Dorf on Law

As a vegan, I find the Thanksgiving holiday to be full of contradiction. On the one hand, it is a time to gather with family and friends and collectively celebrate our wellbeing and nurture each other in difficult times. It is, in other words, a time to take stock and acknowledge that "there but for the grace of God go I," which is one way to formulate the idea of giving thanks. On the other hand, it is a holiday that is symbolized by the massive slaughter of helpless and innocent creatures who have done nothing to deserve the suffering that they endure. Interestingly, our culture has a strange custom of having an executive official "pardon" one turkey. For a particularly telling scene of Sarah Palin giving a press conference after having "pardoned" and given "amnesty" to one turkey, see this and watch carefully what is happening directly behind the chief executive of Alaska. I had the privilege of recently visiting a sanctuary for farm an...

My FindLaw column this week discusses an unusual probation condition imposed by a Texas judge on a woman convicted of injuring her child by omission (by failing to protect her daughter from the father's violence and subsequently failing to seek medical care for resulting injuries). The judge ordered the woman not to conceive and bear a child during her ten years on probation. My column addresses the question whether such a condition violates the probationer's fundamental right to procreate. In this post, I want to speak more generally about the "alternatives enhance wellbeing" argument that played some role in the judge's assumption that because he could have incarcerated the probationer, it followed that a probation condition limiting her procreation rights must have been constitutionally acceptable. The reasoning takes this form: if I may impose X (e.g. imprisonment) upon you, then it follows that I may offer you the choice of X or Y (e.g. your forgoing pro...

As the risks from another two months of drift continued to grow over the last week, President-elect Obama was forced to all-but-abandon the notion that there is "only one President at a time." Thus, yesterday he rolled out his economic team. Meanwhile, there is certainly no reason why he could not offer a plan to the lame-duck Congress for it to pass now, effectively daring still-President Bush to veto it. (Obama's arguably premature resignation from his Senate seat makes this marginally more difficult to get through the current Senate.) The larger point is that the notion of one-President-at-a-time is literally true in general but only important in particular areas: especially in foreign affairs and conduct of the military, where it really would be disruptive to have more than one person acting as President. In part this concern explains why some of Jimmy Carter's post-Presidential peace efforts have been controversial, and why the more common pattern for ex-Pre...

I have always believed that people are extraordinarily stubborn, that far too often they do not change their attitudes in response to reasoned arguments, and that efforts to get people to become more enlightened are doomed to fail. On the other hand, evidence of progress in social attitudes is all around us. (Bear baiting, anyone?) Upon reflection, therefore, I realize that I have a similarly deep intuitive sense that people's attitudes can be changed both by reasoned arguments and -- perhaps more powerfully -- by social pressure, as changes in attitudes take on a certain momentum. In an exchange last week, Jamison Colburn ( here ) and Michael Dorf ( here ) disagreed strongly about the likelihood of changes in social attitudes regarding veganism, a disagreement which was ultimately revealed to be a difference of opinion about when and how social attitudes can change. In this post, I'll offer a few examples to suggest that Prof. Colburn's hypothesis is only weakly suppor...

An article in last Wednesday's NY Times highlighted a clash between Islamic courts---which under British law have some authority in matters of divorce, inheritance, etc.---and secular sensibilities of liberal and conservative Brits alike. The worry, a constant theme in debates over multiculturalism, is that in devolving power to minority religious communities, the larger society authorizes sexist and otherwise objectionable practices. Here I want to put that concern in a larger frame, partly by way of putting down a marker for a future more ambitious and scholarly treatment of the issue. My claim is that in a number of contexts generally thought to be unrelated, there exists the following phenomenon: A and B are interacting legal regimes, each claiming some authority to make binding norms for some of the same people; A claims that in cases of clear conflict with B, A prevails; B claims that in cases of clear conflict, B prevails; although this looks like a recipe for eventual al...

I disagree with nearly everything Jamie said in yesterday's post on persuasion. Let's begin with the main point: That it’s hard to persuade people to change their behavior because they have different perspectives and different life experiences. Hard, yes, but hardly impossible. Persuading people is what successful movements for social justice accomplish. We are in the midst of a pretty dramatic one in the way people think about sexual orientation, which is markedly different from how people thought just 20 years ago and certainly 50 years ago. So perhaps what Jamie means is that it’s hard to persuade people to make sacrifices for others, especially others with whom they feel no particular kinship. After all, despite the rhetoric of “protecting” marriage, according fully equal rights to members of the LGBT community doesn’t really cost straight people anything. By contrast, getting people to give up steak and even pizza? Now that’s a sacrifice! Well, yes ...

If we have the power, we ought to alleviate suffering. This is a proposition that unites talk about bailouts, abortion, veganism, whales and sonar, and, indeed, virtually everything on which people disagree and then claim their opponents are in the wrong. Over the years, Dorf on Law has produced compelling arguments about all of the aforementioned (OK—maybe not the whales, but I gave it a shot). But it remains, in my mind, beyond our power to convince people of very much at all about suffering in politics—at least if they aren’t already predisposed to hear you out and decide afresh. Many minds means many disparate calculations about how much suffering, how much power, and the value of action in the uncertain and imperfect world we actually inhabit. Seems trite to say out loud—but the devil is in the details (of persuasion). Take veganism. It is one step beyond “vegetarianism” properly understood because it also rules dairy products like milk out of one’s diet (among other things...

As I discussed in a recent post , I have been grimly anticipating the inevitable disappointment that comes after a political victory. Those of us who supported Barack Obama willfully accentuated the positive and eliminated the negative in our minds, and reality will surely come crashing down when the new president becomes post-partisan on an issue that is fundamental to us. The possible nomination of Hillary Clinton to be Secretary of State was, one might argue, Obama's first such mis-step. His call not to punish Joe Lieberman is also a worthy candidate for "first big disappointment." I am clearly on record on this blog as a severe critic of both Clinton ( here and here ) and Lieberman ( here and here ), yet I remain serene. Although I do not understand why people are saying that Hillary Clinton is "overwhelmingly qualified" to be Secretary of State (or anything along those superlative lines), I can at least see the arguments for putting her in that post. ...

In a recent post Neil Buchanan raises the following puzzle: "We always talk about fiscal policy as being good if it makes future generations better off and bad if it leaves them worse off. . . . [nevertheless] we have very good reason to believe that future generations of Americans (and some others) will enjoy much higher material living standards than we do. Advocating policies that require us to sacrifice today for the benefit of 'our children and grandchildren,' therefore, actually means (on average) advocating a transfer from the relatively poor to the relatively rich." Assuming this projection of the economic well-being of future generations is correct, how can we explain the strong lingering intuition that we should still try and improve the lot of future generations, even at some expense to us? Here is an initial attempt at a partial explanation. Buchanan's puzzle is framed in terms of distributive justice (with an egalitarian component), pointing out that...

Last Friday's panel on Demystifying Legal Reasoning , by Larry Alexander and Emily Sherwin, about which I posted earlier , was a rollicking good time for all. While all of us commentators had lavish praise for the book, we all also took issue with, among other things, the authors' commitment to speaker's meaning (with Heidi Hurd delivering the most forceful critique on this point). Here I want to pile on. Proponents of speaker's meaning (including Alexander and Sherwin) are fond of examples of what appear to be comprehensible statements produced mindlessly: a cloud formation that forms the letters C-A-T; the outline of Alfred Hitchcock produced accidentally by the wandering of an insect on the sand; and nearly everyone's favorite, a complete English language sentence (or all the works of Shakespeare) produced by monkeys randomly pounding the keys of typewriters. Intentionalists say that none of these occurrences has any meaning, because none was intended to commu...

In my latest FindLaw column (updated link here ), I fret about the questionnaire that the Obama transition team is using to screen potential high-ranking Executive appointees. Although I sympathize with the incoming administration's effort to avoid ambushes, I worry that the questionnaire will either result in a too-cautious approach to nominations, or chill excellent potential appointees from even applying. As one of the many lawyers and law professors to have crossed paths with the President-elect, even to the point of misspelling his first name in the acknowledgments section of my first book (well, he wasn't quite so famous then!), and as a strong supporter of his candidacy, I might be thought to be one of the very large number of people now hoping for a government job. I'm not. I love my current job(s) too much and have only just recently learned all of my new phone numbers. Thus, my griping about the questionnaire is not a sneaky way to get a job in the Obama adm...

Yesterday I briefly spoke at the Ithaca version of one of numerous rallies nationwide to protest California's passage of Prop 8. I began my remarks by questioning the judgment of the rally organizers in inviting an egghead law professor, rather than a firebrand, to lead off the ceremonies, and then offered a bit of encouragement and a bit of strategic advice. On the encouragement side, I noted that less than 6 years ago, there were states in the U.S. where consenting adult same-sex couples could be sent to prison for having sex. The progress made since then is very real. Many mainstream conservatives now favor domestic partnerships that afford all the legal benefits of marriage. With respect to strategy, I made some remarks that followed up on my recent post about how to think strategically about winning recognition for full equal rights to marry for same-sex couples. In a nutshell, I said that while backlash from proceeding "too quickly" is always possible--as il...

In "Hannah and Her Sisters," Woody Allen's character tells his best friend that, after unsuccessfully attempting to conceive the conventional way, he and his wife "need some sperm." Allen, who has filmed several recent movies in England, was apparently prescient about his neighbors. It appears that England too, needs some sperm. According to this story in Wednesday's NY Times , in 2006, England managed only 307 sperm donors, short of the needed 500. The problem, it appears, is that since passage of a 2005 law, people born from sperm donors have a right, upon turning 18, to learn the identity of their biological fathers. This has deterred potential donors who no doubt worry about dozens of potential offspring tracking them down years later and each demanding a few quid for a movie. Indeed, they might even worry that the law could change and place some legal responsibility on them for the welfare of the fruit of their loins. Of course, viewed from the pe...

The lone commenter on my ‘future of NEPA’ posts on Winter v. NRDC suggested that I call the case by this title. So be it. The Court at least had the good graces yesterday not to actively belittle NRDC’s concerns (the effects of very powerful sonar on marine mammals, especially beaked whales). But it did place them squarely behind the urgencies of preparing for war. To quote the first line of the majority opinion (and George Washington): “To be prepared for war is one of the most effectual means of preserving peace.” And the Court provided a sort of answer to the questions I raised in my posts this summer (and underscored the pith of the commenter’s suggestion). My principal question was this: can we expect nothing more of NEPA in the future than more mudplay from the usual NEPA suspects? If so, shouldn’t that be distressing to all of us? In my view, this icon of conservation in the US is heading in that direction. It is becoming, in cases like Winter, little more than an instr...

A few weeks ago, I posted a blog entry describing the symposium hosted on Oct. 23-24 by The George Washington Law Review: "What Does Our Legal System Owe Future Generations? New Analyses of Intergenerational Justice for a New Century." Now that a few minor events like a presidential election have passed, I wanted to return to the subject matter of the symposium . I'll begin with a description of the panel on fiscal policy, on which I presented my article , "What Do We Owe Future Generations?" In one or more future posts, I hope to do some justice to a number of the other papers presented at the symposium. My interest in the fundamental question of intergenerational justice arose from being a macroeconomist who studies fiscal policy (deficits, debt, taxes, spending, etc.). We always talk about fiscal policy as being good if it makes future generations better off and bad if it leaves them worse off. A few economists, especially the late (great) Robert Eisner...

On Friday, I'll be one of three commentators on a Cornell Law School panel discussing the new book by Larry Alexander and my colleague Emily Sherwin , Demystifying Legal Reasoning . In addition to the authors, the other commentators will be Heidi Hurd and Fred Schauer . The book is organized around the provocative idea that there is nothing distinctive about legal reasoning as such. In common law cases, the authors say, judges either make discretionary decisions based on all-things-considered normative judgments (sometimes accompanied by the promulgation of a rule) or follow rules. In cases involving the interpretation of an authoritative text (including a precedent that has the force of law), courts simply seek the intent of the lawmakers in the same way that in ordinary discourse, people try to discern what other people intend by the words they use. Thus, say the authors, because laypeople know how to do all-things-considered normative reasoning and also know how to make...

Last week, I blogged about the forthcoming Cornell Law Review article by Paul Carrington and Roger Cramton, arguing that responsibility for selecting the Supreme Court docket should be reassigned from the Justices (and their law clerks) to a special division within the Supreme Court made up of rotating experienced circuit court judges. As I explained then, there may well be some merit to the proposal, although it's not clear that it would address what Carrington and Cramton believe ails our legal system, namely a too-confident Supreme Court that makes too much constitutional law (whether liberal or conservative). The live proceedings on the topic last week more or less confirmed this analysis, with the two responders making variations on this point (per their written papers). Here I'd like to pile on with an afterthought to my post yesterday about litigating same-sex marriage issues. There I observed the difficulty that civil rights organizations have in controlling the ti...

My column on FindLaw today discusses the case of District Attorney's Office v. Osborne , on which the United States Supreme Court recently granted certiorari. The Court is set to decide whether a man who has already been convicted of a crime (in Alaska) has the right to access physical evidence from the crime scene to perform a DNA test, at his own expense, which was not technologically available at the time of trial. In the particular case, the man was convicted of a brutal rape and kidnapping, crimes to which he later confessed at a parole hearing, indicating that he had also confessed the truth to his mother. My column addresses the question of why a prosecutor would want to prevent access to physical evidence for DNA testing, when the testing will cost the government nothing and could resolve any residual doubt. I pose a number of possibilities and conclude that it is the psychological phenomenon of "denial" that accounts for a prosecutor's resistance to DNA ...

Suppose you were the czar of civil rights litigation for the LGBT community in America. What should your strategy be with respect to federal equal protection clause challenges to state laws forbidding same-sex marriage? Here are a few considerations: 1) The first state high court to suggest that laws restricting same-sex marriage deny equal protection on state constitutional grounds was the Hawaii Supreme Court in 1993. The ruling was never implemented, however, because the people of Hawaii overturned the decision by state constitutional amendment, although not before it inspired the odious federal Defense of Marriage Act. Subsequent decisions recognizing either fully equal rights under domestic partnership laws or marriage itself have been coming out of the state courts since then, along with decisions and ballot initiatives going the other way. 2) Given that the issue has been in the courts for over 15 years already, it's quite remarkable that no one has yet successfully brou...