Dorf on Law

The Debate About Banning Fraternities: Overdue Reform and Possible Unintended Consequences

2026-10-09T14:33:23.155-04:00

An issue that has unexpectedly dominated the news in recent weeks is the justified public outrage at Cornell University's wholly unacceptable response to allegations of rape at a 2024 fraternity party, a response that is at long last being exposed and condemned. This entire matter is deeply troubling, and it is a somewhat hopeful sign that the university and local law enforcement -- and now New York State's political leaders -- are being pressured to take it seriously, especially given their earlier attempts to sweep it under the rug (or at least to fail to comprehend its importance, although I find that explanation highly implausible).

(Aside: Donald Trump and his insecure manosphere are anything but outraged, except insofar as he thinks that the men involved "won't get a fair shake," saying "I feel badly" for them. No surprise there.)

Professor Dorf's column this past Saturday considered some of the most important legal issues regarding consent, intoxication, and the conflict among various states' laws regarding whether voluntary intoxication should matter. I highly commend that column to anyone who has not yet read it. Here, I want to address another debate that has arisen as a result of the renewed attention to campus rape. In response to calls to ban fraternities from campus entirely, Cornell University President Michael Kotlikoff responded earlier this week with an argument that upset quite a few people and which thus deserves some scrutiny:

This is obviously an absolutely horrendous and inexcusable situation that occurred in a fraternity. But I have to make the point that this doesn’t only occur in fraternities, I worry about pushing this into the shadows, into houses which we don’t own, which are private houses, which have parties, and which things can occur beyond our purview.

Before beginning my objective analysis, I should start by sharing some subjective thoughts. I never joined a fraternity and never wanted to do so. When I was in middle school, my oldest brother went to college and started the process of joining the equivalent of a fraternity, and even as an 11-year-old, I remember hearing his stories about the hazing rituals and everything else and thinking, "Why would anyone want to be part of that (on either side of the cruelty)?" And even to my pre-adolescent brain, the supposedly fun stuff sounded frankly childish. To be clear, my brother quickly abandoned ship in response to all of that, and I considered it my good luck that I was able to learn from his grim observations.

Those lessons stuck with me, so when I was later applying to colleges, one of my filters was to apply only to schools that had no fraternities. And when I enrolled at Vassar College, I was so annoyed by some of my peers' comments that they wanted to start a fraternity that I wrote a satirical mock proposal for a new fraternity that ridiculed the elitism, sexism, bigotry, and ultimately the utter pointlessness of such organizations. My attitude has not changed in the decades since then.

Although that is simply a personal story, and everyone has their own stories that might be relevant to this situation, I can offer something in the neighborhood of expert testimony when it comes to Kotlikoff's prediction about "pushing into the shadows" the behavior that outrages people of good faith. In a recent Dorf on Law column, I noted that, while I was a graduate student, "Harvard College hired me to create and administer a new program to allow alcohol to be served at undergraduate events, in compliance with a then-new state law restricting such drinking." I brought that up in a context in which there was no reason to go into any detail. Here, however, that experience is useful and relevant.

Why did Harvard College's administrators decide that they needed to create that new program? Massachusetts, like all states at the time that had laws allowing people younger than age 21 to drink, had recently come into compliance with a new federal policy designed to induce states (by threatening to withhold highway funds) to raise their drinking ages. This meant that slightly more than half of college undergraduates who had enrolled straight out of high school would not legally be allowed to drink.

As it happens, the drinking age in Massachusetts had been increased from 18 to 20 only five years before, but enforcement was desultory at best. In any event, it is fair to say that the new 21-year federal requirement changed the realities on the ground, especially on campuses. Because colleges were worried about the legal and insurance liabilities that might ensue from failing to take the new law seriously, they at least needed to put some structures in place to attempt to police the nearly-unenforceable new regime in which college parties would be officially "dry" for half of the students or more.

Notably, the federal law that set all of this in motion had been enacted in response to a surge in public concern over drunk driving. As a result, some colleges considered trying to convince lawmakers to provide a carve-out for residential campuses, on the theory that students stumbling back to their dorm rooms at Barrett Hall after a party at Faber House would not be driving. This idea was quashed quickly, however, because it fairly obviously reeked of elitism. No one wanted to say anything like this: "18-20 year-olds can no longer drink legally, unless they're enrolled at an expensive college with a walkable quad." And thus the law applied to everyone under age 21, regardless of circumstances.

Also notably, this means that the primary concern motivating the attempt to reduce young people's drinking was not the concern that the current Cornell situation highlights. Today, people are rightly focused on the toxic combination of college partying, alcohol (and other drugs), and rape culture. Even back in the 1980's, however, the focus was not entirely on drunk driving. There were some people who viewed the change in the drinking age through the lens of all of the harmful consequences of campus party norms, from binge drinking to property destruction as well as sexual violence.

For those readers looking for a thoughtful and thorough journalistic assessment of Kotlikoff's argument, Garrett Shanley's piece yesterday in The Chronicle of Higher Education is a good place to start. Shanley addresses an important issue implied in Kotlikoff's argument, which is that a ban on fraternities would make it nearly impossible for a university to regulate conduct in such organizations.

In particular, Shanley's piece quotes a professor at Penn State: "Eliminating a fraternity or an entire community may remove one venue for risk, but it does not eliminate the conditions that create it. We need to be more like doctors and surgeons here.” Similarly, a professor at the University of Wisconsin also agreed with Kotlikoff: "He’s not wrong. To the degree that a university ceases all interaction with the fraternity, they do lose any chance of regulation at all."

When Harvard hired me to create from scratch a system to comply with the new law, however, the discussion among the administrators (at least in my presence, although I should say that I have no reason to think that they were hiding anything from me) was about "regulation" in only the most technical sense. That is, any new system could accurately be described as a regulatory regime, because it involved setting up a new structure with rules about how and to whom alcohol could be served at parties in the dorms. Even so, the pressing concern was not with how to regulate behavior but with the "into the shadows" idea more directly. They were concerned that students would drink out of view and end up in worse shape -- and do worse things to themselves and other students -- because furtive drinking is more likely to be done to excess.

And based on what we saw, that concern was well founded. By the time we were able to get the new system up and running, many students had concluded (based in part on extremely bad reporting in the student newspaper, but I digress) that what had previously been "normal" dorm parties would suddenly be all but alcohol-free and thus little more than high school hops. As a result, students were buying loads of alcohol and getting "pre-drunk" in their rooms before going to the parties. Administrators and dorm advisors were in general agreement that the drinking had become much worse than it was before.

Because the College's leaders were worried about that exact problem, they encouraged me to set up the new system in a way that made it simple for of-age students to be served and for all of the students not to feel that they were under surveillance. After a few months, as students came to realize that the new system was not the prohibition that they feared it would be, they came out of the shadows and found a new equilibrium under a system that they certainly did not like but that they could work with.

To be very, very clear, I absolutely understand why people are calling for Cornell and other universities to ban fraternities. As I noted above, I have no use for fraternities and wish that they would go away, ideally because no one should want to be part of one. In addition, there are other issues that should weigh in any such decision, and it could end up being reasonable to conclude that the unintended consequences of a ban are more than justified by the advantages of directly confronting what has for so long been an epicenter of violence against women. My only goal here is to say that, at least based on a rather noteworthy anecdote with which I am intimately familiar, those unintended consequences can indeed be quite bad.

Most crucially, however, we must figure out how to end rape and to bring those who have committed such horrific crimes to justice.

- Neil H. Buchanan

"Innocent" Sanewashing, the Gish Gallop, and Bad-Faith Arguments from Republicans

2026-10-08T10:58:07.849-04:00

"Where do I even begin?" I feel confident that almost everyone reading this column will have uttered that rhetorical question at least once, because we have all been faced with people who spew out a long series of crazy or objectionable statements that pile up so quickly as to leave the listener with the sense of helplessness captured in that plaintive response: Where do I even begin?

Before I get to Donald Trump (because that is obviously where this is going), it is useful to think about what it means to leave one's opponent with too much to say in too little time. For those of us who participated in certain forms of competitive debating in school, "spreading" is the term for saying so much (usually by speed-talking in a timed speech) that one's opponent cannot possibly respond to everything. Because all debaters learn that "silence means consent," the strategy by the spreader is to then spend their entire rebuttal speech listing the many arguments that their opponent failed to address. "I win, because he didn't respond to x1, x2, ... xN."

Even when there is no formal time limit, people are too busy to stick with the conversation for as long as would be needed to get to it all. As one example, I have a cousin who revels in this method of non-argument, slipping explosive statements into conversations that leave everyone around him annoyed (at best). And when anyone tries to respond, he loads up his further responses with even more distractions and detritus. It always ends in frustration, such that people roll their eyes and walk away, leaving him to say, "Oh, so you have no response? Didn't think so!!"

This is, in other words, a variation on a filibuster. Unsurprisingly, there is an academic term for the tactic: the Gish Gallop. Wikipedia describes this as

a rhetorical technique in which a person in a debate attempts to overwhelm an opponent by presenting an excessive number of arguments, without regard for their accuracy or strength, with a rapidity that makes it impossible for the opponent to address them in the time available. Gish galloping prioritizes the quantity of the galloper's arguments at the expense of their quality.

The term "Gish gallop" was coined in 1994 by the anthropologist Eugenie Scott, who named it after the creationist Duane Gish, described by Scott as the technique's "most avid practitioner."

The Wikipedia entry goes on: "The difference in effort between making claims and refuting them is known as 'Brandolini's law,'[5] or informally 'the bullshit asymmetry principle.' A flood of dubious messages such as a Gish gallop is sometimes called 'the firehose of falsehood.'"

All of which brings us finally to Trump. His firehose of lies is even more frustrating than most Gish gallops, because he constantly changes his story -- sometimes even mid-sentence -- and thus leaves a listener unsure whether it makes sense to correct something that Trump kinda-sorta already abandoned. But because he can double back again at any time, it is all impossible to keep straight. Even so, the world is such a ridiculous place that a Guardian story about now-Mayor Zohran Mamdani last year included this: "Another respondent [in a focus group] compared [Mamdani] in one respect to Donald Trump: 'There’s no flip-flopping.'" Again, Trump cannot keep anything straight from moment to moment, changing his answers constantly. But sure, no flip-flopping.

Again, however, the real story is the Gish gallop. Even when Trump sits for interviews with mainstream journalists who might be capable of asking tough questions, he succeeds in fending off any serious inquiry by galloping away with the conversation. Anyone who has watched him on, say, "Meet the Press" for even a few moments will have heard him say things like this: "Well, everyone knows the election was rigged. You know it, everbody knows it, and I'm not going to allow illegals to steal American democracy and allow radical Democrat Marxist communists to laugh at this country while they eat our cats and dogs. And that person who you just quoted, who is a very low-IQ person, hates America."

To repeat: Where would one even begin? To me, the most frustrating part of that rant -- and to be clear, I wrote that not as a direct quote but as an example of how Trump loads up his answers -- is the "you know it, everybody knows it" casual lie. Why is that so frustrating? Because there is no way that any journalist is going to decide to respond to it, knowing that doing so not only inserts the journalist into the story (a big professional no-no) but prevents them from pursuing one of the other outright lies that Trump just spewed out. Even so, it would be satisfying to hear some interviewer say, even once, that "I in fact don't know that the election was rigged, because it wasn't, and you can't get away with telling me what I and other people supposedly think."

Jennifer Rubin has been on a tear lately on the Contrarian substack regarding the mainstream media's failures in covering Trump, and she is obviously quite right to do so. What is especially infuriating is that the Big Media types are, as the Irish would say, up their own arses, completely self-satisfied and willing to give each other awards to convince themselves how great they all are. For example, Harper's last year held a gala celebrating itself for "175 years of fearless journalism and literary excellence." (As a subscriber to Harper's -- I know, what am I doing? -- I received this notification in an email, which does not appear to have been reproduced online.)

Worse, they announced that the gala would "honor eminent figures in the fields of journalism and literature, including A. G. Sulzberger, publisher of the New York Times." Sulzberger has made some of the most ridiculous journalistic pronouncements imaginable in the Trump era, including: "I disagree ... that the risk Trump poses to the free press is so high that news organizations such as mine should cast aside neutrality," even adding that it is "beyond shortsighted to give up journalistic independence out of fear that it might later be taken away." Appropriately enough, the gala honoring The Times's current tosser-in-chief was supported by some of the BigLaw firms that abjectly caved to the Trump Administration back in early 2025.

Again, Rubin has made it clear that she no longer has any use for corporate media, and her columns are therefore essential reading. Last Thursday, for example, she discussed the Media and Democracy Project's "27 media guidelines that aim to shore up independent, effective press coverage, and provide the sort of unvarnished, pro-democracy news that will be essential in this election and beyond." These include:

Express solidarity and stand up for fellow journalists and news organizations when they are attacked or intimidated.

Inform voters of the rights and freedoms they are losing because of government actions that subvert the Constitution and undermine democratic principles.

Call out lies in every piece of reporting.

Avoid “sanewashing.” Don’t normalize abnormal behavior, instead call it out.

Do not contribute to “democracy-washing,” when the reality is that American democracy is under siege and in jeopardy from an authoritarian movement.

This is all great, and I do wish that more news types would follow such advice. Even so, I think that Rubin and others are ignoring the way that Trump's Gish galloping forces everyone -- even those of us who desperately try not to sanitize him -- to be involuntarily complicit in the sane-washing. In a Dorf on Law column last week, I pulled a full quote from Trump's recent, disastrous speech in front of the United Nations. As I pointed out, he riffed for 477 words about his silly effort to rebrand Artificial Intelligence as Super Intelligence, but the full quote included detours into immigration, global warming, and the "Russia, Russia, Russia hoax; the Ukraine, Ukraine, Ukraine hoax; climate change; open borders." (Yes, that was a direct quote.)

I commented in that column that "[t]he term 'sundowning' has recently become a favored way to describe Trump's behavior, but one of the ways the media sanewashes him is that they simply are unwilling to devote the time or space needed to show what sundowning truly means in his case." But I was in large measure being unfair there, because although it is literally true that the media is "unwilling" to expose his insanity, one can hardly blame them. Those 477 words consumed more than three minutes of Trump's speech time, and the realities of nearly all visual media -- no matter how well meaning its practitioners might be -- make it impossible to do anything but pick the shortest clips and use them as examples. But standing alone, the clips sound like English sentences, and they lack context and thus obscure the bigger picture.

On his show last night, Seth Meyers made the rare choice to air a full Trump rant. (Video here, starting at the 5:35 mark.) The topic was Trump's renewed attempt to prove that he is super-smart by mentioning his uncle who taught at MIT decades ago. Meyers began: "Here's the transcript. I'm going to read the entire answer, so we can all fully appreciate just how much of a genius the president is." He then read from the transcript for 38 seconds, and it truly did have a stronger impact than if Meyers had simply quoted one or two extra-gonzo parts of what Trump said.

Even so, this is not a viable strategy for anyone. Even print media can hardly include long quotations from Trump's ramblings. (I all but apologized to readers last week when I included only a few hundred words.) And because Trump's gallops are not only an "excessive number of arguments, without regard for their accuracy or strength" (to re-quote the Wikipedia description) but also circuses of digression, almost no one sees just how demented all of this is.

To be clear, it is possible to do better than most media are currently doing, as Rubin makes clear. Still, no one can truly do it justice. And that is ultimately because, although Trump is especially egregious about all of this, the ultimate problem is that Republicans stopped arguing in good faith -- including offering evasive answers to straightforward questions, such as their "Joe Biden was sworn in as President" rather than "Yes, Joe Biden won the 2020 election" -- making honest discussion impossible. Not only with journalists, but with their political opponents and the American people.

This is, in other words, another way in which people without conscience "win." They are more than willing to attack the questioner, change the topic, and Gish Gallop into the sunset.

- Neil H. Buchanan

Malcolm Gladwell, Confused Originalist

2026-10-07T07:00:00.000-04:00

In 1950, Immanuel Velikovsky published Worlds in Collision, in which he argued that astronomical events such as the supposed expulsion of Venus as a comet from Jupiter occurred within the span of ancient human civilizations, that the resulting planetary interactions led to catastrophes on Earth, and that accounts of an ancient flood in the Bible and the Epic of Gilgamesh and other events that are described in similar terms in different cultures were records of the consequences of the celestial collisions. Velikovsky had no training in science, history, or any other relevant discipline. He was a psychiatrist. Nonetheless, his book made a splash. Scientists knew that Velikovsky's astronomy was bunk but were impressed by his historical account of ancient religious texts and myths. Bible scholars, historians, and archeologists familiar with the relevant materials knew that Velikovsky's reconstruction of ancient events was bunk but were impressed by his science. Very few people were able to discern that Velikovsky's whole theory was nonsense.

Reading well-written and engaging accounts of matters in which I am a non-expert and the author is a non-expert, I sometimes need to remind myself of the cautionary tale that is Worlds in Collision. Which brings me to Malcolm Gladwell's latest book, The American Way of Killing: The Invention of an Epidemic. In it, Gladwell offers insights into gun violence in the United States drawn from interviews with various experts. Here's some of what one can learn from the book:

1) Mass shootings account for a very small fraction of the gun violence in the U.S., and assault rifles account for less of the carnage in such shootings than do handguns.

2) Assault rifle bans as they are almost invariably enacted are mainly performative because they don't ban many weapons that are functionally indistinguishable from the ones they do ban and because assault rifles account for a small percentage of the gun violence (see #1).

3) Declining homicide rates don't say as much about gun violence as one might think because a substantial fraction of the decline is a result of dramatic improvements in medical treatment for victims of gunshot wounds.

4) European cities typically have police forces that are more than twice the size of U.S. police forces but European countries have prison populations much smaller than those in the U.S.

5) Most shootings in the U.S. are unplanned rage events sparked by relatively trivial arguments rather than instrumental to some aim (such as a robbery or for the purpose of silencing a witness).

6) The Second Amendment was a response to the concerns of Southern planters that without it, the new national government would abolish state and local militias, leaving them vulnerable to slave revolts; therefore, D.C. v. Heller misread the Second Amendment.

I already knew some of those propositions but Gladwell is a wonderful writer and illustrates what I already knew engagingly. I found quite enlightening what Gladwell had to say about what I didn't know, but the fact that he bungles what I did know leads me to wonder about the rest of it. I'm not saying that Gladwell is nearly as bad as Velikovsky. I am saying that what I know he gets wrong leaves me uncertain about the material he discusses that I didn't previously know about.

So what does Gladwell get wrong? Let's focus on point 6. Gladwell criticizes the Supreme Court in DC v. Heller for not understanding what a "being" clause (as in "A well regulated militia, being necessary . . .") is. He says that the Court wrongly concluded that what it called the prefatory clause had no relation to the operative clause. But that's not what Justice Scalia's opinion for the Court in Heller says.

The purpose (or as Scalia puts it, the reason for codification of the right) stated by the prefatory (or being) clause is the preservation of the militia; the operative clause serves that purpose by protecting an individual right because if people have arms that they use in their daily lives for self-protection and hunting they can readily bring those arms with them when called to muster. Here's how Scalia puts it in Part II.A.3 of the Heller majority opinion:

[H]istory showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

Gladwell doesn't appear to have even read the Heller opinion or if he did read it, he didn't understand it at all.

I say all of that despite the fact that I think Heller was wrongly decided. Gladwell hints at one reason why but doesn't seem to understand his own argument. At one point he notes that during the oral argument in Heller, Walter Dellinger offered a very different way from Scalia to reconcile the being clause and the operative clause of the Second Amendment. In light of the fact that the "militia" referred to "the body of the people," Dellinger offered that "the people" in the operative clause refers to the people in their collective capacity, i.e., a synonym for "militia." Gladwell explains why this would make sense given that in the late 18th century the subject of a being clause was always the same as the subject of the operative clause. Yet he then completely bungles his explanation of why Heller is wrong by incorrectly characterizing Scalia's opinion as claiming there's no connection between the two clauses.

Meanwhile, Gladwell doesn't mention other lines of argument that have been offered against the reasoning of Heller. There is the point I made in 2000 that the phrase "bear arms" was a term of art meaning to perform military service. I don't expect Gladwell to have read my article, but he might have read the Heller dissent of Justice Stevens, which makes the same point. Gladwell might also have relied on the research of historians like Saul Cornell, who have shown that individual rights to firearms were subject to very substantial regulation in late 18th century America. Here too, if Gladwell didn't have time to read the history literature, he could have read a summary of it in Justice Breyer's Heller dissent.

Gladwell's discussion of Heller thus reaches a sensible conclusion--the Court erred--but bungles the explanation why. He then makes matters worse. He moves on to tell the reader what the Second Amendment is really about: slavery. For that conclusion, Gladwell relies on very important work by my former colleague Carl Bogus, whose 2023 book Madison's Militia expands on research he performed in the1990s, with a special focus on the Virginia ratifying convention. But Bogus's argument is controversial, and Gladwell misunderstands its significance.

The subtitle of Bogus's book is The Hidden History of the Second Amendment. And he's right that before his research, the connection between Southern militias suppressing slave revolts and the Second Amendment was largely hidden--or at least not much discussed. He's also right that in Virginia and elsewhere in the South, preservation of the militia was closely connected to fear of slave revolts. But to say, as Bogus more or less does, and as Gladwell definitely does, that protecting slavery was the purpose for the Second Amendment is to flatten history. What are we to make of the proposals to amend the Constitution to include a right to bear arms from northerners who, like the dissenters in Pennsylvania, had no real interest in slavery? (Pennsylvania legislated gradual abolition beginning in 1780).

In any event, even if the main ultimate purpose of the Second Amendment was to protect against slave revolts, the Amendment's text is not so limited. Suppose new historical research revealed that at the Virginia ratifying convention the debates over the absence of protection for free speech focused mostly on the worry that Congress would use its new powers to prosecute people who defended slavery in print. Suppose new research showed that Virginia ratifiers sought what became the Fourth Amendment because they worried that the federal government would use its new powers to pry into their private sexual exploitation of the women they enslaved. Would such findings really bear on how the First and Fourth Amendments should be interpreted today? Would they have the further consequence--which Gladwell implies for the Second Amendment--that the First and Fourth Amendments should be read out of the Constitution because they are tainted by slavery?

The whole Constitution is tainted by slavery. Is it all void? If not, and one assumes not, at least in a book that is supposed to shed light on how one thinks about problems in the real world, what is Gladwell saying? Gladwell seems to be some sort of originalist when it comes to constitutional interpretation, but he is a very very confused one.

In SCOTUS Global Warming Argument, Conservative Justices are Receptive to "Dormant Nothing Clause" Argument

2026-10-06T07:00:00.000-04:00

In an ideal world, the Earth would not be facing the climate crisis it now faces. In an imperfect but still much better world than the one we inhabit, the United States would be leading or at least participating in global efforts to greatly reduce greenhouse gases. We were heading towards such a world when Congress enacted the misleadingly named Inflation Reduction Act, which would have done a lot of work towards reducing U.S. emissions. However, we are now living under a presidential administration intent on promoting the burning of fossil fuels and discouraging the use of renewable energy. The reversals of federal climate policy under the Trump administration include rescission of the endangerment finding earlier this year and its abandonment of carbon emission regulation of stationary sources under the Clean Air Act just in the last few weeks. There is now effectively no federal regulation of global-warming-causing greenhouse gases. Can state and local governments fill at least some of the resulting void?

So thought Boulder County, City of Boulder, and San Miguel County government officials in 2018, when they sued fossil fuel companies using a legal theory modeled on successful state-court litigation against tobacco companies and opioid makers. The lawsuit charges that the fuel producers long knew of the harms their products would cause via global warming but made them anyway without disclosing what they knew to the public, with harm resulting worldwide, including in the plaintiff jurisdictions. The Colorado Supreme Court allowed the case to go forward. Then SCOTUS stepped in.

As a matter of constitutional law, Congress could choose the suicidal policy of burn-baby-burn at the federal level and preemption of all state-level efforts to combat global warming. But Congress has not made any such choice. And yet, in yesterday's oral argument in Suncor Energy v. County Commissioners of Boulder County, the lawyer for the fossil fuel producers and the lawyer for the Trump administration told the Supreme Court that, actually, it doesn't matter that Congress did not enact legislation preempting state-level lawsuits. Although they tepidly suggested that the Clean Air Act (the same one that the Trump administration now says doesn't authorize greenhouse gas regulation at all) preempts state regulation of fossil fuel production, their primary argument was constitutional. They said that the Constitution makes regulation of interstate air and water pollution an exclusively federal responsibility, absent an Act of Congress specifically authorizing state regulation.

If you're having difficulty recalling what provision of the Constitution gives Congress exclusive authority for regulating interstate air and water pollution, that's because there is none. Rather, under the legal theory offered by the fuel producers and the Trump administration, the principle derives from two other invisible constitutional provisions: equal sovereignty of the states and the prohibition of extraterritorial legislation.

To put that point differently, the constitutional rule advanced by the fuel producers and the Trump administration rests on what we might call "an unmistakable inference from constitutional structure." I put those words in quotation marks to give credit to Justice Alito, who wrote an opinion piece in the Wall Street Journal this past Saturday using exactly that phrase to describe "the presidential immunity [the Court] recognized in Trump v. U.S. (2024)."

Justice Alito is recused in Suncor, so he did not offer any views during the oral argument about whether the constitutional principle that states can't regulate interstate air and water is as unmistakable an inference from the constitutional structure as the principle that a former president can't be prosecuted for ordering the assassination of his political enemies so long as he gives the order to members of the military or federal law enforcement (and thus exercises his core executive powers). But we did hear plenty from other Justices, and it was mostly discouraging.

Chief Justice Roberts offered Earthlings interested in averting the climate apocalypse some reasons for hope by suggesting that the efforts to use Colorado tort law were no more extraterritorial in nature than any other in-state liability for harm caused out of state. But he dashed those hopes by pressing the respondents' counsel on the risk of a flood of litigation should the Court permit the case to go forward.

Justice Thomas started off his questioning of both the fuel companies' lawyer and the Trump administration lawyer by asking whether the Court has jurisdiction. There are reasons to think it doesn't because the Colorado Supreme Court decision is interlocutory and, subject to exceptions that are not obviously applicable here, SCOTUS reviews only final decisions. Perhaps Justice Thomas will vote against the petitioners on this jurisdictional ground, but I wouldn't bet on it.

If Justice Thomas does reach the merits, he, as well as Justice Gorsuch, will have to do some fancy footwork. Both have expressed skepticism about the legitimacy of the Court's so-called dormant Commerce Clause doctrine, which limits states' regulatory power even absent congressional legislation on the theory that Congress can be presumed to disfavor interstate protectionism. They (rightly) point out that the Commerce Clause of Art. I, Sec. 8, is by its terms a grant of power to Congress and not a limit on states absent federal legislation. But that point is even stronger here. At least there is a Commerce Clause in the Constitution. By contrast, the theory advanced by the fuel companies and the Trump administration rests on no constitutional text at all. It invokes what we might call a "dormant Nothing Clause."

Nonetheless, petitioners and their amici are correct that some of the Court's prior cases already recognize the principle they're promoting. Whether they do so as a mater of constitutional law is not entirely clear. Justice Barrett seemed to suggest that the notion of federal exclusivity with regard to interstate air and water pollution might simply be a matter of federal common law. The petitioners' argument is that it's the Constitution that makes such issues a matter of federal common law, subject to modification by Congress. Somewhat to my surprise, attorney Kannon Shanmugam, arguing for the companies, was reluctant to accept Justice Barrett's formulation, which struck me as an alternative way for his client to win. Nothing in this case turns on whether federal exclusivity arises out of federal common law by itself or a constitutional default principle pointing to federal common law.

At the same time, however, various conservative Justices cannot escape charges of hypocrisy by claiming that they're recognizing an unenumerated principle of presumptive federal exclusivity by shifting to pure federal common law as the source. That's because they've also criticized such federal common law in other contexts--not least in cutting back to almost nothing the Bivens line of cases allowing lawsuits against federal officials for civil rights violations. If the Court rules against the plaintiffs in Suncor based on federal common law, the ruling will join the infamous 1988 ruling in Boyle v. United Technologies Corp. (with a majority opinion by otherwise-federal-common-law-resistant Justice Scalia). Together, the cases would stand for the proposition that, with the exception of non-ideological disputes between states over boundaries and the like, conservative Justices are against federal common law, except when it enables fossil fuel companies (Suncor) or defense contractors (Boyle) to evade responsibility for the harms their products cause.

The one conservative Justice to whom I'll give some props in Suncor is Justice Kavanaugh. He repeatedly said, correctly, that the Court's cases already recognize a principle of presumptive federal exclusivity with respect to interstate air and water pollution. Now, one could say, so what? Don't the Justices overrule their decisions with some frequency? Didn't Justice Kavanaugh himself include a list of important cases that overruled precedent in his concurrence in Ramos v. Louisiana? And if all of that is true (which it is), then why am I giving props to Justice Kavanaugh?

The short answer is that he offered a special reason to adhere to stare decisis in Suncor that is consistent with one of his recent votes for a non-conservative outcome. He said during the Suncor oral argument that the burden should be on Congress to authorize state regulation of greenhouse gases, not on Congress to forbid such regulation, given that this is the burden the Court has previously announced and on which Congress was entitled to rely. That is closely related to the reason he gave for voting to invalidate Trump's Birthright Citizenship executive order on statutory but not constitutional grounds in his Trump v. Barbara concurrence: congressional reliance on the Court's pronouncements.

In saying that Justice Kavanaugh's willingness to invoke stare decisis here is legitimate in light of his Barbara concurrence, I'm not saying it's correct. The respondents argue that the principle of federal exclusivity with respect to interstate air and water pollution doesn't apply at all to a regulation on the production of fossil fuels. They also have a decent argument that when Congress enacted the Clean Air Act, it superseded the implicit federal common law displacement (based on the dormant Nothing Clause) of state law. If so, the question is simply one of preemption--and the Clean Air Act doesn't by its terms preempt all state law that have an impact on air quality. So, even adherence to the precedents Justice Kavanaugh cites is consistent with allowing the case to go forward. And it's worth noting that nobody else joined Justice Kavanaugh's Barbara concurrence, so it doesn't do anything for any other Justice who votes to disallow the lawsuit.

I'll end where I began. The lawsuit at issue in Suncor is not a first, second, or even third choice option as a policy matter. It would be much better if we had a federal government that treated the climate crisis with something like the urgency it deserves. Even a Democratic sweep in the midterms won't result in such a government, so we will need to wait until at least 2029. In the meantime, the planet heats. The probable victory of Bolsanaro Jr. in round 2 of the Brazilian election will make matters worse. The likely result is a flood: not a flood of litigation, as the Chief Justice fears, but literal floods whose likelihood and severity are increased by global warming. Allowing the Suncor litigation to go forward would not do much to slow global warming, but that's no excuse for blocking it. The dormant Nothing Clause doesn't justify the do-nothing approach to the climate catastrophe.

-- Michael C. Dorf

The Biggest Damn Fool Mistake: Trump and the Roberts Court

2026-10-05T07:00:00.000-04:00

Today the Supreme Court opens its October 2026 Term, though the idea of a term with a beginning and an end is mostly ceremony now. In the shadow docket era, the Court decides important and complicated issues without full briefing or oral argument, and often with the justices languishing at luxury getaways, domestic and abroad, some of them subsidized by Harlan Crow or Paul Singer. Since the last term's final opinions came down, the Court has let construction of the President's ballroom continue on the ruins of the East Wing, and it allowed deportations to third countries to resume over a lower court's finding that migrants were not getting a fair chance to raise fear of torture.

And yet the President cries foul. Asked by Time whether he regrets nominating Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, Trump said: "Yeah. Yeah. What can I do? I put them in. They voted against me too often." He added, "I do like loyalty, yeah." Two weeks earlier, after the Court refused to let the Postal Service rewrite mail-ballot rules fifty days before the midterms, he posted: "These are not the people I interviewed to serve on the United States Supreme Court, they are merely a shell of their original selves."

If only.

In under six years in the White House, Trump has named a third of the Court. Jimmy Carter served four years and named no one. Trump had considerable help. In 2016, Mitch McConnell held Justice Antonin Scalia's seat open for almost a year so the voters could decide. In 2020, with Justice Ruth Bader Ginsburg's seat open and ballots already being cast, Justice Barrett was nominated and confirmed in a manner of weeks.

Dwight Eisenhower is said to have called his choice of Earl Warren "the biggest damn fool mistake I ever made." Historians debate whether he said it; nobody debates the disappointment. Chief Justice Warren, a former Republican governor, wrote Brown v. Board of Education (the unanimous 1954 ruling ending legally mandated school segregation) and led the most liberal (maybe the only liberal) Court in American history. A second line, "I have made two mistakes, and they are both sitting on the Supreme Court," adding Justice William Brennan, rests on thinner evidence still, though a 1957 diary entry by Justice Harold Burton confirms Ike's "disappointment" with both.

Nixon picked Harry Blackmun, who wrote Roe v. Wade three years later. Ronald Reagan nominated Anthony Kennedy who wrote the only four Supreme Court decisions in American history affirming the rights of gays and lesbians. George H.W. Bush's chief of staff called David Souter a "home run" for conservatives. Two years later Souter co-wrote the opinion partially reaffirming Roe in Planned Parenthood v. Casey, and the right adopted a rallying cry: "No more Souters."

Against those benchmarks, the distance between what Trump wanted from his three justices and what he received is barely a rounding error.

With all three in the majority, the Court gave him criminal immunity in Trump v. United States, making him the only president in history to benefit from a shield he is now putting to use in myriad ways. In Trump v. CASA, written by Barrett, the Court ended the nationwide injunctions lower courts had used to halt Trump’s policies. Just this year, it overruled a 90-year-old precedent in Trump v. Slaughter (holding that the President may fire the heads of independent agencies at will), and in Mullin v. Doe it cleared the way for Trump to strip Temporary Protected Status from roughly 350,000 Haitians and 6,000 Syrians while barring courts from reviewing most of how the government got there. A year ago, in Noemv. Vasquez Perdomo, it cleared the way for roving immigration sweeps in Los Angeles, and Justice Kavanaugh wrote that "apparent ethnicity" could be a "relevant factor" in a stop, giving the country the phrase "Kavanaugh stops."

On the emergency docket, Trump's administrations have filed 82 applications in under six years, 41 in his first term and 41 more in less than two years of his second. The Bush, Obama, and Biden administrations filed 27 combined, across twenty years. Lower courts, including his own appointees, rule against Trump far more often than the Supreme Court. A Court Accountability study found he wins about nine times in ten at the Supreme Court.

The losses are the outliers, and so were the asks:

He claimed a 1977 emergency statute that never uses the word "tariff," "duty," "tax," or any other synonym for those words authorized him to tax nearly every good entering the country.
He asked the Court to read into the Fourteenth Amendment a limit on birthright citizenship that its text and 128 years of precedent foreclose.
He tried to fire a sitting Federal Reserve governor, Lisa Cook, without the process the law requires.
He sought to federalize the Illinois National Guard and send it into Chicago.
He deported Venezuelans under the Alien Enemies Act, a 1798 wartime statute, on roughly a day's notice.
He wanted the Postal Service to rewrite election rules less than two months before Election Day.

Despite the major weaknesses of the legal arguments supporting Trump’s positions in these cases, his justices rarely said no together. Kavanaugh would have upheld the tariffs. Gorsuch would have rejected the facial challenge to the birthright order and the objections to the Chicago Guard deployment. Gorsuch and Barrett would have let him fire a sitting Fed governor; that case went against Trump 5-4. Of his marquee losses, only the Postal Service rule, fifty days before an election, drew all three against him.

“Legends both”

To understand what the President clearly wants his appointees to be, look no further than Justices Clarence Thomas and Samuel Alito, whom the President calls “legends both.” In the mail-ballot case, U.S. Postal Service v. California, Alito dissented, joined only by Thomas.

Both justices market themselves as textualists, originalists and federalists. Yet they dropped all three methods the moment they got in Trump’s way. The Elections Clause says the rules for congressional elections "shall be prescribed in each State by the Legislature thereof," subject to modification by Congress. They would have allowed Trump to bypass that Clause entirely by invoking the Post Office's general authority to regulate the mail. Originalism? The Framers, fresh from a revolution against a concentrated executive, kept the executive out of running elections; Thomas and Alito would have handed the executive sweeping, unilateral power in the midterms. Federalism? When the States told the Court, that in addition to its unconstitutionality, the overhaul was logistically impracticable, Justice Alito wrote, "I take that problem very seriously, but it is not enough to convince me to deny the application."

Eisenhower's "mistakes" gave the country a far more liberal Court than Eisenhower wanted. Trump's justices have given him immunity, CASA, Slaughter, the effective end of the Voting Rights Act, the TPS terminations, Kavanaugh stops, a ballroom, the end of affirmative action, the end of abortion rights, and roughly a .900 batting average. What they refused him was the power to tax by decree, to unmake citizenship by executive order, to fire a Fed governor at will, to send troops into Chicago, and to run the midterms through the Postal Service.

All the conservative justices favor a country run by Republicans instituting GOP policies. All but Thomas and Alito do not, however, favor an unlimited presidency completely independent from the two other branches. That line, which the Court is barely drawing, derives much more from institutional and personal self-interest than partisan disloyalty.

The Supreme Court term that begins today is already full of important cases involving climate change, assault weapons, and the separation of church and state, among others. Given that the midterms will be long over by the end of the term, expect a virtual sweep for the President, with maybe an outlier here or there. Either way, Trump will complain.

---

by Eric Segall and Guest Blogger James Sample, who is a Professor of Law at Hofstra University.

Professor Sample is on the Board of Advisors of Georgia State University's Emmet Bondurant Center for Constitutional Law, Practice, and Democracy. Professor Segall is the Executive Director of the Center.

This essay also appears at Who Decides Who Decides? where Professor Sample writes regularly.

New York's Law Regarding Intoxication and Consent Needs Reform, But That's not the Core Issue in the Jane Doe Case

2026-10-03T10:41:08.523-04:00

A number of readers and others have asked for my view of the lawsuit filed by Jane Doe and the ensuing controversy over her treatment by the Cornell police, the Ithaca District Attorney, and the university. I was reluctant to say anything because I have no direct knowledge of the case, which I first learned about when it made the news a couple of weeks ago. However, I suppose I am more knowledgeable than at least some of the millions of people expressing views on social media, so I shall say a few words about the internal university treatment of the case and then about the criminal law as it stands and as it might soon be amended.

To begin, two propositions are obvious to me. First, Cornell is hardly unique in the inadequacy of its responses to sexual violence. As is often the case, The Onion best captured this idea in a satirical story titled Nation Horrified To Think Sexual Assault Could Happen On College Campus. With characteristic deadpan, the short piece includes the following statement from a fictional Missouri resident: "Let’s nip this in the bud now before it happens a second or even third time."

There is an alarming amount of sexual violence occurring on college campuses, although it is not clear to what extent colleges as such are the cause of such violence. A 2014 Bureau of Justice Statistics study found that women ages 18-24 who were not enrolled in college were somewhat more likely to experience rape or other sexual violence than their college-enrolled counterparts. A subsequent study using data from 2015 to 2022, however, found the opposite effect. But regardless of how much of the campus sexual violence against young (overwhelmingly female) adults (by overwhelmingly male perpetrators) is attributable to the baseline rate for the college-age cohort, there is no excuse for colleges taking inadequate steps to address it.

Second, even if Cornell is not uniquely bad at preventing and responding to sexual violence on campus, it bears responsibility for what happens here. Moreover, there is reason to believe that there is a distinctively Cornellian dimension to this problem. This very year, Cornell agreed to pay over $ 1 billion to settle claims by victims of sexual abuse by former Cornell Medical School urologist (and current prison resident) Darius Paduch. The university settled the case for such an enormous amount because of substantial evidence of a systematic failure to rein in Dr. Paduch's criminal conduct.

The systems in place to address student-on-student sexual violence at the Ithaca campus are more robust than those that were apparently not in place to address doctor-on-patient abuse in the medical school. How well did they perform here?

A Cornell FAQ page says that the Title IX process initiated in response to Jane Doe's complaint resulted in the closing of the Chi Phi fraternity (which remains closed). That page and further reporting by The New York Times (here and here) indicate that all of the fraternity members named in the lawsuit were suspended, with two of them eventually being expelled. Whether the process should have resulted in more expulsions would depend on exactly what the evidence showed about each of them.

Based on the allegations in the complaint, it is difficult to see what distinguished the various individual fraternity members who participated from one another, but it is possible that the relevant decision makers were unable to determine which of the fraternity members involved in the incident were responsible for the most serious acts beyond the two who were expelled. Additional reporting from The New York Times includes excerpts of the full police interview of Jane Doe, in which she said "I don’t remember the very end of the event where I was raped [but] I can say with 100 percent confidence I was raped."

That interview also recorded other statements very clearly indicative of crimes, including that, as CBS News reported, Doe told the campus police "And then, of course, I was being hit at the same time. Physically hit very, very hard." I shall return to the question of criminal liability below, but first I have a few further thoughts about the Title IX process.

One understandable source of public outrage has been allegation 181 of the civil complaint, which states that all of the named fraternity member defendants "were afforded the opportunity to mitigate their conduct by submitting essays." Once again making an important point through biting satire, a story in The Onion was thus titled Cornell Vows That Rapists Will Be Forced To Write Much Longer Essays In The Future.

Biting, yes, but is that fair? The Cornell FAQ page linked above responds to the allegation and the outrage as follows:

Q: "Is it true that involved students only had to write essays as a disciplinary measure?"

A: "No."

That is a fair response to some of the public misunderstanding but notably, it is not a denial of the plaintiff's allegation, which does not state that all of the defendant students were required to write an essay as their sole disciplinary sanction but that they were given the opportunity to mitigate their sanctions by writing essays. I assume the FAQs were drafted with care and so I would provisionally interpret this one as aiming to give the impression of denying the allegation about essay writing opportunities but not actually denying it.

I am broadly familiar with Cornell's Title IX process and student disciplinary procedures more broadly because I have served on various university-wide committees tasked with proposing reforms to them and have been indirectly involved with particular cases in which students I knew either brought or responded to charges. In addition, like other faculty and staff, I take yearly trainings. In my experience, essay writing is indeed one of the measures employed by the offices charged with investigating and sanctioning alleged misconduct. The theory, so far as it goes, is that the process should be educational and restorative rather than punitive, where possible.

I suppose essay writing in mitigation of punishment might be appropriate for peripheral characters in this episode--for example, any of the numerous fraternity members who received the despicable Snapchat group message alerting them that "Free pussy" was available in a room in the frat house and did not go to that room but also did not think this outrageous suggestion warranted any kind of intervention. Such indifference to misogynist cruelty justifies at least an educative sanction. But, as noted above, the Q&A on essay writing is provisionally best read to imply that the actual participants in the horrible conduct were offered an opportunity to mitigate their penalty by writing essays. If so, that would have been wholly inappropriate.

What about criminal punishment? There has been much criticism of both the Cornell Police and the Ithaca District Attorney, with each now seeking to blame the other for missteps. I'll put those issues aside to focus on what comes next.

If the allegations in Jane Doe's civil complaint are true, then the defendants' conduct was plainly criminal. Pages 25-28 of the complaint describe multiple sexual acts performed on Doe and expressly state that these were done "without her consent." If Doe is willing to testify to these, that would certainly be enough for New York Attorney General Letitia James, who has been appointed as special prosecutor in the case, to secure an indictment from a grand jury.

Whether James can secure convictions remains to be seen. The sworn statement Jane Doe signed as part of the initial investigation contains assertions that are more equivocal with respect to consent than what is in the complaint. During a trial, defense counsel would no doubt use the statement to impeach any testimony by Doe that is more in line with the civil complaint. And based on the Title IX transcript excerpts published by The Times, it is clear that the defendants will testify that Doe affirmatively consented.

But that doesn't mean that a criminal trial would be a purely "he said/she said" contest in which the jury tosses up its hands and finds the prosecution fails to have met its burden of proof. Perhaps one of the defendants will take a plea deal and then testify in a way that corroborates Doe's account in the civil complaint. There might also be third-party witnesses who could so testify.

Moreover, there is little doubt that if the condensed statement is used to impeach Doe's credibility, the prosecution will introduce excerpts of the full police interview, including that Doe was "100 percent confiden[t she] was raped" and that she was "physically hit very very hard." Like most U.S. jurisdictions, New York's evidence law generally bars prior consistent statements from an available witness as hearsay, but (also like most jurisdictions), it contains an exception to rebut a charge of recent fabrication.

Accordingly, a trial would likely feature testimony by Doe that she was gang-raped and testimony by some or all of the defendants that the activity was consensual. One might wonder why any consent the defendants will say Doe manifested is not vitiated by the fact that she was very intoxicated from having consumed a whole lot of alcohol, marijuana, and ketamine. The short of it is that under New York State law as potentially relevant here, a person will be deemed incapable of giving consent if they are "mentally incapacitated" or "physically defenseless." Standing alone, either of those terms might seem to apply to a very intoxicated person, but the words don't stand alone.

A further New York State statutory provision states: "'Physically helpless'" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act." Even the civil complaint does not allege that Doe was unconscious or unable to communicate.

That same provision also states: "'Mentally incapacitated'" means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent." The civil complaint could be read to imply that the defendants administered alcohol and drugs to Doe without consent. It says the defendants "plied" her with marijuana and high-proof rum and "pressured" her to snort ketamine.

Depending on what "pressured" and "plied" mean here--and more importantly, depending on what exactly Doe would testify to--such conduct could be the basis for criminal liability under the "mentally incapacitated" provision. But the terms "pressured" and "plied" are sufficiently vague that they might not.

That might well strike many readers as deeply troubling. If someone is very drunk and/or high, shouldn't it be clear that they can't give meaningful consent to sex?

Many New York State lawmakers share this concern. In June of this year, a bill passed the New York State Senate that would expand the circumstances under which a person would be deemed incapable of consent due to intoxication, regardless of whether they became intoxicated voluntarily or involuntarily. It would add language to the statutes to make clear that lack of consent will be found if "the victim was under the influence of any drug, intoxicant, or other substance to a degree which rendered the victim temporarily incapable of appraising or controlling such person's conduct and such condition was known or reasonably should have been known to a person in the actor's situation."

The Jane Doe case has brought forth calls for the State Assembly (the lower house of the New York legislature) to pass the bill as well and for Governor Hochul to sign it into law. If that happens, New York will join a substantial number of states with similar laws.

One oddity of the bill's passage would be the possibility that both (or, where more than two people are involved, all) of the parties involved in a sexual act could be guilty of the crime. Not infrequently, drunk people have sex with other drunk people. Could it really be the intention of the New York legislature to subject them both (or all) to criminal prosecution?

Some states avoid that possibility by construing language in their respective statutes similar to the New York bill's "reasonably should have been known to a person in the actor's situation" language to take account of the fact that the actor (i.e., the defendant) was also intoxicated. Thus, if a person was so intoxicated that they were "temporarily incapable of appraising or controlling" their conduct, they would also be so intoxicated that they could not be expected to have known that their partner(s) were also so intoxicated. Neither party would be guilty of a crime.

The Massachusetts Supreme Judicial Court 2012 decision in Commonwealth v. Mountry takes this approach. Although the case did not involve a two-way prosecution, the court had occasion to decide whether the objective component of the state law ("should have known") was to be judged from the perspective of a reasonable sober person or a reasonable person with the defendant's actual level of intoxication. The court chose the latter.

However, that appears to be the minority position among states that have comparable statutes. Whether through specific holdings regarding rape and other crimes of sexual violence or through general bars on making voluntary intoxication a defense to any sort of crime, most states would allow a conviction even if the defendant's mental state mirrored that of the victim as a result of the defendant's intoxication. For example, a 2024 decision by an intermediate appellate court in Indiana rejected the defendant's argument that it was unfair to treat victim intoxication and defendant intoxication differently. On the facts of that case, it's implausible to think that the state could have also prosecuted the victim, but the reasoning of the opinion leaves open that possibility of reciprocal prosecutions in other circumstances.

A version of this mutual victimization issue can be found in the Jane Doe case itself. According to The New York Times story describing the Title IX files, one of the defendants in the civil suit claimed during the Title IX investigation that he "was 'a victim of sexual misconduct' because the woman had given him oral sex when he was 'too incapacitated' to consent." It does not appear that the Title IX investigators took this contention seriously, however.

More broadly, it does not appear that prosecutors have ever charged parties on opposite sides of the same sexual encounter with reciprocal crimes based on their mutual intoxication. To be realistic about these things, the vast majority of cases involve men taking sexual advantage of women or girls. But neither state law nor prosecutors making charging decisions can use a sex-based classification in deciding who's the victim and who's the perpetrator. And there will be some cases in which parties on both sides of the sexual activity are of the same sex, so a "charge the male" rule wouldn't always work even if it were constitutional.

To be clear, however, the reciprocal victimization problem is almost purely hypothetical. The fundamental problem with enforcement of the law regarding rape and other sexual violence is not that drunk men are being charged when they are just as much victims as the women testifying against them. The fundamental problem is that too often the system fails to investigate, prosecute, or secure convictions for sex crimes committed against female victims.

-- Michael C. Dorf

The Global Migration (or not) of Scholars and Researchers (a Dorf on Law classic)

2026-10-02T11:11:34.003-04:00

Note to readers:

I published the column below on Dorf on Law on December 2, 2025. For the multitude of obsessive Buchanan superfans out there, this republication might serve as a hint regarding my current whereabouts, while also explaining why I am running a Dorf on Law "classic" today rather than publishing new content.

I should also note that, in the ten months since I wrote that column, the situation that I described has begun to change. It took some time, but non-US universities have in fact begun to entice formerly US-based scholars to move across borders (and, other than universities in the never-51st-state, across oceans) in meaningful numbers. I plan to write about those changes here on Dorf on Law, and most likely on Verdict as well, very soon.

In the first sentence of the paragraph above, I was tempted to add the word "fortunately" in front of "begun to change," but that is clearly not a sensible way to think about this mess. Although I am happy to see the rest of the world begin to take advantage of this once-in-a-lifetime opportunity to eat into the US's longstanding (and honestly quite overwhelming) dominance in higher education and scholarly research, it is also something of a zero-sum game. After all, every scholar who leaves a US university to move to Australia, the UK, France, or other destinations is a loss to the wealth (measured appropriately) of the country of my birth.

But to be very clear, this is in fact a negative-sum situation, because (as I explained in gory detail in two columns earlier this year), there are surprisingly onerous challenges -- what economists blandly categorize as "transactions costs" -- involved in the process of expatriation and integration, both for the scholars involved and for the people in their new homes (institutional, local, and national).

Even so, we deal with the situation that faces us, and in that context, it is important to report that the Trump regime's blatant hostility to expertise and knowledge does indeed have consequences. As always, however, the people who will suffer those consequences -- not only the expatriating scholars and hosts themselves, but also the colleagues and students they leave behind, to say nothing of Americans at large (as they face the consequences of the dumbing down of their country) -- are innocent victims.

Again, I will return to all of this soon. In the meantime, I hope that everyone is able to enjoy a relaxing weekend, no matter where one happens to be at this moment.

- Neil H. Buchanan

The Global Migration (or not) of Scholars and Researchers

In this column, although I will first make an announcement that is all about me, I will quickly explain the potential broader significance of the news, which will then allow me to return to a question that I posed last week about the absence of a "higher education gold rush" in 2025. In short, I am still trying to figure out why -- even in the most promising environment in history for non-US universities to pick off American researchers and thus boost their own absolute and relative stature -- no one seems to be pursuing that winning strategy.

But first, the personal news. Some Dorf on Law readers will surely recall that I have been moving around the non-US world for the past few years, most recently moving to Dublin, Ireland, this past Spring. There will soon be some updates about all of that, but today's news is not about permanently relocating to a new place. Instead, I am happy to announce that I have accepted an offer to become a Senior Research Fellow at the Institute for Austrian and International Tax Law (IATL), which is part of the Vienna University of Business and Economics (WU). The short, official announcement went up on the Institute's website a bit more than a week ago, noting that Dr. Simon Whitehead is also joining the staff with the title of Senior Research Fellow.

I am genuinely excited about this, but again, this does not involve my moving permanently to Vienna (as delightful as that idea would be). The appointment brings with it the opportunity to be in residence at the Institute at my discretion, but because there is no special visa status involved, the usual rules and limitations regarding visits to a European country apply. Still, it is hardly a small thing to have a standing invitation to spend weeks or months at a time in one of the most beautiful cities in the world, while working at one of the most vibrant research universities out there.

But wait, one might say. Did this column not begin with my reassertion that the new US reality in 2025 is not causing academic institutions elsewhere to seek out American scholars, or for American scholars to seek out positions abroad? Does this announcement not contradict that statement? Actually, no.

The driving force behind the Institute is Univ.-Prof. Dr. DDr. h. c. Michael Lang, who has been a tireless and dynamic leader in making the tax program at WU what it is today. And for present purposes, the key fact is that Professor Lang has been doing this for many years, which means that his moves this year (which also included signing up my former University of Florida colleague Yariv Brauner as a Professor of Tax Law at WU) are unsurprising and not at all unusual. One might be able to find a bit of a difference in what has happened this year compared to prior years, or maybe not, but the fact is that successful global scholarly outreach has been standard operating procedure at the Institute for many years.

Similarly, I have been a visitor in Vienna at least five times over the past fifteen years, teaching mini-courses and spending time there as a visiting scholar. Therefore, it would be easy to imagine myself making today's announcement even if the US's universities were not under unprecedented political pressure. Professor Lang and I almost surely would have done this around now, no matter what else was happening in the world. Moreover, as I noted in my column last week, I would not in fact be one of the nuggets in an academic gold rush, given my age and emeritus status. If there were evidence of such a rush, it would have to involve younger people in large enough numbers to stop relying on anecdotes.

Which brings us back to the question: Why is what is not happening not happening? The closest I came to answering that question last week was the cynical comment that

politicians and university leaders in other countries are shockingly parochial and do not see this situation as a reason to make changes of any kind, much less of the sort that would rock any boats. I have to admit that I have personally noticed this attitude in spades in many places that one might hope would be more ambitious and forward-looking.

I added a second possible explanation having to do with the relatively low pay and poor working conditions at non-US universities, but that explanation immediately leads to a followup question: If the new reality in US higher education makes American scholars more likely to listen to lateral offers from abroad, why would foreign universities not take the opportunity to scoop up a few truckloads of these scholars on the (relative) cheap?

Put differently, this is merely another example of the kind of question that orthodox economists often ask: Phenomenon X, which makes sense and therefore should be happening, isn't happening; so why is the market failing? That is, something must be stopping people from reaching win-win (Pareto-improving) exchanges, because people do not leave money on the table for no reason.

I want to be clear that I find that default style of reasoning among orthodox economists to be tiring and often downright silly. It has even inspired some not-particularly-funny jokes, such as: "An economist saw a $100 bill on the sidewalk but didn't pick it up, because he knew it was counterfeit. Why? Because he knew that if it were real, someone would have picked it up already." So yes, the "but it should be happening" instinct is reductive and can be overdone (and has been ... to death).

And it is especially annoying to go down that path because the orthodox economists’ "answer" to the question of why something good is not happening is almost always "because government." Those nasty politicians and bureaucrats are always the villains in these stories, because they refuse to listen to the wise reactionary economists. There has been some movement in the last generation or so toward "behavioral" explanations based on cognitive biases like myopia or other challenges to the rational actor model, but that has mostly turned out to be an analytical and real-world dud.

What would the blame-the-government answer be to my question about the absence of an academic mass migration? The obvious explanation is that politicians in non-US countries are refusing to rise to the moment, failing to invest in an extremely valuable asset for their countries even at relatively bargain-basement prices. That answer sounds right, but of course we then need to know why politicians are not jumping for joy. And the answer to that is also obvious: "I'm going to direct a bunch of my taxpayers' money to hire some fancy-pants intellectuals from the United States and pay them more than we typically pay our own professors" is not a winning political message. Yes, "the government" is failing to exploit an opportunity, but that must surely be because politicians know that their people would be against it. Democracy and all that.

As an analogy, a friend in the UK pointed out in conversation yesterday that Ireland is not in NATO. (Three other EU members -- Austria, Cyprus, and Malta -- are also not in NATO, all of which was news to me.) Apparently not entirely as a hypothetical question, my friend asked what would happen if Russia started military action or made threats of military action against Ireland. Who has the most direct interest in stopping such a move -- other than the 5.4 million Irish citizens who, and I am not making this up, currently have a navy with a total of eight ships (for an island nation), only four of which were available for operations this year -- and who has the military might to do so? Answers: the UK and France. But as my friend put it: "Imagine how that would go over with British and French voters. 'We're defending Ireland, even though we're not required to do so.'"

And that hypothetical situation involves much higher stakes, with a much more immediate payoff. Why would we think that a truly effective strategy to build up a country's universities would suddenly be enacted and funded? At best, the most that we might be able to expect is a slight uptick in some funding in a few places, probably not to be renewed.

Anyway, even though I now know that Austria is also not covered by NATO's Article 5, the news that I announced at the top of this column is still exciting.

- Neil H. Buchanan

The Puzzling Gaps in Federal Civil Rights Law

2026-10-01T07:32:31.341-04:00

Yesterday on this blog, I reproduced my supplemental statement to the U.S. Commission on Civil Rights for its campus antisemitism investigation. I simultaneously published a Verdict column describing and praising the Commission's final report on that subject. In today's essay, I want to explore some oddities of federal civil rights law raised by the topic.

In my column, I state that discrimination (or inadequate measures to respond to discrimination) against Jews by a federally funded entity violates Title VI, where the discrimination is based on "Jewishness as a matter of ancestry." Readers unfamiliar with the details of federal civil rights law may wonder why I didn't simply say that such discrimination would violate Title VI as religious discrimination. The short answer is that Title VI forbids discrimination "on the ground of race, color, or national origin" but not on the basis of religion. Anti-Jewish discrimination is sometimes covered only because Jewishness can be an ethnic or national identity as well as a religion.

But why doesn't Title VI expressly apply to religious discrimination? And while we're at it, why does Title II forbid discrimination based on "race, color, religion, or national origin" but not sex? Why, when Congress enacted Title IX, which does bar discrimination based on sex in federally funded educational institutions, did it do so as a freestanding new statute rather than as an amendment to Title VI? Here, I'll give a brief causal account but then question the normative justification for the resulting hodgepodge.

Let's begin with the topic that inspired this exploration: religious discrimination per Title VI. The omission was not accidental. During the congressional debate over the 1964 Civil Rights Act, Tennessee Senator Al Gore Sr. specifically objected to the fact that religious discrimination, which is covered by Titles II and VII, was left out of Title VI. Pennsylvania Senator Joseph Clark answered that it was unnecessary to include discrimination based on religion in Title VI because it was already barred by the Establishment Clause. Clark said "it would be quite improper, under the Constitution to give aid to a religious institution which deliberately excluded anyone from any other faith." That was a bad answer when it was given and an even worse one today.

Senator Clark's answer made little sense even when he gave it because, even if the federal government were giving no funds to any religious institutions, there is value in forbidding religious discrimination by secular ones. Harvard was founded in 1636 by Puritans "dreading to leave an illiterate ministry to the churches" but by the early 18th century it was known as a liberal secular bastion, which led some pious and disaffected Harvard men to found Yale as a more religious college. Harvard added and then dropped "Christ" from its shield in the 19th century, and it has been fully secular and non-denominational ever since. Yet that did not prevent Harvard from imposing a cap on the number of Jews admitted in the 1920s. Thus, in 1964, it should have been obvious that a federally funded secular institution can engage in religious discrimination.

In any event, now that the Establishment Clause has been gutted, it makes no sense to say that Title VI is unnecessary as applied to religious institutions. The Rehnquist and especially Roberts Courts have utterly transformed Religion Clause doctrine, converting what was once a constitutional prohibition on aid to religious institutions into an obligation to provide such aid on the same basis as aid to comparable (broadly defined) secular institutions.

To be sure, it can be and has been argued that religion is rightly excluded from Title VI to preserve the ability of religious colleges, universities, and other grantees to favor co-religionists. (Note that this argument is inconsistent with Senator Clark's contention that no such institutions get federal aid, but never mind.) But that is an inadequate explanation. If one is concerned about such things, one could give religious institutions a carveout in exactly the way that Title VII contains a carveout for religious employers.

Accordingly, there never was and still isn't a good reason why Title VI doesn't cover religious discrimination.

What about Title II's omission of sex discrimination? Here the question might be better posed as its mirror image: why did the original Civil Rights Act forbid sex discrimination in employment but not in either public accommodations or federally funded entities? According to one familiar but hotly contested story, Representative Howard Smith of Virginia, who was a segregationist, moved to amend Title VII to include "sex" in the hope that this would act as a poison pill and thus kill the whole bill, but it backfired. I'm not sufficiently familiar with the original sources to have a strong opinion about whether that account is correct, but whether or not it is, it leaves a small puzzle and a larger puzzle. The small puzzle is why, whether Smith was trying to poison the bill or was genuinely a feminist, he sought to amend the bill to forbid sex discrimination in employment but not in public accommodations or federally funded entities.

The larger puzzle is why Title II to this day doesn't cover sex discrimination. In 1972, Congress enacted Title IX, forbidding sex discrimination (with some qualifications in the original version and in later amendments) in federally funded educational institutions. Thus, Congress certainly was aware of the possibility of adding "sex" as a forbidden ground to federal civil rights law. So why has it never done so with respect to public accommodations?

I don't have a good answer to that question. It's not as though there's something special about public accommodations laws that makes a prohibition on sex discrimination a poor fit. Every state and the District of Columbia has a public accommodations law that covers sex discrimination. And when Congress enacted the Americans With Disabilities Act, it included a public accommodations provision. It imposes an obligation "to make reasonable modifications in policies, practices, or procedures" to accommodate "individuals with disabilities." Thus, compliance with the ADA public accommodations provision is almost certainly more costly for businesses than would be an expansion of Title II to cover sex. And yet Congress hasn't expanded Title II to cover sex.

We are thus left with a bit of a mystery. Perhaps another way of putting the point is that federal civil rights law includes a jumble of inconsistencies as a result of unprincipled political compromises. A cynic might say: What else is new? That's the nature of legislation. I don't disagree, but given the status of the 1964 Civil Rights Act as what Bill Eskridge and John Ferejohn called a "super-statute," it's worth noting that in its mishmash of coverage, it's not all that super.

-- Michael C. Dorf

My Supplemental Submission to the US Civil Rights Commission

2026-09-30T00:00:00.000-04:00

My latest Verdict column (favorably) discusses the final report of the US Commission on Civil Rights on the topic of the federal response to campus antisemitism. In the column, I provide a link to my original written testimony and to the video of my oral testimony before the Commission back in February. For completeness, I'm devoting today's entry on the blog to publishing the supplemental letter I sent the Commission in March. It is also available in the folder labeled "Panel 1" here but you have to jump through some hoops to find it. Because I republished my initial written testimony on the blog, I thought it sensible to include the supplemental here.

Supplemental Submission of Michael C. Dorf*

Robert S. Stevens Professor of Law, Cornell Law School

United States Civil Rights Commission

RE: Antisemitism on America’s College and University Campuses:

Current Conditions and the Federal Response

March 24, 2026

Distinguished commissioners:

In this supplemental submission, I address two questions you posed to me in a letter of March 18, 2026 and supplement my answer to a question about the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism that was posed during the live briefing on February 19, 2026.

Your Questions

The first question you posed to me was as follows: “In your testimony, you wrote that the Trump Administration’s actions are unlawful, unconstitutional, and destructive. Please elaborate, addressing each.” My statement to which this question refers appears in the overview portion of my written testimony. I elaborated it in the remaining text and footnotes therein, but I am happy to explain those points further here.

(1) The Trump Administration’s actions have been unlawful in that they did not adhere to the procedural or substantive statutory limitations on how the federal government is permitted to go about using funding cutoffs in response to alleged Title VI violations by recipients of federal funds. Your second question posed in your March 18 letter asks specifically about those statutory requirements. It states: “Please outline your interpretation of the federal statutory requirements in order for the government to cut off federal funding to colleges and universities, and how these requirements differ from what the Trump Administration has been doing.” Accordingly, in elaborating how the Trump Administration’s actions are unlawful, I shall also answer your second question.

In the paragraph that carries over from page 5 to page 6 of my original statement, I summarized the procedures the government legally must follow in order to withhold funds from an institution subject to Title VI. As I indicated in footnote 12 of that statement, these are codified in 42 U.S.C. § 2000d-1. For your convenience, here is another summary of those provisions, found in the federal district court opinion granting Harvard’s motion for summary judgment in its lawsuit contesting the lawfulness of the Trump administration’s funding freeze and termination:

In Title VI, Congress identified specific procedures that an agency must follow before “terminating, or refusing to grant or continue, assistance” based on an alleged failure to comply with a requirement adopted pursuant to Title VI. [42 U.S.C.] § 2000d-1. Specifically, Title VI provides that no action terminating financial assistance “shall be taken until the department or agency concerned has” 1) “advised the appropriate person or persons of the failure to comply with the requirement,” and 2) “determined that compliance cannot be secured by voluntary means.” Id. If the relevant department or agency determines that voluntary compliance is not possible, it may then terminate grants, but only if “there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement,” and the termination must be “limited to the particular ... recipient as to whom such a finding has been made,” as well as “the particular program, or part thereof, in which such noncompliance has been so found.” Id. Further, once these procedural steps have been met, “the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action.” Id. After this report is filed with Congress, the action still may not “become effective until thirty days have elapsed.” Id. Only then may an agency terminate funding because of concerns about discrimination.

It is undisputed that Defendants did not comply with these requirements before issuing the Freeze Orders or Termination Letters. The administrative record contains no evidence of a notice of noncompliance, an assessment that compliance could not be achieved by voluntary means, a hearing, a finding on the record, or a report to Congress.

President & Fellows of Harvard Coll. v. United States Dep’t of Health & Hum. Servs., 798 F. Supp. 3d 77, 125-26 (D. Mass. 2025).

The Trump administration defendants did not deny that by unilaterally purporting to cancel and freeze funds to Harvard they had failed to comply with the statutory requirements for a funding cutoff under Title VI. Rather, they disingenuously claimed, post hoc, that they were cutting funding under different authority. The district judge made short work of this claim, stating that the administration defendants

argue that they terminated Harvard’s funding pursuant to 2 C.F.R. § 200.340(a)(4), which provides that a “Federal award may be terminated in part or its entirety ... [b]y the Federal agency ... pursuant to the terms and conditions of the Federal award, including, to the extent authorized by law, if an award no longer effectuates the program goals or agency priorities.” … Notably, however, neither the April 14 nor the May 5 Freeze Order contains any reference to 2 C.F.R. § 200.340 ....

Furthermore, the Trump administration’s most recent action against Harvard, the unprecedented lawsuit it filed seeking reimbursement from Harvard for past payments, makes no mention of 2 C.F.R. § 200.340. See Complaint, United States v. President & Fellows of Harvard College, No. 1:26-cv-11352 (D. Mass. filed Mar. 20, 2026), https://www.justice.gov/crt/media/1432096/dl.

To be sure, this new complaint claims that the administration followed a few of its statutory obligations. Paragraphs 8 and 9 respectively state that the Department of Health and Human Services (which makes and administers substantial grants) provided Harvard with notice that it had opened an investigation on February 3, 2025, and with notice of its findings on June 30, 2025. Conveniently omitted from that timeline is the fact that in between, and without adhering to the statutorily mandated procedures, on April 11, 2025, the Trump administration sent Harvard a letter demanding federal control over admissions, hiring, governance, and more.

That omission severely undercuts the new complaint’s assertion that it is authorized by the fact that the Trump administration “has determined that compliance cannot be secured by voluntary means,” as required by 42 U.S.C. § 2000d-1before resort is made to funding cutoffs. For one thing, the administration initially cut funds long before any determination that compliance could not be secured by voluntary means. For another, it is noteworthy that most of the allegations in the government’s new complaint are taken from a report by a task force Harvard itself convened to assess its response to antisemitism and anti-Israeli bias. See Final Report: Presidential Task Force on Combating Anti-Semitism and Anti-Israeli Bias, Harvard University 10-11 (Apr. 29, 2025), https://www.harvard.edu/wp-content/uploads/2025/04/FINAL-Harvard-ASAIB-Report-4.29.25.pdf. The production of that report is hardly consistent with the Trump administration’s portrayal of Harvard as indifferent to antisemitism and anti-Israel bias. See Actions and Commitments to Combat Antisemitism and Anti-Israeli Bias, Harvard Univ., https://www.harvard.edu/task-force-on-antisemitism/#actionsandcommitments (Updated December 2025) (providing links to information on Harvard’s response).

Nor can the Trump administration be taken at its word that voluntary compliance cannot be secured. Negotiations have apparently stalled, but that hardly means that Harvard is unwilling to comply voluntarily with Title VI. Rather, it apparently indicates that Harvard is unwilling to accede to all of the additional conditions that the Trump administration is demanding—including the payment of tribute or ransom wholly unauthorized by any statute and the sacrifice of institutional autonomy. I would not be surprised to see a judicial conclusion that the government has been negotiating in bad faith and thus that its determination that voluntary compliance cannot be obtained is legally invalid.

In any event, you posed your questions to me on March 18, 2026, two days before the filing of the latest lawsuit by the Trump administration. I have referred to it in my answer only to emphasize that it does not change my assessment that the administration’s actions are unlawful in failing to comply with the requirements of 42 U.S.C. § 2000d-1. In so doing, I have focused on the administration’s actions with respect to Harvard because there is a judicial opinion regarding Harvard. However, my conclusion is equally applicable to the administration’s funding freezes and cutoffs targeting other universities. The fact that some of those other universities chose to settle with the administration rather than risk going without federal funds for months or even years while litigation played out is not evidence that the Trump administration acted lawfully in its dealings with them. The fact that a crime victim hands his wallet to an armed assailant who demands “your money or life” does not mean the assailant’s ultimatum was lawful.

(2) The Trump administration has acted unconstitutionally. The district court decision discussed above granted summary judgment for Harvard on three free speech claims: first, that the administration retaliated against Harvard for its assertion of its constitutional rights; second, that the administration sought to impose content-based and viewpoint-based restrictions on speech by Harvard and its faculty; and third, that the administration sought to coerce Harvard to restrict the free speech rights of students and other third parties in violation of the proposition, unanimously reaffirmed by the Supreme Court in National Rifle Ass’n of America v. Vullo, 602 U.S. 175, 190 (2024), that the government “cannot coerce a private party to suppress disfavored speech on [its] behalf.”

I do not wish to belabor these points, so I would point the Commission to the relevant discussion in the district court opinion. See President & Fellows of Harvard Coll., 798 F. Supp. 3d at 116-25. I note that the Trump administration’s conduct with respect to other universities has likewise been unconstitutional in the second and third ways identified in the Harvard case. The administration has not engaged in unconstitutional retaliation (the first category of violation identified with respect to Harvard) against those other universities chiefly because most of those universities entered into settlement agreements rather than asserting their rights and views; thus, there was nothing for the administration to retaliate against.

I would also point to a statement that I co-authored and co-organized with Professors Eugene Volokh and David Cole in response to the targeting of Columbia University by the Trump administration. The statement was co-signed by fifteen additional constitutional law scholars. Underscoring the bipartisan consensus that the Trump administration’s funding cutoffs and freezes have been unlawful and unconstitutional, the signer whose name comes first alphabetically is a noted conservative and co-founder of the Federalist Society. See Steven G. Calabresi et al., A Statement from Constitutional Law Scholars on Columbia, N.Y. Rev. Books (Mar. 20, 2025), https://www.nybooks.com/online/2025/03/20/a-statement-from-constitutional-law-scholars-on-columbia/.

The statement begins with a bedrock constitutional principle:

The First Amendment protects speech many of us find wrongheaded or deeply offensive, including anti-Israel advocacy and even antisemitic advocacy. The government may not threaten funding cuts as a tool to pressure recipients into suppressing such viewpoints. This is especially so for universities, which should be committed to respecting free speech.

The statement also explains how the administration has acted in violation of 42 U.S.C. § 2000d-1 (making versions of the points I made above) and then draws a crucial connection between statutory and constitutional requirements:

[T]he lines between legally unprotected harassment on the one hand and protected speech on the other are notoriously difficult to draw and are often fact-specific. In part because of that, any sanctions imposed on universities for Title VI violations must follow that statute’s well-established procedural rules, which help make clear what speech is sanctionable and what speech is constitutionally protected. …The government’s action therefore risks deterring and suppressing constitutionally protected speech—not just illegal discriminatory conduct.

A year later, it is fair to say that the Trump administration’s deterrence and suppression of constitutionally protected speech are no longer a mere risk but a reality.

(3) The Trump administration’s actions have been destructive along two main dimensions. First, they have had what appears to be the intended effect of stifling academic freedom, which, as I emphasized in both my written and oral testimony, has constitutional status. See, e.g., Sweezy v. New Hampshire, 354 U.S. 254 (1957).

Even before the administration began canceling funding, many faculty were self-censoring, see Ashley Finley & Hans-Joerg Tiede, Academic Freedom and Civil Discourse in Higher Education: A National Study of Faculty Attitudes and Perceptions, Am. Ass’n of Colls. & Univs., Am. Ass’n of Univ. Professors (Jan. 2025), https://dgmg81phhvh63.cloudfront.net/content/user-photos/AACU_AcademicFreedomReport_010825_PUBLISHED.pdf., but the crackdown has exacerbated that phenomenon. See Lee Ann Rawlins Williams, College Faculty Are Under Pressure to Say and Do the Right Thing—The Stress Also Trickles Down to Students, The Conversation (Oct. 23, 2025), https://theconversation.com/college-faculty-are-under-pressure-to-say-and-do-the-right-thing-the-stress-also-trickles-down-to-students-267400 (reporting recent conversations with faculty who “described ‘navigating sensitive boundaries’ in their lectures, avoiding having any discussion about race, gender and religion”).

Those indirect impacts compound direct attacks on academic freedom, such as the demand in the Trump administration’s April 11, 2025 letter to Harvard “that each department, field, or teaching unit must be individually viewpoint diverse” to the satisfaction of the federal government. Letter from the Federal Task Force to Combat Anti-Semitism to Alan M. Garber, President, Harvard Univ., and Penny Pritzker, Lead Member, Harvard Corp. (Apr. 11, 2025), https://www.harvard.edu/research-funding/wp-content/uploads/sites/16/2025/04/Letter-Sent-to-Harvard-2025-04-11.pdf. Although viewpoint diversity is a worthwhile academic goal, a government-mandated requirement of viewpoint diversity, much less one imposed in every field, is unconstitutional viewpoint-discrimination, plain and simple.

Second, the Trump administration’s funding freezes and terminations have been destructive for the obvious reason that they have stymied important research that universities perform. Princeton lost “research support from the Department of Defense, the Department of Energy and NASA.” Alan Blinder & Anemona Hartocollis, Trump Pauses Federal Grants to Princeton, N.Y. Times (Apr. 25, 2025), https://www.nytimes.com/2025/04/01/us/trump-federal-grants-princeton.html. “Cornell received more than 75 stop work orders from the Department of Defense related to research that is profoundly significant to American national defense, cybersecurity, and health.” Darren Incorvaia, Cornell and Northwestern Next Up for Federal Funding Freeze, Jeopardizing Health Research, Fierce Biotech (Apr. 9, 2025), https://www.fiercebiotech.com/research/cornell-and-northwestern-next-federal-funding-freeze-jeopardizing-health-research (quoting joint statement of Cornell’s president, provost and provost for medical affairs). The administration’s coercive funding cuts jeopardized “innovative and life-saving research, like the recent development by Northwestern researchers of the world’s smallest pacemaker, and research fueling the fight against Alzheimer’s disease . . . .” Id.(quoting Northwestern spokesperson after the Trump administration announced cuts of $790 million). And that is only a small sampling of the damage.

* * *

To be clear, Congress could decide to cut federal research funding to universities. If it so chose, I would hope it would do so judiciously but the decision ultimately rests in its hands, as Article I of the Constitution gives Congress the power of the purse. Conversely, however, the president has no authority to cancel federal funding except in accordance with the Constitution and the substantive and procedural standards contained in the statutes Congress enacted delegating enforcement powers to the executive branch. As I have shown above, the Trump administration violated both statutory and constitutional requirements—all with the consequence of undercutting vital research that American universities perform in the service of the American people.

The IHRA Definition of Antisemitism

At the conclusion of the panel on which I participated on February 19, 2026, an invitation was extended to submit supplemental materials. Accordingly, I wish to follow up on a question that was raised during the session. Commissioner Jones asked panelists for our views about incorporating the IHRA definition of antisemitism into federal law, including Title VI.

In my oral response, I said that the IHRA definition treats certain statements about Israel as presumptively antisemitic. If federal law creates even a rebuttable presumption that anti-Israel statements are antisemitic, I added, then it is unconstitutional under the First Amendment as viewpoint-based. In an apparent response to my reference to a presumption, Mr. Goldfeder stated that the examples provided in IHRA do not “automatically” result in the conclusion that anyone espousing the views to which they refer has engaged in antisemitism. Because the panel was already over time, there was no opportunity for me to respond, so I do so briefly here.

Mr. Goldfeder is correct that the IHRA definition states that antisemitism “could … include” the examples it articulates, but that does not mean that it fails to create the presumption to which I referred. Simply as a linguistic matter, the word “could” is consistent with a rebuttable presumption. Consider that eyewitness testimony that a defendant committed some crime could establish guilt beyond a reasonable doubt, but it might not if, say, it is rebutted by an alibi and evidence that the defendant has an identical twin. That is a quintessential presumption.

The IHRA examples are of the same character, only more so, because with respect to some of them, it is nearly impossible to imagine how one could rebut the presumption. One of the examples is “claiming that the existence of a State of Israel is a racist endeavor.” How could someone who made such a claim go about showing it was not antisemitic? Would it suffice to point out that the speaker also thinks that the United States is a racist endeavor? That the speaker has Jewish friends? That the speaker is Jewish? Meanwhile, although the IHRA definition includes numerous examples that “could” be antisemitic “taking into account the overall context,” it nowhere provides any hint of what sort of context might render the examples not antisemitic. Thus, it arguably creates an irrebuttable presumption that the examples amount to antisemitism.

Even apart from the foregoing analysis of the language of the IHRA definition of antisemitism, experience shows that when incorporated into rules governing conduct, it functions as a de facto presumption that a great deal of speech critical of Israel will be deemed antisemitic. See Jan Deckers & Jonathan Coulter, What Is Wrong with the International Holocaust Remembrance Alliance’s Definition of Antisemitism?, 28 Res Publica 733 (2022) (discussing experience in Canada, the European Union, the United Kingdom, and the United States). Even in the United Kingdom, where the IHRA definition was adopted without the examples, the examples have thoroughly informed its application in ways that facilitate censorship of speech critical of Israel. See Rebecca Ruth Gould, Legal Form and Legal Legitimacy: The IHRA Definition of Antisemitism as a Case Study in Censored Speech, 18 Law, Culture & Human. 1 (2022).

Accordingly, I stand by my oral representation that adoption of the IHRA definition as part of federal law would create a presumption that much protected speech critical of Israel is prohibited and that such a presumption would violate the First Amendment.

Finally, I have focused here on whether the IHRA definition creates a presumption that its examples amount to antisemitism, but I also agree with other criticisms of the proposed adoption of the definition, including those expressed by Professors Eidelson, Lakier, and Volokh during the panel, as well as in the supplemental statement provided on March 15, 2026 by Professor Eidelson.

-- Michael C. Dorf

* This supplemental submission, like my original written and oral testimony, reflects my personal views as a scholar and a citizen. I reiterate that I do not purport to speak for Cornell Law School, Cornell University, or any other entity or organization.

Affordability, the "Property Ladder," and the True Causes of the Housing Shortage

2026-09-29T13:15:50.744-04:00

Count Binface became an international phenomenon this past summer. For those who are unaware, the Count is a "novelty candidate" who has used the UK's easy ballot access to run for a series of offices as an ongoing publicity stunt. Interestingly, the man behind Count Binface is a British comedian who happens also to have a classics degree from Oxford, which means that his political persona is both hilarious and unexpectedly well informed.

In the "About Me" section of the Count's website, he helpfully explains that

I’m an intergalactic space warrior and leader of the Recyclons from planet Sigma IX. I came to Earth in 2017 and stood against Prime Minister Theresa May (as ‘Lord Buckethead’), going went viral (in a non-Covid way). Then in 2018, after an unfortunate battle on the planet Copyright, I rewspawned [sic] in my true form as Count Binface to take on Boris Johnson in the 2019 election, where I scored a surprising 69. In 2021, I received 92,896 votes (including 24,775 first choice votes) from the humans of London, who made me their 9th choice to be Mayor of the Earth capital, out of 20 candidates. This is a new record for an alien standing for public office on planet Earth.

It goes on from there, but the point is made. Sigma IX sent us its best and brightest, and we should all be grateful. But what would Count Binface do, should he ever be elected? His website begins with a full list of his promises, out of which I will offer just a sample:

Arcade grabber games to be made fairer so players actually have a chance to win.
A windfall tax on cozy crime novels written (or “written”) by celebrities.
A referendum on whether Pluto should regain its planet status.
Cyclists who break the highway code to be forced to ride unicycles instead.
People who use speakerphones on public transport to be conscripted.
The hand dryer in the gents’ toilet at the Crown & Treaty pub, Uxbridge, to be moved to a more sensible position.

He also still wants to "nationalise Adele." Notably, however, his platform includes some ideas that at least touch on serious policy issues, though often in an unserious way, including this: "I will cut your taxes, and raise everyone else’s"; and having the water managers of the river that runs through London "take a dip in the Thames… see how they like it."

And now for the smooth transition into today's policy discussion. Yes, this column up to this point (clearly excluding the headline) is a shameless version of click-bait.

Count Binface also promises this: "I pledge to build at least one affordable house." Why is that important? Because it shows that even the most "out there" candidate (in every sense) in a wealthy country thinks it useful to talk about the housing affordability crisis. He sensibly does not cover every issue that he might, but he talks about housing, pollution, and a small number of other issues that genuinely matter to people.

On housing in particular, his proposal unmistakably implies that other politicians have talked for years about providing affordable housing without keeping their promises, such that Count Binface can stand out from the crowd of standard politicians by saying, in essence: "Yes, this is a pathetically minimal response to a real problem, but at least you know that I'll carry it through."

And that is in fact very important, because one of the most pressing policy problems around the world today is the housing affordability crisis. Name a city, at least in a relatively wealthy country (a caveat that I add simply because I have not looked at the data for relatively poorer countries), and it is experiencing a housing crisis. New York, Dublin, Vancouver, Sydney, Lisbon, San Francisco, London, and on and on. All are in crisis.

Indeed, it is the rare city that does not have at least an ongoing political conversation running at full boil around housing. And if I were to name any city as an exception, suggesting that it did not have a housing crisis, I have no doubt that I would be inundated with messages telling me that I am quite wrong. And I would be wrong in anything other than a relative sense. For example, my read on Chicago's housing market is that it is terrible for a lot of people, but probably not as bad as, say, Miami's. One could then dive into the data, but the point is that housing seemingly everywhere is more scarce and expensive than ever. (Chicagoans, please walk away from your keyboards!)

So yes, housing is a big deal. When I have written about it over the years, however, I have focused mostly on a key sub-category of the housing policy debate: whether it makes sense for governments to continue to favor people owning their dwellings rather than renting them. With rare exceptions allowing for some nuance (most importantly the losses that current owners would be forced to swallow during any policy transition), my conclusion has been consistent: not only is owning not (as most people believe) obviously superior to renting, but it is in fact much worse. Pro-ownership policies and attitudes are therefore harmful.

I will come back to that issue toward the end of this essay, but before I move on, it is important first to make it clear that there is no home ownership crisis (anywhere, as far as I am aware). Rather, there is a housing availability crisis. If there were enough dwellings available for everyone, dwellings that are affordable for either purchase or lease -- it would, in fact, have to be both -- then we could have a secondary debate about the buy-versus-rent question. But what matters now is that there are simply not enough dwellings for the people who would take them if the cost were not beyond their means.

An at least B+ student in Intro to Economics would say that this is simple: supply of housing currently only meets demand for housing at a price that pushes many people to live with their parents, on friends' sofas, in cars, in parks, and so on. Surely, even assuming that economic transitions are sluggish, we should see a situation in which there are buyers who clearly could afford somewhat-lower costs and sellers who could make a profit at that somewhat-lower price. In other words, a housing shortage is merely a housing boom waiting to happen.

Longtime readers of this blog know that I am an apostate economist, and I tend to mock simplistic pronouncements offered by the former A students who become economists. On this issue, there is room for plenty of skepticism, but the fundamental idea is correct: unless there are more physical places in which people can live, average prices will not come down.

But returning to that question of economic transitions, just how sluggish should we expect them to be? One might think that at most a few years of shortage would bring forth a building boom nearly everywhere, yet we have not seen that kick into gear. Why not? The familiar answers include NIMBY effects such as local opposition to multi-unit or high-rise developments, which I have seen up close when I lived in Toronto but are most obvious throughout California. And although Democrats run the government in the Golden State, they are dealing with two deeper problems: hyper-local power over housing decisions, and the perverse effects of 1978's Prop 13, which entrenches housing market stasis via property taxes. That is too far afield to discuss here, but the point is that California's Democrats are not the ones who saddled their state with that terribly destructive policy. It was now-standard mindless Republican opposition to taxes.

On the larger question of sluggishness, other explanations can be similarly counterintuitive (or at least non-obvious). A recent BBC London feature asked this key question in its title: "London has a housing crisis - so why aren’t its flats selling?" That question evokes the supply-demand idea, but in an especially interesting form. They are not, after all, wondering why new units have not yet been built. In London, there are people who want to sell alongside people who want to buy, but the flats are not changing hands.

Could that merely be a matter of sellers not yet having accepted reality, stubbornly refusing to reduce asking prices that were unrealistic for far too long? Possibly, and if that were the explanation, then we would be back to the sluggishness question, the answer to which is: "It's only a matter of time." Even if that were true, however, one of John Maynard Keynes's less famous aphorisms is that "[m]arkets can remain irrational longer than you can remain solvent." In this context, that means that waiting for the Invisible Hand to fix the problem is a recipe for plenty of collateral damage. It also evokes Keynes's most famous quip (coined in a different context): "In the long run, we are all dead."

The BBC London story, however, offered an explanation that includes some useful real-life details. It begins by citing a credible data source showing that in 2025, 88 percent of London homes that had been put on the market for sale had not been sold six months later. The eye-opening part of the story is that there is evidently a problem in London with owners of housing units whose heat and hot water have been cut off, making it impossible to sell their homes. The current owners are left to create workarounds by heating water in makeshift systems, but they cannot sell their units even if they want to.

But wait, one might reasonably interject, would a new owner not merely contact the gas company and tell them to set up a new account? That is, why would a buyer care that the seller was a bad customer for the gas company? It turns out, however, that it is not deadbeat owners but entire blocks that have had utilities cut off because of leaks, followed by a failure of the relevant larger players to fix the leaks. As the narrator of the video explains:

With so many companies involved in owning and managing and running these whole buildings, problems can often take awhile to get fixed. The leaseholders who can't fix structural problems themselves are now caught up in a bureaucratic nightmare, as the companies who own and manage the blocks can't work out who should foot the bill. Meanwhile, they can't sell the flats.

The video goes on to note that many of the flats in London were recently found to be unsafe, which owners discovered after a deadly apartment fire caused people to check whether their homes meet the standards set by fire codes. Oddly, the narrator then changes the subject to high costs, blaming those on interest rates, taxes, "and extra regulations." Why do I call that odd? Because mere seconds after saying that too-loose regulations caused people to die in a fire and that other units have been found to be unsafe, she then lapses back to the old anti-regulatory blame game. But would we not want there to be a renewed commitment to safety regulations?

In any event, what all of that means is that perhaps there are not as many available flats in London as it seems, if the definition of "available flats" is limited to safely habitable flats and those with working utilities. All of which brings me back to my larger point that the supply/demand market solution is always more complicated than it looks, and often not because of supposedly excessive regulations or any such blame-the-government-first presumptions. When the property managements companies, utilities, original builders, and insurance companies are not working in a system with clearly defined contract rights and legal responsibilities, even the most powerful hand -- visible or not -- will struggle to fix the problem.

Earlier, I wrote that I would come back to the buy-versus-rent question. And here we are. By coincidence, I wrote a Dorf on Law column late last year about a London-based news organization run by very young journalists who had run a piece about how horrible it is that young people cannot buy homes rather than renting them. I quoted the narrator of that video, who offered this naive whopper:

Purchasing your own home is probably one of the largest and costliest that you'll make as an adult. However, it's also one of the most financially advantageous. No longer are you throwing money away to a landlord. You're investing in an asset, an asset that, historically speaking, reliably appreciates in value. In essence, the sooner you get onto the property ladder, the sooner you're financially secure.

Interested readers can look at my earlier column for a full explanation of why that statement is complete nonsense. I am returning to that quote today, however, to note that the BBC London narrator from which I have been quoting voiced this complaint toward the end of the video: "[W]e have sky-high social housing waiting lists, record numbers of people living in temporary accommodation, [and] young people finding it impossible to get on the property ladder."

There is that British phrase again: "get on the property ladder." The narrator spent almost the entire video describing people who are stuck owning property, ruing the fact that they bought but cannot sell, which perfectly illustrates my longtime argument against owning: buying a home (or getting on that ladder, if you will) is the worst kind of investment strategy, because it is an undiversified portfolio. If the property goes down in value or becomes entirely unmarketable, the owner is, one might colorfully say, scuh-rooed! Why would we worry that young people are being prevented by current reality from willingly climbing down the property ladder into that hole?

What would Count Binface do? He is right that we need to build more homes, and he most definitely did not say that we should make sure that they are filled by young people who will own them rather than rent them. More to the point, he at least seems to understand that the solution to the crisis in the housing market is not to let the private market sort itself out. Affordable, safe housing is very much a matter of public policy, and the solutions include not just "build more units" but other policies that are too complicated to include on the leader of the Recyclons' website.

- Neil H. Buchanan

If You Come at the King, You Best not Miss: The Uphill Battle for Supreme Court Reform

2026-09-28T07:00:00.000-04:00

Critiques of judicial supremacy and proposals limiting the Supreme Court's power are common on the left side of the legal academy these days. For most of the last sixty years, similar calls to control the Court came from conservatives upset about the liberal decisions of the Warren and early Burger Courts. Even during the Rehnquist Court era, from 1986-2006, most scholars on the American left were willing to roll the dice on the Supreme Court largely due to scholars like Laurence Tribe, Erwin Chemerinsky, and Akhil Amar, among many others, who came of age in the shadow of the Warren Court. But with the Roberts Court erasing many of the most important liberal decisions of the last 60 years and instituting a Republican Party list of priorities on the country, serious institutional critiques of the Court now come almost exclusively from liberals and progressives.

Given the political nature of constitutional law, this academic role reversal should not surprise anyone. We like to think that we live in special times when it comes to the Supreme Court, but we do not. Liberals in 1934 were as upset with the Court's blocking of New Deal programs and other interventions as people on the left are today, and no less so than conservatives reacting to cases such as Brown, Miranda, and Roe in the second half of the twentieth century.

Despite all of this scholarly commentary and political hand-wringing over the decades, judicial supremacy and Supreme Court overreaching continue unabated. Even with the obviously improper off-the-court behavior of Justices Thomas and Alito and the in-your-face hypocrisy of self-identified originalist justices consistently issuing decisions with little or no persuasive historical justifications, we are simply unable to meaningfully reform and rein in what is likely the most powerful Court in the history of the free world.

Into this quagmire enter two Harvard Law School Professors, Nikolas Bowie and Daphna Renan, and their new book, "Supremacy: How Rule by the Court Replaced Government by the People." Given their Harvard perch and the reach of social media, podcasts, and the internet generally, this book will get a lot of attention, much of it well-deserved. Supreme Court reform proposals are making it to the general public in new ways likely to broaden the audience for such ideas.

The authors' clearly-defined target, however, is not judicial power in general but what they call "horizontal judicial review." The authors propose, as did James Bradley Thayer and Oliver Wendell Holmes, Jr. before them, a clear distinction between the Supreme Court overturning federal statutes and the judicial authority to invalidate state laws. The latter is necessary to maintain the supremacy of federal law, while the former is a terrible evil damaging to democracy and the people's ability to govern themselves through Congressional elections. I do agree with the authors that judicial review of state actions is likely more crucial to our constitutional system than review of federal laws.

The authors distinguish our current system of judicial supremacy from what they (and others) call "democratic constitutionalism." They argue that both as an historical matter and a policy imperative the Supreme Court should not have the final say over what the Constitution means and how it applies. That job should be reserved for the people acting through Congress (and maybe the President, though that part is unclear). I do not think their historical account on this point is persuasive, but neither they nor I are originalists so I will not press the point.

The authors take the reader through a long and consistent pattern of egregious Supreme Court behavior, starting with Dred Scott and continuing through present day. With the exception of a few years here and there, the Court consistently favors the rich and powerful over the poor and powerless, and white people over racial minorities. Others have, of course, told these stories before but few have done it so well. Especially poignant are the sections of the book detailing how the justices severely curtailed federal efforts during Reconstruction to address our racial sins and how the Court stopped progressives during the Lochner era from lessening our country's oversized gap between rich and poor. Their argument that judicial review over federal laws has done much more harm than good over the centuries is powerful, persuasive, accessible, and important.

I also applaud the authors' descriptive critique of the institution regardless of whether one generally agrees or disagrees with the Court's jurisprudence over the course of American history. Here is a poignant example:

The United States stands alone among constitutional democracies in its extreme form of judicial supremacy, one that combines horizontal review with life tenure for federal judges and a nearly impossible to amend Constitution.... In many peer democracies ... courts possess no power to invalidate national laws without the legislature's explicit permission.

The authors argue that, when the justices overturn federal laws, they are "announcing that their understanding of what is constitutionally permissible is superior to that of literally everyone else, including the millions of people who elected [members of Congress] and the president who enacted the law." They maintain that this type of judicial overreaching "conflicts with the very idea of a democracy in which disputes are resolved not by one privileged group but by ongoing disagreements among members of a community with equal voice and decision authority." Their remedy is for the Court to completely opt out of judicial review of federal legislation either voluntarily or through federal laws requiring them to do so.

So far, so great. But at the center of this project are significant questions that make the book feel, to this long time critic of the Supreme Court, a somewhat lost opportunity.

First, the authors' distinction between judicial review of federal laws and judicial review of state laws leaves them with a major problem at the heart of their book which they try to solve in a way that simply does not work. If it is anti-democratic for unelected, life-tenured judges to overrule federal laws, what about overruling, say, 49 state laws in Roe v. Wade? Where the Constitution's text is unclear and the history contested, which it is in virtually all important (maybe even all litigated) cases, why delegate to a council of national judges the authority to have the final word on the Constitution's meaning rather than much more accountable town, city, and state legislatures (not to mention the people voting via state referenda)?

Yes, federal law is and needs to be supreme. But that fact begs the question who is best able to decide whether state statutes and practices actually conflict with imprecise (to say the least), constitutional limits. All of the pro-democracy arguments the authors employ to criticize horizontal judicial review also apply to vertical review. At the end of the book, the authors conclude that "there is no body of judges that can save democracy. It is up to us, the people, to govern ourselves."

Yes. But there is virtually no discussion in the book of the importance of federalism as a shield against tyranny. The authors are not unaware of this problem. Their solution, however, is quite odd. They suggest that many of the Court's important cases overturning state laws are not really constitutional cases but examples of the justices using federal statutes, such as Section 1983, otherwise known as the Ku Klux Klan Act, to overturn state laws with Congress's permission. They say that, "if a court enforces the Klan Act to enjoin an unconstitutional state law--as the Supreme Court did to end segregation in Brown or to legalize abortion in Roe, its judgment ... represents Congress' authority in enacting the statute, not simple judicial authority."

I found this descriptive account puzzling and assume others will also be surprised to learn that Brown and Roe were not constitutional decisions but statutory interpretation cases. This move creates several problems.

First, it gets in the way of the overall narrative. The authors repeat this descriptive account several times, and every time they did, I just stopped and shook my head. Although it is true that the cause of action in Brown and Roe came from federal statutes, until this book it had been assumed by everyone that the violations were constitutional in nature (meaning Congress could not reverse the Court's decisions on the merits anymore than states could).

Are the authors saying that Congress could, if it wanted to, effectively overturn the Court's constitutional decisions holding state laws unconstitutional by taking away the Court's jurisdiction or the cause of action against state officers authorized by Section 1983? Could Congress enact a federal statute expressly prohibiting the Court from striking down state laws that violate the freedom of the speech or impose cruel and unusual punishments? It is unclear if the authors mean that, so more clarity on these truly hard questions would have been helpful.

Maybe the authors are simply saying that we should reconceptualize the Court's past judicial review of state laws as deriving, not from Article III authority, but from federal statutes, which suggests Congress, not the Court, the legislature not the judiciary, is the source of vertical judicial review. It is true that seen through that lens, judicial supremacy is less of a problem for those who think its use is undemocratic. But the authors would then have to accept, as noted above, that Congress could expressly insulate states from being sued for any and all constitutional violations. The supremacy of federal constitutional law would be difficult to sustain under those conditions.

The authors are also strangely silent about the Court's role in reviewing presidential actions that may violate the Constitution. Do the justices need Congress's permission to do that as well? The answer is far from clear.

Finally, the authors spend virtually no time on the 4th-8th Amendments. This omission is important. If Congress enacted a law, say, allowing the Executive to imprison an alleged enemy combatant American citizen without a jury trial, the authors would have to concede that the justices could not overturn it. Or what about a federal torture law? Taking the Court completely out of the judicial review business for all federal laws raises serious issues the authors do not address. My intuition is that they would carve out some form of highly deferential judicial review of federal statutes that completely gut vital constitutional protections for criminal defendants, but the book never addresses that problem.

These questions are not meant to take away from the authors' stirring narratives and institutional critiques. But the book leaves open too many questions to directly hit its mark--judicial supremacy. What we really need are reforms removed from substantive disagreements with the Court's cases that the short term losers can accept as much as the short-term winners.

At the end of the book, the authors talk about a series of reforms, such as requiring a unanimous vote of the justices to strike down federal laws or federal legislation stripping the Court of jurisdiction. I agree with many of these ideas. But until the American public sees the Court in a fundamentally different way, not because of disagreement with decisions, but as an institution defective in original design, the chances of success are slim.

There is a lot to love about this book. But the authors' carve-out for vertical judicial review as well as the absence in the book of any serious discussion of presidential power or protections for criminal defendants make their project less clear than necessary to support their bold thesis. They shot at the king but only grazed him. That grazing is valuable but it is not likely to knock him down.

Given their prodigious talents and expertise, as well as their platform, I wish they had hit their target with a more fatal shot. Only from the ashes of a truly devastating and comprehensive critique of the nature of the institution will reforms emerge that might fundamentally transform the Court (non-court) into an authentic judicial body--one that has the potential to both foster democracy and provide some protection for our most fundamental rights without the negative consequences of our current system of judicial supremacy that the authors criticize so persuasively.

by Eric Segall

Three Examples of Seemingly Minor Issues that Shine a Light on Trump's Misrule

2026-09-25T07:55:29.067-04:00

Last week, Professor Dorf reminded us of "the risk of getting distracted by the relatively inconsequential nonsense emanating from Trump and his administration." The day before, I wrote a column in which I focused on one of the most important issues of our time -- the Trump regime's dystopian deportation system -- writing that "at the very least, it is clear that the US is acting in ways that we once would have described as only imaginable under an authoritarian regime like China's." Agreeing with the point that Professor Dorf would make the next day, I added:

People like me follow the minutiae of US news cycles, and we chase shiny objects like Trump's failing health, his obviously false promise to pay people $5000 each if Republicans win the midterms, his obsession with erecting monuments to himself, and so on. But while all of those stories are important in their own ways, the touchstone when assessing the current government should be that the US now scares countless people to the point where they choose not to enter the country ... .

I concede in advanced that today's column could be described as focusing on three of those shiny objects, but such a description would be inaccurate. Even though they are relatively trivial -- certainly by comparison to what is happening in America to immigrants and people who "look or talk" like immigrants (see the justifiably infamous "Kavanaugh stops") -- each of the three examples discussed below fits into the larger, frightening picture all too well.

The first example, and surely the best candidate of the three for shiny object status, is Donald Trump's announcement during his speech to the UN earlier this week that he was unilaterally changing Artificial Intelligence's name to Super Intelligence. This received a lot of coverage, along with a great deal of richly deserved ridicule, but this is one of those situations in which the fullness of Trump's inanity cannot be captured in the two or three very short clips that made the rounds. Here is the full transcript of that part of his speech:

There is no human right to illegal immigration, but there is a right to remain a sovereign nation, and we want to remain a sovereign nation, and so should you. The United States also totally rejects any attempt to construct a globalist scheme to control for the artificial intelligence being spoken of so much now.

Hereinafter officially called superintelligence, changing the name, and that the use of the word artificial makes intelligence fake. It makes it sound fake. And it is not fake; it's actually amazing, but we have to be careful. In fact, it is exactly the opposite of what it purports. From this point forward, all of United States documents, and hopefully the world's, will be changed to use the much more accurate term Super as opposed to Artificial.

So, it's Superintelligence. In other words, welcome to the new world of Superintelligence -- SI. SI; let's see if that goes. It sounds much better; it is much better and it's much more accurate. Let's see if I have any power. Maybe I do, and maybe I don't. We're going to find out pretty soon. Superintelligence -- every major new technology brings challenges, and Superintelligence is no exception

Yet the very same people who said we'll all be dead in 12 years because of global warming, a name since reborn to climate change because the planet was cooling, not warming, and nobody was dead. These are the same people that are now saying that AI is going to kill us all, that robots are going to attack us, and that everything is going to be a total disaster.

Same group of people. This is the group that came up with the Russia, Russia, Russia hoax; the Ukraine, Ukraine, Ukraine hoax; climate change; open borders. Whoever wins AI, you have to remember this. And now I say, whoever wins SI, whoever wins Superintelligence wins. That's the group that wins. And we're leading now over China by a lot and everyone else and we're going to keep it that way.

We're going to keep it very, very straight and very strong. I'm not going to stifle growth of something that will be bigger than the Industrial Revolution. Many say bigger than the Industrial Revolution or the internet itself. And we will be very careful, and that's why we have a Department of Justice, and we've already used it having to do with this very subject and used it very powerfully.

Everything worked out very well and very quickly, and other law enforcement bodies that will rein things in if we have -- to do that, but we will only encourage superintelligence. We're going to encourage it, not rein it in. We're going to watch it closely through the Department of Justice. The United States leads the world in superintelligence and will continue to do so safely and responsibly.

That is a long quotation, 477 words that took Trump more than three minutes to ramble through. But without reading the entire thing, it would be easy to think -- based on the clips that every TV news and comedy show played over and over again -- that he had another silly idea, tossed it off in a few seconds, and then moved on to other topics. But that obviously is not what happened. Imagine being a diplomat from any other country, sitting and listening to that logorrhea. He is wasting everyone's time with a meandering set of grudges that he somehow thinks fit into his idea of why AI needs to be rebranded.

So the point is not merely that Trump dropped another stupid idea into the world -- Lake ~~Ontario~~ America, putting tariffs on islands inhabited only by penguins, bullying the Nobel Peace Prize winner to give the medal to him, and so on -- but also that the subject matter is possibly much less important than the way it was delivered. The term "sundowning" has recently become a favored way to describe Trump's behavior, but one of the ways the media sanewashes him is that they simply are unwilling to devote the time or space needed to show what sundowning truly means in his case.

The second example relates to Trump's sudden decision to ban MSNow, Politico, and CNN reporters from the White House. There has understandably been a lot of reaction to this outrage, and the coverage generally has been very good. For example, we have learned that Trump hatched this latest goose egg when the closest thing to his White House handler was out of the building.

Similarly, there has been good coverage of various Republicans' ludicrous efforts to defend Trump. They have tried everything possible to muddy the waters, including this from Marco Rubio: "We’re not closing CNN,” Rubio said of the ban on CNN, MS NOW and Politico. “There aren’t a bunch of police officers or soldiers kicking down the doors of MSNBC or MS NOW, whatever it’s called, and arresting people and unplugging it from the grid." This, by the way, merely copies the argument by Rubio's fellow Florida Republican, Ron DeSantis, who argued that his administration's book bans three years ago were not truly bans, "because people can still buy them." Stupid then, stupid now.

And by the way, Trump himself was asked about the ban on the three organizations but could not figure out which ban he was being asked about. After he was reminded, he said, ah yes, "the ban on the free press." Kind of like when his apologists tried to say that the Iran war was not a war while Trump continued to call it a war (but predictably also said that is was not a war, but rather "small potatoes").

Much of the coverage and commentary about this latest outrage has, in fact, been surprisingly strong. Even so, there was a key switcheroo that Trump made in the middle of the controversy, and as far as I have seen, no one has talked about it. What has been noted is that, at both his joint press conference with Mayor Zohran Mamdani at Gracie Mansion and in the lobby of the UN after Trump's speech, Trump snarked at the press that they supposedly said they would not longer cover him, but he knew that they could never stay away.

To CNN's Caitlin Collins at the UN press gaggle, for example, Trump said: "I'm surprised that CNN is here covering me. You shouldn't be here, you should not ... you should not be here covering me. You said you wouldn't cover me, you shouldn't be here covering me." Collins pointed out that the UN invited CNN, but of course Trump talked over her. All of the late night comedy shows that I watched showed at least one of those clips, but the anchors missed the point by treating it as just another example of Trump's adolescent petulance.

Desi Lydic on "The Daily Show," for example, responded with this:

I say this as a woman, and with all due respect to women everywhere. But have you ever seen such a bitch. ... Yes, this man is a wannabe authoritarian, but he's also a wannabe Real Housewife. Picking fights wherever he goes, whenever he can because he's a messy bitch who lives for the drama.

I am not saying that Lydic is off base, and certainly it was a hilarious response. Even so, her response (and every other response that I saw) went for the shiny object. The substantively important thing is that nobody called out Trump for flipping the story back on itself. After the other networks boycotted the White House in solidarity with the three banned organizations, Trump somehow convinced himself that he was the victim of other people's drama. They refused to cover me, but here they are covering me!

But of course CNN never said, as Trump would now have it, that they would not cover him. He said that he would not allow them to cover him in the White House. When they then did their jobs by going to news venues to which they were invited, he claimed that they could not resist covering him. This is not just being "a messy bitch" but rather someone who cannot keep his thoughts straight from minute to minute, making up whatever self-aggrandizing claim that suits his mood.

That is no shiny object. That is a datum in the overall picture of Trump's dishonesty and mental decline.

Finally, unlike the two examples above of stories that were covered extensively but inadequately in key ways, my third example is of something Trump said that received almost no notice. Back on September 4, Trump threatened the Federal Reserve. Of course, he has done that before, including having his minions gin up fake charges against the former Fed Chair and by trying to fire a current Fed Governor. But what is different this time is the nature of the threat, because he warned the Fed that they had better do what he wants (decrease interest rates) or else. Or else what? From The Guardian:

Trump cited August’s strong jobs report as sufficient justification to lower rates, and warned that, if the central bank didn’t go along, he’d halt trade between the US and any nations with which it maintains a trade deficit.
“LOWER THE RATE OR I’LL STOP TRADING WITH COUNTRIES WITH WHICH WE HAVE A DEFICIT,” Trump wrote in a Truth Social post, aiming the appeal directly at his handpicked new Federal Reserve chairman, Kevin Warsh.
“The Fed Board, with its great new leader, must get smart - BE PATRIOTS for a change,” Trump wrote.

Did you catch that? He is not saying that he will harm the Fed or anyone in it. He is instead willing to harm millions of people if the Fed disobeys him. He apparently believes that the Fed's current chair and the other voting members would (sensibly) not want him to suspend all trade with most countries in the world, so he took millions of people hostage and said to the Fed, "Hey, if they end up getting hurt, it's your fault." Classic bully/abusive spouse behavior.

As I recounted in a column last week, Professor Dorf and I frequently -- and accurately -- described Republicans' threats to refuse to increase the debt ceiling (when a Democrat is President) as hostage-taking. Their stated position was that Barack Obama and Joe Biden at various points could capitulate to the Republicans' demands, or the Republicans would create an economic and constitutional crisis by allowing the country to hit the statutory (and completely arbitrary) debt limit, leaving the President with no constitutional path to prevent said crisis. That Republicans backed down every time does not mean that they were not taking hostages. It only means that (at least back then) they were unwilling to shoot so many innocent people.

Here, Trump is saying that he will do something truly crazy unless the Fed gives him what he craves. And unlike in the debt ceiling context, where the Republicans at least kept their demands within the realm of the federal budget -- not in a way that made any sense, but that is beside the point here -- Trump is threatening to do something harmful by changing a policy that has no connection to the Fed's policy tools. It is, however, a deranged threat that was quickly lost in the miasma of the other crazy things that happen every day in Trump's skewed world.

In sum, the three examples discussed here are not directly related to the most pressing issues facing the country and the world: the Iran war of choice, the affordability crisis, unspeakably cruelty and outright murder by ICE and CBP, and so on. Even so, these examples fill in and reinforce details of the larger picture. Trump makes impetuous and ridiculous announcements and then rambles at length about them in front of the world. He blames the victims of his jihad against the press. And he threatens to harm millions of innocent people unless the independent central bank does his bidding.

Those are serious issues, and too many people are missing what makes them so serious.

- Neil H. Buchanan

Playing the Two-Level Game With Trump: Greenland Edition

2026-09-24T07:00:00.000-04:00

To the relief of Greenlanders, Danes, and everyone who counts on NATO's continued existence, on Tuesday President Trump, Danish Prime Minister Mette Frederiksen, and Greenland Prime Minister Jens-Frederik Nielsen signed a three-party agreement that effectively and, by its terms, permanently, resolves the crisis Trump precipitated by his threats to use any means, including military force, to seize control of Greenland. As has been widely reported (e.g., here), the agreement falls well short of the "ownership" Trump claimed that the United States needed in order to ensure the national security advantages of a military presence in Greenland. Indeed, it is hardly clear that the agreement represents any significant change from the status quo ante.

So, naturally, the White House is touting the deal as a "historic," "unprecedented," and "landmark agreement" that "comes at no cost to American taxpayers." No cost, that is, except for the enormous erosion of U.S. credibility that came first from threatening a friendly NATO member with invasion and then by backing down.

Don't get me wrong. I'm glad Trump didn't follow through on the threat to invade Greenland or otherwise wrest control over it from its people and Denmark. My point is that the episode provides a window into how deal making works under Trump. It is almost entirely harmful but, as I shall explain at the end of this brief essay, Trump's approach has one apparent advantage: if counter-parties handle Trump delicately, they might avoid the ordinary pitfalls of what Robert Putnam famously called two-level games. But as I shall also explain, doing so is very challenging.

I haven't read Trump's ghostwritten Art of the Deal, so I don't know exactly what precepts Tony Schwartz credited Trump with believing or practicing in negotiations, but I can infer some principles from observing Trump's conduct in private business and especially during his presidency. From his business career, we can infer at least the following:

1) Exaggerate, mislead, or outright lie about your wealth and the value and quality of what you're selling.

2) Don't pay your bills.

3) Break promises whenever it appears to be advantageous.

4) Threaten and frequently file frivolous but expensive litigation.

Trump was not a successful businessman. Six of his businesses--including a casino--went bankrupt. Yet while those bankruptcies revealed Trump to be bad at actually running his companies, they did show him to be good at leaving others holding the bag for his failures. He also was, and remains, remarkably good at promoting his personal brand.

Despite greatly increasing his wealth while in office, Trump hasn't become a better businessman. True, Trump's cryptocurrency ventures earned him $1.4 billion in 2025, while the pre-presidency Trump University ended up costing Trump millions once one factors in the $25 million he paid to settle claims by the former students who sued him. But Trump hasn't got better at extracting money from suckers. Rather, as president he has exploited new opportunities for corrupt enrichment. The big investors in Trump's crypto ventures are not suckers. They are managers of foreign sovereign wealth funds and others who understand that their investments are not designed to make money for themselves but to purchase influence with Trump as president.

Still, fair is fair. I will give Trump credit for being good at corruption. That makes it all the more remarkable that he is so bad at making deals on behalf of the United States. The Greenland deal is typical. Trump blustered and threatened, but when push came to shove, he settled for a deal that didn't alter the status quo.

At least that's better than the Iran situation. First-term Trump withdrew from the JCPOA because he associated it with President Obama. Second-term Trump almost certainly could have gotten something like the JCPOA but he didn't want it precisely because it would look too much like the agreement he had spent years deriding. Thus, ignoring the warnings of military leaders, he launched a disastrous war that has achieved none of its strategic aims. Eventually the war will end and some sort of negotiated resolution will leave the Iranian regime in a much stronger position than before the war began. At that point, Trump will boast that he has achieved a "historic," "unprecedented," and "landmark" deal that none of his predecessors could have pulled off.

This sort of pattern can be found domestically as well. Nine law firms settled with the Trump administration, succumbing to his absurd executive orders (or in some instances what they worried would be forthcoming orders) that punished them for acting as lawyers for persons or causes Trump disliked. Those settlements included some required changes in hiring practices (mostly concerning DEI) but the big-ticket item was the promise to donate hundreds of millions of dollars worth of pro bono legal services to causes Trump approved. Some of that appears to include questionable legal services to government agencies, as highlighted by a letter to Skadden Arps by three congressional Democrats.

I share the concerns highlighted in the letter just linked but I want to focus on a different aspect of the agreements Trump cut with the law firms: they contain no mechanism for monitoring or even valuing the pro bono legal services. A little over a year ago, I had an eye-opening conversation with a lawyer at one of the firms that settled. This lawyer told me that there was utter confusion within the firm about what to count and how to bill. The lawyer did not say that the firm was padding its pro bono hours to reach the required dollar figure but did make clear that if the firm were to do so, the Trump administration probably wouldn't know and almost certainly wouldn't care. The important thing for Trump, this lawyer emphasized, was the headline with a big number. Once the administration got that, follow-up was unimportant.

There is a catch, however. Trump doesn't want to be seen as the paper tiger he so often is. Consider that early this year, the NY Times reported that Harvard and the administration were nearing a deal because Trump had dropped a demand that Harvard make a $200 million payment as part of it. But within hours of reading this reporting, Trump took to Truth Social to angrily deny that he had backed down and to demand a billion dollars from Harvard. Presumably, if Harvard had agreed to settle with the administration, even without agreeing to pay any money (as Penn settled without paying any money), Trump would have boasted about all the ways in which he had gotten Harvard to change. But once the dropping of the $200 million demand was portrayed as a backing off, the deal blew up.

The Harvard scenario is a variation on Putnam's examples of two-level games. Often when two national leaders are negotiating, it is useful for each side to portray the resulting agreement as a win. Insofar as the agreement includes win-win arrangements, that's easy to do. However, some elements may be zero sum. In those circumstances, each side will be inclined to exaggerate the favorability of the deal so as to maintain domestic political support from constituents. Yet too loudly declaring victory could be heard by the other side's constituents, leading them to withdraw their support and jeopardizing the agreement. This is the two-level problem. A leader must be able to signal to his own constituents that he got a good deal without thereby tipping off the constituents of the other side that their leader got a correspondingly bad deal because that could blow up the agreement.

There is an interesting twist in Trump's case. His constituency is not the American people, who currently have him at historically low approval levels. Rather, Trump is his own constituency. And although he lives in a bubble that mostly allows him to tell himself he really is the remarkable world-historical figure he imagines himself to be, some news filters through--especially indications that others regard him as weak or as having caved. World leaders who flatter Trump understand this dynamic very well. That's why the Prime Ministers of Greenland and Denmark are not boasting about how they got Trump to back down.

The two-level problem does not simply vanish, however, because leaders cannot control all the information. Trump can read in the Times that his agreement with Greenland and Denmark falls far short of what he had been demanding. Then, as with Harvard, he could become enraged and issue new demands.

The bottom line puts the public in an awkward position. The fact that Natalie Harp and others in Trump's inner circle try to shield him from bad news is generally harmful, as it contributes to his terrible decision making. But when Trump backs down from his extremely damaging threats, the public benefits from the bubble. In those circumstances, we must hope that Trump is sufficiently out of touch with reality that he doesn't realize he has been exposed as a blowhard. The TACO phenomenon depends to a large extent on Trump not learning or admitting to himself that he is chickening out.

-- Michael C. Dorf

We Can’t Be Originalists and Textualists Now

2026-09-23T07:35:36.658-04:00

In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court set forth a new test to determine whether a particular firearms regulation is in accord with the original meaning of the Second Amendment: “history and tradition.” At the critical step of the inquiry, the Court would essentially look to whether the challenged firearms regulation has a historical analogue. This “history and tradition” test is the new rage—it has found footing in Second Amendment jurisprudence, but the Court also employed this type of reasoning in Dobbs (reproductive rights) and Kennedy v. Bremerton (the Establishment Clause).

Several scholars have criticized the “history and tradition” inquiry as unworkable and as not appropriately capturing the contours of legislative power. I agree with these criticisms, but I write to make a separate observation—about the relationship between the newest form of originalism and textualism. My claim is that the “history and tradition” inquiry of originalism is in tension, and arguably incompatible, with textualism.

First, as a matter of definitions, originalism is a theory of constitutional interpretation that states that the original meaning of the Constitution, when discernible, should dictate the outcome of constitutional cases (that is, such discernible original meaning has priority in deciding cases over all other relevant criteria). Textualism is a theory of statutory interpretation that states the ordinary meaning of the statutory text at the time of enactment, when discernible, should dictate the outcome of cases involving that statutory text—that the original, ordinary meaning of the statutory text is given highest priority in decided statutory cases.

Originalism and textualism are not the same, but they are kin. Conservatives, and more relevantly conservative Justices, have tightly embraced both theories, arguing that both theories cabin judicial discretion, are more democratic, and provide a basis for objective judicial inquiry. (To be clear, I disagree, but I will demur on these points for now.)

In light of that, consider Wolford v. Lopez, decided last Term. The case concerned Hawaii’s law, passed after Bruen, “that prohibit[ed] firearms on private property open to the public without the express and affirmative consent of the property owner.” The Court struck down the law, as it failed the “history and tradition” test set forth in Bruen. That Court's application of the test proceeded as follows: First, the Court must determine whether the regulation in question activates the Second Amendment by impeding the individual right to bear arms. If so, then the regulation is presumptively unconstitutional, unless it is in accord with our history and tradition. To determine this, the Court must investigate whether there is a historical analogue to the regulation in question.

After finding that the law was within the ambit of the Second Amendment, the question then became about whether there were any historical analogues for the regulation. Hawaii proposed several, which we can group into two buckets:

(1) Laws, dating from before the first Founding, that (in exemplar language) “made it unlawful to ‘carry any gun or hunt on the improved or inclosed lands of any plantation, other than his own,’ without securing ‘license or permission from the owner of such lands or plantation.’” The Court termed these laws regarding “unauthorized hunting.”

(2) An “1865 Louisiana statute that made it unlawful ‘for any person or persons to carry fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor, other than in lawful discharge of a civil or military order.’”

The Court rejected both sets of analogues. On the second analogue, the Court observed that the Louisiana law was not widespread and thus did not represent the history and tradition of such firearms regulation. The Court went further to chastise Hawaii for relying on this statute, as it was part of Louisiana’s Black Code—and it was the intent of the drafters of the Fourteenth Amendment to repudiate such Black Codes.

Now, with respect to the first set of analogues, an examination of their plain text reveals striking similarities with Hawaii’s statute. With both, in order to carry a gun on someone else’s property, you needed to have previously secured their (explicit) permission. But the Court was unconvinced. Instead, the Court stated that if you look to the purposes behind these statutes, you understand their difference: the candidate analogues were not about carrying guns, but rather about the distinctive harms of unauthorized hunting, like loss of property and disturbance of tranquility.

The Court’s reasoning disputing the analogues leaves much to be desired. Among other reasons, that a law was not widespread does not tell us that it was beyond the constitutional limits. Additionally, the Hawaii law is targeted at combating the disturbance of tranquility—because people who carry guns onto another’s property may shoot those guns and disturb the property owner’s tranquility.

But back to the critical point: To understand the legal effect of the first set of historical analogues, the Court went beyond the ordinary meaning of the text at the time of enactment and instead looked at the underlying purposes of those laws. Had the Court limited itself to the ordinary text of the candidate historical analogues and then compared that to Hawaii’s statute, that was nearly a “historical twin” or “dead ringer.” But the Court instead told us that to really understand the legal content of those historical statutes, you must look at the legislative purposes and intentions behind those statutes. That seemingly repudiates the core tenet of textualism—that the ordinary meaning of the statutory text dictates its legal content. Consider what Justice Gorsuch wrote for the Court in Bostock as a paean to textualism: “If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives.” But that is precisely what the Court did in Wolford.

How might the newest Bruen-ized originalists respond? Some possibilities:

(1) They could reject Wolford as wrongly decided, or at least wrongly reasoned. They could agree that the Court should never have looked at the purposes underlying the legislation and instead it should have looked only at the ordinary meaning of the text of the historical analogues. But that does not seem to be how new originalists are proceeding. In describing the assessment of historical analogues under Bruen, Justice Alito says:

Determining whether [the historical analogues are relevantly similar] requires consideration of “how” the analogue restricted the keeping or bearing of arms—that is, whether it imposed a restriction similar to that imposed by the challenged law. And a court must also consider “why” the analogue restricted the keeping or bearing of arms—that is, whether its rationale was similar to that of the new law.

The Court’s originalists are all in on their inquiry into legislative purposes and intentions.

(2) They could contend that the consideration of such underlying purposes is really just understanding the broader context of the statutory text, which is consistent with textualism. Indeed, some prominent textualist scholars have argued for a greater consideration of context within their method. Suffice it to say, as a proponent of pluralism in (statutory) interpretation, I welcome this as a matter of methodology, but I bristle at calling this “textualism.”

(3) They could bite the bullet and admit that they have discarded textualism as a mode of statutory interpretation. I’ll just observe that this does raise further questions. Though it is true that originalism and textualism are distinct theories, they are motivated by similar considerations—like cabining judicial discretion, being more democratic, and being more objective. If originalism demands that we not heed the ordinary meaning of a statutory text, that raises related questions why we should limit interpretation to the original meaning of the constitutional text.

(4) Finally, they could try to have their cake and eat it too: they could argue that legislative purposes and intentions are important for understanding the context of statutes to inform the Constitution’s original meaning, but insofar as we are ascertaining the legal force of the statute itself, to apply that statute, we should confine ourselves to textual meaning. I do not see why this would be the case. Why would we have such different approaches to understanding the legal force of statutes simply based on which kind of text is ultimately being applied in the case? I don’t want to foreclose here that there may be some path forward to this kind of approach, but at the moment I don't see it.

Thus, the newest originalism seems to be in serious tension with textualism. I’m neither an originalist nor a textualist. But it seems like, even if one wanted to, you can’t be both.

-- Guha Krishnamurthi

Trump's Ban on CNN, Politico, and MS NOW is Plainly Unconstitutional: Is it Also Important?

2026-09-22T07:16:49.101-04:00

On Friday of last week, President Trump announced via Truth Social that he was "banning . . . CNN, MS NOW . . . and Politico . . . from the White House" in response to what he regards as their allegedly inaccurate reporting about him and his administration. Needless to say, the ellipses and words outside the quotation marks mask the much more piquant way in which the president expressed himself. To wit:

In short order, reporters for the three news organizations found that their "hard passes" granting access to the areas of the White House ordinarily open to properly credentialed journalists with security clearances had been deactivated. Wasting little time, yesterday the three news organizations filed a lawsuit. The complaint is compelling. It sets forth three distinct legal claims: (1) because there is a liberty or property interest in the hard pass, it cannot be canceled without notice and an opportunity to be heard (i.e., procedural due process), both of which were denied; (2) the cancellations were improper retaliation for protected free speech; and (3) the cancellations are a viewpoint-based restriction on access to government property, which is impermissible even when such government property is a non-public forum.

I could explain why each of those claims is likely to be successful but the exercise would be fairly tedious and would simply repeat what's in the complaint. Notably, the key to both the second and third claims in the complaint is that Trump was motivated by disagreement with and/or disapproval of the protected speech of the plaintiff organizations. In normal times, proving illicit motive is challenging but, needless to say, these are not normal times.

The complaint includes a footnote directing the reader to a video hosted on the White House's own website. For roughly the first half of the hour-long session, a seated Trump and members of his administration standing behind him tout an announcement about most-favored nation pricing on pharmaceuticals. During the Q&A (at the 53:16 mark), a reporter asks what exactly his ban on CNN, MS NOW, and Politico entails. The 80-year-old president pretty obviously can't hear what she is saying or figure out what she's asking about until the third repetition. At the point at which he realizes what she is asking, he says "Oh, the ban on the free press, right?"

If that were not a sufficiently smoking gun, Trump proceeds to ramble through an explanation of what he thinks is dishonest about the news coverage by the targets of his ban, with one tiny problem: he gives three examples, none of which involve CNN, MS NOW, or Politico. They involve, respectively, ABC, CBS, and the BBC. And of course, the first two examples are absurd.

Trump cites the multi-million-dollar settlements he extracted from ABC and CBS for, respectively: airing a segment in which George Stephanopoulos said Trump had been found in a civil suit to have committed rape (when the actual finding was sexual assault, a legal term the trial judge himself said was colloquially equivalent to rape); and promoting a 60 Minutes interview with Kamela Harris by editing between her answers to different questions. All reasonably well informed lawyers who are not in the tank for Trump understand that ABC and CBS essentially submitted to extortion by paying these settlements rather than risk regulatory retaliation. Trump is correct that the BBC did misleadingly splice together his January 6, 2021 speech, but that is hardly worth anything approaching the $10 billion in damages he seeks. And to repeat the main point, it has nothing to do with CNN, MS NOW, or Politico.

Accordingly, if the courts follow the law, an injunction will issue shortly, and reporters for the three disfavored organizations will have their credentials restored.

But suppose that doesn't happen. Suppose the plaintiffs draw a Trump-friendly judge who finds some procedural or other ground for denying relief. What exactly is at stake for the news organizations?

Trump routinely calls reporters (especially female ones) such terms as "dumb," "not a smart person," "terrible," and "ugly" if they ask him any question he doesn't want to answer. Even when he does answer questions, he typically rambles in ways that are completely unresponsive. Accordingly, one might think that participating in the charade of questioning Trump is actually harmful. It provides the illusion of normality and transparency. From this perspective, serious news organizations should have been boycotting Trump's press availability, in which case they wouldn't have been in a position to be banned.

To be sure, White House press credentials allow reporters to talk to people besides the president. I recently read Regime Change by Maggie Haberman and Jonathan Swan. A great deal of what they report about the inner workings of the Trump administration comes from sources inside the administration who did not wish to be identified. Access to such people is essential for investigative reporters like Haberman and Swan to do their job.

Even so, I very much doubt that White House insiders were talking in confidence to Haberman and Swan while they were in the White House. It seems much more likely that they met in private elsewhere or communicated via Signal or some other clandestine means. Physical access to the White House is probably only marginally helpful for investigative journalism.

The White House ban also excludes the three news organizations from the television pool (in which CNN has been a primary member and MS NOW a secondary member) and the print pool (in which Politico has been a member). These exclusions are significant less for the access now denied than for the prestige associated with them. Stripping the plaintiff organizations of the ability to participate in the press pool is a means of signaling that they are somehow less substantial than the outlets that remain.

Overall, the loss of White House press credentials does not materially disrupt the ability of the plaintiff organizations to report on Trump or his presidency, but that is not to say either that they should lose their lawsuit or that the action is unimportant. There are plainly enough concrete consequences to support a successful outcome in court.

As for importance, it would be shortsighted to note that the loss of White House access is a less consequential penalty than, say, the disapproval of a multibillion-dollar merger (which is the threat that led CBS to pay mere millions to Trump to settle his frivolous 60 Minutes suit). Stripping White House press passes from reporters with disfavored news organizations may be a mostly symbolic move, but it is of a piece with Trump's all-out effort to silence anyone who dares criticize him or even report completely factual information about the incompetence, corruption, or cruelty of his administration.

With each blow the bully lands, it becomes harder to resist further blows. CNN, Politico, and MS NOW were right to resist, and it is encouraging to see other news organizations (including Fox) standing with them.

-- Michael C. Dorf

The Abstract and Link to My Forthcoming Article: The Vulnerability of the Press, Academic Freedom, and Zealous Advocacy

2026-09-21T07:00:00.000-04:00

I'm pre-writing today's post on Sunday because by the time you read this, it will be Yom Kippur, and I'll be atoning for my various sins. Accordingly, I'll keep it short. I have a new article that addresses two related phenomena: (1) Trump's attacks on three categories of nongovernmental institutions that are essential to democracy (media organizations, universities, and law firms); and (2) the ways in which constitutional case law pays lip service to the importance of such institutions but in practice gives them no distinctive protection. I also explain the dual-edged nature of an institution's size: it to some extent can insulate an institution from attack but it also makes an institution more vulnerable because the larger an institution the more it depends on good-faith interactions with the government. The article concludes with some reform proposals.

The article won't be published in final form for nearly a year. Such are the vagaries of law journal publication. But in the meantime, you can read it here. Here's the abstract:

The Supreme Court of the United States has long acknowledged that a free press, academic freedom, and zealous advocacy are essential to democracy and the rule of law. However, Supreme Court case law provides little to no distinctive protection for the actors—journalists, scholars, and lawyers—or institutions—news organizations, universities, and law firms—associated with those activities and values. Yet such actors and institutions are not merely vital to a well-functioning constitutional democracy but also especially vulnerable to government coercion, as illustrated by the second Trump administration’s actions against disfavored news organizations, universities, and law firms. Courts should respond by applying existing constitutional doctrines with a thumb on the scale in favor of these democracy-preserving actors and institutions and suspending or reversing the presumption of regularity when government targets such actors or institutions for adverse action. Doing so would require some delicate judgments (such as who counts as a journalist) but would not be more difficult than drawing other distinctions the Supreme Court has endorsed with respect to First Amendment actors (such as who counts as a “minister” for purposes of the Religion Clauses).

-- Michael C. Dorf

Lake Ontario, $5K Giveaways, and Bestiality: Are We Being Distracted by Trump's Inconsequential Craziness?

2026-09-18T07:00:00.000-04:00

My latest Verdict column was published on Tuesday. It addresses President Trump's proposal to pay every adult U.S. citizen $5,000. To summarize: Trump has no power to do this without congressional authorization; such authorization would be a very bad idea because injecting over a trillion dollars into the economy would fuel inflation that would likely eat up any benefits; the giveaway would be regressive because inflation is felt more by the poor than by the wealthy.

The new column follows on the heels of my previous Verdict column, accompanying essay on this blog and then a follow-up essay on the blog on Trump's renaming of Lake Ontario. In the Trump-is-stranger-than-fiction category, my first blog post on the Lake Ontario issue was titled When Will Trump Try to Change "New Mexico" to "New America?" The answer turned out to be six days later.

It is no doubt entertaining to ponder the legal and policy questions posed by some of Trump's most outlandish ideas. It's also fun to delve into the absurdities from the team of sycophants and hacks who fill the top ranks of his administration. For example, much of the media attention paid to FBI Director Kash Patel's appearance before the Senate Judiciary Committee earlier this week focused on exchanges about the Bureau's recent decision to no longer disqualify job applicants who have previously engaged in bestiality. Funny, right?

I even thought about writing an essay for this blog with the title "Kash Patel is Wrong About Almost Everything, But He's Right About Bestiality." That's because Patel's explanation actually made sense. Prior to the policy change, the FBI told applicants that "Engagement in prostitution or bestiality" was an automatic disqualifier. My first thought was that this had to be limited to people who were convicted of crimes involving prostitution or bestiality, but that turns out not to be so. Here's the old FBI FAQ page that quite clearly identifies felony convictions as a separate category. One could literally have "engaged in prostitution or bestiality" in the sense of having been forced into it and nevertheless be disqualified. So the prior rule was grossly unfair.

If I were to write that full essay on Kash Patel and bestiality, I might quibble with the notion that someone who is forced to do X has "engaged" in X. The word "engaged" can--and in this context undoubtedly should--connote some voluntary act. But Patel nonetheless had a point. Even if the FBI in screening applicants would not disqualify someone who had been trafficked against their will and forced into prostitution or bestiality, an applicant who had been the victim of trafficking could read the FAQ page and think they'll be automatically disqualified and so not even apply.

But do you see what I did there? Even in an essay on the risk of getting distracted by the relatively inconsequential nonsense emanating from Trump and his administration, I got distracted enough to write three paragraphs (four if you count this one) about Kash Patel and bestiality without getting into the main concern one should have about his leadership of the Bureau: he has purged experienced agents and politicized the use of federal law enforcement resources.

Thus, I worry that I am being distracted by the flood of amusing but ultimately stupid actions by Trump and his administration and thereby failing to focus sufficient attention on the more consequential outrages that they are perpetrating. A short list of those consequential outrages would include: the multi-pronged effort to thwart U.S. democracy; censorship of criticism; the disastrous war of choice with Iran that has caused numerous civilian and combatant deaths, undercut the security of the U.S. and its allies, and led to shortages of fuel, fertilizer, and other essentials in the developing world; multiple policies that seem designed not only to cut back on efforts to slow global warming but to accelerate it; likewise not merely ending efforts to combat disease but spreading it; rampant corruption; blithely ignoring the risks posed by AI; and of course, tariffs, more tariffs, and still more tariffs.

In my own defense, I'll say that I haven't been ignoring any of the foregoing serious actions by Trump and his minions. I've addressed all of them in some form or another, in many instances multiple times, on this blog, in my Verdict columns, in my scholarship, in public testimony, and in a considerable amount of pro bono consulting I've been doing with lawyers litigating against the administration in various respects. So, on a personal level, my defense, I suppose, is that I'm doing my bit but I need a little comic relief now and then.

However, in raising the distraction question, I don't really mean to be asking whether I personally am falling for the shiny objects of outrageous but ultimately clownish nonsense and thus taking my eyes off the prizes of democracy, human rights, a livable planet, and the like. I'm asking for the society and culture at large.

With respect to a great many people, however, the question doesn't make sense. That's because they simply aren't paying attention to any political or policy news. According to a reliable survey the results of which were released earlier this week, more than a third of Americans cannot name all three branches of government. More evidence from an earlier survey: "1 out of 3 people can't name their governor, 4 out of 5 can't say who their state legislator is and roughly half don't know whether they have a uni- or bicameral legislature."

Meanwhile, it's safe to assume that some substantial fraction of the people who are minimally familiar with the operation of government nonetheless aren't following political or policy news closely. From Bill Clinton's "it's the economy, stupid" to the contemporary focus of politicians on issues of affordability, sophisticated political actors apparently have concluded that voters care almost exclusively about pocketbook issues.

Of course, many voters do stay informed about a wide range of subjects, so one still might worry about distracting them with stories about Trump renaming bodies of water and making outlandish campaign promises or about his FBI Director, Secretary of "War," and Health and Human Services Secretary beclowning themselves by, respectively, talking about bestiality, requiring service members to meet his weight and grooming standards to be seen on camera, and working out in jeans. If only some of the news is going to filter to the mass of the public, shouldn't it be all more serious stuff?

Maybe, but we all need and want entertainment too. Moreover, at least some of the less serious but amusing stupid things Trump and his administration do can help reinforce the more serious matters. In the latest NY Times/Siena Poll, both registered voters and likely voters said the label "elitist" was a better fit for Republicans than for Democrats by a margin of 10 percentage points. That's a shift from 2022, when the numbers were essentially tied and represents an important opportunity for Democrats--whom Republicans have for years been trying to characterize as elitist. Not every story of lesser consequence reinforces the message that Trump and the Republicans are elitist and thus out of touch with voters, but many do.

Thus, stories about Trump's effort to rename things either for himself or simply because he believes he is entitled to decide everything for everybody, reinforce the (very accurate) image of Trump as egotist who thinks of himself as above the People and the law. So do his building projects. These and other stories of Trump as rich guy who occasionally pretends to care about ordinary people but obviously doesn't dovetail very nicely with more serious matters--such as his rampant corruption and weaponization of the Justice Department and other aspects of the federal government.

Admittedly, not every story of Trump or someone in his administration acting as a relatively low-stakes buffoon reinforces the instances of his more consequential and nefarious actions, but almost every such story can be made to fit into the frame of one of the many serious threats Trump and Trumpism pose. Take, for example, Trump's absurd reaction to the Fed's unanimous and clearly correct decision to raise interest rates this week in the face of increasing inflation fueled by Trump's tariffs and the Iran war he started. Obviously, Trump wasn't going to accept responsibility for the economic conditions that led the Fed to raise rates. Nor was he even going to acknowledge that a rate hike was the right call; he thinks the Fed's benchmark rate should be 1 percent (which is plainly nuts).

Ridiculing Trump as an economic ignoramus is easy enough, but it turns out that even this story fits nicely into the frame of Trump as self-centered egomaniac unconcerned about others. His main reaction to the Fed rate hike was to make it about himself: “The problem they have is that we have the greatest economy in history … so they’re raising that only for political reasons, and that’s a raise against Trump.”

Bottom line: Enjoy the random acts of stupidity from Trump and his ship of fools; they're entertaining and perhaps helpful in arousing the People to the much greater harms this mad king inflicts.

-- Michael C. Dorf

What Fear (or not) of Crossing Borders Says About the United States Today

2026-09-17T11:00:00.000-04:00

Not long ago, traveling to the United States for business or academic purposes was a relatively simple matter for non-US citizens. Perhaps more accurately, despite all of the complexities involved in obtaining the relevant documents, bookings, funding, and so on, there was at least one question that was so basic and obvious that it simply never came up: Will I be turned away at the border, or even detained for days, weeks, or months?

Those days are long gone, ending on January 20, 2025. And although most of the Trump regime's activities are aimed at poor people and people who are not White Christians, there have been notable examples of people who do not fit the profile, including a 35-year-old Canadian actress who was held in detention for twelve days after applying for a temporary visa to work in the US. She had no criminal record.

Similarly, a British couple in their sixties were both held in detention for 42 days, with the wife held even though only her husband's visa had expired. The article linked in the previous sentence includes other examples, focusing on people who not only are not criminals but who might have had very good reason to think that their being fluent in English, White, and not poor would have kept them out of the dragnet set up by Trump upon reoccupying the White House. (The British woman said: "Individual ICE agents get money per head that they detain – the guards told me that." ICE denies that assertion, of course.)

Even short of being imprisoned, the stories of not-the-usual-suspects types of people being hassled (at best) started to make the rounds. For example, "[a] French scientist was denied entry to the US this month [March 2025] after immigration officers at an airport searched his phone and found messages in which he had expressed criticism of the Trump administration, said a French minister." The scientist had flown here to attend an academic conference.

All of this set the background for a two-part column that I wrote last Fall here on Dorf on Law. There, I described how the academic organization with which I am most familiar (the Law & Society Association, or LSA) had reacted to inquiries from scholars who are based outside of the United States, asking to be able to attend LSA's annual conference virtually. Without repeating the details here, it is sufficient to say that the decision-makers at LSA handled the situation in both 2025 and 2026 very poorly, in the latter case refusing to provide even the wholly inadequate virtual option that it had thrown together the year before.

All of which communicated a clear message, in essence: If you want to attend the huge annual conference sponsored by an academic organization -- one that loudly and proudly bills itself as dedicated to "connecting sociolegal scholars from around the world" -- then you have to get on a plane and take your chances crossing the US border, because we are not going to give you an alternative.

In Part 1 of my column discussing all of this, I added pointedly that

LSA is not an organization that makes merely pro forma claims about wanting to become a more international body. It has, in fact, as a matter of policy held its conferences every few years in non-US cities. True, those cities are not part of the Global South (with the lone exception of Mexico City in 2017), but the non-US conferences are explicitly part of the association's stated efforts to expand its conversation beyond only US-based scholars.

As it happens, LSA's next annual conference has now been announced, and it will be held in Hong Kong in June 2027. I organize slates of tax-related, interdisciplinary sessions at the conference every year, so I sent out my annual email calling for submissions yesterday. Here is what I wrote to my list of several hundred potential attendees:

For those of you who have been waiting for an opportunity to join us at a Law & Society Conference outside of the United States, I have good news for you!

The Law & Society Association (LSA) will host its next Global Meeting from June 22 to 26, 2027, in Hong Kong. ...
The good news that I mentioned above is that the conference will be in-person in Hong Kong from June 22-25, 2027. This means that those of you (actually "us," because this has affected me as well) who have quite reasonably worried about entering the US under the current policy situation will be able to attend the conference without having to worry about any of that.

For the record, LSA has added a unique virtual option for 2027, sticking with an in-person-only requirement for all but the final day of the conference, but then making that last day all virtual. That, however, is not my focus here.

Instead, I want to share an emailed response that I received from a senior tax scholar in the UK, who articulated a point that I had thought about mentioning but chose not to include in my invitation email:

I can't help musing on how Hong Kong has apparently become more acceptable than the USA. I totally get your concerns about the USA, but last time I was in HK there were students and others on the streets protesting the lack of democracy and there are still people in prison who I don't think should be, plus many have fled to the UK amongst other places as a result of the politics in HK. But I know views differ.

It does not affect me as I shall not be submitting anything or attending, but I did think it was worth mentioning this as I found it somewhat ironic.

Although I have no doubt that views differ, I am in complete agreement with what my colleague wrote. It is indeed ironic that people have enough concerns about traveling to the United States with Trump in charge that the thought of going to Hong Kong somehow looks like (in my words) "good news" -- with an exclamation point.

Is this simply a matter of salience, with people like me seeing the US in a negative light merely because we are familiar with it and might be prone to overstating how bad the Trumpian style of authoritarianism is? Possibly, but I think not.

First, there have been (and still are) many people being held in American prisons and detention centers who, in my colleague's phrasing, "I don't think should be." The US under Trump is trying to seize and deport one million people per year, and many of them end up in prison or other detention, where many have died. Some people were treated brutally for no other reason than having written or said things that the Administration dislikes.

In July of this year, more than half of ICE arrests were of people who had not been convicted of -- or even charged with -- a crime. And even those who are not ultimately deported are subject to inhumane treatment, including conditions in detention that shock the conscience (of those people who have consciences). I have not seen any comparisons between the US's treatment of wrongly seized people and how things are handled in Hong Kong, but at the very least, it is clear that the US is acting in ways that we once would have described as only imaginable under an authoritarian regime like China's.

Second, the audience for my email was specifically people who are not to my knowledge likely to be harassed or jailed when traveling to Hong Kong. I will, of course, monitor this closely in the coming months, but the Chinese government simply does not seem to care about people who show up for a couple of days to attend professional events. Again, however, I could be wrong.

Third, plenty of Americans have also fled to the UK and elsewhere, for what amounts to the same reasons that people in Hong Kong are fleeing what had been their home.

In any event, I write all of this to agree with what my British colleague wrote. Indeed, I think it fair to imagine that she used the word "ironic" precisely because it has in fact become shockingly accurate to make the comparison.

People like me follow the minutiae of US news cycles, and we chase shiny objects like Trump's failing health, his obviously false promise to pay people $5000 each if Republicans win the midterms, his obsession with erecting monuments to himself, and so on. But while all of those stories are important in their own ways, the touchstone when assessing the current government should be that the US now scares countless people to the point where they choose not to enter the country, even for something as bland as an academic meeting.

Most fundamentally, the country's immigration system has become a dystopian nightmare, a change in policy that was motivated by bigotry but is being pursued so maniacally that it can now be dangerous for anyone to be anywhere at any time. No wonder people no longer want to be here.

- Neil H. Buchanan

Fears of Extinction Events, with and without Plausible Stories to Back Them Up

2026-09-16T15:21:20.887-04:00

Are human beings (and maybe all other living things) going to be killed off ... soon? And if so, what will cause the catastrophe to come about? My working title for this column was "Constitutional Crises, Debt Crises, and Skynet," but for reasons that will soon become clear, that framing ended up being too narrow. We humans have spent centuries conjuring up various ways in which the end might arrive, proving ourselves to be quite imaginative in coming up with an impressive range of end-times scenarios.

Anyone who has been even casually following the news recently will have seen the sudden wall-to-wall coverage of apocalyptic warnings by various insiders from the world of Artificial Intelligence, or AI. (That label is still a misnomer, the accurate term being Large Language Models, but I remain unwilling to tilt at that particular windmill.) Semantics aside, the story that has understandably caught everyone's attention comes from a software engineer who resigned from one of the AI companies, announcing that there was a decent chance that AI would kill all of humanity soon.

Some reports are saying "within a decade," whereas others say "by the end of the decade," which is a fairly large difference, given that the current decade will end in three years, three months, and fourteen days, but of course all of that is entirely speculative and not meant to be precise. Soon, or soon-ish, is the message. The point is that now, politicians in both parties are freaking out, whereas Donald Trump has decided to embrace AI fully and claim that he alone can protect us from any problems posed by a technology about which he knows absolutely (and maybe even literally) nothing. I know that we all feel better now.

In my recent attempts on Dorf on Law and Verdict to debunk the hype around the ridiculous "$40 trillion US government debt will doom us all" news cycle (perpetrated by debt scolds and their allies at The New York Times), I expanded on a point that Paul Krugman raised about the doomsday predictions: What, exactly, is the mechanism? That is, a convincing panic-inducing story cannot merely be that, say, "government debt will cause a bond market crisis that will kill us all."

As I put it in that Verdict column, "when we are told that we must at all costs avoid a purportedly horrible fate, we should at least demand to know exactly how likely that fate is and how bad it would be." And we cannot know any of that without having at least a decent guess as to what the steps are that will take us from A to World War Z.

Speaking of which, it is obviously not only AI and government debt that have grabbed people's attention as possible end-of-days stories. For decades, zombie movies have captured our imagination, with variations that are fully mystical (undead zombies) as well as those that at least purport to have a cause (rage zombies), with the unjustly maligned movie "World War Z" falling into the latter category. And long before zombie movies came along, there have been stories about vampires and other beings that might or might not entirely wipe out humanity.

Actually, once I started to think about the many ways in which humans have imagined their own erasure, I felt overwhelmed by the ubiquity of it all. Meteors crashing into Earth, alien invasions (of the "Men in Black" sort, not the Stephen Miller fascistic sort), and on and on have always been with us.

Is the AI story just another example of "Jaws," the 1975 movie thought to be the first true summer blockbuster, which scared the living hell out of people, wrongly causing them to believe that shark attacks are an important thing for everyone to fear?

To be clear, any Armageddon story can be contrived with some kind of mechanism underlying it. Christian evangelists have said for as long as anyone can remember, for example, that God will inflict his wrath on people who tolerate "the gays." Mechanism: (1) Humans defend LGBTQ+ civil rights, because all people deserve dignity, (2) God gets angry, (3) The All Powerful One ends the world that He created, most likely in a fire of damnation.

On a more prosaic level, the oft-invoked scary crisis regarding US government debt does have a story that not only might one day happen but indeed has happened a few times in history, with a government issuing so much debt that the financial markets lose all confidence in the country in question, selling off financial assets and thus destroying the economy by making assets worthless.

As I noted in my Verdict column, however, that story is not enough to cause reasonable people to start digging fallout shelters. (Oh right, nuclear war is another favorite disaster scenario!) I quoted Krugman's response to the possibility of a Greek-style crisis happening in the United States, which (unlike Greece) issues debt in its own currency: "As far as I can tell—and I’ve studied the issue at length—there are no historical examples in which this happened.'"

Perhaps I should call myself on the carpet here as well, not in predicting a government-debt-fueled financial crisis but rather a constitutional crisis coupled with a monetary crisis. The disaster scenario in my writing (frequently co-authored with Professor Dorf) over the years concerns Republicans' hostage-taking via the debt ceiling. I/we have noted the inevitable constitutional crisis that would follow from the President being forced to choose among only illegal options, putting him at unavoidable risk of impeachment and removal from office.

That would be plenty bad, but I/we never claimed that that alone would be an extinction event. We did, however, call out the people (including Krugman, as it happens) who were saying that the President could avoid all of that by having the Treasury embrace the Big Coin Option -- exploiting a supposed legal loophole to mint a platinum coin carrying any arbitrarily large nominal value. That, we said, would create a monetary crisis and thus destroy the global economy.

How? The mechanism there is: (1) A President suddenly says that he can create trillions of dollars at his whim, (2) people are confronted by the fact that money is a social delusion (necessary and useful, but still a shared delusion), (3) being forced to acknowledge the illusion makes people no longer think that their money is valuable, (4) everyone loses the trust on which any financial system works, (5) economic collapse.

I still believe everything in that particular disaster scenario, even though there are no examples of it happening before. But even though there has never been a Big Coin-triggered crisis, history is littered with examples of money losing value the second that people realize that other people no longer accept whatever they had been happily accepting as money. (This problem can happen with gold and other commodity moneys as easily as it can with government-printed currencies.)

What does any of this tell us about the sudden panic over AI? To their credit, quite a few people have been asking, in essence: "How, exactly, will this happen?" It is not enough merely to talk about Skynet and Terminators, with the possibility (which science fiction writers have been toying with forever) of the machines at some fateful point deciding that humans are the problem, or at least expendable.

In that sense, there is at least the germ of an idea of how the AI extinction event would work, with machines becoming capable of controlling systems and taking steps (whether "conscious decisions" or not) that kill people. But could happen here is exactly the same as in the government-debt crisis scenarios. The issue is whether it will happen in any plausible scenario.

How is that issue being addressed? Not particularly well.

In a recent BBC interview, for example, a co-founder of Anthropic offers little more than the warning that AI is potentially dangerous. Starting at the 1:12 market of the linked video, he says that "... the technology's got substantially more powerful, and those risks which were once academic or theorized, we can now see the early signs of them." The interviewer asks him to be more specific (asking about "swarms of AI taking over the internet" as one example), but the response was fairly unhelpful: "The basic risk is, how well do you fancy your chances at being able to deal with the risks of a system that is a hundred times smarter than the smartest person on the planet? I think that your chances of dealing with that and getting out in a safe way is pretty low."

Sure. But what could happen, exactly, and how? "[Y]ou need to control AI technology because you're making things that might be smarter than people. Things that are smarter than people could be really, really, really dangerous." Hmm. Later in the video (at the 3:35 mark), the closest we get is a reporter quoting other experts saying that "unchecked, the economic impact could be unprecedented white-collar unemployment."

I am genuinely fighting my urge to be snarky here, because the guy from Anthropic is not obviously and completely wrong. Yes, powerful things can get out of control, and he does say that what he is looking for is a policy response that requires "kill switches" to keep human beings in control. That is all to the good, but the skeptic in me cannot help but notice that the doomsday scenarios still sound an awful lot more like "We're all gonna die!!" than convincing hypotheticals of cause and effect.

Meanwhile, a colleague pointed out to me in a recent conversation that we have an actual doomsday scenario that is fully and obviously in motion as we speak, one for which the mechanisms have been laid out for decades but that has been allowed to grow worse every day. She was, of course, referring to the climate crisis.

And it is only fitting that Trump's intervention on the pro-AI side of the recent panic pointedly compared it to climate concerns. As the AP reported two days ago: "'AI taking over the World, destroying Humanity, and all other things bad, is a HOAX,' Trump posted on social media, later suggesting that those calling for guardrails on the technology had also warned about climate change, which he also called a hoax."

So that is the ignoramus's version of skepticism. Outside of that, however, there is nothing wrong with adjusting our assumptions and becoming more cautious when it comes to AI. When the doomsayers are able to be less vague, that should change the conversation. But will it? The Trump approach on the environment (which has been the Republican Party's approach for decades) simply rejects all bad possibilities out of hand, because it is inconvenient to them to admit the truth. They might already have decided to do the same with AI.

For everyone else, however, even a great deal of skepticism should not be confused with a stubborn refusal to look at evidence and arguments. On AI, I remain skeptical. It is surely more likely to kill us off than a meteor strike or the rise of the undead, but we have a lot of work to do to figure out the genuine dangers and thus the best responses.

- Neil H. Buchanan

In the Vote-by-Mail Case, Justice Alito is Back to Victim Blaming and Guerrilla War

2026-09-15T10:02:28.136-04:00

Yesterday the Supreme Court issued a one-paragraph order rejecting the Trump administration's application for a stay of the injunction against implementation of the Post Office's new rule that would have likely disenfranchised a great many voters, deterred many others from voting by mail, thrown the midterm elections into chaos, and--in light of asymmetrical use of mail voting by Republicans and Democrats since the pandemic--skewed the midterm election results in favor of Republicans.

The decision was welcome news for big-D Democrats but more importantly for small-d democrats, i.e., people who care about preserving what's left of American constitutional democracy. We can breathe a sigh of relief, albeit a small one, given that Trump and the Republicans continue to make further anti-democratic maneuvers. They have already used mid-decade hyper-partisan gerrymandering to tilt the playing field and might send ICE and other federal law enforcement officers to the polls, seize ballots, and even unleash a January 6-style mob.

Even so, the fact that six Justices, including three Republican appointees, unequivocally rejected an important aspect of Trump's war on democracy is news worth celebrating. Accordingly, I hereby celebrate.

But what about the other three Justices? Justice Kavanaugh equivocally rejected the Trump administration's stay application. In what I'll acknowledge as principled consistency with his invocation of the so-called Purcell principle in cases favoring Republicans, here Justice Kavanaugh concurred in the order on the ground that the application came too close in time to the election. Thus, he found that implementation of the Post Office rules at this late date would be arbitrary and capricious. Kudos on this point.

It's nonetheless disturbing that Justice Kavanaugh also said that he might well reach a different conclusion on a more relaxed timetable. Based on the briefs submitted to the Court, he said that there's "at least a fair prospect that the final rule falls within the Postal Service’s statutory authority," despite its obviously pretextual basis.

What pretextual basis? The Trump administration contended that the Post Office rule is aimed at detecting and combating voter fraud that the best empirical evidence shows is essentially nonexistent. It cannot possibly justify the Post Office's sweeping measures that would disenfranchise something like thousands of eligible voters for every case of fraudulent voting it detects. And yet, Justice Kavanaugh thinks there's a fair prospect that the final rule is within the Post Office's authority.

Justice Alito, joined by Justice Thomas, goes further: he doesn't think there's a mere "fair prospect" that the Post Office's rule is legal; he thinks the Trump administration "is likely to succeed on the merits."

In part that's because Justice Alito thinks the plaintiffs lack standing but he also says the government should probably win on the actual merits and that the balance of the equities favors the government. Let's examine that last point closely because it is the most disturbing part of the Alito/Thomas dissent. Justice Alito writes:

the Government has a strong interest in enforcing the rule, and implementing it will also “enhance the visibility of Federal Ballot Mail” in order to better detect election fraud. 91 Fed. Reg. 54972. On the other side of the balance, the plaintiff States invoke the practical effects of implementing the rule close to the midterm elections. I take that problem very seriously, but it is not enough to convince me to deny the application.

Neither side of that analysis is persuasive. On the government side, Justice Alito cites the Post Office's own regulation claiming that its rule will enhance the visibility of Federal Ballot Mail. But why is that important? Is there currently some problem with the visibility of mailed ballots? Even Justice Alito doesn't suggest that there is. Instead, he acknowledges that the supposed justification for the Post Office rule is "to better detect election fraud." But he cites no evidence, because none exists, that there is any substantial problem currently being caused by election fraud via mailed ballots. So the harm to the government from failing to grant a stay not only isn't irreparable; it's nonexistent.

Meanwhile, Justice Alito's claim that he takes the problem that States would face in trying to comply with the Post Office's rule "very seriously" is about as credible as Senator Susan Collins saying she's "very concerned" about . . . well, just about anything she either votes for anyway or votes against only so long as there are enough Republican votes for the measure to pass.

Justice Alito gives two reasons to discount the impact of the Post Office rule on the plaintiff States. One is that "[t]welve States supported the rule [in the lower courts] and asserted that compliance at this time is practicable." Yet the fact that it was only twelve States actually cuts against Justice Alito's view.

It should surprise no one to learn that the twelve states that supported the Post Office rules are all led by Republicans. They are: Alabama, Florida, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, and Texas. What's notable is not that twelve Republican-led states would support a Trump-led initiative to disenfranchise Democratic voters but that so many didn't. There are currently 26 states with Republican Governors and 27 with Republican Attorneys General. That means that a majority of Republican-led States were unwilling to assert that they could readily comply with the Post Office's rules. And of course, no Democratic-led states were among the twelve.

Justice Alito's second reason for discounting the harm to the States is that he blames them for it. By filing lawsuits in April to block President Trump's executive order telling the Post Office to adopt restrictive requirements for mail-in voting, Justice Alito says, the plaintiffs delayed the Post Office's adoption of a final rule until such a time that implementing it would be difficult.

Readers familiar with Justice Alito's broader oeuvre will recognize this victim-blaming move as a more-than-a-decade-old rerun. In Glossip v. Gross in 2015, the Supreme Court, in an opinion by Justice Alito, rejected an Eighth Amendment challenge to the use of the drug midazolam in executions, despite substantial evidence (detailed from the record in Justice Sotomayor's dissent) that it causes a torturous death. Justice Alito's opinion included the implicit argument that any avoidable suffering caused by midazolam was the fault of "anti-death-penalty advocates" who had "pressured pharmaceutical companies to refuse to supply the drugs [previously] used to carry out death sentences." He had made the point even more directly during the oral argument in Glossip when he pointedly indicated that he was not inclined to show sympathy for Glossip and his fellow death-row plaintiffs when capital punishment abolitionists had waged "a guerilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain."

For the sake of argument, let's assume that Justice Alito is right in both settings: absent the campaign of death penalty opponents and the litigation by voting rights advocates, states wouldn't have used midazolam and the Post Office would have promulgated its rules earlier. Even so, how is it remotely fair to punish people who were not themselves participants in the respective campaign and litigation by subjecting them to a torturous death (in Glossip) or disenfranchisement (in the Post Office case)?

The short answer is that for Justice Alito (and Justice Thomas), it is all guerrilla warfare, in which he makes no distinction between combatants and civilians, between the activists he regards as the enemy and the innocents whose interests they represent.

-- Michael C. Dorf

Once More Into the Breach: The Incoherence of the Personal Injury Requirement for Standing

2026-09-14T07:00:00.000-04:00

The Supreme Court’s fabricated standing doctrines are not grounded in text, history, tradition, or common sense. Standing case law is so incoherent that finding supporters of it is virtually impossible, and that includes folks on the left, right, and in the middle of the political spectrum.

The cause of much of the incoherence of standing doctrine is the requirement that plaintiffs suffer a personal injury (sometimes referred to as "injury-in-fact) separate from the legal violation they allege in their complaint. The Court grounds this requirement in the language in Article III that the federal “judicial power” only extends to “cases” or “controversies.” Pursuant to this key to unlock federal jurisdiction, it is not enough that a plaintiff alleges a violation of a federal statute or the Constitution. Instead, she must show damage to life, liberty, or property or on rare occasions, some other less tangible interest.

For example, taxpayers do not have standing to challenge spending decisions by the federal government that allegedly use taxpayer dollars illegally unless the plaintiffs show an injury separate from the illegal spending. There is a narrow and incomprehensible exception to that rule for people challenging a federal spending law they claim violates the first amendment's establishment clause. But those plaintiffs do not suffer any injury different from the many other plaintiffs who lack standing to bring suits against federal spending but whose claims are tethered to other constitutional limitations.

I previously wrote on this blog about how that exception to the general rule was invented by a frustrated Supreme Court clerk who was given no choice but to draft an opinion, Flast v Cohen, that makes no sense. Decades after that case was decided, however, and after its reasoning (not the result) had been criticized by virtually everybody, the Court in Hein v. Freedom from Religion Foundation cut back on the scope of Flast but affirmed its irrational "nexus test," leading Justice Scalia to write the following in his concurrence:

Today’s opinion is, in one significant respect, entirely consistent with our previous cases addressing taxpayer standing to raise Establishment Clause challenges to government expenditures. Unfortunately, the consistency lies in the creation of utterly meaningless distinctions which separate the case at hand from the precedents that have come out differently, but which cannot possibly be (in any sane world) the reason it comes out differently.

Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future. The rule of law is ill served by forcing lawyers and judges to make arguments that deaden the soul of the law, which is logic and reason.

Justice Scalia was right about the incoherence of the Flast exception, which somehow is still good law, but wrong about his proposed solution--use the injury requirement to bar all suits where the plaintiff cannot identify an injury separate from the legal duty allegedly violated.

Scholars observed decades ago that whether a person suffers some injury separate from the violation of law is the wrong question to ask. The violation of the law is the injury. If that injury causes no damage, then deny or adjust the remedy. If the Court feels it should not wade into a particular sticky wicket, use the political question doctrine to dismiss the case. But when two parties disagree over something real, not hypothetical, and the case is ripe and not moot, there is no reason to deny jurisdiction because the plaintiff failed to articulate an injury separate from a violation of law. Article III requires a case or controversy but says nothing about personal injury.

Almost forty years ago, then Professor William Fletcher (now a Senior Ninth Circuit Judge) was so upset about the personal injury requirement (among other aspects of standing) that he started off a seminal law review article as follows: "The structure of standing law in the federal courts has long been criticized as incoherent. It has been described as 'permeated with sophistry,' as 'word game played by secret rules,' and more recently as a largely meaningless litany recited before "the Court . . . chooses up sides and decides the case."

As to the personal injury requirement, he argued that any plaintiff who claims to be injured, and who is telling the truth, is in fact injured. The real question is whether the law provides a cause of action for that injury. I'll use a modern version of a hypothetical he used in the article to make my point. If my neighbor's dog barks all night long with the result that I cannot sleep, have to seek medicine, and perform less well at my job, I could bring a tort action in court if state law allows me to do so, and no one would doubt my injuries are sufficient for standing.

But if I can't sleep at night because I am so upset by President Trump's lies and policies, and I suffer exactly the same injuries, and my doctor and employer testify under oath how my lack of sleep has caused my injuries, I cannot sue because no statute or other source of law gives me the right to sue. That is not a standing problem but a merits problem. I am still "injured-in-fact," but I have no legal redress as a merits, not jurisdictional, matter.

All of which brings us to a new article by my colleagues Clark Cunningham and Ute Romer-Barron that is the latest installment in the battle against the personal injury requirement but with two fascinating twists. The first is that the article emphasizes that a prominent and conservative judge long associated with the Federalist Society, Kevin Newsom of the Eleventh Circuit (a short lister for the Supreme Court), wrote an opinion a few years ago castigating the personal injury requirement and almost begging the Supreme Court to eliminate it. The second is that the authors use corpus linguistics (of which I am admittedly not a fan) to show that the word “case” as understood at the time of ratification, and as used in Article III, did not include the requirement of an injury separate from the violation of a legal duty.

As readers of this blog know, I am no originalist. For those who are, and who are not hypocrites like our current self-identified originalists on the Court, the authors show clearly what famed originalist Raoul Berger and the second Justice Harlan agreed with over fifty years ago: based on text and history, there should not be a personal injury requirement as part of the standing analysis. Berger reached this conclusion in a famous law review article, and Harlan did the same in his well-reasoned dissent in Flast itself. Of course, neither had access to corpus linguistics, and this new article supports their conclusions using that tool.

Judge Newsom’s comments about standing are discussed at length in the article but they cannot be repeated enough. He made them in a concurring opinion in Sierra v. City of Hallandale Beach Florida. I hope the following quote inspires those who care about standing to read both Newsom’s opinion and the article by Professors Cunningham and Romer-Barron:

There is a far more natural and straightforward reading of the word “Case” than one that turns on the existence of an “injury in fact”: An Article III “Case” exists so long as—and whenever—a plaintiff has a cause of action, whether arising from the common law, emanating from the Constitution, or conferred by statute. And a plaintiff has a cause of action, as I use the term here, whenever he can show (1) that his legal rights have been violated and (2) that the law authorizes him to seek judicial relief....

[A] legal injury can exist without an injury “in fact,” (2) an injury “in fact” doesn't necessarily entail a legal injury, and thus (3) injury “in fact” was neither a necessary nor a sufficient condition for an Article III “Case.” By contrast, the same concepts demonstrate that the existence of a legal injury, an injury at law, was both a necessary and a sufficient condition.

Judge Newsom is right, as were Raoul Berger, Justice Harlan, Judge Fletcher, and scores of academics writing over the last fifty years. Despite all that criticism, however, Professors Cunningham and Romer-Baron have made an important contribution to the flood of scholarly and judicial angst over the Court's creation of a personal injury requirement for standing. I strongly recommend their new article.

-- Eric Segall

On the 25th Anniversary of 9/11: Thoughts on Collective PTSD

2026-09-11T07:00:00.000-04:00

Today is the 25th anniversary of the terrorist attacks of 9/11. On the occasion of the tenth anniversary, I published on this blog two personal remembrances, one by Professor Buchanan on 9/9/2011 and another that I wrote on 9/11/2011. I revisited those recollections and added some more analysis in 2015 in response to a major terrorist attack in France. I won't reproduce any of those essays in full today, but I do want to draw on my 2011 and 2015 pieces to make a few observations about the circumstances in which Americans currently find ourselves as a nation.

To draw the linkages I wish to draw, I do need to quote briefly from my 2011 and 2015 essays. I'll take them in reverse order. My 2015 essay warned that following through on the bellicose language from then-President Hollande of France risked repeating the mistakes the U.S. made following 9/11. I wrote:

I am not advocating any particular policy path for France or the U.S. I am only saying that as we quite appropriately share in the grief of our friends in France, we and they should keep in mind that, while the use of overwhelming military force is sometimes a sensible policy, the fact that it is the first thing we think to do in our grief and anger does not mean it is in anyone's ultimate best interest.

Fortunately, France did not find itself in a forever war against ISIS. However, and more broadly, it seems that no one learned much of anything from the two decades of U.S. war in Afghanistan following 9/11. Shortly after October 7th, 2023, both Professor Buchanan (here) and I (here) compared what was then the emerging Israeli military response to the Hamas terrorist attack on Israeli civilians to the American response to 9/11. Unfortunately, we were right about what was to come.

By "what was to come," I have in mind Israel's terribly destructive war in Gaza, not the current terribly destructive war between, on one side, Israel, the United States, and reluctantly allied countries (Jordan, Saudi Arabia, the Gulf states, etc.) and, on the other, Iran and its proxies. The mistake the U.S. made after 9/11, that Israel made after October 7th, and that I worried France would make after the November 13, 2015 attacks was to commit to a military response out of something like rage without coldly calculating whether doing so would be advantageous, much less whether it could be conducted without causing unwarranted harm to innocents.

That was not the mistake made by Trump and those of his advisers who favored the current war (chiefly Pete Hegseth). They made many and less excusable mistakes in launching the current war. Indeed, it is not accurate to refer to what Trump and the administration have done as mistakes, a term that implies inadvertence. Their decision to take the country to war with Iran was a deliberate and highly culpable act.

What explains that act? As a military matter, the answer is hubris. Rendered overconfident by the relative ease with which U.S. forces had extracted Nicolas Maduro from Venezuela, Trump ignored those who warned him that Iran would be a much more difficult adversary.

But if hubris explains why Trump thought a decapitation strike against Iran would lead to a quick victory and regime change, it does not explain the decision to launch it at a time when the U.S. and Iran appeared to be making progress towards a negotiated resolution to the Iranian nuclear program. To explain that decision, one must resort to Trump's flaws as a human being, including: his unwillingness to accept any kind of nuclear deal that looked too much like the JCPOA President Obama negotiated and he abandoned; his utter disregard for international and domestic law; and his childish fascination with blowing things and people up.

So no, we are not repeating the post-9/11 mistakes. We--that is to say Trump and the Republicans in Congress who refuse to rein him in--are finding ways to do even worse.

What about the home front? My ten-year-anniversary 9/11 essay mostly focused on my own personal experience. I explained that my father's office had been on the 82nd floor of World Trade Center 2 but that thankfully he had retired before 2001. I also described my own eery feeling as the smoldering-but-not-yet-collapsed twin towers came into view from the Amtrak train I was riding on a trip home the morning of 9/11. I eventually pivoted to broader lessons and concluded as follows:

We--everyone born before, say, 1996 or so--are suffering from a kind of collective PTSD. It doesn't entirely impair our ability to function, and often we're completely unaware of it, but it can be triggered easily. Over time, of course, the trauma will fade. Perhaps some day, Americans will commemorate 9/11 the way we commemorate other solemn events, like Memorial Day--with a sale on cars, mattresses, and consumer electronics. That's how we'll know we've finally gotten over 9/11. I don't expect to see a 9/11 mattress sale in my lifetime. I hope to, but I don't expect to.

I'm tempted to say that we have almost entered mattress sale territory because J.D. Vance referred last week to the fact that we were "about to celebrate" the 25th anniversary of 9/11, but it's plain that Vance simply misspoke, as he immediately corrected himself by substituting "commemorate" for "celebrate." Vance has numerous flaws, but the fact that he occasionally (and no more than most others in public life) says the wrong word is not one of them.

That we haven't entered mattress sale territory is not to say that nothing has changed about how the country views 9/11. Joe Biden's best line as a presidential candidate in 2008 was that the only parts of a sentence coming out of Rudy Giuliani's mouth are "a noun, a verb, and 9/11." Although Biden was trying to make the point that Giuliani (who, at the time was a plausible candidate for the Republican nomination that eventually went to John McCain) was unqualified, the Biden attack line also revealed that already by October 2007 (when the debate occurred), someone who still was focused intently on 9/11 was an obsessive. In the nearly 19 years since that debate, 9/11 has receded much further in the American consciousness, to be remembered mostly on anniversaries like today.

That fading is a mixed blessing. Insofar as we've forgotten the lessons of the post-9/11 foreign policy disasters, we're worse off.

On the other hand, the fading of 9/11 has meant the fading of the associated PTSD. No one can live a full life in a state of constant high alert--which is what the domestic aftermath of 9/11 felt like, especially so because the Bush administration introduced an absurd set of color-coded threat levels. The level hovered for the better part of a decade between yellow (significant) and orange (high), even though the administration never released any guidelines about what individuals were supposed to do differently based on the threat level. The message seemed to be simply that Americans should adjust their state of anxiety between significant and high.

I will not, however, end on an optimistic note about the reduction of our collective anxiety or PTSD because we are daily--indeed sometimes more than hourly--made anxious and re-traumatized by the malignant narcissist in chief.

-- Michael C. Dorf

Dolly Parton, Gloria Steinem, and the Human Sides of Greatness

2026-09-10T17:09:36.650-04:00

Dolly Parton died two weeks ago. Gloria Steinem's passing came a week later. Both were admirable, powerful, and unique women who made indelible marks on important civil rights issues. And if my words seem to massively understate the importance of their lives and work, I can only plead guilty. Words do sometimes fail us all.

Rather than writing general remembrances or half-informed biographies of either of these women, I will use this column today to comment on some notable aspects of their profound social impacts. And although I am more than a bit uncomfortable doing so, I should note up front that my discussion of Steinem's legacy will include a genuine disagreement with a person with whom I almost never disagreed.

First, Dolly Parton. As many have commented, she somehow lived through one of the most divisive times in American history, when no one is universally liked (or even tolerated), yet everyone loved her. Genuinely. She might be the last person who could make everyone happy. When the "King's Guard plays '9 to 5' outside Buckingham Palace in moving tribute to Dolly Parton," something special is afoot.

What is more surprising is that she managed to do all of that seemingly with no effort, without guile or calculation. That is, she never tried the musical equivalent of Michael Jordan's infamous "Republicans buy sneakers, too" dodge (a comment that has its own Wikipedia page, calling it "a stance often attributed to his desire to maintain broad, bipartisan commercial appeal").

Not Parton. (As relatable and even lovable as she was, I refuse to follow the crowd and call her Dolly, because doing so strikes me as presumptuous.) She was a feminist, a beloved LGBTQ+ ally, and openly progressive in her views. Jennifer Rubin ended her piece on Labor Day by honoring the "Nashville Association of Musicians (AFM Local 257) and SAG-AFTRA member, philanthropic giant, and musical genius, Dolly Parton." She was not an in-your-face celebrity spouting off on political issues, choosing instead to walk the walk.

And she did so even when it was uncomfortable. For example, more than ten years ago, Parton publicly denounced North Carolina's infamous "bathroom bill," long before trans activism was common (and even before trans activism was called trans activism). Shortly after her death, CNN ran a piece titled "What Dolly Parton's allyship meant for the queer community," and the excellent YouTuber Matt Baume offered a touching "Dolly's Quilt of Many Colors," with this description:

How did Dolly Parton become a gay icon? And what did she do for the queer community? Her style inspired countless drag queens, and her big open heart brought people together across religious and political divides. Her outspoken support for marriage equality, trans rights, and people living with HIV would have been enough to cement her place in history as an ally. But through her company Sandollar, she and her gay best friend Sandy Gallin produced a documentary called Common Threads: Tales from the Quilt that transformed America's relationship with AIDS.

In other words, by the time that terrible bathroom bill came along, Parton was decades deep into being an ally.

And when it comes to racial matters, channels that I have never before visited posted pieces with titles like "WHY BLACK PEOPLE LOVE DOLLY PARTON - RIP" and "Why Black Folks Invited Dolly Parton to the Cookout," the latter of which came with this description: "Why do so many Black people genuinely love Dolly Parton? It is about more than 'Jolene,' rhinestones, or her unforgettable personality. Dolly Parton earned the affection of many Black Americans through a pattern of respect, generosity, accountability, and public support." She treated the Black Lives Matter "question" as if it was simply bizarre even to ask it, and her "well obviously" answer was more than too many people were able to cough up (including many White politicians, who tried to go with "Well, all lives matter," which was deliberately obtuse).

So when I say that it is amazing that there were no prominent voices grumbling in the background after Dolly Parton's death -- even Donald Trump wrote something positive about her, whereas he had trashed Rob Reiner when he died -- I mean to highlight that she gave the political right every opportunity in the world to vilify her.

Which is to say that even though culture warriors are still unable to define "woke" as anything other than "liberal stuff that I can't make a coherent argument against but want to dismiss anyway," they do have an ad hoc checklist, and Parton ticked every box on it. But they stayed silent and at least claimed to love her anyway. If that is not evidence of a superhuman power, what would be?

Speaking of culture wars, I do feel the need to comment on something that appeared in a very positive review of Parton's life by one of the op-ed columnists at The New York Times, Tressie McMillan Cottom. Parton was, of course, a child of Appalachia, which Cottom described as "a place that is just as mythologized, mocked and misunderstood as Dolly was. It's a place where people are rarely allowed to speak for themselves. Instead, they are interpolated through coastal biases about white trash and red states."

Well, this is where I can speak as a reasonably informed observer. How? Because I am not "coastal," having grown up not just in the hyper-uncool Midwest but in Toledo, Ohio, which is the butt of almost as many jokes as New Jersey and West Virginia (or, for the Canadians out there, Newfoundland). Toledo is, in other words, nobody's idea of a snobby place. Even so, Parton was just as mocked in her early years in places like Toledo, Cleveland, and Chicago, as she was anywhere else.

Yes, there were country music fans in the upper Midwest, but there are country music fans in California and on Long Island, too. Most of the country, not only the coasts, simply failed to get Parton's self-effacing joke. The guys on "Hee Haw" who wore rhinestones on their leisure suits were laughingstocks, and at least until Parton's music started to cross over with some mainstream hits, she was easy to lump in with the rest of them. In other words, it was not the coasts condescending to Real America (as Republicans now like to frame it) but rather the non-South laughing at the gaudy excesses of the most Southern genre out there. Cottom is certainly no friend of the American right, so I was especially disappointed to see her casually reinforce that false line of attack.

"What I felt like inside was a plump brunette from Toledo, too tall and much too pudding faced." So Gloria Steinem wrote in one of her books, as recounted in an obituary in The Times. Yes, this is called a segue. I could have gone with a 1987 piece in Ms., "Dolly Parton’s Unique Feminist Power, as Told by Gloria Steinem," but hometown bias has its place. After all, Steinem's formative interest in journalism was sparked by her mother's career writing for the local newspaper, The Blade. (Side note: Toledo's namesake city in Spain is famous for forging swords from Toledo Steel. As much as I would like the newspaper's name to have a gay rights origin, it is not so.)

Steinem was one of the all-time giants of feminism, and when I was coming of age in the 1970's, her impact on public discussion of civil rights for women was incalculable. Indeed, I had barely become a teenager when I started to hear discussions about feminism and thought, "Well, of course I'm a feminist." In the years since then, I graduated from one of the "Seven Sisters Colleges," taught at three more of them, had a cross-appointment on a Women's Studies faculty at a state university, joined the International Association for Feminist Economics, and made the transition from economics to law via a network of brilliant feminist legal theorists.

None of that, however, makes me an expert on feminism -- or even necessarily a feminist. I stipulate the latter because I became aware early on that some women who are feminists reject the notion that men can be feminists, and although I continue to disagree, I understand their argument. More generally regarding my minimal-at-best expertise, I would need a refresher course to be able to describe the various waves of feminism at all competently. But I do know that Steinem was an architect of Second-Wave feminism, which transformed women's lives around the world in ways that are difficult even to comprehend today. Should women be able to have credit cards in their own names, without their husbands' permission? If you answer "yes," thank Gloria Steinem and the movement that she helped to lead. And that is only one example of her impact.

All of which brings me to the uncomfortable part of today's essay. After hearing last week that Steinem had died, I of course felt sadness and loss. At that point, however, a thought occurred to me: Was she one of the feminists who took Bill Clinton's side in the Lewinsky scandal? I honestly could not remember. I certainly knew that Steinem was not the source of the worst vileness, such as this comment from a then-prominent feminist legal scholar: "Lewinsky at least appears to have flirted her way to a job at Revlon and, when that disappeared, a $2 million modeling offer and the status of the most-sought after woman in the world. Not bad, some might say, for someone who can’t type." Even so, I had a sense that Steinem had been a Clinton defender.

The same source from which I drew the quotation above, a 2007 Vanity Fair column by Marjorie Williams, makes it very clear that feminists were divided about the Clinton-Lewinsky question, and Williams also makes it clear that she disagreed with Clinton's defenders, including Steinem, whom Williams quotes:

"We’re not against sex; we’re against the use of sex to cajole, humiliate, coerce. But, according to what Lewinsky says, this was not the case with her…. We need to trust the women here. If we say a 21-to-24-year-old has no sexual will, we’re going against the whole struggle for self-determination and taking responsibility for our own lives." ...

"We would not be doing our job if we didn’t take into account that this president and his policies are crucial to the lives and welfare of the majority of women in this country,” Gloria Steinem assures me. “That’s not bending over backwards: that’s being sensible. Having said that, if Clinton had raped women, beaten up Hillary—real private sins would not be forgiven, no matter what the value of the public behavior.

Williams ends with this brutal assessment: "There it is, fellas, in case you’re still confused: it seems we just lowered the bar."

But the key question here is whether Steinem continued to hold and defend those views as time went on. A 2017 piece in The Guardian by Molly Redden includes this (referring to an infamous 1998 NYT essay by Steinem):

Steinem’s op-ed has been held up as a prime example of how Democrats and their allies reflexively rallied to Clinton’s defense, an argument made most forcefully by the writer Caitlin Flanagan in the Atlantic.
“It slut-shamed, victim-blamed and age-shamed; it urged compassion for and gratitude to the man the women accused,” Flanagan wrote. “The notorious 1998 New York Times op-ed by Gloria Steinem must surely stand as one of the most regretted public actions of her life.”
But if those regrets exist, they are not Steinem’s.
“I’m glad I wrote it at the time,” she said. “Because the danger then was we were about to lose sexual harassment law because it was being applied to extramarital sex, free will, extramarital sex, as with Monica Lewinsky.”

Steinem added this: "The problem at the time was, the sexual harassment law was in danger. If Clinton had resigned, that would have endangered the law.”

Again, this is uncomfortable. I am, however, skeptical of the claim that "sexual harassment law was in danger." How could it have been? Al Gore would have become the President. Was the worry that he would have responded to a blatant example of sexual harassment by agreeing to weaken sexual harassment law? Maybe Steinem knew something that the rest of us do not know, but if so, she did not share it. And it is simply puzzling how applying it to extramarital sex would somehow "lose sexual harassment law."

Indeed, when I say "a blatant example of sexual harassment," this brings us to the more fundamental reason that I continue to disagree with the pro-Clinton feminists' argument. At the time, I was glad that the Clinton impeachment trial's result was a political loss for Republicans. Even so, there was no question that he had done something very wrong, and seeing it as being wrong did not in any way undermine the agency of women or imply a failure to "trust" them. Put simply, the President of the United States made a sexual advance on a very young subordinate. Even though she said that she agreed, that is an abuse of power, and if both parties to the sexual encounter had been men (or women), the abuse of power would have been the same.

This is the same reason that it was a very big advance when universities finally instituted policies against professor-student sex, even when it appears to be consensual. And if it seems that professors have too much power in that kind of situation -- and they do (and have been willing to abuse it for far too long) -- where should we stand on the power balance between the most powerful man in the world and a young adult in his office? Yes, I view that as a rhetorical question.

Again, I claim no special knowledge or status as an expert on these issues, certainly not in comparison to an icon like Gloria Steinem. Even so, it seems important to show my respect for her by making it clear that I view her as human and thus fallible. I do disagree with her -- emphatically -- about this matter.

Two women -- great in different ways, but also in similar ways -- made the world a better place. They were not perfect (although Dolly Parton came close), but we are worse for no longer having their voices to guide us.

- Neil H. Buchanan

The NBA Went Too Easy on Steve Ballmer and Too Hard on the Clippers

2026-09-09T07:00:00.000-04:00

In order to promote competition, the National Basketball Association (NBA) has a salary cap. Its rules (which are adopted as part of collective bargaining between the team owners and the players' union), are very complicated but the key point for purposes of today's discussion is that there are caps on both individual salaries and total team salaries. There are also anti-circumvention rules. As basketball fans undoubtedly know, the Los Angeles Clippers were recently given a very severe penalty for violating those anti-circumvention rules by using third parties to funnel millions of dollars beyond the official salary to their star player Kawhi Leonard.

In saying the penalty is severe, I am not referring to the financial penalty. Leonard was fined $700,000, and Clippers owner Steve Ballmer was fined $30 million. But Leonard's salary for last season was about $50 million, so his fine amounted to less than 1.5% of one year's salary. Ballmer, meanwhile, is a co-founder of Microsoft with a net worth of over $150 billion. To get a sense of what his fine means in percentage terms, that's like a "mere" millionaire having to pay a fine of about $300. He'd rather not pay it, but he's not going to feel it.

Nonetheless, I say the penalty for the Clippers was severe because in addition to the fines (and a one-year suspension for Ballmer), the team had to sacrifice five consecutive first-round draft picks. The Clippers have had some good seasons over the years. They were entertaining and competitive (though they never made it past the second round of the playoffs) during the Lob City era of Chris Paul, Blake Griffin, and DeAndre Jordan. They made it to the Western Conference Finals in 2021 but injuries and other setbacks meant that the Clippers with Leonard and Paul George never fulfilled their full potential. And in between there have been some very bad seasons. Rebuilding without any first-round draft picks will be very difficult. The pain will be felt chiefly by Clippers fans and not at all by Leonard, who has returned to the Toronto Raptors (a team he led to an NBA championship in 2019).

Hovering over all of this is the question why? Why does a man earning $50 million want his team to cheat to pay him even more?

When people ask why billionaires want more money, one answer often floated is that the super-rich treat wealth as a kind of competition independent of any direct utility of the money. Elon Musk feels like he is winning as against Jeff Bezos because Musk has more money than Bezos, even though each of them has way more money than anyone could ever possibly spend.

That explanation has a close analogue in sports. The ability to get a "max contract" in the NBA is vindication that one is a super-elite player, a way of keeping score. But the whole point of under-the-table payments is that they're, well, under the table, and thus not visible for scorekeeping. We still have a puzzle.

The puzzle seems especially acute when one considers that the New York Knicks just won a championship in no small part because their star player, Jalen Brunson, took $113 million less than he could have received so that more money would be available under the salary cap to surround him with other talented players. It worked.

I suppose one might say that Brunson's decision made sense because he was hungry for professional fulfillment, which arrived when he led the Knicks to a championship and was named NBA Finals MVP. Leonard, by contrast, has already been the Finals MVP twice--once with the San Antonio Spurs and once with the Raptors. So maybe he's professionally fulfilled and just wants more money.

But that's hardly a sufficient explanation. LeBron James has won four NBA championships, four Finals MVPs, and four regular season MVPs; he is widely recognized as either the greatest or one of the two greatest NBA players of all time; and yet James recently signed a contract with the Philadelphia Seventy-Sixers for $8 million for the upcoming season, which is an order of magnitude less than what he could have earned; he did so for the same reason Brunson left money on the table--to help his team improve its personnel and thus boost its odds of a championship.

Maybe Leonard is either a much greedier human being than Brunson and James? That's theoretically possible, but Leonard has always come across as soft-spoken and humble--much less flashy in his personal style than many of his peers. The notion that Kawhi Leonard is unusually greedy or unusually uninterested in helping whatever team he is on win is far-fetched.

So perhaps responsibility for the salary cap circumvention does not rest with Leonard. A story last week in The Athletic (behind a paywall) lays the blame for the demand for under-the-table payments to circumvent the salary cap on Leonard's business manager, who also happens to be his uncle, Dennis Robertson. Greed by Robertson is a highly plausible explanation for the scandal. The NBA caps agents' percentage of their clients' salary at 4 percent. But Robertson is not a registered agent and did not act as an agent on Leonard's behalf. Not sharing in Leonard's salary, for him the under-the-table payments were in fact a very big payday.

If a large portion of the anti-circumvention-rules-violating payments went to Robertson, we don't have much of a mystery. And in fact, the NBA found that Robertson acted without Leonard's knowledge. Moreover, when Leonard was shown a preliminary version of the league's findings, he fired his uncle as business manager, which cannot have been easy, given that Robertson was a father figure to Leonard, whose own father was murdered when Leonard was sixteen. The fact that Leonard was not responsible for Robertson's actions explains why Leonard received (for him) a very light penalty. Indeed, one might think that if Leonard really was an innocent bystander in the scheme, then any fine for Leonard was uncalled for.

Was Leonard really unaware? The one observer who seems to know best is Pablo Torre, the investigative journalist who discovered the Clippers' scheme to circumvent the salary cap in the first place. And he thinks the evidence suggests that Leonard very much did know what his uncle was up to. If so, that revives our mystery.

Maybe Leonard knew what Robertson was up to but didn't object because he wanted his uncle to get a big payday. That's possible, I suppose, but Leonard is sufficiently wealthy that he could have just paid Robertson more as his manager or even as his uncle. We routinely read stories of athletes purchasing homes, cars, and other expensive items for relatives to whom they feel warmth and gratitude. Accordingly, I remain puzzled by Leonard's motivation and will simply leave it there.

What about the bigger picture? If one believes that Leonard really was innocent in the plot, then his story jibes somewhat with other stories of athletes and others being taken advantage of by people they trust with their finances. Kareem Abdul-Jabbar's manager mismanaged and stole millions from him. Bernie Madoff did the same to his clients. Against that backdrop, Robertson is less of a villain. He cheated the league but not his client/nephew.

But what about Ballmer and the Clippers? Why did they accede to Robertson's demands for deals that circumvented the salary cap? Why didn't someone for the Clippers just say no, we can't do this? That question seems easy enough to answer: Team owners, managers, and players want to win. To do so, they sometimes cheat--whether by using forbidden performance-enhancing drugs, stealing signs, or circumventing the salary cap.

Whatever the explanation for everyone's conduct, the penalties seem mismatched: too harsh on the Clippers and their fans but insufficiently harsh on Balmer, who can be back at games and running the team in just a year and who, as noted above, will not feel any financial pain from the loss of $30 million. (Robertson received a five-year ban, but I doubt he will be able to find other clients even after the ban ends.)

Pete Rose was rightly given a lifetime ban from baseball for gambling on games he managed, even though he only ever bet on his own team. Steve Ballmer deserves the same penalty for trying to circumvent the salary cap, even if he did so only to help his own team. After all, Rose's gambling was not calculated to cheat other teams (which is not in any way to excuse it). Ballmer's circumvention was in fact designed to give the Clippers an unfair advantage in competition for Leonard's services.

-- Michael C. Dorf

Politics Is Not All (or Even Mostly) About Economics: US Democrats Need to Learn the Right Lesson from the Frightening Election in Germany

2026-09-08T16:36:57.091-04:00

Given my background and interests, I typically do not find myself writing columns about politics in Germany, and certainly not about German state elections. As of this week, however, everyone must start to pay attention, because the neo-Nazi party that has been growing in popularity there (known as the AfD) won a key election in a state in the former East Germany. The party did fall short of a majority, but the outcome is shaking European politics to its core.

I will have much to say below about lessons from the German election for all of us in the United States, but I should first provide a bit of essential context.

To begin, why is the outcome worrying leaders across Europe rather than in Germany alone? After all, despite the existence of the European Union, countries on that continent maintain their own unique and independent political systems. Unfortunately, however, what the French have called the cordon sanitaire -- a commitment by non-extremist parties to exclude extremist parties from power-sharing coalitions -- is becoming more and more difficult to maintain, to say nothing of the possibility that an extremist party could win an outright majority somewhere. (Italy's right-wing government is a coalition.)

Moreover, the AfD's rise has hardly been a homegrown affair. As The Guardian reported, the clodpoll who on any given day might or might not be a trillionaire "congratulated the far-right party on its election victory with a 'Well done!' on his social media platform X, prompting Ulrich Siegmund, the AfD’s lead candidate in Saxony-Anhalt, to thank the nativist US tech billionaire for his support."

That same dullard, by the way, was a central player in the outbreak of race riots in Northern Ireland earlier this summer. A news article in Le Monde quoted Imran Ahmed, the founder and CEO of the Center for Countering Digital Hate (CCDH), saying that the troll in question "used the Belfast tragedy to amplify anti-migrant narratives to millions of users, prompting endless calls for violence. While communities dealt with the consequences of brutality and disorder, no individual played a bigger role in spreading this content on X."

And of course, the rise of the far right in the United State has been largely fed by the same anti-immigrant disinformation and incitement that led to the election result in Germany this past weekend.

There is much to say about all of this, but I want to focus on something that Paul Krugman included in a recent column, "Neo-Nazis and the Impotence of Trumponomics," specifically his take on how the German political situation should inform the way we think about political priorities in the US. Krugman drew a telling lesson about the "working class voters left behind" explanation of Donald Trump's rise, which is unfortunately a story that American political types -- including many, many, many people in the center and left of US politics -- have taken as gospel.

Krugman's Substack pieces are relatively brief and always informative, and this one is definitely worth a full read, for those who have the time to do so. In particular, I was struck -- in a very positive way -- by this statement (and the analysis supporting it): "I should mention one more lesson from the AfD’s victory, one that has me reconsidering some of my own beliefs." Krugman does have a habit of reminding people that he sometimes changes his views, but his self-regard should not obscure the fact that an open mind is a virtue.

What is the lesson that he drew? That explaining the rising support of neo-fascist movements by pointing to the working-class's desperation in "left-behind regions" is nonsense. Why? Krugman points out that the usual exculpatory story about those who embrace the MAGA movement is tied to trade deficits and the loss of "manly jobs" in manufacturing.

He then says that, if that explanation were true, Germany would be a progressive paradise with no danger from the extremist right, because Germany runs trade surpluses that are larger than US trade deficits. Plus, macho jobs are much more plentiful there:

Even Germany has gradually become “deindustrialized,” but even now it is more of an industrial nation, as measured by where the jobs are, than the United States has been for at least 35 years. Has this insulated Germany from the bitterness and political extremism that many U.S. observers attribute to deindustrialization? Apparently not.

Krugman concludes: "What, then, is the moral of this analysis? Mostly it’s negative: Crude economic factors don’t explain the fascist shift in Germany. And Trumponomics, even if it worked (which it doesn’t) wouldn’t end the resentment feeding our own authoritarian movement."

This should change the way Americans who fear the rise of fascism think about US politics. Again, it is to his great credit that Krugman looked at the evidence in an innovative way and then very publicly reconsidered his beliefs. I was especially happy to see this, because I have in the past chided Krugman for buying into the claim that the US election in 2024 was determined by Americans' economic desperation.

In November and December of last year, I pointed out that the US left's conventional wisdom about that election -- an economic explanation that Krugman fully embraced -- is belied by the inconvenient fact that everyone felt the pain of post-pandemic affordability issues while only one demographic group swung toward Trump. In my November piece, I wrote:

If it were about feeling pinched in the pocketbook, why would it be only Latinos who shifted to Trump while no one else did? For that matter, why would Latinas not have "believ[ed] that he would deliver prosperity" as strongly as their male counterparts supposedly did? Is there some unknown social science research showing that Latino men are super-responsive to economic stress, that Latinas are kinda-sorta responsive to economic stress, and no one else cares about economic stress enough to change their votes?

Again, Krugman's analysis of the German election avoids the mistake that he (and so many others) have been making about the last US presidential election. He now focuses on a statistical distinction -- a massive one in this instance -- and says, "If Theory A were valid, we would see two very different outcomes in Countries G and U, but we don't." That is huge.

What are the lessons for US non-Trumpists? Most obviously, they should stop acting as though there is a good story that people fell for Trump because they felt bad about their economic lives. And almost as obviously, they should stop following the advice of people like Bernie Sanders, who all but fetishizes the narrative that American workers will abandon Trump and the Republicans more generally if Democrats and independents would only focus on economic issues.

To be clear, I continue to have a great deal of admiration for Sanders and the political movement that he has been an essential part of creating. Even so, I have for years argued that it is close to political malpractice to think of working Americans as powerless to stop themselves from falling for Trump's false promises. It is also insulting and condescending to those very voters. This is the same error that progressive Democrats made by elevating now-forgotten Graham Platner as the next great voice of the forgotten working man. (And I do mean man, because Democrats seem almost pathologically committed to chasing votes in the toxic manosphere.)

I should also state explicitly that none of what I have said here means that Democrats should actively avoid talking about economic issues. Obviously, pushing issues that people care about is all good, but it is nonetheless crucial not to confuse making people's lives better economically with trying to tempt unreachable people with the return of an economy that is never coming back. How can a candidate do that?

I am happy to have been wrong when I wrote in November 2024 that "[n]o one ... should ever expect that Ohio or Montana will elect a Democrat again, not when both states' very effective and popular incumbents could not stave off rather decisive defeats." The incumbent who lost that year in Ohio, Sherrod Brown, is now running for the other Senate seat from the Buckeye State, and he is apparently comfortably ahead in the polls. In a YouTube interview headlined "Sherrod Brown Is BETTING His Comeback on Working-Class Voters," Brown argues for things like a renewal of the child-care tax credit and other realistic things that would improve voters' lives and maybe tempt some people to come back into the Democrats' column.

But the larger lesson here is that the Democrats who have said that only economic issues matter are on shakier ground than ever. I was beyond pleased to see that Democratic voters in Massachusetts absolutely trounced Seth Moulton in his run against incumbent US Senator Ed Markey. Moulton was one of the people who most loudly argued in late 2024 and 2025 that Democrats should only focus on "real issues" and not what he airily dismissed as "litmus tests," by which he meant issues that he personally sees no reason to fight for, pointedly putting civil rights for trans people on the chopping block.

Because Massachusetts is a safe Democratic seat, Markey was able to attack Moulton head-on on the trans athletes issue. Moulton tried the "if anyone was offended" dodge but refused to back off of his claim that his party needs to throw inconvenient people overboard. Good riddance to him. Even so, I doubt that anyone is arguing that Democrats should change their nationwide messaging for the upcoming midterms to focus exclusively on trans rights. Understandably not. Even so, the point is that the old tactic of saying that Democrats lose by being too focused on non-economic issues is bad politics everywhere, not just on the Boston Common.

What should Democrats focus on, beyond Brown's attempt to be an economic populist without misleading people? Jennifer Rubin's columns recently have been addressing that very question, exploring what can unite people who want to defend democracy and the rule of law but who do not agree with each other about many other issues. Her column yesterday included one of her best arguments to date, which is that the key unifying issue should be the Trump-Republican spree of corruption that we have all been witnessing with increasing disbelief.

Drawing lessons from the wonderful and surprising ouster of Viktor Orbán in Hungary's elections this past Spring, Rubin wrote:

For our upcoming midterms, there is no issue more powerful and timely than corruption. As Gallup reported, “Americans’ perceptions of government corruption in the U.S. are at their highest level in 20 years, with 89% of U.S. adults [including 90% of independents] saying it is widespread.” That’s 10 points higher than last year. Plainly, Trump’s nauseating self-enrichment has hit home, giving Democrats the perfect opening to vow to end the orgy of corruption and to advance credible reform (e.g., claw back Trump’s ill-gotten gains, end crypto scams, ban building monuments to himself, and demand full financial disclosure and stock trading bans for all three branches).

One can easily picture the "It's the economy, stupid" Democratic crowd doing a spit-take and shouting Rubin down, saying that none of the anti-corruption efforts would resonate with Real People because it could never put money in anyone's pockets. Rubin's point, however, is that it would be stupid not to focus on issues that get people's attention, which can go well beyond the the creaky "pocketbook issues" that Democratic consultants of all political leanings insist upon privileging to the exclusion of "niche" or "litmus test" matters.

Returning to the German election, then, Krugman is right that anti-Trump politicians and pundits in the US have seen their case for economic essentialism suffer a death blow. That is good news, because it means that -- to the extent that the midterm election results will be respected at all, which is not at all guaranteed -- Democrats can now be even more confident in broadening their lines of political attack. And not a moment too soon.

- Neil H. Buchanan

Dorf on Law

The Debate About Banning Fraternities: Overdue Reform and Possible Unintended Consequences

"Innocent" Sanewashing, the Gish Gallop, and Bad-Faith Arguments from Republicans

Malcolm Gladwell, Confused Originalist

In SCOTUS Global Warming Argument, Conservative Justices are Receptive to "Dormant Nothing Clause" Argument

The Biggest Damn Fool Mistake: Trump and the Roberts Court

New York's Law Regarding Intoxication and Consent Needs Reform, But That's not the Core Issue in the Jane Doe Case

The Global Migration (or not) of Scholars and Researchers (a Dorf on Law classic)

The Global Migration (or not) of Scholars and Researchers

The Puzzling Gaps in Federal Civil Rights Law

My Supplemental Submission to the US Civil Rights Commission

Affordability, the "Property Ladder," and the True Causes of the Housing Shortage

If You Come at the King, You Best not Miss: The Uphill Battle for Supreme Court Reform

Three Examples of Seemingly Minor Issues that Shine a Light on Trump's Misrule

Playing the Two-Level Game With Trump: Greenland Edition

We Can’t Be Originalists *and* Textualists Now

Trump's Ban on CNN, Politico, and MS NOW is Plainly Unconstitutional: Is it Also Important?

The Abstract and Link to My Forthcoming Article: The Vulnerability of the Press, Academic Freedom, and Zealous Advocacy

Lake Ontario, $5K Giveaways, and Bestiality: Are We Being Distracted by Trump's Inconsequential Craziness?

What Fear (or not) of Crossing Borders Says About the United States Today

Fears of Extinction Events, with and without Plausible Stories to Back Them Up

In the Vote-by-Mail Case, Justice Alito is Back to Victim Blaming and Guerrilla War

Once More Into the Breach: The Incoherence of the Personal Injury Requirement for Standing

On the 25th Anniversary of 9/11: Thoughts on Collective PTSD

Dolly Parton, Gloria Steinem, and the Human Sides of Greatness

The NBA Went Too Easy on Steve Ballmer and Too Hard on the Clippers

Politics Is Not All (or Even Mostly) About Economics: US Democrats Need to Learn the Right Lesson from the Frightening Election in Germany

We Can’t Be Originalists and Textualists Now