Dorf on Law

  by Michael C. Dorf My latest Verdict column critiques Sidney Powell's motion to dismiss the defamation  lawsuit filed against her by Dominion Voting Systems. Some of the news coverage of Powell's motion has suggested that she is making the argument that her statements about the election being stolen from Donald Trump were so transparently ludicrous that no reasonable person could have believed them. That's not far off, although it's not exactly accurate either. As I explain, the motion to dismiss makes contact with reality in a few places, but it should ultimately fail. If political speech can ever be defamatory--and the SCOTUS cases indicate that it clearly can be in at least some cicrucmstances--Powell's post-election attacks on Dominion should trigger liability. During the course of my column, I note the irony that both Trump himself--through his suggestion that we "open up" defamation law--and right-wing ideologues--like Judge Silberman, whose cal...

by Neil H. Buchanan Last Friday, I offered some observations about the pro-insurrectionist Senator Ted Cruz, drawing lessons from the one major life experience that he and I have in common: competitive college-level parliamentary debating.  I will not expand here on what I wrote in that column, but I want to use my two writing slots this week (today and Friday) to pick up on some issues that were raised on the comment board for that column.  In a pointed -- but refreshingly trolling-free -- discussion, three of our readers raised a number of interesting points.  Here, I want to take a stab at answering one reader's provocative question: "Whenever I think of a Cruz, a Hawley, a Franken, or some other Ivy alumni, I want to find someone to tell me just what those universities think their academic missions are. To create comedy writers? Hedge fund managers? Elected officials? Or just to reproduce more of themselves? Whatever the weaknesses of the noblesse oblige of...

By Matthew Tokson Carpenter v. United States  held that the government must get a warrant before collecting an individual’s cellphone location data. Such data would allow the government to constantly track citizens, revealing their activities, associations, relationships, purchases, and countless other details about their lives. But what if the government can just purchase similar data from a private vendor? Does the Fourth Amendment regulate government purchases, or has the government found a valid way around Carpenter ’s restrictions? These are important and very new questions, and they've begun to attract a lot of scholarly attention. They arise because several government law enforcement agencies have purchased private location data from data brokers in the wake of Carpenter . The Department of Homeland Security , the IRS’s Criminal Investigations Division , the Defense Intelligence Agency , and several other federal and local law enforcement agencies have purchased l...

by Neil H. Buchanan For someone possessing whatever is the opposite of charisma ( repellency , maybe?), Ted Cruz has made it very far in life.  Cruz, moreover, has succeeded not in one of the areas in which being a jerk can be a positive, which is what allows Martin Shkrelli or Elon Musk or Roseanne Barr to enjoy at least temporary success.  No, he actually has somehow convinced millions of people to vote for him on multiple occasions. That is not, of course, as uncommon as I made it seem just now.  There are plenty of politicians of national stature who are simply awful personally, from former Democratic congressman Barney Frank and still-Governor-for-now of New York Andrew Cuomo to Senator Rand Paul or the late Senator Strom Thurmond.  For as long as there have been parties, and especially in current Republican politics, winning general elections is not the real game.  All Cruz had to do was work behind the scenes to grab his party's nomination and, in a stat...

  by Michael C. Dorf Monday's SCOTUS oral argument in Cedar Point Nursery v. Hasid   implicated a bewildering array of conceptions of the common law of property. In today's essay, I hope to shed some light on what's at stake. I offer a few normative points, but my chief goals are analytic. Here's how I summarized the legal conflict last fall when the Court granted cert:  A longstanding regulation in California grants union organizers access to agricultural workers on private property. The rule allows such access for up to three hours per day for up to thirty days at a time for up to four thirty-day periods per year. Union organizers used the rule to gain access to privately owned strawberry fields and orchards growing grapes and citrus fruit. The owners of these properties complained that the access was disruptive and, more importantly for present purposes, unconstitutional. They claimed that the state, by empowering the labor organizers to gain access to their prop...

by Neil H. Buchanan One of the practitioners of the dark side of public opinion polling is Frank Luntz, who has for a long time been many reporters' go-to source as a "Republicans pollster."  Luntz is most famous within the small group of people who pay attention to these things as the inventor of the term "death tax" as a substitute for the estate tax.  Does it matter that the estate tax is not a death tax, or that there is no such thing as a death tax, or that even if there were such thing as a death tax (and if the estate tax were an example of it), it would actually be worse if wealth were taxable at any time other than death? Not according to Luntz, who once summed up his basic approach with disturbing candor: "A compelling story, even if factually inaccurate, can be more emotionally compelling than a dry recitation of the truth."  His oeuvre includes the usual run of Republican political correctness, from referring to the "Democrat Party...

  by Michael C. Dorf Dissenting in Tah v. Global Witness Publishing last week, Senior DC Circuit Judge Laurence Silberman mostly disagreed with the way in which his colleagues applied New York Times v. Sullivan in favor of the defendant Global Witness--a human rights organization that was sued for defamation by two Liberian officials based on the defendant's publication of a report falsely implying that they had accepted bribes. The majority concluded that the plaintiffs' complaint did not allege facts sufficient to meet the "actual malice" standard that NYT v. Sullivan requires public officials to satisfy. Judge Silberman disagreed. Not content to explain why he thought the complaint ought not to have been dismissed, Judge Silberman also took the opportunity to say that he thought NYT v. Sullivan was wrongly decided and ought to be overruled. That portion of his dissent is, to put it politely, odd. In a forthcoming Point/Counterpoint exchange with Berkeley Law Prof...

 By Eric Segall In an important new article in the American Political Science Review (behind a pay wall), Calvin TerBeek has uncovered substantial data to suggest that what we think of as modern originalism was motivated first and foremost by political and legal opposition to Brown v. Board of Education.  Today's judges who self-identify as originalists will likely ignore this scholarship but originalist academics should not. They need to explain how a contemporary movement born in the racism of the 1950's and 1960's has evolved beyond that racism. At the end of this post, I'll offer a few tentative thoughts on race and originalism today.  

  by Michael C. Dorf Section 9901 of the American Rescue Plan Act of 2021 appropriates approximately $220 billion to state, local, territorial, and tribal governments. Most of those funds (over $195 billion) go to states, raising the question whether the conditions placed on how states use those funds are constitutional. Because of a highly dubious precedent of the Supreme Court, there is a substantial possibility that a key condition could be invalidated. Here I'll explain why one of the arguments for the invalidity of the condition is especially bad.

by Neil H. Buchanan   This week, Senate Democrats officially proposed their version of the For the People Act, which has already passed the House as H.R. 1.  That bill would substantially de-fang the two anti-democracy strategies that Republicans have been abusing for years: gerrymandering and voter suppression.  In 2021, both of those strategies are already being pushed even further by Republicans, as they plan to take away even more House seats when adopting legislative maps in response to the 2020 census, and as Republicans in state legislatures across the country advance an onslaught of voter suppression laws. There are many moving parts in the Republicans' long-running strategy to disenfranchise non-Republican voters, one of which was Donald Trump's extensive, bare-knuckled effort to rig the census.  Running through the full list of Republican affronts to representative government would be both too time-consuming and beside my point here.   Nonetheless, i...