Dorf on Law

By Eric Segall These days, it feels like being thankful can be hard. If you are like me, the political world is difficult to escape. I don’t pretend to remember well the burning cities of my 1960’s youth or the national angst over young men and women going off to fight the unjust and illegal Vietnam war, but America today feels more torn apart than at any other time during my lifetime. I know people whose friendships and even families have been casualties of our polarized discourse and national divisions. The base cruelty and rudeness of our President, I fear, is infecting not just his supporters but his antagonists too. As my friend Dr. Aaron Caroll says so often on Twitter, there does not seem to be a bottom. Well, I need a day off. So here are a few hopefully not too trite thank you’s and optimistic thoughts that I thought I would share on our national day of Thanksgiving. Please forgive the personal nature of what follows.

by Michael C. Dorf A century ago, pioneering cultural historian Johan Huizinga published the first (Dutch) edition of his brilliant, if somewhat tendentious The Waning of the Middle Ages (sometimes translated as The Autumn of the Middle Ages ). Focusing on the 14th century Burgundian court in what is now France and the low countries, Huizinga described a period of decay and pessimism, but also one of continuity. In an insightful aside about the masterful art then being produced in northern Italy, he observed: "Here, as elsewhere, the line of demarcation between the Middle Ages and the Renaissance has been too much insisted upon." Similar statements appear throughout the the book. Periodizations, like generational lines, are typically imposed from outside, and observable mostly in retrospect. The society Huizinga chronicled was dying, but most of the people of the time did not realize it, because they were too close to see the sweep of history. And so perhaps it is with u...

by Neil H. Buchanan What if Donald Trump is declared the winner on election night next year?  I address that question in my new Verdict  column today , as part of my continuing exercise in forecasting the various ways that our constitutional system is being destroyed.  (Happy Thanksgiving, everyone!)  This question is not one that I have addressed before now, but it provides another avenue through which Democrats' extreme self-doubt and overcautious instincts could fail the country. There are essentially three ways that presidential politics could play out over the next year: (1) Trump is impeached, convicted, and removed; (2) Trump loses the 2020 election, (3) Trump wins the 2020 election.  (Other possibilities exist, of course, such as the death of an extremely unhealthy septuagenarian who is constantly enraged and has a terrible diet, but I will set those aside.)  Thus far, my writings have focused on (1) and (2) but ignored (3). The reason for ign...

by Michael C. Dorf David L. Shapiro, the William Nelson Cromwell Emeritus Professor of Law at Harvard Law School, passed away last week. David was a brilliant, humble, witty, and fundamentally decent human being. He was my teacher, mentor, and friend. In a lovely tribute on the occasion of his retirement, Prof. Amanda Tyler called David a "lawyer's lawyer." I agree. Indeed, David was also a law professor's law professor. The current Solicitor General, Noel Francisco, wrote a respectful remembrance here . The official obituary in  Harvard Law Today  includes praise from Prof. Tyler, Dean John Manning, and Prof. Richard Fallon. Meanwhile, I want to add a few words of my own.

by Neil H. Buchanan After this week's Democratic presidential debate, a very stern columnist for The Washington Post   chastised Senator Bernie Sanders for giving the wrong answer to Rachel Maddow's question about recent chants of "Lock him up!" at various gatherings, including at some Sanders rallies.  Stephen Stromberg instructed us as follows: "The right answer is: 'It is understandable that people are frustrated with President Trump. But everyone else should resist stooping to his level. I wish people would not do Trump-like chants at my rallies.'" But Sanders "bomb[ed] the ‘lock him up’ test," said Stromberg, by instead saying: "Well, I think the people of this country are catching on to the degree that this president thinks he is above the law. And what the American people are saying is: Nobody is above the law." Or, as Stromberg characterized it: "Instead, Sanders essentially said, “Well, people think the pres...

by Neil H. Buchanan In the 1970's, Coors beer suddenly became all the rage.  This was at a time when the consolidation of the American brewing industry was in full swing, with mega-brewers buying out or simply crushing locals like Stroh's (Detroit), Schaefer (Boston), Iron City (Pittsburgh), and so on.  It was also a few years before the first whispers of what became the craft beer revolution were first heard. Coors, brewed in Colorado, was not yet known for the extreme right-wing politics of its founding family.  It also was still very much a regional beer, with no national distribution at all.  I was in high school in Ohio at the time, and for no apparent reason, people began to talk about Coors in near-mythic terms.  People who went on skiing trips to the Rockies were encouraged to drive rather than fly, because that would allow them to fill their trunks and back seats with cases of Coors to bring back for all of their family and friends.  The ultima...

by Michael C. Dorf As a primary voter, how much, if at all, should you care about policy differences among the candidates, given the fact that many of the key proposals require congressional approval that will not likely be forthcoming from Congress, absent a change in the cloture rule? Here I'll defend the following answer: Some, but mostly because of what they indicate about the candidate's priorities rather than because of the policies themselves. Let me unpack that paragraph using the current Democratic field as illustrative, although what I say here should be equally applicable in a Republican primary, albeit with different policies. Suppose you have narrowed down your choices to two candidates. One of them--let's call her Warren--favors Medicare for All. The other--let's call him Buttigieg--favors Medicare for All Who Want It. Let's assume that in all other respects you are in equipoise between these two candidates. One rather straightforward way to decide...

by Michael C. Dorf Last week, a civil jury in federal district court in San Francisco sided with Planned Parenthood and against anti-abortion activist David Daleiden and his organization the Center for Medical Progress, with liability for compensatory and punitive damages totaling just over $2 million. I am  ambivalent about the decision.

by Neil H. Buchanan In two recent two columns --  here  (regarding health insurance) and here  (regarding retirement savings) -- I have provided excruciatingly specific details about the very odd process that plays out when Americans change jobs. The overriding question that intruded into both columns, even though I was largely focused on other matters (such as the cruelty and ridiculous expense of our health care system) was: Why, in fact, do American employers routinely offer and manage any of these benefits?  Other than being familiar, what allows a system that is utterly illogical to continue to be accepted by nearly everyone as simply the way that things are done? Last week, Professor Dorf took a useful run at this question.  Noting that employers have largely gotten out of the business of providing retirement benefits -- by shifting the risks of inadequate planning or simple bad luck onto employees, which is the point of changing from vested ...

By Eric Segall After Dick Posner retired from the federal bench, I wrote on this blog that "t here is no doubt that he is the most important judge in America over the last fifty years who never sat on the Supreme Court." I also confessed that Dick and I are good friends so my objectivity was compromised. I was pleased, therefore, to read that Professor Lawrence Solum recently said the following about Posner: I have only read a fraction of Posner's judicial decisions, but on the basis of that fraction, he is, in my opinion, one of the greatest judges in the history of the common law--and the greatest American judge of his time. Professor Solum is, of course, one of our leading academic originalists, and the only law professor who testified in favor of originalism at the confirmation hearing of then-Judge Neil Gorusch. What is interesting about Solum's praise of Posner is that there is little doubt Posner was one of, if not the most, anti-originalist judges of h...

by Michael C. Dorf Tomorrow morning I'll be on a panel at the Federalist Society National Lawyers Convention , speaking on the topic "Why, or Why Not, Be an Originalist?." US Court of Appeals Judge Thomas Hardiman will moderate the panel, which also will include UVA Law Prof Sai Prakash, NYU Law Prof Rick Pildes, and US Court of Appeals Judge Amy Coney Barrett. Based on our planning conference call and the known priors of the panelists, it is very likely that Prakash and Barrett will offer reasons to be an originalist, while Pildes and I will offer reasons not to be an originalist. Before proceeding to preview my remarks, I want to say a few words about Fed Soc. Recently, I have watched uneasily as some very prominent members have debased themselves by carrying water for Donald Trump in the apparent view that his nomination of conservatives to the federal bench justifies a kind of Faustian bargain. By the same token, I admire other conservatives with ties to Fed Soc...

by Michael C. Dorf My latest Verdict column takes the recent election in Argentina as a point of departure to argue that everyone would be better off if we did not regard demotions as shameful. In that election, I note that Argentines elected a former President, Cristina Fernández de Kirchner, as their Vice President. Argentina has a two-consecutive-term limit on the Presidency but no lifetime term limit, so Kirchner may regard the Vice Presidency as a stepping stone back to the Presidency (in the same way that Vladimir Putin allowed Dmitri Medvedev to keep the President's chair warm for him while he cooled his heels as Prime Minister). I explain that not every demotion offers a clear path back to the better job but that there will often be reasons why a "lesser" job is better than or at least as good as a more elevated one. That's the column in a nutshell, but interested readers should check it out for more details and examples. Here I want to connect a point ...

by Neil H. Buchanan I have heard labor lawyers use a term, "retroactive incompetence," to describe the phenomenon in which an employee with a stellar work record (usually including glowing annual performance reviews, multiple commendations, and so on) finds herself under attack by her bosses after she does something that the bosses dislike (files a sexual harassment complaint, sues for being passed over for a promotion in favor of a less qualified beneficiary of nepotism or sexism, blows the whistle on financial misdeeds or environmental crimes, and so on). The "disgruntled former employee" at that point becomes the worst worker the company had ever been forced to deal with.  It becomes surprisingly easy to swat away all of those employee-of-the-year awards and letters of commendation by saying that the employee was so  problematic that it was easier for everyone to tell her that she was (and to treat her like) a great employee than to tell her to stop bein...

by Michael C. Dorf On Thursday of last week, Jennifer Williams, an aide to Vice President Mike Pence, testified for the House impeachment inquiry. Her cooperation with the inquiry raises an intriguing possibility: What if Pence is implicated in the arms-for-fake-dirt Ukraine scandal? Should the House impeach Pence alongside of Trump? If doing so is justified by the evidence, then simultaneous impeachment and removal of Trump and Pence would make House Speaker Nancy Pelosi the acting President, pursuant to the Presidential Succession Act . That possibility, in turn, would certainly make Republican Senators who might otherwise be willing to vote to remove a President and Vice President of their own party unwilling to do so. Or they might insist on removing the President and Vice President one at a time. If they removed Pence first, then, pursuant to Section 2 of the 25th Amendment , Trump could name a new Vice President; Trump's removal would then lead to the new Vice President...

by Michael C. Dorf Today I have the pleasure of attending an all-day conference at Cornell Law School focusing on the forthcoming book The Reasoning State  by my colleague Prof Edward ("Jed") Stiglitz. I look forward to hearing the comments of various panelists who have come from near and far. I'm commenting on two of the chapters. Here I want to preview some of my remarks on Chapter 2 -- Reasoning and Distrust: State Architecture in Advanced Societies. The book as a whole is terrific. It is methodologically diverse, including historical materials, legal and institutional analysis, formal mathematical models, and the reports of some psychological experiments, all integrated into a coherent whole. I won't attempt to summarize the entire book here, however, both because that's too daunting a task and also because Chapter 2 is the core of the book. In both my oral comments later today and in this preview, I'll begin with a summary of the chapter (and thus t...

by Neil H. Buchanan In my new Verdict  column, published this morning, I return to the Democrats' intramural feud over Elizabeth Warren's Medicare-for-All plan.  Back when she had not yet released the details of her plan, the self-styled reasonable centrists claimed that she was being vague because she refused to "admit" that her plan might involve having people pay taxes.  As I wrote at the time (those days of yore known as three weeks ago ), it was not Warren but her detractors who were being evasive, because they were pretending not to notice all of the non-tax costs that our health care system imposes on people. Now that Warren has released a detailed financing plan -- one that does not, in fact, raise taxes on the middle class -- the arguments from her opponents have only become more absurd. The title of today's column ( Dear Mayor “Extremely Vague” and Senator “Pipe Dream”: Put Up or Shut Up ), is of course a reference to the oh-so-clever zingers that ...

By Eric Segall On Friday, I’m heading to Loyola of Chicago’s excellent annual Constitutional Law Colloquium. I’m looking forward to hearing Professor Pamela Karlan give the keynote speech, Professor Richard Fallon talk about his new book on constitutional interpretation, and attending a bevy of interesting panels. I’ll be talking about justiciability in general, focusing mostly on standing. The current state of the doctrine is incoherent by any standard, and I’m not aware of any academic commentator who thinks the Court’s case law on the subject truly distinguishes proper from improper exercises of judicial authority.

by Neil H. Buchanan A few months ago, I discussed my travails in trying to navigate the health insurance options as I transitioned into my new position at the University of Florida.  My overall purpose in writing that column was to mock the cruel joke that is "freedom of choice" in the American health care system.  Even mainstream economists have known for decades that health care is not a "normal" good as depicted in Econ 101, so the world will not be characterized by so-called efficient outcomes when people are left to fend for themselves in that marketplace. In fact, the description in that column of my own uncertainties and wasted time in choosing a health insurance plan was almost comical in that my employer offers exactly two  health insurance plans.  Two options, but the state of Florida nonetheless spends huge amounts of money trying to make the process more user-friendly.  If even a duopoly is hopelessly complicated, what hope is there for clarit...

by Michael C. Dorf Two social media platforms have adopted very different approaches to political advertisements. Facebook has a general policy of fact-checking and removing "false news and other types of viral misinformation, like memes or manipulated photos and videos," but exempts politicians, including politicians who appear in ads on Facebook. Twitter , formulating its policy in deliberate contrast with the Facebook policy, will stop running political ads entirely. Both Facebook and Twitter justify their respective policies by reference to norms of democracy and free speech. Let's consider the merits of these justifications.

[Note to readers: My new Verdict  column, " Go Big, Democrats: Attempts to Rig Elections Are Not the Only Impeachable Offenses ," was published yesterday.  Today's column here on Dorf on Law  addresses a different topic entirely.] by Neil H. Buchanan It is good for the soul, I think, to look for situations in which one has made an error and to admit as much out loud.  Or, if not actively to look for such examples, at least to recognize them when they arise.  I confess that I might be jumping the gun here (as I will explain below), but it is beginning to look as though I was wrong about how Joe Biden's impending failure in the Democratic primaries will play out. Note two things up front.  First, I did not say that I seem to be wrong in predicting that Biden would fail.  Rather, the question is how that failure will happen and how it will be received by the punditocracy and the Democratic elite.  More importantly, second, we are still m...