Dorf on Law

A new article in The New Yorker by Susan B. Glasser appears under this headline: " The Rage of the Toddler Caucus on Capitol Hill ."  Focusing on the dysfunction among House Republicans in the immediate moment -- an incomprehensible mess that threatens the rather weighty consequence of another Republican-led government shutdown -- Glasser adds to the plentiful political literature likening Republican politicians to children at various stages prior to full and healthy adulthood. We (and here I do include myself, without question) regularly describe Republicans as mean girls, high school bullies, infants, kindergartners, and so on.  Often, as with Glasser's piece, the idea is to call out Republicans with the simple truth, which is that they are not acting like adults.  Along those lines, yesterday's event staged by the House Judiciary Committee's Republicans, where they strutted their vacuous stuff by loudly and repeatedly insulting Attorney General Merrick Garla...

As I have previously noted, next Friday, September 29, Rutgers School of Law in Newark will host a symposium co-sponsored by the Cornell Law Review and honoring the life and work of Sherry Colb. On behalf of myself and the other members of the organizing committee, I'm happy to say that we have a good-sized audience registered, but I have also heard from various of Sherry's former students, colleagues, and admirers who have said that they plan to attend but haven't yet registered. By the end of the week, we need to give final numbers to the caterer (for the free food throughout the day -- vegan, of course), so I would much appreciate if you plan to attend but have not yet register, please do so here . It's free. If you want CLE credit, you can get that (for a modest administration fee with a discount for public interest lawyers) by  registering for CLE credit here . All of that info is easily accessible via the tabs on the symposium webpage . We also have a terrific sch...

Today's New York Times includes a news article under this actual (that is, not a parody) headline: " U.S. National Debt Tops $33 Trillion for First Time ."  Why would anyone suspect that that might in fact be a parody?  Because it means nothing to announce that federal debt has exceeded a number for the first time , any more than it would make sense to say breathlessly that we are all older right now than we were yesterday.  Time passes, the US economy grows to a new level of GDP "for the first time," the population and the work force grow to levels that we are only seeing "for the first time," even low levels of inflation lead to price levels that we are only seeing "for the first time," and on and on.  That is how upward trends -- most definitely including sustainable upward trends -- work. To readers who are having a sense of deja vu : No, it is not in your mind.  Last October, I wrote a two - part Verdict column and a complementary Dor...

Among the more peculiar moves the Supreme Court has made in recent high profile decisions is its rejection of interests that, while real, are difficult to measure.  In Students for Fair Admissions v. President and Fellows of Harvard College , Harvard and UNC identified the educational benefits of diversity, including (among others) training future leaders, preparing graduates to adapt to an increasingly pluralistic society, and enhancing cross-racial understanding.  These may be "commendable goals," the Chief Justice wrote, but they were "not sufficiently coherent for purposes of strict scrutiny."  How, the Court asked, should courts "measure any of these goals"?   Likewise, in Dobbs v. Jackson Women's Health Organization , the Court discounted women's reliance interests because they were too intangible.  In upholding the right to abortion, the Court in Planned Parenthood v. Casey had followed Roe v. Wade because "people [had] organized inti...

Voters in Colorado and Minnesota have filed lawsuits to keep Donald Trump off the ballot in 2024 because he allegedly engaged in conduct that violates Section 3 of the 14th Amendment. Additionally, two teams of two law professors each (all on the right) have written a total of 252 pages on the original meaning of the text of Section 3 and whether that meaning disqualifies Trump. According to Will Baude and Michael Paulsen, the evidence points unmistakably to the conclusion that Trump is already  disqualified under Section 3, though once he is refused eligibility on a ballot he may challenge that finding in court. Josh Blackman and Seth Tillman, however, believe Baude and Paulsen make numerous mistakes on their way to their conclusions and that their article "tells only one side of a complex story."  Section 3 says the following: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, un...

Whether and when John Eastman faces a jury of his peers in Georgia for his efforts to overturn the results of the 2020 Presidential election remain to be seen, but his first trial is already underway in California, where the issue is whether he will be disbarred. Eastman is trying to persuade the judge that in promoting the plan for Vice President Pence to disqualify slates of Biden electors and give the election to Trump he was just engaging in mainstream constitutional lawyering. To make that point, Eastman has relied on testimony from Berkeley Law Professor John Yoo. That might seem an odd choice, given that Professor Yoo isn't himself all that mainstream. If you had your choice of constitutional law professors to testify on your behalf that you're not an authoritarian kook, you probably would want to pick a constitutional law professor whose classes aren't picketed by people clad in orange jumpsuits decrying him as a war criminal . But what Professor Yoo lacks in mainst...

Chris Christie, who was once the governor of a big-ish state and who failed to seize his "moment" to run for President in 2012 (only to fail miserably in 2016), is running for President in 2024.  Or is he?  The consensus among political junkies seems to be that Christie knows that he is not truly in the running for President, but unlike the other also-ran candidates , he is also not running for Vice President or to serve in a future Trump Administration. What is Christie doing?  The most plausible theory is that he is going through the motions of running for President as a way to stop Donald Trump from having any chance at setting up a (surely corrupt) future Administration.  By being in the spotlight and seizing every opportunity to criticize Trump relentlessly -- and accurately -- Christie is doing more damage as a declared candidate than he could do without formally running for President. If that theory is correct (and I no longer think it is, as I explain below)...

My latest Verdict column discusses last week's action in the case brought by the United States against Texas and Governor Greg Abbott concerning the floating barrier system the state has erected in a portion of the Rio Grande as a political stunt  in order to prevent the entry into the state and country of drugs and undocumented immigrants. As I explain, Federal District Judge David Ezra issued a well-reasoned and thorough opinion finding that Texas violated a federal statutory provision codified at  33 U.S.C. § 403  forbidding obstruction of navigable waters. Judge Ezra also rejected the claim by Texas that it was authorized to take emergency action by the provision of the Constitution's Art. I, § 10, cl. 3 allowing states to act in the event of an "inva[sion]." On Friday of last week, the Fifth Circuit granted an administrative stay pending appeal. I agree with the U.S. government that the stay was improper, given both the timing and the weakness of the arguments...

One of the oldest and most venerable legal rules  is that no person should be the judge in her own case. When a party in any federal court except SCOTUS files a motion for recusal, the judge in question makes the first pass but then the moving party can appeal to different judges on a higher court (or  en banc review in the courts of appeals) with Supreme Court review a possibility as the last stop.  But when a recusal controversary involves a Supreme Court justice, there is no review, no appeal, no process, nothing. The justice in question decides on her own whether she should or should not hear a case, and there is no appeal from that decision. But even worse, there is no obligation for the justice to provide reasons for either recusing or not. According to Gabe Roth, Director of Fix the Court, in the entire history of the Supreme Court, there have been only four written responses to recusal issues by a sitting justice. There should have been many more in light of the ...