Dorf on Law

As I noted in a post a couple of days ago , I was on jury duty Thursday and Friday. As civic duty goes, I certainly can't complain about the experience (although I admit that my earlier post could be read as doing just that). With American men and women in the armed services suffering grievous injuries and dying on a daily basis, the inconvenience of spending a couple of days or even a couple of weeks away from the ordinary routine of work is a small price to pay for a functioning legal system. (People living paycheck to paycheck who must take time off from work suffer a substantially greater hardship.) My point there, which I'll belabor here, is that one aspect of jury service---peremptory challenges---makes it substantially more burdensome than it needs to be, without generating any real benefit. I make that point fully aware that, in the scheme of things, the burden is relatively light (especially for people like me, who get paid in full during jury service). This was m...

I find Sherry's posts advancing her views on the rights of animals provocative and valuable. Her latest post is no exception. Like some of the commenters to her post, I do wonder about her statement that it is self-evidently true that, in the words of Justice Rivlin, "wild creatures, like pets, have emotions. They were endowed with a soul that experiences the emotions of joy and sorrow, happiness and grief, affection and fear." The sticking point for me is not the question of whether animals have emotions, on which I take no strong view, and which may have been the aspect of the quote to which Sherry responded most fervently. Rather, it's the statement that animals have souls. I don't see how this is self-evident. While I believe human beings may have souls, it is not self-evident to me that they do, and it is still less self-evident to me that the same thing can be said about animals. I suppose one could reason, in some natural law-like way, to this posit...

21 years ago, in Batson v. Kentucky , the Supreme Court held that a prosecutor's use of peremptory challenges on the basis of prospective jurors' race violates equal protection. Justice Thurgood Marshall joined Justice Lewis Powell's majority opinion, but also wrote a concurrence arguing that the Court should go further and completely ban peremptory challenges. Permitting any such challenges, Marshall said, would make it extraordinarily difficult to prove race discrimination in any given case. In the years since Batson , the Supreme Court has expanded both the categories of forbidden discrimination (to include sex and national origin as well as race) and the circumstances in which it is forbidden (including peremptories by criminal defense attorneys and by attorneys in civil cases). However, the Court has not taken up Justice Marshall's suggestion of eliminating peremptories altogether. That is most unfortunate. Given the ease with which a prima facie Batson violat...

On Tuesday evening, Mike and I attended a panel at Columbia Law School entitled “Cruel Farming Practices and the Law: The Israeli Ban on Foie Gras.” The panel, introduced and moderated by David Wolfson, a Lecturer-in-Law at Columbia, took up the subject of a 2003 Israeli High Court of Justice decision holding that the force-feeding of geese or ducks involved in producing foie gras violates the Animal Welfare Law. Panelists included Retired Justice Tova Strasberg-Cohen and Justice Eliezer Rivlin of the Israeli Supreme Court as well as two attorneys, Jonathan Lovvorn and Mariann Sullivan, who have litigated challenges to cruel farming practices in the United States . As the panel proceeded, I was struck by the salience of two positions that the Justices embraced. The first position was that nonhuman animals have personal rights against torture and harm that are entitled to weight, even when honoring those rights might have a negative impact on farmers and consumers. In...

Earlier this year, I posted some thoughts on the question of using downloads from the SSRN repository to evaluate the "scholarly impact" (or some other notion of importance) of faculty and law schools. My biggest concern remains that the use of these download data in rankings gives people an incentive to do the opposite of what SSRN was designed to do in the first place: encourage people to look at each others' work and to engage with it. Specifically, since we know that a decision to download a paper will pump up the author's rankings, that knowledge can cause us to pass over a paper either for straightforward strategic reasons ("I don't want to pump up his numbers!") or for more benign reasons ("I'm not sure what this paper says; but the very act of finding out will pump up the numbers for a paper that I might end up wishing I had not downloaded.") I'll add here that there is an additional difference between download counts and ci...

Columbia President Bollinger scolded Iranian President Ahmadinejad's denial of (or on Ahmadinejad's account, at least to Western audiences, questioning of the evidence for) the Holocaust on the ground that this denial (or questioning) is factually preposterous: The Holocaust, Bollinger noted, is extraordinarily well-documented historical fact. Fair enough, but the assertion of factually preposterous views (or even the questioning of extraordinarily well-documented facts) is not ordinarily denoted a moral failing. In the United States, millions of citizens disbelieve the extraordinarily well-documented scientific fact that human beings evolved from other species. Three of the out-and-out evolution deniers are candidates for the 2008 Republican nomination for President and President Bush himself has said that "the jury is out" on evolution. These are preposterous views, to be sure, but not the sort of thing that would get you imprisoned for espousing in Germany or Austr...

I'm on the BBC World Service at 1 pm Eastern Time talking about regulation of Holocaust Denial in Europe (and its non-regulation in the U.S.). Update: Well that was a bit of a bust. The BBC technicians couldn't patch in for much of the hour, so I ended up joining only the tail end of the conversation. We didn't get to the question above but instead talked about whether it was appropriate for President Bollinger to introduce President Ahmadinejad by calling attention to his flaws. I said that Bollinger was in a difficult position because: 1) He himself had not extended the invitation and (I'm guessing) probably would not have done so were it just up to him; 2) But he appropriately did not want to interfere with the autonomy of Dean Coatsworth; 3) And given the high profile nature of the event it was inevitably going to be seen as a Columbia event (rather than merely a SIPA event); 4) So he was obligated to say something; 5) But a merely polite "Heeeeeere's Ma...

You know the old saying: When life gives you lemons, make lemonade. Today's introductory speech by President Lee Bollinger was an effort to make Ahmadinejade of the difficult hand that School of International and Public Affairs Acting Dean John Coatsworth dealt him by inviting Iranian President Ahmadinejad to speak at an official university forum. You can read the full text here , but having watched it live (via closed circuit tv on campus), I must say it was perhaps the most forceful performance I have ever seen from Bollinger. He called Ahmadinejad "evil," "petty," and "cruel," adding that his Holocaust denial made him "either brazenly provocative or astonishingly uneducated." The written transcript does not quite do justice to Bollinger's contempt for Ahmadinejad. As for Ahmadinejad himself, I only watched about 20 minutes before I had to go teach my civil procedure class, but during most of the time he impressed me as oddly discon...

My FindLaw column today is about the "butterfly effect" of Supreme Court decisions. You know, a butterfly beats its wings, affecting the wind ever so slightly, and because of the chaotic nature of weather, this changes the course of history. In the course of introducing the phenomenon I refer to a time travel story called "A Gun For Dinosaur." A couple of astute readers (proving themselves even nerdier than I!) noted that a better reference would have been the Ray Bradbury story "A Sound of Thunder." I agree and in fact I read "A Sound of Thunder" as a boy. I referred to "A Gun for Dinosaur," which is also a time travel story and works for the point I was making in the essay though admittedly not as well, because I took part in a symposium a few years ago that used "A Gun for Dinosaur" as the jumping-off point. Thus it was the story title that came to mind. Apologies to Bradbury and his fans.

My last post on the Ahmadinejad visit to Columbia generated some very heated debate, which I won't join. Instead, I'll take another crack at some of the free speech/academic freedom issues. A number of the comments on my last post, and a great many more comments in other fora, refer to the invitation extended to Ahmadinejad by Columbia . This is not exactly false but not exactly true, either. Ahmadinejad sought the invitation to speak at Columbia through Professor Richard Bulliet of Columbia's Middle East Institute. The invitation was ultimately extended by John Coatsworth, the Acting Dean of the School of International and Public Affairs, who says: " Opportunities to hear, challenge, and learn from controversial speakers of different views are central to the education and training of students for citizenship in a shrinking and dangerous world." It now appears that President Lee Bollinger will introduce Ahmadinejad, and challenge him on his Holocaust denial,...

One of my readers recently expressed dissatisfaction that I and my colleagues appear to be taking "a back seat on" the issue of Ahmadinejad speaking at Columbia, adding that "the voice of members of the faculty of CLS should be heard on this." To which I respond: 1) The issues on which members of Columbia LAW School (not the sponsor of this event) have expertise are the ones on which we have been speaking up: free speech, academic freedom and the like. In case anyone was left wondering about this, let me say unequivocally that I strongly disagree with Ahmadinejad's offensive views (e.g., Holocaust denial) and conduct (e.g., support for terrorist groups, pursuit of nuclear weapons). 2) I'm not sure that it's so important to tell Americans that Columbia faculty do not share the views of Ahmadinejad---except to mitigate the PR damage done to the university by the contrary impression they might receive from those who like to bash Columbia. But I'm happ...

Not to beat a dead horse (or insult anyone), but I heard Erwin Chemerinsky speak about academic freedom at a conference today, and I thought his remarks might be of interest to those who have followed his recent adventures. I’m not sure how much of this has been reported, so I’m going to err on the side of repeating what many of you may already know. Chemerinsky began by sketching the timeline of events that led to his firing and rehiring. He said UC Irvine Chancellor Michael Drake offered him the position of dean on August 16 and that they spent the next few weeks negotiating terms. Then on Thursday September 6, Drake called to say that there was conservative opposition to the appointment and that they needed to talk strategy soon. Nothing happened on Friday, but on Monday morning they briefly spoke again and arranged a call for Tuesday. Monday night, Drake phoned to say he was in Washington D.C. and was flying to Durham the next morning. Chemerinsky told his wife he thought Dra...

In an interview on Fresh Air with Terry Gross (available here ), Jeffrey Toobin, author of the new book, The Nine: Inside the Secret World of the Supreme Court , recounts a speech by Justice Scalia that he, Toobin, attended a few years ago. Justice Scalia was asked by an audience member to describe the difference between his judicial philosophy and that of Justice Thomas. Justice Scalia replied, according to Toobin, that he, Scalia, is "a conservative, a textualist, and an originalist, but I'm not a nut." (I'm paraphrasing but that's the quote in its essentials.) Gross asked whether Scalia was thereby saying that Justice Thomas, in contrast, is a nut, and Toobin agreed that this indeed was Scalia's implication. Here I'd like to suggest that Toobin was both wrong and right. I wasn't at the particular speech that Toobin attended, and so it's certainly possible that the event went exactly as Toobin describes, but circumstantial evidence suggests o...

Let's take at face value the claim by UC Irvine and its new Dean, Erwin Chemerinsky, that the original decision to withdraw the offer of the deanship was not in any way based on a desire to stifle Chemerinsky's ability to speak out on important legal issues of the day, that it was in fact all a big misunderstanding. Still, the episode raises a more general question: Is it legitimate for a university---an institution committed to principles of free speech and academic freedom---to require its administrators to avoid taking controversial positions? The question is complicated in the Irvine case by two factors: First, most law deans are also members of their respective faculties, and thus retain whatever academic freedom they would have as such. And second, as a state institution, UC Irvine is bound by the First Amendment (as incorporated by the Fourteenth). To simplify the analysis as a matter of policy, I want to ask about a private university. I'll return to the dual ca...

A further wrinkle (for those still paying attention) on the ongoing debate about Leiter rankings and whether someone like Erwin Chemerinsky can break the mold and create a great school from whole cloth: One of the striking things about this conversation so far has been the discussion of rankings generally. There is, obviously, no consensus on how to rank schools. Various people have taken issue with Brian Leiter’s rankings, as well as the U.S. News and World Report rankings, and others. To a semi-outsider like me, however (a Canadian who’s spent years as a student, teacher, and practising lawyer in New York), what is striking is the near-unanimity about the notion of rankings. It’s worth pointing out that Americans live in a world of hierarchy to a degree that is exceptional, that they don’t always appreciate – and that is hard to square with the liberal democratic “American Dream” perspective that also characterizes the country. Perhaps, when everyone has a (theoretical) chance to be ...

From time to time I receive credit (or more rarely blame) for some of the posts on this blog that are by other authors. I suppose this is mostly my own fault for calling the blog "Dorf on Law," but it's also party due to a Blogger/Feedburner limitation. Although the web version of the blog automatically lists author names at the bottom, the email version does not, so email subscribers sometimes incorrectly assume that all posts are by me. To remedy this problem, I'm asking all of my fellow bloggers to note their authorship in the body of their posts. I'll do the same. --posted by Mike Dorf

I taught Bell Atlantic v. Twombly to my civil procedure students yesterday and encountered a fact that was astounding to me and reveals that the underlying antitrust dispute was about something of decreasing importance. For those not familiar with the case, it involved a class action against the successors to the "baby Bells," claiming that they had engaged in a conspiracy to carve up the market for local telephone service so that each maintained a monopoly in its own region. The suit was dismissed on the ground that it contained insufficient factual allegations to support an inference of a conspiracy (as opposed to merely uncoordinated but individually rational behavior), and has become an important (and perplexing) precedent regarding the sufficiency of a complaint under the Federal Rules of Civil Procedure. (See my FindLaw column on the case here .) As we were discussing the facts, I asked how many of the students used their mobile phones as their only phones. The ans...

(Just kidding. But now that you've been lured into reading a post about Pakistan....) As I briefly noted last week, General Pervez Musharraf rather quickly dashed former Prime Minister Nawaz Sharif's hopes of a triumphal homecoming last week. After throwing hundreds of leaders and other supporters from Sharif's political party in jail to prevent them from organizing a big welcome, Musharraf's regime acquiesced to the invited entreaties of the Saudi intelligence chief by taking Sharif into custody at the airport in Islamabad, hustling him into an awaiting aircraft, and rendering him to Saudi Arabia. Pakistani officials seemed to have some difficulty getting their story straight on exactly what transpired: • Prime Minister Shaukat Aziz : "' We did not force him to return. I have been told that he was given two options -- either to go to prison or proceed to Saudi Arabia,' the prime minister said in a live interview with a private television channel on Mon...

My skepticism about what Erwin Chemerinsky could accomplish as the dean of a not-yet-established law school led to numerous outraged comments on my blog and led Ann Althouse to accuse me of being an elitist snob. Brian Leiter , who rarely agrees with Althouse about anything, agreed with her about this, although Brian did note that I seemed sensible in the comments replying to similar points by readers. Meanwhile, the law world has moved on to more important matters, including the nomination of Judge Mukasey to be Attorney General and, more directly to the point, the decision by UC Irvine to make Chemerinsky its dean after all! (See press release here .) So first, I'll congratulate Erwin and UC Irvine. I hope they both prove me wrong and do indeed create what they say they desire: "one of the finest law schools in the country." Now onto the much less important question. Is Althouse right? Am I an elitist snob? Part of the problem here is that the word "medioc...

When I last saw Erwin Chemerinsky I asked him why he wanted to be the dean of a new law school. He was enthusiastic in response, talking about the opportunity to place his stamp on legal education as the founding dean of the UC Irvine Law School. I was skeptical and remain so. Chemerinsky has enormous talent and energy but I sincerely doubt that anyone could change legal education significantly without buy-in from the faculty of an already top law school. Even solid but middling-ranked law schools can have at best a marginal impact on the course of legal education as a whole because no matter what they do to improve the actual outcomes for their students, they won't attract the very best students---and I doubt that, on average, an excellent innovative education for a mediocre student will produce better lawyers than a pretty good traditional education for excellent students. This explains why Yale Law grads---many of whom learn virtually no law at all while in law school---prov...

I’ve finally had a chance to read Jack Goldsmith’s book, The Terror Presidency . Contrary to the publisher-driven media and blogosphere buzz, it is neither a hack job on the Bush Administration nor a tell-all mea culpa about torture and wire-tapping. It is more of a parable about how a “go it alone” philosophy can backfire like no other philosophy. Goldsmith headed the Office of Legal Counsel right after his “friend” John Yoo held the post. He had the ignominious responsibility of pulling back and revising (for the sake of everyone’s credibility) Yoo’s “sloppy,” “flawed, tendentious in substance and tone, and overbroad” 2003 opinions regarding interrogation techniques. Goldsmith doesn’t express much worry about the victims of any such interrogation, but he’s keenly aware of how precarious authority, trust, and credibility all are and showed determination in trying to preserve them. Goldsmith is the Henry Shattuck Professor at Harvard now. He made his academic name cautioning agai...

"O.C." of course stands for Orange County, the home of U.C. Irvine, whose brand new law school is sorely testing Mark Twain's maxim that there's no such thing as bad publicity by making headlines before a single student has enrolled, through the firing, just days after the hiring, of founding dean Erwin Chemerinsky ("E.C."). If I didn't know Chemerinsky as well as I do, I would assume that the powers that be at Irvine had discovered some skeleton in his closet, like an outstanding warrant for dealing crack or a secret life as a mafia hit man. That's because the official explanation is so transparently idiotic. First, University Chancellor Michael Drake said that he had gotten heat from conservatives (presumably alumni?) who thought Chemerinsky too liberal. Then, perhaps realizing that a state institution might be in legal trouble for rescinding a deal based on the political views of an employee, Drake backtracked and said it wasn't the substa...

In my FindLaw column today I argue that despite some flaws in its reasoning, Judge Marrero's ruling invalidating the gag order provision of the Patriot Act sensibly uses interests protected by the Fourth Amendment to bolster protection under the First Amendment. However, I note that this sort of "holistic" approach to the Bill of Rights, while sensible, is arguably inconsistent with the Supreme Court's ruling in Zurcher v. Stanford Daily . There the Court held that the fact that a search target was a newspaper could not be used to increase the level of Fourth Amendment protection it received. In my FindLaw piece, I say that the Supreme Court's one-right-at-a-time approach is inconsistent with the original understanding and with the approach canonically favored by Justice Harlan in his Poe v. Ullman dissent. Here I want to suggest a further problem with this approach: It violates the spirit of the Ninth Amendment. Conservative judges and scholars hesitate to...

As I noted yesterday , President Bush's claim that he is a "commanders guy" is disingenuous and, if true, a betrayal of his responsibility as Commander in Chief. Here I want to note a tension between the "commanders guy" pose and the Bush Administration's genuine commitment to the unitary Executive. Among other things, the unitary Executive theory holds that the President must be capable of exercising ALL of the nation's executive power, which he does by directing the operations of executive branch officials. This Administration has shown its fondness for the unitary executive theory by disciplining wayward prosecutors and by running a great deal of the business of administrative agencies from the political office of the White House. Yet a "commanders guy" in domestic affairs would take just the opposite approach, deferring to professionals in the Justice Department on matters of prosecutorial priorities, deferring to the scientists at EPA...

The report to Congress by General Patraeus is a good occasion to reflect on the proper relationship between civilian elected officials and the military in wartime. President Bush famously declared earlier this year that he's a "commanders guy," by which he meant that military commanders in the field are better positioned to make military decisions than politicians in Washington. It's hard to know where to begin with this one, so I'll simply make three observations. Observation No. 1: Bush is not in fact a commanders guy when it counts. The current surge was designed by the White House and resisted by many of the military commanders (not to mention the troops) and perhaps more importantly, at both the inception of the war and at later points, commanders whose professional judgment (about such matters as initial troop strength) differed from those of the civilian leadership were overruled and/or replaced by other commanders who agreed with the President's pol...