Dorf on Law

by Michael Dorf My Cornell Government Department colleague Sid Tarrow and I are in the process of putting the finishing touches on a draft of a paper that puts the emergence of fake news in historical perspective, while examining the role that Supreme Court free speech case law and state law play in simultaneously discouraging investigative journalism and encouraging fake news. I'll have more to say about that paper when we are ready to release the draft. The paper with Prof. Tarrow describes the legal, technological, and cultural forces that give rise to fake news but does not propose a policy response or evaluate others' proposed responses. In this post, I want to offer a few thoughts on one of the responses to fake news: efforts by social media websites, especially Facebook, to identify fake news as fake. Efforts to label fake news fake raise potential free speech objections. They don't raise First Amendment objections, obviously, because Facebook is not the govern...

by Michael Dorf My latest Verdict column discusses the two laws recently enacted by the Republican-dominated North Carolina legislature stripping the Democratic Governor-elect of some of the key powers enjoyed by the departing Republican Governor. One of the new laws also limits the jurisdiction of the state supreme court, which--not coincidentally--is about to have a Democratic majority. I mostly focus on potential challenges under state law, noting also that the law could be vulnerable to a federal challenge under the Voting Rights Act. Here I want to consider possible federal constitutional challenges. I'll begin by assuming arguendo that the "real" rule in North Carolina is that Democratic governors have fewer powers than Republican governors. Below I relax that assumption, but for now, it will simplify the analysis to imagine that the law in North Carolina defines the powers of the governor as weaker for Democrats than for Republicans. Is that a violation of the ...

by Neil H. Buchanan At the end of a truly horrible year, any reason to avoid thinking about American politics is welcome.  For those of us who are public policy junkies, however, it is difficult to find topics that do not somehow eventually circle back around to our broken political system .  Happily, The New York Times recently gave us the gift of a truly terrible op-ed. When I say that the op-ed in question is terrible, however, I mean that in the most fun sense possible.  There have always been bad op-eds, and some of them advance truly dangerous views.  Some, however, are so poorly reasoned that they are actually entertaining and even paradoxically thought-provoking.  And thus we have " Google Wants Driverless Cars, but Do We? " The op-ed attacks driverless cars, or government support for driverless cars, or in any event something about driverless cars.  The author is identified as a lawyer who works for an automobile-oriented publication. ...

By Eric Segall History may well regard 2016 as one of the most significant years in the history of the United States Supreme Court. Here are my top ten SCOTUS stories of the year in reverse order of importance. 10) Merrick Garland Nominated to Fill Justice Scalia’s Seat : Perhaps the most qualified person in the United States to be on the Supreme Court is nominated by President Obama to replace the late Justice Scalia. Merrick Garland is the Chief Judge of what is considered the second most important court in the land; he is known by Republicans and Democrats as a man of great integrity and character; and in some ways (like criminal procedure) he actually may be to the right of Justice Scalia. He may be the most moderate person President Obama could have nominated. But, as we all know, this story ends badly (see No. 1 most important story). 9)  One Person One Vote, Not One Voter One Vote               ...

By William Hausdorff This is the time of the year to reflect on the big events of the year.   For those of us who live in Brussels, certainly the vicious bombings in March at a metro stop 10 minutes away from my home and at the airport (15 minutes away) stand out.   Fortunately, no one I knew personally was hurt.   But the Belgian flag is once again flying at half-mast over the nearby city hall building, this time because of the murderous attack on the Berlin Christmas market. Sadly, these tragic events only temporarily overshadow the most-painful-of-all US presidential elections. It was easy to be overwhelmed by the singularity and bizarreness of the recent Presidential campaign.   But US history is filled with nasty, colorful campaigns; perhaps they are actually the norm. The election itself may turn out to be one of the most momentous elections ever, but it’s worth recalling that each of the past 3 or 4 Presidential elections truly seemed, at the time, to...

by Michael Dorf "My fellow Americans. It's so so great that the Electoral College has done its duty by electing me following my historic, tremendous victory in November. By the way, I totally could have easily won the popular vote by a landslide if it would have made any sense for me to campaign in California or my home state of New York, while Hillary would still have been wasting her time in the wrong states. And anyway a lot of people, it could be most people actually, are saying I really did win the popular vote, so thank you. Thank you. "Now I want to address the concerns some sore losers have raised about alleged attempts by Russia or maybe China or some guy sitting in bed who weighs 400 pounds to influence the election by releasing John Podesta's risotto recipe. "First of all,  so what? Lots of stuff got released during the campaign. Some of it was supposed to be super-damaging to my campaign, but the American people saw it for what it was, just lock...

by Neil H. Buchanan The Democrats have spent quite a bit of the time since November 8 asking themselves what they did wrong , how they lost the presidency even after they had been given the gift of what seemed like the world's most beatable opponent.  More importantly, what should they do moving forward? Much of the immediate post-election discussion centered around a baseless theory attacking "identity politics" as the cause of Clinton's loss.  Fortunately, that moment seems to have passed (although one must never underestimate the staying power of a bad idea), and the conversation has now turned to whether the Democrats are simply too timid. This was captured best in a recent column by David Leonhardt titled " Democrats Had a Knife, and the G.O.P. Had a Gun ," which The New York Times published shortly after running " Buck Up, Democrats, and Fight Like Republicans ," by Dahlia Lithwick and David S. Cohen.  The common theme running through...