Showing posts from February, 2019

"Some of My Best Wives Are Black!"

by Neil H. Buchanan Apparently, at least one Democratic presidential candidate (Kamala Harris) is now willing to say out loud that Donald Trump is a racist.  This is only a big deal because Trump and his fellow travelers benefit from well-meaning people's understandable social skittishness about calling anyone a racist.  When good people insist on talking about "racially charged remarks" or "attitudes that some view as racist, but no one can know what is in another person's heart," however, that simply creates space for Trump and other racists to push further. The Washington Post 's Jennifer Rubin (taking a break, I was relieved to see, from her tiresome and misguided crusade about Democrats "handing Trump the election by moving too far left") points out that, although calling Trump a racist is both true and right, it does raise a touchy issue, which is what a Democratic contender will say when the inevitable followup question lands: &qu

Using the Meaning of Words to Obscure Cruelty

by Sherry F. Colb In my Verdict column for this week, I talk about ways in which the law has used definitions of words to obscure harmful activity. I focus on a new law in Missouri that defines "meat" to exclude plant-based and cultured meats and an older federal law that defined marriage to exclude same-sex couples. In this post, I want to apply the same analysis to the marital rape exemption, which was part of the law in this country from its founding through the late twentieth century. What is the marital rape exemption? It is an exclusion from the law of rape for perpetrators who rape their wives. In other words, if a perpetrator does to a victim what the law would ordinarily classify as rape, but the two parties are married to each other, then under the exemption, there is no rape. The exemption exemplifies the use of language to conceal or enable harm because of how the law worked. It did not simply say that when a husband raped a wife, he would avoid punishment.

"On the Basis of Sex" (and Tax)

by Neil H. Buchanan [Note to readers: Yesterday, Verdict published the third of a recent flurry of my columns: " The Democracy Conundrum: What If Large Numbers of Voters Are Racists? (The Trump/Brexit Tragedies) ."  I might write a followup column on that theme here on Dorf on Law soon.  Today's column below is unrelated, but hopefully still interesting.] Although we here at Dorf on Law feel free to pepper our writing with references to movies and other bits of pop culture, we typically do not write movie reviews.  Having just seen "On the Basis of Sex," the Hollywood treatment of key points in the life of the young Ruth Bader Ginsburg, I will mostly avoid the temptation simply to review the film, instead using it as a vehicle to make some larger points about law and society.  (Professor Dorf's excellent analysis in 2015 of Clint Eastwood's "Gran Torino" is a particularly good example of a discussion that is more than a film review, whic

Anti-BDS Laws, Anti-Discrimination Laws, Subjective Legislative Intent, and the First Amendment

by Michael C. Dorf Earlier this month, Eugene Kontorovich wrote an op-ed in the Wall Street Journal  calling the ACLU hypocritical for arguing that state laws barring those who participate in the BDS boycott of Israel from doing business with the state violate the First Amendment, while at the same time arguing that those who--like the  Masterpiece Cakeshop   baker--discriminate on the basis of sexual orientation or other characteristics are not engaged in free speech. In a short post on Balkinization , Andy Koppelman agreed. Koppelman thinks that neither the Masterpiece baker nor the BDS participants should have winning free speech claims. He writes: "Conduct often has semantic significance.  But conduct that sometimes has semantic significance isn’t speech.  That was true in the case of the Colorado baker. It’s true [of the anti-BDS laws] as well."   Responding to both Kontorovich and Koppelman in an essay cross-posted on Balkinization and TakeCare , Amanda Shanor say

How to Test Whether Justice Thomas Favors "Halfway Originalism"

by Michael C. Dorf On Tuesday, the Supreme Court denied cert in a relatively unimportant case (save for the fact that the respondent was Bill Cosby--yes, that  Bill Cosby). The petitioner/plaintiff sought review of a federal appeals court ruling that in order to prevail in her defamation suit against the erstwhile Jell-O pitchman she needed to show "actual malice," because she was a "public figure" for purposes of the case, having "thrust" herself "into the vortex" of a public controversy. The quotation marks indicate terms of art in a line of cases originating with the landmark NY Times v. Sullivan . I have some sympathy for a certain line of criticism of the post- Sullivan cases. Sullivan itself was a case brought by an elected public official. Later cases--especially Gertz v. Robert Welch, Inc. --extend the doctrine's protection against too-easy defamation liability to criticisms of private citizens. Sullivan sensibly protects core po

Damaging Infighting Among Those Who Want to Beat Trump

by Neil H. Buchanan In a pair of Verdict columns this week, I assess the state of play in the incestuous overlapping worlds inhabited by politicians and political pundits.  Specifically, I argue first that there is no reason to be surprised that Donald Trump and the Republicans are screaming " Socialism!! Aaahhhh ... " in response to anything and everything that comes from the mouth of a Democrat. It is not only that Republicans continue to have nothing popular to offer the voters , but also that they think that they can run an entire campaign by refusing to define the word socialism even as they shout it relentlessly.  Their entire strategy is to make everyone associate bad things with that word. and actually defining it would rob it of its mythical powers.  It is the perfect marriage of Trump's fear-mongering and Republicans' longstanding belief that any attempt to rein in the extremes of capitalism is a Marxist plot.  Fear the commies! I next argue in today

Is Trump's Emergency Unconstitutional or "Merely" Illegal? And Does it Matter?

by Michael C. Dorf   (cross-posted on Take Care ) The  lawsuit by California and 15 other states  seeking to block President Trump from building part of a border wall with redirected funds repeatedly alleges that Trump's emergency declaration and other actions are "unlawful and unconstitutional." The lawsuit includes four claims for relief, alleging: (1) a violation of separation of powers; (2) a violation of the Appropriations Clause (Article I, Section 9, Clause 7), which forbids money from being "drawn from the treasury, but in Consequence of Appropriations made by Law;" (3) that the president has acted ultra vires by exceeding the scope of authority granted him by the Constitution or statutes; and (4) a violation of the National Environmental Policy Act (NEPA), with respect to California and New Mexico, insofar as the proposed border wall construction was not preceded by the preparation of an environmental impact statement (EIS). That fourth claim pretty

Voters’ Remorse

by Neil H. Buchanan The scandals roiling Virginia politics have receded a bit from the headlines, but the good news is that there seems to be agreement that the sexual assault and rape charges against Lieutenant Governor Justin Fairfax should be fairly investigated.  Because nothing official has yet been put in motion, that apparent consensus might ultimately break down, but as of this moment, it at least seems possible that the initial chaos will yield to something resembling a real investigation and a deliberative process. In a column last week, I compared how the Fairfax situation is being handled to the Republicans' shameful mishandling of Brett Kavanaugh's nomination to the Supreme Court last Fall.  In the comments on that column, some readers debated whether it would be appropriate to keep the winner of an election in office after news breaks that might have changed the outcome of the election.  If news emerges that would have reversed the result, should the winner b

Standing to Challenge the Emergency Declaration

by Michael C. Dorf Last month, before President Trump had committed to declaring a national emergency in order to obtain funding for his border wall, I wrote a blog post in which I focused on what I called the "big picture" question posed by the statutory framework that allows the president to declare a national emergency that lasts for years. My bottom line was that Congress had failed in its obligation to oversee and participate in important matters of national policy. In my latest Verdict column , I continue focusing on the "big picture" by discussing how we got to Trump's emergency declaration and speculating on how challenges to it will fare in the courts. Here I want to focus on one of what I called the "lawyers' questions" that I bracketed in my January post. There I warned that focusing on these details in a way concedes too much to Trump and his backers, because it tends to normalize the debate and channel it into a discussion of lega

Comparing the Handling of the Justin Fairfax and Brett Kavanaugh Situations

by Neil H. Buchanan The intense media coverage of the situation in Virginia -- with the Governor and Attorney General admitting to having engaged in racist behavior, and the Lieutenant Governor having been accused by two women of sexual assault -- has looked at the situation there from seemingly every angle.  Although I acknowledge that I might have missed it, however, I have not yet seen more than passing remarks comparing the Lieutenant Governor's situation to the grotesquely mishandled confirmation process for now-Supreme Court Justice (ugh) Brett Kavanaugh. Before trying to fill at least a bit of that apparent void, I should note that I have a somewhat closer than usual six-degrees-of-Kevin-Bacon-style connection to Lt. Governor Justin Fairfax, because a colleague at my law school is an immediate relative of Fairfax.  I am passingly friendly with that colleague, but we are not friends, and I have never met the lieutenant governor. Even so, it is true that my school took g

Green New Meal

by Michael C. Dorf The Green New Deal (GND) resolution pending in Congress sets ambitious goals for attacking climate change while also promoting job growth. I applaud its authors and sponsors for recognizing the urgency of the problem and the need for bold action. I especially appreciate two aspects of the template: (1) it does not bow to the conventional wisdom that addressing environmental harms conflicts with prosperity, because, after all, a healthy economy ultimately depends on a livable environment; and (2) neither does it compromise in advance with deniers, skeptics, and self-described moderates, because anything that will ultimately make it through Congress (even a Democratic Congress with a future Democratic president) will be watered down somewhat, so one should at least start with what makes sense as policy. Accordingly, and as a friendly amendment, I want to point out an important omission from the resolution: it fails to recognize or respond to the very large role th

Does It Really Matter Why I Do What I Do?

by Sherry F. Colb This week, my Verdict column takes up the question of the Virginia proposed abortion bill . I specifically focus on the possibility of a doctor approving an abortion for a woman at the very end of her pregnancy. I consider some of the reasons that people have for favoring abortion rights and how each reason, respectively, fares in offering a defense of a third-trimester abortion. I suggest that the reasons for being pro-choice start to matter when some of the reasons provide no coherent rationale for protecting the right to the particular abortion. Having argued for the proposition that reasons matter, however, I want to reconsider that position. Of course, if one is defending the right to a late third-trimester abortion, one relies on the "non-personhood" of the 30-something-week fetus at one's peril. It is accordingly important that we defend our own positions with arguments that actually bear on those positions and, ideally, that rely on premises

Coeducation as Radical Reform and Perfectly Normal Reality

by Neil H. Buchanan The push toward greater empowerment of women is one of the most exciting political and social changes of the past few years (and, viewed from different perspectives, of the past few decades and centuries).  In a time when a knuckle-dragging caricature of the most vulgar kind of sexist became President of the United States -- and did so by running an openly sexist campaign ("Trump that B*tch!") against the first female major party presidential nominee -- one of the most positive developments in our political culture has been the mobilization of outraged women. From pussy hats to suffragettes' white frocks to six (and counting) women running for president, we are seeing what one hopes is the permanent flowering of a more inclusive politics.  We are still gingerly figuring out the contours of the #MeToo awakening, but as frustratingly slow as the pace of change has been, it seems to have accelerated recently, and it is at least possible to imagine tha

Are Court Decisions Law, and why that Matters to Whether Originalism is Our Law

By Eric Segall I recently had the great privilege of debating Professors Christopher Green and Stephen Sachs at the University of North Carolina School of Law (we are all friends so I'll call them Chris and Steve). The debate was sponsored by UNC's Federalist Society and American Constitution Society. I learned a lot and enjoyed the back and forth. The title of the debate, inspired by my book, was "Originalism as Faith or Originalism as Law?" Although we had interesting conversations about that question, the most provocative part of the day occurred when Steve argued that judicial decisions in general, and Supreme Court decisions in particular, aren't law. He said court decisions may bind legal actors, political officials, and the public, but they are not law, as opposed to the Constitution and statutes, which are law. Similarly, Chris argued that he cares much more about what the Constitution is, and what it says, than what the Court says it means. He repea

SCOTUS Alabama Imam-less Execution Case and the Chaplain Question

by Michael C. Dorf The Supreme Court's stay of the Louisiana abortion law on Thursday night overshadowed another 5-4 order it issued roughly simultaneously. In Dunn v. Ray , the Court lifted a stay of execution that the Eleventh Circuit had granted. That court wanted time to consider inmate Ray's claim that Alabama's denial of his request for spiritual counseling from an imam during his execution violated the Establishment Clause, in light of the fact that Alabama "regularly allows a Christian chaplain to be present in the execution chamber." That quotation comes from the dissent of Justice Kagan, who was joined by Justices Ginsburg, Breyer, and Sotomayor. The justices in the majority did not respond to the dissenters' objection on the merits. The entirety of their analysis consisted of the statement that they could take into account the "last-minute nature of an application to stay execution." Ray's request came a little more than two-and-a

The Significance of Chief Justice Roberts Joining in the Stay of the Louisiana Abortion Law

by Michael C. Dorf Tonight's decision in June Medical Services v. Gee , the Louisiana abortion case, is less significant than it would have been had the Court denied relief--for that would have signaled that five justices could be prepared to overrule the abortion right sooner rather than later. By staying the Fifth Circuit ruling, the Court merely preserved the status quo. In 2016, in  Whole Woman's Health v. Hellerstedt ,  the Court invalidated a Texas admitting privileges requirement that was not substantially different from the Louisiana requirement that the Fifth Circuit disingenuously distinguished here. One might therefore readily conclude that the granting of the stay is simply a preservation of the status quo. And yet, while June Medical Services should not be read for more than it is worth, it also should not be read for less than it is worth. No justice who was committed to overruling the Court's abortion jurisprudence has  ever voted to block an abortion law

What Kind of Constitutional Mess Might a Wealth Tax Create?

by Neil H. Buchanan Republicans and some nominally non-Republican billionaires are becoming increasingly alarmed by the popularity of proposals to increase taxes on the rich.  More accurately, they are apoplectic because many Democrats have finally started to take seriously progressive tax proposals that have in fact been popular for a long time. In my Verdict column today, " Can We Tax Wealth? Yes, and Even if Not, Still Yes ," I gingerly wade into a constitutional claim that some conservatives have floated recently, which they believe will allow the Supreme Court's newly fortified conservative bloc to invalidate anything that a future -- perhaps very near-future -- Democratic president and Congress might pass. I will get into as few details as possible here, allowing readers with further questions to link to today's column , but the short version is that the Constitution requires that direct taxes be apportioned whereas indirect taxes need not be apportio

Uncanny Valleys

by Michael C. Dorf In my latest Verdict column , I discuss the decision by the US and various other countries to recognize Juan Guaidó as the legitimate president of Venezuela. I frame my discussion around the question whether, and if so why, it is appropriate for outside states to deny recognition to Nicolás Maduro on the ground that his election was tainted when such states continue to recognize authoritarian leaders of other countries (I name Saudi Arabia and North Korea) who have no democratic legitimacy. I offer two answers. First, I note that there are practical/prudential reasons why democratic regimes recognize undemocratic ones. Second, I argue that there is something particularly bad about subverting a democratic regime. To make that second point, however, I need to address the fact that some wholly undemocratic regimes have "sham constitutions" that purport to be democratic. While hardly approving of sham constitutionalism, I nonetheless acknowledge that in mos

Is the Rule of Law More Important Than Breathing?

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 immed

Originalism off the Ground

By Eric Segall Professors Will Baude and Stephen Sachs are at it again. They have continued their quest to convince the world that originalism is, indeed, our law. Their new article  is "Grounding Originalism." In previous articles and essays, Baude and Sachs have set forth a positivist account of constitutional law, arguing that our law is the Founders' law until properly amended or changed. They have also claimed that our Founders' law allows judges to change old applications of legal principles if new facts require such changes,  as long as the constitutional provision at issue was intended, designed or originally meant to allow judges to do just that. In other words, cases such as  Brown v. Board of Education  and Obergefell v. Hodges,  which most scholars categorize as non-originalist, may properly be classified as originalist decisions if, and only if, the 14th Amendment's original meaning embraced evolving applications by judges (an issue that the auth

Did a 'Good Government' Reform Inadvertently Narrow Anti-Discrimination Law?

by Neil H. Buchanan Typically, our columns here on Dorf on Law are very much "of the moment," because we are reacting to a recent court decision or proposed legislation, or because we are analyzing economic evidence and responding to (frequently quite bad) arguments, or often because we are directly engaging in current political analysis (most recently focused on various Democratic presidential candidates). At the end of the day, however, we are academics; and sometimes it is refreshing to engage in purely academic thinking without worrying (too much) about the immediate relevance of the topic.  What better time than while I am a visiting scholar at the University of Cambridge to take a dive into some historical analysis -- ironically, given my location, sitting in a lecture hall listening to an American historian's lecture about early American legal history? Yale professor Naomi Lamoreaux is a visiting scholar here at Christ's College.  Earlier this week, she