Dorf on Law

by Michael Dorf In my latest Verdict column , I distinguish three risks that arise out of President-elect Trump's extensive business holdings: (1) That Trump will pursue his private interest at the expense of the public interest by, say, altering foreign policy or regulatory policy in exchange for favorable business deals from foreign governments or private actors, respectively; (2) that Trump and his family members will unjustly enrich themselves; and (3) that even the extensive appearance of corruption will spread corruption, which is a corrosive force. I argue that (1) and (3) are the bigger problems, not because I don't think Trump will use the power of the presidency to enrich himself and his family, but because I think the scale of damage from (2) is relatively small--at most a few tens of billions of dollars unjustly flowing into the Trump pockets. (I know, a billion here and a billion there and pretty soon we're talking about real money. I'm making a relative ...

by Neil H. Buchanan The new president-elect is acting as if he won a sweeping victory, even though precisely the opposite is true.  The question now is whether anyone can or will stop him from abusing power, given that he has never shown any inclination toward personal restraint.  How far could he go? In several of my writings over the past year, and in particular in two recent columns ( here and here ), I have argued that the formal restraints on a president's power might be surprisingly ineffective.  A president can do great damage by adopting a confrontational approach, essentially doing what he wants while shouting, "Who's gonna stop me?!" I would like to be able to report that those concerns are overstated, but unfortunately I cannot.  We really might be in the very beginning stages of witnessing how little we can do to stop the dictatorial impulses of a president who lacks shame or modesty. On the other hand, it is also useful to think through the vari...

by Michael Dorf The announcement that President-elect Trump plans to nominate Jeff Sessions for Attorney General was newsworthy chiefly because of the extreme views Sessions has previously expressed and the actions he has taken with respect to civil rights and immigration. However, as a story in the  New York Times last week noted, Sessions has also been highly critical of the Obama administration's policy of mostly forgoing enforcement of federal law with respect to marijuana in those states in which it has been made legal either for medical purposes or more generally. Because that policy takes the form of various internal Justice Department guidance memos (like  this one in 2011 and  this one in 2013 ), rather than a regulation, much less a statute, a new Attorney General could easily rescind it and change enforcement priorities. Whether Sessions actually would attempt a federal crackdown partly depends on how much authority Trump delegates to him. It is easy to ...

By William Hausdorff It has been almost three weeks since Election Day and I’m still sorting through the wreckage of my preconceptions and my expectations.   I’ve gradually realized that four related but distinct sources of shock are amalgamated in my head and need to be teased apart.     These are: 1 .  Failed polls 2.   Failing Democratic Party 3.   Trump as President? 4.   The Voting Public’s Tolerance 1.   The utter failure of the polls to predict the outcome in the key firewall states.   My initial shock was mainly because I just didn’t see it coming.   A look back at the poll analyses indicates this was not simply a case of wishful thinking.     In fairness, poll analysts got the key states of Florida and North Carolina right—they were predicted to be more or less toss-ups. But this was not the case for Pennsylvania, Michigan or Wisconsin.    For example, f ivethirtyeight had the prob...

by Michael Dorf Today is Black Friday. I won't be spending it fighting with other shoppers for discounted consumer goods, but I also won't be spending it blogging. Here in central New York, an early snowfall has led our local ski slope to open early, so I'll be there trying and failing to keep up--or more accurately I suppose, down--with my fifteen-year-old daughter. For those readers who feel deprived of their daily fix of DoL, I suggest this "classic" or perhaps "pre-read" seasonal post . Neil, Sherry, Eric, and I will be back again with new content, beginning on Monday.

By Eric Segall Thanksgiving 2016 is not Thanksgiving as usual for my family or my country. On a personal note, my mother’s birthday was November 22, and my parents’ wedding anniversary November 25. Since my mother passed away last December, this will be the first Thanksgiving celebration in over twenty-five years with one Segall missing from the holiday table.  Instead of feeling thankful this week, I wake up every morning thinking about my mom, the space she left behind, and also how President-Elect Trump came to be and what our future holds. I am more anxious this week than any Thanksgiving I can remember. I suspect that I am not alone in my fear for the next few Thanksgivings. I fear the President-Elect will try to implement his hateful ideas about Muslim registries, a southern border wall, and support for police aggression and misconduct. I fear that his Administration will ignore climate change and release American businesses from most environmental regulation which...

by Sherry F. Colb In my Verdict column for this week, I write about the argument that many have made for why animals lack rights and may therefore be slaughtered and consumed with impunity by humans:  the fact that animals lack moral agency.  Quite apart from the responses I give in my column, it is also the case that animals have what one might call emergent morality, as discussed by ethologists such as Jonathan Balcombe.  In this post, however, I want to focus on a different issue that comes up in debates about animal rights:  the notion that unlike frivolous uses of animals (such as in dog fighting), which are morally wrong, the use of animals for food is a necessity and therefore morally beyond reproach. We see this argument play out in different forms.  People will say that they are against sport hunting, for example, but that they are fine with hunting for one's food, because then one is hunting for a necessity rather than a luxury.  People will...

by Neil H. Buchanan Let us start with two big ifs.  If Trump and the Republicans do not succeed in turning future elections into shams, and if liberals and others who opposed Trump can find their way to a winning political strategy, then the future will not be as bleak as it currently appears to be. Regarding that first big if, I recently argued that there are very good reasons to worry that Trump and his party will soon change the rules to make future elections nearly unwinnable for Democrats.  I also argued, however, that believers in democracy have no choice but to try to prevent that from happening and, in any case, to compete even in heavily rigged elections. Even if small-d democrats are successful in preserving free and fair elections, however, we then move on to that second big if regarding a winning strategy.  Unfortunately, the early indications are that the post-election conversation among liberals (and those who claim to be sympathetic) has already go...

by Michael Dorf President-elect Trump's  selection  of Michael Flynn for National Security Director and his plan to nominate Jeff Sessions for Attorney General and Mike Pompeo for CIA Director make it likely that, so far as domestic security policy is concerned, the Trump administration will be every bit as anti-Muslim, anti-civil rights, and anti-undocumented immigrant as his campaign was. Yet the actual conduct of foreign policy overseas might not change much, even with these hardliners in place. For one thing, it remains possible that Trump might name more pragmatic characters to other key positions, such as Secretary of Defense and Secretary of State. Moreover, even if Trump finds a few more likeminded hardliners for the top spots, the important under-secretary and deputy positions could go to more traditional Republicans. Trump campaigned in the primaries and in the general by running against the policies pursued by (the second) President Bush, but there may not be en...

by Neil H. Buchanan The aftermath of any election loss will inevitably involve endless second-guessing, Monday morning quarterbacking, and even ugly recriminations.  In 2016, with the stakes as high as they were, and with an opponent who seemed so easily beatable, the razor-thin swing state losses by Hillary Clinton immediately led to finger-pointing and anger among Democrats. If done correctly, that can be a healthy process, albeit a painful one.  The alternatives to hashing out what went wrong, or to being angry about losing, are to refuse to learn from mistakes or to pretend that it does not matter at all.  But even though introspection is a good thing, there are plenty of bad ways to respond, too. The most important question that Democrats are now trying to confront is how they lost working-class voters, especially in the states that used to be the world's powerhouses of steel, automobile, glass, rubber, and other manufacturing industries.  The fact is tha...

by Neil H. Buchanan Among all of the things that Donald Trump could do as president, what is the most frightening?  The clear answer is that Trump and the Republicans could effectively end the prospect of free and fair elections.  Before getting into that, however, we need to consider some other threats that we now face. Sadly, there are plenty of other reasons to be scared, including Trump's threats against the free press and his promises to turn the so-called war on terror into an excuse to discriminate against people on the basis of religion, race, and nationality.  Foreign policy is also a disaster waiting to happen. Then there is the misogyny.  How much damage will be done to women's rights in a world where concerns about sexism and even physical assaults will be dismissed as mere over-sensitivity and political correctness?  Contraception, abortion, and everything else are now in the balance. And Trump's economic proposals promise to worsen inequal...