Dorf on Law

UPDATE (9/10/07): SHARIF BANISHED (AGAIN) -- Musharraf has apparently made Nawaz Sharif's stay in Pakistan a brief one, openly defying last month's Supreme Court order and expelling him to Saudi Arabia. (Would it more appropriately be characterized as rendering? Or "kidnapping" ?) Some Pakistani bookies will feel vindicated , but what happened to the Bush administration's insistence last week that Pakistani leaders " honour the terms of Pakistani law and constitutional process "? Perhaps we all just misunderstood -- maybe when the State Department spokesman said "honour ... Pakistani law and constitutional process," what he really meant was " do whatever the Saudi intelligence chief says ".... More details at SAJAforum and All Things Pakistan . * * * On the eve of the anticipated return to Pakistan of former Prime Ministers Benazir Bhutto and Nawaz Sharif to lead their parties in the coming elections, I have a column for AsiaMedia ...

Today's NY Times has a story detailing NYC's plan to make publicly available the infection and death rates at city hospitals. As decried in FindLaw columns by DoL blogger Sherry Colb ( here and here ), infections acquired in hospitals account for about 100,000 deaths a year, a truly staggering figure. Some hospitals have begun to take measures to address the problem, which is mostly a function of inadequate or lack of handwashing by medical staff. In his book Better , Atul Gawande explains that proper hygiene technique is observed in the OR but not in the rest of the hospital, mostly because doctors and nurses pressed for time find it too cumbersome. He describes successful measures to change medical staff behavior. The NYC effort should complement one of Colb's proposals: By alerting the public to the danger, it will give hospitals incentives to improve hygiene. In this as in many other contexts (e.g., the Toxic Release Inventory, aspects of the more successful stat...

The ruling can be found on the ACLU website here . I haven't read much of it yet. (It's quite long.) But it appears that the First Amendment, and not just the Fourth Amendment, plays a role in the decision. I'll likely have more to say about this case, possibly in my FindLaw column next week.

Add another name to the list of former Bush officials who have publicly turned on the administration. Jack Goldsmith, a Harvard law professor who headed the Office of Legal Counsel from October 2003 to June 2004, has written a book in which he criticizes the administration’s efforts to drastically expand executive power in the war on terror. The book will not be published until later this month, but it is described at length in this forthcoming Times Magazine article by Jeffrey Rosen, which is available online now. Goldsmith’s complaints are depressingly familiar. The administration has a “go-it-alone” mentality that disdains cooperation with Congress or compliance with the law. It has an unjustifiably broad view of the president’s constitutional power and seeks to remove all external constraints on his authority. Perhaps most distressing, administration officials seem willing to vilify anyone who scrutinizes their decisions, even if the person was hired specifically for that pu...

The District of Columbia has now filed a cert petition with the Supreme Court, seeking reversal of the DC Circuit's March opinion in Parker v. District of Columbia . The petition is well executed, as one would expect the work product of Tom Goldstein, Walter Dellinger and their crew to be. It makes three central points in challenging the DC Circuit ruling: First, as the overwhelming majority of circuit decisions conclude, the text and history of the Second Amendment establish that it protects weapons possession and use only in connection with service in state-regulated militias. That conclusion is supported by United States v. Miller, 307 U.S. 174 (1939), in which this Court unanimously directed that the Second Amendment “must be interpreted and applied” in view of its “obvious purpose to assure the continuation and render possible the effectiveness of such [militia] forces.” Id. at 178. Second, even if there is a right to possess and use weapons unrelated to militia service, t...

Any short list of the most powerful jurists of the last half century would have to include Aharon Barak, former Chief Justice of the Supreme Court of Israel at or near the very top. In a legal system in which many had previously thought parliamentary supremacy the operative grundnorm, and with only the text of a handful of "basic laws," Barak established his court as a power to be reckoned with. To be sure, Barak was never the activist countermajoritarian monster that his critics decried. For example, Judge Posner wrote a largely negative account of Barak in The New Republic, (which is only available in full text to TNR subscribers or via Lexis or Westlaw). In it, Posner said, among other things, that Barak has said that the Knesset cannot repeal the Basic Laws---a view that I do not think Barak has actually espoused. More broadly, Posner and fellow Barak critic Robert Bork (with whom Posner has his own methodological disagreements) seem unaware that Israeli judges in gen...

In my post yesterday on the release of OJ Simpson's If I Did It by Ron Goldman's family, I asked rhetorically how different this book is from a snuff film. Here I want to pursue a related question: What protection, if any, does the First Amendment afford to snuff films? (A snuff film, for anyone unfamiliar with the term, is a film of an actual murder.) Obviously, there is no First Amendment protection for making a snuff film. That's murder. (Oddly enough, the filming of sex can give it protection it otherwise lacks. If John the john pays Harriet the hooker to have sex with him, that's the illegal act of prostitution, but if Pete the pornographer pays Paul the porn star and Paula the porn start to have sex with each other, then, so long as the resulting film is not obscene, that's legal. For a further exploration of this oddity, see Sherry Colb's 2005 FindLaw column here . But I digress. Surely, there is no analogous exception for making snuff films.) W...

I wasn't going to buy Simpson's book when it looked like the profits might go to him, but now that it's being published so as to pay off the civil judgment owed to the family of Ron Goldman . . . I'm still not going to buy it. According to this review on Slate , the book contains a couple of perfunctory reminders that it's supposed to be a hypothetical story, some gory details, and a lengthy diatribe by Simpson against his dead ex-wife. One would think that whatever anger OJ harbored towards Nicole would have been expurgated by murdering her, but apparently not. Oh, and apparently the graphic design of the cover is different from the one originally slated for the OJ version. The new cover significantly downplays the "If" (placing it barely visibly inside the "I"). The real question is an ethical one. Assuming, per the Slate review, that the book would count as defamatory of Nicole were it not legally impossible to defame the dead, is it righ...

Mike Bloomberg was on NPR this past week touting his plan to pay poor people (from private funds) to go to the library, get good grades, etc. (Listen here and also hear Steven Inskeep ask Bloomberg whether he's running for President about a half dozen times. Bloomberg says no each time.) Traditional liberals have been cool to Bloomberg's proposal, arguing that it insults poor people. (See Diane Ravitch's reaction here .) But Bloomberg has three reasonable responses: 1) This is a capitalist society in which people respond to incentives; 2) If it's not insulting to pay wealthy agribusinesses not to grow crops, it shouldn't be insulting to pay poor kids to go to the library; and 3) It's just a pilot program so let's see if it works. I'm all for experiments and thinking outside the box, but the problem here is that we have tons of evidence that paying people to do things usually undermines their intrinsic motivation to do those things. Translation: Giv...

CNN has posted the transcript of the police interview with Sen. Craig following his arrest ( link here ). Craig tries valiantly to portray it all as an innocent misunderstanding. He's "a wide guy" so when he sat on the toilet seat his foot bumped the foot of the undercover cop in the next stall. His hand may have come under the stall when he reached to pick up a piece of toilet paper that fell. See? Meanwhile, the cop isn't buying it because, well, he was there, and what he saw was not ambiguous. So much so that he accuses Craig of lying: "I'm just disappointed in you sir. . . . I mean, people vote for you." Where to begin? Well, for one thing, Larry Craig represents Idaho, not the 4th District of Massachusetts, and so news that Craig has gay sex would make people STOP voting for him, so of course he's going to lie to you, Offiicer Karsnia. Unless, that is, Craig thought that the story would never get out. And while Karsnia assured Craig tha...