Dorf on Law

by Michael Dorf The Autumn 2016 issue of the Journal of Legal Education includes a book review by me of Judge Richard Posner's book Divergent Paths: The Academy and the Judiciary , along with a reply by Posner . Overall, my review of Posner's book is mixed. Posner's reply begins with a gracious opening paragraph. It then argues that my review is unfair and wrong. My review praises Posner as one of the greatest judges in U.S. history. I say that the book is "enormously entertaining and contains numerous nuggets of sound practical wisdom." I also praise Posner's basic decency as exhibited by his recommendations for the reform of supervised release of persons who have served their prison terms and various other positions he takes. I then discuss what I regard as the book's problems, including its cranky tone, its unfairness to particular scholars and to an entire branch of the legal academy (legal writing instructors), and the tension between Posner...

by Neil H. Buchanan I wrote my analysis of this week's presidential debate after shutting myself off from the media's reactions to the event, because I wanted to ignore the campaigns' attempts to spin the results and to form my own opinion without being influenced by the commentariat's insta-consensus. As it happens, my conclusion that Trump lost the debate quite badly ended up being the nearly unanimous assessment.  That is more good than bad, I suppose, because while I do not follow the crowd in these things, I was relieved to see that this was not one of those debates where the media commentary immediately went off the rails. But I am worried about a sub-consensus that has now emerged in which non-conservative pundits are claiming that Trump was doing quite well in the early part of the debate, which focused on economics and international trade. That analysis is not merely wrong, but it shows how easy it will be for Trump to snow the pundits in the two remai...

by Sherry F. Colb In my column on Verdict this week , I discuss the Indiana court of appeals case of Zanders v. Indiana , which held that police violate the Fourth Amendment if they obtain locational history data about a cell phone from the cell phone user's provider, absent a warrant.  Though the court tried to reconcile its ruling with existing case law, its strongest argument was that privacy would be severely compromised by a doctrine permitting police to gather locational history data about a person without a warrant. In this post, I want to emphasize something I mentioned in the column:  if gathering locational history data is not considered a search at all (which it appears not to be, under existing Supreme Court doctrine), then innocent people may be subjected to such gathering for no reason at all or for an affirmatively bad reason.  Police may simply decide that they are curious regarding the whereabouts of particular politically unpopular people or groups a...

by Neil H. Buchanan Donald Trump's loss in the first presidential debate on Monday night was predictable.  Jane Goodall, the expert on primate behavior, said earlier this year that Trump's behavior during the Republican primary debates reminded her "of male chimpanzees and their dominance rituals."  Unable to change his innate patterns as he faced off against Hillary Clinton, Trump looked increasingly ridiculous as the night wore on. Before getting started, I should mention that I have not discussed the debate with anyone.  Further, I have refrained from watching commentators or campaign surrogates on TV, and I have not read any reactions or fact-checking articles regarding the debate.  For all intents and purposes, I have sequestered myself in order to take some time to analyze the debate before writing down these reactions. I take this approach because I have always found it infuriating how quickly groupthink takes over in presidential debate commentary....

by Michael Dorf Tonight is the much-anticipated first of three presidential (and one vice-presidential) "debates" between the Republican and Democratic candidates. I have put the word in quotation marks to reflect the fact that, as Jill Lepore explains in an excellent recent article in The New Yorker , the presidential debates are more like simultaneous press conferences than conventional debates. Having said that, I hasten to add that while I do not think the format for tonight's event is ideal, I also don't think that a conventional debate is ideal either. Lepore quotes various people who distinguish between presidential debates and Oxford-style debates. In the latter, one side takes the affirmative and the other side takes the negative of some proposition. In principle, this approach could be adapted to presidential debates. For example, we could have a debate on the proposition "the next president needs to build on the accomplishments of the Obama admini...

by Neil H. Buchanan Like Professors Colb and Dorf, I write a biweekly column for Justia's Verdict legal commentary website.  Our standard practice is to write an associated Dorf on Law post the same day that a Verdict column is published, usually to dig more deeply into an issue raised in the new column or to pursue a logical next step in the analysis. This week was different for me.  I wrote two Verdict columns in which I discussed different aspects of economic policy, whereas my one Dorf on Law post was on a different topic entirely (" Trump is Weakness in an Uncertain World "). For those Dorf on Law readers who might be interested, my Verdict columns from this week are: Trump’s Economic Policy Announcements Keep Changing, But They Never Get Better and Good Economic News Is Good for Clinton and Bad for Trump . Enjoy!

By William Hausdorff What image does the US have abroad these crazy days? And do we care? In national elections, people are naturally inwardly focused on what the election may mean for them, their families, and their communities. But as viewed from abroad, the national narcissism appears especially intense this year. American politicians of both parties used to care more about that image, or at least said they did. A major component of the Cold War policies pursued by all American governments was the need to “look strong” and “fulfill our commitments to friends and allies.” Many commentators have noted that although President Lyndon Johnson recognized early on that the Vietnam War was unwinnable, he felt so trapped by the need to project a certain image of the US that he ended up escalating the War with the known disastrous consequences. Richard Nixon’s similar preoccupation with “peace with honor” served as a pretext to continue to prosecute the War for another four years, notw...

by Michael Dorf Yesterday, a panel of the U.S. Court of Appeals for the Second Circuit-- Chief Judge Katzmann , Judge Hall , and Judge Wesley --heard oral arguments here at Cornell Law School rather than in their usual courthouse at Foley Square in lower Manhattan. Continuing the festivities, today I will moderate a discussion with Judge Katzmann. I plan to ask some questions and then some follow-ups depending on what Judge Katzmann says, before opening the discussion up to the audience. Of course there are standard questions one asks of a judge in this sort of setting, but I'm going to try to focus on questions that arise out of Judge Katzmann's 2014 book Judging Statutes . The book is more or less a defense of purposivism in statutory interpretation--and especially the use of legislative history as a means of construing vague or ambiguous legislative language. Conversely, the book critiques textualism. Judge Katzmann's excellent and highly readable book illustrates hi...

by Michael Dorf In my new Verdict column , I consider the various ways in which the future path of SCOTUS jurisprudence does not depend on the outcome of the 2016 presidential and Senate elections. For what I imagine are a majority of DoL readers and, indeed, for myself, the column is intended partly as a form of therapy. There are many potentially terrible consequences of a Trump presidency, should it come to pass, but, my column suggests, a terrible Supreme Court is not really one of them. Trump would almost certainly nominate a conservative to fill the current vacancy and additional conservatives to fill future vacancies. That, in turn, could lead to a conservative Supreme Court for a generation. And that, in my view, would be quite bad on a range of issues I care about, including abortion, affirmative action, campaign finance regulation, federal regulatory power, gun control, and more. But so far as the Supreme Court is concerned, Trump poses no greater threat than would a generi...

by Neil H. Buchanan This past Sunday, in the immediate aftermath of the scary (but thankfully non-lethal) terror attacks in the U.S., one of Donald Trump's surrogates said : "Trump is strength in an uncertain world."  This was, in its way, completely to be expected, because Trump has always tried to exploit fear, especially when the public psyche is most vulnerable.  "You're scared.  I'm strong.  Let me do what I want." As unexceptional as that comment was under the circumstances, however, its simplicity cleared away the fog and exposed the fraud that Trump has tried to perpetrate on the American people.  Forget the ridiculous economic proposals, the misogyny and bigotry, the serial lies, and all the rest.  The biggest fraud of all is this preposterous idea that Trump is the strong leader we need who will make the world stop being so scary.  That is not merely false.  The man is actually weakness personified. Trump is a bully surrounded by b...