Dorf on Law

I don't usually post simply for the purpose of plugging another blog, but I'll make an exception to that principle for University of Pittsburgh law prof Haider Hamoudi, who has just started a new blog on Islamic law. His first post examines two recently noteworthy cases: the English woman jailed and exiled for calling a teddy bear Mohammed (in response to her students' request) and the Saudi woman sentenced to 200 lashes for being in a car with a man not her husband (and possibly for then having been gang raped). Hamoudi condemns these sentences but goes on to explain how the claim that they carry out "Islamic law" rests on numerous controversial premises. It's worth a read. Posted by Mike Dorf

For everyone wondering how Chris Eisgruber would respond to my question whether a tendency to defer to institutional settlements could really be cabined off from ideological values as "procedural," wait no longer. Chris said that while deference to institutional settlements is part of what makes a Justice "moderate" along the procedural dimension, the procedural value on which he principally relies is "open-mindedness" towards new claims of justice. I'm all for that too, but I should say that this too can be characterized as an ideological position. Self-styled originalists, after all, might say that it's the job of the Court to enforce the old Constitution and for the political branches to be open-minded towards new justice claims. In the end, my mild skepticism may boil down to the sort of skepticism one often sees towards all process-based theories. Think here of the criticism by Larry Tribe of John Ely's process theory. One further th...

Christopher Eisgruber is the Provost of Princeton University and a former law professor at NYU. He is one of the most elegant writers on constitutional law, both in his solo work and in his collaborations with his former NYU colleage (and current Dean of the University of Texas Law School) Lawrence Sager. Eisgruber's most recent book, The Next Justice , argues for a new approach to the selection of Supreme Court Justices. I'll be talking about the book on a panel at Princeton this afternoon and thought I'd very briefly preview my remarks here. Roughly half of The Next Justice addresses matters of constitutional (and to a much lesser extent, statutory) interpretation. In order to know what the confirmation process should look like, Eisgruber says, we need to know what it is that we want our Justices to do. His answer is that Justices apply "ideological" and "procedural" values in interpreting the open-ended (Sager would say "justice-seeking...

“Entitlement programs” (to use the ugly phrase) will be an issue in the 2008 election. The ultimate Democratic candidate is likely to put forward a universal health care plan, and we can expect to hear more about President Bush’s recent veto of health care for children. The state and future of other social programs, such as social security, should be on the agenda as well, although perhaps only Senator Obama will be willing to talk about them. As an article in the Economist pointed out last month, the conversation about health care centers around universality of coverage, not around cost. (The Economist proposed that Senator John McCain was at least asking “the right question” in focusing on cost instead.) Coverage is incredibly important, and the number of uninsured Americans is disgraceful and growing. Most of the uninsured are, of course, poor. Yet the challenge for Democrats in the coming election may be to ensure that universal health care is talked about in wa...

Yesterday afternoon I debated Robert Levy of the Cato Institute, one of the lawyers for the plaintiffs in Heller v. D.C. , in an event jointly sponsored by the Columbia chapters of the American Constitution Society and the Federalist Society. A rousing good time was had by all, or at least by me. During the course of our debate, Dr. Levy offered the following example. Suppose, he said, that we had a constitutional provision that read: "A well-educated electorate, being necessary to the democratic self-governance of a free State, the right of the people to read books shall not be infringed." (I may not have reproduced his precise wording but that was the gist.) If someone wanted to read a book for pleasure, Dr. Levy said, surely the "Book Amendment" would protect that right, notwithstanding the fact that it was not part of any formal course of education. Fair enough, but, said I (and say I now for wider distribution), suppose that in an obscenity prosecution, a d...

No, I'm not referring to any physical damage associated with my jaw dropping to the floor upon hearing George Bush say that Gen. Mr. Pervez Musharraf has not " crossed any lines " in his full-scale assault on civil society. There are so many things to be said in response to that ridiculous statement, but one particularly disturbing irony seems to stand out. We have long known that when it comes to torture , the Bush administration has at times drawn "the line" in a rather peculiar place, at one point seeking to limit the definition of torture to acts "likely to result in permanent and serious physical damage ... ris[ing] to the level of death, organ failure, or the permanent impairment of a significant body function." Well, after several weeks in which many have feared that Musharraf, Shaukat Aziz, and their agents might be perpetrating unspeakable crimes in Pakistan's jails , it now appears that Musharraf has crossed even the dubious "line...

In this post back in early September, I suggested that Justice Alito could be in play in the DC gun case (at that point just pending on cert). I said: "I put Alito in the unknown category because I suspect that his long experience as a prosecutor makes him more of a law-and-order conservative on this issue than his more ideologically conservative brethren." I now have information that leads me to think that this was naive on my part. Last night I had a conversation with a prominent conservative law professor who worked directly under Alito at the Justice Department. He thought that Justice Alito was fully on board with the individual right interpretation of the Second Amendment that conservatives tend to endorse on the basis of their reading of the original understanding. If said law professor is right, then I was wrong about Justice Alito. But before I was wrong about him I was right about him, when earlier I wrote (in the Harvard Law & Policy Review, available her...

Living in a mature democracy, it is easy to point to the positive virtues of representative government (and to the myriad ways in which our system of government fails to deliver or fails to deliver fully on its promises along these dimensions): Regular elections, civil rights and political rights lead to public policies that serve the public's interests, even while ensuring that those whose interests go unserved have means of changing public policy. But democracy serves a more basic function, one that we might call "negative" for what it avoids rather than "positive" for what it affirmatively does: Democracy substantially reduces the likelihood of bloody succession crises. From ancient through late medieval times, the death, incapacitation or overthrow of the ruler was frequently an occasion for war, as rival would-be rulers sought to seize power or to have their power validated by some other means. Clear rules and strong dynastic leadership provided one way t...

This story in the NY Times reports that the Chicago office of the Perkins Coie law firm drives its lawyers so hard that the firm has a "happiness committee" that does nice things to surprise its lawyers chained to their desks (like bringing them snacks). Perkins Coie is not alone, of course, but one has to question the judgment of anybody who volunteered information about firm "perks" to compensate for the lack of any semblance of normal life for associates in a NY Times story. (Perhaps this was damage control by the representatives of firms that had already been identified to the press as providing perks to make up for long hours.) The most shocking item in the story for all people with normal lives must surely be the following: Money is not the only thing that drives these lawyers right now,” said Marina Sirras, who runs a recruitment firm in New York for lawyers. “They want to be able to have a family and enjoy their family. This has never been as hot an issu...

According to President Bush, Pervez Musharraf "has advanced democracy in Pakistan," and not just a long time ago (like when he first seized power in a coup), but even recently. So said our Commander in Chief in an interview with ABC News yesterday. (Transcript here ; video here ). Here's my favorite part of the interview: CHARLES GIBSON: Is there a line he cannot cross, that he cannot cross, something that would go too far, where you might say to yourself, 'OK, that's enough?' PRESIDENT GEORGE BUSH: Well, he hasn't crossed the line. As a matter of fact, I don't think that, uh, he will cross any lines. I think he truly is somebody who believes in democracy. And he made a decision, we didn't necessarily agree with his decision, to impose emergency rule, and I, my, hopefully he'll get, get rid of the rule. Today I thought was a pretty good signal that he released thousands of people from jail. I see, so if you jail judges, lawyers and journal...

The Supreme Court granted cert today in the D.C. gun control case, now styled D.C. v. Heller . As I noted in an earlier post , this is not an unexpected development. One small wrinkle is that the Court took the somewhat unusual step of rewriting the question presented. The cert petition had phrased the question as follows: Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns. The Court, in granting cert, reframed the question this way: Whether the following provisions - D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 - violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes? It's hard to know whether anything important turns on the difference in wording. The Court's question isn't especially one-sided, but it does focus, to an exten...

The CQ Press has just released its 14th Edition of City Crime Rankings to a loud chorus of disapproval from police chiefs, mayors and others, especially in those cities that top the list of the most dangerous. The 5 most dangerous cities were, in order: Detroit, St. Louis, Oakland, Flint, and Camden. The 5 safest cities were Mission Viejo, California; Clarkston, New York; Brick Township, New Jersey; Amherst, New York; and Sugar Land, Texas. Those lists alone are interesting: Michigan has two cities in the top 5 most dangerous; New York has two cities in the top 5 safest; California and New Jersey each have one city in the top 5 of each. And most obviously, the top 5 safest "cities" aren't really cities at all. They are political units with at least 75,000 persons living in them. These facts tend to confirm what some critics of the project note: That the variation in crime rates within a single city is often larger than the variation from city to city. A list of the...

My latest FindLaw column discusses Friday's Ninth Circuit ruling in Al-Haramain Islamic Foundation, Inc. v. Bush , which applied the state secrets privilege to forbid the plaintiffs in that case from showing that they were the targets of the NSA's warrantless wiretapping program. Although I only briefly discuss the point in the column, the case features one very peculiar, indeed troubling, detail. Al-Haramain sought to rely on a top-secret document that the government had inadvertently provided to Al-Haramain during the course of a separate proceeding concerning the freezing of its assets. The government wanted to freeze Al-Haramain's assets because of its alleged ties to al Qaeda. The Ninth Circuit opinion says that even though the government recovered the top-secret document, that only occurred after Al-Haramain's directors had made copies, which they were apparently permitted to keep---and for all that I know, translate into Arabic and post on their website. Thi...

So Gen. Musharraf appears to be engaged in a global war on journalism after all. Two weeks after commencing his crackdown on Pakistani civil society, which effectively turned news into contraband, Musharraf has now begun to allow some independent television networks back onto cable television -- but only if they agree to a number of conditions , such as terminating television shows critical of the regime and signing an undertaking of "good behavior" permitting the government to interfere with their operations, seize their equipment, and terminate their licenses at any time. Some networks are now back on the air, albeit in " laundered " form -- AAJ TV, for example, is back but without a number of leading talk shows that have been critical of Musharraf . (The BBC and CNN are also back, but since they, along with Dawn News, are broadcast in English, the authorities are not as concerned about what they might say in their broadcasts.) Musharraf's imposition of the...

Are critics of the Bush Administration hypocrites for criticizing the President's failure to stand firmly on the side of democracy in Pakistan after many of those same critics earlier criticized the President's naivete in thinking that bringing democracy to the Middle East would advance the strategic interests of the United States in the region? So say some Administration defenders but they're mostly wrong. The leading examples of the administration's problematic efforts to support democracy in the Middle East are Iraq, Lebanon and Palestine. Let's consider them in turn. Iraq, which is by far the largest effort, is problematic for two chief reasons. First, the invasion of Iraq was not justified to the American public as an effort to bring democracy but as pre-emptive self-defense. Democracy was one of the post-hoc rationalizations offered after Iraq proved to have no WMDs, and even then, there are reasons to doubt that it was ever a real justification. Second,...

Now that Barry Bonds has been indicted on perjury and obstruction charges, the odds that he will be kept out of the Hall of Fame and/or be stripped of his single-season and career home run records have substantially increased. To some extent, this is simply a matter of evidence. Should Bonds be convicted or plead guilty, there will be no reasonable doubt that he in fact used performance-enhancing drugs. The basis for the perjury charge, after all, is that Bonds was lying when he said that he did not knowingly use the drugs, so a conviction for lying will be the equivalent of a conviction for using the drugs. There will no longer be any basis for plausible deniability. But I suspect that some number of people will also think that the fact of a conviction itself (if one is obtained) will be a reason to keep Bonds out of the Hall and strip him of his records, apart from what it says about his use of performance-enhancing drugs. Being branded a felon will, in their eyes, make him unwo...

Readers of the NY Times may have noticed that lately three of the regular columnists have been arguing over the symbolic meaning of Ronald Reagan's decision to open his general election campaign for the Presidency with a speech including praise for "states' rights" in Philadelphia, Mississippi, the site of the infamous murder of three civil rights workers in 1964. The Times intramural brawl began with the publication of Paul Krugman's new book, The Conscience of a Liberal ( reviewed positively here ), in which Krugman noted the seemingly obvious effort to appeal to white racism that the visit entailed. Then Krugman's colleague David Brooks, without mentioning Krugman by name, wrote a column calling Krugman's account a "slur . . . spread by people who, before making one of the most heinous charges imaginable, couldn’t even take 10 minutes to look at the evidence." Krugman responded in a blog entry that, in turn, did not mention Brooks by nam...

Away From Her is a bittersweet film about a woman named Fiona (played by Julie Christie) suffering from Alzheimer's Disease who, notwithstanding the misgivings of her devoted husband of over 40 years, checks herself into a nursing home. The home has a policy forbidding family members to visit for the initial month, so that the patient can become acclimated to the new surroundings. During that period, Fiona forgets her husband and falls in love with one of the other patients. The film includes some funny scenes, such as when Fiona's husband Grant and Fiona's boyfriend's wife (played by Olympia Dukakis) try their own romance, but it is overall, profoundly sad, as one would expect from the subject matter. News reports now indicate that Justice O'Connor's husband John has fallen in love with another Alzheimer's patient in his Arizona assisted living facility. The stories quote the O'Connors' son Scott, who reports that Justice O'Connor is pleas...

I received the email below announcing a march in Washington, D.C., tomorrow morning (Wednesday, Nov. 14) in support of the Pakistani lawyers who are standing up for the rule of law. The email is from the current president of the American Bar Association. (I think the suggestion to wear a black suit is brilliant.) Posted by Neil H. Buchanan D ear fellow lawyer, On Wednesday, November 14, the ABA is holding a lawyers’ march in Washington, D.C., to support the rule of law and lawyers in Pakistan. We need your participation to make it successful. A critical mass of lawyers will gather at the James Madison Building before walking around the Supreme Court. Lawyers across the country are participating in similar marches in their communities. What: Lawyers’ march for the rule of law in Pakistan When: 11:30 a.m., Wednesday, November 14 Where: Meet at Plaza of James Madison Building (101 Independence Avenue SE) before walking around the Supreme Court Attire: Black suit Please ...

Last week, Mike noted that Pakistan's lawyers have not simply been joining the demonstrations against Musharraf's anticonstitutional declaration of martial law, but have been leading the fight "at considerable and entirely predictable cost to themselves." In today's New York Times , Jane Perlez profiles one of those courageous lawyers, Aitzaz Ahsan: Twenty-five years ago, when President Reagan treated Pakistan’s dictator, Muhammad Zia ul-Haq, to a White House state dinner, a promising young lawyer out of Cambridge University languished in jail. He had protested too loudly, and too often, about the lack of democracy in his country. Now grayer and at the peak of his profession, the lawyer, Aitzaz Ahsan, 63, sits in a Pakistani jail once again, reduced to seeing family visitors for 20 minutes a day, and accepting bags of fruit and bedding for some basic comfort. His crime is the same: making too much noise about democracy under the nose of a military ruler whom Was...

During my panel at the conference on the Presidency and the Supreme Court earlier today, Judge Michael McConnell took the position that Roe v. Wade , Lawrence v. Texas and other "culture war" cases benefit the Republican party by providing a target around which to organize activists. (The term "culture war" was supplied by the conference organizers and resisted a bit by Judge McConnell who correctly observed that it lumps together some quite different issues.) Although Professor Heather Gerken and I disagreed with some of McConnell's premises, we did not quarrel with the proposition that there can sometimes be a tradeoff between a movement's success in the courts and in the political process. The basic dynamic is one of backlash: prevented from getting what they want at the state and local level by Supreme Court decisions constitutionalizing their issues, Christian conservatives (and others) mobilize at the national level behind Presidential and Senate...

George Bush continues to astound when it comes to Pakistan, showing an inexhaustible supply of either patience or lack of concern: "I haven't spoken to President Musharraf since I did earlier this week, but he knows my position, and he knows the position of the U.S. government," Bush said. “I do want to remind you that he has declared that he'll take off his uniform, and he has declared there will be elections, which are positive steps ... We also believe that suspension of the emergency decree will make it easier for the democracy to flourish. And so our message is consistent and clear ." [ link ] The Bush approach to Pakistan is fast becoming the mother of all faith-based initiatives, a far cry from " trust but verify ": Bush was asked if he is at all concerned that Musharraf may not live up to the promises he has made.... " I take a person for his word until otherwise ," Bush replied. "I think that's what you have to do. When someb...

Tomorrow (Sunday Nov 11) begins a two-day conference on the Presidency and the Supreme Court to be hosted by the Franklin D. Roosevelt Presidential Library and Museum . The program features historians, law professors, journalists and a keynote address by Justice Sandra Day O'Connor. I'll be on a panel on Monday with Judge Michael McConnell and Yale Law Professor Heather Gerken, moderated by NPR's Nina Totenberg. We'll be talking about what the organizers of the conference have called The Presidency, the Supreme Court and the "Culture Wars" , and part of our discussion will focus on what exactly makes something a "culture war" issue. For my part, I intend to say (among other things) that whether an issue is part of the culture wars is (rather obviously) subject to change over time. Today's issues include abortion, church-state relations and gay rights, but national politics has picked up and dropped various issues over the course of American ...

In addition to Anil's point that rescheduling elections is not, by itself, nearly sufficient to restore some semblance of democracy to Pakistan, it's worth pondering another issue that has continually arisen: whether the Pakistani Constitution permits the same person to be both President and in charge of the armed forces. I'm hardly an expert in the (for-now defunct) Constitution of Pakistan, but it does strike me that this is clearly the wrong question. In the U.S. (as one waggish Dorf on Law reader noted in a comment a few days ago), the President is head of the military, but we rightly regard this as a protection for, rather than a threat to, civilian rule. Since at least the time when the Roman Republic gave way to the Roman Empire, small-d democrats the world over have justifiably worried that in a pinch (or perhaps even without a pinch), military leaders will displace civilian ones. The remedy is to create a military culture in which everyone understands that the ...

Let me offer a respite from the unfolding crisis in Pakistan: the eventual end of humanity. In a 2004 call to arms, The Death of Environmentalism , two lefty political consultants, Ted Nordhaus and Michael Shellenberger (N&S), called out Democratic leaders, foundations, and the major environmental nonprofits for their narrowed perspective and fatalist views toward societal growth and ‘prosperity.’ The main driver of this finger wagging was global warming which, at the time, was in the cellar of public opinion. At that point it was polling in its importance to respondents below, for example, the Spears/Federline marriage. In their new book, Break Through: From the Death of Environmentalism to the Politics of Possibility , N&S swing for the fences again. What is intriguing about this book is how much it gets right. And I mean really right. They start with the language we use: what does “environmental” really mean anymore? If it means the natural world excluding people, ...