Dorf on Law

By Eric Segall These days, it feels like being thankful can be hard. If you are like me, the political world is difficult to escape. I don’t pretend to remember well the burning cities of my 1960’s youth or the national angst over young men and women going off to fight the unjust and illegal Vietnam war, but America today feels more torn apart than at any other time during my lifetime. I know people whose friendships and even families have been casualties of our polarized discourse and national divisions. The base cruelty and rudeness of our President, I fear, is infecting not just his supporters but his antagonists too. As my friend Dr. Aaron Caroll says so often on Twitter, there does not seem to be a bottom. Well, I need a day off. So here are a few hopefully not too trite thank you’s and optimistic thoughts that I thought I would share on our national day of Thanksgiving. Please forgive the personal nature of what follows.

by Michael C. Dorf A century ago, pioneering cultural historian Johan Huizinga published the first (Dutch) edition of his brilliant, if somewhat tendentious The Waning of the Middle Ages (sometimes translated as The Autumn of the Middle Ages ). Focusing on the 14th century Burgundian court in what is now France and the low countries, Huizinga described a period of decay and pessimism, but also one of continuity. In an insightful aside about the masterful art then being produced in northern Italy, he observed: "Here, as elsewhere, the line of demarcation between the Middle Ages and the Renaissance has been too much insisted upon." Similar statements appear throughout the the book. Periodizations, like generational lines, are typically imposed from outside, and observable mostly in retrospect. The society Huizinga chronicled was dying, but most of the people of the time did not realize it, because they were too close to see the sweep of history. And so perhaps it is with u...

by Neil H. Buchanan What if Donald Trump is declared the winner on election night next year?  I address that question in my new Verdict  column today , as part of my continuing exercise in forecasting the various ways that our constitutional system is being destroyed.  (Happy Thanksgiving, everyone!)  This question is not one that I have addressed before now, but it provides another avenue through which Democrats' extreme self-doubt and overcautious instincts could fail the country. There are essentially three ways that presidential politics could play out over the next year: (1) Trump is impeached, convicted, and removed; (2) Trump loses the 2020 election, (3) Trump wins the 2020 election.  (Other possibilities exist, of course, such as the death of an extremely unhealthy septuagenarian who is constantly enraged and has a terrible diet, but I will set those aside.)  Thus far, my writings have focused on (1) and (2) but ignored (3). The reason for ign...

by Michael C. Dorf David L. Shapiro, the William Nelson Cromwell Emeritus Professor of Law at Harvard Law School, passed away last week. David was a brilliant, humble, witty, and fundamentally decent human being. He was my teacher, mentor, and friend. In a lovely tribute on the occasion of his retirement, Prof. Amanda Tyler called David a "lawyer's lawyer." I agree. Indeed, David was also a law professor's law professor. The current Solicitor General, Noel Francisco, wrote a respectful remembrance here . The official obituary in  Harvard Law Today  includes praise from Prof. Tyler, Dean John Manning, and Prof. Richard Fallon. Meanwhile, I want to add a few words of my own.

by Neil H. Buchanan After this week's Democratic presidential debate, a very stern columnist for The Washington Post   chastised Senator Bernie Sanders for giving the wrong answer to Rachel Maddow's question about recent chants of "Lock him up!" at various gatherings, including at some Sanders rallies.  Stephen Stromberg instructed us as follows: "The right answer is: 'It is understandable that people are frustrated with President Trump. But everyone else should resist stooping to his level. I wish people would not do Trump-like chants at my rallies.'" But Sanders "bomb[ed] the ‘lock him up’ test," said Stromberg, by instead saying: "Well, I think the people of this country are catching on to the degree that this president thinks he is above the law. And what the American people are saying is: Nobody is above the law." Or, as Stromberg characterized it: "Instead, Sanders essentially said, “Well, people think the pres...

by Neil H. Buchanan In the 1970's, Coors beer suddenly became all the rage.  This was at a time when the consolidation of the American brewing industry was in full swing, with mega-brewers buying out or simply crushing locals like Stroh's (Detroit), Schaefer (Boston), Iron City (Pittsburgh), and so on.  It was also a few years before the first whispers of what became the craft beer revolution were first heard. Coors, brewed in Colorado, was not yet known for the extreme right-wing politics of its founding family.  It also was still very much a regional beer, with no national distribution at all.  I was in high school in Ohio at the time, and for no apparent reason, people began to talk about Coors in near-mythic terms.  People who went on skiing trips to the Rockies were encouraged to drive rather than fly, because that would allow them to fill their trunks and back seats with cases of Coors to bring back for all of their family and friends.  The ultima...

by Michael C. Dorf As a primary voter, how much, if at all, should you care about policy differences among the candidates, given the fact that many of the key proposals require congressional approval that will not likely be forthcoming from Congress, absent a change in the cloture rule? Here I'll defend the following answer: Some, but mostly because of what they indicate about the candidate's priorities rather than because of the policies themselves. Let me unpack that paragraph using the current Democratic field as illustrative, although what I say here should be equally applicable in a Republican primary, albeit with different policies. Suppose you have narrowed down your choices to two candidates. One of them--let's call her Warren--favors Medicare for All. The other--let's call him Buttigieg--favors Medicare for All Who Want It. Let's assume that in all other respects you are in equipoise between these two candidates. One rather straightforward way to decide...

by Michael C. Dorf Last week, a civil jury in federal district court in San Francisco sided with Planned Parenthood and against anti-abortion activist David Daleiden and his organization the Center for Medical Progress, with liability for compensatory and punitive damages totaling just over $2 million. I am  ambivalent about the decision.

by Neil H. Buchanan In two recent two columns --  here  (regarding health insurance) and here  (regarding retirement savings) -- I have provided excruciatingly specific details about the very odd process that plays out when Americans change jobs. The overriding question that intruded into both columns, even though I was largely focused on other matters (such as the cruelty and ridiculous expense of our health care system) was: Why, in fact, do American employers routinely offer and manage any of these benefits?  Other than being familiar, what allows a system that is utterly illogical to continue to be accepted by nearly everyone as simply the way that things are done? Last week, Professor Dorf took a useful run at this question.  Noting that employers have largely gotten out of the business of providing retirement benefits -- by shifting the risks of inadequate planning or simple bad luck onto employees, which is the point of changing from vested ...

By Eric Segall After Dick Posner retired from the federal bench, I wrote on this blog that "t here is no doubt that he is the most important judge in America over the last fifty years who never sat on the Supreme Court." I also confessed that Dick and I are good friends so my objectivity was compromised. I was pleased, therefore, to read that Professor Lawrence Solum recently said the following about Posner: I have only read a fraction of Posner's judicial decisions, but on the basis of that fraction, he is, in my opinion, one of the greatest judges in the history of the common law--and the greatest American judge of his time. Professor Solum is, of course, one of our leading academic originalists, and the only law professor who testified in favor of originalism at the confirmation hearing of then-Judge Neil Gorusch. What is interesting about Solum's praise of Posner is that there is little doubt Posner was one of, if not the most, anti-originalist judges of h...