Dorf on Law

I don't usually post simply for the purpose of plugging another blog, but I'll make an exception to that principle for University of Pittsburgh law prof Haider Hamoudi, who has just started a new blog on Islamic law. His first post examines two recently noteworthy cases: the English woman jailed and exiled for calling a teddy bear Mohammed (in response to her students' request) and the Saudi woman sentenced to 200 lashes for being in a car with a man not her husband (and possibly for then having been gang raped). Hamoudi condemns these sentences but goes on to explain how the claim that they carry out "Islamic law" rests on numerous controversial premises. It's worth a read. Posted by Mike Dorf

For everyone wondering how Chris Eisgruber would respond to my question whether a tendency to defer to institutional settlements could really be cabined off from ideological values as "procedural," wait no longer. Chris said that while deference to institutional settlements is part of what makes a Justice "moderate" along the procedural dimension, the procedural value on which he principally relies is "open-mindedness" towards new claims of justice. I'm all for that too, but I should say that this too can be characterized as an ideological position. Self-styled originalists, after all, might say that it's the job of the Court to enforce the old Constitution and for the political branches to be open-minded towards new justice claims. In the end, my mild skepticism may boil down to the sort of skepticism one often sees towards all process-based theories. Think here of the criticism by Larry Tribe of John Ely's process theory. One further th...

Christopher Eisgruber is the Provost of Princeton University and a former law professor at NYU. He is one of the most elegant writers on constitutional law, both in his solo work and in his collaborations with his former NYU colleage (and current Dean of the University of Texas Law School) Lawrence Sager. Eisgruber's most recent book, The Next Justice , argues for a new approach to the selection of Supreme Court Justices. I'll be talking about the book on a panel at Princeton this afternoon and thought I'd very briefly preview my remarks here. Roughly half of The Next Justice addresses matters of constitutional (and to a much lesser extent, statutory) interpretation. In order to know what the confirmation process should look like, Eisgruber says, we need to know what it is that we want our Justices to do. His answer is that Justices apply "ideological" and "procedural" values in interpreting the open-ended (Sager would say "justice-seeking...

“Entitlement programs” (to use the ugly phrase) will be an issue in the 2008 election. The ultimate Democratic candidate is likely to put forward a universal health care plan, and we can expect to hear more about President Bush’s recent veto of health care for children. The state and future of other social programs, such as social security, should be on the agenda as well, although perhaps only Senator Obama will be willing to talk about them. As an article in the Economist pointed out last month, the conversation about health care centers around universality of coverage, not around cost. (The Economist proposed that Senator John McCain was at least asking “the right question” in focusing on cost instead.) Coverage is incredibly important, and the number of uninsured Americans is disgraceful and growing. Most of the uninsured are, of course, poor. Yet the challenge for Democrats in the coming election may be to ensure that universal health care is talked about in wa...

Yesterday afternoon I debated Robert Levy of the Cato Institute, one of the lawyers for the plaintiffs in Heller v. D.C. , in an event jointly sponsored by the Columbia chapters of the American Constitution Society and the Federalist Society. A rousing good time was had by all, or at least by me. During the course of our debate, Dr. Levy offered the following example. Suppose, he said, that we had a constitutional provision that read: "A well-educated electorate, being necessary to the democratic self-governance of a free State, the right of the people to read books shall not be infringed." (I may not have reproduced his precise wording but that was the gist.) If someone wanted to read a book for pleasure, Dr. Levy said, surely the "Book Amendment" would protect that right, notwithstanding the fact that it was not part of any formal course of education. Fair enough, but, said I (and say I now for wider distribution), suppose that in an obscenity prosecution, a d...

No, I'm not referring to any physical damage associated with my jaw dropping to the floor upon hearing George Bush say that Gen. Mr. Pervez Musharraf has not " crossed any lines " in his full-scale assault on civil society. There are so many things to be said in response to that ridiculous statement, but one particularly disturbing irony seems to stand out. We have long known that when it comes to torture , the Bush administration has at times drawn "the line" in a rather peculiar place, at one point seeking to limit the definition of torture to acts "likely to result in permanent and serious physical damage ... ris[ing] to the level of death, organ failure, or the permanent impairment of a significant body function." Well, after several weeks in which many have feared that Musharraf, Shaukat Aziz, and their agents might be perpetrating unspeakable crimes in Pakistan's jails , it now appears that Musharraf has crossed even the dubious "line...

In this post back in early September, I suggested that Justice Alito could be in play in the DC gun case (at that point just pending on cert). I said: "I put Alito in the unknown category because I suspect that his long experience as a prosecutor makes him more of a law-and-order conservative on this issue than his more ideologically conservative brethren." I now have information that leads me to think that this was naive on my part. Last night I had a conversation with a prominent conservative law professor who worked directly under Alito at the Justice Department. He thought that Justice Alito was fully on board with the individual right interpretation of the Second Amendment that conservatives tend to endorse on the basis of their reading of the original understanding. If said law professor is right, then I was wrong about Justice Alito. But before I was wrong about him I was right about him, when earlier I wrote (in the Harvard Law & Policy Review, available her...

Living in a mature democracy, it is easy to point to the positive virtues of representative government (and to the myriad ways in which our system of government fails to deliver or fails to deliver fully on its promises along these dimensions): Regular elections, civil rights and political rights lead to public policies that serve the public's interests, even while ensuring that those whose interests go unserved have means of changing public policy. But democracy serves a more basic function, one that we might call "negative" for what it avoids rather than "positive" for what it affirmatively does: Democracy substantially reduces the likelihood of bloody succession crises. From ancient through late medieval times, the death, incapacitation or overthrow of the ruler was frequently an occasion for war, as rival would-be rulers sought to seize power or to have their power validated by some other means. Clear rules and strong dynastic leadership provided one way t...

This story in the NY Times reports that the Chicago office of the Perkins Coie law firm drives its lawyers so hard that the firm has a "happiness committee" that does nice things to surprise its lawyers chained to their desks (like bringing them snacks). Perkins Coie is not alone, of course, but one has to question the judgment of anybody who volunteered information about firm "perks" to compensate for the lack of any semblance of normal life for associates in a NY Times story. (Perhaps this was damage control by the representatives of firms that had already been identified to the press as providing perks to make up for long hours.) The most shocking item in the story for all people with normal lives must surely be the following: Money is not the only thing that drives these lawyers right now,” said Marina Sirras, who runs a recruitment firm in New York for lawyers. “They want to be able to have a family and enjoy their family. This has never been as hot an issu...

According to President Bush, Pervez Musharraf "has advanced democracy in Pakistan," and not just a long time ago (like when he first seized power in a coup), but even recently. So said our Commander in Chief in an interview with ABC News yesterday. (Transcript here ; video here ). Here's my favorite part of the interview: CHARLES GIBSON: Is there a line he cannot cross, that he cannot cross, something that would go too far, where you might say to yourself, 'OK, that's enough?' PRESIDENT GEORGE BUSH: Well, he hasn't crossed the line. As a matter of fact, I don't think that, uh, he will cross any lines. I think he truly is somebody who believes in democracy. And he made a decision, we didn't necessarily agree with his decision, to impose emergency rule, and I, my, hopefully he'll get, get rid of the rule. Today I thought was a pretty good signal that he released thousands of people from jail. I see, so if you jail judges, lawyers and journal...