Dorf on Law

by Neil H. Buchanan Trying to keep our corner of society running as well as possible under scary circumstances, professors in colleges and universities nationwide have responded to the global pandemic by changing our grading systems for (what we hope will only need to be) the current semester.  The most cynical way to describe such changes is that grading is now "easier," which is freaking out the guardians of nerd machismo in the academy. I cannot possibly improve on my Dorf on Law co-blogger Diane Klein's magnum opus from this past Friday, in which she systematically dismantled the arguments recently on offer from three law professors who have railed against the temporary grading changes -- although, as Professor Klein points out, it is frequently unclear whether their complaint is actually about curved grading more generally or, perhaps, simply an objection to noticing that our students are human beings who differ from each other in relevant ways. Again, the K...

By Eric Segall Law professors and other scholars write new articles about Originalism almost every day of the week. The sheer volume of this content makes it quite difficult to separate the wheat from the chaff. Every now and then, however, an article comes out that makes a seriously new and important contribution to the subject matter. Professor Stephen Griffin's " Optimistic Originalism ," is one of those articles. One of the great tensions between most forms of modern Originalism (that is any theory of Originalism without a component of strong judicial deference) and contemporary constitutional theory is how to reconcile the original public meaning of the Reconstruction Amendments with our modern society. The two most glaring examples of this disconnect are that most scholars and historians believe that the 14th Amendment's original meaning allows segregated schools (D.C. schools were segregated at the time and Congress knew it), and allow laws that overtly and...

by Diane Klein Dramatic (probably temporary) changes to grading policies are afoot in America's law schools, and in higher education more generally, in response to COVID-19, the all-online transition, and the seismic disruption taking place in education across the United States.  No sooner had thousands of faculty members figured out how to deliver their courses over Zoom and similar platforms, many for the first time ever, than the inevitable subject of grading had to be addressed.  Right now, when deadliest day follows  deadliest day in the crisis, a subject like law school grading policy is a matter of urgent concern to only a tiny fraction of the U.S. population - consisting, in rapidly descending order, of U.S. law students themselves (about 113,000 nationwide), law faculties and administrations, and legal employers.  Most of the rest of the world probably could not care less.  But if you do care, keep reading!

by Neil H. Buchanan The U.S. Senate has now unanimously (!) passed the $2 trillion dollar stimulus bill that had been temporarily delayed while Democrats tried to reduce what we might as well call the "corruption premium" that Republicans had built into their initial proposal.  I continue to believe that, even though this is the "the largest fiscal stimulus package in modern American history" (as The New York Times insists on putting it , even though that claim is acontextual and means nothing), much more will soon be needed. In my paired Verdict and Dorf on Law columns earlier this week, I argued that it would have been acceptable for the Democrats to agree to pay the bribes that the Republicans demanded, because we should simply admit that one of our major political parties is not going to treat this most serious of situations any different from any other.  They exploit every situation to push through regressive money grabs, and in this crisis the need f...

by Michael C. Dorf My Verdict column calling for a national lockdown and, if needed to ensure its enforcement, suspension of habeas corpus, continues to receive pushback. Some of that pushback has a through-the-looking-glass quality, like this piece in RT , which for those unfamiliar, is a Putin-backed propaganda outlet for pro-Trump and other trollish views. I shall wear being called an "authoritarian minded law professor" by an organ of a foreign authoritarian as a badge of honor. That said, the RT article makes a valid point: people who raise doubts about lockdown policies could have a legitimate argument and thus should be given a hearing. Today I'll look at the most prominent law professor to make the case that we are overreacting: Richard Epstein. His views do not withstand even the most minimal scrutiny and may already be responsible for serious real-world effects.

by Diane Klein In two recent posts, I have presented some arguments in favor of recording your classes and captioning those recordings, based primarily on accessibility issues, including  economic  ("digital divide") and pedagogical/legal  concerns, and the costs and risks of failing to do so.  Without taking any of that back, I'd now like to present the other side: not arguments against taping per se , but some of the distinctive risks associated with recording your classes - and especially, synchronous classes in which students participate.  In the absence of clear institutional taping policies, the problems are non-trivial, the best way to negotiate through them is far from obvious, and the right choice for one class, school, or professor may not be the same as for another.

by Neil H. Buchanan As of this moment (late Monday morning), there is still no deal on an economic stimulus/bailout bill in the U.S. Senate.  Whenever a deal goes through, the result will be deeply flawed and almost certainly inadequate to the moment.  That means that we will go through this again, probably very soon.  What should senators who mean to do good (that is, not Republicans) do in the current situation to minimize the damage and maximize the positive impact? In my new Verdict column today, " What Should Democrats Do About Republicans’ Insistence on Lining Their Own Pockets With the Stimulus Plan? " my advice for Democrats (in the form of more than two thousands words) boils down to this: Fold.  Give up.  Feel good about trying to make the bill less of a money-grab for Republicans and their backers, but get it over with.  Something is better than nothing. Allow me to elaborate.

by Michael C. Dorf Just over a week ago, I urged Congress to enact legislation "locking down" the country and, if necessary, temporarily suspending the privilege of the writ of habeas corpus. As I related in a follow-up essay here on the blog , most of the critical commentary on my column focused on habeas suspension, even though I did not and do not regard that as the core of the proposal. For me, the key is lockdown. I am heartened that in the intervening period the governors of several of the hardest hit states (including NY, where I live) have issued stay-at-home policies. I think most of these policies are too lenient for this stage of the crisis and that broader federal action is needed, but something is better than nothing. Meanwhile, on Twitter and elsewhere, various commentators questioned my willingness to give sweeping power to President Trump and his administration, whom we have good reason to distrust. I responded in my blog post that that is the reason I w...

By Eric Segall Like millions of parents here and abroad, my wife and I are trying to juggle our work responsibilities (Lynne is a business school professor) with our parental duties while we are effectively home bound other than walks around the neighborhood with our dogs and occasional trips to the grocery and pharmacy. Our daughters are Sara, 12 and Katie, 11 (I also have a 29 year old daughter Jessica who is safe and sound elsewhere). It appears that this is going to be our way of life for a while so I thought I would share a few thoughts and questions about what Lynne and I are going through right now to keep our children safe, sound, and sane. If you're looking for clear answers to the issues I am going to raise, you might want to stop reading now. Also, I am not claiming any special expertise regarding parenting but writing this in the hopes of, maybe, making other parents feel not so alone when essentially, other than our immediate families, and communicating via various...

by Michael C. Dorf Donald Trump's repeated references to SARS-CoV-2 (the coronavirus that causes COVID-19) as a "Chinese virus" encourages racism against Asians and Asian Americans, undercuts the willingness of the Chinese government to provide us with vitally needed assistance that it is almost uniquely positioned to provide, and serves to distract Americans from the ways in which his administration has, through incompetence and egotism, turned what would have been an extremely challenging public health emergency for any normal President into a catastrophe. There is still time to act to greatly reduce the destructive impact of COVID-19, but the time is now. A national lockdown of the sort that California is now implementing for even as little as three weeks would slow the spread of the virus and buy sufficient time to ramp up testing so that the U.S. could shift to the sort of extensive testing and individual isolation regimes that have allowed South Korea, Singapore,...

by Diane Klein and Brian Grewe, Jr. So, how's that all-online transition going for you?  If you're anything like the 500+ (750+ as of May 18) members of "Pandemic Pedagogy: Law in a Time of Coronavirus," a Facebook group I spun off of the enormous "Pandemic Pedagogy" group (23,000 teachers from K-12 on up), the answer is decidedly mixed.  So I hate it to make it worse by talking about something else  you're probably not doing - but should be: captioning your lectures. (Updated May 18, 2020 with a cute visual aid below.)

Note to Readers: My new Verdict column, published today, is titled " Can the Republicans Cancel the Elections, Even Though Trump Can’t? "  There, I discuss an unusual route by which one or two Republican governors could "win" the election for Trump by shutting down their states' voting.  Enjoy!  My column below discusses a completely different issue. by Neil H. Buchanan Today, I am going to say something good about the Trump Administration.  There is no need to reach for the smelling salts, however, because I readily acknowledge that the good thing that they are doing -- throwing money at the economy when that is exactly what is called for -- is entirely cynical and poorly thought out.  But credit is due for breaking with orthodoxy, especially their own particularly pernicious orthodoxy about the national debt. There are some habits of mind that are simply hard-wired.  One particularly damaging one is for political pundits -- including self-identif...

By Eric Segall            While our country is reeling from the chaotic effects of the Coronavirus, those of us with expertise unrelated to medical issues should probably keep doing what we do. E ven though the Supreme Court  has postponed  new oral arguments, t here is a crucial election in November and major constitutional law cases will still be decided by the Court this term . This essay shows how the two are related.

by Neil H. Buchanan The crossover punk/pop band The Offspring's 2008 song "Stuff is Messed Up" (which uses different words for "stuff" and "messed" in the refrain) includes these memorably sarcastic lines: Now thank God for the media For saving the day, Putting it all into perspective in a responsible way. To look at photo after photo of empty grocery store shelves in newspapers, along with onsite "news" segments with pseudo-reporters standing with empty shelves behind them, one might think that there had been panic buying that left grocery stores across the country denuded of all items.  If one looks at some of those photos closely , however, it is possible to see in the background that other shelves are well stocked, with the scenes framed to appear to be post-apocalyptic. Most readers will have seen this for themselves by now, I suspect, but I can report from personal experience that my local markets have run out of toilet paper a...

by Diane Klein Most of us wouldn't teach a class that required note-taking with pen and paper, if we knew in advance that many of our students didn't have those things.  But that's exactly what we are doing with the all-online transition in America's schools in response to the coronavirus crisis.  For students who fall on the wrong side of the " digital divide ," it won't matter how good a job faculty do trying to overcome all the challenges inherent to delivering effective instruction online in the weeks and months to come.  They'll miss out all the same.

by Michael C. Dorf Yesterday Verdict published my call for a national lockdown and the suspension of habeas corpus as a means of ensuring that no court enjoins it. I am fully aware that the column takes some controversial positions, including positions that I would not take--indeed positions that would likely outrage me--in other circumstances. The boldest such position is my contention that Congress could invoke the Suspension Clause on the ground that a lethal virus that originated overseas and now threatens the lives of millions of Americans counts as an "Invasion." Today I want, not so much to defend that view, as to explain my approach.

by Diane Klein Suppose the faculty, staff, and students at nearly every institution of higher learning in the United States woke up tomorrow in the plot of "A Quiet Place."  Terrible fatal monsters were stalking their schools, sensitive to the very least sound.  In response, university administrations ordered everyone to begin using American Sign Language (ASL) for all instructional activities, immediately.

By Eric Segall [Disclaimer: With everything going on right now, I know there are much more urgent matters that need addressing than the role of the Supreme Court in the next election, but I’m not a doctor and don’t even play one on TV so I guess I will march on with what I know. My heart goes out to all those affected by the virus.] As the 2020 general election approaches, Democrats should take heed that exit polls taken after the 2016 Presidential election showed that approximately one-quarter of Donald Trump supporters said the Supreme Court was the most important reason why they voted for him. Trump made the Justices a visible issue in the campaign by saying he would nominate people like the late Justice Antonin Scalia and by publicizing a list of potential Supreme Court nominees, most of whom belonged to the conservative Federalist Society. In September, 2018, just before the mid-term elections, 76% of people polled said the Supreme Court was “very important” to their vote. ...

by Neil H. Buchanan Until now, I have not felt that I could write about the coronavirus and the accelerating health emergency that has already changed day-to-day life for many Americans (and even more people around the world).  When I considered devoting a full column to the topic, I quickly realized that I simply did not want to do so.  Why did I feel that way, and why did I change my mind today? The short answer to the latter question is that Professor Dorf's excellent column yesterday inspired me to think directly about the risk/reward questions raised by the possible pandemic.  In that column, he explained why rhetorically minimizing the public impact of the virus -- even in the way that New York's governor Andrew Cuomo reasonably minimizes it ("People not at risk should not overreact"), not in the way that Donald Trump irresponsibly minimizes it ("We have tests for everyone, and they're beautiful tests") -- might not be wise. After all, it is...

by Michael C. Dorf On Sunday, New York Governor Andrew Cuomo publicly pleaded with the federal government for authorization for expanded COVID-19 testing. In the course of his remarks , Cuomo sought to reassure young and healthy people about the small risk that the coronavirus poses to them: “There’s a level of fear here that is not connected to the facts,” he said. “This is not the ebola virus, this is not the SARS virus. This is a virus that we know a lot about… The dangerous aspect again, that vulnerable population.” Put differently, we might characterize Cuomo's advice to young healthy New Yorkers as "don't panic." Is that good advice? The costs of COVID-19 panic are obvious and serious. People who are not sick hoarding hand sanitizer and masks that will not protect them but that deprive health care workers of essential supplies put others at risk. Yet some panic--in the sense of actions motivated by fear that is disproportionately large relative to individual ...

by Michael C. Dorf In Planned Parenthood v. Casey , the lead opinion of Justices O'Connor, Kennedy, and Souter said that a law imposes an undue (and thus unconstitutional) burden on abortion if the law "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." In the challenge to the Texas admitting privileges law in Whole Woman's Health (WWH) v. Hellerstedt , some advocates and commentators urged the Court to strike the law down on the ground that the Texas legislature adopted it for the purpose of making it more difficult for women to obtain abortions. Justice Breyer's majority opinion in WWH repeatedly quoted the "purpose or effect" language, but did not invalidate the admitting-privileges law based on its abortion-restrictive purpose. However, neither did he rely on the law's effects alone. Instead, making sense of the name of the test ( undue burden), Justice Breyer refined ...

[Note to readers: My most recent Verdict column, " Another Attempt to Find Optimism in American Politics ," was published yesterday.  My column today here on Dorf on Law addresses a different topic, but I do hope that many of you will read the Verdict piece as well.] by Neil H. Buchanan The indispensable website thesaurus.com (which just helped me replace the word essential with indispensable ) offers the following synonyms for the word "sucker": chump, dupe, fool, gull, patsy, sap, stooge.  In turn, the entry for "patsy" includes (among others): doormat, sitting duck, pushover, sap, schmuck, and easy mark. Last week, The New York Times published an op-ed by Columbia Law professor Tim Wu with the wonderful title: " Quantifying Liberal Suckerdom ."  The piece summarizes an interesting little study by Wu's Columbia colleague Kristen Underhill and two co-authors that attempts to measure whether and how much liberals are pushovers,...

by Michael C. Dorf Throughout the caucus and primary season, Democrats have been deciding on a candidate by considering who is more likely to win the general election (and how much more likely) and choosing who would be the best President. That choice is simpler now that the race has been effectively narrowed to two contenders, but it is by no means simple. Consider my own calculus. My policy views are heterogeneous but on average closer to those of Bernie Sanders than Joe Biden. Meanwhile, just last month I tentatively suggested  that the usual framing of base mobilization (via Sanders) versus appeals to moderate swing voters (via Biden) could be wrong--that Sanders might be better positioned both to motivate base activists and to appeal to potential swing voters because, as a left-leaning populist he could better compete with Trump's right-wing populism. However, that tentative suggestion could be wrong in various ways. Sanders draws huge crowds for rallies but has not yet ge...

by Neil H. Buchanan Well, that was fast.  Five days ago, Joe Biden's candidacy was dead in the water and Bernie Sanders was all but assured of the nomination, with Michael Bloomberg still out there as a possible "savior" from the commie scourge that Sanders (and, to a lesser degree, Elizabeth Warren) represents.  Pete Buttigieg and Amy Klobuchar were still possible insider alternatives. It is rare these days that this kind of rapid, chaotic change in the news is not directly caused by Donald Trump, but this one was truly the doing of the Democratic Establishment.  They succeeded in pushing Buttigieg and Klobuchar out (with inducements that we will probably never hear about), Bloomberg dropped out this morning, and and it looks like Warren will drop out very soon.  Although Sanders will surely soldier on, the party's elite has gotten its way: Joe Biden now looks to be the nominee to beat Trump "like a drum." I am hardly the only person to notice that Bid...

by Michael C. Dorf Tomorrow the Supreme Court will hear oral argument in June Medical Services LLC v. Russo . The case presents the following question: "Whether the U.S. Court of Appeals for the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt . " Whole Woman's Health invalidated a Texas law requiring physicians who perform abortions to have admitting privileges at a local hospital, so unless the Constitution means something different in Louisiana from what it means in Texas, the obvious answer to that question is yes. Nonetheless, one would have to be very naive to think there is not a substantial possibility that Louisiana will prevail.

By Eric Segall I am often asked by other law professors how I teach constitutional law given my hyper-critical views about the Supreme Court. I respond by saying that: 1) the subject is on the bar exam so of course I emphasize and make clear the black letter "law;" 2) the class is wonderful for helping students improve their critical thinking; 3) if you are going to practice constitutional law you need to learn how to talk the talk of formalism and legal rules; and 4) I disclose my priors to students on the first day of class so they have an idea what the course is going to be like. Nevertheless, I understand why I get this question all the time. As Professor Christopher Sprigman recently said on Twitter, he tried teaching constitutional law but stopped "because  my students were unhappy when I would point out how the Supreme Court was making it up, often incoherently. Students want to believe in what is in reality a bad discipline." Numerous other professors ha...