Dorf on Law

Not that it is relevant to today's column, but this morning a question popped into my head: Does anyone miss Kevin McCarthy?  Didn't think so. With that out of the way, it is important to return at least briefly to Donald Trump's lawyer's infamous moment in the DC Circuit last week, where he argued that Trump can only be prosecuted for what he does in office if the House impeaches him and the Senate convicts him first.  This is based on an utterly nonsensical reading of a sentence ( Clause 7 ) in Article I, Section 3 of the Constitution: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. This says only that the Senate's conviction of the defendant in an impeachment trial cannot send a person to priso...

During yesterday's oral arguments in Relentless, Inc. v. Dept. of Commerce  and Loper Bright Enterprises, Inc. v. Raimondo , Solicitor General Prelogar and the Democratic appointees who do not want to see Chevron deference abandoned invoked stare decisis. Justice Kavanaugh pushed back with a clever-seeming argument that, upon inspection, has far-reaching consequences. SG Prelogar warned that overruling Chevron  would be a "shock to the system" in various ways. Regulations that have already been upheld under Chevron as reasonable could be upended. And numerous statutes in which Congress left gaps on the assumption that expert agencies would fill them would now be interpreted de novo by courts, frustrating Congress's reliance on Chevron in writing the statutes the way it did. Justice Kavanaugh pushed back by claiming that the real shock to the system comes from Chevron itself, which allows a Republican administration to replace a regulatory regime adopted by a Democrati...

Per my custom, I am posting the constitutional law exam I administered to my students at the end of last semester. In the past I've given take-home exams, but with the improvement of LLMs like chat-GPT, this one was administered in-person. Students had four hours to complete the exam. Take all the time you need. (Note: Some of what appears below is real; much of it is fiction.)   Question 1   (35%) After losing over $100,000 on his investment in a Bored Ape Yacht Club NFT, Representative Patrick McHenry, the Chair of the House Financial Services Committee, proposes a bill that he says at a press conference “would crack down on cyrpto scammers.” His committee holds hearings at which people who lost their life savings trading cryptocurrency and NFTs testify. The committee also hears from experts who testify that cryptocurrency enables criminals in Cambodia, Myanmar, and elsewhere to hold people in captivity while forcing them to scam naïve Americans out of their savings. Represe...

In New York State Rifle and Pistol Ass'n v. Bruen , the Supreme Court's conservatives issued a decision that radically upended Second Amendment jurisprudence in a novel and bizarre way by focusing exclusively on history when evaluating gun control legislation. This nightmare of an opinion has paved the way for ambitious lower court judges to write sermons about gun rights so that when a Republican President is back in power, they will have a better chance of promotion. If that statement sounds harsh, there is simply no other explanation (other than possibly incompetence) for the pernicious  screed  issued by Judge Kathryn Kimball Mizelle striking down a federal law banning guns in United States Post Offices. This opinion is anti-originalist, anti-precedential, and anti-common sense. Judge Mizelle is the same judge who overturned the CDC's requirement to wear masks on planes and trains before the rule expired. My blogger-in-chief Mike strongly criticized that hugely unpers...

I'll use today's official celebration of the birthday of Dr. Martin Luther King, Jr., as an opportunity to offer a few observations about cancellation of people previously recognized as having accomplished great things, whether in the arts, politics, or otherwise. The term "cancel culture" is widely used and misused to mean many things. What I mean by cancellation is a kind of systematic re-evaluation that leads the public or a substantial portion of the public either to completely change their understanding of the person in question for the worse or to thenceforth caveat any praise of the person with a strongly negative addendum. Sometimes cancellation comes from new revelations (or revelations to the general public of facts that were previously known or suspected only by a smaller group). Harvey Weinstein, Bill Cosby, and other celebrities whose work was widely praised but who turned out to be sexual predators are paradigmatic examples. Other times cancellation resu...

By Guha Krishnamurthi & Peter N. Salib In recent months, reporting has opened a window into the fabulous lifestyles of the Justices of the Supreme Court. Certain Justices have been luxuriously pampered by wealthy benefactors, individual and institutional. This includes various expensive vacations—including yacht trips with glacial ice cocktails—and plush book deals from various publishing houses. Perhaps most starkly, Justice Thomas has received sweetheart deals on a real estate property and a luxury RV. His grand-nephew’s private school tuition was likewise paid for by billionaire-friend Harlan Crow.  Something seems wrong, though it’s not clear what. Some commentators have attempted to unearth connections between these gifts and the voting behavior of the beneficiary Justices, but these are tenuous at best. Without trying to predict ProPublica’s next blockbuster report, we think that the current state of public knowledge does not show any kind of quid pro quo, cash-for-vote...

Late last Fall, the big-money Republican donors who do not want Donald Trump to be their 2024 nominee finally gave up the ghost on the Ron DeSantis candidacy.  Florida's governor had long since revealed himself to be a genuine culture warrior , not the kind of wink-and-feint type that plutocrats prefer.  More to the point, he has turned out to be a combination of weird, creepy, unlikable, and unusually incapable of even pretending to enjoy being a candidate.  He is a remarkably inept politician. By late 2023, with Mike Pence and most of the other more establishment-type longshots out of the presidential race and only Chris Christie (who ended his campaign this week) and Fascist Eddie Haskell still running, the only plausible alternative to DeSantis was Nikki Haley.  (Strangely, Asa Hutchinson has still apparently not officially dropped out, but he is in the Christie category of being willing to directly criticize Trump, which Haley and DeSantis can barely bring the...

In my final new Dorf on Law column of 2023, " Some Light Entertainment from the College Football Scene ," I anticipated that my Michigan Wolverines would again under-perform on the big stage of the College Football Playoff.  Led by their coach Jim Harbaugh, after all, they had played quite poorly in losing their semifinal games in 2022 and 2021.  Prior to this season's January 1 semifinal, I therefore expected history to repeat itself, which led me to write this: "My predictions: Alabama 31, Michigan 13; and Harbaugh signs an NFL contract the next day." The first prediction was wrong, and the second prediction is wrong at least as a matter of timing.  That is, even giving myself latitude for the fact that they played another game, Harbaugh did not resign the next day.  As of this writing, in fact, he has not left his current job in Ann Arbor.  So, I was completely wrong and at best mostly wrong.  Not a good track record.  On the other hand, I was unex...

During a recent family trip to San Francisco, one of my daughters and I needed to get from Golden Gate Park to the Chase Center to see the Warriors play (and ultimately lose to) the Mavericks. A friend I was visiting suggested that for fun we take a Waymo--one of the self-driving taxis that scurry about the City by the Bay. My daughter had the app on her phone already but when she tried to log in for San Francisco, she found that there was a waiting list. My friend used her app, summoned the Waymo, and off we went. Here I'll give a report and then draw some comparisons to the lawsuit filed by The New York Times against OpenAI and Microsoft .  First, a little background for readers with less of an interest in AI than I have: Waymo is a subsidiary of Alphabet, which is the parent company of Google; indeed Waymo was originally known as the Google Self-Driving Car Project. When Waymo first began offering ride-hailing, it did so with a human backup driver, but since last year it has bee...

I recently finished reading Hilary Mantel's brilliant Wolf Hall trilogy ( Wolf Hall , Bring up the Bodies , The Mirror and the Light ), which tells the story of Thomas Cromwell, who rises from obscurity to become King Henry VIII's most trusted advisor.  If you don't want spoilers, don't read on...though as this is historical fiction, plot twists are not the point.  The series is gripping, even if you kind of know what's coming.  The novels are remarkable--among the best I've ever read.  (At nearly 900 pages, the third volume is perhaps a tad long, but, by my lights, it's still superb.)  I hesitated before blogging about them here because the trilogy speaks for itself and on its face holds little of immediate relevance to 21st century lawyers.  Moreover, though Mantel clearly did extensive historical research, the books are fiction.  She has invented ruminations, dialogue, and even some characters.  Mantel, who died in 2022, weaves a rich and con...