Dorf on Law

by Diane Klein I first became interested in transgender issues more than two decades ago, as an academic feminist, and then, when I began studying law, as an aspect of gender and legal theory and a pressing civil rights cause. One afternoon during law school, my Feminist Legal Theory seminar at UCLA met outdoors, in the courtyard the law school shares with the philosophy department.  As I and other law students opined condescendingly about Title VII and trans issues,  Talia Mae Bettcher , then a grad student in philosophy, tapped me on the shoulder and quite literally gave me my comeuppance.  A decade or so later, with every self-styled legal feminist using trans people and the legal issues they raise (and face) as metaphors and thought experiments for every other gender-related issue under the sun, Dean Spade  did so again, powerfully cautioning those of us who imagine we are progressives and allies to refrain from the production of scholarship for our own ad...

by Michael Dorf In an episode of Seinfeld , Elaine buys a dress that looks good on her in the store, only to find that when she tries it on at home, it is unflattering. Outraged, she concludes that the store's dressing room was outfitted with "skinny mirrors." The episode seems an apt metaphor for the bit of theater that transpired in the Senate late last week. Say what you will about Mitch McConnell's appalling record; the man is a master magician. His so-called "skinny repeal" bill was a deeply layered trick. We may never know whether its narrow defeat at the hands of a battered-but-not-beaten John McCain was itself part of the illusion. I suspect not, but focusing too much attention on McCain simply legitimates McConnell's legislative legerdemain.

[Editor's Note: My remembrance of my late colleague Robert Ferguson prompted Ori Herstein to recall Robert from his vantage. Ori's memorial follows.] For Robert A. Ferguson (1942-2017) It was from a letter that I came to form my first impressions of Robert Ferguson.  Robert was writing to welcome Columbia Law School’s 2004 incoming class of doctoral students.  In time, he became a mentor to us all.  Looking back, much of what I came to admire in the man was evident in this first of many correspondences that we would exchange over the following thirteen years.  For Robert, self-regard and regard for those around him were like two sides of the same sheet of paper.  Which is why if he were writing to welcome his new students, he would compose an actual letter not an email.  And he would print it on posh formal stationary.  And take the time to individually address and hand sign all twelve of them.  Robert’s letter was of course well-fash...

by Neil H. Buchanan The Republicans have reached what we can only hope is truly and finally the end of the road for their obsession with repealing the Affordable Care Act.  The process was indescribably insane, especially in the last week or so, with a series of bizarre show votes that ultimately led to the Republicans' defeat. Maybe it really is over, but we thought the same thing two weeks ago, only to watch things become even weirder.  Nothing would surprise me at this point.  We might never hear about health care legislation again, or we could within days or even minutes discover that the game is back on. In any event, the key vote in that please-let-it-be-final showdown was cast by Senator John McCain.  Is that vote proof that, at long last, he truly is the principled maverick that he has long portrayed himself to be?  Perhaps, but I think that there is a better, more cynical explanation.  But first, we need to figure out what McCain's colle...

by Diane Klein On May 30, 2017, my 77-year-old father died, of an aggressive adenocarcinoma that began in the pancreas and metastasized to, among other places, his brain. His cancer was diagnosed March 19, 2017, and he underwent brain surgery on March 29, 2017, to remove a tumor the size of walnut (or a golf ball - it's all foods and athletic equipment with these things) from between his frontal lobes.  The craniotomy and brain surgery were a "success" - he healed more or less without incident, and when he died, you could hardly see the scar. Why do I mention this? Two reasons.  First, it allows me to be critical of a terminal brain cancer patient like John McCain without seeming callous. (Though not quite as critical as this guy .) But second, although my father's cancer was of a different kind than McCain's, my interaction with him gave me an up-close look at a smart, strong, but sick and elderly man laboring under a brain disorder of whose cognitive consequ...

by Michael Dorf The legislative free-for-all currently unfolding in the Senate will test the proposition that it is impossible for a small-d democratic government to repeal a major entitlement program. Conservatives who opposed the Affordable Care Act fought so hard to block it in the courts before it went into effect and then before it became too entrenched because they believed--as did progressives who defended the ACA--that what psychologists call the endowment effect would protect the ACA. The endowment effect makes people value something they already have more highly than something they don't. That psychology certainly operates among the public, with polls showing that there is much greater support for retaining the ACA than for any of the GOP proposals to repeal or repeal-and-replace. If Congress nonetheless manages to repeal or, more likely, weaken, the ACA, that will not be a refutation of the existence of the endowment effect. It will merely be a demonstration of the u...

by Michael Dorf My latest Verdict column takes issue with the tendency of the punditocracy to call every political issue with constitutional overtones a "constitutional crisis." I adopt and build a little on the typology of crises set forth in an insightful 2009 University of Pennsylvania Law Review  article by Sandy Levinson and Jack Balkin. I conclude that the possibility of a presidential self-pardon--while despicable--would not plunge us into a constitutional crisis, because our existing institutions could readily resolve the legal question whether a president has the power to issue himself a valid pardon. Of course, the particular institution that would ultimately resolve the question concerning self-pardons is the U.S. Supreme Court--either by deciding itself or denying review from a decision by a lower court. I don't mean to say that the courts will save us from Trump more generally. In the column I point to genuine constitutional crises that Trump may be spa...

by Neil H. Buchanan In July 2008, I became a vegan.  Every year since then, I have celebrated my "veganniversary" by writing a column specifically on the subject of veganism.  Here are links to previous years' columns: 2016 , 2015 , 2014 , 2013 , 2012 , 2011 , 2010 , 2009 , and my two original posts from 2008 ( here and here ). Because Professors Colb and Dorf have covered the scholarly aspects of ethical veganism so well -- most importantly with their masterful 2016 book Beating Hearts: Abortion and Animal Rights -- I have generally ( not always , but usually) used my posts to focus on the day-to-day experiences of being a vegan, in particular analyzing the way that vegans are treated and portrayed in popular culture. Today, I will focus on the way that hipsters treat vegans.  Why hipsters?  The simple fact is that they are the group that is most comfortable with veganism, in part because there are so many hipster vegans.

By Eric Segall The President of the United States is one of the few democratically elected leaders in the world who is both the administrative leader of the government and the symbolic head of the Country. In many nations, these roles are divided between a President and a Prime Minister or even a Prime Minister and royalty with no official governmental responsibilities. This dual capacity of our Chief Executive makes it imperative that the President carry out his duties with class and character because his behavior has a role-model quality that affects not just our youth but our entire national character. This is why I thought Bill Clinton should have resigned the Presidency after we found out that he lied under oath about having sexual relations with a White House intern. His basic defense, that having oral intimacy is not “having sex,” I believe, had negative consequences for a generation of young Americans, and his obvious lying and truth-cutting was not the kind of behavior we w...

by Michael Dorf (cross-posted on Take Care with some minor updates here) Last week, as the latest Senate GOP effort to repeal and replace the Affordable Care Act (ACA) failed, President Trump voiced support for simply repealing the ACA, with a replacement to come later. When that Plan B (which had originally been Sen. Mitch McConnell's choice for Plan A) failed a few hours later, the president quickly moved on to Plan C : "We'll just let Obamacare fail. We're not going to own it. I'm not going to own it. I can tell you the Republicans are not going to own it." Although the very next day the mercurial president attempted to strong-arm GOP Senators  into making another push for Plan A, that approach looks likely to fail, even if Plans A and B make it to a floor vote this week . Thus, for the near term it looks like Trump will be following his Trotskyite the-worse-the-better Plan C. While a clear violation of his oath to take care that the laws be faithfull...

By Diane Klein In " Dunkirk ," Christopher Nolan (of "Interstellar" and "Dark Knight" fame) has given us a war movie only Donald Trump could love.  Full of bombast and spectacle, it is ignorant of history, devoid of nuance, frequently unintelligible, and ineloquent.  It is a movie by, for, about, and starring handsome Anglophone White men, and reflects a view of history in which only their lives matter. The film's subject is the evacuation from Dunkirk in Northern France, of more than 300,000 Allied troops, mostly the  British Expeditionary Force  but also French, Belgians, and others.  The evacuation occurred between May 26 and June 4, 1940 - but the film takes place in what critic David Edelstein calls " Nolan time " - "cutting among several locations in several timelines." However effective this may have been in " Memento ," here, it serves mostly to confuse and distract. Nolan's film doesn't tell us what y...

by Neil H. Buchanan The transcript of Donald Trump's recent interview with the editors of The New York Times could simply be titled: "The Case for Dictatorship: A Child-Like Narcissist's Guide to Destroying America."  As soon as Trump started talking, he revealed for the umpteenth time that he is unwilling or unable to understand the limits on the president's power. And now we learn that Trump has his minions investigating imaginary conflicts of interest that they can use as "leverage" against Special Counsel Robert Mueller and his team of investigators.  Trump even has his people talking about abusing the pardon power, including the possibility of pardoning himself.  He is, at long last, truly Nixonian : When the president does it, that means that it is not illegal. Trump clearly believes that ethics rules are for suckers and non-presidents, and his claim that his toady of an attorney general, Jefferson Sessions, was "very unfair" f...

By Diane Klein On July 17, 2017, The Rachel Maddow Show on MSNBC featured a segment about the latest allegations of financial wrongdoing involving Paul Manafort, Donald Trump's second campaign manager and attendee at the now-notorious Trump Tower meeting with Russian lawyer  Natalia Veselnitskaya . As part of that story, Maddow mentioned that Manafort is represented by Reginald Brown, a partner at Washington, D.C.-based  megafirm  WilmerHale.  Manafort hired him  back on  March 24, 2017. For those who don't know, the law firm with the name that sounds like hipster beer is the result of a 2004 merger between Wilmer, Cutler & Pickering, and Boston-based Hale and Dorr.  It employs more than 1000 lawyers, 400 of them in D.C., the others spread over eleven more offices.  And virtually every lawyer associated with the Trump-Russia scandal is connected to it.

by Sherry F. Colb My column for this week  discusses the current state of California law, under which there is no minimum age requirement for marriage. There is a bill under consideration that would modify the law somewhat, but it has been amended to remove the age of 18 requirement and thus only adds some oversight in family court to prevent coercion. As I discuss in my column, the California statutory rape law, which requires that a person be 18 to consent to sex, suggests that sex with minors is inherently coercive and therefore not properly subject to oversight rather than outright prohibition. In this post, I want to discuss one of the reasons that people cite for permitting children to get married, with parental (and court) permission: an unplanned pregnancy.

by Neil H. Buchanan The Republicans' ongoing effort to take away health care coverage from tens of millions of people is probably only on hold.  In any event, their attempt to pass the Trump-McConnell bill has just "collapsed," because Senators Jerry Moran and Mike Lee have joined Rand Paul and Susan Collins in publicly opposing the bill. That is a very good thing, of course, and I should take a moment to applaud Senator Collins, whom I have bluntly criticized many times over the last few years.  On this bill, hers was a public position that actually mattered, not a " free vote " or a statement of "concern" that then was not backed up by action.  Because the bill was unconscionable, she took a public stand against it.  I hope that she stands up like this again in the future, on health care and other issues. Unfortunately, the other three Republican opponents of the bill -- Paul, Moran, and Lee -- did so because the bill was not harsh enough.  A...

By Eric Segall Last week, Professor John McGinnis wrote an essay at the Law & Liberty Blog praising Justice Gorsuch for his commitment to a “formal conception of law.” While others have criticized Gorsuch for his aggressive questioning and decision-writing so early in his SCOTUS career, McGinnis defended Gorsuch, arguing that his confidence stems from Gorsuch’s view that a “lawful judge should render judgment on the basis of his best judgment about the meaning of statutory and constitutional provisions that are put before him or her and candidly set out the reasoning in support, regardless of the political consequences and regardless of what others think.”  According to McGinnis, being a Supreme Court Justice for a formalist is "no different from being any other kind of judge.”  Because Gorsuch is an “experienced judge” who believes in formalism, he “was able to act forcefully from day one on the Supreme Court.” Professor McGinnis is a respected scholar. His view...

by Neil H. Buchanan Faced with the historic unpopularity of his health care bill, Senate Majority Leader Mitch McConnell responded by making it even worse -- or, as the sub-headline to a New York Times editorial put it, Senate Republicans "found a way to make a horrible bill truly hideous." This is not surprising, I suppose, although McConnell did manage to make it worse than even I cynically predicted earlier this week.  The new window dressing is even more minimal than expected.  Moreover, he adopted a proposal offered by the much-beloved Senator Ted Cruz , who figured out how to indirectly destroy the highly popular provision in the Affordable Care Act that prevents insurance companies from denying coverage to people with preexisting conditions. As Donald Trump might put it : mean, mean, mean.  My focus here, however, is not on the Republicans' attempt to deny health care to millions of people, as shocking as that is.  Instead, I want to put this latest t...

by Michael Dorf Judge Watson just issued an order and opinion granting the plaintiffs' request to enjoin the government's narrow interpretation of the SCOTUS interim ruling in the Travel Ban Litigation. Procedural junkies wondering how, given that just a week ago he denied that he had the authority: The prior motion sought "clarification" of the SCOTUS order; Judge Watson said only SCOTUS could clarify; the Ninth Circuit agreed but helpfully added that Judge Watson could grant specific injunctive relief; that's what he did. The new order expands the list of relatives and others who count as "bona fide relationships" to include "grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States." It also overrules the Trump administration by classifying an approved refugee's relationship with a resettlement agency as bona fide. And the order disposes of the plaint...

by Michael Dorf Despite its title, this is not an essay about whether Donald Trump Jr. violated federal election law by "solicit[ing]" a "thing of value" from "a foreign national" when he eagerly agreed to meet with a Russian lawyer acting on behalf of the Russian government for the purpose of receiving damaging information about Hillary Clinton's supposed Russian ties. I accept both that it is a somewhat unresolved question whether such information constitutes a "thing of value" under the statute and also that there is enough authority for the view that information alone can be a thing of value so that prosecuting Trump Jr. (and Jared Kushner and Paul Manafort) for their meeting with Natalia Veselnitskaya knowing what they knew would not constitute such a surprising interpretation of the statute as to violate the so-called rule of lenity (under which ambiguities in a criminal statute are resolved in favor of the defendant). Nor is thi...

by Michael Dorf My new column on Verdict examines an argument set forth in the memorandum in support of the motion to dismiss that President Trump's lawyers have filed in the Summer Vervos case. Vervos, recall, is a former contestant on The Apprentice who sued Trump in January for defamation based on his calling her a liar. The allegedly defamatory statements were contained in Trump's response to the women who came forward contending that Trump had at one time or another acted towards them in ways much like what he described to Billy Bush on the infamous Access Hollywood recording. Trump repeatedly stated that his accusers were not merely mistaken but that they were liars. The argument my Verdict column considers is Trump's contention that calling his accusers liars was mere hyperbole and fiery rhetoric that cannot be actionable because, in the context of a heated political campaign, these statements were opinion rather than claims of fact. I conclude that Trump's...

by Neil H. Buchanan Although the news is once again being dominated by the latest bombshells about the Trump campaign's collusion with the Russian government during the 2016 election, the Senate is again moving toward a possible vote on their deservedly unpopular bill to repeal the Affordable Care Act (ACA). The Republicans' ACA repeal effort quite literally means life and death for millions of Americans, and the only question is whether at least 50 out of 52 Senate Republicans will support Mitch McConnell's efforts to score a legislative victory on the backs of poor children, the elderly (most of whom have never been poor in their lives), and the working poor and near-poor people who do not receive health insurance through their jobs. As I will describe below, defeat of the Trump-McConnell bill will understandably be called a victory for "moderation."  Nonetheless, it is important to keep in mind that even if the bill is killed by three dissenters, that wi...

by Michael Dorf Robert Ferguson died last week. I urge readers who are unfamiliar with Robert and his work to read the official obituary at the Columbia Law School website. It gives a good sense of Robert's place in the academy as a towering interdisciplinary figure in the world of law & literature as well as his fundamental decency as a human being. Here I want to reflect a little on the man I knew and the lessons that we might all learn from the example of his life.

by Michael Dorf Judge Watson's order declining to grant Hawaii's motion for clarification that "close relatives" includes grandparents (contrary to the executive branch interpretation of the SCOTUS decision in the Travel Ban case) rests on the view that the Supreme Court issued the underlying order, so it is up to the Supreme Court to clarify it. Insofar as Judge Watson meant that he, as a lower court judge, has no business clarifying unclear language by the Supreme Court, that's plainly wrong. Much of what lower court judges do in deciding questions of law is to clarify the meaning of decisions of higher courts. Ilya Somin, writing on the Volokh Conspiracy , is clearly right in criticizing Judge Watson on this point. However, there is another, better way to read the order by Judge Watson. He is not saying that he lacks power to clarify the SCOTUS language. He is saying instead that while the case is before the Supreme Court, a motion for clarification of a S...

by Michael Dorf This week Prof. Colb and I are attending and speaking at Vegetarian Summerfest , an annual vegan conference with presentations focusing on multiple aspects of the vegan movement, especially nutrition, animal rights, and environmental issues. (It's called "vegetarian" for historical reasons, but the conference promotes and practices veganism.) Yesterday, we gave a joint talk titled "Animal Rights, Abortion, and Capital Punishment," which focused on issues raised in our book Beating Hearts: Abortion and Animal Rights , while experimenting with some ideas for a potential new book about the regulation of capital punishment and the regulation of animal slaughter. Each of us is also giving two solo talks. My talk today is titled "Intersectional Veganism." Here is the description from the program : Some social justice activists promote “intersectionality”—the idea that various forms of injustice are connected. Intersectionality presents th...

by Sherry F. Colb In my column for this week , I discuss a case in which a judge found a woman guilty of involuntary manslaughter for texting her boyfriend messages repeatedly urging him to commit suicide immediately, which he ultimately did. The column raises some potential objections to holding the woman who texted messages accountable for the actions of her boyfriend, including the freedom of speech, the right to die, and the notion that the victim's own actions superseded what his girlfriend said beforehand as the causal agent of his death. The column concludes that the judge was right to hold the girlfriend accountable, notwithstanding the various objections. In this post, I want to elaborate on my view that a competent individual (i.e., one who understands what he is doing) ought to have a right to die, a point I make in passing in the column when discussing the right to die. The Supreme Court, in  Washington v. Glucksberg , has rejected a right to physician assistance in...

By Eric Segall Today is the 241st birthday of the Declaration of Independence. We treat July 4th as our country's birthday. Who feels like celebrating? A related question is what does a sane person do when he looks around and sees madness everywhere? The President of the United States is exercising his power as if his office is the ultimate fantasy of a reality television star. He cares much more about ratings, insults, popularity, and revenge than sound policy, or policy of any kind. His top two advisers appear to be his 37-year-old son-in-law who has no experience governing, and a 64-year-old former media executive who might well like to see the world implode, and appears to be both a sexist and a racist. In any event, he too had zero government experience before walking through the White House doors. The Secretary of State is the former CEO of Exxon, there is no FBI Director, the Sectary of HUD knew nothing about housing upon ascending to that office, while the EPA ...

by Michael C. Dorf The latest issue of Between the Species , an online philosophy journal, contains a review by Philosophy Professor Mylan Engel, Jr., of my book with Professor Sherry Colb, Beating Hearts: Abortion and Animal Rights . (Engel's paper is styled an "article" because it is substantially longer than most of the book reviews the journal publishes, but for simplicity I'll call it a review.) Engel's review is generous and thoughtful. Professor Colb and I are grateful for his overall assessment and especially for his conclusion that our book "would make an exceptionally useful supplemental text for any contemporary moral issues course that includes sections on abortion and animal ethics," including his own such course. As one would expect from any serious scholar, even though Engel agrees with our core thesis and argument, he does not spare us criticism with respect to areas of disagreement. In this essay, I'll respond to a number of Eng...

By Diane Klein In 1936, a Black New York City postal worker named Victor Green began compiling and publishing a travel guide - a pamphlet, really - that came to be known as " The Green Book ."  Published annually for thirty years, growing from a local New York guide into an international travel directory, this booklet included lists of establishments - "Hotels, Taverns, Garages, Night-Clubs, Restaurants, Service-Stations, Automotive, Tourist-Homes, Road-Houses, Barber-Shops, Beauty-Parlors," "Trailer Parks and Camps, Summer Resorts" - that would serve Black patrons. Without such a guide, travel throughout much of the United States during the Jim Crow era was, at best, uncomfortable - and at worst, a mortal danger.  With nowhere to safely sleep, eat, or even refill the gas tank, a car trip was more daunting than inviting.  The Green Book aimed to fill that gap.