Dorf on Law

by Michael Dorf On Tuesday, President Trump tweeted that Google had "rigged" its search results to yield only "fake news" -- i.e., accurate stories from reputable sources that portray him in a negative light -- when one searches for news about him. He added that this "very serious situation . . . will be addressed." Later that day, Trump extended his warning to Facebook and Twitter, which he apparently believes are also rigging their algorithms to promote anti-Trump "fake news" at the expense of more pro-Trump sources. The accusation is almost certainly nonsense. I say "almost certainly" because Google does not make its algorithm public, and so it is impossible to know for certain that deep within it there is no line of code that favors anti-Trump stories, but Google has certainly denied any such "rigging." Facebook and Twitter are a bit different. As social media sites, their algorithms give prominence to material shared...

by Neil H. Buchanan Amid the unending supply of dishonesty and outright sleaze emanating from the Trump White House -- which, to restate the obvious, differs from the last few decades of Republican practice only in degree, not kind -- it is sensible to wonder whether the Republicans' political success is an argument for Democrats to honor their opponents by copying them. Maybe Michelle Obama's famed maxim, "When they go low, we go high," was a nice thought that has been proved not to work.  All three branches of the federal government and most state governments are now doing serious damage under Republican leadership.  What good did going high do for Democrats (or the country)? I have certainly argued many times that Democrats should not unilaterally disarm, but my point has generally been that they should not compromise on policy positions in a foolish way.  The classic problem has been that Democrats -- especially of the Democratic Leadership Council right-c...

by Sherry F. Colb In my column for this week , I discuss trigger warnings, notifications by university faculty to students that they will be reading (or attending a lecture containing) material that could be very upsetting or disturbing. Warnings might precede presentations about such topics as sexual assault, child molestation, or wartime violence. Part of my discussion centers on the likely impact of an obligation to give warnings on the faculty who have to (or feel obliged to) give them and therefore on the materials that faculty choose to present. In this post, I want to consider the different ways in which people might feel forced to say or do something that they would rather not say or do. As a professor in a university, a person would plainly feel the press of coercion if she received a communication from one of her superiors ordering her to give trigger warnings prior to any discussion of rape. That would be one way to compel compliance with a trigger warning policy, a poli...

by Neil H. Buchanan When commentators review the litany of, shall we say, the problematic aspects of the emergence of Donald Trump as a political force, the list almost always includes Trump's absolute refusal to release his tax returns.  That refusal, we now know, was only the leading edge of examples of "rules of the game" that Trump would ignore, proving again and again how often we have relied on voluntary (or merely reputationally enforced) rules that truly matter but that never needed to be formally enacted into law. I am hardly the only tax scholar who is of mixed feelings about that particular Trumpian refusal.  On the one hand, I most definitely understand the importance of norms, and seeing a candidate's or president's tax returns gives citizens the ability to get a sense of that person's honesty and integrity.  That is surely why, for example, Elizabeth Warren recently put ten years of her tax returns up for public inspection on a website.  A...

by Michael C. Dorf Last week the Environmental Protection Agency announced a proposed new rule governing emissions from existing power plants. The proposed rule --titled the Affordable Clean Energy (ACE) rule--would substitute for the Obama administration's Clean Power Plan (CPP), which the Trump administration had previously announced that it proposed to repeal (and which had not yet gone into effect, thanks to a 2016 Supreme Court order  staying it so that lawsuits seeking to block it could proceed first). CPP was the Obama administration's domestic effort to live up to the US's obligations under the Paris Climate Accord. With Trump having withdrawn the US from the Paris Accord, he felt no need to keep it in place--and has been affirmatively hostile to it in order to favor his supporters in the coal industry. Of course, the proposed repeal of CPP does not actually state that it is a giveaway to coal executives and miners. Instead, the EPA under Trump contended that...

By Eric Segall See if you can identify this person. He was one of this country's most important judges before he recently retired.  He is a white male from an educated family who grew up in one of our most populous states. He grew up a Republican, but his judicial decisions on social issues did not reflect the politics of the current GOP. He came of age before the Federalist Society came into existence. His opinions were often non-originalist and non-doctrinalist. He was fiercely independent. Who is he? If you first guessed Richard Posner, that would be correct. If you guessed Anthony Kennedy, you'd also be correct.

by Neil H. Buchanan In my Dorf on Law column two days ago , I expanded on my argument that NeverTrump conservatives now face a put-up-or-shut-up moment.  Whereas the standard commentary argues that liberals and progressives must not go "too far to the left," the reality is that NeverTrumpers must go wherever the Democrats take them, because no disagreement on specific policy issues (minimum wages, free college education, Supreme Court appointments) is more important than the preservation of constitutional democracy. That column was part of my response to the emergence of "democratic socialism" among some Democrats and the Republicans' frantic attempts to use the word "socialist" as a scare tactic to woo swing voters.  My point was that honest people know that democratic socialism is a modest version of what is standard practice in most of Europe's richer democracies, not an attempt to go back to Stalinist gulags.  The people who know better -...

by Sherry F. Colb Apparently South Koreans are reconsidering the law governing sexual assault. I went on the radio there (via phone) to join the conversation (in English). You can listen here .

by Michael C. Dorf My latest Verdict column unpacks and critiques the justification then-attorney Brett Kavanaugh gave in his recently released 1998 memo to Ken Starr for not "going easy" on President Bill Clinton and instead proposing to ask Clinton such dignity-of-the-office-restoring questions as this: "If Monica Lewinsky says that you masturbated into a trashcan in your secretary's office, would she b[e] lying?" Kavanaugh said he was outraged by Clinton's behavior, which warranted the tough questions. The ostensible point of these questions was to show that Clinton had lied in his deposition in the Paula Jones case when he denied a sexual relationship with Lewinsky. As I explain in the column, that won't wash. It would have been simple to ask questions of Clinton that would expose him as lying without proposing seven out of ten questions focusing on precisely what sex acts were performed where. In my column, I consider the possibility that the 1...

by Neil H. Buchanan The word socialist has again become one of the talking points that Republicans are using against Democrats.  With some progressive Democrats now following Bernie Sanders's lead and calling themselves "democratic socialists," there is worry on the left and hope on the right that Democrats will lose some voters who would otherwise be open to persuasion. I plan to analyze this issue in two ways.  In today's column, I will expand on a point that I made in my most recent Dorf on Law column , in which I stated that anti-Trump intellectuals who are to the right of the political center bear a special responsibility to educate centrist and right-of-center voters about the non-scary reality of what the democratic socialist label actually means. In short, it is not just liberals who must write columns with titles like: "It’s Time to Reclaim ‘Socialism’ From the Dirty-Word Category."  That should now be what NeverTrumpers spend their time d...