Dorf on Law

I do not want to bury the lead here, so I will state up front that Rachel Maddow recently avoided replicating a very common mistake in discussing possible election shenanigans, a mistake that both Democrats and Republicans often make.  Her non-error deserves attention and praise.  It will take me some time here to lay out what she wrote and why it was such an important moment, but I wanted to put that key point in this first paragraph.  As I will explain below, the difference between getting this seemingly obscure point right and wrong could be the difference between the US continuing as a constitutional democracy or becoming a one-party autocracy. Now for the background.  Starting in the Fall of 2020, it became necessary to pay attention to the various weak links in the US presidential election system.  Specifically, a Trump campaign advisor admitted openly and on the record to a journalist (Barton Gellman of The Atlantic ) that their plan was to sow chaos in ...

In April of this year, I was one of a number of speakers at a daylong conference at UCLA Law School celebrating and critically examining (which is how we in the academy celebrate) the work of Professor Eugene Volokh on the occasion of his departure from UCLA for the Hoover Institution.  Constitutional Commentary will be publishing the papers we speakers presented. I've completed a sufficiently polished draft to post mine on SSRN . For those readers who don't have the time to read the full paper (which is pretty short, just over 10,000 words, including footnotes), here's the abstract: Conflicts between free speech and antidiscrimination law make up a substantial subset of Eugene Volokh’s wide-ranging scholarship. That work includes: criticism of those courts that have interpreted expression that would otherwise be protected under the First Amendment as triggering liability for the creation of a hostile workplace environment under Title VII; views about the proper scope of co...

My latest column for Verdict discusses a recent ruling by a federal district judge in Buffalo, NY, preliminarily enjoining state Attorney General Letitia James from bringing civil enforcement actions against crisis pregnancy centers for various deceptive business practices. As I explain in the column, the heart of the opinion--authored by a very anti-abortion Trump appointee--is the claim that the crisis pregnancy centers are not engaged in commercial speech because they provide their advice and services for free, that therefore the threatened enforcement actions must be measured by the strict scrutiny applicable to content-based regulations of speech, and that they fail. The underlying speech consists of promotion of and advertising for "abortion pill reversal" (APR). People seeking to end their early pregnancies through medication abortion are typically prescribed the two-drug protocol of mifepristone followed by misoprostol up to 48 hours later. But if they have a sudden ...

Last week, I somewhat surprised myself by arguing here on Dorf on Law that the 2024 election -- and the impending coup that Donald Trump's Republican Party is already setting in motion -- makes almost all policy wonkiness irrelevant.  When one of the two major parties is willing to seize power notwithstanding what happens at the ballot box , that is a problem.  When that same party's vision of post-constitutional America is a full-on totalitarian, repressive state, that is when we might consider it a luxury to pretend that the old political rules are still relevant or that the stakes are somehow non-existential.  I love policy talk, but come on. I assume that a Harris-Walz administration, should it ever be allowed to come into existence, would be a center-left grab bag of policies that I would mostly support (at least mildly), with some disappointments mixed in.  But at the very least, what we currently know of the Democrats and their nominees is all we truly need ...

Early this month, I saw an electronic billboard in Times Square with a picture of Robert F. Kennedy, Jr. and the slogan "Only Kennedy Can Beat Trump." The billboard was: (a) a waste of resources by the pro RFK Jr. Super PAC that purchased it; (b) a lie; and (c) also misleading. (a) The billboard was a waste of money because the super PAC ran it only in NYC and the District of Columbia . Even when President Biden was the presumptive Democratic nominee and running behind Trump in national and swing-state polls, Biden had enough of a lead in New York State and D.C. as not to put their electoral votes in play.  (b) The billboard space and accompanying truck ads were apparently purchased before President Biden had dropped out of the race. At that time, it did indeed look very likely that Biden would lose to Trump. The claim that "only Kennedy can beat Trump" was nonetheless a lie because the statement "only X can beat Y" is false if X cannot in fact beat Y, reg...

There is a sweet hereafter where people who go out of their way to pretend that Republicans are normal and that "Democrats lie, too" will live in glory, luxuriating in a well-earned eternity of admiration and respect.  At least, that is what self-styled centrists seem to believe.  This is the slightly updated version of Bill Clinton's infamous habit of negotiating against himself and then wondering why other people thought that he could be played for a sucker, except that now it is not only self-styled New Democrats who are doing it.  The same press environment that created a generation of bothsidesist instincts is now acting as if it is still 1992. This is virtue signaling par excellence.  Reporters, headline writers, pundits, and far too many politicians want to be able to strut about and say that they are "fair," except that their definition of fairness involves treating unlikes alike.  And are they rewarded for refusing to admit that one party has gone off ...

Does it matter that President Joe Biden is being lionized for doing what was in fact the least he should have been expected to do -- something that was notably and unambiguously good for him, both now and for his place in history?  I think it does matter, but it is in any event worth taking a few moments to review where things stand in the aftermath of Biden's long-overdue decision not to seek this year's presidential nomination of the Democratic Party. I hope that readers can forgive the negativity here, especially given how much fun the Democrats have clearly been having at their convention this week in Chicago.  Even I, the quintessential pessimist when it comes to US politics, have admitted to feeling a tiny bit of optimism in the post-Biden environment.  And with Democrats feeling emboldened, it is perhaps understandable that they would take an expansively generous attitude toward their retiring leader, with even borderline hagiography being all but a given. Biden ...

Last week, in Dep't of Education (DOE) v Louisiana , a 5-4 Supreme Court rejected the federal government's request to stay, in part, a Fifth Circuit ruling that invalidated DOE rules that, among other things, forbid schools, colleges, and universities receiving federal funds from discriminating on the basis of gender identity or sexual orientation. To readers just following the headlines, that would have been deeply puzzling. After all, just four years ago, in Bostock v. Clayton County , the Court held that forbidden sex discrimination under Title VII includes forbidden discrimination based on gender identity or sexual orientation.   Subject to a limited exception I discuss at the end of today's essay, the language of Title IX is not materially different from that of Title VII, and four of the six Justices in the majority in Bostock are still on the Court, but one of the ones who isn't--Justice Breyer--was replaced by Justice Jackson, who presumably would not want to se...

With the Democratic National Convention underway and the Presidential and Vice Presidential tickets set, I want to use this column to make some observations on the sorts of pre-politics careers that Presidents, Vice Presidents, and nominees for those offices have had. My goal is to see whether we can draw any general lessons, but I begin with an anti-generalization: ideology, party, and temperament almost certainly play a larger role in determining what kind of candidate and President someone makes than does their pre-political profession. Accordingly, some of my remarks will aim to show that the particular training isn't especially relevant. I'll also add an obvious caveat. Some people fit multiple categories. For example, Tim Walz was both a soldier and a teacher; J.D. Vance was a marine (which, for our purposes I'll count as "soldier," a term I'll use to capture military service more broadly) and a lawyer. And an additional caveat: I'm not going to atte...

The sudden but not entirely surprising resignation last week of Columbia University President Manouche Shafik belies a bit of conventional wisdom that goes like this: If you're getting criticized from people on both sides of a given controversy, that means you're striking the right balance between their competing demands. Shafik was bitterly criticized by conservatives and others who thought she was under-reacting to antisemitism on the Columbia campus by insufficiently enforcing rules against people in encampments and in other ways demonstrating against Israel's war in Gaza. She was also bitterly criticized by the demonstrators and others after she called the police onto campus to make arrests. Moderation by threading the needle between under-reacting and over-reacting? Hardly. It is possible to under-react and then over-correct or simply to handle a situation badly, full stop. Depending on how one counts, the presidents of either three Ivy League universities (U Penn, Har...