Dorf on Law

Note to readers: This is my final column of 2021, and there truly is no alternative but to re-post the column that I wrote on January 7, less than a day after Trump-incited seditionists stormed the U.S. Capitol in an attempt to overthrow the government and the Constitution.  Now that this horrible year is almost over, even my game attempt at optimism in the final full paragraph of that column seems hopelessly naive.  Nonetheless, I will end here as I did on January 7: Peace!     by Neil H. Buchanan   The United States, I have suggested more than once, is quite possibly a "dead democracy walking."  After returning to that metaphor in a column barely more than a month ago, I wrote : "If we are too far gone to prevent the worst from happening -- if the end is only a matter of time -- then the best we can do is to prepare for what is inevitable.  The beginning of such preparation is a clear-eyed assessment of where things stand, understanding why it...

By Eric Segall There are so many things disturbing about Justice Samuel Alito that it is hard to know where to start. I will get to this year's term below but let's begin with the fact that from his confirmation in 2006 to the day Justice Kennedy retired in 2018, according to Adam Feldman of the Juris Lab, not once did Alito vote with the liberals in a 5-4 case. Not once. That statement is not true for the three other most conservative Justices--Thomas, Scalia, and Roberts--who served during that period. Off the Court, as I previously documented here , Alito has made unethical speeches to the Federalist Society and Catholic organizations lamenting the threat to religious "liberty" allegedly caused by the Court's gay rights decisions while cases raising that very tension were/are percolating in the lower courts. And who can forget his infamous mouthing of the word "no" during a State of the Union Address by President Obama? But it was in 2021 that Ali...

Note to readers: The middle of the week between Christmas and New Year's Day is the time for Dorf on Law classics.  T oday and Friday, I am posting a pair of columns that discussed the January 6 certification process for the 2020 presidential election.  Today's column ran on December 16, 2020, three weeks before the session; and Friday's ran on January 7, 2021, the day after.  Note that in the final paragraph of today's classic, I refer to the then-upcoming certification vote as a "nonserious" event.  It was nonserious, as a legal matter.  But we now know that it was extremely serious in every other way.   by Neil H. Buchanan Mitch McConnell made news yesterday by acknowledg ing on the floor of the United States Senate what every sane person has known for weeks: "Today, I want to congratulate President-elect Joe Biden."  This is a big deal only because McConnell had insisted on silently abetting Donald Trump's attempted coup over the past ...

 by Sherry F. Colb I recently watched and very much enjoyed the television mini-series Dopesick . It offers a (barely) fictionalized account of the unbridled greed of Purdue Pharma and the Sackler family. The story was recently in the news again when a federal judge overturned a bankruptcy settlement that had mostly shielded the Sacklers' personal assets from lawsuits against the company and its shareholders. The Sacklers themselves, the greedy people who marketed poison to the masses in order to get richer, may therefore have to pay out of their own pockets for some of the damage that they did.  The story involves a drug called Oxycontin, an opioid that Purdue Pharma (i.e., the Sacklers) claimed was not addictive. The company sent out drug representatives to market Oxycontin ("Oxy") directly to doctors. In the show, a kind and decent doctor played by Michael Keaton prescribes the drug because he believes what the rep has told him: the Oxycodone in Oxy is coated and ther...

 by Sherry F. Colb During the Supreme Court argument in Dobbs v. Jackson Women's Health Organization , Justice Barrett asked the Mississippi Solicitor General, "Would a decision in your favor call any of the questions--any of the cases, sorry, that Justice Sotomayor is identifying into question?" Justice Sotomayor had expressed the concern that overruling Roe v. Wade would call into question other substantive Due Process cases like Griswold v. Connecticut (married contraceptive use), Lawrence v. Texas (same sex relationships), and Obergefell v. Hodges  (same sex marriage) . The Mississippi Solicitor General said no, invoking two reasons. The first had to do with stare decisis  and reliance interests. The second reason was that "none of them [ Griswold, Lawrence, Obergefell ] involve the purposeful termination of a human life." Most people listening to this exchange understood that to be a lie. The State of Mississippi almost certainly will not stop at prohibi...

by Neil H. Buchanan In the category "Most Relentlessly Pessimistic Columnist," I would probably be the John Oliver of the Downer Awards.  My pessimism about the political situation in this country has been on ready display at least since mid-2016 (no coincidence there), but in fact I have been watching with dismay for most of my adult life as the steady march of movement conservatism -- abetted and even worsened by Bill Clinton/Tony Blair style capitulation -- has made it nearly impossible to imagine anything but a bad outcome.  I concede that I was briefly willing to think positively from about 2006 through 2010, but that ended up being more about hope, with the change being an enormous backlash and acceleration of previous negative trends. My column here on Dorf on Law yesterday was another in a long line of pieces (Tuesday's Verdict column being another example) in which I excoriated the wimpy centrists and center-lefties in the U.S. for their unwillingness to wake...

by Neil H. Buchanan   There are plenty of reasons for people to live in denial.  Indeed, some element of denial is required to allow us to function in even the most basic aspects of our lives.     The thing that we call money, after all, is a convention based on (nearly) everyone's willingness to pretend that money has value and is not just worthless pieces of paper along with bits of data in cyberspace -- a belief that becomes self-fulfilling and thus valid only when enough people believe it.  As I put it almost nine years ago, pretending that money is not imaginary constitutes a "group delusion" that is absolutely essential for a modern economy to function. Even more fundamentally, what would happen if people were no longer able to compartmentalize knowledge of their own mortality?  At some point growing up, we become aware of the inevitabilities of our universe, but in various ways we figure out how to proceed without spiraling into despair....

  by Michael C. Dorf A recent story in the NY Times reveals how Time Magazine's Person of the Year Elon Musk repeatedly over-hyped the self-driving abilities of Tesla's cars and pushed engineers to design the company's "autopilot" features to rely solely on cameras even though most experts in the field believe that self-driving cars should combine visual input with radar and/or lidar (similar to radar but using lasers). In today's column, I want to raise some questions about the real and imagined virtues of self-driving cars and also say a few words about the transition to them. If you're wondering what expertise I have for this exercise, the answer is: very little; I own and drive a car that has some electronic assistance and self-driving features (a fairly awesome fully electric Ford Mustang Mach-e, about which more below); and as it says right at the top of the blog, DoL  provides commentary on law, politics, economics, and more . Today is a more  day.

by Sherry F. Colb The New York Times recently featured a very disturbing story . Some people have been operating a web site that encouraged suicidal visitors to the site to kill themselves, including giving them instructions about how to do it. A bereaved mother spoke about losing her teenage son to suicide and learning later that he had been one of the many people to visit the website in question. As her son died, other online visitors encouraged him to continue what he was doing if he wanted to be a successful rather than an attempted suicide. His audience had also suggested the method that he used, and it was common enough to be known by its initials (identified in the podcast accompanying the written story but which I choose not to repeat here).

 By Eric Segall On November 5, 2021, The Occupational Safety and Health Administration (OSHA) issued an emergency order  to protect the health of employees by mitigating the spread of the historically unprecedented Covid-19 virus. The order requires that employees of companies with over 100 workers either be vaccinated or wear a protective face covering and take weekly tests but also provides employers various methods to choose the best policy implementing those requirements. The day after the rule was issued, the U.S. Court of Appeals for the Fifth Circuit, of course, stayed the emergency order pending judicial review, and it renewed that decision in an opinion issued on November 12. After similar cases were filed around the country, they were all consolidated into one piece of litigation pursuant to several federal rules of civil procedure, and then by lottery the cases were assigned to the Sixth Circuit. Yesterday, a panel upheld the rule with two judges in the majority (...