Dorf on Law

by Sherry F. Colb In my Verdict column this week , I talk about two of  the  ways in which African Americans and women have been marginalized: denial and devaluation. Denial refers to the refusal to credit the stories that people on the losing side of racial and gender conflicts tell. If a police officer kills a black suspect, and witnesses say that the killing was unprovoked, they face skepticism and disbelief. And the same is true for women who tell of being raped by a date; listeners (such as juries) choose not to believe what they are hearing and to assume that the woman is lying. Devaluation happens sometimes when African Americans  and  women  manage to actually convince those in power that what they are saying is true. Devaluation consists in minimizing the gravity of the harm in question. In this post, I want to talk about a movie, because even though movies ostensibly tell one story--and a fictional one at that--the story often represents a narrati...

by Neil H. Buchanan In the uncharacteristically extended political aftermath of the February 14 school killings in Florida, we have seen a surprisingly wide range of proposed solutions and an even more surprisingly naked display of Republican lying and cowardice .  Although I continue to suspect that nothing meaningful will ultimately be done, it is impossible not to perceive a distinct ray of hope that has not been visible in the five years since Sandy Hook. Moreover, even if no laws are changed, the revelation of Republicans' stark dishonesty might itself be helpful in leading to better results in the future. On guns, as on so many things, Donald Trump is not a man who (as many pundits would have it) pulled off a hostile takeover of the Republican Party.  It has become ever more obvious that he is what movement conservatives have always been, and his rise has simply allowed the Republicans to boot out the few remaining voices of quasi-sanity in favor of those who embr...

by Michael Dorf Dissenting from the denial of certiorari in Silvester v. Becerra  last week, Justice Clarence Thomas lamented that the lower courts have been undermining the Second Amendment by saying they are applying intermediate scrutiny to gun regulations but actually applying something more like the low-level scrutiny of the rational basis test. He thought that the US Court of Appeals for the Ninth Circuit committed this sin in its opinion upholding a California law imposing a 10-day waiting period for the purchase of firearms. Justice Thomas also chastised his colleagues for treating the Second Amendment as "a disfavored right." The idea that the right to possess firearms is "disfavored" anywhere in America would likely be received with puzzlement in most of the world. Indeed, last week's juxtaposition of a Supreme Court justice complaining that firearms are too difficult to obtain with students who survived the shooting at Marjory Stoneman Douglas Hig...

by Michael Dorf A team of researchers from Stony Brook University have asked me to help them study the role that emotion plays in politics. I have completed the survey myself, and it only took me about ten minutes. The survey is completely anonymous. Click this link  to begin the survey. Please DO NOT POST COMMENTS BELOW AS THEY COULD BIAS THE RESULTS OF THE SURVEY.

By William Hausdorff I’m trying to decide how much of this Russian stuff really matters.  According to some of the recent indictments by the Justice Department, a concerted, well-funded Russian disinformation effort turbo-powered by bots was designed to interfere with the US presidential election campaign in 2016.  Thirteen Russians are accused of wire fraud, bank fraud, identify theft, even conspiracy to defraud the US government.   On the one hand, by demonstrating there was a serious effort to interfere with the election campaign, Special Counsel Robert Mueller and team imply that collusion by the Trump campaign or family to abet this conspiracy, and/or of obstruction of justice to block its investigation, is not something that can be dismissed as “just politics.”   All admit that Mueller is unlikely to get his hands on any of these Russians to put them on trial, much less in prison.   The tacit assumption, then, is that this merely sets the...

by Neil H. Buchanan Is everyone a hypocrite?  In our personal lives, no one is immune to the occasional convenient flip-flop.  In politics, Democrats and Republicans often trade places depending upon whatever is happening at the moment.  For example, each side's high dudgeon over the other side's use of (or elimination of) the filibuster has made for great before-and-after sequences of clips on news and comedy shows. Even though we are all hypocrites at various times, and even though politics is fueled by situational ethics, there are certainly people and groups who are better and worse at the fine art of hypocrsy.  Democrats have engaged in gerrymandering, but they support a system in which neither side could choose its voters.  Republicans do not. Similarly, Democrats rely more than they should on wealthy donors, but they would thrive in a system with strict limits on plutocratic influence.  Republicans talk darkly about George Soros's supposed male...

By Eric Segall I spent last Friday and Saturday at the works-in-progress Originalism Conference at the University of San Diego. Professors Mike Rappaport, Mike Ramsey, Steve Smith, and Larry Alexander were wonderful hosts. I highly recommend this annual conference for anyone interested in originalism specifically or constitutional theory generally. I learned a tremendous amount from the papers presented and the robust, civil, and interesting discussions that took place. One thing I didn't learn, however, was what is Originalism circa 2018.

by Diane Klein In this space yesterday, Prof. Dorf argued (not exactly in "defense" of Michael Cohen's payoff to Stephanie Clifford aka Stormy Daniels aka Peggy Peterson, through a shell company created for that purpose only) that while Cohen using his own money to pay off Stormy Daniels for her silence about her affair with Donald Trump might violate Model Rule of Professional Responsibility 1.8(e) (or its New York equivalent), the rule itself is "foolish."  I disagree.

by Michael Dorf This week, my seminar students and I read Federalist Nos. 36-47. After a month of mostly Hamilton , it was interesting to shift gears and hear from Madison. In light of the school shooting in Parkland, Florida last week, it was hardly surprising that a substantial part of our seminar discussion focused on the implications of Madison's statements in Federalist 46 about "citizens with arms." But given the increasing frequency and severity of mass shootings (which I discuss in my new Verdict column ), our discussion likely would have turned to the Second Amendment even if the news had not included a very fresh tragedy.

by Michael Dorf Donald Trump's lawyer Michael Cohen claims that he paid Stephanie Clifford, aka Stormy Daniels, $130,000 out of his own pocket in exchange for her keeping quiet about her alleged adulterous liaison with Trump. As discussed in a lurid story in yesterday's NY Times , the payment may have violated federal campaign finance law (as an unreported and cap-exceeding donation of in-kind services to the Trump campaign) as well as New York's ethics rules. The story also raises questions of journalistic ethics: Is it ever proper for a newspaper (even a gossipy tabloid) to pay for the rights to a story for the purpose of killing the story as a favor to the politically connected friends of the paper's publisher? (The tabloid publishers deny that was their goal in this and other instances, but the Times story cites sources to the contrary). That's all fascinating stuff. Here I want to focus more narrowly on the rule of legal ethics that Cohen might have viol...