Dorf on Law

The Committee on Capital Markets Regulation today released a lengthy report recommending a series of regulatory and legal reforms and marketplace reforms designed to (as these things always seem to do) enhance American competitiveness. In the shareholder rights section, there's a proposal that exchanges adopt listing requirements that listed firms with staggered boards obtain shareholder approval of poison pills. (Actually, the first recommendation is that "Delaware should do this".) Why should we expect that exchanges, acting independently, will adopt reforms that incumbent magament believes are inimical to their own interests? If memory serves, the NYSE long had a rule prohibiting the listing of shares in companies with dual-class voting. Then, when a big fish decided that it wanted to have dual-class voting and threatened to list on another exchange, the NYSE relented. (The SEC tried to limit the dual-class structure by adopting a rule 19c-4, lost a case over its ...

Yesterday's oral argument in the global warming case, Massachusetts v. EPA ( transcript here ) included considerable discussion of the "redressability" prong of Article III standing doctrine. To oversimplify, the courts deny legal standing where the plaintiff(s) cannot establish that a favorable ruling will actually redress the injury alleged. There is certainly some logic to this requirement: where the relief sought has nothing to do with the harm alleged, then it does look like the plaintiff is asking for an effectively advisory opinion. But the Court's doctrine--and especially the way the lawyer for the U.S. read that doctrine in colloquy mostly with Justice Souter yesterday--goes well beyond that, essentially denying the right to a day in court to someone whose injuries will only be partly addressed by a favorable ruling. Where there is at least a logical connection between the alleged injury and the relief sought, it is not at all clear why standing should be...

I was entertained by the recent Second Circuit opinion in Blanch v. Koons , in which the court determined that the prominent contemporary artist Jeff Koons had not infringed the copyright of Andrea Blanch in her photograph of a pair of shoe-shodden women's feet. The photo appeared in print once, in an issue of Allure Magazine. Koons painted* a set of big panels called "Easyfun-Ethereal" that were installed at the Guggenheim in Berlin. All of the paintings in the series were "fragmentary images collaged against a landscape"; Niagara depicted "four pairs of women's feet and lower legs dangling prominently over images of confections . . . with a grassy field and Niagara Falls in the background." One of the sets of feet was a scanned image of Blanch's photo. Koons ends up winning on his "fair use" argument because of the transformative nature of his copying. That aspect of the "purpose and character" element seemed (in my view)...

During the semester now nearing its end, I conducted an experiment in which I strongly discouraged my first-semester first-year civil procedure students from using laptops, for reasons largely captured in Sherry Colb's FindLaw column published in early September . I reproduce the text of my policy at the end of this post. I'm going to query my students about their reaction to the policy in the anonymous course evaluations they'll shortly fill out, and I'll report on the results when I have them in January. I've been pleased by the level of attention and my sense so far is that while students were initially skeptical, they adjusted. On a typical day, the number of students using laptops is 0 or 1 (out of a class of 27). For now, I thought I'd just add an anecdote. Mostly through carelessness, I neglected to discourage laptop use in my seminar this semester, even though there is even less need for taking detailed notes in a seminar than in a doctrinal course....

In response to my blog posting about the inadequate brief filed by the petitioner's lawyer in the Louisville voluntary integration case, I received an email yesterday from Professor Sam Marcosson, who teaches at the Brandeis School of Law at the University of Louisville. Professor Marosson had the lawyer (Teddy Gordon) as a guest in his constitutional practice seminar earlier in the semester, and the students gingerly asked why he had filed such a short brief. Gordon replied that he read the Supreme Court rules, and they stated that oral argument shouldn't repeat what's in the briefs, so he wanted to "save" his strongest points for oral argument. Oi! Apparently, Gordon also rejected an offer from Ted Olson to argue the case. I wonder whether he made that decision in consultation with the client. It's hard to imagine the client rejecting such an offer, at least on the assumption that Olson would have been paid by someone else.

Even Alexander Bickel argued that our Supreme Court best acquits itself when it acts as the institution of “decency and reason,” when it uses its docket to “define values and proclaim principles.” But when the Court hears oral argument in Massachusetts et al. v. EPA on Wednesday—the Court’s first foray into global warming, the single biggest environmental issue of our time—don’t hold your breath waiting for it to do any of that. Dollars to donuts says the Court pulls a duck and cover that will rival the one our current administration is pulling. The case focuses on a few provisions of the massive Clean Air Act, a statute many think was Congress’s last and greatest attempt to legislate a comprehensive federal response to environmental degradation. In a nutshell, the Act requires EPA to “prescribe . . . standards applicable to the emission of any pollutants from any class or classes of new motor vehicles or new motor vehicle engines, which in [its] judgment cause, or contribute to, a...

I enjoyed Alon's post and the comments on it. They raise the problem of what we might call the paradox of tolerance (that is, that intolerance must be tolerated and that if intolerance prevails in the battle of ideas, then tolerance will be no more -- a variant on one person, one vote, one time). Nomi Stolzenberg at U.S.C. Law Center wrote an article in the Harvard Law Review (on which I was a research assistant, just to give you a sense of how long ago we're talking about) called something like "He Drew A Circle That Shut Me Out: An Assimilationist Critique of Pluralism" that captures these issues very well. My own view is that in a battle between multiculturalism and equality, equality ought to win. This sort of thing comes up quite regularly when religious groups (and it does, unfortunately, tend to be religious groups) deny women and gay people an equal place in their societies and then demand that the surrounding society "stay out" and allow the su...

As many readers probably know, Scott Turow has an essay in yesterday's New York Times in which he suggests that Justice Scalia may end up being one of the most important defenders of civil liberties on the Court, especially in future "war on terror" cases. Turow makes some interesting points about Scalia opinions in a number of recent civil liberties cases, including Apprendi v. New Jersey . But he seems to place the most weight on Justice Scalia's dissenting opinion in the 2004 case Hamdi v. Rumsfeld . And there, I think Turow is quite wrong. (Warning/shameless plug: much of what follows in this post is derived from a recent article of mine, " Hamdi 's Habeas Puzzle: Suspension as Authorization?" 91 Cornell L. Rev. 411 (2006). A draft of the article is available here .) As most readers probably know, Hamdi involved a challenge to the executive branch's detention, without charge, of a U.S. citizen alleged to be an enemy combatant. The case di...

This year marks the 20th anniversary of what is still to my mind the greatest law review article I’ve ever read, Daniel Farber’s “The Case Against Brilliance” (70 Minn. L. Rev . 917 (1986)). Farber’s article was a critique of two then-recent law review articles, one by Dworkin and the other by one-time Michael Dorf co-author Laurence Tribe. Both articles, Farber argued, are examples of brilliant scholarship. For example, Dworkin’s article, as I remember, had demonstrated counter-intuitively how Rehnquist’s dissenting opinion in Garcia v. San Antonio Metro. Transit Auth . (469 U.S. 528 (1985)) (which argued in dissent that the 10th and 11th amendments immunized state governments from federal employment regulations) actually endorsed constitutional recognition of social welfare rights. The problem, according to Farber, is that such brilliant, counterintuitive arguments are simply incompatible with how the law, or at least the common law, really works. The law, unlike say economics, is me...

After unsuccessfully ignoring the Iraq war in 2004, a great many Dems successfully ran against the war this year. There was something missing, however. Admittedly, I didn't watch every last snippet of coverage, but in what I did watched I saw no mention whatsoever of what might be called the "civil liberties" issues raised by the Iraq War (think Abu Ghraib) and the broader "war on terror" (think Gitmo and domestic electronic surveillance). Because I generally trust that politicians have a better sense of what will and won't play to public opinion than I have, I suspect that the absence of a civil liberties agenda in the recent campaign reflects the view of the American people that it's worth sacrificing some liberty and privacy for increased security, especially if the people doing nearly all of the sacrificing are aliens and other "others." To be sure, it is not clear what a Democratic Congress could actually do on these fronts, even if i...

The recent controversy concerning the gay pride march in Jerusalem provided an interesting example of the internal conflicts within multiculturalism and the failure of self-declared secular multiculturalists to understand the values underlying their own ideology. The facts are simple. A gay pride march was scheduled to take place in Jerusalem. The ultra-orthodox community threatened to use violence against the marchers. In their view the march is an affront to a holy city. In a rare display of solidarity, rabbis, priests and Muslim clerics all united against the parade. The police joined the efforts to ban the march by issuing serious warnings concerning expected violence and declaring that it would be incapable of protecting the marchers. After lengthy negotiations, conducted under the pressure of the attorney general, it was agreed that a rally instead of a march will take place in track stadium in Jerusalem. Politically the religious opposition to the march was supported by many sec...

I have always been puzzled by the claim that "politics should stop at the water's edge." I don't mean that I fail to comprehend the aphorism. The idea is simple enough: Foreign policy matters are of such great importance that partisans should put aside their petty squabbles to come together in the national interest. What puzzles me is how anyone could think just this. The saying seems to assume that it IS okay for us to have politics -- understood as a debased, dishonest discourse -- about such domestic matters as wealth distribution, environmental protection, medical care, and so forth. Even if one thinks that these issues aren't quite so important as foreign policy, they're certainly important enough that one wouldn't want them to be "politicized." If this is one's view, then one should simply say "politics should stop." I happen to think that in some circumstances, what I'll call "small-p" politics are just th...

I commend to readers the first two comments posted on Trevor's post, which make very good points. Here are a few further thoughts: 1) I continue to think that in general the call for non-lawyers on the Court emanates from a right-wing populist attack on the perceived liberalism of the Court. I'm not calling Vermeule either right-wing or populist. He's making an academic proposal, which is something else altogether. As an aside, it's notable that lawyer-bashing is a common form of right-wing populism, while the idea of the heroic lawyer standing up for the little guy is a common form of (American) left/liberal populism. (Think Erin Brockovich, John Edwards, etc.) 2) The weak form of Vermeule's proposal--inter-disciplinary Justices--cuts against the populism and anti-lawyer cast of the strong form. Those with PhD's as well as JD's are likely to be even more remote from the values of the volk than plain old lawyers. This would hardly satisfy Scalia's...

Mike's interesting post on the idea of non-lawyer justices on the Supreme Court brings to mind a recent article by Adrian Vermeule of Harvard Law School, entitled "Should We Have Lay Justices?" In a word, Vermeule's answer is "yes." As he says in the abstract, "I argue that the optimal number of lay justices [on the Supreme Court] is greater than zero. In the strong form of the argument, an historian, economist, doctor, accountant, soldier or some other nonlawyer professional should be appointed to the Court. In a weaker form of the argument, we should at least appoint dual-competent justices - lawyers who also have a degree or some other real expertise in another body of knowledge or skill." There's quite a difference between the "strong" and "weak" forms of Vermeule's argument. The former calls for lay justices drawn from other fields; the latter calls for justices trained in the law who are also expert in some oth...

Today's NY Times has a front page story describing how the pharmaceutical industry is scrambling to develop ties with the new Democratic majority in Congress. Their primary goal, it appears, is to prevent legislation that would amend the 2003 legislation that prohibits the government from negotiating prices for Medicare prescriptions. It's not surprising that the industry would want to make as much money as possible from the program, but what is surprising is the utter flimsiness of its claims that negotiated prices are not in the public interest. The industry makes two main claims. First, the industry argues that the prescription drug plan is working. Okay, so what? Why would it work worse if the govt paid less for prescription drugs? Second, the industry argues that price negotiation would lead to artificial price controls, which would in turn lead to restrictions of drugs patients want. But as with any slippery slope argument, this one only works if there's some r...

Just a short posting today re Thanksgiving. In modern debates about church-state separation, those who favor a greater role for religion in public life sometimes invoke the practice of the nation's Founders, including the fact that early Presidents made manifestly religious proclamations of Thanksgiving. Here I'd note the following three facts: 1) Even George Washington, whose Proclamation was indeed expressly religious, was careful to make it non-denominational. Thus, those who say things like "the United States has always been a Christian" nation appear to be correct only in the sense that it has always had a majority Christian population. The remarkable secularism of the Constitution (in its day and ours) was not aberrational for the Founding generation. 2) The practice of religious proclamations was sufficiently controversial in the early days of the Republic that Thomas Jefferson, admittedly the most secular of the Founders, refused to issue any. Notably, J...

Perhaps partly in response to a series of front-page articles in the New York Times earlier this year, New York State's Chief Judge Judith Kaye announced proposed changes to the state's "Justice Courts" that serve many rural and suburban communities. The series reported on underpaid and unqualified judges dispensing at best uneven approximations of justice. Principal among the changes would be increased training and monitoring of the judges, the latter to be facilitated by a new requirement of court transcripts. However, because the Chief Judge lacks the authority to require that these judges be fully trained lawyers, that change would have to come from the legislature, which has historically been reluctant to tinker with the Justice Courts. The New York saga raises the more general question of whether judges should necessarily be lawyers. At the federal level, there is no such rule. By statute, the Solicitor General must be "learned in the law," but no...

Michael Dorf’s response to my last posting raises another interesting question about the phenomenon of what Bruce Ackerman famously identified as “constitutional moments.” Citing John Yoo and other’s advocation for greater presidential power in the wake of 9/11, Michael suggested the possibility that 9/11 could be seen as a ‘constitutional moment’ leading to a transformed constitutioanl regime in which presidential powers are expanded in the way that Yoo and these others suggest. (To my reading, Michael himself appears at best agnostic with regards to this). And this, I believe, points out to two other limitations in the utility of Ackerman’s particular explication of the phenomenon of ‘constitutional moments’. In the main, Ackerman views the phenomenon of a constitutional moment through what is still a common law lawyer's eye. In other words, he identifies constitutional moments primarily through the sources of authority to which common-law lawyers pay the most attention – the co...

Okay, I know I promised that I was done with posting about OJ, but I can't resist just one more, this one on the decision by the News Corp (parent of Fox and HarperCollins) to cancel the tv special and book in which OJ would have told the world how he "would have" murdered his ex-wife and her friend. As Rupert Murdoch acknowledged in his announcement and apology, the project was "ill-considered." Although it certainly struck me and nearly everybody else to opine on the subject that way, we might still fruitfully ask why the initial decision to green-light this project was so preposterous. According to an unnamed Fox executive quoted in a NY Times story on the canceled program and book, the company made a miscalculation that enough time had passed so that Simpson would no longer be a pariah. This reasoning jibes with a saying (variously attributed to many different people) that tragedy plus time equals comedy. So a comedy sketch involving Napoleon (responsibl...

Appearing yesterday on ABC’s This Week with George Stephanopoulos, Senator John McCain was asked about his positions on gay rights and abortion (ostensibly so that he could distinguish his views from those of Rudy Giuliani). McCain’s answers were not exactly “straight talk,” (unless we understand “straight” as simply the opposite of “gay.”) On gay rights, McCain said he was against same-sex marriage, but that he was also against “discrimination.” That’s a dodge, but the same one used by a great many politicians, Republican and Democratic alike. However, Stephanopoulos, to his credit, asked a couple of follow-ups, including why McCain voted for the (failed) Arizona ballot initiative, which would have banned not only same-sex marriage but also civil unions. McCain seemed to say in response that civil unions are unnecessary because same-sex partners can create powers of attorney and the like to simulate the benefits of marriage. (I can’t be sure that this is wh...

A couple of weeks ago, in DirecTV v. Leto , the Third Circuit found itself in the curious position of reviewing--and rejecting--a district court’s interpretation of its own order. The order and its misinterpretation came in the same litigation and, by all appearances, were accomplished by the same district judge. Lower courts’ interpretations of their own orders are appealed more often than one might expect. Sometimes it happens in circumstances, such as a contempt proceeding, in which a party has arguably violated the order in question. DirecTV is notable in that the district judge was held to have missed the whole effect of his own order: He thought he’d dismissed claims as to certain defendants, when actually he’d merely severed them. (In the former case, the action could not have been re-filed due to the statute of limitations.) The puzzling question in these situations is what standard of review the appellate court should apply. The usual rule (and the rule of the Third Circuit) ...

According to news reports, if the owners of the San Francisco 49ers go through with their plan to move the team to Santa Clara, Senator Feinstein (perhaps abetted by Speaker Pelosi) will introduce legislation preventing them from using "San Francisco" as part of their name. Can Congress do that? The short answer is yes, as San Francisco itself found out when it was on the losing end of a case involving Congressional conferral of exclusive rights to use the word "Olympics." In that case ( which you can find here ), a San Francisco organization was prevented from calling its sports festival the "Gay Olympics" by a federal statute. The Court said that Congress was within its power to confer exclusive use of "Olympics" on the United States Olympic Committee, because "Congress reasonably could conclude that the commercial and promotional value of the word "Olympic" was the product of the USOC's 'own talents and energy, the ...

Cost benefit analysis (CBA) in environmental regulation is certain to shift in tone, if not necessarily in direction, if the republicans also lose control of the White House in 2008. (Incidentally, I heard the scrutiny given John Graham’s successor at OMB, Mercatus Center alumna Susan Dudley, was quite lame in her confirmation hearing last week.) Perhaps the biggest springboard in recent debates about the place of CBA was the regulation of arsenic in drinking water under the Safe Drinking Water Act. Many decried the prohibitive cost of achieving the set contaminant levels, arguing that too many communities wouldn’t be able to afford the filtration. Others returned to a now familiar theme: the “cost” figures churned out are always, on reflection, of literally mythic proportions. The parties that will face the most immediate costs of compliance have every incentive to, and occasionally do, inflate the numbers, rigging what is supposed to be an objective (or at least methodologically s...

If I ever get to nominate the father of Anglo American constitutionalism, I will nominate Lord Bolingbroke (Henry St John, 1st Viscount Bolingbroke). Bolingbroke was the person who invented that particular discourse of constitutionalist opposition which really, more than anything else I believe, defines and identifies the presence Anglo-American constitutionalism. That is the discourse that couches arguments for constitutional reform and revision in historicist terms, creating the discursive illusion of moving backward when in fact moving forward. Resorts to this technique are so ubiquitous in American constitutional law that I’m hoping that I do not have to belabor the point. But it is also definingly present in English constitutional history, be it that of the conservative constitutionalism of Bolingbroke during the Walpole era; the radical constitutionalism of the late 18th century; or the counter-reformation constitutionalism of Dicey. Interestingly, the two most prominent English ...

Wondering why O.J. Simpson now lives in Florida? It turns out that Florida has the nation's most generous "homestead" protection. That means that Simpson's home cannot be seized and auctioned to pay (part of) the judgment he still owes to the families of his victims. Florida also restricts the ability of judgment creditors to garnish wages. When I learned of this, my first thought was that this seems inconsistent with the obligation of states to give full faith and credit to the judgments of their sister states, but a moment's reflection showed that that's not quite right: Florida's rules governing homestead protection and wage garnishing do not deny any of the legal effect of an out-of-state judgment. Rather, they are substantive protections for debtors against creditors, and as long as Florida treats out-of-state creditors no worse than in-state creditors (which it apparently does), then this is a permissible choice-of-law rule that does not directl...

Yesterday, the Court of Criminal Appeals of Texas rejected the claim of Jose Ernesto Medellin that a Presidential memo to the U.S. Attorney General entitled him to habeas relief because of violations of his rights under the Vienna Convention on Consular Relations. (Read the court's decision here .) The President's memo invoked his foreign affairs power and the Supremacy Clause to assert authority to waive procedural default rules in state courts, and the U.S. government argued on Medellin's behalf in the Court of Criminal Appeals. In particular, the memo asserted that the President had the authority to require states to comply with the International Court of Justice's ruling in the Avena case. There, the ICJ held that state rules of procedural default could not be invoked to defeat Vienna Convention rights to consular consultation. The ICJ's ruling made considerable sense because a central feature of the Vienna Convention is that it confers a right of arrestees to ...

Amazingly, the book is called O.J. Simpson: If I Did It, Here's How It Happened . You can read about it here . The article states that it's not known how much of the proceeds of the book sales will go to the victims' survivors, whom Simpson still owes many millions under the civil suit verdict. This, I suppose, puts those survivors in a rather awkward position, not unlike that of the states that stood (and still stand) to benefit from cigarette sales under the terms of the tobacco litigation settlement: financially dependent on activity that they must regard as deeply offensive. Litigation, I guess, makes strange bedfellows. Meanwhile, I'm looking forward to the following titles: Mahmoud Ahmadinejad: If I Have Nuclear Weapons, Here's How I Made Them Dick Cheney: If I Lied in the Leadup to the Iraq War, Here's How and if O.J. inspires a nostalgia craze for the mid-90s, be sure to look for: Bill Clinton: If I Did Have Sex With that Woman, Here's What the ...

I just came across an A.P. story with the following first sentence: Fox plans to broadcast an interview with O.J. Simpson in which the former football star discusses "how he would have committed" the slayings of his ex-wife and her friend, for which he was acquitted in a widely-watched trial, the network said. What the #$%^*~? Did he recently fire his publicist? Did Borat conduct the interview under the pretext that it would only be shown in Kazakhstan? I suppose Simpson could have said that he would have killed them using a method so different from the actual stabbings -- tossed them into a volcano, say, or ripped out their hearts and eaten them -- as to somehow persuade viewers that therefore Simpson wasn't the actual killer. Or perhaps Simpson figures he's already on the hook from the civil verdict and protected against further criminal prosecution by the Double Jeopardy clause, so what the heck. But still, why say such a thing? This does seem to take Mark T...

I just read the Supreme Court’s decision in Ayers, and I have to say that Justice Kennedy’s majority opinion is one of the most bizarre exercises in after-the-fact speculation I have read. As Mike notes below, the defendant argued that the jury instructions precluded jurors from considering mitigating evidence that he would lead a constructive life if sentenced to prison rather than executed. Taking the instructions at face value, the defendant seems right. Factor k (the instruction at issue) says jurors may consider “any other circumstance which extenuates the gravity of the crime,” but says nothing about mitigating evidence unrelated to the crime, such as the possibility of future good conduct. In two previous cases, however, the Court rejected the argument that factor k necessarily precludes consideration of mitigating evidence unrelated to the crime. Instead, the Court ruled, factor k is invalid only if “there is a reasonable likelihood” that the jury understood the instruction...

An op/ed appeared in today's New York Times raising the important issue of hospital-induced infections, “which account for an estimated 100,000 deaths every year.” The author, Betsy McCaughey, describes the spread of the deadly Staph infections: “Doctors and other caregivers who lean over an [infected] patient often pick up the germ on their hands, gloves or lab coats and carry it along to their next patient.” McCaughey has apparently given up, however, on the possibility of getting caregivers to wash their hands and change their gowns between patients. Indeed, she notes that “[e]arlier efforts to stop these infections by installing many more dispensers of hand cleanser and conducting a year-long educational campaign on hand hygiene had no effect.” Her current proposal is to screen all patients for the presence of the infection. I have addressed this issue in two columns, Unclean Hands: How Patients Can Prevent Blatant Medical Malpractice and Hospital-Induced Infecti...

Yesterday's Supreme Court decision in Ayers v. Belmontes is arguably another example of the point I made a few days ago about the handicaps our system of concrete review imposes. The case presented the question whether California's catchall factor in capital sentencing permitted the jury to give full mitigating force to the defendant's proffered evidence that his religious awakening would lead him, if spared, to spend his life in prison serving others. Earlier cases had upheld California's provision (k) in other contexts, and so did this one, even though factor (k)'s specific language seems to focus only on the circumstances of the crime, rather than the perpetrator's character apart from the crime. The factor invites jurors to consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” As Justice Stevens (for himself and Justices Souter, Ginsburg, and Breyer) argued in dissent, in ...

The frat kids in the van in the Borat movie have sued Sacha Baron Cohen (whose name they misspell as "Sasha" in the first line of the complaint) and the production companies involved in the move, seeking damages and an injunction. You can find the complaint here . According to the complaint's allegations, the producers got the plaintiffs drunk first, had them sign a release based on the assumption that they would not be identified and that the film would not be shown in the United States, and then piled them into the van, where the events in the film occurred. Among other things, the complaint states that the film falsely depicts them as insensitive to minorities. Interestingly, it does not say that their apparent insensitivity to women was a false depiction. Finally, of interest only to civil procedure nerds like myself, the suit is brought in state court in California, evidently to make it unremovable to federal court. (Although there appears to be diversity of ci...

Warning to Readers: If you haven't see the Borat film, and intend to, you may not wish to read past the next paragraph, as I discuss some scenes from the film. Federal law requires that federally-funded research at universities and other institutions be approved by an "Institutional Review Board" (IRB) if it involves human subjects. Many universities (including Columbia, where I teach), require approval even for non-federally-funded research, and even "exempt" research posing minimal or no risk to human subjects requires a specific, advance, exemption. Thus, two JSD students whose work I supervise, had to jump through numerous hoops before getting the go-ahead to conduct their research. What was this research? Were they repeating the Milgram experiment? Were they conducting clinical trials of a new drug? No. They are asking questions of government lawyers and judges about their experiences using alternative dispute resolution. As my colleague Philip Hamb...

Interviewed on NPR a couple of days ago, Congressman Jack Murtha stated that Democrats would not withhold funding as a means of pressuring the White House to redeploy U.S. troops out of Iraq. The troops should not be put at (further) risk, he said, as part of a political struggle. Are Murtha and other Democrats too hastily rejecting this option? Can defunding be used to pressure the President without jeopardizing the troops? Maybe. Congress clearly has the power to attach conditions on funding. Thus, it could pass funding legislation that says something like this: "None of these dollars shall be used for any purpose other than the expeditious withdrawal of U.S. forces from Iraq." But it would face two difficulties: (1) How to enforce such a condition? Presumably the courts would try to avoid adjudicating an inter-branch conflict between congressional power of the purse and the President's role as Commander in Chief. Congress might create an office of auditor withi...

I wrote a column about this case a few weeks ago, which appears at this link . In the column, I compare the distinction the statute implicitly draws (between killing a second-trimester fetus when it is seconds from being born alive, on the one hand, and actually delivering the second-trimester fetus alive, on the other) as comparable to the distinction between physician-assisted suicide and removal of life support. Though the distinction – in both contexts – strikes me as weak, it evidently appeals to the Court, which may bode well for the continuing right to terminate a pregnancy by inducing labor prior to viability, if by no other method. What I do not say in the column but nonetheless believe is that the distinction the statute explicitly draws, between “partial birth abortion” (when the abortion provider kills the fetus after most of it has exited the womb) and other second-trimester abortions (in which the provider kills the fetus while it is still inside the womb) is utter...

I just happened to read the petitioner's brief in Meredith v. Jefferson County Bd. of Ed. , one of two cases to be argued next month presenting the question whether public schools may voluntarily use race in student assignments as a means of achieving racial integration. The brief, filed on behalf of the mother of a five-year old who was denied a request to transfer from one elementary school to another, is - - how shall I put this politely? - - utterly incompetent. I do not exaggerate. Here is the core of the argument from the brief (which itself is barely 9 pages in total): "The race-conscious, hard-core, mechanical quota Student Assignent Plan of the JCPS seeks to fix a number of desirable minority students to insulate one group of applicants from another. For the Student Assignent Plan of the JCPS to be defined as anything other than a hard-core, mechanized quota, there must have been a finding by the trial court that Joshua Ryan McDonald was denied entrance into his ne...

In the midst of all the heady post-election developments yesterday, the Supreme Court heard oral argument in two cases presenting challenges to the federal "partial birth abortion" statute. (Argument transcripts available here .) These are the first abortion cases to come before the Court since the arrival of the new Chief Justice and Justice Alito, and many observers (including me) have been expecting that the Court will uphold the statute. In 2000, the Court in Stenberg v. Carhart struck down a similar Nebraska statute by a vote of 5-4, with Justice O'Connor in the majority. Now that she has been replaced by Justice Alito, crude nose-counting suggests that the federal statute might now fare better. Moreover, defenders of the federal law have stressed two points that arguably distinguish it from the Nebraska law, so that the Court could uphold the federal statute without actually overruling Carhart: (1) the federal law is arguably clearer about which abortion procedures...