Dorf on Law

by Sherry F. Colb Have you ever seen an anti-abortion sign or ad or video? Did it contain a picture of an embryo or fetus? If it did, was the fetus relatively far along its path to forty weeks gestation? I am betting that it was. In my latest Verdict column , I discuss the question whether opposition to abortion can be feminist. In the course of that discussion, I talk about a video in which a doctor who says he has performed over twelve hundred abortions shows the viewer what a D&E (Dilation and Evacuation) looks like. At the end of the video, the doctor surprises us by announcing that he has stopped killing babies for money. I was not surprised by this announcement, however, because he used various words and expressions that demonstrated, perhaps inadvertently, that he is part of the pro-life movement.  He called the person who performs the abortion an "abortionist" (which is a little like calling a banker who happens to be Jewish a "Shylock"), and he rep...

by Diane Klein Change is afoot in official U.S. policy towards lesbian, gay, and bisexual foreign diplomats and international organization employees serving in the United States.  With so much attention rightly being paid to the crisis at the border, caused by the Trump Administration's cruel and shameful family separation and border control policies, it's understandable that another family separation policy - this one directed at a much more "elite" group - has escaped our notice.  But its toxic blend of racism, xenophobia, and homophobia makes it an unmistakably Trumpian hat trick. The latest change in policy is signaled by a letter sent to at least one U.N. organization on July 20, 2018, published here for what is believed to be the first time.  The letter is not yet embodied in a  Diplomatic Note , the official form of communication between the U.S. government and foreign governments, although it is similar in form.  The upshot of the letter is that lif...

By Eric Segall On Tuesday, the Ninth Circuit Court of Appeals invalidated Hawaii's requirement that people receive a license before openly carrying a gun in public. This aggressive act of judicial review might be reviewed by the Supreme Court, especially if Brett Kavanaugh is confirmed as a Justice. The Supreme Court has not reviewed a Second Amendment case since 2010, but as I argued here , it is likely the Court will return to this area of law in the near future now that Justice Kennedy has retired. Here are ten truths about the Second Amendment.

by Neil H. Buchanan There is no question that Brett Kavanaugh's elevation to the Supreme Court would cause a catastrophic change in American jurisprudence.  Indeed, the same can be said of anyone whom Donald Trump might nominate to fill the retiring Justice Anthony Kennedy's seat.  In that context, I was happy last week to receive a letter being circulated by some law professors in opposition to Kavanaugh's nomination, and then to see that letter reproduced as a guest post on this blog a few days ago. The letter was styled as an appeal to Republican Senators Susan Collins and Lisa Murkowski, both of whom have records suggesting support for Roe v. Wade , which any Trump nominee would vote to overturn.  Writing such a letter is always difficult, however, because it will almost invariably include particulars that might not be germane or necessary to the point but that will put off potential signers.  In this case, I found myself unpleasantly surprised by a negativ...

by Michael Dorf In a couple of recent essays, I explored avenues by which liberals might be able to limit the damage in the coming era of reactionary Supreme Court jurisprudence. Borrowing a term coined by Mark Tushnet , I proposed reinvigorating "defensive crouch liberal constitutionalism." Part 1 (which appeared both on Dorf on Law and on Take Care )   explored opportunities to make conservative arguments based on original meaning with a focus on the emergence of a Fourth Amendment jurisprudence keyed to property more than privacy. Part 2 (which also appeared both on Dorf on Law and on Take Care )   described how, in a post- Roe v. Wade future, Justice Clarence Thomas might cast a decisive fifth vote to invalidate a federal abortion ban based on his view of the limits of the Commerce Clause. In an essay on the Volokh Conspiracy on Monday, Ilya Somin added an important caveat to that last point: As Justice Thomas has previously made clear, he will only c...

by Neil H. Buchanan Ten years ago today, in a column here on Dorf on Law titled "Meat, Dairy, Psychology, Law, Economics," I described why I had decided to become a vegan.  Every year since then, in what I have taken to calling my veganniversary columns, I have written a followup column on this topic.  (See 2017 , 2016 , 2015 , 2014 , 2013 , 2012 , 2011 , 2010 , 2009 , and the original from 2008 , along with a second column a week later). My columns over the years have covered a wide variety of topics, sometimes simply offering updates on practical matters that vegans face in the non-vegan world but other times using veganism as a lens through which to view other issues (for example, my column last year discussing hipsters and veganism).  Today, I will do a bit of both, offering some quick thoughts about the practicalities of being a vegan before turning to a discussion of how vegan issues arise in more general political debates. The short version of this column ...

by guest bloggers David S. Cohen , Jessie Hill , Maya Manian , Jessica Silbey , and Mary Ziegler Upon Brett Kavanaugh's nomination to the U.S. Supreme Court, the five of us observed the immediate flurry of academic commentary and predictable speculation about the fate of Roe v. Wade  under a newly-composed Supreme Court.  While participating in academic discussion and analysis is a key part of our jobs as law professors, we were also collectively struck by the concrete reality of the threat to forty-five years of jurisprudence protecting the right to choose.  We wanted to take action, and we settled on a strategy of writing directly to Senators Susan Collins and Lisa Murkowski - two Republican Senators who are pro-choice and whose votes are critical to Kavanaugh's confirmation in a Senate that is divided 50-49.  We wanted to make clear to those Senators the extent of the risk to Roe v. Wade , as well as the consequences of overruling Roe - not just for women in the...

by Diane Klein On Friday, July 20, 2018, we learned what few of us could have been surprised to hear: that former Trump personal attorney Michael Cohen taped conversations he had with Donald Trump, including pre-election conversations about payments made to Karen MacDougal , the former Playboy Bunny with whom Trump had a 10-month affair in 2006.  This seems likely to set off yet another "publicity tour" by attorney-commentator Michael Avenatti , whose representation of adult-film actress Stephanie Clifford (aka "Stormy Daniels"), has been a thorn in Trump's side since spring 2018 - and who predicted the existence and release of these tapes on May 30, 2018.  In the aftermath of the raid on Cohen's office, as far back as April, 2018, there was speculation about such recordings, but the Washington Post  and others expressed skepticism about whether any such recordings would include Trump.

by Michael Dorf  (cross-posted on Take Care Blog ) If the Senate confirms Judge Brett Kavanaugh to replace Justice Anthony Kennedy, the Supreme Court will almost certainly move to the right on a range of issues, most prominently abortion, where Kennedy wrote or joined key decisions upholding what he and two of his colleagues once called “the central holding” of Roe v. Wade . The post-Kennedy Court will cut back on the federal constitutional right to abortion and could well eliminate it entirely. What then? Public discussion of a post- Roe future has assumed that the issue would “go back to the states.” Champions of abortion rights would be disappointed but not utterly defeated, as efforts might then focus on making transportation available from anti-abortion states to states where it is legal. The US would look much like Ireland prior to its recent passage of a referendum liberalizing abortion regulation. Just as Irish women seeking abortions went to England, so women from ...

by Neil H. Buchanan It did not even take eleven months for Donald Trump to go from the Charlottesville self-revealing crisis to the Helsinki self-revealing crisis.  True, he has had plenty of crises in between, most of which have also in one way or another revealed his true self -- perhaps most prominently his putting-children-in-cages-and-lying-about-every-aspect-of-it display of abject cruelty that is still ongoing, but also including his decisions to fire and humiliate staff, withdraw from the Iran nuclear deal with no alternative in place, insult and threaten democratic allies, unconditionally befriend North Korea's murderous dictator, declare victory in the War on Poverty as an excuse to inflict further harm on poor people, and on and on and on -- but there is something about his embrace of white supremacists and his even tighter embrace of Vladimir Putin that sets these two crises apart. One way to know that these crises are different is simply by watching how flustered R...