Friday, April 20, 2018

How to Live Greatly in the Law

by Michael Dorf

Last night I had the honor of delivering some brief remarks to the soon-to-be-graduated JD class of 2018 at Cornell Law School's 3L Dinner. On most such occasions I speak off the cuff. For this one I chose to write out my speech. I deviated a bit from my prepared remarks, but not that much. They follow:

Thursday, April 19, 2018

Was I Wrong About the 'Sweeping-ness' of the Tax Bill?

by Neil H. Buchanan

Last Fall, as the tax debacle was playing out, I frequently mocked the media for adopting the Republicans' spin that the tax system would be fundamentally changed by the bill that Republicans  eventually rammed through Congress (without hearings).  Republicans talked as if they were going to change the very nature of the tax system, but it seemed obvious that they were going to muck around with the system simply to shovel ever more money to rich people and corporations.

That is, indeed, what happened.  The final bill was a mess, and its regressivity is breathtaking.  Even so, it seemed that reporters had received a memo ordering them to use the word "sweeping" whenever they talked about the Republicans' tax bill.  As early as September, this was already a tired description, but "sweeping" reform is what the Republicans said they were providing, and the mainstream media obediently played along.

Despite the horrible final legislative product, the press is still uncritically repeating even the most absurd Republican talking points.  For example, a Washington Post reporter wrote this week that "GOP leaders and lawmakers used the opportunity of this week’s tax deadline to make the point repeatedly that this is the last year that Americans filed their taxes under the old tax code and that next year they will encounter a new, simpler and more favorable set of tax rules."

Whatever other virtues one might be able to imagine in the Republicans' bill, being simpler is not one of them.  The evergreen promise to "put it all on a postcard" was once again dropped when convenient, and the system is even more complicated than it was before.  Yet a reporter at a major newspaper cannot even be bothered to note that when GOP leaders "make the point" that next year's rules are "new, simpler and more favorable," their point is not true.

But my concern today is not with the continued free pass that Republicans have received from the press.  Instead, I want to ask whether I was too quick to reject the idea that Republicans were doing something "fundamental" or "sweeping" when they passed their stroke-the-rich tax bill.  It is possible that they made some de facto fundamental changes that were not immediately obvious -- and that the bill is even worse than than it initially seemed.

Wednesday, April 18, 2018

Why Do Judicial Nominees Hide Their Views About Abortion?

by Michael Dorf

In my latest Verdict column I discuss the Senate Judiciary Committee hearing last week on the nomination of Wendy Vitter for a federal district court judgeship. Vitter refused to answer the question whether she thought Brown v. Board of Education was rightly decided. I explain that this is probably not a sign that Vitter is a closet segregationist but instead a rational strategy for avoiding having to say whether she thinks that Roe v. Wade was rightly decided.

Skeptical readers might wonder why Vitter feels the need to avoid expressing a view about Roe, in light of two facts: (1) Given her past statements about abortion, it's obvious that she thinks Roe was wrongly decided and would undoubtedly construe abortion rights as narrowly as possible in any case involving them, even if she would not expressly defy SCOTUS precedent; and (2) Republican Senators, who hold a majority of the chamber, would be happy to confirm a nominee with Vitter's views about abortion. For them, this is a plus rather than a minus. Any pro-choice Senator who would vote against a nominee who expressly said that she thinks Roe wrongly decided but would vote to confirm Vitter based on Vitter's reticence is, not to put too fine a point on it, a naive fool.

Nonetheless, reticence on abortion continues to be a characteristic feature of judicial confirmation hearings, regardless of whether the nominee is a pro-life Republican or a pro-choice Democrat. Why?

Tuesday, April 17, 2018

Second in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (Michael Cohen)

by Diane Klein

The story swirling around Trump personal attorney Michael D. Cohen is unfolding so quickly that it is almost certainly too soon to say much that is definitive about it.  What is clear, however, is that following the FBI raid on his office, home, and hotel room (at the Loews Regency hotel on Park Avenue, his temporary digs during an apartment renovation), America is getting a perhaps much-needed lesson in the contours of attorney-client privilege, the crime-fraud exception, and the attorney-client relationship more generally.

Will Justice Gorsuch Give us a June Surprise?

By Eric Segall

The Justices who sit on the United States Supreme Court are flesh and blood people too.  Many court commentators, scholars, and pundits often forget that the Justices are flawed just like the rest of us and sometimes act in accordance with their feelings as much as what they perceive the law to require.  It is possible that for reasons having little to do with the law but a host of other factors, Justice Neil Gorsuch may surprise many people in an upcoming important case involving the alleged free speech rights of public-sector union employees.

Monday, April 16, 2018

Presidential Overreach and Supposedly Excessive Spending

by Neil H. Buchanan

Will Donald Trump induce his pliant congressional Republican allies to turn him into even more of an autocrat?  Last week, I discussed reports that Trump is channeling his inner Nixon once again, this time trying to impound funds from the most recent spending bill.  Essentially, Trump wants to be able to cancel items in that bill, even though he signed it, because he did not like all aspects of the new law.

I will summarize the mechanism for rescinding funds in a moment, but it is important to note up front that this is probably a dead issue, at least for now.  Politico reported two days after I published my column that "Republicans who helped craft the legislation are in open revolt" against the idea of allowing Trump to cancel some of its provisions.  Even so, we should remember that all bad ideas seem to come back from the dead in the Trump era.  To take but one example, his absurd border wall simply will not die.

Whether or not Trump is ever able to overcome this purported revolt -- or if he even remembers the issue at all -- it is notable that the initial idea of allowing Trump to impound funds found a ready enabler in House Majority Leader Kevin McCarthy.  Apparently, McCarthy has been trying to kiss up to the hard right anti-spending caucus in his party, all of whom are quite upset about the recent bill.

And that was before we found out that Paul Ryan would be leaving the Speaker's chair at the end of this year (or sooner).  McCarthy is about to get a do-over in his flailing efforts to become Speaker, and he is certainly willing to make it clear to everyone that he will happily do whatever Trump wants him to do.

Here, I want to discuss how presidential impoundment of funds fits into the broader story about federal spending, in particular the false ideas that both parties in Congress are too prone to spend money and that only a strong president can intervene and keep both parties honest.  As one might imagine, even arguments for enhanced executive power that might sound appealing in the abstract are less appealing at a time when saying, "Let us give the president more power," means "We're about to give Donald Trump more power."

Friday, April 13, 2018

Are Electorally Targeted Tariffs a Worrisome Form of Foreign Interference?

by Michael Dorf

Judged by recent stock market volatility, investors keep changing their minds about whether a genuine trade war--with its attendant reduction in overall economic activity--is in the offing. Even if Chinese concessions on technology transfer and tariffs enable us manage to avert a trade war, however, one feature of the heretofore-discussed retaliatory measures by US trading partners warrants consideration, because it poses a question about the legitimate scope of international politics, not just economics. It was widely reported that in choosing products for retaliatory tariffs in response to the Trump administration's announcements of tariffs first on steel and aluminum, and then on a wide range of Chinese products, Chinese government officials sought to concentrate the pain for maximum political effect. Similar efforts were under way by government officials in other countries when it looked like the steel and aluminum tariffs would hit them.

Thursday, April 12, 2018

Ryan's Wonderfully Selfish Retreat

by Neil H. Buchanan

In my Dorf on Law column earlier this week, I referred to "House Majority Leader Kevin McCarthy (the man who, by the way, would have been Speaker of the House if he could only have shut up about the Republicans' real reason for pursuing the Benghazi inquisitions)."  It was because of McCarthy's loose lips that Paul Ryan became Speaker in late 2015.

Little did I know that, less than a day later, McCarthy would be back in the running for the Speaker's position -- or, more likely, House Minority Leader -- when the man who displaced him shocked Washington by announcing his retirement.

Yes, Paul Ryan is walking away at the end of 2018.  He has provided plenty of material for people like me to write about over the years, but he will not be missed.  I expect to write a few additional columns about specific Ryan-related policy matters before he truly goes away, but for now I will focus on how his retirement reflects on him and exposes how his self-regard supersedes any of his supposed principles (even the principle of partisanship).

Wednesday, April 11, 2018

Roseanne, Amy Wax, and Two Kinds of Racism

by Sherry F. Colb & Michael C. Dorf

On a recent episode of the television show Roseanne, the main character and her husband Dan fall asleep in front of the television. They miss Black-ish, a show about a wealthy Black family, and Fresh Off the Boat, a program about a Chinese American immigrant family. Both shows, like Roseanne, air on ABC. When Dan wakes up and tells Roseanne that they did not see the shows about "Black and Asian families," she replies, "They're just like us. There, now you're all caught up."

This scene feels offensive at a gut level. But what makes it offensive? Most straightforwardly, it implies that shows about African Americans and Chinese immigrant families have nothing interesting to offer an audience, beyond the stale observation that people of all races, colors, and creeds are essentially the same. Viewing the two programs in this way, one would conclude that watching Black-ish and/or Fresh Off the Boat would be pointless and would not enrich one's understanding of anything. This very dismissive attitude toward two of the small number of network television shows in which a minority group predominates is offensive.

There is an alternative way to understand the scene in Roseanne, however, but this way is also offensive. Roseanne may be telling Dan that the message of the two shows--a message with which both the actor and the character Roseanne perhaps disagree--is that "they're just like us." On this reading, the programs are not just prosaic but traffic in Hollywood propaganda urging the liberal article of faith that all of us are alike. Even if the facts are different, then, even if white people are actually special--as Roseanne the character and Roseanne the actor may believe--the two shows make it seem like Black people and Asian people are just like white people. The shows, then, are giving us politically correct pablum, and they are simpleminded enough to be summarized in the words "They're just like us."

There is little reason to doubt that Roseanne and her character mean to communicate one or both of these ideas: either that nonwhites are the same as whites (and therefore uninteresting) or that the liberal media are using the shows to communicate the propagandistic message of equality. But let us consider a third possibility--that Roseanne meant to level an anti-racist critique of Black-ish and Fresh Off the Boat.

Tuesday, April 10, 2018

First in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. Alexander van der Zwaan)

by Diane Klein

A week ago, Alexander van der Zwaan was sentenced to 30 days in prison and a $20,000 fine for lying in the Mueller investigation.  In light of the current events engulfing Trump consigliere Michael Cohen, there is an air of prefiguration around the fact that the first person actually to go to jail for his involvement is a lawyer.  But van der Zwaan and Cohen are just two of the seeming legion of lawyers arrayed on all sides of the conflict.The Trump administration's legal troubles have made MSNBC-watching-household names out of many lawyers, some in relatively obscure positions (Rachel Brand, anyone? How about Noel Francisco?).  It's not easy to keep track of them all.

Trump Channels Nixon (Again)

by Neil H. Buchanan

Donald Trump had not even been in office for ten days before he had his first "Nixon moment," firing acting Attorney General Sally Yates for refusing to carry out his unconstitutional executive order to ban Muslims from entering the United States.  Sacking Yates brought back uncomfortable echoes of Richard Nixon's infamous Saturday Night Massacre, in which the soon-to-be-ousted president fired the Attorney General and the Deputy Attorney General for refusing to obey Nixon's orders.

Almost fifteen months later, Trump is apparently no closer to being driven from office.  Indeed, the few detractors in his party have largely silenced themselves, and Republicans are even trying to whip up support for the midterm elections by telling Trump's base that liberals would impeach Trump (as if that would be a bad thing).  The Yates affair is merely a distant memory, not even in the top half of Trump's outrages.

We continue to hear that some congressional Republicans actually do have limits beyond which Trump should not dare to go.  That theory might soon be tested, as Trump -- in his most extreme "l'etat c'est moi" moment yet -- has denounced an FBI raid on his lawyer's offices as an "attack on our country" and is reportedly again seriously considering firing the special counsel, the attorney general, and the deputy attorney general.

There is no getting around the fact that such a move by Trump would create an immediate constitutional crisis -- one that, in Trump's favored phrasing, would be "bigger than the world has ever seen before."  But there are other Nixonian aspects to Trump's behavior that are also worth thinking about, just in case we never face the political Armageddon that on some days seems inevitable.

Monday, April 09, 2018

The Future of Lengthy Law Review Scholarship

By Eric Segall

Last week I had the pleasure of attending a conference on legal scholarship at Loyola University of Chicago School of Law. There were many fine speakers and interesting topics. Kudos to Professor Darren Bush, Lawprofblawg, and the students on the Loyola Law Review for putting on such an important symposium. I want to focus in this blog post on one aspect of the discussion.

I argued that very few scholars, or for that matter anyone except hiring and tenure committees, read 50 to 80  page articles, usually with over 300 footnotes. As an example, I pointed to a forthcoming Harvard Law Review 80-page article on the original meaning of the word "guarantee" in the Guarantee Clause of the Constitution. The article is excellent, and I don't mean to pick on it, but I seriously wonder how many people will read it from cover to cover. And, this is a timely piece in the most prestigious law review. 50-page articles on esoteric topics in lower ranked journals the subjects of which rarely assist judges, lawyers, or the general public are actually the norm. Yet, the most important currency in legal education, besides a degree from a top ten school or a Supreme Court clerkship, is the lengthy, footnote heavy, and often wildly theoretical law review article. There are thousands of such articles published every year, most of which die in a vacuum.

Should the YouTube Shooter's Veganism Be Considered Relevant?

by Sherry F. Colb

My latest Verdict column explores the recently enacted San Francisco fur ban and whether it makes sense, from an animal rights perspective. For this post, I want to consider a somewhat tangentially related matter, the shooting at YouTube headquarters. What unites the issue of fur bans with the recent shooting is that Nasim Najafi Aghdam, who shot and injured several (apparently randomly selected) YouTube employees last week before killing herself, was reportedly a vegan animal rights activist. Any perceived association between animal rights activism and violence is unwelcome and calls for some response from the vegan community. Though I do not speak for anyone other than myself, I am a vegan proponent of animal rights, so I will set out my own reactions to what happened.

Friday, April 06, 2018

Naive (at Best) Reporters and False Tax Equivalence

by Neil H. Buchanan

Is the craziness that we are seeing unique to the post-November 8, 2016 era, or has it been there all along?  That is, is the problem specifically about Donald Trump, or is it the tumorous manifestation of a more systemic and longer-metastasizing cancer?

Observers have been asking some version of this question nonstop for more than a year, and it does not seem to matter what the subject is.  Racism, xenophobia, attacks on the rule of law, and on and on.  Is it all because of Trump, or is he merely a crude version of something else?

On the issue of taxes, it is clear that the problem goes far beyond Trump.  Republicans have spent decades honing their ability to lie about taxes, from fabricating stories about the miraculous effects of the Reagan and Kennedy tax cuts to embracing the "tax cuts pay for themselves" nonsense that once was sidelined even within their party.  And why stop asserting that family farms and businesses have been ruined by the estate tax (oh, sorry, Republicans absolutely must mis-describe it as the Death Tax) merely because they lack even a single example of that ever happening?

But the tax circus of late 2017 also reminded us how much of the problem is not directly about Trump or the Republicans but is instead a matter of credulous reporting.  Whereas non-Fox news sources have at least tried to adapt to the nonstop lies of the Trump era on non-tax issues by pointing to evidence (immigrants are not more likely to commit crimes than non-immigrants; we do not have a trade deficit with Canada; etc.), press coverage of debates about taxes still tends to be mindlessly neutral at best and a megaphone for conservative disinformation at worst.

In fact, I all but tore my hair out multiple times last year (see, e.g., here, here, and here) when reading mainstream press coverage about the tax debate.  If ever there were a case of reporting as stenography, this was it, as reporters dutifully repeated Republican talking points about growth-inducing tax cuts, dynamic effects, and the whole familiar litany of BS.

Now that the tax debate is in a temporary lull, reporters have fewer opportunities to make the kinds of mistakes that can seriously damage the policy conversation, but they do continue to try.

Thursday, April 05, 2018

The Sherwood Forest Legand and Tax Policy

by Neil H. Buchanan

I have recently been musing about reports that the Republicans' might propose yet another round of tax cuts.  The big-ish 2017 tax bill that they rushed through -- so quickly that one might imagine that Republicans had never heard of the law of unintended consequences,  or even the simple adage "look before you leap" -- remains distinctly unpopular, and Republicans' continue to lose elections and sink in the polls, no matter how much they lie about "middle-class tax cuts."

In a Verdict column (here) and two recent Dorf on Law posts (here and here), I discussed the political strategies of Republicans and Democrats with regard to this possible new round of cuts.  It seems that Republicans really have nothing else to talk about, and they have convinced themselves that they can always win by proposing to cut taxes, even though the evidence says otherwise.

My most recent Verdict column sets aside the partisan electoral angles to return to a fundamental question about the use of taxes to fight inequality.  Readers who recall the so-innocent-in-retrospect 2008 U.S. presidential election might be amused to think again about a man who became known as Joe the Plumber, a native of Toledo, Ohio (which happens also to be where I grew up) who confronted Senator Barack Obama about his economic platform during a campaign stop in the Glass City.  In his reply, Obama talked about "spreading the wealth around," and the Republicans went wild.

Obama's comment was somehow supposed to be a gaffe, apparently because he had admitted that liberals want to "take people's money and give it to other people."  Pictures of undeserving welfare cheats danced in the minds of Republican strategists.  But all of this was of course nothing more than a renewal of the Republicans' core argument that taxes are theft and that the government is taking "your money" and giving it to losers who have not earned it.  This was, and is, nonsense.

Wednesday, April 04, 2018

It's official: We don’t care anymore how the rest of the world views us

By William Hausdorff

Like the neighbor down the street who is gradually paying less attention to his dress and personal hygiene, the US conservative establishment seems to have stopped caring how the rest of the world views us.   

This is another casualty of the era bracketed by Bush and Trump, but less commented on. The importance of the US image had long been a mainstay of mainstream political discourse in the US.  If the US pulled out from Vietnam, politicians demanded, what would the rest of the world think of US resolve in other parts of the world? The US government needs to show it is a trusted partner that keeps its commitments. America needs to project strength and reliability.  “Peace with honor” was the mantra of the Nixon administration as it sought to extricate the US from Vietnam.   

Of course, this so-called “concern” for the image of the US was always a pretense undermined by actual US policies.  After all, the tremendous, ongoing damage being done to the US image simply by our continuing to prosecute the Vietnam War with attendant My Lai (and other) massacres, the “secret” invasion of Cambodia, napalm and Agent Orange, the Christmas bombing of Hanoi in 1972, etc was reflected in massive anti-Vietnam War and anti-US demonstrations worldwide.  Yet however hypocritical, the care and tending of the US global image nonetheless remained a strong feature of US domestic political discourse well into the 1990s.

My Memorial Essay for Judge Reinhardt

by Michael Dorf

Judge Stephen Reinhardt, for whom I clerked in 1990-91, died last week. On Verdict, I've written an essay in his memory.  I customarily write a blog post exploring some aspect of my Verdict column in greater depth, but today I'll just let the column speak for itself. Bill Hausdorff will have a blog post here later this morning.

Tuesday, April 03, 2018

Scalia the Justice: A Career of Contradictions (A Book Review)

By Eric Segall

Justice Antonin Scalia was the most controversial judge of his generation. A superb writer and public speaker, he relentlessly urged judges to adopt a strict textual and historical approach to statutory and constitutional interpretation. His most famous judicial opinions were his virulent dissents where he often lambasted his own colleagues for imposing their personal values on the American people instead of adhering to the rule of law. He routinely toured the country ranting to his audiences of law students, lawyers, and law professors that the Constitution is “Dead, Dead, Dead!” Love him or hate, he was impossible to ignore.

Capturing Scalia’s legal contributions on and off the Court is no easy feat, but Professor Rick Hasen’s new book, “The Justice of Contradictions: Antonin Scalia and the Politics ofDisruption,” brilliantly tells the story of Scalia’s long career. I strongly recommend this book to anyone interested in the Supreme Court or constitutional law.

Monday, April 02, 2018

Once a Troll, Always a Troll?

by Rabbi David Seidenberg

Fox News' Laura Ingraham is in the headlines for just the kind of thing she has always loved: being a troll.  Back in 1984, when we were both enrolled at Dartmouth College, she secretly recorded a confidential support group for gay students, and published a transcript in The Dartmouth Review - complete with the names of the students at the meeting, students who were in the closet, back in the day when being outed could mean getting rejected for jobs and attacked by drunken frat boys.

Sunday, April 01, 2018

Donald Trump, Federal Courts Scholar

by Michael Dorf

Imagine my surprise when I awoke yesterday morning to find that I had been (more or less) name-checked by the leader of the free world. Although the initial tweet (below) did not use my Twitter handle, so many of my own followers alerted me to it that I could not scroll through them all.

Given the spelling, I at first assumed that the president with the very good brain was actually tweeting about law professor Michael Dorff or one of the many other Michaels Dorf/Dorff/Dorph out there. But after a bit of research, it turned out that I was indeed the target of the wrath of the Tweeter in Chief. I was honored.

Friday, March 30, 2018

Justice Stevens Proposes Repealing the 2nd Amendment and Takes Friendly Fire From Immodest Critics

by Michael Dorf

Earlier this week, retired Supreme Court Justice John Paul Stevens--who will turn 98 in less than a month--wrote an Op-Ed in the NY Times calling for the repeal of the Second Amendment. Justice Stevens praised the post-Parkland student-led activism and, in an essay that reprised arguments he set out in Chapter VI of his 2014 book Six Amendments, made two core points: First, that the 2008 SCOTUS decision in DC v. Heller, from which he dissented, was a radical break with the militia-centered understanding of the Second Amendment that had prevailed since the Founding; and second, that although Heller would likely allow such measures as strengthened background checks, the nation needs truly effective comprehensive gun control, which requires repealing the Second Amendment.

Many people were unhappy with the Stevens Op-Ed. As one would expect, firearms libertarians who think that Heller was rightly decided and in the national interest, took exception to both Stevens's reading of the Second Amendment and his reform proposal. Ilya Shapiro's Op-Ed in the Washington Examiner, titled "Justice John Paul Stevens is absolutely wrong about the Second Amendment, again," is a good exemplar of this genre.

Justice Stevens also took a fair bit of fire from the other direction. Aaron Blake, a generally liberal analyst for the Washington Post, wrote a response with the title "John Paul Stevens's supremely unhelpful call to repeal the Second Amendment." Although Blake has a tendency towards hyperbolic snark, his response to Stevens was fairly characteristic of a broader reaction to Stevens among people who favor gun control. In general, the Stevens intervention was deemed unhelpful or even counterproductive on three grounds: (1) It reinforces the view that nothing effective can be done without overruling Heller; (2) a Second Amendment repeal is pie in the sky; and (3) calling for repeal of the Second Amendment will mobilize gun rights supporters who will point to the Stevens Op-Ed as evidence that liberals really are coming for all of their guns.

Thursday, March 29, 2018

Gerrymandering, Two Constitutional Arguments, and a Remedy

by Neil H. Buchanan

Earlier this week, the Supreme Court heard oral arguments on its second gerrymandering case of the term, Benisek v. Lamone, which presents a challenge to the Maryland legislature's redrawing of one of that state's congressional districts.  As in all such cases, there seems little doubt that gerrymandering happened.  The Court simply cannot agree on what to do about it, if anything.

Benisek differs from the Court's other gerrymandering case in important ways, the most obvious of which is that Gill v. Whitford involves a challenge to an extreme Republican gerrymander of the Wisconsin legislative map, whereas the Maryland case involved a Democratic gerrymander.  As I will discuss below, the cases make it clearer than ever that legislative districts should no longer be drawn by partisans on either side.

But first, it is useful to discuss the fear about public perceptions that might be driving the Court's thinking.

Wednesday, March 28, 2018

Dogs on Planes, Hunting, and Human Behavior

by Sherry F. Colb

In my Verdict column this week, I consider the question why the woman whose dog Kokito likely suffocated to death inside a United Airlines overhead bin did not release her dog to save his life. I suggest that the Milgram Experiment of the 1960's, a study that may not actually explain the Nazi phenomenon that it was intended to investigate, has something to tell us about what happened on that airplane. To boil it down to one sentence, the woman may have felt completely unable to disobey the flight attendant who told her that the dog carrier had to be in the overhead compartment.

The reason we might feel it necessary to explain the woman's behavior in this case is that many of us agree that the woman should have opened the bin and saved her dog. Why? Because Kokito was suffering and died unnecessarily, and many people believe that we have an obligation to prevent this from happening to a vulnerable and innocent animal.

So how do we explain hunting? How do we account for the fact that upwards of thirteen million people in the United States have gone hunting this year, if the numbers in 2011 are typical? Why do they do it? Hunters give an assortment of reasons. They say that they enjoy the outdoors, they like the kinship they develop with the other people with whom they hunt, they appreciate the challenge of having to track an animal, anticipate his or her movements, and finally aim and fire.

Tuesday, March 27, 2018

What Story Will Republicans Try to Tell When Their Tax Cuts Fail to Deliver?

by Neil H. Buchanan

The Republicans passed their regressive tax bill last year in the face of widespread public opposition, with defections by House members from suburban districts and a rushed legislative process that made a mockery of the idea of deliberative government.  Even so, they managed to deliver all of their votes in the Senate, including the self-styled deficit hawks who made a big show of concern before caving to party orthodoxy.

And despite their most fervent wishes and a brief blip in the polls, the new tax law is still not popular.  As I described in companion columns on Verdict and Dorf on Law last week, the public has very good reasons for hating a law that was very clearly designed to worsen already historic levels of inequality.  To their credit, people are not being bought off with a few extra dollars in take-home pay.

In spite of this, will Republicans convince themselves to try to pass another round of tax cuts?  And if they do, how will they justify further cuts when the current round of cuts fails?

Monday, March 26, 2018

Donald Trump Doesn't Know the Meaning of the Word "Conflicted" (But His Lawyers Should)

By Diane Klein

On Monday, March 19, 2018, Trump attorney Jay Sekulow announced the addition of lawyer Joseph diGenova, a Reagan-era District of Columbia U.S. Attorney, to Trump's Russia team.  Whatever attracted Trump to diGenova - his conspiracy theorizing on Fox, his operatic pipes on display at the Gridiron dinner, or his legal acumen -  Sekulow was at the ready. On Thursday, diGenova's wife and law partner, Victoria Toensing (another Reagan-era septuagenarian), joined the team.  That same day, experienced Washington lawyer John Dowd resigned, after warning about potential conflicts of interest related to the pair.  Sekulow began equivocating about the new line-up on Friday, and by Sunday morning, he had to take it all back.  According to his March 25, 2018, statement, Trump was "disappointed that conflicts prevent Joe diGenova and Victoria Toensing from joining the president's special counsel legal team."

Congressional Power to Immunize the President Against State Court Litigation

by Michael Dorf

In a post on Thursday of last week, I noted a friendly disagreement with Prof. Josh Blackman over a question that is, at this point, entirely theoretical. The two of us, along with Prof. Ben Zipursky, were guests on a KPCC radio show to discuss Zervos v. Trump. We all agreed that the NYS trial court judge correctly ruled that the president lacks temporary immunity from suit in state court, an issue that had been left open by the Supreme Court in Clinton v. Jones. Josh and I agreed that Congress could provide the immunity the president sought by statute, but he thinks such immunity could only apply in federal court, not state court, because Congress controls the jurisdiction of the federal courts but has substantially less control over what happens in state court. In response, I wrote:
I don't think that a law granting the president temporary immunity to suits would be about jurisdiction at all. It would be a rule of substantive law, like the provision of federal law that grants service members relief from civil litigation during their service. That law applies in state court and so would a law protecting the president. If Congress has the power to enact such a substantive rule -- as the Court correctly assumed in Jones -- then it could be made to apply in state as well as federal court.
On Friday of last week, Josh published a thoughtful reply in which he raised some objections. Although I fear that he and I may be the only two people in the world who care about this very-likely-to-remain-hypothetical question, here I'll respond in turn. My bottom line is that I think some of the hypothetical cases he raises are indeed problematic, but not in the same way that he thinks.

Saturday, March 24, 2018

How to Talk about President Trump?

By Eric Segall

No President in my lifetime (probably ever) has caused as much consternation and soaring negative rhetoric as Donald Trump (and for good reason). Sure, I remember my parents' friends saying that if “Tricky Dick” wins they were going to move out of the country, but times were different then (no cable television or social media). I also do not think either President George W. Bush or President Obama (though it is an intuition not a conclusion based on data) triggered the same level of nasty, name-calling among folks as does Trump (leaving out the fringe right for Obama).

Friday, March 23, 2018

Will Republicans Take the Tax Cut Merry-Go-Round For Another Spin?

by Neil H. Buchanan

My new Verdict column, published today, begins with a personal remembrance of Julie Hilden. whom professor Dorf memorialized in a post here on Monday.  I hope that reading about her might cause some of us to aspire to be even one-tenth as kind, generous, and caring as she was.

Returning to the mundane issues of the day, the remainder of my column assesses why the Republicans are having such a hard time selling their recent tax cuts to the American people.  Even though the bill was wildly unpopular while Republicans were ramming it through Congress by breaking every rule and norm in sight, they were absolutely sure that people would soon love the bill, because it was a tax cut, and everyone loves tax cuts.  Right?

Thursday, March 22, 2018

A Latent Question in Zervos v Trump: Why Don't We See More Delayed Legislation?

by Michael Dorf

Earlier this week, NY State trial court Judge Jennifer Schecter denied President Trump's motion to dismiss or delay proceedings in the defamation lawsuit against him by Summer Zervos--a former Apprentice contestant whom Trump branded a liar in 2016 after Zervos publicly claimed that Trump had groped her without consent. Judge Schecter's opinion relies on Clinton v. Jones, which held that a sitting president lacks either full or temporary immunity from litigation for unofficial conduct preceding his taking office. In Jones, the Court left open the possibility that a different rule might apply in state court, because considerations of federalism and the supremacy of federal law, rather than separation of powers, would be in play. Judge Schecter concluded that the question left open in Jones should be resolved against any form of temporary immunity.

Judge Schecter's opinion makes two key points. First, she says that concerns about distracting the president from his official duties are the same in state court as in federal court; thus, the Supreme Court's conclusion that such distraction does not warrant full or temporary immunity in Jones carries over in state court. Second, Judge Schecter distinguishes cases finding that Supremacy Clause concerns warrant limiting the jurisdiction or remedial authority of state courts all involve fear of interference with the official functions of the United States; because Zervos has sued based on Trump's private conduct before he became president, those concerns are not implicated.

In the balance of this post, I want to consider some implications of a subsidiary argument that Judge Schecter makes. As the Jones Court itself did, she takes note of the fact that Congress has granted temporary immunity to members of the US armed forces during their service, so one can infer from Congress's failure to grant similar immunity to the president that it did not intend it. Jones has been on the books for over twenty years. Congress's inaction is thus telling.

But is it really? Given partisan considerations, one could see how, except in periods when one party controls the presidency, the House, and 60 seats in the Senate, there would be no political will to enact a provision granting the president partial immunity--even if an overwhelming majority of elected officials thought it a good idea in general.

Wednesday, March 21, 2018

Is Marriage a Fundamental Right "in Equal Protection"

by Michael Dorf

In my latest Verdict column, I discuss bills in Alabama and other states that would eliminate the obligation of couples seeking to marry to obtain a marriage license from a state or local official. Although these proposals have been touted as a means by which states can evade the obligation to permit same-sex marriage, I note that they don't go nearly that far. They would abolish marriage licenses; they would not abolish marriage itself.

But what if a state were to abolish marriage as a legal status for everyone? Would that be unconstitutional? I first consider the equal protection objection. To evaluate that requires grappling with the extent to which Palmer v. Thompson remains good law. Palmer upheld Jackson, Mississippi's closing of all public swimming pools in response to the obligation to desegregate its public swimming pools. Although I think Palmer was wrongly decided on its facts, I argue that the general principle it articulated--that a facially neutral law adopted for a discriminatory purpose only violates equal protection if it also has a disparate impact--remains good law, at least for now.

My column next turns to the liberty claim. Obergefell v. Hodges rooted the right to same-sex marriage chiefly in the fundamental right to marry under the doctrine of substantive due process. Assuming that's correct, then denying the right to marry to everyone in a state would obviously be unconstitutional. But is it right? Justice Thomas argued in dissent in Obergefell that marriage is not an exercise of "liberty" in the same way that other fundamental rights are. Those other rights protect against government interference. The marriage right protects a right to state recognition. Given that we have a mostly classical liberal Constitution that protects negative rights, a fundamental right to marriage looks like an anomaly.

In the column, I suggest that an affirmative right to marry is not necessarily ruled out by the Constitution's text and that it would hardly be disruptive. States and their predecessors have recognized marriage for some people since colonial times. But my column concedes that it is technically an open question whether the fundamental right to marry would be violated by a law denying marriage to everyone.

Here I want to explore another possibility? What if marriage is a fundamental right "in equal protection?" To do so requires that we first examine that oxymoronic-sounding category of constitutional rights.

Tuesday, March 20, 2018

What Should Hillary Clinton Do (or Not Do) Now?

by Neil H. Buchanan

Last week, in "Hillary Clinton and the Heckler's Veto," I concluded with some sadness that the Hillary haters have won their war.  That is, even the Clinton detractors who are not Trumpian "Lock her up!" types have been so unfairly negative about Clinton for so long that her every utterance is now immediately shredded and recharacterized in absurd ways.  Although it should not have come to this, we have reached the point where Clinton can only make matters worse by saying or doing anything.  Anything at all.

As I pointed out, hatred of Clinton is such that she is also criticized when she does not say something.  That kind of criticism typically runs along these lines: "Oh, and if Hillary Clinton really cared about _____, shouldn't she have bothered to weigh in on this latest controversy by now?  Huh?  Shouldn't she?!"

The people who hate her -- and I am very much including reporters for The Washington Post and The New York Times, who took the worst behavior in the movie "Mean Girls" as a template for political reporting on Clinton -- never seem to feel so good as when they have fresh material from her to criticize.  And when she fails to deliver, they hate her for that, too.

My question today is what Clinton should now do in such a hostile environment.  When the hecklers are this relentless and unfair, and when action and inaction alike are taken as provocations by her detractors, how should she act?

Monday, March 19, 2018

Remembering Julie Hilden

by Michael Dorf

Julie Hilden -- lawyer, author, and editor -- passed away on Saturday. She was my friend for over 30 years. Julie combined a fierce intelligence with incredible kindness. Her work was brutally self-critical even as she was extraordinarily generous to others. I'll try to paint a picture of her life and work, but this is also a personal remembrance.

Sunday, March 18, 2018

Even If McCabe Committed Wrongdoing, He Was Likely Fired for "This Russia Thing"

by Michael Dorf

A number of commentators who are not simply apologists for Donald Trump have been arguing that the firing of Deputy Director Andrew McCabe by (supposedly recused) AG Jeff Sessions cannot have been a simple political hatchet job, because it was based on a recommendation of the Department of Justice Inspector General, a nonpartisan professional who was appointed to his current position by President Obama. I think they're making a straightforward logical error.

McCabe contends that he did nothing wrong. Maybe he's right about that. Let's assume for the sake of argument, however, that he's wrong. In other words, let's stipulate that if and when the report of IG Michael Horowitz is made public, it contains smoking-gun evidence that McCabe committed the wrongs that have been publicly alleged and that these are firing offenses, even for someone who is barely a day away from retiring with full benefits. Nonetheless, it is possible -- indeed, given Trump's very public campaign to discredit the Mueller investigation and anyone who could aid it, it is likely -- that the evidence contained in the IG's report was not the actual reason McCabe was fired.

The firing of James Comey closely parallels McCabe's firing.

Deputy AG Rod Rosenstein wrote a letter detailing how Comey's mishandling of the investigation of Hillary Clinton's emails--especially his public comments on the investigation--was a serious breach of policy warranting dismissal. Trump then fired Comey, initially claiming that he did so based on Rosenstein's report. But that was obviously just a pretext. As Trump himself soon boasted, he would have fired Comey without the Rosenstein recommendation. Why? Because of "this Russia thing."

Likewise, IG Michael Horowitz prepared a report detailing how McCabe's mishandling of the investigation of Hillary Clinton's emails--especially his authorization of comments to the media on the investigation--was a serious breach of policy warranting dismissal. Sessions, who had good reason to fear that Trump would fire him if he did not act against McCabe, then fired McCabe, claiming that he did so based on Horowitz's report. But that is likely just a pretext. Trump hasn't yet publicly boasted about it quite so explicitly as he did with Comey (although he has come close), but the most logical explanation for McCabe's firing--even assuming that he was fireable--is "this Russia thing."

Friday, March 16, 2018

How Scalia Saved Originalism By Destroying It

by Michael Dorf

Linda Greenhouse writes in The New York Times that Justice Scalia's legacy has already begun to unravel, as the SCOTUS--hitherto reluctant to cite legislative history in its statutory interpretation cases--has embraced legislative history since his death.  Greenhouse goes on to say that this development undercuts Scalia's lasting impact overall. She contends that Scalia wrote few memorable  majority opinions, citing DC v. Heller as a notable exception. She acknowledges that Scalia's admirers say his main legacy was "his insistence on originalism in constitutional interpretation and textualism for statutes." Yet, Greenhouse says, "[d]ebates over how to read the Constitution preceded Antonin Scalia and will be with us forever," thereby implying that Scalia's contribution to constitutional interpretation is negligible. And with the "debate about legislative history" that Scalia sparked "a fading memory," Greenhouse concludes that Scalia's legacy as a whole is fading.

Greenhouse's assessment of Scalia's legacy in statutory cases is premature. Meanwhile, I think she misunderstands Scalia's views about constitutional interpretation and thus also misunderstands his legacy there.

Thursday, March 15, 2018

Hillary Clinton and the Heckler's Veto

by Neil H. Buchanan

The "heckler's veto" describes a situation in which a person's speech is effectively silenced by the reactions or anticipated reactions of people who disagree with the speaker's views.  The threat of hostile reactions, up to and including violence, causes people to choose (under duress) not to speak or authorities to tell them not to speak.

Has Hillary Clinton's very existence become an especially pointed version of the heckler's veto?  It has long been obvious that her every word will be distorted by her detractors and that she will be held to mutually contradictory standards.  And now, finally, it appears that she simply cannot make an argument without her words being completely misconstrued and her motives impugned, so much so that she would be better off saying nothing.  (Perversely, she would then be criticized for her silence, but that is par for this course.)

I offer these thoughts in the light of a recent mini-kerfuffle over comments that Clinton made in an appearance in India, comments in which she again tried to describe why she lost the 2016 presidential election.  Inevitably, her remarks were deliberately misunderstood by conservatives and liberals alike.  Her critics are so relentless that they have succeeded in making it wiser for her never to speak again.  No matter what one thinks of Clinton, that is a serious problem.

Wednesday, March 14, 2018

Hamilton Versus Trump Part 4: "talents for low intrigue, and the little arts of popularity"

by Michael Dorf

My "Hamilton Versus Trump" seminar is now firmly back in Hamilton territory. This week's reading included Federalist 68, in which Hamilton defends the Electoral College on the ground that its (small-r) republican mechanism rather than a (small-d) democratic process will generally lead to the election of statesmen rather than demagogues. The Electoral College mechanism, he writes:
affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.

Tuesday, March 13, 2018

Does Animal Rights Advocacy Frustrate Human Rights?

by Sherry F. Colb

My Verdict column for this week explores the question whether the causes of human rights and of animal rights are in some way incompatible with each other. Are those who support animal rights either hostile or indifferent to human rights? And have human rights achievements made it more difficult to advocate for animal rights? In this post, I want to consider one reason for the perception among some audiences that animal rights may be incompatible with human rights. The reason is a subset of what Professor Gary Francione has dubbed "single issue campaigns." 

Single issue campaigns are attempts to persuade an audience that a particular type of animal exploitation is especially immoral and must stop. Sometimes, single issue campaigns have no implications for human rights, one way or the other. Advocacy against foie gras may represent one example. But on occasion, a single-issue campaign will select a form of animal exploitation that seems mainly to involve people of a particular race, religion, or sex. In such cases, it might appear that animal advocates are comfortable relying on bigotry to reach their goals.

Monday, March 12, 2018

Hollywood Bashing and the Gun Debate

by Neil H. Buchanan

Proposals to arm teachers or create larger security presences in schools are highly unpopular, opposed by teachers themselves (who would presumably be among those with the most self interest in this debate) as well as those who study school violence.

Even in Florida, where gun love has always run to extremes and where one might have expected the public response to the Parkland shootings to include calls to give teachers guns, the public at large -- by a decisive majority (56-40) -- is against arming teachers and school officials.

Actually, of course, some opportunistic politicians have been calling for arming teachers and adding (more) armed guards to American schools.  And the unpopularity of that idea is, as is always true in American debates about guns (and taxes, and the environment, and ...), not stopping Republicans from moving forward with bad proposals.

When the Republicans who dominate Florida's government surprised everyone by passing a modest but nontrivial gun-control law (while still failing to ban assault weapons or high-capacity magazines, of course), they excluded teachers from their new "school marshal" program, but they did move forward with that program, in spite of (because of?) the warnings from experts that such programs inevitably target students of color for harassment and worse.

There is also the possibility that, in the chaos of a school shooting, armed school staff -- again, especially those who are from minority groups -- would be seen by police as perpetrators and not protectors.

It is nonetheless not a surprise that, having recovered from his brief flirtation with actual gun control, Donald Trump has decided to push for more guns in schools as his administration's only semi-specific proposal to deal with mass shootings.

This is consistent with Trump's longstanding enthusiasm for the idea of a hero with a gun saving the day.  Although he was rightly mocked for claiming that he would have run into the school in Parkland even without a gun, Trump embraces implausible scenarios in which good people shoot bad guys dead, making everything right again.

Trump is, of course, hardly alone in his faith in a hero on a white horse solving all problems with a "peacemaker."  But where does this fantasy come from?  Yes, I am going to blame Hollywood.

Friday, March 09, 2018

Even a Little Bit of Power Needs to Be Exercised Responsibly

by Neil H. Buchanan

The noted philosopher Ben Parker (uncle to Peter Parker, aka Spiderman) once said: "With great power comes great responsibility."  Or maybe it was Voltaire who said that.  In any case, it would seem to follow that with some modicum of power comes a requirement at least not to act irresponsibly.  And among people in academic circles, having even a modicum of power is actually rather rare.

Consider Paul Krugman.  He is the most honored economist of his generation, the only economist ever to have won both of the field's top prizes.  He also has a preternatural ability to communicate clearly and concisely -- an ability that is, to put it mildly, not nurtured by economics training -- such that he was given a perch as a regular columnist on the op-ed page of The New York Times.

Combine serious academic chops with a good bullhorn and the ability to use it, and good things ought to happen.  Krugman also had the good luck, if one can call it that, of having access to his bullhorn during the worst economic crisis in three-quarters of a century.  Even though he is quite good at writing on most other topics, the Great Recession and its aftermath were tailor-made for him to have an impact.

And boy oh boy, he tried.  Week after week, month after month, and year after year he called out hack economists on the right for ignoring evidence that contradicted their dogma, called upon a Democratic president to be bolder in dealing with the damage that timid policies and Republican obstructionism were causing, and laid out a case for a surprisingly simple and powerful approach to reducing human misery.

Did Krugman's prodigious efforts have any impact at all?  Perhaps, but one would be hard pressed to prove it.  Certainly, policy moved overwhelmingly in the opposite direction of Krugman's prescriptions, with even ideological allies like now-former Federal Reserve Chairwoman Janet Yellen ignoring Krugman's advice to hold off on tightening monetary policy until "we can see the whites of inflation's eyes."

It is certainly possible that Krugman's interventions made matters less bad, causing the Obama Administration to take stronger stands even in retreat and the Fed to delay raising rates longer than it otherwise might have.  But if that is the most that one might hope to find regarding Krugman's impact on the world, that is a rather meager payoff from what seems like a powerful position.

What does that say about other academics who operate in the mortal realm?

Thursday, March 08, 2018

Is Trump's Twitter a Public Forum and the Limits of the Law

By Eric Segall

On Thursday, various plaintiffs argued in New York federal court that President Trump does not have the right to block people on Twitter. This issue is enormously difficult, has serious implications, and also demonstrates the limits of "legal reasoning."

Does the "Essential Role" Theory of Appellate Jurisdiction Survive Patchak v. Zinke?

by Michael Dorf

Last week's SCOTUS decision in Patchak v. Zinke raised but ultimately did not resolve two of the most fundamental questions about the power of Congress to limit the jurisdiction of the federal courts: (1) Where is the line between acts of Congress that permissibly change the law applicable to pending and future cases versus acts that impermissibly dictate the result in a particular case?; and (2) What limits does the Constitution place on Congress's ability to exclude cases from the federal courts' jurisdiction?

In my latest Verdict column I discuss the Court's treatment of the first question. Here I'll consider what the Court says about the second. Patchak does not definitively answer either question, because there is no majority opinion and the concurrences in the judgment (by Justices Ginsburg and Sotomayor) would resolve the case on wholly different grounds. However, what the plurality opinion of Justice Thomas says about the second question is troubling, and because the dissent of Chief Justice Roberts takes issue mostly on the first question, there is no response to some of the broader implications. I'll try to fill that gap.

Wednesday, March 07, 2018

The Italian Job -- And Its Ironies

by Sidney Tarrow

On March 4th, Italy underwent one of its many “crises” — a term that is sometimes overused on the peninsula, but which seems to have been fitting this time. After over two decades of what political scientists called “The Second Republic,” Italian political life was turned upside-down.

First, the governing center-left PD crashed and burned, losing almost half of its votes and suffering the resignation of its unpopular leader, Matteo Renzi.

Second, coming from almost nowhere since its creation by a noted comic, Beppe Grillo, in 2009, a party called the “Five Star Movement” (M5S) captured a third of the electorate, emerging from the election as the largest single party. Under normal circumstances, this would have made it the logical first choice to form a government, but the M5S asserted throughout the campaign that it would refuse to coalesce with any of the other parties; at this writing, it has still not broken that pledge.

Third, since much of the campaign turned on the issue of undocumented immigrants — hundreds of thousands of whom landed on Italy’s shores over the last few years — a once-regional party, the Lega, which had represented northern interests, but now embraced a Trumpian denigration  of immigrants, came in third — well ahead of its ally, Silvio Berlusconi, the billionaire businessman whose four terms as Prime Minister had shaped the Second Republic. The campaign was marked by violence of language and action, and the results were structured by a new and untested electoral system that Renzi had designed to keep his party in power. No wonder he resigned the morning after the PD’s defeat!

Tuesday, March 06, 2018

When Should Liberals Try to Remove Judges From the Bench?

by Neil H. Buchanan

Judges inevitably make some decisions that outrage people.  The timeless question is when a decision crosses a line into territory that rightly calls for a judge's removal from the bench.  Calls for judges to be deposed have more typically been heard among conservatives in the U.S., but the question comes up regularly among liberals as well.

Even in states where judges are elected, those judges are in various ways protected from the prevailing political winds through a number of counter-majoritarian measures (nonpartisan elections, appointment followed by retention elections, and so on).  Non-elected judges are even more politically independent, especially at the federal level, where the standards for impeachment were quite deliberately set at a high level.

In the abstract, therefore, everyone accepts the idea that judges cannot simply be politicians in robes.  Three recent incidents, however, provide potentially useful insights in addressing the question of when (not if, because there seems to be no serious argument that a judge should never be removed for misconduct on the bench) a judge must go.

Monday, March 05, 2018

What is Narrow Tailoring in Religious (and Speech) Exception Cases?

by Michael Dorf

Last Friday saw the release of an unpublished opinion of a 3-judge appeals court panel in the Colorado case of People v. Ray. The very fact that the decision is unpublished suggests that it does not decide a novel issue--and it doesn't--but thinking about this seemingly obviously correct decision may prove interesting for thinking about a different class of cases.

The facts are simple enough. Greta Lindecrantz was called by the prosecutor to testify at the state post-conviction hearing of Robert Ray, who had previously been found guilty of murder and sentenced to death. Lindecrantz is a Mennonite. She said that her truthful testimony would likely lead the court to find that, contrary to Ray's claim, he received effective assistance of counsel, which in turn would lead to his death penalty being affirmed, which in turn would render her complicit in his execution, in violation of her religious beliefs. Lindecrantz was held in contempt, which she challenged on free exercise grounds. She lost. The question I'll explore is how one of the grounds for her loss might apply in cases in which people seek exceptions to anti-discrimination law.

Thursday, March 01, 2018

Simple Politics and Gun Control

by Neil H. Buchanan

What kind of gun legislation would result from straight-up democracy?  That is, if there were no constitutional constraints and our system were allowed simply to run its course through normal political competition, what would our gun laws look like?

It has been barely more than two weeks since the Parkland killings turned the U.S. political debate on its head.  Some Republicans seem to be rethinking their once-politically-safe genuflection to gun absolutists, and at least for now, many large businesses are moving in the right direction.

Donald Trump, of course, has said all kinds of things, most of them ridiculous (including his "confiscate first, due process second" approach to gun control); and even though he recently said some things that might be cause for optimism, there is every reason to believe that he will backtrack and ultimately side with the right-wing extremists.

Even in this new and unexpected chapter in the story of American gun politics, I have said repeatedly that I still do not expect anything big to change.  I confess, however, that every day I have become slightly more optimistic that at least a few minimal things might actually change for the better.

But again, the question I want to ask here is what would happen if the country suddenly stopped viewing the gun debate as a constitutional question and simply let politics play out.  Where would we end up?  My best guess is that we would stop far, far short of adopting anything resembling serious gun control measures.

Animal Agriculture and the Non-Identity Problem

by Michael Dorf

On Saturday, Prof. Colb and I will be speaking at an animal rights conference at Bucknell University with a focus on approaches to the topic that aim to abolish animal agriculture. Our topic is "Who Benefits From Abolition?" It is framed as a response to a particular sort of objection to the case for veganism. Consumers of animal products sometimes say that their acts are harmless or even beneficial to the animals whose parts and products they consume, because those animals otherwise wouldn’t have existed. This claim appears to raise what philosophers call the non-identity problem.

Wednesday, February 28, 2018


by Sherry F. Colb

In my Verdict column this week, I talk about two of the ways in which African Americans and women have been marginalized: denial and devaluation. Denial refers to the refusal to credit the stories that people on the losing side of racial and gender conflicts tell. If a police officer kills a black suspect, and witnesses say that the killing was unprovoked, they face skepticism and disbelief. And the same is true for women who tell of being raped by a date; listeners (such as juries) choose not to believe what they are hearing and to assume that the woman is lying. Devaluation happens sometimes when African Americans and women manage to actually convince those in power that what they are saying is true. Devaluation consists in minimizing the gravity of the harm in question.

In this post, I want to talk about a movie, because even though movies ostensibly tell one story--and a fictional one at that--the story often represents a narrative about what typically happens. A movie about a white police officer who killed an African American suspect for a good reason would accordingly represent an effort to offer up the narrative that says that when police kill suspects it is usually justified.

Tuesday, February 27, 2018

Gun Violence: Trump's Non-Solutions and Some Real Solutions

by Neil H. Buchanan

In the uncharacteristically extended political aftermath of the February 14 school killings in Florida, we have seen a surprisingly wide range of proposed solutions and an even more surprisingly naked display of Republican lying and cowardice.  Although I continue to suspect that nothing meaningful will ultimately be done, it is impossible not to perceive a distinct ray of hope that has not been visible in the five years since Sandy Hook.

Moreover, even if no laws are changed, the revelation of Republicans' stark dishonesty might itself be helpful in leading to better results in the future.

On guns, as on so many things, Donald Trump is not a man who (as many pundits would have it) pulled off a hostile takeover of the Republican Party.  It has become ever more obvious that he is what movement conservatives have always been, and his rise has simply allowed the Republicans to boot out the few remaining voices of quasi-sanity in favor of those who embrace the worst kind of ruthlessness in both methods and policies.

The raging paranoia of the gun lobby's spokespeople makes it clear that guns are only a small part of their concern.  It is about "socialism," whatever they might mean by that.  They also say, weirdly, that it is about people who will not allow kids to be spanked.  As Jennifer Rubin archly commented after Wayne LaPierre's speech at a conservative conference this week: "If someone were mumbling like that at a bar, the bartender would be obligated to cut off his drinks."

Monday, February 26, 2018

Do 18 Year Olds Have a Constitutional Right to Guns?

by Michael Dorf

Dissenting from the denial of certiorari in Silvester v. Becerra last week, Justice Clarence Thomas lamented that the lower courts have been undermining the Second Amendment by saying they are applying intermediate scrutiny to gun regulations but actually applying something more like the low-level scrutiny of the rational basis test. He thought that the US Court of Appeals for the Ninth Circuit committed this sin in its opinion upholding a California law imposing a 10-day waiting period for the purchase of firearms. Justice Thomas also chastised his colleagues for treating the Second Amendment as "a disfavored right."

The idea that the right to possess firearms is "disfavored" anywhere in America would likely be received with puzzlement in most of the world. Indeed, last week's juxtaposition of a Supreme Court justice complaining that firearms are too difficult to obtain with students who survived the shooting at Marjory Stoneman Douglas High School pleading for the grownups to do something to protect them was arresting.

Beyond the symbolism of Justice Thomas's poorly timed Silvester dissent lies a question of law. What would real intermediate scrutiny of firearms regulations look like? I'll try to answer that question by comparing a classic case of such intermediate scrutiny with a hypothetical challenge to the proposal to raise the minimum age for the purchase of assault rifles to 21.

Sunday, February 25, 2018

Take a Survey to Advance the Store of Knowledge

by Michael Dorf

A team of researchers from Stony Brook University have asked me to help them study the role that emotion plays in politics. I have completed the survey myself, and it only took me about ten minutes. The survey is completely anonymous. Click this link to begin the survey.


Saturday, February 24, 2018

This Russian Stuff

By William Hausdorff

I’m trying to decide how much of this Russian stuff really matters.  According to some of the recent indictments by the Justice Department, a concerted, well-funded Russian disinformation effort turbo-powered by bots was designed to interfere with the US presidential election campaign in 2016.  Thirteen Russians are accused of wire fraud, bank fraud, identify theft, even conspiracy to defraud the US government.  

On the one hand, by demonstrating there was a serious effort to interfere with the election campaign, Special Counsel Robert Mueller and team imply that collusion by the Trump campaign or family to abet this conspiracy, and/or of obstruction of justice to block its investigation, is not something that can be dismissed as “just politics.” 

All admit that Mueller is unlikely to get his hands on any of these Russians to put them on trial, much less in prison.  The tacit assumption, then, is that this merely sets the stage for future charges and indictments that will reach well into the upper reaches of the Trump White House.

Yet the underlying theme in the media is that the Russian origins of this particular operation, not to mention being sponsored by a crony of Putin, make it especially nefarious or potent.  Extremely knowledgeable observers such as the US/Russian reporter Masha Gessen have recently noted that

Loyal Putinites and dissident intellectuals alike are remarkably united in finding the American obsession with Russian meddling to be ridiculous. 

And that the notion that there has been an elaborate, well-orchestrated Kremlin-hatched plan to “throw” the election to Trump—rather than just “sow discord”—is similarly absurd.

Friday, February 23, 2018

Trump Finds a Regulation That He Might Like

by Neil H. Buchanan

Is everyone a hypocrite?  In our personal lives, no one is immune to the occasional convenient flip-flop.  In politics, Democrats and Republicans often trade places depending upon whatever is happening at the moment.  For example, each side's high dudgeon over the other side's use of (or elimination of) the filibuster has made for great before-and-after sequences of clips on news and comedy shows.

Even though we are all hypocrites at various times, and even though politics is fueled by situational ethics, there are certainly people and groups who are better and worse at the fine art of hypocrsy.  Democrats have engaged in gerrymandering, but they support a system in which neither side could choose its voters.  Republicans do not.

Similarly, Democrats rely more than they should on wealthy donors, but they would thrive in a system with strict limits on plutocratic influence.  Republicans talk darkly about George Soros's supposed malevolent manipulations, and they gleefully screamed about Hillary Clinton's paid speeches, but they are absolutely committed to increasing the influence of big money in politics.

And of course, Republicans were against budget deficits until they had the opportunity to run deficits for their own reasons, whereas Democrats actually reined themselves in (even when increasing deficits would have been a good idea politically and economically) when they did not have to do so.

Even if everyone is a hypocrite, therefore, the current metastasized version of the Republican Party is simply better at it than everyone else.  Practice makes perfect.  I thus do not intend to claim that Donald Trump's latest hypocrisies regarding guns are a new low, because I have no way to measure him against his compatriots in comparative dishonesty.  Even so, his latest statements and actions are certainly both entertaining and scary.

Thursday, February 22, 2018

What is Originalism circa 2018?

By Eric Segall

I spent last Friday and Saturday at the works-in-progress Originalism Conference at the University of San Diego. Professors Mike Rappaport, Mike Ramsey, Steve Smith, and Larry Alexander were wonderful hosts. I highly recommend this annual conference for anyone interested in originalism specifically or constitutional theory generally. I learned a tremendous amount from the papers presented and the robust, civil, and interesting discussions that took place. One thing I didn't learn, however, was what is Originalism circa 2018.

Wednesday, February 21, 2018

Why A Lawyer Shouldn't Be Allowed to Pay A Client's Bills: (More) Reflections on Rule 1.8(e), Cohen, Trump, and Daniels (A Response to Prof. Dorf)

by Diane Klein

In this space yesterday, Prof. Dorf argued (not exactly in "defense" of Michael Cohen's payoff to Stephanie Clifford aka Stormy Daniels aka Peggy Peterson, through a shell company created for that purpose only) that while Cohen using his own money to pay off Stormy Daniels for her silence about her affair with Donald Trump might violate Model Rule of Professional Responsibility 1.8(e) (or its New York equivalent), the rule itself is "foolish."  I disagree.

Federalist 46 and the Second Amendment

by Michael Dorf

This week, my seminar students and I read Federalist Nos. 36-47. After a month of mostly Hamilton, it was interesting to shift gears and hear from Madison. In light of the school shooting in Parkland, Florida last week, it was hardly surprising that a substantial part of our seminar discussion focused on the implications of Madison's statements in Federalist 46 about "citizens with arms." But given the increasing frequency and severity of mass shootings (which I discuss in my new Verdict column), our discussion likely would have turned to the Second Amendment even if the news had not included a very fresh tragedy.

Tuesday, February 20, 2018

Why Shouldn't a Lawyer Be Allowed to Pay a Client's Bills? Reflections on Michael Cohen, Donald Trump, and Stormy Daniels

by Michael Dorf

Donald Trump's lawyer Michael Cohen claims that he paid Stephanie Clifford, aka Stormy Daniels, $130,000 out of his own pocket in exchange for her keeping quiet about her alleged adulterous liaison with Trump. As discussed in a lurid story in yesterday's NY Times, the payment may have violated federal campaign finance law (as an unreported and cap-exceeding donation of in-kind services to the Trump campaign) as well as New York's ethics rules.

The story also raises questions of journalistic ethics: Is it ever proper for a newspaper (even a gossipy tabloid) to pay for the rights to a story for the purpose of killing the story as a favor to the politically connected friends of the paper's publisher? (The tabloid publishers deny that was their goal in this and other instances, but the Times story cites sources to the contrary).

That's all fascinating stuff. Here I want to focus more narrowly on the rule of legal ethics that Cohen might have violated by making an apparent gift of $130,000 to his client.