Dorf on Law

UPDATE: An updated discussion of the issues in this post may be found in my column for AsiaMedia on May 18, 2007 . ** It's been an eventful week in Pakistan. A recap for folks who get most of their news from American media outlets may have missed it: In a speech on Saturday, President Pervez Musharraf once again accused "non-functional" Chief Justice Iftikhar Chaudhry's supporters in the Pakistani legal community of "trying to give political colour to a judicial issue." He warned "that they would not succeed in their designs," and again defended his decision to suspend Chaudhry. [ link ] In response, tens of thousands of Chaudhry's supporters and Musharraf's opponents rallied in support of Chaudhry's motorcade on Saturday and Sunday as it proceeded through towns along the Grand Trunk Road from Islamabad to Lahore — a four-hour trip that took Chaudhry's motorcade approximately twenty-six. "Nations and states which are based...

A story in the sports section of yesterday's NY Times quoted yours truly as stating that the New York Yankees, as a private organization, act lawfully when they use chains to block the main aisles in the lower portion of the stadium to produce a proper sense of decorum during the playing of the national anthem and (during the seventh inning stretch) God Bless America. The only plausible legal impediment to this tactic would be the First Amendment, which only bars the government. (I didn't say this was a good idea, mind you, just that it wasn't illegal.) A couple of readers of the story emailed to ask me whether there might not be state action either because Yankee Stadium is publicly owned (and leased to the Yankees). My buddy from summer softball games Marc Edelman (aka " Sports Judge ") called my attention to the 1978 ruling in Ludtke v. Kuhn , 461 F. Supp. 86 (SDNY), in which Judge Mottley ruled that the Yankees ARE a state actor, relying on the Supreme Cou...

On the front page of Wednesday's New York Times appeared an article about some potential consequences of the wider availability of low-risk Down Syndrome (DS) screening for pregnant women. Such screening can routinely be made available to women who fall outside of the "over 35" age group whose chances of carrying a DS child are much higher than they are for younger women. The reason that pregnant women under 35 have not ordinarily been screened in the past is that amniocentesis was, for a long time, the only method of testing for the mutation that causes DS, and an amniocentesis carries a risk of miscarriage that -- for younger women whose odds of giving birth to a DS child are exceedingly small -- outweighed the benefits of testing. Now, however, reasonably accurate screening is possible early in pregnancy by means of two blood tests and an ultrasound examination, each of which is a relatively ordinary and low-risk event for pregnant women in the U.S., regardless of ...

The Times reports today that several religious congregations around the country are planning to offer sanctuary to illegal immigrants who face deportation. This is the second article in two days describing efforts by religious leaders to oppose some of the more draconian immigration policies advocated since 9/11. Yesterday, the Times reported that a coalition of evangelical Christians is asking Congress to approve a guest worker program for illegal immigrants. Although the coalition also supports increased border security, its endorsement of a guest worker program – along with the sanctuary initiative – is a welcome instance of religious leaders rejecting conservative ideology and exercising independent judgment. Whether the sanctuary initiative will have any effect is another matter. The Times article states that “it was not immediately clear whether the government would send agents into churches that harbor immigrants or what legal standing they would have to do so.” But I think i...

Thanks to Marty Lederman for pointing out to me that I had over-read the Bush Administration's federalism objection to the pending hate crimes bill in my column for FindLaw today. (Read Marty's own analysis here .) I don't think my misreading of the OMB statement changes my ultimate analysis, but for completeness, I've asked the powers that be at FindLaw to post a corrected version. The corrected version makes a few small editorial changes regarding the Administration's objections, and then adds the following new section: The Thirteenth Amendment Side Issue There is, to be sure, one way in which the pending bill does raise a genuine issue of constitutional federalism. One provision of the bill would impose criminal liability for hate crimes on the basis of race, color, religion, or national origin (but not gender, sexual orientation, gender identity, or disability) even without the establishment of a link to interstate commerce, and even without st...

My FindLaw column for today is called The President's Disingenuous Arguments Against Expanding the Federal Hate Crime Law , and (as the title suggests) it argues that the objections offered by the Bush Administration to pending legislation that would expand the federal hate crime law to cover, inter alia , crimes motivated by bias on the basis of sexual orientation, are disingenuous: The objections, if taken seriously, would do away with all hate crime legislation. I do indicate in the column that there are nonetheless legitimate reasons to oppose all hate crime laws, although I don't ultimately evaluate the strength of those reasons. Here I want to raise a related issue that I don't address in the column. The following objection to hate crime laws is sometimes made: These laws are purely symbolic because the underlying crimes---which can be offenses like murder or aggravated assault---already carry severe penalties, including life imprisonment or even death. Adding an e...

The New York Times Magazine this weekend, in an unfortunate flurry of Boomer-related articles on aging, has a quite interesting piece on the scientific study of wisdom. Although the piece notes that one of the difficulties of this area of study is the definition of wisdom itself, it offers this start: Certain qualities associated with wisdom recur in the academic literature: a clear-eyed view of human nature and the human predicament; emotional resiliency and the ability to cope in the face of adversity; an openness to other possibilities; forgiveness; humility; and a knack for learning from lifetime experiences. And yet as psychologists have noted, there is a yin-yang to the idea that makes it difficult to pin down. Wisdom is founded upon knowledge, but part of the physics of wisdom is shaped by uncertainty. Action is important, but so is judicious inaction. Emotion is central to wisdom, yet detachment is essential. The article goes on to note that, to the extent that wisdom is asso...

Two astronomy post-docs at Berkeley announced yesterday that they had discovered the brightest supernova ever, a supernova of the sort that may have been common in the early universe, and would have played an important role in generating and dispersing the heavier-than-hydrogen-and-helium elements necessary for the formation of planets and evolution of life, but that is quite rare in the more recent past. The super-duper-nova (as I'll call it) occurred in a galaxy about 240 million light-years away, which means that it occurred about 240 million years ago (because that's how long it took for the radiation from the super-duper-nova to get here). The news coverage of this story has had a "gee whiz" feel to it, which is largely appropriate, I suppose. This is, after all, a very important discovery. Still, it's possible that the super-duper-nova destroyed all life on one or more planets in its vicinity. If so, should that not be sobering? When we learn about the ...

Yesterday's front page of the NY Times included a story by Adam Liptak arguing that the conversion to the individual right view of the Second Amendment by liberal constitutional scholars over the last two decades played a role in the movement of the courts towards that view. The principal exhibits for this proposition are Sandy Levinson, Akhil Amar, and Larry Tribe. Although I'm more or less on the other side of this issue, I won't use this post to object to the substance of their respective arguments. Instead, I want to question the causal claim Liptak makes. In a Times article on March 19 of this year (no longer available for free on the web, but you can read my brief discussion of it here ), Liptak reported on an academic conference on legal scholarship featuring academics and judges. The takeaway point of the conference (and the Times article) was that judges have little use for law review articles. So what gives? Are judges indifferent to legal scholarship, as L...

A friend posed the following question to me: Under the Supreme Court's recent ruling in Gonzales v. Carhart , could a law banning vasectomies be upheld on the ground that a vasectomy is never necessary? Great question, friend. Were I teaching constitutional law this semester, I'd pose it on my exam for my students. But because I'm teaching federal courts instead, I'll take a crack at it here. Before Gonzales v. Carhart , I would have said something like this: A law banning vasectomies pretty clearly infringes the Griswold right to decide whether to procreate. It's true, of course, that there are other ways men can have sex with fertile women without incurring a large risk of fatherhood. They can use condoms or they can require their sexual partners to use some other form of birth control. But to borrow from another area of constitutional law in which the Court applies strict scrutiny, namely the First Amendment, the availability of alternatives does not rend...