Dorf on Law

by Neil H. Buchanan   Last week, Professor Dorf and I wrote somewhat-conflicting assessments of the bill that would amend/replace the 1887 Electoral Count Act (ECA).  We both certainly agree (as does almost everyone) that the ECA is a mess and needs to be replaced.  It is, after all, a big reason that there is so much uncertainty about what happens when competing slates are sent to the Electoral College from the same state; and the miasma that the ECA creates was what Donald Trump's lawyers used to try to pull off the bloodless part of their coup plot. Even though the ECA is terrible, I should state clearly that there is simply no way that that law -- even in its disastrously muddled current form -- justifies what John Eastman said it justifies.  And any replacement to the bill should be understood not to be immune to such bad-faith misreading.  Even so, there is an important question about the proposed replacement, which boils down to the classic question of w...

by Neil H. Buchanan     Yes,  ladies and gentlemen, girls and boys, the time has come for this year's veganniversary column.  Exciting, I know.  As in previous years -- 2021 , 2020 (plus followup ), 2019 (plus followup ), 2018 , 2017 , 2016 , 2015 , 2014 , 2013 , 2012 , 2011 , 2010 , 2009 , and the original announcement in 2008 (plus followup ) -- this is my annual moment to reflect on life as a vegan, offering observations both pedestrian and philosophical about the practice and impact of refusing to include the products of suffering, torture, and death in one's life. I do sometimes write columns about veganism not keyed to the veganniversary date (officially July 24, 2008), most recently last month, when I tied the debate about inflation into the argument for being a vegan (including the observation that "meat is not just murder but extremely expensive murder.")  And Professors Colb and Dorf continue to be the true scholarly experts on the topic, espe...

by Michael C. Dorf Last week, the House of Representatives passed the Respect for Marriage Act  (RFMA) which would repeal the operative provisions of the Defense of Marriage Act (DOMA). In 2013, in  United States v. Windsor , the Supreme Court invalidated  Section 3 of DOMA , which defines marriage solely as consisting of a union of one man and one woman. In the course of finding a constitutional right to same-sex marriage in Obergefell v. Hodges in 2015, SCOTUS invalidated Section 2 of DOMA --which excuses states from giving full faith and credit to same-sex marriages performed in other states. So what's the need for the RFMA? In the U.S., laws declared unconstitutional remain on the books unless repealed. As women around the country are now learning with respect to abortion, if the precedent that led to a law being found unconstitutional is overruled, the old law can come back to life like a reanimated zombie . Accordingly, passage of the RFMA would be u...

by Neil H. Buchanan Does it increase people's overall well-being if a country has the equivalent of Robin Hood -- some entity (government or otherwise) taking from the rich and giving to the poor?  Yes, emphatically yes.  Even so, this question is a timeless one among scholars and policymakers in debates about taxation, expenditures, and related questions of budgetary policy. Although what I am writing today is not at all tied to a moment in time, I will note that the question of progressive redistribution was again in the news last week -- frustratingly so, because the central player in that news cycle was Senator Joe Manchin, the unrepentantly conservative Democratic senator from West Virginia, whose name will forever be found in sentences that include variations on the words frustrate , exasperate , and infuriate .   As part of Manchin's latest bait-and-switch, he ensured that the US will be unable to join in the proposed global minimum corporate tax , and more gener...

 By Eric Segall Last week at the Law & Liberty blog, Professor John McGinnis, a self-proclaimed originalist, was quite giddy about the Court's Second Amendment opinion in New York Pistol & Rifle Association v. Bruen striking down a New York law requiring a special permit to conceal carry a handgun . His essay, titled " Bruen 's Originalism," takes away three main points from the case: First, it considers carefully how the right to bear arms would have been expected to be applied both before and around the time of its enactment. It thus endorses “expected applications” as a way to give a provision concrete meaning. Second, many, if not most, of these expected applications derive from legal context—both how the Second Amendment reflected previous law and what subsequent law said about how it was to be applied. It thus suggests that this constitutional provision which seems on its face to be written in ordinary language may require a legal gloss to be fully und...

by Neil H. Buchanan I am currently in lockdown with my first bout of Covid-19.  It appears that I caught it in Lisbon, where I spent July 12-17 at the (mostly in-person, after two years of Zoom-only) annual meetings of the Law & Society Association.  Portugal has been a Covid trouble spot all summer, the conference was a high-risk event, and I was physically run down after traveling for several weeks.  It all added up to take me down. I will say this: Science rocks!  My Physician's Assistant told me that, because I am fully vaccinated and boosted, I was in virtually no danger of serious disease or death.  She also put me on the now-standard course of Paxlovid, a Pfizer treatment of five days worth of pills to treat people who have caught the virus.  I am already feeling great.   Even so, as I explained in a column this past January, written during an illness that turned out not to be Covid-19, being able to say that an illness is "no big deal" i...

  by Michael C. Dorf Much of the news coverage of the proposed legislation to reform the Electoral Count Act (ECA) has focused on its provision (Section 15(b)(1)) stating that in the counting of the Electoral College (EC) votes at the January 6 joint session of Congress, the role of the Vice President (technically the President of the Senate) is entirely ministerial. That's a sensible rule but hardly adequate to address the key threat to democracy. Donald Trump's pressure campaign focused on numerous local, state, and federal officials, turning to VP Pence only after it (just barely) failed against those others. Moreover, it's not entirely clear that Congress has the constitutional power to decide what the VP's role is in counting EC votes. My view--shared by just about every reputable constitutional scholar--is that Article II and the Twelfth Amendment already make the VP's role ceremonial, but if I'm wrong and the likes of John Eastman are right that the Cons...

by Sherry F. Colb It has been a little while since I last analyzed/ranted about some of the countless things wrong with the majority opinion in Dobbs v. Jackson Women's Health Organization . The hiatus has given me a welcome opportunity to discover some more things to hate about that wretched piece of writing. Aiding in the process were conversations with women during which I learned that women who oppose forced pregnancy and birth do not just feel disappointment, dejection, and the sense that their lives (our lives) count less than the "life" of a fertilized egg the size of the period at the end of this sentence. They feel hatred for Sam Alito (SA).

By Eric Segall Justice Clarence Thomas is six years away from being the longest service Justice in American history. Much has been written about his influence and his law clerks, many of whom have gone on to become judges or hold other positions of power. Even more has been written about his views on race. Many, but not all, on the left believe Thomas has done enormous damage by his stubborn and persistent embracing of the so-called color-blind Constitution. Many on the right believe that he is a hero for that dogmatic position. Still others are conflicted because they see in Thomas a fiercely proud man who believes strongly that people of color will never benefit from white largesse and that the best way to dismantle racism in this country is to allow African Americans and other people of color to succeed on exactly the same terms as white folks because any other position is demeaning to all of our citizens including traditionally disadvantaged minorities.  I side with those who ...

  by Michael C. Dorf My latest Verdict column  discusses Twitter's lawsuit against Elon Musk . Twitter seeks to compel Musk to consummate the deal he signed in April to buy the company. If you don't want to read the column . . . well shame on you . . . but okay, here's a very rough summary: (1) Twitter wasn't worth the $44 billion Musk agreed to pay for it in April and it's worth even less now; (2) under the terms of the deal, that doesn't excuse Musk's performance; (3) neither do his contentions about bot accounts or Twitter's cooperation since April; (4) so, at least if the complaint is basically accurate in the facts it recounts, Musk is in breach; (5) Musk's motion to delay trial until next year should probably be denied, because the matters that Musk says will take more time to complete appear to be legally irrelevant; (6) the remedy for breach is usually damages but here there's a specific performance clause; (7) the Delaware Chancery Court...