Friday, July 21, 2017

The Prime Directive Is to Protect the Rule of Law

by Neil H. Buchanan

The transcript of Donald Trump's recent interview with the editors of The New York Times could simply be titled: "The Case for Dictatorship: A Child-Like Narcissist's Guide to Destroying America."  As soon as Trump started talking, he revealed for the umpteenth time that he is unwilling or unable to understand the limits on the president's power.

And now we learn that Trump has his minions investigating imaginary conflicts of interest that they can use as "leverage" against Special Counsel Robert Mueller and his team of investigators.  Trump even has his people talking about abusing the pardon power, including the possibility of pardoning himself.  He is, at long last, truly Nixonian: When the president does it, that means that it is not illegal.

Trump clearly believes that ethics rules are for suckers and non-presidents, and his claim that his toady of an attorney general, Jefferson Sessions, was "very unfair" for recusing himself from the Russia investigation tells us all we need to know about Trump's version of accountability.

Trump even attacked his own deputy attorney general, Rod Rosenstein -- who has probably done more than anyone else to destroy his reputation by working for Trump -- because Rosenstein is from Baltimore.  Why is that a problem, in Trump's addled mind?  "There are very few Republicans in Baltimore, if any."  As the kids say: WTF?!

Thursday, July 20, 2017

2017: Now Officially The Summer My Professional Responsibility Exam Questions Wrote Themselves

By Diane Klein

On July 17, 2017, The Rachel Maddow Show on MSNBC featured a segment about the latest allegations of financial wrongdoing involving Paul Manafort, Donald Trump's second campaign manager and attendee at the now-notorious Trump Tower meeting with Russian lawyer Natalia Veselnitskaya.

As part of that story, Maddow mentioned that Manafort is represented by Reginald Brown, a partner at Washington, D.C.-based megafirm WilmerHale.  Manafort hired him back on March 24, 2017.

For those who don't know, the law firm with the name that sounds like hipster beer is the result of a 2004 merger between Wilmer, Cutler & Pickering, and Boston-based Hale and Dorr.  It employs more than 1000 lawyers, 400 of them in D.C., the others spread over eleven more offices.  And virtually every lawyer associated with the Trump-Russia scandal is connected to it.

Wednesday, July 19, 2017

What's Wrong With Shotgun Weddings?

by Sherry F. Colb

My column for this week discusses the current state of California law, under which there is no minimum age requirement for marriage. There is a bill under consideration that would modify the law somewhat, but it has been amended to remove the age of 18 requirement and thus only adds some oversight in family court to prevent coercion. As I discuss in my column, the California statutory rape law, which requires that a person be 18 to consent to sex, suggests that sex with minors is inherently coercive and therefore not properly subject to oversight rather than outright prohibition.

In this post, I want to discuss one of the reasons that people cite for permitting children to get married, with parental (and court) permission: an unplanned pregnancy.

Tuesday, July 18, 2017

Freedom Apparently Means Whatever Republicans Need It to Mean

by Neil H. Buchanan

The Republicans' ongoing effort to take away health care coverage from tens of millions of people is probably only on hold.  In any event, their attempt to pass the Trump-McConnell bill has just "collapsed," because Senators Jerry Moran and Mike Lee have joined Rand Paul and Susan Collins in publicly opposing the bill.

That is a very good thing, of course, and I should take a moment to applaud Senator Collins, whom I have bluntly criticized many times over the last few years.  On this bill, hers was a public position that actually mattered, not a "free vote" or a statement of "concern" that then was not backed up by action.  Because the bill was unconscionable, she took a public stand against it.  I hope that she stands up like this again in the future, on health care and other issues.

Unfortunately, the other three Republican opponents of the bill -- Paul, Moran, and Lee -- did so because the bill was not harsh enough.  Apparently, Senator Ted Cruz's add-on to the bill, which saw him explicitly choosing full public funding for some health care recipients in order to give insurers the "freedom" to offer junk insurance policies to others, was too government-y for Paul and the others.

All of which means that Republicans' efforts to take away health care from vulnerable people is currently in limbo only because one of them was appalled enough to say no while three said, "Can't we make this even worse?"  Who knows how many Senate Republicans will sign onto something that the hardliners could support?

But there is another aspect of the Trump-McConnell bill that is worth considering, which is the Republicans' strategy to replace the dreaded "mandate" to buy health insurance.  It turns out that people's freedom to contract is sacrosanct to Republicans, unless that freedom must be sacrificed in order to destroy Barack Obama's Affordable Care Act (ACA).

Monday, July 17, 2017

Justice Gorsuch and Foolish Formalism

By Eric Segall

Last week, Professor John McGinnis wrote an essay at the Law & Liberty Blog praising Justice Gorsuch for his commitment to a “formal conception of law.” While others have criticized Gorsuch for his aggressive questioning and decision-writing so early in his SCOTUS career, McGinnis defended Gorsuch, arguing that his confidence stems from Gorsuch’s view that a “lawful judge should render judgment on the basis of his best judgment about the meaning of statutory and constitutional provisions that are put before him or her and candidly set out the reasoning in support, regardless of the political consequences and regardless of what others think.”  According to McGinnis, being a Supreme Court Justice for a formalist is "no different from being any other kind of judge.”  Because Gorsuch is an “experienced judge” who believes in formalism, he “was able to act forcefully from day one on the Supreme Court.”

Professor McGinnis is a respected scholar. His views on originalism, in a book he wrote with Professor Michael Rappaport, are interesting, provocative, and need to be taken seriously (which I do in my forthcoming book). But this praising of Justice Gorsuch, and his commitment to formalism, is both unpersuasive and dangerous.

Friday, July 14, 2017

This Is What One-Sided Dishonesty Looks Like

by Neil H. Buchanan

Faced with the historic unpopularity of his health care bill, Senate Majority Leader Mitch McConnell responded by making it even worse -- or, as the sub-headline to a New York Times editorial put it, Senate Republicans "found a way to make a horrible bill truly hideous."

This is not surprising, I suppose, although McConnell did manage to make it worse than even I cynically predicted earlier this week.  The new window dressing is even more minimal than expected.  Moreover, he adopted a proposal offered by the much-beloved Senator Ted Cruz, who figured out how to indirectly destroy the highly popular provision in the Affordable Care Act that prevents insurance companies from denying coverage to people with preexisting conditions.

As Donald Trump might put it: mean, mean, mean.  My focus here, however, is not on the Republicans' attempt to deny health care to millions of people, as shocking as that is.  Instead, I want to put this latest truckload of Republican dishonesty into some context.

Latest Travel Ban Ruling Helps A Lot But Not Enough

by Michael Dorf

Judge Watson just issued an order and opinion granting the plaintiffs' request to enjoin the government's narrow interpretation of the SCOTUS interim ruling in the Travel Ban Litigation. Procedural junkies wondering how, given that just a week ago he denied that he had the authority: The prior motion sought "clarification" of the SCOTUS order; Judge Watson said only SCOTUS could clarify; the Ninth Circuit agreed but helpfully added that Judge Watson could grant specific injunctive relief; that's what he did.

The new order expands the list of relatives and others who count as "bona fide relationships" to include "grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States." It also overrules the Trump administration by classifying an approved refugee's relationship with a resettlement agency as bona fide. And the order disposes of the plaintiffs' other requests, granting some and denying others. We can expect an almost immediate appeal to the Ninth Circuit, which I expect, will not disturb the injunction, and if that happens, the DOJ will try to go back to the SCOTUS on an emergency basis. I won't hazard a prediction about whether the Court would disturb this injunction before it reconvenes in October.

Thursday, July 13, 2017

Trump Jr. and Citizens United

by Michael Dorf

Despite its title, this is not an essay about whether Donald Trump Jr. violated federal election law by "solicit[ing]" a "thing of value" from "a foreign national" when he eagerly agreed to meet with a Russian lawyer acting on behalf of the Russian government for the purpose of receiving damaging information about Hillary Clinton's supposed Russian ties. I accept both that it is a somewhat unresolved question whether such information constitutes a "thing of value" under the statute and also that there is enough authority for the view that information alone can be a thing of value so that prosecuting Trump Jr. (and Jared Kushner and Paul Manafort) for their meeting with Natalia Veselnitskaya knowing what they knew would not constitute such a surprising interpretation of the statute as to violate the so-called rule of lenity (under which ambiguities in a criminal statute are resolved in favor of the defendant).

Nor is this an essay about whether construing federal election law to forbid the receipt of valuable campaign-related information from a foreign government agent--even if it was lawfully gathered, which Trump Jr., Kushner, and Manafort had no reason to assume Veselnitskaya's proffered information was--can be forbidden consistent with the First Amendment. I agree with Rick Hasen that if there are free speech concerns with some applications of the law under consideration (52 U.S.C. § 30121), the right approach would be either to construe the law so as not to reach such applications or to invalidate the statute as applied, not on its face. Thus, no one should read this essay as a defense of Trump Jr. or anyone else in the Trump campaign.

So what is this essay about? Simply put, I want to suggest that in a perfect world Section 30121 would distinguish between foreign governments involving themselves in U.S. elections and foreign nationals doing so. Unfortunately, we don't live in that perfect world because of the Supreme Court.

Wednesday, July 12, 2017

Would Trump's Defense In The Zervos Case Be Stronger If He Had Groped More Women?

by Michael Dorf

My new column on Verdict examines an argument set forth in the memorandum in support of the motion to dismiss that President Trump's lawyers have filed in the Summer Vervos case. Vervos, recall, is a former contestant on The Apprentice who sued Trump in January for defamation based on his calling her a liar. The allegedly defamatory statements were contained in Trump's response to the women who came forward contending that Trump had at one time or another acted towards them in ways much like what he described to Billy Bush on the infamous Access Hollywood recording. Trump repeatedly stated that his accusers were not merely mistaken but that they were liars.

The argument my Verdict column considers is Trump's contention that calling his accusers liars was mere hyperbole and fiery rhetoric that cannot be actionable because, in the context of a heated political campaign, these statements were opinion rather than claims of fact. I conclude that Trump's arguments on this point are weak.

Here I want to address two of Trump's other arguments made in the dismissal brief. First I'll revisit the contention that Clinton v. Jones--which allowed a damages action by a private plaintiff for pre-presidential conduct to go forward against a sitting president--does not apply in state court. Second, I'll consider the contention that Trump cannot be held accountable for defamation because the allegedly defamatory statements do not mention Zervos by name.

Tuesday, July 11, 2017

Moderate Cruelty in Health Care Reform

by Neil H. Buchanan

Although the news is once again being dominated by the latest bombshells about the Trump campaign's collusion with the Russian government during the 2016 election, the Senate is again moving toward a possible vote on their deservedly unpopular bill to repeal the Affordable Care Act (ACA).

The Republicans' ACA repeal effort quite literally means life and death for millions of Americans, and the only question is whether at least 50 out of 52 Senate Republicans will support Mitch McConnell's efforts to score a legislative victory on the backs of poor children, the elderly (most of whom have never been poor in their lives), and the working poor and near-poor people who do not receive health insurance through their jobs.

As I will describe below, defeat of the Trump-McConnell bill will understandably be called a victory for "moderation."  Nonetheless, it is important to keep in mind that even if the bill is killed by three dissenters, that will mean that 49 Republicans and Mike Pence would have been willing to vote for this exercise in cruelty.

Monday, July 10, 2017

A Personal Remembrance of Robert Ferguson

by Michael Dorf

Robert Ferguson died last week. I urge readers who are unfamiliar with Robert and his work to read the official obituary at the Columbia Law School website. It gives a good sense of Robert's place in the academy as a towering interdisciplinary figure in the world of law & literature as well as his fundamental decency as a human being. Here I want to reflect a little on the man I knew and the lessons that we might all learn from the example of his life.

Friday, July 07, 2017

Judge Watson is Either Definitely Wrong or Possibly Wrong

by Michael Dorf

Judge Watson's order declining to grant Hawaii's motion for clarification that "close relatives" includes grandparents (contrary to the executive branch interpretation of the SCOTUS decision in the Travel Ban case) rests on the view that the Supreme Court issued the underlying order, so it is up to the Supreme Court to clarify it. Insofar as Judge Watson meant that he, as a lower court judge, has no business clarifying unclear language by the Supreme Court, that's plainly wrong. Much of what lower court judges do in deciding questions of law is to clarify the meaning of decisions of higher courts. Ilya Somin, writing on the Volokh Conspiracy, is clearly right in criticizing Judge Watson on this point.

However, there is another, better way to read the order by Judge Watson. He is not saying that he lacks power to clarify the SCOTUS language. He is saying instead that while the case is before the Supreme Court, a motion for clarification of a Supreme Court order--as opposed to his own order--should go to the SCOTUS. He could still be wrong about that, and Hawaii has appealed to the Ninth Circuit. But the rules and standards governing what a lower court may do with respect to a case that is on appeal are sufficiently complicated, that his ruling in this regard is not crazy. Possibly wrong, mind you. But not crazy.

Thursday, July 06, 2017

The Meaning and Challenge of Intersectional Activism

by Michael Dorf

This week Prof. Colb and I are attending and speaking at Vegetarian Summerfest, an annual vegan conference with presentations focusing on multiple aspects of the vegan movement, especially nutrition, animal rights, and environmental issues. (It's called "vegetarian" for historical reasons, but the conference promotes and practices veganism.) Yesterday, we gave a joint talk titled "Animal Rights, Abortion, and Capital Punishment," which focused on issues raised in our book Beating Hearts: Abortion and Animal Rights, while experimenting with some ideas for a potential new book about the regulation of capital punishment and the regulation of animal slaughter. Each of us is also giving two solo talks. My talk today is titled "Intersectional Veganism." Here is the description from the program:
Some social justice activists promote “intersectionality”—the idea that various forms of injustice are connected. Intersectionality presents the vegan movement with opportunities and challenges. By making common cause with those who favor civil rights, women’s rights, LGBT rights, and others, we broaden our base. Yet given political polarization, intersectionality can also alienate potential allies. Let’s discuss our experiences.
In this post, I want to preview some of the themes of the talk, which should apply broadly to a variety of social and political movements. I will begin by distinguishing between two different ways in which the term intersectionality has been used.

Wednesday, July 05, 2017

An Unqualified Right to Die

by Sherry F. Colb

In my column for this week, I discuss a case in which a judge found a woman guilty of involuntary manslaughter for texting her boyfriend messages repeatedly urging him to commit suicide immediately, which he ultimately did. The column raises some potential objections to holding the woman who texted messages accountable for the actions of her boyfriend, including the freedom of speech, the right to die, and the notion that the victim's own actions superseded what his girlfriend said beforehand as the causal agent of his death. The column concludes that the judge was right to hold the girlfriend accountable, notwithstanding the various objections.

In this post, I want to elaborate on my view that a competent individual (i.e., one who understands what he is doing) ought to have a right to die, a point I make in passing in the column when discussing the right to die. The Supreme Court, in Washington v. Glucksberg, has rejected a right to physician assistance in dying, even for the terminally ill, and only six states and the District of Columbia recognize a right to assistance in dying. In those states, moreover, the right extends only to the terminally ill. I would recognize a right to die (and to assistance in dying) for anyone who wishes to end their life.

Tuesday, July 04, 2017

How do You Say Happy Birthday (and Remain Sane) in the Age of Trump?

By Eric Segall

Today is the 241st birthday of the Declaration of Independence. We treat July 4th as our country's birthday. Who feels like celebrating?

A related question is what does a sane person do when he looks around and sees madness everywhere? The President of the United States is exercising his power as if his office is the ultimate fantasy of a reality television star. He cares much more about ratings, insults, popularity, and revenge than sound policy, or policy of any kind. His top two advisers appear to be his 37-year-old son-in-law who has no experience governing, and a 64-year-old former media executive who might well like to see the world implode, and appears to be both a sexist and a racist. In any event, he too had zero government experience before walking through the White House doors.

The Secretary of State is the former CEO of Exxon, there is no FBI Director, the Sectary of HUD knew nothing about housing upon ascending to that office, while the EPA is now headed by one of the environment’s most formidable foes. The Secretary of Education detests public schools and likely couldn’t pass an eighth-grade civics test. Many high level executive branch vacancies remain unfilled (which I guess might be a good thing).

The Supreme Court of the United States is one vacancy away from turning sharply to the right for several generations. Rights we now take for granted may be lost, and rights big companies and the rich covet are likely just around the corner.

And the Congress, what can I say about the Congress? The Senate Majority Leader and the Speaker of the House can’t even bring themselves to meet the President in person and timidly suggest that tweeting out pro-wrestling videos smashing CNN, or personally insulting morning anchors with apparently false descriptions of bleeding facelifts, does not honor the Office of the President. These two men are, above all else, cowardly keepers of the partisan flames.

So, how do we celebrate our country’s birthday, and how do sane people keep their heads? I don’t know. All I can do is love and be thankful for my family, friends, and colleagues and keep them close both emotionally and physically. I can hope that this psychotic phase we are in will someday be just a period in time that was scary but didn’t cause permanent harm to the nation. I can hope that America is so rich with people of compassion, energy and good will that the 2018 elections will turn out differently, and the country will start climbing back. Hope is essential to birthday celebrations and to keeping one’s sanity. At least for me.

Most of all, on this birthday, I want to remember that we did eventually overcome the sin of slavery. That formal racial apartheid in this country is a thing of the past. That Joe McCarthy and Richard Nixon, though on top for a while, didn’t stay there. That although we are far from perfect, this country has seen a steady progress to a better, fairer society for all.

We Americans don’t run from adversity. Maybe that has something to do with our great western spirit and our urban toughness, I don’t know. Although we have taken a giant step backwards, I refuse to lose faith in my country and its people. Today I'll celebrate our past (not our present), and hopefully our future. Those are certainly worth celebrating.

So, Happy Birthday America, but not to you Mr. Trump.

Monday, July 03, 2017

Can Non-Sentient Entities Have Interests? (and Other Questions Raised by a Recent Review of Our Book)

by Michael Dorf

The latest issue of Between the Species, an online philosophy journal, contains a review by Philosophy Professor Mylan Engel, Jr., of my book with Professor Sherry Colb, Beating Hearts: Abortion and Animal Rights. (Engel's paper is styled an "article" because it is substantially longer than most of the book reviews the journal publishes, but for simplicity I'll call it a review.) Engel's review is generous and thoughtful. Professor Colb and I are grateful for his overall assessment and especially for his conclusion that our book "would make an exceptionally useful supplemental text for any contemporary moral issues course that includes sections on abortion and animal ethics," including his own such course.

As one would expect from any serious scholar, even though Engel agrees with our core thesis and argument, he does not spare us criticism with respect to areas of disagreement. In this essay, I'll respond to a number of Engel's critiques. By way of preview, Engel's most pointed criticism addresses our contention that abortions of pre-sentient fetuses are not immoral because an entity that is not and has never been sentient lacks interests and thus cannot be harmed. Engel's review expands on points he made at a panel on our book in 2016, and my response here will largely track what Professor Colb said in response at the time. I'll also address a number of Engel's other points. However, before taking the gloves off, as it were, I want to re-emphasize that I am truly grateful for Engel's serious engagement with our book. As a scholar, it is much better to be vigorously critiqued than blandly praised or, much worse, ignored.

Saturday, July 01, 2017

SCOTUS Takes On The "Cake or Controversy" Requirement, or, The Queer Motorist's Lavender App

By Diane Klein

In 1936, a Black New York City postal worker named Victor Green began compiling and publishing a travel guide - a pamphlet, really - that came to be known as "The Green Book."  Published annually for thirty years, growing from a local New York guide into an international travel directory, this booklet included lists of establishments - "Hotels, Taverns, Garages, Night-Clubs, Restaurants, Service-Stations, Automotive, Tourist-Homes, Road-Houses, Barber-Shops, Beauty-Parlors," "Trailer Parks and Camps, Summer Resorts" - that would serve Black patrons. Without such a guide, travel throughout much of the United States during the Jim Crow era was, at best, uncomfortable - and at worst, a mortal danger.  With nowhere to safely sleep, eat, or even refill the gas tank, a car trip was more daunting than inviting.  The Green Book aimed to fill that gap.