Dorf on Law

  by Michael C. Dorf When the speakers at last week's Republican National Convention were not trying to persuade America that there exists a hitherto-unseen Donald Trump who is a competent and compassionate human being, they were mostly issuing a not-at-all-veiled warning to suburbanites that Joe Biden's America will feature widespread and nonstop violence. As numerous commentators observed, the message is odd. Trump is warning that what people are seeing on the news from Portland, Chicago, Kenosha, and other "Democrat-run" cities will happen if Biden is elected, but of course, the people are seeing what's happening now, in Donald Trump's America (except for the video clip of Barcelona in 2019 that the RNC aired). Trump came into office promising to end "American carnage" that did not exist. He's running for re-election warning that his opponent will bring about carnage even as he himself has done just that. Who would possibly buy that argument?...

  by Michael C. Dorf At 9 am today (that's Friday, August 28, 2020 if you're not sure when I wrote this), I'll be presenting a "Keynote" address on freedom of speech, available for free (but you need to register) through eCornell . This is a lecture for an all-day “boot camp” we provide for students taking Cornell's terrific First Amendment clinic . Most but not all of the clinic students will have taken our doctrinal class in the First Amendment (taught by my colleague Professor Nelson Tebbe). The boot camp lectures provide an overview for those who haven't and a refresher for those who have. I’ve given a version of the free speech lecture the last couple of years in person. We decided to open it up more broadly this year in light of the fact that it will be via electronic means anyway. The clinic students will be able to ask questions via Zoom, whereas the rest of the world will be able to enjoy (or detest or be bored by) my lecture as a webinar. When I ...

by Neil H. Buchanan   Who could have imagined that the United States Postal Service would become a flashpoint in a national election, especially in the midst of a global health crisis?  Yet here we are, with movement conservatism's longstanding loathing of the Post Office having joined in an unholy alliance with Donald Trump's efforts to convince the world of the complete lie that mail-in voting is rife with fraud. Here, I want to focus on the non-Trumpian side of that alliance, that is, on the decades of efforts by anti-government extremists to disparage the very idea of a national postal system run as a public service by the national government.  The reasons for that bone-deep hatred of the USPS are perversely fascinating on their own (de)merits, but there is a deeper hypocrisy involved as well.

 By Eric Segall "Justice Douglas, you must remember one thing. At the constitutional level where we work, ninety per cent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections."   Chief Justice Charles Evan Hughes   Last week I had the pleasure of having Mike on my podcast/video series Supreme Myths and, among other things, we had a nice chat about legal realism. This topic is extremely important given the trope that has been circulating among scholars and even Supreme Court nominees that Elena Kagan said at her confirmation hearing, "we are all originalists." This statement was proudly repeated by Justice Kavanaugh at his confirmation hearing, and it has been thrown at me numerous times during my debates with originalists, who often add the word "now" to Kagan's quote. This post argues that originalists employing Kagan's line to defend originalism ignore the context of her statement. I also ...

by Neil H. Buchanan It is political convention season, and I am deliberately not watching coverage of either party's virtual events.  Getting my information second-hand, it appears that the first night of the Republicans' extended-play version of Two Minutes Hate went even worse than expected.  Democrats, meanwhile, finished their event last week to generally quite positive reviews. My big worry about the Democrats' approach is that they seem to have aimed their message entirely at the moderation-obsessed punditocracy, betting the house on the idea that playing the centrist card and eschewing ideology of any sort will allow them to appeal to the possibly null set of swing voters.  In an election almost certain to be decided by turnout, Democrats seem to be counting on people of color and younger maybe-non-voters to show up at the polls in droves, without really giving them an affirmative reason to do so. To be sure, the negative reasons are more than enough, and I will o...

  By Michael C. Dorf & Martin S. Lederman Earlier this month, Chapman law professor John Eastman wrote an op-ed in Newsweek proposing that Senator Kamala Harris might not be a “natural born citizen” (NBC)—and thus not eligible to be elected Vice President—if her parents, who were foreign nationals rather than U.S. citizens, were not permanent U.S. residents at the time of her birth in California. The op-ed’s title suggested that Professor Eastman was only raising questions, but its content affirmatively argued against Senator Harris’s eligibility to be president if her parents were “merely temporary visitors.” Professor Eastman’s op-ed was quickly weaponized by Donald Trump and his supporters, who used it to provide a patina of respectability to a repurposed “birther” attack—once again targeting the historic candidacy of a person of color. Accordingly, it was important to set the record straight by showing that Professor Eastman’s view is not merely unorthodox but well beyond ...

  by Michael C. Dorf After NY Attorney General Letitia James announced that she was filing a lawsuit to dissolve the NRA for defrauding its donors, various wags (including the wags at NPR's Wait Wait Don't Tell Me news quiz) joked that prosecuting the NRA for defrauding its members would be harmful to the movement for gun control. Advocates of gun control should be pleased that its leadership was using donations from members for fancy clothes and vacations rather than to promote gun rights. That was a joke, in part because the remedy of dissolving the NRA would serve the interest of gun control too. But still, one might think that the gun control movement would be better off with the NRA leadership siphoning off funds that would go to promote gun rights if it is displaced by a more honest organization with the same ideological aims. Of course, in saying that, I do not mean to imply that the ideological aims played any role in the decision of AG James to pursue the case; it wou...

by Neil H. Buchanan     The eviction crisis in America is no longer "looming" but has already begun, thanks to Senate Republicans' refusal to extend protections against evictions and also to their cavalier opposition to renewing income supports for people who have been laid off during the roiling economic disaster of 2020.  The Trump Administration joins its Senate enablers in not caring about those millions of desperate people -- people who are not only losing their homes but are having their credit records tainted in a way that will make their lives more difficult for years or even decades to come.   John Oliver's "Last Week Tonight" did a typically great job discussing this then-pending crisis more than a month ago .  Earlier this week, I took a different tack and asked why the supposedly brilliant aggregation mechanism known as the Invisible Hand did not cause people on both sides of potential evictions rationally negotiating solutions that would avoid ...

 By Eric Segall School is starting again, sort of, and many law students will be taking constitutional law in one form or another. At most law schools, students will begin with Marbury v. Madison , or maybe McCulloch v. Maryland , and then work their way through over 200 years or so of Supreme Court cases involving many of our country's most difficult legal, social, and political issues. It is important that these students understand how the Supreme Court explains its decisions--usually in this form: here are the facts, here is the text relevant to the case, here is the history, here is the case law, and presto here is the conclusion.  But it is also important that students understand that the Court rarely gives a full and accurate picture of why it rules the way it does in constitutional law cases. To truly understand constitutional law, and maybe more importantly, to develop critical thinking skills, which every lawyer needs, students need to be able to see and understand wh...

by Neil H. Buchanan One of the many, many crises facing the country today is the very immediate threat that millions of Americans will soon be evicted from their homes, whether those homes are owned or rented.  With more than 16 million people currently unemployed (ten million more than in February) and millions of others suffering from declining incomes, and with various types of federal assistance having expired three weeks ago, things are looking more and more dire. The big political story here is obviously the utter lack of concern that Republicans in the Senate and in Donald Trump's administration have shown for the plight of these people, none of whom did anything to deserve this terrible turn in their lives.  Because the sensible (and humane) policy responses to the current problem are blindingly obvious and not at all difficult to enact and implement, Trump and his enablers' indifference is all the more disgusting. Because this human tragedy has a non-mysterious polic...