Showing posts from 2019

Federal Courts Exam 2019: Sorry, No Fake Tweets on this One

by Michael C. Dorf Per my custom this time of year, I provide below my Federal Courts exam. I apologized to my students that it is not as funny as some of my prior ones, although I think the issues it raises are just as challenging and important as those raised by prior exams.  I did not have the urge this time to create a fake Trump tweet. Students were given 8 hours to complete the open-book take-home exam. As usual, blog readers should feel free to submit answers (which I won't grade) in the comments.

Trump's Snowflake Voters (A Dorf on Law Classic)

Note to readers: This is the first of this year's "classic" columns, i.e., an opportunity for Dorf on Law to take a break for the holidays while giving interested readers an opportunity to read some of our favorite recent columns.  This piece was first published on January 27, 2017, a week into Donald Trump's presidency.  Although I believe that it holds up rather well, I will note that the sixth paragraph includes this: " More to the point, those of us who oppose Trump are optimistic enough to believe that a large number of his current supporters are not permanently in his camp."   Hmmm.  How well has that optimistic belief held up?  In any case, enjoy!   by Neil H. Buchanan There is now a received wisdom about the 2016 election that goes something like this: Trump was inevitably going to win, and the reason no one saw it coming was that journalists live in liberal bubbles in coastal cities and do not know any Trump voters. If only these jou

The Fox Who Stole Merry Christmas

by Michael C. Dorf For many years, I cheerily wished my Christian friends a "merry Christmas." I'm Jewish but from childhood I had happy associations with Christmas and other events Christians celebrated. Each year, my family helped our Unitarian neighbors trim their tree. On Christmas Day itself, we typically joined our Armenian Apostolic family friends for a festive meal. And I attended the first Communion and Confirmation of a close childhood friend who was Catholic (as he attended my Bar Mitzvah). Saying "merry Christmas" to my Christian friends was for years simply automatic--a way of acknowledging that in a country blessed with religious freedom, there was nothing remotely uncomfortable, much less political, about extending good wishes to one's friends and neighbors on occasions that they deem significant, even if those occasions hold no special religious significance for me. It didn't occur to me not to wish a friend "happy birthday"

The Top 5 Supreme Court Cases of the Decade

By Eric Segall As we leave this decade, I thought it might be interesting to look back over the last ten years and highlight the Supreme Court's five (okay six) most important constitutional law cases. My criteria are my own subjective assessments concerning the decisions' impact on the people of the United States and the development or reversal of constitutional law doctrine.

Scientia Bona Est

by Michael C. Dorf The title of today's post, "Scientia Bona Est," is the Latin translation of "Knowledge is Good," the motto of Faber College, the fictional setting for the great 1978 film Animal House . It might have inspired the people working for federal Immigration and Customs Enforcement (ICE), who created the fake University of Farmington to lure would-be immigration fraudsters. U of F's motto? Scientia et Labor  or "Knowledge and Work." Here 's what the university website looked like before ICE deactivated it. As explained at length in the  WaPo  story linked above, ICE created the fake university in order to lure non-citizens seeking to overstay student visas as a means of circumventing US immigration laws.  Because U of F had no real classes or faculty or anything else, presumably students who enrolled would quickly realize that it was a scam but assume that the target of the scam was the federal government: Students paid U of F t

Warren for President

by Neil H. Buchanan During the upcoming two weeks that include Christmas and New Year's Day, Dorf on Law  will be on partial vacation, with plans for new posts by Professor Dorf tomorrow and Monday of next week but after that, unless something very big happens (certainly a possibility), we expect to post only "classic" posts, if anything.  This is, therefore, likely to be my last new column of the year. With that in mind, I decided to announce the much-coveted Buchanan endorsement for President of the United States. Side note: Yes, I'm being self-deprecatingly ironic.  When I was much younger, I wanted to be a "cool" professor and told my students to call me by my first name; but if they could not bring themselves to do that, I said, "you must call me 'Lord High Professor Doctor Buchanan, Sir.'"  I later overheard one student saying to another, "Can you believe the ego on that guy, telling us to call him that?"  Irony is los

GOP Claim that Impeachment Overturns an Election is Spurious but Real Intra-Constitutional Conflict Exists

by Michael C. Dorf Among the many mutually incompatible and shifting defenses that Donald Trump and his apologists and enablers have offered against his impeachment in the House is the claim that it is an effort to overturn the result of the 2016 election. Like many spurious claims made in bad faith, this one has a point of contact with reality: If the House were to impeach a President of a different political party simply in response to genuine policy differences within the realm of reasonable contestability, that could indeed be an illegitimate effort to overturn the result of the then-most-recent presidential election. In the prior paragraph, I hedged with phrases like "realm of contestability" and "could" because I regard the impeachment of Andrew Johnson as legitimate, even though it was about a policy difference; that policy difference was whether to reconstruct the Union on more just grounds (the view of Congress) or to frustrate Reconstruction so as to p

Why Did the U.S. Constitutional Breakdown Take So Long?

by Neil H. Buchanan Now that the Senate Republicans have made it clear that they have no intention of running an honest trial of the impeachment of Donald Trump that the House will soon approve, non-Republicans and NeverTrumpers alike are trying to figure out what to do next.  The problem, of course, is that the Constitution is not self-enforcing; and even if it were, it is being exposed as hopelessly inadequate to the current task. Take the bare language of the two procedural impeachment clauses.  The last clause of Article I , Section 2 reads in full: "The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment." The last clause of Article I , Section 3 reads in full: "The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be c

When Madison Avenue and Pennsylvania Avenue Merge: A Review of "Political Brands"

By Eric Segall If you are worried about the state of our political system in the age of Facebook advertising, Russian interference in our elections, dark money in politics, and President Trump’s Twitter account, among many other disturbing trends, Professor Ciara Torres-Spelliscy’s wonderful new book “Political Brands” is unlikely to make you feel any better. However, it will make you much better informed regarding the many threats facing American democracy. I strongly recommend this book to anyone interested in how Madison Avenue and political movements have merged to present new and unique risks to our representative, constitutional democracy.

What If the Democrats Had Not Pursued Impeachment?

by Neil H. Buchanan Both The New York Times  and The Washington Post , as of this writing, are running front-page articles that claim that the impeachment process will be good for Donald Trump in next year's election.  Both stories, however, are notably weak when trying to back up that point (and do not even really try). The Times 's  article merely says that Trump himself "thinks that it will help him on the campaign trail " (and the embedded link takes readers to an earlier  Times  article that says that Trump thinks impeachment will help him).  More interestingly, the story ends with a prediction, noting that "Mr. Trump’s advisers worry about ... the snapback of his anger once the impeachment process is over. They predict he will be furious, and looking for payback."  The invertebrate Lindsey Graham reportedly told Trump not to do that, apparently because it would be bad for his election, so even the most craven Republicans do not think this is neces

How to Prevent Recruit-to-Deny and Reject-to-Preempt Admissions Strategies

by Michael C. Dorf A recent NY Times article highlights one of the more despicable practices one sees in the college admissions game -- what has come to be known as "recruit to deny." Here's how it works: US News and other purveyors of college ratings and rankings include "selectivity" among the factors on which they evaluate colleges. The harder it is to get into a college, the more selective that college is. Selectivity is expressed as a ratio of applicants who are admitted to applicants who apply: The lower the ratio, the more selective the college. A college can improve (i.e., decrease) its selectivity ratio by increasing the denominator, i.e., by encouraging applications from more students it expects to reject. (Encouraging applications from students a college expects to accept will decrease selectivity, because it will increase the numerator as well as the denominator, and thus in general increase the ratio.) Accordingly, as the Times article notes, many

The Articles of Impeachment, the Burden of Proof, and Propensity Evidence

by Michael C. Dorf In the run-up to yesterday's release of proposed articles of impeachment against Donald Trump, commentators speculated about whether the House would issue articles focused entirely on Trump's corrupt actions regarding Ukraine or also include other matters, especially those relating to events described in the Mueller Report . At least three rationales were offered for articles of impeachment going beyond the Ukraine affair. First, some commentators thought it might be helpful to moderate/freshmen Democrats in swing districts who won their seats by focusing on such pocketbook issues as health insurance to have multiple articles so that they could vote for some and against others. Doing so would ostensibly show to their fence-sitting constituents that they were going along with impeachment reluctantly and out of a sense of duty but were still moderates; that's why they only voted for two of the articles, these Democrats could say. I'm not sure who o

The Not-All-That-Blurry Lines of Public Intellectualism

by Neil H. Buchanan In my most recent  Dorf on Law  column , I wrote that my former George Washington Law School colleague Jonathan Turley "is a media hound, second only perhaps to Alan Dershowitz in his apparent willingness to go onto any show and say anything, no matter how ill-conceived, if it means being on TV."  I admit that this was rather rough treatment, and it became even more so when I ended the column by saying that although Turley is not apparently in favor of the evils of Trumpism, he is willing to do things that further those evils because Turley elevates his own vanity above other values. This kind of bare-knuckled assessment should, of course, at least cause the accuser (me) to pause and ask whether pointing the finger at an egomaniac is the classic case of having three fingers pointed back at himself.  (Aside: Is that a mixed metaphor, even though it is all about fingers?  Never mind.)   Yesterday's Dorf on Law  column by Professor Eric Segall was mu

What are Law Professors for Anyway?

By Eric Segall As I watched three of my favorite colleagues and Jonathan Turley testify in front of Congress last week, I couldn't help wondering what should be the appropriate role for law professors in current political and legal disputes. Obviously the impeachment hearings raise this issue but so do amicus briefs, letters signed by law professors taking positions on major policy questions, and even media appearances and professorial use of social media platforms. In this post, I raise a few questions and suggest a few tentative thoughts, but, with one exception, do not provide strong opinions.

Professors, Impeachment, and Vanity

by Neil H. Buchanan Earlier this year, I ended a 12-year stint on the faculty of The George Washington University Law School.  As such, I have been asked (off-list) whether I have any comments about my former colleague Jonathan Turley's testimony at the House Judiciary Committee's hearing earlier this week.  I have plenty of thoughts, but I will warn readers in advance that I have no juicy "insider goss" to share. Turley was the legal witness called by the House Republicans at the hearing to make their case against impeaching Donald Trump.  Turley's testimony and comments have already received a great deal of attention (much of it extremely negative, and deservedly so), including in part of Professor Dorf's excellent column yesterday.  Turley's performance gave me even more reason to feel happy about my recent change in academic affiliation. Below, I will discuss the substance, such as it is, of Turley's testimony.  But because so much commenta

House Judiciary Committee Meets the Law Professoriate

by Michael C. Dorf I did not watch all or even most of yesterday's hearing before the House Judiciary Committee, due to the press of teaching and other obligations. Accordingly, I do not purport to offer anything like a comprehensive assessment. Instead, I'll make brief remarks about the testimony of each of the four panelists.

Impeachability, Mootness, and Legal Realism

by Michael C. Dorf Today the House Judiciary Committee will hear from four legal scholars. (The hearing livestreams here , beginning at 10 am). Three, called by Democrats, will surely say that President Trump's various misdeeds--using the prospect of a White House meeting and Congressionally appropriated money for a besieged Ukraine as leverage to pressure the Ukrainian President to announce (but not necessarily conduct) an investigation of Hunter and Joe Biden, as well as obstructing the Congressional investigation of those acts--readily satisfy the constitutional standard for impeachment. The fourth, called by Republicans, will say that the public record does not disclose sufficient grounds for impeachment. Lest there be any doubt, I agree with the former view. Donald Trump is manifestly unfit for office. His behavior with respect to Ukraine is a particularly good fit for the text of the impeachment clause, because whether or not he technically committed an act of attempted b

Democratic Nomination Uncertainty and the Buttigieg Problem

by Neil H. Buchanan In what I consider to be good news, two political scientists published a piece yesterday in  The Washington Post  showing that the supposed "war" within the Democratic Party is a figment of pundits' imaginations. As the author/pollsters summarize their findings: "[W]e find a surprising amount of agreement among Democrats on major policy issues. Contradicting the conventional wisdom, clearly defined ideological 'lanes' don’t seem to exist in the minds of most voters." Why is that good news?  Because for someone like me, who is constantly amazed by how many commentators talk about the Democratic Party as if it were still the unfocused group of infighters that we grew up with, it is nice to see evidence that the Democrats truly are unified on policy issues -- and, by the way, taking positions on all of those issues that are very , very popular. The polls show that voters do not identify themselves in specific camps within the p

The Problem With Litigating Executive Privilege in Congressional Testimony

by Michael C. Dorf Last week was a mixed bag in litigation over the conflict between the Democratic-led House of Representatives and the Trump White House. In the course of ordering former White House Counsel Don McGahn that he must testify before Congress about remaining questions involving Russian interference in the 2016 election and the firing of James Comey, Judge Ketanji Brown Jackson stirringly rejected Trump's claim of blanket immunity for his aides. Surveying key statements and events from the Founding through the present in a scholarly 118-page opinion , she concluded that "the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings." And yet, in a reminder of an all-too-familiar pattern over the last three years, Trump's loss in a lower federal court was overshadowed by his victory in the Supreme Court. The very same day that Judge Jackson ruled against Trump's assertion of royal prerogative in the McGah

A Little Thanks for Thanksgiving

By Eric Segall These days, it feels like being thankful can be hard. If you are like me, the political world is difficult to escape. I don’t pretend to remember well the burning cities of my 1960’s youth or the national angst over young men and women going off to fight the unjust and illegal Vietnam war, but America today feels more torn apart than at any other time during my lifetime. I know people whose friendships and even families have been casualties of our polarized discourse and national divisions. The base cruelty and rudeness of our President, I fear, is infecting not just his supporters but his antagonists too. As my friend Dr. Aaron Caroll says so often on Twitter, there does not seem to be a bottom. Well, I need a day off. So here are a few hopefully not too trite thank you’s and optimistic thoughts that I thought I would share on our national day of Thanksgiving. Please forgive the personal nature of what follows.

The Waning of the American Republic

by Michael C. Dorf A century ago, pioneering cultural historian Johan Huizinga published the first (Dutch) edition of his brilliant, if somewhat tendentious The Waning of the Middle Ages (sometimes translated as The Autumn of the Middle Ages ). Focusing on the 14th century Burgundian court in what is now France and the low countries, Huizinga described a period of decay and pessimism, but also one of continuity. In an insightful aside about the masterful art then being produced in northern Italy, he observed: "Here, as elsewhere, the line of demarcation between the Middle Ages and the Renaissance has been too much insisted upon." Similar statements appear throughout the the book. Periodizations, like generational lines, are typically imposed from outside, and observable mostly in retrospect. The society Huizinga chronicled was dying, but most of the people of the time did not realize it, because they were too close to see the sweep of history. And so perhaps it is with u

The Polite Way for Nominal Liberals to Allow Democracy to Die

by Neil H. Buchanan What if Donald Trump is declared the winner on election night next year?  I address that question in my new Verdict  column today , as part of my continuing exercise in forecasting the various ways that our constitutional system is being destroyed.  (Happy Thanksgiving, everyone!)  This question is not one that I have addressed before now, but it provides another avenue through which Democrats' extreme self-doubt and overcautious instincts could fail the country. There are essentially three ways that presidential politics could play out over the next year: (1) Trump is impeached, convicted, and removed; (2) Trump loses the 2020 election, (3) Trump wins the 2020 election.  (Other possibilities exist, of course, such as the death of an extremely unhealthy septuagenarian who is constantly enraged and has a terrible diet, but I will set those aside.)  Thus far, my writings have focused on (1) and (2) but ignored (3). The reason for ignoring (3) is obvious, whi

In Memory of David Shapiro

by Michael C. Dorf David L. Shapiro, the William Nelson Cromwell Emeritus Professor of Law at Harvard Law School, passed away last week. David was a brilliant, humble, witty, and fundamentally decent human being. He was my teacher, mentor, and friend. In a lovely tribute on the occasion of his retirement, Prof. Amanda Tyler called David a "lawyer's lawyer." I agree. Indeed, David was also a law professor's law professor. The current Solicitor General, Noel Francisco, wrote a respectful remembrance here . The official obituary in  Harvard Law Today  includes praise from Prof. Tyler, Dean John Manning, and Prof. Richard Fallon. Meanwhile, I want to add a few words of my own.

There Is Nothing Wrong With the "Lock Him Up!" Chants

by Neil H. Buchanan After this week's Democratic presidential debate, a very stern columnist for The Washington Post   chastised Senator Bernie Sanders for giving the wrong answer to Rachel Maddow's question about recent chants of "Lock him up!" at various gatherings, including at some Sanders rallies.  Stephen Stromberg instructed us as follows: "The right answer is: 'It is understandable that people are frustrated with President Trump. But everyone else should resist stooping to his level. I wish people would not do Trump-like chants at my rallies.'" But Sanders "bomb[ed] the ‘lock him up’ test," said Stromberg, by instead saying: "Well, I think the people of this country are catching on to the degree that this president thinks he is above the law. And what the American people are saying is: Nobody is above the law." Or, as Stromberg characterized it: "Instead, Sanders essentially said, “Well, people think the pres

It is OK to Admit That German Beer Is Meh

by Neil H. Buchanan In the 1970's, Coors beer suddenly became all the rage.  This was at a time when the consolidation of the American brewing industry was in full swing, with mega-brewers buying out or simply crushing locals like Stroh's (Detroit), Schaefer (Boston), Iron City (Pittsburgh), and so on.  It was also a few years before the first whispers of what became the craft beer revolution were first heard. Coors, brewed in Colorado, was not yet known for the extreme right-wing politics of its founding family.  It also was still very much a regional beer, with no national distribution at all.  I was in high school in Ohio at the time, and for no apparent reason, people began to talk about Coors in near-mythic terms.  People who went on skiing trips to the Rockies were encouraged to drive rather than fly, because that would allow them to fill their trunks and back seats with cases of Coors to bring back for all of their family and friends.  The ultimate Christmas present!

Do Primary Candidates' Policy Proposals Matter?

by Michael C. Dorf As a primary voter, how much, if at all, should you care about policy differences among the candidates, given the fact that many of the key proposals require congressional approval that will not likely be forthcoming from Congress, absent a change in the cloture rule? Here I'll defend the following answer: Some, but mostly because of what they indicate about the candidate's priorities rather than because of the policies themselves. Let me unpack that paragraph using the current Democratic field as illustrative, although what I say here should be equally applicable in a Republican primary, albeit with different policies. Suppose you have narrowed down your choices to two candidates. One of them--let's call her Warren--favors Medicare for All. The other--let's call him Buttigieg--favors Medicare for All Who Want It. Let's assume that in all other respects you are in equipoise between these two candidates. One rather straightforward way to decide

The Planned Parenthood Sting/Scam Video Verdict

by Michael C. Dorf Last week, a civil jury in federal district court in San Francisco sided with Planned Parenthood and against anti-abortion activist David Daleiden and his organization the Center for Medical Progress, with liability for compensatory and punitive damages totaling just over $2 million. I am  ambivalent about the decision.

Why Are We Really -- I Mean Really -- Stuck With Job-Tethered Benefits?

by Neil H. Buchanan In two recent two columns --  here  (regarding health insurance) and here  (regarding retirement savings) -- I have provided excruciatingly specific details about the very odd process that plays out when Americans change jobs. The overriding question that intruded into both columns, even though I was largely focused on other matters (such as the cruelty and ridiculous expense of our health care system) was: Why, in fact, do American employers routinely offer and manage any of these benefits?  Other than being familiar, what allows a system that is utterly illogical to continue to be accepted by nearly everyone as simply the way that things are done? Last week, Professor Dorf took a useful run at this question.  Noting that employers have largely gotten out of the business of providing retirement benefits -- by shifting the risks of inadequate planning or simple bad luck onto employees, which is the point of changing from vested pensions ("defined-benef

Solum on Posner and the Descriptive/Normative Gap in Originalist Theory

By Eric Segall After Dick Posner retired from the federal bench, I wrote on this blog that "t here is no doubt that he is the most important judge in America over the last fifty years who never sat on the Supreme Court." I also confessed that Dick and I are good friends so my objectivity was compromised. I was pleased, therefore, to read that Professor Lawrence Solum recently said the following about Posner: I have only read a fraction of Posner's judicial decisions, but on the basis of that fraction, he is, in my opinion, one of the greatest judges in the history of the common law--and the greatest American judge of his time. Professor Solum is, of course, one of our leading academic originalists, and the only law professor who testified in favor of originalism at the confirmation hearing of then-Judge Neil Gorusch. What is interesting about Solum's praise of Posner is that there is little doubt Posner was one of, if not the most, anti-originalist judges of h

Why Not to Be an Originalist

by Michael C. Dorf Tomorrow morning I'll be on a panel at the Federalist Society National Lawyers Convention , speaking on the topic "Why, or Why Not, Be an Originalist?." US Court of Appeals Judge Thomas Hardiman will moderate the panel, which also will include UVA Law Prof Sai Prakash, NYU Law Prof Rick Pildes, and US Court of Appeals Judge Amy Coney Barrett. Based on our planning conference call and the known priors of the panelists, it is very likely that Prakash and Barrett will offer reasons to be an originalist, while Pildes and I will offer reasons not to be an originalist. Before proceeding to preview my remarks, I want to say a few words about Fed Soc. Recently, I have watched uneasily as some very prominent members have debased themselves by carrying water for Donald Trump in the apparent view that his nomination of conservatives to the federal bench justifies a kind of Faustian bargain. By the same token, I admire other conservatives with ties to Fed Soc

Job-Linked Benefits Revisited

by Michael C. Dorf My latest Verdict column takes the recent election in Argentina as a point of departure to argue that everyone would be better off if we did not regard demotions as shameful. In that election, I note that Argentines elected a former President, Cristina Fernández de Kirchner, as their Vice President. Argentina has a two-consecutive-term limit on the Presidency but no lifetime term limit, so Kirchner may regard the Vice Presidency as a stepping stone back to the Presidency (in the same way that Vladimir Putin allowed Dmitri Medvedev to keep the President's chair warm for him while he cooled his heels as Prime Minister). I explain that not every demotion offers a clear path back to the better job but that there will often be reasons why a "lesser" job is better than or at least as good as a more elevated one. That's the column in a nutshell, but interested readers should check it out for more details and examples. Here I want to connect a point

Ad Hominem Attacks on Trump’s Critics and the Loss of Good-Faith Disagreement

by Neil H. Buchanan I have heard labor lawyers use a term, "retroactive incompetence," to describe the phenomenon in which an employee with a stellar work record (usually including glowing annual performance reviews, multiple commendations, and so on) finds herself under attack by her bosses after she does something that the bosses dislike (files a sexual harassment complaint, sues for being passed over for a promotion in favor of a less qualified beneficiary of nepotism or sexism, blows the whistle on financial misdeeds or environmental crimes, and so on). The "disgruntled former employee" at that point becomes the worst worker the company had ever been forced to deal with.  It becomes surprisingly easy to swat away all of those employee-of-the-year awards and letters of commendation by saying that the employee was so  problematic that it was easier for everyone to tell her that she was (and to treat her like) a great employee than to tell her to stop bein

Congress Should Amend the Presidential Succession Act to Ensure Party Continuity

by Michael C. Dorf On Thursday of last week, Jennifer Williams, an aide to Vice President Mike Pence, testified for the House impeachment inquiry. Her cooperation with the inquiry raises an intriguing possibility: What if Pence is implicated in the arms-for-fake-dirt Ukraine scandal? Should the House impeach Pence alongside of Trump? If doing so is justified by the evidence, then simultaneous impeachment and removal of Trump and Pence would make House Speaker Nancy Pelosi the acting President, pursuant to the Presidential Succession Act . That possibility, in turn, would certainly make Republican Senators who might otherwise be willing to vote to remove a President and Vice President of their own party unwilling to do so. Or they might insist on removing the President and Vice President one at a time. If they removed Pence first, then, pursuant to Section 2 of the 25th Amendment , Trump could name a new Vice President; Trump's removal would then lead to the new Vice President&#

Justifying the Administrative State -- and Congress

by Michael C. Dorf Today I have the pleasure of attending an all-day conference at Cornell Law School focusing on the forthcoming book The Reasoning State  by my colleague Prof Edward ("Jed") Stiglitz. I look forward to hearing the comments of various panelists who have come from near and far. I'm commenting on two of the chapters. Here I want to preview some of my remarks on Chapter 2 -- Reasoning and Distrust: State Architecture in Advanced Societies. The book as a whole is terrific. It is methodologically diverse, including historical materials, legal and institutional analysis, formal mathematical models, and the reports of some psychological experiments, all integrated into a coherent whole. I won't attempt to summarize the entire book here, however, both because that's too daunting a task and also because Chapter 2 is the core of the book. In both my oral comments later today and in this preview, I'll begin with a summary of the chapter (and thus t

How Not to Be a Republican

by Neil H. Buchanan In my new Verdict  column, published this morning, I return to the Democrats' intramural feud over Elizabeth Warren's Medicare-for-All plan.  Back when she had not yet released the details of her plan, the self-styled reasonable centrists claimed that she was being vague because she refused to "admit" that her plan might involve having people pay taxes.  As I wrote at the time (those days of yore known as three weeks ago ), it was not Warren but her detractors who were being evasive, because they were pretending not to notice all of the non-tax costs that our health care system imposes on people. Now that Warren has released a detailed financing plan -- one that does not, in fact, raise taxes on the middle class -- the arguments from her opponents have only become more absurd. The title of today's column ( Dear Mayor “Extremely Vague” and Senator “Pipe Dream”: Put Up or Shut Up ), is of course a reference to the oh-so-clever zingers that

Supremely Stupefying Standing Doctrine

By Eric Segall On Friday, I’m heading to Loyola of Chicago’s excellent annual Constitutional Law Colloquium. I’m looking forward to hearing Professor Pamela Karlan give the keynote speech, Professor Richard Fallon talk about his new book on constitutional interpretation, and attending a bevy of interesting panels. I’ll be talking about justiciability in general, focusing mostly on standing. The current state of the doctrine is incoherent by any standard, and I’m not aware of any academic commentator who thinks the Court’s case law on the subject truly distinguishes proper from improper exercises of judicial authority.

And You Thought Health Care Was Complicated!

by Neil H. Buchanan A few months ago, I discussed my travails in trying to navigate the health insurance options as I transitioned into my new position at the University of Florida.  My overall purpose in writing that column was to mock the cruel joke that is "freedom of choice" in the American health care system.  Even mainstream economists have known for decades that health care is not a "normal" good as depicted in Econ 101, so the world will not be characterized by so-called efficient outcomes when people are left to fend for themselves in that marketplace. In fact, the description in that column of my own uncertainties and wasted time in choosing a health insurance plan was almost comical in that my employer offers exactly two  health insurance plans.  Two options, but the state of Florida nonetheless spends huge amounts of money trying to make the process more user-friendly.  If even a duopoly is hopelessly complicated, what hope is there for clarity in

Free Speech on Facebook and Twitter

by Michael C. Dorf Two social media platforms have adopted very different approaches to political advertisements. Facebook has a general policy of fact-checking and removing "false news and other types of viral misinformation, like memes or manipulated photos and videos," but exempts politicians, including politicians who appear in ads on Facebook. Twitter , formulating its policy in deliberate contrast with the Facebook policy, will stop running political ads entirely. Both Facebook and Twitter justify their respective policies by reference to norms of democracy and free speech. Let's consider the merits of these justifications.

The Biden Fade, and an Anticipatory Mea Culpa

[Note to readers: My new Verdict  column, " Go Big, Democrats: Attempts to Rig Elections Are Not the Only Impeachable Offenses ," was published yesterday.  Today's column here on Dorf on Law  addresses a different topic entirely.] by Neil H. Buchanan It is good for the soul, I think, to look for situations in which one has made an error and to admit as much out loud.  Or, if not actively to look for such examples, at least to recognize them when they arise.  I confess that I might be jumping the gun here (as I will explain below), but it is beginning to look as though I was wrong about how Joe Biden's impending failure in the Democratic primaries will play out. Note two things up front.  First, I did not say that I seem to be wrong in predicting that Biden would fail.  Rather, the question is how that failure will happen and how it will be received by the punditocracy and the Democratic elite.  More importantly, second, we are still months away from knowi

What We Learn From the Ugly Dual Loyalty Slander Against Lt. Col. Vindman

by Michael C. Dorf Donald Trump's tweet in response to the testimony of Lieutenant Colonel Alexander S. Vindman on Tuesday was despicable; yet remarkably, it was not nearly as outrageous as comments by Trump-friendly talking heads. Below I'll connect the smear by former Congressman Sean Duffy, FoxNews host Brian Kilmeade and others to controversy over statements by Congresswoman Ilhan Omar as well as to the nature of partisanship in our current era.

Why Don't Democratic Voters Care About the Courts (as Much as Republican Voters Do)?

by Michael C. Dorf My latest Verdict column discusses a brief eruption of the progressive Internet last week in response to the false claim that Pete Buttigieg announced that he would seek to name justices like Anthony Kennedy to the SCOTUS. As I explain in the column and as I also explained in a Twitter thread (which you can read "unrolled" here ) last week, that's not what happened. Rather, Buttigieg mentioned Kennedy in the context of his explanation of a proposal to depoliticize the Supreme Court. My Verdict column first criticizes the Buttigieg critics who jumped on him without bothering to read what he actually said; it then pivots to criticize Buttigieg's goal of depoliticizing the Court. I explain that the Court has pretty much always been political and that to the extent that it is now more clearly embroiled in partisan politics than in some other periods, the problem is not the appointments process but polarization in Congress. Here I want to return to

Trump, Brexit, and Undoing the Voters' Will

by Neil H. Buchanan One of the tried-and-true tactics of dictators and would-be dictators is to claim legitimacy based on some moment when they can claim to have been put in place by "the people."  That the people no longer support them, or never supported every single thing that the authoritarians propose, never seems to matter. Even people who are less further along the authoritarianism wannabe spectrum spin these delusions, as we saw in former President George W. Bush's  infamous reference  to his hair-thin 2004 reelection (along with his regent Dick Cheney) as an "accountability moment."  The basic idea is simple: I won, so I can do whatever I want, no matter how I won and no matter what has changed since I won or what people were thinking about (and not thinking about) when they voted for me . As has so often been the case for the past three-plus years, the worst kinds of authoritarian tactics and tropes that we see in the U.S. are also showing up i

Died Like a Dog

by Michael C. Dorf It is difficult to know how to regard the news that US special forces killed ISIS leader Abu Bakr al-Baghdadi. The killing of Osama bin Laden in 2011 did seem to diminish the power and reach of of Al-Qaeda. Perhaps al-Baghdadi's death will bring similar benefits. However, there are reasons to worry. Al-Qaeda was already a weakened institution when bin Laden was killed. Moreover, it had begun to transform into a kind of franchising operation. In this respect, it is useful to remember that ISIS is a lineal descendant of Al-Qaeda in Iraq. Its initial leader, Abu Musab al-Zarqawi, pledged his loyalty to Bin Laden and was then killed by US forces in Iraq in 2006. The US killed successor leaders before al-Baghdadi emerged and transformed Al Qaeda in Iraq into ISIS. So maybe the killing of Bin Laden wasn't especially effective after all. And difficult as it is to imagine, maybe someone as bad as al-Baghdadi will soon emerge. Put differently, terrorist organiza

Discretionary Originalism: A Short Response to Professor Solum

By Eric Segall On Wednesday, Professor Lawrence Solum kindly "recommended"  a forthcoming essay  of mine in the George Washington On-Line Law Review. This piece argues that Solum made a concession in his latest article on Originalism that demonstrates there is no meaningful difference between the so-called New Originalism and Living Constitutionalism. On his blog, however, Solum also said the following about my argument: I would note that Segall's contention that "current originalist theory" gives judges "discretion" "to pick and choose which facts are relevant and which ones have changed since the text at issue was originally ratified" does not accurately represent my understanding of my own views.  The Constraint Principle requires judges to adhere to the original meaning (communicative content) of the constitutional text as was fixed by linguistic and contextual facts at the time each provision was drafted, framed, and ratified.  And

Smug Centrists' Self-Satisfied Sanctimony Seems Sad, See?

by Neil H. Buchanan Last Sunday, the editorial board of The Washington Post  asked what they surely thought was an utterly reasonable question: "There’s an effective and progressive solution for climate change. Why won’t Democrats embrace it?"  The "effective and progressive solution" that enthralls them is a carbon tax.  The lack of self-awareness revealed by their question made my jaw drop. These editors, after all, are the very same people who have spent the last year or so gleefully joining in on the baseless attacks on Medicare-for-All by saying that such plans would "raise taxes."  As my most recent Verdict  column (and, to a lesser extent, my most recent Dorf on Law  piece ) explained at great length, this is utterly bonkers.  Whatever else one thinks about Medicare-for-All or about Senator Elizabeth Warren, she is absolutely right that the labeling debate about health care costs is a political trap. Why? As I said last week: "[S]h

The Resilience of Obamacare in Reality if not Necessarily in the Trump-Packed Courts

by Michael C. Dorf Today I shall have the pleasure of debating Prof Josh Blackman on the challenge to Obamacare now pending before the Fifth Circuit. Prof Blackman and I recently agreed with one another about amicus briefs in the SCOTUS (me here and him here ). Today, I suspect we'll disagree--and not just because the event is billed as a debate. The Cornell Law School chapter of the Federalist Society is sponsoring the event, and I know from past experience that Fed Soc likes to promote its events as "debates," even when a term like "discussion" would be more accurate, because debates attract a larger audience than discussions. Accordingly, I have sometimes found myself announced as debating some speaker only to end up agreeing with most of what the speaker says. But this time I suspect we will find plenty about which to disagree (though not disagreeably, of course). Below I preview my argument, which leans heavily on the House reply brief  in the pendin