Dorf on Law

by Michael Dorf Last week, news surfaced that Nevada Republican Governor Brian Sandoval was one of the candidates the Obama administration was vetting for a possible SCOTUS nomination. Sandoval, who served for about four years as a federal district judge (having been appointed by President George W. Bush) was seen by some as a cagey choice for Obama: Rejecting or refusing to consider a moderate member of their own party would make Republican Senators look especially intransigent. At the same time, however, liberals longing for a chance to transform the Court were understandably worried that by naming a moderate with unknown and potentially quite conservative views on a range of issues, President Obama would be squandering a once-in-a-generation chance to shift the direction of the Court decisively. The conversation on Sandoval then ended fairly abruptly when Sandoval took himself out of the running. Who's next? I don't have a crystal ball or inside information, so what foll...

by Michael Dorf An "Open Letter to the Law School Community " from various law students and legal scholars expresses concern about the Milbank law firm 's withdrawal of funding for student activities at Harvard Law School following complaints to the firm that the firm's name appeared as a funder of an event at which controversial positions were going to be espoused. I share the view of the signers of the Open Letter that outside funders should not be able to use financial leverage to stifle free speech on campus. I also have great respect for many of the Open Letter's signers, including various of my current and former distinguished colleagues. Nonetheless, I think the letter incorrectly describes Milbank's actions as tantamount to censorship. I'll begin with a very brief summary of the facts as described in stories in the Harvard Crimson and New York Times . In 2012, Milbank pledged to give HLS $200k/year for five years to support various student act...

by Neil H. Buchanan My new Verdict column, " The Kasich Moderation Burlesque ," is the second in what surprisingly turned out to be only a two-part series debunking claims that some candidates in the Republican field are "moderates."  When I wrote the first column two weeks ago, " Republicans Will Not Seriously Try to Sell Marco Rubio as a Moderate, Will They? " I assumed that I would at least have Jeb! to kick around for another few months, but that was not to be . As I looked at the information that my research assistants had gathered for me regarding Kasich's stands on issues (as opposed to his attempts to reinvent his image as an aw-shucks regular guy), I decided not to include any discussion of Kasich's views on Social Security in the Verdict column.  This was in part because there were so many other issues on which to expose Kasich's immoderation -- so many that I filled a column without even mentioning Kasich's having signed a b...

by Michael Dorf My Verdict column for this week addresses the claim by Senator Mitch McConnell and other Republicans that confirming a nominee of President Obama to the Supreme Court would deprive the American people of a voice in the selection process. I previously termed this claim absurd, and I don't back down in the column. In this accompanying post, I want to pull back momentarily from discussing Justice Scalia's successor to linger over the man himself--and where he fits in the story of the conservative movement over the last five decades. Antonin Scalia was a seemingly unlikely champion of the common folk--an opera-loving, Harvard-educated personal friend of people in the highest places who, when criticizing his colleagues for their supposed elitism, once  put the point in this most un-common way: "When the Court takes sides in the culture wars, it tends to be with the knights rather than the villeins--and more specifically with the Templars." Yet in def...

by Neil H. Buchanan Three weeks ago -- more than a lifetime in the context of presidential politics early in an election year -- I published " The Jeb! Comeback Story, Coming Soon to a News Outlet Near You? " here on Dorf on Law .  ( Newsweek liked the post and re-ran it under the much better title: " Jeb’s White House Run Is Over. Hold On, Not So Fast . . . .")  With Bush now having dropped out of the race, it is time both to celebrate -- I did, after all, note in that post that "I truly despise" Bush -- but also to consider why my prediction of Bush's ultimate success was so wrong. I could, I suppose, try to weasel out of my prediction by pointing to the question mark at the end of the title of my post.  And I even included a disclaimer: "Rather than calling this an affirmative prediction, maybe it is more accurate to say that I will not be in the least bit surprised if Bush makes the comeback that I described above." But that would...

by Ashutosh Bhagwat Following the untimely passing of Associate Justice Antonin Scalia, the nation is engaged in a vigorous debate over whether the Republican-controlled Senate should confirm President Obama’s nominee to replace Justice Scalia on the Supreme Court (President Obama has made it quite clear that he intends to nominate a successor).  Senators (and presidential candidates) Ted Cruz and Marco Rubio have both argued strongly against even voting on a replacement nominated by President Obama, leaving the decision for the next President.  Senate Majority Leader Mitch McConnell has also expressed this view, though other Republican Senators are waffling. The discussions about historical precedents have become frankly tedious (and entirely partisan).  They are also beside the point.  There is no doubt that the Senate has the power to refuse to vote on a nominee, or to vote down a nominee, for purely partisan reasons or to await an election.  And what pat...

By Eric Segall A few days ago, Eric Posner wrote an essay suggesting that, with Justice Scalia’s death, originalism as a legal theory will slowly fade away. Generally speaking, he wrote, law professors write “scholarship with the hope and expectation that their work will influence public policy.” But, with only one Justice remaining on the bench who proclaims to be a serious originalist (Justice Thomas), and given Thomas' “idiosyncratic” voting patterns, neither Supreme Court litigators nor the other Justices will spend much time making originalist arguments. Inevitably, assuming the next Justice is not an originalist, which is likely, the only audience left for originalists will be themselves, and in the long run the motivation to write for each other will not be sufficient to keep the originalism flame alive. Posner’s essay led to responses by Lawrence Solum, Michael Ramsey, and Jack Balkin.  I want to focus here on Balkin’s reply . Professor Balkin is one of our most inf...

by Michael Dorf Apple's resistance to the order directing it to develop software that could circumvent the encryption* on the iPhone of deceased San Bernardino killer Syed Farook cites two main objections. First, on policy grounds, Apple argues that orders such as this--that Apple "hack" one of its customers' phones--will, in the long run, do more harm than good. Apple and its various defenders across the tech and civil liberties world argue that a technology developed for the laudable purpose of breaking encryption on a terrorist's phone could leak into the hands of hackers and other bad actors (including other terrorists). In other words, Apple is not simply saying that privacy should prevail over security (although it is certainly saying that pretty loudly), but also that this sort of order would undermine security. I don't have a well-informed view about the merits of this argument, so I will leave it to others. Apple's second argument is more le...

By Neil H. Buchanan "We must change policy X for the good of our children and grandchildren!"  "Future generations are depending on us to do the right thing!!" As frequent readers of Dorf on Law know, much of my time over the past several years has been devoted to trying to understand what motivates such calls for intergenerational justice.  Philosophers have not reached agreement on whether there is any obligation at all from one generation to another, and even those who are willing to say that such an obligation does exist have not been able to articulate even the beginnings of a framework to determine who owes what to whom. Several years ago, the George Washington Law Review organized a symposium on the question of intergenerational justice.  Included in that volume is my original paper on the subject, What Do We Owe Future Generations? , along with responses to my paper by four scholars who generously engaged with the ideas laid out therein.  (Other papers...

by Sherry F. Colb My column for this week  is about a Second Circuit case, decided at the end of January, United States v. Allen .  In Allen , the court held that when police arrest a suspect who is standing inside the threshold of his home, the arrest counts as a "home arrest," even though the police are standing outside the suspect's home.  This is a question that has not yet come up before the Supreme Court, but I argue (as does the majority opinion) that an arrest of this sort invades the privacy of the home in the ways that home arrests generally do and that, accordingly, police should have to obtain an arrest warrant (as they generally do, prior to performing home arrests) before conduct a "threshold" arrest. As I concluded in my column, the Second Circuit made the right decision in this case by honoring the invaded vulnerability that occurs when police tell a person who is inside his home (and as is often the case, is not wearing shoes and has a child i...

by Neil H. Buchanan Professor Dorf and I have co-authored a new article, which is now available for download on SSRN and which we hope will soon be coming to a law review near you.  (Hello, articles selection editors!)  The article's title is "Don't End or Audit the Fed: Central Bank Independence in an Age of Austerity."  Among other intellectual treats, readers of the paper will learn what a "spandrel" is. Here, I will describe our motivations for writing the paper, as well as a few of its major points.  But first, here is the abstract: The Federal Reserve (“Fed”) is the central bank of the United States. Because of its power and importance in guiding the economy, the Fed’s independence from direct political influence has made it a target of ideologically motivated attacks throughout its history, with an especially aggressive round of attacks coming in the wake of the 2008 financial crisis and ongoing today. We defend Fed independence. We point to ...

by Michael Dorf On Wednesday of last week, Ilya Shapiro (of the Cato Institute) and I participated in a wide-ranging discussion of constitutional (and some other) issues raised by the presidential election campaign, moderated by Jeffrey Rosen (and available on the National Constitution Center website  as well as via iTunes ). As in the past when we have been paired together, Mr. Shapiro and I agreed on some matters, disagreed on others, and, at least as far as I'm concerned, the three of us had a very interesting conversation. The podcast runs about an hour. Thus, readers who are thinking about listening to it might wish to download it to their mobile devices so that they can multitask while doing so. Because the discussion preceded Justice Scalia's death, the discussion did not focus on appointments to the Supreme Court. Instead, we mostly considered issues raised by the presidential candidates. We talked about: populism (Trump/Sanders/historical precedents); the constitut...