Dorf on Law

The Sonar Case, recently on cert. to the Supreme Court, raises the perennial tension in conservation and environmental law: to what lengths ought we go to avoid disrupting nature by and through our everyday lives. In this case, the “everyday” part is the use of extremely powerful sonar that has been shown to seriously disrupt and, in some cases, kill and injure a variety of sea life. The Navy (and the Bush Administration) has argued that the use of this sonar in training exercises is necessary to ensure the nation’s military preparedness, a weighty claim in any case. But in my first post, I suggested that one of our marquee environmental statutes, NEPA, has made our perennial tension harder and harder to resolve because the statute’s normative core—that the federal government should take a hard look at the possible environmental consequences of its “major actions” before taking them—is all too often being muddled up in a tangled web of Executive Branch maneuvering and posturing. It...

Neil’s post about Orwell and the misuse of language to mask political maneuvering got me thinking about the Court’s cert. grant in Winter v. Natural Resources Defense Council (a/k/a the Sonar case). Last week, the Court agreed to hear the case—putting a potentially stunning array of issues in its October docket. It involves everything from the separation of powers rule that the Executive may not revise Article III court judgments to allocating the burden of proof in modern conservation. But in this first of a few posts, I’ll focus on the meta-ethical issues it raises. Winter began last year as yet another challenge to the Navy’s use of very powerful sonar, this one brought by the Natural Resources Defense Council (NRDC) and some others concerned that such sonar was/is killing, injuring, and seriously disrupting the behavior of various species of marine life. Specifically, it was a challenge to the Navy’s decision to forego the NEPA Environmental Impact Statement (EIS) in conductin...

-- Posted by Neil H. Buchanan Whenever I can find any excuse to do so, I include George Orwell's classic essay " Politics and the English Language " on my course syllabi. (There is always a reason to do so.) In class discussion, I describe that essay as the most important essay ever written, and -- subject to obvious qualifications that this conclusion is both subjective and limited to the essays that I have actually read -- I mean it. Most students initially think that they are back in a grade school grammar class, seeing Orwell's criticisms of various samples of egregiously bad writing as bordering on priggishness. Some students move beyond that level of understanding and also take away from the essay important lessons in critical reading and listening, with Orwell making arguments about political manipulation of language that are familiar from his much better-known classics 1984 and Animal Farm . There is good reason that the term Orwellian is so potent. F...

( Cross-posted from SAJAforum ) This morning, Aitzaz Ahsan , the President of the Pakistan Supreme Court Bar Association and the leader of Pakistan’s “lawyers’ movement,” spoke to a large audience at the New York City Bar Association about the lawyers’ movement, the importance of an independent judiciary, and the role of U.S. policy in Pakistan’s judicial crisis. During the past year, the New York City Bar has played an active role in support of Pakistan’s lawyers and judges — organizing a solidarity rally with other area bar associations after Gen. Pervez Musharraf imposed “emergency” rule in November, issuing a statement strongly urging Musharraf to restore the rule of law, and awarding an honorary membership , one of the organization's highest honors, to Pakistan Chief Justice Iftikhar Muhammad Chaudhry. In his remarks, Ahsan thanked U.S. lawyers and bar associations for their “unstinting support for constitutionalism, rule of law, and reinstatement of an independent judiciary ...

Okay, it's official. I'm now blogging from Ithaca. Well, actually, I wrote this back in NYC before I left and scheduled it to go up now, on the theory that I might want to unpack some stuff before immediately blogging. But future blog entries will be postmarked Tompkins County, NY. Meanwhile, other Dorf on Law bloggers have also moved: Sherry Colb to Cornell; Jamie Colburn to Penn State; Anil Kalhan to Drexel; and Trevor Morrison to Columbia (along with a player to be named later as part of the trade for me, unless one of us flunks the physical!). How will all of this movement affect the blog? Not at all, really. That's why they call it the World Wide Web. Posted by Mike Dorf

Earlier this month on this blog, Mike discussed some recent examples of political figures who were caught in sexually charged situations -- Clarence Thomas, Bill Clinton, Larry Craig, and Elliot Spitzer -- and concluded that "the worst thing a public official can do if caught in a sexually charged situation is resign or announce his intention to resign, because that tends to validate the shamefulness of the conduct." On the comment board, I added the example of Barney Frank, the Democratic Congressman from Massachusetts who now chairs the Financial Services Committee. Frank faced a sex scandal of his own back in 1990 (ironically, a scandal in which he was most aggressively attacked by Sen. Larry Craig), but he asserted his innocence in the affair and was ultimately reprimanded by the House after the Ethics Committee found no evidence of involvement in illegal activity by Frank. (Details here under "Reprimand.") While the salacious details of these and other sex-ba...

Wasting little time, the NRA is bringing suit against cities and suburbs with the country's most restrictive gun laws. Although San Francisco's city-wide ordinance banning guns by city residents had already been held invalid on California state law grounds, the NRA has targeted another San Francisco policy---the housing authority's insistence that tenants in public housing agree not to have guns as a condition of their leases. I have a speaking part in this NPR story on the issue, in which I say that the lawsuit will almost certainly lose in the lower federal courts because, until the Supreme Court overrules Presser and Cruikshank , the Second Amendment does not apply against the states. Although Justice Scalia has said in his off-the-Court writings that this continues to be true, I would not bet a lot of money against the Court incorporating the Second Amendment when the issue comes before it. Here I'll raise an issue that I discussed with the NPR reporter but that...

Updated: Thus spake Homer Simpson, upon being told by the salesman at Bloodbath and Beyond that state law imposed a waiting period on the purchase of guns. Speaking of the Heller case, here's my column on FindLaw should be up some time today. For this post, I'll quote my conclusion: Yesterday’s decision may have the eventual consequence of removing strict gun control laws from the list of options available to local elected officials. If so, and if the gun control advocates turn out to have the better of the empirical argument, then the Court’s decision in Heller “will almost certainly cause more Americans to be killed.” Those are not my words. That is what Justice Scalia had to say in dissent earlier this month in Boumediene v. Bush . He then added that sacrificing American lives “would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic.” No doubt Justice Scalia believes that a personal right to armed self-...

As predicted ( by me and everyone else) the Supreme Court affirmed the DC Circuit, 5-4 on an ideological split. Opinion available here . I'll have a FindLaw column up on the subject some time tomorrow. Posted by Mike Dorf

In questioning the logic of yesterday's decision in Kennedy v. Louisiana , Justice Alito poses the following pair of hypothetical examples in his dissent: With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. See, e.g. , Tison v. Arizona , 481 U. S. 137 (1987). In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second? Justice Alito thus appeals to the moral intuition that rape or torture can be at least as bad as, or worse than, murder. He might have made the point even more ...