Posts

Harm SCOTUS Could Do Versus Harm It's Likely to Do

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My latest Verdict column previews the current Supreme Court Term. Yes, I'm aware that the Term is underway, so this is a preview of the cases yet to be argued. You can think of it as also a preview of how the Court will likely rule in cases already argued. I discussed one of the oral arguments from last week on the blog . Professor Vik Amar and I discussed that case and others in a webinar last week as well. (The recording is here .) As I explain in the new Verdict  column, this is shaping up to be a pretty sleepy SCOTUS Term. Even the cases that sound juicy are either about technical issues or are interstitial--steps on a path the Court has already laid down. In the column, I acknowledge the possibility that the Court will decide some important cases on its emergency docket concerning immigration or the midterm election, but I tentatively predict that it won't make much new law. Zooming out to see the big picture, the Roberts Court has already checked off the major items on t...
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Telling Non-Americans that the US Has Abandoned the Rule of Law

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What happens when you tell a group of international legal experts that the US is now post-legal?  Today, I found out.  They are, to understate the point, worried.  But before getting there, I should lay the groundwork for this story. My good fortune often brings me back to Vienna (the former imperial capital, not the exurb of Washington, DC), where I am now a Senior Research Fellow at the Vienna University of Economics and Business's Institute for Austrian and International Tax Law.  Yesterday and today, the Institute hosted a conference titled " 2026 WU Transfer Pricing Symposium: Transfer Pricing Case Law around the World ." Please stay awake!  I confess that this topic is sleep-inducing even for those of us who work in the salt mines of tax law, which means that I had low expectations when I agreed to chair one of the sessions: "Transfer Pricing and Intangibles."  Are you still there?  (Fingers snapping.) Seriously, though, I would normally not con...
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Trump Lionizes Columbus Because, Not in Spite, of his Atrocities

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Today is what we here in Ithaca recognize as Indigenous People's Day . In many parts of the United States, however, today is Columbus Day. Ithaca and various other progressive locales were inspired to change the designation in light of the fact--long known to historians and anyone who took the time to read accounts such as  Columbus's own letters  and reliable secondary literature --that Columbus enthusiastically captured, enslaved, and sent to Europe numerous native people, as well as expropriating their land, gold, and other resources. The most lethal impact of Columbus's voyage and the ensuing establishment of European colonies in the new world came from diseases to which the indigenous population had no immunity, and while the introduction of new microbes was not intentional on the part of Columbus or the conquistadors who followed him, they were not exactly unhappy about the fact that the depopulated lands left many fewer people who would resist colonization and create...
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The Debate About Banning Fraternities: Overdue Reform and Possible Unintended Consequences

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An issue that has unexpectedly dominated the news in recent weeks is the justified public outrage at Cornell University's wholly unacceptable response to allegations of rape at a 2024 fraternity party, a response that is at long last being exposed and condemned.  This entire matter is deeply troubling, and it is a somewhat hopeful sign that the university and local law enforcement -- and now New York State's political leaders -- are being pressured to take it seriously, especially given their earlier attempts to sweep it under the rug (or at least to fail to comprehend its importance, although I find that explanation highly implausible). (Aside: Donald Trump and his insecure manosphere are anything but outraged, except insofar as he thinks that the men involved "won't get a fair shake," saying "I feel badly" for them. No surprise there.) Professor Dorf's column this past Saturday considered some of the most important legal issues regarding consent...
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"Innocent" Sanewashing, the Gish Gallop, and Bad-Faith Arguments from Republicans

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"Where do I even begin?"  I feel confident that almost everyone reading this column will have uttered that rhetorical question at least once, because we have all been faced with people who spew out a long series of crazy or objectionable statements that pile up so quickly as to leave the listener with the sense of helplessness captured in that plaintive response: Where do I even begin? Before I get to Donald Trump (because that is obviously where this is going), it is useful to think about what it means to leave one's opponent with too much to say in too little time.  For those of us who participated in certain forms of competitive debating in school, "spreading" is the term for saying so much (usually by speed-talking in a timed speech) that one's opponent cannot possibly respond to everything.  Because all debaters learn that "silence means consent," the strategy by the spreader is to then spend their entire rebuttal speech listing the many argum...
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Malcolm Gladwell, Confused Originalist

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In 1950, Immanuel Velikovsky published  Worlds in Collision , in which he argued that astronomical events such as the supposed expulsion of Venus as a comet from Jupiter occurred within the span of ancient human civilizations, that the resulting planetary interactions led to catastrophes on Earth, and that accounts of an ancient flood in the Bible and the Epic of Gilgamesh and other events that are described in similar terms in different cultures were records of the consequences of the celestial collisions. Velikovsky had no training in science, history, or any other relevant discipline. He was a psychiatrist. Nonetheless, his book made a splash. Scientists knew that Velikovsky's astronomy was bunk but were impressed by his historical account of ancient religious texts and myths. Bible scholars, historians, and archeologists familiar with the relevant materials knew that Velikovsky's reconstruction of ancient events was bunk but were impressed by his science. Very few people we...
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In SCOTUS Global Warming Argument, Conservative Justices are Receptive to "Dormant Nothing Clause" Argument

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In an ideal world, the Earth would not be facing the climate crisis it now faces. In an imperfect but still much better world than the one we inhabit, the United States would be leading or at least participating in global efforts to greatly reduce greenhouse gases. We were heading towards such a world when Congress enacted the misleadingly named Inflation Reduction Act, which would have done a lot of work towards reducing U.S. emissions. However, we are now living under a presidential administration intent on promoting the burning of fossil fuels and discouraging the use of renewable energy. The reversals of federal climate policy under the Trump administration include  rescission of the endangerment finding  earlier this year and its abandonment of carbon emission regulation of stationary sources  under the Clean Air Act just in the last few weeks. There is now effectively no federal regulation of global-warming-causing greenhouse gases. Can state and local governments f...
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The Biggest Damn Fool Mistake: Trump and the Roberts Court

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Today the Supreme Court opens its October 2026 Term, though the idea of a term with a beginning and an end is mostly ceremony now. In the shadow docket era, the Court decides important and complicated issues without full briefing or oral argument, and often with the justices languishing at luxury getaways, domestic and abroad, some of them subsidized by Harlan Crow or Paul Singer . Since the last term's final opinions came down, the Court has let construction of the President's ballroom continue on the ruins of the East Wing, and it allowed deportations to third countries to resume over a lower court's finding that migrants were not getting a fair chance to raise fear of torture. And yet the President cries foul. Asked by Time whether he regrets nominating Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, Trump said : "Yeah. Yeah. What can I do? I put them in. They voted against me too often." He added, "I do like loyalty, yeah." Two weeks earl...
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