Dorf on Law

The criticism of the decision by AG Holder to open an investigation into possible criminal wrongdoing by CIA agents (and contractors) who went beyond the advice of the Justice Dep't in their use of allegedly illegal methods of interrogation has thus far come in two main forms: 1) There has already been a thorough investigation that led to discipline, and so this further investigation is akin to double jeopardy ; 2) Distracting the CIA from its mission by "looking back" rather than forward will undermine national security and is, in any event, inconsistent with the Obama Administration's stated desire to turn the page on these matters. This second point is typically accompanied by the claim that Holder cannot be acting truly on his own. Here I'll raise another point that has gotten some play, but not nearly as much as it probably deserves: The possibly illegal acts--mock executions, threatening detainees families, running a power drill next to a detainee's hea...

In his 1999 book, The Dignity of Legislation , Jeremy Waldron offered a deliberately idealized picture of the process of legislation to compete with the idealized pictures of judging that one typically encounters in academic jurisprudence, and to serve as an antidote to the cynical view of legislatures as nothing but places in which log-rolling, deal-making, and the pursuit of special interest prevail. As the title suggests, Waldron aims to develop an account of legislation that explains its dignity , that is, that says why this form of lawmaking commands respect. I am not wholly sold on Waldron's affirmative project (and I am not at all sold on his negative project, i.e., his spirited critique of judicial review), but I do think that his view serves as a useful counterpoint to the "public choice" view of legislation. To his theoretical exegesis we might add that particular, public-spirited legislators serve as counter-examples to the public-choice model. I would ventu...

It's now available here . I come on just before halfway into the show. The first half of the show is quite interesting too. Posted by Mike Dorf

In my FindLaw column this week (posted here ), I step away from the public vs. private insurance debate and analyze critics' claims that the Democrats' plans for health care reform will result in "rationing" of medical care. The answer is that there will indeed be rationing, but it will not result from any reform that might be enacted this year. Rationing is a fact of life in every economy, capitalist or otherwise, and it is certainly a part of the health care system that we have today. If by rationing people mean that they might find themselves wanting care and being told that they cannot get it, then that is surely a possibility in any system of medical care that we might adopt -- but it is a cold reality for tens of millions of people today. Whenever a political debate begins to focus on the definition of a single word, there is always the danger that the word will be defined into oblivion. Thus, years ago during the Carter administration, Andrew Young, an Afr...

Later tonight, I'll be talking about the Davis case on the San Francisco-based call-in show, Live from the Left Coast with Angie Coiro , roughly at 6:30 pm Pacific/9:30 pm East coast this evening. You can listen live at 960 am in SF or over the web . Update : That was interesting, at least for me. The podcast will be available tomorrow. I'll post a link then. Meanwhile, the column got picked up by Mark Cuban on his blog . Now the question is how I can cash that in for courtside tickets to the Knicks-Mavs game in Madison Square Garden on Jan. 24! Posted by Mike Dorf

In my latest FindLaw column ( here ), I ask whether the Supreme Court’s order in the Troy Davis case recognizes a constitutional right of an innocent person---whose trial was not infected by a constitutional error---not to be executed. My conclusion: Maybe, depending on what the Court does if and when the case comes back. Here I’ll address an issue I don’t cover in the column: Why, exactly, does the Supreme Court’s order of an evidentiary hearing focus on “whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence?” First, we need to understand what even counts as new evidence. In Davis , the core argument is that the government’s case relied on witnesses who, under pressure from the police and prosecutors, said that they saw Davis commit the murder but in fact did not. Now, in some sense that evidence could have been obtained at the time of Davis’s trial: The witnesses could have said at that time that they were lying. But...

With recent polls showing Americans beginning to turn against the war in Afghanistan, and U.S. military leaders saying that the Taliban is gaining, rather than losing strength, the Obama Administration has reason to worry about the possibility of a substantial gap between the troop levels the public will support and the troop levels needed to defeat the insurgency (assuming it can be defeated). These issues of politics and military tactics go beyond my expertise as a constitutional lawyer, although I have views about them as a citizen. Here I want to raise what is at least partly a legal question: At what point, if any, will the war cease to be legally authorized? There is an international dimension and a domestic dimension to that question. As a matter of international law, the U.S. (joined by NATO allies) justified its attack on the Taliban government of Afghanistan in late 2001 as self-defense in response to 9/11 and the Taliban's refusal to turn over its Al Q'aeda perp...

During 2009, the pattern on Dorf on Law has been for Mike Dorf to post five or six times in each two week period, for me to post four times every two weeks, for Sherry Colb to post once every two weeks, and for the other co-bloggers to post on an ad hoc basis. As of this week, I am joining Professors Colb and Dorf as a regular columnist on FindLaw . After some discussion, we have decided that I will henceforth post once each week (usually Thursdays) on Dorf on Law, with Mike and other co-bloggers picking up the extra slot each week. This can change, of course, if I happen upon any examples of people mischaracterizing the estate tax, or saying good things about 3-D movies, requiring an immediate post on Dorf on Law. -- Posted by Neil H. Buchanan

This week 1Ls at Cornell and other law schools begin their legal studies. Still other schools may have started already or will soon. Here I'd like to dispense a bit of advice to the entering 1Ls about how to understand the adventure on which they are embarking. First, let me plug some of my older work. Here you can find a 2001 essay on the Socratic method and thinking like a lawyer, in which I argue that there is nothing especially distinctive about legal thinking. Here you can find a mostly tongue-in-cheek summary of the first-year curriculumn. And here you can find a 2005 essay, written on the occasion of the Harriet Miers nomination to the Supreme Court, summarizing my own subject, constitutional law, in a bit more detail. Now onto a new observation. (New to my writing, that is. I have made these points in welcoming sessions to 1Ls before, and it's quite possible others have said similar things). I want to address the question of what it is, exactly, that you'r...

[Note from Mike Dorf: The following post by Sherry Colb went up virtually simultaneously with Neil Buchanan's post yesterday morning due to a scheduling mix-up on my part. In case it was missed, I'm moving it up the page for a bit. Please note also that this means that the reference in Paul Scott's post to Sherry's post "below" now refers to this post, which is above. So many bloggers; so little room . . . .] In recent posts, there has been much discussion about whether it might be morally acceptable to consume animal products if their production involved death but not suffering. The realities of agriculture, of course, have nothing to do with painless or cruelty-free death, whether one is consuming "cage free" or "organic" animal products or factory-farmed versions of such products. (For a useful antidote to "cage-free" and other such claims about humanely raised animals, read this ). But some argue that due to (hypothesiz...

On Monday, the Supreme Court took the highly unusual step of (sort of) granting an "original" habeas corpus petition, i.e., a petition filed directly with the SCOTUS rather than coming up through the lower federal courts. The Court sent the case of Troy Davis to a federal district court in Georgia for an evidentiary hearing into whether Davis, who is on death row, is innocent of the murder for which he was convicted. (Most of the key witnesses have recanted.) The Court's terse order produced a sharp disagreement between Justices Scalia and Thomas, who dissented from it ( here ), and Justices Stevens, Ginsburg and Breyer, who endorsed it ( here ). I'll have a FindLaw column up on the case next week, but for now I want to flag one special peculiarity of the case. (The case is described ably here .) In the course of responding to Justice Scalia's claim that one of the limitations of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") would bar...

Over the last week there has been much talk on this blog regarding the moral obligations we, as human animals, have to non-human animals. One line of argument against an obligation not to kill non-humans has rested on the factual assumption that nearly all non-human animals do not and cannot experience the world as we do. I share the view (expressed by Mike in a post and in the comments) that even if this were true, there would still be other, morally sufficient grounds for not consuming animals and animal products, but here I want to explore a question about this and other factual assumptions, and where the burden of proof should rest. Science, historically, has to take some of the blame for the tendency to assume important distinctions between humans and non-humans. In its early, but still modern, days there was a strong rejection of any anthropomorphism. This principle was reasonable in its day. As a field, modern biology and behavior were in their infancy and genetics did not ...

Earlier this week, in " Where Are Those New Ideas? " I looked at some tax policy proposals from Newt Gingrich's advocacy group, Freedom for American Progress in the Future of Liberty and Apple Pie (or something like that). In part, the point of the post (as indicated by its title) was to say that nothing from the man whom even liberal pundits call "the idea guy" could plausibly be called a new or innovative idea. It is all just more attempts to cut taxes on capital and, more broadly, on high income people. At the end of the post, I also pointed out that even the aspect of Gingrich's proposal that seemed to be "populist" -- cutting payroll taxes (Social Security and Medicare) in half for two years -- was actually just a way to rewrite ex post the stimulus bill (which, we must recall, was re-drafted to include large elements of tax cuts in a vain attempt to get broad bipartisan support) to turn spending into yet more tax cuts. A comment on that p...

In my FindLaw column today, I write about the upcoming companion cases of Graham v. Florida and Sullivan v. Florida, which challenge the constitutionality of sentencing juvenile offenders to life imprisonment without the possibility of parole. In my column, I suggest that the case against such punishments, taken in isolation, is weak, although the broader argument against long prison sentences (for adults and juveniles alike) is far stronger. I want here to explore the special feelings that juvenile imprisonment inspires. When we speak of sentencing a minor to life imprisonment, I think that part of what we find upsetting is the picture of a child in prison. To state it differently, when we see a picture of a 14-year-old and learn that he or she has been sentenced to life without parole, we feel a sense of sadness and empathy for the 14-year-old rather than for the adult that he or she will soon be. This poses a problem for advocates of abolishing life without parole for juveniles...

At the end of June, I published a post in which I marveled at Newt Gingrich's reputation as a guy with a lot of ideas, even though there is precious little evidence that he has ever had an innovative idea in his life. Once a media narrative is put in motion, however, it is nearly impossible to dislodge it. We can, therefore, count on being treated to regular reminders of what a smart guy he is, even though he seems to spend most of his time on TV talking about "death panels" and peddling other outright lies and distortions. Possible evidence to the contrary did, however, show up on the TaxProf blog recently. It seems that Gingrich's new lobbying organization (which has one of those generic names beloved on both sides of the aisle in Washington, combining -- seemingly at random -- words like "future" and "solutions" and "American," but somehow skipping over "freedom" and "liberty" and "progress") has star...

[Here's some follow-up on the exchange over what counts as harm to sentient creatures, courtesy of my colleague Bob Hockett ]: I’ve been following the recent exchange on the morality of veganism with interest, and thought I might offer my own two cents’ worth. Please pardon if the actual value of this contribution falls below stated par. For the moment I’ve got three quick comments to offer, two of them fairly narrow in scope, the other a little bit broader. Perhaps there will be more to say later. The first narrow comment is probably the one most worth making right now. It is that agreement appears very broad on the proposition that it is wrongful to inflict readily avoidable suffering on sentient creatures, and that this is so irrespective of the biological species that those creatures represent. Many who are vegetarian, vegan or veg-symps, in turn, observe among other things that the means by which we “produce” animal products for human (and pets’) consumpt...

In my recent post on Brian Leiter's post on veganism, I took issue with the distinction Professor Leiter drew between "synchronic" well-being and "diachronic" well-being. In his post, Leiter had characterized the former as "constituted by pleasant and unpleasant experiences at particular moments," and said that most non-human animals (perhaps excepting elephants) were merely synchronic. I attempted to strip away the jargon by simplifying this to the two-fold assertion that: 1) non-human animals live only in the moment; and 2) that therefore we do them no harm by killing them painlessly. I contested point 1) as factually inaccurate and then went on to note that even if 1) were true, in fact the overwhelming majority of animals that are exploited and consumed for food and clothing are not killed painlessly and are badly mistreated for just about their entire lives. In the comments on my post, Leiter contended that I simply did not understand the dis...

[Update: This is the same post as earlier but it got pushed down the page with the discussion of the Leiter poll on veganism, so I'm pushing it back up.] Last week, Charlie Savage reported in the NY Times that the Obama Administration is using signing statements in more or less the same way that the Bush Administration did: To declare its intention not to enforce or abide by what the Administration considers to be unconstitutional provisions of Acts of Congress. Is the charge of equivalence fair? Perhaps not. As Savage notes, Walter Dellinger, who was responsible for President Clinton's policy on signing statements, has taken the position that mostly what Bush did wrong was to invoke very bad constitutional objections. Even during the Bush years, Dellinger and others, some of whom now serve in the Obama Administration, defended the notion that the President could judiciously use signing statements to signal his intention not to enforce or to comply with truly unconstitution...

Brian Leiter has reported the results of his poll about attitudes towards veganism (parodied by me here ), along with his own view. He says, wait for it . . . wait for it . . . vegans should be tolerated but they're making a moral mistake. Why? According to Leiter, because most non-human animals "live in the moment," and so using them in ways that don't cause them to suffer pain does them no harm. Here is a brief response: 1) There is very little evidence that non-human animals with central nervous systems in fact "live in the moment," nor is it even clear what that could mean, as time as experienced by living beings is not quantized. Even so-called "momentary" pains and pleasures have extension over time. In any event, Leiter appears to concede that it is an empirical question which animals fall on the "live in the moment" side and which fall on the extended consciousness side with humans and elephants. But given the common ance...