Dorf on Law

by Neil H. Buchanan Trying to keep our corner of society running as well as possible under scary circumstances, professors in colleges and universities nationwide have responded to the global pandemic by changing our grading systems for (what we hope will only need to be) the current semester.  The most cynical way to describe such changes is that grading is now "easier," which is freaking out the guardians of nerd machismo in the academy. I cannot possibly improve on my Dorf on Law co-blogger Diane Klein's magnum opus from this past Friday, in which she systematically dismantled the arguments recently on offer from three law professors who have railed against the temporary grading changes -- although, as Professor Klein points out, it is frequently unclear whether their complaint is actually about curved grading more generally or, perhaps, simply an objection to noticing that our students are human beings who differ from each other in relevant ways. Again, the K...

By Eric Segall Law professors and other scholars write new articles about Originalism almost every day of the week. The sheer volume of this content makes it quite difficult to separate the wheat from the chaff. Every now and then, however, an article comes out that makes a seriously new and important contribution to the subject matter. Professor Stephen Griffin's " Optimistic Originalism ," is one of those articles. One of the great tensions between most forms of modern Originalism (that is any theory of Originalism without a component of strong judicial deference) and contemporary constitutional theory is how to reconcile the original public meaning of the Reconstruction Amendments with our modern society. The two most glaring examples of this disconnect are that most scholars and historians believe that the 14th Amendment's original meaning allows segregated schools (D.C. schools were segregated at the time and Congress knew it), and allow laws that overtly and...

by Diane Klein Dramatic (probably temporary) changes to grading policies are afoot in America's law schools, and in higher education more generally, in response to COVID-19, the all-online transition, and the seismic disruption taking place in education across the United States.  No sooner had thousands of faculty members figured out how to deliver their courses over Zoom and similar platforms, many for the first time ever, than the inevitable subject of grading had to be addressed.  Right now, when deadliest day follows  deadliest day in the crisis, a subject like law school grading policy is a matter of urgent concern to only a tiny fraction of the U.S. population - consisting, in rapidly descending order, of U.S. law students themselves (about 113,000 nationwide), law faculties and administrations, and legal employers.  Most of the rest of the world probably could not care less.  But if you do care, keep reading!

by Neil H. Buchanan The U.S. Senate has now unanimously (!) passed the $2 trillion dollar stimulus bill that had been temporarily delayed while Democrats tried to reduce what we might as well call the "corruption premium" that Republicans had built into their initial proposal.  I continue to believe that, even though this is the "the largest fiscal stimulus package in modern American history" (as The New York Times insists on putting it , even though that claim is acontextual and means nothing), much more will soon be needed. In my paired Verdict and Dorf on Law columns earlier this week, I argued that it would have been acceptable for the Democrats to agree to pay the bribes that the Republicans demanded, because we should simply admit that one of our major political parties is not going to treat this most serious of situations any different from any other.  They exploit every situation to push through regressive money grabs, and in this crisis the need f...

by Michael C. Dorf My Verdict column calling for a national lockdown and, if needed to ensure its enforcement, suspension of habeas corpus, continues to receive pushback. Some of that pushback has a through-the-looking-glass quality, like this piece in RT , which for those unfamiliar, is a Putin-backed propaganda outlet for pro-Trump and other trollish views. I shall wear being called an "authoritarian minded law professor" by an organ of a foreign authoritarian as a badge of honor. That said, the RT article makes a valid point: people who raise doubts about lockdown policies could have a legitimate argument and thus should be given a hearing. Today I'll look at the most prominent law professor to make the case that we are overreacting: Richard Epstein. His views do not withstand even the most minimal scrutiny and may already be responsible for serious real-world effects.

by Diane Klein In two recent posts, I have presented some arguments in favor of recording your classes and captioning those recordings, based primarily on accessibility issues, including  economic  ("digital divide") and pedagogical/legal  concerns, and the costs and risks of failing to do so.  Without taking any of that back, I'd now like to present the other side: not arguments against taping per se , but some of the distinctive risks associated with recording your classes - and especially, synchronous classes in which students participate.  In the absence of clear institutional taping policies, the problems are non-trivial, the best way to negotiate through them is far from obvious, and the right choice for one class, school, or professor may not be the same as for another.

by Neil H. Buchanan As of this moment (late Monday morning), there is still no deal on an economic stimulus/bailout bill in the U.S. Senate.  Whenever a deal goes through, the result will be deeply flawed and almost certainly inadequate to the moment.  That means that we will go through this again, probably very soon.  What should senators who mean to do good (that is, not Republicans) do in the current situation to minimize the damage and maximize the positive impact? In my new Verdict column today, " What Should Democrats Do About Republicans’ Insistence on Lining Their Own Pockets With the Stimulus Plan? " my advice for Democrats (in the form of more than two thousands words) boils down to this: Fold.  Give up.  Feel good about trying to make the bill less of a money-grab for Republicans and their backers, but get it over with.  Something is better than nothing. Allow me to elaborate.

by Michael C. Dorf Just over a week ago, I urged Congress to enact legislation "locking down" the country and, if necessary, temporarily suspending the privilege of the writ of habeas corpus. As I related in a follow-up essay here on the blog , most of the critical commentary on my column focused on habeas suspension, even though I did not and do not regard that as the core of the proposal. For me, the key is lockdown. I am heartened that in the intervening period the governors of several of the hardest hit states (including NY, where I live) have issued stay-at-home policies. I think most of these policies are too lenient for this stage of the crisis and that broader federal action is needed, but something is better than nothing. Meanwhile, on Twitter and elsewhere, various commentators questioned my willingness to give sweeping power to President Trump and his administration, whom we have good reason to distrust. I responded in my blog post that that is the reason I w...

By Eric Segall Like millions of parents here and abroad, my wife and I are trying to juggle our work responsibilities (Lynne is a business school professor) with our parental duties while we are effectively home bound other than walks around the neighborhood with our dogs and occasional trips to the grocery and pharmacy. Our daughters are Sara, 12 and Katie, 11 (I also have a 29 year old daughter Jessica who is safe and sound elsewhere). It appears that this is going to be our way of life for a while so I thought I would share a few thoughts and questions about what Lynne and I are going through right now to keep our children safe, sound, and sane. If you're looking for clear answers to the issues I am going to raise, you might want to stop reading now. Also, I am not claiming any special expertise regarding parenting but writing this in the hopes of, maybe, making other parents feel not so alone when essentially, other than our immediate families, and communicating via various...

by Michael C. Dorf Donald Trump's repeated references to SARS-CoV-2 (the coronavirus that causes COVID-19) as a "Chinese virus" encourages racism against Asians and Asian Americans, undercuts the willingness of the Chinese government to provide us with vitally needed assistance that it is almost uniquely positioned to provide, and serves to distract Americans from the ways in which his administration has, through incompetence and egotism, turned what would have been an extremely challenging public health emergency for any normal President into a catastrophe. There is still time to act to greatly reduce the destructive impact of COVID-19, but the time is now. A national lockdown of the sort that California is now implementing for even as little as three weeks would slow the spread of the virus and buy sufficient time to ramp up testing so that the U.S. could shift to the sort of extensive testing and individual isolation regimes that have allowed South Korea, Singapore,...