Dorf on Law

by Michael Dorf Last week's SCOTUS ruling in Upper Skagit Indian Tribe v. Lundgren   resolved nearly nothing. The Court vacated and remanded a ruling of the Washington Supreme Court for reconsideration of the question whether the defendant American Indian tribe had sovereign immunity, without the impediment of a misunderstanding of prior SCOTUS precedent under which the state court had previously labored. Yet as I explain in my latest Verdict column , the case is potentially important because of arguments made in a concurring opinion by Chief Justice Roberts, joined by Justice Kennedy--arguments which, if taken seriously, undercut the basis for state   sovereign immunity, as well as various other doctrines. To oversimplify, the Chief Justice's concurrence strongly suggests that tribal sovereign immunity and its exceptions should not be constructed in a way that denies claimants whose substantive rights have been violated any effective remedy. That principle is sound, ...

By Eric Segall For several decades, Professors Randy Barnett and Larry Solum have made substantial contributions to the judicial, scholarly, and political debates over originalism (among many other topics). It is no secret that I have had my share of disputes with both Randy and Larry, much to my regret, and for which I accept my share of responsibility. This blog post is a first attempt to try and mend fences, and to raise a crucially important question about originalism (as a matter of form, I refer to all law professors discussed in this post by their first names once I identify them as law professors).

by Diane Klein If you were writing a post-Civil War-era bodice-ripping romance novel set in Alabama, you couldn't do much better than to name your hero " Jefferson Beauregard Sessions " - after Confederate States of America President Jefferson Davis, and General P.G.T. Beauregard, who oversaw the Battle of Fort Sumter, which began the Civil War.  Of course, a romance-novel hero probably wouldn't bear such a striking resemblance to cookie mascot Ernest J. Keebler.

by Michael Dorf On this Memorial Day, in addition to honoring the men and women who died serving their country in the armed forces, I want to take a brief moment to remember and reflect on the legacy of two great American writers who died nearly simultaneously: Tom Wolfe and Philip Roth.

by Neil H. Buchanan Is the American press corps -- the very same reporters and editors whom Donald Trump has called "the enemy of the American people" who are supposedly inventing "fake news" to bring him down -- going to doom us all?  Is the wording of that question apocalyptic enough for you?  Even dialing it back a few dozen notches, it definitely is scary and depressing to see just how badly the press is doing its job in the Trump era. In my column here on Dorf on Law yesterday, I criticized a specific aspect of the press's performance over the past year or so.  The news articles -- not editorials or op-eds -- that the major news outlets publish have fallen into a completely predictable pattern, offering desultory horse-race coverage of political issues that somehow manages both to be content-free yet also to reinforce a whole series of tropes that reporters use as crutches. Perhaps the most puzzling of these tropes is the way that supposedly neutral...

by Neil H. Buchanan For years, the pundit Thomas L. Friedman has been the butt of jokes, rightly mocked for his pompously trivial writing.  From his op-eds in The New York Times to his books with silly/catchy titles ( The World is Flat , The Lexus and the Olive Tree ), his prose and his empty arguments have amounted to a relentless demonstration that middlebrow musings can pass for highbrow insights among far too many readers in this country.  That he has actually won multiple Pulitzer Prizes should make anyone who has won that award reconsider what matters in life. There are plenty of writers who are as bad as Friedman, but none combine the overweening sense of knowing how the world works based on no real expertise -- but on a lot of conversations with taxi drivers in exotic places -- with an overbearing moral superiority that would embarrass any person with an ounce of introspection.  Although Friedman remains an anti-Trumper, that appears to be based on Friedman's...

By Sherry F. Colb My column this week is about the strange hostility that some people, including conservatives, routinely exhibit toward trans people. Though so much of what we call "masculine" and "feminine" has more to do with culture than with biology, some folks seem to get very hung up on being asked to call someone a "woman" even though that someone was born with (and may still possess) a penis rather than a vagina. Among them are the same individuals who once railed against the use of the word "marriage" to describe a union between two people of the same sex. In my column, I use Ben Shapiro as an example of the conservative hostility to trans identity, but he is representative rather than unusual. This is presumably why the president, who promised during his campaign to be a friend and protector of the LGBTQ community, has tried to exclude trans people from military service and has moved to direct the placement of trans convicts in pr...

by Michael Dorf Last week, the Twitter feed of the Feminist Law Professors blog tweeted at me and ten other male law professors: So far as I can tell, only Professor Kerr and I replied. He wrote: "I've thought a lot about this issue in the last year; I'm a lot more aware of the problem than I used to be. I'm mixed on the merits of announcing a policy, though, as compared to pushing organizers to think about range of voices if the issue comes up." Whoever manages the Twitter feed for FLP responded positively to that. My reply was as follows: "That's certainly a commitment I have in ORGANIZING panels (of more than, say, 2 people); with Orin, it's something I'm happy to push w/r/t panels to which I'm invited." After a short exchange, I promised to blog about the issue, which I'm now doing. I confess that when I first saw the tweet, I was puzzled: Why, I wondered, is this a commitment to be undertaken only by men? I then realize...

by Diane Klein New York attorney and Trump 2016 donor Aaron Schlossberg is currently enjoying (which is to say,  suffering) his 15 minutes of fame for his now-viral xeno- and Hispanophobic rant in a New York City Fresh Kitchen in East Midtown.  What appears to have set him off was a Fresh Kitchen employee having the temerity to speak to customers and other employees in Spanish.  His tirade itself contained a "greatest hits" of alt-right clichés, each premised on errors of fact and law that would embarrass an attorney actually concerned about getting things right.  But it won't get him disbarred (or even disciplined).

By Aziz Rana I tend to avoid social media, but felt compelled to respond in some way to Jonathan Chait's short essay in New York Magazine accusing Jedediah Purdy and me of being part of an illiberal or authoritarian left, unconcerned with Trump and suspicious of American democracy wholesale. To begin with, this characterization is clearly wrong about both the substance of Jed's work over many years and his own personal political engagements since Trump appeared on the stage. As for me, Chait seems to misunderstand the nature of my arguments in "Goodbye, Cold War," the N+1 essay he references.

by Neil H. Buchanan Last Friday, I argued that Democrats should not preemptively talk themselves out of the idea of impeaching Donald Trump, should the opportunity ever arise.  Whatever the political merits of talking about impeachment during political campaigns, it makes no sense at all to pass up an opportunity to remove a man from office who has committed impeachable offenses.  Yet Democrats, at least as a rhetorical matter, seem to be setting themselves up for failure by claiming piously that "only the most serious" offenses are impeachable, which could quickly come to mean that no offense (or set of offenses) is serious enough. In that column, I nodded to the political reality that, at least for now, Trump is in no danger of being impeached -- and certainly not convicted -- because of Republicans' decision to ignore everything that he has done.  Further exploring that reality, my new Verdict column this week explains why Democrats' congenital timidity is a...

by Michael C. Dorf Monday's SCOTUS ruling in Murphy v. NCAA is most notable for what it did not occasion: disagreement over the validity and scope of the Court's anti-commandeering doctrine. On Wednesday I offered various hypotheses to explain why the Court's more liberal justices have come to accept a doctrine that was ideologically divisive when adopted in the 1990s. Here I discuss the issue that did divide the justices in Murphy : severability. Murphy  features three quite different approaches to severability. Which one will predominate going forward is difficult to say, however, because severability is a lot like standing, the political question doctrine, and various other procedural devices that justices appear to manipulate based on their views of the merits. A justice who believes strongly in a law's unconstitutionality will tend to want to rule against severability -- thus maximally invalidating the law -- whereas a justice with a less unfavorable view of ...

by Michael C. Dorf Monday's SCOTUS decision in Murphy v. NCAA need not have any long-term practical consequences for the legality of sports gambling. The Court invalidated the Professional and Amateur Sports Protection Act (PASPA) on the ground that it "commandeered" state legislatures into passing or retaining laws forbidding sports betting, in violation of a principle established in 1992 in New York v. United States . New Jersey and other states can now legalize sports betting, but Congress could achieve everything it sought to accomplish through PASPA with a new law. The flaw in PASPA was that it told states to legislate, but Congress could legislate directly by banning sports betting, with or without exceptions as permitted by state law. Doing so this way--via "conditional pre-emption"--would be a straightforward exercise of the Commerce Clause power, as was expressly recognized as a permissible alternative to commandeering in New York .

by Neil H. Buchanan As the news cycle settles into its dreary day-to-day sameness even in the face of once-unthinkable scandals and policy blunders, many commentators are still trying to figure out how Donald Trump makes decisions.  It is a tempting puzzle to try to solve, not only because he wields enormous power but because he talks and texts like a simpleton and thus seems as though he should be an easy person to figure out. I am not at all sure that it matters whether anyone finally explains how to predict Trump, but I do strongly suspect that it matters if people become convinced that an incorrect theory is the key to the puzzle.  For example, during much of the 2015-16 campaign, and especially during the transition period, plenty of people said that Trump would suddenly realize how important the presidency was and thus stop acting like a petulant child when it mattered.  We know how that worked out. Ever since he took office, people have been trying to figure ...

by Michael Dorf Per my usual custom, I present the exam I administered to my students after the recently concluded semester. Submit your answers in the comments, but unless you paid tuition, don't expect me to grade them.

by Diane Klein The man The New Yorker  just last month aptly called "the fixer di tutti fixers," Rudy Giuliani, now looks more like the ranting Mr. Smallweed of Charles Dickens' Bleak House , the "baleful old malignant who would be wicked if he could," waiting for someone to shake him up and return both his neck, and his sanity, to public view.  But this is no recent transformation.  A closer look shows that Giuliani in his prime was every bit as great a threat to democracy and the American rule of law as his capo  Donald Trump.  Giuliani is, after all, the man who long ago said , Freedom is not a concept in which people can do what they want, be anything they can be.  Freedom is about authority.  Freedom is about the willingness of every single human being to cede to lawful authority a great deal of discretion about what you do.  Freedom is obedience to a legal authority. (Except, it now appears, when it comes to Trump and a subpoena from M...

by Neil H. Buchanan Like Richard Nixon before him, Donald Trump is now betting all of his political chips on the hope that foreign policy successes will distract everyone from his problematic relationships with the truth, the law, and basic decency. Unsurprisingly, even in the midst of a modest success, Trump again managed to outdo even Nixon's ick factor, this time standing in front of a group of released political prisoners and praising their captor .  ("I want to thank Kim Jong-un, who really was excellent to these three incredible people.") None of Nixon's international grandstanding helped him when the walls closed in, and it is difficult to imagine even some significant foreign policy successes being enough to save another doomed presidency.  The question, however, is whether Trump's presidency will be doomed by impeachment (or its specter) or by the voters. This question has generated some interesting disagreement among people who want to rid us of ...

By Eric Segall  Professor Larry Solum just posted an article on SSRN titled “Surprising Originalism.” On Twitter, Solum invited comments. Here are mine.            In this piece, which was the basis of a lecture at the University of Akron, Solum repeats much of what he has said before about originalism and claims that much of the essay might surprise those not closely following recent scholarly debates over originalism. The only big surprise in this piece is that Solum's brand of originalism is indistinguishable in substance from living constitutionalism.

By William Hausdorff As articles accumulate that the end may finally be nigh for the Trump administration (see here , here , or here , I find myself thinking about Al Capone. After a couple of short-term contempt of court convictions, the gangster was finally convicted not of racketeering and murders, but of failing to pay income taxes on his illegal income. For the prosecutors, this was a more expedient approach than amassing the evidence (and keeping the witnesses alive) necessary for the more serious crimes. Is this going to be the Trump story, for “the most corrupt administration ever” (in Senator Elizabeth Warrren’s terms ) to be brought down by undeclared campaign contributions to porn stars?

by Sherry F. Colb In my column for this week, I explore the inconsistency between the arguments in two conversations, both of which presented a Free Speech issue as well as competing concerns. In one conversation, the topic was a rape app, in which victims can post the name of the fraternity where they were assaulted. In the other conversation, the topic was a racist and anti-Semitic skit that some fraternity brothers performed. I conclude that even though the protection of Free Speech comes up in one of the conversations, what actually motivated the respective positions taken is an identification with presumptively beleaguered white males.

by Michael Dorf ( Cross-posted on Take Care ) Whether Michael Cohen and/or Donald Trump violated federal campaign finance law in paying $130,000 of hush money to Stormy Daniels turns on whether that payment was "for the purpose of influencing any election for Federal office." If so, then it was a campaign contribution as defined by 52 U.S.C. § 30101 (8)(A)(i). If the money was a gift from Cohen then it vastly exceeded the maximum individual campaign contribution. Cohen would be on the hook for making the contribution and Trump, if he knew about it, would be on the hook for accepting it. (A "loan" from Cohen would also count. It's right there in the statutory definition.) Meanwhile, if the money came from Trump, it would count as a campaign contribution to his own campaign that was exempt from the cap but still subject to the requirement of reporting, with which Trump clearly did not comply. Trump, Rudy Giuliani, and others in Trump's orbit have said th...

by Diane Klein As the Michael Cohen/Stormy Daniels/Donald Trump $130,000 "hush money" payment scandal continues to roil the airwaves, most American law students are immersed in final exams, with the July 2018 bar exam looming for this month's law grads, and the Multistate Professional Responsibility Exam  (MPRE) either just behind them or ahead for August 2018.  Many are dutifully working through hypotheticals in professional responsibility - the law governing lawyers - which is among the most frequently bar-examined subjects, and is obviously crucial to the ethical discharge of an attorney's obligations.  Meanwhile, the real-world behavior of highly-placed lawyers, including Michael Cohen (who now has his own lawyer, David Schwartz) and Rudy Giuliani, who recently joined Trump's legal team, has become so central to our understanding of the issues that even MSNBC commentators like Rachel Maddow have had to take a break from covering the antics of the major play...

by Neil H. Buchanan Conservatives are eager to attack plenty of things that liberals are willing to defend, and vice versa.  Abortion rights, climate policies, progressive taxes, and so on are all the subjects of fierce debate by both sides.  There is, however, one huge topic on which the two sides are notably uneven in their passion. What is the one thing that every conservative is eager to attack yet too many liberals are oh-so-hesitant to defend?  Unions.  To conservatives, labor unions are a reliable bete noire, even though their most passionate base of voters is ironically made much worse off because of the decline of unions.  Unions exist in the conservative imagination as an embodiment of everything bad about liberalism.  For many liberals, however, the response to attacks on unions is to uncomfortably clear their throats and change the subject. Unsurprisingly, this has led us to the brink of an abyss, with declining union membership amid a wav...

By Eric Segall The Supreme Court is not scheduled to hand down any more opinions until May 14. From that day until the end of June, the Court is likely to issue country-changing decisions in a number of different areas of the law. If the Justices are going to go on a spree striking down statutes, executive orders, state redistricting, and police practices, they'll have to do it through the Living Constitution.

by Diane Klein And now, in coloring-book form, a man who needs no introduction, at least for those who have been following Trump-Russia, or own a television.  James Comey 's book tour, in support of his memoir A Higher Loyalty : Truth, Lies, and Leadership , released April 17, 2018, put him back in the national spotlight.  But he has hardly been out of it since July 5, 2016, when he released the now-infamous statement  about the investigation of Hillary Clinton's use of a private email server.

by Michael Dorf In my Verdict column this week, I discuss the recent Ninth Circuit ruling in Naruto v. Slater , which affirms the district court's dismissal of a copyright lawsuit brought by PETA on behalf of a macaque (Naruto) who snapped a selfie that the defendants then used in a book. I explain what the court held and offer some criticisms of PETA's decision to bring the lawsuit in the first place. Given all of the horrific things that humans do to nonhuman animals, copyright infringement seems like it ought to have relatively low priority. I end on a cautiously optimistic note, pointing out that lawsuits that fail in court can nonetheless bring beneficial publicity to a cause. While the cause of monkey copyrights is silly, perhaps the lawsuit will bring some attention to habitat loss. Meanwhile, my column mostly just reports on rather than evaluates the reasoning of the majority and concurring opinions in Naruto . Here I'll critique them a bit by pointing out the ...

by Michael Dorf Largely overshadowed by the oral argument in the Travel Ban case last week, the Supreme Court issued a potentially important opinion in Jesner v. Arab Bank ,   further limiting the availability of relief for plaintiffs suing under the Alien Tort Statute (ATS). Although I disagree with the thrust of the Court's restrictive ATS jurisprudence in recent years, I'll have some words of praise for Justice Kennedy's majority opinion in Jesner , because it makes conceptual sense out of what had been a deep  puzzle since Justice Souter's 2004 majority opinion in Sosa v. Alvarez-Machain . Before reading on, be forewarned that this is a fairly wonky analysis aimed chiefly at Fed Courts nerds.