Dorf on Law

On his morning show earlier this week, Joe Scarborough commented on the press's obsession with false equivalence, saying in exasperated tones that "everybody [in the political media] is so desperate to make this a normal presidential campaign instead of a campaign between someone who ... wants to undermine American democracy and another candidate who doesn't."  (Clip here , starting at 2:00)  I honestly did not think that Scarborough would be the one to offer that long overdue criticism so clearly, but that is why this is so notable.  Even the guy who has over the years gone all in on "cancel culture" panic and mocked student protesters is now shocked by how badly his colleagues in the media are laundering Trumpist insanity. Can they change?  As the summer ended, the political press was certain to become bored with the Harris-as-shiny-new-thing narrative, which meant that they would inevitably begin to run chin-strokers about Kamala Harris

 My latest Verdict column is titled Advice to Campus Administrators: Don’t Call it an "Expressive Activities Policy," Except to the Extent that Expressive Activities Receive Extra Solicitude . In it, I discuss the "Expressive Activities Policies" adopted by or under consideration at various colleges and universities around the country. I explain that such policies typically read as regulations of expressive activities but that this framing is at best misleading. It suggests that colleges and universities are adopting restrictions on expressive activities in particular. Instead, they should be understood as applying their general rules of conduct to all activities, including those that happen to be expressive. Thus, a college or university has the same interest in forbidding an impromptu game of ultimate frisbee on its main quad if that poses a danger to safety or access to buildings as it does in forbidding an impromptu march or rally. Permissible content-neutral ti

Last night, one of those events that everyone still insists on calling a "debate" happened again.  This was, thankfully, most likely the only such farce that we will have to endure in this year's contest between Vice President Kamala Harris and Defendant Donald Trump.  I drew the short straw at Dorf on Law and agreed to watch the non-debate live and to write an analysis of what happened.  It feels as though some sort of combat pay should be involved, but I will nonetheless soldier onward. To get to the bottom line immediately, this was a bad joke.  Predictably so.  Harris was not consistently as good as I expected her to be, but she had many effective moments and put in a solid B+ performance.  (Trump is, as always, ungradable.)  That is not the joke part, but having competed in actual debates against opponents who were completely out of their depth -- as Trump always is -- I can state from weary experience that it is nearly impossible to maintain one's own A-game wh

The question whether the Supreme Court should be subject to a binding ethics code with a real enforcement mechanism has heated up. President Biden and other high level Democrats have supported requiring such a code. Most Republicans oppose it. Last year, the Justices issued a code of sorts but as CNN reported at the time: " While the justices reiterate in the code they should 'maintain and observe high standards of conduct in order to preserve the integrity and independence of the United States,' they fail to explain how the code would work and who would enforce it, and acknowledged they had more work to do, including on financial disclosures." That code is not a real code. Although I have been calling for an enforceable code of ethics for decades, many others have arrived at the same conclusion because of the gifts and travel received by Justices Thomas and Alito from billionaire Harlan Crow, justice-picker Leonard Leo, and others. But the gifts and the travel are

In the first episode of the currently streaming Season 4 of Hulu's  Only Murders in the Building , we learn that Paramount is making a film based on the podcasters. The trio go to Hollywood, where they are asked to sign contracts. Steve Martin's character Charles and Martin Short's character Oliver readily sign on the dotted line (agreeing to be portrayed by Eugene Levy and Zach Galifanakis, respectively), but Selena Gomez's character Mabel (to be portrayed by Eva Longoria) hesitates. Mabel has qualms about the film's intended portrayal of her, leading to angst and pressure from Oliver. The viewer is not informed of what exactly the Only Murders  leads are being asked to sign, but there is a strong suggestion that it is a contract for what are commonly called "life rights"--i.e., the legal rights to the stories of their respective lives. To similar effect, an article in yesterday's New York Times Magazine describes the making and content of a nine-hou

[Note to readers: I published the column below more than eight years ago, on August 11, 2016 .  Given Republican leaders’ recent pleas for Donald Trump to get back to “the issues,” this old column seems especially relevant.  Note also the 2015 column linked therein: " Republicans Can Now Return to Their Other Unpopular Positions .”  Some things never change.] by Neil H. Buchanan What if Donald Trump had not run for president?  Surely, many if not most Republican Party leaders have dreamed about that possibility many times over the past few months. Rather than facing a humiliating loss that might damage or even destroy their party, or a future of trying to contain an emotionally unstable president, they can go to a happy place in their minds where one of their own occupies the Oval Office starting next January. But what would they hope to accomplish during a non-Trump Republican presidency?  One answer appears to be that they would focus on an economic agenda, rather than pursuing

One of Project 2025’s (“P-25’s”) most striking and underreported provisions is conveniently buried in its recommended administrative changes for the Department of Justice. Page 562 of the “Mandate for Leadership” advises the next conservative Attorney General to shift enforcement of 18 U.S.C. § 241 (Conspiracy Against Rights) from the Civil Rights Division to the Criminal Division’s Election Crimes Branch, “where it belongs.” Section 241 is an exceptionally expansive statute, making it unlawful to “conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States . . . .” The Civil Rights Division’s webpage reveals that, despite the broad language of the statute, § 241’s use as a prosecutorial tool has been limited to instances of misconduct or hate crimes by law enforcement or state officials. A brief review of the caselaw shows that some cases of official

After class last week, a student came up to me and politely asked me if I would engage in a serious discussion about Donald Trump. I said sure, and as we walked away from the busy hallway he told me that he is part of a new student organization that is to the right of the Federalist Society and full of people who support Donald Trump.  The next 30 minutes were very, very interesting and raised a number of hard questions for me about my appropriate role as a law professor. There are no answers in this post, just a lot of (I hope) important questions. We began with me pointing out just a subset of the undisputably immoral moments that mark Donald Trump's life and career. I began with the Central Park Five and how Trump maintained that they were guilty even after DNA evidence conclusively established that they were innocent.  We talked about his incessant and childish name-calling, and January 6, and his not returning classified documents, and his announcement that he was going to imp

Frederick Schauer died on Sunday. Fred was a mentor, casebook co-editor, and friend. He was also a towering figure in the law of free speech, jurisprudence, evidence, and much more. Interested readers can find a detailed obituary on the UVA website , as well as remembrances from his UVA colleague Larry Solum and his long-ago student (at Michigan) Brian Leiter . Here I'll add to the encomia with my own personal remembrance--emphasizing Fred's quality of mind, fundamental decency, and ultimately, his courage. I first encountered Fred in the flesh when I was a junior faculty member at Rutgers-Camden, which was hosting a one-day conference. A panelist who was scheduled to speak was unable to make it to the conference. In those days before Zoom, we didn't have reliable technology to bring the absent speaker in via video, so it was decided that I would give an oral presentation summarizing her paper. I was not otherwise part of the program. Fred presented his own paper, which wa

I do not want to bury the lead here, so I will state up front that Rachel Maddow recently avoided replicating a very common mistake in discussing possible election shenanigans, a mistake that both Democrats and Republicans often make.  Her non-error deserves attention and praise.  It will take me some time here to lay out what she wrote and why it was such an important moment, but I wanted to put that key point in this first paragraph.  As I will explain below, the difference between getting this seemingly obscure point right and wrong could be the difference between the US continuing as a constitutional democracy or becoming a one-party autocracy. Now for the background.  Starting in the Fall of 2020, it became necessary to pay attention to the various weak links in the US presidential election system.  Specifically, a Trump campaign advisor admitted openly and on the record to a journalist (Barton Gellman of The Atlantic ) that their plan was to sow chaos in the states in a way that