Dorf on Law

In a year in which party control of the US Senate hinged on the utterance of a previously largely unknown racial slur, and in which the Supreme Court granted review in a case that poses the question of how much protection the First Amendment affords to the expression "bong hits for Jesus," perhaps the most surreal news came on the very last day. Having learned yesterday that President Bush went to sleep (at 9 pm EST) about an hour before the scheduled execution of Saddam with instructions that he not be awakened with news of the latter's death, I learned today that Tony Blair was unavailable for comment on the execution because he was busy vacationing at the Miami home of former BeeGee Robin Gibb. I don't have a distinctly "legal" take on this piece of news, which strikes me as mostly weird, and a little sad. Happy New Year. I'll remember 2006 as the year I launched "Dorf on Law" and so let me thank my loyal readers, especially those who pos...

There is something pathetic about the Interior Dept's proposed listing of polar bears as a threatened species while taking no position on whether the threat to polar bears is due to human-induced global warming. What greater threat can there be to polar bears? Is there a suddenly expanding market for polar bear meat? (If so, might cloned polar bear meat be the solution? See yesterday's entry.) No, of course not. In fact, Interior's polar bear press release identifies melting habitat as the principal threat to polar bear survival. That point was dramatically confirmed by the announcement yesterday that a 25 square-mile Arctic ice shelf broke free from the coast of Ellesmere Island in August 2005. Despite acknowledging the proximate threat to polar bears, however, Interior denies any ability to address the ultimate cause of the threat, greenhouse gas emissions. The press release states: While the proposal to list the species as threatened cites the threat of recedin...

Yesterday the FDA released a draft document which, if made final, would permit the sale for consumption of animal products from cloned animals and the offspring of cloned animals. The FDA acknowledges that there are some difficulties associated with cloning but these typically either prevent reproduction entirely or pose risks to the cloned animal but not its offspring or those who consume the resulting animal products. The FDA is soliciting comments before putting the new rules into effect. Some people, including yours truly, object to consumption of cloned animal products because we think it categorically immoral to consume sentient animals or their products (given the conditions in which food-producing animals are kept and the industries with which they are intertwined even if they themselves are not eaten: bull calves born to dairy cows end up as veal; male chicks that hatch from fertilized eggs of laying hens are often fed to the wood-chipper). But we vegans are only about o...

As a Congressman, Gerald Ford notoriously stated, in connection with the unsuccessful effort to impeach Justice William O. Douglas, "that an impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history." Read in context, this statement was not quite the "might makes right" manifesto which it is often taken to be. (Read Ford's full testimony here. ) Nonetheless, because Ford was associated with a perceived attack on the independence of the Supreme Court, he was presented with a delicate situation when Douglas's seat opened up during his Presidency. Ford addressed that opening as a statesman, naming an extremely well regarded moderate: John Paul Stevens. Although President Ford, may he rest in peace, left the national political stage long before his death, over three decades later, Justice Stevens is still going strong. In June, he authored the Supreme Court's most powerful rebuke of the ...

I have been thinking about Michael’s and Neil’s posts, and I find both of them persuasive and compelling. Although I am not sure whether I agree with Michael’s “some” or Neil’s “almost all” characterization of U.S. foreign policy, I would like to add to the list of outrageous omissions that rightly includes Rwanda and Sudan the U.S. failure to lift a finger to slow down operation of the Nazi death camps during World War II (prior to the U.S. becoming a direct target of Axis aggression). Though the U.S. ultimately participated in liberating the camps, many people perished because it waited so long, clinging to its isolationism (a term that is now, disgustingly, invoked by some Bush supporters to characterize critics of our policy in Iraq – as though it follows if one opposes isolationism that one must support all military adventures, however ill-conceived). In keeping with the theme of those who exhibit foolish and reprehensible loyalties (i.e., Ramsey Clark), I recalled an experi...

In his post below , Mike wrote: "[L]iberal internationalists like myself would certainly concede that some U.S. military interventions have been unjustified, unwise and/or illegal under international law." Actually, one can agree with everything Mike says in his post even if one changes the word "some" in the above sentence to "almost all" and notes that some sins of omission (Darfur, Rwanda) are almost certainly worse than some sins of commission (Iraq, Vietnam)--though the ultimate body count in the ongoing disasters could tragically go either way in a contest that no one wants to win. Again, even if one thinks that US foreign policy has been an unending stream of disasters and missed opportunities, Clark is still wrong and Saddam and Milosevic are still evil. Sadly, Clark makes the argument that Bush and his cheering section ascribe to everyone who disagrees with the war--that we're not happy to see Saddam out of power. Of course, any humane per...

Since his days as a Justice Department lawyer in the Kennedy Administration and as Attorney General in the Johnson Administration, Ramsey Clark has become an object lesson in the flawed logic of "the enemy of my enemy is my friend." No doubt Clark became radicalized by his opposition to the Vietnam War, and came to see U.S. foreign policy as a force for ill in the world. I don't agree with that view in general, although liberal internationalists like myself would certainly concede that some U.S. military interventions have been unjustified, unwise and/or illegal under international law. But even if one takes the Clark (read Chomsky) view of American motives, that is hardly a reason to embrace all American enemies. Most critics of U.S. foreign policy should have learned this lesson the hard way in Vietnam, when some prominent anti-war activists embraced Ho Chi Minh's Communist Party, a totalitarian regime that was not qualitatively different from Stalin's Sovie...

Congressman Virgil Goode Jr., a Republican from Virginia , recently wrote and then publicly defended a letter in which he warned that the election to Congress of a Muslim—Keith Ellison, a Minnesota Democrat—was a harbinger of the decline in traditional American (read Christian) values. The letter was prompted by the news that Ellison would take his oath of office (in a private ceremony) with his hand on a Koran. Goode’s letter provided politicians with a feel-good opportunity to show how open-minded they are by contrasting themselves with a genuine religious bigot, but it might also provide an occasion for noticing a quite different sort of religious bigotry—against atheists and polytheists—that has the official sanction of the U.S. government. The Constitution requires oaths in two places. First, it specifies the oath of office the President must take: I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will t...

Of the many aspects of the Iraq Study Group report that President Bush seems intent upon ignoring, the one piece that he may well be justified in setting aside is the recommendation that the U.S. engage Iran in a multilateral effort to stabilize Iraq. The logic of the Iraq Study Group is straightforward enough: Iran , as the dominant Shiite power in the region, has sufficient influence over Iraq ’s majority Shiite population and an incentive to see Iraq avoid civil war that could spill over its borders. And in response to charges that Iran ’s provocative activities warrant isolation rather than engagement, the Study Group sounds a decidedly pragmatic note: Without Iranian cooperation of some sort, Iraq will remain unstable. Three widely covered recent events should give pause. One is the Holocaust denial conference, demonstrating that Iran ’s top leadership is irrational if not genocidal. A second is Iran ’s continued pursuit of nuclear weapons, including a statement in...

Without having seen the evidence, I can’t speak to the wisdom of Durham D.A. Michael Nifong’s decision to drop the rape count but continue to pursue the kidnapping and sexual offense charges in the case against three Duke lacrosse players. I would note, however, the problematic nature of one reason offered by Nifong for possibly dropping the charges at a later date. The alleged victim’s original identification of the defendants was based on a photo array. The NY Times today attributes to Nifong the statement that if she expresses doubts about her assailants’ identities when she sees them at the pretrial hearing, then he could dismiss the case. “The only real time that you’re able to say if you have a misidentification is to put the person in the courtroom with the other people,” Nifong reportedly said. Now there may well be good reasons to doubt the alleged victim’s reliability as a witness, including the lack of any physical evidence linking the defen...

I admit: I laughed at the "Dick in a Box" skit on Youtube. Alas, we don't even TiVo SNL anymore -- that's how lame we've become w/ 2 careers and 2 children under 2. (I even sent it to some colleagues who promptly ignored my giving gesture.) But something else in the papers caught my eye today. The AP reports that the Ninth Circuit has again remanded the punitive damages award against Exxon for its Valdez oil spill, finding that the district judge's $4.5 billion award was excessive. See the story here . Get this, though: in a 2-1 panel decision, the court reverses a Reagan-appointed district judge, H. Russel Holland, apparently because the punitive damages award, it said, should usually not be more than 9x the actual damages award and that that "rule" should apply in this case. Even supposing Holland has turned the thing into a personal blood feud against a corporation that last year cleared $36 billion, what gives? This was, no exaggeration, ...

One more thought on the bleeping issue. One reader commented in response to my question about how bleeping "dick" protects anybody, that it could help if a 4-year-old happened to be watching. Better that the 4-year-old hear "bleep in a box" than "dick in a box." I was about to reply that the concern for children leaves the mystery unsolved because the FCC rule requires bleeping during hours when young children are likely to be watching, while SNL bleeps even between 11:30 pm and 1 am, when young children would be asleep. Perhaps, however, the protect-the-children rationale still works for SNL because of the growing popularity of TiVo and other DVRs. Parents might watch a late-night show during daytime hours. THAT possibility (which has, in some sense, been with us since the days of VCRs), in turn raises the question of whether the FCC should be able to expand the hours of its decency reg to cover all times. Would doing so go beyond the FCC's statutor...

Thanks to Marty Lederman for the clarification re the court rulings on the decency statute. (See comment 1 on my entry earlier today.). But if no law requires bleeping "dick," the mystery only deepens: Why would NBC think that bleeping makes any difference where the bleeped word is obvious?

As widely reported, NBC recently placed a version of a parody music video called “My Dick in a Box” on YouTube (enjoy it here ) after having played the video on the broadcast version of Saturday Night Live with the word “dick” repeatedly bleeped out. This story raises many interesting questions, such as: How exactly does bleeping the word “dick,” when it is obvious from the context that this word (or perhaps an even more profane synonym) is being uttered, protect anybody’s sensibilities? And does anybody actually watch Saturday Night Live anymore? I’ll put these questions aside to get to a legal issue. The news stories I’ve seen say that NBC put the uncensored version on YouTube as a way to circumvent FCC regulation, but this is perplexing. The relevant FCC reg (which you can find at 47 C.F.R. § 73.3999) states: (a) No licensee of a radio or television broadcast station shall broadcast any material which is obscene. (b) No licensee of a radio or television broadcast station sh...

Yesterday’s federal court murder conviction of Ronnell Wilson rested in part on the prosecution’s introduction into evidence of rap lyrics that Wilson had composed. A wire story explains that prosecutors nationwide have increasingly relied on rap lyrics in pursuing cases against accused criminals. The story does not, however, draw what should be some important distinctions. In some of the cases, rap compositions by the defendant have been introduced essentially as confessions. This strikes me as appropriate. To be sure, there is a risk that someone who boasts in his song that he committed a particular rape or murder is puffing, but that risk is no different from the risk one encounters in a prosaic confession. The more interesting cases involve prosecutors introducing lyrics composed by the defendant or to which the defendant listened prior to the crime he allegedly committed. Here I see two issues, one not serious, the other more serious. The not-serious issue is fr...

Dear Mr. President: Whenever the topic of the courts arises, you say that you favor judges who will “interpret the law” rather than “legislate from the bench.” I could quarrel with the claim that the conservative judges and Justices you have appointed actually follow this philosophy, but I certainly understand and sympathize with the core belief that motivates it: In our system of government, important decisions should be made by the elected representatives of the People, unless the Constitution clearly takes some particular decision away from them. With respect to the courts, you, sir, can proudly say that you are a small-d democrat. Why then, I must respectfully ask, have you so little regard for the will of the People? I’m not referring here to the awkward circumstances in which you first won the Presidency. That’s water under the bridge in light of your victory in 2004. That latter victory was, as you said at the time, “an accountability moment.” But while we’re on the subject...

Now that Senator Sam Brownback has withdrawn his opposition to permitting the nomination of Judge Janet Neff from being considered by the Senate, it's worth examining the grounds that were offered for criticizing his action. First, of course, there is something deeply undemocratic about the Senate system of "holds" that permits a single Senator to block the confirmation of a judge who has the backing of a majority (not to mention a filibuster-proof majority) of the full Senate. It shares many of the flaws of the "three men in a room" system that Adrienne describes below. Second, the substantive grounds of Brownback's opposition were ridiculous. Brownback wanted to "investigate" the facts surrounding Judge Neff's attendance at a same-sex commitment ceremony for the daughter of a close family friend. Brownback worried that this revealed Neff's possible bias should she be called upon to adjudicate a constitutional challenge to laws forbiddi...

Those of us who live in New York state sometimes complain that the state is run by "three men in a room" -- the governor (currently George Pataki), the Senate majority leader (Joseph Bruno), and the Assembly Speaker (Sheldon Silver). An article on the front page of the Metro Section of today’s New York Times , entitled "Fate of Project in Brooklyn Hinges on Nod of One Man," highlights one reason for this phenomenon. The article reports that Speaker Silver could single-handedly shut down a redevelopment project for the Atlantic Yards in Brooklyn. No matter that the project has undoubtedly already been through all manner of administrative review; as the Times aptly puts it, "Sheldon Silver could always just say no." What the Times is talking about is the fact that in New York, certain projects undertaken by certain public benefit corporations require the unanimous approval of a body called the Public Authorities Control Board ("PACB"), whose th...

The release of the Census Bureau’s 2007 Statistical Abstract of the United States on Thursday led me to poke around with some of the tables on courts , in particular on civil cases filed in federal district courts from 2000 through 2005 (12-month periods ending June 30). The statistics aren’t really new and in fact don’t include the 2006 numbers, which are available on the federal judiciary’s website , and which I tacked on to some of the 2000-2005 numbers. One thing I noticed right away is that there was a big drop in cases filed in federal district courts in 2006, from 282,758 in 2005 to 244,343 in 2006. That’s a fall of almost 14%. In part this results from a spike in personal property damage cases filed in 2005: I’m guessing that the extra 20,000 or so cases in 2005 were 9/11 cases with statutes of limitations nearing. (Maybe a reader knows for sure.) That accounts for only about half the drop, though, and fewer total cases were filed in 2006 than in any of the preceding six year...

As sports fans are by now aware, during the waning moments of a Saturday night basketball game between the Denver Nuggets and the New York Knicks, a melee ensued among several players for each team. The league will shortly announce suspensions and fines for the players involved, including Nuggets star Carmelo Anthony, who connected on a sucker punch to Knicks rookie Mardy Collins (who himself had started the fracas by committing a hard foul). For much of Sunday, the sports tv news shows repeatedly replayed the fight, even as the commentators condemned the behavior. There is a certain mystery here. Basketball purists say that fighting has no place in the game, but obviously the tv producers think it keeps the fans hooked. In light of that evident fact, why does the league itself strongly disapprove of violence? One reason is obviously to protect the teams’ investments in their players. Unlike fights in hockey, where players are well padded, season-ending or career-ending...

Today’s New York Times contains a heartbreaking front page story about the shocking inadequacies of the legal system now operating in Iraq . The story raises numerous issues but I’ll just mention two here. (1) The article demonstrates that a concern for due process is not, as get-tough types sometimes say, a kind-hearted but soft-headed gesture. With procedures that do little better than chance at distinguishing guilty from innocent, and corruption rampant, not only are innocent people suffering long terms of imprisonment and perhaps in some cases being sentenced to death, but guilty people are routinely released. Military commanders complain about continually recapturing the same insurgents who are turned over to the courts only to be released on the basis of insufficient evidence. It’s true, of course, that one tough-minded solution would be to convict everybody, but even without the fog of war, this method should be utterly unacceptable to all but to...

The Times reported yesterday that the number of people sentenced to death each year in the United States has decreased almost 60 percent since 1999. As the Times pointed out, there are a number of possible explanations for this decrease -- a drop in violent crimes, better representation for capital defendants, Supreme Court decisions requiring juries to be told when a sentence of life in prison carries no possibility of parole. But it seems clear that one of the main reasons for the decline is a shift in focus by death penalty opponents from philosophical concerns to pragmatic ones. Instead of arguing that capital punishment is immoral -- as they often did in the past with little success -- opponents in recent years have been focusing on the unreliability of the criminal justice system. Aided by advancements in DNA technology and high-profile exonerations of death row inmates, they have persuaded many Americans that even if the death penalty is morally justified the system that ad...

I am so glad that Michael raised the issue of exploding offers, because it raises the general issue of the abuses that go on in the world of law school hiring. Exploding offers are arguably one example of such an abuse, but there are others that are worth highlighting. One key factor to consider in predicting whether abuses will take place at a particular school is the relationship between a faculty and its dean. If a dean perceives herself as working for the faculty in trying to recruit people about whom the faculty is enthusiastic, then she might play hardball, but she will do so in a way that increases the chances of bringing a happy new recruit into the fold. This in itself is an incentive against abuse. If, on the other hand, a dean views herself as a benign dictator who knows what is best for the faculty, then there is likely to be a problem. The dean-as-dictator will attend a meeting at which the faculty votes an offer to a candidate and view that meeting as conferring abso...

A number of my current and former students have lately been dealing with the nasty phenomenon of the “exploding offer,” whereby the offeror gives the offeree a deadline to decide whether to take the offer that is so imminent as to make it impossible for the offeree to explore other options seriously before she must decide whether to accept or reject the offer. I have no doubt that exploding offers exist in many contexts, but the three with which I’m most familiar are these: Offers of clerkships from judges to students; offers of publication from law journals to authors; and offers of tenure-track positions to entry-level legal academics. Let’s begin by defining an exploding offer. Clerkship applicants sometimes get on-the-spot take-it-or-leave-it offers, which clearly count as exploding for my purposes. So do 24-hour deadlines from law journals, since 24 hours is usually not enough time to have an article expedited at other journals.* For entry-level tenure-track offers, even...

About a year ago the Knesset (the Israeli parliament) passed one of the most despicable laws ever enacted by it. Despite its innocent sounding name "The Civil Damages Law (State Responsibility), Amendment 7," this law sweepingly denies any Palestinian residents living in areas defined by the defense minister as confrontation zones of the right to compensation, apart from a few exceptions. Thus, for example, a Palestinian passerby who is blinded by negligent Israel Defense Forces' gunfire (a bullet accidentally discharged during non-operational activities, for example), and who lost his livelihood due to the incident, will receive no compensation. Even if it is proved that the bullet was fired maliciously, the victim will receive no compensation unless the guilty soldier is found and convicted, which is highly unlikely. A few days ago, the Israeli Supreme Court found the law unconstitutional. In addition to the regular protests against the so-called activism of the Israeli...

Even as the press and bloggers speculate about the ramifications of Senator Johnson's health crisis, politicians of both parties have studiously avoided any such discussion, out of the understandable impulse to avoid seeming utterly callous to Johnson as a person and to his family. This strikes me as the utterly correct political (and human) judgment, but it's worth inquiring why. It certainly would matter enormously if, through death or incapacitation, a Democratic Senator were replaced by a Republican, even where, as in Johnson's case, the Senator is among the most conservative members of the party. Control of the Senate carries with it enormous consequences, including, among other things, the ability to control the legislative agenda on Iraq and to schedule judicial confirmation hearings in the Judiciary Committee. Certainly partisans of both parties believe that who controls the Senate has life-and-death consequences for a great many people. The politicians' relu...

In an era when the most hard-hitting journalists in the U.S. work for Comedy Central, when a genuine team of reporters from Kazakhstan in the U.S. to cover the November election could not conduct interviews because people assumed that they were working with Sacha Baron Cohen, and when the President's staff deride reality-based thinking, it was perhaps a miscalculation by Belgian television to broadcast a mockumentary with the premise that the federal government had dissolved. Apparently Americans are not the only people in the world who mix truth and fiction, or who have a hard time telling which is which. In any event, so far, no word of lawsuits.

Yesterday, federal district Judge James Robertson dismissed the habeas corpus petition of Salim Ahmed Hamdan (yes, that Salim Ahmed Hamdan) on the ground that the Military Commissions Act (“MCA”) eliminated jurisdiction. (Read the decision here . ) Judge Robertson usefully summarized the issues thus: The Military Commissions Act and the briefs of the parties present three questions: (1) As a matter of statutory interpretation and construction, did Congress actually succeed in removing our statutory habeas jurisdiction over the detainee habeas cases? (2) If so, is the Military Commissions Act a constitutionally valid “suspension” of the writ of habeas corpus within the meaning of the Suspension Clause, U.S. Const. art. I § 9 cl. 2? (3) If not, and if a “constitutional” writ of habeas corpus survives the Military Commissions Act, does Hamdan have a right to seek such a writ? The answers to these questions are “yes” to number (1) and “no” to numbers (2) and (3). The court...

Borat made more legal news this week, first as a court denied the request for an injunction by the two South Carolina fraternity brother plaintiffs. No great surprise there, given the waivers and the free speech defense. Meanwhile, earlier today, another South Carolina man sued over a scene that did not make the final cut of the film but was floating around the internet, and which I include here. The plaintiff claims that he was humiliated both by the original encounter and by the publicity it subsequently received. (He is not identifiable in the version I've posted, although for all I know, even this version may soon be scrubbed from Google Videos.) In following the lawsuits and the public reaction to them, I can't help but think that Borat is likely to reinforce negative views about plaintiffs, lawyers and our civil justice system. The overwhelming reaction of the public goes something like this: "Oh, come on. Lighten up. Borat didn't make you say or do anyth...

One interesting by-product of Harvard Law Professor Michael Ignatieff failure in his bid to take over the federal Liberal Party of Canada (discussed by Cristie Ford here ) is its implications for ‘law and development’ theory, and in particular Yves Dezalay and Bryant G. Garth book on The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States (Chicago: University of Chicago Press), which details how the US has been so successful at exporting our distinctive neo-liberal model of economic and legal development – such as the ‘Washington consensus’ in the realm of economic development, and a detached and court-centric “rule of law” in the realm of legal development – to the developing world Dezalay and Garth’s story is that American success in this area is due to a confluence of two factors. The first, and most obvious, is American political and economic power, and the social prestige that power brings. The second, and heretofore unreco...

Much of the frustration expressed by myself and others regarding Monday’s extremely terse Supreme Court opinion in Carey v. Musladin is rooted in the provision of the Anti-Terrorism and Effective Death Penalty Act that forbids a federal court from granting post-conviction habeas relief to a state prisoner unless the prisoner’s custody rests ultimately on a state court decision that “ was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” That means that a state prisoner cannot get federal habeas relief even if the state courts did make a constitutional error, so long as the error was not unreasonable, in light of Supreme Court precedents on the books at the time of the state court rulings. The provision, which is codified at 28 U.S.C. § 2254(d)(1), is meant to protect state courts that try in good faith to follow Supreme Court precedents but reasonably fail to anticipate rights-expandi...

We have ourselves a bit of a situation here in the Empire State. In November, we elected Alan Hevesi as state comptroller, despite the fact that he had admitted to using a state employee to drive his wife to and from doctor’s appointments. Apparently, he was supposed to reimburse the state for any work by this employee that was not security-related, but did not do so -- until some time over the summer, when his opponent in the election made Hevesi’s actions public and accused him of breaching the public’s trust. According to an article in this week’s New York Magazine , Hevesi has since repaid over $80,000 for the employee’s time (covering a period of three years), and may be required to reimburse as much as $200,000 more. In what was left of the election campaign by the time the story became public, Hevesi’s strategy became one of aggressive admission. He launched an ad campaign in which he confessed his missteps, apologized, and asked for the voters’ forgiveness. Perhaps it worked; ...