Showing posts from December, 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