Dorf on Law

Author Disclaimer : The ideas expressed below may at first blush be deemed off the wall crazy by many of our readers. I would sincerely ask that before you summarily dismiss the notion that party loyalty might be an appropriate modality of constitutional interpretation, you keep an open mind. Especially for legal realists, this notion is a good test for the logical outer boundaries of  our school of thought.                                                                 ************************************** In a provocative new essay  forthcoming in Law and Social Inquiry titled "Partisan Teamsmanship and American Constitutionalism," Professor Gregory Elinson suggests that, given the importance of political parties to our representative democracy, perhaps party loyalty is a legitimat...

Inspired and aided by President Trump, Republicans have been pursuing multiple pathways to give themselves advantages in the upcoming midterm elections. In that endeavor, they have been assisted by their Republican-appointed allies at the Supreme Court. Yesterday  the Court issued a per curiam opinion  in Trump v. California  allowing the administration to proceed with its plan to use the Post Office to foil mail-in voting. Although the decision purports not to be on the merits, it necessarily is--because likelihood of success on the merits and irreparable harm are, as the Court acknowledges, key to winning a stay. Yet, as Justice Jackson explains in dissent, the president has no lawful authority to regulate elections absent a delegation from Congress, which he has not received. Trump v. California is hardly the only example of the Supreme Court's faux-naïveté in the service of Trump. The past Term's decision in Louisiana v. Callais   ( further ) gutted the Voting Ri...

Much has been written about how Donald Trump learned hardball tactics and power politics at the feet of his father, the developer whose company’s claimed refusal to rent to Black applicants prompted a  federal civil rights suit , and Roy Cohn, who  schooled Trump  in the art of never admitting defeat while personally savaging and countersuing opponents.   But when I read about the latest, absurd round of litigation over the White House ballroom, I didn’t think of Trump père or the infamous Cohn – I thought of Robert Moses.      In his legendary biography of New York’s master builder,  The Power Broker , Robert Caro details Moses’s repeatedly successful strategy of outbuilding preliminary injunctions, court dates, and judicial scoldings. In the 1920s, Moses ran riot condemning private property wanted for Jones Beach and other Long Island parks and roads while his outraged opponents racked up court orders.  No matter the losses in cou...

The lead news story for most of the day at  The New York Times on Wednesday was: " U.S. Debt Hits $40 Trillion as America’s Borrowing Binge Continues ."  Again, that was a news story, not an editorial.  The US is on a borrowing binge , you see, and if we are to believe that  The Times  upholds its professed standards of journalistic objectivity, that is a factual and neutral statement. I will not bury the lead/lede here. There is no reason to panic about the US debt situation.  I will return to that conclusion in some detail below, but the key point up front is that there is nothing new in what The Times reported on Wednesday, other than the number $40 trillion itself, which Paul Krugman correctly described as "a number that is big and round, but otherwise has no special significance." The last time The Times went back to the debt fear-mongering well (on May 9 of this year), I offered a prediction: "The next trillion in gross debt that the US will...

In my various essays following the conclusion of the latest SCOTUS term earlier this summer, I emphasized a number of points to push back on the narrative that the Roberts Court was either delivering a mixed set of results to President Trump or, even less persuasively, that it was outright rebuking him. I won't rehash all of my reasons, which are summarized here . Instead, I'll emphasize the framing effect of the extreme positions the Trump administration takes. But first, consider a story. A fool of a father needs to divide a cookie between his two children, Dawn and Don. Dawn says: "I want half the cookie. That's only fair." Don says: "I want the whole cookie." The father says: "Let's compromise. Don will get 3/4 of the cookie and Dawn will get 1/4." In case it's not obvious, the Trump administration is Don in this parable. In the cookie story, it's obvious that the father is acting unfairly to Dawn, but in many circumstances in r...

One of the smaller dramas of recent weeks was the US Senate's confirmation of Todd Blanche as Attorney General of the United States (AG).  I must emphasize that virtually no Trump-era stories are small by historical standards, meaning that "small er "in the previous sentence should be understood in an even more relative sense than usual.  It was a drama that provides some important lessons, however, especially in explaining the continued refusal of Republicans in political office to stand against the Trump regime. It is unlikely that anyone reading this column needs to be reminded that Blanche was a truly terrible choice to be anywhere near the Department of Justice (DOJ).  Even so, a few lowlights will set the appropriate context.  The man who failed while defending Trump against felony charges in New York was rewarded with the runner-up job at DOJ, during which time he took the lead in derailing the Epstein investigation.  His efforts there included meeting i...

In today's Senate primary election, Alaska voters will have many choices, including two named Dan Sullivan. One is the incumbent Republican. The other is a retired schoolteacher from Petersburg, Alaska with the same name. Republicans claim that the man I'll call Teacher Dan is running for the sole (or at least main) purpose of siphoning votes off from the incumbent and thus potentially handing victory to the Democratic challenger in a tight race. That's a plausible allegation given the jungle primary format. The top four finishers in today's primary advance to the general election. If two of those candidates are named Dan Sullivan, that could be enough to tip the outcome in favor of Democratic challenger and current House member Mary Peltola. Is Teacher Dan in it only (or mostly) to siphon votes from Incumbent Dan? A NY Times story today reaches an uncertain verdict. Teacher Dan vociferously denies that he's running as a spoiler/siphoner, professing a desire to tur...

My latest Verdict column discusses the news that the University of Michigan has adopted a policy (beginning in fall 2027) under which undergraduates' first-semester grades will be masked. And when I say the column discusses the news , I mean that literally. While I say a few words about the costs and benefits of the UM policy, I am mostly interested in the fact that it has garnered so much attention. Colleges and universities around the country have numerous policies regarding academic matters such as grades. In any given year, some of them change. Why was this change national news? The answer, I suggest, is that it fits a pre-existing narrative about the place of universities (especially elite ones) within the culture war. In the course of describing the new policy, I note that its main purpose is to ease some of the anxiety that new college students feel, which is more acute now than in the past because of an overall increase in anxiety and other mental health challenges faced b...