Friday, April 26, 2019

Did Anything Interesting Happen While I Was Gone?

by Neil H. Buchanan

As I have noted in various recent columns (most recently here), since late January I have been on a semester-long trip to the UK and some other northern European countries.  With my return to the United States scheduled for this coming Monday, this is my last column from the other side of the Atlantic (for now), which presents an opportunity to reflect on what has happened over the last three months in my home country.

Before getting to those larger issues, I will note that the biggest change for me personally since I left the U.S. is that I have accepted the James J. Freeland Eminent Scholar Chair in Taxation at the University of Florida.  I continue to be excited about this next stage in my career, in particular because UF is giving me the resources needed to continue my research collaborations with scholars abroad while potentially bringing graduate tax students to Gainesville for our top-tier LL.M. and J.S.D. programs.

With my last stop in Europe being Amsterdam, the capital of a country one-sixth of which is below sea level, perhaps this is an apt way to launch my move to the state of Florida, which might soon need to borrow some Dutch technology to keep out the rising ocean waters.  Should I ask around during my visit here?

Unfortunately, as a friend of mine who grew up in the Caribbean (and thus knows something about these things) told me, Florida's land sits atop porous rock, which means that rising seas will simply come up from underneath.  Yikes!  Talk about a time-limited gig.  By the time I leave UF, I might end up moving back to the exciting new Atlantic beaches of Washington, D.C.  Who needed the Chesapeake Bay, anyway?

Although I am very good at denial in some ways, however, I have been insistent on seeing with brutal clarity what is happening politically in the U.S. and elsewhere in the world.  Which brings me back to a reflection on the non-personal issues that have dominated the news over the past three months.  This is an especially important exercise because, as many have noted, the news cycle has become so accelerated that there are very few opportunities to take a breath and think about what has been happening with any sense of perspective.

Thursday, April 25, 2019

Trump Lawyers Use "Democrat" as an Adjective: How to Respond

by Michael C. Dorf

On Monday, Donald Trump (in his personal capacity) and various Trump-affiliated companies sued Congressman Elijah Cummings and the Chief Investigative Counsel to the House Oversight and Reform Committee, seeking to block the subpoena issued by the House to an accounting firm demanding various Trump-related financial records. The complaint alleges that the subpoena exceeds the Committee's authority because it is unrelated to any potential legislation.

I am not interested right now in whether the complaint has merit. Rather, I want to focus on the repeated references in the complaint to the "Democrat Party."

Wednesday, April 24, 2019

Is Nollan Just an Exactions Case? Reflections on Nollan and Horne (Guest Post by Stanford Law Professor Mark Kelman)

by Mark Kelman 

In the canonical case of Nollan v. California Coastal Commission, the Supreme Court held that the California Coastal Commission was obliged to compensate parcel owners who had surrendered a lateral easement across the dry sand adjacent to the sea wall between their home and the ocean only because the Commission conditioned the grant of a building permit to expand their home on the surrender of the easement. The case limits state power in two important, widely recognized ways.  In Takings law terms, a state cannot argue that it has not taken but been granted property when it exploits its power to provide desired but gratuitous benefits to extort “voluntary” transfers; property is taken, not truly granted, unless the permit condition serves the same legitimate policy purpose as a refusal to issue the permit would have served. Read as a case on unconstitutional conditions, Nollan helps fortify the important point that greater powers need not entail lesser powers.  The government cannot make a party forfeit a constitutional right to in order to receive a gratuitous benefit.  Just because State U needn’t grant Professor P tenure, it cannot condition a tenure grant on a free speech restrictive agreement to desist from criticizing the governor; just because the state need not grant a building permit, it cannot condition a permit grant on surrendering ther right to be compensated for a taking.

What we seem to have forgotten, though, is that Nollan did not just limit state power. Properly understood, the Nollan case should be read to protect the state’s flexibility when it is choosing between multiple policy instruments designed to meet the same ends.  What Nollan teaches us is that the state should not choose some particular policy instrument  simply because it will be free from the obligation to compensate if it uses one straightforward regulatory method but not some alterantive method that involves a traditional taking, at least so long as the second policy instrument is Pareto-superior to the first, (not worsening the position of the parcel owner. In Horne v. Department of Agriculture, the Court reads Nollan quite narrowly, as it has generally come to be read, as a case solely about developer exactions, and loses sight of the fact that the case is in significant part about maintaining Takings-law neutrality among Pareto-superior policy instruments that meet the same goals.  The narrow result of the Horne litigation, effectively ending a program of dubious merit, is hardly tragic, but the misunderstanding of the true import of Nollan may be.

Tuesday, April 23, 2019

Judge Posner, Title VII and Why Sexual Orientation Discrimination is Discrimination Based on “Sex”


By Eric Segall

The United States Supreme Court granted certiorari on Monday in two cases raising the issue whether the federal employment discrimination statute, commonly referred to as Title VII, which prohibits employment discrimination based on “sex,” protects gays and lesbians from discrimination based on their sexual orientation. The lower courts have divided on the issue, and there have been numerous judicial opinions discussing the question. These cases raise important and controversial issues of both public policy and statutory interpretation.

The public policy question, which potentially affects millions of Americans and their employers, is whether federal law provides protection for gays and lesbians from discrimination on the basis of their sexual orientation. The statutory interpretation question is how judges should interpret ambiguous terms in old statutes when we know how the drafters would have interpreted those terms, but society has changed dramatically in the period between the adoption of the law and the present controversy.  

The most honest opinion so far on both of these issues was written by (retired) Judge Richard Posner in an en banc concurring opinion for the Seventh Circuit Court of Appeals (that case is not one of the ones the Court decide to hear but raised identical issues).

Giving the Moderation Obsessives a Fair Hearing

by Neil H. Buchanan

I admit up front that calling the subjects of today's column "moderation obsessives" would seem to undermine my claim that I plan to give them a fair hearing.  Yet it is difficult to think of a more accurate description, given that many somewhat liberal Democrats and former Republicans seem to think that moderation is the be-all and end-all of winning elections.

More to the point, even though I am amused by their single-mindedness, that does not stop me from trying to find where they might have a good argument and where we might actually agree.

In any event, today I am going to use New York Times op-ed columnist David Leonhardt as a leading example of a moderation obsessive.  That does not mean, however, that he is addicted to centrism, and he is even willing to say obviously true things (such as "Donald Trump should be impeached" -- even before the redacted Mueller report was released) that make many wimpy Democrats blush.

He is not, in other words, generally in the business of trying to prove that he thinks that Democrats can win by being even more accommodating to the increasingly out-of-touch Republican Party.  That makes his repeated claims that Democrats are committing the political sin of too much leftiness especially puzzling and worth exploring.

Monday, April 22, 2019

Pretexts in the Travel Ban Case, Method-of-Execution Cases, the Assange Indictment, and More Generally

by Michael C. Dorf

"Even a dog," Oliver Wendell Holmes, Jr. wrote in The Common Law, "distinguishes between being stumbled over and being kicked." Today, as in 1881, when Holmes wrote those words, intentions matter in the law. They can be the difference between criminal and innocent conduct, between  liability and non-liability, between constitutional and unconstitutional actions. And yet illicit intentions can be notoriously difficult to prove.

Moreover, in at least some contexts, making intentions dispositive can be problematic in principle. If it is unconstitutional for a municipality to close its public swimming pools rather than desegregate them (as four justices would have held in Palmer v. Thompson), must the municipality keep the pools open forever, even though it had no obligation to operate swimming pools in the first place? If not, for how long must it keep the swimming pools open? What if the bad actor cites some facially plausible reason that is not the real reason for its bad act? Should the law disallow it as a pretext?

I addressed some such questions in a 2016 essay in the Harvard Law Review's online supplement in response to an article on forbidden legislative intent by Prof. Dick Fallon in the main issue of the HLR. I don't want to rehash our respective points here. Instead, I want to use three recent events to raise some further questions. After recapping an argument I made last year about the Muslim Travel Ban and the Masterpiece Cakeshop cases, I'll focus on some recent death penalty cases in the SCOTUS and the Julian Assange indictment.

Saturday, April 20, 2019

Mueller's Mistake: A Criminal Trial is not an Opportunity for the Defendant to Clear his Name

by Michael C. Dorf

Special Counsel Robert Mueller accepted the Justice Department policy barring indictments of a sitting president. He could have nonetheless made a determination whether Trump would be subject to indictment based on his conduct as evaluated under the governing statutes and Justice Department policies if Trump weren't president, but Mueller declined to do so. Why? According to the Mueller Report (Vol 2, page 2):
Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.
In my view, that statement badly misunderstands the nature of a criminal trial.

Friday, April 19, 2019

Mueller Report Counterspin: We Still Don't Know Why Trump Denied Russian Interference

by Michael C. Dorf

Attorney General Barr, President Trump, and their FoxNews amen chorus spent several weeks spinning what turns out to be a substantially fictional version of even the redacted Mueller Report. Now the rest of us weigh in. Here I'll offer both a substantive and prescriptive take for everyone who regards Trump's presidency as a disaster.

My bottom line is this: The Report could but won't be used as the basis for impeachment. Meanwhile, it leaves two fundamental questions unanswered. First, why, both during and after the campaign, did Trump repeatedly deny Russian efforts to interfere with the election, when he must have been well aware of them? Second, if they had nothing to hide, why did so many of Trump's close associates lie to Mueller's team and why did Trump--whether or not he committed acts that are chargeable as obstruction under DOJ policy--repeatedly try to undercut the investigation?

I don't have definitive answers to those questions. I do have an important takeaway, however: even the most innocent explanations should be EXTREMELY damaging to Trump.

Thursday, April 18, 2019

The Attacks on Sanders Are Almost All Scurrilous

by Neil H. Buchanan

This week has seen increased discussion of intensifying conflict between Bernie Sanders and the Democratic Party's establishment, including a prominently placed New York Times article describing a group of "Stop Sanders" Democrats who are "agonizing" over what to do about him.

This is, of course, the opposite of news.  The only question is whether the anti-Sanders forces (which means basically everyone with any power in the party, including all of the big and medium-sized donors) will decide that they hate Sanders so much that they will tear him down at all costs, up to and including tacitly endorsing Donald Trump's reelection.

To be clear, I am not offering here a now-standard "You guys are helping to reelect Trump!" attack on the people I disagree with -- at least not yet.  Among other things, as I have made clear again and again, I am emphatically not a Sanders fan.  I do like most of his policy positions, but so much of the party has coalesced around those positions -- definitely thanks to Sanders's influence -- that one can easily find a candidate who is as good as or better than Sanders on policy.

I am thus very much in favor of standard in-fighting in a nominating campaign.  That is what primary campaigns are all about, and everyone who writes columns at this point talking about the "divided Dems" is simply on journalistic/pundit autopilot.

Therefore, if the Stop Sanders people want to make a reasoned case against Sanders, they should do so.  I obviously have my own thought process that has caused me to continue to reject him as the best choice for a nominee, but at this point my time seems better spent making the case against the anti-Sanders people (making me a Stop-Stop Sanders Democrat?), including my recent column puzzling over the establishment's love affair with Joe Biden.

Here, I want to pursue two related thoughts.  First, it is necessary to continue to push back against the demonization of Sanders.  Second, I will agree that there is one uniquely worrying problem lurking in the democratic socialist non-Democrat's campaign, and that is the possibility that he will respond to losing -- no matter the circumstances -- by claiming that the election was rigged.

Wednesday, April 17, 2019

Ask the Professor Part 1: Did the Fifth Amendment Impliedly Repeal the Natural-Born-Citizen Requirement for the Presidency?

by Michael C. Dorf

Today I'm inaugurating a new series of occasional blog posts in which I answer questions from readers. As those of you who visit the blog directly may know, I often respond to interesting questions or criticisms that readers pose in the comments, but I have found lately that between the comments section, social media, and email, I've been getting a fair number of interesting questions that call for a response on the blog. Rather than try to force my answers into the news cycle, I will from time to time simply reproduce a reader's question and then offer some thoughts in response. Unless readers publicly identify themselves (e.g., by using a real name in the comments) or expressly granting me permission, I shall post the questions as coming from anonymous sources. I shall sometimes take the liberty of modestly rephrasing questions.

Today I address a question posed by a reader who wants to know what I think of an argument set out in a 2006 law review article by lawyer Paul Clark to the effect that "the Fifth Amendment implicitly repealed the natural-born citizen requirement for the U.S. Presidency." Here is how the reader summarizes the article and addresses a potential counter-argument:
[Clark's] argument is that SCOTUS has ruled that the Fifth Amendment contains an implicit equal protection clause whose scope is identical to the 14th Amendment's explicit equal protection clause and that since any hypothetical state constitutional provision that limited its governorship to natural-born US citizens would be struck down by the courts as being contrary to the 14th A, SCOTUS should likewise nullify the natural-born citizen requirement for the US Presidency as being in violation of the 5th A. 
I know about the presumption against implied repeal, but why exactly should legal constitutionalists have to follow this presumption when this presumption is not in the text of the US Constitution? Just like the US Constitution does not mandate the use of a specific interpretive methodology, it also does not mandate the use of any canons of construction--thus leaving this issue to the people who actually interpret the Constitution to do with as they see fit.
The short version of my response is that I am not persuaded by Clark's argument on its own terms. Moreover, the fact that the US Constitution does not mandate the use of any canons is not especially informative.

Tuesday, April 16, 2019

The Steps to the Unthinkable: Republican Support of a Trump Coup

by Neil H. Buchanan

Ever since Donald Trump became more than a punch line, his dictatorial and more generally anti-constitutional tendencies have caused some of us a great deal of concern.  As I wrote in a column two weeks ago, I am among the people who have been metaphorically running around with our hair on fire for the past three years, warning that Trump's buffoonery and incompetence are no brake against his willingness to ignore and destroy the rule of law.

The response to this warning has been, to put it in one particularly grandiloquent phrasing, that the American system's majesty and genius make it stronger than any one man.  Even if Trump wants to be a king, the system is strong enough to stop him.

Trump and his minions obviously take that argument at least somewhat seriously, which has led them to vilify the supposed "deep state" of people in the system who stand in their way.  Acting Chief of Staff Mick Mulvaney, for example, recently rejected Jake Tapper's description of "experts in your administration" and instead sneered that they were merely "career staffers."  Why, after all, should we trust some people merely because they have spent their careers learning about the issues on which they advise presidents?

This is of a piece with Newt Gingrich's efforts in the 1990's to eliminate expertise from congressional committees and move all decision-making into the Speaker's office, based not on evidence but partisan politics.  Ignorance, in some instances and for some people, truly is bliss.

Still, I do concede that merely because the Trump people are acting like a wannabe junta, it is possible that they will be stopped in their tracks.  I strongly doubt it, as I have argued frequently; but until now, I have not worked through the steps of how our supposedly resilient system might crumble in the face of a man and a party bent on seizing absolute power.

Monday, April 15, 2019

Yale Law School, Ted Cruz, and Religious "Liberty" Run Amok

By Eric Segall

After students at Yale Law School protested the speaking engagement of a lawyer working for the ultra-conservative, non-profit legal organization Alliance Defending Freedom, Yale announced a new policy regarding which organizations may access some of Yale's vast resources. This policy applies to employers that take into account “religion,” “religious creed,” “gender identity” or “gender expression,” among other factors during their hiring practices. According to Dean Heather Gerken, Yale will "not financially support employment positions unless they [are] open to all of our students, including members of the LGBT community." 

This decision is completely within Yale's rights and should be applauded by everyone in favor of equal rights (I have no connection to Yale Law School).

Nonetheless, the religious community responded with outrage that this policy might affect some religious organizations that don't hire gays and lesbians. This discontent led Senator Ted Cruz, always willing to bend truth to serve his own political agenda, to issue an extraordinary letter to Yale Law School, which accuses Yale of adopting a "transparently discriminatory policy: namely, that Yale will no longer provide any stipends or loan repayments for students serving in organizations professing traditional Christian views or adhering to traditional sexual ethics." 

This accusation is totally false. Yale does no such thing but simply denies its funds to any organization that refuses to hire gays and lesbians (or other protected groups). Again, according to Dean Gerken, "our policy does not single out any student based on religion. Nor does it single out any organization based on ideology, litigation strategy, or political goals. Instead, it is designed to protect all students — including the many Christians and other people of faith among our students and alumni." 

Friday, April 12, 2019

What Kind of Education Do We Owe Future Generations?

by Neil H. Buchanan

My European adventure continues, even though my job status has changed while I have been over here.  (Hello, Florida!)  One of the reasons I decided to spend most of a semester on this side of the Atlantic was to work on a book project that I had set aside for quite a few years -- What Do We Owe Future Generations? -- which I discussed in two relatively recent columns here on Dorf on Law, one in late January and the other in early February.

I ended up presenting ideas for the book on what amounted to a speaking tour of the UK and some nearby countries (Ireland, the Netherlands, and Sweden).  The twelve talks mostly (but not always) went over quite well, and they all served the purpose of allowing me to think out loud and to receive questions and suggestions that will significantly move the project along.

My final gig was yesterday afternoon at the University of Gävle (pronounced YEHV-luh, more or less), a medium-sized city about 100 miles north of Stockholm.  Gävle is the home base of Gevalia Coffee (Gevalia being the Latin spelling of Gävle), and the city is known for a hilarious tradition known as the Gävle Goat.

It is also home to an excellent university, where I spent the earlier part of this week at a conference on sustainability organized by Dr. Yvette Lind (who is now leaving Gävle for the Max Planck Institute in Munich), who did the bulk of the work but who benefited from essential contributions by Dr. Mats Landstrom (an economist at Gävle) as well as a little bit of help from me.

Here, I will discuss a question that came up during the question-and-answer period, raised by (I think) a graduate student in the law department.  It helped clarify the issue raised in the title of this column: What kind of educational system do we owe future generations?

Thursday, April 11, 2019

I'm No Bernie Fan, But This Is Getting Ridiculous

by Neil H. Buchanan

There has long been ... shall we say ... concern among even the most liberal of the "respectable" Democratic opinion makers about the prospect that Bernie Sanders could become their party's presidential nominee in 2020.  Lately, however, that concern seems to be giving way to full-on panic -- so much so that the party establishment's overreaction and exaggerated attacks are likely either to spur a sympathetic reaction in Sanders's favor or, worse, to create a schism within the party.

I am fully on the record as being no fan of Sanders.  I do like his policy agenda (more on that below), but I concluded during the 2016 primaries that he was simply not the best candidate either in substance or style.  I thus have received my share of angry emails from Sanders fans claiming that I was on the Clinton Foundation's payroll, that I am no better than Trump, and so on.

But if the anti-Sanders forces were successful in creating the negative Bernie Bro image in 2016 -- and they were, albeit with plenty of help from actual Bernie Bros (who, to be clear, are not representative of Sanders's wider support, even though they are obvious targets for media attention) -- then the danger now exists that the anti-Sanders people themselves are becoming the unthinking bullies who have stopped paying attention to the bigger picture.

Put differently, if even I now find myself feeling sympathy for Sanders, maybe it is time for a recalibration of the debate among those who want Donald Trump out of the Oval Office.

Wednesday, April 10, 2019

Why is the Constitution Authoritative?

by Michael C. Dorf

I was recently asked by a Minnesota high school student to contribute a short essay to a website on which legal scholars and judges answer the following question: "What is the most important aspect of the constitution that is not commonly known across America?" I have reproduced my answer after the jump. As a postscript, I include a few comments on the project as a whole and some of the other contributions.

Tuesday, April 09, 2019

Muslims, Buddhists, Equality, and Time

by Michael C. Dorf

In February, the Supreme Court reversed a decision of the Eleventh Circuit, which had stayed the execution of a Muslim inmate whose request for an imam to be by his side in the execution chamber in light of the fact that the Alabama prison regularly allows a Christian chaplain to accompany Christian inmates.  The vote was 5-4. In March, the Court granted a stay to a prisoner who sought the accompaniment of a Buddhist spiritual adviser in the death chamber, given that Texas allows Christian or Muslim spiritual advisers. The vote was (apparently)* 7-2. Chief Justice Roberts and Justices Alito and Kavanaugh voted against the Muslim inmate in February but (apparently)* for the Buddhist inmate in March. What explains the difference?

One possibility is religious bias. Maybe the justices who changed their votes like Buddhists but dislike Muslims. And maybe Justices Thomas and Gorsuch, who voted against both inmates, dislike both Buddhists and Muslims, while Justices Ginsburg, Breyer, Sotomayor, and Kagan like both. I have no reason to accuse any of the Justices of religious bias, however, and Kavanaugh's concurrence in the Buddhist case expressly condemns discrimination against any particular religion as inconsistent with the Court's precedents.

The only stated explanation for the switch comes in a footnote in Kavanaugh's concurrence in the Buddhist case. He says there: "Under all the circumstances of this case, I conclude that [the Buddhist prisoner] made his request to the State in a sufficiently timely manner, one month before the scheduled execution." In the Muslim prisoner's case, the Court cited the "last-minute" nature of the request--only ten days before the scheduled execution--as a reason for its action. However, as Justice Kagan explained in her dissent in that case, that was only five days after the Muslim inmate's request was denied.

It's possible that the justices who switched saw the timing issue in the two cases as very different. But it's hardly clear why they should have. Indeed, the juxtaposition of the two cases is especially puzzling given their respective procedural postures. Whenever the Supreme Court is asked to provide interim relief, the burden is on the party seeking a reversal of the lower court ruling. Yet the Court granted relief from a stay of execution to the state authorities in the Muslim case and overrode the lower court's denial of relief in the Buddhist case. Had the Court simply favored the status quo, it would have ruled in favor of the Muslim inmate and against the Buddhist inmate. The fact that it did the exact opposite suggests that the justices who flipped must have thought the Buddhist inmate's case was much stronger. And yet the timing difference does not seem to be very great.

Monday, April 08, 2019

In Which I Become Florida Man!

by Neil H. Buchanan

I am very pleased to announce that I have accepted an offer to join the faculty at the University of Florida Levin College of Law.  Specifically, my title will be Professor of Law and James J. Freeland Eminent Scholar Chair in Taxation.  Quite a mouthful!

As Dorf on Law is mostly devoted to legal, policy, economic, and political analyses, this type of announcement is out of our norm.  But given that this blog's authors change jobs less than once per decade, none of this can be called normal.  Here, I will offer some thoughts on UF, why I am moving, and (to fulfill my need to talk about policy) some musings on the state of higher education in the United States today.

I will begin by acknowledging the 800-pound gorilla in the room, noted in the title of this column, which is the Florida Man meme.  For those readers who are blissfully unaware, for the last several years the world has been regaled with stories of the bizarre and humorous (but sometimes deadly and serious) things that make the news in pieces that begin: "Florida man arrested for ..."  This includes throwing a baby gator through a drive-thru window as well as quite a bit of situationally unexpected nudity.  Browse for yourselves.  It is a wondrously weird place.

Indeed, several years ago, in one of my columns discussing home ownership versus renting, I announced that I was buying a house (which was actually consistent with my argument that renting should be the rebuttable presumption, but it nonetheless felt inconsistent).  Joking that I must be talking about some other Neil Buchanan, I provided a link to a website with information about a different Neil Buchanan (not just a different Neil Buchanan but another Neil H. Buchanan), shown in a mugshot.  Guess what state he is from?

Friday, April 05, 2019

The Establishment's Obsession with Joe Biden

by Neil H. Buchanan

Amid the now-standard cacophony that defines the Trump era, arguably the story of the week has been the debate among Democrats and other Trump opposers about Joe Biden's "touching problem."  Even with the continuing realization that Trump's attorney general is trying to whitewash and bury the Mueller report, with House Democrats finally demanding that Treasury turn over Trump's tax returns, and with Trump embarrassingly backtracking on health care and on his absurd idea to immediately close the Mexican - US border (now having issued a "one-year warning" instead), it seems that most discussion was about Biden instead.

To be clear, I am not suggesting that this is a bad thing, in the style of people saying, "Gee, with all of the real and serious problems in the world, we're focused on this?!"  Quite the opposite, I think it is important to note that we now take the Biden issues seriously enough that the discussion can actually crowd out those other issues (and many more).  Attempts to quickly brush this away -- "He didn't mean anything by it, so get over it" -- are not working, which is a good sign.

Here, I want to look at the Biden story and what it says about the early stages of the 2020 Democratic presidential nominating race.  One could justify the focus on Biden by pointing out that he comfortably leads public opinion polls among Democrats by a large margin, but frankly that means nothing at this stage.  It is interesting instead to look at why the people who view themselves as the establishment (even though they would surely resist that loaded term) are trying to promote Biden (while, not at all unrelatedly, disparaging Bernie Sanders, although that discussion is for another day).

The obsessive defense of Biden is at least cynical and quite likely self-defeating for those who think that "we have to choose the one who can win."

Thursday, April 04, 2019

Facial and As-Applied Cruelty

by Michael C. Dorf

On Monday, in Bucklew v. Precythe, the SCOTUS rejected an Eighth Amendment claim by a condemned Missouri man who argued that although the state's execution protocol was not cruel in general, it would be cruel as applied to him, because vascular tumors in his head, neck, and throat could hemorrhage or rupture during the execution, leading to "prolonged" excruciating pain. Writing for the 5-4 majority, Justice Gorsuch sounded three main themes.

(1) Throughout the opinion, Gorsuch all but accuses petitioner Bucklew and his attorneys of bad faith. Although Bucklew committed his crimes in 1996 and exhausted his direct appeals and habeas challenges "more than a decade ago," the opinion states, "since then he has managed to secure delay through lawsuit after lawsuit." Given the very substantial skepticism with which the majority views Bucklew's entire case and death penalty litigation more broadly, it is probably not surprising that other aspects of the opinion (which I discuss after the jump) are less than fully persuasive. The Roberts Court views cases challenging methods of execution as a means of circumventing doctrines that generally permit the death penalty, and so will do whatever it can to knock down such challenges.

Wednesday, April 03, 2019

When Do Two Wrongs Make a Right?

by Michael C. Dorf

In my Verdict column last week, I discussed the seeming premises behind the questions that Justice Thomas asked during the recent oral argument in Flowers v. Mississippi. The case raises questions about a prosecutor's racially discriminatory use of peremptory challenges to African American jurors. At the very end of the argument, Justice Thomas asked whether defense counsel used her peremptory challenges in a manner that discriminated against white jurors.

As I discuss in the column, that was an odd question. My colleague Prof Sheri Johnson--who argued the case for Flowers in the Supreme Court--quickly answered that no issue of improper conduct by defense counsel was presented as the case came before the SCOTUS. With an assist from Justice Sotomayor, she also explained that it was, in any event, impossible to say that defense counsel engaged in race discrimination, because, with one exception, she only had the opportunity to use peremptory challenges against white jurors.

I conclude the column by arguing that, even if there were race discrimination by defense counsel, that would hardly cancel out the race discrimination by the prosecutor. That should be especially true for someone like Justice Thomas, whose votes in favor of "color-blindness" in affirmative action cases categorically reject any notion that disadvantaging one racial group can make up for disadvantaging another. But the point seems true more generally. As the adage goes, "two wrongs don't make a right."

And yet, sometimes they seem to. Here I want to say a few words about the interaction of the two-wrongs principle and the doctrine of unclean hands.

Tuesday, April 02, 2019

The Don't-Worry-Be-Happy Response to Trump's Threats to Democracy

by Neil H. Buchanan

One of the metaphors that occasionally tips into overuse in US political discourse is the hair-on-fire formulation, as in, "I was running around with my hair on fire in 2003, telling everyone that the intel on weapons of mass destruction was wrong!"  The phrase certainly paints a picture, but as Orwell warned, even effective imagery can die from excessive exposure.

Although that phrase is not currently suffering from overwork, I will nonetheless merely suggest here that I have been rushing about with my follicles aflame for about three years now, warning of the threat to constitutional democracy that Donald Trump and the current version of the Republican Party represent.  My current stint in the UK and Europe has involved delivering a series of lectures that expand on the point that I sketched out in my February 5 Dorf on Law column, "Is the Rule of Law More Important Than Breathing?"

My argument is that we have reached a point in time where we can no longer imagine that the institutions of our liberal democratic order are essentially self-enforcing.  They never were, of course, but when social and political norms allow everyone to take for granted that there are many things that simply are not done, it is easy to lapse into the comforting notion that no threat is truly existential.  Here, I will explain why this one is.

Monday, April 01, 2019

Trump Sues to Block "Are You Smarter Than Trump?"

by Michael C. Dorf

After Nickelodeon revived the former Fox show Are You Smarter Than a Fifth Grader? in February, it should not have come as a surprise when Comedy Central announced next week's scheduled premiere of its spinoff Are You Smarter Than Donald Trump?. The concept is straightforward. Host Steve Harvey will ask contestants questions to which Trump does not know the answer.

I know what you're thinking: that hardly narrows things down. But as the promotional material makes clear, for a question to appear on Are You Smarter Than Donald Trump?, it's not enough that Trump certainly doesn't know the answer; he must have publicly espoused the wrong answer at some point.

Excited prospective viewers have been wondering what questions will be asked. Will contestants need to know whether Nambia is a real (shithole) country? Will they be asked how many Articles the Constitution contains? The difference between counsel and council? Where to buy the best covfefe in Seattle? With so much material in the bank and no sign that Trump's "very very large brain" will stop producing new head-scratchers anytime soon, it is easy to imagine a successful multi-season run for Are You Smarter Than Donald Trump?.

Or at least it was until late last week, when Trump's lawyers filed a lawsuit on behalf of the president seeking "declaratory, injunctive, and monetary relief" against Viacom, the parent company of both Nickelodeon and Comedy Central. In apparent recognition that, despite the best efforts of Justice Clarence Thomas, the nation's libel laws have not yet been "opened up," Trump's lawsuit does not argue that Are You Smarter Than Donald Trump? is defamatory. Rather, the lawsuit claims that Viacom has violated Trump's right of publicity. It argues that the First Amendment, as construed by the SCOTUS in the famous Human Cannonball Case, permits such a cause of action, at least in some circumstances.