Dorf on Law

Note to readers: My second column of this week was supposed to run today, Friday the 8th.  However, Professor David Marcus's guest column, " Meaningful Campus Engagement with Government Officials: A Response to UCLA’s Critics ," which is an excellent and enlightening discussion of a recent event at UCLA Law, was the fifth column of the week, and I want to leave it as the most recent new essay on the blog for the rest of the day. Tomorrow, in a very rare instance of new content appearing on  Dorf on Law  over a weekend, I will offer my planned column (addressing an entirely different subject ). I do feel the need to offer one small note regarding Professor Marcus's essay, in which he referred to another incident regarding student protesters at a different elite law school.  He wrote: " Nothing like what has happened on other campuses, where speakers could not continue , happened at UCLA."  The hot link in that sentence takes readers to a different professor...

On Tuesday, April 21, UCLA Law’s Federalist Society chapter hosted a lunchtime event with James Percival, general counsel at the U.S. Department of Homeland Security.  Shortly after the event’s conclusion, carefully selected video clips of moments from the hour began to circulate online.  These misleading clips have gone viral, fueled in part by Trump Administration social media accounts. The event has become the latest skirmish in a relentless conservative campaign to discredit universities as bastions of illiberal wokeness. Critics of UCLA Law claim that our administration failed to protect a speaker from gross violations of free speech and civility, and that UCLA students are afraid to debate ideas.  I was there.  What happened is not what you have heard.  What follows is a lengthy description of all I know about the April 21 event.  I base the following on my observations as an attendee and on numerous conversations with colleagues and students over the...

On Monday, the federal Department of Education (DOE) launched a Title IX investigation into Smith College for its practice of admitting transgender women and according them the same respect as other students. Smith is, famously, a women's college, having produced such notable alums as Sylvia Plath, Gloria Steinem, and Julia Child. (Full disclosure: my younger daughter is currently a senior at Smith, scheduled to receive her degree in just over a week.) The DOE press release  says that the government is investigating Smith "for admitting biological men and granting them access to women-only spaces, including dormitories, bathrooms, locker rooms, and athletic teams." It includes the following statement by Assistant Secretary for Civil Rights Kimberly Richey: "An all-women’s college loses all meaning if it is admitting biological males . . . ." The term "biological males" is Trump-administration-speak for "trans women." But here's the thing....

On Friday of last week, the Fifth Circuit issued an order effectively banning "mail-order abortions" via mifepristone on a nationwide basis. Its ruling temporarily voided the FDA rule, formally adopted in 2023, that permits doctors to prescribe mifepristone via remote consultations, with the pills to follow in the mail. Readers will recall that two years ago the Supreme rejected a similar effort in FDA v. Alliance for Hippocratic Medicine . In that case, doctors who opposed abortion sought to challenge both the 2023 expanded access FDA rule and the original 2000 FDA approval of mifepristone. The Court found that such doctors, who did not themselves prescribe mifepristone, were asserting a too-speculative claim when they averred that they might have to treat patients who suffered complications from mifepristone. The doctors' group thus lacked standing. The current case was brought by the state of Louisiana. According to the Fifth Circuit, the state has standing where the ...

An old friend of mine had a go-to joke that made me laugh every time.  Whenever we were watching a TV show or movie, or talking about a natural disaster, or reacting to news about an unprovoked attack by an animal or a person, my friend would say: "What if we tried to reason with them?"  A flock of locusts descends on a town: "What if we tried to reason with them?"  A series of tornadoes tears through the Midwest: "What if we tried to reason with them?"  Rage zombies dismember and eat humans in a post-apocalyptic hellscape: "What if we tried to reason with them?" In a December 2024 column , I referred to a vivid example of the naive idea that my friend was mocking: The second movie in the "Mad Max" saga, the 1981 classic " The Road Warrior ," includes a scene in which The Humungus, the leather-daddy leader of a murderous post-apocalyptic biker gang, makes an offer to a band of survivors who are holed up in a fortified oil r...

During the oral argument in Louisiana v. Callais , Justice Alito repeatedly described the Court's decision in Rucho v. Common Cause as holding that political gerrymandering is constitutionally permissible. For example, at page 12 of the oral argument transcript , he asked this question: "if incumbent protection is a permissible districting criteri[on], then, under Rucho , isn't seeking partisan advantage also an objective that a legislature may legitimately seek?" The "if" there isn't really conditional. It was clear during the argument that Justice Alito thought that both incumbent protection and seeking partisan advantage are legitimate districting goals pursuant to Rucho . However,  Rucho did not hold that political gerrymandering, incumbent protection, seeking partisan advantage, or anything else is constitutionally permissible. It held that challenges to political gerrymandering present nonjusticiable political questions and are thus committed to s...

The Alien Tort Statute (ATS) was enacted by the first Congress as part of the Judiciary Act of 1789 and, with the exception of references to particular federal courts that changed over time, has not been amended since. In current form , it provides: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." In the last decades of the twentieth century, human rights lawyers discovered that they could use the ATS as a means for non-citizens to sue in U.S. courts for human rights violations. The first major case to vindicate this strategy was the decision by the U.S. Court of Appeals for the Second Circuit in Filartiga v. Pena-Irala , which involved a Paraguayan citizen suing another Paraguayan citizen for the torture and murder of the plaintiff's son in Paraguay, where the defendant was Inspector General of Police in Asuncion. The circumstances of the ...