Dorf on Law

Mike Bloomberg was on NPR this past week touting his plan to pay poor people (from private funds) to go to the library, get good grades, etc. (Listen here and also hear Steven Inskeep ask Bloomberg whether he's running for President about a half dozen times. Bloomberg says no each time.) Traditional liberals have been cool to Bloomberg's proposal, arguing that it insults poor people. (See Diane Ravitch's reaction here .) But Bloomberg has three reasonable responses: 1) This is a capitalist society in which people respond to incentives; 2) If it's not insulting to pay wealthy agribusinesses not to grow crops, it shouldn't be insulting to pay poor kids to go to the library; and 3) It's just a pilot program so let's see if it works. I'm all for experiments and thinking outside the box, but the problem here is that we have tons of evidence that paying people to do things usually undermines their intrinsic motivation to do those things. Translation: Giv...

CNN has posted the transcript of the police interview with Sen. Craig following his arrest ( link here ). Craig tries valiantly to portray it all as an innocent misunderstanding. He's "a wide guy" so when he sat on the toilet seat his foot bumped the foot of the undercover cop in the next stall. His hand may have come under the stall when he reached to pick up a piece of toilet paper that fell. See? Meanwhile, the cop isn't buying it because, well, he was there, and what he saw was not ambiguous. So much so that he accuses Craig of lying: "I'm just disappointed in you sir. . . . I mean, people vote for you." Where to begin? Well, for one thing, Larry Craig represents Idaho, not the 4th District of Massachusetts, and so news that Craig has gay sex would make people STOP voting for him, so of course he's going to lie to you, Offiicer Karsnia. Unless, that is, Craig thought that the story would never get out. And while Karsnia assured Craig tha...

On Tuesday, the BBC Asian Network's Sonia Deol conducted a remarkable interview with Leo Varadkar, an opposition member of the Irish parliament, on the recent decision by the Garda Síochána , the Irish national police, to ban a Sikh trainee from wearing his turban while on duty [audio available here until next week; fast forward approx 2 hrs for the interview]. Ireland, which for a long time had been a country of tremendous emigration, has experienced remarkable changes in its migration patterns in recent years, especially as economic growth has created a significant demand for migrant labor. In 1996, Ireland became a country of net immigration for the first time, the last European Union member state to do so. Perhaps unsurprisingly, the road has not been without its bumps -- as in other countries, including the United States, increased immigration has led to both anxiety and confusion among some native-born Irish citizens over the pace and extent of change. Nevertheless, faced ...

Idaho Senator Larry Craig's insistence that he is "not gay," despite having pleaded guilty to disorderly conduct for soliciting sex from an undercover cop in the Minnesota Airport was for me an occasion not only for sadness---saying what it does about the persistence of the closet---but also nostalgia. First, of course, one wonders whether Craig's choice of words reflects a Clintonian precision. Does it depend on what the meaning of "gay" is? If Craig likes to engage in anonymous gay sex but otherwise leads his life as a heterosexual, then perhaps he's right that he's "not gay." Perhaps he's bi. Or simply on the down-low. The incident also recalled for me an even odder occurrence. When I was an undergraduate at Harvard in the mid-80s, I would sometimes notice graffiti in the stalls of the men's room in the Science Center basement urging patrons to, uhm, engage in sexual acts. Then, one day a story appeared in one of the studen...

In my latest FindLaw column , I highlight some of the most egregious sins of Alberto Gonzales, including an extended discussion of his claim, in testimony before the Senate Judiciary Committee in January, that the Suspension Clause does not protect a right of habeas corpus; it only says that Congress can't suspend it. As I note in the column, ludicrous as this sounds, it's the position staked out by Justice Scalia (for himself, Rehnquist and Thomas) in INS v. St. Cyr . In the column, I explain why a Supreme Court dissent is not exactly good authority for an Attorney General professing to say what the law is (as opposed to what his administration thinks it ought to be). Here I want to see if any sense can be made of the Scalia view. I'll begin by putting aside Scalia's historical and doctrinal arguments (except to say that I think he overreads Ex Parte Bollman ). The textual argument (made by both Scalia and Gonzales) strikes me as especially weak. Although it is lo...

In my FindLaw column on Wednesday, I'll take a look at the sins of AG Gonzales, but here I want to focus briefly on President Bush's claim that Gonzales had his "good name . . . dragged through the mud for political reasons." I want to float an odd theory: BUSH ACTUALLY BELIEVES THIS. Let's put aside the fact that the claim makes no sense. Why did Democrats (never mind Republicans) decide to drag the Gonzales name through the mud? If politics were the reason, wouldn't they have made similar claims about all Bush appointees? Why haven't they dragged the good names of Condi Rice, Henry Paulson and Dirk Kempthorne through the mud? That sort of analysis is just far too reality-based. Here is how Bush intuits the matter: 1) Alberto is a loyal buddy; 2) People in Congress are saying nasty things about Alberto; 3) Therefore, the people saying the nasty things must have base motives, like politics. This theory explains how it was that after one of the most di...

That's what I would write if I wrote for The Onion. But I don't.

In the 1990s, a barrage of legal scholarship on “norms” was sparked by the work of Robert Ellickson (especially his book Order Without Law ). Much social behavior---including compliance with rules---Ellickson and others argued, occurs because of the development of social norms that have force beyond any formal enforcement mechanism. Numerous symposia were held and countless forests felled to produce the paper for the articles written. No doubt the norms scholars were (and are) onto something important: Fear of social opprobrium or desire for social approval are powerful motivators, and in an important sense one can view the norms craze as of a piece with the roughly contemporaneous emergence of behavioral law & economics. Both scholarly movements challenged the view of human beings as rational calculators motivated only by the promise of reward or punishment (although it is possible to conceive of norms as acting as a kind of social reward and punishment that can then be fi...

My colleague Tim Wu and University of Colorado Prof Paul Ohm have launched a beta version of Altlaw , a free searchable database of recent (last 5-15 years) decisions by the US Supreme Court and the federal courts of appeals. The site fills an important gap: No other free site permits you to do full-text searches of multiple circuit courts simultaneously. That's a huge improvement over other portals out there (including my masters at FindLaw.) As Tim acknowledges in this post , Altlaw still has limited coverage, but it's a start. When it's out of beta, Altlaw will be better still. I have two gripes I'll air, one directed at the site, the other at my government. First, as to the site, I wish that Tim and Paul had chosen a different name. As they are no doubt aware, on the net, the prefix "alt" often connotes something kinky, if not downright illegal. True, "alt" also connotes a commitment to open-source-anti-establishmentarianism, but the tar...

Earlier this summer, I wrote about a movement by several religious congregations around the country to offer sanctuary to illegal immigrants who face deportation. At the time, a question had arisen about the government’s authority to make arrests on religious property, and I argued that there was no constitutional or statutory obstacle to doing so. It was unclear, however, whether the government would actually send officers into churches, mosques, and temples for this purpose. We may now have the answer. An article in the Times this week reports that federal agents recently arrested Elvira Arellano, an illegal immigrant and outspoken advocate of immigration reform who spent the last year in a Chicago church that had offered her sanctuary. But Arellano was not arrested at the church. She was arrested a few blocks away from another church in Los Angeles where she had just given a speech about the effects of deportation on immigrant families. Sadly, she was with her 8-year old son...

[I am posting here an entry written by Tam Ho, a former student of mine who offers a refutation of the claims that John Edwards is a hypocrite whose stated concern for the poor is undermined by his rich lifestyle. -- Neil H. Buchanan] As noted on several occasions in recent months, here , here , and here , hypocrisy is often used to attack one’s credibility. In a recent article in The Atlantic, “The Poverty Candidates,” Bill Schneider asks whether John Edwards “looks like a hypocrite because he got a $400 haircut and built a 28,000-square-foot mansion.” The question I want to explore is whether this attack has a valid substantive argument behind it, or if it is simply an ad hominem attack: one that seeks to refute a position by assaulting the character of the speaker. Schneider reports that Edwards responds, “Not really . . . because he was not born to wealth and privilege: ‘I come from a fairly modest beginning, but I've lived the American Dream.’” As I indicate below, Edwards gi...

No, I'm not talking about anything terrorism-related, but the news that the law firm of Ford & Harrison (not to be confused with actor who portrayed Han Solo and Indiana Jones) will no longer bill clients for most of the time spent by first-year associates. According to this National Law Journal story , the F&H decision was driven by the firm's recognition that focusing on billables for first-year associates meant skimping on training. Instead of doing document review of the sort that could be done as well or better by paralegals (for a fraction of the cost to the client), new associates will spend the bulk of their time observing depositions, witness interviews, strategy sessions, etc. That sounds like good for new associates, so why do I say this is an ominous development? Because it underscores the fact that young lawyers leave law school unprepared for much of the practical work that firm lawyers do. If the F&H model catches on, terrific, but if it doesn'...

Back in May, I wrote about some of Rudolph Giuliani's views on taxes and spending, concluding that his statements on this area of public policy are a combination of revisionist history and simple-minded small government happy talk that distinguishes him from none of his competitors. Three months later, it is completely obvious that Giuliani really is, as many (including Mike on this blog ) have noted, simply running to be "President of 9/11." As I suggested in my earlier post, though, even this makes no sense. Giuliani's supposed demonstrated strength -- even when taken at face value -- is simply not a qualification to be president. He actually has not shown any qualifications to fight terrorism but only to deal with its aftermath, which makes him a candidate for FEMA chief, but not for chief executive. Earlier this week in the New York Times, a news article about Giuliani ran under the headline: "Giuliani, Substance Firm, Struggles to Secure Style." (B...

I'll be on vacation until Monday August 27, and taking a break from blogging. Some of my co-bloggers may post between now and then. Look for me to resume roughly daily postings on the 27th.

The winner of my request for the Llewellyn-like opinion about stopping people is smcelhaney, who pointed me to Judge Pratt's dissent in the 2nd Circuit case of United States v. Hooper . Here is what he had to say about the government's reliance on a "drug courier profile" as the basis for stopping people at the airport in Buffalo, New York: a canvass of numerous cases reveals the drug courier profile's "chameleon-like way of adapting to any particular set of observations." United States v. Sokolow, 831 F.2d 1413, 1418 (9th Cir.1987), rev'd, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989): Arrived late at night United States v. Nurse, 916 F.2d 20, 24 (D.C.Cir.1990). Arrived early in the morning United States v. Reid, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980); United States v. Millan, 912 F.2d 1014, 1017 (8th Cir.1990). One of first to deplane United States v. Millan, 912 F.2d at 1015; United States v. Moore, 675...

In my post yesterday I argued that if a precedent's age counts as a reason for adhering to it and its youth counts as a reason for retaining it, then the age (or youth) of the precedent isn't doing any real work. Crucial to the argument is the fact that, judged by various statements of the Supreme Court and individual Justices, the ranges of "old" and "new" precedents actually overlap. (Some of the comments provided additional examples. Thanks!) I certainly didn't mean to suggest that it's impossible for a proposition to be true at both ends of a spectrum but not in the middle. Here are some familiar examples: If you have a bacterial infection, you want to take a "therapeutic dose" of antibiotic. If you take too little, you won't kill all of the infecting bacteria. If you take too much, you could harm the helpful bacteria that populate your gut. Indeed, we can make the point with ordinary nutrients: Too little food and you star...

This past June, in Leegin Creative Leather Products, Inc. v. PSKS, Inc. , the Supreme Court overruled its 1911 decision in Dr. Miles Medical Co. v. John D. Park & Sons Co. , concluding in Leegin that henceforth vertical price restraints would be judged by a rule of reason rather than being deemed per se invalid. Writing in dissent for himself and Justices Stevens, Souter and Ginsburg, Justice Breyer invoked the length of time during which Dr. Miles had been on the books as one among many reasons why, in his view, the majority was wrong to discard it. I am not now interested in which side had the better of the argument as a whole. I am interested instead in the question of what weight, if any, a precedent's age ought to have in an overruling decision. The claim that an old precedent is a strong one in virtue of its age is plausible because the older the precedent is, the more embedded it is likely to be in the law more broadly. Individuals and institutions will have likely...

In 1997, to mark the fiftieth anniversary of the independence of India and Pakistan, the House of Representatives passed a bipartisan resolution “congratulat[ing] the people of India and Pakistan on the occasion” and “look[ing] forward to broadening and deepening United States cooperation with Pakistan and India in the years ahead for the benefit of the people of all three countries.” Undoubtedly not the most consequential legislative act taken in the 105th Congress, although let’s not forget that the 105th was the “Monica Congress,” whose “dismal legislative record,” according to congressional scholar Thomas Mann , “will barely register when its history is written.” So this resolution might actually be up there as one of its highlights. Regardless, symbolism and good will gestures have their place, and the 1997 resolution was a laudable one. So I was curious to see what the current Congress had to offer ten years later, on the occasion of the sixtieth anniversary of Indian and Pakis...

I found myself thoroughly convinced by Mike's post on how overrated Rove has been as a "strategist." Rove himself set the goal not just at winning a couple of elections, but rather of creating a permanent Republican majority. In that, he seems to have been a colossal failure. I wonder if our presidential elections—given the electoral college, the structure of our media, and Buckley v. Valeo—will ever reward a uniter again, though? I think back fondly to the very early days of the Dean campaign and his insistence that "Republicans are people, too." (Dean was actually a pretty conservative Governor of a pretty liberal state. So, yes, he was probably liberal in the national index, but not by as much as things seemed when he finished.) A lot of his planks were quite moderate, in fact. Still, he got trounced in the Iowa caucus (by Democrats) about as effectively as any modern candidate has who spent the kind of money he did. And here's why: shortly after...

Listening to Karl Rove, a.k.a. " Bush's Brain ," praise his nominal master upon announcing his imminent departure from the administration inspired at least one contrarian thought in me. Rove has been described by his political friends and enemies alike as politically gifted. The word "genius" is used repeatedly. I beg to differ. There is no doubt that Rove works very hard, pays attention to detail, and is utterly ruthless in retail politics---well beyond the point of decency by some accounts. But on the most fundamental political question of the Bush presidency, Rove has been dead wrong. (I don't have in mind the Iraq war, for although I have little doubt that Rove was instrumental in the White House policy of conflating al Qaeda with Saddam Hussein, the better to scare the electorate into voting Republican, the driving force behind the decision to go to war was pretty clearly the Cheney/Rumsfeld neocon operation.) Rove's fundamental error was in s...

In my FindLaw column today (re Bell Atlantic v. Twombly), I incorrectly state that none of the current Justices served as a trial court judge. A reader noted that actually Justice Souter did so between serving as NH Attorney General and a Justice of the NH Supreme Court. I didn't remember this fact because I had assumed that a state AG would be appointed directly to the state high court. Apologies to Justice Souter and to readers. I'm sending a corrected version of the column to my editors at FindLaw but because they're based in California, it probably won't be posted until some time in the afternoon on the east coast.

In response to a reporter's question at a press briefing late last week, President Bush took umbrage at the suggestions that his administration's deeds don't match his words with respect to accountability. The reporter specifically identified three examples of non-accountability: (1) the failure of the Maliki government in Iraq to meet benchmarks of political progress; (2) Scooter Libby's escape from any substantial penalty for committing perjury; and (3) the continuation of Alberto Gonzales in office. Bush responded by (1) ignoring the question about Iraq; (2) asserting that Libby has been held accountable because he was convicted; (3) and claiming that Gonzales shouldn't be held accountable because he didn't do anything wrong. Those answers are sufficiently ludicrous that I'll let them speak for themselves. Here I'll just give a film recommendation for those interested in being reminded of this Administration's commitment to accountability. Charl...

The American Red Cross (ARC) expressed outrage earlier this week that Johnson & Johnson (J&J) was suing ARC for trademark infringement. For its part, J&J defends its resort to litigation by explaining that it holds the trademark to the red cross, which ARC can only use for its humanitarian projects. The suit objects to ARC's licensing of the red cross for commercial products. ARC responds that it uses all of the money it makes from first aid kits and other products bearing its symbol for its charitable work. What ARC does not say---and does not appear to deny either---is that the commercial entities to which ARC has licensed the red cross keep their portion of the proceeds. Thus, on the merits, this appears to be a pretty clear-cut victory for J&J, subject to two important caveats. First, the adverse publicity from this suit---a bit like suing Santa Claus---could do more harm to J&J than the use of its mark would. Second, there's a chance that J&...

No, I'm not talking about the future of American politics or the U.S. Supreme Court. The above is the title of a wonderful new book by University of Southern California Law and Psychiatry Professor Elyn Saks, a former teacher of mine and a person I feel privileged to count among my friends. Elyn Saks has written extensively in the area of mental health law and has, in addition to her legal credentials, a degree in psychoanalysis. Her new book, however, is not a work of scholarship but a memoir -- a riveting and illuminating account of her experiences as a person who suffers from schizophrenia. The book begins at Yale Law School, where Elyn was a student in the mid-1980's and where she experienced a psychotic break while meeting with her study group in the library. She then takes us back in time, focusing on a period during which she studied at Oxford and was hospitalized for the first time. We watch her coming to terms with her illness and ultimately figuring out how to...

Strategic voting poses a challenge to the designers of any electoral system that aims to translate voter preferences into election winners. But it's also a problem for individual voters trying not to outfox themselves, as Democrats arguably did in 2004. Fearing vulnerability on national security, they nominated John Kerry, who was then attacked as a traitor AND who ran a weak campaign on other issues to boot. It's impossible to know what would have happened had someone else been the standard bearer in 2004, but it's hard to imagine that Howard Dean (the early front-runner) or John Edwards (a strong finisher) would have done much worse---and by nominating one of them, Dems would at least have voted their true preferences. Strategery also creates difficulties for voters trying to decide whom to root for among the other party's candidates. The current Presidential primary process is a nice example. For socially liberal Democrats, Rudy Giuliani is probably the least offens...

In the last two days, I've created an admittedly arbitrary list of rhetorical claims that are often used in U.S. political discussions about taxes. Entirely unscientific in both origin and design, the list purports to rank the degrees of dishonesty that animate some of the more outrageous assertions by those who can broadly be described as "anti-tax," which in the current climate breaks down almost entirely on partisan lines. (Republicans eagerly assert their opposition to taxes as a categorical matter; Democrats too often agree that taxes are generally bad but defend taxes on the basis of a combination of fiscal discipline and targeted policy objectives.) The two lucky winners so far: 3rd Place went to the claim that allowing the Bush tax cuts to expire would constitute the Biggest Tax Increase Ever , and 2nd Place went to the proponents of a national sales tax who insist on presenting the tax rate under their plan (which is artificially low for several reasons, not th...