Saturday, October 20, 2018

Book Review: Corporations are People Too

By Eric Segall

I just finished reading a great new book by Professor Kent Greenfield of Boston College Law School called "Corporations are People Too (And They Should Act Like It)." For anyone interested in what constitutional rights corporations should possess, or in corporate rights and responsibilities generally, this book is a must read. Greenfield is one of the very few law professors in America with a serious background in both constitutional and corporate law, and his double expertise is reflected in almost every chapter of the book.

The essential thesis of the book is that the law does and should treat corporations as people, and the strong anti-Citizens United  movement arguing that corporations are not people is deeply misguided. At the beginning of the book (pp. 2-3), Greenfield points out that, first, for a very long time corporations have been deemed people under a myriad of legal regimes because corporations can sue, be sued, and "own and sell stuff" all "in their own names and legal capacity." Second, he points out that, of course, corporations "are made up of people. Corporations are collective bodies in which humans come together create goods and services to sell for a profit." Third, as an historical matter, corporations have been allowed by the courts to assert constitutional rights since the beginning of the 19th century.

After reading these opening pages, I was convinced that the twin ideas that corporations are not people, and/or that corporations shouldn't have constitutional rights, were absurd. As Greenfield points out, of course Exxon has a Fourth Amendment right to be secure in its property just as obviously as the New York Times has the first amendment right to publish any editorial it wants without government interference.

Friday, October 19, 2018

"Horseface," "Tiny," and "Rhetorical Hyperbole" in the Stormy Daniels Case

by Michael C. Dorf

Earlier this week, Federal District Court Judge S. James Otero issued an order dismissing the defamation lawsuit by Stephanie Clifford, aka Stormy Daniels, against Donald Trump. After Clifford had said that in 2011 she was threatened by a man who worked for Trump or then-Trump-attorney Michael Cohen, Trump tweeted that the threatener was "nonexistent" and that Clifford's story was "a total con job." Clifford sued Trump for defamation on the ground that calling her a liar was, well, defamatory. Judge Otero dismissed the suit. He did not say that Trump was right. Instead, the judge said that Trump's statements were not to be evaluated under ordinary standards of truth, because they were mere "rhetorical hyperbole" that a reasonable person would not expect to be true as such. I think that's probably wrong.

Thursday, October 18, 2018

For the Good of the World, We Should Drop the Pulitzers and Faux-Nobels

by Neil H. Buchanan

Last week, the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel was awarded to Professors William Nordhaus and Paul Romer.  Nordhaus won for his work on the economics of climate change, Romer for studying how economic growth responds to the creation of knowledge.

I have nothing to say here about either economist or his work, although I might write something about one or both of them in the near future.  I should add that I am not ignoring them out of disrespect.  They seem like fine choices, within the confines of that prize.  But it is those confines that I want to address here, in large part to compare them to the limitations of another prestigious award, the Pulitzer Prize.

Longtime readers of this blog might recall that I am a stickler about calling the economics prize what it is (see the first line above) -- and not calling it what it is not: "The Nobel Prize in Economics."  My column on this subject from 2009 provides the facts on that score.  The bottom line is that it simply is inaccurate to call it an Economics Nobel, and the angry insistence by many economists that the difference is a mere technicality simply demonstrates how desperately they are trying to gain undeserved prestige by renaming their prize.

Although I often take economists to task for various reasons, a much more frequent target of my critical commentary has been the American press, especially what can still accurately be called the print media (although I have not read a printed physical newspaper in years).  Indeed, I have written so many negative things about the prestigious papers' news coverage that I had to take a step back this past summer and ask, "Is It Time to Ease Off On the Media Criticism?"  With Donald Trump calling a free press the enemy of the American people, it is important to remember that constructive criticism -- especially highly negative constructive criticism -- can feed into a dangerous narrative.

My goal here, therefore, is not to bash the press but to continue to point out that mainstream media types respond to perverse incentives.  And that can have very unfortunate effects in the real world -- effects that endanger the press itself and ultimately constitutional democracy.

Wednesday, October 17, 2018

Originalism in the Classroom?

By Eric Segall

Over the last two days, numerous folks on social media, triggered by a blog post by John McGinnis, have lamented, in McGinnis' words that "it would be malpractice for law professors "not to describe originalism as an important theory of constitutional interpretation." He went on to say the following:

There is reason to believe that many professors are failing to give their students a fair minded introduction to originalism. The first is anecdotal. I have given talks at law schools across the country. I hear from students that originalism is generally given short shrift and Scalia opinions are often simply ridiculed. The second is sheer ignorance. Most constitutional law professors are not constitutional theorists and do not study originalism as part of their scholarly enterprise. It is all too easy then for political bias to lead them to denigrate or downplay a theory that has been associated with conservatism, when they are themselves, as studies show, likely to be left-liberals.
As originalists on Twitter like Randy Barnett agreed with and repeated this refrain, I raised an issue that I discuss at length in my (finally available) book Originalism as Faith. What would it mean to teach originalism in  a world where that term no longer has any identifiable content other than as a political signal or an article of faith?

Pre-Existing Conditions, Severability, and the "When" Question in Statutory Construction

by Michael C. Dorf

In my latest Verdict column, I take aim at one of the many lies in the op-ed that appeared last week in USA Today under Donald Trump's name--the claim that the president has kept his promise to protect health insurance for people with pre-existing conditions. I explain that the claim does not pass the laugh test. Among the reasons I give is the administration's support for a pending lawsuit by Texas and nineteen other states that, if successful, would invalidate the Affordable Care Act's prohibition of screening out or charging extra for persons with pre-existing conditions.

The column describes the lawsuit's key argument in greater detail, but the very short version goes like this: (1) the ACA's individual mandate was upheld by the SCOTUS as a tax; (2) Congress eliminated the tax late last year as part of its tax cut law; (3) therefore the mandate no longer has a constitutional basis; (4) the mandate was designed by the Congress that enacted the ACA to work hand-in-glove with the protections for people with pre-existing conditions; (5) thus, a court cannot sever the mandate from those protections; and (6) accordingly, the protections are invalid.

To decide a severability question, a court must determine whether Congress would have wanted the portions of the statute that do not by themselves violate the Constitution (here the pre-existing conditions protection) to remain operative without the  invalid portion (here the mandate without the tax). I say in the column that the non-severability claim made by Texas is extremely weak, because we don't need to guess what Congress would prefer: Congress, just last year, told us what it prefers. It left the rest of the ACA intact when it reduced the tax to $0.

Nonetheless, at a hearing last month, Federal District Judge Reed O'Connor seemed sympathetic to the non-severability argument. My column notes that while that is alarming, it should not be surprising. Over the last eight years, Republican-appointed federal judges have been remarkably receptive to what we might politely call "creative" arguments that aim to destroy the ACA. But there is--or at least should be--a difference this time. While in prior challenges to the ACA, conservative legal scholars crafted some of the arguments that conservative judges accepted, to their credit, conservative legal scholars have joined with more liberal ones in arguing that Texas's non-severability argument is unpersuasive.

I am thus cautiously optimistic that the courts will ultimately reject the argument for non-severability. The issue deserves some attention, however, because there is no guarantee that the case will come out right, and it raises a question of wider importance.

Tuesday, October 16, 2018

Insecure Masculinity Is the Glue That BInds Conservative Elites and Their Base

by Neil H. Buchanan

The end of the Kavanaugh confirmation travesty, which now seems a million years ago, overlapped with the blockbuster story in The New York Times about the Trump family's decades of tax dodging and other scams.  Or it would have been a blockbuster story in anything resembling a normal universe.

The Times showed, through meticulous research, that young Donald Trump's father had not merely given his son the mythical "small loan of a million dollars" (which Trump insists he repaid with interest) that put Trump on the path to unimaginable success.  By evading the estate tax and other taxes in a variety of ways (and I do mean "evading," which means illegal underpayment of taxes), not to mention by making money from government contracts and exploiting low-income renters, Fred Trump ended up transferring a total of $413 million (in inflation-adjusted dollars) to his son.

The Kavanaugh and Trump stories are actually connected by a common bond of clueless, angry entitlement.  Even more importantly, the sense that each man has of his own greatness and their shrieking horror at any suggestion of not being a "self-made man" are the keys to understanding both men's connection with Trump's non-elite white male cheering section.  Male insecurity runs the world.

Monday, October 15, 2018

The Dangers of Mutual Radicalization

by Sidney Tarrow

Soon after the election of Donald Trump, a wave of protest bubbled up against the new president and his policies. Beginning with the “Women’s March,” followed by protests on behalf of gun control and against the threat of climate change, and led by new groups like Indivisible and old ones like the ACLU, the movement reached into the legal profession when Trump, soon after entering the White House, abruptly  announced a painful and chaotic ban on refugees and others from several majority-Muslim countries (as described by Michael Dorf and Michael Chu here). When the #MeToo and Never Again movements emerged, it began to seem as if American civil society was rising up in a body against the excesses and outrages of the new administration.

Academics and activists soon collected these varied movements under the rubric of “The Resistance,” but as David Meyer and I argued in our recent book, The Resistance: The Dawn of the Anti-Trump Opposition Movement, that label may say too much and too little. It may say too much because it assumes that the varied protest movements are a coherent whole, and it may say too little because it fails to examine the challenges that the Resistance poses to its supporters. 

Three of these challenges are the most important: first, the proliferation of activist sites and new groups has led to a failure to identify an overarching policy goal – apart from the proximate one of opposing Trump; second, there is a gap  between those who want to defend our institutions against the president and his enablers and those who want to tear down the institutions that facilitated his rise; and, third, there is the danger of mutual radicalization. As was revealed in the conflict that erupted over the Kavanaugh nomination, the third is the most pressing, and could easily weaken The Resistance.

Friday, October 12, 2018

I Feel Pretty: What If Brett Kavanaugh's Female Law Clerks Are All Beautiful?

by Sherry F.  Colb

Mostly lost amidst the credible testimony and ignored accusations of sexual assault against Brett Kavanaugh was a story about his law clerk hiring practices.  The story suggested that (a) all of then-Judge Kavanaugh's female law clerks have looked like models; (b) this is no accident; (c) Professor Amy Chua at Yale Law School groomed some of the female students for these clerkships by asking applicants to send her selfies in the outfits they planned to wear to the interview; and (d) Professor Jed Rubenfeld of Yale Law School, husband of Professor Chua, advised female students that Judge Kavanaugh liked his clerks to have a "certain look." Chua vociferously denied the story, which in turn led a former student to say that Chua was "lying" in her denial.

Needless to say, this story raises some questions. And if Kavanaugh has done what he is accused of doing, it puts the fact that he has a very strong record of hiring female law clerks in a less-than-feminist light.

Thursday, October 11, 2018

Projection, Preemptive Accusation, and Strategic Hypocrisy

by Neil H. Buchanan

There has been a surge of commentary recently about the Republicans' embrace of conspiracy-laden accusations against the Democrats, including the bizarre claim that the people who confronted Republican senators prior to Brett Kavanaugh's confirmation vote were yet another group of "crisis actors" who had been paid by (who else?) George Soros.  As familiar as all of this has become, fantasies like this still have the capacity to surprise because of their complete disconnect from facts and logic.

In my most recent Dorf on Law column, I discussed the paranoid underpinnings of these conspiracy theories, once again drawing from Richard Hofstadter's timeless 1964 essay, "The Paranoid Style in American Politics."  To the extent that Republicans actually believe their own craziness, they are under the spell of extreme paranoid delusions, especially now that they are railing against their "powerful" opponents whom the Republicans in Congress have already made powerless.  It is one thing to accuse someone of abusing her power; but it is another thing entirely to imbue her with imaginary powers that no one can see but that supposedly put all Republicans at risk.

As important as that discussion is, however, it is only one of several partially overlapping explanations of Republicans' current mindset and political strategy.  Here, I am interested in the various ways in which one can explain Republicans' repeated attacks on Democrats for doing things that Republicans themselves are in fact doing (or will soon do). Most importantly, some of the explanations imply a quite conscious strategic decision by Republican strategists to lay the groundwork for future abuses of power.

Wednesday, October 10, 2018

Believing Men Who Lie About Rape

by Sherry F. Colb

Dr. Christine Blasey Ford needed a great deal of courage to come forward and accuse Judge Brett Kavanaugh of attempted rape. Such accusations predictably yield resistance, with allies of the accused saying that the accuser is either lying or mistaken (or crazy). Yet Ford brought her accusation nonetheless, saying that she felt it was her civic duty, and Donald Trump described her testimony as credible; at least that is part of what he initially said. He also observed that he himself has endured false sexual assault allegations, implying that he and Kavanaugh were like peas in a pod. 

Trump's expressly drawing a parallel between his own and Kavanaugh's experience was interesting. Trump, as we know, effectively confessed to sexually assaulting women in an Access Hollywood video that aired only weeks before the presidential election. The women who subsequently came forward were simply confirming that Trump had committed the criminal acts that he had described in the video.

Another sexual assault allegation against him was that of his ex-wife, Ivana Trump. Ivana reportedly gave a deposition during the Trumps' divorce proceedings in which she provided a graphic description of Trump brutally raping her. He was apparently enraged after having undergone painful scalp reduction surgery to cover a bald spot. He allegedly tore clumps of her hair off her head, tore her clothes off, held her down, and jammed his penis into her.  In her account of these events, she ran upstairs and cried for the rest of the night. When she returned to their bedroom, he reportedly menacingly asked her "does it hurt?" Ivana has since retracted this accusation, and one can decide whether the accusation or the retraction is more credible.

Whether one believes Ivana's detailed account or not, Trump does appear to engage in false sexual assault denials (while characterizing his own confessions as mere "locker room talk"). That's hardly surprising, given all of the other distortion and outright lying in which the president engages. Here, however, I want to set aside Trump's broader tendency to lie to focus on his false denials that he has committed sexual assault. He said he was innocent of sexual assault and called his accusers liars. Why in the world would he imagine that comparing himself to Kavanaugh would help exonerate Kavanaugh? 

Tuesday, October 09, 2018

Why Would Republicans Call Democrats Too Powerful and Angry? It's All They Know

by Neil H. Buchanan

The post-Kavanaugh political conversation has been dominated by Donald Trump's effort -- gleefully supported by Republicans -- to turn the recent confirmation process into a political rallying cry.  As The Washington Post's Paul Waldman explained, the new Republican talking point is a version of what both Kavanaugh himself and Lindsey Graham shouted at the Judiciary Committee's Democrats: You're all power hungry, angry political animals!

The Republicans are now claiming that "mobs" of Democrats swarmed the Capitol and tried to "destroy" a completely honest and decent man.  Dr. Christine Blasey Ford was, at best, mistaken in identifying her attempted rapist (if it happened at all), and George Soros is behind it all.  It plays like a mash-up of the Republicans favorite slanders of Democrats and deepens Republicans' claims of victimhood.

There are many angles from which to analyze this new development, obviously including the Republicans' revival of the International Jewish Conspiracy (via Soros), as The Post's Catherine Rampell describes clearly and chillingly.

Here, I will focus on the paranoid aspects of the Republicans' increasingly deranged mindset.  They have, I think, finally reached the point where they will say or do literally anything for political advantage, with no concern whatsoever about whether there is a basis in reality for anything that they say.  They are convincing each other that they are the victims of a swirl of conspiracies, and they have all become true believers.

Monday, October 08, 2018

A Supremely Dark Future

By Eric Segall

Letter to my Granddaughter, 8/24/2045

Dear Jenny,

As you prepare for your first year teaching constitutional law at Clarence Thomas Law School at Liberty University, I thought you might find it helpful to have an accurate historical perspective on some of the subjects you're going to teach. I know you will find some of the law described below to be ancient history, but I can assure you, it wasn't that long ago.

Sunday, October 07, 2018

The "All of the Above" Approach to Justice Kavanaugh

by Michael C. Dorf (cross-posted on Take Care)

[Non-spoiler Alert: This essay discusses the tv series The Americans, but it should not ruin the viewing experience of any readers who intend to watch it.]

In the rightly acclaimed tv series The Americans, two Soviet agents live undercover in the US for many years under the identities of Philip and Elizabeth Jennings. They pose as mild-mannered travel agents by day while committing acts of political sabotage and murder by night. They arrive in the US as committed communists in the 1960s, but by the time the show opens in the early 1980s, Philip has grown fond of suburban American life and its creature comforts. The conflict between Philip and Elizabeth over how committed each remains to the cause of global communism fuels much of the show's gripping narrative. By the time the sixth and final season opens, Philip has quit working for the KGB, as he has grown wary of its efforts to undercut Gorbachev's reforms and peace overtures. He has become his cover. Elizabeth, by contrast, remains a true believer.

That division can serve as a metaphor for two polar attitudes of various liberal constitutional lawyers now that Brett Kavanaugh has been seated on the Supreme Court. We were never Soviet communists; we placed our faith in the Supreme Court. Despite all evidence to the contrary (Bush v. Gore; Shelby County v. Holder; Citizens United v. FEC; Trump v. Hawaii; etc.), we still believed in the Court as a potential force for good.

Is Kavanaugh the last straw? A prominent constitutional scholar recently told me that, in light of the Senate's confirmation of Kavanaugh, maybe it's time for us to find a new field -- commercial law, perhaps -- in which the rulings of the Supreme Court play no substantial role. Having lost faith in the Court as a force for good, this scholar considers the path of Philip Jennings. Doing so might well be good for our personal wellbeing, but it would also be a kind of giving up.

Meanwhile, another prominent scholar suggested that, whatever distaste we now have for Kavanaugh and the route he took to the Supreme Court, we need to keep our noses to the grindstone to minimize the damage; although we will now see the most conservative Court in living memory, we have had a half century of a Republican-dominated Court, so it's not exactly as though we lack experience making lemonade from lemons. That's the path of Elizabeth: put your head down, and do your job.

Is there a middle course? Something other than, on one hand, abandoning the field of constitutional law and, on the other, acting as though it's business as usual? Absolutely. To see what options are available, however, we need to be clear-eyed about the coming challenge.

Friday, October 05, 2018

Justice Kennedy's Writing Style and First Amendment Jurisprudence

by Michael C. Dorf

Today I am participating in an all-day conference at Georgia State Law School called Reflections on Justice Kennedy. As you can see from the conference website, there's a great lineup, although unfortunately the journalists (Nina Totenburg, Adam Liptak, and Emily Bazelon) all had to pull out to stay in DC to cover the latest on the Kavenaugh nomination. Organizer (and DoL blogger) Eric Segall put the panel together months ago--before we had learned that Justice Kennedy was retiring--so the timing is simply bad luck. Anyway, the rest of us will do our best to keep it lively. The day starts at 8 a.m., and proceedings will be streamed live here if you want to tune in. It will also be recorded by CSPAN for possible future airing.

From 10:15 - 11:30 I'll be filling in for Bazelon on a panel on the substance and style of Kennedy's prose, along with Jamal Greene and Eric Berger. With Eugene Volokh, I'll be talking about Justice Kennedy's First Amendment jurisprudence from 11:30 am - 12:45 pm. Professor Segall will moderate both of the panels I'm on. Here I'll offer a preview of my remarks.

Thursday, October 04, 2018

Kavanaugh and the Manly Man's Culture of Life Without Consequences

by Neil H. Buchanan

[Note to readers: My latest column on Verdict, "The Kavanaugh Travesty: A Roiling Brew of Alcohol and Entitled Self-Righteousness," is now available.  I mention it briefly in my column below, but it is a stand-alone piece that I hope many of you will read and possibly even enjoy.]

Saturday Night Live's lampooning of Brett Kavanaugh's September 27 testimony was hilarious, with Matt Damon perfectly depicting Kavanaugh's extreme anger, childish petulance, and blatant lying.  Even so, they missed an opportunity -- an opportunity that was suggested not by a comedic genius but by CNN legal analyst Jeffrey Toobin.

Toobin pointed out after the hearing that, if Christine Blasey Ford had been the unhinged, shrieking, self-pitying witness that Kavanaugh was, she would have been immediately dismissed for lacking all credibility.  And that observation has led me to imagine how SNL could have brought that alternative reality to life.

Imagine juxtaposing the real testimony from Blasey and Kavanaugh with imagined testimony by, say, Kate McKinnon and Benedict Cumberbatch, with the imaginary Blasey screaming and accusing everyone of a conspiracy while the imaginary Kavanaugh calmly but emotionally lays out his story.  Then they could have had Melissa McCarthy play a purple-faced Senator Amy Klobuchar mirroring Lindsey Graham's operatic performance, screaming at Republican senators and sarcastically attacking their motives.

That alone is an interesting thought exercise, but what would bring the point home would be to then contrast the real cable-news reactions to the testimony with reactions to the alternative reality.  In the real world, people talked about how believable Blasey was, but right-wing pundits were still backing Kavanaugh.  In the alternative world, left-wing pundits would stare ashen-faced into the camera and say, "I can't defend what Blasey just did.  And Klobuchar?  It's over."

It is sometimes difficult to depict the double standard under which gender issues play out in America, so this would have been a particularly helpful way to show that only a man could do what Kavanaugh did and still maintain any public viability.  If a woman had done even a fraction of that, the sexist presumptions that women are too emotional would have kicked into high gear.

But even with Blasey's impressive performance and Kavanaugh's (largely scripted) meltdown, as of this writing it seems likely that Kavanaugh will yet be confirmed to the Supreme Court.  What can we learn from this?

Wednesday, October 03, 2018

Reflections on Anthony Kennedy Conference

By Eric Segall

Are you tired of the Brett Kavanaugh controversy? If so, maybe take your mind of it by watching via live stream this Friday a symposium I am hosting on Justice Kennedy's career and legacy. The conference has an all star cast (minus a few nationally known reporters who for good cause had to cancel at the last minute because they had to stay in DC due to the aforesaid Kavanaugh controversy).

As you can see from the agenda below, we have a diverse group of law professors (five from the Volokh Conspiracy, two from right here at Dorf on Law, two from Balkinazation and a host of  extremely talented others). The format is conversations not speeches, the issues range from abortion and gay rights to federalism, separation of powers, and freedom of speech and religion, as well as Kennedy's writing style and his role as the median Justice.

Republicans Embrace an Exclusionary Rule for Kavanaugh

by Michael Dorf

Here is a story I was told by a former clerk to the late Chief Justice Rehnquist about the late Chief Justice Burger: One day, the Supreme Court was hearing oral argument in a Fourth Amendment case in which the issue was whether the police had probable cause to search the defendant's home for drugs. Burger was unhappy with the direction the argument was headed, so he interrupted the defendant's lawyer. "What if the police came into your client's house and saw a dead body?" Burger asked. The lawyer replied that if the police lacked probable cause or consent to enter the house, the evidence thereby obtained would be inadmissible at trial, regardless of whether the charge were drug possession or murder. Burger harumphed unhappily. A few moments later he interrupted the lawyer and asked "What if there were two dead bodies?!"

The story was told to me to illustrate that Warren Burger was not exactly the smartest or most logical justice to don a robe at One First Street, NE. Because it's a funny story, I retell it whenever I have the opportunity, even though I am pretty sure it never happened. (I searched oral arguments and could not find anything like this.) Retelling the story is a way of saying that even if this actual exchange never occurred, it has the ring of truth. Burger was a bit of a dope.

I retell this story now to make a different point, however: Burger really really hated the Fourth Amendment exclusionary rule. In that, he was hardly alone. A great many conservatives hate the exclusionary rule. Under Chief Justices Burger, Rehnquist, and Roberts, the Supreme Court has found many exceptions to the exclusionary rule. Conservative justices--and even more so conservative politicians--think it is a technicality. Why should the criminal go free just because the constable has blundered?

That's a legitimate question. I don't want to say that there's nothing to complaints about the exclusionary rule. Indeed, I myself might favor replacing it with some other remedy for Fourth Amendment violations if I thought that some other remedy would work. I just don't think any alternative is realistic.

But here's the thing: Despite widespread conservative dislike of the exclusionary rule, Senate Republicans who are intent on confirming Brett Kavanaugh to the SCOTUS are applying a super-strong version of it.

Net Neutrality

by Michael C. Dorf

I'll be back in a couple of hours (or less) with another Kavanaugh-related post, but for your morning read, check out my new Verdict column. It provides a brief primer on net neutrality, summarizes the DOJ's argument for pre-emption of California's new net neutrality law, outlines three lines of potential response by California, and offers some broader thoughts on how the conservative attack on the administrative state could be good for progressive regulation in the long run. To be clear, my observations about the potential upside of the attack on the administrative state is an effort to make lemonade out of lemons, not my first-order preference.

Tuesday, October 02, 2018

The Bracing Clarity Provided By the Kavanaugh and Graham Meltdowns

by Neil H. Buchanan

Although it has been a depressing spectacle, the Brett Kavanaugh controversy has provided a few possible upsides.  This seems, for example, to have become a breakthrough moment in which many more people have come to understand why women (and men) who are the victims of sexual abuse do not immediately (or, in many cases, ever) report the crimes.  That alone is a major cultural shift.

On the more cynical side, it is a plus of sorts to watch Republicans shift from a stance that in the recent past would have seen them blatantly saying, "I don't believe her," to now saying essentially, "I believe her, but I don't care."  Just as it is a positive thing for racists to understand that it is bad to admit openly to racism, there is something positive about the social realities that have led to this newer version of Republican misogyny -- especially because their new approach is more obviously cruel, even though it is unspoken.

And of course, we are still facing the reality that either Kavanaugh or an ideological clone will soon be on the Supreme Court.  This means that it might be better for non-Republicans for Kavanaugh to win this battle, because he will be permanently tainted, and because a successful Republican effort to ram him through will be a net plus for the Democrats in the mid-terms.  (It is true that permanently undermining the legitimacy of the courts is bad for everyone but the most powerful, but this is arguably a "get it out in the open" moment in which we might as well admit that we have passed the point of no return.  I take no position on that debate here.)

The most unexpectedly positive (yet still cynical) aspect of this entire debacle, however, is that Kavanaugh provides definitive proof that the Republicans were not "taken over by Trump," which has become the conventional wisdom (and which I have believed to varying degrees at different times over the past two years).

Kavanaugh predates Trump, and thinking about Kavanaugh's very public self-unmasking highlights just how much the Republican party was already the party of Trump, long before 2016.  And when Senator Lindsey Graham decided to go all in on white male grievance and win-at-all-costs hypocrisy, the picture could not have been clearer.

Monday, October 01, 2018

The Kernel of Truth in Brett Kavanaugh's Conspiracy Theory

by Michael C. Dorf

During his prepared remarks at last Thursday's hearing, Judge Brett Kavanaugh claimed that he has been the victim of an "orchestrated political hit" and "smears" emanating from the "left." Republican senators repeatedly echoed this complaint. Yet the vast left-wing conspiracy theory has a glaringly obvious problem. As Senator Khamala Harris made clear in her questioning of Kavanaugh, it doesn't explain why Democrats are targeting Kavanaugh for supposedly false allegations now when they did no such thing to the previous Trump SCOTUS nominee. Here's the exchange:
HARRIS: I’ll point out to you that Judge — Justice now — Neil Gorsuch was nominated by this president. He was considered by this body, just last year. I did a rough kind of analysis of similarities — you both attended Georgetown Prep, you both attended very prestigious law schools, you both clerked for Justice Kennedy, you were both circuit judges, you were both nominated to the Supreme Court, you were both questioned about your record — the only difference is that you have been accused of sexual assault. How do you reconcile your statement about a conspiracy against you with the treatment of someone who was before this body not very long ago? 
KAVANAUGH: I explained that in my opening statement, Senator. Look at the evidence here, the calendars, look at the witness statements, look at Ms. Keyser’s statement.
Note that Kavanaugh does not even try to answer Harris's question. His opening statement does not refer to Justice Gorsuch in any way, not explicitly or implicitly. What he is saying, in essence, is that he thinks the evidence against him does not stand up, which is tendentious but in any event has nothing to do with the question Harris posed: What's his account of Democrats' supposed willingness to make stuff up about him but not Gorsuch and, for that matter, not Roberts or Alito before him? Neither he nor any of the Republican members of the Senate Judiciary Committee attempted to answer that question.

As a service, I'll suggest an answer for them and then explore where it leads.

Friday, September 28, 2018

Evaluating the Blasey Ford / Kavanaugh Hearing

by Michael C. Dorf

Yesterday was excruciating. I can only imagine what it was like for women (and men) who are themselves survivors of sexual assault.  I really really really wanted to write about something else today. But I'm a constitutional law professor and whether the Senate confirms Brett Kavanaugh to the Supreme Court is an extraordinarily important question. I continue to think--as I wrote last week--that the ultimate stakes for legal doctrine are low: If Kavanaugh is rejected or withdrawn, the Senate will confirm a very conservative replacement one way or another. Nonetheless, what happens next will shape the particular path of the Court and of constitutional politics for a generation or more. I feel some obligation to weigh in. Herewith a few observations.

Thursday, September 27, 2018

Like A Virgin: Brett Kavanaugh's Purity Claims

by Sherry F. Colb

During his unprecedented FoxNews interview to clear his name, wife by his side, Brett Kavanaugh declared his innocence for all to hear. In the course of answering the interviewer's questions, he asserted that he did not have sexual intercourse during high school or for years afterward. Asked for clarification, he said that he was a virgin in high school and for years afterward.

My first reaction to these virginity announcements was to wonder how they could be relevant to Kavanaugh's guilt. What he stood accused of doing would not have lost him his virginity. But after thinking about it, I remembered who else brings up their virginity to fight off charges: women in the past. When women accused men of raping them, the women could long invoke their virginity, their chastity, as a basis for concluding that they would not have consented and that they therefore did not consent.

How Bad Will Things Become? Part Five: The Five Supreme Court Reactionaries Defund the Government

by Neil H. Buchanan

As I write this column, the Senate Judiciary Committee's emergency Kavanaugh hearing is either ongoing or is about to begin.  Although that hearing will certainly be important and could even change the course of history, it will also surely be stomach-turning in any number of ways.  I am, therefore, ignoring it as much as I can.

I thus return here to writing about the stakes of the Republicans' ongoing effort to remake the Supreme Court by adding either Brett Kavanaugh or one of several Kavanaugh-equivalents as a fifth arch-conservative vote.

I cannot, however, resist adding that Republicans are once again missing what seems like a promising opportunity to make lemonade out of lemons.  If they merely go through the motions with today's hearings but then immediately "plow through" with scheduled votes by the committee (tomorrow morning) and soon thereafter in the full Senate, not only will they be damaging themselves politically, but they will have missed an appealing escape route for themselves and Kavanaugh.

How would that work?  Republicans are claiming that the Democrats are merely using obstructionist tactics to delay the inevitably positive vote on Kavanaugh's nomination.  Leaving aside the sheer audacity of Senate Republicans accusing anyone else of politically motivated obstructionism, it continues to be impossible to imagine that they will not successfully seat someone before the next Congress takes over in early January.

But if the Republicans are truly worried about timing, they have a simple way out.  They can withdraw Kavanaugh and confirm someone else, but they could promise that Kavanaugh will be named to the next open seat after they have had time to prove that he is as pure as the driven snow.  They will thus have prevented his life from being "destroyed," promising that they will do (their version of) right by him as soon as they can -- without risking the loss of their current opportunity to put a new movement conservative on the bench.

It appears, however, that Republicans (pending, one might imagine, further political earthquakes today or in the next few days) are all set to inflict maximum political damage on themselves by pushing Kavanaugh through.  Democrats will surely be grateful.

The bottom line, in an event, is that the Court will soon shift substantively even further to the right than it had already moved with Anthony Kennedy as the swing justice.  (Recall, after all, that Kennedy voted in his final term to uphold Donald Trump's Muslim ban, gleefully bashed public sector unions, allowed states to suppress votes, and on and on.)  How bad could things become?

Wednesday, September 26, 2018

The Danger of Deferring to Groups Demanding Deference

by Sherry F. Colb

In my column for this week, I discuss the destructive ways in which we can at times shut down people who express ideas or use words that someone says are offensive. Examples I use include stigmatizing the word "picnic" and the word "Jew" (as a noun, to refer to a person of Jewish ancestry or faith). One of the ideas in the column is that we should get out of the habit of deferring to people who claim an elevated status, whether because of oppression or for some other reason.

In this post, I want to talk more about why deference is a mistake. The paradigmatic example of deference on the left involves some individual or group of people, defined by an identity characteristic such as gender or ideology, insisting that their position or factual or normative perspective is the only right way to look at things. Someone from outside the relevant group might express a viewpoint only if it is the same as that of the group. If the outsider strays from that view and says that he thinks something else is true--if he fails, in other words, to defer--then he will face a disproportionately harsh penalty for that failure.

Tuesday, September 25, 2018

How the Kavanaugh Situation Reflects on Pence's Question to Himself: "Why Am I Such a Loser?"

by Neil H. Buchanan

Remember the articles from back in June and July, immediately after Justice Anthony Kennedy's surprise retirement, with headlines like: "Brett Kavanaugh, Consensus Top Choice, Awaits Inevitable Nomination?"  You know, the news stories that stated as obvious fact that the only surprise about Kavanaugh was that he was not already on the Court, so superior was he to all of the other possibilities, and that Neil Gorsuch was lucky to have been tapped ahead of Kavanaugh?

You remember those news reports, right?  Of course not.  Kavanaugh was merely one of many possibilities, and while insiders were hardly surprised by his nomination, he was by no means the obvious superstar pick whose inevitability was impossible to deny.  He was just another carefully groomed movement conservative who would reliably move the Court even further to the right, and his extra oomph was that he was the most likely among them to give Donald Trump a pass when the Court inevitably must weigh in on presidential immunity from all things Mueller-related.

How is it, then, that the now-severely-tainted Kavanaugh is being so fiercely defended by Trump and nearly all Republicans?  Setting aside my argument that Kavanaugh's extra-extreme views would not ex ante have made him the top choice even for most Senate Republicans (all of whom are quite extreme in their views, but perhaps a notch or two less so than Kavanaugh), why would they embrace him so completely now?

In answering this question, it will be possible to ponder another riddle: Why is Vice President Mike Pence such a political orphan, when he should reasonably have believed that he would be the Republicans' knight in shining armor?

Monday, September 24, 2018

Finders, Keepers, Losers, Trump

by Michael C. Dorf

Last week, while in North Carolina surveying some of the damage caused by Florence, the president came across a property on which a yacht had washed ashore during the storm. According to the NY Times story:
“Is this your boat?” Mr. Trump asked the homeowner. 
When the man shook his head and said “No,” the president turned with a grin and replied, “At least you got a nice boat out of the deal.”
Then, the real-estate-tycoon-turned-president added: “They don’t know whose boat that is. What’s the law? Maybe it becomes theirs.”

This was, admittedly, not an important moment in the Trump presidency, but it is a reminder that the man whose principal claim to power is business acumen has no idea how a system of capitalism actually works. Nor does he have any sense of justice in a regime of private property.

Friday, September 21, 2018

Alternatives to FBI Investigation

by Michael C. Dorf

As the artificial deadline approached for Dr. Christine Blasey Ford to accept the invitation of Senate Judiciary Chair Chuck Grassley to testify by his completely artificial deadline of Monday, word came yesterday that she and her lawyers were trying to negotiate better terms. I  have no idea whether such negotiations will work and therefore she will testify some time later next week, whether she will cave and testify on Monday, whether stalemate will reign and the Republican-controlled chamber will proceed to a vote on Judge Kavanaugh's nomination, or whether some hitherto unimagined new development will take us all in a new direction.

Meanwhile, the claim by Grassley that the FBI can't conduct further investigation following a  nomination doesn't pass the laugh test. Grassley wrote of the Senate: "We have no power to commandeer an Executive Branch agency into conducting our due diligence" (double emphasis in original). That's true, kind of, except that the Senate does have the power to refuse to confirm a nominee unless the Executive Branch does some further work. One might even say that this is, in appropriate cases, a duty of the Senate as part of the "advice" it gives to the president before it gives its "consent."

Perhaps by the time readers encounter this column, Grassley will have softened his position, but even if not, there will be further investigation of Dr. Blasey's allegations. Here I'll examine two possible avenues.

Thursday, September 20, 2018

How Bad Will Things Become? Part Four: The New Supreme Court Majority Brings Back Lochner -- and More

by Neil H. Buchanan

In my latest Verdict column, "What Kavanaugh Could Have Said, But Didn’t: 'I Honestly Don’t Know What Happened, and I’m Willing to Accept the Senate’s Judgment'," I offer a suggestion about how Brett Kavanaugh could have responded to the sexual assault and attempted rape allegations against him in a way that would have been humane and honest and that might have actually won over some skeptics.  I then note that he went in exactly the opposite direction, proving even more emphatically that he should not be on the bench.

I continue to be puzzled by the Republicans' strategy here.  As Professor Dorf ably explained yesterday, even though Republicans are acting as if they absolutely must rush Kavanaugh through as quickly as possible, the odds that they will somehow fail to fill this Supreme Court seat with either Kavanaugh or another hard-line movement conservative are essentially one in a gazillion.  That is my characterization, not Professor Dorf's, but the point is that the Republicans have -- at a minimum -- the luxury of the lame-duck session in which to do the deed.  Taking an anti-woman stance now is an unforced political error on the Republicans' part.

In the end, we will have a 5-4 majority of hyper-conservatives on the Supreme Court.  Perhaps the fifth vote will be Kavanaugh's, perhaps not.  Either way, winter is coming.  The question is how bad it will be.

Therefore, it is now time to add to my series of columns in which I have discussed how bad things might become under a post-Kennedy court.  In Part One, I focused on the potential damage to women's reproductive rights.  Parts Two and Three focused on the question of whether the new hyper-conservative bloc would have any hesitation in remaking the law in their own image and whether they would bother to be at all subtle about it.  Here, I will focus on how the new Roberts Court might change some substantive areas of the law.

Wednesday, September 19, 2018

The Stakes in the Next Round of Kavanaugh Hearings (if they ever happen)

by Michael C. Dorf

Reporters--especially in the law-focused media to which readers of this blog pay attention--have worked  themselves into a frenzy over the scheduled hearing into whether Brett Kavanaugh sexually assaulted Christine Blasey Ford when he was 17 and she was 15. As I write this on Tuesday afternoon, it is not clear that a hearing will occur. Still, I want to make a provocative claim: Even if it does, this is a fairly low-stakes matter. I know that sounds counter-intuitive, but bear with me.

Tuesday, September 18, 2018

The Case For Kavanaugh Was Already a Bad Joke

by Neil H. Buchanan

At the beginning of my column last Thursday, I included a "Note to readers" that read as follows:
I had planned to write the fourth of my "How Bad Will Things Become?" columns today, discussing various areas of the law that likely-future-Justice Brett Kavanaugh and his right-wing colleagues might mangle for partisan purposes.  That column will, unless intervening events require further delay, be published next Tuesday, September 18.
Today is September 18.  Reasonable minds can differ, but I think the thunderbolt over the weekend, in which a woman went public with a credible accusation of sexual assault against Brett Kavanaugh, counts as such an "intervening event."

I truly do think that the content of what Kavanaugh, or any other nominee that the Federalist Society, Trump, and the Republicans (in that order) might put forward, is what ultimately matters.  And, as I have already discussed in Parts One, Two, and Three of that series of columns, there is plenty to worry about.  Because the rest of what I plan to write regarding the possible damage caused by a new Supreme Court hyper-extreme conservative majority is not Kavanaugh-specific, however, I will use today's column to talk about the status of Kavanaugh's nomination.

I am not predicting that Kavanaugh's nomination will die, of course, but I do think that it is important to assess where things stood before the big news broke over the weekend.  The state of play only a handful of days ago was that Republicans -- included the now-exposed imaginary moderate Republicans like Senator Susan Collins -- were untroubled by the process and substance of Kavanaugh's possible elevation to the Court.  It is worth remembering why their views were so dangerous.

Importantly, with the sexual assault allegation against Kavanaugh now dominating the news, there are inevitable comparisons to Clarence Thomas's nomination, which is now remembered entirely for sexual harassment allegations against Thomas and the Senate Judiciary Committee's shabby treatment of Anita Hill (due in depressingly large part to Joe Biden's mishandling of the mess).  I will offer a parallel to Thomas, but that comparison will not have anything to do with different types of mistreatment of women.

Monday, September 17, 2018

My Mostly Uninformed Speculation About What Manafort Will Dish

by Michael C. Dorf

Paragraph 8 of Paul Manafort's plea agreement requires him to "cooperate fully, truthfully, completely, and forthrightly" with the Mueller investigation. Does this mean that Manafort will implicate Donald Trump in the Russian effort to influence the 2016 presidential election or obstruction of the investigation? That depends on what Manafort knows, but it is difficult to believe that Mueller's team would have cut the deal it did with Manafort if not.

After all, Manafort was already facing prison time for his conviction last month in a federal court in Virginia, and the trial on additional charges in federal court in DC was very likely to go against Manafort as well. An ordinary prosecutor will often cut deals with defendants who would be easily convicted at trial simply to save resources, but (as Justice Scalia famously noted in his dissent in Morrison v. Olson), that sort of resource constraint plays a much less substantial role in the exercise of prosecutorial discretion by a special prosecutor. Mueller did not go easy on Manafort to avoid the uncertainty of a second trial or to conserve prosecutorial resources for other, more important, cases. Presumably Mueller cut the deal because Manafort had dirt to dish.

The question is what dirt and on whom.

Saturday, September 15, 2018

Originalism Without History: A Response to Professor Randy Barnett

By Eric Segall

At the Volokh Conspiracy, Professor Randy Barnett has a long post about Brett Kavanaugh's testimony concerning originalism (and other matters). Barnett focuses some of his remarks on the following three questions put to Kavanaugh by Senator Kennedy referring to District of Columbia v. Heller: "Doesn't the originalist approach just require a judge to be an historian? And an untrained historian at that? Wouldn't we be better off hiring a trained historian to go back and look at all of this?"

These questions, of course, suggest a critique of originalism made by many legal scholars and academic historians: the study of history is and should be a rigorous discipline requiring the person doing the studying to immerse herself in the peoples, traditions, values, and events of long ago. Trying to decide what the text of a 1788 or 1868 document meant at the time is simply not an exercise judges, law clerks, and lawyers are trained to do.

Kavanaugh, not surprisingly, ducked these questions by saying that for "most ... constitutional provisions, there's been a body of cases over time interpreting the provision, and you don't have to do the kind of excavation" the Heller Court did.

Friday, September 14, 2018

A World (Only Partly) Shaped By Two September Crises

by Michael C. Dorf

On Tuesday, Donald Trump commemorated the 17th anniversary of the 9/11 terrorist attack in true Trumpian fashion -- by pumping his fists self-congratulatorily upon arriving in Shanksville, Pennsylvania for a solemn ceremony and by sending out an enthusiastic but otherwise incoherent tweet. As Trevor Noah observed, bizarre and loathsome as Trump's 2018 behavior was, it was not nearly as bad as what he has done on past 9/11 anniversaries or on the awful day itself.

Meanwhile, tomorrow will mark the 10-year anniversary of the collapse of Lehman Brothers, which set in motion what we came to call the financial crisis and the Great Recession. To be sure, the preceding dramatic fall in the subprime mortgage market and broader housing market, as well as other firm-specific troubles like those that hit Bear Sterns, make the selection of any single date as the start of the financial crisis and Great Recession contestable. Nevertheless, given the cascade of events that followed Lehman's collapse, it is as good a point as any to choose to remember.

In today's essay, I want to use the confluence of these two anniversaries as an occasion to make some observations about how these events have shaped our current landscape--and how they have not.

Thursday, September 13, 2018

Another Trump Casualty: The Myth of Susan Collins

by Neil H. Buchanan

[Note to readers: I had planned to write the fourth of my "How Bad Will Things Become?" columns today, discussing various areas of the law that likely-future-Justice Brett Kavanaugh and his right-wing colleagues might mangle for partisan purposes.  That column will, unless intervening events require further delay, be published next Tuesday, September 18.]

[Update on 9/18: Surprise!  Or not.  Intervening events indeed require further delay.  Part Four of "How Bad Will Things Become?" is now rescheduled to 9/20.]

Two weeks ago, a Washington Post columnist wrote, "Rest in Peace, Lindsey Graham."  It was brutal, making the point that Graham had gone from being the late John McCain's best bud to being Donald Trump's aggressive point man in the Senate, even though Graham's current persona requires ignoring everything that McCain -- and Graham himself -- had said and believed to be true about Trump.

It is a rather amazing thing that someone so lacking in core convictions not only thought he should be the president but that the political press treated him as a brave, independent-minded teller of hard truths.  Yes, the thought went, Graham is a hard-right hawk and a movement conservative, but he's funny and honest and you know where he stands.  And now Graham spends his time running interference for Trump.

The Trump era is not lacking in examples of people bending themselves into pretzels to survive.  Even McCain himself, as I wrote last week, was anti-Trump more in theory than reality, and he (along with all of his colleagues) again and again proved that the defense of institutions and nonpartisan ideals was no match for their glee in checking items off of the hardcore conservative wish list.

Yesterday, news emerged that Senator Susan Collins, the Maine Republican who has managed -- against all evidence -- to maintain a reputation as a moderate and a voice of reason, is now being targeted for a reelection challenge.  There is nothing notable about a politician facing an opponent -- that being what elections are all about -- but this challenge is explicitly contingent on Collins's vote on the Kavanaugh nomination.

That story is mildly interesting, and I will discuss it momentarily.  My primary focus here, however, is on Collins's crumbling facade of reasonableness and affability.  Many of us have seen all along that her image is a peculiarly indefensible myth, and it now appears that she is revealing her inner hack, unable to handle the pressure that comes with being confronted with her own hypocrisy.

Wednesday, September 12, 2018

Abortion on Demand and An Unborn Justice

by Sherry F. Colb

In my column for this week, I discuss the changed meaning of "factory farming" in the public discourse. I think it is important to be aware of this change, because one might otherwise mistakenly think that we have experienced a dramatic revolution in people's attitudes regarding the exploitation of animals. More people than ever seem to be saying that they oppose factory farming, and almost all animal farming is factory farming, so q.e.d. And yet polls find that only 3% of the population identifies as vegan, so it seems that people have come to use the phrase "factory farming" in a manner that differs from how it was once used. "Factory farming" now signifies "something that I condemn and that has nothing to do with me" rather than the reality of "what actually happens to the animals whose slaughtered bodies and bodily fluids I consume each day."

Other words and expressions both evolve and settle into meanings that carry more baggage than meets the eye. In this post, I want to focus on the expression "abortion on demand." I focus on it, because Judge Brett Kavanaugh--Donald Trump's second (all-but-certain) appointment to the U.S. Supreme Court--used those words in a dissenting opinion. He wrote the opinion in connection with an abortion case involving a pregnant undocumented minor. His use of the phrase "abortion on demand" is revealing. It signals something about Judge Kavanaugh's thought process regarding abortion.

Tuesday, September 11, 2018

How Bad Will Things Become? Part Three: Will the Court's New Reactionary Bloc Bother to Cover Its Tracks?

by Neil H. Buchanan

The Senate's confirmation hearings for Brett Kavanaugh have ended, and unless something wildly unlikely happens, the Republicans in the Senate will soon accelerate their abandonment of anything resembling responsible governance and place him on the high court.

Even beyond the trampling of process, it is notable that not one Republican has said, "You know, I'm a conservative, and I'm even a proudly non-moderate conservative, but this guy is too much even for me."  That should not actually be a surprise, however, because the notion that there is any meaningful ideological distance across the Republican Party has become increasingly difficult to take seriously.

The only surprise so far has been how unashamedly and nakedly partisan Republicans have been throughout this process; but given the trend of their actions over the past few years, I am honestly not sure why that surprised me.

Will this utter disregard for how things look -- the sense of impunity that comes with feeling that one can wield unchecked power -- now carry over from Senate Republicans to the Supreme Court's majority of five hard-right movement conservatives?  Or will they continue to dress up their partisanship in nice words and high-sounding principles?

I will attempt to answer that question here.  In my next column on Thursday, I will explore what the newly reinforced arch-conservative majority will do to dismantle constitutional law -- and modern government -- as we know it.  [9/13 Update: That column will be published next Tuesday, 9/18.]

Monday, September 10, 2018

Job-Shaming, Bullshit Jobs, and Lawyers

by Michael C. Dorf

Last week I learned a new term: "job-shaming" is the act of trying to make people feel bad because they work in jobs that are either generally considered somehow undesirable or they are less prestigious and/or lucrative than some job they previously held. Actor Geoffrey Owens, who at one time had a role on The Cosby Show, was seen working at a Trader Joe's in New Jersey. The Internet properly condemned those who job-shamed Owens. Then, Tyler Perry offered Owens an acting job, so the story had a happy ending -- except, of course, that if there's nothing wrong with working at Trader Joe's (and I want to be 100% clear that I agree there's nothing wrong with working at Trader Joe's), then the story had a happy ending, or at least a perfectly fine ending, even before Perry offered Owens an acting gig.

To recognize that no one should be ashamed of the work they do is not to say, however, that everyone finds their work equally satisfying. Some jobs do not pay enough for people to support themselves and their families. Some jobs are dangerous, unpleasant, and/or boring. Some people have what seem like desirable jobs that are ruined by abusive bosses. Etc.

Today I want to focus on another way in which a job can be less than fulfilling: If it is what anthropologist David Graeber calls a "bullshit job." I confess to not having yet read Graeber's book Bullshit Jobs, but I did hear him interviewed on the NPR podcast Hidden Brain. And while I found most of what Graeber said fascinating, I was alarmed by his description of many "corporate lawyers" as working bullshit jobs. My first thought was "well I'm a constitutional lawyer, not a corporate lawyer, so I'm okay," but then I realized that Graeber did not mean to single out lawyers who focus on transactional work as distinct from litigators. As I confirmed by looking in his book, he uses the term "corporate lawyers" to refer to lawyers who represent corporations, which includes most of my former students who have gone on to become litigators. And if my job consists of training people to hold bullshit jobs, then I suppose I have a meta-bullshit job.

In the balance of the essay, I'll explain why I think that's not true.

Friday, September 07, 2018

What We Learned From the Kavanaugh Hearings

By Eric Segall

If you didn't have time to spend 12 hours a day and night watching the Judge Brett Coach K Kavanagh hearings no worries I am here for you. Ten take always:

Settled Law, Precedent on Precedent, and Abortion: What We Learned and Didn't Learn About Judge Kavanaugh's Views on Abortion

by Michael C. Dorf

Let's begin with the obvious: The Republican-controlled Senate is extremely likely to confirm Judge Kavanaugh to the SCOTUS. Disruptions of the proceedings by protesters and complaints about the process by Senate Democrats have failed if their aim was to block his confirmation. However, that cannot have been their sole aim. Cynics will say that those Senators on the Judiciary Committee considering presidential runs have used the hearings to demonstrate their commitment to the resistance. My own view is that it is perfectly legitimate to engage in constitutional politics in order to build solidarity to fight and win another day. In that respect, I regard the strategy of Senate Democrats and the more sophisticated of the protesters as much akin to impact litigation brought in the expectation of losing a particular case but serving a larger organizing purpose.

That said, the Kavanaugh hearing has nonetheless been instructive in a number of respects. In today's essay I'll focus on abortion. My bottom line will be that despite Judge Kavanaugh's superficial efforts to conceal his views, his position is pretty obvious to anyone with any sophistication.

Thursday, September 06, 2018

Corruption in Sports, Toxic Masculinity, and American Universities

by Neil H. Buchanan

With the beginning of the college football season, the conversation should be about whether one's favorite team is looking good or bad.  There is, of course, plenty of that.  As a longtime Michigan fan, for example, I am aware of a mini-controversy over (completely accurate) negative comments that former Wolverine great Braylon Edwards leveled -- via Twitter, of course -- at the team's truly terrible performance in its opener against Notre Dame.

Although I hate to be on the losing side of things, this is exactly how sports should be.  One of my alma maters (actually almae matres) is overpaying an overrated and under-performing coach, and I am disappointed.  This gives me a respite of sorts, something to think about other than whether the U.S. political system will survive the mid-term elections.

On a slightly more intense level, a professor at the University of Kansas has called for his university to drop its football program entirely after its loss to a lower-division school on Saturday.  There, the argument was not merely about performance -- fans of Kansas's perennially losing football team can only dream of being disappointed by something like Michigan's 28-11 record over the past three years -- but about the financial drain of running a football program at Kansas.  (Even with the TV money and all that, only a dozen or so of the most dominant programs actually make money from college football, while the rest subsidize their disappointments.)  Most importantly, everyone should worry about the mental and physical toll of the game on the young men and boys who play it.

But the biggest story in college football in the last few months has revolved around spousal abuse by a now-former assistant coach at Ohio State and, much more to the point, the multiple levels of enabling that have been exposed at that university.  As I will explain, the head coach enabled the abuse, and the university then enabled the head coach by whitewashing the whole thing.

Although mistreatment of women is very much a part of Donald Trump's story, at least the Ohio State situation is otherwise a distraction from the existential issues that the country now faces.  Again, therefore, I am treating this column -- as serious as its subject matter is -- as a break from the rest of what is wrong in the world.

The story itself is quite ugly, and the university's response provides further evidence of how completely out of control big-time sports has become at places like Ohio State -- and, in this regard, there are far too many places like Ohio State.

Wednesday, September 05, 2018

R-E-S-P-E-C-T Her Postmortem Rights of Pub-lic-i-ty?: The Aretha Franklin Estate May Test Michigan Law

by Diane Klein

When she died on August 16, 2018, Aretha Franklin became the latest major musical star to die intestate (as Prince did in 2016), leaving her family and fans grieving - and her heirs facing some complex issues of state and federal estate law.

The first step - determining who her heirs are - is easy.  Franklin was the mother of 4 sons - Clarence (born in 1956, when Aretha was just 12 and named after her own father), Edward (born in 1957), Kecalf Cunningham, and Ted White, Jr. - all of whom survived her, and who will share her estate equally under Michigan law.  Of course, without a will, dividing an estate into equally-valued shares is not so easy (how do you divide eighteen Grammy awards four ways?), and niece Sabrina Garrett Owens, selected just before Franklin's death by her sons to serve as personal administrator, will have her work cut out for her.

But the real complication lies elsewhere - in the recognition, valuation, and taxation of a somewhat unusual asset, Aretha Franklin's postmortem right of publicity.


by Michael Dorf

I know, I know. Today is Day 2 of the Kavanaugh confirmation hearing. I'll have something to say about the hearing as a whole on Friday. Meanwhile, I wrote a piece on the remarkable efforts to change NAFTA currently underway. In it, I explain why Trump can unilaterally blow up NAFTA but that if he wants it improved or even modified, he needs congressional cooperation. You can find the column on Verdict.

Meanwhile, in a few hours, Prof. Klein will have a piece here on Aretha Franklin's estate.

Tuesday, September 04, 2018

The What?, the Huh?, and the Why? of the McCain Deification

by Neil H. Buchanan

The last week has seen a truly unprecedented public reaction to the passing of an American politician.  Across a series of memorial services and events celebrating the life of the late Senator John McCain, as well as in the pages of the newspapers and on the screens of the television networks, there was almost complete agreement that McCain was a singular patriot, a once-in-our-lifetimes hero whose passing marked the end of an era.

(I will not provide links here, simply because there are so many examples.  For those who might be reading this column at some point in the future, simply search for McCain's name in late August or early September of 2018.  You will have hundreds of links from which to choose.)

This is in many ways understandable, of course.  The time after even a controversial public figure's death will inevitably bring forth tributes from both sides, with criticism at least muted and an emphasis on the humanness of the moment.  And McCain was not a notably controversial figure.  Even so, the response to McCain's death went far beyond those norms, for reasons that are worth exploring.

It is common to appropriate the reputations of respected figures from the past, to try to recruit them to one's cause: If Orwell were alive today, he would see through this nonsense in a second, or I think Dr. King would actually be opposed to ____ today, not for it.  And of course the standby: What would Jesus do?  McCain was rather quickly pulled into that group, but there is a certain logic to it.

The gap between the McCain who was all but deified for the past week and the McCain who actually existed is wide.  Understanding how that happened -- and its extreme degree -- is a lesson in modern American politics.  The bottom line, I think, is that McCain was being used -- but in a way that he most likely would have approved of (and even exulted in) -- by people who needed to turn him into more than he actually was.

Saturday, September 01, 2018

A Donald Trump Pop Quiz

By Eric Segall

In light of the holiday weekend, and the upcoming national travesty we call a Supreme Court confirmation hearing, I thought I'd lighten the mood just a tad with a pop quiz about our President. These are true and false questions. The answers (and a few editorial comments) are below.

Friday, August 31, 2018

Trump's Unwarranted & Dangerous Attack on Google Inadvertently Raises a Serious Issue

by Michael Dorf

On Tuesday, President Trump tweeted that Google had "rigged" its search results to yield only "fake news" -- i.e., accurate stories from reputable sources that portray him in a negative light -- when one searches for news about him. He added that this "very serious situation . . . will be addressed." Later that day, Trump extended his warning to Facebook and Twitter, which he apparently believes are also rigging their algorithms to promote anti-Trump "fake news" at the expense of more pro-Trump sources.

The accusation is almost certainly nonsense. I say "almost certainly" because Google does not make its algorithm public, and so it is impossible to know for certain that deep within it there is no line of code that favors anti-Trump stories, but Google has certainly denied any such "rigging." Facebook and Twitter are a bit different. As social media sites, their algorithms give prominence to material shared and liked by others one likes and/or follows. Consequently, someone who is liberal will find stories that skew liberal; someone who is conservative will find stories that skew conservative; and someone who only likes cat videos will find stories that skew feline. But there appears to be no evidence that any of these tech companies is deliberately skewing the results--except to the extent that reality has a liberal bias.

Accordingly, in the current environment, one can best understand the Trump accusation and threat as an effort to chill speech. If Trump were to follow up on his threats--as Larry Kudlow has suggested he might--that would be a clear First Amendment violation, although proving that any regulatory action undertaken by the Trump team was motivated by the aim of censorship would be tricky. As I wrote last November, I thought that there was sufficient evidence that Trump's DOJ was seeking to block the AT&T/Time Warner merger as a result of Trump's attacks on CNN to warrant discovery. However, the district judge ultimately kept such evidence out. And the SCOTUS travel ban decision this past June suggests that we have entered an era in which judges feel it is not acceptable to admit that the current president routinely acts out of unconstitutional motives, even when he repeatedly says that's exactly what he's doing.

Suppose, however, that Trump were right. Suppose that Google and Facebook actually were deliberately skewing their algorithms to show users anti-Trump material and to suppress pro-Trump material. That would not be unconstitutional, of course, because Google and Facebook are private actors to which the First Amendment does not apply. But might the government be able to block them from doing so without violating their First Amendment rights? That is the serious issue that Trump has inadvertently raised. The answer is not entirely clear.

Thursday, August 30, 2018

Honesty Is Also the Politically Savviest Policy

by Neil H. Buchanan

Amid the unending supply of dishonesty and outright sleaze emanating from the Trump White House -- which, to restate the obvious, differs from the last few decades of Republican practice only in degree, not kind -- it is sensible to wonder whether the Republicans' political success is an argument for Democrats to honor their opponents by copying them.

Maybe Michelle Obama's famed maxim, "When they go low, we go high," was a nice thought that has been proved not to work.  All three branches of the federal government and most state governments are now doing serious damage under Republican leadership.  What good did going high do for Democrats (or the country)?

I have certainly argued many times that Democrats should not unilaterally disarm, but my point has generally been that they should not compromise on policy positions in a foolish way.  The classic problem has been that Democrats -- especially of the Democratic Leadership Council right-centrist stripe (which is now embodied in the misbegotten Third Way group) --  formulate their proposals by negotiating against themselves and then move further to the right from there: "Well, we can't ask them for what we really want, of course, so let's show our good faith and go more than half way.  Oh wait, they're asking for still more?  I guess we have no choice."  See, e.g., the Obama stimulus.

Even when Democrats actually have power, they give away the store.  Long before Barack Obama became the new embodiment of the let's-not-be-too pushy approach -- not just on the stimulus but also with respect to financial regulation and his decisions not to investigate war crimes or prosecute Wall Street malfeasance, to say nothing of his "deporter in chief" immigration enforcement -- Bill Clinton actually signed the most watered-down version possible of the Family and Medical Leave Act after he explicitly refused to go back to a stronger version that the first President Bush had refused to support, but that Congress would have put on Clinton's desk.  Retaking ground seemed impolite.

In some sense, of course, Democrats have been learning lessons over time and becoming more assertive, but Obama's caution in dealing with the FBI's 2016 investigation of the Trump campaign's Russia ties was a perfect example of what we might call the Ruthlessness Gap.  Republicans freaked out about a quick conversation between Bill Clinton and AG Loretta Lynch but then threatened to scream "partisanship" if the evidence against Trump had been released.

Is now the time when Democrats must become the doppelgangers -- strategically, of course, not substantively -- of their opponents?  Is sleaze the only effective response to sleaze?  Happily, it now appears that Democrats have a chance to defeat Republicans by rejecting their cynicism.  It is possible, at long last, that virtue is a virtue.

Wednesday, August 29, 2018

Voluntary and Involuntary Trigger Warnings and the Freedom of Speech

by Sherry F. Colb

In my column for this week, I discuss trigger warnings, notifications by university faculty to students that they will be reading (or attending a lecture containing) material that could be very upsetting or disturbing. Warnings might precede presentations about such topics as sexual assault, child molestation, or wartime violence. Part of my discussion centers on the likely impact of an obligation to give warnings on the faculty who have to (or feel obliged to) give them and therefore on the materials that faculty choose to present.

In this post, I want to consider the different ways in which people might feel forced to say or do something that they would rather not say or do. As a professor in a university, a person would plainly feel the press of coercion if she received a communication from one of her superiors ordering her to give trigger warnings prior to any discussion of rape. That would be one way to compel compliance with a trigger warning policy, a policy that I suggest in my column would be substantively misguided in a variety of ways.

Tuesday, August 28, 2018

A New Angle in the Trump Scandals

by Neil H. Buchanan

When commentators review the litany of, shall we say, the problematic aspects of the emergence of Donald Trump as a political force, the list almost always includes Trump's absolute refusal to release his tax returns.  That refusal, we now know, was only the leading edge of examples of "rules of the game" that Trump would ignore, proving again and again how often we have relied on voluntary (or merely reputationally enforced) rules that truly matter but that never needed to be formally enacted into law.

I am hardly the only tax scholar who is of mixed feelings about that particular Trumpian refusal.  On the one hand, I most definitely understand the importance of norms, and seeing a candidate's or president's tax returns gives citizens the ability to get a sense of that person's honesty and integrity.  That is surely why, for example, Elizabeth Warren recently put ten years of her tax returns up for public inspection on a website.  And good for her, both in terms of politics and simple decency.

Despite its importance, however, the controversy over Trump's tax secrecy has always been accompanied by an overblown sense of what we would learn if or when his returns finally become public.  No, we will not be able to figure out whether he is truly a billionaire, for example, and unless his people are even more shockingly incompetent than they seem to be, the tax returns will not include items with notations like: "Deduction for payment to secret Putin account -- Thanks for the collusion!"

Even when tax issues have come up during Trump's time in office, claims that "we now really need to see his taxes" were only partly persuasive.  After all, people could say that 2017's changes in partnership tax law and all but gutting the estate tax were not just terrible policy but were especially generous to people like Trump precisely because of what we already know about Trump.  Details can be interesting, but we knew all along that he is lining his pockets and that Republicans are happy to help him do it (as long as they and their owners get a big slice, too).

At long last, however, we now have a situation in which seeing Trump's tax returns would be indispensable in determining a specific (and otherwise nearly impossible to verify) crime or set of crimes.  As so often happens with questions of tax law, the details are perversely fascinating.

Monday, August 27, 2018

Trump EPA's Affordable Clean Energy Plan Would Be More Aptly Titled the Coal Energy Plan

by Michael C. Dorf

Last week the Environmental Protection Agency announced a proposed new rule governing emissions from existing power plants. The proposed rule--titled the Affordable Clean Energy (ACE) rule--would substitute for the Obama administration's Clean Power Plan (CPP), which the Trump administration had previously announced that it proposed to repeal (and which had not yet gone into effect, thanks to a 2016 Supreme Court order staying it so that lawsuits seeking to block it could proceed first). CPP was the Obama administration's domestic effort to live up to the US's obligations under the Paris Climate Accord. With Trump having withdrawn the US from the Paris Accord, he felt no need to keep it in place--and has been affirmatively hostile to it in order to favor his supporters in the coal industry.

Of course, the proposed repeal of CPP does not actually state that it is a giveaway to coal executives and miners. Instead, the EPA under Trump contended that CPP exceeded the agency's statutory authority and imposed costs that were not commensurate to its benefits. "Clean Air is Unaffordable to Coal Industry" would have been a more accurate description of the Trump policy than the misleading "Affordable Clean Energy."

Readers who never studied (or forgot what they learned in) administrative law may be wondering why I refer to the Trump actions as proposals rather than as actions. The answer is a combination of the Administrative Procedure Act and the Clean Air Act, which impose various procedural hurdles--including the possibility of lawsuits--to agency actions, including some repeals of existing regulations.

In a moment I'll dive a little further into the weeds of what the EPA is doing here, but I should say first that I agree with the big-picture account one sees in the press. CPP repeal and ACE adoption would confer massive benefits on the coal industry, thus substantially undercutting what had been a serious effort to reduce greenhouse gas emissions from power plants. And because the technologies that reduce greenhouse gas emissions typically also reduce emissions of toxic pollutants, CPP repeal and ACE adoption would result in substantial harm to human health. As the NY Times reported last week, the Trump EPA's own calculations indicate that the shift from CPP to ACE would result in 1,400 additional deaths per year, due to fine particulates.

Friday, August 24, 2018

Our Most Posnerian Justice

By Eric Segall

See if you can identify this person. He was one of this country's most important judges before he recently retired.  He is a white male from an educated family who grew up in one of our most populous states. He grew up a Republican, but his judicial decisions on social issues did not reflect the politics of the current GOP. He came of age before the Federalist Society came into existence. His opinions were often non-originalist and non-doctrinalist. He was fiercely independent. Who is he?

If you first guessed Richard Posner, that would be correct. If you guessed Anthony Kennedy, you'd also be correct.

Thursday, August 23, 2018

The S-word: The Ineffectiveness of Republican Cries of 'Socialism'

by Neil H. Buchanan

In my Dorf on Law column two days ago, I expanded on my argument that NeverTrump conservatives now face a put-up-or-shut-up moment.  Whereas the standard commentary argues that liberals and progressives must not go "too far to the left," the reality is that NeverTrumpers must go wherever the Democrats take them, because no disagreement on specific policy issues (minimum wages, free college education, Supreme Court appointments) is more important than the preservation of constitutional democracy.

That column was part of my response to the emergence of "democratic socialism" among some Democrats and the Republicans' frantic attempts to use the word "socialist" as a scare tactic to woo swing voters.  My point was that honest people know that democratic socialism is a modest version of what is standard practice in most of Europe's richer democracies, not an attempt to go back to Stalinist gulags.  The people who know better -- most definitely including NeverTrumpers -- have a profound responsibility to educate people and push back against Republican slander.

I continued to make the substantive point that the American left is anything but extreme in my Verdict column today, where I discussed progressive icon Elizabeth Warren's recently proposed Accountable Capitalism Act, which is a crystal-clear example of her commitment to fix capitalism, not overthrow it.  Insinuations that the left wing of the Democratic Party is somehow anti-capitalist -- "If they're socialists, they can't be capitalists!" -- are simply wrong.

Even so, I am happy to report that it is possible that all of my concerns about a Republican smear campaign based on the dreaded S-word will not matter at all.  Even if voters become (wrongly) convinced that every Democrat is a socialist, it is possible that it simply will not matter.  In the end, plenty of voters might simply not be turned off by the socialist bogeyman.