Dorf on Law

The most important provision of the Constitution is the one giving each State an equal voice in the Senate. How do we know? Because while everything else in the Constitution can be amended by a 2/3 vote in each house of Congress followed by ratification by 3/4 of the States, the Constitution provides a special rule for equal representation in the Senate: "no state, without its consent, shall be deprived of its equal suffrage in the Senate." And yet, there is poor Minnesota, which for all of the current session of Congress thus far, and potentially for months to come, has had but one Senator, while the courts sort out Norm Coleman's challenge to Al Franken's razor-thin victory. Mostly this is a problem for the Democratic Party, which would have 57 Senators if Franken were seated. Add in the two Independents who caucus with the Democrats---Bernie Sanders, who is effectively a Democrat, and Joe Lieberman, who is pretty close on most issues---and that would mean that ...

Earlier this month, the premier of China gave a speech in which he expressed concern about the management of the U.S. economy. In the context of his country's holding of over a trillion dollars in U.S. Treasury securities, the remarks were widely seen as saying, in effect, "We own you now. Do what we tell you or we'll cut you off. Then you'll really be in trouble." Despite plenty of evidence that the Chinese leader's comments were bluster and aimed at his domestic political audience, this story has gained some currency in the U.S. The comments were immediately seized upon by U.S. pundits, politicians, and others to support their contentions that U.S. fiscal policy must become more "responsible" by reducing U.S. deficits and debt as soon as possible. Shortly after his remarks were reported here, I attended a conference on budget policy in which people discussed the "warnings" as if they were important. Last night, by chance I watched ...

Did you hear that the Big East conference has four teams in the Elite 8 of the NCAA Men's Basketball tournament?! Did you know that no conference has ever put four teams in the Elite 8 in the history of the tournament?!?!?!! Are you excited? Neither am I, except that this gives me another opportunity to rant about the inability of people to understand simple math concepts. It's not that there aren't four Big East teams in the regional finals. There are: Louisville, Connecticut, Pittsburgh, and Villanova. The relevant fact, however, is that there are currently a total of 16 teams in the Big East, whereas no other power conference has ever had more than 12 teams. The previous record for one conference putting teams in the Elite 8 was three. Sixteen is to twelve as four is to three. (Sorry, I couldn't resist.) In fact, when the Big East put three teams in the Final Four of the men's basketball tournament in 1985, there were only nine teams in the conference (a...

To defend his off-the-cuff charge that Justice Scalia is homophobic, Barney Frank points to Scalia's dissents in Romer v. Evans and Lawrence v. Texas . Scalia's rhetoric in those opinions indicates, according to Rep. Frank, that Scalia does not simply take the view that the Constitution is silent with respect to gay rights---a position that a reasonable person could take on strictly jurisprudential grounds---but that on policy grounds Scalia favors laws that discriminate against gay people and criminally punish same-sex sexual relations. To drive home his point, Frank contrasts Scalia's views with those of Justice Thomas, who wrote in his dissent in Lawrence that he regarded the Texas anti-sodomy law as "silly," and would vote to repeal it if he were a legislator, but that the law is not unconstitutional. (Thomas's somewhat odd choice of the word "silly" was a result of the fact that he was quoting Justice Stewart's dissent in Griswold v. Co...

On Tuesday, the Supreme Court heard oral argument in Citizens United v. FEC , which presents the question whether the McCain-Feingold law (or "BCRA" for Bipartisan Campaign Reform Act) validly applies to forbid the use of general treasury funds of corporations and labor unions for such political documentaries as Hillary The Movie . Citizens United, a non-profit corporation, sued the FEC to enjoin the enforcement of the law against its film, which the 3-judge federal district court that heard the case described as follows: "[ Hillary ] The Movie is susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her. [ Hillary ] The Movie is thus the functional equivalent of express advocacy." (The district court opinion is available here ; other documents in the case are available here .) P...

Last week, the Federal Reserve announced that it would buy a little more than $1 trillion of Treasury bonds as a means to revive the economy. This is such a challenge to the conventional wisdom that many people -- even those who ought to know better -- have made it sound as if there is something nefarious going on. For example, the usually very sober Edmund Andrews, a NYT business columnist, described the Fed's policy as "a tactic that amounts to creating vast new sums of money out of thin air" and "using its authority to create new money at will." Yes, it is. On the other hand, that's always the essence of money creation. The current situation is dire, and the Fed is responding (finally) in an appropriate way. Here, I'll briefly explain the process and then discuss the merits of the Fed's move. The Fed is the central bank of the United States. (It is called the Federal Reserve rather than the Bank of the United States because of political o...

Long before he disgraced himself as Client 9, Eliot Spitzer made a name for himself as a result of his aggressive role as New York Attorney General in investigating and prosecuting corporate misdeeds. Some conservatives complained that Spitzer, in tackling issues of national moment, was overstepping his authority. Progressives responded--rightly in my view--that there is concurrent jurisdiction between state and federal authorities for many of the sorts of actions that Spitzer was targeting. Federal securities laws operate on top of state corporate law, and so Spitzer was acting within his rights in taking actions designed to protect the shareholders of corporations that did substantial business in New York State. Somewhat more controversially, it was sometimes suggested that lax oversight by the SEC and the Bush Administration warranted Spitzer's efforts to fill the regulatory void. That was a more controversial defense because it suggested that Spitzer was using his state po...

My latest FindLaw column looks at two cases involving the rights of minors in public schools---one a flag salute case and the other the strip-search case currently pending before the U.S. Supreme Court---and argues that courts and others ought to resist the temptation to see children's rights as simply a proper subset of adults' rights. I explain that children are not simply miniature adults; rather, they have (on average) different capacities and vulnerabilities that sometimes warrant fewer rights but may sometimes warrant more or at least different rights. Here I want to briefly explore a point sometimes made by the Supreme Court in its more liberal rhetoric involving the rights of schoolchildren. The argument goes like this: An important function of education is to prepare the future adult for citizenship; citizens must learn how to assert and exercise their rights responsibly; they can only learn this lesson by living it; and thus, children should be given the maximum pr...

There's much buzz about the Bill of Attainder Clause of late. (Actually, the Constitution has two such clauses, one in Art. I., Sec. 9, which applies to the federal government, and another one in Art. I., Sec. 10, which applies to the states.) H.R. 1586 ---the bill passed by the House that taxes bonuses paid by major recipients of TARP funds at 90%---certainly smells like a bill of attainder, although it could survive constitutional scrutiny either on the ground that the tax is not a punishment or on the ground that the bill doesn't single out a particular person or corporation. Whether H.R. 1586 is punishment is largely a matter of intent, and while everybody knows that the House was hopping mad when it passed H.R. 1586, that may not be enough to have a court deem the bill a punishment (should it be enacted and challenged). The law's defenders would simply say that what Congress was hopping mad about was the unjust enrichment of the bonus recipients, and that the bill ...

Pop Quiz: Who remembers why MoveOn is called MoveOn? Answer: The organization started in 1998 as a movement of political progressives and moderates who were appalled by how the efforts to impeach President Clinton were consuming Washington and thus preventing any progress on the country's real problems. The proposal of those early Moveon members (of which I was one) was this: Congress should pass a resolution censuring Clinton and then move on to the country's real business. If MoveOn were true to its roots, it would surely be arguing today that Congress ought to quickly announce some symbolic denunciation of excessive performance bonuses to people who work for companies receiving federal bailout funds and then move on to the pressing business of rescuing the global economy from what could well be a depression. As Neil explained , the outrage over the AIG bonuses is largely misdirected. But even if we credit the narrative that the AIG financial products division was unusuall...

In Survival of the Sickest , Sharon Moalem argues that contemporary human (and other animals') susceptibility to disease typically reflects adaptation strategies of our ancestors to different conditions. It is widely known, for example, that the greater susceptibility of persons of African descent to sickle-cell anemia was an adaptation that enabled their ancestors to survive malaria. The gene for sickle-cell anemia looks like and is a misfortune for people living in societies with means to combat malaria, but it can be a blessing for those who are otherwise vulnerable. Moalem shows how a great many of our genetic predispositions to disease have this feature. Among Moalem's most interesting observations is a point he makes about pathogens. He explains how it is not generally in the "interest" of a parasitic organism (such as a virus or bacterium) to kill its host. By this measure, the common cold viruses are remarkably successful. By evolving into mere nuisances...

The news this week is all about bonuses and "retention payments" at AIG. Public outrage over the ongoing series of bailouts is currently focused on bonuses paid to employees of AIG's division that is viewed as having caused the crisis at their company -- a crisis that must now be mitigated by government intervention and public money. The underlying problem at AIG, however, remains in the background. By reading various news accounts and watching cable news, all we appear to know at this point is that "the insurance giant AIG" (which has become the company's semi-official name) engaged in a bunch of complicated deals that went bad. As I noted at the end of my post on Tuesday, tucked inside the excellent work that Jon Stewart has done on "The Daily Show" to expose the poor journalism and hucksterism at CNBC was an interview with Joe Nocera of The New York Times, whose Feb. 27 column on AIG purported to explain the "scam" that AIG had ...

Over on FindLaw, my latest column recounts my own experience as a crime victim and witness in Los Angeles many years ago in the service of examining better and worse ways of handling eyewitness identifications. I also discuss, and include a link to, interesting work by Gary Wells. Posted by Sherry Colb

A NY Times story recounts the problem of jurors using PDAs when in the courtroom---and home computers when out of court but not sequestered---both to find out information on the case that is not formally part of the evidence and to post info about the case to others (via email, twitter, etc). Both such activities violate the jurors' obligations. The article mentions two things courts can do to stem the tide of outside influence and communications to the outside world: 1) Issue warnings with better explanations for the prohibitions; 2) Confiscate PDAs and cell-phones. Presumably number 2 would be necessary for those undeterred by the better explanations of number 1, and for this incorrigible lot, one would have to think about greater use of sequestration. An additional option would be to increase the penalties for jurors who seek outside info or transmit confidential info during the course of the case. Voir dire could also seek to weed out crackberries and the like---althoug...

The exchange between Jon Stewart and Jim Cramer ended last Thursday night with an appearance by Cramer on "The Daily Show" that was fascinating (though squirm-inducing). Stewart was as well prepared for the interview as any prosecutor, with video clips assembled to refute every excuse that Cramer might offer, turning an interview that initially looked like it might be a non-event into a relentless cross-examination that left Cramer deflated and obviously just hoping that it would all be over soon.  I have often faulted Stewart for being too soft on his guests, so this was an especially pleasant surprise. The substance of Stewart's case against CNBC was that the network and its anchors consistently present themselves as being some combination of journalists and financial experts, when in fact they are neither. (He also reminded Cramer that CNBC was the subject of his critique, with Cramer only being one part of the parade of clowns.) They are, instead, entertainers w...

A panel of the Ninth Circuit issued a noteworthy Endangered Species Act decision yesterday. The case involved the government's use of hatchery-reared salmon when assessing salmon populations for listing and other status changes under the ESA. Counting hatchery salmon can be either more or less protective of natural salmon populations, depending on how and when it is done.) Keith Rizzardi beat me to the punch with a post about it on his excellent ESA Blawg here . Here, I'll just note that the essence of the holding is this: human-raised fish are as good under the Endangered Species Act as are "natural" fish if the "expert agency" says they are . . . because Congress has never said otherwise. Given the realities of Pacific Northwest habitat declines, my prediction on hatcheries: "here come more fish." Posted by Jamie Colburn

Having posted an explanation for Bernie Madoff's crimes last week, I thought I'd continue in my role of devil's advocate by taking President Obama's announcement of the new government policy on embryonic stem cell research as an opportunity to reflect on the wisdom, such as it was, of the prior policy of President G.W. Bush. Just a month before 9/11 transformed his Presidency, Bush's August 2001 speech on stem cell research was billed by the White House as a watershed moment, one that would show the seemingly callow President to be a Marcus Aurelius of the 21st century, as he wrestled with a great ethical challenge of the day. Bush began by describing his process of consultation with the great minds of science and philosophy. He then boiled down the issue to two questions: First, are these frozen embryos human life and therefore something precious to be protected? And second, if they're going to be destroyed anyway, shouldn't they be used for a greater ...

( Cross-posted from SAJAforum ) Via Reuters (and Sadia Abbas), some breaking news from Pakistan: The Pakistan government agreed on Monday to reinstate Iftikhar Chaudhry as Supreme Court chief justice to end a political crisis that has gripped the Muslim nation, a government official said. The official added that a constitutional package would also be presented. President Asif Ali Zardari had hitherto stonewalled calls from the opposition led by former prime minister Nawaz Sharif and a lawyers' movement to restore the judge. Chaudhry was dismissed in late 2007 by then-president and army chief Pervez Musharraf, but Zardari regarded the judge as too politicized and feared he could pose a threat to his own presidency if restored. [ link ] No solid confirmation as yet, but Prime Minister Yousaf Raza Gilani is scheduled to address the nation shortly . Watch a live stream from Samaa TV (Urdu) here: Some links to other Pakistani television news streams: Geo Dawn News (English) Dunya News ...

The news that the Obama Justice Department will no longer rely on the President's supposed inherent Commander-in-Chief authority and will no longer use the term "enemy combatant" to refer to detained persons would have been a big deal had it not come long after Supreme Court decisions that basically required as much. In response to the earliest challenges to its power to hold war-on-terror detainees, the Bush Administration originally asserted sweeping powers, but those were effectively cut back by the Supreme Court to more or less where the current Administration would set them. Attorney General Holder's memo makes much of the fact that the Obama Administration will rely on the September 2001 Authorization for the Use of Military Force (AUMF) as the source of its power to detain, but of course, the Bush Administration consistently said much the same thing. Indeed, Justice O'Connor's most quoted line in her 2004 plurality opinion in Hamdi v. Rumsfeld --...

I must say that I find the whole notion of Twitter more than a bit silly. I certainly hope that it doesn't come to replace other forms of information dissemination, lest we end up in the dopey dystopia depicted here . But as a means of promoting actual news and analysis, I suppose Twitter is marginally useful. And thus, I have taken the plunge and put Dorf on Law on Twitter. Click here to subscribe to my tweets. I'll tweet whenever I have a new post (although I can't promise that my co-bloggers all will). How will this be useful, you ask? I can't honestly say it will be, except perhaps if you're an email subscriber who doesn't like to go to the blog directly but does follow Twitterers (tweeters? nitwits?). Then you can see exactly when a post has gone up, without having to wait for it to appear in your a.m. inbox. Like I said, more than a bit silly. Posted (and tweeted) by Mike Dorf

Perhaps it's fitting that Pakistan's latest crisis has come just as the television series Battlestar Galactica (whose final episode airs next week) is drawing to a close. Between the Musharraf Supreme Court's controversial decision to declare Pakistan Muslim League-N leaders Nawaz Sharif and Shahbaz Sharif ineligible to hold public office, President Asif Ali Zardari's decision to crack down on the lawyers' movement and other opponents, and the State Department's apparent decision, at least initially, to respond to the crisis somewhat tepidly , one is left, wearily, with the irresistible sense that all of this has happened before, and all of it will happen again. To refresh our collective recollection, Zardari's ascent to power last September came on the heels of an unprecedented movement in which Pakistan's lawyers and ultimately its electorate decisively rejected then-General-cum-President Pervez Musharraf's interference with the independence of ...

I was recently going through some files and found an essay by the economist Jeff Madrick in the New York Times with the provocative title: "Market messes happen. And inefficiencies have consequences." Discussing the orthodox view that financial markets efficiently process all information and thus correctly set the prices for financial assets based on available information, Madrick noted that "economists are increasingly challenging the orthodoxy. A growing number argue that according to the best new evidence, financial markets do not appear all that efficient after all." If markets are not as efficient as economists generally thought, he continued, "speculative and dangerous stock market bubbles are entirely possible and even likely, ... the federal authorities must remain vigilant about the complete and open flow of information, and ... the stock market does not necessarily allocate capital investment to the right places." At this point in the financ...