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 if it w

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. That is not to say that Tru

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 undermini

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 keepe

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 John Maynar

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.

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 follow-up piece imagining the

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 others, in which case I

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 imaginable circumstances every repre

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 the c

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 opportunity for la

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, too

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 good about her, but

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.