Dorf on Law

by Sherry F. Colb In my Verdict column this week , I talk about two of  the  ways in which African Americans and women have been marginalized: denial and devaluation. Denial refers to the refusal to credit the stories that people on the losing side of racial and gender conflicts tell. If a police officer kills a black suspect, and witnesses say that the killing was unprovoked, they face skepticism and disbelief. And the same is true for women who tell of being raped by a date; listeners (such as juries) choose not to believe what they are hearing and to assume that the woman is lying. Devaluation happens sometimes when African Americans  and  women  manage to actually convince those in power that what they are saying is true. Devaluation consists in minimizing the gravity of the harm in question. In this post, I want to talk about a movie, because even though movies ostensibly tell one story--and a fictional one at that--the story often represents a narrati...

by Neil H. Buchanan In the uncharacteristically extended political aftermath of the February 14 school killings in Florida, we have seen a surprisingly wide range of proposed solutions and an even more surprisingly naked display of Republican lying and cowardice .  Although I continue to suspect that nothing meaningful will ultimately be done, it is impossible not to perceive a distinct ray of hope that has not been visible in the five years since Sandy Hook. Moreover, even if no laws are changed, the revelation of Republicans' stark dishonesty might itself be helpful in leading to better results in the future. On guns, as on so many things, Donald Trump is not a man who (as many pundits would have it) pulled off a hostile takeover of the Republican Party.  It has become ever more obvious that he is what movement conservatives have always been, and his rise has simply allowed the Republicans to boot out the few remaining voices of quasi-sanity in favor of those who embr...

by Michael Dorf Dissenting from the denial of certiorari in Silvester v. Becerra  last week, Justice Clarence Thomas lamented that the lower courts have been undermining the Second Amendment by saying they are applying intermediate scrutiny to gun regulations but actually applying something more like the low-level scrutiny of the rational basis test. He thought that the US Court of Appeals for the Ninth Circuit committed this sin in its opinion upholding a California law imposing a 10-day waiting period for the purchase of firearms. Justice Thomas also chastised his colleagues for treating the Second Amendment as "a disfavored right." The idea that the right to possess firearms is "disfavored" anywhere in America would likely be received with puzzlement in most of the world. Indeed, last week's juxtaposition of a Supreme Court justice complaining that firearms are too difficult to obtain with students who survived the shooting at Marjory Stoneman Douglas Hig...

by Michael Dorf A team of researchers from Stony Brook University have asked me to help them study the role that emotion plays in politics. I have completed the survey myself, and it only took me about ten minutes. The survey is completely anonymous. Click this link  to begin the survey. Please DO NOT POST COMMENTS BELOW AS THEY COULD BIAS THE RESULTS OF THE SURVEY.

By William Hausdorff I’m trying to decide how much of this Russian stuff really matters.  According to some of the recent indictments by the Justice Department, a concerted, well-funded Russian disinformation effort turbo-powered by bots was designed to interfere with the US presidential election campaign in 2016.  Thirteen Russians are accused of wire fraud, bank fraud, identify theft, even conspiracy to defraud the US government.   On the one hand, by demonstrating there was a serious effort to interfere with the election campaign, Special Counsel Robert Mueller and team imply that collusion by the Trump campaign or family to abet this conspiracy, and/or of obstruction of justice to block its investigation, is not something that can be dismissed as “just politics.”   All admit that Mueller is unlikely to get his hands on any of these Russians to put them on trial, much less in prison.   The tacit assumption, then, is that this merely sets the...

by Neil H. Buchanan Is everyone a hypocrite?  In our personal lives, no one is immune to the occasional convenient flip-flop.  In politics, Democrats and Republicans often trade places depending upon whatever is happening at the moment.  For example, each side's high dudgeon over the other side's use of (or elimination of) the filibuster has made for great before-and-after sequences of clips on news and comedy shows. Even though we are all hypocrites at various times, and even though politics is fueled by situational ethics, there are certainly people and groups who are better and worse at the fine art of hypocrsy.  Democrats have engaged in gerrymandering, but they support a system in which neither side could choose its voters.  Republicans do not. Similarly, Democrats rely more than they should on wealthy donors, but they would thrive in a system with strict limits on plutocratic influence.  Republicans talk darkly about George Soros's supposed male...

By Eric Segall I spent last Friday and Saturday at the works-in-progress Originalism Conference at the University of San Diego. Professors Mike Rappaport, Mike Ramsey, Steve Smith, and Larry Alexander were wonderful hosts. I highly recommend this annual conference for anyone interested in originalism specifically or constitutional theory generally. I learned a tremendous amount from the papers presented and the robust, civil, and interesting discussions that took place. One thing I didn't learn, however, was what is Originalism circa 2018.

by Diane Klein In this space yesterday, Prof. Dorf argued (not exactly in "defense" of Michael Cohen's payoff to Stephanie Clifford aka Stormy Daniels aka Peggy Peterson, through a shell company created for that purpose only) that while Cohen using his own money to pay off Stormy Daniels for her silence about her affair with Donald Trump might violate Model Rule of Professional Responsibility 1.8(e) (or its New York equivalent), the rule itself is "foolish."  I disagree.

by Michael Dorf This week, my seminar students and I read Federalist Nos. 36-47. After a month of mostly Hamilton , it was interesting to shift gears and hear from Madison. In light of the school shooting in Parkland, Florida last week, it was hardly surprising that a substantial part of our seminar discussion focused on the implications of Madison's statements in Federalist 46 about "citizens with arms." But given the increasing frequency and severity of mass shootings (which I discuss in my new Verdict column ), our discussion likely would have turned to the Second Amendment even if the news had not included a very fresh tragedy.

by Michael Dorf Donald Trump's lawyer Michael Cohen claims that he paid Stephanie Clifford, aka Stormy Daniels, $130,000 out of his own pocket in exchange for her keeping quiet about her alleged adulterous liaison with Trump. As discussed in a lurid story in yesterday's NY Times , the payment may have violated federal campaign finance law (as an unreported and cap-exceeding donation of in-kind services to the Trump campaign) as well as New York's ethics rules. The story also raises questions of journalistic ethics: Is it ever proper for a newspaper (even a gossipy tabloid) to pay for the rights to a story for the purpose of killing the story as a favor to the politically connected friends of the paper's publisher? (The tabloid publishers deny that was their goal in this and other instances, but the Times story cites sources to the contrary). That's all fascinating stuff. Here I want to focus more narrowly on the rule of legal ethics that Cohen might have viol...

by Neil H. Buchanan It is time for another go-round regarding gun violence in the United States.  A few short months ago, the world was shocked by the carnage in Las Vegas and then Sutherland Springs, Texas.  We briefly became fascinated by "bump stocks," but then the Republicans in Congress made clear that even a cheap and easy add-on that turns a semiautomatic weapon functionally into an automatic weapon was not something they were willing to ban. And now, with shooting after shooting barely registering on the news meter in the meantime, we are wondering whether seventeen deaths in a high school in Florida will finally lead to action.  The early signs are promising, but on the other hand, so were the early signs after the Sandy Hook massacre more than five years ago.  At least some states passed meaningful gun control back then, even though Congress could not even rouse itself to agree with ninety percent of the American people that potential purchasers of guns...

by Neil H. Buchanan To hear many Republicans and Democrats tell it, the country should stop letting itself be jerked around by the chaos in Donald Trump's White House and instead insist that politicians focus on Real Issues.  In particular, many supposedly savvy political observers on both sides seem to think that the economy is the better issue on which their candidates should focus.  Is this a rare instance in which partisans on both sides are right? With 20-20 hindsight, of course, one side would certainly conclude that it was wrong.  That is, if both sides emphasized economic issues throughout the mid-term campaigns, the losing side would immediately regret its decision.  Republican or Democrat, each loser would conclude that a different strategy would have worked better, or at least not have been worse, because losing is losing. But what is interesting, in advance of the elections, is how much confidence there is among political commentators on both sides ...

by Michael Dorf With President Trump's deadline rapidly approaching, negotiations and debate in Congress may or may not produce legislation protecting some or all Dreamers. Meanwhile, on Tuesday, a federal district judge in Brooklyn  issued a preliminary injunction against the rescission of DACA. As the opinion repeatedly emphasized, the judge did not rule that the administration lacks the power to rescind DACA. Rather, the court held that the administration's stated rationale--that DACA is unconstitutional--was inadequate and contradicted the administration's decision to retain DACA in place for half a year. Thus, according to the ruling, the rescission was arbitrary and capricious in violation of the Administrative Procedure Act (APA). The administration can still rescind DACA, but before doing so, the relevant agency (here the Department of Homeland Security) must articulate a better reason. Should Congress adopt a permanent fix to DACA in the coming days, the preli...

By Eric Segall This Friday and Saturday I'll be discussing my forthcoming book "Originalism as Faith" at the annual Works-in Progress Originalism Conference at the University of San Diego. I am excited and flattered to be included in this event. In this post, I want to discuss one aspect of my book that deals with what many people call "New Originalism."

by Sherry F. Colb In my Verdict column for this week , I examine the case of McCoy v. Louisiana , currently pending before the Supreme Court. In McCoy , the Court faces the question whether there is a Sixth Amendment right to stop your lawyer from announcing your guilt to a jury, even if the announcement would serve your best interests (in reducing the odds of a death sentence). Among the issues I consider is how to cabin such a right so that convicts are not all in a position to reopen their convictions just because their attorneys deviated from the exact instructions of a client. A useful analogy to consider here is the medical decision context. A patient who is uncomfortable with her doctor can decide not to patronize the particular doctor or, if he sticks with the doctor, not to follow the recommendations that she makes. For example, if the doctor prescribes a medication that the patient does not want, either because he hates medications in general or because the side effects o...

by Neil H. Buchanan There is a sub-genre of political punditry that relentlessly promotes the idea that the balance of future political power in the United States depends entirely on Democrats reconnecting with the people who voted for Donald Trump.  And to do that, Democrats supposedly need to "understand" and reach out to those voters. I used scare quotes in that last sentence because the new conventional wisdom among these pundits is not simply that Democrats need to try to understand Trumpists in the sense of figuring out what common ground might exist between the issues they care about and what Democrats can honestly and honorably offer.  It is that Democrats apparently need to stop being snobby meanies who haughtily dismiss those voters' concerns. As far as it goes, of course, that is the kind of political advice that only a writer with a superiority complex could offer with a straight face.  "Wow," we are apparently supposed to say in response.  ...

by Sherry Colb & Michael Dorf As co-authors of a book about animal rights and a quintessential woman's right--abortion--we were keenly interested in the recent news that CEO Wayne Pacelle and former Vice President for Policy Paul Shapiro of the Humane Society of the United States (HSUS) were facing allegations of sexual harassment. Their behavior led to their respective ouster and resignation. As James McWilliams noted last week , a similar pattern of behavior at other animal welfare organizations raises the troubling questions whether such organizations are especially bad places for women to work, and if so, why. McWilliams offers the provocative suggestion that the animal welfare ethos has at its core a message that conduces to strongman leadership that in turn can easily be turned to abuse. He notes that male leaders in the movement portray themselves [as] handsome, charismatic men snuggling with cute, vulnerable animals.  . . . What's being manufactured . ...

by Neil H. Buchanan The Republican-dominated state legislature in Idaho "scrubbed all mentions of human-caused climate change from the state’s education standards last year," and even after a backlash, it has now approved revised standards that remove all but a few references to the human role in global warming.  Idaho is the most extreme case, but multiple Republican-led state legislatures have also been pursuing this anti-science path, mirroring the Trump Administration's climate denialist efforts. With the conservative attack on scientific reality continuing apace, Republicans nationwide are also resolutely pursuing their assault on the judiciary, including -- among many other matters -- attacks on courts that try to rein in partisan gerrymandering.  Imbued with a fervor fueled by Donald Trump's shameless denigration of "so-called judges" and other libels, Republicans are trying to impeach judges who rule against them even as they prevent judicial ...

by Michael Dorf Sarah Huckabee Sanders has confirmed that the Pentagon is drawing up plans for a huge/tremendous/biggest-ever/insert-Trumpian-adjective-here military parade modeled on (but better/huger/tremendouser/biglier than) the French parade that the Maximum Leader witnessed during his Paris vacation last summer. Because I am engaged in a semester-long project of reading the Federalist Papers cover to cover with my seminar students , I couldn't help but wonder what Alexander Hamilton would think about this idea.

by Michael Dorf My latest Verdict column tries to make sense of Donald Trump's announcement during last week's State of the Union address that he plans to keep open the US prison at Guantánamo Bay. As I note in the column, the per-prisoner cost in dollars of holding alleged foreign fighters and terrorists at Gitmo is orders of magnitude higher than holding them in a US maximum-security prison, while the moral and PR costs are even higher. Accordingly, I conclude that Trump's decision--supported broadly by other Republicans and some Democrats--needs to be understood as based on something other than a calculation of costs and benefits. That other something, I suggest, is the value of Gitmo as a symbol. For President Obama, Gitmo was a symbol of how the US lost its way under President GW Bush, a loss of faith in the rule of law. I argue in the column that Trump doesn't merely place less emphasis on the rule of law than Obama did, but that Gitmo is valuable as a symbol...

by Michael Dorf There has been much speculation lately about whether President Trump will attempt to fire FBI Director Wray, Attorney General Sessions, Deputy Attorney General Rosenstein, and/or Special Counsel Mueller. Taking any of these actions would flout the core principle that no one is above the law, but most such actions would be constitutionally permissible, because Wray, Sessions, Rosenstein, and Mueller are all employed within the executive branch. In my view, a well-designed government would not permit a high-ranking official to exploit his power over personnel to derail an investigation into his own alleged wrongdoing, but in this respect our government may not be well-designed. Or if it is, the problem may be that the only remedy is impeachment, which, for political reasons having nothing to do with the gravity of the wrong, is off the table. But if the president has some power to root out resistance to his offenses within the executive branch, and if he encounters sca...

by Neil H. Buchanan One of the remarkable aspects of the Fall 2017 tax debate was Republicans' willingness to say with straight faces that "tax cuts pay for themselves."  It is true that some Republicans vacillated between saying that their tax cuts would completely pay for themselves (sometimes even claiming that cuts would more than pay for themselves) and saying that the offset would only be partial, but even the latter claim is also almost entirely wishful thinking (although it at least it concedes something to reality). But some readers might be thinking, "Wait a minute, didn't the Joint Committee on Taxation (JCT) say that the $1.5 trillion cost of the bill would only be one trillion dollars after 'dynamic' effects were taken into account?" Yes, but JCT reached that conclusion only by averaging three estimates, two of which were from respectable forecasters that showed (making generous assumptions) at best very small revenue effects whil...

by Neil H. Buchanan The national debt is about to take center stage once again.  More accurately, an uninformed and opportunistic shouting fest about the national debt will soon consume Republicans and the pundit class in the United States.  These things never go well, and the next farce will probably outdo everything that has come before. The reason that debt obsession will again grip the nation is that we are quickly reaching the date when the statutory debt ceiling will have to be increased to prevent an economic and constitutional crisis.  We are currently living through another period in which the Treasury Department is using so-called extraordinary measures to allow the government to pay the bills that it has already incurred, measures that had been forecast to run out in late March or early April. But because Republicans front-loaded some of the cuts in their disastrous and regressive tax bill -- and especially because Donald Trump's Treasury is dutifully cha...

by Michael Dorf Blogs and scholarship move at different paces. Almost exactly a year ago, I noted that Prof. Sidney Tarrow and I had posted an article on SSRN with the provocative title Stings and Scams: ‘Fake News,’ the First Amendment, and the New Activist Journalism . As I noted there, the paper uses the effort by anti-abortion activists to show Planned Parenthood officials allegedly selling fetal body parts as an entry point to discuss the interaction of First Amendment doctrine with the changing landscape of activist journalism. That article is now finally in print and also available online as published in the University of Pennsylvania Journal of Constitutional Law . Although it has only become available in the last couple of weeks, the article bears a 2017 publication date, and we finished our final edits late last year. As a result, the article does not address a potentially important Ninth Circuit case that was decided a few weeks ago. As we note in the article, a f...