Dorf on Law

By Mike Dorf The Pentagon Papers Case is remembered mostly for what it held--that the govt was not entitled to enjoin publication of the Pentagon Papers, even though they were illegally divulged by Daniel Ellsberg, because the govt's general assertions of a national security interest did not justify a prior restraint.  Yet implicit in that holding was the possibility that in a case in which the govt did make a sufficient showing of a particularized national security risk, it could get an injunction.  Here I want to consider the application of that tacit principle to WikiLeaks. To begin, the internet/offshore nature of WikiLeaks means that, as a practical matter, injunctive relief would be pointless.  The operators of WikiLeaks would not obey an injunction and they may be beyond the jurisdiction of U.S. courts.  However, suppose that someone connected with WikiLeaks were to come into U.S. custody.  Would the First Amendment bar his prosecution or civil lia...

By Mike Dorf My prior post on "constitutional polymorphism" inspired some vigorous challenges in the comments.  After briefly summarizing them, I want to offer what I now regard as a better example than the one I gave earlier in the week.  In a third (and probably final) post on this subject next week, I'll connect my thoughts on polymorphism to the "new originalism." Recall that "polymorphism" refers to the idea that a single word or phrase in a single statute or constitutional provision might mean different things in different contexts.  Justice Scalia has attacked polymorphism in statutory interpretation but, as I noted in Monday's post, Jon Siegel wrote an excellent article explaining both that it is not novel (as Scalia claimed) and that it can sometimes be normatively justified.  I suggested that polymorphism may provide a good account of how it is that the Senate's role in confirming executive officials is to defer substantially to ...

-- Posted by Neil H. Buchanan At the beginning of this month, I wrote a column for FindLaw ( here ) discussing the easy case for extending unemployment benefits for the long-term unemployed. Shortly after I wrote that column, I was contacted by a producer at a public radio station in Wisconsin. He wanted me to appear on an on-air debate program to argue against an (to that point unnamed) opponent of extending unemployment benefits. Last week, I was contacted by a producer at another public radio station, this one in New Hampshire, who asked me to do the same thing. In both cases, I declined. Here, I will discuss the very difficult question of whether to engage in a public debate, when the underlying issue is completely one-sided. First, however, it is worth recalling why the underlying issue -- the extension of long-term unemployment benefits (which have finally been enacted, over the objection of Senator Ben Nelson as well as every Republican Senator not from Maine) -- is a non-q...

By Mike Dorf In my latest FindLaw column , I discuss Lindsey Graham's speec h last week explaining why, despite disagreeing with Elena Kagan on issues and philosophy, he would vote to confirm her.  In a nutshell, Graham says that the proper role of the Senate in judicial confirmations is to check the nominee's professional qualifications and character, but not his or her substantive views.  I argue that Graham's approach is certainly a legitimate one with a respectable tradition, but not, as he says, the only approach permitted by the Constitution.  In the course of examining Graham's argument, I explain that one reason his invocation of Alexander Hamilton's views from Federalist No. 76 appears misplaced is that Hamilton was talking in the relevant portion of that essay about the role of the Senate in confirming executive officials, not judges or Justices.  It's appropriate, I say, for the Senate to apply more substantive standards when considering nomination...

By Mike Dorf A front-page story  by Adam Liptak in yesterday's NY Times explains that the current Supreme Court is more conservative than at any time in decades.  Although that is the headline and the subject of about half the story, the other half is essentially a summary of the findings of political scientists who study the Court by coding decisions as conservative or liberal.  Liptak either quotes or cites all but one of the leading poli sci "attitudinalist" (the exception being Jeff Segal ) and though he also mentions criticisms of the attitudinalists' methodology, he notes that these are marginal quibbles and that "the measures are generally accepted in the political science literature."  That is a fair characterization--although potentially a misleading one because the attitudinalists' measures and findings are generally not accepted in the legal academic literature.  They are generally (though not invariably) ignored by legal academics. To b...

By Mike Dorf From the Department of Shameless Promotion, I have the following announcements: 1) As in past years, I'll be appearing again as a panelist at the annual Supreme Court roundup session of the Practicing Law Institute.  The program is all day August 3 in PLI's midtown office, and features a star-studded lineup (Erwin Chemerinsky, Tom Merrill, Drew Days, Sherry Colb, Jeff Toobin, Joan Biskupic, Burt Neuborne, Marty Schwartz, Leon Friedman, and for comic relief, moi.)  PLI is a non-profit provider of Continuing Legal Education.  If you can't make the live session, you can listen in via the live webcast .  And there are full and partial scholarships available for academics. 2) Tired of your legal analysis in complete sentences?  Follow FindLaw's Writ via Twitter .  There's also a Facebook page .  Both are just getting going so neither yet has the following of Shitmydadsays , but give it  time.

-- Posted by Neil H. Buchanan Two years ago tomorrow, I posted " Meat, Dairy, Psychology, Law, Economics " on this blog, discussing my decision earlier that week to become a vegan. I wrote a follow-up post a week later, discussing the important work of animal rights lawyers, in particular that of my colleague Joan Schaffner at GW Law School. Last July, on the first anniversary of becoming a vegan, I posted some thoughts on the nuts and bolts of being a vegan, reflecting on my first year of refusing to support in any way or participate in the torture and killing of sentient beings. Now that another year has passed, I thought I would offer a few more thoughts on being what one might call a "pedestrian vegan," that is, someone who strongly believes in and acts upon the moral implications of recognizing animals' right not to be exploited for any reason, but who does not write in an academic or professional capacity about vegan issues. I am glad that Professo...

By Bob Hockett Give the Republicans credit, they’ve got me thinking. I’m thinking there’s too much socialism in this country. Socialized army, socialized air force, socialized NASA. Socialized navy, marines, coast guard. Socialized CIA. Socialized FBI, socialized Drug Enforcement Agency. Socialized Homeland Security. Socialized predator drones. Socialized cops. Socialized courts. Socialized schools. Socialized air traffic control. Socialized money. Heck, even the highways, the roads, bridges, sewage and water treatment plants, you name it – they’re socialized too. And don’t kid yourself that the gas and electric companies aren’t socialist. These regulated monopolies are so heavily regulated, they might as well be called state-owned. And what about that state? It's socialized too, the socialized entity par excellence . What were the Founders thinking, founding a state as they did, hence founding ... socialism?  L'etat c'est moi: that's monarchy.  L'e...

In my column for this week, I analyze an Oklahoma abortion law that protects doctors from liability for failure to disclose fetal anomalies to their patients.  The column discusses the important ways in which such a law differs from the more common abortion legislation (providing for waiting periods, parental consent or notification, etc.) and is arguably more legitimate as a result. In this post, I want to focus on a different Oklahoma abortion law that was passed on the same day as the non-disclosure measure.  This law requires that women seeking an abortion must be shown a fetal ultrasound.  It specifically mandates that a doctor or technician set up the monitor so the woman can see it and describe the heart, limbs and organs of the fetus. There is, of course, a certain irony in Oklahoma's requiring that providers give pregnant patients unwanted information about their fetuses even as it simultaneously protects providers' freedom to conceal other wanted informati...

By Mike Dorf The almost-farcical nature of the Russian spies caught snooping on American suburbia has the potential to obscure what to me is the deeper problem posed by espionage more generally.  Some--including my favorite alarmist Israeli website trading in rumors--have suggested that the spy exchange was merely the tip of an iceberg, and that the clownish spies sent back to Mother Russia are something on the order of decoys. Perhaps, but the deeper problem posed by espionage is, of course, that while it is illegal, just about everyone does it.  To be clear, espionage as such does not violate international law .  Indeed, a case can be made that given the ubiquity of peacetime espionage, customary international law makes it legal.  (For an abbreviated version of this argument, see the Keynote address  to a 2007 symposium on intelligence gathering and international law by Jeffrey Smith , former general counsel to the CIA.  For the full symposium, go t...

By Mike Dorf Law professors and pundits sometimes refer to Supreme Court confirmation hearings as an opportunity to educate the public about the work of the Court.  As I and others have noted, given the posturing involved, the education thus provided is at best uneven.  Nonetheless, confirmation hearings do surface concepts and issues that do not ordinarily register on the public consciousness--matters like stare decisis and the role of history in constitutional interpretation. Other major news events can and do educate the public about other aspects of law, of course.  One thinks about the OJ trial, the Clinton impeachment, etc.  To that illustrious list, I would now consider adding the news coverage of the financial reform bill that President Obama will sign this week.  Having paid reasonably close attention to the coverage of the bill as it worked its way through Congress, I think it fair to say that the public has very little understanding about what the...

-- Posted by Neil H. Buchanan In my FindLaw column this week (available here ), I continue to explore our crazy new world in which deficit-financed stimulative policies are deemed unacceptable, even in the weakest economy in over 70 years. I use a Washington Post editorial from a few weeks ago ( here ) as an especially noxious example of two things: (1) the seething disdain, among adherents to the inside-the-Beltway consensus, toward those who propose further stimulus, and (2) the claim that those who propose stimulus today must prove their seriousness about cutting future deficits by also proposing a long-term deficit reduction plan. The latter argument is an especially odd form of ad hominem attack. The issue, say the Post 's editors, is one of credibility. Why should we listen to someone who has a proposal to solve today's problems, if they have not already come out with a proposal to solve tomorrow's possible problem, too? The silliness of that argument is obscured...

By Mike Dorf In the wake of the collapse of its economy, Iceland is apparently trying to remake itself as a haven for freedom of speech and the press (as reported, e.g., here  and more recently here ).  The island nation is in the process of passing laws that would provide the world's strongest reporter-source shield, prevent the execution of defamation judgments from places like the UK, and generally make the country an attractive locale for outfits like Wikileaks to operate.  This is a quixotic enterprise even if a worthy one. Why quixotic?  Principally because there isn't necessarily a lot of money in being a press haven.  In fact, it would seem quite the opposite.  It's easy to see why the leaders of a country might want to become a tax haven: Attract investment and boost the local economy.  Likewise, a country may seek to become a copying haven through nonenforcement of IP rights.  I think such strategies are probably a bad idea in the l...

By Mike Dorf With the benefit of a bit of distance, I want to discuss an issue that has gnawed at me for some time: What was going on with the lawyers for the Christian Legal Society (CLS) in  Christian Legal Society v. Martinez ?  For a good account of the case, I recommend Vik Amar's FindLaw column (and not just because he credits my "expertly crafted" brief).  As Vik notes in his column, much of the action took place beneath the surface of the case, in two concessions made by the CLS lawyers: first, in the lower courts, they stipulated that Hastings has an "all-comers" policy; and second, at oral argument, Michael McConnell accepted the characterization of the case as falling within the "limited public forum" category.  (He actually said Hastings had created a "limited designated public forum," a term that has not been used by the Supreme Court but that does appear in lower federal court opinions.)  As Vik notes, McConnell might have ...

By Mike Dorf In my latest FindLaw column , I analyze the government's lawsuit against Arizona and the recent D. Mass decisions invalidating Section 3 of the Defense of Marriage Act, as applied to Massachusetts.  I focus on two related issues: 1) How rights and federalism intertwine; and 2) the fact that states' sovereign interests need not be conservative relative to liberal federal policies.  Neither point is especially novel but the juxtaposition of these two high-profile cases nicely illustrates both.  Here I want to raise a somewhat more technical legal point about the lawsuit against Arizona, having to do with the legal standing of the federal government. First, a very brief review of general principles.  Article III empowers federal courts to hear "cases" and "controversies."  That language, along with the background notion of separation of powers, has been the source of a set of modern limits on the jurisdiction of federal courts.  The Constituti...

What follows is Part II of exchanges between Sherry Colb and Melanie Joy, inspired by Professor Joy’s book, Why We Love Dogs, Eat Pigs, and Wear Cows:  An Introduction to Carnism.  (For Part I, click here .) From SC to MJ: Hi Melanie.  I look forward to the longer version, but I wanted to offer a brief response to your email.  I agree that even vegans cannot be “pure” in their veganism if they are to participate as a member of a society in which almost everything includes some incidental animal products or results from animal testing or both.  That just means, though, that even vegans are not perfect (which will not be news to anyone who either is or knows a vegan!).  If one is a vegan, however, one attempts to the best degree possible, to eliminate these products from one’s life and diet.  If one is instead lacto-ovo vegetarian, then one is probably not eliminating these products at all but merely substituting some for others.  For that re...