Dorf on Law

by Diane Klein I first became interested in transgender issues more than two decades ago, as an academic feminist, and then, when I began studying law, as an aspect of gender and legal theory and a pressing civil rights cause. One afternoon during law school, my Feminist Legal Theory seminar at UCLA met outdoors, in the courtyard the law school shares with the philosophy department.  As I and other law students opined condescendingly about Title VII and trans issues,  Talia Mae Bettcher , then a grad student in philosophy, tapped me on the shoulder and quite literally gave me my comeuppance.  A decade or so later, with every self-styled legal feminist using trans people and the legal issues they raise (and face) as metaphors and thought experiments for every other gender-related issue under the sun, Dean Spade  did so again, powerfully cautioning those of us who imagine we are progressives and allies to refrain from the production of scholarship for our own ad...

by Michael Dorf In an episode of Seinfeld , Elaine buys a dress that looks good on her in the store, only to find that when she tries it on at home, it is unflattering. Outraged, she concludes that the store's dressing room was outfitted with "skinny mirrors." The episode seems an apt metaphor for the bit of theater that transpired in the Senate late last week. Say what you will about Mitch McConnell's appalling record; the man is a master magician. His so-called "skinny repeal" bill was a deeply layered trick. We may never know whether its narrow defeat at the hands of a battered-but-not-beaten John McCain was itself part of the illusion. I suspect not, but focusing too much attention on McCain simply legitimates McConnell's legislative legerdemain.

[Editor's Note: My remembrance of my late colleague Robert Ferguson prompted Ori Herstein to recall Robert from his vantage. Ori's memorial follows.] For Robert A. Ferguson (1942-2017) It was from a letter that I came to form my first impressions of Robert Ferguson.  Robert was writing to welcome Columbia Law School’s 2004 incoming class of doctoral students.  In time, he became a mentor to us all.  Looking back, much of what I came to admire in the man was evident in this first of many correspondences that we would exchange over the following thirteen years.  For Robert, self-regard and regard for those around him were like two sides of the same sheet of paper.  Which is why if he were writing to welcome his new students, he would compose an actual letter not an email.  And he would print it on posh formal stationary.  And take the time to individually address and hand sign all twelve of them.  Robert’s letter was of course well-fash...

by Neil H. Buchanan The Republicans have reached what we can only hope is truly and finally the end of the road for their obsession with repealing the Affordable Care Act.  The process was indescribably insane, especially in the last week or so, with a series of bizarre show votes that ultimately led to the Republicans' defeat. Maybe it really is over, but we thought the same thing two weeks ago, only to watch things become even weirder.  Nothing would surprise me at this point.  We might never hear about health care legislation again, or we could within days or even minutes discover that the game is back on. In any event, the key vote in that please-let-it-be-final showdown was cast by Senator John McCain.  Is that vote proof that, at long last, he truly is the principled maverick that he has long portrayed himself to be?  Perhaps, but I think that there is a better, more cynical explanation.  But first, we need to figure out what McCain's colle...

by Diane Klein On May 30, 2017, my 77-year-old father died, of an aggressive adenocarcinoma that began in the pancreas and metastasized to, among other places, his brain. His cancer was diagnosed March 19, 2017, and he underwent brain surgery on March 29, 2017, to remove a tumor the size of walnut (or a golf ball - it's all foods and athletic equipment with these things) from between his frontal lobes.  The craniotomy and brain surgery were a "success" - he healed more or less without incident, and when he died, you could hardly see the scar. Why do I mention this? Two reasons.  First, it allows me to be critical of a terminal brain cancer patient like John McCain without seeming callous. (Though not quite as critical as this guy .) But second, although my father's cancer was of a different kind than McCain's, my interaction with him gave me an up-close look at a smart, strong, but sick and elderly man laboring under a brain disorder of whose cognitive consequ...

by Michael Dorf The legislative free-for-all currently unfolding in the Senate will test the proposition that it is impossible for a small-d democratic government to repeal a major entitlement program. Conservatives who opposed the Affordable Care Act fought so hard to block it in the courts before it went into effect and then before it became too entrenched because they believed--as did progressives who defended the ACA--that what psychologists call the endowment effect would protect the ACA. The endowment effect makes people value something they already have more highly than something they don't. That psychology certainly operates among the public, with polls showing that there is much greater support for retaining the ACA than for any of the GOP proposals to repeal or repeal-and-replace. If Congress nonetheless manages to repeal or, more likely, weaken, the ACA, that will not be a refutation of the existence of the endowment effect. It will merely be a demonstration of the u...

by Michael Dorf My latest Verdict column takes issue with the tendency of the punditocracy to call every political issue with constitutional overtones a "constitutional crisis." I adopt and build a little on the typology of crises set forth in an insightful 2009 University of Pennsylvania Law Review  article by Sandy Levinson and Jack Balkin. I conclude that the possibility of a presidential self-pardon--while despicable--would not plunge us into a constitutional crisis, because our existing institutions could readily resolve the legal question whether a president has the power to issue himself a valid pardon. Of course, the particular institution that would ultimately resolve the question concerning self-pardons is the U.S. Supreme Court--either by deciding itself or denying review from a decision by a lower court. I don't mean to say that the courts will save us from Trump more generally. In the column I point to genuine constitutional crises that Trump may be spa...

by Neil H. Buchanan In July 2008, I became a vegan.  Every year since then, I have celebrated my "veganniversary" by writing a column specifically on the subject of veganism.  Here are links to previous years' columns: 2016 , 2015 , 2014 , 2013 , 2012 , 2011 , 2010 , 2009 , and my two original posts from 2008 ( here and here ). Because Professors Colb and Dorf have covered the scholarly aspects of ethical veganism so well -- most importantly with their masterful 2016 book Beating Hearts: Abortion and Animal Rights -- I have generally ( not always , but usually) used my posts to focus on the day-to-day experiences of being a vegan, in particular analyzing the way that vegans are treated and portrayed in popular culture. Today, I will focus on the way that hipsters treat vegans.  Why hipsters?  The simple fact is that they are the group that is most comfortable with veganism, in part because there are so many hipster vegans.

By Eric Segall The President of the United States is one of the few democratically elected leaders in the world who is both the administrative leader of the government and the symbolic head of the Country. In many nations, these roles are divided between a President and a Prime Minister or even a Prime Minister and royalty with no official governmental responsibilities. This dual capacity of our Chief Executive makes it imperative that the President carry out his duties with class and character because his behavior has a role-model quality that affects not just our youth but our entire national character. This is why I thought Bill Clinton should have resigned the Presidency after we found out that he lied under oath about having sexual relations with a White House intern. His basic defense, that having oral intimacy is not “having sex,” I believe, had negative consequences for a generation of young Americans, and his obvious lying and truth-cutting was not the kind of behavior we w...

by Michael Dorf (cross-posted on Take Care with some minor updates here) Last week, as the latest Senate GOP effort to repeal and replace the Affordable Care Act (ACA) failed, President Trump voiced support for simply repealing the ACA, with a replacement to come later. When that Plan B (which had originally been Sen. Mitch McConnell's choice for Plan A) failed a few hours later, the president quickly moved on to Plan C : "We'll just let Obamacare fail. We're not going to own it. I'm not going to own it. I can tell you the Republicans are not going to own it." Although the very next day the mercurial president attempted to strong-arm GOP Senators  into making another push for Plan A, that approach looks likely to fail, even if Plans A and B make it to a floor vote this week . Thus, for the near term it looks like Trump will be following his Trotskyite the-worse-the-better Plan C. While a clear violation of his oath to take care that the laws be faithfull...