Saturday, June 23, 2018

Homey Don’t Play That

By William Hausdorff

Tuning Out the Media after the Diplotainment in Singapore

It’s really easy to become discouraged about global politics and the state of the American experiment. Earlier this month I hit a personal low point, where I felt I was truly missing something, as I watched the US news media’s ability to reduce the US-North Korean “event” to a mixture of wishful thinking and reality TV.  

One can almost forgive the vacuousness of the news coverage of President Trump’s Mighty Handshake with Kim Jong-Un, since the bar was set so ominously low:  just a few months earlier Trump and Kim were publicly comparing missile sizes. 

But other than a rhetorical cease-fire, what kind of deal could have possibly been expected with a US leader who revels in contradicting himself, who surrounds himself with a war-mongering Secretary of State and National Security Advisor that have each spoken about militarily overthrowing the North Korean government, and who are all categorically against negotiations? 

This is the same leader who has just walked away from multiple international agreements endorsed by previous US governments (on climate change, Iran, NAFTA), not to mention his own endorsement of the G-7 communiqué only days before.  With the Trump “negotiators” gleefully admitting to minimal preparation, how could any grown-up reporter or news analyst expect any meaningful agreement with the North Koreans?

Finally, even if the North Korean regime were remotely serious about sticking to an agreement this time, highly doubtful in itself, why would Kim—or indeed, any rational leader--believe that Trump would stick to this particular agreement?  Even though the “agreement” has quickly been revealed to be as vacuous as expected, no one should be fooled that a legally and politically endangered Trump won’t turn on a dime and dangerously lash out at a future “betrayal” by his new role model.

The only saving grace is that this reality TV event has been quickly eclipsed by subsequent episodes.  So indeed, a very logical response is to stop following the news.  To drop out, and asked to be woken up if anything really changes.

Friday, June 22, 2018

Justice Kennedy Finds Privacy Outside But Not Inside The Fourth Amendment

by Michael Dorf

In today's ruling in Carpenter v. United States, the Court, in an opinion by Chief Justice Roberts joined by the Court's four liberal-leaning justices, finds that collection of cell phone tower location data from a mobile phone provider constitutes a search within the meaning of the Fourth Amendment, thus presumptively requiring probable cause and (absent exigent circumstances) a warrant. Here I want to note what looks like a glaring inconsistency between Justice Kennedy's Carpenter dissent and his approach to the constitutional right to privacy in other contexts.

Thursday, June 21, 2018

Congress, the Dormant Commerce Clause, and the Wayfair Case

by Michael C. Dorf

Today's decision in South Dakota v. Wayfair, Inc. is defensible on the merits, but Justice Kennedy's majority opinion inadequately responds to the key objection by Chief Justice Roberts (for himself and Justices Breyer, Sotomayor, and Kagan). To see why will require a bit of backstory on that most delightful topic in the constitutional law corpus: the Dormant Commerce Clause (DCC).

A Glum Prediction About the Fallout From Trump's Immigration Outrages

by Neil H. Buchanan

Fifteen days ago, I left the United States to attend academic engagements in Toronto and Vienna.  In that time, there have been at least four enormous political stories, each of which erased all discussion of the previous enormous story:

(1) Donald Trump's damaging, childish stunts at the G-7 meeting in Quebec,

(2) Trump's meeting with Kim Jong-Un, which elevated North Korea's international status and downplayed Kim's brutal dictatorship,

(3) the Inspector General's report that undercut every Trump talking point about the Russia investigation (but that Trump and his people are predictably lying about),

and now (4) the disastrous human rights crisis that Trump's (in)Justice Department has created by separating children from their parents at the U.S. border.

There have, of course, also been big stories about various Supreme Court decisions and other issues.  Before the next big outrage comes along (most likely when the Supreme Court destroys public employee unions and/or blesses Trump's Muslim ban), I thought I would take a few moments to comment on how the "children ripped from their parents' arms" story is likely to play out.

Bottom line: It will not end badly for Trump, which means that it will end badly.

Wednesday, June 20, 2018

Fourth Amendment and Article III Standing

by Sherry F. Colb

My column for this week considers the recent case of Byrd v. United States. The US Supreme Court held there that if police unreasonably search a rental car, then the driver of that car who is in lawful possession of it has standing to object to the admission of evidence found during the search. In other words, you do not need to be the renter or have your name on the rental agreement list of authorized drivers in order to enjoy a reasonable expectation of privacy in the concealed portions of the car, such as the trunk. I explain in my column that this outcome is positive for two reasons: it takes Fourth Amendment privacy doctrine away from pure property concepts, and it broadens (or at least fails to narrow) standing so as to permit more people to hold police accountable for Fourth Amendment violations by excluding evidence obtained as a result.

In this post, I want to suggest that not only is Fourth Amendment standing doctrine a misguided endeavor, for reasons that I elaborate in greater detail here, but Article III standing doctrine would be better discarded as well.

Tuesday, June 19, 2018

Rainbow Flags in Vienna But Dark Clouds Everywhere

by Neil H. Buchanan

One of the mixed pleasures of being an academic is the opportunity to teach and conduct research at other universities, often in foreign countries.  Although some outsiders might view these as little more than junkets, the work is not easy by academic standards -- that is, it is even more difficult to explain U.S. tax law to foreign students than to explain it to U.S. students -- and the travel itself can become a grind.

I am, of course, fully aware that these are the quintessence of what we now think of as First-World Problems, but even at best the "working" part of these supposed working vacations does feel like something short of leisure.  In any case, such visits achieve both scholarly and institutional goals, with research being advanced by collaborating with foreign scholars in person and with our universities anxious to have us "fly the flag" elsewhere to enhance reputations.

This is all a long way of explaining that I am currently back in Vienna, Austria, for my fourth visit in the last nine years.  I have just completed teaching a course to masters-level students, and I led a research seminar to doctoral students, at Wirtschafts Universitat Wien (or WU, the University of Business and Economics in Vienna).  As always, the students were engaged and impressive.

During and after my visits in 2009 and 2013 (but not, for some reason, in 2015), I wrote a number of columns here on Dorf on Law and elsewhere on Vienna-related topics, focusing in particular on the superior public transportation system here.  (See, for example, here and here.)  With my adopted home city of Washington -- which has the second-worst automobile traffic in the country, second only to Los Angeles -- still awaiting a connection between its inadequate Metro system and Dulles International Airport (a connection that was scheduled to be completed this year but is now hoped for in 2020), and with the plan to reintroduce a system of street cars now all but abandoned, the contrast with Vienna is as stark as ever.  And transit fares are still much lower in Vienna.

In the remainder of this column, however, I want to focus on some similarities between these two capital cities and their respective countries.  The entry point for that discussion is gay rights, which was brought to mind by the 2018 version of the Vienna Pride and Rainbow Parade this past Saturday.

Monday, June 18, 2018

Is There a Silver Lining in the Wisconsin Gerrymandering Standing Decision?

by Michael C. Dorf

This is shaping up as a real nothing of a Supreme Court Term. Two weeks ago, the Court ducked the important questions in Masterpiece Cakeshop and Hughes v. United States. Today the Court ducked the question whether claims challenging partisan gerrymandering present non-justiciable political questions and if not, how to adjudicate them. In a brief per curiam in Benisek v. Lamone, the Court affirmed the district court's denial of preliminary injunctive relief in Republicans' challenge to Maryland gerrymandering, relying entirely on the technical details of the standard for a preliminary injunction. Meanwhile, in an opinion by CJ Roberts for a more or less unanimous Court, the justices declined to say anything about the justiciability or merits of Democrats' challenge to Wisconsin gerrymandering in Gill v. Whitford, resolving the case on the grounds that the particular plaintiffs had failed to prove the elements of standing at trial.

Not all non-decisions are the same. When the Supreme Court ducks a question that the lower courts have been deciding in a way that one approves, then one can be sanguine. It's not as good as a SCOTUS victory, but it's not bad either. That's the lemonade that supporters of LGBT rights (like me) can make out of lemons like the Masterpiece Cakeshop non-decision of the key issue. However, if one disapproves the status quo--either in the lower courts or pursuant to current SCOTUS precedent like Vieth v. Jubilirer--then a non-decision is almost tantamount to a bad decision.

Nonetheless, Justice Kagan, in a concurrence joined by Justices Ginsburg, Breyer, and Sotomayor, tried to make some lemonade out of the Gill v. Whitford lemon. Did they succeed?

The Death of a Chef, Vegan Views, and the Relevance of State of Mind

by Sherry F. Colb

Like other movements for change, the animal rights movement hosts its share of internal battles. Ethical vegans disagree, for example, on the Impossible Burger, a plant-based burger with the taste and texture of a hamburger made of cow flesh. Some support it because it diverts demand from the slaughterhouse, while others oppose it because one of its ingredients was tested on animals.

Vegans also part ways on whether a person who eats a plant-based diet to achieve optimal health should be considered a vegan at all. Disagreements abound over whether laws regulating the treatment of animals in agriculture and laboratories are generally a positive intervention or an empty promise that impedes actual progress toward the abolition of animal exploitation. When it comes to determining what the best steps are for ethical vegans, consensus is the exception rather than the rule.

It was therefore unsurprising to find that ethical vegans disagreed over how to react to the death of a very non-vegan chef.

Friday, June 15, 2018

Using the "C" Word: the Power of Slurs

By Sherry F. Colb

Recently, Samantha Bee of Full Frontal referred to Ivanka Trump, the President's daughter, as a "feckless c---." Bee became the subject of immediate condemnation, especially from the right. Not long before that, ABC had terminated Roseann Barr's television show because she had sent out a racist tweet about Valerie Jarrett, former advisor to President Obama, suggesting that Jarrett was the offspring of Planet of the Apes and the Muslim Brotherhood. For this post, I would like to explore how critical we should be of Samantha Bee for using the C word against Ivanka Trump.

First, though, I want to briefly discuss two other issues. One is whether what Bee did was comparable to what Barr did. And the second is what it means when someone compares an African American woman to an ape.

Thursday, June 14, 2018

The Literalist Response to the Republicans' Attack on Blue States

by Neil H. Buchanan

Two days ago, I wrote in amazement about the simplemindedly literalist arguments that Donald Trump's defenders have been pushing (with straight faces) to justify his claims that he can pardon anyone, including himself.  I then offered two theories that were no crazier than those that Trump's minions have been pushing, including a move that could allow Trump to prevent his own impeachment (and then pardon himself for doing so).

I was somewhat tempted not to say anything about those cockamamie theories, because I did not want to give Trump's loyalists any ideas.  I then realized that, even if they were to read what I wrote here on Dorf on Law (a far-fetched idea, at best), they have repeatedly proved themselves capable of coming up with even more off-the-wall theories on their own than I could ever imagine.  My column was thus an exercise in "fun" in the sense that it is somehow amusing to think about how people can convince themselves to support autocratic power grabs.

My original idea when I began writing that column was not to focus entirely on the self-pardon arguments.  I also intended to draw an unexpected connection between those arguments and the literalist arguments that have recently been offered in response to the Republicans' attempts to punish blue states by limiting the state-and-local tax (SALT) deduction.  I wrote the following paragraph (where "it" is the Trump self-pardoning theory):
"It is so demonstrably wrong that it is not even worth a full column to debunk the argument, so I am going to use this space to draw some parallels between the literalism of the Trump-can-do-anything-he-wants-with-the-pardon-power claim and the form-over-substance claims that are now being made in the context of some blue states' attempts to sidestep the limit on state-and-local tax deductions.  Trust me, the analogy is not as odd as it might sound -- and the tax stuff is not boring (even though it is tax stuff)."
I might be about to prove that I was wrong about the tax stuff not being boring, but I already proved myself wrong in thinking that there was not a full column's worth of material in the self-pardoning discussion (which is why I deleted the paragraph above).  My bad.  Here, I will take up the literalism argument in the tax context, showing that no matter how much contempt I might have for the self-pardoning argument, there are times when it is not as easy to dismiss literalism as it might seem.

Wednesday, June 13, 2018

Of Legislatures, Courts, and the Contracts Clause

By Michael Dorf

In my latest Verdict column, I recap my (side of the) debate on originalism with Prof. Randy Barnett Monday night at the Soho Forum. (No video available yet; I'll update when there is.) Regular readers of this blog and my other work will not be especially surprised by the core of my argument.

So-called public-meaning originalism unjustifiably claims the supposed virtue of constraint that intentions-and-expectations originalism claimed (justifiably or not), while supposedly avoiding the pitfalls of intentions-and-expectations originalism, but in fact public-meaning originalism is functionally equivalent to living Constitutionalism; meanwhile, the respectability that scholars like Prof. Barnett bring to the term "originalism" is systematically misused and abused by judges and justices who talk the public-meaning-originalism talk but walk the intentions-and-expectations-originalism walk.

Thus, I conclude with a quotation from Justice Scalia's dissent in Obergefell v. Hodges. Despite having championed public-meaning originalism since the 1980s, the pith of Justice Scalia's argument was the bad old intentions-and-expectations originalism. He wrote: "When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases."

It certainly does not, but this sort of move is all too familiar in the work of the justices who nominally profess public-meaning originalism. I illustrate the point in my column by discussing Justice Gorsuch's dissent in Monday's decision in Sveen v. Melin. Seemingly unaware that he is engaged in methodological inconsistency, Justice Gorsuch invokes original public meaning just paragraphs after employing intentions-and-expectations originalism.

In the balance of this essay, I want to pivot from my methodological critique to the merits of Justice Gorsuch's dissent. Although I am not ultimately persuaded by his dissent, I will suggest that it points to tensions in various lines of constitutional doctrine and perhaps to a flaw in the Constitution itself.

Tuesday, June 12, 2018

If Trump Can Pardon Himself, Can He Also Prevent Himself From Being Impeached?

by Neil H. Buchanan

One of the most important recent degradations of our constitutional order has arrived in the form of Donald Trump's claim that he can pardon himself.  That threat is even more worrisome in light of the rapid acquiescence by Trump's enablers in agreeing with his outlandish claim.

This acquiescence is not, moreover, limited to the spineless Republicans in Congress.  In The Washington Post, for example, a Stanford Law School professor (who once had a reputation as a principled conservative) ran through the suddenly-standard Trumpist excuses to say that Trump is "not wrong" about self-pardons.

This is nonsense.  People who claim that the legal text is clear and that Trump can get away with anything that is not explicitly ruled out by the Constitution are wrong.  They opportunistically make exceptions when necessary, and then they drop the exceptions when convenient.  Literalism is, in the end, a useful starting point that is all too easily turned into a mindless tool by mindless tools.

Monday, June 11, 2018

A Brief and Obvious, But Nonetheless Necessary, Observation About Today's SCOTUS decision in the Ohio Voter Registration Case

by Michael Dorf

Today's ruling in Husted v. A. Philip Randolph Institute divides the Court 5-4, with the five Republican-appointed justices voting to sustain, and the four Democratic-appointed justices voting to invalidate Ohio's procedure for--depending on your priors--updating or purging the voter rolls. There is, to be sure, a genuinely difficult question of statutory interpretation that divides the justices, but one would have to be incredibly naive to think that that is where the real action lies.

Debating Constitutional Interpretation While the Republic Unravels

by Michael Dorf

[**Updated] Tonight I'll be debating Georgetown Law Professor Randy Barnett at the Soho Forum. I'll be arguing against the following resolution: "The U..S. Constitution should be interpreted and applied according to ​the original meaning communicated to the public by the words of the text." The event is sold out, but I believe it will be streaming live via the Reason Magazine FB page. In any event, I'll post recorded video back here as soon as it's available. (Video is here.  Podcast is here.)

Meanwhile I'm going to depart from my custom of previewing my remarks when I'm on panels in order to briefly say something "meta" about tonight's debate. For the gist of my substantive position, readers can consult any number of my prior blog posts (such as this one) and academic articles (such as this one) discussing originalism.

Saturday, June 09, 2018

Respectfully, You Lose: Masterpiece Cakeshop Gets Cited in State Court

By David Cruz (cross-posted with some updates from Cruz Lines)

“Oh baby refrain from breaking my heart”

In what appears to be the first judicial opinion to cite the Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, an Arizona appeals court has rejected a claim by a hand-painted and hand-lettered stationery business and its Christian owners for a religious exemption from Phoenix’s law forbidding sexual orientation discrimination.  Decided three days after Masterpiece Cakeshop, Brush & Nib Studio v City of Phoenix rejected the Arizona state constitutional and statutory free speech and religion claims brought by the same Christian right advocacy organization – the Alliance Defending Freedom (“ADF”) – that represented the Masterpiece Cakeshop.  This time, however, there was not even colorable hostility toward the plaintiff owners’ religion, and ADF lost.

Friday, June 08, 2018

The Genovese Effect and Trump's Threat to the Future

by Neil H. Buchanan

What did Barack Obama do during the 2016 election?  What I recall most clearly is that he tried (rather late in the game) to boost turnout among African-American voters for Hillary Clinton, either failing entirely or at least falling short.  What did he not do?  Interesting question.

Quoting from an extremely long piece in The New York Times about James Comey's impact on the election, Paul Waldman notes that, "at one point, then-FBI Director James B. Comey suggested that he could write an op-ed explaining what Russia was doing, but Obama 'replied that going public would play right into Russia’s hands by sowing doubts about the election’s legitimacy.'"

That decision can be defended on a number of grounds, not only in the way that Obama justified inaction but also by surmising that Republicans would have immediately spun any effort on Obama's part as illegitimate meddling by the sitting president.  We do know that Senate Majority Leader Mitch McConnell refused to join a united front against the Russians, deciding instead to make everything partisan, which hemmed in Obama.

Counterfactuals are fun yet frustrating.  I have argued, for example, against the claim that Bernie Sanders would have beaten Trump, pointing out that the right-wing outrage machine would have had a field day focusing the entire election on the word "socialism."  But who knows if that would have been as decisive as I think it would have been?

Similarly, I am one of the people who rejects the counterfactual that Al Gore would have won in 2000 if only Ralph Nader had dropped out, because I strongly believe that Nader's decision would have been spun -- with the enthusiastic participation of a press corps that clearly could not stand Gore -- as a corrupt deal to throw the election to the Democrat.  This, indeed, is in the same vein as Obama's understandable concern about being seen as helping Clinton in 2016.

Unlike in 2000, however, there is a common theme to all of the actions taken and not taken in 2016, which is that that everyone thought that the stakes were low because Clinton was clearly going to win.  And that has recently gotten me to thinking about the tragic case of Kitty Genovese.

Thursday, June 07, 2018

The Right-Wing Outrage Industry and the Paranoid Echo Chamber

by Neil H. Buchanan

Part of Donald Trump's strategy for survival, as even his own strategists now admit, is to ramp up the anger among his base by trying to make them think that everyone who is against Trump is dishonest and corrupt.  That strategy in turn is based in large part on portraying the non-Trump world -- not just the media and academia but anyone who disagrees with Trump -- as part of an alien force that hates Trump's supporters.

This move is actually rather easy to pull off for Trump, given how aggressively this sense of grievance has been pushed on the right for many years.  Indeed, when I wrote a Verdict column back in May of 2015 discussing "The Return of the Paranoid Style in American Politics," I did not mention Trump at all.  The most obvious reason for that omission was that Trump was not yet seen as a serious threat, but the point is that this right-wing sense of paranoid isolation had long since become obvious even when the "normal" Republican Party was still intact.

That Verdict column drew from Richard Hofstadter's classic essay, "The Paranoid Style in American Politics," and I was particular taken by his description of the paranoiacs' imagined enemy as "a perfect model of malice, a kind of amoral superman—sinister, ubiquitous, powerful, cruel, sensual, luxury-loving."  This perfectly captures the imaginings on today's American right about all-powerful campus thought police, latte-sipping Beltway insiders, anti-religious globalists, and all the rest.

By now, this deliberate vilification of everything non-Trump has become depressingly familiar.  As I put it in a recent column here on Dorf on Law, "[t]he business model of those hyper-conservative media outlets is to make people angry, and business is good."  What I did not fully appreciate is just how completely the Fox-led media has been turning Democrats and others into hideous monsters in the eyes of conservatives.  Allow me to explain, using one prominent example and then a lesser known one.

Wednesday, June 06, 2018

LeBron James, Donald Trump and What to do After Screwing Up

By Eric Segall

From time to time, Mike allows me the privilege of  using this space to rant about non-constitutional and non-legal matters. This is one of those times, except for a sentence or two at the end.

Explaining Empathy for an Embryo

by Sherry F. Colb

In my column for this week, I discuss the Irish vote on abortion and consider how all of us might  empathize better with those on the other side of this issue as well as the related issue of animal rights. In this post, I want to consider an empathy question regarding abortion: why do (some) people empathize with embryos and fetuses? Why, in other words, does anyone want the law to protect the rights of unborn humans?

Tuesday, June 05, 2018

Ducking Day at the SCOTUS

by Michael Dorf

Yesterday's SCOTUS decision in Masterpiece Cakeshop case did not decide the main issue that made it worth following: whether a baker has a constitutional right of free speech to refuse to make a wedding-style cake for a same-sex couple in the teeth of a state public accommodations law. Instead, as I discussed here, the Court resolved the case based on a rather far-fetched reading of the record in the Colorado Civil Rights Commission, attributing anti-religious bias to one or two commissioners based on statements that, all things considered, are best read not to express such bias.

I have my doubts about whether all seven justices in the Masterpiece majority (or even five of them) actually thought this was the best way to resolve the case. It strikes me as more likely that this was a compromise ruling on relatively narrow case-specific grounds, reflecting an inability of the Court to produce a definitive ruling just yet.

Or maybe not. The Supreme Court has been holding the cert petition in Arlene's Flowers v. Washington since November. It presents essentially the same issue but with a florist instead of a baker. Had the Court resolved Masterpiece in favor of the cakeshop on the free speech claim, the standard procedure now would be to grant the Arlene's Flowers cert petition, vacate the Washington State Supreme Court ruling, and remand for reconsideration in light of Masterpiece. Such a procedure--grant, vacate, and remand--is known in the trade as a GVR. But because the Court did not address the key issue in Masterpiece, a GVR now makes no sense. There is, so far as I'm aware, no issue of possible subjective anti-religious bias in Arlene's Flowers. Thus, if the Court resolved Masterpiece the way it did because a majority of the Court really thought that the subjective bias issue was the best way to deal with the case on the merits, it should now grant cert in Arlene's Flowers to address the bigger question it left unresolved in Masterpiece. However, if the Court now simply denies cert in Arlene's Flowers or, worse, nonsensically GVRs, then we will have strong evidence that the justices are punting because they don't want to decide the conflict between speech and civil rights.

Monday, June 04, 2018

Masterpiece Cakeshop Ruling Should (But Probably Won't) Doom the Travel Ban

by Michael Dorf

Today's SCOTUS decision in Masterpiece Cakeshop v. Colorado Civil Rights Comm'n is erroneously but predictably being described in the press as a victory for religious merchants who want to deny service to gay couples. For example, this instant NY Times story is correctly but misleadingly titled "Supreme Court Sides With Baker Who Turned Away Gay Couple." Worse, the original version of the story (which has now been updated) described the free speech argument made by baker Jack Phillips in a way that gave the impression that the SCOTUS had accepted the free speech claim.

It did not. Justice Kennedy's opinion for the Court specifically acknowledges the difficulty presented by the free speech claim. Absent a showing that Phillips was asked to create an articulate pro-same-sex-marriage message on the cake, Kennedy notes, a free-speech ruling in favor of Masterpiece/Phillips would mean that "a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations." The Court DID NOT rule in favor of the free speech claim. Justice Kennedy's opinion doesn't decide the free speech issue, but to the extent that it offers any hints, the opinion suggests that any free speech exception to public accommodations laws will be narrowly confined.

So why did Phillips/Masterpiece win? Because the Court found that the Colorado Civil Rights Commission's consideration of the case was infected with anti-religious bias. As I'll explain, that's a dubious decision, justifiable, if at all, as an act of prudence in ducking the harder questions in the case. As I'll also explain, if the ruling is taken seriously, it should spell doom for the Trump administration in the pending Travel Ban litigation.

Friday, June 01, 2018

Comedians, Professors, and Changing Audience Expectations

by Neil H. Buchanan

Even before Roseanne Barr's spectacular flame-out this week, I had been planning to write a piece about the unfairness purportedly suffered by entertainers who must navigate the ever-changing terrain of audience expectations.  With Barr's bizarre career suicide and after-death whining about her supposedly unfair treatment at the hands of Hollywood liberals, the timing could not be better.

A bit more than a month ago, I wrote a series of columns (one on Verdict and two here on Dorf on Law) in which I discussed the controversies that were then brewing about the successful reboot of Barr's 1990's TV sitcom as well as the offensive response by the creators of "The Simpsons" to complaints about their offensive "brownface" stereotyping of South Asians through the character Apu.

One of my themes in those columns was that entertainers should shut up about their audiences' supposed touchiness and try to write better jokes.  In one column, I noted that the actor who voices Apu actually stars in a sitcom in which a South Asian actor not only is treated as a fully human being but in which the writers brilliantly and hilariously mock casual white racism.  The humor in "Brockmire" is so raw (especially about sex) that the show will never go mainstream, but the show proves that it is possible to be funny without being racist -- and even to be funny about racism.

Even so, I want to use the rest of my column today to think about a passing comment that I made in my April Verdict column.  Within my discussion about changing audience expectations -- with, say, jokes about buck-toothed "orientals" going from mainstream to unthinkable over time -- I confidently wrote this sentence: "Walking this line is surely awkward and frustrating for artists, but that is the profession they have chosen."

Easy for me to say, right?  Should I have been more empathetic?  Maybe, but ultimately, I am willing to hold myself to the same standard.

Thursday, May 31, 2018

The Ontology of Sovereign Immunity

by Michael Dorf

Last week's SCOTUS ruling in Upper Skagit Indian Tribe v. Lundgren resolved nearly nothing. The Court vacated and remanded a ruling of the Washington Supreme Court for reconsideration of the question whether the defendant American Indian tribe had sovereign immunity, without the impediment of a misunderstanding of prior SCOTUS precedent under which the state court had previously labored. Yet as I explain in my latest Verdict column, the case is potentially important because of arguments made in a concurring opinion by Chief Justice Roberts, joined by Justice Kennedy--arguments which, if taken seriously, undercut the basis for state sovereign immunity, as well as various other doctrines.

To oversimplify, the Chief Justice's concurrence strongly suggests that tribal sovereign immunity and its exceptions should not be constructed in a way that denies claimants whose substantive rights have been violated any effective remedy. That principle is sound, I argue, but contradicts much of the Court's own jurisprudence, including a more newsworthy case decided the same day as Upper Skagit--Epic Systems Corp. v. Lewis--in which the Court aggressively construed the federal Arbitration Act in a manner that effectively denies numerous plaintiffs effective remedies for violations of their substantive rights.

The column addresses that tension between the Court's tribal sovereign immunity doctrine and both other branches of sovereign immunity doctrine and other lines of cases. Here I want to suggest that there is another tension between how the court treats tribal sovereign immunity and how it treats state sovereign immunity--an ontological consideration. ("Ontology" is a fancy word for the nature of a thing.) State sovereign immunity has constitutional status, whereas tribal sovereign immunity is merely a matter of federal common law, thus overridable by Congress. Is that difference justified?

Wednesday, May 30, 2018

Mending Fences With a Question: Is Originalism Theory Mostly Normative or Descriptive?

By Eric Segall

For several decades, Professors Randy Barnett and Larry Solum have made substantial contributions to the judicial, scholarly, and political debates over originalism (among many other topics). It is no secret that I have had my share of disputes with both Randy and Larry, much to my regret, and for which I accept my share of responsibility. This blog post is a first attempt to try and mend fences, and to raise a crucially important question about originalism (as a matter of form, I refer to all law professors discussed in this post by their first names once I identify them as law professors).

Tuesday, May 29, 2018

Fifth in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. Jeff Sessions)

by Diane Klein

If you were writing a post-Civil War-era bodice-ripping romance novel set in Alabama, you couldn't do much better than to name your hero "Jefferson Beauregard Sessions" - after Confederate States of America President Jefferson Davis, and General P.G.T. Beauregard, who oversaw the Battle of Fort Sumter, which began the Civil War.  Of course, a romance-novel hero probably wouldn't bear such a striking resemblance to cookie mascot Ernest J. Keebler.

Monday, May 28, 2018

In Memory of Two Great But Flawed Writers

by Michael Dorf

On this Memorial Day, in addition to honoring the men and women who died serving their country in the armed forces, I want to take a brief moment to remember and reflect on the legacy of two great American writers who died nearly simultaneously: Tom Wolfe and Philip Roth.

Friday, May 25, 2018

Reporters Have Learned Nothing, Even While Being Attacked Every Day

by Neil H. Buchanan

Is the American press corps -- the very same reporters and editors whom Donald Trump has called "the enemy of the American people" who are supposedly inventing "fake news" to bring him down -- going to doom us all?  Is the wording of that question apocalyptic enough for you?  Even dialing it back a few dozen notches, it definitely is scary and depressing to see just how badly the press is doing its job in the Trump era.

In my column here on Dorf on Law yesterday, I criticized a specific aspect of the press's performance over the past year or so.  The news articles -- not editorials or op-eds -- that the major news outlets publish have fallen into a completely predictable pattern, offering desultory horse-race coverage of political issues that somehow manages both to be content-free yet also to reinforce a whole series of tropes that reporters use as crutches.

Perhaps the most puzzling of these tropes is the way that supposedly neutral and nonpartisan political reporting somehow manages always to make it seem that things are going wrong for the Democrats.  Even though Trump's polling numbers have for months meandered within a very narrow range that is historically terrible, it is Democrats who are portrayed as disorganized or worse.  If polling moves in the Republicans' favor, even by a little bit, we see breathless coverage of how things are worse for Democrats; but if the polls move in the opposite direction, the story is how Democrats cannot count on the good news continuing.

This is all in the context of a media environment that does not in any way seem consciously to favor Trump.  Republicans are wrong to complain that the press is against them, but there is certainly no reason to think that the major periodicals and non-Fox television outlets are actually trying to do the Republicans' bidding.  It is partially a matter of having been bullied into bending over backward to prove that they are not disfavoring Republicans, of course, but the pull of the conventional wisdom is turning out to be stronger than we might have ever feared.

Here, I want to explore a few ways in which the supposedly liberal press significantly assists the Trump/Republican narrative, beyond the horse-race reporting that I discussed in yesterday's post.  The bottom line is that reporters appear to have decided that nothing is different in Trump's America, and that they can therefore go back to doing things exactly as they have always done them.  This is both dangerous and irresponsible.

Thursday, May 24, 2018

Generic Washington Post/New York Times Political News Article

by Neil H. Buchanan

For years, the pundit Thomas L. Friedman has been the butt of jokes, rightly mocked for his pompously trivial writing.  From his op-eds in The New York Times to his books with silly/catchy titles (The World is Flat, The Lexus and the Olive Tree), his prose and his empty arguments have amounted to a relentless demonstration that middlebrow musings can pass for highbrow insights among far too many readers in this country.  That he has actually won multiple Pulitzer Prizes should make anyone who has won that award reconsider what matters in life.

There are plenty of writers who are as bad as Friedman, but none combine the overweening sense of knowing how the world works based on no real expertise -- but on a lot of conversations with taxi drivers in exotic places -- with an overbearing moral superiority that would embarrass any person with an ounce of introspection.  Although Friedman remains an anti-Trumper, that appears to be based on Friedman's unshakable commitment to globalism.  And while Trump's mindless rejection of globalism is clearly worse than Friedman's mindless embrace of it, Friedman truly does represent the mindset that convinced plenty of voters (even including many who voted for Hillary Clinton) that American elites do not care about the consequences of their policies for the non-wealthy.

Friedman's bad writing is so bad that it inspired a clever guy to create the "Thomas Friedman Op-Ed Generator."  That website allows readers to click a big green "Generate!" button, which produces what appears to be an authentic Friedman op-ed.  I randomly generated faux op-eds with the headlines, "Swaziland: Lead, Follow, or Get Out of the Way," "Backlash to the Backlash," and "The Fear Factor in Benin," the latter of which included this paragraph:
"When thinking about the ongoing troubles, it's important to remember three things: One, people don't behave like car salesmen, so attempts to treat them as such are a waste of time. Car salesmen never suddenly shift their course in order to fit with a predetermined set of beliefs. Two, Benin has spent decades being batted back and forth between colonial powers, so a mindset of peace and stability will seem foreign and strange. And three, hope is an extraordinarily powerful idea: If corruption is Benin's curtain rod, then hope is certainly its faucet."
As amusingly spot-on as that is, I continue to find it difficult to laugh at Friedman's self-satisfied buffoonery.  As I wrote in a column early in 2013, his role in promoting the Iraq War was not merely misguided but morally repugnant, including a disgusting rant on Charlie Rose's show (a name that now carries its own moral repugnance) explaining the "real" reason that the U.S. invaded Iraq:
"And what they needed to see was American boys and girls going house to house, from Basra to Baghdad, and basically saying, 'Which part of this sentence don't you understand?  You don't think we care about our open society?  You think this bubble fantasy -- we're just gonna let it grow?  Well suck on this!'  OK?  That, Charlie, was what this war was about. "
Please take a moment to consider the profound immorality of what Friedman said.

But this column is not actually about Friedman.  I honestly just wanted to mention the Op-Ed Generator, but once Friedman's name is involved, it is far too easy to find oneself on a 500-word digression.

The reason I thought about the Op-Ed generator is that I have recently begun to suspect that there is such a generator that supplies political stories to The Times and The Washington Post (as well as Politico and other prominent sources).  Importantly, I am talking here about what are supposed to be straight news stories, not op-ed columns.  As bad a Friedman's work is, at least it is clearly labeled as opinion, and readers who take his writing seriously have only themselves to blame.

The political reporting from the top newspapers, however, has taken on a similarly eerie sense of being the product of a (rather dim) news-bot.  I do not have the time (or, I confess, the talent) to create a generator of such stories, but I can at least offer an example here.

Wednesday, May 23, 2018

Trans Identity and Truth

By Sherry F. Colb

My column this week is about the strange hostility that some people, including conservatives, routinely exhibit toward trans people. Though so much of what we call "masculine" and "feminine" has more to do with culture than with biology, some folks seem to get very hung up on being asked to call someone a "woman" even though that someone was born with (and may still possess) a penis rather than a vagina. Among them are the same individuals who once railed against the use of the word "marriage" to describe a union between two people of the same sex.

In my column, I use Ben Shapiro as an example of the conservative hostility to trans identity, but he is representative rather than unusual. This is presumably why the president, who promised during his campaign to be a friend and protector of the LGBTQ community, has tried to exclude trans people from military service and has moved to direct the placement of trans convicts in prisons that correspond to their assigned sex at birth, except in rare cases. Although the president may not much care one way or the other, his constituents seem to be hostile to trans people.

Tuesday, May 22, 2018

Diversifying Academic Panels

by Michael Dorf

Last week, the Twitter feed of the Feminist Law Professors blog tweeted at me and ten other male law professors:

So far as I can tell, only Professor Kerr and I replied. He wrote: "I've thought a lot about this issue in the last year; I'm a lot more aware of the problem than I used to be. I'm mixed on the merits of announcing a policy, though, as compared to pushing organizers to think about range of voices if the issue comes up." Whoever manages the Twitter feed for FLP responded positively to that. My reply was as follows: "That's certainly a commitment I have in ORGANIZING panels (of more than, say, 2 people); with Orin, it's something I'm happy to push w/r/t panels to which I'm invited." After a short exchange, I promised to blog about the issue, which I'm now doing.

I confess that when I first saw the tweet, I was puzzled: Why, I wondered, is this a commitment to be undertaken only by men? I then realized: Duh, because a female panelist doesn't need to. If the idea is to ensure that there is at least some gender diversity on each panel, a woman who agrees to serve on a panel provides the minimal diversity herself. So this is not a case where allies are being asked to be out front.

Monday, May 21, 2018

Can His Hispanophobic Diatribe Get New York Attorney Aaron Schlossberg Disciplined or Disbarred? Probablemente No

by Diane Klein

New York attorney and Trump 2016 donor Aaron Schlossberg is currently enjoying (which is to say,  suffering) his 15 minutes of fame for his now-viral xeno- and Hispanophobic rant in a New York City Fresh Kitchen in East Midtown.  What appears to have set him off was a Fresh Kitchen employee having the temerity to speak to customers and other employees in Spanish. 

His tirade itself contained a "greatest hits" of alt-right clichés, each premised on errors of fact and law that would embarrass an attorney actually concerned about getting things right.  But it won't get him disbarred (or even disciplined).

Saturday, May 19, 2018

Democracy and the Left: Rana Responds to New York Magazine's Jonathan Chait

By Aziz Rana

I tend to avoid social media, but felt compelled to respond in some way to Jonathan Chait's short essay in New York Magazine accusing Jedediah Purdy and me of being part of an illiberal or authoritarian left, unconcerned with Trump and suspicious of American democracy wholesale. To begin with, this characterization is clearly wrong about both the substance of Jed's work over many years and his own personal political engagements since Trump appeared on the stage. As for me, Chait seems to misunderstand the nature of my arguments in "Goodbye, Cold War," the N+1 essay he references.

Friday, May 18, 2018

Divisiveness as Business Model and Political Strategy

by Neil H. Buchanan

Last Friday, I argued that Democrats should not preemptively talk themselves out of the idea of impeaching Donald Trump, should the opportunity ever arise.  Whatever the political merits of talking about impeachment during political campaigns, it makes no sense at all to pass up an opportunity to remove a man from office who has committed impeachable offenses.  Yet Democrats, at least as a rhetorical matter, seem to be setting themselves up for failure by claiming piously that "only the most serious" offenses are impeachable, which could quickly come to mean that no offense (or set of offenses) is serious enough.

In that column, I nodded to the political reality that, at least for now, Trump is in no danger of being impeached -- and certainly not convicted -- because of Republicans' decision to ignore everything that he has done.  Further exploring that reality, my new Verdict column this week explains why Democrats' congenital timidity is a problem even outside of the impeachment context.

The now-standard claim among anti-impeachment Democrats is that impeachment would be "too divisive," so the better move would be to beat Trump at the polls, indirectly in the midterms this year and directly in 2020.

The primary reason to worry about this new conventional wisdom is that it would be far too cute to pass up a viable impeachment opportunity (should it ever arise, which seems more than doubtful), because one never knows what might happen that could turn the political tide.  What if Melania Trump's illness were unfortunately to turn out to be more serious?  What if the Democratic nominee in 2020 has a negative October Surprise (perhaps along the lines of former NY Attorney General Eric Schneiderman's shocking and horrifying crimes)?  Anything could, at the right time, swing large numbers of votes Trump's way, even though he is widely despised.

But the more important point is simply that the "one option is less divisive than the other option" argument -- which, I fully admit, has more than a dollop of plausibility to it -- assumes counterfactually that Republicans and the Foxiverse would be any less on the warpath after an electoral loss than after an impeachment.  Sure, they would say that impeachment was uniquely bad, should that be how things play out; but they would just as vociferously say that election fraud (or any other excuse they can invent) is uniquely bad.

Usually, I am the first one to say that degree matters.  Two things being bad does not make them equally bad.  In this case, however, I have become convinced that the right-wing outrage machine would turn anything that it does not like into The Worst Thing Ever.  If the goal is to find the least-bad option, there might not be one.

Here, I want to add to that depressing analysis by offering some examples and thoughts about how right-wing media whip up maximum outrage in the United States these days.  (It is also worth thinking about whether there are ways to blunt that outrage, even a little bit, but I am currently at a loss on that score.)

Thursday, May 17, 2018

Whither Severability After Murphy v NCAA?

by Michael C. Dorf

Monday's SCOTUS ruling in Murphy v. NCAA is most notable for what it did not occasion: disagreement over the validity and scope of the Court's anti-commandeering doctrine. On Wednesday I offered various hypotheses to explain why the Court's more liberal justices have come to accept a doctrine that was ideologically divisive when adopted in the 1990s. Here I discuss the issue that did divide the justices in Murphy: severability.

Murphy features three quite different approaches to severability. Which one will predominate going forward is difficult to say, however, because severability is a lot like standing, the political question doctrine, and various other procedural devices that justices appear to manipulate based on their views of the merits. A justice who believes strongly in a law's unconstitutionality will tend to want to rule against severability -- thus maximally invalidating the law -- whereas a justice with a less unfavorable view of the law will tend to deploy a narrow conception of severability, thereby preserving more of the law.

Wednesday, May 16, 2018

The Political Stakes of Commandeering in Murphy v. NCAA

by Michael C. Dorf

Monday's SCOTUS decision in Murphy v. NCAA need not have any long-term practical consequences for the legality of sports gambling. The Court invalidated the Professional and Amateur Sports Protection Act (PASPA) on the ground that it "commandeered" state legislatures into passing or retaining laws forbidding sports betting, in violation of a principle established in 1992 in New York v. United States. New Jersey and other states can now legalize sports betting, but Congress could achieve everything it sought to accomplish through PASPA with a new law. The flaw in PASPA was that it told states to legislate, but Congress could legislate directly by banning sports betting, with or without exceptions as permitted by state law. Doing so this way--via "conditional pre-emption"--would be a straightforward exercise of the Commerce Clause power, as was expressly recognized as a permissible alternative to commandeering in New York.

Tuesday, May 15, 2018

Trump's Word Means Nothing

by Neil H. Buchanan

As the news cycle settles into its dreary day-to-day sameness even in the face of once-unthinkable scandals and policy blunders, many commentators are still trying to figure out how Donald Trump makes decisions.  It is a tempting puzzle to try to solve, not only because he wields enormous power but because he talks and texts like a simpleton and thus seems as though he should be an easy person to figure out.

I am not at all sure that it matters whether anyone finally explains how to predict Trump, but I do strongly suspect that it matters if people become convinced that an incorrect theory is the key to the puzzle.  For example, during much of the 2015-16 campaign, and especially during the transition period, plenty of people said that Trump would suddenly realize how important the presidency was and thus stop acting like a petulant child when it mattered.  We know how that worked out.

Ever since he took office, people have been trying to figure out what Trump would do in advance of every major decision that he has had to make.  Plenty of theories have been advanced, the latest of which is that Trump does what he has always said that he would do.  This theory is nonsense, and it is damaging both because it leads to false predictions and because it bestows a degree of reliability and even honesty on Trump that serves to legitimize a serial liar.

Monday, May 14, 2018

Fed Courts Exam 2018 Features Foreign Sovereign Immunity, International Arbitration, Jurisdiction Stripping, AEDPA, and More!

by Michael Dorf

Per my usual custom, I present the exam I administered to my students after the recently concluded
semester. Submit your answers in the comments, but unless you paid tuition, don't expect me to grade them.

Friday, May 11, 2018

Fourth in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. Rudy Giuliani)

by Diane Klein

The man The New Yorker just last month aptly called "the fixer di tutti fixers," Rudy Giuliani, now looks more like the ranting Mr. Smallweed of Charles Dickens' Bleak House, the "baleful old malignant who would be wicked if he could," waiting for someone to shake him up and return both his neck, and his sanity, to public view.  But this is no recent transformation.  A closer look shows that Giuliani in his prime was every bit as great a threat to democracy and the American rule of law as his capo Donald Trump.  Giuliani is, after all, the man who long ago said,
Freedom is not a concept in which people can do what they want, be anything they can be.  Freedom is about authority.  Freedom is about the willingness of every single human being to cede to lawful authority a great deal of discretion about what you do.  Freedom is obedience to a legal authority.
(Except, it now appears, when it comes to Trump and a subpoena from Mueller.)

Impeachment Is a Serious Matter, But It Should Not Be Unthinkable

by Neil H. Buchanan

Like Richard Nixon before him, Donald Trump is now betting all of his political chips on the hope that foreign policy successes will distract everyone from his problematic relationships with the truth, the law, and basic decency.

Unsurprisingly, even in the midst of a modest success, Trump again managed to outdo even Nixon's ick factor, this time standing in front of a group of released political prisoners and praising their captor.  ("I want to thank Kim Jong-un, who really was excellent to these three incredible people.")

None of Nixon's international grandstanding helped him when the walls closed in, and it is difficult to imagine even some significant foreign policy successes being enough to save another doomed presidency.  The question, however, is whether Trump's presidency will be doomed by impeachment (or its specter) or by the voters.

This question has generated some interesting disagreement among people who want to rid us of Trump.  Count me among those who are not having fainting spells at the very thought of impeachment.

Thursday, May 10, 2018

Just the Facts Originalism: No Surprise Here

By Eric Segall 

Professor Larry Solum just posted an article on SSRN titled “Surprising Originalism.” On Twitter, Solum invited comments. Here are mine.

           In this piece, which was the basis of a lecture at the University of Akron, Solum repeats much of what he has said before about originalism and claims that much of the essay might surprise those not closely following recent scholarly debates over originalism. The only big surprise in this piece is that Solum's brand of originalism is indistinguishable in substance from living constitutionalism.

Wednesday, May 09, 2018

How Trump Exits Matters

By William Hausdorff

As articles accumulate that the end may finally be nigh for the Trump administration (see herehere, or here), I find myself thinking about Al Capone.

After a couple of short-term contempt of court convictions, the gangster was finally convicted not of racketeering and murders, but of failing to pay income taxes on his illegal income.  For the prosecutors, this was a more expedient approach than amassing the evidence (and keeping the witnesses alive) necessary for the more serious crimes.  Is this going to be the Trump story, for “the most corrupt administration ever (in Senator Elizabeth Warrren’s terms) to be brought down by undeclared campaign contributions to porn stars?

Prextual Arguments

by Sherry F. Colb

In my column for this week, I explore the inconsistency between the arguments in two conversations, both of which presented a Free Speech issue as well as competing concerns. In one conversation, the topic was a rape app, in which victims can post the name of the fraternity where they were assaulted. In the other conversation, the topic was a racist and anti-Semitic skit that some fraternity brothers performed. I conclude that even though the protection of Free Speech comes up in one of the conversations, what actually motivated the respective positions taken is an identification with presumptively beleaguered white males.

Tuesday, May 08, 2018

Does the John Edwards Case Really Help Michael Cohen and Donald Trump?

by Michael Dorf

(Cross-posted on Take Care)

Whether Michael Cohen and/or Donald Trump violated federal campaign finance law in paying $130,000 of hush money to Stormy Daniels turns on whether that payment was "for the purpose of influencing any election for Federal office." If so, then it was a campaign contribution as defined by 52 U.S.C. § 30101(8)(A)(i). If the money was a gift from Cohen then it vastly exceeded the maximum individual campaign contribution. Cohen would be on the hook for making the contribution and Trump, if he knew about it, would be on the hook for accepting it. (A "loan" from Cohen would also count. It's right there in the statutory definition.) Meanwhile, if the money came from Trump, it would count as a campaign contribution to his own campaign that was exempt from the cap but still subject to the requirement of reporting, with which Trump clearly did not comply.

Trump, Rudy Giuliani, and others in Trump's orbit have said that no "campaign funds" were used to pay Daniels, by which they mean that no funds that were officially controlled by the campaign were used to pay Daniels. Presumably that's true. However, it's not relevant to the question of whether payment to Daniels herself counts as an illegal contribution. At this point, the campaign finance issue is quite straightforward: If the payment to Daniels was "for the purpose of influencing" the 2016 presidential election, then Cohen and/or Trump broke the law.

Sooo . . . were the payments for that purpose? Common sense says yes, but a recent essay by Stephen Weissman argues that the John Edwards case indicates maybe no. I think it's more complicated.

Monday, May 07, 2018

The Current State of Play on The Lush Life, Hush Money, and Slush Funds of Michael Cohen (and Shush, Rudy!)

by Diane Klein

As the Michael Cohen/Stormy Daniels/Donald Trump $130,000 "hush money" payment scandal continues to roil the airwaves, most American law students are immersed in final exams, with the July 2018 bar exam looming for this month's law grads, and the Multistate Professional Responsibility Exam (MPRE) either just behind them or ahead for August 2018.  Many are dutifully working through hypotheticals in professional responsibility - the law governing lawyers - which is among the most frequently bar-examined subjects, and is obviously crucial to the ethical discharge of an attorney's obligations.  Meanwhile, the real-world behavior of highly-placed lawyers, including Michael Cohen (who now has his own lawyer, David Schwartz) and Rudy Giuliani, who recently joined Trump's legal team, has become so central to our understanding of the issues that even MSNBC commentators like Rachel Maddow have had to take a break from covering the antics of the major players - like Trump himself - to hold informal on-air "law schools" to try to unravel the issues for their viewers.

With that in mind, please consider the following hypothetical PR/election law/contract law "crossover" question...

Friday, May 04, 2018

The U-Word

by Neil H. Buchanan

Conservatives are eager to attack plenty of things that liberals are willing to defend, and vice versa.  Abortion rights, climate policies, progressive taxes, and so on are all the subjects of fierce debate by both sides.  There is, however, one huge topic on which the two sides are notably uneven in their passion.

What is the one thing that every conservative is eager to attack yet too many liberals are oh-so-hesitant to defend?  Unions.  To conservatives, labor unions are a reliable bete noire, even though their most passionate base of voters is ironically made much worse off because of the decline of unions.  Unions exist in the conservative imagination as an embodiment of everything bad about liberalism.  For many liberals, however, the response to attacks on unions is to uncomfortably clear their throats and change the subject.

Unsurprisingly, this has led us to the brink of an abyss, with declining union membership amid a wave of anti-union laws in state after state (even in the formerly labor-dominated state of Michigan).  Even worse, the U.S. Supreme Court is poised to deal a near-death blow to public sector unions -- the only part of the labor movement that still has significant membership and power, given how successfully Republicans have attacked private-sector unions -- in Janus v. American Federation of State, County and Municipal Employees.

This asymmetry in conservatives' anti-union passion and liberals' half-hearted defense of organized labor shows up over and over again, and it is worth thinking about not only for the economic harm that it causes to nearly everyone but also for its consequences to the political system.

Thursday, May 03, 2018

The Calm Before the [Non-Originalist] SCOTUS Storm

By Eric Segall

The Supreme Court is not scheduled to hand down any more opinions until May 14. From that day until the end of June, the Court is likely to issue country-changing decisions in a number of different areas of the law. If the Justices are going to go on a spree striking down statutes, executive orders, state redistricting, and police practices, they'll have to do it through the Living Constitution.

Wednesday, May 02, 2018

Third in a Series: Adult Coloring Book "The Lawyers of Trump-Russia" (feat. James Comey)

by Diane Klein

And now, in coloring-book form, a man who needs no introduction, at least for those who have been following Trump-Russia, or own a television.  James Comey's book tour, in support of his memoir A Higher Loyalty: Truth, Lies, and Leadership, released April 17, 2018, put him back in the national spotlight.  But he has hardly been out of it since July 5, 2016, when he released the now-infamous statement about the investigation of Hillary Clinton's use of a private email server.

Specious Speciesism in the Monkey Selfie Case

by Michael Dorf

In my Verdict column this week, I discuss the recent Ninth Circuit ruling in Naruto v. Slater, which affirms the district court's dismissal of a copyright lawsuit brought by PETA on behalf of a macaque (Naruto) who snapped a selfie that the defendants then used in a book. I explain what the court held and offer some criticisms of PETA's decision to bring the lawsuit in the first place. Given all of the horrific things that humans do to nonhuman animals, copyright infringement seems like it ought to have relatively low priority. I end on a cautiously optimistic note, pointing out that lawsuits that fail in court can nonetheless bring beneficial publicity to a cause. While the cause of monkey copyrights is silly, perhaps the lawsuit will bring some attention to habitat loss.

Meanwhile, my column mostly just reports on rather than evaluates the reasoning of the majority and concurring opinions in Naruto. Here I'll critique them a bit by pointing out the judges' speciesism.

Tuesday, May 01, 2018

What the SCOTUS Got Right in Jesner v. Arab Bank (Spoiler Alert: Not the Result)

by Michael Dorf

Largely overshadowed by the oral argument in the Travel Ban case last week, the Supreme Court issued a potentially important opinion in Jesner v. Arab Bank, further limiting the availability of relief for plaintiffs suing under the Alien Tort Statute (ATS). Although I disagree with the thrust of the Court's restrictive ATS jurisprudence in recent years, I'll have some words of praise for Justice Kennedy's majority opinion in Jesner, because it makes conceptual sense out of what had been a deep  puzzle since Justice Souter's 2004 majority opinion in Sosa v. Alvarez-Machain. Before reading on, be forewarned that this is a fairly wonky analysis aimed chiefly at Fed Courts nerds.

Monday, April 30, 2018

More Thoughts About Entertainers Who Could Do So Much Better

by Neil H. Buchanan

The entertainment battlefront in the culture wars has been especially active lately, with conflicts emerging from seemingly every direction.  This past weekend, the manufactured outrage du jour was focused on the stand-up routine at the annual White House Correspondents' Dinner, with conservatives howling about their foe's supposed insensitivity and panicky journalists clutching their pearls.

Last week, I wrote a column in Verdict discussing the recent controversies surrounding "The Simpsons" and the reboot of "Roseanne."  Because there was more to say about both shows, I wrote a followup column here on Dorf on Law this past Friday.  Even after writing that column, I still had not covered the territory, so I ended by saying that "the deeper social issues raised by 'The Simpsons' and 'Roseanne' merit further discussion.  I will discuss the former here and return to the latter in my next Dorf on Law post on Wednesday (pending breaking news, of course)."

By "breaking news," I had in mind something that would completely change the conversation within the maelstrom of Donald Trump's Washington -- accusations that, say, Mike Pence had once been a bondage prostitute, or a proposal from Republicans to restore the Three-Fifths Compromise to the Constitution, or perhaps Stormy Daniels being nominated to be the new Secretary of Veterans Affairs.  Imagination is no match for reality in 2018.

Friday, April 27, 2018

Entertainers Struggle Through the Trump Era

by Neil H. Buchanan

Entertainers have been making the news again recently for their political statements, often not in good ways.  I will leave perhaps the biggest current example alone, because I simply do not possess the necessary background knowledge to say anything about Kanye West.  I did, however, publish a Verdict column earlier this week in which I discussed "The Simpsons" and the reboot of "Roseanne," both of which are in my wheelhouse.

My central argument in that column is that the recent controversies over those two shows have been hijacked by the right as merely another excuse to pretend that there is a scourge of political correctness that is ruining the country.  (I will set aside for now the difficult fact that there is no actual definition of that much-used term.  Why should that stop anyone from decrying it?)

With the Foxiverse in constant manufactured panic mode about "Stalinist" lefties who are supposedly trying to force people to think alike -- whereas conservatives are portrayed as beleaguered truth-tellers and free thinkers -- the standard cop-out in response to any criticism is to say, "Oh, you're just upset because I'm not being politically correct."  It is a perfect way to refuse to engage on the merits, as Donald Trump and his enablers have repeatedly demonstrated.

Even the beyond-belief videos that emerged from a fraternity at Syracuse University (depicting, among other things, the rape of a disabled person as a matter of entertainment and merry-making, as well as young men pledging hatred towards Jews and African-Americans) are not immune to the PC dodge, with "members insist[ing] they were merely satirizing political correctness and spoofing all things deemed off-limits."

Perhaps we all should seriously consider using this defense in every situation.  "So what if I said that you're stupid and ugly?  I'm not going to live by your standard of political correctness.  I tell it like it is."  It does not have to make any sense: "What?  You're angry with me because I cut in front of you in line at the grocery?  Stop being so PC!"  So why not go all the way?  "I paid my mortgage two days late?  I can't think of why, but I'm sure there's a way to make this about political correctness.  Let me call the White House and get back to you, you loser."

Beyond the anti-PC defense, which is nothing less than sheer laziness, it is alternately amusing and depressing to watch the the ebbs and flows of the cultural discussion in the Trump era.  For a mild example, apparently the singer Shania Twain recently said she thought she would have supported Trump because he seemed "honest."  Leaving aside her subsequent attempt at damage control, what I found most bizarre about her statement was that her factual premise was so utterly at odds with reality.  Honest?

Seriously, Twain could have said, "I would have supported him because I want a president who is not afraid to insult people," and she would at least have been approving of something that is true about Trump.  (It is actually bad to have a president who does this, of course, but that is a separate matter.)  But instead she said that she might have supported him because he seems "honest."  That would be like voting for Hillary Clinton because "she didn't seem to really want the job, and we need a president like that."

It is not surprising when any particular entertainer reveals herself or himself to be an ignoramus, of course, even though many entertainers are anything but.  Beyond one-off, nearly accidental comments like Twain's, the deeper social issues raised by "The Simpsons" and "Roseanne" merit further discussion.  I will discuss the former here and return to the latter in my next Dorf on Law post on Wednesday (pending breaking news, of course).

Wednesday, April 25, 2018

SCOTUS Travel Ban Argument Post-Mortem and the Surprising Relevance of Korematsu

by Michael Dorf

Both attorneys in the oral argument in the SCOTUS travel ban case turned in what were overall very good or even excellent performances. The challenge to the Travel Ban involves both statutory and constitutional claims. I'll say a few words about the statutory claims before turning to the constitutional ones. I'll conclude with the provocative suggestion that Korematsu v. US is controlling in a way that benefits the plaintiffs.

The DNC Lawsuit and Litigation Time

by Michael Dorf

Last week the Democratic National Committee (DNC) filed a lawsuit in federal district court in the Southern District of New York against the Russian government, two arms of the Russian government, three foreign nationals (Azerbaijani-Russian billionaire Aras Agalarov, his son, pop singer Emin Agalarov, and Australian-born WikiLeaks founder Julian Assange), Wikileaks, the 2016 Trump for President campaign, six individuals who were part of or assisted the Trump campaign and/or Trump administration (Donald Trump, Jr., Paul Manafort, Roger Stone, Jared Kushner, George Papadopoulos, and Richard Gates, but not President Trump), and ten unnamed “John Doe” defendants. The lawsuit includes seven counts of civil liability under various federal statutes, one count under a Washington, D.C. statute, three counts under Virginia common law, and one count under a Virginia statute.

The lawsuit raises a host of interesting legal questions, including whether the Russian government and its agencies have foreign sovereign immunity. The suit has also already generated political controversy. Republicans--especially the Tweeter in Chief--argue that the lawsuit is just sour grapes, an attempt to turn an electoral loss into a legal case. Some critics on the left echo that complaint, arguing that by focusing on Russian meddling in the 2016 election, the DNC is failing to re-examine its own electoral priorities and to retool in a way that will appeal to a broader swath of the electorate. As noted in the WaPo story just linked, the DNC rejects these charges, arguing that the lawsuit is about compensation and preventing further efforts to breach privacy.

Yet even assuming the best motivation by DNC chair Tom Perez, the timing is difficult. Perez said: “A year ago, people were saying: File a lawsuit. I didn’t do it then, because I believe in doing your homework." Well, that makes sense if you're bringing a medical malpractice suit against a doctor and hospital. Before you file, you want to check the records carefully, line up your potential expert witnesses, and conduct all of the pre-filing investigation you can. A delay of a few months or even a year could well be justified. But the timing should look different if you are filing a  politically charged lawsuit. Had Perez and the DNC filed a year ago, it would have been harder for Trump and his apologists to complain that the Democrats were taking way too long to move on. Sure, they would have said that anyway. And sure, such complaints would have been (and in our actual reality are) the height of hypocrisy, given that Trump continues to boast about his ginormous electoral victory (in which he lost the popular vote by the largest margin of any Electoral College winner in history). Still, timing matters.

Tuesday, April 24, 2018

How Denial Can Be Step One in Facilitating Harm

by Sherry F. Colb

My column for this week discusses a suggestion by Kevin Williamson, almost-columnist for the Atlantic, that women who have abortions should be hanged. I explore how his statement is misogynistic in a way that the pro-life position itself may not be (at least not inherently). I am pro-choice, so I regard the pro-life position as harmful to women in its effect, but pro-life advocates could reasonably disagree with me about the likely impact on women of prohibiting the procedure in the future. And for those of you who have read a New York Times column saying that the end of Roe v. Wade would likely leave abortion legal in many states, there is no reason to think that is true. With both Houses of Congress and the President in the Republican camp, Congress could outlaw abortion throughout the country the very moment that the Court overturns Roe. In this post, though, I want to focus on one feature of what makes Williamson's words about abortion after Roe so offensive. It is the denial that they entail.

Monday, April 23, 2018

What Is Tax Simplification, and Do We Even Want It?

by Neil H. Buchanan

When is a tax system simple?  That is an ultimately arbitrary and meaningless question, so a variation might (or might not) be more helpful: When is a tax system simpler?  Certainly, every politician in America claims that she or he knows what tax simplification is and how to make it happen.  Unsurprisingly, they are all confused -- sometimes in a well-meaning way, sometimes not, but unfailingly confused.

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" (feat. 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.