Dorf on Law

Judge Irving Kaufman of the U.S. Court of Appeals for the Second Circuit was an infamous bosshole to his clerks. He frequently pitted them against each other, going so far as to designate one clerk as his favorite and assigning all work to that clerk, who would then be responsible for further divvying it up with co-clerks. But it was easy to fall out of favor with Judge Kaufman, leading the role of favorite--and with it the favored desk--to shift frequently based on the judge's whims. The job of a law clerk involves long hours but clerks rarely quit because a federal appellate clerkship is a plum job that opens doors for an entire career. Most judges have never had a clerk quit. Judge Kaufman's clerks quit on a regular basis. I learned about Judge Kaufman from the lore among Second Circuit clerks (including my late wife, Sherry Colb, who clerked for Judge Feinberg in 1993-94), but I have confirmed nearly all of what I heard from other published accounts, including Martin Siege...

Will we ever reach the point where cars are fully autonomous (that is, driverless)?  If so, how soon?  At that point, will the American political system create -- and enforce -- safety regulations that are not simply blank checks for the tech/auto companies?  And most importantly, when we pour money into driverless cars and the infrastructure that they will require, what are the tradeoffs?  That is, what are the possibly better alternatives that we will leave behind? Last Friday, I returned to the topic of driverless cars, about which I had previously written only twice (in 2016 and 2023 ).  Having written Part 1 of "Now We'll See Whether the Democratic Establishment Truly Cares About Democracy" just the day before, I was burned out and thus chose to delay writing a very heavy Part 2 until Tuesday of this week, intending to write a relatively light Friday column on a relatively apolitical topic.  So much for that.  In closing that column, I con...

How judges should interpret the United States Constitution is an issue as old as the Constitution itself. The myth that the text plays a serious role in constitutional cases can be debunked by simply recognizing that judicial review itself, a power never used by judges anywhere in the world prior to the American colonies, is nowhere mentioned in the Constitution. Nevertheless, as a matter of structure, history, and common sense, the power of judges to refuse to give effect to laws that violate the Constitution is an essential feature of American democracy. Moreover, it is a justifiable conclusion based on a theory of constitutional interpretation I will call pragmatic pluralism (which is a phrase used by some in the sciences as well). Perhaps the best example of judicial pragmatic pluralism comes from one of the most important cases in American history- McCulloch v Maryland . This litigation involved the first important constitutional debate arising after ratification: the constitutio...

For those of us who follow US politics reasonably closely, the 2026 primary season has been quite a ride.  And we are back at it today, with several more states holding primaries.  One of the safest predictions I can make is that lazy pundits and journalists will once again describe conservative Democrats as "moderates," even though there is not even a passing attempt to analyze -- or even to identify -- an affirmative vision of their policy views on economics, foreign affairs, climate, and other issues, much less to show how those views are somehow in the middle of a range of identifiable competing alternatives. Even so, the coverage from both pundits and "straight news" sources will again lean into the same old caricature: wild-eyed lefties versus worried moderates.  How can I be so sure about that?  Because that is what has been happening for years, and the political conversation in this country is nothing if not tediously predictable. Last week, in Part 1 o...

A little over two years ago, in Loper Bright Enterprises v. Raimondo ,   the Supreme Court jettisoned the Chevron  doctrine requiring judicial deference to reasonable administrative agency interpretations of unclear statutes they are charged with enforcing. Because the gears of academic publications turn much more slowly than those of the blogosphere, my article explaining why a key postulate of Loper Bright is wrong has only now been published. I won't claim it was worth the wait, but I do hope that readers will find something worthwhile in it. The paper is titled Deference and the Rule of Law . It's currently available as something called FirstView via Cambridge University Press here . The final version (which will not be subject to any further editing) will appear in the Canadian Journal of Law & Jurisprudence, so if you're reading this blog post in the future and the foregoing link doesn't work, you might need to go to the journal's website . Also, if you...

At the end of " Now We'll See Whether the Democratic Establishment Truly Cares About Democracy (Part 1 of 2) " yesterday, I wrote that I would publish Part 2 of that column today.  Upon reflection, however, that topic seems like an unnecessary (and unwelcome) heavy lift on a Friday afternoon, so I have decided to move Part 2 to next week.  Instead, I will end this week with a brief update on a policy matter that is not exactly light reading, but it at least is not about threats to democracy and the rule of law in the United States.  (I have updated yesterday's column accordingly.)  As I like to say,  arguably   too often ): You're welcome. In any event, this is a good time to revisit the subject of driverless cars, aka autonomous vehicles.  One of my current favorite YouTubers is a guy named Dan Toomey at Good Work , whose videos are almost always equal parts informative and hilarious.  Last week, he posted " The fight over driverless cars is her...

Even though the subject matter of today's column is anything but funny, I will begin with a humorous pop-culture reference. In one of the (few) scenes in the movie "Animal House" that is still amusing and inoffensive, one of the Delta fraternity brothers takes the floor at a disciplinary hearing at which his house has been (accurately, albeit vindictively) accused of violating all kinds of Faber College rules. Here is the end of his speech: But you can't hold a whole fraternity responsible for the behavior of a few, sick twisted individuals. For if you do, then shouldn't we blame the whole fraternity system? And if the whole fraternity system is guilty, then isn't this an indictment of our educational institutions in general? I put it to you, Greg - isn't this an indictment of our entire American society? Well, you can do whatever you want to us, but we're not going to sit here and listen to you badmouth the United States of America.   That e...

Readers of this blog know that I am a harsh critic of the Roberts Court (to say the least). The current GOP justices have dramatically altered the constitutional law of abortion, affirmative action, gun control, separation of powers, free speech and free exercise, among many others, in a short period of time. Partisanship is a much more important factor to the Roberts Court than fidelity to precedent, text, or history, and it is not close. The Court's utter disregard for prior cases, however, has long been a feature of Supreme Court decision-making. Constitutional law changes substantially in this country when the justices’ politics and values change, and often for no other reason. The Supreme Court has never been an institution that puts law in any form above the justices' aggregate policy preferences. This disregard of prior law is not a 21st-century problem. A dramatic story rarely told that unfolded more than 150 years ago reveals the true character of the Supreme Court. ...