Monday, July 22, 2019

Should Congress Codify the Dormant Commerce Clause?

by Michael C. Dorf

On Thursday of next week, I shall participate (as I have since its inception two decades ago) in the annual Practicing Law Institute Supreme Court Review. As always, it's a star-studded cast. Tickets for the live full-day panel, whether in-person in NYC, at a groupcast location, or via your computer, are still available. (I don't get a cut of the door; we panelists all volunteer our time.)

I'll be on just about all of the panels, mostly discussing cases that I've blogged or written Verdict columns about already, but invariably something falls through the cracks. Accordingly, today's entry discusses a case that involved the intersection of the 21st Amendment and the Dormant Commerce Clause. In the next two installments of my preview of the Review, I'll say something about the Establishment Clause case involving the "Bladensburg Peace Cross" (beyond what I wrote here and here), and I'll also provide my take on the Term as a whole.

But for now I want to say a few words about Tennessee Wine & Spirits Retailers Ass'n v. Thomas. After a very brief summary of the facts and holding, I'll turn to a questionable assertion by the majority in support of a proposition with which I ultimately agree.

Friday, July 19, 2019

Remembering Justice Stevens

by Anne M. Voigts

The difficulty in writing about the life of someone like Justice John Paul Stevens is in knowing where to start.  He led an exceptionally full life, and those of us who were lucky to share some part of that life for one Supreme Court term were in awe of his energy, and kindness, and humility (if not his notoriously spartan lunches).

Others will write about his opinions in cases like Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., or Bush v. Gore, but one far less prominent case embodies his fundamental decency and compassion.

Thursday, July 18, 2019

The Disconcerting Many-Worlds Theory

by Michael C. Dorf

The Supreme Court Term is over, while the new one hasn't begun. There's plenty of legal news to blog about, most of it terrible, but it's summer, and I need a break. Hence, today I shall discuss a topic unrelated to law: How should I feel about an infinite multiverse? I realize that's a bizarre question, so I'll begin with the backstory of how I got interested in it.

Wednesday, July 17, 2019

Why Trump's Latest Outrage Struck a Nerve

by Michael C. Dorf

[Note: In the next several days, I shall post a remembrance of retired Justice John Paul Stevens, who passed away last night. He was a great and a good man. For now, though, here's more on our racist president.]

In an excellent and sobering blog post on Monday, Prof Martin Lederman described Donald Trump's tweets urging four Congresswomen, three of whom were born in the US, to go back to where they came from, as nothing new about Trump's character. As Prof Lederman has argued in other fora as well, what's so alarming is not Trump but the failure of all but a handful of never-Trump Republicans and conservatives to unequivocally condemn the president's racism.

I don't disagree with Prof Lederman that Trump's enablers are the real story, but I want to suggest that there is something new here--not because it will lead Trump's devotees to abandon him, but because this latest outrage from the Outrager in Chief is personal for more people than nearly all of his prior outrages were.

Tuesday, July 16, 2019

Civilization and Taxes, Through an English Lens

by Neil H. Buchanan

Because of travel commitments, I regret to report that I am not able to offer readers a new column here on Dorf on Law today.  (With the latest racist rants coming out of the White House, perhaps it is better for my mental health not to engage for the time being.)  I did, however, recently publish my annual "jot," which is an essay for the online legal magazine "JOTWELL -- The Journal of Things We Like (Lots)."

This year's jot is titled "The Law of Taxation Is the Lynchpin of Civilization," in which I review the introductory chapter of a book edited by John Snape and Dominic de Cogan, two tax scholars from English universities (Warwick and Cambridge, respectively).  Although the book that their chapter introduces is excellent on its own merits, the Snape/de Cogan lead-in is truly outstanding and easily stands on its own as a contribution to knowledge.  I like it (lots), and I commend it to readers' attention.

One quick thought comes to mind, inspired by the now-standard "full disclosure" statement.  I have had some early discussions with Snape and de Cogan regarding possible academic collaborations of various sorts.  In some sense, then, one could say that my positive review of their work on Jotwell (and here) is a bit of an "inside job," that is, a glowing assessment not based on the merits of their work but on a personal connection.  To draw such a conclusion, however, would be incorrect.

Such an inference is, in fact, a classic example of reverse causality.  That is, it is not that I am reviewing Snape and de Cogan positively because I am planning to work with them; rather, I am excited to work with them because I view their work so positively.  Indeed, frequent readers of this blog are likely to note that Snape and de Cogan have independently written about many of the issues that have consumed my attention over the years.  Combining our efforts is thus eminently sensible.

In any event, the "jot" can be found at this link, and I am also providing it here for the convenience of our readers.  Enjoy!

Monday, July 15, 2019

Ted Cruz and Other Right-Wing Trolls Say that Democrats are the Real Racists Because They Used to Be

by Michael C. Dorf


Last week, Tennessee Governor Bill Lee took bipartisan heat for signing a proclamation declaring July 13 "Nathan Bedford Forrest Day." Did Lee deserve the criticism? Maybe not. A state law obligates the governor to declare holidays honoring, respectively, Forrest, Confederate General Robert E. Lee, and Confederate Decoration Day. Yet Governor Lee is not entirely blameless. Given his own past expressions of admiration for the Confederacy, he could certainly be doing more to secure passage of a new law repealing the existing obligation to declare the offensive holidays.

But let us put Lee aside for the moment to focus on one of his critics. Texas Senator Ted Cruz took to Twitter to call out Lee and Tennessee legislators. Cruz tweeted:
This is WRONG. Nathan Bedford Forrest was a Confederate general & a delegate to the 1868 Democratic Convention. He was also a slave trader & the 1st Grand Wizard of the KKK. Tennessee should not have an official day (tomorrow) honoring him. Change the law.
I agree with nearly all of that. Why only nearly all? Because in the midst of an otherwise quite sensible anti-racist plea, Cruz could not resist trolling Democrats. Of what possible significance is it that Forrest was a delegate to the 1868 Democratic Convention? The slogan of that convention was: "This is a White Man's Country, Let White Men Rule." Perhaps Cruz was referring to that?

Not a chance. How many of Cruz's Twitter followers or Americans more generally are sufficiently familiar with the history of the period to know the 1868 Democratic convention's slogan or anything at all about it? Can you name the Democratic nominee for the presidency in 1868? (Answer here.)

So why did Cruz list Forrest's status as a delegate to the 1868 Democratic Convention alongside sins like his role in the Klan? The short answer is that Cruz was engaging in a now-common bit of misdirection from Republicans: calling attention to the fact that prior to the mid-1960s, the Republican Party was overall less hostile to civil rights and less racist than the Democratic Party--as though that should somehow discredit the modern Democratic Party. This move seems aimed at two audiences: easily confused low-information voters; and white voters who would otherwise be uneasy about the GOP's arguably racist policies and the inarguably racist president.

Friday, July 12, 2019

Constitutional Crisis Watch: Any Reasons for Optimism?

by Neil H. Buchanan

As the unraveling of constitutional norms continues apace under Donald Trump's unfocused gaze, the toadying by Trump's Republican enablers has caused me to wonder whether there is anything that would be too much for them.  In particular, frequent readers of this blog and of my columns on Verdict know that I am worried to the point of panic about whether Trump will ever leave office peacefully.

Although there is no reason to take Trump's former private lawyer/fixer Michael Cohen's legal views seriously, I do think that he had no reason to simply fabricate the idea (based on his observations of Trump, not on any legal theory) that if Trump "loses the election in 2020, ... there will never be a peaceful transition of power."  Certainly, everything that we have seen from Trump indicates that he would not hesitate to try to stay in the White House at any cost; and what we have seen from the Republicans to date suggests that, if they do have a limit to their enabling of Trump, we have not approached that limit yet.

Even so, in a search for even the thinnest of optimistic reeds, I have been trying to find ways to see a way forward in which Trump loses and leaves office without (too much of) a fuss.  Thus, three weeks ago, I tried my very best to describe a way in which Republicans might be "working Trump" behind the scenes, derailing his worst impulses (for example, forcing him to drop his efforts to put Stephen Moore and Herman Cain on the Federal Reserve Board), thus allowing us to think that perhaps they are exercising more control than is apparent to the naked eye.

Today, I offer an update on these matters, responding specifically to one very bad argument for optimism and one possibly good one.  In an environment where all can seem lost, even a little bit of ambiguously good news is welcome, as I will argue below.

Thursday, July 11, 2019

With the Efficiency Trope Exposed as a Fraud, Can We Say Anything Objective About Economic Analysis?

by Neil H. Buchanan

[Note to readers: My latest Verdict column, "Constitutional Democracy, Trust, and Self-Restraint: The Destructive Consequences of Republicans’ Opportunism," is available now.  My column below returns to a very different topic.]

On some level, I suspect that almost everyone hopes to find objective, uncontroversial bases on which to build their arguments.  Beginning a discussion with a phrase like "I think we can at least all agree that ..." might sometimes be a manipulative and dishonest rhetorical move (designed to make an opponent look unreasonable if she objects), but it can also reflect a desire not to have everything be a matter of opinion or conflicting moral principles.

The post-World War II modernization of the academic field of economics was in large part driven by this hope.  The dominant personalities in the field, especially Paul Samuelson, had seen grand ideology deployed in horrifying ways by Nazis in Germany and Stalinists in the Soviet Union, a natural response to which was to try to turn high-stakes fields like economics into technical inquiries that appear to be immune to the ravings of madmen and monsters.

That is an admirable motivation, but as subsequent history has shown, at best the effort to dress up economics as a science has not stopped it from being turned into an excuse to ignore the plight of billions of people.  Rather than saying that some twisted version of what Marx wrote justifies openly murdering millions of one's citizens, modern economic orthodoxy is an elaborate superstructure that allows rich people to extract more and more from the non-rich and then to blame the victims for their plight.  This is unquestionably better than the alternatives that Samuelson has witnessed, but it is by no means morally neutral.

In a series of columns last month (here, here, here, and here), I criticized the concept of economic "efficiency" from various angles.  The scare quotes are necessary to emphasize that this supposedly neutral concept is ultimately a shell game that allows any minimally clever economist to claim that what he (yes, economics is still one of the most gender-unbalanced academic fields) likes is efficient and what he dislikes is inefficient.

But is that not an overstatement?  Surely, there must be some objective and neutral statements that one can make about economic policy questions that could rightly be preceded by, "I think we can at least all agree that ... ," right?  Sadly, no.

Wednesday, July 10, 2019

The Not-So-Fine-Line Between Creative Lawyering And Dishonesty

by Michael C. Dorf

My latest column on Verdict offers some thoughts on the attempted substitution of a new team of lawyers trying to defend the decision of Commerce Secretary Wilbur Ross to add a citizenship question to the 2020 US census. The column speculates along two dimensions. First, I say it is likely that the original team refused to participate further in what they regard as unethical lawyering and thus either quit or were removed. Second, I say that the original team could have objected to further participation along one or both of two grounds: (a) they did not think they could honestly say that the Ross decision was taken for any other reason than to gain partisan advantage by undercounting Democratic-leaning Latinx and other minority communities; and/or (b) they could not tell the court that sufficient time remains to print and distribute census forms with the citizenship question, given their repeated representations that June 30 was a hard deadline.

Here I want to focus on (a). In particular, I want to ask what exactly makes the task that the original Dep't of Justice lawyers might have attempted to decline so different from a task that lawyers routinely perform for clients. Before diving in, I want to acknowledge (as I do in the column) that my assumptions about what is going on within DOJ are necessarily speculative. Even if I'm mistaken about what is happening, however, the points I make here have wider application.

Tuesday, July 09, 2019

The Epstein Indictment and Statutes of Limitations

by Michael C. Dorf

The indictment of Jeffrey Epstein for sex trafficking and conspiracy to commit sex trafficking of minor girls alleges acts "from at least in or about 2002 up to and including at least in or about 2005." That is hardly the most felicitous phrase, but it fairly conveys the sense that the crimes allegedly occurred from a period roughly 14 to 17 years ago. It is possible that yesterday's discovery of a "trove of lewd photographs of girls" in a safe inside Epstein's NYC home could lead to additional charges for more recent conduct--either for possession of child pornography or for other offenses for which the photos provide evidence or leads. Even so, however, readers may be wondering how Epstein can be charged now for offenses that allegedly occurred a decade and a half ago. What about the statute of limitations?

Although the default federal statute of limitations for non-capital crimes is five years, Congress has made numerous exceptions. In 2006, it eliminated the statute of limitations entirely for child kidnapping and child sex trafficking. Per constitutional case law construing the Ex Post Facto Clauses' limits in criminal cases, it could only do so for future alleged conduct and past alleged conduct for which the statute had not yet run when Congress eliminated it. By going back only to 2002, the indictment covers most of whatever Epstein allegedly did that was still within the old five-year limit when the 2006 Act was adopted.

What should we make of the elimination of this and other statutes of limitations or of the parallel trend in recent decades to extend limitations periods (both at the state and federal levels)? The case for extension or abolition is straightforward: Those who commit heinous crimes should not be able to avoid justice by out-waiting it. That impulse is understandably especially strong with respect to minor victims, who may not have the wherewithal to come forward with charges until many years later.

But the severity of the offense is a double-edged sword.

Monday, July 08, 2019

Dick Posner: The Man Behind the Robe

By Eric Segall

Now that the Supreme Court term is over, I decided to write a personal post about a much misunderstood legal giant whom I know extremely well.

Retired Seventh Circuit Judge Richard Posner has written more than fifty books, thousands of articles and essays, and over 3,000 judicial opinions. His writings on law and economics, anti-trust, torts, constitutional law, and numerous other issues of national interest have made him “a legend of American jurisprudence.” There is no doubt that he is the most important judge in America over the last fifty years who never sat on the Supreme Court.

Much has been written, and will be written, about his storied career, which has been without a doubt polarizing. Posner’s approach to judging, an obsessive pragmatist with little use for legal doctrine, his stern questioning from the bench to shell-shocked lawyers, and his commitment to the law and economics movement in his early days as a professor and then a judge, alienated substantial numbers of legal academics, lawyers, and economists. On the other hand, others hailed him as a genius. As Lincoln Kaplan once wrote, Posner’s “approach to law, some legal scholars contend, makes the field worthy of a Nobel Prize—which he would win, many say, by acclamation….”

This essay is not, however, about Posner’s long career as a judge, academic, public intellectual and antagonist. This is a story about the man behind the “legend.” I hope I’ll be forgiven for the extremely personal nature of what follows but I know of no other way to tell this story.

Wednesday, July 03, 2019

State Court Review of Federal Constitutional Challenges to Partisan Gerrymandering

By George R. El-Khoury


In Rucho v. Common Cause, the Court held that constitutional challenges to partisan gerrymandering present a nonjusticiable political question. Merits of the case aside, I want to explore the breadth of the Ruchodecision.
Chief Justice Roberts, for the majority, cautioned that the Court’s decision didn’t “condone excessive partisan gerrymandering,” “condemn complaints about” excessive partisan gerrymandering, or preclude Congress and the States from passing legislation to reform excessive partisan gerrymandering. He surveyed legislative attempts at reform, and he used as evidence of alternatives to federal court review a Florida Supreme Court decision that struck down a map because it violated Florida state law. Nowhere did the Chief Justice suggest (or dismiss) the possibility of a state court striking down a gerrymandered map that went “too far” as a matter of federal constitutional law.
I want to explore whether a state court could do so. Ordinarily, Article III’s limits on justiciability exclusively apply to federal courts. For example, when a litigant is without standing to assert a claim in federal court, he or she may refile in state court. That’s basic enough, but the political question doctrine, although fitting within the broader category of justiciability, is different in that there may be some instances where it limits state court review and other instances where it doesn’t.  
As applied to partisan gerrymandering, I don’t believe that the political question doctrine should apply to state courts. As constitutional law, I believe such an extension would violate principles of federalism. As federal common law, such an extension would exceed the Supreme Court’s authority. 

Tuesday, July 02, 2019

Biden's Unforced Errors Keep Piling Up

by Neil H. Buchanan

In a surprise only to people with no memory, Joe Biden is turning out to be a very clumsy (at best) presidential candidate.  It is obviously far too early to say that he will definitely lose the nomination, but only a couple of months after presenting himself to America as the candidate who can assuredly win the election, he is flailing in ways that seem all too familiar.

For those of us who view Biden as unshakably tied to the triangulating business-chummy recent past of the Democratic Party, this ought to be good news.  As I wrote not long ago, even though Biden pretty much seems now to agree with the more liberal policy views that have come to define the party over the last few years, he will almost certainly end up arguing as president that "we can't go too fast, guys," and he would be likely to slow-walk policies and doom business-unfriendly ideas to paralysis-by-analysis (e.g. appointing presidential commissions or using other old political tricks).

Or, as I put it in that column, conservatives prefer Biden because, even if he sometimes talks like a liberal, they "know he will fold immediately if ever confronted by the business establishment."  And he surely will.  Liberals will vote for Biden in a general election only because years of listless timidity are better than Trump.

That is, if Biden truly is the Democrat most able to beat Trump in 2020 -- the "electable" candidate -- then all of those policy differences should melt away, and it would be truly bad news if Biden's current stumble-bum follies meant that he would never get the chance to save the world from Trumpism next year.

Yes, I am among the legions of liberals who have been skeptical of the electability trope all along -- and certainly the idea that Biden is obviously the most electable candidate -- but it is at least worth thinking about what we now know about Biden as a candidate.  What we already knew from previous campaigns is coming into better focus, and what we did not know about Biden is in many ways even more confounding.

And it is not just the tone-deafness and lack of intellectual sharpness that are at issue (although both ought to worry Biden's supporters).  As I will explain below, Biden has over the past few years even undermined his working class credentials.  One cannot help but wonder again and again: What is he thinking?

Monday, July 01, 2019

Pretext and Remedy in the Census Case and Beyond

by Michael C. Dorf (cross-posted on Take Care)

Here is (a slightly cleaned up version of) what I tweeted in the minutes after I quickly read the Supreme Court's census opinion on Thursday of last week:
Chief Justice Roberts acknowledges the very strong evidence that enforcement of the Voting Rights Act was not the real reason for Trump/Ross adding the citizenship question to the 2020 census. So the Court approves the remand to the agency. That's good. But it is not clear what happens next. When a court remands a case to an agency because the agency did not comply with proper procedures, the agency is permitted to reach the same conclusion by dotting the i's and crossing the t's. 
Pretext is different, however. The Roberts opinion already says that the agency COULD have added the citizenship question for legitimate reasons. And we can be sure that the Trump administration will claim to be doing just that. But EVERYONE KNOWS that the political impact will still be the real reason. 
Based on the Travel Ban litigation, there is reason to fear that the SCOTUS will uphold the citizenship question after the administration "lawyers it up" better. The main difference is that in the Travel Ban case, the Court never actually found pretext. Here it has. And while an otherwise legitimate decision found to be pretextual should not be forever barred, where only a few months (at most) will pass, and the motives remain the same, a new determination to include the citizenship question should be viewed with extreme skepticism.
After a couple of disclaimers about timing that are specific to this particular case, I want to say a few words about a general remedial problem posed by any rule of law that says that an action that could be lawfully taken for some reasons cannot be taken for some other reasons.