Showing posts from July, 2019

Supreme Court 2018 Term in Review: Waaaaay Too Soon to Say that Kavanaugh-for-Kennedy Was Not a Game Changer

by Michael C. Dorf ( cross-posted on Take Care ) As I noted last week , tomorrow I'll be spending the day joining a great collection of law professors, lawyers, one journalist, and one judge to talk about the most recent SCOTUS term and preview the coming one. In last week's post I previewed my remarks on a case at the intersection of the dormant commerce clause and the 21st amendment . I also promised that I would follow up with two more posts: one on the Term in general and the other with some additional commentary on one of the Term's blockbusters for which I also will be providing an overview at the PLI conference: the Bladensburg Peace Cross Establishment Clause case . I'm going to break that promise (kinda) by talking about both in today's post. But first, a reminder: You can still sign up to see the day-long event live in NYC, at one of various satellite locations, or from the comfort of your computer. Here's an alphabetical list of the panelists: Jo

Does It Matter Exactly How the Supreme Court Mangles the Law to Help Trump?

by Neil H. Buchanan When Anthony Kennedy was still on the bench, and especially in his final term, the Supreme Court issued many horrible decisions.  Citizens United: Shelby County v. Holder ; the anti-union case in 2018 ( Janus ); the Ohio voter purge case ( Husted v. Randolph Institute ); Masterpiece Cakeshop .  The list is a long one. One of the Court's worst decisions in decades, of course, was the Muslim Travel Ban case ( Trump v. Hawai'i ), which is widely and rightly considered to be this generation's Karematsu -- a description so apt that John Roberts felt compelled to include in his opinion a doth-protest-too-much section that essentially said: "We're not issuing a new Korematsu .  See, we're explicitly admitting decades later that Korematsu itself was a bad decision.  How dare you say that our new case is like that other case ... that we have now disavowed?!" What made the Muslim Travel Ban case egregious as a legal matter was its tortur

Original Intent, Original Meaning, or Let's Call the Whole Thing Off

By Eric Segall Michael Rappaport and John O. McGinnis, two of our country's leading academic originalists, recently stated in an essay for a Northwestern University Law Review Originalism symposium that "the debate over original intent and original public meaning has launched scores of law review articles." This observation is both accurate and unfortunate, but not for the reasons provided by the authors. In their essay, Rappaport and McGinnis try to bring the warring sides to the table and closure to this debate. According to the authors, both sides believe that the meaning of the constitutional text is fixed at ratification, but they "diverge sharply on the object of their interpretation."  Those who believe in original intent think it is the enactors' subjective intentions that matter while those who favor the original public meaning approach believe that constitutional interpretation should be guided by the meaning of the text as "reasonably und

Supreme Court Becomes Another Brick in Trump's Wall

by Michael C. Dorf **Updated and corrected Friday's Supreme Court order permitting the Trump administration to begin construction on a border wall using funds that were appropriated by Congress for other purposes was not exactly a ruling on the merits. Nonetheless, if one follows the clues in Justice Breyer's separate opinion, it becomes apparent that five justices have tacitly accepted Trump's absurd claim that the situation at the southern border addresses "unforeseen military requirements." That language appears in the 2019 military appropriation act that the government relied upon to shift funds to border wall funding. The government's argument parallels the equally absurd claim that the declaration of "a national emergency . . . that requires use of the armed forces" (as required  by another statute ) authorizes the freeing up of other funds to build the border wall. Below I explain why the Court's order might reflect a favorable vie

Lab-Grown Meat and Other Followups to "Veganism, Year Eleven"

by Neil H. Buchanan Yesterday, I published my annual veganniversary column here on Dorf on Law : " Veganism, Year Eleven: Capitalism and Freedom ."  In it, I offered my standard update on what it is like to live as a vegan, noting that "veganism is ascendant" in the sense that in the first-world places that I frequent, the food industry is enthusiastically responding to market demand for better and wider vegan choices. I then noted that this virtuous cycle -- better vegan products encourage more people to eat vegan food (even people who do not self-identify as fully vegan), which encourages more restaurants and food stores to supply better vegan options, which encourages still more people to eat vegan food, and so on -- is one of the best arguments available in favor of capitalism properly understood.  That is, if capitalism is the system by which demand and supply interact in ways that are superior to central planning -- put differently, if Adam Smith's inv

Veganism, Year Eleven: Capitalism and Freedom

by Neil H. Buchanan Yesterday was the eleventh anniversary of my becoming a vegan -- my veganniversary, as I still insist on calling it -- making today's column the first opportunity to offer my annual musings on all things vegan.  (Interested readers with time on their hands might want to read one or more previous veganniversary columns: 2018 , 2017 , 2016 , 2015 , 2014 , 2013 , 2012 , 2011 , 2010 , 2009 , and the original announcement in 2008 .  In my excitement in 2008, I also wrote a followup column a week later.) I will divide my thoughts today into two categories.  First, I will offer some very anecdotal observations about living as a vegan in a world where attitudes about veganism are becoming interestingly complicated.  Second, I will use the increasing availability of vegan foods in mainstream stores and restaurants to make a point about why I am happy to call myself a capitalist in the way that Senator Elizabeth Warren calls herself a capitalist -- and, honestly, in

The Troubling Resemblance of Asylum Eligibility to the Tort System

by Michael C. Dorf In my latest Verdict column , I criticize what I dub the Trump administration's new "Apply in Guatemala or Mexico" rule barring migrants who arrive at the US-Mexico border from seeking asylum here if they did not previously seek asylum in a country they traversed en route. As I explain, absent a safe-third-country agreement of the sort that Guatemalan President Jimmy Morales did not enter with the US earlier this month, the policy is plainly illegal. I also argue that if such an agreement were entered, it too would be illegal, albeit not subject to judicial challenge. In this accompanying essay, I want to say a few words about asylum eligibility more broadly. As indicated by the title, I'll then suggest a troubling similarity to the tort system. The federal asylum statute was enacted to implement in domestic law the international obligations of the US under the Convention Relating to the Status of Refugees . Both domestic and international law

Robert Mueller's Testimony Should Be Unnecessary; It Could Be Harmful; Use it to Open Impeachment Inquiry

by Michael C. Dorf Tomorrow's scheduled appearance of Robert Mueller before Congress will be covered breathlessly by the media but will likely be unenlightening and unimportant. I base that assessment on the following: (1) Mueller has already made clear that he does not intend to say anything that's not in his Report; (2) that rules out an answer to the one question to which his answer could possibly move the needle on public opinion--whether, absent the DOJ policy he followed barring indictment of a sitting president, Mueller would have concluded there was sufficient evidence to charge Trump with  obstruction of justice; (3) absent new revelations, which (1) forecloses, the Senate will not remove Trump even if the House were to proceed to impeach him; and therefore (4) the public hearing holds substantial risks for Democrats. After explaining the logic of (1) - (4), I'll suggest that (5) Democrats can mitigate those risks and maybe even benefit by playing their cards r

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

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.

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.

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 peo

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 quic

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

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 h

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 i

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 fo

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 exce

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 su

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  Rucho decision. 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. Ordinar

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

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 b