Dorf on Law

Blogger Sherry Colb will be reading from, discussing, answering questions about, and signing copies of her book, When Sex Counts: Making Babies and Making Law , tonight, Tuesday, July 31st, at 7 P.M. BARNES AND NOBLE BOOKSTORE, at 2289 Broadway (at W. 82nd St.), Manhattan.

I found Sherry's post earlier today on the "cleavage" controversy interesting and thought-provoking, and was moved to write at length in response. Since that response is too long for either this blog or the comments section, I've posted it at my other blog, Prawfsblawg, here . In short, I agree in part and disagree in part with the drift of Sherry's post, and also like her, I think this debate is more important than the underlying subject. Let me sum up my views as follows: 1) I am in full agreement with Sherry's "consciousness-raising." I think she very usefully unearths and examines some important hidden assumptions in the story; I agree that cultural writers, like Givhan, who tread into the field ought to tread carefully; and I agree that readers, too, ought to read such stories carefully and self-consciously. 2) That does not mean stories about the cultural implications, semiotics, and so on, of politics and political candidates are unimagina...

The initial reports that CJ Roberts was rushed to a hospital in Maine for a "fall" turn out, unsurprisingly, to be a half truth. He was rushed to a hospital because he had a seizure, causing him to fall and sustain a few minor injuries. This is his second such seizure. Experts interviewed for the Times' story narrowed the possibilities to two: late onset epilepsy (about 1% of the US population has the disorder) or a brain tumor. As one neurologist said, "[m]ost neurologists would start a patient like [Roberts] on one of a number of antiseizure drugs," because with such drugs the "seizures can be controlled." He did also point out, though, that "a very small number cannot be. People who have them are advised not to drive, to avoid heights and not to swim alone."

In its Style Section Section, the Washington Post recently ran an article by Robin Givhan observing that Hillary Clinton had worn a cleavage-revealing top to the Senate chamber, where she spoke on the cost of higher education. Givhan stated that "[s]howing cleavage is a request to be engaged in a particular way," adding that "[t]o display cleavage in a setting that does not involve cocktails and hors d'oeuvres is a provocation." Numerous commentators have criticized the Post article as sexist and demeaning. Givhan defenders have countered that self-presentation is a crucial part of a candidate's message and, accordingly, fair game for reportage. Though seemingly irrelevant, the debate is, I think, an important one. I understand Givhan's reportage as reflecting the valid observation that one's clothes say something about the message that one is attempting to convey. If, for example, Senator Clinton were to wear pajamas to a televised debate, one...

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Last month, I explained why the argument for treating contingent fee arrangements between state or local governments and private lawyers as violations of state separation of powers principles is unpersuasive bordering on frivolous---notwithstanding the fact that the Louisiana Supreme Court actually bought the argument. Now tort reform advocate Walter Olson accuses me of being "very dismissive of" these arguments, pointing out that a California judge recently threw out a contingent fee arrangement as inconsistent with the ethical obligations of a government lawyer. Mr. Olson points to his own May Wall Street Journal Op-Ed praising that ruling. Note, however, that the California ruling does not rest on the separation of powers arguments that I disparaged. Rather, it rests on California principles about proper standards of conduct for government lawyers. It cites a 1985 California Supreme Court decision that invalidated contingent fees in government civil enforcement acti...

My FindLaw column for today notes the weird parallels between the respective abuses of law enforcement power and executive privilege controversies at the federal level and in New York State. (If you are not familiar with the NY issue, go read the column. Even if you are familiar with the NY issue, please read the column.) The column's main point is to note the advantages of a separately elected---and thus independently accountable---Attorney General, as in New York. I explain that this "fractured" executive solves a problem for which there is no good solution at the federal level: How to address the inherent conflict of interest that arises when high-ranking executive officials are suspected of wrongdoing, without licensing an unaccountable special prosecutor? How, in other words, to prevent the Robert Bork problem (in his Saturday Night Massacre infamy) without creating the Ken Starr problem? Yes, I've deliberately chosen two conservative heroes as examples of ...

In recent years, law schools have been doing more to support their alumni seeking legal academic jobs. For the coming year, I'm co-chairing---with my colleague Professor Carol Sanger, the founder of---Columbia's Program on Careers in Law Teaching . We'll be upgrading the site for a while, but I've spent the last couple of weeks writing new material for it. For now, I thought I'd post my tips on writing law review articles (also available here ). I'll periodically cross-post other morsels from the site. To get and keep a job as a (non-clinical and in some schools also as a clinical) legal academic, you need to produce legal scholarship. By the time you are ready to seek an academic job, you should be prepared to describe your methodology, your field (or fields), and your scholarly agenda. You may know your methodology, field and scholarly agenda before you start writing your first article, but more likely it will emerge organically from what you write. Metho...

Alas, there is no clear winner of my contest to explain which athletes get the benefit of the doubt. The comments made considerable good sense. Employers care about: the marquee value of the athlete; the seriousness of the offense; how clearly guilty the athlete is; to what extent the particular athlete or the sport in general is trying to cultivate a positive image; and a host of other factors. In short, it depends.

Sports is supposed to be a distraction from the world of law and politics, and at least for a few hours it performed that function for Iraqis encouraged by the success of their national soccer team in the Asian Cup (before car bombs exploded in Baghdad, bringing them back to their terrible reality). But 'round these parts I'm hardly the first to notice how much of the sports page is taken up with law these days. Let's start with Michael Vick. As a vegan and a dog lover, I'm certainly horrified by the acts that Vick stands accused of committing. And despite the presumption of innocence that I would be bound to apply if I were a juror in Vick's case, I strongly suspect that Vick knew what was occurring on his property. As Sherry Colb noted in this FindLaw column five years ago---in another sports-related case---the presumption of innocence does not apply to non-jurors. Still, where an employee stands accused of committing acts that, while criminal, have no direct...

No, that's not a question about why President Bush's second nominee to fill the seat vacated by Justice O'Connor failed to gain confirmation. (Footnote: That's right, second. Roberts was the first. He was pulled from that nomination when Chief Justice Rehnquist died. So Alito was technically a third choice, just like Blackmun and Kennedy. But I digress.) This post is about the House memo setting out grounds for holding Miers in contempt. It states five objections to the assertion of executive privilege. Two of them are highly technical: (1) the President himself must personally assert executive privilege, but he has not; and (2) Harriet Miers must, but did not, submit a "privilege log." The third objection rests on what strikes me as a faulty understanding of executive privilege: (3) there has been no showing that President Bush himself received advice or was even involved in the underlying decisions regarding the U.S. Attorneys. I consider ...

During yesterday's Senate Judiciary Committee grilling of AG Gonzales, Senator Specter suggested that, in light of the Justice Dept's announced intention not to pursue a contempt prosecution against Harriet Miers or other current or former White House staff for their refusal to testify before Congress regarding the U.S. Attorney firings, a special prosecutor might be appointed. Specter implied that the appointment of a special prosecutor might circumvent the executive privilege impasse. In a technical sense, Specter is probably right. Under United States v. Nixon , the existence of a criminal prosecution stands as a substantial obstacle to a successful presidential assertion of executive privilege. Conversely, Cheney v. United States District Court (the energy task force case) arguably says that absent a criminal prosecution, the courts will not override a claim of executive privilege. So a special prosecutor---and thus a criminal prosecution---could make a difference in ...

My article, Does Federal Executive Branch Experience Explain Why Some Republican Supreme Court Justices "Evolve" and Others Don't? , is now available at the Harvard Law & Policy Review website . (The HLPR should not be confused with the Harvard Journal of Law & Public Policy . The HLPR is the house organ of the American Constitution Society , while the HJLPP performs the same function for the Federalist Society . The articles in the two journals respectively slant left and right, but they both are committed to professional norms of scholarship.) Here is the opening of my article: Why do some Republican Supreme Court Justices “evolve” over time, becoming more liberal than they were—or at least more liberal than they were thought likely to be—when they were appointed, while others prove to be every bit as conservative as expected? For nearly four decades, one single factor has proven an especially reliable predictor of whether a Republican nominee will be a s...

With the Supreme Court’s 2006-07 term concluded, the next big news might well be a vacancy on the Court. Whenever that situation arises, the confirmation process would be vastly improved if senators adopted an approach to evaluating future nominees that roughly corresponded to the basic process of a civil case: pleadings, discovery, trial. More accurately, each individual senator could and should assess his or her support of a nominee on a basis analogous to motions to dismiss for failure to state a claim (the familiar 12(b)(6) motion), motion for summary judgment, and only in very rare cases a verdict after the equivalent of a trial. Before explaining the analogy, it is useful first to recall the farce that recent confirmation battles have become. Confirmation hearings have devolved into attempts to find gotcha moments, with the inevitable result that the nominees are reduced to mouthing meaningless blather like pledging to be “an umpire who calls balls and strikes.” A major f...

Yesterday's 2-hour transfer of Presidential power from George Bush to Dick Cheney while the former underwent a colonoscopy is a useful reminder that the office of Vice President was substantially altered by the adoption of the 25th Amendment in 1967. Under that Amendment, a President can temporarily lodge his authority in the VP whenever "he is unable to discharge the powers and duties of his office." (Insert Bush joke here.) Under the pre-25th Amendment Constitution, it was plausible to argue that the VP was part of the legislative branch, since his only function was/is to break ties in the Senate. Sure, he would become President on the President's death, but the line of succession also goes to others (such as the Speaker of the House, next in line) who are clearly not members of the Executive Branch. But there is something qualitatively different between holding a legislative job that might result in a promotion to the Presidency and holding a job that includes,...

Here's an idea I've been trying to sell to the various reporters that have called me about executive privilege in the last month or so: It's advantageous to each branch to try to position itself as a defendant if the case gets to court, because that way, a judicial decision not to intervene is a de facto victory. For example, suppose that (A) the House were to go to court to try to get an order compelling Harriet Miers to testify, and the President (on behalf of Miers) cited executive privilege. A decision that the case is non-justiciable would be a victory for the White House. On the other hand, suppose that (B) the House Sergeant at Arms seeks to arrest Miers for contempt of Congress, and Miers goes to court for a protective order, citing executive privilege (backed up by the White House). Now a judicial decision not to intervene is a victory for Congress. To be sure, there's nothing technically stopping the House from attempting scenario (B) after failing at sce...

Earlier this week, I listened to an NPR interview of the newly elected President of the American Veterinary Medical Association, Gregory Hammer. Dr. Hammer discussed, among other things, the diminishing pool of applicants to veterinary school who want to become large animal veterinarians. More applicants than in the past are interested in treating companion animals rather than “food supply” animals, and this change has contributed to a shortage of medical practitioners for livestock. Dr. Hammer had some interesting theories about why things have changed, including the fact that fewer people live near farms or have any familiarity with the sorts of animals found on farms. I have a different theory that probably does not account for much of the variance but provides a more hopeful philosophical account, from my perspective. I believe that there is something inherently paradoxical about a “food supply” veterinarian. The job of a doctor is to help heal her patients when they are ill an...

It’s been a good month for Scooter Libby. First, President Bush commuted his 30-month prison sentence. And now a federal judge has dismissed Valerie Plame’s suit against Libby and other administration officials, including Dick Cheney, Karl Rove, and former Deputy Secretary of State Richard Armitage. In a decision handed down today, Judge John Bates did not address the merits of Plame’s suit, which alleges that Libby & Co. violated her constitutional and state law rights when they outed her as a CIA operative in 2003. Instead, he dismissed the suit on jurisdictional grounds. First, he ruled that the Constitution does not authorize Plame or her husband, Joseph Wilson, to collect money for violations of their First and Fifth Amendment rights. Second, he dismissed Plame’s state law privacy claim because a federal law – the Westfall Act – requires plaintiffs who are harmed by federal employees acting in their official capacity to sue the United States, not the employees. Bates’ ru...

During the discussion of the commutation of Scooter Libby's sentence, one of the Republican talking points was that the pardon power (and implicitly, the power to commute sentences) is constitutionally committed to the President. That's right as far as it goes. Neither Congress nor the courts can reverse the President's decision to pardon someone (or, presumably to commute his sentence). See United States v. Klein . However, it doesn't follow that the President can pardon anyone he wants for any reason. Suppose, for example, that the President decided to pardon all self-declared born-again Christians (but no one else) doing federal time for white-collar crimes. Surely that would violate the Establishment Clause. Likewise, a decision to pardon women (but only women) doing time for bank robbery would clearly violate the equal protection component of the Fifth Amendment's Due Process Clause. There might be no remedy for these constitutional violations, short of i...

My FindLaw column today highlights the pending stylistic changes in the Federal Rules of Civil Procedure. For those of you without sufficient motivation to read the column but who nonetheless read my blog entries, here's the executive summary: The new rules are easier to understand than the old ones, which will help novices, but may actually create more problems for experienced lawyers: The new rules are supposed to make only "stylistic" changes, so if there's a question about the meaning of a rule, lawyers will still have to consult the old rules, only now there will be the additional possibility of a conflict between the old and new rules. I am thus skeptical about the re-styling project. My preference would have been for the new rules to replace the old ones, tout court, although admittedly that would have created more issues under the Supersession Clause of the Rules Enabling Act. (See the column for a further explanation if that sounds like gibberish to you, a...

Last Friday's Second Circuit decision in Husain v. Springer , reversing in part the award of summary judgment for the defendants (the President and other officials of the College of Staten Island) against a lawsuit stemming from alleged improprieties with respect to a student government election ten years ago, prompted a fairly remarkable dissent (on this point) by Judge Jacobs. He wrote: I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it. I suppose this is unusual, so I explain why. . . . [T]his is not a case that should occupy the mind of a person who has anything consequential to do. In a nutshell, the editors of the College Voice student newspaper used it as a campaign flyer to promote the self-styled radicals of the “Student Union” party in a long-ago student election, and the college president, finding that the partisan use of student-activity funds made ...

Among my claims to truly minor (aka "nonexistent") celebrity status is ( as I snidely observed back in January ) that, as a law student, I was one of a team of five assistants to Larry Tribe on a law review article, with Barack Obama one of the other four. The article is The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics , 103 Harv. L. Rev. 1 (1989), and my recollection is that I didn't do all that much work on the piece, in part because I thought the exercise somewhat ill-conceived. The point of an analogy is to take something fairly complicated and compare it to something simpler that the reader/listener already understands. This is why the famous Judith Jarvis-Thomson hypothetical case---in which you inexplicably wake up one day with your circulatory system intertwined with that of an unconscious violinist who will die if disconnected (reproduced seemingly without permission here )---is not all that helpful in breaking deadlocks about t...

Now that Ralph Nader is once again contemplating running for President, surely the statute of limitations has run on respect for the man's past work as a consumer safety crusader. He has clearly devolved into egomania. Indeed, it seems unlikely that Nader would have any effect on the 2008 election, unless we have a replay of 2000, with the vote in a decisive state so close that a tiny percentage of "spoiler" votes is able to turn the tide. But Democrats---and depending on the Republican nominee, perhaps Republicans---have much more to fear from a Bloomberg candidacy, both because of his ability to spend huge sums of his own money and because he won't be dismissed as a fringe candidate. The obvious solution is " instant runoff voting ," (IRV), in which voters rank their choices for candidates. That way, if in some state, say, the Republican candidate gets 45% of the vote, the Democrat gets 44% of the vote, and the remaining candidates get 11% of the vote,...

A new study finds that public defenders do a better job for their clients---as measured by average sentence length and other outcomes---than do court-assigned private lawyers. The study attributes much of the difference to the greater experience and better credentials of public defenders. It also notes that public defenders give a better bang for the buck. They obtain better outcomes for their clients by spending less time, and thus costing less per client. Win-win, right? So should we expect those jurisdictions that use assigned counsel rather than public defenders to switch to the latter? Don't count on it. Better outcomes for clients means criminals spending less time behind bars. Any politician who works to switch from court-assigned private counsel to public defenders will find a challenger eager to label him or her soft on crime. Reformers' best hope would be to hook their proposed changes on the expected cost savings, but even then there will likely be holdouts.

Yesterday Rajan Zed became the first Hindu clergyman to offer the official morning prayer in the U.S. Senate, but not before he was interrupted by three Christian protesters from the gallery, who objected to what they called an "abomination." (Washington Post story, via AP, here . NY Times story, via Reuters, here .) According to the AP story: "For several days, the Mississippi-based American Family Association has urged its members to object to the prayer because Zed would be "seeking the invocation of a non-monotheistic god." (The AFA has posted a complete audio of the prayer and the interruptions on its website, available here .) As one would expect, Americans United for Separation of Church and State (and no doubt other groups), disapproved of the disruption. The group's executive director, Barry Lynn, condemned the "intolerance of many religious right activists. They say they want more religion in the public square, but it's clear they mean...

The latest revelation about the Bush Administration treating the official levers of power as mere extensions of the Republican Party concerns the Surgeon General. (My personal favorite in pettiness is the admonition that he not mention the Special Olympics because of its association with the Kennedy family.) This continues the disturbing pattern we see throughout this administration: Many important positions are doled out to loyal hacks (something that happens in all administrations but that GW Bush has raised to an art form) and then the hacks pressure the professionals with integrity to toe the party line. From FEMA to Justice to the Surgeon General and beyond, the signature of the current administration is to put the partisan (and not just policy) agenda first. Which brings me to my question: Is it possible for the prior informal norms and boundaries to be restored in the next Democratic administration? (I'll put aside the equally interesting question of what would happen if...

Last month's decision in the voluntary public school integration cases purported to interpret rather than overturn Grutter v. Bollinger , which upheld the University of Michigan Law School's affirmative action program in admissions. Moreover, Justice Kennedy's separate opinions in both Grutter itself and in the schools cases make clear that there are at least 5 votes on the Supreme Court to permit narrowly tailored programs of race-based affirmative action that aim to achieve and maintain student body diversity in law schools (and higher education more generally). Now the Bush Administration's Department of Education is trying to undermine that result indirectly. In order to be eligible for federally backed student loans, a law student must attend an accredited law school. The Department of Education has long designated the American Bar Association as the accrediting body for law schools. Recently, however, the Bush Education Dept renewed the ABA's status as th...

In a story in yesterday's NY Times, Adam Liptak reports on what he seems to think is a new phenomenon and a new objection to it. (You can read the story here if you have Times Select.) In states with limited enforcement budgets, Attorneys General have been awarding contingent fee contracts to private lawyers who sue violators of various legal obligations. In his opening example, Liptak notes that the Oklahoma AG struck such a deal with private law firms to sue poultry farms for polluting waterways. Overall, the story reads more like a talking points memo by the U.S. Chamber of Commerce than like Liptak's usually reliable news analysis. Critics of the contingent fee practice say that it violates principles of separation of powers, either because it vests executive power in private parties or because it appropriates funds (the private lawyers' cut of a successful verdict) without the express consent of the legislature. These are very weak objections. The federal const...