Dorf on Law

Last week, investor and Tesla shareholder Ross Gerber made a public plea for Elon Musk to step down as CEO of Tesla, citing two main reasons why, in Gerber's view, Musk is currently incapable of successfully leading the company. First, between his role leading other businesses ( X , SpaceX, Neuralink, and the Boring Company) and his seemingly full-time government position as de facto leader of the Department of Government Efficiency (DOGE), Musk is unable to devote nearly enough of his time and energy to running Tesla. Second, through Musk's controversial statements on his own social media platform and elsewhere, and, even more so, through his controversial actions on behalf of DOGE and Donald Trump, Musk has seriously undercut Tesla's brand. Heeding Gerber's call would be: (1) good for Tesla (and thus its shareholders); (2) good for planet Earth;  and (3) even good for Musk. (1) Good for Tesla : As readers no doubt recall, Donald Trump recently hosted what was essenti...

Last month, in a press release that attracted little attention, Acting Chair of the EEOC Andrea Lucas stated that the EEOC would be vigilant about "anti-American bias" where employers were "illegally prefer[ring] non-American workers." Lucas stated, "The EEOC is here to protect all workers from unlawful national origin discrimination, including American workers." The press release went on to identify the following common "excuses" for employers preferring foreign labor (the bullets are a direct quote from the release): lower cost labor (whether due to payment under the table to illegal aliens, or exploiting rules around certain visa-holder wage requirements, etc.); a workforce that is perceived as more easily exploited, in terms of the group’s lack of knowledge, access, or use of wage and hour protections, antidiscrimination protections, and other legal protections; customer or client preference; biased perceptions that foreign workers are more ...

Last Thursday, I published two defenses of the genuine leadership that Senator Chuck Schumer showed in preventing the Democrats from giving Elon Musk and Donald Trump the gift of a government shutdown: " Schumer Was (Unfortunately) Right, But Either Way, the Infighting Must Stop ," on Verdict , and " Trashing Schumer is Wrong on the Merits and Is Self-Indulgent in the Extreme ," here on Dorf on Law .  Somehow, my arguments did not move the needle with the entirety of the anti-Trump majority in America (shocking, I know), and the pillorying of Schumer unfortunately continued over the weekend.  Those who are angry with him, however, continue to refuse to engage with the merits of his decision. Despite my defense of Schumer on those merits, I do understand that many people are unhappy about his leadership in some larger, hard to define sense.  And because (as I noted in the Verdict column), I have never been much of a fan of the now-Minority Leader in the US Senate, ...

For many years, some critics of international law (mostly but not exclusively on the political right) have argued that international law is not "real law" because rulings by international tribunals lack the kind of enforcement mechanisms that one sees within domestic legal systems. If a state or federal court orders defendant Jones to pay plaintiff Smith $100,000 in damages for negligence, Jones must comply. If Jones fails to comply, Smith can obtain a lien on property Jones owns and the government will use force if needed to ensure that Jones pays. By contrast, if Sovereign A is found to have violated an international law duty owed to Sovereign B, no supra-sovereign military or police force will enforce the judgment against a recalcitrant Sovereign A. Sovereign B can resort only to its diplomatic and political remedies. The foregoing critique is, in my view and in the view of most mainstream scholars of international law, misguided. As a theoretical matter, it appears to res...

  The Democratic Party Needs a Serious Paradigm Shift (Boooo Chuck Schumer) Schumer Is Unlikeable, Condescending, And Bad For The Democrats We need more people that don’t yield to the bully Senator Chuck Schumer did the anti-Trump majority in the United States a huge favor last week, but everyone who should be applauding him is instead trashing him for it.  Choose your metaphor: Did he stop the left from committing a huge self-own?  Did he prevent an unforced error?  Did he step in to help his party avoid a self-inflicted wound?  No matter what one calls it, Schumer acted responsibly and stopped the anti-Trump opposition from creating the worst kind of unintended consequence: giving Donald Trump and Elon Musk even greater unchecked power.  Someone needs to thank that man. But it seems that no one is willing to do so, even his own longtime centrist allies, much less the progressive left (of which I am, more often that not, an enthusiastic part) or the NeverT...

This post summarizes and provide links to three of my latest efforts to describe and resist the war on the rule of law being waged by Donald Trump and Elon Musk. Continuing my numbering convention from earlier posts in this series, I start at 9. (9) Yesterday, I was the legal expert guest on the Bloomberg Law podcast . For roughly the first half of the podcast, host June Grasso and I discussed the recent district court ruling (in the posture of the grant of a preliminary injunction) that Elon Musk was appointed unconstitutionally and his dismantling of USAID violates separation of powers. During the second half of the podcast, we discussed other cases and the indications that the Trump administration is defying court orders. (10) One of the cases on which Grasso and I focus as Exhibit A for defiance is the litigation before Judge Boasberg contesting the administration's reliance on the Alien Enemies Act to expel hundreds of Venezuelan migrants to jail cells in El Salvador. That ca...

A recent poll shows that the Democratic Party has reached the lowest point in its history. Its clumsiness is evident. There is no leader. There is no shared platform. The Party could not even unify when President Trump gave his de facto State of the Union Address. Individual Democrats had varying signs and shirts, as well as even social media dancing. That’s right – dancing. When I was younger, I visited the International Clown Hall of Fame & Research in Wisconsin. This ragtag group of Democrats might have fit in at the museum. Political wheeler-dealer James Carville has urged the Democrats to sit back, do nothing , and allow President Trump to screw things up. But the declining Democratic Party poll rating above, and their Oaths of Office, demand more. My suggestion is that the Democratic Party establish a “Shadow Cabinet” in opposition, as in Great Britain and several other nations. This would provide the necessary coherence and leadership to rival the Republicans, who always se...

It is universally recognized by legal academics that originalism is not a single theory but rather a family of different approaches for judges to employ to interpret the United States Constitution. One clear example of this diversity of thought is that originalist judges and scholars who believe in "original meaning originalism" do not even agree on what is the appropriate target of their interpretive questions. Should judges be looking to what reasonable lay people thought was the original public meaning of the text when it was ratified or is it a search for what a hypothetical reasonable person would have thought the text meant? In cases where the text is legalistic, should originalists ask what legal experts in particular at the time thought the text meant, and if so, how legalistic does the text have to be to require that kind of search? There are strong disagreements among originalists on all these questions. There are many other examples of intramural disputes among ev...