Dorf on Law

A story in yesterday's NY Times notes that homicides, after falling nationwide to forty-year lows, have been increasing in the last couple of years, and cites as a prime cause the greater willingness of young men to use guns to resolve disputes that formerly would have been resolved with fists. Thus it was at best awkward for the D.C. Circuit to hand down its decision in Parker v. District of Columbia on the same day the story ran. In Parker , the DC Circuit holds that the Second Amendment protects an individual right, and that the District's restrictive gun control law violates that right. One other circuit, the Fifth, has likewise held that the Second Amendment protects an individual right, but in that case, United States v. Emerson , the court's Second Amendment discussion was dicta because it upheld the conviction on the ground that Emerson's particular act of gun possession fell within the zone of regulation even the individual right view of the Second Amendmen...

Could there be any clearer indication that the public rejects the "unitary executive" than the behavior of the Bush Administration in the brouhaha over the fired federal prosecutors? The "Justice Department Eight" did not enjoy civil service protection and engaged in a quintessentially executive function: Deciding whom to prosecute and then prosecuting. The unitary executive theory holds that because the Constitution vests the entire Executive power in "a President," all persons exercising executive power must be answerable to the President. Although the Supreme Court rejected the strong form of this argument in the 1988 independent counsel case, Morrison v. Olson , the Bush administration has continued to champion it, in signing statements and more broadly. Given that the AG undoubtedly had the technical legal authority to dismiss the Justice Department Eight, why didn't he just say something like "these are fine attorneys but the President,...

According to this report from the BBC , the South Korean government plans to establish ethical guidelines for interactions between robots and humans. The article indicates that the guidelines will govern both how robots should behave towards us and how we should behave towards them. It speculates that the guidelines governing behavior of robots may resemble Isaac Asimov's Three Laws of Robotics, which is fitting enough, given that the "Robot Ethics Charter" is being drafted by a team that includes a science fiction writer. Asimov's Three Laws are: A robot may not injure a human being, or, through inaction, allow a human being to come to harm. A robot must obey orders given it by human beings, except where such orders would conflict with the First Law. A robot must protect its own existence as long as such protection does not conflict with the First or Second Law. Anybody who's seen The Matrix or Terminator movies could think these rules more than prudent. We w...

Dedicated to secrecy, the Bush administration reveals itself mainly through scandal. Yesterday’s most amazing discovery was the inflexibility of the administration’s political tactics. Who could have imagined that, as recently as the week before last, a DOJ official would have been threatening the fired U.S. Attorneys with public humiliation if they didn’t keep their mouths shut? (For those who haven’t seen Bud Cummins’s e-mail to other former U.S. Attorneys describing his conversation with Michael J. Elston, chief of staff to Deputy Attorney General Paul J. McNulty, find it here , courtesy of Talking Points Memo.) Not that anyone would have expected scruples from these people—we’re long accustomed to this sort of behavior from them. But how could they have expected this threat to work with the opposition in control of Congress, an investigation underway, and hearings scheduled? It turns out that the administration’s political game is as inadaptable as its policies.

Now that Scooter Libby is on his way to prison, we might pause to reflect on any number of impacts of the Wilson/Plame/Libby affair. Here I'll make a couple of observations about the impact on freedom of speech and the press. 1) The case went a long way towards discrediting the perennial proposal for a federal reporter/source privilege. That proposal was already losing ground due to the erosion of any principled basis for limiting such a privilege to "professional" news gatherers in an era when any idiot with an internet connection can call himself a journalist by writing a blog. (Ahem.) But it got another kick in the teeth from Judith Miller, who showed that reporters will not just be interested in providing confidentiality to whistle-blowers. Well-connected members of the press will also try to shield sources whose very disclosures of information aim to manipulate the public. Most of this damage was done before the trial, but the trial showed the cozy relationship...

In a memorial to President Ford on this blog I opined that his greatest legacy may well be Justice Stevens. It turns out that President Ford agreed. The March 2006 issue of the Fordham Law Review (which was either published very late or only recently emerged from a pile of books in my office) is a symposium on the jurisprudence of Justice Stevens. The introductory piece by Fordham Dean Bill Treanor contains a letter from President Ford, that includes the following: I am prepared to allow history's judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of Justice John Paul Stevens to the U.S. Supreme Court. I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal case[s] and on the constitution's broad grant of regulatory authority to Congress. I can think of no clearer example of how far to the right the national Repub...

Yesterday's New York Times included an article reporting on some fairly striking death penalty developments in Maricopa County, Arizona. The elected county attorney there, Andrew P. Thomas, has apparently "doubled the number of times that the office has sought the death penalty [compared to the rates that existed before he took office two years ago], even though the number of first-degree murder cases prosecuted by the county has remained more or less the same for a decade." Among other things, this practice has "crippled the county's public defender system [and] left roughly a dozen murder defendants without representation." Oh, and as a result of the new policy, Maricopa County "currently has 138 capital cases pending or awaiting trial, surpassing the total number of defendants who received the death penalty nationwide last year." As Doug Berman points out on his excellent Sentencing Law and Policy Blog, that's more than six times the numbe...

Two small words -- "mistake" and "waste" -- have played a big role in the political rhetoric of the past several weeks. Working on the assumption that smart people can always learn from their mistakes (heck, even the mouse finds the cheese in the maze), I'm baffled by why three reasonably bright senators -- Obama, Clinton and McCain -- found themselves in various degrees of trouble over their use or non-use of these words. Obama: " . . . and have seen over 3000 lives of the bravest young Americans wasted." McCain: "We've wasted a lot of our most precious treasure, which is American lives." The Clinton Exchange: Roger Tilton: "I want to know if right here, right now, once and for all and without nuance, you can say that war authorization was a mistake. I, and I think a lot of other primary voters — until we hear you say it, we're not going to hear all the other great things you are saying." Sen. Hillary Clinton: Well I have s...

Federal administrative agencies have long permitted the public to provide comments on proposed regulations after having received notice via the Federal Register. In recent years, the agencies have accepted comments via the internet, a development that we might call Notice & Comment Version 1.1. It's a small step but a useful one. Today, the Washington Post reports that the Patent & Trademark Office will accept comments on patent applications (formerly walled off pre-approval for fear of revealing proprietary information). What makes the PTO program distinctive is that individual commenters will receive reliability rankings based on how useful the information they provide turns out to be over time. The story expressly compares the system to Wikipedia and customer ratings systems like those used by eBay. Nonetheless, I would call the PTO project Version 1.2 rather than 2.0 because it does not cede any meaningful control from the agency personnel to the interested public....

The Metro Section of the New York Times on Sunday featured an article about the Upper West Side Fairway Market and Farm Sanctuary. The paper reported that Fairway had, until recently, had signs in their stores making jokes about the "supposedly" cruel methods by which pate de foie gras (diseased liver paste made by forcefeeding ducks and geese through a tube until their livers are several times normal size and then killing them) is made. The import of the signs was that despite all of the "pressure" not to sell this product, Fairway would continue to carry it. Farm Sanctuary, an animal rights group that protests the cruelty of animal farming (particularly factory farming, through which most meat in this country is produced) has been doing publicity in New York lately on -- among other things -- the cruelty of pate de foie gras production, so Fairway has taken down the signs, though it continues to sell the product. The Times article quotes a senior manager who c...