Dorf on Law

by Neil H. Buchanan The entertainment battlefront in the culture wars has been especially active lately, with conflicts emerging from seemingly every direction.  This past weekend, the manufactured outrage du jour was focused on the stand-up routine at the annual White House Correspondents' Dinner, with conservatives howling about their foe's supposed insensitivity and panicky journalists clutching their pearls. Last week, I wrote a column in Verdict discussing the recent controversies surrounding "The Simpsons" and the reboot of "Roseanne."  Because there was more to say about both shows, I wrote a followup column here on Dorf on Law this past Friday.  Even after writing that column, I still had not covered the territory, so I ended by saying that "the deeper social issues raised by 'The Simpsons' and 'Roseanne' merit further discussion.  I will discuss the former here and return to the latter in my next Dorf on Law post on We

by Neil H. Buchanan Entertainers have been making the news again recently for their political statements, often not in good ways.  I will leave perhaps the biggest current example alone, because I simply do not possess the necessary background knowledge to say anything about Kanye West.  I did, however, publish a Verdict column earlier this week in which I discussed "The Simpsons" and the reboot of "Roseanne," both of which are in my wheelhouse. My central argument in that column is that the recent controversies over those two shows have been hijacked by the right as merely another excuse to pretend that there is a scourge of political correctness that is ruining the country.  (I will set aside for now the difficult fact that there is no actual definition of that much-used term.  Why should that stop anyone from decrying it?) With the Foxiverse in constant manufactured panic mode about "Stalinist" lefties who are supposedly trying to force people

by Michael Dorf Both attorneys in the oral argument in the SCOTUS travel ban case turned in what were overall very good or even excellent performances. The challenge to the Travel Ban involves both statutory and constitutional claims. I'll say a few words about the statutory claims before turning to the constitutional ones. I'll conclude with the provocative suggestion that Korematsu v. US is controlling in a way that benefits the plaintiffs.

by Michael Dorf Last week the Democratic National Committee (DNC)  filed a lawsuit in federal district court in the Southern District of New York against the Russian government, two arms of the Russian government, three foreign nationals (Azerbaijani-Russian billionaire Aras Agalarov, his son, pop singer Emin Agalarov, and Australian-born WikiLeaks founder Julian Assange), Wikileaks, the 2016 Trump for President campaign, six individuals who were part of or assisted the Trump campaign and/or Trump administration (Donald Trump, Jr., Paul Manafort, Roger Stone, Jared Kushner, George Papadopoulos, and Richard Gates, but not President Trump), and ten unnamed “John Doe” defendants. The lawsuit includes seven counts of civil liability under various federal statutes, one count under a Washington, D.C. statute, three counts under Virginia common law, and one count under a Virginia statute. The lawsuit raises a host of interesting legal questions, including whether the Russian government a

by Sherry F. Colb My column for this week  discusses a suggestion by Kevin Williamson, almost-columnist for the Atlantic, that women who have abortions should be hanged. I explore how his statement is misogynistic in a way that the pro-life position itself may not be (at least not inherently). I am pro-choice, so I regard the pro-life position as harmful to women in its effect, but pro-life advocates could reasonably disagree with me about the likely impact on women of prohibiting the procedure in the future. And for those of you who have read a New York Times column saying that the end of Roe v. Wade  would likely leave abortion legal in many states, there is no reason to think that is true. With both Houses of Congress and the President in the Republican camp, Congress could outlaw abortion throughout the country the very moment that the Court overturns Roe . In this post, though, I want to focus on one feature of what makes Williamson's words about abortion after Roe  so offe

by Neil H. Buchanan When is a tax system simple?  That is an ultimately arbitrary and meaningless question, so a variation might (or might not) be more helpful: When is a tax system simpler ?  Certainly, every politician in America claims that she or he knows what tax simplification is and how to make it happen.  Unsurprisingly, they are all confused -- sometimes in a well-meaning way, sometimes not, but unfailingly confused.

by Michael Dorf Last night I had the honor of delivering some brief remarks to the soon-to-be-graduated JD class of 2018 at Cornell Law School's 3L Dinner. On most such occasions I speak off the cuff. For this one I chose to write out my speech. I deviated a bit from my prepared remarks, but not that much. They follow:

by Neil H. Buchanan Last Fall, as the tax debacle was playing out, I frequently mocked the media for adopting the Republicans' spin that the tax system would be fundamentally changed by the bill that Republicans  eventually rammed through Congress (without hearings).  Republicans talked as if they were going to change the very nature of the tax system, but it seemed obvious that they were going to muck around with the system simply to shovel ever more money to rich people and corporations. That is, indeed, what happened.  The final bill was a mess, and its regressivity is breathtaking.  Even so, it seemed that reporters had received a memo ordering them to use the word "sweeping" whenever they talked about the Republicans' tax bill.  As early as September, this was already a tired description , but "sweeping" reform is what the Republicans said they were providing, and the mainstream media obediently played along. Despite the horrible final legislative

by Michael Dorf In my latest Verdict column I discuss the Senate Judiciary Committee hearing last week on the nomination of Wendy Vitter for a federal district court judgeship. Vitter refused to answer the question whether she thought Brown v. Board of Education was rightly decided. I explain that this is probably not a sign that Vitter is a closet segregationist but instead a rational strategy for avoiding having to say whether she thinks that Roe v. Wade was rightly decided. Skeptical readers might wonder why Vitter feels the need to avoid expressing a view about Roe , in light of two facts: (1) Given her past statements about abortion, it's obvious that she thinks Roe was wrongly decided and would undoubtedly construe abortion rights as narrowly as possible in any case involving them, even if she would not expressly defy SCOTUS precedent; and (2) Republican Senators, who hold a majority of the chamber, would be happy to confirm a nominee with Vitter's views about aborti

by Diane Klein The story swirling around Trump personal attorney Michael D. Cohen  is unfolding so quickly that it is almost certainly too soon to say much that is definitive about it.  What is clear, however, is that following the FBI raid on his office, home, and hotel room (at the Loews Regency hotel on Park Avenue, his temporary digs during an apartment renovation), America is getting a perhaps much-needed lesson in the contours of attorney-client privilege, the crime-fraud exception, and the attorney-client relationship more generally.

By Eric Segall The Justices who sit on the United States Supreme Court are flesh and blood people too.   Many court commentators, scholars, and pundits often forget that the Justices are flawed just like the rest of us and sometimes act in accordance with their feelings as much as what they perceive the law to require.   It is possible that for reasons having little to do with the law but a host of other factors, Justice Neil Gorsuch may surprise many people in an upcoming important case involving the alleged free speech rights of public-sector union employees.

by Neil H. Buchanan Will Donald Trump induce his pliant congressional Republican allies to turn him into even more of an autocrat?  Last week, I discussed reports that Trump is channeling his inner Nixon once again, this time trying to impound funds from the most recent spending bill.  Essentially, Trump wants to be able to cancel items in that bill, even though he signed it, because he did not like all aspects of the new law. I will summarize the mechanism for rescinding funds in a moment, but it is important to note up front that this is probably a dead issue, at least for now.  Politico reported two days after I published my column that "Republicans who helped craft the legislation are in open revolt" against the idea of allowing Trump to cancel some of its provisions.  Even so, we should remember that all bad ideas seem to come back from the dead in the Trump era.  To take but one example, his absurd border wall simply will not die. Whether or not Trump is ever

by Michael Dorf Judged by recent stock market volatility, investors keep changing their minds about whether a genuine trade war--with its attendant reduction in overall economic activity--is in the offing. Even if Chinese concessions on technology transfer and tariffs enable us manage to avert a trade war, however, one feature of the heretofore-discussed retaliatory measures by US trading partners warrants consideration, because it poses a question about the legitimate scope of international politics, not just economics. It was widely reported that in choosing products for retaliatory tariffs in response to the Trump administration's announcements of tariffs first on steel and aluminum, and then on a wide range of Chinese products, Chinese government officials sought to concentrate the pain for maximum political effect. Similar efforts were under way by government officials in other countries when it looked like the steel and aluminum tariffs would hit them.

by Neil H. Buchanan In my Dorf on Law column earlier this week, I referred to "House Majority Leader Kevin McCarthy (the man who, by the way, would have been Speaker of the House if he could only have shut up about the Republicans' real reason for pursuing the Benghazi inquisitions)."  It was because of McCarthy's loose lips that Paul Ryan became Speaker in late 2015. Little did I know that, less than a day later, McCarthy would be back in the running for the Speaker's position -- or, more likely, House Minority Leader -- when the man who displaced him shocked Washington by announcing his retirement. Yes, Paul Ryan is walking away at the end of 2018.  He has provided plenty of material for people like me to write about over the years, but he will not be missed.  I expect to write a few additional columns about specific Ryan-related policy matters before he truly goes away, but for now I will focus on how his retirement reflects on him and exposes how his

by Sherry F. Colb & Michael C. Dorf On a recent episode of the television show Roseanne , the main character and her husband Dan fall asleep in front of the television. They miss Black-ish , a show about a wealthy Black family, and Fresh Off the Boat , a program about a Chinese American immigrant family. Both shows, like Roseanne , air on ABC. When Dan wakes up and tells Roseanne that they did not see the shows about "Black and Asian families," she replies, "They're just like us. There, now you're all caught up." This scene feels offensive at a gut level. But what makes it offensive? Most straightforwardly, it implies that shows about African Americans and Chinese immigrant families have nothing interesting to offer an audience, beyond the stale observation that people of all races, colors, and creeds are essentially the same. Viewing the two programs in this way, one would conclude that watching Black-ish and/or Fresh Off the Boat  would be pointl

by Diane Klein A week ago, Alexander van der Zwaan was sentenced to 30 days in prison and a $20,000 fine for lying in the Mueller investigation.  In light of the current events engulfing Trump consigliere  Michael Cohen, there is an air of prefiguration around the fact that the first person actually to go to jail for his involvement is a lawyer.  But van der Zwaan and Cohen are just two of the seeming legion of lawyers arrayed on all sides of the conflict.The Trump administration's legal troubles have made MSNBC-watching-household names out of many lawyers, some in relatively obscure positions ( Rachel Brand , anyone? How about  Noel Francisco ?).  It's not easy to keep track of them all.

by Neil H. Buchanan Donald Trump had not even been in office for ten days before he had his first "Nixon moment," firing acting Attorney General Sally Yates for refusing to carry out his unconstitutional executive order to ban Muslims from entering the United States.  Sacking Yates brought back uncomfortable echoes of Richard Nixon's infamous Saturday Night Massacre, in which the soon-to-be-ousted president fired the Attorney General and the Deputy Attorney General for refusing to obey Nixon's orders. Almost fifteen months later, Trump is apparently no closer to being driven from office.  Indeed, the few detractors in his party have largely silenced themselves, and Republicans are even trying to whip up support for the midterm elections by telling Trump's base that liberals would impeach Trump (as if that would be a bad thing).  The Yates affair is merely a distant memory, not even in the top half of Trump's outrages. We continue to hear that some cong

By Eric Segall Last week I had the pleasure of attending a conference on legal scholarship at Loyola University of Chicago School of Law.  There were many fine speakers and interesting topics. Kudos to Professor Darren Bush, Lawprofblawg, and the students on the Loyola Law Review for putting on such an important symposium. I want to focus in this blog post on one aspect of the discussion. I argued that very few scholars, or for that matter anyone except hiring and tenure committees, read 50 to 80  page articles, usually with over 300 footnotes. As an example, I pointed to a forthcoming Harvard Law Review 80-page article on the original meaning of the word "guarantee" in the Guarantee Clause of the Constitution. The article is excellent, and I don't mean to pick on it, but I seriously wonder how many people will read it from cover to cover. And, this is a timely piece in the most prestigious law review. 50-page articles on esoteric topics in lower ranked journals the su

by Sherry F. Colb My latest  Verdict column  explores the recently enacted San Francisco fur ban and whether it makes sense, from an animal rights perspective. For this post, I want to consider a somewhat tangentially related matter, the shooting at YouTube headquarters. What unites the issue of fur bans with the recent shooting is that Nasim Najafi Aghdam, who shot and injured several (apparently randomly selected) YouTube employees last week before killing herself, was reportedly a vegan animal rights activist. Any perceived association between animal rights activism and violence is unwelcome and calls for some response from the vegan community. Though I do not speak for anyone other than myself, I am a vegan proponent of animal rights, so I will set out my own reactions to what happened.

by Neil H. Buchanan Is the craziness that we are seeing unique to the post-November 8, 2016 era, or has it been there all along?  That is, is the problem specifically about Donald Trump, or is it the tumorous manifestation of a more systemic and longer-metastasizing cancer? Observers have been asking some version of this question nonstop for more than a year, and it does not seem to matter what the subject is.  Racism, xenophobia, attacks on the rule of law, and on and on.  Is it all because of Trump, or is he merely a crude version of something else? On the issue of taxes, it is clear that the problem goes far beyond Trump.  Republicans have spent decades honing their ability to lie about taxes, from fabricating stories about the miraculous effects of the Reagan and Kennedy tax cuts to embracing the "tax cuts pay for themselves" nonsense that once was sidelined even within their party.  And why stop asserting that family farms and businesses have been ruined by the est

by Neil H. Buchanan I have recently been musing about reports that the Republicans' might propose yet another round of tax cuts.  The big-ish 2017 tax bill that they rushed through -- so quickly that one might imagine that Republicans had never heard of the law of unintended consequences,  or even the simple adage "look before you leap" -- remains distinctly unpopular, and Republicans' continue to lose elections and sink in the polls, no matter how much they lie about "middle-class tax cuts." In a Verdict column ( here ) and two recent Dorf on Law posts ( here and here ), I discussed the political strategies of Republicans and Democrats with regard to this possible new round of cuts.  It seems that Republicans really have nothing else to talk about, and they have convinced themselves that they can always win by proposing to cut taxes, even though the evidence says otherwise. My most recent Verdict column sets aside the partisan electoral angles t

By William Hausdorff Like the neighbor down the street who is gradually paying less attention to his dress and personal hygiene, the US conservative establishment seems to have stopped caring how the rest of the world views us.     This is another casualty of the era bracketed by Bush and Trump, but less commented on. The importance of the US image had long been a mainstay of mainstream political discourse in the US.   If the US pulled out from Vietnam, politicians demanded, what would the rest of the world think of US resolve in other parts of the world? The US government needs to show it is a trusted partner that keeps its commitments. America needs to project strength and reliability.   “Peace with honor” was the mantra of the Nixon administration as it sought to extricate the US from Vietnam.     Of course, this so-called “concern” for the image of the US was always a pretense undermined by actual US policies.   After all, the tremendous, ongoing damage being done t

by Michael Dorf Judge Stephen Reinhardt, for whom I clerked in 1990-91, died last week. On Verdict , I've written an essay in his memory .  I customarily write a blog post exploring some aspect of my Verdict column in greater depth, but today I'll just let the column speak for itself. Bill Hausdorff will have a blog post here later this morning.

By Eric Segall Justice Antonin Scalia was the most controversial judge of his generation. A superb writer and public speaker, he relentlessly urged judges to adopt a strict textual and historical approach to statutory and constitutional interpretation. His most famous judicial opinions were his virulent dissents where he often lambasted his own colleagues for imposing their personal values on the American people instead of adhering to the rule of law. He routinely toured the country ranting to his audiences of law students, lawyers, and law professors that the Constitution is “Dead, Dead, Dead!” Love him or hate, he was impossible to ignore. Capturing Scalia’s legal contributions on and off the Court is no easy feat, but Professor Rick Hasen’s new book, “ The Justice of Contradictions: Antonin Scalia and the Politics ofDisruption ,” brilliantly tells the story of Scalia’s long career. I strongly recommend this book to anyone interested in the Supreme Court or constitutional

by Rabbi David Seidenberg Fox News' Laura Ingraham is in the headlines for just the kind of thing she has always loved: being a troll.  Back in 1984, when we were both enrolled at Dartmouth College, she secretly recorded a confidential support group for gay students, and published a transcript in The Dartmouth Review  - complete with the names of the students at the meeting, students who were in the closet, back in the day when being outed could mean getting rejected for jobs and attacked by drunken frat boys.

by Michael Dorf Imagine my surprise when I awoke yesterday morning to find that I had been (more or less) name-checked by the leader of the free world. Although the initial tweet (below) did not use my Twitter handle, so many of my own followers alerted me to it that I could not scroll through them all. Given the spelling, I at first assumed that the president with the very good brain was actually tweeting about law professor Michael Dorff or one of the many other Michaels Dorf/Dorff/Dorph out there. But after a bit of research, it turned out that I was indeed the target of the wrath of the Tweeter in Chief. I was honored.