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.

Will Justice Gorsuch Give us a June Surprise?

By Eric Segall

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

Monday, April 16, 2018

Presidential Overreach and Supposedly Excessive Spending

by Neil H. Buchanan

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

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

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

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

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

Friday, April 13, 2018

Are Electorally Targeted Tariffs a Worrisome Form of Foreign Interference?

by Michael Dorf

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

Thursday, April 12, 2018

Ryan's Wonderfully Selfish Retreat

by Neil H. Buchanan

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

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

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

Wednesday, April 11, 2018

Roseanne, Amy Wax, and Two Kinds of Racism

by Sherry F. Colb & Michael C. Dorf

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

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

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

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

Tuesday, April 10, 2018

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

by Diane Klein

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

Trump Channels Nixon (Again)

by Neil H. Buchanan

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

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

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

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

Monday, April 09, 2018

The Future of Lengthy Law Review Scholarship

By Eric Segall

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

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

Should the YouTube Shooter's Veganism Be Considered Relevant?

by Sherry F. Colb

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

Friday, April 06, 2018

Naive (at Best) Reporters and False Tax Equivalence

by Neil H. Buchanan

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

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

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

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

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

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

Thursday, April 05, 2018

The Sherwood Forest Legand and Tax Policy

by Neil H. Buchanan

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

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

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

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

Wednesday, April 04, 2018

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


By William Hausdorff

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

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

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

My Memorial Essay for Judge Reinhardt

by Michael Dorf

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

Tuesday, April 03, 2018

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


By Eric Segall

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

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

Monday, April 02, 2018

Once a Troll, Always a Troll?

by Rabbi David Seidenberg

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

Sunday, April 01, 2018

Donald Trump, Federal Courts Scholar

by Michael Dorf

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

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