Dorf on Law

Chris Coons became one of Delaware's US Senators through an improbable stroke of luck.  In 2010, he was the Democratic Party's sacrificial lamb, a local politician nominated to run against a popular, moderate Republican who was that state's incumbent Member of Congress and who was expected to easily make the step up to the Senate.  Then the proto-MAGA Tea Party happened, and instead of running against a sober, likable public servant, Coons found himself running against someone who was so weird (yes, that word fits pre-Trump/Vance nutcases, too) that she ran a campaign ad in which she declared: "I'm not a witch." This is not to disparage Coons, who I happen to have known since his college days and who has served in the Senate admirably.  But just as Barack Obama's Senate seat landed in his lap due to a completely unexpected scandal that flipped what was supposed to be an easy win for a high-profile Republican in Illinois, Coons's national career was bir

During last week's Presidential "debate," Vice President Harris characterized former President Trump's plan to increase tariffs on a wide variety of goods--especially those coming from China--as a tax that would fall on American consumers. In response,  Trump repeated his frequent claim that foreign countries, not American consumers, pay the tariffs. That is false--both as a technical matter and as a substantive matter. As a technical matter, when goods are subject to tariffs, the party seeking to import the goods--typically a U.S. distributor, wholesaler, or integrated business--pays the tariff. But anyone with the slightest bit of economic sophistication understands that the important question with respect to any kind of a tax, including a tariff, is not who hands the money over to the government, but what the incidence of the tax is--that is, who ultimately bears the burden of the tax. For tariffs, the usual answer is that tariffs increase costs for consumers. VP H

Trump on post-birth abortion (that is, murder).  Trump on "transgender operations" on prisoners.  Trump on immigrants -- immigrants who are in the country legally, by the way -- and eating pets.  Those were three of Donald Trump's more outrageous moments in his non-debate last week with Vice President Kamala Harris.  There were many more false claims, only a few of which I managed to pack into my long review of the non-debate here on Dorf on Law last Wednesday.  Of the many lies that I had to leave out of my response, this bizarre claim about President Biden was the last to be cut to reduce the word count: "And you know what? I'll give you a little secret. He hates her. He can't stand her." Those lies all sounded as if they came from outer space (or some other empty space).  But we are now relearning that what comes out of Trump's mouth is quite often not some spontaneous and opportunistic fabrication.  We are accustomed to hearing about the fever s

The Boys of Originalism are back. Professors William Baude and Michael Stokes Paulsen have published a follow up to their law review article  concluding that Section 3 of the 14th Amendment disqualifies Donald Trump from holding federal office. That article went viral (by law professor standards) and placed the potential disqualification of Trump in the center of the American legal landscape.  They begin their new article by quoting Justice Oliver Wendell Holmes, Jr. for the proposition that “great cases, like hard cases, make bad law.” They lament that the Supreme Court did not follow their version of text and history when the justices unanimously reversed the Colorado Supreme Court’s disqualification of Trump, and they dislike the justices'  holding that states cannot disqualify federal officials absent congressional  authorization. The authors view Trump v. Anderson as a complete jurisprudential disaster. Both Professors Baude and Paulsen are diehard originalists who believe t

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