Did Anything Interesting Happen While I Was Gone?

by Neil H. Buchanan

As I have noted in various recent columns (most recently here), since late January I have been on a semester-long trip to the UK and some other northern European countries.  With my return to the United States scheduled for this coming Monday, this is my last Dorf on Law column from the other side of the Atlantic (for now), which presents an opportunity to reflect on what has happened over the last three months in my home country.

Before getting to those larger issues, I will note that the biggest change for me personally since I left the U.S. is that I have accepted the James J. Freeland Eminent Scholar Chair in Taxation at the University of Florida.  I continue to be excited about this next stage in my career, in particular because UF is giving me the resources needed to continue my research collaborations with scholars abroad while potentially bringing graduate tax students to Gainesville for our top-tier LL.M. and J.S.D. programs.

With my last stop in Europe being Amsterdam, the capital of a country one-sixth of which is below sea level, perhaps this is an apt way to launch my move to the state of Florida, which might soon need to borrow some Dutch technology to keep out the rising ocean waters.  Should I ask around during my visit here?

Unfortunately, as a friend of mine who grew up in the Caribbean (and thus knows something about these things) told me, Florida's land sits atop porous rock, which means that rising seas will simply come up from underneath.  Yikes!  Talk about a time-limited gig.  By the time I leave UF, I might end up moving back to the exciting new Atlantic beaches of Washington, D.C.  Who needed the Chesapeake Bay, anyway?

Although I am very good at denial in some ways, however, I have been insistent on seeing with brutal clarity what is happening politically in the U.S. and elsewhere in the world.  Which brings me back to a reflection on the non-personal issues that have dominated the news over the past three months.  This is an especially important exercise because, as many have noted, the news cycle has become so accelerated that there are very few opportunities to take a breath and think about what has been happening with any sense of perspective.

Trump Lawyers Use "Democrat" as an Adjective: How to Respond

by Michael C. Dorf

On Monday, Donald Trump (in his personal capacity) and various Trump-affiliated companies sued Congressman Elijah Cummings and the Chief Investigative Counsel to the House Oversight and Reform Committee, seeking to block the subpoena issued by the House to an accounting firm demanding various Trump-related financial records. The complaint alleges that the subpoena exceeds the Committee's authority because it is unrelated to any potential legislation.

I am not interested right now in whether the complaint has merit. Rather, I want to focus on the repeated references in the complaint to the "Democrat Party."

Is Nollan Just an Exactions Case? Reflections on Nollan and Horne (Guest Post by Stanford Law Professor Mark Kelman)

by Mark Kelman 

In the canonical case of Nollan v. California Coastal Commission, the Supreme Court held that the California Coastal Commission was obliged to compensate parcel owners who had surrendered a lateral easement across the dry sand adjacent to the sea wall between their home and the ocean only because the Commission conditioned the grant of a building permit to expand their home on the surrender of the easement. The case limits state power in two important, widely recognized ways.  In Takings law terms, a state cannot argue that it has not taken but been granted property when it exploits its power to provide desired but gratuitous benefits to extort “voluntary” transfers; property is taken, not truly granted, unless the permit condition serves the same legitimate policy purpose as a refusal to issue the permit would have served. Read as a case on unconstitutional conditions, Nollan helps fortify the important point that greater powers need not entail lesser powers.  The government cannot make a party forfeit a constitutional right to in order to receive a gratuitous benefit.  Just because State U needn’t grant Professor P tenure, it cannot condition a tenure grant on a free speech restrictive agreement to desist from criticizing the governor; just because the state need not grant a building permit, it cannot condition a permit grant on surrendering ther right to be compensated for a taking.

What we seem to have forgotten, though, is that Nollan did not just limit state power. Properly understood, the Nollan case should be read to protect the state’s flexibility when it is choosing between multiple policy instruments designed to meet the same ends.  What Nollan teaches us is that the state should not choose some particular policy instrument  simply because it will be free from the obligation to compensate if it uses one straightforward regulatory method but not some alterantive method that involves a traditional taking, at least so long as the second policy instrument is Pareto-superior to the first, (not worsening the position of the parcel owner. In Horne v. Department of Agriculture, the Court reads Nollan quite narrowly, as it has generally come to be read, as a case solely about developer exactions, and loses sight of the fact that the case is in significant part about maintaining Takings-law neutrality among Pareto-superior policy instruments that meet the same goals.  The narrow result of the Horne litigation, effectively ending a program of dubious merit, is hardly tragic, but the misunderstanding of the true import of Nollan may be.

Judge Posner, Title VII and Why Sexual Orientation Discrimination is Discrimination Based on “Sex”

By Eric Segall

The United States Supreme Court granted certiorari on Monday in two cases raising the issue whether the federal employment discrimination statute, commonly referred to as Title VII, which prohibits employment discrimination based on “sex,” protects gays and lesbians from discrimination based on their sexual orientation. The lower courts have divided on the issue, and there have been numerous judicial opinions discussing the question. These cases raise important and controversial issues of both public policy and statutory interpretation.

The public policy question, which potentially affects millions of Americans and their employers, is whether federal law provides protection for gays and lesbians from discrimination on the basis of their sexual orientation. The statutory interpretation question is how judges should interpret ambiguous terms in old statutes when we know how the drafters would have interpreted those terms, but society has changed dramatically in the period between the adoption of the law and the present controversy.  

The most honest opinion so far on both of these issues was written by (retired) Judge Richard Posner in an en banc concurring opinion for the Seventh Circuit Court of Appeals (that case is not one of the ones the Court decide to hear but raised identical issues).

Giving the Moderation Obsessives a Fair Hearing

by Neil H. Buchanan

I admit up front that calling the subjects of today's column "moderation obsessives" would seem to undermine my claim that I plan to give them a fair hearing.  Yet it is difficult to think of a more accurate description, given that many somewhat liberal Democrats and former Republicans seem to think that moderation is the be-all and end-all of winning elections.

More to the point, even though I am amused by their single-mindedness, that does not stop me from trying to find where they might have a good argument and where we might actually agree.

In any event, today I am going to use New York Times op-ed columnist David Leonhardt as a leading example of a moderation obsessive.  That does not mean, however, that he is addicted to centrism, and he is even willing to say obviously true things (such as "Donald Trump should be impeached" -- even before the redacted Mueller report was released) that make many wimpy Democrats blush.

He is not, in other words, generally in the business of trying to prove that he thinks that Democrats can win by being even more accommodating to the increasingly out-of-touch Republican Party.  That makes his repeated claims that Democrats are committing the political sin of too much leftiness especially puzzling and worth exploring.

Pretexts in the Travel Ban Case, Method-of-Execution Cases, the Assange Indictment, and More Generally

by Michael C. Dorf

"Even a dog," Oliver Wendell Holmes, Jr. wrote in The Common Law, "distinguishes between being stumbled over and being kicked." Today, as in 1881, when Holmes wrote those words, intentions matter in the law. They can be the difference between criminal and innocent conduct, between  liability and non-liability, between constitutional and unconstitutional actions. And yet illicit intentions can be notoriously difficult to prove.

Moreover, in at least some contexts, making intentions dispositive can be problematic in principle. If it is unconstitutional for a municipality to close its public swimming pools rather than desegregate them (as four justices would have held in Palmer v. Thompson), must the municipality keep the pools open forever, even though it had no obligation to operate swimming pools in the first place? If not, for how long must it keep the swimming pools open? What if the bad actor cites some facially plausible reason that is not the real reason for its bad act? Should the law disallow it as a pretext?

I addressed some such questions in a 2016 essay in the Harvard Law Review's online supplement in response to an article on forbidden legislative intent by Prof. Dick Fallon in the main issue of the HLR. I don't want to rehash our respective points here. Instead, I want to use three recent events to raise some further questions. After recapping an argument I made last year about the Muslim Travel Ban and the Masterpiece Cakeshop cases, I'll focus on some recent death penalty cases in the SCOTUS and the Julian Assange indictment.

Mueller's Mistake: A Criminal Trial is not an Opportunity for the Defendant to Clear his Name

by Michael C. Dorf

Special Counsel Robert Mueller accepted the Justice Department policy barring indictments of a sitting president. He could have nonetheless made a determination whether Trump would be subject to indictment based on his conduct as evaluated under the governing statutes and Justice Department policies if Trump weren't president, but Mueller declined to do so. Why? According to the Mueller Report (Vol 2, page 2):

Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

In my view, that statement badly misunderstands the nature of a criminal trial.

Mueller Report Counterspin: We Still Don't Know Why Trump Denied Russian Interference

by Michael C. Dorf

Attorney General Barr, President Trump, and their FoxNews amen chorus spent several weeks spinning what turns out to be a substantially fictional version of even the redacted Mueller Report. Now the rest of us weigh in. Here I'll offer both a substantive and prescriptive take for everyone who regards Trump's presidency as a disaster.

My bottom line is this: The Report could but won't be used as the basis for impeachment. Meanwhile, it leaves two fundamental questions unanswered. First, why, both during and after the campaign, did Trump repeatedly deny Russian efforts to interfere with the election, when he must have been well aware of them? Second, if they had nothing to hide, why did so many of Trump's close associates lie to Mueller's team and why did Trump--whether or not he committed acts that are chargeable as obstruction under DOJ policy--repeatedly try to undercut the investigation?

I don't have definitive answers to those questions. I do have an important takeaway, however: even the most innocent explanations should be EXTREMELY damaging to Trump.