Dorf on Law

by Neil H. Buchanan It's hard to believe that this is the tenth New Year's Eve since Dorf on Law came into existence.  We wish our readers the best of the new year.  We will be back to our regular publication schedule next week.

by Michael Dorf My latest Verdict column is titled Do Androids Dream of Animal Rights? .  I usually write a blog post to go with each column, but it's practically New Year's Eve, so I'll simply invite readers to check out the column and post any comments either on Verdict or here. Happy New Year

by Neil H. Buchanan The big political story of 2015 was the unexpected emergence -- and even more unexpected staying power -- of Donald Trump as a presidential candidate.  For most of the summer and early autumn, I chose to write nothing about his candidacy, in part because the absurdity of it all made serious commentary seem pointless, while sarcastic commentary would have been redundant.  As the story grew, however, it became all but impossible not to say something about the emptiness of Trump's assertions, the lack of any details in the few policy positions that he announced, the ugliness of his rhetoric, and so on. As the year ended, I used three Dorf on Law posts ( here , here , and here ), as well as my most recent Verdict column , to assess an emerging discussion among politicians and pundits about whether Trump could destroy the Republican party in 2016 (and perhaps permanently).  In those pieces, I did not actually discuss Trump's assertions in any detail, but I

By Eric Segall The Supreme Court will resume hearing oral arguments on January 11. During this pause in the Term's business, we Court-watchers (and criticizers) can usefully turn our attention to structural issues, like the fact that our Supreme Court Justices are the only judges in the entire world who sit on a nation’s highest court for life. Consider the longest-serving member of the current Court, Justice Scalia. He ascended to the bench before we were all using cell phones, satellite television, or the internet; and he could serve for many years to come. If Justice Scalia serves until the age at which Justice Stevens retired, he would still be hearing oral arguments and deciding cases in 2025. There are many well-documented problems with life tenure. Over the years, we have had numerous Justices, like Marshall and Douglas, who, though once heroes, quite obviously stayed on the bench after they no longer could competently perform their responsibilities. After Douglas’

by Michael Dorf Merry Christmas to DoL's Christian readers and happy new year to all. There will be a fewposts next week but we here at DoL are in holiday mode, so we won't return to our regular schedule of a post per weekday until after the new year. We have confidence that you'll find some other way to amuse yourselves during the off days.

by Sherry F. Colb In my column this week , I discuss frozen embryo battles and the different rights and perspectives in play when such fights cannot be resolved by an existing contract between the parties. In this post, I want to further explore a concept that arises briefly in the column:  the symbolic significance of calling an embryo a baby or of otherwise treating an embryo as something other than a potential child or the raw materials of a child. Such nomenclature, when referring to an embryo or zygote, erases the important biological role that women play in reproduction and treats men and women as equally involved in producing a baby. Since there is in fact, more to reproduction than the contribution of gametes, a pretense that reproduction has already occurred once an embryo or a zygote has come into existence effectively denies the significance (and, in some ways, even the existence) of the unique role that women play in reproduction, through pregnancy. I developed this i

by Neil H. Buchanan In my Verdict column last week and in two follow-up Dorf on Law posts ( here and here ), I have again discussed the puzzling phenomenon of the moderate 21st-century Republican.  Pundits tell us that such beings exist.  I have friends, colleagues, and family members who claim to be examples of that species.  Yet, based on anything that I can imagine constituting a worldview that counts as politically moderate, the Republican Party in its current form offers moderates nothing to cling to, whereas the Democrats are quite obviously their natural home. In my recent writings, I have considered a number of possibilities.  Maybe Republican moderates do not really exist, but some people falsely claim to be moderates, for self-esteem purposes.  Maybe political affiliation is such a major part of how a person sees his place in the world that many people are simply incapable of considering going over to the other side.  (Admittedly, this is difficult for me to understan

by Neil H. Buchanan In my Dorf on Law post this past Friday , I renewed my occasional discussion of the puzzling relationship between self-described political moderates and the modern Republican Party.  There, building on my most recent Verdict column , I asked whether anyone who thinks of herself as a Republican moderate would ever leave the party, if she has not already done so.  There are plenty of people who have abandoned the Republicans over the years, to become either Democrats or independents, because of the hard right turn that the party has taken in the last three-plus decades.  Even so, there are people who still insist that they are not on board with the extreme conservative views that now define their party, yet who are evidently comfortable enough to stay in the Republican fold. My conclusion in that post, a conclusion that by its nature must be tentative and subject to revision, is that even the nomination of Donald Trump might not drive those people out of the par

by Neil H. Buchanan The increasing ugliness of the Republican presidential campaign, evident most recently in the bomb-'em-all attitude of nearly every candidate, has generated widespread discussion of whether the Republican Party could suffer significant defections if it continues on its current course.  The public soul-searching from some Republican politicians and pundits is long overdue, of course, but it is also an important moment in which we can assess whether there is anything more than fear of electoral disaster motivating their statements of supposed principle. As frequent readers of Dorf on Law might recall, I have long been fascinated with the question of why so many people continue to stick with the Republican Party.  This is especially important because one wants to believe that most people do not share the views -- by which, to be very clear, I mean the vitriolic anger and hatred -- that the party's candidates and officeholders at all level of government hav

by Michael Dorf During Tuesday's  Republican Presidential Debate , New Jersey Governor Chris Christie denounced President Obama as a "feckless weakling." This was not the first appearance of feckless in the current campaign. In May, South Carolina Senator Lindsey Graham--who apparently still exists and is rumored to be running for President-- called Obama feckless . And as early as February of this year, Texas Senator Ted Cruz described Obama's foreign policy as "feckless and naive." The Republican candidates may disagree with one another about many things, but they agree on one: Our current foreign policy is completely lacking in feck (from the Scots language and meaning roughly "effect" or effectiveness). With one exception, they want to increase the feck. The exception is Kentucky Senator Rand Paul, every Democrat's favorite Republican presidential candidate, but only so long as the topic is foreign policy. As Paul noted, Christie's

By Michael Dorf My latest Verdict column discusses an issue that has been in the background in all of the Supreme Court's affirmative action cases in the last dozen or so years, and which resurfaced during last week's oral argument in Fisher v. UT-Austin ( Fisher II ): Whether to characterize the Texas Ten Percent Plan (TPP) as "race-neutral" or "race-based." UT admits most of its class under the TPP, but then supplements the class with students admitted under a program of "holistic" review that includes race as a factor. Whether that use of race is narrowly tailored (and thus constitutional) depends in part on whether UT can achieve its goal of a diverse student body using just the TPP--but that is only a useful comparator if the TPP is itself race-neutral. As I explain in the column, most of the conservative Justices do not really have a good answer to the charge by Justice Ginsburg that--taking them at their own word regarding "color-

by Michael Dorf It's that time of year again--when I'm too busy grading exams and papers to blog as often as I like. Thus, I give you the exam I recently administered to my 1L constitutional law students. They had 8 hours to write exams totaling no more than 2,500 words, but you, dear readers, can take as much time as you like. ------------------------------------------------------------------------------------------------------------------------ The following facts apply to all questions, except where otherwise noted. In November 2016, Carly Fiorina is elected President of the United States, while the Republican Party strengthens its majorities in the Senate and House of Representatives. Making good on a campaign promise to “use all lawful means to combat the scourge of abortion,” in March 2017, President Fiorina’s Attorney General, Chris Christie, seeks and obtains a federal grand jury indictment of Dr. Jill Barbary, for allegedly committing first-degree murder in viola

by Michael Dorf Dramatis Personae : Corey Lewandowski: Campaign Manager Donald J. Trump: Former Buffoon; Current Dangerous Racist Demagogue Nameless aide: Not a speaking part Scene : Inside a preposterously opulent hotel suite. DJT:  Corey! Corey! Try one of these sausages. They're the best. Uhm, when I'm president we'll hire the chef at this place. He's a genius. What is this stuffed with? Veal? Lamb? Golden Retriever puppy? It's awesome. So tender! Wow. Just wow. CL: Sir, I need to talk to you about the Cruz tweets. DJT: I thought we did that already. CL: We did, sir, but he didn't take the bait. He's now leading us by 10 points in Iowa. DJT: Those people are idiots! I'm much better looking than that sweaty Canadian. CL: That's true, sir, but apparently the idea that you have the wrong temperament for the White House is starting to resonate with the voters. DJT: What? What the hell gave them that idea? The people who run thi

By Michael Dorf Justice Kagan is recused in Fisher v. Univ. of Texas at Austin  ( Fisher II ), the SCOTUS affirmative action case that was argued on Wednesday.   Consequently, going into the argument, the best that the university could realistically hope for was a tie: a 4-4 ruling with Justice Kennedy joining the three remaining relatively liberal Justices to affirm the Fifth Circuit's grant of summary judgment in favor of the defendant UT tying the four most conservative Justices to reverse that decision and instead grant summary judgment for Fisher. Under a rule dating to the early nineteenth century, the result of a tie would be that the lower court decision would be "affirmed by an equally divided court." The case would set no precedent but the Fifth Circuit ruling would remain. During the oral argument , however, a third possibility emerged. At a number of points, Justice Kennedy suggested that perhaps the right result would be to remand to the district court ei

by Neil H. Buchanan My latest Verdict column, published yesterday , addresses a question that has been bothering me for some time: Why do the self-styled tough guys of the Republican Party (both officeholders and their hyper-wealthy backers) put up with Donald Trump?  After all, these are people who think that they alone know how to fight and win in difficult situations, as opposed to the supposed weakness of Obama and his fellow Democrats. Part of the answer, of course, is that it is easy to look tough when you choose your victims strategically.  Voting to take food away from poor children, while talking about "tough spending decisions," is easy to get away with, at least for people who have no conscience.  Republican tough-guy heroes like Rudy Giuliani and Chris Christie rose to national prominence by yelling at reporters (who pretty much have to take that kind of abuse) and constituents (in town hall environments completely controlled by the bully).  Christie's Yo