Dorf on Law

by Sherry F. Colb In my Verdict column for this week , I discuss the case of a Tennessee woman, Anna Yocca, who has been charged with several offenses, including attempted murder and attempted criminal abortion, for allegedly using a coat hanger to try to terminate her pregnancy at 24 weeks gestation.  My column analyzes the "murder" classification and suggests that it has something to it but that it should ultimately not apply, because the act being prosecuted took place while the fetus was located inside the woman's body.  I also consider some lessons that both pro-choice and pro-life activists can take from what is inarguably a tragic situation for Anna Yocca. In this post, I want to consider why I believe that so long as the fetus is located inside the woman's body, her action should be considered an abortion rather than a murder (or in Yocca's case, an attempted abortion rather than an attempted murder).  On the one hand, the fetus is viable.  This is imp...

by Neil H. Buchanan [Note: The eighth-to-last paragraph of this post has been edited to remove an assertion about U.S. states' adoption of the covenant of good faith and fair dealing.  This change does not change the substance of the sentence, the paragraph, or the post.  December 21, 2016] Is it too late to save constitutional democracy in the United States?  It is possible that there is nothing that can be done to prevent Donald Trump's presidency from turning the U.S. into an autocratic state , completing the Republicans' generation-long effort to make sure that only certain people are allowed to participate in our weakening republic. Even if that is true -- and no one can say with certainty, at this point in history, whether we will indeed go down that path -- it is important to decide how to proceed even in the face of inevitable disaster.  Should people who believe in the rule of law act as if there is something still to be done to save the nation from po...

by Michael Dorf In prior essays I joined the chorus of people condemning Donald Trump's woefully inadequate efforts to ensure that his business interests do not interfere with his official duties as president. I first explained that in addition to the obvious problems created by Trump's conflicts of interests, the appearance and perhaps reality of corruption could spread corruption. I then explained how , notwithstanding the personal identification of the Trump brand with Trump himself, Trump could indeed sell his interests in his businesses and put the resulting proceeds in a genuine blind trust, but only if he is willing to forgo what I called the "corruption premium." Trump continues to provide evidence that he nonetheless intends to pocket the corruption premium Meanwhile,  a persuasive new paper by Norman Eisen, Richard Painter, and Laurence Tribe  concludes that Trump will be in violation of the Emoluments Clause from the moment he takes the oath of office....

By Eric Segall and Guest Blogger Gabe Roth, Executive Director of Fix the Court News that Ted Cruz is planning on  introducing  a constitutional amendment on congressional term limits next month has yet to stoke the interest or imagination of liberals and progressives. That is unfortunate yet eminently fixable. Elsewhere in the Senate, Mitch McConnell’s strategy of not holding confirmation hearings for Merrick Garland paid off, and Donald Trump, who himself was not the majority leader’s first (or tenth) choice as the person to pick the next Supreme Court justice (or three), will nominate a new justice soon. As long as the nominee is not a  personal   friend  of the President (à la Abe Fortas or Harriet Miers), doesn’t show  disdain  for the hearings (Bork!), and has no secret drug-using past (D. Ginsburg), he or she is expected to be confirmed in February or March and may sit on the court for the next three or four decades. T...

By Michael Dorf This week, the American Constitution Society posted an open letter from a group of constitutional law scholars (including me) to Donald Trump, cataloguing the ways in which his campaign and post-election statements and announced plans threaten cherished aspects of our constitutional democracy. Although addressed to Trump and nominally urging him to change his ways, it is fair to say that Trump is not the intended audience. As Stanford law professor Pam Karlan, one of the signatories, said : "We are under no illusions that President-elect Trump … is going to bother to read a letter from law professors.” The point of the letter is to influence public opinion and people in positions of power--especially in Congress--to take steps to resist what might be the worst actions of a Trump administration. Dahlia Lithwick and David Cohen wrote in Wednesday's NY Times that the initial task of resisting Trump has fallen to the likes of law professors because the Democra...

by Neil H. Buchanan One of the more laughable claims from Trump supporters during the campaign was that he is a great businessman.  Even more absurd was the idea that being a great businessman is all that is necessary for a president to fix the economy.  Donald Trump has no idea how to fix the economy.  In fact, the evidence shows that Trump hates capitalism. That is not to say that Trump hates making money.  He is not very good at doing so , but he tries very hard to make a buck -- and he clearly does not care whom he hurts to get what he wants.  Yet he clearly hates capitalism.  Actually, plenty of successful businesspeople hate it, too, but Trump's disdain for the underlying genius of capitalism is in a category of its own. We can start with an obvious, trivial example.  Trump's first foray into economic policy during the transition period was his much-hyped decision to "save" some jobs at a Carrier plant in Indiana.  This was truly a sca...

by Michael Dorf My latest Verdict column uses the Ohio legislature's passage and Gov. John Kasich's veto of a bill that would have banned nearly all abortions after a fetus has a detectable heartbeat--around six weeks into pregnancy--as an occasion to examine the prospects of a "Trump Court" overruling Roe v. Wade and what might come in Roe 's place if that were to happen. Here's an executive summary: 1) The heartbeat bill is obviously unconstitutional under current doctrine; 2) It's sometimes legitimate for a legislature to enact an unconstitutional law as a means of testing whether the Supreme Court will overrule the relevant precedent, but this bill would have been premature, given that for now there remain five justices who would surely invalidate it; 3) It's possible that even after two or more Trump appointments, the Court still wouldn't overrule Roe , but it's substantially more likely that it would overrule; and 4) Overruli...

By Eric Segall On Friday, May 13, I wrote a blog post (with a somewhat heavy heart) criticizing two of the finest constitutional law scholars in the country who have also been friends and mentors to me. Both Mark Tushnet and Erwin Chemerinsky had written essays encouraging folks on the left to both imagine and plan for the future of a Supreme Court dominated by a liberal majority. For example, in The Atlantic , Erwin wrote about how wonderful it would be if a future Court made abortion rights more secure, allowed for more expansive affirmative action, cut back on the scope of and maybe even overturned  Citizens United , protected voting rights more vigorously, and end the death penalty once and for all. On his Blog, Mark went further, arguing that liberals and progressives should compile a list of cases that should be immediately overruled (the likely targets being many of the cases listed by Erwin), recognize that the lower courts are staffed more by Democrats than by Republ...

by Michael Dorf The latest issue of the Harvard Law Review includes an article by Harvard Law Professor Richard Fallon, in which he argues: (1) that Supreme Court constitutional case law with respect to the question of how to evaluate forbidden legislative intent is confused and contradictory; and (2) that in its place the Court should adopt a rule under which forbidden intent by itself is never sufficient to invalidate a statute but allowing that such forbidden intent can, under certain circumstances, be the trigger for the application of heightened scrutiny. The Harvard Law Review Forum --the online companion to the printed volume--includes a short paper by me in which I praise Fallon's descriptive account of the case law and raise a question about his normative proposal. Before describing my critique, I should say that I have enormous regard for Fallon and his work, which has been instrumental to my own. Fallon and I are co-editors (along with others) of a Constitutional L...