Monday, November 19, 2018

Dear Secretary DeVos: That Should Be "Severe or Pervasive," not "Severe and Pervasive"

by Michael C. Dorf

Last week, the federal Department of Education issued a notice of proposed rule making that would provide guidance for how schools, colleges, and universities address allegations of sexual harassment and sexual assault under Title IX. The proposed rule follows up on the Trump DoE's earlier rescission of the Obama DoE's guidance, which had taken the form of documents issued in 2011 and 2014.

In one important respect, the proposed regulation is a step forward: it is a proposed regulation rather than a less formal administrative action.

In other respects, the proposed new rule will be controversial. Whereas the Obama administration's guidance emphasized the problem of under-enforcement by requiring the use of procedures that would reduce the risk of "false negatives" (i.e., circumstances in which real victims of sexual harassment or sexual assault came forward but no responsibility was assessed), the Trump administration's proposed rule swings in the other direction by allowing for procedures that will lead to fewer "false positives" (i.e., findings of responsibility in circumstances in which the person found responsible did not actually commit a sexual assault or engage in sexual harassment). To lay my cards on the table, I think this is a step in the wrong direction, because I think false negatives are a more common problem than are false positives, but I recognize that this is an area of contestation.

In this post I want to focus on an aspect of the proposed rule that strikes me as problematic. It defines hostile environment sexual harassment incorrectly (although the fault for that lies with the Supreme Court).

Sunday, November 18, 2018

The LSAC's Contempt for LSAT Takers with Disabilities (and How It's Harming the Legal Profession)

by Diane Klein

It was not so long ago in American history that a blind or deaf student, or one who was mobility-impaired, would be left outside the schoolhouse doors - rejected by an educational system that had no obligation to accommodate them, and by a larger society that regarded them as not worth educating.  If they were not born into well-to-do families, their prospects were bleak. Today, thanks to laws like the Individuals with Disabilities Education Act (IDEA) and the Americans with Disabilities Act (ADA), we look back with anger and heartbreak on behalf of those who never had a chance to develop their potential and contribute as they might have done, simply because no accommodation was made for them.

Lawyers (like Thomas Gilhool) have played a crucial role in enacting and enforcing these major civil rights laws, and one could be forgiven for assuming that a profession whose reason for existence is access to justice would be a leader in providing equal opportunity for law students and lawyers with disabilities.  At the very least, one would hope that at that crucial intersection of educational opportunity and access to the legal profession - the LSAT - test-takers with disabilities could be confident they would be appropriately accommodated, as the law requires. The truth, unfortunately, is otherwise.

Friday, November 16, 2018

Is Whitaker a Heretic or Just a Hack?

by Michael C. Dorf

My latest Verdict column--which first appeared on Wednesday--asks whether the framers goofed by failing to spell out in the Constitution exactly what the limits are on the ability of Congress to authorize the president to designate as an "acting" principal officer someone who has not been confirmed by the Senate. My answer: kind of, but one shouldn't get too mad at the framers for failing to anticipate all contingencies; a greater share of the responsibility rests with Congress for acquiescing in what looks like circumvention of the spirit, if not necessarily the letter, of the Appointments Clause; still more responsibility lies with Trump, who does not feel constrained by norms, no matter how longstanding or sensible.

The column focuses on the procedural defects in the designation of Matt Whitaker as Acting AG, but of course, one can also point to his substantive shortcomings. Whitaker's role in advising and promoting the Trump-University-esque World Patent Marketing casts doubt on his ethics. His 2014 statement, when campaigning unsuccessfully for the Republican nomination for a Senate seat, that he would have trouble with judicial nominees who lack a "Biblical view" of justice, shows either ignorance of or indifference to the Constitution's prohibition on religious tests for office. Here I want to focus on Whitaker's identification of Marbury v. Madison as a problematic precedent. I will offer a tepid defense of the position but no defense of Whitaker.

Thursday, November 15, 2018

How Bad Will Things Become? Part Eight: The Supreme Court's Political Agenda and Republicans' Electoral Peril

by Neil H. Buchanan

The Supreme Court's two newest members have joined Clarence Thomas in forming an openly reactionary bloc of justices, and their colleagues Samuel Alito and John Roberts differ from them only by slight matters of degree.  Roberts, Alito, and Thomas are 63, 68, and 70, respectively, meaning that we can expect this current majority of hyper-conservative justices (which I have elsewhere dubbed the Unfab Five) to serve together for at least a decade, and possibly two.

They will also serve at the top of a judiciary that Republicans are gleefully packing with the most blatantly political (and sometimes simply unqualified) conservatives that the country has ever seen -- many of them also quite young and thus able to serve for decades.  This means that there is a possibility, even a likelihood, that the courts will stand in the way of progress even if Republicans are not able to stop Democrats from retaking power (although they seem poised to be able to do that, too, with a big assist from the judges that they are empowering).

One reason for a small amount optimism, however, is that those new lower court judges are in fact not likely to serve as long as life tenure would allow.  In the 1980s, Ronald Reagan and the conservative movement installed a passel of young judges, only to find that many of those guys were not willing to receive an upper-middle-class salary to do what turns out to be a lot of work.  Who knew that so many people who thought that Gordon Gecko's "Greed is good" speech was a religious exhortation would want to cash in their judicial experience for bigger paydays?

That might well happen in the lower courts again, with an exodus of judges beginning in only a few years, but there is no reason to think that any of the Unfab Five justices on the Supreme Court will leave early.  What will they do while they rule the roost?

In this "How Bad Will Things Become?" series of columns (see Parts One, Two, Three, Four, Five, and Six), I have moved back and forth between discussing the substance of the hard right judicial agenda and analyzing what one might roughly call the Unfab Five's style.  On the former (substance), the question is where the Court's majority will go on affirmative action, reproductive rights, and so on.  The latter question (style) addresses whether Roberts et al. will bother dressing up their conservative judicial activism or will simply become ever more naked about their ideological power plays.

Today on Verdict, I published Part Seven of this series, in which I speculate on another substantive matter, asking whether the reactionary majority's neo-Lochnerian agenda (which I had described in Part Four) might include a direct assault on the three big New Deal/Great Society social insurance programs: Social Security, Medicare, and Medicaid.

I point out in Part Seven that Social Security was challenged in court at its inception in the 1930's but survived only because the Lochner justices were mostly gone by then.  It would not be even a mild stretch for the Unfab Five to invent an excuse to invalidate those social insurance programs.  As Eric Segall has argued tirelessly here on Dorf on Law and elsewhere (most recently yesterday), conservatives' go-to theory -- originalism -- is not a theory at all, which makes it a perfect vehicle to justify anything that conservatives want to accomplish.

Here, I want to ask the related style question: Given that movement conservatives would love to invalidate all three of those programs (and more), will they actually try to do so, or will they stop short because of the consequences for their Republican comrades who actually want to win future elections?

Wednesday, November 14, 2018

Is Originalism a Theory?

By Eric Segall

Justice Scalia used to defend his originalist theory of constitutional interpretation by arguing that, although originalism has its flaws, it was better than any other interpretative method and that "you can't beat somebody with nobody," meaning that it takes a theory to beat a theory.

As I've been giving talks at various law schools discussing my new book "Originalism as Faith," one common reaction is great surprise that Originalism today refers to many different theories of constitutional interpretation that have very little in common with each other. When judges and law professors self-identify as "Originalists," there is no longer any serious metric or common definition to understand how they would approach hard constitutional cases.

Tuesday, November 13, 2018

Appreciating Heitkamp's Decency

by Neil H. Buchanan

In the post-midterm assessments of American politics, Senator Heidi Heitkamp has at most merited a quick mention as one of the three or four Democratic incumbents from states that Trump carried in 2016 who lost their reelection bids.  Joe Donnelly of Indiana, Claire McCaskill of Missouri, and Heitkamp of North Dakota went down hard.  Other Democrats survived, and Florida is being Florida, so we will not know for a long time whether Bill Nelson will hold his seat or lose it to Voldemort.

In many cases, these losing candidates are not even mentioned by name.  "Three or four Democrats lost in the Senate, but the Democrats picked up two seats.  Moving on."  Here, I want to discuss the one and only big thing I know substantively about Heitkamp, essentially to apologize for assuming that she had no principles and was only in politics to win elections.  There might be other things that I do not know about her that would make me feel less good about her, but credit is due where credit is due.  She deserves respect, as I will explain below.

Monday, November 12, 2018

How Much of a Problem is the Senate?

by Michael C. Dorf

In the last week, various liberal law professors and others in whose circles I move have taken to using the midterm election results to decry the US Senate. They point out -- correctly -- that nine million more people voted for Democratic Senators than for Republican Senators; yet the Republicans probably gained at least one seat and at least held their edge. That's not exactly a fair comparison (for reasons described here), but it does capture the bigger picture: If we look at all three classes of Senators, we find that Republicans have more Senators, even though the Democrats represent more people.

Is that a problem? Well, if one is a Democrat (as I am) of course it's a problem. Republicans will continue to confirm very conservative judges and justices; and when there's a Democratic president again, Republicans' advantage in the Senate may enable them to block Democratic appointees (again). Meanwhile, should the Republican edge hold into the next Democratic administration (and even if it does not, absent abolition of the filibuster for ordinary legislation), it will permit Senators representing a minority of the country to block legislation favored by a Democratic House majority and a Democratic president. Thus, I share the dismay of many of my fellow Democrats at the impact of the Senate on the laws we have and how they are interpreted.

But I do want to raise a few questions about the current bout of Senate skepticism that rests on first principles.