Dorf on Law

 By Eric Segall Between January 2009 and May 2018, the United States endured 288 school shootings, while the second-place country, Mexico, had only eight. Since then, school shootings have occurred much more frequently in America. Nineteen students and two teachers were killed in 2022 at an ELEMENTARY SCHOOL in Uvalde, Texas. In 2023, there were 346 school shootings across our country, almost one a day. All in all, between 2018 and 2023 there were over 1200 school shootings in the United States.  In light of these numbers it is not surprising, though it is revolting, that it is now a common occurrence for schools to have active shooter drills. We live in a country where our children simply are not safe, and our communities are routinely traumatized by mass shootings, and nothing changes. The gun nightmare in America transcends school shootings. Wyoming, along with a few other western states, have high rates of suicide by guns. According to an officer  at a medical cent...

I am more than willing to defend government regulation of business, but I do so only because the alternative is worse.  That is, it would be great to live in a world in which regulation were entirely unnecessary.  After all, regulating businesses' activities is neither fun nor easy.  It requires setting up processes that are fair and thorough, promulgating rules that are informed by expertise (which is often expensive to acquire and apply), and it creates an adversarial relationship that is obviously worse than an atmosphere of cooperation and positive back-and-forth communication -- or what is sometimes called enlightened self-interest. This is necessary to state up front because the people who think of themselves as "pro-business" -- but who are in fact ultimately bad for business -- have conjured up a story in which governments are positively eager to impose rules on businesses, apparently due to some combination of spite and jealousy.  They ask truly weird rhetor...

On Thursday night, Alabama carried out the first-ever U.S. execution of a human being by nitrogen gas when it used that method to kill Kenneth Eugene Smith. According to the AP report : The execution took about 22 minutes from the time between the opening and closing of the curtains to the viewing room. Smith appeared to remain conscious for several minutes. For at least two minutes, he appeared to shake and writhe on the gurney, sometimes pulling against the restraints. That was followed by several minutes of heavy breathing, until breathing was no longer perceptible. While recounting the same details,  the New York Times reports that "Alabama attorney general, Steve Marshall, hailed the execution as a 'historic' breakthrough." That reaction might most charitably be attributed to confirmation bias, given that   Smith apparently suffered terribly. Shaking and writhing while conscious are typically signs of extreme distress. Thus, the execution seems to have vindicate...

The Supreme Court recently granted cert in Glossip v. Oklahoma . If the name "Glossip" sounds familiar, that's because this is Richard Glossip's second case on the SCOTUS plenary docket. He was one of three petitioners in Glossip v. Gross , which was a challenge to Oklahoma's use of the sedative midazolam as one of three drugs in its lethal injection execution protocol. Here's how Justice Sotomayor described the issue in her dissent in that case: The State plans to execute petitioners using three drugs: midazolam, rocuronium bromide, and potassium chloride. The latter two drugs are intended to paralyze the inmate and stop his heart. But they do so in a torturous manner, causing burning, searing pain. It is thus critical that the first drug, midazolam, do what it is supposed to do, which is to render and keep the inmate unconscious. Petitioners claim that midazolam cannot be expected to perform that function, and they have presented ample evidence showing that ...

Now that Nikki Haley has surprised everyone by staying in the presidential contest even after losing by double digits in New Hampshire, the standard narrative is that she is a poised, restrained, reasonable conservative of the old-school plutocratic style.  In previous columns, I have described her as a policy ignoramus , a ludicrous deficit scold , and the beneficiary of being able to stand on stages next to comically inept opponents who cannot help but make her look better by comparison. In a Dorf on Law column on January 11, I added that although the differences between a Trump presidency and a Haley presidency would be real, we as a country would ultimately end up in the same place: one-party autocracy.  That is, there are numerous people who would be jailed or killed in a Trump perma-presidency, whereas there is no reason at this point to think that Haley would want to become a brutal autocrat.  In that sense, we should of course prefer the candidate who is not op...

The current governor of the great State of Florida is no longer a candidate for President of the United States.  Because of my ongoing ties to the Sunshine State -- in particular, my affiliation with the for-now-highly-ranked flagship campus of its state university system -- I will have occasion to write more in the future about state-level matters with which that man is involved.  Today, however, is an opportunity to write his political obituary.  Some columns are more enjoyable to write than others. It was only three days ago that Ron DeSantis "suspended" his presidential campaign, but his departure from the race is already very old news.  This is only partly because the political news cycle quickly moved on to the New Hampshire primary results, in which the two remaining Republican candidates continued to say absolutely nothing useful while managing to further degrade the US political environment.  DeSantis's departure feels like stale news mostly, however, b...

In my two previous essays ( here and here ) on last week's oral arguments in  Relentless, Inc. v. Dept. of Commerce  and  Loper Bright Enterprises, Inc. v. Raimondo , I explained that Justice Kavanaugh's complaint that Chevron deference is destabilizing has, as its ultimate target, all delegations of discretion to administrative agencies. In today's essay, I tackle a different aspect of the cases: the hyper-formalism of one key line of argument that various conservative Justices pushed and how it draws support from a view closely associated with the late Ronald Dworkin. The conservative Justices' key argument was articulated in various ways but most clearly by Justice Alito in colloquy with Solicitor General Prelogar (which you can find at pages 114-17 of the transcript of the  Relentless argument linked above). Below I'll paraphrase it in a way that I think makes it as strong as possible, but first, for the benefit of readers who are not immersed in the finer deta...

In my essay on Thursday discussing last week's SCOTUS oral arguments regarding whether to overrule Chevron deference to administrative agencies, I contended that a claim by Justice Kavanaugh--that Chevron  is destabilizing because it permits a Republican administration to change policy from a Democratic one and vice-versa without any change in statutory text--was not really aimed at Chevron but at the very notion of delegation of discretion to agencies. I explained that an express grant of such policy discretion allows just as much inter-administration switching, but that unless the Court were to insist on a very strict version of the heretofore almost toothless nondelegation doctrine, express grants of discretion are permissible. Thus, I concluded that Justice Kavanaugh's reasoning is of a piece with calls by some of his colleagues to return us to the pre-switch-in-time Supreme Court's restrictive nondelegation doctrine and thus severely undercut the regulatory state. Thu...