Dorf on Law

by Neil H. Buchanan With the mostly good news of the midterm elections now behind us -- good news that was diminished, of course, by the continued success of blatant racists in Georgia, Florida, Mississippi, Iowa, and elsewhere, to say nothing of the disappointment of Beto O'Rourke's near-miss in taking down Ted Cruz -- the political atmosphere has once again been taken over by full-on Trump craziness.  Undiminished support for a literally murderous Saudi regime?  Check.  Climate change denialism on steroids?  Check.  Cruelty toward asylum seekers and immigrants?  Double check. With all of this insanity swirling around us, it seems like a good time to revisit the alternative reality in which Hillary Clinton had won the 2016 election.  In May of 2017, I wrote a Verdict column in the form of a news report from another place in the multiverse where the press was assessing Clinton's first one hundred days in office.  Yesterday, I published a fol...

by Neil H. Buchanan The U.S. Constitution includes a compromise provision that created an upper legislative house with two senators representing every state.  Notwithstanding its mere existence, does that provision make sense?  I suspect that most people would respond to that question initially from a purely realpolitik standpoint.  Specifically, because that arrangement currently favors Republicans, Democrats hate it and Republicans fiercely defend it. But if asked to justify it on some other grounds, my sense is that most Democrats would feel the need to sound conciliatory and say that there is something about a non-proportionally-delineated legislative body that could make sense.  Maybe it has something to do with preventing the tyranny of the majority, they might say.  Or perhaps something about states' rights (stripped of the racist overtones of that particular two-word phrase). Perhaps, however, I am projecting my own ill-formed intuitions onto othe...

by Richard Primus In a series of blog posts ( here , here, and here ),  Michael Dorf and I have been conversing about the justifiability of each state’s getting two representatives in the U.S. Senate.  As a general matter, neither of us argues that the current system is justified (except in the brute sense that current law requires it).  That’s not because we think that the only justifiable ground for allocating representatives in a legislature is on the basis of population (that is, on the basis of the principle we know as “one person, one vote,” and which I’ll call OPOV for short).  We both think that other factors could, in appropriate circumstances, justify departures from OPOV.  Instead, our sense that the current system for the Senate is unjustified rests on our sense that the Senate’s enormous deviation from OPOV is not justified by any argument applicable to the facts of this particular case.  In other words, we don’t think that under all imagina...

by Michael C. Dorf In a post last week , I criticized the Department of Education's proposed new rules governing campus investigations under Title IX on the ground that they use a too-restrictive definition of sexual harassment. Although I acknowledged that a Supreme Court case involving fifth graders supports a definition that sets a threshold of "severe and  pervasive" conduct to constitute hostile environment sexual harassment, I argued that in campus Title IX cases, decision makers should apply the well-accepted Title VII standard, which sets a more expansive "severe  or  pervasive" threshold. My latest Verdict column might be deemed Part 2 of my miniseries on the DOE's notice of proposed rulemaking. In it, I take aim at the core of the proposed rules, which would make it harder for (mostly female) students alleging sexual assault or harassment by other (mostly male) to prove their cases. Whereas the Obama-era rules sought to minimize false negativ...

By Michael C. Dorf Across the political spectrum, elected officials were unhappy with the news that General Motors would mothball five North American plants and cut about 14,000 jobs. That is certainly understandable. The workers who will lose their jobs, their families, and the communities that will suffer the indirect effects of GM's move deserve our empathy. To be sure, Donald Trump's response was a characteristic mix of bluster and ignorance. He reported that he had pleaded with GM CEO Mary Barra to make a different decision out of a sense of obligation. Trump noted, correctly, that the US had saved GM during the Great Recession (without mentioning that this was accomplished by President Obama over the objections of Republicans). Trump also predicted that Barra's "going to put something back in [Ohio] soon." That's possible, I suppose. If the plant infrastructure can be converted to producing different sorts of vehicles at lower cost than building new...

By Eric Segall Last week the President of the United States once again accused federal judges of being partisan, and the Chief Justice of the United States responded by stressing the need for an independent judiciary. This exchange prompted legal scholars throughout the land to take numerous positions on the role of ideology and partisanship in judicial decisions, focusing mostly on our highest Court (even though Trump was referring to a district court judge). Most agreed that the Court should try hard not to be partisan or ideological but also stressed that, given the nature of the cases the Court hears, the open spaces of constitutional interpretation, and our overly politicized confirmation process, these are noble aspirations more often violated than achieved. I argue below that, when it comes to the Supreme Court, everyone is asking the wrong questions.

by Michael C. Dorf A couple of weeks ago, I argued in this space and on Take Care  that the US Senate is less anti-Democratic than it might currently appear. That capital "D" is intentional. The core of my argument was that while the Senate currently over-represents Republicans, that is likely an ephemeral phenomenon. As a structural matter, the Senate over-represents small states; over time, the parties' positions will continue to evolve in ways that seek to maximize their total influence. To be clear, I did not deny that the Senate is substantially anti-democratic with a small "d." As I wrote, whatever might be said in favor of a system that deviates from strict population-based representation, the very out-of-balance ratios one sees in the US Senate cannot be normatively justified. Professor Richard Primus wrote a thoughtful response  to my essay. It also appeared on Take Care. Acknowledging that he might not actually be disagreeing with me, Primus pus...

by Diane Klein As CNN has reported , adult coloring is good for you (really!).  While we cannot guarantee that coloring this picture while sports-addicted family members binge on football this weekend will relax your brain  as the Cleveland Clinic promises, it can't hurt. (Art by Andrea McHale, a special-education teacher in New York City; lettering by Alex Mannos, a graphic artist in Sacramento, California.  The coloring page is subject to a Creative Commons license as below.)

By Eric Segall The air is getting colder with winter so near Our President is still awful that much is clear His loony twitter feed tells many crazy lies Maybe he’s sending secrets to his Russian spies He makes so much money from the office he holds His crayon hair is remarkable for its unique folds He never says I’m sorry or admits to a loss He just loves being the world’s worst boss I wake up every day afraid of what he’ll do Not just him but his entire motley crew

by Sherry F. Colb In my Verdict column for this week , I discuss some ways in which combating both coerced confessions and date rapes necessarily creates special challenges. We want to protect victims of these two abhorrent practices, and we also want to allow for good confessions and for mutually desired sexual encounters. I explore how the challenges arise and what we might do to address them. Here I want to return to the topic of free speech. Two weeks ago, I wrote in this space  about the speech/conduct distinction and its utility as an instrument for distinguishing between the expression that the First Amendment ought to protect and the behavior that finds no legitimate protection in the Bill of Rights. I argued that the distinction cannot do the work that we might want it to do. Virtually all of the speech that rightly falls outside of the protected category--including true threats, incitement to imminent lawlessness, and defamation--is truly speech, not action--and yet t...

by Neil H. Buchanan Incredibly, The New York Times 's op-ed diva Maureen Dowd actually wrote an interesting and insightful column last week.  Her argument is incomplete, as I will explain below, but she actually wrote words that made sense and offered an argument that needed to be made. Dowd drew from her deep well of richly earned hatred for George W. Bush and especially Dick Cheney, and she pointed out that many of their enablers and cheerleaders are now being cheered on the left for being NeverTrumpers.  She is having none of it.  If anything, she nicely overstates her point rather than following her usual pattern of offering self-satisfied D.C. insider snark.  If she is going to err (and she is), it is much better to see her go for blood against the Republicans for real sins than to, say, carp about "Barry" Obama being too aloof. Dowd states her thesis clearly in the third sentence of the piece, saying that "villainizing Trump should not entail sanitizing ...

by Michael C. Dorf Last week, the federal Department of Education issued a notice of proposed rule making that would provide guidance for how schools, colleges, and universities address allegations of sexual harassment and sexual assault under Title IX. The proposed rule follows up on the Trump DoE's earlier rescission of the Obama DoE's guidance, which had taken the form of documents issued in 2011 and 2014. In one important respect, the proposed regulation is a step forward: it is a proposed regulation rather than a less formal administrative action. In other respects, the proposed new rule will be controversial. Whereas the Obama administration's guidance emphasized the problem of under-enforcement by requiring the use of procedures that would reduce the risk of "false negatives" (i.e., circumstances in which real victims of sexual harassment or sexual assault came forward but no responsibility was assessed), the Trump administration's proposed rule...

by Diane Klein It was not so long ago in American history that a blind or deaf student, or one who was mobility-impaired, would be left outside the schoolhouse doors - rejected by an educational system that had no obligation to accommodate them, and by a larger society that regarded them as not worth educating.  If they were not born into well-to-do families, their prospects were bleak. Today, thanks to laws like the Individuals with Disabilities Education Act  (IDEA) and the Americans with Disabilities Act (ADA), we look back with anger and heartbreak on behalf of those who never had a chance to develop their potential and contribute as they might have done, simply because no accommodation was made for them. Lawyers (like Thomas Gilhool ) have played a crucial role in enacting and enforcing these major civil rights laws, and one could be forgiven for assuming that a profession whose reason for existence is access to justice would be a leader in providing equal oppo...

by Michael C. Dorf My latest Verdict column --which first appeared on Wednesday--asks whether the framers goofed by failing to spell out in the Constitution exactly what the limits are on the ability of Congress to authorize the president to designate as an "acting" principal officer someone who has not been confirmed by the Senate. My answer: kind of, but one shouldn't get too mad at the framers for failing to anticipate all contingencies; a greater share of the responsibility rests with Congress for acquiescing in what looks like circumvention of the spirit, if not necessarily the letter, of the Appointments Clause; still more responsibility lies with Trump, who does not feel constrained by norms, no matter how longstanding or sensible. The column focuses on the procedural defects in the designation of Matt Whitaker as Acting AG, but of course, one can also point to his substantive shortcomings. Whitaker's role in advising and promoting the Trump-University-esque...

by Neil H. Buchanan The Supreme Court's two newest members have joined Clarence Thomas in forming an openly reactionary bloc of justices, and their colleagues Samuel Alito and John Roberts differ from them only by slight matters of degree.  Roberts, Alito, and Thomas are 63, 68, and 70, respectively, meaning that we can expect this current majority of hyper-conservative justices (which I have elsewhere dubbed the Unfab Five) to serve together for at least a decade, and possibly two. They will also serve at the top of a judiciary that Republicans are gleefully packing with the most blatantly political (and sometimes simply unqualified ) conservatives that the country has ever seen -- many of them also quite young and thus able to serve for decades.  This means that there is a possibility, even a likelihood, that the courts will stand in the way of progress even if Republicans are not able to stop Democrats from retaking power (although they seem poised to be able to do that...

By Eric Segall Justice Scalia used to defend his originalist theory of constitutional interpretation by arguing that, although originalism has its flaws, it was better than any other interpretative method and that "you can't beat somebody with nobody," meaning that it takes a theory to beat a theory. As I've been giving talks at various law schools discussing my new book "Originalism as Faith," one common reaction is great surprise that Originalism today refers to many different theories of constitutional interpretation that have very little in common with each other. When judges and law professors self-identify as "Originalists," there is no longer any serious metric or common definition to understand how they would approach hard constitutional cases.

by Neil H. Buchanan In the post-midterm assessments of American politics, Senator Heidi Heitkamp has at most merited a quick mention as one of the three or four Democratic incumbents from states that Trump carried in 2016 who lost their reelection bids.  Joe Donnelly of Indiana, Claire McCaskill of Missouri, and Heitkamp of North Dakota went down hard.  Other Democrats survived, and Florida is being Florida, so we will not know for a long time whether Bill Nelson will hold his seat or lose it to Voldemort . In many cases, these losing candidates are not even mentioned by name.  "Three or four Democrats lost in the Senate, but the Democrats picked up two seats.  Moving on."  Here, I want to discuss the one and only big thing I know substantively about Heitkamp, essentially to apologize for assuming that she had no principles and was only in politics to win elections.  There might be other things that I do not know about her that would make me feel less g...

by Michael C. Dorf In the last week, various liberal law professors and others in whose circles I move have taken to using the midterm election results to decry the US Senate. They point out -- correctly -- that nine million more people voted for Democratic Senators than for Republican Senators; yet the Republicans probably gained at least one seat and at least held their edge. That's not exactly a fair comparison (for reasons described here ), but it does capture the bigger picture: If we look at all three classes of Senators, we find that Republicans have more Senators, even though the Democrats represent more people. Is that a problem? Well, if one is a Democrat (as I am) of course it's a problem. Republicans will continue to confirm very conservative judges and justices; and when there's a Democratic president again, Republicans' advantage in the Senate may enable them to block Democratic appointees (again). Meanwhile, should the Republican edge hold into the ne...

by Diane Klein Herewith, our contribution to the matter of Matt Whitaker, the former Rose Bowl tight end and U.S. Attorney (for Iowa, in both cases), now catapulted to national prominence by his elevation from Chief of Staff to Attorney General Jeff Sessions, to the position of Acting Attorney General of the United States - thanks largely, it would appear, in gratitude for his critical comments about the Mueller investigation, made in the mainstream media. (Art by Andrea McHale, a special-education teacher in New York City; lettering by Alex Mannos, a graphic artist in Sacramento, California.  The coloring page is subject to a Creative Commons license as below.)

by Michael C. Dorf Yesterday Neal Katyal and George Conway wrote an op-ed in the NY Times arguing that President Trump lacked the authority to name Matthew Whitaker Acting Attorney General. I'm not sure that's right. True, by forcing out Jeff Sessions as punishment for the one unambiguously honorable thing Sessions did--recusing himself, as required by law, from an investigation of the Trump campaign--Trump acted despicably. Depending on what Whitaker does now with respect to the Mueller investigation, Trump's appointment of Whitaker may also amount to obstruction of justice. But was the appointment unconstitutional? As I shall explain, much as I'd like to agree with Katyal and Conway, their theory is problematic as offered. I will offer a friendly amendment to improve it a bit.

by Neil H. Buchanan How long will our luck last?  On Tuesday, Democrats regained the majority in the House of Representatives, but even though that is exactly the outcome for which I most dearly hoped, the world seems even scarier now than it was on Monday, when I published a call to young people (and everyone else) to vote against Donald Trump and his eager enablers. On Tuesday morning, I wrote about the likely chaos that would ensue even if Democrats ended up having a good night.  Although the specifics that I offered there might not come to pass (including a prediction of a wave of Republican election challenges, although some such challenges are still possible), the big message was that Trump and his minions would not be gracious losers -- the safest prediction in the history of political commentary. So I was plenty scared before, when it was still possible that Republicans could have held the House and won other key races.  Why am I more scared now that what ...

by Sherry F. Colb In my Verdict column for this week, I talk about the meaning of the #BelieveWomen movement and what it might have to teach us about listening to people with an open and curious mind. The topic of listening to people, in turn, makes me think about the freedom of speech. In this post, I want to consider how we might best understand our free speech dilemmas.

by Neil H. Buchanan John Maynard Keynes famously wrote: "In the long run we are all dead."  Although there have been plenty of bad-faith misreadings of that quote, the correct reading is actually quite simple.  Keynes rejected the idea of causing millions of people to suffer in the here and now in the possibly vain hope that some economist's model of "long-run equilibrium" correctly predicts that such sacrifices (always to be paid by other people, of course) will pay huge dividends in the future. More to the point, we cannot make our way to the long run if we all die in the short run. In a sense, many of the arguments against Donald Trump have been arguments about a somewhat distant and uncertain future.  Thus, my Verdict column on June 2, 2016 asked: " Is This the Beginning of the End of Constitutional Democracy in the U.S.? "  My concern was not with the decades- or generations-long version of the long run that worried Keynes (although he was...

by Neil H. Buchanan As we wait to find out whether tomorrow's midterms will be the last meaningful election in American history, I will take a few moments here to consider a recent Republican absurdity that was drowned out by Donald Trump's cacophony of hatred and lies.  In one way, it is fully consistent with Trump's tactics, because it is merely another attempt to scare people by shouting "Socialism!!"  Given that the story comes from Trump's economists, however, this one is up my alley and -- viewed from the proper perspective -- very, very funny.

by Neil H. Buchanan Supposedly, the press corps has learned that bothsidesism is not a harmless exercise.  If anyone -- or at least any group with large numbers of white people -- should have newly learned what can happen when lies are not called lies and context is lost, it is American political reporters. Even after their huge assist in painting Hillary Clinton as a serial liar and spending ungodly amounts of time hyping her email servers in 2016, all the while hesitating to call Donald Trump's lies "lies," journalists have been rewarded by being called "the true enemy of the American people." But we know that old habits die hard.  One of the worst habits of the collective press's mind is the "To be fair, let's also look at what Democrats are doing wrong" approach to campaign coverage.  It would be bad enough if this were merely false equivalence (of which there is plenty), such as pretending that confronting a U.S. Senator in an eleva...

by Michael C. Dorf In an era in which every day brings shocking news, the most bizarre story of the last few days has to be the apparent plot against Robert Mueller. For those of you who may have missed it, I'll try to summarize and then provide a big-picture observation.