Dorf on Law

by Michael Dorf Earlier this week, retired Supreme Court Justice John Paul Stevens--who will turn 98 in less than a month--wrote an Op-Ed in the NY Times  calling for the repeal of the Second Amendment. Justice Stevens praised the post-Parkland student-led activism and, in an essay that reprised arguments he set out in Chapter VI of his 2014 book Six Amendments , made two core points: First, that the 2008 SCOTUS decision in DC v. Heller , from which he dissented , was a radical break with the militia-centered understanding of the Second Amendment that had prevailed since the Founding; and second, that although Heller would likely allow such measures as strengthened background checks, the nation needs truly effective comprehensive gun control, which requires repealing the Second Amendment. Many people were unhappy with the Stevens Op-Ed. As one would expect, firearms libertarians who think that Heller was rightly decided and in the national interest, took exception to both Steven...

by Neil H. Buchanan Earlier this week, the Supreme Court heard oral arguments on its second gerrymandering case of the term, Benisek v. Lamone , which presents a challenge to the Maryland legislature's redrawing of one of that state's congressional districts.  As in all such cases, there seems little doubt that gerrymandering happened.  The Court simply cannot agree on what to do about it, if anything. Benisek differs from the Court's other gerrymandering case in important ways, the most obvious of which is that Gill v. Whitford involves a challenge to an extreme Republican gerrymander of the Wisconsin legislative map, whereas the Maryland case involved a Democratic gerrymander.  As I will discuss below, the cases make it clearer than ever that legislative districts should no longer be drawn by partisans on either side. But first, it is useful to discuss the fear about public perceptions that might be driving the Court's thinking.

by Sherry F. Colb In my Verdict column this week , I consider the question why the woman whose dog Kokito likely suffocated to death inside a United Airlines overhead bin  did not release her dog to save his life. I suggest that the Milgram Experiment of the 1960's, a study that may not actually explain the Nazi phenomenon that it was intended to investigate, has something to tell us about what happened on that airplane. To boil it down to one sentence, the woman may have felt completely unable to disobey the flight attendant who told her that the dog carrier had to be in the overhead compartment. The reason we might feel it necessary to explain the woman's behavior in this case is that many of us agree that the woman should have opened the bin and saved her dog. Why? Because Kokito was suffering and died unnecessarily, and many people believe that we have an obligation to prevent this from happening  to a vulnerable and innocent animal. So how do we explain hunting? How...

by Neil H. Buchanan The Republicans passed their regressive tax bill last year in the face of widespread public opposition, with defections by House members from suburban districts and a rushed legislative process that made a mockery of the idea of deliberative government.  Even so, they managed to deliver all of their votes in the Senate, including the self-styled deficit hawks who made a big show of concern before caving to party orthodoxy. And despite their most fervent wishes and a brief blip in the polls, the new tax law is still not popular .  As I described in companion columns on Verdict and Dorf on Law last week, the public has very good reasons for hating a law that was very clearly designed to worsen already historic levels of inequality.  To their credit, people are not being bought off with a few extra dollars in take-home pay. In spite of this, will Republicans convince themselves to try to pass another round of tax cuts?  And if they do, how wi...

By Diane Klein On Monday, March 19, 2018, Trump attorney Jay Sekulow announced the addition of lawyer Joseph diGenova, a Reagan-era District of Columbia U.S. Attorney, to Trump's Russia team.  Whatever attracted Trump to diGenova - his conspiracy theorizing on Fox, his operatic pipes on display at the  Gridiron dinner , or his legal acumen -  Sekulow was at the ready. On Thursday, diGenova's wife and law partner, Victoria Toensing (another Reagan-era septuagenarian), joined the team.  That same day, experienced Washington lawyer John Dowd  resigned , after warning about potential conflicts of interest related to the pair.  Sekulow began equivocating  about the new line-up on Friday, and by Sunday morning, he had to take it all back.  According to his March 25, 2018,  statement , Trump was "disappointed that conflicts prevent Joe diGenova and Victoria Toensing from joining the president's special counsel legal team."

by Michael Dorf In a post  on Thursday of last week, I noted a friendly disagreement with Prof. Josh Blackman over a question that is, at this point, entirely theoretical. The two of us, along with Prof. Ben Zipursky, were guests on a KPCC radio show to discuss Zervos v. Trump . We all agreed that the NYS trial court judge correctly ruled that the president lacks temporary immunity from suit in state court, an issue that had been left open by the Supreme Court in Clinton v. Jones . Josh and I agreed that Congress could provide the immunity the president sought by statute, but he thinks such immunity could only apply in federal court, not state court, because Congress controls the jurisdiction of the federal courts but has substantially less control over what happens in state court. In response, I wrote: I don't think that a law granting the president temporary immunity to suits would be about jurisdiction at all. It would be a rule of substantive law, like the provision of fed...

By Eric Segall No President in my lifetime (probably ever) has caused as much consternation and soaring negative rhetoric as Donald Trump (and for good reason). Sure, I remember my parents' friends saying that if “Tricky Dick” wins they were going to move out of the country, but times were different then (no cable television or social media). I also do not think either President George W. Bush or President Obama (though it is an intuition not a conclusion based on data) triggered the same level of nasty, name-calling among folks as does Trump (leaving out the fringe right for Obama).

by Neil H. Buchanan My new Verdict column, published today , begins with a personal remembrance of Julie Hilden. whom professor Dorf memorialized in a post here on Monday.  I hope that reading about her might cause some of us to aspire to be even one-tenth as kind, generous, and caring as she was. Returning to the mundane issues of the day, the remainder of my column assesses why the Republicans are having such a hard time selling their recent tax cuts to the American people.  Even though the bill was wildly unpopular while Republicans were ramming it through Congress by breaking every rule and norm in sight, they were absolutely sure that people would soon love the bill, because it was a tax cut, and everyone loves tax cuts.  Right?

by Michael Dorf Earlier this week, NY State trial court Judge Jennifer Schecter denied President Trump's motion to dismiss or delay proceedings in the defamation lawsuit against him by Summer Zervos--a former Apprentice contestant whom Trump branded a liar in 2016 after Zervos publicly claimed that Trump had groped her without consent. Judge Schecter's opinion relies on Clinton v. Jones , which held that a sitting president lacks either full or temporary immunity from litigation for unofficial conduct preceding his taking office. In Jones , the Court left open the possibility that a different rule might apply in state court, because considerations of federalism and the supremacy of federal law, rather than separation of powers, would be in play. Judge Schecter concluded that the question left open in Jones should be resolved against any form of temporary immunity. Judge Schecter's opinion makes two key points. First, she says that concerns about distracting the preside...

by Michael Dorf In my latest Verdict column , I discuss bills in Alabama and other states that would eliminate the obligation of couples seeking to marry to obtain a marriage license from a state or local official. Although these proposals have been touted as a means by which states can evade the obligation to permit same-sex marriage, I note that they don't go nearly that far. They would abolish marriage licenses ; they would not abolish marriage itself. But what if a state were to abolish marriage as a legal status for everyone? Would that be unconstitutional? I first consider the equal protection objection. To evaluate that requires grappling with the extent to which Palmer v. Thompson remains good law. Palmer  upheld Jackson, Mississippi's closing of all public swimming pools in response to the obligation to desegregate its public swimming pools. Although I think Palmer was wrongly decided on its facts, I argue that the general principle it articulated--that a facially...