a law of nature that, even if the score was going to be close, the Patriots would win. Why? Because that's how it worked out in all of their previous games this season. And there you have the inductive fallacy. As the great Scottish philosopher (and more) David Hume explained in the 18th century, the past never predicts the future, except if one assumes that the future will continue to be like the past,...

As many news outlets have reported (see a helpful list here ), the actor Wesley Snipes was convicted last week on three misdemeanor counts and acquitted on three other misdemeanor counts as well as two felony counts in connection with non-payment of taxes -- evasion which grew from his involvement with a group that claims that people are not required to pay taxes. I wish that I could say that I had predicted the generous baby-splitting in which the jury apparently engaged, but as I argued during a short appearance on CNBC when the trial was beginning (video here ), this case looked pretty grim for Snipes. I allowed, of course, that a jury can always buy into a bad argument; and I also pointed out that being an actor had to be a bonus for Snipes as he tried to convince the jury of his sincerity (to say nothing of the benefits of being a celebrity in our tabloid-driven culture). Still, the outcome must count as a surprise, because the case against Snipes was very strong. Given that his...

For the most part, I have avoided watching the primary debates. I find the policy differences among the Democratic candidates to be fairly small and I am in the unusual position of personally knowing and admiring one of the candidates (Obama), so that I've known for a long time I'd be supporting him in the primary and then voting for whoever wins the Democratic nomination in the general (unless it's Lyndon LaRouche, Zell Miller or Joe Lieberman). But I understand that some number of people tune in for the purpose of making up their minds about which candidate to vote for. That strikes me as likely to be a frustrating enterprise. The format encourages the exaggeration of small policy differences and efforts at "gotcha" by both the questioners and the candidates. Meanwhile, I suspect that many of the viewers are asking themselves not just which candidate would be the better President---a job that doesn't involve any debating anyway---but which candidate woul...

In Wooley v. Maynard (1977), the Supreme Court ruled that the First Amendment protected New Hampshire drivers who, objecting to the State's motto of "Live Free or Die," were entitled to tape over that motto on their state-issued license plates. There matters stood for some years, with the occasional Floridian no doubt taping over "Sunshine State," and the odd anti-Quaker or merely anti-social Pennsylvanian taping over " You've Got a Friend in Pennsylvania ." Then the states discovered that they could make a quick buck by issuing specialty license plates with customized messages. For an extra $35 or so, a Texan could get a plate saying "Hook 'Em Horns" or "Go Aggies," or whatever. Good fun and a good source of revenue. This being America, it couldn't last, and so people who wanted to take every opportunity to make a political point got into the act, demanding the right to make stronger statements, including anti-abor...

The front page of Wednesday’s New York Times reports that police uncovered an illegal kidney-transplant program in India . The program targeted day laborers and other poor people, who were either deceived and then forced to undergo kidney removal or persuaded to sell their kidneys, so that wealthy Indians and foreigners – known sometimes as “organ tourists” – could receive kidneys unavailable to them through ordinary channels. One of the victims of the kidney ring became so ill after his surgery that he could not work anymore to support his destitute family. The story is disturbing and sheds light on the power of wealth to motivate predatory conduct toward the less fortunate. In this post, however, I want to focus on the other people whose lives are implicated in the kidney story: the wealthy organ recipients. In a story of rich people raiding poor people for their organs, of course, the rich do not tug on our heart strings. It is often largely through the accident of birt...

As promised, my FindLaw column today examines President Bush's plan to ignore Congressional earmarks in the legislative history of budget bills. Yesterday, Bush issued an executive order doing just that. As I explain in the column, ignoring earmarks is not a bad idea, and given Supreme Court precedent, a legal one at that, but Bush is very poorly positioned to lead the fight against earmarks because: 1) they are small potatoes (about $17 billion annually) compared with the giant fields of potatoes (not to mention blood) he has poured into Iraq and has foregone through tax cuts; and 2) the premise that provisions outside a statute's text are not law is contradicted nearly every time that Bush issues a signing statement asserting his right to contradict a statute's text based on his own idiosyncratic and self-serving interpretation of the Constitution. Here I'll raise one tangential point. The Administration says it's not bound by earmarks contained only in legisl...

In my FindLaw column tomorrow I'm going to discuss President Bush's proposal---set forth somewhat cryptically in a paragraph of his State of the Union last night and also scheduled to be embodied in an executive order some time today---to attack earmarks. Here I'll limit myself to two observations about the State of the Union. I should preface these observations with the disclaimer that I didn't watch the actual address and so I'm basing this on the text. First, it's notable that although the President said that the budget he will shortly propose to Congress "terminates or substantially reduces 151 wasteful or bloated programs totaling more than $18 billion," the speech mentions not a single program that Bush thinks warrants terminating or reducing. Indeed, he mentioned program after program that he said should be created or have its funding increased. Given that, given the fact that he also proposes to make his tax cuts permanent, given how small ...

The hiring of William Kristol to lend greater ideological diversity to the NY Times lineup of regular columnists was met in some quarters with consternation. Unlike William Safire, who was generally conservative but in a principled way that led him to criticize Republicans no less than Democrats, Kristol has generally been more closely associated with a partisan style of opinionating (which is not to say that he doesn't sometimes criticize Republicans too). Thus, liberal-to-moderate readers of the NY Times worried that Kristol might be the "wrong kind" of conservative. Whatever the merits of that worry, Kristol's column today is spot on, and but for the absence of her characteristic snarkiness, could have been penned by Maureen Dowd or (the never-snarky) Bob Herbert. Kristol correctly argues that former President Bill Clinton's effort to downplay Obama's (at that time merely) projected big victory in South Carolina by comparing it to Jesse Jackson's vi...