Dorf on Law

by Michael C. Dorf As 2018 and soon, two full years of the Trump presidency draw to a close, for my latest installment of DoL Classic , I offer my reaction to the first version of Trump's Travel Ban, which originally ran as Malevolence and Incompetence, But Also Post-Hockery, Explain Trump's Cruel Executive Orders . The SCOTUS upheld the third version of the ban in June of this year. By then, few of us who thought all three versions were unconstitutional had changed our minds about that, but we might have calmed down a bit. Re-reading about the initial version -- which, let's be honest, was a necessary condition for the existence of the subsequent versions -- has the salutary effect of reboiling the blood. That's obviously not a salutary effect on one's mental health, but it may be good for the body politic. It's important to try to hold onto the many reasons for our white-hot rage at Trump, even if it's unhealthy to feel white-hot rage all the time. Hap...

By Michael C. Dorf Here's another pre-read blog post, my December 2011 final exam in constitutional law, which originally ran as Zombies and the Constitution .  The idea of zombie Lincoln as president seems less ridiculous than our current reality. ------------------------------------------------------------------------------------------------------------------------- {About ten years ago [as of 2011], I was contacted by a man who claimed to be an independent filmmaker.  He said that he was working on a film in which Abraham Lincoln is reanimated as a zombie and runs for President, but disrupts the debates by attempting to eat the brains of the other candidates.  The purported filmmaker asked me whether I thought zombie Lincoln would be eligible for the Presidency.  I thought this was probably some sort of prank, but provided an answer in exchange for a film credit as a "script consultant" if the film was ever made.  To date, the film hasn't been made, or i...

by Neil H. Buchanan Note to readers: The holiday hiatus on Dorf on Law continues.  No need to fear, however, as our Dorf on Law Classic series also continues. For my final column of 2018, I am re-posting a column that originally ran on December 1, 2017.  There, I discussed the surprising fact that Donald Trump does not understand capitalism, nor does he even like it.  Because his stubborn ignorance in this matter (as in so many others) underlies our current crises, I thought that this would be a good time to have another look.  Enjoy! "Trump Does Not Believe in Capitalism" by Neil H. Buchanan One of the more laughable claims from Trump supporters during the campaign was that he is a great businessman.  Even more absurd was the idea that being a great businessman is all that is necessary for a president to fix the economy.  Donald Trump has no idea how to fix the economy.  In fact, the evidence shows that Trump hates capitalism. Tha...

by Michael C. Dorf Today I continue our series of "classic" (or "pre-read") blog posts during the holiday season. Today's gem originally ran on April 1, 2010 under the title US News "Faculty Hotness" Controversy Generating More Heat Than Light . -------------------------------------------------------------------------------------------------------------------------- The announcement that US News would include a new category of "faculty hotness" in its 2011 law school rankings continued to generate controversy yesterday, as law school deans scrambled to position themselves as above the fray while secretly ensuring that their own schools were not shortchanged in the hotness category. NYU Law School Dean Richard Revesz denied that the 62-page glossy "Faculty in Paradise" magazine--featuring pictures of NYU Law faculty frolicking on the beach clad only in skimpy swimsuits--was a bid to secure a high US News hotness rating, but sever...

by Neil H. Buchanan Note to readers: Because I still celebrate Christmas, I am taking the week off from writing.  (Who am I kidding?  Even if I didn't celebrate Christmas, I'd still take this opportunity to recharge my batteries.) For readers who want to think about the ongoing Trump-owned mess of a government shutdown, I have reproduced below a column that I published here on January 18 of this year, discussing what would turn out to be only the first of three 2018 government shutdowns.  The details change, but the big themes remain. I hope that you all enjoy this Dorf on Law Classic. "Opening Up About Shutdowns" As I write this column, it is still unclear whether there will be another government shutdown.  If nothing changes, the so-called nonessential functions of the federal government will cease operations at midnight on Friday, January 19.  The latest reports indicate that Donald Trump has thrown another hand grenade into the room by und...

by Diane Klein and David Kemker A Visit From Judge Sullivan (with apologies to Clement Clarke Moore and Dr. Seuss) 'Twas the week before Christmas, when all through the House, And the Senate, all eyes were on D.C.'s courthouse. Mike Flynn awoke rested, all snug in his bed, While visions of full pardons danced in his head.

by Michael C. Dorf With the holidays upon us, this will likely be the last new essay on DoL until after the new year. Over the next week and a half, we'll post a few "classic" columns, i.e., reruns, but perhaps ones you missed the first time. Anyway, in the holiday spirit, I've opted for something with no legal, political, or economic implications today: an essay on the odd phenomenon of Weezerphobia. The season-ending episode of Saturday Night Live included a segment in which a dinner party is ruined when two fans of the band Weezer (played by guest-host Matt Damon and SNL cast member Leslie Jones) get into a heated argument over whether the band continues to produce good music (Damon's character) or peaked decades ago and ought to have faded by now (Jones's character). If you don't like, don't care about, or have never heard of Weezer, I promise that the rest of this essay is mostly not about Weezer so much as it is about music, art, and the pass...

By Eric Segall Warning: More Facebooking than Blogging Ahead I was trying to decide what my last blog post of the year would cover but everywhere I looked I saw gloom and doom. The Court, courts, Congress, our Anti-President, local politics, nothing happy to see. So, I decided to take on a happier, more personal topic. I’m sure some people reading this will justifiably find it self-indulgent muck. I’m hoping others might recognize some of the feelings expressed and feel just a tinge or mild glimmer of warmth and joy. My topic is love, big and small, obviously in ascending importance. 

by Michael C. Dorf In my latest Verdict column , I argue that Judge O'Connor's opinion striking down all of the Affordable Care Act is wrong but that severability doctrine itself is mysterious. I won't rehash the column here, nor will I follow my usual practice of writing on a related subject. Rather, I'll just make one simple point: Just because there's no clearly right answer to how courts should go about addressing sever ability doesn't mean there aren't clearly wrong answers.

by Neil H. Buchanan This is my final column of 2018, but the news this week is too overwhelming for me to try to address even a fraction of the latest welter of Trump-inspired insanity -- a possible government shutdown, the Syria withdrawal and the subsequent resignation of the last "adult in the room" (Defense Secretary Jim "Mad Dog" Mattis), as well as other disasters in the making.  Therefore, I will pull back and ask a question that is implicated in much of my writing and that mercifully sidesteps today's headlines. When I am not writing about legal issues or economic policy questions, I spend a fair amount of time here on Dorf on Law and also occasionally on Verdict as a de facto media critic.  (See, for example, here and here .)  I use the term " conventional wisdom " frequently (most recently just last week ) to deride the groupthink that all too frequently infects the minds of both news reporters (and headline writers) and especially...

by Neil H. Buchanan As I noted in a column last week , conservative politicians and pundits are becoming increasingly frantic about the possibility of the U.S. actually moving to a single-payer health care system, the most likely version of which would be an expansion of the current Medicare system to cover people of all ages, not just those over 65 -- that is, Medicare-for-All. Viewed as a political moment, this panic is important simply because it represents a return to form for those conservatives who have strayed from their lifelong paths by opposing Donald Trump and all that he represents.  One might have been forgiven for thinking that prominent NeverTrump pundits had become policy moderates -- people who, once hit with the bucket of ice cold water that is the combination of Trump and movement conservatism, suddenly woke up and realized that perhaps one's highest calling in life should not be to justify tax cuts for the wealthy or throwing tens of millions of people off o...

by Sherry F. Colb In my Verdict column for this week , I discuss the Larry Nassar case and why a doctor was able to sexually abuse his patients with impunity. I propose that the answer might have something to do with the status that doctors occupy in our society. In this post, I want to extend that idea--that doctors occupy a kind of benevolent authoritarian status in our society--to a different kind of abuse, one that is apparently far more widespread than even Larry Nassar's sexual predation. I had heard about it before but then allowed it to slip my mind. Then the NPR program, "This American Life," brought it back. The show recently featured a story about a very disturbing phenomenon. It seems that young doctors, learning their craft, have routinely performed pelvic exams on unconscious female patients under general anesthesia. According to this story, these exams are not only quite common but are actually legal in most of the country. In this post, I want to con...

by Michael C. Dorf Judge O'Connor's decision  late last week striking down the entire Affordable Care Act is, to use a phrase coined by Yale Law Professor Jack Balkin, "off the wall." Balkin developed this idea in academic articles, but he applied it, fittingly, to the original challenge to the ACA. In a 2012 article in The Atlantic , Balkin wrote: Off-the-wall arguments are those most well-trained lawyers think are clearly wrong; on-the-wall arguments, by contrast, are arguments that are at least plausible, and therefore may become law, especially if brought before judges likely to be sympathetic to them. The history of American constitutional development, in large part, has been the history of formerly crazy arguments moving from off the wall to on the wall, and then being adopted by courts. Balkin's latest deployment of the wall metaphor insightfully explores the question whether Judge O'Connor's opinion will end up on the wall. As Balkin's as...

By Eric Segall On Wednesday of last week, Mike wrote a typically thoughtful post on the difficulties originalists (and others) have when determining proper standards for the Court to use when deciding whether to overturn prior cases. One of his conclusions, that " o riginalist acceptance of  stare decisis  very substantially constrains the role of original meaning in determining outcomes, even accepting the originalists' own premises," is I think exactly right. But Mike did not ask, nor try to answer, what I think is an antecedent   question about the role of precedent in the Supreme Court: Does the doctrine exist at all apart from stylistic rhetoric that pops up from time to time in Supreme Court opinions? I think the answer to that question is important and obvious--no.

by Diane Klein

by Michael C. Dorf Once again, I am posting an exam. This one was administered to my first-year constitutional law students on Tuesday. They had eight hours and a 2,500 word limit. Interested readers should feel free to spend less (or more!) time and fewer (or more!) words providing answers in the comments. I won't grade readers' answers, as I'm too busy grading the actual exams. Enjoy! Question 1 NASA scientists announce in December 2018 that they have detected and definitively translated a signal from a region in space approximately 40 light-years from our solar system. The translation is: People of Earth, beware. Your civilization is in grave danger from the Jet People of the Planet Weezer. The Jet People have already committed genocide on our home planet. We are the last survivors of a great civilization of Shark People. We do not expect to survive the next attack. You must prepare to fight the Jet invaders. They are ruthless, but they can be defeated by high-e...

by Neil H. Buchanan To be clear, John Kasich would be a better president than Donald Trump.  But so would my dog Maynard, who died in 2007.  Being a preferable alternative to the most dishonest, corrupt, bigoted president ever cannot be the standard for judging possible presidential contenders, yet many self-styled centrists (or at least non-extremists) in the pundit class continue to treat Ohio's soon-to-be-former governor as some kind of truth-telling paragon of seriousness. This is nonsense on stilts, and The Washington Post 's editorial page -- which, like the editors of The New York Times , seems to think that Kasich deserves to be treated as a serious thinker -- allowed Kasich to inadvertently prove his unseriousness in an op-ed this morning . There is not much to say about the op-ed itself, although I will dutifully force myself to address it in a few moments.  More importantly, however, it is useful to think about how the Kasich myth has played out among the...

by Michael C. Dorf My latest Verdict column discusses last week's oral argument in Gamble v. US . The case poses the question whether to abandon or at least to cut back on the "separate sovereigns" exception to Double Jeopardy. Under that exception, a prosecution in federal court does not preclude a subsequent prosecution in state court based on the same underlying conduct, nor vice-versa. The case is important in its own right but has garnered special attention because of its potential with respect to the Mueller investigation. Should Trump issue pardons to various of Mueller's targets, they could nonetheless face charges in state court (mostly in NY but potentially elsewhere in addition). However, if the separate sovereigns exception were abandoned or curtailed, that option could be off the table. Or at least some observers have claimed. As I explain in the column, even abandonment of the separate sovereigns exception would leave Trump and his henchmen subject ...

by Neil H. Buchanan Now that the Democrats -- thanks to their historic trouncing of Republicans in the midterms -- are set to take back control of the House of Representatives next month, many in the party are talking excitedly about finally creating a universal single-payer health care system in the U.S.  Why not get this country at least into the Twentieth Century when it comes to health care, even if we stagger across the finish line five or six decades later than every other country that we think of as "civilized"? Because the U.S. already has a non-universal single-payer system called Medicare, which happens to be quite popular even among the Republican base, Democrats are using the shorthand Medicare-for-All to describe a range of proposals, some of which would involve the total elimination of private insurance while others would provide public funding for universal care but allow private add-on insurance policies.  Those policy differences, though undeniably impor...

by Diane Klein

By Eric Segall It is a rare event to read a book that combines two great passions. But Gary Pomerantz's "The Last Pass: Cousy, Russell, The Celtics, and What Matters in the End ," is just such a book. Pomerantz (disclaimer, a long-time friend) previously wrote about race relations in Atlanta and Wilt Chamberlin's 100 point game, among other topics. In his latest, he takes on both the NBA and race, two of my favorite topics to think about (one personal, one professional). It is a must-read for anyone interested in either subject.

by Diane Klein

by Neil H. Buchanan Last week, General Motors announced mass layoffs as part of a plan to close multiple manufacturing plants in North America.  Politicians of all stripes expressed varying combinations of anger and dismay, and Donald Trump predictably failed to comprehend the problem or his role in it (just as he had tried to bully Harley-Davidson last year when they rationally responded to his economic policies by planning to move manufacturing abroad). On this blog last Tuesday, Professor Dorf offered some interesting thoughts about what the future of employment might look like.  (Those thoughts, in turn, expanded on a column that he wrote two years ago.)  Dorf wrote: "So far, no one on either the right or the left has really begun to imagine a future in which automation leaves just too few jobs for the number of able-bodied adults who need them." That is correct, but with a twist.  The mainstream lefty intellectual par excellence, the great economist Jo...

by Michael C. Dorf The recent news that Chinese scientist He Jiankui claimed to have created twin girls with genes edited to give them resistance to HIV infection sparked great interest and sharp criticism . Did he actually do it? Did his university know? Why didn't he follow ordinary scientific protocols? Was it ethical? And now, ominously, where is he? Those are all important questions, no doubt, but as a constitutional lawyer they raised a different question for me. The first "test-tube baby" was born forty years ago. In the intervening years, a host of legal questions involving IVF, egg donation, surrogacy, and other forms of assisted reproductive technology (ART) have arisen. State laws and state court decisions address many of these questions. And yet, despite tackling other contentious issues involving human reproduction, sexuality, and family formation, the SCOTUS has been almost completely absent from this debate. I don't intend that observation as a cr...

by Sherry F. Colb My Verdict column this week  discusses the CDC's (Centers for Disease Control and Prevention's) recent report that abortion rates dropped dramatically between 2006 and 2015. I offer competing accounts of this drop and explain how each fares vis-a-vis the political objectives of the various perspectives. The primary competing perspectives are the pro-life and pro-choice perspectives. In this post, I will speak in more general terms about how people who hale from these two perspectives communicate about abortion. I believe we can learn something important from observing some of the destructive ways in which each side uses language.

by Neil H. Buchanan Four days before Donald Trump became president last year, the satirist Andy Borowitz faux-reported that George W. Bush was "eagerly counting down the days until he is no longer the worst President in U.S. history."  This was hilarious, and it reminded me that the junior Bush was once on the opposite end of the joke, with people saying that George H.W. Bush was the beneficiary of a quick rewrite of history due to his once-wayward son.  As one friend of mine put it in the early 2000's: "W is proving that he's a loyal son by doing everything so badly that his father looks good by comparison." The elder Bush's death last weekend has brought forth more than the standard praise for recently deceased politicians.  Bush, in large part because of his stylistic contrast with Trump, is receiving positively glowing coverage — even more glowing than the rewrite of his legacy that his son’s disastrous presidency inspired. Merriam-Webster ...

by Michael C. Dorf In recent weeks, I wrote two blog posts ( here and here ) as well as a Verdict column critical of some aspects of the Dep't of Education (ED)'s notice of proposed rulemaking with regard to Title IX. I had thought I was done with that topic, but some reactions to the column (in the comments section, via an email exchange with Prof. Josh Blackman, and on criminal defense attorney Scott Greenfield's  blog ) raised interesting questions that I think merit further discussion. Hence, this fourth entry in the "trilogy ." By way of preview, I will suggest that ED's theory on a key point relies on a very broad view of discrimination that Republican administrations and the Supreme Court have typically rejected.