Dorf on Law

We now appear to know why Judge Mukasey has been so cagey about answering the question of whether waterboarding is torture or otherwise illegal: He fears that saying yes could open the door to criminal and/or civil liability for current and former Bush Administration officials who conducted or authorized waterboarding. But is that fear reasonable? As the latest NY Times story notes, U.S. law now provides a good faith defense to charges of illegal interrogation. In particular, the Detainee Treatment Act provides in relevant part: In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with ...

An article in the NY Times earlier this week reported on an effort by faculty and students at Stanford Law School to rate large law firms in major legal markets on the basis of the number of female, black, Latino, Asian, and out LGBT partners and associates. Using data provided by the firms, the project assigns scores in individual categories and composite scores, with the evident aim of pressuring firms to increase the numbers of members of the listed groups among their ranks. As the article notes, quoting Hastings Law Professor (and my fellow FindLaw columnist) Vik Amar, given that governing law requires something almost approaching colorblindness (and the related blindnesses associated with the other groups) there is a distinct possibility that by succumbing to this pressure firms would be acting illegally. I make this observation as a descriptive matter, without taking a position on whether aggressive private sector affirmative action along these various dimensions should be d...

A new documentary, "Terror's Advocate" (mostly in French, with English subtitles), offers a fascinating insight into the history of post-WWII terrorism. Centered around interviews with Jacques Verges, a French-trained lawyer who has defended everyone from Klaus Barbie to Carlos the Jackal as well as representing seemingly every major leftist terrorist group to have operated in Europe and elsewhere over the last half-century (Baader-Meinhof, Red Brigades), the film offers chilling observations from an unrepentant Verges as well as many of his cohorts and clients -- many of whom are repentant. Verges, now in his 80s but extremely lucid, is scary in his ability to charm even while, for example, minimizing the atrocities of the Khmer Rouge and his friend Pol Pot. The film is obviously of interest for its potential insights on the current debate over terrorism, though it offers few answers to a problem for which there are no good answers. One theme that emerged was that terro...

I offer without further comment this snippet from a Montana statute (75-5-103) that I needed to read today: (23) "Person" means the state, a political subdivision of the state, institution, firm, corporation, partnership, individual, or other entity and includes persons resident in Canada.

The Yankees today announced that Joe Girardi is their choice to manage the team now that Joe Torre has turned down an offer he was probably meant to refuse. Having had some experience making hiring decisions in a variety of contexts, I must say I find the announcement odd. Girardi and the Yankees have yet to agree to terms, and it is possible that they won't. If they don't, then the Yankees will have to go to someone else who will know that he is not their first choice (and not even their second choice, if one credits the offer to Torre as serious, which I don't). And more importantly, the players and the public will also know that the manager was originally passed over. Perhaps Girardi has already provided assurances that he'll accept the offer. That would explain the decision of Don Mattingly, the other leading contender, to quit the team. Or perhaps the Yankees figured that the Girardi news would leak anyway, so they wanted to get ahead of the curve. But if no...

As widely reported, last week the Georgia Supreme Court freed Genarlow Wilson, the young man who had been serving a mandatory 10-year prison sentence for the crime of having had consensual oral sex with a 15-year-old when he was 17. The Court said (in an opinion here ) that Wilson's sentence was cruel and unusual punishment in violation of both the U.S. and Georgia Constitutions. The express reliance on the Georgia Constitution was important because if the Georgia S Ct had only relied on the federal Constitution or had been unclear as to whether it thought its result compelled by federal law alone or federal law and state law, the U.S. Supreme Court could have reviewed the decision, per the presumption of reviewability established by Michigan v. Long . Thus, the Georgia AG was accepting the inevitable when he said he would not pursue any further appeals. In part, the Court relied on comparisons of the sentences available for other crimes. Wilson got 10 years for consensual ora...

I often speak with employers who've suffered a loss at the hands of an employee who didn't do such a great job. The employers want to know what they can do, in addition to firing the employee. The advice is usually pretty simple. First, you can look at the contract, if there is a contract. Second, depending upon what the employee does for the company, the loss may be insured. Third, if the employee was either negligent or committed some sort of an intentional tort, then you could sue the employee, but that opens up a whole can of worms. The biggest worm in the can is that the loss the employer suffered is always much bigger than the employee could possibly pay. After all, the non-unionized worker on the JapanCo assembly line in Tennessee who's screwing lugnuts onto a tire rim for ten bucks an hour couldn't possibly pay the damages award when the wheel flies off and a church bus flips over. The second biggest worm is that suing your employees as a regular practice makes ...

In the New York Times on Thursday (October 25) appeared an editorial by a farmer, Verlyn Klinkenborg, who enjoys talking to his pigs and scratching them behind the ears and who anticipates the day, "very soon," when "a farmer and his son will come to the farm to kill our two pigs." He spends time with the pigs both because he loves being around them (pigs are actually quite similar to dogs in their friendliness towards trusted human friends) and because "taming them means it will be that much easier for the farmer and his son to kill them swiftly, immediately." He adds that whatever one might say about the treatment his pigs receive, it is much better than what happens to the animals that virtually every omnivore purchases at the supermarket. The editorial brought me back to the ambivalence I expressed in an earlier posting about the Israeli Supreme Court's decision to ban the production of foie gras because of the cruelty entailed. If one is goin...

Opponents of televising court proceedings (in the Supreme Court and in other courts) often invoke fear of an observer effect. Knowing that what they say will be heard and that they will be seen by thousands or even millions of people will alter the behavior of lawyers and judges. They will play to the tv audience, the worry goes. One can certainly point to high-profile court proceedings of the not-too-distant past as evidence for this observer effect, but perhaps one can also point to the current baseball playoffs. Last night's game between the Red Sox and the Rockies was played during what was at times a torrential downpour of the sort that, for a less high-profile game, might well have resulted in a rain delay. Yet the teams played on because (I strongly suspect) Fox Sports stood to lose its tv audience, for which it had paid a pretty penny, if the game were delayed. (Never mind that they lost much of the audience once the Red Sox lead grew to a laughable size.) The Rockies ...

The current issue of the New Yorker includes an amusing story about the "flexibility" of Mitt Romney's political views. As an unsuccessful candidate for Senator from Massachusetts, Romney tried to position himself to the left of Ted Kennedy, and as Massachusetts Governor he was a liberal Republican. Now that he's running for the Republican nomination for President, Romney contends he is from the "Republican wing of the Republican Party," positioning himself as the only true conservative among the front-runners. Ryan Lizza, author of the New Yorker article, is hardly the first person to point out Romney's evident opportunism, but Lizza makes the interesting observation that Romney's willingness to engage in rebranding reflects his background in management consulting. Changing course on a dime to satisfy consumer demand is a virtue for a company. Lizza questions whether the same is true in politics. Meanwhile, until now, Rudy Giuliani's strat...

When Harlan Fiske Stone was Dean of Columbia Law School, he managed to work roughly half-time as a lawyer as well. This afternoon I'll be addressing an annual gathering of Columbia Law School's "Stone Agers." The group formerly consisted of alumni from the law school from the days of Stone's deanship, but Stone left the deanship in the mid-20s to become U.S. Attorney General, and so any alumni from that period would be over 100 years old by now. Accordingly, current Stone Agers now include anyone who has been out of CLS for 50 years or more. The subject of my remarks to these alumni will be the changed relationship between the legal academy and legal practice. Undeniably, the last two or three decades have seen the legal academy move closer to the rest of the academy, in temperament and in training. Columbia is probably more on the "practice-focused" side of elite law schools, but even here, roughly half of our entry-level hires over the last decade...

Over on FindLaw's Writ today I have a column called Harry Potter and the Framers' Intent , which uses the revelation by author J.K. Rowling that her fictional wizard Albus Dumbledore is gay as the launching pad for a discussion of the relation between an author's intentions and the meaning of her text. It will come as no surprise to readers of my academic work that I express disagreement with the view that the intentions of the Constitution's authors control its later meaning. Here I want to suggest a re-framing of the debate about original understanding. In recent years, Stanley Fish has been arguing (for example, here ) that interpretation of texts necessarily involves a search for the author's meaning. I think Fish is wrong about this point but I won't explain why I think so here. Instead I want to suggest that we can accept much of Fish's claim and still think that what is sometimes called the "living Constitution" is superior to originalis...

Much of the unhappiness with Judge Mukasey's answer to Senator Whitehouse's question whether waterboarding is unconstitutional concerns credibility. Judge Mukasey said that if waterboarding is torture then it's unconstitutional for U.S. govt agents to subject someone to waterboarding, but he said he didn't know enough about the technique to say whether it's torture. Under the present circumstances, for a prospective AG to say he doesn't know what waterboarding is, sounds a bit like a Supreme Court nominee saying he never discussed Roe v. Wade . (In response to a question whether he had ever discussed Roe , t hen-Judge Clarence Thomas said at his confirmation hearings that he had never "debated the contents of" the ruling, leading some Thomas defenders later to claim that he spoke the truth because he had never been in a formal debate on the subject.) If the worry now is that Judge Mukasey has dodged the question by pleading ignorance, it would be a...

Joe Torre's decision to turn down the NY Yankees' offer of $5 million to manage the team in 2008 could be read as simply a manifestation of the stickiness of wages. In good times, salaries go up, but when bad times hit, firms have difficulty lowering salaries, at least where employees have bargaining power. That's right, I think, but the episode tells us something important about what makes wages sticky in general. First, the facts (for non-fans of baseball and/or the Yankees): Torre has been the manager of the Yankees since 1996. During that time, the Yankees were the only team to reach the playoffs in every season. They won 4 World Series titles under Torre, although none since 2000, and the Yankees have been eliminated in the first round of the playoffs in each of the last 3 seasons. Over the last 3 years, Torre received $19.2 million, easily making him the highest paid manager in professional baseball. However, before the Yankees were eliminated by the Cleveland I...

Yesterday's NY Times carried a story about how Silicon Valley is once again booming, with market caps for internet-based companies outstripping revenues by enormous margins. The story poses the question whether this is just another bubble of the sort we saw in the late 90s, and thus doomed to burst, or whether the new paradigm has finally arrived. I lean strongly towards the first explanation, not because I don't think that the internet is a great new phenomenon, but because I think that its very newness makes accurate predictions almost impossible and to some extent, leads people to take leave of their senses. For example, at a dinner party I attended last night, a historian whose work focuses on the early Renaissance made the following provocative and interesting claim: We are now going through a transition not unlike the one that occurred with the invention of print. At that time, university professors faced a crisis. With text now available to every student in their cl...

According to a story in today's NY Times, Senate Democrats intend to press Judge Mukasey for assurances that as Attorney General, he will act independently of political influence from the White House. The story also reports that Mukasey will likely take measures to ensure just such independence. Here's a series of questions that might fruitfully be asked: 1) Do you believe in the unitary executive? 2) If so, how do you square that principle with your assurances that the Justice Dept under your leadership will act independently of political influence by the White House? 3) If not, will you attempt to rein in reliance on the principle of the unitary executive in OLC memos and other official administration pronouncements? Would that include signing statements? Posted by Mike Dorf

Like Bob Woodward and Scott Armstrong's The Brethren a generation ago, Jeffrey Toobin's The Nine gets some details about the Supreme Court and legal doctrine wrong, even as the big picture story it tells is deeply correct. It has been many years since I read The Brethren , and so I don't remember which details I thought were wrong, but I do remember thinking that the big picture view---the Court is led from the center---was clearly an accurate description of the Burger years. I'm only part of the way into The Nine but already I've noticed some small details that are a bit off. For example, in his account of Planned Parenthood v. Casey , Toobin says that the standard Justice O'Connor had long advocated for judging abortion restrictions---whether they impose an "undue burden"---was adopted by the three-justice lead opinion. This is not entirely right. In previous cases, Justice O'Connor had used the term "undue burden" to refer to a t...

Would the harm that will be done---and may have already been done---to the American effort in Iraq and to the welfare of our staunchest allies there, the Kurds, by angering Turkey, justify the House of Representatives in voting down House Resolution 106 , should it reach the floor? That is a profoundly difficult question. On one hand, although one can quibble with small details, the facts recited in the Resolution are generally well established and the official failure to use the word "genocide" rather than "mass killings" can only be explained as a craven effort to curry favor with a Turkish government that has never owned up to official responsibility for the deliberate slaughter and forced deportation of over a million Armenians. (Exactly why the modern Turkish government is so hostile to acknowledging genocide committed by the Ottoman Empire is not entirely clear, but there are other examples of national pride persisting in this way.) On the other hand: the Re...

Much of the commentary among Democrats about Hillary Clinton's candidacy has revolved around the likelihood of her losing the general election. Why, many Democrats ask, should we nominate someone whom so many swing voters have (unfairly, to a very large degree) come to distrust? Since one of the things that Democrats believe they have going for them next year is the lack of passion on the Right -- with fundraising tilted strongly toward the Democrats for the first time in memory and no Republican presidential candidates looking particularly strong -- why nominate the one person who is sure to rile up the sleeping Republican base? Why miss a chance to move past the "politics of personal destruction" by nominating a candidate who is sure to invite more of the same? Some of those questions contain a ring of truth, although it is easy to overstate the case against Clinton. If there is concern about an attack machine, after all, it is easier to imagine that machine being r...

In a post last week I suggested that the instances of near-verbatim quotations without quotation marks in the new book of Yale Law Professor Ian Ayres, Supercrunchers , might be the product of sloppy work by a research assistant rather than Ayres himself. I linked the controversy to similar concerns about books by Harvard Law Professors Alan Dershowitz, Charles Ogletree and Laurence Tribe. I also said it was possible that the lack of direct quotations was the result of an innocent mistake. I said: it's conceivable that Ayres first inadvertently lost the quotation marks, and then, when editing for style what he thought was his own prose, made the minor changes [described earlier in last week's post] but it's also a plausible inference that the paraphrase was introduced deliberately so that Ayres could claim that he wasn't quoting and thus didn't need to attribute. I'd like to believe it was the former phenomenon, but I think the latter inference is more plaus...

As widely reported in the media (see NYT story here ), on Tuesday a noose was found on the door of Columbia Univesity's Teachers College Professor Madonna Constantine (who is African American). This ugly and despicable act has prompted a police hate-crime investigation and swift condemnation from students, faculty and administrators at TC and throughout the university, including the following statement from CU President Lee Bollinger: Tolerance and mutual respect are among the core values of our diverse community, and all of us must confront acts of hate whenever they occur within it. As I said last night, an attack on the dignity of any member of our community is an assault on all of us. (President Bollinger's full statement appears here . Professor Constantine's statement is currently on the homepage of TC , if you scroll down a bit.) I fully share the sentiments quoted above, but it's worth noting what President Bollinger did not say. He did not say something like...

I recently saw a documentary by Tony Kaye (who also directed American History X), called Lake of Fire . It takes the viewer on an in-depth walk through the abortion debate in American politics and included graphic footage of late-term abortions as well as interviews with violent figures in the pro-life movement, including Paul Hill, who subsequently went on to practice his professed view: “Murderers should be executed. Abortionists are murders. Abortionists should be executed.” Hill himself was later convicted and executed for committing what he and some of his followers considered “justifiable homicide.” We also hear from pundits, including Alan Dershowitz and Nat Hentoff, who express competing views on the subject, and Jane Roe (Norma McCorvey) on whose behalf Roe v. Wade was brought but who later joined the pro-life movement. Let me say first that the film is quite powerful, if somewhat longer than it needed to be. One has a hard time watching without emotion a doctor mea...

In denying certiorari today in El-Masri v. United States , the Supreme Court followed its usual custom of publishing no explanation or dissent. As a consequence, for now the Court leaves intact the state secrets doctrine of United States v. Reynolds . Although the Reynolds case upheld Air Force secrets, it did permit claims against the Air Force to go forward based on unclassified information. The case is better known---and relied on by the government these days---for its statement that "even the most compelling necessity cannot overcome the claim of [state secrets] if the court is ultimately satisfied that military secrets are at stake." For that proposition, the Reynolds Court cited Totten v. United States , "where the very subject matter of the action, a contract to perform espionage, was a matter of state secret. The action was dismissed on the pleadings without ever reaching the question of evidence, since it was so obvious that the action should never prevail ...

My FindLaw column today discusses the Isiah Thomas verdict and the perils of management unaccountable to shareholders. In the course of the column I suggest that sports franchise owners who run their teams as an egotistical hobby may actually be good for fans, because they care more about winning than maximizing their profits. I even give George Steinbrenner as an example. I put the column to bed before Steinbrenner's latest threat to fire Joe Torre for the unpardonable sin of having not won a World Series since 2000.

In a post a couple weeks ago, I reacted to Jack Goldsmith’s book, The Terror Presidency . In my reaction, I quoted harsh language Goldsmith uses to describe lawyers and/or ideas that have graced this Justice Department, this Office of the Vice President, and this Executive Office of the President. Most especially, I focused on Goldsmith’s references to David Addington—who I lumped together with other Administration lawyers (namely John D. Bellinger III). Let me set the record straight: as Steve Clemons stated on his blog and as Paul B. Stephan, the “Lewis F. Powell Professor of Law” at the University of Virginia, brought to my attention privately, Goldsmith nowhere lumps Bellinger in with Addington. But let me do so again here. Goldsmith reveals some of the internal debates that preceded several of the Administration’s key decisions in its “war on terror.” He’s even been on the Daily Show pedaling this as his book’s message. Chapters 3, 4 and 5 detail how integral legal counsel...

A number of observers of the harassment suit by Anucha Browne Sanders against Isiah Thomas and the Knicks have been wondering why the defendants didn't settle the case. After all, the Knicks have paid millions of dollars to players who can no longer contribute to the team (if they ever could), so what would have been the harm in paying a few million dollars to a former executive to keep the embarrassing details of the Knicks empire out of the news? Here's a completely idle speculation/conspiracy theory for which I have not a shred of evidence, and thus I offer it only as a provocative hypothesis: Maybe the Knicks wanted to lose this case. How's that? Well, there is currently a $10.6 billion offer pending minority shareholder approval under which the Dolan family would take Cablevision (parent of Madison Square Garden and the Knicks) private. In exposing the Knicks as a poorly run organization, Dolan and Thomas would have encouraged minority shareholders to think along t...

That's the score in what I'll call the Plagiarism Scandal Sweepstakes. Yale Law Professor Ian Ayres has now earned the dubious distinction of joining Harvard Law Professors Alan Dershowitz, Charles Ogletree and Laurence Tribe (not to mention historian Doris Kerns Goodwin) among the pantheon of otherwise prominent and highly respected scholars to have published books that contain whole sentences that have either been lifted verbatim from the works of others or that paraphrase those other works with only tiny changes---without specifically indicating that the quoted or paraphrased material was originally someone else's. Follow this link for the Ayres story on his book, Supercrunchers . It appears that the Ayres plagiarism follows much the same pattern as the plagiarism by the Harvard authors: In a generally original work that makes important contributions to the literature, some lifted text goes unattributed. Ayres, like his Harvard predecessors, has pleaded carelessness, ...