Dorf on Law

by Michael C. Dorf With COVID-19 cases and deaths in the United States setting daily records, this seems like an appropriate time to check in on NYU Law Professor and libertarian public intellectual Richard Epstein. Recall that back in March, Epstein wrote a column for the Hoover Institution website condemning what he thought was shaping up to be a governmental overreaction to the pandemic. In that column, Epstein predicted that even without substantial government interventions, the total number of COVID-19 deaths in the United States would be around 500. Shortly thereafter, Epstein acknowledged what he called a "stupid gaffe." He should have said 5,000 U.S. deaths and 50,000 deaths worldwide. The original column was thus corrected (at least twice). Yet, as I explained in an essay  shortly after Epstein published his analysis, even his "revised estimate [wa]s still probably at least two orders of magnitude too low." I wish I could say that I was wrong, but it is n...

 By Eric Segall Thanksgiving has always been a special time for my family. My mother's birthday was November 22, and my parent's anniversary was November 25. My mother passed away a few years ago but my dad is still going strong at 91. Thanksgiving was our one sacred time time together when my brother and sister's families as well as mine would all get together with our parents. This is the first Thanksgiving I won't spend with my siblings and at least one of my parents in decades. Like millions of Americans we will zoom, but it will not be close to the same. Giving thanks can be hard. Nothing in 2020 has been the same. Trump, the pandemic, George Floyd, and numerous other sad events have changed our lives dramatically. There has been a twitter saying since shortly after Trump was elected that "there is no bottom." That is true of Trump and his enablers, but not for America, and eventually the pandemic will pass and racial injustice will slowly get better.  So...

by Michael C. Dorf As Thanksgiving approaches, I want to express sincere gratitude to Republican public office holders who carried out their legal duties despite enormous pressure to participate or acquiesce in Donald Trump's scheme to end American constitutional democracy. The list is long and includes a great many people whose names are not widely known (a fact for which they are no doubt grateful). Most prominent among those whose names we do know are: Georgia Secretary of State Brad Raffensperger; Philadelphia City Commissioner Al Schmidt; Michigan Vice-Chair of the Board of State Canvassers Aaron Van Langevelde; the four Republicans on the five-member Maricopa Board of Supervisors; Federal District Judge Matthew Brann; and US Senators Susan Collins, Lisa Murkowski, Mitt Romney, and Ben Sasse. Thank you to all of them and to everyone else who put duty first. In recent days I have seen it said that one should not be praised simply for doing one's job--that this is too low a ...

by Neil H. Buchanan   Back in June of 2016, I pointed out that Donald Trump had created an entirely argument-free version of political campaigning.  I compared and contrasted Trump's type of logical error to the standard Republican type of logical error.  Although I did not at that point use these labels, it makes sense to contrast Republican il logic with Trumpian non -logic. The difference is that Republicans typically have at least a story to tell that connects premises to conclusions.  Referring to the example of the infamous Laffer Curve, I noted that the Republican argument goes like this: "Tax cuts cause people to want to work more and businesses to expand, so the economy grows, and indeed it grows so much that total tax revenues rise despite the lower tax rates on each dollar in that expanded tax base."  Could be true.  Not true, at all, as proved again and again and again; but could be true.  They are being illogical because they insist on r...

by Matthew Tokson On Saturday, eight Republican electors in Pennsylvania sued in state court , asking a judge to throw out all 2.5 million Pennsylvania mail-in votes. The plaintiffs claim that Pennsylvania’s 2019 mail-in voting law is unconstitutional because the Pennsylvania Constitution implicitly limits absentee voting to specific circumstances.  Similar  suits  have been  filed  in several other  jurisdictions.  Rudy Giuliani’s federal suit currently on appeal seeks to invalidate all 6.8 million Pennsylvania votes based on an alleged Equal Protection Clause violation. And a rejected Texas lawsuit sought to throw out 100,000 votes cast at drive-thru polling stations, claiming that such voting violated Texas law.  Set aside laches and the profound weaknesses of the merits claims in these suits. Assume that the challenged elections provisions—and the votes cast under them—were unlawful. How should a court think about voter reliance ...

  by Michael C. Dorf After meeting with President Trump on Friday, the Republican leaders of the Michigan legislature--Mike Shirkey, the State Senate majority leader, and Lee Chatfield, the speaker of the Michigan House--reaffirmed their commitment to following the law, under which the state's Presidential electors will be certified for the winner of the state's popular election. I hope that their statement spells the beginning of the end for Trump's grotesque gambit to enlist Republican-led state legislatures in facilitating a bloodless coup. However, there are reasons to remain gravely concerned, especially if, later today, the two Republicans on the Michigan State Board of Canvassers accede to their party's outrageous request for a two-week delay in certification of the state's election results based on minor and routine discrepancies fronting for racist conspiracy theories. To be clear, that move would not by itself deprive Joe Biden of Michigan's electors, ...

 by Sherry F. Colb (The following is the text of a talk I gave on Monday on a panel sponsored by the New York City Bar.) When I was in law school, a brave classmate spoke openly of a marriage in which her husband regularly abused her. I realized as I listened that I had stereotypes of battered women in my mind. I was surprised to hear what she said because she did not seem like the sort of woman who would find herself in an abusive relationship. She was eloquent and strong and extremely intelligent. I looked up to her and admired her as a leader. What could have possessed her to absorb abuse? And what exactly did her husband do to her? We can recognize this kind of thinking as victim blaming. We find out that a person is enduring cruelty and abuse, and we ask, “Why haven’t you left?” or “Is it really that bad?” instead of assuming that she has her reasons and that it is her abuser rather than she who has some explaining to do. As a good friend of mine said recently, if we blame the...

by Neil H. Buchanan   While he was frantically running around the country at the end of his losing reelection campaign, Donald Trump continually told his audiences that the media were pushing the coronavirus story simply to hurt him.  He predicted that, come November 4, we would stop hearing anything about COVID-19.  It is worth noting, then, that Trump's paranoid sense of victimization was wrong again.  The pandemic is raging, and the press is covering it aggressively, even after he lost.   The problem is that Trump and the Republicans are doing their best to push that story aside by making news of the worst sort: attempting to destroy constitutional democracy.  (Trump also is now claiming credit for progress on vaccines, and Donald Trump Jr. has claimed that Pfizer withheld its positive announcement until after the election to hurt his father.  A chip off the old paranoid, self-pitying block.)   But is the Trump coup attempt dead in the water, ...

by Neil H. Buchanan I need to take a short break from following Donald Trump's ongoing attempted coup.  This is turning out to be every bit the existential crisis about which I and others have long warned; and even though people are currently (understandably) expressing confidence that Trump will ultimately fail, I still have serious doubts.  But that is for another day (probably tomorrow).  How about a palate cleanser? As it happens, I have again been thinking about the incoherence of the concept of economic efficiency.  As Professor Dorf announced back in May, a new Buchanan-Dorf article is forthcoming in Cornell Law Review under the title: A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism .  Because of the long time frames involved in law review publishing, we are only now being asked to respond to the final round of editorial queries for the article.  (Our submitted draft can still be found on SSRN ).   As Profess...

 By Eric Segall J ustice Samuel Alito’s partisan speech to the Federalist Society last week caused quite a stir among both the left and the right, with both sides lining up to criticize or applaud the presentation based on their political views. He said many things that perhaps Supreme Court Justices should keep to themselves. But the part of Alito’s remarks that focused on the alleged persecution being heaped on people who object to same-sex marriage on religious grounds, and his overall argument that "religious liberty is in danger of becoming a second class right," r aise important issues concerning the separation of church and state (or-non-separation) and suggest Justice Alito has a perverse and counter-factual perspective on the state of religious liberty in America. People of faith, according to many, have a right to be exempt from laws applicable to the rest of us, if complying with those laws substantially burdens their religious exercise, but secular objectors atten...