Dorf on Law

[Note: Tomorrow I'll be attending an all-day gathering of constitutional scholars and lawyers hosted by the Knight Institute at Columbia to discuss federal funding and the First Amendment. Each of the participants wrote a short paper. They are collected here . My contribution can be found here and is reproduced below.] ----- In   Agency for Int’l Dev. v. Alliance for Open Society Int’l , Inc.  (2013), the Supreme Court invalidated a condition on federal spending. Under the challenged law, which provided money to combat the spread of HIV/AIDS throughout the world, a funded nongovernmental organization (NGO) was required to “have a policy explicitly opposing prostitution and sex trafficking.” The Court held that this condition violated recipient organizations’ right to free speech. Yet the Court’s opinion made clear that another condition on funding—forbidding   the use of the money at issue   “to promote or advocate the legalization or practice of prostitution or sex...

Per my usual custom, below I have posted the final exam I gave the students in my Federal Courts class this past semester. They had four hours to complete the exam and were permitted access to their casebooks, notes, and outlines but not the Internet or AI tools. Note that the "No Kings Act" quoted at length in questions 2 and 3 is taken verbatim from the actual bill that was introduced in the Senate last year. The scenario in question 1 is fictional, although its premise--state tax law incorporating federal tax law--is realistic. -----------------------   Question 1 (40 percent) Assume for purposes of this question that Myrontana is a State of the United States, located in the (fictional) 13th Circuit. Myrontana law provides that in calculating how much state personal income tax they owe, taxpayers simply copy their “taxable income” from line 15 of their federal form 1040. Myrontana state law also incorporates other provisions of federal tax law. It does so dynamically—i.e....

Last Friday, Dorf on Law published a guest post, " A Message to Students: Fight for Democracy ," which Professor Dorf described in his short editor's note as "an edited version of   Boston College Law Professor Kent Greenfield's   final lecture this past semester to his first-year constitutional law students."  Professor Greenfield began his remarks by noting that this is the end of his thirtieth year teaching law, but his lecture was "final" in the sense of being the last of the semester, not of his career.  Even so, reading his words has caused me to think about my final lecture in the more final, final sense. Before I get there, however, I do want to encourage everyone to read Professor Greenfield's message to his students.  It is inspiring, bracing, and entirely necessary to the moment in which we find ourselves.  His penultimate paragraph is clear: " So let’s fight. Let’s fight for our profession. Let’s fight for our democracy....

The Foreign Emoluments Clause of Article I provides that "no person holding any office of profit or trust under [the United States] shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state." In various articles (including this one ), Professor Seth Barrett Tillman has argued that the clause restricts only persons holding appointments to offices created by statute and thus doesn't apply to the presidency. To my mind--and in the consensus view of the academy--that counter-intuitive conclusion is too counter-intuitive to stand. The framers had, and we have, more, not less, reason to worry about foreigners purchasing influence over the president than over every lowly government official. Accordingly, although Professor Tillman's arguments cannot simply be dismissed, I shall proceed here on the widely accepted assumption that the Presidency is an "office" within t...

  [Editor's note: The following essay is an edited version of   Boston College Law Professor Kent Greenfield's   final lecture this past semester to his first-year constitutional law students. It is   cross-posted at the WBUR website .] Today completes my 30th year teaching law. You’ve been wonderful this semester. Thank you. But It has been a difficult time to teach constitutional law, and it must have been a difficult time to learn it. We are in a dangerous moment. How do we make sense of the law right now? Of our profession? Lately I have been thinking about  Joshua Chamberlain , the Bowdoin professor-turned-Union army officer who led the 20th Maine Volunteers during the Civil War (and eventually became governor). On the pivotal second day of the Battle of Gettysburg, his regiment guarded the leftmost edge of the Union line atop a hill called Little Round Top. Union generals expected the fighting to be elsewhere that day, and the Maine men were few. But Confe...

Ruling in the law firm Perkins Coie's suit against the US Justice Department, Judge Beryl Howell granted summary judgment and declaratory and permanent injunctive relief for the plaintiff.  The judge's memorandum opinion was a bracing 102-page analysis of everything that is wrong with the executive order in question, which was one of the orders that directly punished lawyers for daring to practice law in a way that displeases Donald Trump and his minions.  She wrote: "Settling personal vendettas by targeting a disliked business or individual for punitive government action is not a legitimate use of the powers of the U.S. government or an American President." The ruling also received some well deserved attention for setting the record straight about Shakespeare's frequently quoted but completely misunderstood line, "Let’s kill all the lawyers," which is one of the oldest erroneous tropes in American politics and popular culture.  We have all heard that...