Showing posts from September, 2022

Is Putin Bluffing?

  by Michael C. Dorf Just about everybody who heard Vladimir Putin say "I'm not bluffing" when he threatened nuclear war last week probably thought, as I did: (a) Well that's terrifying; and then (b) but the fact that he says he's not bluffing hardly demonstrates that he's not bluffing, because admitting that one is bluffing would undercut the point of bluffing. Needless to say, whether Putin was bluffing is an existential question. Here I'll offer a few thoughts--recognizing that I have no special expertise in this matter but also recognizing that the people who do have expertise may not be very good at this sort of thing either, as it calls for game theory, military intelligence, and most importantly, a psychological assessment of a man who has been isolated from direct interaction with anyone who might provide useful information.

Content-Free Content and the Republicans' Commitment to Vacuousness

by Neil H. Buchanan At some point during Donald Trump's temporary occupation of the White House, Republicans decided that they did not need to be in favor of any specific policies.  Instead, they only needed to be in favor of outcomes that people like, such as "prosperity" and "strength."  Suddenly realizing that they could simply skip over the means and directly embrace the ends, Republicans apparently concluded that they did not need to bother explaining to anyone how they would move us away from American carnage and toward the wonderful world of great-again greatness. This was most famously on display at the 2020 Republican National Convention, when the party decided not to issue a new version of its quadrennial platform, saying instead that they were in favor of whatever Trump wanted to do.  That was a rather astonishing moment, because no one had ever confused a party platform with an action plan from a serious public policy think-tank.  Even endless plati

What Futile Proposals Can Achieve

by Michael C. Dorf My latest Verdict column urges Congress to enact legislation making clear that Title VI of the Civil Rights Act of 1964 does not bar race-based affirmative action by recipients of federal funds. As I explain in the column, depending on when such legislation went into effect, it would either prevent or reverse a decision by SCOTUS in the pending Harvard case, in which the Court will very likely hold that Title VI forbids nearly all race-based affirmative action. My proposed statute would do nothing for public colleges and universities like the University of North Carolina, the defendant in the companion case, because the Court will likely invalidate race-based affirmative action in that setting using the Fourteenth Amendment's Equal Protection Clause. Still, a half-victory via Congress is better than a total defeat via the Supreme Court; thus, my proposal. However, as I acknowledge in the column, Congress almost certainly won't take the action I recommend, wh

We Don't Know What a Democracy Is, but We Know What it Isn't -- and This Is Not a Democracy

by Neil H. Buchanan   American democracy continues to blunder forward, with even the most informed people imagining that although things are scary, somehow everything is as it has always been.  In my most recent Dorf on Law column , I commented on some shockingly blase comments by David Leonhardt, who is a New York Times columnist and a former Washington bureau chief at that important newspaper.   Leonhardt managed not only to bothsides the idea of gerrymandering but also to dismiss the extent of Republicans' redistricting successes, barely suppressing a yawn while concluding that "the current House map slightly favors Republicans, likely by a few seats."  So sure, he insinuated, maybe Republicans are doing the whole gerrymandering thing a bit more aggressively than Democrats are, but the extent of their success is "slight," only amounting to "a few seats."  Time to move on to other, more sexy, topics.  Right? In last Thursday's column, I lambas

The Supreme Court and Race: A Sordid History is About to Repeat Itself

 By Eric Segall The Supreme Court’s new term starts a week from today with several scary cases on its docket. Among them are two affirmative action cases . It is more than likely that the Court will issue a decision prohibiting both public universities and private ones that receive federal funds from using race in any way in their admissions processes. And, once again, the Court will stand directly in the way of racial progress. In 1857, the Supreme Court stopped Congress from prohibiting slavery in the territories despite express constitutional text granting Congress the power to make all “rules and regulations” for those territories. In 1883, the Supreme Court prevented Congress from prohibiting racial discrimination in places of public accommodations such as hotels and restaurants despite Section 5 of the 14th  Amendment, which gives Congress the power to enforce the equal protection clause. But in 1896, when Louisiana required separate (and obviously unequal) seating compartmen

Nit-Picky Procedural Criticisms of the Migrants' Suit Against Ron DeSantis et al

by Michael C. Dorf In addition to the possibility of criminal charges for their role in using Venezuelan migrants as what I called human spears in my Tuesday blog post , Florida Governor Ron DeSantis, other Florida officials, and the State of Florida itself now also face a civil lawsuit filed on behalf of the migrants. The complaint  alleges a much more elaborate plot to trick the migrants than has been widely reported. For example, one of the plaintiffs was (allegedly) put up in a hotel for five days and told by someone secretly working for DeSantis that if her "family got on the flight" the DeSantis agent had "arranged, then Plaintiff would be provided with permanent housing, work, educational resources for her son, and help changing her address for immigration proceedings." The factual allegations, if true, indicate that this was indeed a carefully calculated ruse and stunt. But what about the law? The complaint asserts common-law, statutory, and constitutional c

Why Is It So Difficult for Pundits to Understand Gerrymandering?

by Neil H. Buchanan   At long last, the mainstream press and some of the pundits who are accepted in polite society are taking more and more seriously the idea that the US might soon cease to be a functioning constitutional democracy.  I continue to believe that it is already too late to prevent the worst from happening, but I also remain willing to reassess my predictions as new evidence comes in. Although Democrats have recently been feeling better about their chances in the midterms, there are still plenty of reasons to think that it will all go very badly for them (and the country) on November 8.  As but one among many examples, despite being one of the weakest candidates in the history of the country, Georgia's Republican candidate for the Senate is actually leading in the polls.  No matter how extreme or crazy (or blatantly dishonest ) the Republican nominees are for key gubernatorial and US Senate races, there is no evidence of any dams breaking as people sa

The End of a Pandemic Is Not an All-Clear Signal -- But It Is Good News All the Same

by Neil H. Buchanan     For the past several months, Covid-19 has continued to kill between 2500 and 3000 people every week .  This is good news only when compared to pre-vaccine times, when the Covid death rate was much higher .  It would thus be inaccurate to say, for example, that "Covid is over," or that everything can go back to normal again. Some deniers were in fact saying irresponsible things along those lines from the very beginning, and they were and are wrong.  President Biden, however, did not say that.  He said during a recent interview that the pandemic is over, which can be true even while it is also true that we need to continue to worry about Covid-19 going forward.  Unsurprisingly, however, many people immediate jumped on Biden for his comments. Biden was right, and even though some commentators are characterizing the White House's efforts to clarify the situation as "walking back" his comments, the better way to think about it is to say tha

Ron DeSantis Appears to Have Admitted to Violating the Texas Criminal Law

  by Michael C. Dorf Let's begin with the moral point. Even if one believes that federal immigration policy needs drastic reform, using undocumented immigrants as pawns and weapons is despicable. A recent Washington Post story thus aptly compared Texas Governor Greg Abbott and Florida Governor Ron DeSantis to Belarusian dictator (and Putin ally) Alexander Lukashenko, who sought to weaponize migrants by deceiving them and sending them across the border to ostensibly more welcoming states but jeopardizing their health and safety in the process. The WaPo story also calls out Turkish President Recep Tayyip Erdogan for a similar policy. To be clear. It should be acceptable for an immigration hardliner to make the rhetorical point that liberals are hypocrites for opposing immigration crackdowns while secluded in exclusive enclaves like Martha's Vineyard. Maybe they're right; maybe they're wrong. The "limousine liberal" charge is an old one that may have more or les

Ten Ways To Improve our Constitution in Honor of Constitution Day (Or in Other Words, My Personal Constitutional Fantasy)

 By Eric Segall Saturday September 17, 2022 was officially Constitution Day in America, though many universities (like mine) are celebrating it today. Our Constitution is the oldest written Constitution governing an entire country. Ratified in 1789, it has been amended only 27 times and 10 of those happened in 1791 (The Bill of Rights).  It certainly feels like the Constitution is failing America these days (though it can reasonably be argued that Americans are failing America these days). In any event, in honor of Constitution Day, here are my ten most important proposals to improve our foundational document. On one hand, I understand this is all pure fantasy. On the other hand, shouldn't we take a hard look at a document that was ratified over 200 years ago? This list obviously reflects my personal biases and values. How could it not? Other than number one, which I feel is the most important, the list is in no particular order. 1) The Constitution should be amended to guarantee e

A Supremely Dark Future Way Ahead of its Time

By Eric Segall On October 18, 2018, I wrote the piece below for this Blog. I dated the fictional and what I thought satirical letter to my Granddaughter August 24, 2045. Boy was I off the mark as that dark future came much sooner than expected in many of its doctrinal predictions (also I wrote this before Justice Barrett was nominated to the Court). This piece is sadly more timely today than when I wrote it so thought I'd post it one more time. Constitutional change can come very quickly, and as I've paraphrased Richard Posner many times, if changing judges changes law, do we know what law is? The letter is exactly as I wrote it almost four years ago.

Is Democracy Still Doomed? If So, How Bad Will Things Become?

by Neil H. Buchanan My life has recently been dominated by extraordinary events, some heartbreaking and others validating , so it seems a good idea to try to return to something like normal.  Unfortunately, what has counted as normal for me over the last seven years has been to provide commentary about the ongoing decline and fall of the American experiment.  While I have been otherwise occupied over these last few months, has anything happened to offer some hope that this country's descent can be arrested and maybe even reversed? There have, I am pleased to say, in fact been more than a few heartening developments on the social and political fronts.  Unfortunately, the larger story is that the tide is still not going to be turned.  My goals in this column are to explain why there is still every reason to think that our slide into autocracy will continue (if not accelerate), and then to offer a few thoughts about just how bad things will become.   At Dorf on Law , we occasionally

RFRA and the Right-Wing Two-Step

  by Michael C. Dorf My latest Verdict column  discusses an execrable ruling by Federal District Judge Reed O'Connor. He construes the Religious Freedom Restoration Act (RFRA) to exempt a for-profit corporation with 70 employees from the requirement--which implements a provision of the Patient Protection and Affordable Care Act--that employee health insurance cover PrEP, a medication that greatly reduces the risk of infection with HIV/AIDS. Why? Because the owner of the corporation believes on religious grounds that covering PrEP would make him complicit in same-sex sex acts, all sex acts outside of (opposite-sex) marriage (the only kind of marriage he recognizes), and illicit drug use. How? Well, because people who take PrEP will be less deterred by the risk of HIV/AIDS and will thus be more likely to engage in such activity.  As I explain in the column, the decision is outrageous--so much so that I found that I couldn't really come up with any hypothetical examples of simila

Boris, Elizabeth, and the Rot of Inherited Privilege (a retitled Dorf on Law classic)

Dear Dorf on Law Readers: In light of the momentous transformations in the UK over the past week or so -- the forced departure of a privileged buffoon who had somehow become Prime Minister, quickly followed by the death of a ceremonial monarch -- it seems apt to republish a column that I wrote almost three years ago, then titled " Downton Economics (psst, it’s not capitalism!) ."  Enjoy!     by Neil H. Buchanan I am choosing not to write about impeachment today, opting instead to discuss fantasy and history.  Specifically, I want to offer some thoughts inspired by the TV show "Downton Abbey" and its new sequel movie of the same name, the latter of which I saw this past weekend.  But fear not: You do not need to have seen (or liked) the show to follow the argument here. After briefly summarizing the relevant aspects of the show and film, I will focus on a particularly odd theory that the writers invoke to justify the class-based aristocratic system that

Fractional Originalism and the Fourth Amendment's Trespass Test

by Matthew Tokson In recent years, the Supreme Court has adopted a trespass test in Fourth Amendment law, holding that the Fourth Amendment applies to government encroachments on a person’s property, among other things. This addition to Fourth Amendment law was mostly seen as a victory for privacy advocates. For example, see last week’s ruling by a federal court  that chalking the tires of parked cars to determine if they’d overstayed the parking limit was a Fourth Amendment search, requiring a warrant. Decisions like this seem quirky but ultimately favorable to criminal defendants and citizen privacy.  In reality, however, these cases can result in police using far more intrusive and technologically advanced forms of surveillance. The trespass rule does not necessarily bolster privacy on net. And it has already made something of a mess of Fourth Amendment law. Arbitrary, poorly designed rules eventually start to produce bad outcomes, no matter how benign they seem at first.

Why Universities Matter (aka Buchanan on Lawsky on Buchanan on Dorf on Law)

by Neil H. Buchanan This week, my law school (the University of Florida Levin College of Law) initiated a series of celebrations of the work of those of us who are honored to sit on "eminent scholar chairs" in various areas of the law.   As I explained at the beginning of Wednesday's column, " Lawsky on Buchanan on Dorf on Law ," I was the first on the list of honorees, and we held the inaugural event on Tuesday of this week.  I then turned over the remainder of that column to Professor Sarah Lawsky, whom we had invited as the outside speaker to evaluate and sum up my scholarly work to date.  Because Professor Lawsky is much better organized than I am, she had written her remarks in advance, which made for an interesting and engaging talk and allowed me to ask for her permission to publish the text of her remarks on this blog.  (Obviously, she generously agreed.)   After she spoke on Tuesday, it was my turn.  Again, I am not particularly well organized, and I h

Of Love and Loss

By Eric Segall Followers of this blog know that Mike, Neil and I have each suffered great losses over the last few weeks. Mike lost his wife Sherry Colb, Neil lost his sister, and my best friend of 45 years and college roommate lost his wife Bonni the day after Sherry passed. In fact, I was on my way to Sherry's funeral when Rob called me to tell me Bonni had died. I am so grateful to Mike, whose name is on the blog, to let me write my weekly posts for the last decade mostly about how the Court isn't a court, how originalism is mostly about faith not reason, numerous other legal issues, and, from time to time, about personal matters, sometimes very serious, like when my Mother died, and sometimes trivial, like my love for the NBA. Writing a weekly post, while obviously often self-indulgent, has been a great release for me over the years and I greatly appreciate Mike and Neil, and the regular readers of this blog, for putting up with all this.  So with all that as a disclaimer,

Lawsky on Buchanan on Dorf on Law

by Neil H. Buchanan   This year, the University of Florida's Levin College of Law is holding a series of events honoring the professors who hold Eminent Scholar Chairs at the college.  Yesterday was the first such event, and as it happens, I was the first person to be feted.   After introductions by Professor Charlene Luke and Dean Laura Rosenbury, my friend and tax colleague Sarah Lawsky offered some very generous remarks about my work, after which I addressed the audience, followed by Q&A and a lovely reception for those of us who attended in person (which, for reasons that I will explain some other time, unfortunately could not include Professor Lawsky). Professor Lawsky has generously allowed me to post her remarks below.  In my Dorf on Law column on Friday of this week, I will summarize the comments that I delivered at the event. Scholarly Impact: Sarah Lawsky Celebrates Neil Buchanan's Academic Impact and Contribution   by Sarah Lawsky   I’m truly honored to be here

Trump’s Fourth Amendment Arguments and the Mar-a-Lago Search

by Matthew Tokson Following the FBI’s search of Former President Trump’s Florida estate, most attention has focused on Trump’s call for a special master to review the seized documents. Trump filed a complaint in federal court asking for the appointment of an external party to review each of the documents to filter out those that implicate executive or attorney-client privilege. As fate would have it, his case was assigned to Judge Aileen Cannon, a Trump appointee. Before the government's response brief was submitted, Cannon issued a preliminary order indicating her intention to appoint a special master. On Labor Day morning, she granted the request  for a special master and and enjoined the DOJ from further reviewing any seized documents. At the least, Trump has succeeded in delaying the investigation and obtaining a thorough privilege review. Ultimately, however, Trump's complaint is largely premised on Fourth Amendment claims rather than privilege claims. His strategic goals

Abortion and Physician Assistance in Dying: A Sherry Colb Classic

[Editor's note: The following column first appeared on Verdict on March 23 of this year, after the Dobbs oral argument but before the leak or release of the opinion. Sherry's linkage of the Court's abortion jurisprudence to its no-right-to-die jurisprudence was prescient: Justice Alito's Dobbs  opinion leaned heavily on the test for unenumerated rights articulated in the Glucksberg case, despite the fact that it had been essentially repudiated already. The linkage was also more direct. Sherry believed strongly in what she called a right to a peaceful death, as reflected in the column republished below, a completed but not yet published draft of a law review article (which I'll see through to posthumous publication on her behalf), and her personal choices: had her illness not worsened so suddenly, she had planned to travel either to Switzerland (where non-citizens are permitted to physician aid in dying) or possibly Oregon (where the same is at least theoretically

Remembering and Celebrating Sherry Colb

by Neil H. Buchanan   A week ago today, Professor Michael Dorf posted on this blog the sad news of Professor Sherry Colb's passing earlier that morning. As he noted, Professor Colb was one of the bloggers on Dorf on Law , and she was also his "co-author, colleague, best friend, and wife for over 31 years."  Earlier this week, I posted a few brief comments but conceded that I was not yet prepared to wrestle with my emotions in a way that would allow me to write a proper eulogy.  I added that "I will soon publish my own thoughts about the death of my wonderful friend and colleague."   I am still not truly ready, but I doubt that I ever will be.  Here, I will do what I can.  As an aside, I generally maintain a certain formality in my writing on Dorf on Law .  Under the circumstances, however, I will set that practice to one side as I discuss personal matters.   Because Mike's published eulogy was so beautiful, I asked him whether it would even be appropriate