Dorf on Law

Under the New York Constitution (and an implementing statute), when a vacancy occurs on the NY Court of Appeals (the state's highest court), the Governor must nominate someone from a list prepared by a Commission on Judicial Nomination. NY Governor David Paterson is now miffed that the list of seven names submitted to him for possible replacements for retiring Chief Judge Judith Kaye contains no women. As I told a reporter for the NY Observer ( here ), there are quite a few ambiguities in the law. Although it is clear that the Governor cannot pick someone not on the list, there is no provision expressly permitting him to, or forbidding him from, asking the Commission for a new list. To the extent that the Commission's existence is meant to de-politicize the selection process, however, doing so would seem at least a bit problematic. Meanwhile, here's a Machiavellian reading of Paterson's complaint. Despite not having been elected to the Governorship himself, Paterso...

Those with an interest in political goings on elsewhere should note that a few hours ago , the Governor General of Canada (the Queen’s official representative who, these days, fills a largely ceremonial role involving officially opening and dissolving Parliament and reading the government’s Throne Speech), gave Prime Minister Stephen Harper her consent to prorogue Parliament. Prime Minister Harper was elected to a second minority term just two months ago, at the beginning of October. His government’s Throne Speech passed through Parliament without trouble at the end of November. Surprisingly, last week the government chose to follow that up with a quarterly financial update full of partisan nastiness, including a pledge (which was subsequently withdrawn) to eliminate public funding for political parties – something that would have done great damage to the other parties’ ability to compete in the next election. Somewhat incredibly in light of the current worldwide financial crisi...

Earlier this week, I posted " Our Reputation Matters ," in which I argued that our having become a rogue nation harms U.S. national security and diplomatic interests. More specifically, I was attempting to put some substance to the feeling that becoming "the bad guys" in the eyes of most of the world -- by torturing prisoners, engaging in "extraordinary rendition," starting a preemptive war based on cherry-picked intelligence, etc. -- was harmful to all of us. The example that I gave was from an editorial from The New York Times, which argued that not only is our global reputation in tatters due to Bush administration lawlessness but that our international pariah status is causing other countries not to accept prisoners from our prison in Guantanamo Bay for resettlement or trial in their own countries. The problem thus becomes self-reinforcing: Keeping Gitmo open exacerbates our bad relations with other countries, who then make it more difficult for us...

In my latest FindLaw column , I examine the decision by the Second Circuit in In re Terrorist Bombings of U.S. Embassies in East Africa (Fourth Amendment Challenges) , which holds that the Fourth Amendment warrant requirement does not apply to U.S. government searches and seizures abroad directed at U.S. citizens. I argue that the court was not about to overturn the conviction of Wadih El-Hage, who was found guilty of terrorist acts in connection with the 1998 bombings of the U.S. embassies in Kenya and Tanzania, but that the reasons it gave for finding the warrant requirement inapplicable were weak. Relying on prior precedents, the Second Circuit acknowledges that the Fourth Amendment itself does apply to such investigative activities by the government, but that the Fourth Amendment only requires reasonableness, not warrants. My column does not address an implicit aspect of the court's reasonables analysis---that reasonableness is to be determined by the court itself under an al...

In an essay forthcoming in a symposium issue of the Syracuse Law Review, I argue that taken at face value, DC v. Heller supports a right to carry handguns in public. I also explain how a court that was so inclined might limit Heller to the home. But suppose that Heller were not so limited. Suppose, in other words, that the case protects a prima facie right to carry handguns in public. Suppose further that the Second Amendment is incorporated against the States. Sure, cases from the nineteenth century held that it is not so incorporated, but footnote 23 of the Heller opinion casts doubt on the continuing authority of those precedents. The Heller Court did not hold or imply that all handgun registration requirements are invalid, but assuming Heller applies to guns in public and to the states, a regime that makes it impossible for a law-abiding citizen to obtain a license to carry a handgun for personal protection would presumably be unconstitutional. Which brings us to Plaxico B...

Although he expressed the point with characteristic maladroitness, Joe Biden was not necessarily wrong when he told a crowd in the waning weeks of the Presidential campaign that as a new President, Barack Obama would be tested by a foreign policy crisis early in his first term. Biden later explained that he wasn't talking about Obama per se, but about what happens to all new Presidents. Indeed, many observers have noted that transitions (including the end of the lame duck's term and the beginning of the new President's term) are dangerous times precisely because the new team is not yet fully in place. President-elect Obama himself made the point yesterday in introducing his national security team. Thus it is at least a little odd that, amidst the crisis in Mumbai, so many government officials would tender their resignations. If transitions are dangerous times, one would think it dangerous to insist on transitions in the immediate aftermath of a terrorist attack, especi...

Earlier this year, I watched Roberto Rossellini's classic 1945 film, " Rome: Open City " ("Roma, città aperta"), for the first time. Set in Nazi-controlled Rome in 1944, there is a scene in which a Roman Catholic priest who is working for the Resistance is taken prisoner and tortured by a Gestapo officer. (I guess I should have preceded that description with "spoiler alert," but if you're not going to watch this great film because you already know some of the plot points . . .) The German officer is portrayed as cold-blooded, enjoying his task, and sneering at the plight of both his immediate victim and the people the priest is trying to help. It was, in many ways, a familiar scene from dozens of WWII movies. The Nazis are inhuman, cruel, and beyond redemption. As I watched that scene, which is designed to provoke revulsion and discomfort in the audience, I felt all of the usual emotions one feels when watching such films; but I also felt a ...

As a vegan, I find the Thanksgiving holiday to be full of contradiction. On the one hand, it is a time to gather with family and friends and collectively celebrate our wellbeing and nurture each other in difficult times. It is, in other words, a time to take stock and acknowledge that "there but for the grace of God go I," which is one way to formulate the idea of giving thanks. On the other hand, it is a holiday that is symbolized by the massive slaughter of helpless and innocent creatures who have done nothing to deserve the suffering that they endure. Interestingly, our culture has a strange custom of having an executive official "pardon" one turkey. For a particularly telling scene of Sarah Palin giving a press conference after having "pardoned" and given "amnesty" to one turkey, see this and watch carefully what is happening directly behind the chief executive of Alaska. I had the privilege of recently visiting a sanctuary for farm an...

My FindLaw column this week discusses an unusual probation condition imposed by a Texas judge on a woman convicted of injuring her child by omission (by failing to protect her daughter from the father's violence and subsequently failing to seek medical care for resulting injuries). The judge ordered the woman not to conceive and bear a child during her ten years on probation. My column addresses the question whether such a condition violates the probationer's fundamental right to procreate. In this post, I want to speak more generally about the "alternatives enhance wellbeing" argument that played some role in the judge's assumption that because he could have incarcerated the probationer, it followed that a probation condition limiting her procreation rights must have been constitutionally acceptable. The reasoning takes this form: if I may impose X (e.g. imprisonment) upon you, then it follows that I may offer you the choice of X or Y (e.g. your forgoing pro...

As the risks from another two months of drift continued to grow over the last week, President-elect Obama was forced to all-but-abandon the notion that there is "only one President at a time." Thus, yesterday he rolled out his economic team. Meanwhile, there is certainly no reason why he could not offer a plan to the lame-duck Congress for it to pass now, effectively daring still-President Bush to veto it. (Obama's arguably premature resignation from his Senate seat makes this marginally more difficult to get through the current Senate.) The larger point is that the notion of one-President-at-a-time is literally true in general but only important in particular areas: especially in foreign affairs and conduct of the military, where it really would be disruptive to have more than one person acting as President. In part this concern explains why some of Jimmy Carter's post-Presidential peace efforts have been controversial, and why the more common pattern for ex-Pre...