Dorf on Law

by Michael C. Dorf With COVID-19 cases and deaths in the United States setting daily records, this seems like an appropriate time to check in on NYU Law Professor and libertarian public intellectual Richard Epstein. Recall that back in March, Epstein wrote a column for the Hoover Institution website condemning what he thought was shaping up to be a governmental overreaction to the pandemic. In that column, Epstein predicted that even without substantial government interventions, the total number of COVID-19 deaths in the United States would be around 500. Shortly thereafter, Epstein acknowledged what he called a "stupid gaffe." He should have said 5,000 U.S. deaths and 50,000 deaths worldwide. The original column was thus corrected (at least twice). Yet, as I explained in an essay  shortly after Epstein published his analysis, even his "revised estimate [wa]s still probably at least two orders of magnitude too low." I wish I could say that I was wrong, but it is n...

 By Eric Segall Thanksgiving has always been a special time for my family. My mother's birthday was November 22, and my parent's anniversary was November 25. My mother passed away a few years ago but my dad is still going strong at 91. Thanksgiving was our one sacred time time together when my brother and sister's families as well as mine would all get together with our parents. This is the first Thanksgiving I won't spend with my siblings and at least one of my parents in decades. Like millions of Americans we will zoom, but it will not be close to the same. Giving thanks can be hard. Nothing in 2020 has been the same. Trump, the pandemic, George Floyd, and numerous other sad events have changed our lives dramatically. There has been a twitter saying since shortly after Trump was elected that "there is no bottom." That is true of Trump and his enablers, but not for America, and eventually the pandemic will pass and racial injustice will slowly get better.  So...

by Michael C. Dorf As Thanksgiving approaches, I want to express sincere gratitude to Republican public office holders who carried out their legal duties despite enormous pressure to participate or acquiesce in Donald Trump's scheme to end American constitutional democracy. The list is long and includes a great many people whose names are not widely known (a fact for which they are no doubt grateful). Most prominent among those whose names we do know are: Georgia Secretary of State Brad Raffensperger; Philadelphia City Commissioner Al Schmidt; Michigan Vice-Chair of the Board of State Canvassers Aaron Van Langevelde; the four Republicans on the five-member Maricopa Board of Supervisors; Federal District Judge Matthew Brann; and US Senators Susan Collins, Lisa Murkowski, Mitt Romney, and Ben Sasse. Thank you to all of them and to everyone else who put duty first. In recent days I have seen it said that one should not be praised simply for doing one's job--that this is too low a ...

by Neil H. Buchanan   Back in June of 2016, I pointed out that Donald Trump had created an entirely argument-free version of political campaigning.  I compared and contrasted Trump's type of logical error to the standard Republican type of logical error.  Although I did not at that point use these labels, it makes sense to contrast Republican il logic with Trumpian non -logic. The difference is that Republicans typically have at least a story to tell that connects premises to conclusions.  Referring to the example of the infamous Laffer Curve, I noted that the Republican argument goes like this: "Tax cuts cause people to want to work more and businesses to expand, so the economy grows, and indeed it grows so much that total tax revenues rise despite the lower tax rates on each dollar in that expanded tax base."  Could be true.  Not true, at all, as proved again and again and again; but could be true.  They are being illogical because they insist on r...

by Matthew Tokson On Saturday, eight Republican electors in Pennsylvania sued in state court , asking a judge to throw out all 2.5 million Pennsylvania mail-in votes. The plaintiffs claim that Pennsylvania’s 2019 mail-in voting law is unconstitutional because the Pennsylvania Constitution implicitly limits absentee voting to specific circumstances.  Similar  suits  have been  filed  in several other  jurisdictions.  Rudy Giuliani’s federal suit currently on appeal seeks to invalidate all 6.8 million Pennsylvania votes based on an alleged Equal Protection Clause violation. And a rejected Texas lawsuit sought to throw out 100,000 votes cast at drive-thru polling stations, claiming that such voting violated Texas law.  Set aside laches and the profound weaknesses of the merits claims in these suits. Assume that the challenged elections provisions—and the votes cast under them—were unlawful. How should a court think about voter reliance ...

  by Michael C. Dorf After meeting with President Trump on Friday, the Republican leaders of the Michigan legislature--Mike Shirkey, the State Senate majority leader, and Lee Chatfield, the speaker of the Michigan House--reaffirmed their commitment to following the law, under which the state's Presidential electors will be certified for the winner of the state's popular election. I hope that their statement spells the beginning of the end for Trump's grotesque gambit to enlist Republican-led state legislatures in facilitating a bloodless coup. However, there are reasons to remain gravely concerned, especially if, later today, the two Republicans on the Michigan State Board of Canvassers accede to their party's outrageous request for a two-week delay in certification of the state's election results based on minor and routine discrepancies fronting for racist conspiracy theories. To be clear, that move would not by itself deprive Joe Biden of Michigan's electors, ...

 by Sherry F. Colb (The following is the text of a talk I gave on Monday on a panel sponsored by the New York City Bar.) When I was in law school, a brave classmate spoke openly of a marriage in which her husband regularly abused her. I realized as I listened that I had stereotypes of battered women in my mind. I was surprised to hear what she said because she did not seem like the sort of woman who would find herself in an abusive relationship. She was eloquent and strong and extremely intelligent. I looked up to her and admired her as a leader. What could have possessed her to absorb abuse? And what exactly did her husband do to her? We can recognize this kind of thinking as victim blaming. We find out that a person is enduring cruelty and abuse, and we ask, “Why haven’t you left?” or “Is it really that bad?” instead of assuming that she has her reasons and that it is her abuser rather than she who has some explaining to do. As a good friend of mine said recently, if we blame the...

by Neil H. Buchanan   While he was frantically running around the country at the end of his losing reelection campaign, Donald Trump continually told his audiences that the media were pushing the coronavirus story simply to hurt him.  He predicted that, come November 4, we would stop hearing anything about COVID-19.  It is worth noting, then, that Trump's paranoid sense of victimization was wrong again.  The pandemic is raging, and the press is covering it aggressively, even after he lost.   The problem is that Trump and the Republicans are doing their best to push that story aside by making news of the worst sort: attempting to destroy constitutional democracy.  (Trump also is now claiming credit for progress on vaccines, and Donald Trump Jr. has claimed that Pfizer withheld its positive announcement until after the election to hurt his father.  A chip off the old paranoid, self-pitying block.)   But is the Trump coup attempt dead in the water, ...

by Neil H. Buchanan I need to take a short break from following Donald Trump's ongoing attempted coup.  This is turning out to be every bit the existential crisis about which I and others have long warned; and even though people are currently (understandably) expressing confidence that Trump will ultimately fail, I still have serious doubts.  But that is for another day (probably tomorrow).  How about a palate cleanser? As it happens, I have again been thinking about the incoherence of the concept of economic efficiency.  As Professor Dorf announced back in May, a new Buchanan-Dorf article is forthcoming in Cornell Law Review under the title: A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism .  Because of the long time frames involved in law review publishing, we are only now being asked to respond to the final round of editorial queries for the article.  (Our submitted draft can still be found on SSRN ).   As Profess...

 By Eric Segall J ustice Samuel Alito’s partisan speech to the Federalist Society last week caused quite a stir among both the left and the right, with both sides lining up to criticize or applaud the presentation based on their political views. He said many things that perhaps Supreme Court Justices should keep to themselves. But the part of Alito’s remarks that focused on the alleged persecution being heaped on people who object to same-sex marriage on religious grounds, and his overall argument that "religious liberty is in danger of becoming a second class right," r aise important issues concerning the separation of church and state (or-non-separation) and suggest Justice Alito has a perverse and counter-factual perspective on the state of religious liberty in America. People of faith, according to many, have a right to be exempt from laws applicable to the rest of us, if complying with those laws substantially burdens their religious exercise, but secular objectors atten...

  by Michael C. Dorf On Friday the Supreme Court granted certiorari in Cedar Point Nursery v. Hasid , a case that pits labor rights against property rights. Given the Court's current personnel, the odds seem pretty clearly stacked in favor of the latter. Here, I'll briefly describe the case but mostly set aside the ideological stakes. Instead, I'll focus on a mathematical issue that the case presents and that arises in other contexts as well.

  by Michael C. Dorf In remarks at the Federalist Society national convention yesterday, Justice Samuel Alito proved that even if the clown-tyrant currently occupying the White House fails in his attempted putsch , right-wing grievance politics will remain with us for quite some time. As Justice Alito made clear during last week's oral argument in Fulton v. Philadelphia , he has not gotten over Obergefell v. Hodges , the 2015 case recognizing a constitutional right to same-sex marriage. Justice Alito repeated his complaint again for his FedSoc audience. Much of the coverage of Justice Alito's remarks has focused on whether they were inappropriately political or partisan. I want to put that issue aside to focus instead on how Justice Alito's sense of aggrieved entitlement has distorted his legal analysis on the issue of free speech.

by Neil H. Buchanan   This past Saturday and Sunday, when it briefly appeared that President-Elect Biden and Vice President-Elect Harris were going to be widely and quickly accepted as the legitimate victors in the election, I considered writing a column this week in which I would eat a considerable amount of crow -- and because I am a vegan, that would have been an especially repellent prospect.   I have, after all, been loudly and consistently saying for years that Donald Trump would bring the end of the rule of law in America, that he would never leave office, and that we might even be a "dead democracy walking."  Saturday's celebrations seemed to have proven me wrong.  Delightfully, deliciously, deliriously wrong, but wrong.  Would that it were so. My new Verdict column (to be published tomorrow ) instead suggests that the Republicans are very likely now in the process of going through the mental gymnastics needed to support Trump's outlandish claim to bei...

by Neil H. Buchanan The transition to the Biden Administration is already looking less than certain, with Republicans once again enabling Donald Trump's autocratic instincts by refusing to acknowledge the clear victory by Joe Biden and Kamala Harris in this year's election.  That is quite worrying, as I will discuss in my Verdict column on Friday.  For now, however, let us imagine that Donald Trump will actually be evicted from the White House and that a new political reality will begin on January 20, 2021. As appealing as that idea is, the fact is that Republicans and weak-kneed Democrats will continue to work in lockstep -- not conspiratorially, but simply by following their respective political instincts in the same direction -- to prevent progress on the actual policy issues facing the country and the world. Yes, it will matter a lot whether the Democrats can somehow win both Georgia runoff elections for U.S. Senators, which would give them the bare minimum to control th...

  by Michael C. Dorf With the caveat that one can never say with 100% confidence how Justices will rule on a case based on their questions and comments at oral argument, I count at least five votes to reject the argument by Texas and the Trump administration for invalidating the entire Affordable Care Act . Chief Justice Roberts and Justice Kavanaugh very clearly signaled that they disagree with the claim that the individual mandate cannot be severed from the balance of the Act, while Justices Breyer, Sotomayor, and Kagan seemed inclined to rule against the challengers on multiple grounds. In addition, Justices Thomas and Barrett were skeptical of some of the arguments for standing. Accordingly, I'm going to assume for purposes of this essay that the challenge will be rejected and game out how the opinion(s) might be written. Spoiler Alert: I predict the case will be decided on standing grounds and that the Chief will write the opinion.

 by Sherry F. Colb Having finally stopped hitting "refresh" on the electoral count on Friday, I decided to go out for a walk with my dog Blue and listen to the arguments in Fulton v. Philadelphia  The case involves a Catholic organization that contracts with the government to help place children in foster care, and the question is whether the City may refuse to renew its contract with that organization because the latter refuses to  consider same-sex couples for certification as potential foster families. In other words, though several Justices seemed unwilling to frame it in this way, the Catholic organization discriminates against gay men and lesbians applying to become foster parents. In an argument that would have been amusing if it were not so appalling, we kept hearing about how no gay couple (or possibly only one gay couple) has applied to the Catholic organization to be certified as foster parents. I do not recall hearing anyone say it, so I will: of course a gay...

 By Eric Segall Twas in another election, one of toil and blood;  When Trumpism was a sickness and the road was full of mud;  He came from a gold plated bathroom, a creature void of form; He spilled his bile all over us;  And we entered into the storm Not a word he spoke was gentle, there was so much risk involved;  Everything up to that point had been left unresolved; We tried imagining a place where it's always safe and warm, but 2016 was terrible, and we entered into the storm I was burned out from exhaustion, disgusted by the man; he divided us like no other, all across the land; He picked Pence as his VP, which was equally bad form, and back in 2016, we entered into the storm Trump put a wall between us, something had been lost; we took too much for granted, we got our signals crossed; we thought he’d never win, but then we all were torn; and then in 2016 we entered into the storm His judges walk on hard nails and Fed Soc picked them all; Trump's bluster wa...

  by Michael C. Dorf No, this is not simply a blog post arguing that the U.S. would be a better, more democratic polity if we elected our President via a national popular vote. I believe that. I support a constitutional amendment to make that change. Failing that, I support the National Popular Vote interstate compact  as a means of circumventing the Electoral College (EC) as a second-best option for getting there. But I doubt that either change -- constitutional amendment or interstate compact -- will occur unless and until a Republican Presidential candidate clearly wins the popular vote but either loses or nearly loses the EC vote, because only then could there be enough of the state legislative support necessary for the change by either method. However, that's not what I want to say today. Nor do I simply want to complain that in 2000 and 2016 the clear winner of the popular vote lost the EC and that, pending the outcome of recounts, litigation, and shenanigans, there's st...

by Neil H. Buchanan   Although politicians and the media are understandably focused on the ongoing counting of votes in various key states, I continue to believe that nothing is going to stop the coup that Donald Trump has been advertising for years.  He has already filed several of the lawsuits that will work their way up to his stacked Supreme Court, and in the end, it will not have mattered whether Biden won by a little or a lot.  It was always going to end up in the hands of the Supremes. After all, even if Trump had lost Texas, Florida, and Ohio, there are fiercely pro-Trump Republican majorities running those state legislatures, supplemented by Republican governors.  Those states could have decided (and Arizona, and possibly Georgia, might yet choose) simply to award their electoral votes to Trump, no matter who won the votes in their states.   In addition, the key swing states of Wisconsin, Michigan, and Pennsylvania are all poised to see their legislat...

by Neil H. Buchanan Wishing to avoid the insta-pundit analyses that saturate Election Night coverage, and wanting to delay knowing the partial outcomes of the elections (which is all anyone can know at this point), I have succeeded in isolating myself entirely from the news for the past 24 hours.  This column very much addresses partisan differences, as I will describe presently, but I am choosing to write without knowing where things now stand politically.  (There might or might not be a reference to Schrodinger's cat here -- indeed, this sentence might or might not be a meta-reference thereto -- but because I know nothing about physics, I will leave it at that.) In what amounted to my closing argument about the election, I published two related Verdict columns on Monday and yesterday.  The first considers what Republicans' believe is their strongest case to the voters (the economy, if you can believe it), while the second considers by far their weakest (the pandemic...

 By Eric Segall The election is today (and perhaps goes on longer), but also tomorrow the Court will hear arguments in a major church/state case that could have far-reaching implications for our country.  A major American city, Philadelphia, decided to give out grants to public interest organizations to help place foster children in permanent homes. The city does not allow any group that wants to participate but rather insists in the contract, which no one is required to sign unless they want the city's grant money, that the grantee will not discriminate on the basis of several factors, including sexual orientation.  A church-affiliated organization, Catholic Social Services ("CSS"), took the grant money but refused to agree to the non-discrimination pledge because it feels children should only be placed with married  parents, and CSS does not consider legally married gay couples-well married. . The City then terminated the contract, and the religious group says tha...

By Daniel Epps Friday, Todd Henderson published a piece in Newsweek  arguing that "there is a fatal flaw in Democrats' plan to 'pack' the Court if they win—it is plainly unconstitutional." The piece received a less-than-enthusiastic reception on Twitter from me , Orin Kerr , and others, in part due to the fact that its author himself did not seem to be making the arguments in good faith (more on that in a moment). Will Baude, however, shortly thereafter responded with a thoughtful blog post in which he noted that Henderson's piece has "already attracted a ton of criticism" and arguing that the "criticism deserves more scrutiny."  In this post, I'm going to respond to Will's post. I have three goals. First , I'll try to explain why there haven't been well-developed arguments about the constitutionality of Court-packing/expansion, and why Henderson's piece wasn't likely to prompt them. Second , I'll offer some lar...

  by Michael C. Dorf If all goes well tomorrow, neither the Supreme Court nor any other court will have occasion to resolve post-election disputes because Joe Biden and down-ballot Democrats in tight races will win by a sufficiently decisive margin to render any such legal challenge futile. Yet if the last four years have taught us anything, it's that only a fool counts on all going well. Some combination of polling error and voter suppression could produce post-election litigation after all. Or, as Prof. Buchanan has repeatedly warned (including on Friday of last week ), Republican state legislators in states Trump loses could nonetheless disenfranchise their states' voters by purporting to assign their Presidential electors directly.  If post-election litigation ensues, its outcome could turn on a principle most clearly articulated thus far by Justice Gorsuch, joined by Justice Kavanaugh, in last week's Wisconsin case . I quoted the language in my "SCOTUS Kremlinolog...