Showing posts from December, 2022

Final Classic of the Year: The Morality of Abortion

  by Michael C. Dorf [The following essay first appeared on the blog on July 3, 2017 under the title  Can Non-Sentient Entities Have Interests? (and Other Questions Raised by a Recent Review of Our Book) . I thought it an appropriate piece to re-post as the last classic of the year in light of the urgency questions about abortion have taken on post- Dobbs. I also thought it appropriate, as it reflects not only my views but also Sherry Colb's. The essay takes the form of a response to a book review, but it's more important as an exegesis of a view about when abortion is and isn't immoral, as well as about the proper relation between that kind of question and the law.] The latest issue of  Between the Species , an online philosophy journal, contains  a review  by Philosophy Professor Mylan Engel, Jr., of my book with Professor Sherry Colb,  Beating Hearts: Abortion and Animal Rights . (Engel's paper is styled an "article" because it is substantially longer than

Sociopathy, Antisocial Politicians, and Republicans Before Trump (a Dorf on Law Classic)

Note to Readers: For my final "classic" of the holiday season, I continue my theme of looking at the Republican Party in the years before its Trumpian turn.  From just over ten years ago (October 26, 2012), this column discusses what it means to be sociopathic in the political context and how the Republican Party had by 2012 already taken a dramatic turn toward antisocial dysfunction. Calling It As It Is -- Posted by Neil H. Buchanan In my new  Verdict  column,  published yesterday , I describe the current leadership of the Republican Party -- very much including Mitt Romney and Paul Ryan -- as "sociopathic."  Needless to say, I did not do so lightly.  This is not a matter of mere name-calling, where (for example) Obama-haters empty their limited thesauruses by calling him a communist, fascist, socialistic Kenyan.  All of these words actually have meanings, and sociopathy does as well. As I explain in my column, sociopaths display extreme anti-social tendencies, bei

Blame Trump, A Trump-Appointed Judge, and SCOTUS For Title 42's Perpetuation, But Also Blame the Biden Administration (New Content!)

  by Michael C. Dorf Yesterday the Supreme Court--by a 5-4 shadow docket ruling--extended the stay previously granted by the Chief Justice of a DC Circuit decision that denied Arizona and other states intervention to defend the Title 42 protocols that deny asylum seekers entry into the U.S. via the usual process to which they're entitled. If you had on your Bingo card the Democratic appointees plus Justice Gorsuch dissenting (in a published dissent joined by Justice Jackson), congratulations. That was the lineup in Arizona v. Majorkas . The case as it reaches SCOTUS does not involve the merits. The Court stayed the DC Circuit judgment so that it could resolve only the intervention question following expedited briefing and plenary argument in February. As a practical matter, that means that the Title 42 protocols will remain in effect for now, even though yesterday's per curiam order states that it "precludes giving effect to the District Court order setting aside and vacat

Government as All-Powerful Demon: The Emptiness of Pre-Trumpian Conservatism (a Dorf on Law classic)

Note to readers: Frankly, it bothers me that there is nothing new to read or watch this week.  There is very little new content in the major papers, the late-night comedy shows are on hiatus, and pretty much everything else is on autopilot.  This is in part because both Christmas and New Years Day -- which are both legal holidays, notwithstanding (for the former holiday) the separation of church and state (or what remains of it) -- happen to fall on a Sunday this year.  But in any event, everyone seems to be on vacation right now. Including us!  Even Americans, who notoriously refuse to take time off, have decided that this is a dead zone.  But at least we here at Dorf on Law are willing to dig into our archives to find classic columns that resonate with current events.  With the post-midterms discussion having now turned to the once-unimaginable idea that the Republican Party might turn against Donald Trump, I am continuing my Classics theme (which I began last Thursday ) of revivi

An Oldie but Goodie: What Would You Do If You Were a Supreme Court Justice?

 By Eric Segall Many people aren’t working this week or working less, so as Mike and Neil explained yesterday and the day before, we thought it would be a good time to repost timeless essays. This one originally ran in 2015. It asks the question: “What would you do if you were a Supreme Court Justice?” Happy Holidays!

A Holiday Classic on Hanukkah, Thanksgiving, and Christmas

by Michael C. Dorf As Prof Buchanan noted yesterday , for the holidays, we hear at DoL will be running "classics," i.e., reruns. For your reading pleasure, below I reproduce an essay that first ran on Thanksgiving, 2013 . If you're starved for more recent content, you can also check out my latest  Verdict column:  Lessons from Sam Bankman-Fried’s Brief Stay in a Bahamian Jail . Okay, here's the classic: The True Meaning of Thanksgivingukkah Today is "Thanksgivingukkah," the extraordinarily rare--as in  once in 70,000 years --convergence of Thanksgiving and the first day of Hanukkah. The strange confluence has provided pundits with the opportunity to promote oddball recipes like turkey corpse cooked in Maneschewitz wine or sweet-potato latkes. For me, as both a vegan and an ethnically-identifying-but-non-religious American Jew, the coincidence of these two problematic holidays provides an interesting opportunity for reflection. I find that the two holidays ar

The Slide Toward Autocracy Began Long Ago (a Dorf on Law Classic)

Note to readers: Beginning today and running through the end of 2022, we here at Dorf on Law will be on our annual December hiatus, as part of which we will re-publish "classic columns" that strike us as relevant and useful reading for those among us who continue to want to engage with ideas over the holidays.  We will, as always, keep our eyes out for breaking news that could inspire and justify writing a new column between now and the 1st, but otherwise, we will be recharging our batteries and wishing all of you the best. by Neil H. Buchanan The column below was first published on August 6, 2009 -- less than three years after the birth of Dorf on Law .  Upon re-reading it, I was depressed anew at how obvious the slide toward authoritarianism has been all along -- long preceding Donald Trump's time in the White House -- and how much worse things have gotten only in degree, but not in kind. In the magazine business, what editors call a "big sentence" (a sentenc

Were Trump's Lawyers Foot Soldiers or Ringleaders?

by Michael C. Dorf “Ours is not a system of justice where foot soldiers go to jail and the masterminds and ringleaders get a pass." -- Rep. Jamie Raskin (D., Md.), member of House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, Dec. 19, 2022. -------- In the first years of the current millennium, Vice President Dick Cheney received considerable assistance from talented attorneys who offered at best extremely tendentious arguments for the lawfulness of what Cheney and others in the George W. Bush administration euphemistically termed "enhanced interrogation"--thus greenlighting a policy of torture. The main lawyers involved in the effort--David Addington (as counsel to the VP and known as "Cheney's Cheney"), Jay Bybee (Bush's first head of the Office of Legal Counsel), and John Yoo (Bybee's deputy)--were investigated but not prosecuted for war crimes by a Spanish judge and ultimately suffered only modest reputational conse

Should We Care About the Far Distant Future and Infinite Human(oid) Happiness?

by Neil H. Buchanan Human beings will not be recognizably human forever.  Does that undermine our moral obligation to protect future not-human beings from harm, where possible?  From my perspective, the answer is almost certainly no, but that is because I am an ethical vegan, a viewpoint that quite explicitly defines our moral obligations not exclusively toward humans but toward any beings capable of sentience and the experience of pain.  Humans evolved from apes, going back to trilobites and single-celled organisms, but even if that were not true, the life forms that exist today that meet the threshold of ethical veganism's concerns are still worthy of our moral respect and -- at the very least -- should not be killed or tortured for our own pleasure. I start today's column with this somewhat abstract observation because I want to return to the topic that, bizarrely, Sam Bankman-Fried's crypto collapse has suddenly made relevant: "effective altruism" (EA) and it

Top Ten Worst SCOTUS Moments of 2022

 By Eric Segall This was a no good, terrible, very bad year at the Supreme Court of the United States. Here are my top ten worst moments of 2022 (in no particular order).  This post is not about how much I disagree with almost all of the big cases from 2022 but rather about the moments that should be a reminder to us all that the six conservative justices who now control the highest court in the land are just, well, terrible, even apart from their votes.

The Effective Altruism Fig Leaf Never Truly Covered the Shame Underneath

by Neil H. Buchanan If you are a smart, ambitious young person who wants to live a comfortable life, you can never go wrong by making it your business to tell rich people what they want to hear.  And what they want to hear is that they are gracious, wonderful paragons of virtue who deserve everyone's admiration and who should keep doing what they did to make all of that beautiful money. I am fairly certain that the first time I saw a version of that statement was in an article written by the all-time great political economy professor John Kenneth Galbraith ( also known for his critiques of "the conventional wisdom").  A short online search did not turn up a pithy quote, and it might not in fact have been from Galbraith; but in any event, the observation is plainly true.  One way to see this is by recalling the horrified response from the super-wealthy when Barack Obama hurt their feelings by saying that their financial activities might need to be regulated more effectiv

(Re-)Assessing Effective Altruism and Earning to Give After Sam Bankman-Fried

by Michael C. Dorf Just a few months ago, Sam Bankman-Fried was the most prominent proponent and (self-described) practitioner of a certain brand of effective altruism . Does Bankman-Fried's arrest on federal fraud and conspiracy charges discredit effective altruism? Should it? Let's dig in. The term effective altruism refers broadly to the unassailable notion that in acting selflessly to benefit others, one should aim to do so effectively. For example, if you are deciding whether to make a $100 donation to either of two organizations that provide food and shelter to hungry unhoused persons, and organization A uses 100 percent of its charitable donations to provide goods and services whereas organization B uses 40 percent of donations to cover administrative costs (including high salaries for its executives), then, other things being equal, you should give your money to A rather than B. That "other things being equal" is important, however, because even with its much

Tales of Professional Incompetence, and an Effort to Explain Them

by Neil H. Buchanan A friend of mine once said: "It's amazing that anything works.  Most planes don't crash and most buildings stay up, even though people are pretty much f*ckwits."  In some fields -- most obviously politics -- one can tell a very plausible story as to why the outright idiots (Marjorie Taylor Green, Louie Gohmert, Jim Jordan, et al.) and what we might call the idiot poseurs (Ted Cruz, John Neely Kennedy, Josh Hawley, et al.) begin to dominate a game played on a field defined by gerrymandering and voter suppression and their combined impact on party primaries. In most fields, however, one need not believe in an all-knowing Invisible Hand to imagine that somehow the more competent people will generally rise to the top.  Yes, there will be nepotism (Trump's kids) and family money buying credentials (Jared Kushner's acceptance into Harvard), but the post-World War II professionalization of the professions (yes, I meant to be redundantly redundan

Constitutional Law Exam 2022: Even the Federalism Question Invokes the Culture War

  by Michael C. Dorf A couple of weeks ago I described the challenge I faced writing a constitutional law exam in light of the recent (claimed) turn to history by the SCOTUS. I don't know whether I rose to the challenge, but I did write an exam. And while I grade my students' answers, you, dear reader, can try your hand at it. Note: Q1 is based on a case currently in the New York courts. Assume Myrontana is a state of the U.S.

The Year Originalism Became a Four-Letter Word

 By Eric Segall The Justices are done hearing cases until January so it is time to take stock in what has been a  monumentally important year at the Supreme Court. There's a lot to talk about but this post focuses on one significant point: this was the year originalism became a four-letter word.  In June of this year, the Supreme Court of the United States issued four landmark decisions, all decided by 6-3 partisan votes. The Justices returned the issue of abortion to the states (and potentially Congress), dramatically enlarged gun rights, and weaponized the free exercise clause to require Maine to support parents of children in religious schools and to forbid a school district to punish a public-school football coach who on several occasions prayed at the fifty-yard line while he was still responsible for his students. All four Justices who identify as originalists joined (or authored) each decision, including Justice Alito, who used to mock originalism but now seems to embrace i

Is Trump's Diminished Position Perversely Bad for Democracy?

by Neil H. Buchanan Shortly after the midterm elections, I wrote two complementary columns ( one on Verdict , the other here on Dorf on Law ) in which I argued that the prospects for the survival of American constitutional democracy had improved in several undeniable ways, even as the remaining avenues for a successful Republican effort to create a one-party autocratic state are distressingly undiminished. I then argued that Donald Trump continued to be the potential Republican presidential nominee in 2024 who most clearly could destroy democracy, precisely because he is the most likely to lose the election but then induce Republicans to exploit those remaining avenues -- one of which is a strategy called violence -- to overturn the results and install Trump as president. Even though I argued that avoiding that result would not save democracy for long, it was still important to say that Trump was the biggest danger, especially in the immediate term.  In turn, that would mean that a

So Much Wasted Time in the Independent State Legislature Oral Argument

by Michael C. Dorf The oral argument yesterday in Moore v. Harper lasted nearly three hours and yet various Justices seemed to be in so much of a rush--or simply wanted to interrupt the advocates before they finished answering the Justices' questions--that there was no time to make some important points, even as a great deal of time was spent on issues that aren't presented. Let's start with the biggest time waster. David Thompson, arguing on behalf of the North Carolina legislature, conceded for the sake of argument that the North Carolina Supreme Court gave North Carolina statutes and the North Carolina Constitution a permissible interpretation, regardless of what standard SCOTUS uses in these cases to review a state court's application of state law--whether the completely deferential test federal courts routinely apply pursuant to the Erie doctrine or the somewhat less deferential (but still deferential) test articulated by Chief Justice Rehnquist for himself and J

If Older White Voters Want to Go Against Their Own Interests, Why Stop Them? Let Me Count the Ways

by Neil H. Buchanan What's the matter with Kansas so much of the United States?  One of the enduring questions posed by the last few decades of Republican extremism is why so many people vote against their own interests in favor of the party of plutocrats. Thomas Frank turned himself from merely an excellent journalist into a brand name with his 2004 instant phenomenon: What's the Matter with Kansas?   What happened to the prairie populism that sent people from Kansas and other lightly populated states -- like Senators Frank Church of Idaho, Dick Clark of Iowa, Tom Daschle of South Dakota, and other center-left types in the second half of the Twentieth Century -- to serve in Congress?  Democrats used to be very competitive there, and although Kansas itself surprised everyone this year with a resounding defeat of an anti-abortion constitutional referendum in August and the reelection of their Democratic governor over a Trumpist Republican in November, the middle of the count

Some Culture War Moments in the 303 Creative Oral Argument

  by Michael C. Dorf Here on the blog last week, both Professor Segall (on Friday)  and I (on Thursday)  acknowledged that 303 Creative v. Ellenis-- which pits a web designer's free speech against same-sex couples' statutory right against discrimination--presents some difficult questions. Yesterday's two hours and twenty minutes of  oral argument in the case did little to make it much easier, even though some Justices (especially Alito, Gorsuch, and Kavanaugh) characterized the disagreement between the sides as fairly narrow. In a Verdict column tomorrow, I'll explore the costs and benefits of various ways in which the Court can try to decide the case without either gutting anti-discrimination law or effectively eliminating a right of expressive businesses to refuse to create works they deem odious. In today's essay, I'll address a few side points raised during the argument, beginning with the not-so-subtle signaling by the web designer's lawyer--Kristen Wa

Cognitive Bias, Rationality, and the Cost of a Ride on Lyft

by Neil H. Buchanan Having written at length over the last few months about the looming political disasters that face us, I will use today's column to talk about something far less consequential, yet still (I hope) interesting.  The broad question for the day is how human psychological quirks are used in social and economic analysis.  The narrow question is why Lyft does not (seem to) have an option for non-a la carte purchases.  Is it possible, I ask with an almost-straight face, that "the market" is not completely efficient?  Gasp!

Of Free Speech, Non-Discrimination, and the Futility of Originalism

 By Eric Segall Next week the Court will hear oral argument in 303 Creative LLC  v. Elenis. This controversy involves a wedding website designer who does not want to extend her services to same-sex weddings despite a Colorado law requiring her to do so. The case is a hard one because it pits important principles against each other: the right of the people to free expression against the state's interest in non-discrimination. Mike wrote a thoughtful piece about the case yesterday.  The point I want to emphasize about this case is how useless originalism is to its resolution and that no one should pretend otherwise. To illustrate this futility, I will focus on an amicus brief  (in support of the Court hearing the case) written by a number of all-star first amendment and originalist scholars including Michael McConnell, Richard Epstein, Mark Scarberry, Larry Alexander, Robert George, Steven Smith, and numerous other constitutional law heavyweights. If they can't show the relevanc

A Selective Preview of the SCOTUS Oral Argument in 303 Creative v Ellenis (Web Designer Claiming Free Speech Right Not to Promote Same-Sex Weddings)

  by Michael C. Dorf Next week the Supreme Court will hear oral argument in  303 Creative v Ellenis , which poses the question that the Court ducked in the Masterpiece Cakeshop case in 2017: whether the application of a public accommodations law to a business owner who provides expressive goods or services violates the business owner's right to free speech where the goods or services convey a message of celebration of or support for same-sex marriage and the business owner opposes same-sex marriage? In Masterpiece Cakeshop the Court ducked the issue by deciding the case on the ground that members of the Colorado Civil Rights Commission expressed religious bias ( a dubious interpretation of the record, in my view ). Although 303 Creative also comes from Colorado, and although the plaintiff's certiorari petition sought review on issues of both religious liberty and free speech, the Court took the case to consider only the free speech issue. It's possible that the Court might