Dorf on Law

Mike's post from this morning discusses comments by Philip Zelikow, a former Bush administration official who argued recently that law schools do not train future lawyers to think about moral or normative questions but only to think about technical legal arguments. Mike's response, with which I completely agree, is that law schools in fact do teach students to think about morality and justice. I'll add here some anecdotal observations as well as a comment about how Zelikow's attack is fundamentally at odds with the usual attacks on legal education. When I was in law school at Michigan, there were a large number of students (thankfully not a majority, but still a sizable group) who would constantly grumble about how our professors wouldn't simply teach black-letter law and would "hide the ball." Their complaint was precisely that law school was NOT what Zelikow claims it is: a trade school where methods of legal reasoning are taught without consideratio...

Yesterday's NY Times story questioning the efficacy and morality of "enhanced" interrogation techniques employed by the CIA and US military since 9/11 noted that "[i]n an April lecture, Philip D. Zelikow, the former adviser to [Condolezza] Rice, said it was a grave mistake to delegate to attorneys decisions on the moral question of how prisoners should be treated." The full text of the speech to which the Times story refers has been posted here , and Zelikow's argument is not at all persuasive. Zelikow contends that in the aftermath of 9/11, the Bush Administration turned to lawyers to assess the legality of various policy options on interrogation and other issues, and that these lawyers, per their training, asked the question whether the proposed policy options (including the "enhanced" interrogation techniques) could be accomplished legally without asking whether they should be undertaken. That focus on could but not should, Zelikow argues, i...

The International Whaling Commission is currently holding its 59th annual meeting in Anchorage Alaska. The big action scheduled for the meeting concerns Japanese and Danish efforts to increase their catch quotas. Both countries (and others) have been accused of masking commercial whaling programs as "scientific" or "traditional community" programs. Here I want to focus on a decision already taken. Yesterday the Commission, among other actions, renewed the five-year quota of 280 bowhead whales to be split between Alaska Natives and the indigenous people of Chukotka, Russia. Suppose that this quota is, by the lights of Alaska Natives, inadequate. Or suppose that it had been denied altogether. Would Alaskan Inuits have a valid claim under the Religious Freedom Restoration Act (RFRA)? Although the Supreme Court struck down RFRA as applied to state and local governments in City of Boerne v. Flores (1997), the Court unanimously held in Gonzales v. O Centro Espi...

One comment on my earlier post on this issue raises a very interesting and important point about rape and HIV testing. The comment notes that prophylactic HIV treatment must begin within 72 hours of exposure to the virus, which almost certainly means that by the time a suspect has been indicted for a particular rape, the window will have closed. It is true that the CDC recommends that prophylactic HIV treatment be started within 72 hours of exposure. For those unfamiliar with the distinction between HIV prophylaxis and treatment, the former allows a person who has had HIV introduced into her system to prevent infection (as opposed to simply managing it) by taking the cocktail every day for a month within a short time after exposure. This is distinct from using the medication to "treat" HIV, because if prophylaxis is successful, then the exposed person need not ever become HIV-positive. There are some caveats however, which may affect how the 72-hour window bears on an as...

Because this is Memorial Day, I thought I would post a recommendation for some fun reading, along with a few stray comments of my own. (Because many people will spend this holiday at Coney Island, I titled this message with an obscure reference to an attraction at that famous tourist destination.) The book Freakonomics became something of a phenomenon back in 2005. The book itself was a huge bestseller, the authors (Steve Levitt and Stephen Dubner) started to write a semi-regular column in the NYT Sunday Magazine, and of course a Freakonomics Blog was obligatory. A sequel, Super-Freakonomics , is reportedly on the way. I was among those taken in, writing a positive review of the book (along with the book Blink -- which I still believe is very good) on FindLaw. Although I noted some overstatements in Freakonomics , particularly in its claims that Levitt's insights somehow derived uniquely from "the economic method of thinking," or some such pomposity, a fair reader...

Vice President Cheney gave the Commencement speech at West Point on Saturday, and on this Memorial Day Weekend, I'm happy to join him in his conclusion: "Godspeed to the United States Military Academy Class of 2007," 70 percent of whom, according to the VP's speech, now go into combat. I'll even praise Cheney for not suggesting that those who question the conduct of the Iraq war are unpatriotic. He was almost gracious in stating: "Down in Washington, D.C., we air differences and argue back and forth on matters of policy. It's always that way, and there's nothing wrong with it." Nonetheless, the speech was, at bottom, an artifice. As a stylistic matter, it was larded up with numerous insider references to persons and places at West Point. If one did not know the identity of the speaker, one would have guessed that it was a decorated veteran officer, returning to the place where his glorious military career began, rather than the beneficiary o...

The New York State Assembly is poised to consider a bill requiring H.I.V. testing of suspects who have been indicted for rape. Governor Elliott Spitzer and a majority of the Assembly support the legislation. However, it is nonetheless controversial and may therefore stall before coming up for a vote. The question of whether such legislation properly balances the interests of rape victims and rape suspects is a difficult one. Those who support the bill say that a rape victim should have as much information as possible in deciding whether to begin taking the combination of H.I.V. medications known as the "cocktail" after a sexual assault. These medicines play a crucial role in slowing down the multiplication of the virus and in strengthening a person's immunity, but they have many unpleasant and significant side effects. To ensure compliance, it is therefore useful for a patient to know that she has actually been exposed to the virus. The reason the victim cannot simp...

As the long weekend approaches a lot of New Yorkers are thinking about traffic. So Mayor Bloomberg showed good timing in announcing yesterday a new plan to increase enforcement against drivers who "block the box." Although I wasn't invited to join the him on the traffic island at Times Square where he made the announcement, I'd like to join my council member, Gale Brewer, who was there, in saying that "I fully support Mayor Bloomberg's efforts to control this nuisance." The clever part of the plan is a proposal (requiring NYS approval) to "reclassify" the violation. Right now blocking the box (for those who don't know "Blocking the box is a common term for driving into an intersection as the light is changing without room to continue through it, thus blocking traffic") is considered a "moving violation," instead of a "non-moving violation." How this can be I have no idea; if you were moving, you wouldn...

That's not entirely a rhetorical question. After the AG's dismal performances in his testimony before both houses of Congress, President Bush praised him. Yesterday he stated that “Attorney General Gonzales has testified; he produced documents,” and demanded that Congress “move expeditiously to finish their hearings.” In response to a question about whether the Justice Department might not be better served by different leadership, the President invoked the Department's ongoing internal investigation. “This will be an exhaustive investigation,” he said. “And if there’s wrongdoing, it will be taken care of.” This approach is reminiscent of the President's statements regarding the Plame affair. When it first became apparent that someone in the Administration had leaked the name of a CIA agent for the purpose of undermining her whistle-blowing husband, Bush took the high road, vowing to fire anyone involved. Then, as Special Prosecutor Fitzgerald's investigation p...

This week, the Senate began debate over a massive immigration reform bill cobbled together by a bipartisan group of senators and the Bush administration, a compromise proposal that Arlen Specter has extravagantly dubbed the "grand bargain." As rumored several weeks ago , the bill includes a set of initiatives (apparently included at the behest of the Bush administration) that would radically accelerate the Clinton-era trend of eroding the place of family unity as a foundational principle underlying U.S. immigration policy. The system contemplated by the grand bargainers would eliminate most of the existing family-based immigration preference categories (and all of the existing employment-based preference categories) in favor of a new "points"-based scheme that prioritizes highly-skilled, highly-educated, and English-speaking professionals; under the points scheme, family ties would carry negligible weight. Immigration by spouses and minor children of U.S. citizens a...

Monday's Supreme Court decision in Bell Atlantic Corp v. Twombly will be scrutinized carefully by both civil procedure scholars and antitrust scholars for years to come. Indeed, as a proceduralist but not an antitrustite, I can attest that the procedure side of the scrutiny has begun in earnest, at least as judged by the level of buzz on the civpro faculty list. For those of you who have more interesting things to do with your lives, here's a very capsule summary: The plaintiffs brought a class action against local telephone line operators, alleging that in violation of the Sherman Act, the local phone companies had colluded not to compete against one another in their respective areas. The complaint did not directly allege facts showing an actual agreement but instead included the bare allegation of a conspiracy and parallel conduct by the defendants which, the plaintiffs alleged, gave rise to an inference of an agreement. The Supreme Court held that this complaint was in...

My FindLaw column for today (available here ) discusses a recent Ninth Circuit ruling (available here ) reversing a preliminary injunction against Google's image search engine on the ground that its thumbnail images infringed the copyright of the owners of the originals of those images. The 9th circuit found that the thumbnails were fair use, at least absent a specific showing that their economic impact on the owner's business---a porn website which also delivered low-res pics to cell phones---outweighed the transformative nature of the thumbnails when used as part of the image search on a conventional computer. The court also found no prima facie case of infringement from Google's "framing" of images from infringing websites, where those images resided on the infringers' servers rather than Google's. In other words, it applied what the district court called the "server test." If that went by too quickly, read the column, which explains these ...

Yesterday's New York Times contained an op/ed piece titled "Death By Veganism," by a woman named Nina Planck . Planck begins the column by referring to a case in which a baby died of starvation after his parents -- who were later convicted of murder and assorted other offenses -- claimed that they had simply fed the child a vegan diet of soy milk and apple juice. At the time of his death, Crown Shakur was six weeks old and weighed three and a half pounds (a dangerously low weight, even for a newborn baby). Planck uses this case as a springboard for arguing that a vegan diet is nutritionally inadequate for fetuses and children. The argument is deeply flawed and will needlessly frighten parents. The first thing to note is that the prosecutor who brought the case against the parents rejected the defendants' claim that what distinguished their child's diet from that of other (surviving) children was the exclusion of animal products. The prosecutor argued that t...

With the possibility of a Senate vote of no confidence in AG Gonzales looming (and richly deserved), Bush Administration apologists have invoked the obvious but misleading point that a Senate vote of no confidence has no legal effect. This is a variation of the argument that was used during the Clinton impeachment effort. At the time, Democrats who agreed that Clinton had behaved inexcusably but thought that his conduct nonetheless did not warrant impeachment and/or removal from office, wished to see him censured instead. Republicans, wanting to prevent Democrats from having the "out" of a censure vote, insisted that because the Constitution describes the impeachment/removal procedure but does not mention censure, the latter option is unavailable. And likewise today, some Republicans who want to maneuver Iraq war critics into appearing not to support the troops insist that the only mechanism Congress has for stopping the war is a complete denial of funding. The all-or-not...

Is there any better proof of the insanity of our campaign finance regime than the prospect of Michael Bloomberg spending a billion dollars of his own money---projected to be more than the combined sums spent by the Democratic and Republican candidates and parties, as well as third-party expenditures---to buy the Presidency? The "billionaire loophole" arises because Supreme Court doctrine since Buckley v. Valeo permits contribution limits but not spending limits. A wealthy person spending his or her own money to get elected is not contributing to any campaign, just spending, and thus avoids the limits. Bloomberg's likely impact on the race is uncertain. If Rudy Giuliani captures the Republican nomination, Bloomberg could help the Democratic nominee. Christian conservative voters would be unhappy with the entire field and some would therefore stay home, while some number of moderate Republicans made uncomfortable by Giuliani's authoritarian style might stray to Blo...

Both Air America Radio and the American Constitution Society should have been abject failures, and for the same reason. Each was an attempt to do for left/liberals what a similar entity---Rush Limbaugh and his clones in one instance; the Federalist Society in the other---had done for the right. Yet in both cases there was an important difference. Right-wing talk radio gave voice to a political constituency that was previously largely voiceless, just as the Federalist Society provided a haven for conservatives who felt outnumbered by liberal faculty and students at nearly all prestigious law schools, a place for them to meet, network, and plan their eventual ascension in a real world in which conservatives held considerable power. By contrast, before there was Air America Radio, there already were NPR for the latte liberal set, a network of African-American stations for the Democratic Party's most loyal constituency, and Spanish-language radio for the largest ethnic minority g...

In an interview on NPR earlier this week, Berkeley Breathed, author of the comic strip "Bloom County," talked about his new children's book, "Mars Needs Moms!" The main character of the story is a little boy named Milo who, according to Breathed, sees his mother from a very limited perspective (much as Breathed's young son sees his own mom) -- as a bossy broccoli bully. Milo does not understand why mothers are nonetheless "worshipped" all over the world. Martians looking at our planet, however, see how "cool" moms are and kidnap Milo's mom (the premise is evidently that the inhabitants of Mars reproduce asexually and therefore have no moms). When the boy visits Mars and watches his mom's activities there (which, I gathered from the interview, includes chaperoning little martians to soccer pratice, cooking, cleaning, and tending to scrapes and cuts), he gets a "new perspective" on his mom that he lacked before and now ...

In my post on Tuesday morning , I quoted from a recent interview in which Rudolph Giuliani made some cryptic and misleading comments about the estate tax, which he of course insisted on calling the "death tax" -- a phrase that was focus-group tested to be as unappealing as possible to average voters, even though over 98% of all people's deaths do not result in any estate tax liability. (In fact, even "estate tax" is an inaccurate description of the tax. For a person's estate to be liable for the tax, a person must die with an exceptionally large estate that the decedent did not reduce through gifts to charities, etc. But the title "tax on exceptionally large estates of uncharitable decedents" wouldn't fit on the forms, I guess.) Because it was not the focus of my Tuesday post, I merely noted parenthetically that "there is no 'death tax,' and the estate tax is not a double tax." The notion of double taxation has become such...

After my post yesterday afternoon, the NBA decided to suspend Phoenix Suns Amare Stoudemire and Boris Diaw one game each for leaving the bench during what, NBA executive Vice President Stu Jackson said, clearly was an "altercation." Watching the video again, I can't say I that Jackson was wrong under the rule as written. Even granting that some element of subjective judgment necessarily enters into determining what counts as an "altercation," clearly what was occurring when Stoudemire and Diaw left the bench was much more of an altercation than what was occurring when San Antonio Spurs Tim Duncan and Bruce Bowen left the bench earlier in the game. Continuing the parallels with the arguments for formalism in law, Jackson stated: "No one here at the league office wants to suspend players any game, much less a pivotal game in the second round of a playoff series. But the rule, however, is the rule, and we intend to apply it consistently." Then, echoin...

Monday night, in the closing moments of Game 4 of the NBA Western Conference semifinals, San Antonio Spurs reserve forward Robert Horry committed a hard foul on Phoenix Suns point guard (and two-time league MVP) Steve Nash. Various players confronted one another angrily, but no punches were thrown. Horry was ejected, Suns guard Raja Bell received a technical foul for his reaction to Horry's initial foul, and the Suns won the game. In the meantime, however, it was observed that two Suns players--first-team-NBA star Amare Stoudemire and reserve Boris Diaw--had temporarily wandered off the bench, in seeming violation of NBA Rule 12(VII)(c), which provides: "During an altercation, all players not participating in the game must remain in the immediate vicinity of their bench. Violators will be suspended, without pay, for a minimum of one game and fined up to $50,000." (Read all the rules here .) The NBA has not yet announced any formal action. As a basketball fan AND a la...

One of the juicy political stories last week was Rudolph Giuliani's decision to come out in favor of abortion rights, challenging the prevailing notion that one cannot win the Republican nomination without echoing the social agenda of the religious wing of the party. See, for example, this article . In the days leading up to Giuliani's decision, another article quoted a conservative writer as follows: "One of the big ironies for him is he doesn’t care about abortion." That is easy to believe, given how much flip-flopping and pandering Giuliani has done on abortion and other social issues (including his bizarre engagement with the Confederate flag as an issue ). What does he care about -- or, more accurately, what is he hoping Republican voters will care about enough to vote for him? In a recent interview in Business Week , Giuliani said that he could win over Chri stian conservatives on two big issues: " I think I'll do well with conservative voters beca...

Postal rate increases go into effect today, including a rise in the cost of mailing a first-class letter from 39 to 41 cents. But this time, there's a twist: the " Forever stamp ," which will be sold for 41 cents so long as that is the rate, and then increase in price when the price of mailing a letter increases, except that Forever Stamps purchased at the old rate will still be valid for mailing a letter after the next increase. A good deal, right? Maybe, maybe not. You might be tempted to buy Forever stamps as an investment vehicle, especially if you wait until the announcement of the NEXT rate increase. But as explained in this Washington Post story , that's not likely to generate an especially strong return. Of course the Post Office isn't offering the Forever stamp as an investment vehicle. Its value is convenience and possibly some small cost savings. If you buy Forever Stamps now and through the next postal rate increase, you won't have to buy and...

As I noted in my post Friday , the fact that the Yankees are not the state---and thus not bound by the Constitution---does not justify their taking action which, if undertaken by a state actor, would be a constitutional violation. Indeed, as I argued a few weeks ago in a FindLaw column about Don Imus , private acts can threaten the values underlying constitutional guarantees. And that's true even when the underlying action would not amount to a constitutional violation if there were state action. Take the Yankees example and let's assume arguendo that the Yankees were owned and operated by NYC. (Goodbye George Steinbrenner, hello Mike Bloomberg). It's pretty clear that the Yankees would still be entitled to demand respectful silence during the playing of the national anthem and God Bless America. Notwithstanding the reference to God in the latter, the singing of the song would not violate the Establishment Clause because it would amount to mere "ceremonial deism"...