Dorf on Law

by Neil H. Buchanan Last week here on Dorf on Law , I wrote two posts in which I discussed the current situation in the Republican and Democratic presidential nominating contests.  Even though we are still more than thirteen months away from Election Day 2016, and more than four months away from the Iowa caucuses (which are not really where Iowa's delegates are chosen, as far as I can tell). there has already been a surprisingly large amount of movement in both parties' fields. Near the end of last Tuesday's post, " A Liberal Reacts to the Republican Presidential Circus ," I wrote: "I thus reluctantly conclude that there is no scenario in which any Republican presidential win in 2016 is anything short of a disaster.  There are extra-extreme worst cases, but even the supposedly reasonable possibilities present no opening for policies that a liberal like me would consider less than horrible."  I then closed with a comment about Supreme Court appoint

by Michael Dorf As the shock of John Boehner's resignation from the Speaker's chair turns to dread, the main story line is one of appreciation and grim foreboding. From the Democrats' perspective, yes, Boehner was conservative but he was a pragmatic conservative who did a decent job holding things together so that the government could function (mostly) by alternatively reining in the Tea Party/extreme right of the Republican Party and giving them just enough to make them, if not happy, at least unsuccessful in their efforts to sabotage the government. There is undoubtedly some truth in that characterization. Judged at least by the tactical standards of the modern GOP, Boehner is a moderate. One can imagine having a rational conversation with Boehner about government spending and taxes, even if his substantive positions would be conservative by the standards of the Democratic Party and nearly every left, center-left, and even center-right party in the world. By contrast,

by Michael Dorf For readers in or near the NYC-area, please note that a memorial service for Marvin Chirelstein will be held tomorrow evening (Wed. Sept. 30) at Columbia Law School. Details can be found here . (I do not ordinarily post announcements of events, but my great fondness for Marvin surely warrants an exception to my usual practice.)

by Sherry F. Colb It seems odd to describe anything about Donald Trump as subtle, but his sexism may be.  For my  Verdict  column for this week, I discussed Trump's insult to Carly Fiorina's appearance and her highly effective response at the second Republican presidential debate.  I argued that his insults toward her were sexist and bought into an ideology of women as things to be exploited and to be assessed on their utility as sexual objects.  In this post, I want to talk about the subtle nature of the sexism on exhibition by Donald Trump and why, in my view, such sexism is both subtle and noteworthy. The unsubtle form of sexism and sex discrimination involves treating a woman or a girl in a way that a man or a boy would not be treated and doing so on the sole basis of the woman's or girl's sex.  The old advertisements for jobs that said "only men need apply" represent one example.  Such unsubtle discrimination acts on the basis of a quality that is sha

by Michael Dorf Reasonable people can disagree about whether German authorities'  filing of murder charges against a 91-year-old woman  for her work as a telegraph operator at Auschwitz comes too late. Because of the defendant's advanced age, even if she is deemed sufficiently competent to stand trial and to withstand imprisonment, the horrific acts she allegedly committed (where "allegedly" signals only the question of whether she committed these acts, not some sort of Holocaust skepticism) occurred so long ago as to raise the possibility that she is a different person now. Yet there is no statute of limitations for murder and there is something admirable about the German government's relentless pursuit of Holocaust perpetrators. In any event, the question whether to continue to bring such cases will be mooted by the actuarial tables soon enough. Indeed, in some important sense, the Holocaust has entered history already. With the exception of the soon-to-be-n

by Neil H. Buchanan Two days ago, I wrote " A Liberal Reacts to the Republican Presidential Circus " here on Dorf on Law .  In that post, I tried my hardest to find a way to say that at least one of the 14 remaining Republican candidates would be notably less bad as a president than the others.  Although there is a subgroup that is in a different category of scary-awful, I could not find a way to convince myself that any of the others would be meaningfully "moderate" (a word that I place in scare quotes because it has been so degraded over the last couple of decades) or who might somehow represent a break from the relentless rightward lurch of that party.  When Jeb! Bush, Marco Rubio, and John Kasich are your purportedly moderate candidates, words have lost all meaning. In any event, I also have some interest in the race on the Democrats' side.  Indeed, given how disturbing all of the Republicans are, it matters all the more that the Democrats nominate a str

by Michael Dorf My latest Verdict  column discusses some constitutional issues raised during and by last week's Republican presidential debate. I don't say much about most of the substance of the debate, which seems to have gelled into the following storyline: Carly Fiorina "won" the debate and is now climbing in the polls, mostly at the expense of Donald Trump, who nonetheless remains the frontrunner--although sophisticated political observers beleive that Marco Rubio is the plausible candidate who benefited most from the debate and from the general torpor of the Jeb Bush campaign and the exit of Scott Walker from the race. Despite the fact that I think the chance of Trump securing the Republican nomination, much less becoming president, is quite small, I continue to find the Trump phenomenon interesting. Here I'll use the latest Trump controversy as the launchpad for some observations about so-called political correctness. As was widely repo

by Neil H. Buchanan The pruning of the Republican field has begun.  Less than two weeks after former Texas governor Rick Perry took off his smart-guy glasses for good, current Wisconsin governor Scott Walker avoided the ignominy of moving to the kids' table at future Republican debates.  Polling well below one percent nationwide -- in a party full of voters who were thought to be his kind of people -- Walker gave up the ghost on Monday . Speeches by losing politicians are almost always pathetic affairs.  There are a few notable exceptions, most memorably Al Gore's eloquent exit in 2000 , but more typically we watch as self-delusion meets reality in a final death match.  Joe Lieberman's game effort to turn a fifth place finish in New Hampshire in 2004 into a "three-way split decision for third place" was especially detached from reality, but only as a matter of degree, rather than kind.  Walker was similarly unwilling to simply say, "Despite being a fro

by Michael Dorf In a useful update on the Kim Davis case on Balkinization , Marty Lederman raises the question whether the improvised forms that are now being used to issue marriage licenses in Rowan County, Kentucky--insofar as they differ substantially from the forms used in other counties--violate the equal protection rights of applicants for marriage licenses in Rowan County, even if the forms suffice to make the ensuing marriages legal under state law. Marty asks (in his question 5): Do the Davis-amended licenses violate the 14th Amendment, as plaintiffs suggest, even if they do not affect the legality of the resultant marriages under Kentucky law, and even if same-sex and opposite-sex couples are treated equally within Rowan County?  The theory here presumably would be that Rowan County is symbolically disfavoring same-sex marriage by virtue of appending an effective asterisk, or "issued under protest" message, to all licenses in Rowan County (same-sex and opposite

by Michael Dorf Near the end of the seemingly interminable Republican Presidential Debate on Wednesday night, former Florida Governor Jeb Bush indicated that if he were president, he would nominate conservatives with an established track record to the Supreme Court. There ensued sniping between Bush and Senator Ted Cruz over whether the latter had supported John Roberts for Chief Justice, punctuated by former Arkansas Governor Mike Huckabee's vow to apply a litmus test (that was the phrasing of the question and he embraced it) on abortion for his nominees. Rather than evaluate who "won" that particular round of the debate, I want to examine the premises behind Bush's initial statement. Bush made his comment in response to a question from one of the moderators, Dana Bash, who noted that Cruz had criticized President George W. Bush for appointing John Roberts as Chief Justice, in light of the latter's votes to uphold the Affordable Care Act and to construe it as

by Neil H. Buchanan My annual contribution to Jotwell : The Journal of Things We Like (Lots) is now up on the journal's website: " Using the Tax Code to Help Universities Put Big-Time College Sports In (Some) Perspective ."  There, I review an excellent recent article by Professor Richard Schmalbeck of Duke Law School: " Ending the Sweetheart Deal between Big-Time College Sports and the Tax System ."  (Readers can find the previous Dorf on Law posts in which I describe (and link to) my previous Jotwell contributions here: 2014 , 2013 , 2012 , 2011 , and 2010 .) Professor Schmalbeck's article offers a modest approach (hence the "non-Hail Mary" in the title of this post) to reducing the growing, problematic influence of football (and, to a much lesser degree, men's basketball) at major American universities.  He focuses on two aspects of federal tax law: (1) the indefensible practice of not requiring universities to pay the Unrelated Busine

by Sherry F. Colb In my Verdict column this week , I discuss the abortion bill currently under consideration in Ohio, which would ban abortion motivated by the Down Syndrome status of the fetus.  In the column, I discuss four different kinds of abortion restrictions, where this particular bill fits into the typology, and some of the arguments in favor of and against a restriction of this sort.  I ultimately conclude that women should have the right to terminate a pregnancy for any reason at all, because of both the bodily integrity interest at stake and the status of the pre-sentient fetus (one that cannot yet have subjective experiences such as pain and pleasure) as a potential but not an actual person.  In this post, I want to speak directly to an argument that pro-life advocates sometimes make and would likely make in response to my column:  a human embryo (or fetus) is made up of human rather than giraffe or orangutan DNA; a human embryo is a separate organism rather than a part

by Neil H. Buchanan In his New York Times op-ed column yesterday, Paul Krugman used the term "conventional nonsense" as a pointed twist on John Kenneth Galbraith's famous term "conventional wisdom."  (Actually, that term was not coined by Galbraith, at least according to the hive brain at Wikipedia .)  Even though "conventional wisdom" typically indicates ironic disapproval, Krugman's more explicit formulation fits the times.  American punditry has long been filled with calls for moderation against the extremes supposedly represented by both parties, even though it has become increasingly obvious that this is nonsense. You know that the standard narrative is vacant when the go-to example of the Democrats' supposed extremism is U.S. Rep. Alan Grayson , who supported Ron Paul's efforts to "audit the Fed" and who co-sponsors legislation to "appeal to the libertarian streak in the GOP."  Grayson's being personally