Saturday, June 23, 2018

Homey Don’t Play That

By William Hausdorff

Tuning Out the Media after the Diplotainment in Singapore

It’s really easy to become discouraged about global politics and the state of the American experiment. Earlier this month I hit a personal low point, where I felt I was truly missing something, as I watched the US news media’s ability to reduce the US-North Korean “event” to a mixture of wishful thinking and reality TV.  

One can almost forgive the vacuousness of the news coverage of President Trump’s Mighty Handshake with Kim Jong-Un, since the bar was set so ominously low:  just a few months earlier Trump and Kim were publicly comparing missile sizes. 

But other than a rhetorical cease-fire, what kind of deal could have possibly been expected with a US leader who revels in contradicting himself, who surrounds himself with a war-mongering Secretary of State and National Security Advisor that have each spoken about militarily overthrowing the North Korean government, and who are all categorically against negotiations? 

This is the same leader who has just walked away from multiple international agreements endorsed by previous US governments (on climate change, Iran, NAFTA), not to mention his own endorsement of the G-7 communiqué only days before.  With the Trump “negotiators” gleefully admitting to minimal preparation, how could any grown-up reporter or news analyst expect any meaningful agreement with the North Koreans?

Finally, even if the North Korean regime were remotely serious about sticking to an agreement this time, highly doubtful in itself, why would Kim—or indeed, any rational leader--believe that Trump would stick to this particular agreement?  Even though the “agreement” has quickly been revealed to be as vacuous as expected, no one should be fooled that a legally and politically endangered Trump won’t turn on a dime and dangerously lash out at a future “betrayal” by his new role model.

The only saving grace is that this reality TV event has been quickly eclipsed by subsequent episodes.  So indeed, a very logical response is to stop following the news.  To drop out, and asked to be woken up if anything really changes.

Friday, June 22, 2018

Justice Kennedy Finds Privacy Outside But Not Inside The Fourth Amendment

by Michael Dorf

In today's ruling in Carpenter v. United States, the Court, in an opinion by Chief Justice Roberts joined by the Court's four liberal-leaning justices, finds that collection of cell phone tower location data from a mobile phone provider constitutes a search within the meaning of the Fourth Amendment, thus presumptively requiring probable cause and (absent exigent circumstances) a warrant. Here I want to note what looks like a glaring inconsistency between Justice Kennedy's Carpenter dissent and his approach to the constitutional right to privacy in other contexts.

Thursday, June 21, 2018

Congress, the Dormant Commerce Clause, and the Wayfair Case

by Michael C. Dorf

Today's decision in South Dakota v. Wayfair, Inc. is defensible on the merits, but Justice Kennedy's majority opinion inadequately responds to the key objection by Chief Justice Roberts (for himself and Justices Breyer, Sotomayor, and Kagan). To see why will require a bit of backstory on that most delightful topic in the constitutional law corpus: the Dormant Commerce Clause (DCC).

A Glum Prediction About the Fallout From Trump's Immigration Outrages

by Neil H. Buchanan

Fifteen days ago, I left the United States to attend academic engagements in Toronto and Vienna.  In that time, there have been at least four enormous political stories, each of which erased all discussion of the previous enormous story:

(1) Donald Trump's damaging, childish stunts at the G-7 meeting in Quebec,

(2) Trump's meeting with Kim Jong-Un, which elevated North Korea's international status and downplayed Kim's brutal dictatorship,

(3) the Inspector General's report that undercut every Trump talking point about the Russia investigation (but that Trump and his people are predictably lying about),

and now (4) the disastrous human rights crisis that Trump's (in)Justice Department has created by separating children from their parents at the U.S. border.

There have, of course, also been big stories about various Supreme Court decisions and other issues.  Before the next big outrage comes along (most likely when the Supreme Court destroys public employee unions and/or blesses Trump's Muslim ban), I thought I would take a few moments to comment on how the "children ripped from their parents' arms" story is likely to play out.

Bottom line: It will not end badly for Trump, which means that it will end badly.

Wednesday, June 20, 2018

Fourth Amendment and Article III Standing

by Sherry F. Colb

My column for this week considers the recent case of Byrd v. United States. The US Supreme Court held there that if police unreasonably search a rental car, then the driver of that car who is in lawful possession of it has standing to object to the admission of evidence found during the search. In other words, you do not need to be the renter or have your name on the rental agreement list of authorized drivers in order to enjoy a reasonable expectation of privacy in the concealed portions of the car, such as the trunk. I explain in my column that this outcome is positive for two reasons: it takes Fourth Amendment privacy doctrine away from pure property concepts, and it broadens (or at least fails to narrow) standing so as to permit more people to hold police accountable for Fourth Amendment violations by excluding evidence obtained as a result.

In this post, I want to suggest that not only is Fourth Amendment standing doctrine a misguided endeavor, for reasons that I elaborate in greater detail here, but Article III standing doctrine would be better discarded as well.

Tuesday, June 19, 2018

Rainbow Flags in Vienna But Dark Clouds Everywhere

by Neil H. Buchanan

One of the mixed pleasures of being an academic is the opportunity to teach and conduct research at other universities, often in foreign countries.  Although some outsiders might view these as little more than junkets, the work is not easy by academic standards -- that is, it is even more difficult to explain U.S. tax law to foreign students than to explain it to U.S. students -- and the travel itself can become a grind.

I am, of course, fully aware that these are the quintessence of what we now think of as First-World Problems, but even at best the "working" part of these supposed working vacations does feel like something short of leisure.  In any case, such visits achieve both scholarly and institutional goals, with research being advanced by collaborating with foreign scholars in person and with our universities anxious to have us "fly the flag" elsewhere to enhance reputations.

This is all a long way of explaining that I am currently back in Vienna, Austria, for my fourth visit in the last nine years.  I have just completed teaching a course to masters-level students, and I led a research seminar to doctoral students, at Wirtschafts Universitat Wien (or WU, the University of Business and Economics in Vienna).  As always, the students were engaged and impressive.

During and after my visits in 2009 and 2013 (but not, for some reason, in 2015), I wrote a number of columns here on Dorf on Law and elsewhere on Vienna-related topics, focusing in particular on the superior public transportation system here.  (See, for example, here and here.)  With my adopted home city of Washington -- which has the second-worst automobile traffic in the country, second only to Los Angeles -- still awaiting a connection between its inadequate Metro system and Dulles International Airport (a connection that was scheduled to be completed this year but is now hoped for in 2020), and with the plan to reintroduce a system of street cars now all but abandoned, the contrast with Vienna is as stark as ever.  And transit fares are still much lower in Vienna.

In the remainder of this column, however, I want to focus on some similarities between these two capital cities and their respective countries.  The entry point for that discussion is gay rights, which was brought to mind by the 2018 version of the Vienna Pride and Rainbow Parade this past Saturday.

Monday, June 18, 2018

Is There a Silver Lining in the Wisconsin Gerrymandering Standing Decision?

by Michael C. Dorf

This is shaping up as a real nothing of a Supreme Court Term. Two weeks ago, the Court ducked the important questions in Masterpiece Cakeshop and Hughes v. United States. Today the Court ducked the question whether claims challenging partisan gerrymandering present non-justiciable political questions and if not, how to adjudicate them. In a brief per curiam in Benisek v. Lamone, the Court affirmed the district court's denial of preliminary injunctive relief in Republicans' challenge to Maryland gerrymandering, relying entirely on the technical details of the standard for a preliminary injunction. Meanwhile, in an opinion by CJ Roberts for a more or less unanimous Court, the justices declined to say anything about the justiciability or merits of Democrats' challenge to Wisconsin gerrymandering in Gill v. Whitford, resolving the case on the grounds that the particular plaintiffs had failed to prove the elements of standing at trial.

Not all non-decisions are the same. When the Supreme Court ducks a question that the lower courts have been deciding in a way that one approves, then one can be sanguine. It's not as good as a SCOTUS victory, but it's not bad either. That's the lemonade that supporters of LGBT rights (like me) can make out of lemons like the Masterpiece Cakeshop non-decision of the key issue. However, if one disapproves the status quo--either in the lower courts or pursuant to current SCOTUS precedent like Vieth v. Jubilirer--then a non-decision is almost tantamount to a bad decision.

Nonetheless, Justice Kagan, in a concurrence joined by Justices Ginsburg, Breyer, and Sotomayor, tried to make some lemonade out of the Gill v. Whitford lemon. Did they succeed?

The Death of a Chef, Vegan Views, and the Relevance of State of Mind

by Sherry F. Colb

Like other movements for change, the animal rights movement hosts its share of internal battles. Ethical vegans disagree, for example, on the Impossible Burger, a plant-based burger with the taste and texture of a hamburger made of cow flesh. Some support it because it diverts demand from the slaughterhouse, while others oppose it because one of its ingredients was tested on animals.

Vegans also part ways on whether a person who eats a plant-based diet to achieve optimal health should be considered a vegan at all. Disagreements abound over whether laws regulating the treatment of animals in agriculture and laboratories are generally a positive intervention or an empty promise that impedes actual progress toward the abolition of animal exploitation. When it comes to determining what the best steps are for ethical vegans, consensus is the exception rather than the rule.

It was therefore unsurprising to find that ethical vegans disagreed over how to react to the death of a very non-vegan chef.

Friday, June 15, 2018

Using the "C" Word: the Power of Slurs

By Sherry F. Colb

Recently, Samantha Bee of Full Frontal referred to Ivanka Trump, the President's daughter, as a "feckless c---." Bee became the subject of immediate condemnation, especially from the right. Not long before that, ABC had terminated Roseann Barr's television show because she had sent out a racist tweet about Valerie Jarrett, former advisor to President Obama, suggesting that Jarrett was the offspring of Planet of the Apes and the Muslim Brotherhood. For this post, I would like to explore how critical we should be of Samantha Bee for using the C word against Ivanka Trump.

First, though, I want to briefly discuss two other issues. One is whether what Bee did was comparable to what Barr did. And the second is what it means when someone compares an African American woman to an ape.