Dorf on Law

by Neil H. Buchanan With the mostly good news of the midterm elections now behind us -- good news that was diminished, of course, by the continued success of blatant racists in Georgia, Florida, Mississippi, Iowa, and elsewhere, to say nothing of the disappointment of Beto O'Rourke's near-miss in taking down Ted Cruz -- the political atmosphere has once again been taken over by full-on Trump craziness.  Undiminished support for a literally murderous Saudi regime?  Check.  Climate change denialism on steroids?  Check.  Cruelty toward asylum seekers and immigrants?  Double check. With all of this insanity swirling around us, it seems like a good time to revisit the alternative reality in which Hillary Clinton had won the 2016 election.  In May of 2017, I wrote a Verdict column in the form of a news report from another place in the multiverse where the press was assessing Clinton's first one hundred days in office.  Yesterday, I published a fol...

by Neil H. Buchanan The U.S. Constitution includes a compromise provision that created an upper legislative house with two senators representing every state.  Notwithstanding its mere existence, does that provision make sense?  I suspect that most people would respond to that question initially from a purely realpolitik standpoint.  Specifically, because that arrangement currently favors Republicans, Democrats hate it and Republicans fiercely defend it. But if asked to justify it on some other grounds, my sense is that most Democrats would feel the need to sound conciliatory and say that there is something about a non-proportionally-delineated legislative body that could make sense.  Maybe it has something to do with preventing the tyranny of the majority, they might say.  Or perhaps something about states' rights (stripped of the racist overtones of that particular two-word phrase). Perhaps, however, I am projecting my own ill-formed intuitions onto othe...

by Richard Primus In a series of blog posts ( here , here, and here ),  Michael Dorf and I have been conversing about the justifiability of each state’s getting two representatives in the U.S. Senate.  As a general matter, neither of us argues that the current system is justified (except in the brute sense that current law requires it).  That’s not because we think that the only justifiable ground for allocating representatives in a legislature is on the basis of population (that is, on the basis of the principle we know as “one person, one vote,” and which I’ll call OPOV for short).  We both think that other factors could, in appropriate circumstances, justify departures from OPOV.  Instead, our sense that the current system for the Senate is unjustified rests on our sense that the Senate’s enormous deviation from OPOV is not justified by any argument applicable to the facts of this particular case.  In other words, we don’t think that under all imagina...

by Michael C. Dorf In a post last week , I criticized the Department of Education's proposed new rules governing campus investigations under Title IX on the ground that they use a too-restrictive definition of sexual harassment. Although I acknowledged that a Supreme Court case involving fifth graders supports a definition that sets a threshold of "severe and  pervasive" conduct to constitute hostile environment sexual harassment, I argued that in campus Title IX cases, decision makers should apply the well-accepted Title VII standard, which sets a more expansive "severe  or  pervasive" threshold. My latest Verdict column might be deemed Part 2 of my miniseries on the DOE's notice of proposed rulemaking. In it, I take aim at the core of the proposed rules, which would make it harder for (mostly female) students alleging sexual assault or harassment by other (mostly male) to prove their cases. Whereas the Obama-era rules sought to minimize false negativ...

By Michael C. Dorf Across the political spectrum, elected officials were unhappy with the news that General Motors would mothball five North American plants and cut about 14,000 jobs. That is certainly understandable. The workers who will lose their jobs, their families, and the communities that will suffer the indirect effects of GM's move deserve our empathy. To be sure, Donald Trump's response was a characteristic mix of bluster and ignorance. He reported that he had pleaded with GM CEO Mary Barra to make a different decision out of a sense of obligation. Trump noted, correctly, that the US had saved GM during the Great Recession (without mentioning that this was accomplished by President Obama over the objections of Republicans). Trump also predicted that Barra's "going to put something back in [Ohio] soon." That's possible, I suppose. If the plant infrastructure can be converted to producing different sorts of vehicles at lower cost than building new...

By Eric Segall Last week the President of the United States once again accused federal judges of being partisan, and the Chief Justice of the United States responded by stressing the need for an independent judiciary. This exchange prompted legal scholars throughout the land to take numerous positions on the role of ideology and partisanship in judicial decisions, focusing mostly on our highest Court (even though Trump was referring to a district court judge). Most agreed that the Court should try hard not to be partisan or ideological but also stressed that, given the nature of the cases the Court hears, the open spaces of constitutional interpretation, and our overly politicized confirmation process, these are noble aspirations more often violated than achieved. I argue below that, when it comes to the Supreme Court, everyone is asking the wrong questions.

by Michael C. Dorf A couple of weeks ago, I argued in this space and on Take Care  that the US Senate is less anti-Democratic than it might currently appear. That capital "D" is intentional. The core of my argument was that while the Senate currently over-represents Republicans, that is likely an ephemeral phenomenon. As a structural matter, the Senate over-represents small states; over time, the parties' positions will continue to evolve in ways that seek to maximize their total influence. To be clear, I did not deny that the Senate is substantially anti-democratic with a small "d." As I wrote, whatever might be said in favor of a system that deviates from strict population-based representation, the very out-of-balance ratios one sees in the US Senate cannot be normatively justified. Professor Richard Primus wrote a thoughtful response  to my essay. It also appeared on Take Care. Acknowledging that he might not actually be disagreeing with me, Primus pus...

by Diane Klein As CNN has reported , adult coloring is good for you (really!).  While we cannot guarantee that coloring this picture while sports-addicted family members binge on football this weekend will relax your brain  as the Cleveland Clinic promises, it can't hurt. (Art by Andrea McHale, a special-education teacher in New York City; lettering by Alex Mannos, a graphic artist in Sacramento, California.  The coloring page is subject to a Creative Commons license as below.)

By Eric Segall The air is getting colder with winter so near Our President is still awful that much is clear His loony twitter feed tells many crazy lies Maybe he’s sending secrets to his Russian spies He makes so much money from the office he holds His crayon hair is remarkable for its unique folds He never says I’m sorry or admits to a loss He just loves being the world’s worst boss I wake up every day afraid of what he’ll do Not just him but his entire motley crew

by Sherry F. Colb In my Verdict column for this week , I discuss some ways in which combating both coerced confessions and date rapes necessarily creates special challenges. We want to protect victims of these two abhorrent practices, and we also want to allow for good confessions and for mutually desired sexual encounters. I explore how the challenges arise and what we might do to address them. Here I want to return to the topic of free speech. Two weeks ago, I wrote in this space  about the speech/conduct distinction and its utility as an instrument for distinguishing between the expression that the First Amendment ought to protect and the behavior that finds no legitimate protection in the Bill of Rights. I argued that the distinction cannot do the work that we might want it to do. Virtually all of the speech that rightly falls outside of the protected category--including true threats, incitement to imminent lawlessness, and defamation--is truly speech, not action--and yet t...