Dorf on Law

By Eric Segall Last Friday I attended an excellent symposium at the Savannah Law School on American Legal Fictions. In addition to a stirring key note address by Garrett Epps, there were numerous fascinating presentations on a wide range of topics from conflict minerals to hypothetical jurisdiction. Not surprising to regular readers of this Blog, I spoke about the fiction that we need an odd number of Supreme Court Justices and/or a strong Supreme Court to regularly resolve our nation's most difficult legal, social, and political controversies. My thesis is that a Court composed of an ideologically divided, even number of Justices, in other words our current Court, represents an optimal state of affairs and, with some work, could be made permanent by the Senate without a constitutional amendment. Over the last eight months, my work on this topic has been published by the New York Times , Salon , and the Daily Beast , and I've been quoted extensively in the Huffington Post a...

by Michael Dorf On Friday, Donald Trump said this  about Hillary Clinton's Secret Service Detail: I think that her bodyguards should drop all weapons. They should disarm. Right? Right? I think they should disarm. Immediately. Yes? What do you [pointing to crowd member] think? Yes. Yeah. Take their guns away! She doesn't want guns. Take their . . . let's see what happens. Take their guns away. Okay? It'd be very dangerous. Because this particular outrage came fast on the heels of Trump's love-fest with Dr. Oz and his admission that President Obama was in fact born in the U.S. (coupled with a free commercial for his new hotel and a new lie that Hillary Clinton originated Obama birtherism), Trump's suggestion that Clinton's security detail should leave her open to political violence did not receive all that much attention--and certainly less attention than this sort of comment would receive had it been uttered by any candidate for major public office (much...

by Neil H. Buchanan People have an understandable tendency not to want to admit error, which results in unconscious efforts to twist evidence in service of what they think is an established truth.  Psychologists call this "confirmation bias."  This can be relatively harmless, as when people buy a red car and then begin to notice red cars everywhere they look.  It can also be dangerous, as when racists see every crime committed by a black person as proof that minorities are more violent than white people. This year's political circus has provided a veritable cavalcade of examples of confirmation bias.  A recent example from the editorial board of The New York Times , which I will discuss momentarily, serves as an odd illustration of the relatively benign version of this type of cognitive error.  Donald Trump's entire worldview, on the other hand, provides the most extreme version of how this psychological tendency can become a deadly malignancy. Over the la...

by Michael Dorf In the last week or two, some of the presidential campaign coverage has focused on the health of Hillary Clinton and Donald Trump (e.g., here ). The media's interest is understandable but the interest of Trump supporters in Clinton's health and (to a lesser extent) vice-versa leads to a puzzle: why do the political opponents of either candidate want to call attention to the possible ill health of the opposing candidate? After all, in Trump and Clinton we have the most and the second-most unpopular presidential nominees since polling about such matters began. If we assume that a generic Democrat handily beats Trump and that a generic Republican handily beats Clinton (both of which are assumptions that seem warranted by each candidate's negatives), then telling an undecided voter that the unpopular candidate at the top of the other party's ticket could die soon should make the other party's ticket more attractive, not less. If we assume that Pence ...

By Eric Segall Jack Balkin of Yale Law School recently posted an essay about Justice Scalia's legacy which sets forth four criteria for ascertaining what a Justice's long term reputation is likely to be. Balkin argued we should look at 1) how useful the Justice is likely to be to future generations; 2) Is the Justice central to the political regime in which he lived; 3) Did the Justice take positions that are likely to end up on the "right side of history"; and 4) Did the Justice have promoters and "acolytes" willing to strongly defend his positions. I think these criteria are fine for the task at hand, and so does my friend Ilya Somin, who responded to Balkin with his own post on the Volokh Conspiracy. Like any good balancing test, we don't really know how these criteria will play out in the future, and neither Balkin nor Somin takes a strong position on what they mean for Scalia's long-term reputation. But, and it is a big but, both men in ma...

by Sherry F. Colb In my column for this week on Verdict , I discuss the case of In the Matter of Brooke S.B., Respondent, v. Elizabeth A. C.C.   In this case, the New York Court of Appeals overruled an older decision, In the Matter of Alison D. v. Virginia M. , the latter of which held that a person lacks standing to seek custody and visitation with respect to a child if that person is neither biologically, adoptively, nor maritally related to the child.  This ruling created injustice for many individuals who had been members of same-sex couples and had planned, pre-conception, for the other member of the couple to use artificial insemination to conceive a child who would then belong to both members of the couple.  The recent case, Brooke S.B. , changes this state of affairs and holds that if two people conceive a child with the intention of the child belonging to the two of them, then the non-biological, non-adoptive (and non-marital) member of the couple has standing ...

by Neil H. Buchanan [Note to readers: Based on recent developments, I have updated the title and lightly edited this post, in particular adding several sentences at the end.  Edits to the text are shown in bold-face and strike-through.  -- NHB, 9/14] One of the ongoing questions about Donald Trump's presidential candidacy is whether he is a total deviation from everything that the Republican Party holds dear or is simply an unvarnished version of what that party has become. Republicans who have rejected Trump claim that he is not a true conservative, and they can certainly point to examples of things that Trump has said that sound un-Republican.  (He is anti-trade, pro-Social Security, anti-interventionist on foreign policy, and so on.)  On the other hand, his views on taxes, education, business regulation, the environment, military spending, and many other issues are either directly lifted from Republican policy briefs or are amped-up versions of party orthodo...

By Eric Segall Last week a number of commentators lashed out at Justice Ruth Bader Ginsburg claiming that she made inappropriate remarks. According to Supreme Court reporter Bob Barnes of the Washington Post, the following   exchange   took place between students at Georgetown and the Justice about a lawsuit challenging the Senate's refusal to hold a hearing or vote on Merrick Garland: “If the Senate is not acting, what can be done about it?” Ginsburg asked rhetorically. “Even if you could conceive of a testing lawsuit, what would the response be? ‘Well, you want us to vote, so we’ll vote no.’” About the Senate’s intransigence, she also said: “I do think cooler heads will prevail, I hope sooner rather than later. The president is elected for four years not three years, so the power he has in year three continues into year four….Maybe members of the Senate will wake up and appreciate that that’s how it should be.” These comments angered Josh Blackman who accused ...

by Michael Dorf A recent episode of the Hidden Brain podcast  explores the perils of power with UC Berkeley psychology professor Dacher Keltner, whose book The Power Paradox: How We Gain and Lose Influence  reports evidence of a disturbing phenomenon. Contrary to popular belief, megalomaniacs and sociopaths are less likely than other-regarding decent people to acquire power in a variety of settings. That stands to reason if you think about it. A bully can exercise "hard power" through intimidation, but in well-functioning societies and institutions, people will be more willing to give power to those who are likely to exercise it for the common good than to those who will be self-serving. Of course it is easy to think of counter-examples (insert Trump joke here). Like all social science research, Keltner's research points to trends and probabilities. Even when other-regarding decent people acquire power, however, problems ensue, because Keltner also finds that power co...

by Lisa McElroy By now, you’ve probably heard about the debacle with the Georgia bar exam. In case you’ve been on Mars for the past couple of days, though, let me fill you in. The upshot: On Monday, the Georgia Board of Bar Examiners announced that there had been an error in scoring/reporting results for the July 2015 and February 2016 bar exams.  Ninety bar takers were told they had failed the exam when, in fact, they had passed. The Board of Bar Examiners explained that they made two different errors on the two exams that led to exams being incorrectly scored or scores being incorrectly reported. What’s weird is that, while major news organizations picked up the story, no one seemed to comment on the implications of the error. I’ve been teaching bar review for eighteen years, and I’ve worked for all of the major bar prep companies out there. I always tell my friends that no one in America is more stressed out than law school graduates who are studying for the ...