Showing posts from November, 2021

Teach Your Parents Well

by Neil H. Buchanan   Generally, I like to think that I "get" American politics.  That does not mean that I understand what is going on in, for example, Ted Cruz's head when he says that "voter fraud is real.  It is a problem ... Voter fraud has been persistent from the very first election that has ever occurred."  There is no there there, but even so, I get what he is up to.   That is not to say that this is not puzzling, even on its own terms.  Particularly coming from someone who has claimed merely to be representing people whose unspecified "concerns" about the 2020 election supposedly need to be closely examined, I understand neither why Cruz is now saying unequivocally that people's worries about voter fraud are based in fact, nor why he is backing up that claim with something as pathetic as: "There's always been fraud, I mean, amirite folks?!"  That is not a direct quote, but it might as well be.   But as Professor Dorf pointe

With Amici Like These: Two Awful Briefs From Mississippi's Insurrectionist Friends

  by Michael C. Dorf On Wednesday, the Supreme Court will hear oral argument in Dobbs v. Jackson Women's Health Organization , a challenge to Mississippi's Gestational Age Act, which, with limited exceptions, forbids abortions after 15 weeks into pregnancy. The law clearly violates the Constitution under existing doctrine. To be sure, Mississippi's original certiorari petition contended that the questions it presented "do not require the Court to overturn"  Roe v. Wade   or Planned Parenthood v.   Casey , but  the state's merits brief and numerous supporting amicus briefs ask the Court to do just that. And for good reason. Mississippi cannot plausibly win the case otherwise. As Judge Patrick Higginbotham wrote for the Fifth Circuit panel that struck down the law, "[i]n an unbroken line dating to Roe v. Wade , the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability,"

Beyond Rittenhouse: The Future of an Armed Public

  by Michael C. Dorf In two articles published earlier this year, I addressed the problem of armed clashes at rallies, marches, and protests, referring to the Capitol insurrection and other lethal events--including Kyle Rittenhouse's conduct--in the introduction to each article. Because I do not teach, nor am I otherwise an expert in criminal law, I do not have anything especially noteworthy to add to the voluminous commentary that we have already seen on the Rittenhouse verdict last week. Instead, I'll focus my attention on the broader problem of political violence and the still broader problem of gun violence. I shall, however, refer back to one aspect of the Rittenhouse case below.

The Dangers of Political Despair, or, Put On a Happy Face

by Neil H. Buchanan   In one of my Dorf on Law columns last week, I acknowledged the glaringly obvious reality that my mood in writing about the future of the US political system can reasonably described as despondent.  I then added: "Even people as pessimistic as I am, however, never quite give up hope.  I have never told anyone, for example, not to bother trying to save the American constitutional system.  Indeed, I have said that I admire people who are unwilling to give up until the fight is finally lost." It turns out that I am hardly the only person who is struggling with the sense of doom that hangs over American constitutional democracy.  More than 150 academics have now signed a letter calling on Democrats in the Senate to suspend the filibuster and pass the Freedom to Vote Act.  They write: "This is no ordinary moment in the course of our democracy. It is a moment of great peril and risk."  They say that all is not yet lost: "Defenders of democ

Interpreting Law and the Useless Debates Over Textualism and Purposivism

 By Eric Segall                                                                                 "Stop Worrying Where You're Going, Move On"                                                                                                                                                                                                                                                                                                           Stephen Sondheim, Sunday in the Park with George                                                                                                         Is a fish a "tangible object" in a statute designed to combat white collar and other economic crimes? Does someone "carry" a gun in violation of federal law when the gun is in the glove compartment or trunk of a car?  Does the phrase "discrimination because of sex" in a federal employment discrimination statute prohibit adverse employment decisions based on LG

A Potentially Friendly Amendment to the Buchanan/Dorf Debt Ceiling Work Disguised as a Misguided Critique

  by Michael C. Dorf A new article in the Yale Law Journal  by Emory law professor Matthew Lawrence argues that in deciding separation of powers cases, courts ought to take account of racial, sexual, class-based, and other forms of subordination in addition to the other values--such as liberty and efficiency--that concern courts and scholars. I much agree. Insofar as text is unclear, as it typically is in the cases of concern, there is no reason to exclude such important constitutional values from the calculus. I thus have no quarrel with Professor Lawrence's core thesis and indeed welcome it. But--yes, there is a but--in the course of illustrating his thesis, Professor Lawrence invokes the debt ceiling scholarship that I have co-authored with Professor Buchanan as a principal example of the sort of equity-disregarding or worse, even equity-undermining, position he is arguing against. In so doing, he misreads us and the broader literature.

Anti-Environmentalism for the Good of the Poors

  [Note to readers: In my new Verdict column today, " Democracy Is Dying, But We Do Not Have to Lose Our Souls ," I confront one of the more shocking comments that I have seen recently from a non-Republican.  Earlier this week, Washington Post columnist Max Boot casually but enthusiastically encouraged Joe Biden to contrive a "Sister Souljah Moment," suggesting that Democrats distance themselves from anti-racists by targeting and denouncing people who Boot thinks are harming the Democrats' brand.   [I honestly never thought that I would see someone invoke the Sister Souljah controversy as a positive model for political strategy -- certainly not someone who otherwise so often makes intelligent contributions to the political discourse.  I frame my shocked response around an extended reference to a Stanley Kubrick film, "Paths of Glory."  That rhetorical setup might or might not work for readers, but I thought it was important to put under the glare of

Mistaking Inferences for Penalties

by Sherry F. Colb Earlier this week, I listened to a debate on Intelligence Squared about whether Cancel Culture is toxic. As I knew would happen before the debate even began, the participants soon started arguing about whether Cancel Culture exists. Two believed that it does and two that it doesn't. If you think that Cancel Culture is a myth, then you are likely ignoring a lot of undisputed facts on the horizon (sorry). And if you believe that free expression means that no one should be able to draw inferences about you from what you say, then you are at war with the rules of logic.  Of course there is such a thing as Cancel Culture. What do I mean by that? I mean that people who have said things that were either unpopular or insensitive or even offensive have faced consequences that were grossly disproportionate to what--if anything--they deserved. An atmosphere in which people of good faith routinely feel the need to say "I would never state this publicly, but...." is

The WhatAreYaGonnaDo Response to Climate Change

by Neil H. Buchanan I have been back on the road this semester, again giving talks to mostly academic audiences regarding two of my primary research interests: intergenerational justice and a critique of orthodox economics .  Although the UK and EU are still in various stages of partial reopening, I have been fortunate to be welcomed back onto several campuses by colleagues during my sojourn on this side of the pond.   As always, the exchanges are stimulating and intellectually productive -- sometimes in unexpected ways.  During the discussion period after one recent lecture, for example, I was surprised to find myself responding to one questioner's blunt climate denialism.   My surprise was the result of two things.  First, the substance of my lecture was not focused on the question of climate change itself.  To be sure, I brought up the topic and took a position on it, but I did so as a way of setting up what I thought was a more interesting question about how to compare dif

The Spurious Constitutional Issues in the OSHA Vaccine Mandate Litigation

  by Michael C. Dorf Yesterday,  a panel of the U.S. Court of Appeals for the Fifth Circuit stayed  the Biden Administration's vaccine mandate for employers with 100 or more employees. The bottom line is wrong but not entirely unreasonable, as I shall explain. However, in the course of its opinion, the Fifth Circuit states (but does not ultimately rely on) an extremely dangerous view of two constitutional issues: the scope of congressional power under the Commerce Clause and the limits on congressional power to delegate rule making authority to federal agencies. Its statements on these points are reactionary. Unfortunately, at least one of them may portend an unwelcome doctrinal change from the conservative supermajority on the Supreme Court.

For the Alternative Medicine Community, the Fact that Ivermectin has not been Approved for COVID is a Feature, not a Bug

  by Michael C. Dorf In his terrific new book, Choose Your Medicine: Freedom of Therapeutic Choice in America , historian and law professor Lewis Grossman traces the expert-skeptical democratic strand of American thought about health and medicine to centuries-old patterns. Such expert-skepticism is hardly irrational. For most of human history, a healthy skepticism towards mainstream medicine was, well, healthy. Horrors like the 1799 deathbed scene of George Washington that Grossman recounts were all too common. To treat the Father of our country, "who was suffering from a severe throat infection," doctors "dosed him with calomel and tartar emetic, applied blisters to his throat and legs, and drained about half of the blood from his body." Even today, too much medical practice relies on habit and anecdote. For example, many obstetricians prescribe bed rest for a wide variety of pregnancy complications, despite the evidence that bed rest does not improve patients'

Government as All-Powerful Demon: The Emptiness of Pre-Trumpian Conservatism

by Neil H. Buchanan   Big Bird (who, I now know, is supposedly six-years-old) publicly announced that he had been vaccinated as soon as anti-Covid shots were approved for school-aged children. Ted Cruz found out about this and -- not having any interest in doing his job -- used his Twitter-troll time this week to grumble : "Government propaganda ... for your 5-year-old."   Notwithstanding the various forms of snark that I tossed into the paragraph above, Cruz is not my focus here.  He happens to be endlessly mockable, but I want to use his own-the-libs tweet simply as a recent, vivid example of something that conservatives have been doing for generations: personifying and then vilifying this thing called The Government.   This particular culture-war moment will soon be forgotten.  What is interesting is that even after having become completely Trumpified, movement conservatism still lapses back into tired tropes about Big Brother.  Is it good news that they still have nothin

The Troubling Phenomenon of Enforced Unlaws

by Matthew Tokson Recently, ProPublica broke a remarkable story  about Black children in Tennessee who were jailed for a crime that didn’t exist. A juvenile court commissioner charged several children for witnessing a fight between two other children and failing to stop it. This is not a crime in Tennessee. But there was a video of the fight on YouTube, and the police officer investigating it wanted to charge the onlookers with a crime, perhaps because the fighters themselves were too young to be charged. She and a judicial commissioner at the local juvenile court dug through Tennessee’s laws and found a “Criminal responsibility for the conduct of another” statute , which described general principles of accomplice liability but did not itself define any crimes. They used this statute as the basis for an arrest petition, and police arrested several children at their elementary school later that day. Ten children were ultimately charged in the case, six girls and four boys. All four boys

The Attack on Academic Freedom at the University of Florida Might -- Might -- Boomerang in a Good Way

by Neil H. Buchanan The University of Florida, my home institution, is in serious damage-control mode.  As I explained in a column last Friday, the administration of the state's flagship campus recently decided that several of my faculty colleagues could not testify in lawsuits that have been brought to challenge policies enacted by Florida's current group of ruling politicians.  Late last week, the administration then partially reversed course after receiving tons of negative attention and condemnation from around the U.S. and the world.   I say "partially" because there is still some uncertainty as to what is and is not allowed at this point, with some possibly-expansive prohibitions against using "university resources" apparently still in place  The university's administration has created a task force to try to come up with a better policy, which should not be especially difficult, given that there are longstanding best practices at the top public u

Injunctions Against State Judges Are Appropriate in the SB-8 Litigation

 By Eric Segall If you are reading this blog, you are almost certainly aware that last week the Supreme Court heard arguments regarding the constitutionality of Texas law SB-8 which prohibits all abortions in Texas after six weeks but provides only civil, not criminal, enforcement of the statute and only by private actors. This obviously unconstitutional law under still binding Supreme Court precedent was the brainchild of a former Justice Scalia clerk (of course) and its intent was to 1) stop most abortions in Texas, and 2) preclude any meaningful pre-enforcement review of the law.  It appears that at least two or three of the conservative justices will side with the liberals to strike down the law mostly because they were worried that blue states could pass similar laws regarding gun and free exercise rights. In this blog post, I want to focus on one of the re-occurring issues that came up in the oral argument: can federal judges issue injunctions against state court judges? 

Administrators Have Inflicted Damage on the University of Florida: How Much Can It Be Mitigated?

by Neil H. Buchanan   The University of Florida found itself in an unwelcome spotlight this week.  Under an unconvincing and evolving set of rationales, the university's administration had limited the ability of several UF professors to provide expert advice in legal cases challenging policies adopted by the current Florida legislature and governor.  A Miami Herald article lays out the facts of the situation nicely. As I will explain momentarily, these decisions and public relations blunders have already damaged the University of Florida's national and global reputation.  As a professor at UF's Levin College of Law, that damage concerns me greatly, not only because of its effect on my colleagues but for the collateral effects that it will have on our students.   There is, unfortunately, no way to un-ring this bell.  Damage has been done.  The only question now is how quickly the university can change course and try to contain and mitigate the repercussions.  We received

Critical Race Theory and the 2021 Election

  by Michael C. Dorf For Democrats like me, the results of the off-year election just held are very concerning. How concerning? Here's what I tweeted yesterday morning: My "optimistic" take on the election results: If current trends continue, Republicans will win back Congress in '22 & prez in '24 w/o needing to lie about and override the vote. We will have awful policy, including voter suppression, but some semblance of democracy could survive. That bit of sardonic humor prompted one Twitter follower to observe that my bleak outlook sounded more like my co-bloggers Prof Buchanan and Prof Segall than my own apparently often more sanguine self. To be clear, although my tone is not necessarily as apocalyptic as theirs, there's not a lot of daylight between our substantive views and projections. Perhaps I'm just better at hiding it when I want to write about something other than impending doom. And guess what! Today I want to write about something other t

Closing the Loop on Anti-Government Dogma: Is Every Tax Unconstitutional?

by Neil H. Buchanan   How far will Republicans go with their anti-tax jihad?  Long before any reality TV bigots came along, America's conservative party defined itself by its opposition to taxes.  They claim to hate deficits, and they certainly hate any government spending that helps Those People, but even when they have been given the opportunity to trade $1 of increased taxes for $10 of spending cuts, the self-styled Party of Fiscal Responsibility emphatically rejected any increases in tax revenues. Last week, in the midst of everything else that is going wrong in the world, Republicans' anti-tax mania was given the opportunity to rear its ugly head when Senate Democrats proposed their so-called Billionaires Tax (BT).  Conservatives immediately claimed that the BT was most assuredly -- for some reason to be determined later -- an unconstitutional abomination, so I wrote a Verdict column explaining that the BT was not only constitutional but trivially so.  I followed up her

Two SCOTUS SB8 Oral Argument Hot Takes: On Constitutional Remedies and Novelty

  by Michael C. Dorf Today's oral argument in the two SB8 cases produced a great many interesting moments. I'll leave the reading of the tea leaves to others. Here I want to focus on two sets of questions. The first was an exchange between Justice Barrett and Marc Hearron, the lawyer for the Center for Reproductive Rights, who represented the private-party plaintiffs in the first argument,  Whole Woman's Health v. Jackson . It involves the question whether there is a constitutional right to prospective injunctive relief issued by a federal court. Mr. Hearron gave what I thought were suboptimal answers, but the correct answers ought not to have damaged his overall case. The second set of questions arose in the first case but primarily were discussed in the second one, United States v. Texas ,   when newly minted Solicitor General Elizabeth Prelogar pushed back against questions by Justices Thomas and Gorsuch (as well as others), who wanted to characterize the cause of action

The Sweet Spot Between the Cletus Safari and the Herman Cain Award

by Michael C. Dorf Ever since the 2016 election, journalists for mainstream centrist-to-liberal outlets like the NY Times , Washington Post , and NPR have periodically ventured into Trump territory to listen to what the volk have to say. This sort of travelogue is so common that it has even earned a pejorative nickname:   a "Cletus Safari" , after a stereotypical hillbilly character on The Simpsons . The Cletus Safari is often at least ostensibly sympathetic.  Look. Sure, these white working class folks in the Rust Belt or rural America sound like racist and xenophobic theocrats, but you have to understand that ever since the plant closed and the opioid crisis hit, they've had it hard, so that's just projection. Admittedly, even the ostensibly sympathetic Cletus Safari is patronizing in the way that attributions of false consciousness always are. But despite that and many other problems, Cletus Safaris usually do not traffic in overt hostility for their subjects. Cont