Dorf on Law

by Michael Dorf Right-wing provocateur James O'Keefe and his organization Project Veritas were in the news this week, but not in the way that he hoped. O'Keefe sent a woman to talk to Washington Post reporters falsely claiming to have had an abortion as a teenager after she was impregnated by Roy Moore. Presumably, O'Keefe hoped that the Post would run the story, whereupon he would reveal that it was false, and this would show that: (a) the Post  has a liberal bias that leads it to cut corners when reporting negative news about conservatives; and therefore (b) prior WaPo reporting on Roy Moore's sordid sexual history is not credible. The Post foiled O'Keefe's plans by fact-checking the woman's story. When it did not check out, the Post did not run her false story, instead running the story of how O'Keefe tried to fool the Post . There the episode might have ended were it not for the fact that O'Keefe and his acolytes do not just run stings agains...

by Michael Dorf My latest Verdict column explores the reasons for the difference in reaction time to sexual harassment, sexual assault, and other sexual misconduct in the private sector (thus far mostly Hollywood and the media) versus in government. I note that actors, directors, journalists, etc., have been meeting with swift termination, while elected officials have not been. I offer a couple of factors as key to the explanation of the disparity. First, polarization makes people likely to view both the seriousness and truthfulness of the allegations through a partisan lens. And second, even when people accept that "their guy" did the thing and it was bad, it is instrumentally rational to stick with your scoundrel if he will vote as you expect, rather than to jump ship in favor of an upstanding citizen of the rival party.

By Eric Segall Next Tuesday, the Supreme Court will hear the case of the Colorado baker who refuses to allow his products to be used in same-sex wedding ceremonies or celebrations. Colorado courts found that his refusal violated a state law prohibiting vendors from discriminating on the basis of sexual orientation. The baker, Jack Phillips, claims that the Colorado law, as applied to him, violates the First Amendment’s speech and religion clauses. This collision between anti-discrimination laws protecting gays and lesbians on the one hand and opponents of same-sex marriage on religious and free speech grounds on the other hand is the latest battle in the national culture wars.  Justices Gorsuch and Thomas both claim to be committed originalists. Since it is likely the four liberals on the Court will rule in favor of Colorado, one more vote for the State should result in its victory. How should a committed originalist decide this case? 

By William Hausdorff The glimmers of hope from the most recent state and local elections in Virginia and elsewhere paradoxically made me aware of how thick is the cloud of gloom that had descended on many of us since the previous US national election.   This gloom that has made many of us question, for the first time, the very resilience of the US political democracy. In trying to cope with this, Masha Gessen drew on her previous life in a gloomy environment in an excellent essay: …a decade and a half in Putin’s Russia taught me something about living in an autocracy. I am familiar with the ways in which it numbs the mind and drains the spirit.  In contrast, I have recently been pondering the Dementors described by J.K. Rowling in her Harry Potter books : Dementors are among the foulest creatures that walk this earth. They infest the darkest, filthiest places, they glory in decay and despair, they drain peace, hope, and happiness out of the air aro...

by Neil H. Buchanan The Republicans' attempt to sell their damaging and regressive tax plan is proceeding pretty much as one would expect.  They are making unsupportable economic claims while endlessly repeating an up-is-down-freedom-is-slavery-everything-will-be-different-this-time big lie, claiming that their proposals are all about improving the lives of middle class people.  This has become standard operating procedure for Republicans in the twenty-first century. Although we have long since become accustomed to most of this, we must constantly remind ourselves that it is a very sad state of affairs when we find ourselves saying, "Sure, one of the two major political parties cannot make an honest case even for its most fervently held policy goal, but what are you gonna do?"  Even so, at this point it would barely be worth writing yet another column on this topic if there were not some new aspect to the Republicans' relentless, pathological dishonesty. And as ...

by Michael Dorf As I noted here last week, on Monday, UC Berkeley Law School Dean Erwin Chemerinsky delivered two lectures at Cornell on "Free Speech on Campus." He was thoughtful and erudite, and I say that because it's true, not only because Dean Chemerinsky said he agreed with everything I said in my preview blog post! I'm not going to try to recap everything Dean Chemerinsky said. Instead, I want to focus on what he described as a gray area: the scope of the obligation of government--including public universities like UC Berkeley--to pay the added safety costs associated with speakers with highly controversial views.

by Neil H. Buchanan The sudden wave of social acknowledgement of the ways in which men have long mistreated women is as unexpected as it is welcome.  We are in what seems to be a transformative moment in history, and we can only hope that it leads to a thoroughgoing change in men's behavior and everyone's expectations. By far the most ink has been spilled recently discussing U.S. Senate candidate Roy Moore and his harassment (and worse) of underage girls when he was in his thirties.  I have nothing to add to that discussion, but I will note that Donald Trump's (mis)handling of the Moore mess includes this gem : [White House press secretary Sarah Huckabee] Sanders said Thursday that Trump considers the allegations against Moore “extremely troubling” but does not plan to rescind his endorsement and thinks that Alabama voters should be the ones to pick their next senator. Now, if Trump truly believed that Alabama voters should pick their next senator and that no outsid...

By Eric Segall Professors Randy Barnett and Akhil Amar had a fascinating, informative and entertaining debate at the Federalist Society Convention on Saturday. The question was "Resolved: Lochner Still Crazy after all These Years." I recommend you watch the entire debate, but I want to focus on what Barnett said at the very end. In response to a question concerning how far the legal academy has come in accepting the idea that maybe Lochner  wasn't all that bad, Barnett attributed the development to the Federalist Society's thirty-year commitment to pushing judges to adopt a textualist-originalist approach to constitutional interpretation. Barnett's explanation echoed the overriding theme of the conference, which was that finally textualist-originalist judges were being appointed to the bench. The White House counsel said at the convention, to everyone's delight, that "The Trump Administration's philosophy on judging can be summarized in two words: ...

by Michael Dorf On Monday Nov 20, UC Berkeley Law School Dean Erwin Chemerinsky will be giving two talks at Cornell on the topic "Free Speech on Campus," which happens to be the title of his new book with Howard Gillman. I'll introduce Dean Chemerinsky at the law school event and, following his talk, moderate a discussion. I expect to have something to say by way of post-mortem on Tuesday. In this essay, I want to make a preliminary observation about Dean Chemerinsky's topic and then offer some illustrations. My basic claim is that some free speech issues might be resolved differently in a college or university (what I'll call "campus") setting from how they might be resolved in general (what I'll call non-campus settings), but that the difference the campus setting makes depends on the question. In some contexts, the fact that speech claims are made on campus should make them stronger relative to competing claims; in other contexts, the fact th...

by Neil H. Buchanan A surprisingly large number of Republicans have announced their departures from Congress this year.  Including those who are retiring, resigning, and running for other offices, there are currently 25 members of the House who are either already gone or will not be back in January 2019.  Most are not well known.  More prominently, Senators Bob Corker and Jeff Flake are also quitting in disgust. This is more than a bit unusual, because it is usually the minority party that suffers big losses of experienced people.  Why stick around, especially in the majority-is-everything House, when you are in the minority and when there are no White House perks or photo ops to make your job exciting? But Republicans are leaving in droves.  I will leave it to others to ponder what this means about the majority party's leadership and Donald Trump.  My question today focuses on what the Republican leavers will say and do as they walk out the door....