Dorf on Law

by Michael Dorf Right-wing provocateur James O'Keefe and his organization Project Veritas were in the news this week, but not in the way that he hoped. O'Keefe sent a woman to talk to Washington Post reporters falsely claiming to have had an abortion as a teenager after she was impregnated by Roy Moore. Presumably, O'Keefe hoped that the Post would run the story, whereupon he would reveal that it was false, and this would show that: (a) the Post  has a liberal bias that leads it to cut corners when reporting negative news about conservatives; and therefore (b) prior WaPo reporting on Roy Moore's sordid sexual history is not credible. The Post foiled O'Keefe's plans by fact-checking the woman's story. When it did not check out, the Post did not run her false story, instead running the story of how O'Keefe tried to fool the Post . There the episode might have ended were it not for the fact that O'Keefe and his acolytes do not just run stings agains...

by Michael Dorf My latest Verdict column explores the reasons for the difference in reaction time to sexual harassment, sexual assault, and other sexual misconduct in the private sector (thus far mostly Hollywood and the media) versus in government. I note that actors, directors, journalists, etc., have been meeting with swift termination, while elected officials have not been. I offer a couple of factors as key to the explanation of the disparity. First, polarization makes people likely to view both the seriousness and truthfulness of the allegations through a partisan lens. And second, even when people accept that "their guy" did the thing and it was bad, it is instrumentally rational to stick with your scoundrel if he will vote as you expect, rather than to jump ship in favor of an upstanding citizen of the rival party.

By Eric Segall Next Tuesday, the Supreme Court will hear the case of the Colorado baker who refuses to allow his products to be used in same-sex wedding ceremonies or celebrations. Colorado courts found that his refusal violated a state law prohibiting vendors from discriminating on the basis of sexual orientation. The baker, Jack Phillips, claims that the Colorado law, as applied to him, violates the First Amendment’s speech and religion clauses. This collision between anti-discrimination laws protecting gays and lesbians on the one hand and opponents of same-sex marriage on religious and free speech grounds on the other hand is the latest battle in the national culture wars.  Justices Gorsuch and Thomas both claim to be committed originalists. Since it is likely the four liberals on the Court will rule in favor of Colorado, one more vote for the State should result in its victory. How should a committed originalist decide this case? 

By William Hausdorff The glimmers of hope from the most recent state and local elections in Virginia and elsewhere paradoxically made me aware of how thick is the cloud of gloom that had descended on many of us since the previous US national election.   This gloom that has made many of us question, for the first time, the very resilience of the US political democracy. In trying to cope with this, Masha Gessen drew on her previous life in a gloomy environment in an excellent essay: …a decade and a half in Putin’s Russia taught me something about living in an autocracy. I am familiar with the ways in which it numbs the mind and drains the spirit.  In contrast, I have recently been pondering the Dementors described by J.K. Rowling in her Harry Potter books : Dementors are among the foulest creatures that walk this earth. They infest the darkest, filthiest places, they glory in decay and despair, they drain peace, hope, and happiness out of the air aro...

by Neil H. Buchanan The Republicans' attempt to sell their damaging and regressive tax plan is proceeding pretty much as one would expect.  They are making unsupportable economic claims while endlessly repeating an up-is-down-freedom-is-slavery-everything-will-be-different-this-time big lie, claiming that their proposals are all about improving the lives of middle class people.  This has become standard operating procedure for Republicans in the twenty-first century. Although we have long since become accustomed to most of this, we must constantly remind ourselves that it is a very sad state of affairs when we find ourselves saying, "Sure, one of the two major political parties cannot make an honest case even for its most fervently held policy goal, but what are you gonna do?"  Even so, at this point it would barely be worth writing yet another column on this topic if there were not some new aspect to the Republicans' relentless, pathological dishonesty. And as ...

by Michael Dorf As I noted here last week, on Monday, UC Berkeley Law School Dean Erwin Chemerinsky delivered two lectures at Cornell on "Free Speech on Campus." He was thoughtful and erudite, and I say that because it's true, not only because Dean Chemerinsky said he agreed with everything I said in my preview blog post! I'm not going to try to recap everything Dean Chemerinsky said. Instead, I want to focus on what he described as a gray area: the scope of the obligation of government--including public universities like UC Berkeley--to pay the added safety costs associated with speakers with highly controversial views.

by Neil H. Buchanan The sudden wave of social acknowledgement of the ways in which men have long mistreated women is as unexpected as it is welcome.  We are in what seems to be a transformative moment in history, and we can only hope that it leads to a thoroughgoing change in men's behavior and everyone's expectations. By far the most ink has been spilled recently discussing U.S. Senate candidate Roy Moore and his harassment (and worse) of underage girls when he was in his thirties.  I have nothing to add to that discussion, but I will note that Donald Trump's (mis)handling of the Moore mess includes this gem : "[White House press secretary Sarah Huckabee] Sanders said Thursday that Trump considers the allegations against Moore 'extremely troubling' but does not plan to rescind his endorsement and thinks that Alabama voters should be the ones to pick their next senator." Now, if Trump truly believed that Alabama voters should pick their next sena...

By Eric Segall Professors Randy Barnett and Akhil Amar had a fascinating, informative and entertaining debate at the Federalist Society Convention on Saturday. The question was "Resolved: Lochner Still Crazy after all These Years." I recommend you watch the entire debate, but I want to focus on what Barnett said at the very end. In response to a question concerning how far the legal academy has come in accepting the idea that maybe Lochner  wasn't all that bad, Barnett attributed the development to the Federalist Society's thirty-year commitment to pushing judges to adopt a textualist-originalist approach to constitutional interpretation. Barnett's explanation echoed the overriding theme of the conference, which was that finally textualist-originalist judges were being appointed to the bench. The White House counsel said at the convention, to everyone's delight, that "The Trump Administration's philosophy on judging can be summarized in two words: ...

by Michael Dorf On Monday Nov 20, UC Berkeley Law School Dean Erwin Chemerinsky will be giving two talks at Cornell on the topic "Free Speech on Campus," which happens to be the title of his new book with Howard Gillman. I'll introduce Dean Chemerinsky at the law school event and, following his talk, moderate a discussion. I expect to have something to say by way of post-mortem on Tuesday. In this essay, I want to make a preliminary observation about Dean Chemerinsky's topic and then offer some illustrations. My basic claim is that some free speech issues might be resolved differently in a college or university (what I'll call "campus") setting from how they might be resolved in general (what I'll call non-campus settings), but that the difference the campus setting makes depends on the question. In some contexts, the fact that speech claims are made on campus should make them stronger relative to competing claims; in other contexts, the fact th...

by Neil H. Buchanan A surprisingly large number of Republicans have announced their departures from Congress this year.  Including those who are retiring, resigning, and running for other offices, there are currently 25 members of the House who are either already gone or will not be back in January 2019.  Most are not well known.  More prominently, Senators Bob Corker and Jeff Flake are also quitting in disgust. This is more than a bit unusual, because it is usually the minority party that suffers big losses of experienced people.  Why stick around, especially in the majority-is-everything House, when you are in the minority and when there are no White House perks or photo ops to make your job exciting? But Republicans are leaving in droves.  I will leave it to others to ponder what this means about the majority party's leadership and Donald Trump.  My question today focuses on what the Republican leavers will say and do as they walk out the door....

by Michael Dorf My latest Verdict column asks whether the Justice Department is violating the First Amendment by conditioning its approval of AT&T's acquisition of Time Warner on divestiture of either DirecTV or Turner Broadcasting, the parent company of CNN. I conclude that there is probably enough prima facie evidence that the decision is in retaliation for CNN's "fake" (i.e., appropriately negative) coverage of Trump to justify discovery regarding subjective motivation should the issue end up in court. En route to that conclusion, I compare and contrast the legal approach that prevails in free speech and equal protection pretext cases, on one hand, with the legal approach that prevails in Fourth Amendment pretext cases. Here I want to explore a point that seems to be insufficiently appreciated: the existence and strength of what I'll call the "Free Speech and Equal Protection exclusionary rule."

by Neil H. Buchanan Imagine a world, not at all like our own, in which the Republican majorities in Congress had decided to update the tax code in a way that truly deserved to be called "reform." Rather than proceeding from the firm commitment that they must cut taxes on large corporations and the superrich ( especially the "lazy rich"), Republicans instead could have approached the tax code realistically and productively, noting that it must necessarily be complicated -- because life is complicated, and people want the tax code to take into account life's realities -- but doing everything that they can to repeal or change tax provisions that simply do not make sense. Again, that is most definitely not what Republicans are actually doing.  They have proposed a melange of unrelated changes to the tax code that will hit various groups of taxpayers, but this is only happening because Republicans imposed restrictions on themselves that required them to offset...

by Michael Dorf In light of the revelations and accusations that Kevin Spacey sexually harassed and/or assaulted various men and boys over the years, Netflix has suspended production of the upcoming season of House of Cards , in which Spacey has hitherto starred. Reportedly, the show's writers are attempting to write Spacey's character, Francis Underwood, out of the show. In the meantime, Netflix subscribers can still watch the existing five seasons. That is more than can be said for fans of comedian Louis CK, who admitted late last week that he had pressured women to view him naked. Women have alleged that CK masturbated in front of them; CK's apology  admits that he "showed them" his penis but does not specifically mention masturbating. In any event, the incompleteness of CK's apology does not seem to be at issue, because HBO acted before CK published it. Within a day of the initial revelations, HBO canceled upcoming projects with CK and also pulled CK...

By Eric Segall Justice Antonin Scalia lived a large life. There is no denying his remarkable ability to give speeches that dazzled those in attendance. His son Christopher Scalia and Ed Whelan have collected and published many of these speeches in their new book "Scalia Speaks: Reflections on Law, Faith, and Life Well-Lived." These talks, given around the world, provide the reader a wonderful account of Scalia the person, the philosopher, and the judge. On just about every topic, small and large, with one major exception, Scalia entertains, informs and energizes. My perspective is the same as other reviewers on this point so I will not elaborate further on the positive aspects of most of these fine speeches. If the reader is looking for a strong justification for originalism in these speeches, however, she will be disappointed. The speeches on that topic, sadly, are cliche ridden, assume facts not in evidence, and most importantly, do not address the major issue many lega...

by Neil H. Buchanan As I write this column, Republicans in the U.S. Senate are doing their part to make sure that the debate about taxes becomes even more absurd and incomprehensible.  Not that that's a bad thing.  This whole process is a sham, and we would be much better off if they did nothing at all . And it might well come to that.  I continue to believe, however, that Republicans will flail about for several months but then cobble together something at the last possible moment before some self-imposed deadline.  Whatever they ultimately pass, they will call it "reform" and Donald Trump will call it "tremendous." Whatever emerges in the end will almost certainly be nearly unrecognizable compared to where they started.  In the meantime, I find it unfortunately necessary to pay attention to the process, because Republicans will stagger along and make some ad hoc and often accidental decisions that will somehow become accepted wisdom.  Path dependen...

by Sherry F. Colb In my column for this week , I discuss the topic of surrogacy in the context of a New York State bill under consideration that would legalize such arrangements and make them enforceable. My focus in the column is on the baby's interests and on the potential parents who wish to use surrogacy to expand their families. In this post, I want to look more closely at the woman who carries other people's babies, the surrogate herself. Why would those focusing on the woman wish to ban surrogacy?

by Michael Dorf The NYPD and other first responders were still tending to the dead and wounded late last week when the news that ISIS-inspired killer Sayfullo Saipov had come to the U.S. from Uzbekistan as a "diversity lottery winner" prompted President Trump to denounce the diversity lottery and to take a stab at NY Senator Chuck Schumer, despite Schumer's efforts to repeal the diversity lottery. Another day, another killing, another presidential debasement. Although pundits immediately observed the inconsistency between Trump's willingness to leap to policy action when Muslim immigrants kill versus his go-slow approach when white Christian Americans (more frequently) kill, that observation may be beside the point in this case. Even a stopped clock is right twice a day, and this time Trump may have fortuitously said something sensible. Yale law professor Peter Schuck, writing in the New York Times , followed his condemnation of Trump's characteristic factual e...

by Neil H. Buchanan Another day, another mass shooting that -- despite the seemingly endless gun violence that this country needlessly endures -- has a high enough body count to (for now) constitute front-page news. Barely anyone noticed any of the multiple shootings in the five weeks between the Las Vegas massacre and what was quickly labeled the Texas Church Shooting, but the body count in those killings totaled 29, which is three more than the current death toll in Sutherland Springs. We already know that there will still not be a real political debate about guns, and the people who continue to enable this carnage will return to their usual talking points about it being "too soon" to discuss policy and that the real problem is mental health (or something else, as long as guns have nothing to do with it). For now, therefore, it seems safe to assume that Donald Trump and the Republicans will continue to promote their paranoid, macho fantasies about how none of t...

by Neil H. Buchanan For months , I have been pointing out that Donald Trump and congressional Republicans have been offering "non-plans" to change the tax code.  Issuing press releases containing nothing more than vague bullet points -- yet somehow also making it clear that their ultimate plan would be hugely regressive -- the ruling party promised that the final plan would deliver on their years of promises of fundamental tax reform. Well, the House's plan is now in, and it is ... not tax reform.  It is a hugely regressive tax cut, but unless there is a new definition of "reform" such that that word now means "change in various uncoordinated and unprincipled ways," then this is not tax reform, and it is certainly does nothing to fundamentally change the nature of the tax system.

by Michael Dorf In my latest Verdict column , I criticize the federal government's argument defending its initial refusal to permit a 17-year-old undocumented immigrant to temporarily leave federal custody for an abortion at private expense on the ground that thus releasing her would render the government complicit in the abortion. I explain that this is an extravagant view of complicity but that the government could be excused for thinking it might succeed because a similarly extravagant view of complicity might well have succeeded in the litigation challenging the exemption procedures from the Obamacare contraception mandate had the case not ultimately been resolved via a more or less forced settlement. There, the plaintiffs argued that having to ask for an exemption from the obligation to provide contraception insurance would itself implicate them in the provision of contraception insurance that would ultimately be provided by others. In the column, I liken that argument to th...

By Eric Segall How people research and write about law has changed dramatically during the course of my academic career. Twenty years ago, although there was an abundance of relevant scholarship on most hard legal questions, there were reasonable ways of dealing with the quantity of relevant work. Today, there is virtually no way to keep up with the avalanche of high-level scholarly output devoted to most legal topics and current cases.