Dorf on Law

As a follow-up to Mike’s post below, I agree that Giuliani’s explanation of why he likes strict constructionists makes little sense. The main criticism of “loose” construction is that it undermines democracy by substituting the preferences of unelected judges for those of the majority. Perhaps that is what Giuliani was trying to say. But his claim that broad interpretation hurts liberties is odd, given that most judicial departures from the text have strengthened individual liberties. But does it really matter if Giuliani’s statement makes sense? I’m not sure it does. The catchphrases he is using – “judicial restraint,” “strict constructionism,” “applying the law, not making it” – have such popular appeal that he can’t really go wrong. In the public relations war, the textualists have won. It’s hard to imagine a presidential candidate these days promising to appoint judges who will apply the “living Constitution.” And even though Justice Breyer has offered a thoughtful alternative to t...

A front-page story in yesterday's NY Times explains that in preparing to run for the Republican nomination for President, former NYC Mayor Rudy Giuliani has been tacking to the right on abortion. He has declared that he would nominate "strict constructionists" to the federal bench. My FindLaw column this week will explore the nuances of Giuliani's abortion position. (He was for it before he was against it, but his current position nonetheless coheres.) Here I'll just note that Giuliani still needs to rehearse his explanation a bit. Here's what he said in justification of his strict constructionism: "On the federal judiciary I would want judges who are strict constructionists because I am. I have a very, very strong view that for this country to work, for our freedoms to be protected, judges have to interpret, not invent, the Constitution. Otherwise you end up, when judges invent the Constitution, with your liberties being hurt. Because legislatures...

Okay, I admit that I gave this post that title for no reason other than the name of Harvard's new president, Drew Gilpin Faust. I've got nothing whatsoever against Faust. Indeed, until yesterday I had never heard of her, which undoubtedly says more about me than about her. That all said, I was a little surprised that Elana Kagan, current dean of the law school, didn't get the nod. Here's why: 1) The obvious. Like Faust, Kagan is a woman. Fairly or not, Larry Summers will be remembered as the President whose two principal accomplishments were driving Cornel West back to Princeton and questioning women's aptitude for science. The easiest way to distance Harvard from the Summers legacy was to name a woman (or possibly a member of a racial minority group) as President. 2) Kagan has been a very successful dean. Her predecessor, Robert Clark, was a good fundraiser and stopped some of the worst political infighting among the faculty. But throughout his deanship, f...

Every member school of the Association of American Law Schools has a non-discrimination policy that both includes a prohibition on sexual orientation discrimination and applies to employers recruiting on campus. These policies would forbid military employers from recruiting on campus because of the military's "don't ask, don't tell" rules, but under a provision of federal law known as the Solomon Amendment, schools must nonetheless permit the military to recruit on the same terms as non-discriminating employers, or risk losing millions of dollars in federal funds for themselves and the parent universities with which they are affiliated. Last year, in Rumsfeld v. FAIR , the United States Supreme Court upheld the Solomon Amendment against a challenge based on the First Amendment rights to speech and association. The Court reasoned that the presence of military recruiters on campus could not reasonably be understood to communicate a message of agreement by the scho...

This week, in the course of one day I ran across three people who expressed some degree of existential crisis over their efforts to approach law from an interdisciplinary perspective. Over the last decade, interdisciplinarity – i.e., ‘law and . . .’ – has become all the rage, at least in American law schools. And I am increasingly of the belief that this fascination is unwarranted. The problem, as I see it, lies not the borrowing of ideas and even theories from other disciplines. The problem lies in the self-conscious identification of doing ‘interdisciplinary work.’ The problem is that interdisciplinarity actually strives to bring into harmonic synthesis epistemic communities that in fact do not want to be synthesized. Academic disciplines define themselves in opposition to one another. And they guard their boundaries very jealously. I personally know of a number of scholars who were dismissed from their respective departments, not because they were not accompl...

Wex , a project of Cornell's Legal Information Institute , aims to do for law what Wikipedia does for knowledge generally. It is a collaboratively-created site that acts as a kind of legal encyclopedia for novices. On the assumption that useful information should come from people who have some expertise, one needs to be certified as an expert in order to contribute to Wex. As a consequence, it is pretty incomplete. For example, type "state action" into the search engine and you get nothing. Type "Joseph Story" and you get nothing on Story and one article on the Commerce Clause, which includes a link to an external site with an excerpt of Story's Commentaries on the Constitution. The basic problem with Wex, it might appear, is not enough contributors. Or maybe not. A Wex competitor, Wikilaw , permits anyone to create and edit. It also produces nothing relevant for either "state action" or "Joseph Story." That's not surprising....

An article in yesterday's Science section of the NY Times discussed the ethical dilemmas facing fertility doctors asked by couples to select the sex of their embryos. The process of in vitro fertilization allows the doctor -- who harvests eggs from the woman's ovaries -- to select which embryos to implant after fertilization on the basis of their chromosomes. The most common use of this chromosomal selection process is to weed out embryos that contain chromosomal anomalies. Like abortion after an amnio, this selection process is controversial in its own right, as I discussed in a FindLaw column . But utilizing in vitro fertilization just to choose the sex of one's child when one could reproduce the conventional way seems a bit frivolous. Though less invasive than it used to be, in vitro fertilization generally involves injecting women with hormones to induce hyper-ovulation, followed by surgery, fertilization and attempted implantation after a few days. Such intervent...

When I read in today’s Wall Street Journal about a settlement of certain “trademark-infringement litigation” between Apple Corps Ltd. (the company founded in 1968 by the Beatles, whose logo is a granny smith apple) and Apple Inc. (we all know who that is and what their logo looks like), I got the feeling that something was missing. Granted, I have not seen the court papers, and since the case was brought in England (presumably under English law) it might not do me all that much good to see them. But as big a Beatles fan as I am, I was taken aback at the notion that anyone could possibly think -- today -- that the Beatles had anything to do with Apple the computer company. What gives? So I did a little more digging, and came up with what appears to be the answer. According to BBC News reports , Apple Corps asserted or threatened trademark claims against Apple Computer shortly after the computer company was founded in the late 1970s. In 1981, the parties entered into settlement in which...

Turner Broadcasting, parent company of the Cartoon Network, and ad agency Interference, Inc., have agreed to pay Boston $2 million to reimburse the city for costs associated with the latter's security measures in response to what city and state officials thought was a terrorist attack. This is pretty much win-win. Turner avoids litigation and more importantly, gets more publicity. Boston officials get to point to the settlement as evidence that Turner and Interference must have done something illegal or at least very wrong in placing their electronic ad devices in various locations throughout the city. That may deflect attention from the gross overreaction to a collection of light bulbs giving Bostonians the finger. Of course, the $2 million will not go to reimburse the thousands of people who missed meetings and were otherwise inconvenienced by the city's near-shutdown. Presumably they are the ones who would otherwise be clamoring for accountability. Or perhaps I have i...

More on Iraq. If we want the Senate to vote on something that's binding, rather than non-binding, then I have a couple of proposals. First, let's attach a rider to the current appropriation bills to restrict the President's ability to jaunt around the country for photo ops on Air Force One. Unless he needs to go abroad to go on a diplomatic mission, make him sit in Washington, on his butt at the Oval Office, actually doing serious work. Lock him up in the White House until he goes stir crazy. No Crawford. No Camp David. Second, you know how Congress loves to phase things in and phase them out? I say that we adopt a sliding scale for funding the war: there's only 100% funding if X percent of the members of Congress have kids or siblings who enlist and are on active duty in Iraq. If only 0.8 X meet the criteria, then funding is cut by 20%. Heck, since Congress doesn't really want the war, substitute Cabinet secretaries for members of Congress. Somebody needs ...