Posts

Priorities for a Project 2029

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My new Verdict column addresses the question of what can and should be done to mitigate the damage from the Supreme Court's further destruction of the Voting Rights Act (VRA) in Louisiana v. Callais . The column is aspirational in that it proposes federal legislation that could not be enacted unless and until Democrats hold a majority in both houses of Congress and there is a Democratic president. Even then, enacting such legislation would almost surely require ending the filibuster. In today's essay, I consider where such legislation should fit in a legislative agenda for 2029 or, in the event that Democrats don't control Congress and the presidency in 2029 but a constitutional republic still survives into the further future, 2033, 2037, or whenever. The column discusses two bills that passed the House but died in the Senate during the Biden administration. One, the John R. Lewis Voting Rights Advancement Act  (JRLVRAA), would amend the VRA. Because it strengthens mechani...
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Reasoning With the Other Zealots While Under Attack

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Should professors reflect on their successes and failures, taking the proverbial hard look into a mirror to ask how we could do better?  Of course we should.  In fact, everyone should do that, no matter what kind of work they do -- or even if they do not engage in paid work at all.  Being a decent human being involves self-doubt, commitment to doing better, and a fundamental humility that should always guide us, even when we are being brash or assertive.  Too many people do not do that, however, and the world is seeing the kind of havoc a presidential administration staffed entirely by such people is capable of wreaking. I focused on professors in my opening sentence, however, because my field is rife with people who are committed to telling the rest of us that we are being insufficiently introspective.  In a column last week, " Reasoning With Zealots While Under Attack by Those Same Zealots ," I responded to a particularly clever bit of misdirection o...
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The Dishonorable Judge James C. Ho

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On Friday, Professor David Marcus penned a guest blog here about the recent dust-up at UCLA Law School concerning a Federalist Society event featuring James Percival, the General Counsel for the United States Department of Homeland Security. This incident has been blown way out of proportion by the usual suspects, so I urge readers to read Professor Marcus's post and watch the video .  Speaking of out of proportion, Fifth Circuit Judge James Ho, a former law clerk for Justice Thomas, flew, in his own words, "halfway around the country," to moderate a Federalist Society event talking about free speech on campus. Judge Ho did not play the role as disinterested moderator and said his peace during the panel. He then allowed Professor Josh Blackman to reprint his remarks over at the Volokh Conspiracy. Judge Ho's inflammatory, partisan, and paranoid reactions to the UCLA incident reveal a lot about him and our current judicial politics. He began by saying that the ...
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What, You Thought the NYT Would Stop Fear-Mongering About Government Debt?

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If you are one of the people who makes important decisions at  The New York Times  -- a newspaper whose publisher actually had the nerve to  write  in 2024 that he has " no interest in wading into politics" -- you make sure that you wade into politics whenever possible, and the more you can do it from the right, the better.  You also pretend not to be doing what you are clearly doing.  My most recent primal scream about this NYT verity was " We're Doing Horse-Race Political Analysis? Now?! Really?!! " published on February 27 of this year. And if there is one policy area in which  Times  editors cannot resist mucking around in political issues, it is economics.  They often, for example, push anti-progressive-tax narratives, as I will discuss in a column in the next week or so.  Their go-to move, however, is to partner with " deficit scold " organizations to push a narrative about the evils of public borrowing.  Hence, the lead st...
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Bonus Weekend Content on Dorf on Law Tomorrow

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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...
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Meaningful Campus Engagement with Government Officials: A Response to UCLA’s Critics (Guest Post By UCLA Law Professor David Marcus)

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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...
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The Trump Department of Education's Investigation of Smith College Qua Women's College is Baseless

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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....
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The Fifth Circuit's Dubious Accounting Compounds Its Dubious Discussion of Precedent in the Latest Mifepristone Case

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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 ...
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