Dorf on Law

by Sherry F. Colb For my Verdict column this week, I discuss a disparity in abortion arguments.  The disparity is that the reasons that most people have for deciding to terminate a pregnancy (economic reasons, relationship reasons, emotional reasons) are different from the reasons that pro-choice feminists have for defending the right to terminate a pregnancy (the bodily integrity interest of the woman in being free from an unwanted physical occupation, sometimes coupled with the view that a fetus is less than a full person). Although the reasons occasionally align more precisely--such as where a woman seeks an abortion to save her life but wishes that she could have the baby--in general, a woman who seeks an abortion truly wishes for the embryo or fetus to die (rather than just to be free of the unwanted physical intrusion). Yet despite the disparity, I argue that the fact of the physical intrusion renders the woman's reasons for wanting to terminate less important than they wo

by Neil H. Buchanan It is by now old news that Donald Trump's business practices have, shall we say, raised a few eyebrows.  He not only has a history of suing and being sued beyond anything that has been seen before in U.S. politics, but he is completely unrepentant about the bare-knuckle tactics that he uses. For example, multiple news sources (for example, here ) have reported that Trump has a long track record of signing contracts and then renegotiating after the fact to try to change the terms of the deal, after the other party has already performed as promised. I recently discussed Trump's approach to contracts in the context of his dispute with Ted Cruz and "the pledge" that all of the Republican presidential candidates signed to endorse the eventual nominee.  Here, I want to discuss the more general question of what Trump's bellicose approach to his business practices suggests about the way that he would govern. Trump might be saying that it would

{Note from Michael Dorf: On Verdict , I have a new column analyzing the difference between "law and order" as used by the likes of Donald Trump and the "rule of law." This guest post by William Hausdorff seems an appropriate companion piece.    In case you missed it, I highly recommend Hausdorff's  July 4th guest post , where you can also find biographical info.} ----------- Trump, the Salem Witch Trials, and Alternative Universes by William Hausdorff One doesn’t have to be an American exceptionalist who extols America’s unique place in the world to recognize that the Declaration of Independence and the Constitution rank among the great achievements of the Enlightenment. The explicit assumption underlying their development was that people, acting rationally, had the ability and duty to control their own fate. But these achievements stand in stark contrast to what had occurred only 80 years earlier, in one of the darkest chapters of American history, th

by Michael Dorf Last week, Sherry Colb and I were guests on the radio show Main Street Vegan , hosted by Victoria Moran. The episode is now available as a podcast . The interview covered various of the subjects we address in our book Beating Hearts: Abortion & Animal Rights . Here I want to focus on just one of those topics to expand upon a question that arose during the discussion. Picking up on a topic addressed in chapter 4, at roughly the 46-minute mark of the show, Victoria asked us what we thought about the argument that death qua death--as opposed to suffering--does not harm those animals that lack "life plans." I began to answer that the argument is made by Peter Singer in his landmark 1975 book  Animal Liberation  and in other places and that a related argument is made by Tom Regan in his 1983 book The Case for Animal Rights . As I was just starting to say that Regan uses different terminology from Singer, Sherry jumped in to make clear to listeners that Rega

by Neil H. Buchanan Anyone who was looking for a change of " tone " (or something like that) after the Republican convention was quickly disabused of the idea that anything can change in the world of Donald Trump.  The legitimacy conferred by being a major party's nominee is evidently not enough to alter Trump's bulldozer approach to politics. Not only did Trump attack Senator Ted Cruz during a bizarre event the morning after the convention ended, but one of Trump's sons went on a Sunday talk show and reprised his father's fringe conspiracy theory about unemployment rates .  The post-convention Trump campaign, in other words, looks exactly like the pre-convention Trump campaign.  I can hardly blame anyone for hoping for something different, but this truly was wishful thinking. But before the Democratic convention gets rolling, and before Trump issues his next fusillade of outrageous comments that will send fact-checkers into a frenzy, it is worth thin

By Eric Segall The 2016 Presidential election will almost certainly have a major and dramatic impact on the political direction of the United States Supreme Court. Donald Trump has promised to nominate conservative Justices, and the list of potential nominees he made public is consistent with his pledge. Hillary Clinton, if elected, would of course nominate Justices with more liberal or progressive values. The difference is significant as there are three Justices older than 75 in addition to Justice Scalia's vacancy. Thus, the next President may well appoint two to four Justices. The future of campaign finance reform, voting rights, the scope of freedom of speech and religion, executive power, and the rights of criminal defendants, among many other important issues, are at stake. Even apart from ideology, however, the 2016 election provides important lessons about the nature of our highest Court and the harmful effects of life tenure. First, let's assume that Trump wins. I

by Neil H. Buchanan "Who would even think such a thing, much less decide that it was a good idea to say it out loud in front of millions of viewers?"  As I followed coverage of the Republican National Convention, I asked myself that question over and over again.  As the doom-and-gloom oratory escalated, and the vilification of opponents spun out of control, it was a week of wonderment of the worst sort.  Not surprising in its content, I suppose, but shocking in its intensity. One of the most amazing things that I heard, however, was not yet another speaker making wild claims about immigrants or minorities.  It was when Michael Steele, the former chair of the Republican National Committee, appeared on "The Daily Show with Trevor Noah" on Tuesday evening.  In a congenial interview otherwise notable for Steele's refusal to condemn Hillary Clinton, Steele expressed consternation about the candidacy of Donald Trump.  More than consternation.  Embarra

by Michael Dorf Tonight is the grand finale of the Republican National Convention. To preserve my mental health, I have watched almost none of it. In the old days, that might disqualify me from commenting on the proceedings, but no longer. Donald Trump hasn't read the Constitution, but that didn't stop him from promising to defend all of it, even the parts that don't exist . In the age of Trumpiness, I seem perfectly suited to comment on the Convention thus far. Here is what happened: 1) The Dump Trump movement fizzled after a first day of contentiousness, so yes, Trump is actually the GOP nominee. All around the country, people are Googling "how to cook hat." 2) There were loud speeches by celebrities and politicians whose sell-by dates have long passed (Scott Baio, Rudy Giuliani), as well as from others whose expiration dates are rapidly approaching (Duck Dynasty guy, future over-priced security-firm consultant Chris Cristie). 3) Each night has a differe

by Neil H. Buchanan Many Democrats are anticipating a big night on November 8.  Although the inevitable noise in the polls surely gives Democrats heartburn, the embarrassing spectacle of the Republican National Convention in Cleveland this week must surely be putting smiles on the faces of Democratic strategists and candidates (and their supporters) everywhere. Although there is still little reason to expect that the House will flip to the Democrats this year, the odds certainly look promising for Democrats to retake the majority in the Senate.  As far as it goes, that makes 2016 look like a good year for the Democrats, which was probably going to be a good year even without the Republicans' full-on meltdown during the presidential nominating process this year. But even if things go very well for Democrats in the general election, what happens next?  In my new Verdict column today , I describe how the Democrats' majority control of the Senate will be short-lived.  The un

by Michael Dorf In an insightful  new essay in The Yale Law Journal Forum , Prof. Laurence Tribe argues that separation-of-powers doctrinal analysis over the last six-plus decades has been limited by the elegant but incomplete tripartite framework set forth in Justice Robert Jackson's concurrence in The Steel Seizure Cas e. Recall that Jackson distinguished three categories of cases: (1) The president has maximum power when Congress expressly authorizes presidential action, thereby adding its delegated powers to the inherent powers of the president; (2) when Congress is silent, the president can only exercise his own inherent powers, although there is, in Jackson's phrase, "a zone of twilight" in which "congressional inertia, indifference or quiescence" can enhance presidential power; and (3) the president's power is at "its lowest ebb" when the president acts contrary to the "express or implied will of Congress." While noting the a

by Michael Dorf The failed coup d'etat in Turkey is not a metaphor, nor is it chiefly an object lesson for the rest of the world. It is chiefly a very serious threat to democracy and order in Turkey. In thinking about the consequences of the coup attempt and its aftermath, my first concern is for the safety and wellbeing of the people of Turkey. There is also reason to worry about the implications for the rest of the world. The internecine struggle for control of the military comes at a time when Turkey faces extraordinary military and humanitarian crises due to the civil war in neighboring Syria and amidst renewed hostilities between the Turkish military and the PKK. The danger of spillover from this NATO ally is serious. An under-appreciated aspect of the contercoup in Turkey is its potential impact on civil liberties. Long before the failed coup, the Erdogan government  showed  that while it was elected, it was hardly supportive of liberal democracy. There is thus a very s

By Steve Sanders  [Steve Sanders is Associate Professor and Henry H.H. Remak Distinguished Scholar at the Indiana University Maurer School of Law.] Thanks to Mike for allowing me the opportunity to reply to my friend Eric Segall's thoughtful post  about Justice Ginsburg and Donald Trump. In an essay last week for the Huffington Post , I argued that erasing the line between jurists and politicians would be a bad idea for progressives.  In an era of gerrymandered right-wing domination of Congress and most state legislatures, we need a judiciary with the respect and authority to protect rights and liberties.  Lower courts do much of this work.  Justice Ginsburg's indiscretion, I suggested, endangered not only the Supreme Court but the legitimacy of an independent judiciary generally. Eric is comfortable with Supreme Court Justices commenting on electoral politics.  It is healthy, he says, for them to be "open and transparent about the reasons, all the reasons, for the

By Eric Segall How does a reliably liberal and feminist Supreme Court Justice get the New York Times Editorial Board, the Washington Post Editorial Board, and approximately 95% of Supreme Court commentators and law professors (most of whom reside on the left) to take sides with Donald Trump and against her? Unless you have been on a remote desert island for the last week (with no internet service), you know the answer is by that Justice speaking out on a matter of national politics (in this case the upcoming election and Trump's potential to basically destroy both the Court and our country). Of course, Justice Ginsburg  walked back  the comments yesterday by saying that they were "ill-advised," that she "regretted making them" and that judges should avoid "commenting on a candidate for public office." The Times said she shouldn't have flung herself "into the mosh pit" of national politics while progressive legal scholars like my fri