Showing posts from April, 2023

Disney v. DeSantis, Trump v. Hawaii, and Citizens United v. FEC

  by Michael C. Dorf The lawsuit by Disney against Florida Governor DeSantis makes constitutional claims under the Contracts Clause, the Takings Clause, and the Due Process Clause, as well as two First Amendment claims. In this essay I focus on the fourth cause of action, which strikes me as the central claim and certainly the one that the narrative portion of the complaint most clearly tees up: that the legislation DeSantis promoted and signed to abolish the Reedy Creek Improvement District (RCID) and replace it with an institution beholden to the governor was retaliation for Disney's exercise of its First Amendment right to free speech--in particular, its criticisms of the so-called Don't-Say-Gay law. Disney's factual claims seem unassailable. Its legal position is also strong, but it intersects interestingly with two highly controversial SCOTUS cases. In today's essay, I'll compare and contrast Disney's First Amendment claims with  Trump v. Hawaii , which up

Use Your Words (but not really): The Problem of Eggshell Conservatives and Disney

by Neil H. Buchanan  In my most recent Dorf on Law column, " Law Schools Should Continue to Develop Critical Thinking Skills, Not Become Finishing Schools ," I revisited what I (and many, many other people) view as the core purpose of law schools and higher education more generally: not memorizing codes, not becoming "practice ready," not "useful" majors or courses, and certainly not presuming that students do not know that the behavior that is expected in a court of law or in the workplace is not the same as on campus.  No, as the title of the piece makes clear, the core purpose is to teach students to think critically. After I wrote that column, I suddenly thought to myself (using my mock-horror inner voice): Oh crap, I just used the word 'critical'!  In Florida!!  And I'm a public employee!!!  Oh, the horror.  What, oh what, shall I do? Indeed, in addition to using the word "critical" in the title of that piece, I used it three

A Long Day's Journey into Legal Realism

By Eric Segall There was a time when I thought constitutional law was a combination of text, history, precedent, and, of course, the personal values of the justices. I now know that Erwin Chemerinsky was right when he wrote in a famous Foreword to the Harvard Law Review that "constitutional law is now and always has been about values....There is nothing else." I began to learn that hard lesson when I was a young lawyer at the United States Department of Justice.  I was the lead attorney in a federal case defending various federal programs giving different kinds of aid to public and private schools, including religious schools. A large part of the case involved the constitutionality of the federal government giving equipment and materials other than textbooks to private religious schools. The  problem for my case was quite simply that the Supreme Court had unequivocally held in Wolman v. Walters and Meek v. Pittenge r  that the government was not allowed to provide religious

Law Schools Should Continue to Develop Critical Thinking Skills, Not Become Finishing Schools

by Neil H. Buchanan Yesterday was the last day of classes at my law school, which is as good an excuse as any to reflect on some of the timeless issues that educators face in every area of learning.  Here I want to consider two related questions: What do law schools do? and What should law schools do (and not do)? As I teased in the title of this column, law schools are not -- and do not need to be -- finishing schools, teaching students to be well-behaved young ladies and gentlemen.  We law professors are, however, instilling habits and values that matter both to the legal profession and to society at large. Who might imagine otherwise?  The answer might surprise you.

Statutory Stare Decisis: Mifepristone Meets Sunday Mail Delivery

by Michael C. Dorf The Supreme Court's stay order in Danco Labs v. Alliance for Hippocratic Medicine   both restores the status quo ante (under which mifepristone can be distributed in the mail) and provides an opportunity for an orderly consideration of the plaintiffs' claims.  However, because the case has been sent back to the Fifth Circuit--which already upheld (in a stay posture) the part of Judge Kacsmaryk's preliminary ruling that invalidated the FDA's 2016 expanded access to mifepristone, there is a fair chance that the plaintiffs will prevail again in the lower courts, thus ensuring that the case returns to the Supreme Court. The expedited appeal could mean a ruling in a few weeks or at most months, with a cert petition soon to follow, and thus a SCOTUS oral argument next Term. If and when the case returns to the Supreme Court, there are multiple grounds on which the plaintiffs should lose. My personal favorite is standing. The main route to standing offered by

The Pardon Power and Anti-Circumvention: A Trump Imprisonment Follow-Up

by Michael C. Dorf I recently wrote a Verdict column on whether a person imprisoned on conviction of a crime can serve while in prison and an accompanying blog post on whether, if such a president were imprisoned pursuant to a state criminal conviction, he could successfully challenge his custody through a federal habeas corpus petition. Comments I received via email and on social media raised related questions about circumvention. In one example, a president might use the 25th Amendment to circumvent limits on the pardon power. In the other, a president might use the pardon power to circumvent a provision of Section 3 of the Fourteenth Amendment. Let's start with a very brief recap. Suppose Donald Trump is tried, convicted, and sentenced to prison for a crime but then wins the presidency. Depending on the nature of the crime, he could be subject to impeachment and removal for it. He also could be deemed "unable to discharge the powers and duties of his office" within t

Do Law Schools Truly Have to Worry About Students Not Being Able to Handle Real-World Disagreements?

by Neil H. Buchanan I have continued to dig into the controversy that erupted after some students at Stanford Law School temporarily disrupted a talk last month by a visiting speaker (an extreme right-wing judge from the 5th Circuit).  Thus far, I have published three columns on the topic: the first on Verdict last Thursday, the second here on Dorf on Law last Friday, and the third today on Verdict .  The column that you are reading right now is thus the fourth in an unplanned series, with another likely coming next week. There is no need to summarize all three of those columns here, so I will limit myself to saying that today's Verdict piece can be boiled down in significant part to this: Reader: How should a university respond to a situation like Stanford's, where a national arch-conservative trolling operation contrived a controversy for national political consumption? Me: Do you know how Stanford in fact responded? Reader: Yes, they punished the one person who did th

What We've Got Against Trillion-Dollar Platinum Coins

by Neil H. Buchanan and Michael C. Dorf As we explained in an essay on this blog late last month, we have a new academic paper available in which we consider the source of and limits on the authority of government officials to delay curing constitutional (and other legal) violations upon discovering them. As we noted, the last part of the paper extends the analysis beyond questions that involve winding down (rather than immediately ceasing) ongoing violations to circumstances in which government officials might be obligated to initiate a new course of unconstitutional (or otherwise illegal) action. Our principal example of the latter circumstance concerns the obligations of the president in the period leading up to a potential standoff with a Congress that refuses to raise the debt ceiling--a not-at-all-hypothetical period in which we currently find ourselves living. Our prior essay teased an upcoming Verdict column on a piece of the analysis that is only tangential to our article:

True Threats, Free Speech, and Federalism

 By Eric Segall Tomorrow the Supreme Court hears oral arguments in Counterman v. Colorado , which raises the issue whether the first amendment prohibits the State of Colorado from prosecuting people for stalking under an objective test that does not require proof that the defendant subjectively intended to harm his victim (disclaimer: Mike and I both signed on to a brief in the case on the side of the state).  The defendant in the case sent numerous threatening and harassing social media messages to the plaintiff which would have objectively scared just about anyone. Even after the victim repeatedly blocked him, he found a way to send her more vile communications. Nevertheless, there is a circuit split over whether a person can be punished for this kind of abuse without proof of specific intent to harm. For the reasons discussed below, the first amendment should not disable state governments from punishing true threats where an objective observer taking into account all of the circumst

Trolling TROLP

by Diane Kemker On April 15, 2023, the Washington Post published a shocking piece under the title, “The controversial article Matthew Kacsmaryk did not disclose to the Senate.”  Taking the facts reported in the article as true, Kacsmaryk, while working as an attorney at the First Liberty Institute, wrote an article that disclosed his extreme right-wing views about trans-affirming medical care and abortion in no uncertain terms. He then sent that article off, as one does, to a law review of which he had been an editor while a student, the Texas Review of Law & Politics (TROLP). Perhaps unsurprisingly, this secondary journal happily snapped it up. But once Kacsmaryk was nominated for a federal judgeship, which would require disclosure of all his published work, he contacted the journal and instructed them to remove his name as the author, and to substitute the names of two junior colleagues at First Liberty - whose names had not appeared on the draft the journal accepted (or even i

Fabricated Outrage and the Right's Attack on Higher Education

by Neil H. Buchanan By now, almost everyone who would be inclined to read a blog like Dorf on Law will have heard some version of a story about the outrage du jour in the American right's ongoing effort to subvert higher education.  This one comes out of an incident at Stanford's law school, which made it especially useful for anti-liberal propaganda purposes.  Even so, a few reactions to the story have been thoughtful and have even used the controversy to make good points, such as my Verdict colleagues Vik Amar and Jason Mazzone's piece earlier this week (the first of a two-parter, with the second part not yet published), in which they commit the unpardonable sin of observing that "shouting down" a speaker is actually a nuanced issue. I use the sarcastic phrasing "unpardonable sin" because the standard response to any situation in which left-leaning university students express their displeasure involves a chorus of people across the political spectru

Justice Thomas, Frederick Douglass, and Constitutional Misinformation

 By Eric Segall The news last week that Justice Thomas might actually prefer luxury yachts and private airplanes to RV's and Walmart parking lots, despite his many statements to the contrary, reflects a disconnect between truth and reality for Justice Thomas that has long plagued his constitutional opinions. I have documented these issues many times before on this blog. The tension between Justice Thomas's alleged originalism and textualism and his actual votes in many areas of constitutional law are well known to most legal scholars. But nowhere is this disconnect more prevalent than in his affirmative action opinions.  Justice Thomas has never devoted any significant attention to the 14th Amendment's original meaning in his calls for judicially imposed color-blindness. It is highly unlikely that he will do so in June when he votes to end all affirmative action in university admissions, as he has done many times before. Even worse, as I previously documented , Justice

If Trump is in a Georgia Prison and also President, Can He Bring a Successful Habeas Corpus Petition?

by Michael C. Dorf My latest Verdict column considers the question of what would happen if Donald Trump is tried, convicted, and sentenced to prison before January 20, 2025 but meanwhile secures the Republican nomination for President and either wins the election the conventional way or manages to secure the Presidency through Congressional approval and Supreme Court acquiescence in state legislative re-allocation of electoral votes based on bogus allegations of fraud. My answer: (1) If Trump is in prison on conviction of federal crimes he will attempt to pardon himself, and if that fails, he will resign the presidency, his VP will become President and pardon him, the VP will then nominate Trump to be VP, Congress (in GOP control if Trump is President) will approve the selection, at which point the President will resign, Trump will become President again, Trump will nominate the former VP/President as VP again, and Congress will approve that selection too. I call this the "musica

What the Rule of Law Does Not Look Like: Impeaching a Supreme Court Justice When She Takes Office

by Neil H. Buchanan One of the safest bets in recent years was that Republicans would conveniently drop the pretense that they believe in states' rights as soon as their manufactured Supreme Court super-majority handed them their long-sought repeal of Roe v. Wade .  Although the Dobbs majority's opinion claimed to be turning the issue back to the states, it was long obvious that the radicalized anti-women's-freedom movement would look for ways to nationalize bans and create ever more hurdles for women seeking to exercise their reproductive rights. And that is what Republicans have done.  They are trying to prevent citizens of red states from traveling to blue states, to penalize friends and good Samaritans who help those pregnant people run the gauntlet of expensive and dangerous perils that Republicans are constantly erecting and updating, and so on.  And as Professor Dorf's column yesterday explained, Trump-appointed judges are now going completely rogue, trying t

Judge Kacsmaryk's Tortured Readings

by Michael C. Dorf Reading Judge Kacsmaryk's Good Friday ruling in Alliance for Hippocratic Medicine v. FDA , I had a sense of deja vu. At first I struggled to identify when I had previously felt this way. Then I remembered: it was when I read the memoranda produced by George W. Bush administration lawyers such as  John Yoo and Jay Bybee  rationalizing and justifying torture. Like those memos, Judge Kacsmaryk's opinion gives the unmistakable impression of aiming at a pre-determined result, with counter-arguments and contrary evidence treated as obstacles to be overcome rather than grounds for hesitation. Just as those of the Bush administration torture memos that were prepared by the Office of Legal Counsel (OLC) betrayed OLC's longstanding tradition of providing the President with objective analysis notwithstanding his policy druthers, so Judge Kacsmaryk's anti-abortion screed clothed in the garb of a judicial opinion betrays his oath to do equal justice. Even so, in

Lock Him Up! (A Dorf on Law Classic)

Note to readers: It is Good Friday, which I suppose I could offer as my excuse to run a Dorf on Law classic today.  But given that I am an atheist, that would be silly.  The fact is that I am severely jet-lagged, and the creative juices are not flowing.  So a classic it is. As luck would have it, today's classic is almost eerily relevant to recent events -- not just the content of the column itself (indicting Donald Trump) but, tragically, with its lead-in referring to recent mass shootings.  The familiarity of it all is beyond heartbreaking. In any event, I offer below my Dorf on Law column from August 6, 2019.   Lock Him Up!   by Neil H. Buchanan [Note to readers: The two mass shootings over the weekend continue -- quite rightly -- to consume people's attention.  I wish that I could think of something to add to the discussion, but for now, my thoughts are jumbled and my feelings are raw.  I have thus decided to write today on a different topic, one that is important

Should Catch-and-Kill Agreements Be Enforceable?

by Michael C. Dorf Just over a couple of weeks ago, I asked, in an essay on this blog: How plausible is the Melania defense?  In order to elevate the New York crime of falsifying a business record from a misdemeanor to a felony, I noted, the prosecution must prove that the defendant falsified the record for the purpose of covering up another crime. I explained that Donald Trump's lawyers could be expected to argue (as some of his defenders had been saying publicly) that Trump's motivation was personal: people who have extramarital affairs don't want their spouses to find out; thus, Trump could claim that he wasn't attempting to disguise Michael Cohen's election law crimes but only to keep his wife from learning of his affair. As I explained in the essay, this defense would not be very plausible, so long as covering up a crime was a motive , even if there also was a personal marital motive. The actual indictment unsealed on Tuesday makes clear that what I've cal

The "Concerned Non-Trumpist" Response to the NY Indictment Hints at a Successful (albeit thankfully bloodless) Coup in 2024

by Neil H. Buchanan The endless repetition of the claim that the Trump indictment in New York is "unprecedented" annoyingly elides the fact that there is a reason for the never-before-seen situation in which we find ourselves -- actually two reasons: (1) Donald Trump is almost uniquely corrupt and so is uniquely susceptible to criminal indictment, and (2) the "almost" in #1 is Richard Nixon, who received a preemptive pardon.  Are we surprised that, say, Harry Truman was never criminally charged?  Or, notwithstanding all of his other faults, James Buchanan (no relation)?  Taft?  Monroe? The one thing that one would hope to see from US Senators who are not bomb-throwers is restraint in the face of political volatility and uncertainty.  Even so, it has become an insta-conventional wisdom among those conservatives who think of themselves as moderates that the Trump indictment was somehow unwise.  Thus we have two extremely conservative senators, Joe Manchin and Bil

Federalist Society Judges Acting Badly

 By Eric Segall Leonard Leo's picks for lower court judges during the Trump administration were overwhelmingly white and male (with a few Asians thrown in). Almost all of them were associated with the Federalist Society either in school, as lawyers, and/or as judges. Although Leo (via Trump) nominated some fine people (Judge Kevin Newsom of the 11th Circuit, for example), many of his selections have also proven to be, and predictably so, awful. These men have joined other Federalist Society-adjacent judges appointed by previous Presidents to fight the culture wars both on and off the bench in ways that tar the federal judiciary with charges of partisanship and, in some cases, outright and unnecessary cruelty. Here are just a few of their stories and then a few thoughts on why these judges are acting so badly. All of the judges discussed herein, whether chosen by Leo during the Trump years or by other Federalist Society-adjacent lawyers during previous Administrations, have Federal

If the Trump Indictment in NYC is Political, It's Bad Politics

  by Michael C. Dorf If I had to rank the criminal charges Donald Trump could realistically face and/or already faces from most serious to least serious in terms of the harm to the public, they would be: (1) Federal charges relating to inciting insurrection; (2) Georgia state charges relating to attempting to intimidate/interfere with election officials; (3) Federal charges for deliberately concealing mishandled classified documents; (4) New York State charges for falsifying business records in order to conceal evidence of other crimes. Note that I have listed only those crimes for which there appear to be active criminal investigations. I have not included direct federal charges for election law violations with respect to the payments to Stormy Daniels that apparently form the predicate for New York charges that were filed against Trump on Thursday of last week. (We don't know exactly what the charges are yet.) Nor have I included charges for obstruction of justice with respect to

Federal Judge Says Dobbs Means Arkansas Can Criminalize Adultery, Fornication, and Masturbation

  by Michael C. Dorf With all of the attention understandably being paid to the indictment of Donald Trump, a major district court decision announced yesterday was likely overlooked. The ruling in  ACLU of Ark. v. Griffin   concerns a lawsuit against the Arkansas Attorney General. The ACLU of Arkansas sued to block enforcement of  SB 4592 , the state law enacted last month that forbids (and authorizes felony imprisonment for up to five years for) "deviant sexual practices that were constitutionally proscribable in 1791, 1836, and/or 1868" (the respective dates of ratification of the Bill of Rights, Arkansas statehood, and the ratification of the Fourteenth Amendment). The complaint alleged that "deviant sexual practices" is unconstitutionally vague and that, if construed to include all sexual practices deemed deviant at any or all of the dates listed in the statute, would encompass clearly protected practices such as same-sex sodomy. In an opinion partially grantin