Thursday, December 13, 2018

If Kasich Is Accepted As a 'Reasonable' Candidate, Why Aren't Warren or Sanders?

by Neil H. Buchanan

To be clear, John Kasich would be a better president than Donald Trump.  But so would my dog Maynard, who died in 2006.  Being a preferable alternative to the most dishonest, corrupt, bigoted president ever cannot be the standard for judging possible presidential contenders, yet many self-styled centrists (or at least non-extremists) in the pundit class continue to treat Ohio's soon-to-be-former governor as some kind of truth-telling paragon of seriousness.

This is nonsense on stilts, and The Washington Post's editorial page -- which, like the editors of The New York Times, seems to think that Kasich deserves to be treated as a serious thinker -- allowed Kasich to inadvertently prove his unseriousness in an op-ed this morning.

There is not much to say about the op-ed itself, although I will dutifully force myself to address it in a few moments.  More importantly, however, it is useful to think about how the Kasich myth has played out among the keepers of the conventional wisdom.  Now that Paul Ryan has so completely ceded his own unearned spot as the Serious-and-Reasonable Conservative, John Kasich seems to be the guy that the opinion makers want to elevate.  Will they never learn?

More to the point, I continue to be amazed that there are people who seriously argue that Democrats must not "mess things up" by nominating someone who is perceived to be Too Extreme -- usually referring to "that Socialist" Bernie Sanders, but also including Elizabeth Warren and some others -- are perfectly happy to say that even liberals should be willing to settle for someone like Kasich, because he is supposedly reasonable and non-extreme.  This is ideology masquerading as realism.

Wednesday, December 12, 2018

How Determinate is the Original Understanding of Stare Decisis?

by Michael C. Dorf

My latest Verdict column discusses last week's oral argument in Gamble v. US. The case poses the question whether to abandon or at least to cut back on the "separate sovereigns" exception to Double Jeopardy. Under that exception, a prosecution in federal court does not preclude a subsequent prosecution in state court based on the same underlying conduct, nor vice-versa. The case is important in its own right but has garnered special attention because of its potential with respect to the Mueller investigation. Should Trump issue pardons to various of Mueller's targets, they could nonetheless face charges in state court (mostly in NY but potentially elsewhere in addition). However, if the separate sovereigns exception were abandoned or curtailed, that option could be off the table.

Or at least some observers have claimed. As I explain in the column, even abandonment of the separate sovereigns exception would leave Trump and his henchmen subject to state prosecution for crimes arising out of different conduct. Further, Gamble does not provide an opportunity to say anything about the interaction of the pardon power with Double Jeopardy. And there was not even a hint of a concern about the Mueller investigation expressed by any of the justices during the Gamble oral argument.

Accordingly, most of my column discusses the case's merits, albeit with a Trump-related twist at the end. Here I want to go into some greater depth on one point that was particularly interesting during the oral argument. The issue concerns what has become a leading justification for acceptance of stare decisis by self-styled originalists.

Tuesday, December 11, 2018

What Bothers People About Medicare-for-All, Really?

by Neil H. Buchanan

Now that the Democrats -- thanks to their historic trouncing of Republicans in the midterms -- are set to take back control of the House of Representatives next month, many in the party are talking excitedly about finally creating a universal single-payer health care system in the U.S.  Why not get this country at least into the Twentieth Century when it comes to health care, even if we stagger across the finish line five or six decades later than every other country that we think of as "civilized"?

Because the U.S. already has a non-universal single-payer system called Medicare, which happens to be quite popular even among the Republican base, Democrats are using the shorthand Medicare-for-All to describe a range of proposals, some of which would involve the total elimination of private insurance while others would provide public funding for universal care but allow private add-on insurance policies.  Those policy differences, though undeniably important, are not pertinent to the discussion here.

Instead, my question is why so many people disparage Medicare-for-All (or any kind of public health care financing system).  After all, we are not merely talking about a bunch of astroturf groups, funded by shadowy right-wing ideologues, spinning stories about death panels and Stalinist assaults on personal freedom.  Supposedly reasonable conservatives -- and even a lot of centrist and left-centrist Democrats -- become twitchy when anything like Medicare-for-All is on the table.

Why is there such widespread opposition to a system that is not only a proven success worldwide but that already exists here in the U S of A?  Why do even people of apparent good faith lose their marbles when we start to discuss treating health care as an American right rather than as a privilege of wealth?  I think the explanation can be broken into three categories.

Thirteenth in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. Emmet Flood)

by Diane Klein

Monday, December 10, 2018

Bob Cousy, Bill Russell, and Race in America On and Off the Court

By Eric Segall

It is a rare event to read a book that combines two great passions. But Gary Pomerantz's "The Last Pass: Cousy, Russell, The Celtics, and What Matters in the End," is just such a book.
Pomerantz (disclaimer, a long-time friend) previously wrote about race relations in Atlanta and Wilt Chamberlin's 100 point game, among other topics. In his latest, he takes on both the NBA and race, two of my favorite topics to think about (one personal, one professional). It is a must-read for anyone interested in either subject.

Thursday, December 06, 2018

The Future of Work if Workers Are No Longer Needed

by Neil H. Buchanan

Last week, General Motors announced mass layoffs as part of a plan to close multiple manufacturing plants in North America.  Politicians of all stripes expressed varying combinations of anger and dismay, and Donald Trump predictably failed to comprehend the problem or his role in it (just as he had tried to bully Harley-Davidson last year when they rationally responded to his economic policies by planning to move manufacturing abroad).

On this blog last Tuesday, Professor Dorf offered some interesting thoughts about what the future of employment might look like.  (Those thoughts, in turn, expanded on a column that he wrote two years ago.)  Dorf wrote: "So far, no one on either the right or the left has really begun to imagine a future in which automation leaves just too few jobs for the number of able-bodied adults who need them."

That is correct, but with a twist.  The mainstream lefty intellectual par excellence, the great economist John Maynard Keynes, wrote a short essay in 1930 that anticipated much of this debate.  That essay does not inform the current debate, however, so Dorf is correct that virtually no one on either side of today's political debate has had much to say about the long-term consequences of the manufacturing economy's decline.

Here, I want to discuss the optimistic and pessimistic versions of the future of work.  Keynes's essay then becomes relevant, but not necessarily as The Answer to what the future might hold.  Indeed, Keynes's optimism is striking, compared to what might truly await our children and grandchildren.

What Would the SCOTUS Say About a Human Gene Editing Ban?

by Michael C. Dorf

The recent news that Chinese scientist He Jiankui claimed to have created twin girls with genes edited to give them resistance to HIV infection sparked great interest and sharp criticism. Did he actually do it? Did his university know? Why didn't he follow ordinary scientific protocols? Was it ethical? And now, ominously, where is he?

Those are all important questions, no doubt, but as a constitutional lawyer they raised a different question for me. The first "test-tube baby" was born forty years ago. In the intervening years, a host of legal questions involving IVF, egg donation, surrogacy, and other forms of assisted reproductive technology (ART) have arisen. State laws and state court decisions address many of these questions. And yet, despite tackling other contentious issues involving human reproduction, sexuality, and family formation, the SCOTUS has been almost completely absent from this debate.

I don't intend that observation as a criticism. One can legitimately worry about over-constitutionalization of policy questions that are better addressed through public debate, legislation, and state court litigation that has a less permanent and more local quality than a Supreme Court decision. Nonetheless, the result is at least a little curious on its face. Over the last four decades, the Supreme Court has not exactly been shy about constitutionalizing issues--in ways that liberals and conservatives each dislike, depending on the issue. Why not at least a handful of ART rulings, even if only to deny recognition to a constitutional right to any particular ART?

I don't have a clear understanding of why the Court has avoided this area, so I will leave it as an exercise for the reader. Meanwhile, I want to flag how I think the argument will go if and when one of these cases eventually makes it to the SCOTUS.

Wednesday, December 05, 2018

Observing and Integrating Different Moral Perspectives

by Sherry F. Colb

My Verdict column this week discusses the CDC's (Centers for Disease Control and Prevention's) recent report that abortion rates dropped dramatically between 2006 and 2015. I offer competing accounts of this drop and explain how each fares vis-a-vis the political objectives of the various perspectives. The primary competing perspectives are the pro-life and pro-choice perspectives. In this post, I will speak in more general terms about how people who hale from these two perspectives communicate about abortion. I believe we can learn something important from observing some of the destructive ways in which each side uses language.

Tuesday, December 04, 2018

Ends, Means, and George H.W. Bush

by Neil H. Buchanan

Four days before Donald Trump became president last year, the satirist Andy Borowitz faux-reported that George W. Bush was "eagerly counting down the days until he is no longer the worst President in U.S. history."  This was hilarious, and it reminded me that the junior Bush was once on the opposite end of the joke, with people saying that George H.W. Bush was the beneficiary of a quick rewrite of history due to his once-wayward son.  As one friend of mine put it in the early 2000's: "W is proving that he's a loyal son by doing everything so badly that his father looks good by comparison."

The elder Bush's death last weekend has brought forth more than the standard praise for recently deceased politicians.  Bush, in large part because of his stylistic contrast with Trump -- who, by the transitive principle, has been a fantastic surrogate son of Bush pere -- is receiving positively glowing coverage.

Merriam-Webster defines "hagiography" as a "biography of saints or venerated persons" or an "idealizing or idolizing biography."  It is difficult to decide whether Bush's public remembrances are merely hagiographies or, as I described the public response to John McCain's death, a deification.  Both men's images benefited enormously from the political moment, and as a result, both have been praised to excess.  That is not to say that there is nothing to praise, but it is obvious that the memories of both are being used in large part to take swipes at Trump.

Trump deserves the swipes, of course, but the facts about McCain and Bush should not be papered over in doing so.  As David Greenberg put it in Politico: "Respect for the dead must coexist with respect for the historical record."  Consider this column my statement of respect for the historical record regarding George H.W. Bush.

Monday, December 03, 2018

Further Questions About the Scope of the Dep't of Education's Authority Under Title IX

by Michael C. Dorf

In recent weeks, I wrote two blog posts (here and here) as well as a Verdict column critical of some aspects of the Dep't of Education (ED)'s notice of proposed rulemaking with regard to Title IX. I had thought I was done with that topic, but some reactions to the column (in the comments section, via an email exchange with Prof. Josh Blackman, and on criminal defense attorney Scott Greenfield's blog) raised interesting questions that I think merit further discussion. Hence, this fourth entry in the "trilogy." By way of preview, I will suggest that ED's theory on a key point relies on a very broad view of discrimination that Republican administrations and the Supreme Court have typically rejected.

Friday, November 30, 2018

What Could Be Worse Than the Trump Era?

by Neil H. Buchanan

With the mostly good news of the midterm elections now behind us -- good news that was diminished, of course, by the continued success of blatant racists in Georgia, Florida, Mississippi, Iowa, and elsewhere, to say nothing of the disappointment of Beto O'Rourke's near-miss in taking down Ted Cruz -- the political atmosphere has once again been taken over by full-on Trump craziness.  Undiminished support for a literally murderous Saudi regime?  Check.  Climate change denialism on steroids?  Check.  Cruelty toward asylum seekers and immigrants?  Double check.

With all of this insanity swirling around us, it seems like a good time to revisit the alternative reality in which Hillary Clinton had won the 2016 election.  In May of 2017, I wrote a Verdict column in the form of a news report from another place in the multiverse where the press was assessing Clinton's first one hundred days in office.  Yesterday, I published a follow-up piece imagining the aftermath of the 2018 midterm elections.

The premise of the column is that the Democrats had been wiped out in the midterms, dropping so many House and Senate seats that they fell below the Constitutionally significant one-third mark in both houses of Congress.  I do not go into as many details about the implications of that outcome as I might have -- such as the possibility that Republicans would then decide not to impeach Clinton, on the theory that they could simply override her vetoes of everything but still keep her in office to blame her for everything that goes wrong "under her watch" -- because there are simply too many cynical possibilities to fit into one column.

Moreover, my larger point is not that (as I supposed in the column) exactly enough once-thought-safe Democrats would lose their seats to bring their total down to 33 sitting Senators.  The thought exercise was designed to remind myself that this month's good electoral news -- as well as all of the good news in other elections during Trump's tenure, including the Democrats' huge gains in New Jersey and Virginia in the 2017 off-year elections -- would simply not have happened if good sense had prevailed on November 8, 2016.

Here, I want to explore the perverse possibility that the country will be better off because of Trump's having won and then imploded.  It is not, I should emphasize immediately, an effort to say that "it's all OK," but rather a matter of thinking about the classic radical-versus-liberal choice -- or, if you prefer, asking whether things must become worse before they can get better.  My answer: Because things are getting worse in any event, we might as well hope that something good will come out of it all.

Thursday, November 29, 2018

The End of the Two-Senators-per-State Rule: Thoughts on the Dorf-Primus Non-Debate

by Neil H. Buchanan

The U.S. Constitution includes a compromise provision that created an upper legislative house with two senators representing every state.  Notwithstanding its mere existence, does that provision make sense?  I suspect that most people would respond to that question initially from a purely realpolitik standpoint.  Specifically, because that arrangement currently favors Republicans, Democrats hate it and Republicans fiercely defend it.

But if asked to justify it on some other grounds, my sense is that most Democrats would feel the need to sound conciliatory and say that there is something about a non-proportionally-delineated legislative body that could make sense.  Maybe it has something to do with preventing the tyranny of the majority, they might say.  Or perhaps something about states' rights (stripped of the racist overtones of that particular two-word phrase).

Perhaps, however, I am projecting my own ill-formed intuitions onto others, in which case I am simply confessing that I had never quite taken the time to think clearly about the two-senators-per-state rule (which I will call 2SPS here).  In any case, I have learned a great deal from the recent non-debate between Professors Michael Dorf and Richard Primus, which they have waged this month here on Dorf on Law and on Take Care.  (The first column was written by Dorf, followed by Primus's first response, then Dorf's reply, then Primus's epic summation.  I do not know whether either side plans to write again on this topic.)

Here, I want to fill in some pieces of the argument against 2SPS, focusing in particular on a comparison between bicameral state legislatures and Congress.  This comparison, I think, strengthens the (already extremely strong) case that both Dorf and Primus have laid out against the current structure.

Wednesday, November 28, 2018

More on the Unprincipled Nature of the Senate: Further Conversation with Professor Dorf (Guest post by Richard Primus)

by Richard Primus

In a series of blog posts (here, here, and here), Michael Dorf and I have been conversing about the justifiability of each state’s getting two representatives in the U.S. Senate.  As a general matter, neither of us argues that the current system is justified (except in the brute sense that current law requires it).  That’s not because we think that the only justifiable ground for allocating representatives in a legislature is on the basis of population (that is, on the basis of the principle we know as “one person, one vote,” and which I’ll call OPOV for short).  We both think that other factors could, in appropriate circumstances, justify departures from OPOV.  Instead, our sense that the current system for the Senate is unjustified rests on our sense that the Senate’s enormous deviation from OPOV is not justified by any argument applicable to the facts of this particular case.  In other words, we don’t think that under all imaginable circumstances every representative in a legislative body must represent a constituency of the same size as every other representative, so far as mathematically possible.  But we also don’t think that anything about the United States in 2018 justifies a system in which some senators have nearly 70 times as many constituents as other senators, and in which more than one-third of the entire represented population elects just eight out of a hundred senators.  

That said, Dorf and I are at least emphasizing different things.  He is identifying things that might in principle be reasons justifying deviations from OPOV.  I am more concerned with showing that none of those reasons helps justify the U.S. Senate, even if some of them might justify deviations from OPOV in some legislature somewhere.  But this contrast between us might make our conversation more of a cooperative effort than a real debate.  To persuade people that the Senate makes no sense, it’s necessary to shoot down a lot of possible defenses of the existing system.  One way to describe this conversation is to say that Dorf is identifying possible defenses—defenses that would need to be rejected if people were to be persuaded that the Senate should be reapportioned—and I’m then explaining why those defenses should be rejected.

What Does a Presumption of Non-Responsibility Mean in a Civil Context?

by Michael C. Dorf

In a post last week, I criticized the Department of Education's proposed new rules governing campus investigations under Title IX on the ground that they use a too-restrictive definition of sexual harassment. Although I acknowledged that a Supreme Court case involving fifth graders supports a definition that sets a threshold of "severe and pervasive" conduct to constitute hostile environment sexual harassment, I argued that in campus Title IX cases, decision makers should apply the well-accepted Title VII standard, which sets a more expansive "severe or pervasive" threshold.

My latest Verdict column might be deemed Part 2 of my miniseries on the DOE's notice of proposed rulemaking. In it, I take aim at the core of the proposed rules, which would make it harder for (mostly female) students alleging sexual assault or harassment by other (mostly male) to prove their cases. Whereas the Obama-era rules sought to minimize false negatives (that is, findings of no responsibility despite the fact that sexual misconduct in fact occurred), the proposed new rules seek to minimize false positives (that is, findings of responsibility despite the fact that the accused did not commit sexual misconduct). My main concern in the column is not whether the old or new approach is better, all things considered. Rather, I argue that insofar as the new rules would permit colleges and universities to require more evidence before finding a student responsible for sexual conduct, they are valid, but insofar as some of the new rules would require colleges and universities to require more evidence, they are invalid. That's because Title IX delegates authority to federal agencies (including the DOE) to write rules that "effectuate" the substantive policies of the statute; whether or not additional procedural barriers to a finding of responsibility are a good idea, they cannot be said to effectuate the anti-discrimination mandate of Title IX.

In the balance of this essay, I want to conclude my mini-series by objecting to yet a third aspect of the proposed new rules. The proposed rulemaking would require that in their proceedings for determining responsibility for alleged sexual misconduct that schools receiving federal funds "include a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process." That requirement falls outside the scope of authority that Title IX delegates to DOE, per the analysis in my column. However, even putting that objection aside, the presumption of non-responsibility is wrong-headed because either redundant or confusing.

Tuesday, November 27, 2018

GM Plant Closures Expose Trump's Economic Ignorance But Also Raise Hard Questions

By Michael C. Dorf

Across the political spectrum, elected officials were unhappy with the news that General Motors would mothball five North American plants and cut about 14,000 jobs. That is certainly understandable. The workers who will lose their jobs, their families, and the communities that will suffer the indirect effects of GM's move deserve our empathy.

To be sure, Donald Trump's response was a characteristic mix of bluster and ignorance. He reported that he had pleaded with GM CEO Mary Barra to make a different decision out of a sense of obligation. Trump noted, correctly, that the US had saved GM during the Great Recession (without mentioning that this was accomplished by President Obama over the objections of Republicans). Trump also predicted that Barra's "going to put something back in [Ohio] soon." That's possible, I suppose. If the plant infrastructure can be converted to producing different sorts of vehicles at lower cost than building new plants, then GM's move could cause only temporary pain. But the mere fact that Trump made the prediction is hardly a reason to think it is based on any solid information.

Indeed, the bigger picture here shows the incoherence of Trump's approach to economics. For one thing, Trump's steel and aluminum tariffs have increased GM's costs and thus reduced its ability to make a profit on all of its products. Beyond Trump's fondness for trade wars, he does not seem to understand basic arithmetic. Prior to the last few months of losses and volatility, Trump boasted about stock market highs as an indication of what a success his administration's policies have been. Yet in important respects high stock values appear to be negatively correlated with worker wellbeing. Every dollar that ends up in workers' pockets as wages is a dollar that does not end up as corporate profits that increase a firm's share price. That inverse correlation was painfully obvious yesterday: GM stock prices increased by five percent on the news of the forecasted job cuts.

Monday, November 26, 2018

Ideology, Partisanship, and the Wrong Questions

By Eric Segall

Last week the President of the United States once again accused federal judges of being partisan, and the Chief Justice of the United States responded by stressing the need for an independent judiciary. This exchange prompted legal scholars throughout the land to take numerous positions on the role of ideology and partisanship in judicial decisions, focusing mostly on our highest Court (even though Trump was referring to a district court judge). Most agreed that the Court should try hard not to be partisan or ideological but also stressed that, given the nature of the cases the Court hears, the open spaces of constitutional interpretation, and our overly politicized confirmation process, these are noble aspirations more often violated than achieved. I argue below that, when it comes to the Supreme Court, everyone is asking the wrong questions.

A Tentative Burkean Defense of Something Like the Senate: A Response to Professor Primus

by Michael C. Dorf

A couple of weeks ago, I argued in this space and on Take Care that the US Senate is less anti-Democratic than it might currently appear. That capital "D" is intentional. The core of my argument was that while the Senate currently over-represents Republicans, that is likely an ephemeral phenomenon. As a structural matter, the Senate over-represents small states; over time, the parties' positions will continue to evolve in ways that seek to maximize their total influence.

To be clear, I did not deny that the Senate is substantially anti-democratic with a small "d." As I wrote, whatever might be said in favor of a system that deviates from strict population-based representation, the very out-of-balance ratios one sees in the US Senate cannot be normatively justified.

Professor Richard Primus wrote a thoughtful response to my essay. It also appeared on Take Care. Acknowledging that he might not actually be disagreeing with me, Primus pushed back against the idea that the apportionment of two seats can be justified. Here I'll respond in turn.

Thursday, November 22, 2018

Eleventh in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. George and Kellyanne Conway)

by Diane Klein

As CNN has reported, adult coloring is good for you (really!).  While we cannot guarantee that coloring this picture while sports-addicted family members binge on football this weekend will relax your brain as the Cleveland Clinic promises, it can't hurt.


(Art by Andrea McHale, a special-education teacher in New York City; lettering by Alex Mannos, a graphic artist in Sacramento, California.  The coloring page is subject to a Creative Commons license as below.)



A Thanksgiving "Poem"

By Eric Segall

The air is getting colder with winter so near
Our President is still awful that much is clear

His loony twitter feed tells many crazy lies
Maybe he’s sending secrets to his Russian spies

He makes so much money from the office he holds
His crayon hair is remarkable for its unique folds

He never says I’m sorry or admits to a loss
He just loves being the world’s worst boss

I wake up every day afraid of what he’ll do
Not just him but his entire motley crew

Wednesday, November 21, 2018

Speech vs. Conduct Part II

by Sherry F. Colb

In my Verdict column for this week, I discuss some ways in which combating both coerced confessions and date rapes necessarily creates special challenges. We want to protect victims of these two abhorrent practices, and we also want to allow for good confessions and for mutually desired sexual encounters. I explore how the challenges arise and what we might do to address them.

Here I want to return to the topic of free speech. Two weeks ago, I wrote in this space about the speech/conduct distinction and its utility as an instrument for distinguishing between the expression that the First Amendment ought to protect and the behavior that finds no legitimate protection in the Bill of Rights. I argued that the distinction cannot do the work that we might want it to do. Virtually all of the speech that rightly falls outside of the protected category--including true threats, incitement to imminent lawlessness, and defamation--is truly speech, not action--and yet the content of its communication and its persuasive force are too destructive or too threatening to peaceful existence for us to tolerate. Conversely, action can provide a vehicle for conveying a viewpoint, and shutting down communicative action on the basis of its expressive content or viewpoint is censorship that courts should treat as such.

While the government may lawfully prosecute flag-burning as a species of arson or reckless burning, we do not and should not prosecute the very same conduct as flag desecration, because prohibitions  on flag desecration single out for censorship a message of critique or condemnation for our country. We can disagree with and resent the act of flag-burning, but we cannot treat it as something different from and worse than other types of arson or reckless burning unless we are prepared to sacrifice our commitment to freedom of speech. Fortunately, the U.S. Supreme Court has understood that to classify "speech" as protected and "conduct" as unprotected would be to overlook government repression that we must not tolerate, even as it would demand protection for the words of people who threaten others or incite others to imminent assault or destroy the reputations of private individuals whom we know to be innocent of our charges.

Tuesday, November 20, 2018

Who Are the Anti-Trump Heroes?

by Neil H. Buchanan

Incredibly, The New York Times's op-ed diva Maureen Dowd actually wrote an interesting and insightful column last week.  Her argument is incomplete, as I will explain below, but she actually wrote words that made sense and offered an argument that needed to be made.

Dowd drew from her deep well of richly earned hatred for George W. Bush and especially Dick Cheney, and she pointed out that many of their enablers and cheerleaders are now being cheered on the left for being NeverTrumpers.  She is having none of it.  If anything, she nicely overstates her point rather than following her usual pattern of offering self-satisfied D.C. insider snark.  If she is going to err (and she is), it is much better to see her go for blood against the Republicans for real sins than to, say, carp about "Barry" Obama being too aloof.

Dowd states her thesis clearly in the third sentence of the piece, saying that "villainizing Trump should not entail sanitizing other malefactors."  The column was motivated by a new movie about Cheney, and Dowd's central argument is that we need to stop and ask why so many veterans of the second-worst presidency in American history are now not only respected public commentators but are actually being celebrated on the left.

The toleration of right-wingers is so bad that, as Dowd put it, "MSNBC is awash in nostalgia for Ronald Reagan and W."  This is great stuff, and as I said, when the anti-Trump crowd is hugging the Bush/Cheney people, someone needs to call BS.  As I will explain momentarily, however, Dowd simply ignores the counter-intuitive upside of having loathsome people on one's side.

Monday, November 19, 2018

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

by Michael C. Dorf

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

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

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

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

Sunday, November 18, 2018

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

by Diane Klein

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

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

Friday, November 16, 2018

Is Whitaker a Heretic or Just a Hack?

by Michael C. Dorf

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

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

Thursday, November 15, 2018

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

by Neil H. Buchanan

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

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

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

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

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

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

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

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

Wednesday, November 14, 2018

Is Originalism a Theory?

By Eric Segall

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

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

Tuesday, November 13, 2018

Appreciating Heitkamp's Decency

by Neil H. Buchanan

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

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

Monday, November 12, 2018

How Much of a Problem is the Senate?

by Michael C. Dorf

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

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

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

Sunday, November 11, 2018

Tenth in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. Matthew Whitaker)

by Diane Klein

Herewith, our contribution to the matter of Matt Whitaker, the former Rose Bowl tight end and U.S. Attorney (for Iowa, in both cases), now catapulted to national prominence by his elevation from Chief of Staff to Attorney General Jeff Sessions, to the position of Acting Attorney General of the United States - thanks largely, it would appear, in gratitude for his critical comments about the Mueller investigation, made in the mainstream media.


(Art by Andrea McHale, a special-education teacher in New York City; lettering by Alex Mannos, a graphic artist in Sacramento, California.  The coloring page is subject to a Creative Commons license as below.)




Friday, November 09, 2018

Whitaker's Appointment is Despicable and Possibly Criminal, but is it Unconstitutional?

by Michael C. Dorf

Yesterday Neal Katyal and George Conway wrote an op-ed in the NY Times arguing that President Trump lacked the authority to name Matthew Whitaker Acting Attorney General. I'm not sure that's right. True, by forcing out Jeff Sessions as punishment for the one unambiguously honorable thing Sessions did--recusing himself, as required by law, from an investigation of the Trump campaign--Trump acted despicably. Depending on what Whitaker does now with respect to the Mueller investigation, Trump's appointment of Whitaker may also amount to obstruction of justice.

But was the appointment unconstitutional? As I shall explain, much as I'd like to agree with Katyal and Conway, their theory is problematic as offered. I will offer a friendly amendment to improve it a bit.

Thursday, November 08, 2018

The Case for Extreme Pessimism After a Good Election Night

by Neil H. Buchanan

How long will our luck last?  On Tuesday, Democrats regained the majority in the House of Representatives, but even though that is exactly the outcome for which I most dearly hoped, the world seems even scarier now than it was on Monday, when I published a call to young people (and everyone else) to vote against Donald Trump and his eager enablers.

On Tuesday morning, I wrote about the likely chaos that would ensue even if Democrats ended up having a good night.  Although the specifics that I offered there might not come to pass (including a prediction of a wave of Republican election challenges, although some such challenges are still possible), the big message was that Trump and his minions would not be gracious losers -- the safest prediction in the history of political commentary.

So I was plenty scared before, when it was still possible that Republicans could have held the House and won other key races.  Why am I more scared now that what seemed to be the worst outcome has not come to pass?

Wednesday, November 07, 2018

First Amendment Free Speech and the Conduct/Status Distinction

by Sherry F. Colb

In my Verdict column for this week, I talk about the meaning of the #BelieveWomen movement and what it might have to teach us about listening to people with an open and curious mind. The topic of listening to people, in turn, makes me think about the freedom of speech. In this post, I want to consider how we might best understand our free speech dilemmas.

Tuesday, November 06, 2018

In the Short Run, Are We Also All Dead?

by Neil H. Buchanan

John Maynard Keynes famously wrote: "In the long run we are all dead."  Although there have been plenty of bad-faith misreadings of that quote, the correct reading is actually quite simple.  Keynes rejected the idea of causing millions of people to suffer in the here and now in the possibly vain hope that some economist's model of "long-run equilibrium" correctly predicts that such sacrifices (always to be paid by other people, of course) will pay huge dividends in the future.

More to the point, we cannot make our way to the long run if we all die in the short run.

In a sense, many of the arguments against Donald Trump have been arguments about a somewhat distant and uncertain future.  Thus, my Verdict column on June 2, 2016 asked: "Is This the Beginning of the End of Constitutional Democracy in the U.S.?"  My concern was not with the decades- or generations-long version of the long run that worried Keynes (although he was also worried about inflicting pain for years at a time with the promise of prosperity just around the corner), but it was still a dystopian prediction of something that might or might not happen and that would in any event take some time to play out.

In my latest Verdict column, published yesterday, I confront the reality that we have already reached the point where the dangers of Trump have become all too real and are no longer speculative.  If the Democrats do not have a good day today, it might well be the end of the line for the American democratic experiment.

Yes, that sounds apocalyptic, yet it is difficult not to fear the worst.  And it could still be awful even if the Republicans do lose today.  Stay with me here.

Monday, November 05, 2018

The Road to Perdition Is Neither Long Nor Winding for Republican Economists

by Neil H. Buchanan

As we wait to find out whether tomorrow's midterms will be the last meaningful election in American history, I will take a few moments here to consider a recent Republican absurdity that was drowned out by Donald Trump's cacophony of hatred and lies.  In one way, it is fully consistent with Trump's tactics, because it is merely another attempt to scare people by shouting "Socialism!!"  Given that the story comes from Trump's economists, however, this one is up my alley and -- viewed from the proper perspective -- very, very funny.

Friday, November 02, 2018

Media Collusion in This Year's Versions of the 'Deplorables' Distortion

by Neil H. Buchanan

Supposedly, the press corps has learned that bothsidesism is not a harmless exercise.  If anyone -- or at least any group with large numbers of white people -- should have newly learned what can happen when lies are not called lies and context is lost, it is American political reporters.

Even after their huge assist in painting Hillary Clinton as a serial liar and spending ungodly amounts of time hyping her email servers in 2016, all the while hesitating to call Donald Trump's lies "lies," journalists have been rewarded by being called "the true enemy of the American people."

But we know that old habits die hard.  One of the worst habits of the collective press's mind is the "To be fair, let's also look at what Democrats are doing wrong" approach to campaign coverage.  It would be bad enough if this were merely false equivalence (of which there is plenty), such as pretending that confronting a U.S. Senator in an elevator represents "incivility" in American politics that must be compared to Trump's spewing of hatred.

But it is much worse than that, because the media often simply gets the story wrong or short-hands it in a way that completely misleads the public and that cements in the collective mind a narrative that is both unfair and damaging to the way voters and potential voters perceive politicians.

The leading example of this phenomenon in 2016 was "the deplorables comment."  In 2018, there is nothing to that extreme degree thus far, but there are some cases in which the shorthand versions of stories completely reverse the reality.  This leaves voters confused and potential voters saying, "Why bother?  They're all bad."

Thursday, November 01, 2018

Mueller, False Flags, and Conspiracy Theories

by Michael C. Dorf

In an era in which every day brings shocking news, the most bizarre story of the last few days has to be the apparent plot against Robert Mueller. For those of you who may have missed it, I'll try to summarize and then provide a big-picture observation.

Wednesday, October 31, 2018

Justice O'Connor and our Future Selves

by Michael C. Dorf

In my latest Verdict column, I note that with Justice O'Connor's announcement last week that she is withdrawing from public life, we have reached another milestone in the passing of the Reagan Court. The announcement underscores what we already knew last summer when Justice Kennedy announced his retirement. After nearly three decades in which Reagan's appointees--O'Connor, Kennedy, and Scalia--dominated the Court, a new era has begun. I argue in the column that, ironically, the real Reagan Court has now finally been born.

Here I want to focus on a very different sort of issue raised by Justice O'Connor's announcement. As readers may recall, Justice O'Connor announced retirement (pending confirmation of a successor) in 2005, at a time when she could have served longer. She did so in order to be able to care for her husband, who was then himself suffering from dementia. Unfortunately, John O'Connor's condition quickly worsened to the point that he needed 'round-the-clock care in an institutional setting. With his memory compromised, he developed a relationship with another resident of the facility. Justice O'Connor, in a display of incredible grace and generosity, supported him in that relationship, even as he lost his memory of her. (The parallel with the film Away From Her was widely remarked upon a decade ago.)

Having lost a dear friend to early-onset Alzheimer's and having seen the impact of dementia on others, Justice O'Connor's situation leads me to wonder about a set of questions that have legal, moral, and ultimately pragmatic dimensions: To what extent, if any, should fully competent adults be able to limit the freedom of their future selves should they succumb to dementia?

Tuesday, October 30, 2018

Can Trump Eliminate Birthright Citizenship? Can Congress?

by Michael C. Dorf

This morning an NPR reporter referred to President Trump's suggestion that he would "end birthright citizenship" by executive order as "vaporware"--a rumored product that never actually materializes, intended only to thrill his fans, much like Trump's promised impending middle class tax cut. I hope that proves correct, but these are dark times in which one should take seriously even the most outlandish suggestions. Indeed, South Carolina Senator Lindsey Graham has already raised Trump's opening bid, saying that he plans to introduce legislation accomplishing by statute what Trump proposes to accomplish by executive order. Is either path open?

The short answer is no. The long answer is also no, but in a way that may prove interesting to explore.

Monday, October 29, 2018

Between Healthcare and Fascism: Chaos

by Michael C. Dorf  (** New as of 10/31/2018: Updated with a Postscript)

A recent column by David Brooks takes Democratic candidates to task for focusing so much of their midterm election messaging on health care. It's easy to dismiss this column as just so much concern-trolling by Brooks, and in an important sense it is that. Brooks--self-appointed defender of the Republic from the evils of identity politics--thinks that the Democratic strategy will fail because Democrats can only appeal to particular identity groups one at a time and are thus missing out on an opportunity to appeal to disaffected Republicans.

That's not just wrong but actually backwards. To state the obvious, everyone--regardless of race, sex, religion, gender identity, or any other identity--needs health care. The emphasis on health care reflects Democratic efforts to broaden the party's reach by appealing to voters who may have identitarian reasons of their own (such as whiteness or Evangelical Christianity) for often favoring Republicans. It's a gamble that a meaningful fraction of voters who tolerate or even somewhat like Trump because of status anxiety care less about the psychic wage that Trump's brand of white nationalism pays them than they care about being able to see a doctor for that concerning lump. Brooks manages to miss this fact entirely.

Yet if the main point of the column as Brooks conceives it is wrong, en route to his misguided conclusion he makes an astute observation. He writes: "The Trumpian challenge is primarily a moral and cultural challenge. But the Democrats are mostly comfortable talking about how to use federal spending to extend benefits."

I think Brooks is right about both halves of that statement. The challenge is how to talk about the first half--the especially Trumpian awfulness of Trump--without sounding alarmist and thus alienating the people who are reachable on conventional Democratic grounds of using government to address social needs. Admittedly, the risk of sounding alarmist is smaller today than it was just a week ago. The Trump-inspired pipe bombs of Cesar Sayoc and the open Nazism of the murderous Robert Bowers (who apparently dislikes Trump for not going nearly far enough) have made clear that warnings of political violence are clear-eyed.

Still, as we have seen all too often in response to prior mass shootings--including other mass shootings that were also hate crimes--the relentless news cycle quickly displaces reform proposals and calls for "civility." Accordingly, although I regard the Trumpian threat to American democracy as genuinely existential, I recognize the challenge of making that point without seeming alarmist to a substantial fraction of my fellow citizens, including some who are not fully in the tank for Trump and Trumpism.

Friday, October 26, 2018

Justice Thomas in his Own Words

By Eric Segall


Justice Clarence Thomas is our longest serving Supreme Court Justice. He first came into the public eye in October 1991, when Anita Hill accused him of sexual harassment. He dogmatically denied the claims calling his confirmation hearing a “hi-tech lynching.” He has been embroiled in controversy ever since.

Many conservative Court scholars believe it is Justice Thomas, not the deceased Justice Scalia, who has been the most important driving force behind originalist decision-making. Thomas has written solo opinions challenging well-established Supreme Court doctrine in the areas of gun control, the appropriate balance between church and state, and Congress’ powers to regulate the economy, among many others important swaths of constitutional law. He has also recently been called by one liberal commentator the “most important legal thinker in America.”

Dozens of Thomas’ law clerks have become federal judges, and his originalist statements about constitutional interpretation have been largely adopted by the Federalist Society, a conservative non-profit that is now assisting President Trump in his selection of Supreme Court Justices and lower court judges.

No one can deny Justice Thomas’ influence on our law and politics since he became a Justice more than 25 years ago. Yet, there are numerous aspects of his career that are troubling and mystifying. Here is Justice Thomas in his own words and votes.

Thursday, October 25, 2018

No, the Deficit is Not Suddenly an Important Issue; but Yes, the Republicans are Hypocrites (at Best)

by Neil H. Buchanan

The federal budget deficit is one of those handy political issues that never stays out of sight for very long, because it is too tempting for demagogues to exploit it.  It has the simultaneous advantage of seeming to be self-evidently important yet too difficult to truly understand, making it easier simply to say that "borrowing is bad, and deficits are hurting our children and grandchildren."  If ever there were a political Q.E.D., there you have it.

To make matters worse, this is the go-to subject that ignorant pundits use to prove that they are not merely political hacks.  "Hey, I know that we argue about political issues, but every serious person knows that at some point we must all come together to deal with those horrible deficits.  Debt will destroy us all!"  There are so many examples of that kind of statement by people who know next to nothing (or literally nothing) about economics -- but who have positive reputations among liberals, such as Fareed Zakaria -- that I stopped collecting links to such nonsense years ago.  Such talk is usually little more than background noise.

Because of all of that, and even though I wrote my dissertation on fiscal deficits, I try to avoid talking about the subject as much as possible.  There are still times when it is necessary to write about it, of course, such as then-candidate Trump's appearance on Stephen Colbert's show three years ago.  There, apparently referring to gross federal debt, Trump said: "You know, when you get up to the 24 trillion . . . 23 . . . 24, that’s like a magic number. ... They say it’s the number at which we become a large-scale version of Greece, and that’s not good."

Other than Trump's typical "they say" deflection, the standard-issue response from Very Serious People is to point out that the gross debt has gone from $18.2 trillion to $21.7 trillion in the three years since Trump displayed his ignorance about that issue. See?  It's out of control!  Again, that is based on nothing more than the vague certitude that debt is bad, but who cares when a pundit is having fun sounding sober-minded?  (And please do not get me started down the road of explaining again why gross debt is a meaningless number, even if one were to assume that debt is important.)

Occasionally, Democrats try to call out Trump and the Republicans for hypocrisy on debt/deficit issues, but because the Republicans are always willing to be hypocrites and voters are worried about other things, that has gone nowhere.  Recently, however, Senate Majority Leader Mitch McConnell said something revealing about Republicans' political uses of the deficit.  Even more surprisingly, there was some interesting commentary in response.

Wednesday, October 24, 2018

Rape and Abortion: Connected?

by Sherry F. Colb

In my Verdict column this week, I discuss a controversial website at the University of Washington, where victims of sexual misconduct can anonymously post the names of their assailants or harassers. Addressing the issue of how we might think about the existence of such a list, I drew an analogy between the list and coat-hanger abortions, as both are symptoms of larger phenomena. I went on to suggest that the solution to undesirable processes can sometimes be to offer alternatives to those processes--a willingness to criminally prosecute acquaintance rape as a matter of course, for example, and an available abortion provider who can terminate unwanted pregnancies in a safe and medically competent fashion.

In this post, I want to explore some further links between rape and abortion, because I think there are several. The issue of abortion appears to be more controversial than the issue of rape, so why would anyone want to talk about the two together in an effort to shed light on either one? In the abstract, I would agree that abortion is the more controversial of the two issues. But these questions are anything but abstractions for women who have encountered either sexual assault or an unwanted pregnancy or both. And in practical terms, both are the subject of significant controversy.

Tuesday, October 23, 2018

How Bad Will Things Become? Part Six: Will the Supreme Court's Reactionaries Make a Mockery of Precedent?

by Neil H. Buchanan

As the news cycle plods along on its inexorable march of awfulness, those of us who toil in the fields of legal analysis cannot help but linger on the implications of the recent change in Supreme Court personnel.  The replacement of only-occasionally-not-arch-conservative Anthony Kennedy with yet another full-on movement conservative continues to pose questions about how the judiciary will operate going forward.

These questions will, of course, only become more pressing as Senate Republicans put more and more Thomas/Gorsuch/Kavanaugh clones on lower courts, which will continue at least through the upcoming lame duck session and for at least two additional years if (as expected) the Republican majority holds or is expanded in next month's midterm elections.

Will this wave of conservative justices and judges change the way cases are handled by the courts -- not in the sense of procedural changes (although those might well be in the offing as well), but in the way that courts present their decisions in the form of supposedly well reasoned and dispassionately considered jurisprudential analyses?  If not, what will judicial opinions look like in the future?  Will there even be written decisions any more, or will it be simply, "The side that we like wins"?

Monday, October 22, 2018

How Blatant Must a Prosecutor's Racism Be for the SCOTUS to Notice?

by Michael C. Dorf

At its conference on Friday, the Supreme Court will decide whether to grant review in Flowers v. Mississippi (SCOTUS page here). Flowers was tried six times for the same offense. Each of the first five trials resulted in  a reversal of a conviction, a mistrial, or a hung jury. On try number six, a jury that was selected through racial discrimination found Flowers guilty and sentenced him to death. There are at least four reasons for the US Supreme Court to take the case or summarily reverse the decision of the Mississippi Supreme Court upholding the conviction and sentence.

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 ...to 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.