Dorf on Law

by Neil H. Buchanan Note to readers: I have published two new columns this week on Verdict , which I hope that many of you will check out and possibly even find interesting: -- " Dead Democracy Walking ," published yesterday, represents a pivot point from writing about the possible death of the U.S.'s imperfect experiment in constitutional democracy and the rule of law to taking that imminent death as a given; and -- " Statehood for D.C. Could Not Be Reversed ," published this morning, demonstrates that D.C. statehood ought to be an easy call, even under the strained logic of filibuster lovers like Joe Manchin and Kyrsten Sinema, because it could not be reversed by Republicans even after they establish one-party rule.  But I also point out that ultimately it does not matter, because "Dead Democracy Walking." I am planning to write yet another Verdict column to be published this Thursday, where I will explore the future of federalism under one-party R...

 By Eric Segall My first book, Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges, came out in 2012, about six years after the Roberts Court began. The thesis of the book was not that the Court is always partisan or that all the Justices are awful or that the country would be much better off if only the Court mirrored my progressive politics. The thesis of the book was that over the centuries the Supreme Court has not taken prior positive law seriously enough to justify calling the institution a court.  It is relatively common ground that judges are not supposed to make all-things-considered decisions but rather they should at least minimally take prior law into account. My book discussed numerous areas of constitutional law since the Founding and reached this conclusion: Because the Court functions much more like a political veto council than a court of law...the Supreme Court's power to overturn the important decisions of other governmental ...

by Neil H. Buchanan Plenty has happened in the ten days since I wrote my Dorf on Law column about Afghanistan.  One happy development is that there is now a reasonably significant chorus of people who are not buying the hawkish hype that the cable shows -- and even supposedly neutral reporters -- have been hyping.  Ezra Klein's NYT piece earlier this week is a good example of this positive genre.    I can thus happily admit that my headline-level assertion that "No One Knows Anything" is now demonstrably false.  It took some time, and there is still plenty of hawkish insanity out there.  Still, the conversation now includes at least a bit of clarity, honesty, and modesty. Of course, plenty of bad things have happened as well, the most obvious being the terrorist attacks at Kabul's airport yesterday that killed dozens of people.  And because the victims of those attacks include thirteen Americans, this goes beyond a human tragedy and becomes y...

  by Michael C. Dorf A new analysis indicates that over a quarter-million Afghans who worked with or for the United States during the last two decades remain in the country. Most of them will not be evacuated in the five days between now and the self-imposed and Taliban/ISIS-K-enforced deadline for withdrawal of all U.S. forces. We will have failed those people, with catastrophic, often fatal results. More than that, we will have wronged them by violating our agent-relative moral duties towards them. In moral philosophy, an agent-relative duty is exactly what it sounds like: a moral duty that you owe to particular individuals because of something about your relationship with them. Such duties can be usefully contrasted with agent-neutral duties , which we owe everyone. For example, your duty not to intentionally kill people (absent justification or excuse) is agent-neutral; you are obligated to refrain from murdering everyone. By contrast, your duty to provide food and shelter for...

by   Sidney Tarrow       When hundreds of enraged Trump supporters attacked the U.S. Capitol on January 6th, 2021, Representative Liz Cheney was approached by her Republican colleague, Jim Jordan. According to journalists Carole Leonning and Philip Booker, in their book I Alone Can Fix It (2021), Cheney reported: "While these maniacs are going through the place, I'm standing in the aisle and he [Jordan] said, 'We need to get the ladies away from the aisle. Let me help you.' I smacked his hand away and told him, 'Get away from me. You f---ing did this!'” ( Lonis, 2021 ).       Cheney’s accusation that Jordan “did this” was both true and false: Jordan and the Trump wing of the Republican Party were certainly complicit in the myth that the 2020 election had been stolen, which enraged the rioters on January 6th. But the attack on the Capitol that day was an insurrection by a social movement – not by a party. This was an insurrection that Donald Trump had ...

  by Michael C. Dorf James Carville famously described the politics of Pennsylvania as Philadelphia and Pittsburgh with Alabama in between. This trope fairly describes much of the United States. Wisconsin is Milwaukee and Madison, with Alabama in between. Ohio is Columbus, Cleveland, Cincinnati, and Toledo with Alabama in between. New York is New York City (minus Staten Island) and the upstate small cities of Albany, Buffalo, Rochester, and Syracuse, with Alabama in between. One might also add college towns to round out the description—as I can attest from personal experience: whenever I venture more than five miles outside Ithaca, I see multiple Trump yard signs—some left from 2020, others looking to 2024. Indeed, as Professor Buchanan observed when I made the point to him in an email last week, Carville's aphorism even describes Alabama itself, which is Montgomery and Birmingham, with Alabama in between. Carville's observation can also be seen in those maps that Donald Trump ...

 By Eric Segall I grew up forty-five minutes from Manhattan and worked for two summers as a law firm messenger in New York City. I also have studied, taught, and written about race my entire career. Yet, before reading Clint Smith's excellent new book How the Word is Passed: A Reckoning with the History of Slavery Across America ,  I knew little about New York's substantial role in the slave trade (which I discuss towards the end of this post). My purpose here is not so much to review Smith's pathbreaking book but to make a plea for everyone to read it.  In How the Word is Passed , Smith visits numerous places where slavery and segregation thrived and through fascinating stories, interviews, and reflections demonstrates with beautiful prose (the author is also a poet) how our present institutional racism is derived from our racist past. The book made me gasp out loud numerous times.

by Neil H. Buchanan To readers: Yesterday brought yet another example of the radicalization of Donald Trump's anti-democratic supporters -- followed by another bonkers response from one of the Trumpiest House members, which was in turn followed by the sound of crickets from Republican House leaders.   In light of this now-depressing new normal, for today's classic column, I was going to reprint the column in which I first used the phrase "the end of constitutional democracy" to describe the existential threat of Trumpism:" Is This the Beginning of the End of Constitutional Democracy in the U.S.? "  Verdict published that column ran on June 2, 2016, and I added a few more thoughts in a Dorf on Law column the next day . Although those columns still, in my completely unbiased opinion, stand up rather well more than five years later, I wanted to go back a bit further to find when I started writing about pre-Trumpian threats to the rule of law in the U.S., ev...

By Sherry F. Colb When my daughters were little, one of the books that I read to them before bedtime was The Giving Tree , by Shel Silverstein. The story involves a boy who, in today’s parlance, apparently suffered from a failure to launch. He seemed unable to go out into the world and get himself food or shelter. The Giving Tree always had something to offer the boy, and she (I am pretty confident that the tree is a she) was happy to do it. She gave him fruit, wood for building a home, and ultimately a place to rest when he had destroyed all but a remaining stump. I always found the story very sad, but I somehow missed the fact that the story—however well written and creative—is quite ugly and offensive. If I read it to children today, it would be as an example of how misogyny finds its way into “classic” writings.

 By Eric Segall In a forthcoming article in the Harvard Law Review titled “Originalism Standard and Procedure,” Professor Stephen Sachs continues his Arthurian quest to convince (not sure whom, academics, judges, philosophers, everyone) that originalism is indeed our law. This mission, which he and his frequent writing partner Professor Will Baude, have been on for a while, has generated numerous essays, articles, and blog posts sometimes referred to as the “ positivist turn ,” or “originalism is our law” originalism. In his latest Article, Sachs argues that originalism is a standard, not a decision procedure. In more common terms, he tells us that originalism is a “destination, not a route.”  Sachs says the point of borrowing the philosophical distinction between a “standard of rightness” and a “decision procedure” is to demonstrate, not that originalism is true, but that many arguments against originalism are wrongheaded. In his own words, “the uncertainty of our legal pa...