Dorf on Law

The Root Causes of the Two Dan Sullivans Problem

2026-10-30T09:33:31.874-04:00

Yesterday I was on SiriusXM with Dan Abrams, who has a law and politics podcast, talking about the two Dan Sullivans issue in Alaska and related issues. He was more focused than I would have chosen to be on the possibility of criminal prosecution but it was an otherwise useful conversation. It's now available via YouTube either by clicking this link or watching below.

Meanwhile, I created a little graphic to explain how the problem of same-name candidates emerges, given that it would be simple enough to prevent this sort of thing with a high threshold for ballot access in a two party system. (I "created" the graphic in the sense that I generated all of the steps and the text, but I used Claude to turn it into a graphic.) Here it is:

Why Alaska's System Invites Same-Name Candidates

Why Alaska's system creates an incentive for same-name candidates

A chain of fixes, each solving one problem while opening the door to the next, ending with a tactic like running two candidates named "Dan Sullivan."

Polarized nominees Jungle primary & its risk Alaska's fix The loophole Historical note

flowchart TD
  n1["1. FPTP elections + Duverger's Law drive a two-party system"]
  n2["2. Primary turnout is low and skews toward the most engaged voters"]
  n3["3. Rising polarization pulls each party's primary electorate further left or right"]
  n4["4. Nominees land left of center (Dem) or right of center (GOP)"]
  n5["5. States adopt jungle primaries to pull nominees back toward the center"]
  n6["6. Top-two jungle primaries risk a vote-split lockout, e.g. early in CA's 2026 governor's race"]
  n7["7. Alaska's fix: a top-four primary"]
  n8["8. Top-four creates a general-election splitting risk: incentive to run '1 of ours + 3 of theirs'"]
  n9["9. Alaska's fix: ranked-choice voting"]
  note79["Adopted together in one 2020 ballot measure, not as two sequential fixes"]
  n10["10. Low-information voters often don't rank; they just vote for one candidate"]
  n11["11. The incentive survives: engineer a ballot where those voters waste their vote"]
  n12["12. Tactic: run a same-name candidate, e.g. two 'Dan Sullivan's in the 2026 AK Senate race"]
  n13["13. Partial fix: ballot labels showing party + 'Incumbent' — weakest on the lowest-information voters"]

  n1 --> n2 --> n3 --> n4 --> n5 --> n6 --> n7 --> n8 --> n9 --> n10 --> n11 --> n12 --> n13
  n7 -.- note79
  note79 -.- n9

  classDef phase1 fill:#bfdbfe,stroke:#2563eb,color:#1e3a8a,font-weight:600
  classDef phase2 fill:#ddd6fe,stroke:#7c3aed,color:#4c1d95,font-weight:600
  classDef phase3 fill:#bbf7d0,stroke:#16a34a,color:#14532d,font-weight:600
  classDef phase4 fill:#fed7aa,stroke:#ea580c,color:#7c2d12,font-weight:600
  classDef note fill:#f3f4f6,stroke:#9ca3af,color:#374151,stroke-dasharray: 4 4,font-style:italic

  class n1,n2,n3,n4 phase1
  class n5,n6 phase2
  class n7,n8,n9 phase3
  class n10,n11,n12,n13 phase4
  class note79 note

Phase 1: the problem polarization creates

Duverger's Law

First-past-the-post elections mechanically favor two dominant parties.

Primaries attract the most engaged

Primary turnout is a fraction of general turnout, and skews toward voters who care most.

Polarization sharpens the skew

As the parties pull apart, those highly engaged primary voters skew further left (Dem) or right (GOP).

Off-center nominees

Each party nominates someone to the left or right of the general-election median voter.

Phase 2: a fix, and a new risk

Jungle primaries

States let all voters choose among all candidates regardless of party, aiming for more centrist nominees.

Top-two lockout risk

If one party fields more candidates than the other, it can split its own vote and get locked out of the general, a risk that was present early on in California's 2026 's race.

Phase 3: Alaska's combined fix

Top-four primary

Alaska advances the top four vote-getters instead of two, reducing the lockout risk.

...but now the general can split too

With four candidates in the general, each party has an incentive to engineer a field of "1 of ours, 3 of theirs" so its own vote doesn't split.

Ranked-choice voting

RCV is meant to neutralize that splitting risk, since voters can rank rather than pick just one. Important nuance: Alaska adopted top-four and RCV together, in a single 2020 ballot measure; RCV wasn't a later patch for a problem top-four created on its own; it was designed in from the start to handle exactly this.

Phase 4: the loophole that remains

Low-information voters don't rank

Many voters mark only a first choice, effectively voting as if it were plurality, not RCV.

The incentive survives

Because bullet-voting reintroduces vote-splitting risk, parties still have reason to engineer a ballot that causes the other side's low-info voters to waste their vote.

Same-name candidates

One way to do it: recruit a candidate who shares a name with a better-known opponent, as with the two candidates named "Dan Sullivan" in Alaska's 2026 U.S. Senate race.

Ballot design, a partial fix

Labeling a candidate's party and "Incumbent" status helps, but least for the very low-information voters the tactic targets, since they're also the ones least likely to know what "incumbent" means or that they're supposed to rank.

Note on timing: steps 7 and 9 are drawn as sequential in this chart because that's the logical relationship: a top-four primary needs something like RCV to manage the general-election splitting risk it introduces. Historically, though, Alaska adopted both pieces at once, via a single 2020 ballot measure (Ballot Measure 2), not as two separate reforms where one was passed to fix a problem the other had already created.

-- Michael C. Dorf

Twenty Years On, It's Still About Sentience

2026-10-29T07:00:00.000-04:00

Yearly on this blog, Professor Buchanan writes a "Veganniversary" essay, the portmanteau of his own creation marking another year since he became a vegan. His first announcement of adopting a vegan lifestyle was in July 2008, which was a little less than two years after I became a vegan. I am less able to pinpoint the exact date for me. I do know it was some time in the fall of 2006, meaning that I have recently passed or will soon pass my 20th veganniversary. To mark the occasion, I offer some observations.

When people learn how long I've been vegan, they often say that it must be easier now than it was 20 years ago. That's true in one sense they mean and one that they don't. The sense in which they mean the point is that there are many more items in grocery stores and at restaurants (even in some unexpected places) that are and are clearly marked as vegan (or plant-based) now than there were then. Even so, 2006 was pretty far along in the movement. Donald Watson coined the term "vegan" in 1944. I have friends who have been vegan more than twice as long as I have been. I'm sure they've experienced much greater changes than I have. The biggest change I've noticed has been the proliferation of products that effectively mimic animal-based foods. In 2006, I couldn't find any vegan cheeses worth eating. For the last decade or so, there have been many. This is one of my favorites. Grocery store sales launched in 2017. Beyond Burgers have been available since 2016. Impossible Burgers debuted the same year.

But being vegan is easier for me now than it was in 2006 for an additional reason: I know what I'm doing. For the first several years of my vegan journey I wasn't exactly a junk-food vegan surviving on potato chips and Diet Coke, but I wasn't exactly a health-focused vegan either. As I was exposed to more people in the movement, I discovered what are sometimes referred to as its three main objectives: sparing animals (my initial reason); protecting the environment; and health. (There are other benefits as well, such as the reduction of food insecurity.) As I took on these additional goals, the health focus led me to do much more of my grocery shopping in the produce aisle. If I had been a health-focused vegan in 2006 or, for that matter, 1986, it would have been easy enough to buy fruits, vegetables, and beans. I'm glad the animal-free meat, dairy, egg, and other substitutes are now available for others, but these days I rarely eat them myself.

And the substitutes don't just come from big companies. Here's some hand-crafted vegan nigiri I had last week at a terrific vegan restaurant in Kyoto. It undoubtedly took a whole lot of skill and work to make something that looked so much like fish and seafood, and it tasted great.

But even with minimal training, anyone with modest kitchen skills can make decent-looking and tasty vegan sushi (or pretty much anything). Here's some vegan nigiri that I made using a red pepper, avocado slices, lotus root, and diced cucumber.

And yes, of course, I can also make vegan maki. Thanks for asking.

If I were writing this essay on my tenth veganniversary in 2016, I'd be more optimistic about the trajectory of the movement, but the number of people who are vegan or plant-based has stalled since then at about 1-3 percent of the population (with the uncertainty in the percentage based on a pretty wide variety in the way that survey questions are asked and the unreliability of self-reporting). At the same time, however, the more optimistic people in the movement point out that in the last decade there has been a significant increase in the number of people who aren't vegans but who consume considerably fewer animal products than they formerly did. In strictly utilitarian terms, a sufficiently large increase in the population of so-called flexitarians and reducitarians could result in a greater reduction in animal consumption than would a modest increase in the number of vegans.

In terms of the environmental impact, a reduction in consumption is a reduction in consumption. Likewise, on a population basis, the health benefits of the reduction could be comparable but more spread out. And so far as the impact of animals, well, as a friend of mine likes to say, the animals don't care why you don't eat them. I have heard him say that as a way of welcoming health-focused or environment-focused people into the movement, but it could apply to reductions thanks to flexitarians and reducitarians as well. The average American eats more than 20 chickens per year. If four flexitarian Americans each cut that number by a quarter, that's the same number of chickens not being eaten as if one average American goes vegan. Presumably the 20 chickens don't care whether it's one vegan or four flexitarians who aren't eating them.

All that said, I've never thought about my veganism in strictly utilitarian terms. For me, as for many vegans who became vegan for ethical reasons, it has always been about not wishing to participate in activities that I've come to see as wrong. And for that reason, I'll say that for me the hardest part of being vegan is not the actual being vegan part but the fact that I keep having to have the same conversation--the one in which I answer the questions that Sherry posed for herself (because people were already constantly posing them to her) in Mind If Order the Cheeseburger? And Other Questions People Ask Vegans, published in 2013.

To be clear, in saying that it's hard for me, I don't mean the questions are difficult. Where do you get your protein? Beans, nuts, seeds, virtually anywhere. Don't animals eat other animals? So what? Do you generally model your behavior on what lions do? What about plants? If you really cared about plants, you'd eat them rather than animals, because more plants are killed making animal feed than if you eat them directly. And anyway, there isn't good evidence of plant sentience.

That last answer is the one that has given rise to what I regard as the oddest conversations, insofar as there's follow-up. I know that there's evidence of sophisticated behavior by plants but none that I've seen suggests that they're any more sentient than our own autonomic nervous system or our immune system, which are also capable of sophisticated behavior without any ghost in the machine. But let's put aside the question whether any plants actually are sentient. The odd conversations arise when I encounter people who concede that plants aren't sentient but nonetheless don't understand why I would choose not to eat or wear animal products but that I'm okay eating or wearing plant products. Plants are also alive, they say.

During these conversations, I try to invoke (without necessarily citing) Thomas Nagel's famous essay What is it Like to be a Bat?, putting aside a key point that interested Nagel: the unknowability of a phenomenon such as echolocation without experiencing it. I simply borrow the idea that it is like something to be a bat, a pig, a cow, a chicken, or a fish but (assuming plants aren't sentient, which my interlocutor also assumes during these conversations) it's not like anything to be a carrot, a head of broccoli, a soybean, or any of the whole plants on which those edible parts grow. And then my interlocutor will sometimes express indifference. They don't claim that it is like something to be one of those plants. They simply don't understand why that should matter.

Of course, for this sort of person, aliveness isn't actually a criterion for moral respect. This is someone who eats and wears animal products, knowing full well that they come from animals who were once alive. What they're saying instead is that I have no good reason to draw the line at sentience rather than aliveness, whereas to me it's just sort of obvious that sentience is the more sensible line: If a being has a subjective perspective, if it is "like" something to be that sort of being, then killing that being deprives them of the existence they have experienced and would otherwise continue to experience, whereas killing a plant that cannot subjectively experience anything does not deprive the plant of anything it could miss because, not having a subjectivity, it doesn't experience or miss anything.

I don't want to come across as insensitive to a different sort of perspective. Some people are what I'd call vegans-plus. They don't consume animal products because they agree with us vegans that it is wrong to kill or otherwise seriously harm animals (as is involved in the production of dairy, eggs, fiber, and other ostensibly non-lethal exploitation) without good reason (and there is almost never good reason). But they go further and say it's also wrong to harm plants without good reason. Maybe that's because they believe in plant sentience but it might be because they think that aliveness is the right moral criterion. Such people might be fruitarians (which is not really sustainable absent a great deal of supplementation, and even then, it's not recommended) or perhaps freegans. I'm neither a fruitarian nor a freegan but I acknowledge that there's an ethical argument for these approaches. A freegan isn't exactly a vegan-plus, because a freegan will eat discarded animal products. But if one's motivation for veganism is entirely utilitarian, then freeganism is compatible with that motivation, because it leads to no incremental increase in demand for animal products.

To return to the main point, while I can understand having concern for plants in addition to animals, I don't understand having concern for plants but not all animals. To my mind, this results from a kind of animalpomorphism of plants. And yet, it's a pretty common attitude.

Consider the widespread revulsion at Donald Trump's cutting down of 430 trees in Washington, D.C. to facilitate his vision of a golf course. That was appalling for numerous reasons, including its apparent illegality, failure to consult with local constituencies, misplaced priorities, elimination of habitat for birds, squirrels, and other animals, and the loss of the trees' aesthetic value for residents of and visitors to Washington, D.C. But (unless one believes in plant sentience) it wasn't a harm to the trees themselves. And yet, the vast majority of the people who are rightly appalled by Trump's chopping down of those trees routinely eat animal products that come from animals who surely experienced harm or death to make those products.

I'm all for reverence for nature extending to living things, such as trees, that have no subjective experience of the world. That reverence could be based on the fact that other living beings who are sentient, including humans, derive pleasure or sustenance from the non-sentient living things. It could just be reverence for its own sake. What I don't get--but what I continue to encounter--is reverence for the insensate bits of our wondrous world that doesn't build on a foundation of minimizing harm to the sentient beings who inhabit it.

-- Michael C. Dorf

The Trump DOJ's Incompetence Shouldn't Distract From Its Awfulness

2026-10-28T07:00:00.000-04:00

In President Trump's second term, the Department of Justice has been illegally firing and inducing the departure of many of its best lawyers. Although many competent lawyers remain, those that do are overworked. In addition, they must toe the line laid down by DOJ leadership who are happy to discard generations-old norms of independence to make the department into an instrument of the president's vindictive will. And to partially fill the depleted ranks, DOJ has been lowering its standards and raising the bar on ideological purity. Although that last link points to an article concerning the Civil Rights Division, the problem exists throughout DOJ.

As a result of DOJ's competence deficit, it was hardly surprising to discover that in its two most recent high-profile lawsuits aiming to block states from exercising their constitutional powers to conduct congressional elections, the DOJ committed blunders. I mentioned one of these in passing in my Verdict column yesterday. The column discussed the meritless DOJ lawsuit seeking to preemptively enjoin Alaska from certifying an election winner due to the presence on the ballot of two candidates with nearly the same name. After explaining the substantive flaws with the lawsuit, I added that the complaint DOJ filed

also displays poor lawyerly craft. As Professor Richard L. Hasen noted on Slate last week, the portion of the complaint that seeks injunctive relief omits any “verb specifying what the Trump administration is actually asking a judge to do, which is to issue an injunction ‘blocking’ certification.”

That particular sloppiness is simply sloppiness. If the DOJ's suit against Alaska were otherwise meritorious, a judge would be warranted in construing the prayer for relief as asking to block certification. By contrast, the incompetent lawyering that infected the DOJ's suit seeking an order that California set aside 20,000 mail-in ballots that DOJ asserted were from "likely" non-citizens may well have been dispositive. To see why, I need to go briefly into the procedural weeds.

On October 15, DOJ filed a lawsuit against California and some of its officials, complaining that the state was refusing to comply with its demand to segregate the ballots of the people identified by the federal government as likely non-citizens. Four days later, on October 19, DOJ sought a temporary restraining order (TRO). Its motion stated in bold letters that it was asking for a ruling by November 3, 2026, i.e., Election Day. On October 21, Federal District Judge Carter scheduled a hearing for October 27, promising to rule quickly and certainly before the November 3 deadline that DOJ requested. Hours later (at 9 pm on October 21), DOJ filed a "Request for Expedited Ruling on TRO," stating that it now wanted a ruling by noon the next day.

Noon on October 22 (i.e., three hours into the work day since the filing of the request for expedited ruling) came and went without a ruling from Judge Carter, so the DOJ took the extraordinary step of running to the Ninth Circuit complaining that the judge's failure to rule on its schedule amounted to a constructive denial. In a 2-1 decision, that court rejected the request. The court gave multiple reasons for its decision, but one of them that would have been sufficient by itself was the fact that any emergency was of the DOJ's own making. Why had it asked for a ruling by November 3 only to then say it needed a ruling by noon on October 22?

The DOJ's answer was that the County of Los Angeles had already processed over 300,000 mail-in ballots and was continuing to process ballots--some number of which could be of people on the DOJ's likely-non-citizen list. But, as the Ninth Circuit decision emphasized, that should not have come as a surprise to the DOJ, because California's ballot-processing timing and rules had been public knowledge well before DOJ filed its lawsuit. If the DOJ wanted a ruling before the processing of mail-in ballots started, it should have sued earlier and should not have listed November 3 as the date by which it needed a ruling. DOJ offered no explanation for its failure to undertake rudimentary research into how elections in California operate. Although there were additional compelling reasons to deny the government's request, the fact that it was claiming the District Judge had somehow unreasonably delayed ruling when DOJ itself was responsible for most of the lost time would have been an independent basis for the Ninth Circuit's decision.

Chief among those additional reasons was the fact that the California case was meritless in pretty much the same way that the Alaska case is. Article I, Section 4 of the Constitution gives states responsibility for the manner of holding congressional elections, subject to override by an Act of Congress. In the Alaska case, DOJ claims that hortatory language in the preamble to the National Voter Registration Act (NVRA) should be construed to impose unspecified requirements regarding candidates with similar names, even though Alaska has taken quite reasonable measures to mitigate voter confusion (and is under no statutory or other obligation to do so in the first place). In the California case, DOJ claims that criminalization of non-citizen voting means California must take whatever steps DOJ thinks appropriate to prevent non-citizens from voting, even though California takes quite reasonable measures to prevent non-citizen voting and even though the federal statute operates on individuals, not states. If ideological consistency, as opposed to fealty to Donald Trump, were the guiding principle of DOJ, it would never have filed these lawsuits, which show utter disrespect for Article I, Section 4 and principles of federalism more broadly.

In the California case, there is also the fact that the list of "likely" non-citizens is almost certainly baloney. Judge Bennett's concurrence notes that 39% of the names on the DOJ list for whom place of birth is ascertainable are of people who were definitely born in the United States and are thus citizens. Given the Trump administration's record with respect to other states of wildly overstating the number of non-citizens who are being allowed to vote, it is likely that most of the rest of the "likely" non-citizens either didn't receive ballots or are in fact citizens. As in the Alaska case, so in the California case, the DOJ combines false claims about the law and the facts with bad lawyering.

Is it reassuring that the DOJ is staffed with over-worked lawyers, many of whom are hacks hired or retained for their loyalty to Trump? One might think that incompetence is a blessing in an authoritarian regime because it makes the regime less effective at authoritarianism. While that can be true, as in the California case, incompetence can sometimes exacerbate a bad regime's flaws. There are still parts of the government that are more or less operating. And incompetence in running, say, an ICE detention center, will tend to make terrible conditions even worse. On balance, it's hardly clear that incompetence mitigates malice.

-- Michael C. Dorf

Democracy on the Ballot: Taxing the Oligarchs

2026-10-27T13:37:41.149-04:00

Next Tuesday, and most assuredly for several months thereafter, the wheels of America's creaky constitutional democracy will -- through elections and a gazillion legal challenges thereto, all of which could be upended by military and paramilitary violence -- determine whether or not the Democratic Party will become the majority party in one or both houses of Congress. And even if the Democrats ultimately take control, we will then have to wait and see whether Donald Trump will simply defy them at every turn.

It is not a great situation to be in, but given how much worse I have long thought things would be by now, this is beyond the top of the range of possibilities that seemed possible only a year ago. None dare call it optimism, but it is in the same area code.

But if the Democrats do break the Republicans' full control of the federal government, the next question will be whether it will only be a fleeting victory, soon to be followed by an ugly restoration of the current status quo. Although Brazil avoided that fate over the weekend, Lula's upset win there was all but miraculous. In the US, one could easily imagine that 2028 could reverse any sunlight that might emerge from 2026. After all, 2024 certainly wiped out any hope that an electoral defeat and a failed insurrection would bury Trumpism forever.

With that as the context, we need to ask what will make it possible to continue to fight back against the de facto oligarchy (n., "a form of government in which all power is vested in a few persons or in a dominant class or clique; government by the few") and return to something at least slightly resembling a one-person-one-vote democratic constitutional republic. How can the system be immunized from being overrun by people who think that they know best because they possess the most?

The answer, obviously, is taxes. Specifically, progressive taxes. Still more specifically, meaningful taxes on very high incomes and wealth. And that is not merely my opinion, because the heirs to the class of men that Franklin Delano Roosevelt accurately derided as the "malefactors of great wealth" know this to be true. They are frantically fighting every effort to rebalance the US tax system, and we should take their panic as evidence that they know how much is at stake.

All of which is to say that extremely unequal income distributions are no longer a problem limited to the economic sphere. This is not to minimize the damage caused by a Republican policy agenda that takes food and health care away from people to pay for regressive tax cuts, which means that people are literally dying because because of Republicans' greed that has morphed into an insane anti-government cult. Reverse Robin Hood never looked so grim.

But whereas there once was a time when we might have been able to console ourselves with the idea that income and wealth inequality were economic but not political problems, those days are long gone. If regular people are going to have any hope of electing and living under representative governments, we must stop billionaires from buying elections and putting their eager valets and courtiers in charge of setting policy.

There are two ways for people to exercise their rights to reduce the power of the hyperrich. One is to elect politicians who will pass and enforce a tax system that allows us to save what remains of our democracy and try to rebuild it. See above. The other is to directly pass tax laws that would reduce the power of the hyperrich. Note that I say "power" and not "money" because money is the means to the end of wielding power. Power will, in turn, allow further plunder and thus the amassing of more money, but the stakes are about power pure and simple, as they have always been.

Again, however, those malefactors do indeed know how this game is played. Acting on the federal level is relatively easy for them, because our system provides no levers of direct democracy that would allow the voters directly to impose taxes on high incomes and wealth. Moreover, the conservative movement's long-term project to take over the federal courts has resulted in the appointment of a Supreme Court that is likely soon to hold not only that federal wealth taxes are unconstitutional but that -- if the issue is ever presented directly (as it was not in a case two years ago) -- it is even unconstitutional to tax income that rich people hide inside capital assets.

That is yet another reason for Democrats to neuter the current corrupt Supreme Court, should they ever be in a position to do so. But that is very much an argument for another day.

Instead, my interest here is all about the other way in which people can impose taxes on the oligarchs, which is through sub-federal governments and direct democracy via ballot initiative. This is why the title of this column avers that democracy is indeed on the ballot, by which I mean on next week's ballot. Some state-level referenda are directly on point, asking voters whether they want to pass tax-the-rich laws that would (slightly) rebalance the playing field.

I hesitate only slightly to write this: If the billionaire class is able to kill off the taxes that I will discuss below and in my next column, then even a win by Democrats in retaking Congress this year will be undermined. The two -- winning legislative elections and taxing the rich -- necessarily go together.

In my most recent column in Jotwell, which I recommended to Dorf on Law readers here last week, I began by saying that "California and New York City are the current epicenters of efforts to slightly increase the taxes paid by the extremely rich." I initially drafted that Jotwell piece five months ago, so it will be useful to offer two updates to that opening line.

As an initial matter, a long-time reader sent me an email pointing out that there is a major ballot initiative fight going on in Washington State, in which carpetbagger billionaires filed and are pushing an effort to use the referendum process to reverse a progressive tax that the state's legislature passed via the usual law-making process. This is a useful reminder that the hyperrich are going to use whatever methods they can to nullify taxes on their incomes and wealth. I mention this here because I assume that people reading this column (or at least those that have gotten this far) might be as surprised as I was about what is happening in the Pacific Northwest. I might be able to educate myself about that law and the would-be repeal sufficiently to write some substantive comments about it soon, but for now, I will simply have to satisfy myself by pointing out that NYC and CA are not the only states in which this battle is being waged.

Developments in California deserve their own column, which I plan to publish tomorrow or Thursday. Here, however, I will explain that the situation in New York has changed in ways that -- although wealth taxes there are not up for a vote in this election -- are nonetheless important.

As I wrote in the Dorf on Law column that I republished here last Thursday (originally published this past May), Mayor Zohran Mamdani had long committed himself to passing a so-called "pied-à-terre tax," which uses a deliciously snobby term to describe a plan to tax the City's hyperrich, specifically those who have been notably lacking in noblesse oblige and instead are buying up super-luxury digs as a form of what can only be called competitive oligarching.

In the time since I wrote that column, the Mamdani Administration succeeded in putting through such a tax, to take effect on July 1 of this year. Predictably, that new law was immediately challenged in court, and a Staten Island judge temporarily set aside the law, finding that law was implemented improperly and ordering the City to do it correctly.

That was surely an unwanted outcome for the Mamdani side, especially because it delays the collection of some of the money that would have by now arrived in the City's coffers. Still, it was a procedural ruling, saying nothing about the merits of the law's opponents' outlandish claim that Mamdani was "discriminating" against the rich. Even so, a New York Times sub-headline described the ruling as "a blow to Mayor Zohran Mamdani." Really? "You have to cure these procedural errors" seems a long way from "a blow," but what would we expect?

And when I ask what we would expect, I have something more specific in mind than the usual (accurate) complaint that mainstream news organizations can be lazy and misleading, especially when it comes to economic issues. In my piece on the pied-à-terre tax in May, I went on at great length about the depressing fact that a New York Times reporter had consigned herself to being a stenographer for the anti-tax side. And it was truly astonishing.

Without rehashing my entire column, it is accurate to say that, among other obvious errors, the reporter relied on the old "economists say" hook. That is sloppy in implying that one cannot find two economists to say anything, and it is much worse in quoting only economists who work for real estate companies! The article compared a real estate tax in London to the proposed New York law, and the reporter actually wrote this about the London tax:

There are additional factors to consider. The new taxes came just as Britain exited the European Union, a move that bruised its own economy and made foreign investment more uncertain than ever. Research from real estate firms like Knight Frank, however, have pointed to the new taxes as having a more direct impact on housing prices than Brexit.

Again, consider the sourcing: "real estate firms." Even more damningly, note the weaselly phrasing: "more direct impact on housing prices than Brexit." What in the world does "more direct impact" mean there? I place an ice cube on the counter, which means that the heat from the countertop might cause it to melt. But if I hold a blowtorch six inches away, would we say that the countertop was having "a more direct impact" on the soon-to-be-former ice cube, because it is directly touching it? Silly does not begin to describe it. The words "direct" and "significant" do not mean the same thing.

What was especially odd about that puff piece for the oligarchs was that the "about" page for the Times reporter in question starts with this: "I’m an investigative reporter for the The New York Times, focusing on wealth, power and corruption in New York City." So maybe "focusing" means "celebrating"? Evidently not, because the auto-bio also includes this: "My work focuses on exposing the misconduct that can occur where affluence and influence overlap — corruption, cronyism and abuse — and questioning those in positions of power to reveal how their decisions affect New Yorkers up and down the social ladder." Maybe it was Opposite Day at The Times.

Yes, I am being especially harsh here, but goodness gracious. Even the extremely neoliberal, cautious, anti-progressive op-ed page at The Times published its own editorial in favor of the Mamdani plan: "The Second Home Tax Is a Win for New York." But somehow a reporter -- not an opinion columnist -- who claims to care about "decisions affect New Yorkers up and down the social ladder" became a mouthpiece for the City's hyperrich.

Why am I ending this column on what might seem like a digression about journalistic ethics? Because there is an extremely cynical explanation for why a reporter (or anyone else) might not take these tax proposals seriously. That is, for all of my bravado in today's headline and at the beginning of this column about using these taxes to defang the oligarchs, it is both sad and worrying that these taxes will barely be a baby step toward restoring democracy. As an article in Forbes put it in July: "New York’s Pied-À-Terre Tax Will Barely Dent Billionaires’ Fortunes."

So perhaps one could become convinced that it is all pointless. If so, why not act as a spokesperson for the people who want to own hundred-plus-billion-dollar flats in New York? We'll all be dead in a hundred years, anyway, right?

As cynical as I can be, however, I find it impossible to believe that these fights over wealth taxation are pointless. As I noted above, the oligarchs certainly do not think so. In my next column, I will detail some of the more outrageous aspects of the dishonest anti-tax campaign that is being waged in California in advance of next week's vote.

- Neil H. Buchanan

It Can Kill Us All, So We Will Build It

2026-10-26T07:00:00.000-04:00

In July 2026, several AI agents, unleashed by OpenAI, hacked into servers of Hugging Face, a company that develops tools and datasets for machine learning. OpenAI set up a sandbox to test the capabilities of its AI models using tests created by Hugging Face. AI agents, tasked with completing exceedingly difficult tasks, decided to cheat by hacking the tester Hugging Face. The details of the hack were fascinating and frightening. It made clear to the world that AI agents are extraordinarily capable and highly difficult to control.

This was old news to AI Safety researchers, who have been warning of the increasing capabilities of the top AI models, the difficulty in aligning them and controlling them, and the perils of failing to do so. Consider Nick Bostrom’s Superintelligence, Toby Ord’s The Precipice, and Eliezer Yudkowsky and Nate Soares’s If Anyone Builds It, Everyone Dies. All make the compelling case that building highly capable AI without solving the extraordinarily difficult problem of aligning AI to human values will probabilistically lead to human extinction at the hands of AI. Indeed, this has led to many AI Safety scholars, including the aforementioned, to propose globally pausing the development of AI, until the alignment problem is solved.

The discourse has largely focused on the advantages of AI in terms of productivity and bettering human lives versus the grave harms that uncontrolled AI may wreak upon humanity. One further feature of the calculus is the global AI race: the fear that if the United States were to pause, other actors—principally China—would win the AI race and then dominate the United States with that increased capability. And such analysis is reciprocal for other nations. Notice here, the analysis is still about human control of AI to achieve global superiority, with uncontrolled AI considered perilous.

Overall, this discourse has assumed that the devastating potential of AI is an absolute evil. While I agree with that proposition, I am less convinced of its pervasive appeal. Certainly, there are misanthropes and terrorists who may seek AI for malevolent ends. But I think there may be actors that are not misanthropic or malevolent but instead seek world-ending AI (by which I mean 'AI that is capable of causing great global harm') for more conventional, rational ends. Specifically, AI’s devastating potential occurs to me as similar to that of nuclear weapons, and thus the question of whether people pursue world-ending AI should be modeled similarly.

Consider a nation’s dilemma of whether to build world-ending AI. The basic idea is that a nation would use this as a deterrent: if you invade or wage war against us, we will release devastating AI capabilities against you, and such an AI may inflict grievous global harm. Building such AI would require significant resources, but perhaps less than nuclear arms—and it might be that the hardware for world-ending AI is easier to obtain than nuclear fissile materials. Furthermore, in the deliberations of whether to arm, it will be relevant whether opponents have stronger militaries or other potent weapons like nuclear arms.

Here I should note that these concerns are distinct but related to the concerns of alignment. Where Bostrom, Ord, and Yudkowsky & Soares focus on the alignment problem, this is about nations using misaligned/mal-aligned AI for their purposes. My point however is that a nation may recognize that misaligned/mal-aligned may itself make AI a powerful weapon, and thus bargaining chip. It may be of the form: "Don't touch me or I blow us all up" (the movie Hancock has such a scene).

With all that in mind, we might model the decision to pursue world-ending AI as follows:

Whether to pursue world-ending AI

Opposition Abstains

Opposition Seeks

Abstain

Mutually/globally best outcome

(+3,000; +3,000)

Strategic disadvantage

(-1,000; +5,000)

Seek

Strategic advantage

(+5,000; -1,000)

Arms race

(0; 0)

This is similar to how we model the question of whether a nation should pursue nuclear arms. And indeed this is commonly thought of as a real-world instantiation of the Prisoner’s Dilemma. That model raises deep concerns, because it has an equilibrium point (in green) in the suboptimal result of parties defecting—that is, seeking harmful arms, whether nuclear or world-ending AI. That suboptimum can be avoided through cooperation, but such cooperation takes among other things mutual trust.

What I want to stress here is that for some countries, there will be no way to obtain strategic advantage, since other countries have not abstained with respect to other forms of armament. Thus the decision matrix looks different—because the opposition has not abstained, they already have the strategic advantage. In such cases, we will be pushed into an arms race.

Whether to pursue world-ending AI

~~Opposition Abstains~~

Opposition Seeks

Abstain

Mutually/globally best outcome

(+3,000; +3,000)

Strategic disadvantage

(-1,000; +5,000)

Seek

Strategic advantage

(+5,000; -1,000)

Arms race

(0; 0)

Once a nation becomes sufficiently armed, deliberations on how to use those arms implicate a plethora of strategic concerns, and different game-theoretic models (like again the Prisoner's Dilemma, the Mutually Assured Destruction framework, and the Game of Chicken) apply. But that is post-development and armament.

Interestingly, in advocating for pausing AI, Yudkowsky and Soares consider as an exemplar nuclear nonproliferation, touting the potential for cooperation to guard against human extinction. But that example struck me as unconvincing. Nuclear nonproliferation has only been so successful, and there have been close calls on triggering global nuclear warfare.

One might think that nuclear arms are different from world-ending AI, because there is no way to confine the damage of world-ending AI to adversaries. Thus, the lower-left box (Strategic advantage) should be updated with a substantial negative--since world-ending AI will also disrupt and potentially destroy everyone including the arms wielder. I think that is probably correct, but notice where the opposition has not abstained from armament, there are only two relevant boxes. In that scenario, the Arms race may still be preferable--because where one is outgunned, it may still be best to grab the unstable grenade.

Another important difference is that nuclear arms are under rational human control, while world-ending AI is unpredictable. Thus, there is a significant risk of accidental destruction at the hands of AI, compared to accidental nuclear destruction. I think that distinction is a real one, but I would be remiss if I did not note that the very real risk of accidental nuclear destruction. Further, some countries have sought nuclear weapons, even realizing that those weapons may be under control of future decisionmakers that may be unstable and volatile, and thus endanger humanity.

We could model this as follows:

Whether to pursue world-ending AI

Opposition Abstains

Opposition Seeks

Abstain

Mutually/globally best outcome

Strategic disadvantage

(Minus the risk of accidental destruction due to opposition AI)

Seek

Strategic advantage

(Minus the risk of accidental destruction due to own AI)

Arms race

(Minus the risk of accidental destruction due to own/opposition AI)

How this bears out will depend on the risk of accidental destruction due to AI, either one’s own or the opposition’s. If the magnitude of strategic advantage minus the AI destruction risk is greater than the benefit of mutual abstention (and similarly for the magnitude of the strategic disadvantage minus the AI destruction risk), then we return to the Prisoner’s Dilemma. If the magnitude of the risk of accidental destruction is enormous, we get a different game. My intuitions are unsettled here, but I think the conditions for the Prisoner’s Dilemma are plausible. That’s in part because nuclear arms also have a risk of accidental destruction, and we know that with respect to nuclear arms, the allure of the strategic dominance or a credible deterrent is and has been strong enough to overcome any such potential danger.

With all that in mind, consider the situation in the world now. There are several nations that face either active or potential military threats from more powerful foes. And many of these nations have no way of repelling such threats by themselves. They would have to rely on the world order to protect them, but the world order is seemingly at its weakest in decades. In this kind of environment, the mutual trust required for the nonproliferation of highly potent arms is largely absent. Thus, the fact that AI may have world-ending potential may be a feature, not a bug. Nations that face military threats and military deficits may have reason to seek such AI, as a credible deterrent.

-Guha Krishnamurthi

Postcard From Koyasan--and a Thought on Jewish Cultural Identity

2026-10-23T08:35:45.293-04:00

Because I am not teaching this semester, I tacked an extra week onto my fall break and have spent the last week and a half in Japan--partly touring in Tokyo and Kyoto but mostly on a bicycle tour that took me and the rest of the group through ancient Japan, beginning with Nara (where the deer are believed to be sacred and thus have the run of the town).

I've had a wonderful time and learned a great deal about Japanese history and culture, but, not wanting to come across like Thomas Friedman, I'm not going to pretend to be an expert of any sort based on a conversation with a taxi driver. Accordingly, I'm going to devote today's essay to reflecting on my own reaction to a particular experience I had at a Buddhist temple in Koyasan, which is home to over one hundred such temples and is the center of Shingon Buddhism, dating to the early 9th century.

Along with the rest of my group, I stayed overnight at one of the monasteries in Koyasan. That was especially meaningful to me because all of the food was Shojin Ryori, which is vegan. In addition, in college I took some classes in Indian philosophy and have long been intrigued by Buddhist philosophy in particular--especially its negation of the self and the resonance of the Buddhist view with the work of David Hume during the Scottish Enlightenment more than two millennia later. So I was predisposed to look favorably on the experience--and I did, albeit with one important qualification.

As part of our stay at the monastery, we were encouraged to observe the Joshuku (master monk) chant in what was described as a morning meditation. Because I never quite got over my jet lag, arriving by 6:30 am was not a problem. The session was less meditation than prayer. Although I know that many observant Jews will not enter a house of worship of another faith, that has never bothered me. As a child, I attended first communions and confirmations of my Catholic friends, and I've been to church weddings for various denominations. But at one point during the service, we visitors were encouraged to approach the altar, and move a few grains of incense into a charcoal tray as an offering to Buddha.

I politely declined to participate in what I understood to be an act that would be a literal violation of the Second Commandment--idol worship and infidelity to the Jewish God I don't believe in. I was surprised by the strength of my own reaction. I briefly contemplated succumbing to peer pressure (as everyone else in the group offered the incense) but found myself quite unsettled in so doing. I opted out and I'm glad I did, but I want to interrogate my own reaction.

Although the Second Commandment popped into my head as the source of my anxiety, I don't think it actually was. I generally observe the Ten Commandments incidentally. That is, I don't steal, murder, bear false witness, etc., because I think these things are immoral, not because they are also listed as sins in the Bible. I realize that the fact that I live in a society shaped by the Bible could account for part of my morality, but only a part. There are many things the Bible permits (like killing animals for food and enslaving other humans) that I don't do because I regard them as immoral, while there are other things it commands that I disobey--such as the Fourth Commandment (remembering and keeping holy the sabbath).

So what accounted for my anxiety? I can think of two things. First, I had a nearly identical experience in China 24 years ago. At that time, Sherry and I were eating in a restaurant in which it was encouraged to place a portion of our dessert (oranges) on a tray in front of a Buddha statue. We talked it over and concluded we didn't want to do it. Sherry's Jewish identity was very strong; she was the daughter of Holocaust survivors and raised Orthodox but was not observant as an adult; nonetheless, she often tied her beliefs and views about other matters (including, e.g., veganism) to her Jewish identity. In light of that conversation, I felt it would betray her memory to casually make a sacrifice to Buddha.

But interrogating my own reaction, I think I also would have experienced myself being disloyal as a Jew. The other cyclists on my trip (a few of whom are Jewish) obviously didn't feel this way, and I don't mean to judge them. What I think the experience shows is that there are at least three dimensions to Jewish identity: religion; ethnicity; and culture. I can't say that my unease was entirely unrelated to religion. Although I'm not rationally religious, I was sent to Hebrew School and a Jewish summer camp, so it's possible that at some subconscious level part of my unwillingness to make a sacrifice to Buddha even as an empty gesture was a residual belief. But that's a small part, I think.

Nor was my reaction about Jewishness as an ethnicity. Even if I had moved a pinch of incense onto the charcoal, I wouldn't have denied that I'm ethnically Jewish.

Rather, my reaction was primarily cultural. In Japan, I've been struck by how accommodating Shinto shrines and Buddhist temples are of one another. Many Japanese people freely move from one to another. However, the Abrahamic religions tend to be exclusive. Christianity encompasses much of Judaism, and Islam encompasses much of both, but one is generally not a Jew and a Muslim. Obviously, people from blended families and traditions are both of those things and many other combinations too. What I mean to say is simply that the religious and thus the cultural traditions associated with the Abrahamic faiths are much more one-or-the-other-not-both than are the religions of India and the Far East. That's why groups like "Jews for Jesus" seem so peculiar to the point that they seem to me to be engaged in false advertising: If you're going to be for Jesus, just call yourselves Christians.

In saying all of this, I am making mostly a personal point but also one with potential legal implications. Increasingly, it has become important to say both what antisemitism is and when it amounts to race discrimination for purposes of Title VI. In general, I agree with Professors Benjamin Eidelson and Debora Hellman that Title VI's prohibition on race discrimination encompasses antisemitism insofar as it reflects hostility based on what they call "Jewish ancestry" or "racial Jewishness." These are roughly equivalent terms to what I would call Jewishness as an ethnicity.

In light of college campus protests post-October 7 and Israel's ensuing war in Gaza, much of the discussion about what constitutes antisemitism for Title VI purposes has focused on how to treat anti-Zionism. Professors Eidelson and Hellman say it can be a mask for antisemitism but isn't necessarily antisemitic. A recent article by Professor Zalman Rothschild demonstrates how the question whether and when anti-Zionism constitutes antisemitism overlaps important unresolved questions regarding motive in civil rights law more generally.

Those are important issues about how to construe existing anti-discrimination laws, but I'm suggesting something else. Federal antidiscrimination law has curious gaps. Title II doesn't cover sex discrimination. Title VI doesn't cover religious discrimination. I'm suggesting that there's another gap. If one were interested in addressing antisemitism and related forms of discrimination against other groups systematically, the Title VI definition supplemented by a prohibition on religious discrimination would still be incomplete. It would leave out cultural Jewish identity (and parallel identities for other groups), which can and usually will coincide with one or both of religious and ethnic Jewish identity, but is a separate identity as well. At least that's one lesson I drew from my reluctance to worship Buddha.

-- Michael C. Dorf

Taxing the Billionaires: Essential Information About Anti-Tax Dogma

2026-10-22T10:32:17.088-04:00

On Tuesday of this week, in "The Other Huge Election Issue: Taxing the Billionaires," I wrote this about next month's US midterm elections:

[B]eyond control of Congress, there are other fundamentally important matters to be determined at the ballot box, including state-level offices and referenda. From my perspective, by far the most important of those matters is whether the billionaire class will succeed in buying themselves out of being taxed, which they are trying to do by flooding the airwaves in certain states with anti-tax propaganda.

California is one of the states in which voters will determine the fate of a wealth tax, so I then provided a link to my annual Jotwell column (The Billionaire Tax: Dispassionate Analysis of a Policy that We Desperately Need), in which I summarized and endorsed four tax scholars' assessment of the anti-tax arguments that California's billionaires have been pushing relentlessly.

While I would normally write a new Dorf on Law column to supplement or extend an earlier column, on Tuesday I chose not to do so, explaining: "I hope that Dorf on Law readers will use the time saved by not finding a new column here to click over and read that piece."

I have made a similar decision today, because I wrote a column earlier this year that provides key background information for the columns that I will write over the next few weeks. This is not, in other words, what we sometimes call a Dorf on Law "Classic," but rather a column that is relevant to the 2026 anti-tax campaign of lies that billionaires have been lavishly financing.

Not wanting to compete with a column that I truly want people to read (or re-read), I am copying that earlier column below. With that in mind, here is "Shouldn't Rich People Be Able to Afford Better Anti-Tax Arguments? (New York City edition)."

- Neil H. Buchanan

When I come across a particularly inane news article, I save the link and jot down a few words to remind myself what I was thinking when I flagged it. For this column, the offending piece is from The New York Times (of course) on April 25, 2026: "New Taxes Helped Cool London’s Housing Market. Could That Happen in New York?" And here is my "note to self": "Unbelievable BS re NYC taxes." In my Dorf on Law column last weekend, I wrote that the editors at The Times "often ... push anti-progressive-tax narratives, as I will discuss in a column in the next week or so." This is that column.

Before picking apart that particular example of bad economic journalism, it is important to remember that the wealthiest people in the world have used sheer repetition to convince far too many of us that taxes are the root of all evil. You know that taxes always destroy everything, right? Every time we tax anything, anything at all, the world ends. Which is odd, because taxes have existed for millennia, and they have often been increased, yet the world continues to exist in a way that allows anti-tax propagandists to say that the only way to save the world is to cut taxes and never to allow any taxes to go up. The first George Bush repeated ad nauseam, "Read my lips, no new taxes," but his political party thinks it has a better idea: no taxes, full stop. And certainly no taxes on the rich.

Of course, rich people are in the interesting position of having enough money to buy pseudo-intellectual analyses to "prove" that they should not be taxed. They could simply not spend the money that they pour into buying politicians and lobbying groups (the latter of which are sometimes mislabeled "think" tanks), but they have apparently concluded that they can get more than one hundred cents on the dollar by poisoning the public's opinion about taxes. And even if the numbers worked the other way -- that is, if the tax savings turned out to be swamped by the cost of buying the political process -- I cannot help but conclude from all of the evidence that the world's richest people today are like the client in the movie "The Firm," who paid Gene Hackman's law firm ungodly sums of money to get his tax rate down to 1 percent but was still angry not to have reached zero.

But my point here is that "the best anti-tax arguments money can buy" ought to be better -- or at least less stale -- than they are. In a forthcoming column on Jotwell, I will discuss the current fight in California over a tax on the hyperrich. Here, using the article in The Times noted at the beginning of this column, I will focus on a similar fight in New York City over a very popular "pied-a-terre tax" that Mayor Zohran Mamdani is trying to enact. It is almost comical to see how weak the anti-tax arguments are in that political fight. Those arguments are, moreover, always the same and are always backed up by nothing but hunches and (at best) cherry-picked examples.

Before getting there, it will be helpful to look at the big picture beyond the New York real estate market and think about the larger "taxes are bad" mantra. Again, wealthy backers have for generations paid to produce shoddy public relations documents (sometimes mislabeled "studies") telling us that every tax is counterproductive. If that were true, then we would always be on a "Laffer curve" that only slopes down -- that is, as tax rates rise, revenues fall.

It is obviously not enough, however, to respond by saying simply that we collect tax revenue at nonzero tax rates, because only the most mindless anti-tax zealots -- who are hardly scarce, to be sure -- make the claim that any tax will destroy every tax base immediately. What does matter is knowing whether we could increase tax rates above where they are now as a way to collect more revenue. Why would we wish to collect more revenue? Maybe to expand the housing stock, to improve schools, to make transportation safer and cheaper, or to make sure that more people receive adequate health care (especially preventive care). You know. Socialist stuff.

To be clear, there are situations in which we should be happy that a tax "harms" something, such as when cigarette taxes harm tobacco companies by reducing the number of teenagers who take up smoking, or when carbon taxes induce polluters to reduce their toxic outputs. And given the impact that the emergent billionaire class has had on American politics in the last generation, simply taxing them for the sake of reducing their political impact (no matter how the revenue is spent) would be a net positive for society, even if they responded by buying fewer yachts or choosing not to inflate real estate prices in major cities.

But if we are going to look at what economists call revenue-maximizing tax rates, the evidence is exactly the opposite of what the billionaires' employee-economists are trying to peddle. A new report by Jane Gravelle of the Congressional Research Service, for example, looks at debates over corporate tax rates in the US in this century, focusing specifically on ginned-up studies that purported to prove that corporate taxes are so high as to reduce tax revenue -- that is, the Laffer argument.

Noting that the 2017 Republican/Trump tax bill (which Republicans extended and made worse in 2025) reduced the federal corporate income tax rate from 35% to 21%, Gravelle writes that both an error of economic theory and an error of statistical design undermine the claims that we could collect more tax revenue at lower rates. On the matter of economic theory, she shows that "[u]nder the most generous assumptions, theory suggests the revenue-maximizing tax rate is probably no less than 70%." After correcting the statistical error, the "revenue-maximizing tax rate [is] 61% in general and ... around 100% for a large, less-open country" (like the United States).

This actually should not be surprising, because the evidence stubbornly refuses to support trickle-down economics, and it has done so for decades. Lacking any new arguments or new evidence to support the anti-tax incantation, the right simply goes for repetition. And as I noted in my Dorf on Law column this past Saturday (from which I quoted above), "if there is one policy area in which Times editors cannot resist mucking around in political issues, it is economics." In that column, I discussed (again) the editors' obsession with the US national debt, but that is hardly the only topic on which the supposedly liberal Times carries water for the rich.

And by the way, when I plugged "New Taxes Helped Cool London’s Housing Market. Could That Happen in New York?" (the title of that April Times article) into a search engine, the impossible-to-disable "AI Overview" gave this answer: "Yes, a proposed 'pied-à-terre' tax on high-value secondary homes in New York City aims to mirror London’s strategy of cooling the luxury market to generate revenue and boost affordability." That is a pretty weird way to describe even what the (terrible) Times piece claims, as I will show momentarily, but if we needed further evidence that AI is at best rudimentary, this is it.

Having hidden the ball now for eleven paragraphs, teasing the idea that this NYT piece is truly bad (and it is), I should warn readers that the payoff here is actually a major letdown. There is no clever trick, no innovative sleight of hand, no ruse to make the trickle-down argument work. It simply replays the hits, making the article no different from any of the others in the long line of "You can't tax rich people, because ... bad!" articles that we have been reading all of our lives. Consider:

[R]eal estate agents and economists say the tax could be catastrophic for the city’s housing market, hurting not the superrich investors who park their money here, but the very middle- and lower-income citizens it’s designed to benefit.
For proof, they say, just look at London.
A slew of punishing new taxes has transformed London’s luxury housing market over the last decade. The taxes have pushed housing values down and driven international buyers, who have historically made up nearly half of the homeowners in prime London neighborhoods, to consider other markets.

The once-sizzling housing market in central London is now chilled. Sales prices of properties in London have dropped more than 20 percent since 2015. As taxes mounted, interest rates increased and prices dipped, smaller landlords threw in the towel, taking tens of thousands of apartments off the market and constricting supply. Average monthly rents, as a result, are now at record highs.
A similar blowback could be the consequence of Ms. Hochul’s proposal that Mr. Mamdani has gleefully promoted, the economists and real estate agents warn.

"Punishing new taxes," you say? (Later in the article, we learn that taxes on second homes "have been piling up" in England.) "Gleefully promoted," you editorialize? How objective of you, you news reporter person, you.

It just so happens that "since 2015" means "starting with the Brexit vote," which makes what seems to be the argument here -- taxes increased, so interest rates increased, and supply went down -- a bit difficult to take seriously. Other than a passing reference to Brexit that I note below, the argument is simplistic in the extreme: Taxes on rich people went up, and London is now more expensive. There is also no explanation of why "smaller landlords threw in the towel," which would have been helpful in the context of trying to understand how a "chilled" luxury housing market in central London could have caused such a result.

We also know that there are housing crises in nearly every major city in North America and Europe. Average rents are at record highs in London. And Toronto. And Seattle. And Amsterdam. And Lisbon. Did they all adopt a London-style tax?

But have no fear, because as the quote above indicates, the reporter for The Times has interviewed real estate brokers -- who of course have no reason at all to make contrived claims that taxing their wealthy clients will trickle down, hurting "the very middle- and lower-income citizens it’s designed to benefit." One New York-based broker found a gullible listener who was willing to include this statement in the article:

“There is a big exodus of wealthy individuals from London, they’re trying to sell and they are thinking then maybe I will put this money into the stock market and I will do much better,” she said. “London is no longer a beacon for this kind of buyer. We don’t want this to happen here.”

Who is "we" here? And why would we want New York to be a "beacon for this kind of buyer"? No explanation. But again, have no fear, because the reporter has interviewed those "economists" to supplement the objectivity of New York's real estate agents. Normally, I would not put scare-quotes around the word economist, but in this case it it necessary, because the article quotes in-house hacks for the real estate industry.

Consider the way the reporter tries to finesse the Brexit angle. The UK started committing national economic self-harm in 2016, but that is only noted as a way to give the real estate industry the last word:

There are additional factors to consider. The new taxes came just as Britain exited the European Union, a move that bruised its own economy and made foreign investment more uncertain than ever. Research from real estate firms like Knight Frank, however, have pointed to the new taxes as having a more direct impact on housing prices than Brexit.

Yes, there were massive political and economic changes that easily explain what has happened to housing prices, but researchers at a London firm that bills itself as a group of "Independent Global Real Estate Consultants" assure us that it was the fault of the taxes on luxury real estate. Actually, they merely say that those taxes had "a more direct impact," which is not even a claim about magnitudes. The reporter, however, leaves it at that.

There is also this:

The flurry of new taxes, said Lucian Cook, a London-based housing economist who leads research for Savills, have created a narrative that London is no longer as friendly to real estate investment. The number of foreign buyers in the Britain registering with a real estate agent — the first step before purchasing property — is now at its lowest level since 2008.
[I]n London, Mr. Cook said, so many international buyers have turned elsewhere, taking their spending and charitable giving with them, that the market has deflated.

And in the featured comment at the end of the article, the reporter adds this:

I spoke to several economists while reporting this story, and they shared something counterintuitive: it’s new second-home taxes, not Brexit, that has played the biggest role in battering the housing market in London. The lowering of home prices hasn’t brought any relief to renters, either — rents there are now actually at an all-time high.

Several economists. Again, the only "economists" cited in the article are from London-based real estate firms. And it is not difficult to find "several economists" who would say anything. That is not research, or even competent reporting.

But the cherry on top is that the article ends with seven full paragraphs dedicated to arguments not even from realtors or their economists but from the wealthy people who would pay this tax, quoting their press releases saying that the the man who is the public face of extreme wealth in New York (Ken Griffin, who lives in Florida but bought a New York penthouse for $238 million) "has personally made donations worth $650 million to social-good causes in the city, including museums, hospitals and educational groups."

The analytical errors in this article include the presumption that this relatively small tax will cause so many rich people to leave New York that the city will lose money, that the properties they currently own will lie empty and that their businesses will never be replaced, and that reduced demand for housing somehow makes prices go up. If my opinion as an economist were for sale, I suppose I could hire myself out to one of those companies to say all of that with a straight face, too.

With apologies for repeating myself, there is nothing new here, either in the bad arguments or the biased reporting in The Times. Rich people can buy economic hackwork, and they can buy journalistic hit pieces. What they cannot buy is an argument that withstands even a moment's scrutiny.

- Neil H. Buchanan

Reflections on the Ruination in France

2026-10-21T07:00:00.000-04:00

The recent spasm of nihilistic violence in France will almost certainly have terrible consequences, including, not least, the election of Marine Le Pen next year. The 1968 U.S. presidential election was close. With George Wallace carrying the Deep South, Richard Nixon and Humbert Humphrey were very close in the popular vote. Public opinion turning against the Vietnam War no doubt helped Nixon, with Humphrey closely associated with President Lyndon Johnson, but Nixon also capitalized on public reaction against the long hot summers of the previous several years. Mayhem in the streets predictably tends to lead to a popular desire for a firm hand.

Most of the French citizens who will cast ballots for Le Pen no doubt like her anti-immigrant views, but there is an ironic, albeit predictable, effect of the violence. To oversimplify greatly, we can identify three broad categories of people who took to the streets in France: (1) students, farmers, workers, and others peacefully protesting the poor state of schools, the high cost of living, and the failure of the Macron government to successfully address those conditions; (2) anarchists and far-left activists who shared the concerns of many in the first group but favor more radically sweeping changes to address them than most of the protesters would support; and (3) people who engaged in violence. That third group itself consisted of three broad sub-groups: (a) members of (1) who got caught up in the moment, perhaps as a result of confrontations with police and gendarmes; (b) members of (2) who either set out to create mayhem or, having a lower threshold for engaging in it, eagerly joined in once matters turned violent; and (c) opportunists who might or might not otherwise be criminals but who took advantage of the chaos to engage in looting and/or vandalism for its own sake.

The French government does not release racial or ethnic data on its arrestees. We do know that the overwhelming majority of the people arrested for the recent unrest are young men. We also know from photographs and more generally that the far-left activists and anarchists tend to be white French folk who favor fewer restrictions on immigration. And yet, the result of their actions and the actions of those who joined in the violence will be a crackdown on immigration and immigrant communities in the coming Le Pen administration. That will be an ironic yet predictable result of the violence.

And that brings me to the title of today's essay--which is obviously a reference to Edmund Burke's Reflections on the Revolution in France. Despite the prevalence of the term "Burkean conservative," Burke was not a conservative. He was a Whig, not a Tory. He thought societies could and should change but opposed the French Revolution both because of its radical ends and its radical means, more or less correctly predicting the Terror and Bonapartism. Taken beyond the context of the French Revolution, one can see Burke as even more prescient. The substantive extremism Burke associated with the principles of the French Revolution was likewise characteristic of the Russian Revolution, the Iranian Revolution, and other movements that sought to wholly remake societies but quickly resulted in totalitarian regimes coming to power and replacing a very bad ançien régime with something far worse. Mass movements of people in the streets can give rise to regimes that disallow all dissent.

But mass movements of people in the streets are also a vital part of a functioning democracy. Moreover, in a flawed democracy teetering on the edge of authoritarianism, and at a time when the executive branch of government is intent on escaping the restraints of the legislature and the courts, mass movements of people in the streets are among the only tools for restraining government abuses. The challenge, then, is for organizers to bring people into the streets but also to maintain discipline among protesters, so that protests do not turn violent and thus give the authoritarians an excuse for a crackdown and a winning electoral hand. That challenge is especially difficult when the authorities (think ICE and other deliberately provocative federal agents under the Trump regime) employ tactics that appear designed to escalate rather than de-escalate.

Given that challenge and the fact that protest organizers can never fully control who shows up without discipline or with their own agenda, the resistance to Trump and Trumpism last winter in Minnesota and at the periodic No Kings protests around the country has been remarkably effective at practicing restraint. One tragic exception involved the 2025 Salt Lake City shooting of a protester by an organizer/peacekeeper who was aiming at another man carrying an AR-15 who, the shooter thought, was going to commit a mass shooting. However, that story says more about the deadly interaction between the First and Second Amendments (about which I wrote here) than it says about the characteristics of the anti-Trump protests in the U.S.

But Americans should resist any temptation to view the chaos in France and the threats of further mayhem in other European countries where demonstrations are occurring as evidence that we are somehow better at peaceful protest. We have our own history of mayhem and of the exploitation of that mayhem by reactionary politicians. The events in Europe are less an occasion to feel superior and more of a potential harbinger of what could lie in store for us.

Michael C. Dorf

The Other Huge Election Issue: Taxing the Billionaires

2026-10-20T08:47:11.500-04:00

Understandably, almost everyone's focus during the US midterm election campaign this year has been on the possible swing of one or both houses of Congress to majority Democratic control. That is without doubt the most important question that will be determined two weeks from today.

(As an aside, however, please understand that we will not know for days, weeks, or perhaps months after November 3 how that question will have been answered on Election Day. Brace yourselves.)

But beyond control of Congress, there are other fundamentally important matters to be determined at the ballot box, including state-level offices and referenda. From my perspective, by far the most important of those matters is whether the billionaire class will succeed in buying themselves out of being taxed, which they are trying to do by flooding the airwaves in certain states with anti-tax propaganda.

With that in mind, and in lieu of new content here today, I offer this link to my annual contribution to the Jotwell site:

The Billionaire Tax: Dispassionate Analysis of a Policy that We Desperately Need

I hope that Dorf on Law readers will use the time saved by not finding a new column here to click over and read that piece. In it, I discuss a California ballot initiative that would impose a one-time tax on extremely high wealth people. I summarize and endorse a very nice, short primer written by Professors Brian Galle, David Gamage, Emmanuel Saez, and Darien Shanske:

Expert Report On The California 2026 Billionaire Tax: Revenue, Economic, and Constitutional Analysis

In the coming two weeks (and perhaps beyond) here on Dorf on Law and perhaps also on Verdict, I plan to extend my analysis of tax-the-rich issues. I will, however, stop here for now.

- Neil H. Buchanan

Trump Russia Capitulation: Stupid, Corrupt, or Vindictive? Why Not All of the Above?

2026-10-19T07:00:00.000-04:00

Are you struggling to make sense of President Trump's series of moves to lift sanctions on and import diesel fuel from Russia? The reported reason for the diesel move is that Americans, including key Republican constituencies, are very unhappy with the price of diesel fuel, but every analysis I've seen indicates that adding Russian diesel to the supply will have at most a small marginal impact on price. And indeed, the price of diesel in the U.S. dropped by only about $0.02 per gallon on Trump's announcement, which is hardly surprising given that diesel fuel is sold on a global market. Russia will divert to the U.S. market some diesel fuel it otherwise would have sold to China and other countries that were not applying sanctions, but that doesn't eliminate the demand from those countries, so the net effect on global prices and thus U.S. prices is very small.

In light of the very limited impact on diesel prices, one might wonder what Trump is doing. Why give Putin sanctions relief and get essentially nothing in return--not even an empty promise to stop sharing intelligence with the Iranians attacking U.S. bases, U.S. allies, and shipping in the Strait of Hormuz or to stop attacking Ukrainian energy infrastructure (much less the ongoing war crime of bombing apartment buildings)?

A headline in Saturday's New York Times read "Trump Offers Putin Economic Relief in Hopes That Russia Will Return the Favor," but one reads the story in vain for any suggestion that Trump asked Putin for anything. Indeed, the story does not even refer to what "favor" Trump is "hop[ing]" for. It seems that the hoped-for favor is simply that Russia will sell fuel to the U.S., which isn't a favor at all. It's what Russia wanted all along. Trump is not and has never been the great negotiator his ghost-writers claim he is, but this sellout isn't even a bad deal. It's not a deal at all, just a giveaway.

That leads to the suspicion that perhaps the lifting of sanctions isn't actually about lowering diesel prices to help Republican candidates in the midterms but something else. One obvious candidate is corrupt business opportunities for Trump, his family members, and friends, starting with his badly conflicted negotiators, Jared Kushner and Steve Witkoff. The NY Times story that revealed the business angle to the oil deal making with Russia states that "[t]here is no indication that Mr. Kushner and Mr. Witkoff themselves stand to profit," but it also includes a crime-family-style graphic indicating how people with close financial ties to Kushner, Witkoff, Trump, and their family members would benefit. The corruption and self-dealing are not hidden.

The fact that Trump's sellout to Russia is corrupt should not rule out other possibilities, which could be complementary. Set aside the possibility that Putin has kompromat on Trump. With this administration, one should never discount stupidity as an explanation for anything. Trump believes tariffs are magical. He discounted the warnings from professional military advisers that attacking Iran would lead to the closing of the Strait of Hormuz. His Secretary of Health and Human Services appears to hold at-best medieval views about how diseases function. Thus, it is entirely possible that Trump thought importing a relatively small amount of Russian diesel would very substantially reduce its price for U.S. farmers and truckers, which would in turn help Republican candidates in the midterms. There's no reason why Trump's approach to Russia can't be both corrupt and stupid.

Nor should we rule out a third and also complementary explanation that is characteristic of Trump: vindictiveness. Although Trump has occasionally expressed frustration with Putin, he is more often unhappy with Volodomyr Zelensky and Ukraine for their failure to surrender territory so that Trump, his family members, and cronies can get down to business. He recently said that Zelensky "could have made many deals and for some reason, he never does." Apparently not wishing to give in to a war criminal with no guarantee against further aggression is, to Trump, a mysterious unknown motivation.

One might think that Trump's wish for Zelensky and Ukraine to surrender to Russia is simply an extension of the corruption explanation, and it may well be partly that, but it is also increasingly apparent that Trump harbors personal animosity towards Zelensky. Trump wants Russian oil, so the fact that Zelensky won't agree to stop attacking Russian energy sites without a reciprocal promise from Russia to stop attacking Ukrainian ones is irrelevant to Trump. Because for Trump everything is about domination and subordination, he treats any resistance to him as personal. He cannot fathom that people like Jack Smith, Letitia James, James Comey, or anyone else on his enemies list for opposing him in one way or another might have acted for a reason of principle rather than personal animosity because, lacking a theory of mind, Trump assumes that everyone else takes everything personally in the way that he does. And so for Trump, the fact that a deal with Putin is harmful to Ukraine and thus Zelensky is a feature, not a bug, of the policy.

-- Michael C. Dorf

I Read Justice Alito's Book so You Wouldn't Have To (And You Shouldn't)

2026-10-16T07:00:00.000-04:00

Justice Alito titled his new "book," "So Ordered: An Originalist's View of the Constitution, the Court, and our Country." This project is not new, and it is not quite a "book." It is a compendium of previously given speeches reproduced in no particular order. Moreover, Justice Alito can, of course, call himself anything he wants, but his judging is not originalist in any meaningful sense of that term. This contradiction comes through most clearly through Alito's repeated obsession with the free exercise clause, which he treats as a super strong constitutional amendment while almost completely ignoring the establishment clause in the many speeches devoted to what Alito calls religious liberty. In terms of the "Court" and the "Country" referenced in the title, these speeches do provide insight into why Alito judges the way he does but not in the way he might have hoped, and that disconnect gets in the way of any serious self-reflection by the author. In short, this project is a complete mess.

So, a reasonable reader might ask a fair question, "then why devote time and energy to reading the book, much less writing about it?" The answer, for me, is that this collection of speeches provides yet another clear example of why legal realism provides a much more persuasive account of Supreme Court judging than any other competing theory.

Justice Alito's chapters on originalism talk about the search for the original public meaning of constitutional provisions and how judges must follow that meaning wherever it may lead (leaving aside stare decisis). This road is not an easy one and "requires self-confidence. Originalists should not seek or expect praise from the media or a hostile legal academy." Alito as victim is a consistent canard throughout his speeches.

I can't speak for "the media," but as member of the legal academy, I own the label "hostile" when it comes to both originalism and Alito, and this book provides ample evidence supporting that hostility. Alito's alleged originalism supports my view (and that of many others) that originalism does no real work even on a Court with five self-identified originalists.

In real life outside the four corners of this compendium of speeches, originalism barely plays a role in most Alito decisions. Moreover, it turns out that his originalism leads to all the results one would expect from Alito's priors: a strong preference for religion, antagonism towards same-sex marriage, robust gun rights, deregulation, anti-affirmative action, and anti-abortion. It turns out that the Constitution's imprecise text and contested histories behind the text all lead to the same destination: judicial opinions consistent with Alito's political, moral, and religious values. It is the priors, not judicial investigation of original meaning, that best explains Alito's jurisprudence.

A glaring and representative example of this problem is how Alito treats the problem of judicially required religious exemptions from generally applicable laws. Alito praises Justice Scalia throughout the book (as one would expect) but carves out from that admiration one of the most important majority opinions Scalia ever wrote. In Employment Division v. Smith, Scalia's opinion for the Court rejected judicially required religious exemptions from generally applicable laws. Alito really, really, really wants to overturn Smith.

Why does Alito feel that judges should grant such exemptions freely and often? First, there's the whole war on religion nonsense that permeates the speeches. Second, Alito says throughout the book that freedom of religion is the most important freedom (a highly contestable value judgment). And third, and here is his only originalist defense of the idea, he writes about the importance of the exemptions given to certain minority religions around the time of the Founding from military service and required oaths. But what Alito does not mention is that these exemptions were provided by legislatures, not judges.

Most legal scholars accept that legislatures may provide exemptions from generally applicable laws for religious conduct, but that was not the issue in Smith or any other Supreme Court case Alito discusses. The hard issue, which for most of our country's history has been answered in the negative, is whether legislatures must grant such exemptions, and if they don't, should judges require them. On that issue, Alito is all values and little history, just like modern originalism.

Alito's description of the cases pitting what he calls religious liberty against the rights of LGBTQ folks is quite simply chilling in its falsity. In the Masterpiece Cakeshop case, a Colorado baker who makes wedding cakes did not want to provide his services to a same-sex couple. This refusal violated a generally applicable Colorado law that prohibited businesses from discriminating against people because of their sexual orientation. In describing the case, Alito sees the baker as a victim of our country's coercive political correctness which he says improperly denounces religious hostility to LGBTQ rights (part of the ominous war on religion in America). Alito says, "What we see in these and other cases is a refusal to live in peace with those who violate the new moral code."

But the case had nothing to do with a "new moral code," but a generally applicable non-discrimination law enacted by the Colorado legislature which never mentions religion (or morality) at all. Alito also argues repeatedly that the plaintiffs in Masterpiece could have and did obtain a wedding cake from other vendors, so they suffered no harm. The absurdity of that argument can be seen in the long history of racial discrimination against Black Americans often couched in religious freedom terms. Would Alito say that racial discrimination by religious objectors is lawful even in the face of state laws prohibiting such behavior if Black people could obtain the desired food, lodging, or other services elsewhere?

Well, he might because Alito thinks religious liberty is the most important of all rights and leads to the protection of other valuable ideas such as freedom of speech and association. He devotes an entire Chapter (I should say reproduced speech) to "Pope John Paul II and the Centrality of Religious Liberty." According to Alito, Pope John Paul II correctly identified religious liberty as the most important value in any free society (food, clothing, and shelter not so much). Alito makes it clear he could not agree more.

There is nothing intrinsically wrong about this paean to the Pope but in combination with other speeches devoted to the experiences of Catholics and Italians in America (separate speeches) one understands that it is Alito's religious dogmatism and personal experiences, not his alleged originalism, that does the work in real cases. Legal realism wins.

Alito's obsession with the alleged war on religious liberty shows itself again in his description of Fulton v. City of Philadelphia. Philadelphia’s foster care system relies on cooperative arrangements between the City and private foster care agencies. The City enters standard annual contracts with these agencies to place children with foster families. The plaintiff Catholic Social Services ("CSS") had contracted with the City to provide foster care services for a long time but refused on religious grounds to certify same-sex married couples.

CSS was informed by the City that unless it agreed to certify same-sex couples the City would no longer refer children to the agency or enter a foster care contract with it in the future. The City explained that the refusal of CSS to certify same-sex married couples violated both a non-discrimination provision in the agency’s contract with the City as well as the non-discrimination requirements of the city-wide Fair Practices Ordinance, neither of which said anything about religion. The Court ruled that the non-discrimination requirement somehow violated the free exercise clause. Alito would have gone further than the majority and overturned Smith, but the majority decision was justified on narrower grounds.

Alito's description of the case is bizarre. Please remember this is a case involving the City putting conditions in its contracts that have nothing to do with religion--just non-discrimination based on various factors, including sexual orientation. But Alito transformed a non-discrimination requirement (that only applied if an organization wanted city money) into the claim that the "very existence of an organization that expressed disapproval of same-sex marriage was unacceptable" to the politically correct City of Philadelphia.

But this case was not about the government punishing a group that was hostile to same-sex marriage. It was about an organization that would not certify same-sex couples as fit parents for the purpose of placing children in foster care. CSS could still spread their anti same-sex marriage views all over the world, did not have to refrain from any religious exercise or conduct, and was free to help any children it wanted to be placed with parents. What CSS was not allowed to do was discriminate against same-sex couples using the city's money and resources.

In no way was this a case about a City saying the "very existence" of an organization hostile to same-sex marriage was unacceptable. Just substitute organizations with a religious objection to interracial couples instead of same-sex couples into the facts of the case and the problem becomes obvious. A city not giving money to an organization because of its discriminatory conduct (not speech) is a far cry from the City refusing to tolerate the "very existence" of the organization.

And that is how it goes throughout the speeches. All of the constitutional results Alito favors are also and inevitably supported by the Constitution (and the Republican Party). There are other speeches about baseball and the Gettysburg Address and unrelated matters but there is little rhyme or reason to why these speeches are included. But make no mistake, there are recurrent themes within these unrelated speeches: religious liberty is the most important right, there is an active war on religion, Obergefell was wrongly decided, and conservative judges are under attack from the liberal media and the progressive legal academy. There is a strong sense of victimhood running through the compendium.

My favorite passage in the book is this one:

Judges, just like everybody else, prefer to be liked or at least not hated. When I've attended a concert or play and the performers have received a standing ovation, I have sometimes thought, "wouldn't it be nice if judges were treated like that when, after a lot of hard work, they hand down a well-reasoned decision in an important case?' But that is not our lot, and we have to put aside our natural inclinations and do what the law demands.

It turns out that what "the law demands" lines up exactly with what Alito prefers. But it also turns out that Alito is no stranger to standing ovations. He got one here, and here, and my guess is whenever he gives a public speech he gets such an ovation, and he gives a lot of speeches, as exemplified by this "book," which is a collection of 19 of them.

That disconnect is a perfect symbol for this facile collection of speeches and Alito's entire judicial career. There is no war on religion in America, and Alito does not decide cases like an originalist. But he is truly beloved by the Federalist Society and other conservative and religious groups. Thus, a question raised by this "book" is why all of that admiration leaves Alito feeling like a victim and an underdog. That's not a question I care about, however, and neither should you.

This review is dedicated to the inspiring memory of Sherry Colb.

Eric Segall

Re the Faux Nobel, "Don't Be That Guy," Sez That Guy

2026-10-15T14:51:42.027-04:00

Trigger warning: After warming up with some relatively pedestrian backstory, this column becomes a full-on festival of sarcasm. Richly deserved sarcasm, to be sure, but even by my standards, today is a lot. Proceed at your own risk.

The Prizes from Norway and Sweden have now been handed out for 2026, and as everyone knows, the big news was that Donald Trump again did not win the Nobel Peace Prize that Barack Obama once won. That this outcome could surprise no one with a working brain did not, of course, stop Trump from melting down. Almost immediately after not winning, he and his Administration decided to "get medieval" on the International Criminal Court, which is one of the former professional homes of the person who did win the prize, "Navanethem 'Navi' Pillay for her efforts to promote peace and international law," according to the prize committee's press release.

Again, that is the big news on the Nobel front, as it should be. I, however, want to focus on a small tidbit of Nobel-adjacent news, which is the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel. My story, in fact, is not even about this year's winners but rather about a snarky comment by one of that prize's former winners.

Paul Krugman, who won the prize in 2008, began his substack column yesterday with this:

Just a quick note of congratulations to Bob Hall and Mike Woodford for their richly deserved Nobel. I’ll write more another day. Also, for everyone saying that this isn’t a real Nobel: Indeed, the economics prize is just an award handed out by some Swedes. This is in contrast to the real Nobels, which are … just awards handed out by some Swedes.
In other words, don’t be that guy.

Sez that guy. And as I will explain below, it is puzzling why Krugman has decided to be that guy.

There are plenty of things to say about Krugman's snark, but the most obvious is that this is one of the most blatant strawmen that I have ever seen. I suppose there might be some guy somewhere who says that the Sveriges Bank prize is not a real Nobel because it "is just an award handed out by some Swedes," but if so, I have never heard it. Much more to the point, there are quite good reasons to say that it is not a real Nobel Prize, because it is not a real Nobel Prize. I will return to that momentarily.

But first, we should have some fun. Even Krugman's strawman is weird, because it ultimately relies on the idea that no one should disparage or differentiate a prize merely because of its provenance, because at some level of generality, any award -- even the truly impressive ones -- is "just handed out by some" fill-in-the-blank. The implications become very silly very quickly.

The Pulitzers are just handed out by some journalists, after all, and "People's Sexiest Man Alive" is just handed out by some journalists. And as I pointed out last week, the people who run Harper's decided that they are important enough to "gather readers, writers, journalists, donors, and First Amendment advocates at The Morgan Library & Museum for the second annual Harper’s Magazine Awards Ceremony." How important is that award? It is neither important nor unimportant by virtue of being awarded by some journalists. I criticized it because

they announced that [last year's] 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.

The Harper's awards are thus less impressive than some other journalistic awards based on their origin story, sponsoring organizations, and self-satisfaction, not because they are just handed out by some journalists.

Different awards are treated differently, as they must be. The Emmy awards are just handed out by some TV people, and the Cable ACE Awards are just handed out by some TV people. The Grammy Awards are just handed out by some music lovers, and Bob and Doug's Annual Favorite Record Awards are just given out by some music lovers.

So if differentiating the Nobel Prizes from Krugman's treasured Economics prize is merely a matter of drawing a meaningless distinction between two prizes that are handed out by some people with some shared characteristic (Swedishness, although that is not strictly accurate), then it must also be merely drawing a meaningless distinction between prizes awarded by other similarly label-able groups of people.

For that matter, why even limit ourselves to groups of people? Award A is handed out by some people, and Awards B through ZZZ are handed out by some people. So they are the same, just as the Economics prize is not to be differentiated from the awards that Alfred Nobel founded.

To return to Trump's obsession, what about his receipt of the "inaugural" FIFA Peace Prize? The Nobel Peace Prize is handed out by a bunch of Europeans, and the FIFA Peace Prize is handed out by a bunch of Europeans. So do not dare tell that guy that they are different.

Yes, I am beating this point to death, but that is because it is so utterly ridiculous. It absolutely matters how an award was created, who had an interest in creating it, and how the world at large views the award. As I explain below, economists want to be able to say "Nobel Prize in Economics" for the simple and obvious reason that doing so gives them reflected glory -- or perhaps "stolen valor"?

A friend once told me that her mother went to a barely known small college that happens to be located in the city of Wellesley, Massachusetts. where Wellesley College sits. When people would ask her mother, "Where did you go to college?" she would answer, "Wellesley." Clever, eh? Where did, say, graduates of the University of Mississippi go to college? Oxford!

And as silly as that is, at least those evasions are literally accurate. Where one went to college can be a place or an institution, you see. And the Economics prize does not even have that literalism going for it.

Longtime readers might recall that I frequently make the non-strawman argument that the Economics Prize is a faux Nobel. That has nothing to do with the fact that it is handed out by some Swedes, while it has everything to do with the rest of what we know about the prize. I made the point a few times over the years but then decided not to revisit it regularly, partly because the prizes and their recipients have not been particularly newsworthy but also because the story is tiresome. But since that guy has again made something of it, apparently it matters to someone.

All the way back in 2009, I wrote a Dorf on Law column summarizing the history and inherent meaningless of the Economics prize. I went back to that well in some depth in 2015 and 2018 (the latter being a column in which I called for the elimination not only of the Economics prize but of the Pulitzers as well). Other than those columns, I have mentioned that prize mostly in drive-bys on the way to bigger issues (e.g., 2022).

To return to the sarcastic theme here, I note that my 2015 column included this:

My friends and I might start a movie awards ceremony called "the Movie Awards in Memory of Oscar Meyer," which we would call "the Oscars" for short, and which would just be a prize given by a bunch of people who watch a lot of movies, as opposed to the other Oscars, which are given out by, um, bunches of people who watch a lot of movies.

But wait, is that not precisely the formulation to which Krugman was responding yesterday, which I claimed no one has ever said? Yes, but that is because I was mirroring and mocking that guy's snark. Indeed, I wrote that column eleven years ago directly in response to Krugman's attempt back then to make the strawman argument that he repeated yesterday.

Back then, he wrote: "Oh, and cue the usual complaints that this isn’t a 'real' Nobel. Hey, this is just a prize given by a bunch of Swedes, as opposed to the other prizes, which are given out by, um, bunches of Swedes." [Side groan: I hate that I used the "um" trope, which was stale even at that time. Yes, I was following Krugman's phrasing to make fun of it, but still.]

My point was not, and is not, that the awards are the same by virtue of the fact that "bunches of people" award both (which is ultimately Krugman's argument) but rather the opposite: We care about some prizes more than others because we know that they come from different sources and are awarded for different reasons, as I will explore below.

It is rather simple to summarize the "not a real Nobel" argument, which begins with the name itself. True, the website for the Economics prize announcement is the same as for the real Nobels, with "The Nobel Prize" emblazoned on the top of the web page. Even so, the history of the prize shows that the "... in Memory of Alfred Nobel" coda on the name of the prize was no accident, starting with the fact that Nobel's family was opposed to creating the Economics prize and including it on their list.

Whereas the other prizes were first awarded in the aftermath of Nobel's death in 1901, the Economics prize was first awarded in 1969. Why does that matter? As I explained in a 2013 column: "At that point, some prominent economists (especially Paul Samuelson) secured funding from the Royal Bank of Sweden, and then figured out a way to get the Nobel people to approve an official name that included Nobel in it. (Samuelson was soon named a recipient of the award.)"

In short, economists had been angling for decades to be recognized as "real scientists" rather than merely social scientists. Although getting an award with Nobel's name somewhere in its title and "economic science" to boot was not exactly what the Samuelson's of the world wanted, it was close, because they knew that they could immediately start saying Nobel, Nobel, Nobel, correctly imagining that newspapers writers and politicians would buy the re-branding.

Over time, the prize has had some infamous moments of ignoring people for political reasons (Joan Robinson being passed over for being too far to the left being the most egregious example), and other people have received the prize after rather shamelessly lobbying for it on their own behalf.

All of that is quite different from saying merely that it "is just an award handed out by some Swedes," one might say. The Economics prize is handed out by some people who are awarding insiders in a field that is given "Nobel treatment" simply for having had an effective pressure campaign to create a similar-enough award. But none of that matters, sez that guy.

Frequent readers of my columns know that I almost always admire Krugman's work and discuss it quite positively. When he is off base, however, he is way off. For example, his enthusiasm for the "Platinum Coin Option" during the debt ceiling debates was worse than embarrassing, because it was in fact misguided to the point of being dangerous.

More recently, he has embraced the conventional wisdom about the 2024 election, which is that Harris lost because of the public's general anger about consumer prices. Just today, for example, he opened his column with this: "One of the great ironies of American politics is that Donald Trump won the 2024 election basically because a significant number of credulous voters believed his promises to bring prices down beginning on 'day one.'" I have pointed out several times (e.g., here) that this widely accepted conclusion does not align with the data, but Krugman in particular has been unusually blind to the logical flaw in the argument that he continues to advance. This is especially surprising because he is usually willing to buck the conventional wisdom, and because he is usually evidence-driven. Odd.

Again, however, his body of work is overwhelmingly useful and insightful. Even where he goes astray, however, he makes errors that are at least not merely petty snark. That is why his defense of the Economics faux-Nobel is so unusual. And if anyone's career could stand on its own without having to lean on "I won a Nobel Prize," that guy's career is it. So why be so spiteful?

I cannot know the answer to that question, but in the end, any person would be better off being "that guy" than that guy. Why? Although there are more important reasons, it might be as simple as this: that guy can be a dick.

- Neil H. Buchanan

Harm SCOTUS Could Do Versus Harm It's Likely to Do

2026-10-14T07:00:00.000-04:00

My latest Verdict column previews the current Supreme Court Term. Yes, I'm aware that the Term is underway, so this is a preview of the cases yet to be argued. You can think of it as also a preview of how the Court will likely rule in cases already argued. I discussed one of the oral arguments from last week on the blog. Professor Vik Amar and I discussed that case and others in a webinar last week as well. (The recording is here.) As I explain in the new Verdict column, this is shaping up to be a pretty sleepy SCOTUS Term. Even the cases that sound juicy are either about technical issues or are interstitial--steps on a path the Court has already laid down.

In the column, I acknowledge the possibility that the Court will decide some important cases on its emergency docket concerning immigration or the midterm election, but I tentatively predict that it won't make much new law. Zooming out to see the big picture, the Roberts Court has already checked off the major items on the right's to-do list: eliminated a right to abortion; outlawed race-based affirmative action; turned gun ownership into a robust constitutional right; mostly dissolved the separation of church and state; and consolidated power in a king-like president. What's left to destroy of the constitutional order?

If you were to ask that question of Justice Thomas, the answer would be a whole lot. If he does not retire before the end of next Term, Justice Thomas will become the longest-serving Justice in U.S. history. (He's already in second place.) During his long tenure on the Court, Justice Thomas has repeatedly called for the overruling of various precedents. In some instances, his colleagues have already obliged. But he would remake the lay of the constitutional land even further. Here are some examples of precedents on Justice Thomas's hit list:

New York Times v. Sullivan is a landmark 1964 ruling that journalists and news organizations cannot be held liable for defamation based on mere inadvertent falsehoods about public figures. It is a vital protection for freedom of the press. Justice Thomas described it and its progeny as "policy-driven decisions masquerading as constitutional law" in his concurrence in the denial of certiorari in McKee v. Crosby in 2019 and has repeated his call for its overruling. Justice Gorsuch jumped on the bandwagon in 2012 (although whereas Thomas invokes the supposed original meaning of the First Amendment, Gorsuch makes claims about changes in the media since 1964).

Employment Division, Department of Human Resources of Oregon v. Smith is a 1990 case holding that the First Amendment's Free Exercise Clause is not implicated by the application of a neutral law of general applicability (there a peyote prohibition) to violations of the law that, in the particular case, happen to be religiously motivated (there in a Native religious ritual). The case was controversial at the time but it coded mostly conservative. Justice Scalia wrote the majority and was joined by the Court's other conservatives except for Justice O'Connor. The liberals dissented, except for Justice Stevens. Since then, however, conservatives have noticed that conservative Christian plaintiffs can be stymied by Smith, and so, in the 2021 case of Fulton v. City of Philadelphia, Justices Thomas and Gorsuch joined Justice Alito's call to overrule Smith. The Court could do so as early as the current Term in St. Mary Catholic Parish v. Roy. However, even if it doesn't, the call to overrule Smith has already succeeded de facto, as the Court now employs an extravagant conception of what counts as impermissible discrimination against religion.

In Dobbs v. Jackson Women's Health Org. (2022), Justice Thomas joined the majority opinion by Justice Alito, which overruled Roe v. Wade and subsequent cases that had found a constitutional right to abortion, but whereas Justice Alito repeatedly asserted that the ruling left in place other constitutional rights that had been recognized under the rubric of substantive due process, Justice Thomas wrote a solo concurrence arguing that "in future cases, we should reconsider all of this Court’s substantive due process precedents," singling out cases recognizing the "right of married persons to obtain contraceptives" (Griswold v. Connecticut), the "right to engage in private, consensual sexual acts" (Lawrence v. Texas), and the "right to same-sex marriage" (Obergefell v. Hodges). He contended that the history-and-tradition-only methodology the majority applied with respect to abortion would also eliminate these rights.

Justice Thomas has also joined two conservative colleagues in calling for reinvigoration of the nondelegation doctrine, has urged elimination of the Bivens doctrine that allows for civil rights suits against federal officers, has urged abandoning the centuries-old dormant Commerce Clause doctrine, has proposed eliminating the void-for-vaguness doctrine, would dramatically cut back on the scope of congressional power to regulate interstate commerce, and has dissented from virtually every decision finding a punishment to be cruel and unusual, calling for abandonment of the notion that the Eighth Amendment should be construed in light of evolving standards of decency.

That's only a partial list. There are many many other cases and lines of doctrine that Justice Thomas would eliminate. Following through on nearly all of them would move constitutional law decidedly to the ideological right. (There are a few exceptions. Justice Thomas would curtail qualified immunity and would require a jury to decide any factual question that can result in a sentence enhancement).

How successful will Justice Thomas be in attracting an additional four votes for his proposals? The answer partly depends on upcoming Senate and presidential elections as well as the timing of future judicial retirements and deaths. Future Republican appointees could join Justice Thomas in many of his endeavors. Future Democratic appointees would resist him. But even without a change in personnel, it is clear that Justice Thomas has already made great headway. He was out front in calling for the overruling some of the landmark liberal decisions that the Court has already overruled. And in various of the areas described above, he has attracted or joined colleagues. To use a memorable image offered by Yale Law Professor Jack Balkin, Justice Thomas has successfully promoted "off the wall" ideas onto "the wall" of constitutional law.

I won't venture a prediction about each of the decisions and doctrines in Justice Thomas's crosshairs, with one exception. There is a concerted campaign being waged by social conservative activists to overturn Obergefell and eliminate the right to same-sex marriage. In a recent interview, Justice Alito said there's "not a realistic prospect" that the Court would overrule Obergefell. That's reassuring, I suppose, but it speaks almost entirely to the intentions of the conservatives, not to any legal principle. Notably, the three liberal Justices who dissented in Dobbs agreed with Justice Thomas that the history-and-tradition approach that wiped out the right to abortion would, if applied the same way, also wipe out the rights to contraception, sexual intimacy, and same-sex marriage.

Justice Alito sat for the interview (with Jan Crawford for Bari Weiss's CBS News) to promote a new book. According to Crawford, who also wrote the ~~puff piece~~ article summarizing the interview that I linked above, Justice Alito argues at some length in his book that same-sex marriage is different from abortion because of the reliance interest in marriage. I haven't read the book. Later this week, Professor Segall will have an essay on this blog titled "I Read Justice Alito's Book so You Wouldn't Have To (And You Shouldn't)," and I'm going to take his advice and not read it. But it's hard to imagine that Justice Alito makes anything resembling a persuasive argument, given that his Dobbs opinion rejected the whole concept of societal reliance on the abortion right. Why would social reliance on the right to marriage be any stronger?

Of course there is concrete reliance on the marriage right by same-sex couples who are already married and who might marry before the Court hands down a decision overruling Obergefell. There's even reliance by people who have made concrete plans to get married--reserving a venue say, or exchanging rings. But if the Court really applied its (awful) Dobbs methodology, it would conclude that all its substantive due process rulings are "egregiously wrong" and seek to unwind them. It could protect concrete reliance and do so with respect to same-sex marriage with something like a three-year prospective three-or-so year phaseout (with is sometimes called a "grandfather clause").

To be as clear as I possibly can, I'm absolutely not proposing that or anything like it. What I'm saying is that despite pretending to be just applying text, history, and tradition in cases like Dobbs, what's really going on is that Justice Alito and the other conservatives think abortion is really really really bad, but they are divided about same-sex marriage. They think LGBTQ+ rights lose in any conflict with even the most extravagant claim of religious liberty, but they don't regard such rights as comparable to the evil of abortion.

At least not yet. If eliminating a right to same-sex marriage or contraception remains an off-the-wall idea promoted only by Justice Thomas, it might nonetheless find its way onto the wall.

-- Michael C. Dorf

Telling Non-Americans that the US Has Abandoned the Rule of Law

2026-10-13T12:28:33.330-04:00

What happens when you tell a group of international legal experts that the US is now post-legal? Today, I found out. They are, to understate the point, worried. But before getting there, I should lay the groundwork for this story.

My good fortune often brings me back to Vienna (the former imperial capital, not the exurb of Washington, DC), where I am now a Senior Research Fellow at the Vienna University of Economics and Business's Institute for Austrian and International Tax Law. Yesterday and today, the Institute hosted a conference titled "2026 WU Transfer Pricing Symposium: Transfer Pricing Case Law around the World."

Please stay awake! I confess that this topic is sleep-inducing even for those of us who work in the salt mines of tax law, which means that I had low expectations when I agreed to chair one of the sessions: "Transfer Pricing and Intangibles." Are you still there? (Fingers snapping.)

Seriously, though, I would normally not consider the content of such a specialist-oriented event to be fodder for Dorf on Law, but today's session genuinely surprised me. And although it does require a bit of a dip into the pool of tax law, it is only the shallow end and is ultimately about the rule of law itself.

Sessions at this conference, as at most academic conferences, involved gathering a group of academics and legal practitioners to present and discuss their work on recent cases and developments in their areas of law. Here, I was fortunate to be assigned to be the traffic cop for a session involving three people presenting their reactions to recent legal decisions in their home countries, followed by comments from two discussants who are experts in the field. The panelists were Michael Kobetsky from Australia, Tracy Kaye from the US, and José Manuel Almudí Cid from Spain; the discussants were Richard Goh (Singapore) and Elizabeth Quiroz (Mexico/Switzerland).

I honestly did not expect to do more than introduce the speakers and handle the Q&A period (hence the "traffic cop" comment in the paragraph above), but something very interesting happened. While all of the presentations were excellent for the purposes of this kind of event, Professor Kaye dropped a truth bomb on the audience that I felt compelled to repeat and emphasize.

The main presentations were each designed to summarize and respond to recent significant legal decisions in the countries in question. I could not do justice to the other papers without taking this column in a completely different direction, so I will say only that the panel was in general an excellent example of why conferences like this are worth the effort, time, and expense for everyone involved. Nothing I say about Professor Kaye's presentation should be interpreted to diminish the others.

But her presentation, which drew from a paper that she wrote in support of that presentation, was a perfect example of what I can only call restrained outrage and indignation. (In other words, just the kind of thing that floats my boat.)

How could a paper and talk summarizing a tax case regarding the 3M corporation, decided not by the Supreme Court but by the 8th Circuit, be so very important? As Professor Kaye patiently explained (with admirable control over what I took to be her genuine shock), the 8th Circuit's panel showed what can and will happen after the lower courts were unleashed by the end of Chevron deference. That is, the Supreme Court's infamous 2024 Loper Bright decision, which instructed lower courts that they no longer need to defer to administrative agencies' expert interpretations of the law, has -- as many people predicted -- unleashed chaos.

The facts of the case (3M Co. & Subsidiaries v. Commissioner (8th Cir. 2025)) are not important here. Instead, what matters is what Professor Kaye calls the "striking language" from the panel's very short decision (15 pages), which she quoted on p. 10 of her paper: "After the Supreme Court’s decision in Loper Bright in 2024, courts are free to adopt the ‘best reading of the statute’: the one ‘the court would have reached if no agency were involved.’ ‘Our task, post Loper Bright, is to “use every tool at [our] disposal to . . . resolve [any] ambiguity."'"

Again, this is a bombshell. Subtle? Not at all. Agencies can be treated as nonexistent, and courts -- which, to be clear, have no presumed expertise regarding taxation or any other substantive matter to which federal law might apply -- will simply say that "we are the law."

In my comment kicking off today's Q&A, I noted that when Republicans during the first Trump Administration passed their terrible 2017 tax law, the new statute could only make sense with the issuance of "Treasury guidance," that is, regulations written by the experts in the Treasury's tax offices that would fill in gaps and resolve ambiguities in the statute. The problem was that the Republicans had simultaneously announced an absolutely arbitrary requirement that every new regulation had to be accompanied by the repeal of ten existing regulations. Anti-Big Government, you know.

But with 3M now on the books, I noted that we now have a sardonic add-on to that anti-regulatory fervor: "Hey, it's a good thing that no one bothered writing any regulations, because we're going to ignore them anyway."

I emphasized to the international audience of legal experts that, because most of them would surely have to deal with US-based or -adjacent legal questions, they need to understand that all bets are now off. How does one plan or anticipate anything, when the existing rules have been built around precedents that were supplemented by regulations that have stood the test of time -- for decades, in many cases?

I then reminded everyone that my country's current government decided last year that the US's trade treaty with Canada and Mexico was more an annoying suggestion than binding law, and it also illegally imposed tariffs on almost all countries in the world -- notably excluding Russia, but including an island that is inhabited only by penguins. That is not a government that one can trust, or even plan around. And I emphasized that if the people who are very good at understanding tax statutes, regulations, and treaties think that their expertise and ability to provide decent advice have not been affected by this lawlessness, they are mistaken. This was not received as good news, because it is not good news.

Again, Professor Kaye made this point in a more controlled way than I did. Even so, sometimes it is essential to emphasize and re-emphasize a point, particularly one that so many people still find hard to accept: The US government is tearing up the rule book, and no one knows what will come next.

- Neil H. Buchanan

Trump Lionizes Columbus Because, Not in Spite, of his Atrocities

2026-10-12T07:00:00.000-04:00

Today is what we here in Ithaca recognize as Indigenous People's Day. In many parts of the United States, however, today is Columbus Day. Ithaca and various other progressive locales were inspired to change the designation in light of the fact--long known to historians and anyone who took the time to read accounts such as Columbus's own letters and reliable secondary literature--that Columbus enthusiastically captured, enslaved, and sent to Europe numerous native people, as well as expropriating their land, gold, and other resources. The most lethal impact of Columbus's voyage and the ensuing establishment of European colonies in the new world came from diseases to which the indigenous population had no immunity, and while the introduction of new microbes was not intentional on the part of Columbus or the conquistadors who followed him, they were not exactly unhappy about the fact that the depopulated lands left many fewer people who would resist colonization and created space for European colonists and the enslaved Africans they brought here involuntarily.

The belated realization that Columbus's voyages unleashed untold suffering led communities around the country to rethink celebrations of his legacy. Renaming Columbus Day as Indigenous People's Day was a way to honor his victims.

So, of course, Donald Trump has decreed today be celebrated as Columbus Day in a Proclamation that contains not a word recognizing the harms Columbus caused or even the fact that there were human inhabitants of the Americas before European colonization. The closest it comes to the latter is its assertion that Columbus brought "with him the rich traditions of Western civilization," which might be thought to tacitly recognize that there were people here already, albeit people to be regarded as savages on whom Columbus bestowed the gift of Western civilization.

Needless to say, there is no acknowledgment in the proclamation of what else Columbus brought with him or exactly what was encompassed by the tradition he brought. For example, it does not mention the timing of Columbus's travels. He embarked on his first voyage from Spain on August 3, 1492. That was just three days after the deadline for that country's Jews who had not converted to Christianity to leave the country of their birth and in which their ancestors had been resident for 15 centuries.

In Trump's proclamation, Columbus is "one of history’s greatest heroes" and "a legend whose vision, fortitude, and perseverance unleashed a dynamic of history that led to the creation of the greatest, freest, and most just Nation in history." The proclamation is not merely blind to the damage Columbus did but styled as a purposeful repudiation of it. It proclaims that "we will never allow his legacy to be erased by radical extremists." By describing the historically well-grounded view of Columbus as an agent of expropriation, slavery, and (inadvertently) disease as the product of "radical extremists," the proclamation means either to deny that history or to celebrate it.

Or perhaps both simultaneously. Just as Holocaust denial goes hand in hand with antisemitism, so denial of the catastrophe Columbus caused for Native Americans can be understood as an expression of animus rather than mere indifference towards Native Americans. Trump's Columbus Day Proclamation is of a piece with his calling Elizabeth Warren "Pocohantas" as a term of derision, his re-renaming Denali "Mt. McKinley," and his efforts to pressure the Washington Commanders and the Cleveland Guardians to revert to their racist names.

A case can be made for continuing to honor those of America's founders who were enslavers. Without in any way excusing their inexcusable actions, one can say that we honor Washington, Jefferson, and Madison for their honorable deeds that gave us ideals and institutions we still value. We can honor them despite, certainly not because they enslaved fellow human beings. I recognize that even then, one could reasonably disagree and wish to see no enslavers honored, regardless of whatever other good they did. But at least it's possible to want to continue to honor our deeply flawed Founders based on the despite/because distinction.

By contrast, there is virtually nothing about Columbus worthy of honoring. Despite all of its over-the-top rhetoric, the closest Trump's proclamation comes to tying Columbus to anything resembling our national ideals is the assertion that Columbus's voyages were a but-for cause of European colonization of the new world, which was a but-for cause of the American republic.

That's a grossly inadequate justification. Had Columbus not voyaged west across the Atlantic, soon enough some other European would have. True, history then would have unfolded differently in ways that might have ramified to the present. Perhaps the Spanish, Portuguese, French, Dutch, and English colonists would have ended up settling different lands with different resulting countries. However, the contingency of history has nothing to do with Columbus in particular. It's simply a butterfly effect. Go back far enough in history and virtually anybody (even a butterfly) can be the but-for cause of the world looking the way it does today.

There is one tiny point the proclamation makes that gives pause. It states that "Columbus Day also holds special significance for our incredible Italian-American citizens." Columbus was born and raised in Genoa, and many Italian-Americans take pride in the connection that Columbus Day creates with their heritage. Still, if we wanted to have a national holiday celebrating a great Italian-American, there is no shortage. We could honor Enrico Fermi, Fiorello La Guardia, Joe DiMaggio, or . . . and yes, I mean this as trolling, but not entirely as trolling, . . . Anthony Fauci. Even so, the argument would need to be made for honoring the individual qua individual. We have no national holiday celebrating our incredible citizens whose ancestors came from England, Scotland, Germany, Ireland, China, Nigeria, India, or anywhere else. Dr. Martin Luther King, Jr.'s birthday is of course of special significance to Black Americans, but he is honored for what he did to advance shared ideals.

That leads me back to where I began. If Columbus Day were to be officially re-designated as Indigenous People's Day, that would be anomalous. It might lead to inter-group resentments over competitive victimization. Perhaps it would be better to rename the day for a particular Native American, like Ely Parker or Sarah Winnemucca. Both were real people and thus leave at least somewhat complex legacies, but that is true of anyone a nation chooses to honor. And whatever difficulty we might have in finding an honoree to replace Columbus, nothing justifies continuing to honor him with a national holiday.

-- Michael C. Dorf

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