Dorf on Law

by Michael Dorf On Tuesday, President Trump tweeted that Google had "rigged" its search results to yield only "fake news" -- i.e., accurate stories from reputable sources that portray him in a negative light -- when one searches for news about him. He added that this "very serious situation . . . will be addressed." Later that day, Trump extended his warning to Facebook and Twitter, which he apparently believes are also rigging their algorithms to promote anti-Trump "fake news" at the expense of more pro-Trump sources. The accusation is almost certainly nonsense. I say "almost certainly" because Google does not make its algorithm public, and so it is impossible to know for certain that deep within it there is no line of code that favors anti-Trump stories, but Google has certainly denied any such "rigging." Facebook and Twitter are a bit different. As social media sites, their algorithms give prominence to material shared...

by Neil H. Buchanan Amid the unending supply of dishonesty and outright sleaze emanating from the Trump White House -- which, to restate the obvious, differs from the last few decades of Republican practice only in degree, not kind -- it is sensible to wonder whether the Republicans' political success is an argument for Democrats to honor their opponents by copying them. Maybe Michelle Obama's famed maxim, "When they go low, we go high," was a nice thought that has been proved not to work.  All three branches of the federal government and most state governments are now doing serious damage under Republican leadership.  What good did going high do for Democrats (or the country)? I have certainly argued many times that Democrats should not unilaterally disarm, but my point has generally been that they should not compromise on policy positions in a foolish way.  The classic problem has been that Democrats -- especially of the Democratic Leadership Council right-c...

by Sherry F. Colb In my column for this week , I discuss trigger warnings, notifications by university faculty to students that they will be reading (or attending a lecture containing) material that could be very upsetting or disturbing. Warnings might precede presentations about such topics as sexual assault, child molestation, or wartime violence. Part of my discussion centers on the likely impact of an obligation to give warnings on the faculty who have to (or feel obliged to) give them and therefore on the materials that faculty choose to present. In this post, I want to consider the different ways in which people might feel forced to say or do something that they would rather not say or do. As a professor in a university, a person would plainly feel the press of coercion if she received a communication from one of her superiors ordering her to give trigger warnings prior to any discussion of rape. That would be one way to compel compliance with a trigger warning policy, a poli...

by Neil H. Buchanan When commentators review the litany of, shall we say, the problematic aspects of the emergence of Donald Trump as a political force, the list almost always includes Trump's absolute refusal to release his tax returns.  That refusal, we now know, was only the leading edge of examples of "rules of the game" that Trump would ignore, proving again and again how often we have relied on voluntary (or merely reputationally enforced) rules that truly matter but that never needed to be formally enacted into law. I am hardly the only tax scholar who is of mixed feelings about that particular Trumpian refusal.  On the one hand, I most definitely understand the importance of norms, and seeing a candidate's or president's tax returns gives citizens the ability to get a sense of that person's honesty and integrity.  That is surely why, for example, Elizabeth Warren recently put ten years of her tax returns up for public inspection on a website.  A...

by Michael C. Dorf Last week the Environmental Protection Agency announced a proposed new rule governing emissions from existing power plants. The proposed rule --titled the Affordable Clean Energy (ACE) rule--would substitute for the Obama administration's Clean Power Plan (CPP), which the Trump administration had previously announced that it proposed to repeal (and which had not yet gone into effect, thanks to a 2016 Supreme Court order  staying it so that lawsuits seeking to block it could proceed first). CPP was the Obama administration's domestic effort to live up to the US's obligations under the Paris Climate Accord. With Trump having withdrawn the US from the Paris Accord, he felt no need to keep it in place--and has been affirmatively hostile to it in order to favor his supporters in the coal industry. Of course, the proposed repeal of CPP does not actually state that it is a giveaway to coal executives and miners. Instead, the EPA under Trump contended that...

By Eric Segall See if you can identify this person. He was one of this country's most important judges before he recently retired.  He is a white male from an educated family who grew up in one of our most populous states. He grew up a Republican, but his judicial decisions on social issues did not reflect the politics of the current GOP. He came of age before the Federalist Society came into existence. His opinions were often non-originalist and non-doctrinalist. He was fiercely independent. Who is he? If you first guessed Richard Posner, that would be correct. If you guessed Anthony Kennedy, you'd also be correct.

by Neil H. Buchanan In my Dorf on Law column two days ago , I expanded on my argument that NeverTrump conservatives now face a put-up-or-shut-up moment.  Whereas the standard commentary argues that liberals and progressives must not go "too far to the left," the reality is that NeverTrumpers must go wherever the Democrats take them, because no disagreement on specific policy issues (minimum wages, free college education, Supreme Court appointments) is more important than the preservation of constitutional democracy. That column was part of my response to the emergence of "democratic socialism" among some Democrats and the Republicans' frantic attempts to use the word "socialist" as a scare tactic to woo swing voters.  My point was that honest people know that democratic socialism is a modest version of what is standard practice in most of Europe's richer democracies, not an attempt to go back to Stalinist gulags.  The people who know better -...

by Sherry F. Colb Apparently South Koreans are reconsidering the law governing sexual assault. I went on the radio there (via phone) to join the conversation (in English). You can listen here .

by Michael C. Dorf My latest Verdict column unpacks and critiques the justification then-attorney Brett Kavanaugh gave in his recently released 1998 memo to Ken Starr for not "going easy" on President Bill Clinton and instead proposing to ask Clinton such dignity-of-the-office-restoring questions as this: "If Monica Lewinsky says that you masturbated into a trashcan in your secretary's office, would she b[e] lying?" Kavanaugh said he was outraged by Clinton's behavior, which warranted the tough questions. The ostensible point of these questions was to show that Clinton had lied in his deposition in the Paula Jones case when he denied a sexual relationship with Lewinsky. As I explain in the column, that won't wash. It would have been simple to ask questions of Clinton that would expose him as lying without proposing seven out of ten questions focusing on precisely what sex acts were performed where. In my column, I consider the possibility that the 1...

by Neil H. Buchanan The word socialist has again become one of the talking points that Republicans are using against Democrats.  With some progressive Democrats now following Bernie Sanders's lead and calling themselves "democratic socialists," there is worry on the left and hope on the right that Democrats will lose some voters who would otherwise be open to persuasion. I plan to analyze this issue in two ways.  In today's column, I will expand on a point that I made in my most recent Dorf on Law column , in which I stated that anti-Trump intellectuals who are to the right of the political center bear a special responsibility to educate centrist and right-of-center voters about the non-scary reality of what the democratic socialist label actually means. In short, it is not just liberals who must write columns with titles like: "It’s Time to Reclaim ‘Socialism’ From the Dirty-Word Category."  That should now be what NeverTrumpers spend their time d...

by Michael Dorf After two days of deliberations, the jury in the Paul Manafort trial took a break over the weekend, with the expectation of resuming this morning. On Friday Judge T.S. Ellis III ruled that he would not reveal jurors' identities after the trial, to spare them the death threats that he has apparently been receiving. Meanwhile, President Trump told reporters that he thought "the whole Manafort trial is very sad,” not because it shows what poor judgment he displayed in making Manafort his campaign chairman but because of what "they’ve done to Paul Manafort,” who “happens to be a very good person." Because the jurors have not been sequestered over the weekend, there is a decent chance that one or more of them will have by now seen Trump's remarks, prompting one Washington Post columnist to speculate that Trump has engaged in illegal jury tampering. Meanwhile, does the Manafort verdict matter? Even if Manafort is acquitted or the jury hangs, speci...

by Diane Klein ...tick, tick, tick...

by Michael Dorf Does President Trump really have the power to revoke the security clearance of former CIA Director John Brennan based on Trump's peeve at Brennan's harsh criticism of Trump's statements, actions, and character rather than any indication that Brennan leaked or otherwise misused classified information? I'm not an expert in national security law, so I'll set aside any statutory or regulatory limits that Trump may or may not have violated. I do think there is a First Amendment problem here, however. When he was serving on the Massachusetts Supreme Judicial Court, Oliver Wendell Holmes, Jr. famously wrote that a police officer who was fired by the mayor in response to his political canvassing and vote solicitation "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." Yet modern case law in both the employee speech context and in the broader context of so-called unconstitutional conditions  ...

by Neil H. Buchanan When anyone but his supporters talks about Donald Trump, the conversation is clear and unwavering.  No matter the speakers' positions on specific policies, from lefty progressives to hardcore right-wing neoconservatives and all positions in between, everyone understands clearly that Trump poses an existential danger to the the rule of law.  All agree that he must be stopped in order to save constitutional democracy itself. Yet an odd thing happens when it comes to Democrats actually choosing candidates and articulating positions in opposition to Trump.  Suddenly, those resolute anti-Trump voices are unsparing in their criticisms of Democrats who -- we are told endlessly -- are being too extreme to win over voters.  Democrats are being told (ad nauseam) that they have to compromise in order to win. Because "compromise" is one of those exalted concepts in American punditry -- right up there with "moderate" -- this puts those accused of n...

by Michael Dorf Last week, Vice President Pence announced the creation of a "Space Command," a first step towards what President Trump hopes to obtain from Congress: a "Space Force" as a full-fledged new branch of the military to take its place alongside the Army, Navy, Air Force, Marines, and Coast Guard. Despite the appeal of a Space Force to pre-adolescent boys whose mommies and/or daddies tuck them into Star Wars-themed blankets (and to a president whose emotional age matches the youngest of these boys), a Space Force is a terrible idea. Our armed forces already suffer due to inter-branch rivalry. Although inter-branch competition can lead to some benefits (in much the way that a monopolistic company can benefit from the added incentives that come from competing one division against another), such competition within the military is a net loser: extra cost due to redundancy and coordination difficulties are the main problems. Creation of yet another branch w...

by Neil H. Buchanan Republicans are understandably having fits about the increasing popularity of Democrats' plans to expand eligibility for Medicare to the entire U.S. population.  Should this popularity not also be great news for Democrats, as a matter of both politics and problem-solving policy?  Surprisingly, it turns out that there are some prominent liberal-ish voices that are freaking out about Medicare for All, and I do mean freaking out. Until now, it has been possible to imagine that the Democrats and independents who opposed a single-payer system were doing so because they viewed it as political suicide or because it seemed too difficult to do as a matter of policy mechanics.  Are those excuses still viable? The latter argument became untenable when it dawned on Democrats that there was already a popular single-payer system that serves 44 million Americans.  The worry about "scaling up" is usually reserved for cases in which a small pilot project in ...

By Eric Segall Last week at the Southeastern Association of Law Schools (SEALS) conference, I attended a session on constitutional law works in progress. Although my paper did not directly address the subject, we ended up having a long conversation about whether the Supreme Court is really a court. My 2012 book Supreme Myths argued that the Supreme Court as an institution does not take prior positive law (text, precedent, historical sources) seriously enough to warrant the label "court." I argued both in the book and during the conference that giving judges unreviewable power for life, and then asking them to resolve many of society's most difficult social, political, economic and legal questions based on vague text and contested history, will inevitably result in all-things-considered decisions in the cases the Justices care deeply about. The fact that the Justices reach unanimous decisions in almost half their cases is irrelevant to my thesis because they choose th...

by Sherry F. Colb In my Verdict column today, I talk about a law, proposed but defeated in Lower Austria, that would have required Jews and Muslims who wanted Kosher and Halal meat, respectively, to register as observant Jews and Muslims.  My post here is not about discrimination in Austria, but it revolves around a somewhat related question that arose in a case before the US Supreme Court this past term: How should the Constitution define discrimination on the basis of religion? Toward the end of the term, the justices narrowly decided Masterpiece Cakeshop v. Colorado Civil Rights Commission . To refresh your recollection about the case, it involved a baker (Jack Phillips, owner of Masterpiece Cakeshop or "MC") who refused to prepare a wedding cake for a same-sex couple that had requested one. The couple complained to the Colorado Civil Rights Commission, and the latter found that MC had violated the Colorado anti-discrimination law by refusing the couple a cake. MC def...

By Eric Segall I wrote an essay  for SLATE this week making a non-partisan case against the nomination of Brett Kavanaugh. I concede that he is eminently qualified to be on the Court, and I’ll take it as an article of faith that he is a man of strong character and an all-around good guy. Nevertheless, there are compelling reasons why even Republican Senators should vote against him. I’m not naïve enough to believe any of them will, but understanding why they should reveals some interesting aspects of the relationship between the Supreme Court and the rest of our political system.

by Michael Dorf In my latest Verdict column , I explain why I declined to sign a letter from 72 former law clerks of Justice Kennedy in support of the confirmation of Brett Kavanaugh to the Supreme Court. To summarize, I argue: (1) Kennedy clerks do not have any special insight into Kavanaugh's qualifications in virtue of having clerked for Kennedy; (2) the letter purports to reflect a set of politically diverse views, but in fact nearly all of the signers are very conservative; and (3) the letter tacitly assumes without defending the controversial position that the role of the Senate should be limited to examining the professional credentials and judicial temperament of the nominee. Here I want to elaborate on why I think that assumption is wrong under current conditions.

by Neil H. Buchanan It seems impossible to have anything but a love-hate relationship with the American media.  On the "love" side, not only is an independent press an absolute necessity for a free society, but the mainstream media has done its job amazingly well at many times during the Trump era.  With The Washington Post taking a clear lead, but with ample and impressive assists from The New York Times as well as CNN and other outlets, the press has been the source of almost every investigative bombshell that has put Donald Trump's presidency (quite rightly) in peril. On the "hate" side, however, the American press continues to lapse into various forms of the conventional wisdom, sycophancy, false equivalence, and laziness that we have witnessed for years (most prominently in the run-up to the Iraq War in 2003).  All of that was bad enough when the threats to American freedom were the slow bleed of voter suppression, money-driven politics, and all of th...

by Neil H. Buchanan The new tut-tutting move on the op-ed pages is to say that Democrats are moving too far to the left, which is sometimes made as a definitive claim and other times as part of a "Democrats have an identity crisis" rerun of old columns.  In any case, with the continued popularity of Senator Bernie Sanders among many Democrats, combined with the emergence of Alexandria Ocasio-Cortez as a new face on the left, Republicans and many pundits are now saying that the Democrats are becoming full-on socialists. That is nonsense, of course, for reasons that I will explore in a pair of columns next week.  Today, however, I want to focus on what is perhaps the most plausible -- or, more accurately, least implausible -- example of this supposed lefty extremism among the Democratic base: the proposal to "Abolish ICE."  This is a relatively new proposal embraced by many progressives that would eliminate the U.S. Immigration and Customs Enforcement agency. T...

[Note to readers: My new Verdict column is now available, in which I discuss the Trump Administration's trial balloon regarding an executive order to reduce capital gains taxes.  Among other things, I argue there that such an order would clearly exceed the president's authority.  Some readers might wonder, however, whether anyone would have standing to challenge such an order. [I did not discuss standing in the column, largely because the column was already too long.  I can say, however, that the academic paper from which I drew some key points for that section of the column, by Daniel Hemel and David Kamin, did address the standing issue.  They concluded that "states, charitable organizations, and brokers subject to statutory basis reporting requirements," among others, would likely have standing.  I realize that there are no definitive analyses, especially when it comes to standing, but this one seems pretty clear-cut to me. [Even if I am wrong, however...

by Michael Dorf Today (beginning at 9 am Eastern time) I will once again be participating in the annual Practicing Law Institute Supreme Court Review in NYC . If you're interested, it may still possible to sign up, at least for the online or recorded version. I'm on a fair number of panels, including the overview panel. Here I'll preview some of what I plan to say for the overview panel.

by Neil H. Buchanan It is quite possible that punditry does not matter.  Perhaps journalists, political junkies, and policy wonks are all engaged in a completely useless exercise on a daily basis, with everyone involved pretending that what they are saying and writing is important.  The world, meanwhile, might not take any notice or be affected in any way. I have argued , for example, that Paul Krugman's career as a pundit makes it extremely difficult to imagine that anything written on the op-ed pages of even the most influential newspaper in the world ultimately has any influence.  With the combination of Krugman's considerable communication skills and his unsurpassed credentials, one would think that we would be able to see how he has changed something, somehow, at some time.  Can we?  I have never been able to find even one clear example. On the other hand, it is possible for no single pundit to matter but for all punditry combined to matter.  The...