Dorf on Law

by Neil H. Buchanan The pundits and the public have weighed in on the final presidential debate of 2016, and it turns out that my conclusions (which I reached after my usual self-sequestering, so that I did not know about the emerging consensus as I wrote down my thoughts) were widely shared, with some important caveats that I will discuss shortly. Most importantly, there has been nearly universal condemnation of Donald Trump's refusal to say that he would accept the results of the vote, even if (when) he loses.  Trump's surrogates spent Thursday frantically reassuring the world that their man is not that insane, but they have had only limited success (for obvious reasons).  But in any event, it is heartening to see the fierce reaction against Trump's flirtation with insurrection. Still, the negative commentary to a large degree has missed the importance of Trump's arguments as to why the vote will be rigged against him.  Amy Davidson in The New Yorker and Will...

by Neil H. Buchanan For the third presidential debate, I once again sequestered myself from media reactions, fact checks, conversations with friends, and so on.  As I write these words, I have not read or heard any evaluations of the debate, which allows me to offer my own reaction to the debate rather than being swayed by spin and groupthink. I will shortly turn to the task of evaluating the debate overall, both from stylistic and substantive angles.  But I simply cannot bury the lead: Donald Trump announced at the debate that he will not accept the results of the presidential election, unless he wins. If that is not a plan to foment insurrection, I do not know what is.  This is not the kind of thing that one says lightly, but it is chillingly accurate. During the debate, the moderator Chris Wallace asked Trump if he would accept the results of the election, win or lose.  Trump said, "I will look at it at the time," and then "We'll find out on November 8....

by Michael Dorf My Verdict column for this week examines Justice Ruth Bader Ginsburg's criticism of Colin Kaepernick's refusal to stand for the national anthem. Interviewed by Katie Couric, Ginsburg called Kaepernick's ongoing boycott--which protests police brutality and racism--"dumb" and "disrespectful," even as she acknowledged that he cannot be criminally charged for his freedom of speech. I argue that while Ginsburg or any other justice can say this sort of thing without violating any judicial code of ethics (and not just because none applies to Supreme Court justices), she was unjustified in criticizing Kaepernick. I drafted the column on Friday of last week, and by the end of the day, Justice Ginsburg had announced that she regretted the criticism. Thus, I edited the column (before publication) to make it less a critique of Ginsburg's initial criticism of Kaepernick and more of an exploration of why she was right to rescind her criticism. ...

by Sherry F. Colb In my Verdict column for this week, I discuss the U.S. Supreme Court case of Pena-Rodriguez v. Colorado , which raises the question whether the Sixth Amendment entitles a criminal convict to use juror testimony to impeach a verdict on the basis of racial bias on the jury.  My column addresses the line-drawing question about which sorts of bias--just racial? just identity-based? non-identity based as well?--would justify going behind the verdict and inquiring about jury deliberations.  In this post, I want to suggest that the evidence rules that generally prohibit impeaching a verdict with juror testimony may ultimately be misguided. The main reason we generally prohibit dissatisfied parties from utilizing juror testimony to impeach a verdict is to protect jury secrecy and prevent the harassment of jurors after a case has been tried.  If jurors had to worry about their words coming back to bite them, they might not be able to deliberate as fully and ...

by Michael Dorf Since it became clear that Donald Trump was going to be the GOP nominee for the presidency, left-leaning commentators have been divided over how to characterize his bigoted statements regarding race, sex, and religion. One view holds that Trump is an outlier and a unique menace. I'll call this view Trump exceptionalism . The other view is that Trump simply states much more bluntly positions that are widely shared by Republican voters and other Republican politicians but that they are too polished to say expressly. I'll call this view Trump as GOP on truth serum . My goal in this post is not to referee between exceptionalism and truth serum. For what it's worth, I think there are elements of both in any fair comparison between Trump and the majority of GOP politicians. My question here is whether Democrats can do a better job of making the argument for the truth serum view as a means of discrediting the GOP in this election and in future ones when, one h...

By Eric Segall I am excited to be giving a talk tomorrow at Indiana University on my proposal that the Senate do what it can to make permanent our current eight person evenly divided Supreme Court. I’ve already written a lot about this idea but, in thinking more about it for my presentation, came up with yet another reason why this solution makes a lot of sense. Although the analogy is not perfect, it says a lot. Divided government has major benefits many of which apply with equal force to the Supreme Court. One of the bedrock principles underlying our Constitution is that separated (and shared) powers protect liberty while also allowing our leaders to act effectively when the need arises. Not only do we have three branches of the federal government but we also disperse power vertically between the national and state governments. In the words of James Madison, “the accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, ...

by Neil H. Buchanan I have been doing everything possible not to write -- or even think -- about the new depths to which the Trump campaign has lowered this country.  What we now know about Donald Trump's actions, words, and attitudes toward women is somehow both shocking and completely unsurprising.  This is no longer about Trump being the most unqualified candidate ever to run for the presidency.  This is about human decency. A lot of Republicans know this.  It is hard to believe that it took the most recent outrage to convince some people to give up on Trump, but better late than never.  There was, at last, a panicked stampede to the exits immediately after we first saw the video in which Trump bragged about being able to sexually assault women. The problem is that many Republican officials remained in Trump's corner, and some of those who joined the initial stampede have actually doubled back .  Watching those returnees squirm is something to beho...

by Michael Dorf I've been thinking and writing a lot about robots lately. Prompted by a Washington Post  reporter's questions about artificial intelligence, last December I wrote a column comparing rights claims for robots with rights claims for non-human animals. The use of a "bomb robot" by the Dallas police in July prompted this Verdict column . Last week, a government report prompted me to contemplate the best legal approach to self-driving cars. Most recently, the discussion of job losses during the presidential campaign has led me to try to take the long view about the future path of the economy. Here I want to explore the likely impact of continued automation on American politics. First, the facts. Donald Trump is wrong that U.S. manufacturing jobs have fled to Mexico in large numbers because of NAFTA, but he is not entirely wrong that over the last three decades Chinese manufacturing replaced a big chunk of U.S. manufacturing due to cheaper labor costs. ...

by Sherry F. Colb In my Verdict column for this week, I analyze an important feature of the Arizona Supreme Court case of Arizona v. Holle .  In Holle , the defendant in a child molestation case bore the burden of proving, as an affirmative defense, that he lacked a sexual motive.  The Arizona court upheld the allocation of the burden, which the defendant had to meet by a preponderance of the evidence.  The column addresses the question whether it makes sense (and whether it may be unconstitutional) to compel a person who has touched a child's private parts to prove that he lacked a sexual motive, given that such actors as parents changing diapers and pediatricians examining patients would--under this regime--be presumptively considered child molesters, able only to defend themselves by offering an affirmative defense of "no sexual motive."  Examining the relevant U.S. Supreme Court precedents, I suggest that this statutory scheme is valid under current law but th...

by Neil H. Buchanan I considered myself lucky not to have been scheduled to write a column the morning after the second presidential debate.  That meant that I did not need to follow my usual routine of sequestering myself from all debate discussion (before, during, and after), watching the debate in real time, and then writing about it the next morning. It would have been nearly impossible for me to do any of that this time.  Last Friday's bombshell revelation that Donald Trump had bragged about sexually assaulting women was so disgusting that I, like many other people, became nauseated even thinking about it.  I needed time to process what had happened. As the hour of the debate approached on Sunday, I tried to imagine how Trump would behave.  I imagined -- foolishly, it turned out, but still plausibly -- that he would go into his choirboy mode, looking into the camera and uttering scripted pieties.  As unlike Trump as that might be, we have all seen t...