Dorf on Law

by Diane Klein

by Michael C. Dorf Yesterday was excruciating. I can only imagine what it was like for women (and men) who are themselves survivors of sexual assault.  I really really really wanted to write about something else today. But I'm a constitutional law professor and whether the Senate confirms Brett Kavanaugh to the Supreme Court is an extraordinarily important question. I continue to think--as I wrote last week --that the ultimate stakes for legal doctrine are low: If Kavanaugh is rejected or withdrawn, the Senate will confirm a very conservative replacement one way or another. Nonetheless, what happens next will shape the particular path of the Court and of constitutional politics for a generation or more. I feel some obligation to weigh in. Herewith a few observations.

by Sherry F. Colb During his unprecedented FoxNews interview to clear his name, wife by his side, Brett Kavanaugh declared his innocence for all to hear. In the course of answering the interviewer's questions, he asserted that he did not have sexual intercourse during high school or for years afterward. Asked for clarification, he said that he was a virgin in high school and for years afterward. My first reaction to these virginity announcements was to wonder how they could be relevant to Kavanaugh's guilt. What he stood accused of doing would not have lost him his virginity. But after thinking about it, I remembered who else brings up their virginity to fight off charges: women in the past. When women accused men of raping them, the women could long invoke their virginity, their chastity, as a basis for concluding that they would not  have consented and that they therefore did not  consent.

by Neil H. Buchanan As I write this column, the Senate Judiciary Committee's emergency Kavanaugh hearing is either ongoing or is about to begin.  Although that hearing will certainly be important and could even change the course of history, it will also surely be stomach-turning in any number of ways.  I am, therefore, ignoring it as much as I can. I thus return here to writing about the stakes of the Republicans' ongoing effort to remake the Supreme Court by adding either Brett Kavanaugh or one of several Kavanaugh-equivalents as a fifth arch-conservative vote. I cannot, however, resist adding that Republicans are once again missing what seems like a promising opportunity to make lemonade out of lemons.  If they merely go through the motions with today's hearings but then immediately "plow through" with scheduled votes by the committee (tomorrow morning) and soon thereafter in the full Senate, not only will they be damaging themselves politically, but they

by Sherry F. Colb In my column  for this week, I discuss the destructive ways in which we can at times shut down people who express ideas or use words that someone says are offensive. Examples I use include stigmatizing the word "picnic" and the word "Jew" (as a noun, to refer to a person of Jewish ancestry or faith). One of the ideas in the column is that we should get out of the habit of deferring to people who claim an elevated status, whether because of oppression or for some other reason. In this post, I want to talk more about why deference is a mistake. The paradigmatic example of deference on the left involves some individual or group of people, defined by an identity characteristic such as gender or ideology, insisting that their position or factual or normative perspective is the only right way to look at things. Someone from outside the relevant group might express a viewpoint only if it is the same as that of the group. If the outsider strays fro

by Neil H. Buchanan Remember the articles from back in June and July, immediately after Justice Anthony Kennedy's surprise retirement, with headlines like: "Brett Kavanaugh, Consensus Top Choice, Awaits Inevitable Nomination?"  You know, the news stories that stated as obvious fact that the only surprise about Kavanaugh was that he was not already on the Court, so superior was he to all of the other possibilities, and that Neil Gorsuch was lucky to have been tapped ahead of Kavanaugh? You remember those news reports, right?  Of course not.  Kavanaugh was merely one of many possibilities, and while insiders were hardly surprised by his nomination, he was by no means the obvious superstar pick whose inevitability was impossible to deny.  He was just another carefully groomed movement conservative who would reliably move the Court even further to the right, and his extra oomph was that he was the most likely among them to give Donald Trump a pass when the Court inevitabl

by Michael C. Dorf Last week, while in North Carolina surveying some of the damage caused by Florence, the president came across a property on which a yacht had washed ashore during the storm. According to the NY Times story : “Is this your boat?” Mr. Trump asked the homeowner.  When the man shook his head and said “No,” the president turned with a grin and replied, “At least you got a nice boat out of the deal.” Then, the real-estate-tycoon-turned-president added: “They don’t know whose boat that is. What’s the law? Maybe it becomes theirs.” This was, admittedly, not an important moment in the Trump presidency, but it is a reminder that the man whose principal claim to power is business acumen has no idea how a system of capitalism actually works. Nor does he have any sense of justice in a regime of private property.

by Michael C. Dorf As the artificial deadline approached for Dr. Christine Blasey Ford to accept the invitation of Senate Judiciary Chair Chuck Grassley to testify by his completely artificial deadline of Monday, word came yesterday that she and her lawyers were trying to negotiate better terms. I  have no idea whether such negotiations will work and therefore she will testify some time later next week, whether she will cave and testify on Monday, whether stalemate will reign and the Republican-controlled chamber will proceed to a vote on Judge Kavanaugh's nomination, or whether some hitherto unimagined new development will take us all in a new direction. Meanwhile,  the claim by Grassley that the FBI can't conduct further investigation following a  nomination doesn't pass the laugh test. Grassley wrote of the Senate: "We have no power to commandeer an Executive Branch agency into conducting our  due diligence" (double emphasis in original). That's true,

by Neil H. Buchanan In my latest Verdict column, " What Kavanaugh Could Have Said, But Didn’t: 'I Honestly Don’t Know What Happened, and I’m Willing to Accept the Senate’s Judgment' ," I offer a suggestion about how Brett Kavanaugh could have responded to the sexual assault and attempted rape allegations against him in a way that would have been humane and honest and that might have actually won over some skeptics.  I then note that he went in exactly the opposite direction, proving even more emphatically that he should not be on the bench. I continue to be puzzled by the Republicans' strategy here.  As Professor Dorf ably explained yesterday , even though Republicans are acting as if they absolutely must rush Kavanaugh through as quickly as possible, the odds that they will somehow fail to fill this Supreme Court seat with either Kavanaugh or another hard-line movement conservative are essentially one in a gazillion.  That is my characterization, not Profess

by Michael C. Dorf Reporters--especially in the law-focused media to which readers of this blog pay attention--have worked  themselves into a frenzy over the scheduled hearing into whether Brett Kavanaugh sexually assaulted Christine Blasey Ford when he was 17 and she was 15. As I write this on Tuesday afternoon, it is not clear that a hearing will occur . Still, I want to make a provocative claim: Even if it does, this is a fairly low-stakes matter. I know that sounds counter-intuitive, but bear with me.

by Neil H. Buchanan At the beginning of my column last Thursday , I included a "Note to readers" that read as follows: I had planned to write the fourth of my "How Bad Will Things Become?" columns today, discussing various areas of the law that likely-future-Justice Brett Kavanaugh and his right-wing colleagues might mangle for partisan purposes.  That column will, unless intervening events require further delay, be published next Tuesday, September 18. Today is September 18.  Reasonable minds can differ, but I think the thunderbolt over the weekend, in which a woman went public with a credible accusation of sexual assault against Brett Kavanaugh, counts as such an "intervening event." I truly do think that the content of what Kavanaugh, or any other nominee that the Federalist Society, Trump, and the Republicans (in that order) might put forward, is what ultimately matters.  And, as I have already discussed in Parts One , Two , and Three of

by Michael C. Dorf Paragraph 8 of Paul Manafort's plea agreement requires him to "cooperate fully, truthfully, completely, and forthrightly" with the Mueller investigation. Does this mean that Manafort will implicate Donald Trump in the Russian effort to influence the 2016 presidential election or obstruction of the investigation? That depends on what Manafort knows, but it is difficult to believe that Mueller's team would have cut the deal it did with Manafort if not. After all, Manafort was already facing prison time for his conviction last month in a federal court in Virginia, and the trial on additional charges in federal court in DC was very likely to go against Manafort as well. An ordinary prosecutor will often cut deals with defendants who would be easily convicted at trial simply to save resources, but (as Justice Scalia famously noted in his dissent in Morrison v. Olson ), that sort of resource constraint plays a much less substantial role in the exerci

By Eric Segall At the Volokh Conspiracy, Professor Randy Barnett has a long post about Brett Kavanaugh's testimony concerning originalism (and other matters). Barnett focuses some of his remarks on the following three questions put to Kavanaugh by Senator Kennedy referring to District of Columbia v. Heller : "Doesn't the originalist approach just require a judge to be an historian? And an untrained historian at that? Wouldn't we be better off hiring a trained historian to go back and look at all of this?" These questions, of course, suggest a critique of originalism made by many legal scholars and academic historians: the study of history is and should be a rigorous discipline requiring the person doing the studying to immerse herself in the peoples, traditions, values, and events of long ago. Trying to decide what the text of a 1788 or 1868 document meant at the time  is simply not an exercise judges, law clerks, and lawyers are trained to do. Kavanaugh, n

by Michael C. Dorf On Tuesday, Donald Trump commemorated the 17th anniversary of the 9/11 terrorist attack in true Trumpian fashion -- by pumping his fists  self-congratulatorily upon arriving in Shanksville, Pennsylvania for a solemn ceremony and by sending out an enthusiastic but otherwise incoherent tweet . As Trevor Noah observed , bizarre and loathsome as Trump's 2018 behavior was, it was not nearly as bad as what he has done on past 9/11 anniversaries or on the awful day itself. Meanwhile, tomorrow will mark the 10-year anniversary of the collapse of Lehman Brothers, which set in motion what we came to call the financial crisis and the Great Recession. To be sure, the preceding dramatic fall in the subprime mortgage market and broader housing market, as well as other firm-specific troubles like those that hit Bear Sterns, make the selection of any single date as the start of the financial crisis and Great Recession contestable. Nevertheless, given the cascade of events th

by Neil H. Buchanan [Note to readers: I had planned to write the fourth of my "How Bad Will Things Become?" columns today, discussing various areas of the law that likely-future-Justice Brett Kavanaugh and his right-wing colleagues might mangle for partisan purposes.  That column will, unless intervening events require further delay, be published next Tuesday, September 18.] [Update on 9/18: Surprise!  Or not.  Intervening events indeed require further delay.  Part Four of "How Bad Will Things Become?" is now rescheduled to 9/20.] Two weeks ago, a Washington Post columnist wrote, " Rest in Peace, Lindsey Graham ."  It was brutal, making the point that Graham had gone from being the late John McCain's best bud to being Donald Trump's aggressive point man in the Senate, even though Graham's current persona requires ignoring everything that McCain -- and Graham himself -- had said and believed to be true about Trump. It is a rather amaz

by Sherry F. Colb In my column for this week , I discuss the changed meaning of "factory farming" in the public discourse. I think it is important to be aware of this change, because one might otherwise mistakenly think that we have experienced a dramatic revolution in people's attitudes regarding the exploitation of animals. More people than ever seem to be saying that they oppose factory farming, and almost all animal farming is factory farming, so q.e.d. And yet polls find that only 3% of the population identifies as vegan, so it seems that people have come to use the phrase "factory farming" in a manner that differs from how it was once used. "Factory farming" now signifies "something that I condemn and that has nothing to do with me" rather than the reality of "what actually happens to the animals whose slaughtered bodies and bodily fluids I consume each day." Other words and expressions both evolve and settle into meanings

by Neil H. Buchanan The Senate's confirmation hearings for Brett Kavanaugh have ended, and unless something wildly unlikely happens, the Republicans in the Senate will soon accelerate their abandonment of anything resembling responsible governance and place him on the high court. Even beyond the trampling of process, it is notable that not one Republican has said, "You know, I'm a conservative, and I'm even a proudly non-moderate conservative, but this guy is too much even for me ."  That should not actually be a surprise, however, because the notion that there is any meaningful ideological distance across the Republican Party has become increasingly difficult to take seriously. The only surprise so far has been how unashamedly and nakedly partisan Republicans have been throughout this process; but given the trend of their actions over the past few years, I am honestly not sure why that surprised me. Will this utter disregard for how things look -- the sen

by Michael C. Dorf Last week I learned a new term: "job-shaming" is the act of trying to make people feel bad because they work in jobs that are either generally considered somehow undesirable or they are less prestigious and/or lucrative than some job they previously held. Actor Geoffrey Owens, who at one time had a role on The Cosby Show , was seen working at a Trader Joe's in New Jersey. The Internet properly condemned those who job-shamed Owens. Then, Tyler Perry offered Owens an acting job , so the story had a happy ending -- except, of course, that if there's nothing wrong with working at Trader Joe's (and I want to be 100% clear that I agree there's nothing wrong with working at Trader Joe's), then the story had a happy ending, or at least a perfectly fine ending, even before Perry offered Owens an acting gig. To recognize that no one should be ashamed of the work they do is not to say, however, that everyone finds their work equally satisfying.

By Eric Segall If you didn't have time to spend 12 hours a day and night watching the Judge Brett Coach K Kavanagh hearings no worries I am here for you. Ten take always:

by Michael C. Dorf Let's begin with the obvious: The Republican-controlled Senate is extremely likely to confirm Judge Kavanaugh to the SCOTUS. Disruptions of the proceedings by protesters and complaints about the process by Senate Democrats have failed if their aim was to block his confirmation. However, that cannot have been their sole aim. Cynics will say that those Senators on the Judiciary Committee considering presidential runs have used the hearings to demonstrate their commitment to the resistance. My own view is that it is perfectly legitimate to engage in constitutional politics in order to build solidarity to fight and win another day. In that respect, I regard the strategy of Senate Democrats and the more sophisticated of the protesters as much akin to impact litigation brought in the expectation of losing a particular case but serving a larger organizing purpose. That said, the Kavanaugh hearing has nonetheless been instructive in a number of respects. In today'

by Neil H. Buchanan With the beginning of the college football season, the conversation should be about whether one's favorite team is looking good or bad.  There is, of course, plenty of that.  As a longtime Michigan fan, for example, I am aware of a mini-controversy over (completely accurate) negative comments that former Wolverine great Braylon Edwards leveled -- via Twitter, of course -- at the team's truly terrible performance in its opener against Notre Dame. Although I hate to be on the losing side of things, this is exactly how sports should be.  One of my alma maters (actually almae matres ) is overpaying an overrated and under-performing coach, and I am disappointed.  This gives me a respite of sorts, something to think about other than whether the U.S. political system will survive the mid-term elections. On a slightly more intense level, a professor at the University of Kansas has called for his university to drop its football program entirely after its loss t

by Diane Klein When she died on August 16, 2018, Aretha Franklin became the latest major musical star to die intestate (as Prince did in 2016), leaving her family and fans grieving - and her heirs facing some complex issues of state and federal estate law. The first step - determining who her heirs are - is easy.  Franklin was the mother of 4 sons - Clarence  (born in 1956, when Aretha was just 12 and named after her own father), Edward  (born in 1957), Kecalf Cunningham, and Ted White, Jr. - all of whom survived her, and who will share her estate equally under Michigan law.  Of course, without a will, dividing an estate into equally-valued shares is not so easy (how do you divide  eighteen Grammy awards four ways?), and niece Sabrina Garrett Owens, selected just before Franklin's death by her sons to  serve as personal administrator, will have her work cut out for her. But the real complication lies elsewhere - in the recognition, valuation, and taxation of a somewhat

by Michael Dorf I know, I know. Today is Day 2 of the Kavanaugh confirmation hearing. I'll have something to say about the hearing as a whole on Friday. Meanwhile, I wrote a piece on the remarkable efforts to change NAFTA currently underway. In it, I explain why Trump can unilaterally blow up NAFTA but that if he wants it improved or even modified, he needs congressional cooperation. You can find the column on Verdict . Meanwhile, in a few hours, Prof. Klein will have a piece here on Aretha Franklin's estate.

by Neil H. Buchanan The last week has seen a truly unprecedented public reaction to the passing of an American politician.  Across a series of memorial services and events celebrating the life of the late Senator John McCain, as well as in the pages of the newspapers and on the screens of the television networks, there was almost complete agreement that McCain was a singular patriot, a once-in-our-lifetimes hero whose passing marked the end of an era. (I will not provide links here, simply because there are so many examples.  For those who might be reading this column at some point in the future, simply search for McCain's name in late August or early September of 2018.  You will have hundreds of links from which to choose.) This is in many ways understandable, of course.  The time after even a controversial public figure's death will inevitably bring forth tributes from both sides, with criticism at least muted and an emphasis on the humanness of the moment.  And McCain

By Eric Segall In light of the holiday weekend, and the upcoming national travesty we call a Supreme Court confirmation hearing, I thought I'd lighten the mood just a tad with a pop quiz about our President. These are true and false questions. The answers (and a few editorial comments) are below.