Dorf on Law

Professor Larry Solum,  in addition to running the influential Legal Theory Blog, is one of the country's leading academic originalists. He very recently had this to  say  about the  Dobbs   decision, which reversed  Roe v. Wade: Dobbs does not employ an originalist methodology or reasoning. This is really not subject to reasonable dispute: Dobbs’s reasoning is based on substantive due process and does not engage with the relevant clause, the Privileges or Immunities Clause from an originalist perspective.  The outcome of Dobbs might be defended on originalist grounds, but that does not transform the reasons it provides and the methods it employs into originalism. There are a number of important and fascinating aspects of this description. First, for almost 150 years the Supreme Court has used the Due Process Clause of the 14th Amendment to review unenumerated rights cases like abortion-not the Privileges or Immunities Clause. Professor Solum app...

To be clear up front, I am not an expert on anything tech-related, certainly not large-language models (LLM's, commonly miscalled AI, a mistake that I am reluctantly continuing to ape).  Had it been up to me, I would have had nothing to do with any of this, and the world would have been a better place all around.  Because the companies frantically pushing AI are insatiable, however, we are not given the option of having nothing to do with any of this, which means that we all -- even techno-ignoramuses like me -- are becoming involuntarily knowledgeable about various types of AI-based nonsense. Last week, I offered my first full column addressing AI, which included a reference to my only previous column that touched on AI at all.  In that earlier column (published in October 2025), I brought up AI in the context of trying to understand why financial markets were not falling as a result of Donald Trump's plainly terrible economic policies, most obviously his completely un...

Major Correction : Below you will find a blog post in which I made a boneheaded reading comprehension error. I'm leaving it up because, having in the past criticized others for hiding their errors, I think it only fair that I own mine. As you'll see, in what follows, I read the word "more"  in the last sentence I quoted to mean "less," which is pretty stupid. Thus, my assertion that ratifying the original First Amendment would result in a House of Representatives with over 6,500 members is not true--or rather would be true only if Congress agreed to increase its own size to that extent, which is effectively impossible. Having said all of that, I think there is merit in increasing the size of the House by statute, although there are of course political obstacles to doing that. Okay, here's my original blog post: ----- Whenever I hear someone say that "the First Amendment is first for a reason," I'm tempted to respond: "Yes, and the reas...

As reported yesterday in The NY Times  and likely dozens of other places, a new study by Lawfare found that roughly one in every sixteen of the January 6 rioters who were granted clemency by President Trump have "been arrested for and charged with—and in the vast majority of cases convicted of—other crimes, at least some of which were actively enabled by the clemency actions." The Lawfare study is the result of painstaking research. By sifting through records in multiple jurisdictions, the study's author, Katherine Pompilio, found more than twice as many instances of re-arrest than had previously been reported. Even so, the updated figure is probably an undercount, as she herself told the Times. Who could have guessed? The short answer is: anybody who knows anything about political violence. Here's most of the abstract of a 2020 paper : One of the most consistently supported conclusions in criminology is that prior criminal record predicts subsequent criminal behavio...

I do not pay much attention to day-to-day fluctuations in market prices for stocks, bonds, or commodities. Nonetheless, just by reading the regular news over the last several months, it has been difficult to miss the movement of oil prices. Much of the political news coverage focuses on gasoline prices--because apparently Americans who are largely unconcerned about an authoritarian government that scapegoats and persecutes immigrants, deploys the tools of government to enrich the president and persecute his critics, and cripples the government's ability to respond to natural disasters, public health crises, and other urgent problems, will be moved to object to its unlawful use of military force if  that makes it more expensive to fill up their gas tanks and purchase other items affected by higher energy costs. Because gas prices move more or less in tandem with market oil prices, the news coverage also frequently includes reports of those market prices going up or down. Those price...

[Update: A reader who has reason to know wrote to tell me that the CIA was/is not as reliable re gathering facts as I indicate in the column below.   Or, to paraphrase myself: “ Actually, the CIA ain’t no CIA, either!”  I’ll accept that as a friendly amendment.] I must begin with a confession: It was only after I wrote the headline for this column that I noticed that the "I" in both acronyms stand for "intelligence" (an oversight that caused me to question mine).  Be that as it may, there is in fact a potentially useful comparison between Artificial Intelligence (AI, which should in fact be referred to as LLM's, for large-language models, but I am not going to fight that battle here) and the Central Intelligence Agency.  Trust me that this column eventually includes some very amusing content, but it does begin with seriously bad news. Back in the 1970's and '80's, the CIA was rightly under political pressure for its many foreign policy disasters.  It...

On Saturday,  New York Times  columnist Nicholas Kristof wrote an essay condemning the "Save Our Bacon Act," which passed the House and is currently pending before the Senate as part of the Farm Bill. Save Our Bacon would pre-empt state laws like California's Proposition 12, which establishes minimal welfare standards for the raising of pigs whose body parts are sold in the state. In National Pork Producers Council (NPPC) v. Ross   (2023), the Supreme Court upheld Prop 12 against a dormant commerce clause challenge. However, a ruling either for or against a dormant commerce clause claim sets the boundaries of what states may do only absent congressional action (i.e., while the congressional power to regulate interstate commerce lies dormant). Thus, Congress has the power to supersede NPPC and allow nationwide what Prop 12 banned in California: the sale of pork products from pigs who were born to sows confined to gestation crates in which they lack the space even to turn ...

The state of Florida attempted to sue the states of California and Washington, alleging that the latter two permit undocumented immigrants to obtain commercial driver's licenses even if they cannot read English. Article III of the Constitution grants the Supreme Court original jurisdiction of such state-versus-state cases, and a federal statute,  28 U. S. C. §1251 (a), makes such jurisdiction exclusive of the lower federal courts. Nonetheless, last week, the Supreme Court disallowed the lawsuit in a one-sentence order: "The motion for leave to file a bill of complaint is denied." That order prompted a dissent by Justice Thomas, joined by Justice Alito. They contended, as they had in prior state-versus-state cases in which the Court had likewise denied leave to file, that the Court's doing so was unauthorized. Indeed, the Thomas dissent quoted Chief Justice John Marshall in Cohens v. Virginia : "We have no more right to decline the exercise of jurisdiction which ...

Federal judges are people too, albeit with life tenure and substantial governmental power. Because federal judges are people too, they will sometimes make grave mistakes of judgment when performing their official duties. When such lapses occur, however, federal judges cannot be meaningfully punished unless their misconduct rises to the level of an impeachable offense, which includes only “high crimes and misdemeanors.” And to impeach a federal judge requires a majority vote in the House of Representatives and a two-thirds vote in the Senate. Because of the difficulty of the impeachment process, the question arises who judges the judges when they act badly but the behavior does not rise to the level of an impeachable offense. The answer unfortunately is the judges themselves. Therefore, it is imperative that investigations of misconduct by federal judges be publicly available so at the very least judges can be judged in the court of public opinion. Additionally, how federal judges wor...