Showing posts from March, 2023

Complaints About "Virtue Signaling" Amount to Claims that There Is No Such Thing as Virtue

by Neil H. Buchanan One of the most obvious strategies that Donald Trump uses is to accuse other people of doing or being exactly what he is doing or being.  He tries to cheat people, so he accuses everyone of trying to cheat him.  He will stop at nothing, so he claims that his opponents will stop at nothing.  He is a racist, so he calls Democrats -- even (especially) non-White Democrats -- racists.  He peddles hatred of all kinds, so he says that everyone else hates him and his supporters. As in so much else, however, this too is a matter in which Trump is merely acting like Republicans have always acted -- only more shamelessly.  That is, this is yet another way in which Trump is not a break from the Republican Party but merely its most noxious logical next step.  He lacks almost all of the restraints and minimal niceties that have characterized the rest of his party in the post-Civil Rights era, because he does not bother with cover stories, whereas Republicans spent decades perfect

Our (Buchanan's & Dorf's) New Paper: "Justice Delayed: Government Officials' Authority to Wind Down Constitutional Violations"

by Neil H. Buchanan & Michael C. Dorf  In addition to our individual and joint writing for this blog, on Verdict , and occasionally elsewhere (e.g., here ), over the last decade-plus, we have published half a dozen works of co-authored scholarship that aim at a more academic audience. Those papers address topics that overlap with our respective expertises in economics and constitutional law. We are very pleased to announce our latest scholarly collaboration, which will appear in its final form later this year in the Boston University Law Review, but is available in a preliminary version now : Justice Delayed: Government Officials' Authority to Wind Down Constitutional Violations . Here's the abstract: Upon finding that a government program is unconstitutional, courts in the United States sometimes allow executive officials a grace period to wind it down rather than insisting on its immediate cessation. Courts likewise occasionally afford a legislature a grace period to repe

Toxic Disingenousness and the "I Know You Are, But What Am I?!" Response

by Neil H. Buchanan In three recent columns , I examined American conservatives' recently intensified bullying of weak and vulnerable people.  At one point, I wrote that "toxic masculinity explains a great deal of the actions and views of today's Republican Party."  The simplicity of that conclusion honestly surprised me -- as I put it there: "When I finished writing the first of those columns, I thought: 'Wait, is that really all there is?  Did I honestly just rediscover that toxic masculinity is toxic, and that it has poisoned the American (and global) right?'" -- but it would have been dishonest to avoid that conclusion merely because it was so obvious in retrospect. After the third of those columns ran, I received an email with the subject line "Toxic Masculinity" that began with a friendly "Hello Professor Buchanan" and jauntily continued (in its entirety): Just a note about your recent posts. Certainly toxic masculinity

The Difference Between a Bad Joke and Not a Joke

by Michael C. Dorf Last week's oral argument in  Jack Daniel’s Properties, Inc. v. VIP Prods., LLC  was difficult to handicap. On one hand, various Justices seemed skeptical of the argument for plaintiff Jack Daniel's that the Court should completely reject the test used by the Ninth Circuit and originally developed by the Second Circuit--under which the First Amendment imposes a threshold requirement for plaintiffs asserting that expressive works infringe trademarks. On the other hand, there was uncertainty about how to integrate that test--or any other test that gives ample protection for free speech--with the statutory requirements of the Lanham Act. I remain of the view I expressed in my Verdict column in advance of the argument: parodists should be given wide latitude and thus I'm sympathetic to the defendant maker of the poop-themed dog toy "Bad Spaniels." Rather than parse the oral argument closely, however, I want to devote today's essay to something

Fake Masculinity, Real Racism, or Both

by Neil H. Buchanan Is the current version of the conservative movement all about fake masculinity or real racism?  Obviously, there is plenty of evidence that both problems exist in abundance, and there is no reason not to answer with a rhetorical question: Why not both?  Indeed, the two would seem to reinforce each other.  Even so, it is worth trying to think about them separately, which I will do here.  The answer either way will be ugly, so there can be no happy ending to today's column.

Macho Blowhards and a Certain Political Movement

by Neil H. Buchanan Earlier this month, a rather amusing exchange occurred during a committee hearing in the US Senate.  This entertaining video clip is only four and a half minutes long and is definitely worth viewing, but I offer here a transcript of the key exchange to set the stage for today's column: Senator Markwayne Mullin: Union pipe-fitters decided they were gonna come after us.  They would show up at my house !  They'd be leaning up against my trucks.  [Sneering]  I'm not afraid of a physical confrontation.  Fact, sometimes I look forward to it.  When that didn't work, they started picketing our job sites, saying 'Shame on Mullin.'  'Shame on Mullin'!  For what?  For what?  Because we were payin' higher wages ?  Because we had better benefits , and we wasn't requirin' them to pay your guys's exhorbitant salaries?  You talk about CEO's that're makin' all this money?  And what do you make, Mr. O'Brien? [Mul

Free Speech on Campus: A Constitutional Void

By Eric Segall It is rare that a week goes by without some major public controversy involving free speech at a public or private university. In Florida, Governor Ron DeSantis wants to essentially purge public universities of honest discussions of race, diversity, gender, LGBTQ+ issues, and America's past. So far, courts have said  no .  At Stanford last week, Judge Kyle Duncan was greeted with much hostility, which he seemed to invite, resulting in videos showing him calling Stanford Law students "idiots" and then running off to cry to the media about how he was treated. This incident , widely reported on, has many causes and there's plenty of blame on all sides. Both public and private universities have controversial hate speech codes that many scholars and judges think are either unconstitutional or bad policy because they go beyond punishing true threats or harassment, while others believe such codes are essential to protect traditionally marginalized groups.  Off

How Plausible is the Melania Defense?

  by Michael C. Dorf Despite Donald Trump's incendiary announcement that he will be indicted and arrested today, there is no good reason to think that he has access to any inside information. After all, we are talking about a man who, as President, typically did not read classified briefings prepared specifically for him but spent hours watching cable news. He does not base his pronouncements on reliable sources, much less facts. Nonetheless, there is good reason to think that Manhattan District Attorney Alvin Bragg's office will secure a grand jury indictment of Trump in the coming days or weeks, even if not in the next few hours. Accordingly, in today's essay I shall preview what I'll somewhat inaccurately call the "Melania defense." Trump is likely to be charged with falsifying business records by recording as legal fees his reimbursements to fixer Michael Cohen for payments Cohen made to Stormy Daniels as hush money. As Professors Ryan Goodman and Andrew W

Raccoon Dogs, Pigs, Birds, Most of Your Diet, and Other Vectors of Zoonotic Disease

by Michael C. Dorf As Republican politicians continue to push the improbable (but not completely ruled out by the evidence) hypothesis that the COVID-19 pandemic originated in a lab leak (or, in the fever dreams of their conspiracy theorists, as a bioweapon), new evidence has emerged suggesting a specific species as the more likely zoonotic origin: DNA from the (illegal) Wuhan live animal market that has been the focus of the most attention points to raccoon dogs as a possible source. I say "possible" because the evidence is raccoon dog DNA and COVID-19 in samples taken from the live market very early in the pandemic; it's possible that the raccoon dogs were infected after COVID-19 had already begun to spread from some other source, but given that other coronaviruses can spread from raccoon dogs to humans, the raccoon dog hypothesis merited a recent story in  The NY Times . Let's begin with the obvious: raccoon dogs (which are closely related to foxes, wolves, and dog

Childish Manliness and the Anti-Woke Macho Panic

by Neil H. Buchanan One of the formative moments of my adolescence was when I first heard the (probably apocryphal) story about a commoner who was invited to a special dinner with the queen.  As the story goes, when a finger bowl was placed in front of the nervous guest, he thought it was for drinking and quickly gulped downed the water.  While the assembled royals sneered and tittered, the queen calmly picked up her finger bowl and drank it as well. That story is so well known that there are endless variations in its telling, but that is precisely because it makes such an important point -- a point that is reflected in other life lessons and aphorisms, including (the needlessly gendered) "a man never stands so tall as when he stoops to help a child," or simply "Don't be a jerk!"  The idea is that growing up and being good involve learning to be part of something larger and caring about -- or at least noticing and minimally respecting -- the humanity of others.

Is this Blog's Name Problematic? An Agreeably Dissenting View

by Neil H. Buchanan Does it matter whether the people engaged in something potentially offensive know that they are running the risk of causing offense?  Of course it does, but how completely does lack of intent or knowledge get a person off the hook?  There is no general answer to that question, but Professor Dorf's column yesterday -- "Jack Daniel's, Confusion, and the Problematic Origin Story of this Blog's Name" -- presents an opportunity to explore some nuances through an example in which we have access to an unusually large amount of the relevant facts. The fundamental issue is whether the punny inspiration for this blog's name -- a series of videos in the 1980's by the comedian Tim Conway, the first of which was titled "Dorf on Golf" -- is potentially offensive enough to suggest that we should change that name.  (Although he only mentions the one video, I should note that there was more than one, with my limited memory dredging up only

Jack Daniel's, Confusion, and the Problematic Origin Story of this Blog's Name

  by Michael C. Dorf My latest Verdict column previews next week's Supreme Court oral argument in Jack Daniel's Properties v. VIP Products .   For those of us who teach and generally write about constitutional law--and thus spend a whole lot of our professional time gritting our teeth at the latest claim by Messrs. Thomas, Alito, et al that the original (and supposedly widely shared) understanding of some vague constitutional term just happens to align perfectly with the Republican Party's ideological agenda in the 21st century--the Jack Daniel's  case is a welcome diversion. At a minimum, the case illustrates that the people who operate Jack Daniel's and/or its corporate overlord Brown-Forman are a bunch of stuffed shirts. Our first clue might have been that the company insists that its booze is "Tennessee whiskey" rather than bourbon. But if there were any doubt, the case now before SCOTUS shows that, despite the company's protestations in its brie

Constitutional Law, Constitutional Litigation, and the Truth About Constitutional Text

By Eric Segall There are many parts of the United States Constitution that seem unfair, outdated, and have terrible consequences. Article I requires that that there be two senators from every state regardless of population, which means North Dakota and California have the same power in the Senate even though California has 39 million people and North Dakota has roughly 800,000 people. Many Americans would prefer to vote for the President directly rather than through the constitutionally required electoral college. Article V makes amending the Constitution almost impossible--surely a bizarre feature for a document written centuries ago by and for white propertied males alone. And even the prescribed date of January 20th for presidential inauguration in the 20th Amendment is problematic. The two-and-a-half-month transition period allows a lame-duck president to accomplish considerable mischief--including fomenting an insurrection!--but a substantially earlier inauguration date could a

The Potential Political Consequences if SCOTUS Dismisses the North Carolina "Independent State Legislature" Case

  by Michael C. Dorf Earlier this month, the Supreme Court issued an order  to the parties and the Solicitor General directing them to brief the question whether the Court still has jurisdiction to decide Moore v. Harper , in light of the North Carolina Supreme Court's decision to rehear the case from which Moore is an appeal. Readers may recall that Moore presents the question whether Article I, Section 4 of the Constitution--which assigns to state legislatures the authority to determine the manner of elections for Congress--precludes state court judicial review under the state constitution of political gerrymandering. The petitioners are Republicans who object to the North Carolina Supreme Court's invalidation of the map drawn by the GOP-controlled legislature and its remand to the trial court to supervise the drawing of (or itself draw) a new map. The Supreme Court heard oral argument in the case in December. As I noted at the time , it was not the finest (nearly three) ho

Netanyahu's Political Takeover of the Courts

  by Michael C. Dorf In addition to its hardline policies in other domains, the current far-right coalition government in Israel is rapidly moving to undercut the independence of the nation's courts. The details of the legislation moving forward in the Knesset (Israel's unicameral parliament) under the sponsorship of Simcha Rothman differ somewhat from the version proposed by Justice Minister Yariv Levin. However, bloc voting by members of the parties forming the ruling coalition ensures that once they iron out their differences, some version of the measure will go through--unless Prime Minister Netanyahu judges the political cost too high. Yesterday brought a ray of hope, when Netanyahu seemed to open the door to a compromise proposal by Israel's (mostly ceremonial) President Isaac Herzog, but that's no reason for protesters to ease the pressure. With the disclaimer that I am not an expert in Israeli politics (or in Israeli law, for that matter), I will say that I

The Tightening Grip of Authoritarianism Is Not Limited to Florida

by Neil H. Buchanan Over the last several years, I have in varying contexts predicted that the US will soon no longer be a constitutional democracy, that we will witness the end of anything resembling the rule of law in this country, and that there seems precious little that we can do to stop any of that from happening.  The most dramatic and direct way for that to happen would have been for Donald Trump to have succeeded in his efforts to supplant the results of his 2020 loss.  At that point, there would no longer have been even the fig leaf of democratic legitimacy, and an unbound Trump would have been -- as he put it to his most devoted followers at a conference a few days ago -- "your retribution."  Meaning, of course, his retribution. To my surprise and delight, that did not happen in 2020/21 (though only barely).  Even so, the evidence of creeping authoritarianism was all around us, and Republicans' rapid pivot from post-insurrection shock to denialism made it all

Of Bruen, the Second Amendment, and Constitutional Insanity

 By Eric Segall Last week, I wrote an essay explaining why New York State Rifle & Pistol Ass'n v. Bruen ,  decided last June by the United States Supreme Court, is one of the most radical, anti-originalist, ahistorical, and tragic decisions of my lifetime. Bruen  directs judges to perform a text, history and tradition only analysis to Second Amendment cases without any judicial balancing of the government's interest in the challenged law against the importance of the asserted right to "keep and bear arms." As I wrote here , this rejection of judicial balancing of rights against the public good would have been universally rejected by the ratifiers of both the Second and Fourteenth Amendments and the public during both time periods.  Bruen is an anti-originalist opinion written by the Court's staunchest originalist Justice- Clarence Thomas. Oh, the irony. This Friday I head to New Orleans for a symposium on judicial review and democracy where I will argue that

Can Florida Require Bloggers to Register with the State? 'The Crucible' Comes to Academia in 2023

by Neil H. Buchanan " Florida bill would require bloggers who write about the governor and legislators to register with the state," warns the headline of an NBC news article .  As it happens, I did not come across that article on my own; it was sent to me by one of my nieces, who added a question: "Have you seen this?"  Generally speaking, I assume that my family is only vaguely aware of what I do, so when one of them (who is a novelist, not a news junkie) brings something like this to my attention, I have to assume that it is big news even outside of my siloed world. And that supposition, in turn, suggests to me that the state legislator who proposed the bill might merely be trolling.  How better to Own the Libs, after all, than to suggest something outrageous to grab attention, watching non-Republicans get their panties in a bunch about possible government censorship?  On the other hand, things that were only recently unimaginable in my current home state are now

Should We Rename the Democratic Party? An Inadvertently Interesting Suggestion From a Trolling Politician

by Michael C. Dorf Last week, Florida state senator Blaise Ingoglia proposed a bill that would "cancel" the Democratic Party. The "Ultimate Cancel Act" (as the bill itself labels the measure) does not mention any party by name but requires the state's election authorities to "cancel" any "political party, if the party’s platform has previously advocated for, or been in support of, slavery or involuntary servitude." That's a not-at-all-veiled reference to the Democratic Party. Why? Because prior to realignment, the Democratic Party, especially in the South, was the party of slavery and then Jim Crow. Thus, most of the worst white supremacists were Democrats before Nixon's Southern Strategy led them and later racists to make their home in the Republican Party, which, into the 1960s, was still the "Party of Lincoln." To state the obvious, the bill is absurd. Ingoglia is apparently a longtime critic of "cancel culture"

Again, this is Not Our Parents' Republican Party

by Neil H. Buchanan When now-President Biden was running for the Democratic Party's nomination in 2019 and 2020, he was roundly mocked by people like me for talking about how well he would be able to work with his Republican pals after their inevitable post-Trump " epiphany ." A year or so into his presidency, Biden finally acknowledged reality with a speech in which he emphasized the label "MAGA Republicans," differentiating between the people he used to know and the extremist movement that Republicans have now become.  The not-entirely-rare group of people like Liz Cheney, who have been drummed out of the party that they once defined, are probably who Biden had in mind as non-MAGA Republicans, even though they are not welcome in the Republican Party anymore. To end the week, I want to use this space to offer a reflection on the theme of how much American conservatives have changed.  In doing so, I will look at how even some of their worst old habits have morp

Of New Rules and New Applications of Old Rules

by Michael C. Dorf My latest Verdict column discusses last week's SCOTUS opinion in Cruz v. Arizona . In a 5-4 opinion for the Court by Justice Sotomayor (joined by the other Democratic appointees plus CJ Roberts and Justice Kavanaugh), the Court held that it had the authority to review and then reversed the Arizona Supreme Court's rejection of John Montenegro Cruz's challenge to his death sentence. The trial judge had failed to inform the sentencing jury that rejection of a death sentence would result in life imprisonment without parole (LWOP). That clearly violated Simmons v. South Carolina .   However, the Arizona Supreme Court held that Cruz could not bring a second state post-conviction claim because his case didn't fit a state law exception for when there "has been a significant change in the law that, if applicable to the defendant’s case, would probably overturn the defendant’s judgment or sentence.” That was quite dubious because Cruz pointed to Lynch v.

Standing for Gravediggers? A Comment on the SG's Concession in the Student Debt Forgiveness Case and a Coda on the Major Questions Doctrine and Fairness

by Michael C. Dorf Over the course of two oral arguments and more than three and a half hours yesterday, the Supreme Court considered challenges to the Biden administration's student debt forgiveness program. I have written about these cases before, both on the blog-- here and more recently here --and in an essay in The Nation . In today's essay, I'll make a point regarding the oral argument that builds on my previously articulated view that the plaintiffs lack standing. I'll also offer brief observations about two other aspects of the arguments, one involving the major questions doctrine and the other concerning a fairness issue that was raised by Chief Justice Roberts and then pushed by Justice Alito.