Dorf on Law

My latest Verdict column is titled From “Fuck the Draft” to “Swinging Dicks”: Appropriate and Inappropriate Vulgarity in Judicial Opinions . It discusses the already-notorious dissent from the denial of  en banc  reconsideration by Ninth Circuit Judge Lawrence VanDyke in Olympus Spa v. Andretti . As I explain in the column, there are two main differences between the use of the phrase "Fuck the Draft" by the lawyer and in the eventual Supreme Court opinion in Cohen v. California versus Judge VanDyke's use of the phrase "swinging dicks" in his Olympus Spa dissent: First, in Cohen,  the question whether the phrase "Fuck the Draft" (written on a jacket worn by the petitioner) was protected free speech was the very heart of the case, whereas Judge VanDyke gratuitously introduced the vulgar "swinging dicks" into Olympus Spa . Second, although no doubt some sensibilities were offended by Cohen's display and its role in Supreme Court litigation...

Anthropic’s complaint against the federal government asserts five claims, the second of which is a First Amendment claim. The main First Amendment theory Anthropic asserts is that the government retaliated against it “for speaking on issues of AI safety and responsible AI use” by designating Anthropic a supply chain risk and requiring every federal agency to immediately cease all use of Anthropic’s technology. In addition to the arguments Anthropic has already made, it likely has an additional, independent, argument for why the government’s actions violated the First Amendment, based on 303 Creative LLC v. Elenis . The short form of the argument is that to give the Pentagon what it wanted, Anthropic would have had to create new Claude models that would be fine with engaging in mass domestic surveillance and autonomous weapons (so long as they’re legal), and 303 Creative protects Anthropic from being coerced into doing this because Anthropic’s process for creating Claude models—Consti...

I was invited to a dinner this evening that will be attended by, among others, a fair number of students. My hosts asked if I would speak for a bit. Originally, I had thought to give a talk about animal rights but my hosts pointed out that, with the exception of me and perhaps one or two others who would be enjoying the vegan option, most of the assemblage would be eating animal products. My hosts thought that under the circumstances, such a talk might make the other diners uncomfortable. Although I try not to be a judgmental jerk about it, I don't really have a problem with making people uncomfortable about what they eat. That said, on reflection, I took my hosts' admonition to heart because I concluded that the fact that people would be eating dead animal parts while listening to me would make them less receptive to the message than they might be under different circumstances. At my hosts' suggestion, therefore, I'm going to talk about war. The proposal, which I accep...

In January 2025, I took the deliberately provocative position that " Being Unable to Buy a House (as Opposed to Renting) is Generally a Good Thing ."  This morning, I came across Michelle Goldberg's latest  New York Times   op-ed , in which she described having attended a campaign event headlined by one of the recent wave of young, extreme right-wing provocateurs, this one running a fringe campaign for governor of Florida: After [James] Fishback's speech, I met Jeremiah Kimmell, a 22-year-old wearing one of the blue “America First” baseball caps common to [Nick] Fuentes’s movement, and the 20-year-old Charles Metcalf. Kimmell runs a land-clearing business but sees little prospect of an independent adult life. “We live with our parents,” he told me. “We don’t see any end in sight, in that we’re not going to own a home. Something has to change.” Is it possible that the lurch to the anti-democratic, hateful right was driven in part by decades of terrible social messaging...

On Monday, Anthropic sued the federal government in federal district court in California, alleging that the various punitive actions taken by Defense Secretary Pete Hegseth and President Donald Trump are unlawful. The complaint states five causes of action. In addition, in a separate "petition for review" filed in the DC Circuit, Anthropic challenged its designation as a supply-chain risk. The company needed to file two separate actions because the DC Circuit has exclusive original jurisdiction to review supply-chain risk designations but, as an appeals court, generally lacks jurisdiction for other federal question cases. In today's essay, I'm going to discuss just one of the claims in the federal district court complaint. I express no opinion about the other claims in that complaint or about the supply-chain risk complaint. I want to raise a question about Anthropic's contention that the government is retaliating against it for free speech. Recall that Anthrop...

Note to readers: I am more than a bit worn down by writing about the ongoing political insanity in the US (see, for example, my columns from this past Thursday and Friday ), so today's column reflects my conscious decision to take  a brief respite  by disappearing into policy wonkitude.  And what could be wonkier than fiscal policy and retirement in the United States?  Join me, won't you?     A large amount of my academic work has focused on the Social Security system.  More accurately, I have (with one exception, noted below) analyzed only one part of what are in fact three separate parts of Social Security.  The acronym OASDI stands for Old-Age, Survivors, and Disability Insurance, which is the official name of the Social Security system.  Those three parts -- traditional retirement benefits, benefits paid to eligible family members after a worker's death, and benefits connected to specific disabilities -- support millions of peo...

Last week, in Mirabelli v. Bonta , the Supreme Court by a 6-3 ideologically divided vote invalidated (on a nominally interim basis) a California law forbidding schools from providing parents with the information that their children are engaged in gender-transitioning unless their children consent or there is a compelling need to do so. For parents who have religious objections to their children transitioning, the Court relied on last term's decision in  Mahmoud v. Taylor . For parents whose objections are not rooted in religion, the Court relied on the substantive due process (SDP) right of parents to direct the upbringing of their children, which, it said, "includes the right not to be shut out of participation in decisions regarding their children's mental health." I'm going to focus mostly on the application of Mirabelli to parents whose objection to their children transitioning is not rooted in religion, even though I recognize that it would not be difficult f...

A headline from yesterday's  New York Times initially seems shocking but, after even a moment's reflection, is not surprising at all: " Republican Senator Attacks Protester ."  Also unsurprising, but for a very different reason,  is that  The Times  has now changed its headline to this: "Senator Helps Officers Forcibly Remove Protesting Veteran From Hearing."  How was the good senator being helpful ?  The news article under that anodyne headline offers this alarming description: Video footage of the episode shows  [Brian] McGinnis, dressed in a Marine uniform with his arm hooked around a door in the Hart Senate Office Building during a subcommittee hearing on military readiness . Three Capitol Police officers struggle to grab Mr. McGinnis and pull him from the door when Senator [Tim] Sheehy, a former Navy SEAL, dives into the fracas and pulls Mr. McGinnis by the leg. “No one wants to fight for Israel,” Mr. McGinnis shouts before an audible ...