Monday, December 31, 2018

Dorf on Law Classic: Travel Ban 1.0

by Michael C. Dorf

As 2018 and soon, two full years of the Trump presidency draw to a close, for my latest installment of DoL Classic, I offer my reaction to the first version of Trump's Travel Ban, which originally ran as Malevolence and Incompetence, But Also Post-Hockery, Explain Trump's Cruel Executive Orders. The SCOTUS upheld the third version of the ban in June of this year. By then, few of us who thought all three versions were unconstitutional had changed our minds about that, but we might have calmed down a bit. Re-reading about the initial version -- which, let's be honest, was a necessary condition for the existence of the subsequent versions -- has the salutary effect of reboiling the blood. That's obviously not a salutary effect on one's mental health, but it may be good for the body politic. It's important to try to hold onto the many reasons for our white-hot rage at Trump, even if it's unhealthy to feel white-hot rage all the time.

Happy new year!

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In addition to being appalled at the gratuitous cruelty and almost certainly counterproductive stupidity of President Trump's executive orders concerning refugees in general, Syrian refugees in particular, persons attempting to enter the U.S. from seven (not exactly randomly selected) majority-Muslim countries, and the thinly disguised religious discrimination underlying the favoritism for "minority" (i.e., Christian) refugees, lawyers and law professors in the circles in which I travel have been stunned by the incompetence of the lawyering or lack of lawyering that went into the formulation of these and other orders. For example, the executive order that cracks down on so-called sanctuary cities withholds federal funds from localities that do not do the administration's bidding, even though South Dakota v. Dole--which was decided nearly thirty years ago and has been repeatedly reaffirmed since then--makes clear that only Congress can attach conditions to federal funds disbursed to state and local governments. Any competent lawyer working at the high levels of government knows this.

Friday, December 28, 2018

Dorf on Law Classic: Zombie Lincoln

By Michael C. Dorf

Here's another pre-read blog post, my December 2011 final exam in constitutional law, which originally ran as Zombies and the ConstitutionThe idea of zombie Lincoln as president seems less ridiculous than our current reality.
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{About ten years ago [as of 2011], I was contacted by a man who claimed to be an independent filmmaker.  He said that he was working on a film in which Abraham Lincoln is reanimated as a zombie and runs for President, but disrupts the debates by attempting to eat the brains of the other candidates.  The purported filmmaker asked me whether I thought zombie Lincoln would be eligible for the Presidency.  I thought this was probably some sort of prank, but provided an answer in exchange for a film credit as a "script consultant" if the film was ever made.  To date, the film hasn't been made, or if it was made, it hasn't been released.  Perhaps it was a prank after all.

In the meantime, percolating in the back of my mind has been the question: Would zombie Lincoln be eligible for the Presidency?  Finally the question bubbled forward to the front of my mind, where it made it into the following exam that I just administered to my constitutional law students.  The students were given 8 hours and a 2500-word limit to produce their answers.}

Thursday, December 27, 2018

We All Lose Because Trump Cannot Understand Win-Win (A Dorf on Law Classic)

by Neil H. Buchanan

Note to readers: The holiday hiatus on Dorf on Law continues.  No need to fear, however, as our Dorf on Law Classic series also continues.


For my final column of 2018, I am re-posting a column that originally ran on December 1, 2017.  There, I discussed the surprising fact that Donald Trump does not understand capitalism, nor does he even like it.  Because his stubborn ignorance in this matter (as in so many others) underlies our current crises, I thought that this would be a good time to have another look.  Enjoy!

"Trump Does Not Believe in Capitalism"

by Neil H. Buchanan

One of the more laughable claims from Trump supporters during the campaign was that he is a great businessman.  Even more absurd was the idea that being a great businessman is all that is necessary for a president to fix the economy.  Donald Trump has no idea how to fix the economy.  In fact, the evidence shows that Trump hates capitalism.

That is not to say that Trump hates making money.  He is not very good at doing so, but he tries very hard to make a buck -- and he clearly does not care whom he hurts to get what he wants.  Yet he clearly hates capitalism.  Actually, plenty of successful businesspeople hate it, too, but Trump's disdain for the underlying genius of capitalism is in a category of its own.

We can start with an obvious, trivial example.  Trump's first foray into economic policy during the transition period was his much-hyped decision to "save" some jobs at a Carrier plant in Indiana.  This was truly a scam.  It was so obviously a scam, in fact, that it immediately became the object of intense ridicule.  For a matter that gained the attention of a president-elect, the number of jobs involved was relatively small, more jobs were exported than were saved, and there is no guarantee that the jobs will not be lost soon, anyway.

More to the point, the lesson that the world learned from that incident was that Trump's threats to punish unpatriotic companies had quickly morphed into rewarding companies with bribes to keep a handful of jobs in the U.S.  The incentives going forward are perverse, to say the least.

Even so, an example like the Carrier deal might merely lend credence to the suspicion that Trump is no different from a lot of politicians -- notwithstanding his supporters' beliefs to the contrary.  He could actually love capitalism yet still reluctantly support a bad economic deal because he sees immediate political gain.  That would make him an opportunist but nothing more.

Yet Trump's evident contempt for capitalism goes much deeper.  He seems genuinely not to understand the basic mechanisms that have made both liberal and conservative economists admire the idea of capitalism for centuries.  It is true that economists across the political spectrum argue about the best rules to guide a capitalist economy, but we all understand what made capitalism so much better than its alternatives.

Before Adam Smith came along, the fundamental goal of each European power was to accumulate piles of wealth.  Being wealthy, however, was understood as a matter of having enough gold and other commodities to be able to pay for armies and navies.  Economic wealth was the means to an end, and that end was military dominance.

Smith is best remembered for his "invisible hand" metaphor, which I will discuss in a moment.  His more important contribution to human progress, however, was to change the definition of wealth.  Wealth was not, Smith argued, represented by piles of gold in the king's treasury.  A country is wealthy when it can produce the goods and services necessary to make its people prosperous.  A monarch with a large national treasury who rules over starving subjects is not the leader of a wealthy nation.

Smith's invisible hand was then merely an observation that self-interested people could (if the other circumstances were right) end up organizing themselves in ways that maximized wealth by Smith's more egalitarian definition.  That is, people who try to make a decent living for themselves can do so by, say, trying to build a better plow, or invent a new way of communicating, or organize their work in more productive ways.

That self-interested people could act in wealth-enhancing ways does not mean that they necessarily will do so.  Organized crime syndicates pursue self-interested ends in ways that lead to death and destruction, giving people no incentive to innovate or be more productive.  At the national level, these are kleptocracies, and they are never wealthy.

Smith's forgotten companion to The Wealth of Nations was his earlier book The Moral Sentiments.  There, he explained that we could count on people pursuing their self-interest in wealth-enhancing ways rather than lapsing into kleptocracy only if they acted morally.  Being a moral philosopher, he hoped that each person would regulate himself; but being a realist, he understood that laws are necessary to prevent people from becoming parasites.

After Ronald Reagan's election in 1980, half-educated conservatives showed up for work in the new administration, just as their British compatriots had done when Margaret Thatcher was elected Prime Minister the year before.  They were sure that Smith's insight was entirely captured by the idea that government regulation is bad, because self-interest always leads to better outcomes.

This was a complete misreading of Smith, and it predictably translated into cowboy capitalism.  The Reagan/Thatcher acolytes thought that they were saving capitalism from creeping socialism, but in fact they were simply changing the rules of the game to benefit themselves and their political supporters.  They did not succeed, for example, in making industrial production safe and clean, but they did succeed in shifting the costs of dangerous and dirty businesses onto people who lacked political power.

For decades, Republicans have been leaning more and more on the idea that Reagan stood for nothing other than deregulation.  What they have never understood (or at least what they have never admitted out loud) is that they use the word regulation to mean "rules that we do not like, to be replaced by rules that we do like."  They do not want capitalism without rules -- because there is no capitalism without rules.  They want rules that favor themselves.  Smith, meanwhile, spins in his grave.

For example, the Republicans' response to the financial crisis that led to the Great Recession was to resist rules that would change the incentives on Wall Street.  They decried "excessive regulation," saying that capitalism cannot tolerate too many rules, without understanding that finance is entirely a matter of government-defined and government-enforced rules.  All financial products are artificial, and a lack of clear rules and limitations can destroy the economy, as we learned in 2008 and 2009.

This attitude was most obvious in Republicans' opposition to the creation of the Consumer Financial Protection Bureau, which was designed to shift some of the power in financial transactions from the large institutions to their customers.  As I wrote five years ago, Wall Street's attacks on now-Senator Elizabeth Warren showed that she believed in capitalism more than they did.

Warren was not against capitalism.  She wanted to reset the rules to make it more stable, which necessarily involved making it less of a one-sided affair.  Her opponents wanted to protect the rules that had made them rich, no matter the costs and risks to everyone else.

This year, Trump shocked his party by winning on a bluntly anti-trade agenda.  As I argued during the primaries, Hillary Clinton and Bernie Sanders were having an honest argument about the rules of trade, whereas Trump was acting as if trade is inherently bad.

Trump inevitably doubled back to pre-Smithian thinking, overturning not just Smith's insights but also those of David Ricardo, another of the great Enlightenment economists.  Trump does not even bother to pretend that he sees the gains from trade.  It is entirely a matter of viewing all trade as a zero-sum battle of wills.

Trump's business model is similarly based entirely on taking advantage of people and breaking any rules that stand in the way of taking more for himself.  He hires contractors and workers and then changes the terms of the deals on the fly.  Why?  Because he can.  His entire approach to capitalism has always been a matter of saying, "If you win, I lose, so I'm going to win, and you can't do a thing about it."

Trump's mindset is thus incapable of comprehending Smith's greatest insights.  Not only does Trump view economic success as a matter of piling up money, no matter the consequences to the wealth of the nation, but he cannot fathom the idea that capitalism is not a zero-sum game.

The modern version of Smith's invisible hand, after all, is "win win."  Capitalism is, at its most basic level, about making something from what appears to be nothing.  People cooperate and trust each other, under the rules set by their government, not because they necessarily like each other (although that helps), but because they get something out of it that would not be possible alone.

Trump looks around at people who are winning and concludes that this can only mean that he is losing.  Therefore, they must be beaten.  Trump's world is not about figuring out how to get everyone further ahead.  It is about one person being the winner.  That is a bad way of thinking for an individual businessman, but it is terrible for a person who is supposed to set national economic policy.

The translation of this mindset from business dealings to every other aspect of Trump's life is obvious.  He cannot just win primaries.  He has to humiliate his opponents and then brag about it for months on end.  He cannot merely luck into an eye-of-the-needle Electoral College win in the general election, but he has to claim that he would have won the popular vote if he had tried (or if people had not cheated to vote against him).  And he has to claim that his margin in the Electoral College is a landslide rather than an unexceptional margin.

Foreign policy for Trump is similarly not about disparate parties helping each other out in a way that advances everyone's interests.  He keeps score based only on piles of money and would turn foreign alliances into a protection racket.

Ultimately, this crabbed view of life even translates into Trump's approach to dealing with other people.  Everyone who displeases him must be insulted and put down.  Women who are physically attractive can be grabbed, because that is what he wants.  In other words, even sex -- the ultimate example of human interaction where the goal should be win-win -- is merely another area where Trump must dominate.

For most of us, the real-world consequences of Trump's narrow-mindedness will not be personal in that sense.  He will not directly bully us or physically violate us.  Yet his approach to public policy -- economic policy, foreign policy, social policy -- is infused with a rejection of the idea that two parties to a deal can both win.

That is not what how capitalism works best, and it is not how healthy societies thrive.  A world in which everyone tries to dominate everyone else is unhealthy, and it makes us all poorer in every sense of that word.

Wednesday, December 26, 2018

Dorf on Law Classic: Faculty Hotness

by Michael C. Dorf

Today I continue our series of "classic" (or "pre-read") blog posts during the holiday season. Today's gem originally ran on April 1, 2010 under the title US News "Faculty Hotness" Controversy Generating More Heat Than Light.
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The announcement that US News would include a new category of "faculty hotness" in its 2011 law school rankings continued to generate controversy yesterday, as law school deans scrambled to position themselves as above the fray while secretly ensuring that their own schools were not shortchanged in the hotness category. NYU Law School Dean Richard Revesz denied that the 62-page glossy "Faculty in Paradise" magazine--featuring pictures of NYU Law faculty frolicking on the beach clad only in skimpy swimsuits--was a bid to secure a high US News hotness rating, but several other deans with whom I spoke were skeptical. Said University of Pennsylvania Law School Dean Mike Fitts, "Oh c'mon. Are you telling me that Sam Issacharoff is hotter than Steve Burbank? No way. There are at least a dozen hotter faculties than NYU. We just don't feel the need to be so ostentatious about it."

Tuesday, December 25, 2018

Another Shutdown? (A Dorf on Law Classic)

by Neil H. Buchanan

Note to readers: Because I still celebrate Christmas, I am taking the week off from writing.  (Who am I kidding?  Even if I didn't celebrate Christmas, I'd still take this opportunity to recharge my batteries.)

For readers who want to think about the ongoing Trump-owned mess of a government shutdown, I have reproduced below a column that I published here on January 18 of this year, discussing what would turn out to be only the first of three 2018 government shutdowns.  The details change, but the big themes remain.

I hope that you all enjoy this Dorf on Law Classic.


"Opening Up About Shutdowns"

As I write this column, it is still unclear whether there will be another government shutdown.  If nothing changes, the so-called nonessential functions of the federal government will cease operations at midnight on Friday, January 19.  The latest reports indicate that Donald Trump has thrown another hand grenade into the room by undermining the Republican leaders' latest bargaining strategy.  Within minutes, however, that was (unsurprisingly) being disputed.

This is a mess, but other than proving again that Trump knows nothing about negotiating and that Republicans are incapable of governing responsibly, does any of it matter?  The short answer is that a possible shutdown is not as important as people make it out to be.  Because this is ultimately all about political theater, however, this lowbrow farce can end up making a big difference for the two parties' respective political fortunes.

In any event, it is worth understanding what is not at stake as well as what is at stake, especially because averting this particular possible shutdown does not eliminate the threat of other shutdowns in the near future.

Monday, December 24, 2018

Christmas Special: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. Robert Kelner)

by Diane Klein and David Kemker

A Visit From Judge Sullivan (with apologies to Clement Clarke Moore and Dr. Seuss)

'Twas the week before Christmas, when all through the House,
And the Senate, all eyes were on D.C.'s courthouse.
Mike Flynn awoke rested, all snug in his bed,
While visions of full pardons danced in his head.

What's With These Homies Dissin' My Boys? The Curious Case of Weezerphobia

by Michael C. Dorf

With the holidays upon us, this will likely be the last new essay on DoL until after the new year. Over the next week and a half, we'll post a few "classic" columns, i.e., reruns, but perhaps ones you missed the first time. Anyway, in the holiday spirit, I've opted for something with no legal, political, or economic implications today: an essay on the odd phenomenon of Weezerphobia.

The season-ending episode of Saturday Night Live included a segment in which a dinner party is ruined when two fans of the band Weezer (played by guest-host Matt Damon and SNL cast member Leslie Jones) get into a heated argument over whether the band continues to produce good music (Damon's character) or peaked decades ago and ought to have faded by now (Jones's character).
If you don't like, don't care about, or have never heard of Weezer, I promise that the rest of this essay is mostly not about Weezer so much as it is about music, art, and the passage of time. Anyway, ICYMI, here's the SNL sketch:



Pretty funny, right? Sure, but to those of us who actually agree with what Damon's character says in the sketch, maybe not so funny, when you consider that it echoes a much meaner version of the same perspective performed by Hari Kondabolu in his standup act in 2012:



So, on behalf of Weezer fans everywhere, I say "WTF?".

Saturday, December 22, 2018

Blogging Love

By Eric Segall

Warning: More Facebooking than Blogging Ahead

I was trying to decide what my last blog post of the year would cover but everywhere I looked I saw gloom and doom. The Court, courts, Congress, our Anti-President, local politics, nothing happy to see. So, I decided to take on a happier, more personal topic. I’m sure some people reading this will justifiably find it self-indulgent muck. I’m hoping others might recognize some of the feelings expressed and feel just a tinge or mild glimmer of warmth and joy. My topic is love, big and small, obviously in ascending importance. 

My Obamacare Column on Verdict

by Michael C. Dorf

In my latest Verdict column, I argue that Judge O'Connor's opinion striking down all of the Affordable Care Act is wrong but that severability doctrine itself is mysterious. I won't rehash the column here, nor will I follow my usual practice of writing on a related subject. Rather, I'll just make one simple point: Just because there's no clearly right answer to how courts should go about addressing sever ability doesn't mean there aren't clearly wrong answers.

Friday, December 21, 2018

Why Does the Journalistic Conventional Wisdom Matter?

by Neil H. Buchanan

This is my final column of 2018, but the news this week is too overwhelming for me to try to address even a fraction of the latest welter of Trump-inspired insanity -- a possible government shutdown, the Syria withdrawal and the subsequent resignation of the last "adult in the room" (Defense Secretary Jim "Mad Dog" Mattis), as well as other disasters in the making.  Therefore, I will pull back and ask a question that is implicated in much of my writing and that mercifully sidesteps today's headlines.

When I am not writing about legal issues or economic policy questions, I spend a fair amount of time here on Dorf on Law and also occasionally on Verdict as a de facto media critic.  (See, for example, here and here.)  I use the term "conventional wisdom" frequently (most recently just last week) to deride the groupthink that all too frequently infects the minds of both news reporters (and headline writers) and especially pundits.

Of course, much of the time this herd mentality among the nation's journalists is leading the country in the wrong direction on one or more of the legal issues or economic policy questions that I care most about, and the marriage of interests is complete.  When, for example, we saw the economics reporter for The Washington Post repeating Republican spin last year about the growth-creating magical powers of tax cuts, it was nearly impossible not to break my keyboard in anger.

But does any of this matter?  After all, I have also occasionally noted the surprising lack of impact that even the most highly visible commentators can have.  It does matter, and it is important to understand how the conventional wisdom works, not only in terms of how it is formed but in its impact on real life.

Thursday, December 20, 2018

Details as Distractions in Medicare-for-All and Social Security Debates

by Neil H. Buchanan

As I noted in a column last week, conservative politicians and pundits are becoming increasingly frantic about the possibility of the U.S. actually moving to a single-payer health care system, the most likely version of which would be an expansion of the current Medicare system to cover people of all ages, not just those over 65 -- that is, Medicare-for-All.

Viewed as a political moment, this panic is important simply because it represents a return to form for those conservatives who have strayed from their lifelong paths by opposing Donald Trump and all that he represents.  One might have been forgiven for thinking that prominent NeverTrump pundits had become policy moderates -- people who, once hit with the bucket of ice cold water that is the combination of Trump and movement conservatism, suddenly woke up and realized that perhaps one's highest calling in life should not be to justify tax cuts for the wealthy or throwing tens of millions of people off of Medicaid.

But in the end, the people who had stuck with the Republican brand even after the madness of the Tea Party-fueled rage against Obama are not likely converts to centrism.  Thus, even the pundit who seemed to have made the most substantive progress in her views, The Washington Post's Jennifer Rubin, apparently was unembarrassed to ask earlier this week: "[W]hat’s the alternative to the left-wing infatuation with super-centralized government, anti-capitalism and retrenchment?"  Yes, she actually wrote that -- and she is supposed to be one of the reasonable ones.

Unless "super-centralized government" is merely a muscle-memory way to insult liberals that has no actual content (which is a very real possibility), this kind of comment must surely be of a piece with the fatuous claim that expanded Medicare is bad because it would mean higher taxes -- even though those taxes would replace health insurance premiums, co-pays, coinsurance, deductibles, and every other part of the clip-joint scheme that is the U.S. private health insurance system.

This return to form on the center-right suggests that there will be no kumbaya moment for the 60 to 70 percent of Americans who abhor Trump and his enablers.  If there is going to be progress on anything, most certainly including health care policy, there will have to be a real debate that includes dealing with red herrings and bad-faith objections.  It must also, however, deal with real concerns.  Here, I want to discuss how the fact that "it's complicated" plays out in good-faith policy discussions.

Wednesday, December 19, 2018

Pelvic Exams of Unconscious Women: Legal in Most States?

by Sherry F. Colb

In my Verdict column for this week, I discuss the Larry Nassar case and why a doctor was able to sexually abuse his patients with impunity. I propose that the answer might have something to do with the status that doctors occupy in our society. In this post, I want to extend that idea--that doctors occupy a kind of benevolent authoritarian status in our society--to a different kind of abuse, one that is apparently far more widespread than even Larry Nassar's sexual predation.

I had heard about it before but then allowed it to slip my mind. Then the NPR program, "This American Life," brought it back. The show recently featured a story about a very disturbing phenomenon. It seems that young doctors, learning their craft, have routinely performed pelvic exams on unconscious female patients under general anesthesia. According to this story, these exams are not only quite common but are actually legal in most of the country. In this post, I want to consider the meaning of the exams themselves and of their perceived legality, a perception that I would contest.

Tuesday, December 18, 2018

Can an "Off the Wall" Procedural Argument (Invalidating Obamacare) Climb the Wall?

by Michael C. Dorf

Judge O'Connor's decision late last week striking down the entire Affordable Care Act is, to use a phrase coined by Yale Law Professor Jack Balkin, "off the wall." Balkin developed this idea in academic articles, but he applied it, fittingly, to the original challenge to the ACA. In a 2012 article in The Atlantic, Balkin wrote:
Off-the-wall arguments are those most well-trained lawyers think are clearly wrong; on-the-wall arguments, by contrast, are arguments that are at least plausible, and therefore may become law, especially if brought before judges likely to be sympathetic to them. The history of American constitutional development, in large part, has been the history of formerly crazy arguments moving from off the wall to on the wall, and then being adopted by courts.
Balkin's latest deployment of the wall metaphor insightfully explores the question whether Judge O'Connor's opinion will end up on the wall. As Balkin's astute explanation of the on-the-wall/off-the-wall distinction indicates, answering that question calls for expertise in something other than law: group psychology, sociology, and perhaps movement politics. Accordingly, I do not consider myself especially well qualified to answer it. With that disclaimer, here I'll discuss what makes the ruling off the wall for now. I'll then venture a thought about how off-the-wall procedural arguments can climb the wall. (Yes, I'm aware that I'm mixing metaphors. I deliberately use "climb the wall" as a playful means of describing how an argument goes from off to on the wall.)

Monday, December 17, 2018

The Emperor's Stare Decisis

By Eric Segall

On Wednesday of last week, Mike wrote a typically thoughtful post on the difficulties originalists (and others) have when determining proper standards for the Court to use when deciding whether to overturn prior cases. One of his conclusions, that "originalist acceptance of stare decisis very substantially constrains the role of original meaning in determining outcomes, even accepting the originalists' own premises," is I think exactly right. But Mike did not ask, nor try to answer, what I think is an antecedent question about the role of precedent in the Supreme Court: Does the doctrine exist at all apart from stylistic rhetoric that pops up from time to time in Supreme Court opinions? I think the answer to that question is important and obvious--no.

Friday, December 14, 2018

Con Law Exam 2018: Trump in Space (and More)

by Michael C. Dorf

Once again, I am posting an exam. This one was administered to my first-year constitutional law students on Tuesday. They had eight hours and a 2,500 word limit. Interested readers should feel free to spend less (or more!) time and fewer (or more!) words providing answers in the comments. I won't grade readers' answers, as I'm too busy grading the actual exams. Enjoy!

Question 1

NASA scientists announce in December 2018 that they have detected and definitively translated a signal from a region in space approximately 40 light-years from our solar system. The translation is:

People of Earth, beware. Your civilization is in grave danger from the Jet People of the Planet Weezer. The Jet People have already committed genocide on our home planet. We are the last survivors of a great civilization of Shark People. We do not expect to survive the next attack. You must prepare to fight the Jet invaders. They are ruthless, but they can be defeated by high-energy beams containing concentrated Krypton. Tragically, our scientists discovered the Jet People’s vulnerability to Krypton too late to save ourselves. With their high-speed interstellar fleet, the Jet People will reach Earth in a matter of decades. Prepare yourselves if you hope to survive.
Space scientists from Russia, China, Japan, and the European Union confirm both the authenticity and the content of the signal. Recognizing that the signal from the Shark People was sent forty years ago, nearly all world leaders quickly conclude that urgent action is needed. However, President Trump is unpersuaded. He tweets:




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 2007.  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 the 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?