Dorf on Law

By Sherry Colb In my Verdict column for this week , I write about the dilemma with which Zika virus has confronted those of us who think about abortion in moral terms:  Is it morally acceptable to terminate a late-term pregnancy to avoid giving birth to a child with catastrophic brain abnormalities?  I suggest in my column that because of the stage of pregnancy at which at least some of these abortions will take place, the choice begins to look more like euthanasia than like abortion. I will not here attempt to tackle the question whether euthanasia of babies afflicted with severe and profound birth defects is morally permissible or whether it ought to be legal on occasion.  I do, however, want to relate two anecdotes that I heard from two people born in the 1960's (the same decade in which I was born).  One said that her parent told the doctor that if there was something wrong with the baby at birth, the doctor should not encourage the baby to breathe.  The...

by Neil H. Buchanan [Note to readers: I published a new Verdict column this past Friday, August 26: Trump Throws Off the Last Pretense That His Campaign Is Not About Bigotry .  Our standard practice on Dorf on Law is to write a companion post when we publish a new piece on Verdict , unless we feel that we have said all that we care to say about the topic.  I in no way claim to have had my last say about Trump's bigotry, but I have chosen not to devote today's Dorf on Law post to that issue.  I encourage our readers to take a look at my Verdict column at their leisure, and I will certainly return to Trump's retrograde views in future writing.] I became a vegan in the summer of 2008.  Each summer since then, I have written what I now call my a veganniversary post, marking an important turning point in my life by discussing various social, intellectual, economic, legal, and other issues related to veganism.  Although my post last summer indicated that I wo...

By Eric Segall I am 58 years old and in the last two years have experienced more death and serious disease among my friends and family than in my previous 56 years combined. My family and I have lost close ones ranging in age from five (a friend of my two youngest daughters) to eighty-five (my Mom). One friend’s spouse, a perfectly healthy and fit 40ish mother of two small children went swimming and a few hours later developed strange severe symptoms and then died just a few weeks later from unknown causes. A 58 year old friend had a heart attack in her sleep and never woke up (she had never had heart issues before). Last weekend, I visited a dear friend who recently learned he has ALS. He has a hard time walking or using his hands despite just 18 months ago being physically fit and athletically active. I could go on and on with other examples but you get the idea. So all of this has made me think a lot about life and death recently. In light of the Supreme Court’s summer recess,...

by William Hausdorff This political season seems to consist of an unending series of unimaginable statements and behaviors—can you top THIS?--on the part of the Donald Trump campaign. The latest are Trump calling into question the legitimacy of the coming presidential election, and implicitly advocating violence against his opponent. We are alternately fascinated and stunned. But why is so much of the public repeatedly shocked by what he says? I wonder if it is because of a restricted mindset that doesn’t take into account how a significant portion of the population, both in the US and abroad, see the US government and, in fact, reality. In 2003 I was enjoying cocktails with several European pediatric infectious disease specialists at an international meeting when I was jarred by a colleague’s seemingly flippant comment about the 9/11 attacks. It prompted me to spontaneously and informally poll the physicians from the 7 or 8 different countries present. I was shocked to learn t...

by Michael Dorf Earlier this week, the Missouri Supreme Court held that most stealing offenses are not felonies under state law; they are only misdemeanors. Really? Yes, really. The case is an example of textualism run amok. Lest you think I'm exaggerating, check out the opinion in State v. Bazell . The defendant committed two home burglaries in a single day. From the first home, she stole a pistol, a rifle, a laptop, a jewelry box, a suitcase, and two pairs of tennis shoes. (I know, you'd think running shoes would be better for a burglar, but I guess burglars can't be choosers.) From the second home, the defendant stole three rings valued at $8,000. All in all, a pretty remunerative day. And surely a felonious day, right? Not according to the MO S Ct. The defendant argued that double jeopardy barred her being charged for two counts of stealing firearms because she stole both firearms in one burglary. That's an interesting claim, but the MO S Ct didn't reach it...

by Neil H. Buchanan It is hardly news that the Trump campaign traffics in conspiracy theories and paranoid fantasies.  Trump, however, is not actually more extreme in this regard than many people on the American right in the 21st Century.  He is merely more shameless about it. More than a year ago, when the idea of Donald Trump as the Republican Party's nominee was still eliciting howls of laughter, I wrote about the spread of paranoid political fantasies among Republicans in the United States.  Drawing on the historian Richard Hofstadter's classic 1964 essay, " The Paranoid Style in American Politics ," I noted that the arch-conservative takeover of the Republican Party has coincided with an embrace of full-on conspiracy theorizing. While many Republican leaders claim that Donald Trump is an outlier, therefore, this is yet another area in which the real problem for Republicans is simply that Trump is doing what they have been doing for years, but he does it mo...

by Michael Dorf My latest Verdict column pitches Instant Runoff Voting (IRV) as an idea that both small parties and the two major parties should support. Don't know what IRV is? Read the column. The basic idea is that IRV makes it possible to vote for a minor-party candidate without risking playing spoiler, because if he or she (as expected) does poorly, your second-choice (or successive-choice) candidate gets your vote after a reallocation. Reducing the likelihood of spoilers, I argue, is good for both third parties and major parties. In this post, I want to look at the long-term prospects of the two currently most viable third parties: the Libertarians (currently running Gary Johnson for president) and the Greens (currently running Jill Stein). I'll focus on the long term rather than their impact on the 2016 election, because I regard the current election as highly unusual. Much if not most of the support we are now seeing for Johnson and Stein is rooted in opposition to...

by Neil H. Buchanan How does a right-wing conspiracy theory work?  Why do Republicans insist on pursuing even obvious dead ends?  One answer to those questions is that they have a virtual army of people who are willing to push these stories relentlessly in many directions, and they know that they can sometimes get useful headlines even from misleading underlying stories. Thus on Monday of this week we saw this headline on a tax blog : "The IRS Scandal, Day 1201: Larry Tribe Says 'IRS Is Engaged In Unconstitutional Discrimination Against Conservative Groups And Must Be Halted'—'Inexcusable Abuse'." How did a liberal lion like Harvard law professor Laurence Tribe get pulled into this mess, seeming to back up a right-wing talking point? He did so by being intellectually open-minded and generous, but apparently without being aware of the underlying conspiracy theory that his words seemed to confirm. It all makes for an interesting story, requiring a bit of b...

by Michael Dorf Two recent unrelated news stories raise interesting questions about the legitimate scope of leverage in dealings with and by the government. One concerns Aetna's decision to pull out of the ACA exchanges in eleven states in which it has been offering insurance on those exchanges-- possibly in retaliation for the Justice Department's lawsuit blocking Aetna's planned merger with Humana. If that is what happened, it could be said that Aetna blackmailed, or extorted concessions from, the government. The other story concerns the revelation that the State Department delayed payment of $400 million owed to Iran for at least several hours in order to ensure that Americans held captive by Iran were released, a move that critics of the Obama administration have said amounted to paying "ransom." Was there anything improper about these arrangements? Aetna/Shmaetna The facts of the Aetna case are amenable to two readings. On one reading, Aetna was using...

by Neil H. Buchanan No president has ever lived up to the hopes and expectations of his supporters.  Even people who are clear-eyed realists cannot help but indulge in a bit of excessive optimism during an election campaign, fueled by the energy of supporting one candidate over another as well as the sense that elections can sometimes be transformative. The hard reality is that nothing ever goes as well as people hope it will.  Even so, it matters a great deal why and how a president ends up disappointing his or her supporters.  In Hillary Clinton's case, it matters even more, because so many people who will vote for her this year nonetheless say that they are worried about whether she is truly committed to the issues in which they believe. In a recent column , I argued that any future disappointments during a Clinton Administration will not be due to a "mandate problem."  That is, contrary to some recent hand-wringing among liberals, it does not matter whether...