Dorf on Law

In this column, although I will first make an announcement that is all about me, I will quickly explain the potential broader significance of the news, which will then allow me to return to a question that I posed last week about the absence of a " higher education gold rush " in 2025.  In short, I am still trying to figure out why -- even in the most promising environment in history for non-US universities to pick off American researchers and thus boost their own absolute and relative stature -- no one seems to be pursuing that winning strategy. But first, the personal news.  Some  Dorf on Law  readers will surely recall that I have been moving around the non-US world for the past few years, most recently moving to Dublin, Ireland, this past Spring.  There will soon be some updates about all of that, but today's news is not about permanently relocating to a new place.  Instead, I am happy to announce that I have accepted an offer to become a Senior Researc...

In a well-known scene in the well-known (but not very good) 1997 movie Air Bud , the protagonist golden retriever is permitted to play in a league game alongside his human teammates because the rule book contains no rule forbidding dogs from playing. The logic is absurd, of course. There is likewise almost certainly no rule forbidding agents of a team from surreptitiously spiking the opponents' water bottles with sedatives that sap their energy, but that doesn't mean that such tactics are permitted. Despite the silliness of its premise, Air Bud led to four sequels and a remarkable nine spinoffs: seven "Air Buddies" movies featuring the original Air Bud's puppies; and two Christmas-themed "Santa Paws" movies. Remarkably, a fifteenth Air Bud movie is slated to be released next year . But perhaps that film should be considered the sixteenth in the franchise, because there is an Air Bud drama currently playing out in Missouri--just not on film. It is the l...

With a major holiday in the US only two days away, this column will be uncharacteristically brief (slightly more than half the usual length of one of my columns here).  I encourage  Dorf on Law 's readers to use the time saved to gather the ingredients for a cruelty-free Thanksgiving. In any event, the question posed by today's headline -- "Where is the Higher Education Gold Rush?" -- reflects my observation about something that mostly has not happened.  Earlier this year, when the chaos of Donald Trump's return to the White House was becoming almost unbearable, it seemed that the rest of the world would quickly seize on an (unearned) opportunity for a "brain gain," hiring American academics who were horrified by what was happening -- not just to their country in general but to US higher education specifically. After all, the Trumpists' early shots at Columbia University and Harvard were truly unprecedented, and things looked to become even worse. ...

A few weeks ago at the Federalist Society National Convention,  Judge Patrick Bumatay of the U.S. Court of Appeals for the 9th Circuit declared that, “we are in the golden age of originalism,”  and that judges should have " unwavering adherence to the original public meaning of the Constitution, come hell or high  water." At the same convention, 5th Circuit Court of Appeals  Judge Andrew Oldham forcefully proclaimed that originalism had won and questioned whether the Federalist Society should remain a "debating society," or just declare victory because "o riginalism does yield clear and objective answers.” These judges are incorrect. Originalism has not won other than as an identity card for people who want to attain success in conservative and Republican Party political and judicial circles. In a forthcoming article, I document extensively the almost complete absence of originalism in most important Roberts Court decisions. But regardless of whether I am ri...

Earlier this week, I summarized and linked to the amicus brief on behalf of myself and nine other constitutional law scholars in the transgender athlete cases currently pending before the Supreme Court. In today's essay, I answer two questions I've received in response. Question (1):  Why is my name listed both on the cover and inside among the ten represented constitutional scholars? Answer : Because I am acting in a dual capacity. I am one of the represented amici because the brief reflects my views as a scholar on the questions it addresses. I am listed on the cover as well because I worked as a lawyer on the brief--in the sense that I played a more substantial role in the writing and editing of the brief than I typically do when I am just one of the represented scholars. To be clear, I won't join a scholars' brief if I don't agree with it, but in many such circumstances, I'll review the draft and offer a few editorial suggestions. Occasionally one of the c...

Recent headlines suggest that resistance against Trumpian totalitarianism might not be futile after all.  " ‘Unforgivable’: Trump’s ‘piggy’ insult is stoking more outrage than usual " (news analysis article in  The Guardian ).  " The Three G.O.P. Women Who Broke Trump’s Grip on Congress " (op-ed in  The New York Times ).  " Is Trump a lame duck now? " (news analysis on CNN's website).  Even two of the very worst columnists out there posted another of those dreary "Conversations" in  The Times , the sub-headline to this one notably asking: "Is [Marjorie Taylor Greene} Paving the Way to the After-Trump?" I do not recommend reading that latter piece, but the larger point is that things are looking unexpectedly dicey for Donald Trump lately.  With that in mind, and because I am not able to write something new today, I offer here a re-run of a  Verdict  column that I published less than a month into the current Trump regime.  In it, I fo...

Yesterday's  Chronicle of Higher Education  included an essay by John W. White, who is an education professor at the University of North Florida.  Titled " Secret Rules Now Govern What Can Be Taught in Florida ," White's piece describes an extreme chilling effect on higher education in the nation's third-largest state, with professors being forced by their university units to remove the words " diversity," "equity," "inclusion," and "culture" from their syllabi.  That is perhaps unsurprising, given that the Sunshine State's governor is still the man who thinks that his "war on woke" was pure genius.  But White explains that the situation is even worse than it looks. As an aside, the emptiness of the word "woke" still astounds.  A few months ago, when the right's outrage du jour was about Cracker Barrel's logo, David French wrote in his  New York Times   column : "Again, this is referring...

In January, the Supreme Court will hear oral argument in West Virginia v. B.P.J. and Little v. Hecox . The cases present the question whether state laws barring transgender female athletes from participation in girls' and women's sports violate Title IX and/or the Fourteenth Amendment's Equal Protection Clause. Lawyers for respondent Lindsey Hecox argue that her case is moot , so there is a chance that the Court will not address it on the merits, but there is no suggestion of mootness in B.P.J . , so one way or another the Court will decide at least the statutory question; if the Court rules for the state on the statutory question, it will be unable to avoid the constitutional issue and so would decide both. There are multiple possible paths to invalidation of the West Virginia ban. (1) The Court could hold that its 2020 decision in Bostock v. Clayton County is controlling. In Bostock , the Court found that discrimination based on transgender status is forbidden sex discr...

I spent Friday of last week at a one-day symposium called Revitalizing Freedom of Thought  hosted by the Cornell Law Review. There was a great slate of presenters and stimulating discussion throughout the day. I moderated and offered some of my own thoughts for a panel on Free Thought and Free Exercise, but in today's essay I want to offer an idea that grew out of remarks by USC law & philosophy professor Erin Miller during the first panel. Professor Miller's paper builds on and thus led me to revisit an idea I first encountered many years ago when I was editing the chapter on West Virginia State Board of Educ. v. Barnette  for my book Constitutional Law Stories . In Barnette , the Supreme Court invalidated a mandatory public school flag salute.   The chapter was co-authored by Professors Vincent Blasi and Seana Shiffrin; the idea that serves as my current point of departure appears in some of Professor Shiffrin's solo writings as well. It goes like this: Avoiding mi...