Friday, January 17, 2020

Does "Okay Boomer" Create a Hostile Work Environment Based on Age?

by Michael C. Dorf

During Wednesday's oral argument in Babb v. Wilkie, Chief Justice Roberts elicited laughter from the courtroom audience when he asked Roman Martinez, the lawyer for petitioner Noris Babb, whether one recitation of the phrase "okay Boomer" directed at an older person in the course of a weeks-long employment decision process would be actionable under the Age Discrimination in Employment Act (ADEA). There ensued a back-and-forth in which the Chief Justice sounded incredulous: "So calling somebody a 'boomer' and considering them for a position would be actionable?," he asked. Martinez did not directly answer the question, instead settling eventually on a reformulation of his core position in the case: "if the fact finder were to conclude that that statement . . . was one of the factors going into" the employment decision, then yes, he said, liability would follow.

At issue in Babb is whether a plaintiff alleging age discrimination under the federal sector provision of the ADEA must show that consideration of the plaintiff's age was a but-for cause of an adverse employment decision (as the Solicitor General argues), or whether it suffices for the plaintiff to show that age was a "motivating factor," as Babb's attorneys argue, drawing on a test taken from the Title VII context. The underlying statutory and case-law context is complex. The outcome in the case may turn on how the specific statutory language on which Babb relies--"free from any discrimination based on age"--interacts with the constitutional requirement of equal protection, other anti-discrimination provisions Congress has enacted, and the case law construing them. Readers looking for a good summary may wish to consult this explainer by attorney Dan Kohrman. Although Kohrman works for AARP, on whose behalf he submitted an amicus brief in support of petitioner Babb, the explainer is fairly neutral.

I won't directly address the merits of Babb. Instead, I want to linger over the Chief Justice's question and the unspoken premise that he and those in the audience who laughed at his "okay Boomer" line share.

Thursday, January 16, 2020

What Effect Do the Non-Debates Have on a Political System that is Near Death?

Note to readers: My new Verdict column, "The Intra-Party Fight Among the Democratic Candidates Is Necessary and Healthy," was published this morning.  My column here addresses a related but separate set of issues regarding the Democratic presidential nominating process.


Neil H. Buchanan

Apparently, at least to read some of the pundits on the op-ed page of The New York Times, "the women" either won the most recent Democratic non-debate or at least had some good moments.  Times columnist Frank Bruni, who has carved out a career as that newspaper's almost deliberately uninteresting liberalish lightweight, titled his column "Warren and Klobuchar Teach the Boys a Lesson."  Gail Collins, who is decidedly more interesting than Bruni (when not making offensively lighthearted jokes about Mitt Romney's former family dog), wrote about "Some Wins for the Women."

As a feminist (although I concede that not all versions of feminism consider it possible for men to be feminists at all), this ought to be good news to me.  And it is, I guess.  No matter how low my opinion is of any particular source, those two authors have large readerships, and it is good that this is apparently where we were led by the whole contrived blowup over whether Bernie Sanders said that a woman cannot be elected president or instead said/meant something more nuanced.  As someone who has endorsed Elizabeth Warren for president, I take this as a pleasant surprise.

Why, then, do I so often wish that they would stop staging these events?  And is my reaction to the non-debates actually about the events themselves, or is there something more deeply dysfunctional about the whole politico-media complex at work?

Wednesday, January 15, 2020

Is an iPhone Backdoor Key Really More Dangerous than Other Sensitive Information?

by Michael C. Dorf

Nearly four years ago, the government sought to compel Apple to provide assistance in breaking the encryption of an iPhone. Apple resisted on legal and policy grounds. I analyzed Apple's legal argument at the time and concluded based on a SCOTUS precedent construing the All Writs Act that Apple would probably lose. I did not at the time address Apple's policy argument. I wrote:
Apple argues that orders such as this--that Apple "hack" one of its customers' phones--will, in the long run, do more harm than good. Apple and its various defenders across the tech and civil liberties world argue that a technology developed for the laudable purpose of breaking encryption on a terrorist's phone could leak into the hands of hackers and other bad actors (including other terrorists). In other words, Apple is not simply saying that privacy should prevail over security (although it is certainly saying that pretty loudly), but also that this sort of order would undermine security.
The 2016 impasse between Apple and the US government was obviated when the government cracked the security of the iPhone in question using the assistance of a third-party firm, but since then Apple has improved the iPhone's security, so the government is once again seeking Apple's aid. Apple has apparently provided iCloud backup material but once again resists creating a backdoor key for its phone on the ground that it could fall into the wrong hands.

When discussing the matter in 2016, I confessed that I did not have "a well-informed view about the merits of" the privacy policy question. I still don't, but that won't prevent me from offering a thought about the core risk here. The thought--which I'll briefly elaborate below--is that the risks posed by Apple's cooperation here do not differ in kind from other risks that sensitive information might be lost or stolen.

Tuesday, January 14, 2020

Possible Paths to Constitutional Redemption

by Neil H. Buchanan

For the past few years, I have been relentlessly -- some might say obsessively -- sounding the alarm about Donald Trump's threat to the rule of law.  Although many people agree (and how could they not?) that he has no respect for the Constitution or any other sources of law, there has been much more resistance to my prediction that Trump will refuse to accept the results of the 2020 election when he loses.  That refusal, to be clear, will take the form of Trump simply declaring himself the winner and Republicans agreeing with him and allowing the coup to happen.

Again, frequent readers of my columns know that I have returned to this theme many times.  (See, e.g., here.)  I have never denied that this is an extreme prediction, but sometimes the most awful outcome is also the most likely.  In any case, now having made that argument many times in many different ways, my resolution for 2020 is to try to describe how the future might play out given that Trump and the Republicans show ever decreasing signs of caring about anything other than his remaining in the White House.  What might happen to Democrats, public employees, schools, women, academia, the environment, racial and ethnic minorities, workers, and so on, in a post-constitutional world?

Those are the subjects of future columns.  But perhaps most importantly, it is useful to think about how we might eventually come back from this terrifying turn in American and world history.

A friend of mine recently suggested that the only hope for constitutional redemption would be for Trump to win (fairly) in 2020 and then succumb to ill health almost immediately thereafter.  Only then, she says, might there be a possibility of rebirth.  Below, I will explain my friend's highly plausible argument and then explain why I think that it does not quite get at the depth of the problem that Trump and the current Republican Party pose to the world.

Monday, January 13, 2020

Supreme Overreaching: The Justices Should Return Gun Control, Affirmative Action, and Abortion to the States

By Eric Segall

President Trump successfully made the Supreme Court an important election year issue in 2016, and he is likely to do so again in 2020. This strategy works because for a long time the Justices have improperly placed themselves in the middle of many of our most important political, social, and cultural disputes. But elections shouldn’t be about judges, and courts shouldn’t be this important. 

Friday, January 10, 2020

No, Impeachment Still Does Not Require a Predicate Crime

by Neil H. Buchanan

The impeachment of Donald Trump briefly receded from public discussion, but it is unsurprisingly returning to the spotlight as Mitch McConnell dances his way toward a sham trial and Nancy Pelosi tries to use her leverage to minimize the damage from McConnell's gyrations.

One argument that one would have thought was settled is the claim by Trump backers that the House's two articles of impeachment are illegitimate because they do not describe any crimes.  But, as Professor Dorf put it recently: "Republicans have argued and will continue to argue to the uninformed public that only statutory criminal acts warrant impeachment."

To be clear, when I say that this issue ought to have been deemed "settled," I do not imagine that it is something that Trump's cult would concede.  Just as they and their ideological compatriots in Australia manage to ignore all evidence and reasoning to continue to deny the reality of human-caused climate change, and just as they cling to conspiracy theories about Ukraine and Hunter Biden (as well as other conspiracy theories about Hillary Clinton, voter fraud, and on and on), Republicans are fully capable of repeating again and again "no crime" as if that were somehow relevant.

It is, however, surprising when credentialed academics join in that kind of madness.  Earlier this week, a professor at a top-ranked law school co-authored (with one of his third-year students) an essay on Verdict purporting to prove that in fact "Impeachment of the President Normally Requires a Crime."

As I will discuss below, I have a great deal of sympathy for people who make arguments to challenge a consensus view.   The line between consensus (a valuable meeting of minds) and conventional wisdom (closed-minded groupthink) can be blurry, and in any event, one of the things that academics most assuredly should feel free to do is to make unsettling arguments.

But they have to be good arguments.  Ahem.

Thursday, January 09, 2020

Writing Legal and Policy Analysis at an Insane Moment in History

by Neil H. Buchanan

Other than a Dorf on Law "classic" column that ran last Friday, this is my first column of 2020.  I certainly hope that everyone comes into the new year with happy memories from end-of-year celebrations and with confidence that the coming year will see marked improvements in the world.

On that latter point, however, I cannot muster much hope that things are even going to stay the same, much less improve.  And Donald Trump's insane and illegal warmongering and baiting of Iran to start the year -- notwithstanding the happy news that we apparently are not headed into the full-on war that seemed likely only a day or two ago -- certainly eliminated any thought that the world will seem less terrifying than it has since November 8, 2016.

What to do when each day seems certain to present us with terrifying news, and when the press's largely incompetent minute-by-minute coverage of an erratic president and his sycophantic party only serves to embolden them?  Earlier this week, Professor Dorf described his own decision to try to disengage a bit from the insanity of up-to-the-moment news coverage.  He did this not only as a needed mental health strategy but also to give him time to think and write about other topics.  I applaud him for that decision.

Can I do the same?

Wednesday, January 08, 2020

Trump is Awful, But the Suleimani Killing is not Distinctly Trumpian

by Michael C. Dorf

The coverage of Donald Trump's decision to kill Qassim Suleimani with a drone strike at the Baghdad airport without the consent of the Iraqi government has been mostly highly critical--and with good reason. Here's my "unrolled Twitter thread" from a few days ago, when, in the immediate wake of the killing, I questioned both the stated rationale for it and a couple of potential alternative ones. Questioning the stated rationale turns out to have been sound, because when asked yesterday what specific attacks Suleimani was planning, Secretary of State Mike Pompeo gave no answer. In President Trump's statement today, he recited Suleimani's past acts but did not refer to anything concrete in the works, much less explain how killing a general would stop an operation that was going to be carried out by others.

I also stand by my other criticisms of killing Suleimani as likely to be counterproductive to any rational conception of US strategic interests in the Middle East. To be sure, I can imagine a scenario in which it accidentally plays out for the better: perhaps the Iraqi government will follow through on its resolution to expel US troops and that will end up being a reason to bring them home; that would, to be sure, cede Iraq to Iran, but the costs of maintaining even a relatively small force in Iraq are very substantial, as the value they provide in fighting the remnants of ISIS and the added security and counterweight they provide relative to Iran must be balanced against their tendency to antagonize many Iraqis and others.

To be clear, I don't think that withdrawal of US troops in response to an Iraqi order or the Iranian ballistic missile shots would necessarily be a good outcome, as it would, among other things, betray the Kurds yet again, this time in Iraqi Kurdistan, but there is enough uncertainty and volatility to lead me to think that while Trump's decision was terrible, it could work out all right--much in the way that buying lottery tickets is a stupid investment, even though it will sometimes work out well.

To be clear about why the decision to kill Suleimani was bad, it's useful to note how the various press reports have portrayed it as extreme. They note that the military advisers who included killing Suleimani on a list of options given Trump were shocked that he selected it and that Presidents Bush and Obama as well as Israeli PM Netanyahu had all rejected killing Suleimani (who was not exactly hiding) as likely too inflammatory and, depending on the circumstances, potentially a violation of international law.

Yet if the killing of Suleimani was too extreme and risky for Bush, Obama, and Netanyahu, it does not follow that the drone strike was distinctly Trumpian. It was the sort of move that a distinct wing of the GOP--the neocons who brought us the Iraq War--has been seeking for years. Now-sainted John McCain was nominally joking when, in response to a question in 2007, he sang "bomb bomb Iran" to the tune of "Barbara Ann," but he spoke for a view within the GOP that has had and retains substantial support both inside and outside the Trump Administration.

Tuesday, January 07, 2020

A Nice Place to Live, But You Wouldn't Want to Visit

by Michael C. Dorf

Yesterday, U Penn Law Professor Tess Wilkinson-Ryan published a courageous essay in which she  describes her experience as a visiting professor at Stanford, Harvard, and NYU. She went to each school (for varying lengths of time) in the hope of landing a lateral offer, only to be rejected. The essay is courageous because it tells a personal story of failure. It is very valuable, because it exposes various dysfunctions of the visit-before-you-get-hired system, including the important ways in which it is gendered. Prof Wilkinson-Ryan explains both the obvious way--women tend to have more family obligations and partners who have more difficulty relocating for 4 to 8 months--and the less obvious way--the performance expectations for female faculty are different in a way that recalls the familiar double-bind women face in various workplaces: come on too strong and you're not sufficiently female; otherwise, be seen as not sufficiently rigorous and smart.

Accordingly, I highly recommend Prof Wilkinson-Ryan's essay. It speaks to a particular problem in legal academia and some other academic disciplines but also to a wide variety of human experience, both in the workplace and beyond. Here I want to add three complementary thoughts.

Monday, January 06, 2020

New Year's Resolution: Pay Less Attention to the Latest News

by Michael C. Dorf

Among my resolutions for 2020--both personally and professionally--is to pay less attention to the latest news, especially horse-racy political news. As a personal matter, such a resolution is probably a good idea for just about everyone who has felt drained by the seemingly never-ending escalation of outrages since 2016. Mental health professionals have been advising that we not exactly tune out but that we try to focus on what really matters. That strikes me as very sound advice, even if I often fail to follow it.

On the personal side, avoiding media (especially including social media) that fan the flames of outrage is a good idea but probably not sufficient to prevent mental exhaustion/depression/anxiety. Even relatively sedate shows like NPR's Politics Podcast encourage an obsession with political ephemera. I've been a listener since it launched. As a New Year's resolution, I'm going to skip it most of the time it shows up in my NPR One feed. That's a baby step, to be sure, but one that I hope to combine with other baby steps, like not reading Twitter or Facebook threads that focus on questions that are probably unanswerable in real time or that simply generate outrage for which there is no productive outlet.

Moving away from political ephemera is valuable in its own right, but it should also free up time and mental energy to focus on other, more rewarding and worthwhile matters. For me, that will mean reading more books and long-form scholarship, while reading fewer stories about politics, broadly defined, including some important news items that are not purely political.

Friday, January 03, 2020

Corporations and Speech (A *Dorf on Law* Classic, with a new preface)

By Michael C. Dorf

Preface: Below is another in our series of winter break reruns. I'll briefly introduce it by noting that as we begin a new decade (at least so far as naming goes it's now the 20s), I tried to think back on the last one. In a recent post, Prof Segall identified Citizens United v. FEC as one of the top five most important SCOTUS cases of the last decade. I agree. It also came very early in the decade. Accordingly, I thought this a good time to revisit it.

In the short essay below, I argued that the best objection to the case was not that afforded corporations free speech rights--which was already the position the law took. In other writing (such as this column first published on January 25, 2010), I would develop the idea (which was hardly mine alone) that the real sin of Citizens United was its far too narrow understanding of corruption. In retrospect, I don't think we can say that all or even most of our current political woes are the result of Citizens United alone; but it certainly exacerbated other dysfunctional elements of our political system. Okay, the rest comes from an essay originally published on January 21, 2010, a few hours after the ruling was handed down:

Thursday, January 02, 2020

Is the Rule of Law More Important Than Breathing? (A Dorf on Law Classic)

Note to readers: With the holiday break still upon us, I hereby offer another "classic" column -- OK, a rerun.  This column first ran on February 5, 2019, and it captures an important turn in my thinking about the relative importance of the various existential threats facing the world.  I cannot say "Enjoy!" without a huge dollop of irony.  I do, however, hope that it will be a useful re-read for those who saw it when it first ran and a thought-provoking piece for those who missed it.


by Neil H. Buchanan

Public debates frequently invoke -- in deeply somber tones meant to convey the utmost seriousness of purpose -- the interests of future generations.  "Our children and grandchildren" are the ultimate political prop, favored because they seem so vulnerable and deserving of our protection.

Despite my disparaging tone, I do not at all disagree that we should think about the interests of people in the future when we make public policies.  My cynicism is driven by the blatant dishonesty of so many people who use future generations to justify their agendas, the most obvious being conservative politicians who claim that "we must not pile debt on the backs" of the kids as an excuse for taking away funding for, say, education or early childhood health care.  (No, that is not a fanciful example.  I wish it were.)

There are, however, honest and selfless reasons to adjust our policies to enhance the interests of future generations -- not just the immediately succeeding generations whom we will know and with whom we must coexist at least for a time, but also for generations much further down the road.  Although the philosophical arguments supporting such a long-term obligation are surprisingly tentative (as I explained in a long law review article some years ago), at least in some policy contexts it is easy to motivate concerns for future generations.

The most obvious interest that all generations share, one would think, is to preserve the environment so that all people can live long and healthy lives.  What in the world was I thinking, then, when I wrote last week that "if push comes to shove, democracy and the rule of law must come" before environmental protection?  Can that possibly make sense?