Dorf on Law

Tomorrow the Supreme Court will hear oral argument in Trump v. Anderson , which presents the question whether the Colorado Supreme Court erred when it held that Section 3 of the 14th Amendment bars Donald Trump from eligibility for the Presidency (and thus the ballot for the Presidency) in virtue of having "engaged in insurrection or rebellion" in the leadup to and during the breach of the Capitol on January 6, 2021 after having taken the oath of office nearly four years earlier. In reality, the case presents numerous sub-questions. They include: (1) In light of Congress's power (vested by the last sentence of Section 3 itself) to lift a Section 3 ineligibility, is disqualification from the ballot, as opposed to the Presidency itself, premature (as argued in this amicus brief )? (2) Is the Presidency an "office ... under the United States?" (as contested by the merits briefs and numerous amici). (3) Does the oath of office of the President, as set forth in Arti

Today, I will be mercifully brief (by my standards). Although I have a long backlog of columns yet to be written that are not at all about electoral politics, I find myself being pulled back into that most soul-deadening of topics over and over again.  Some days, I find that I can write about, say, business regulation or fear-mongering about the federal debt.  Too often, however, it is impossible to ignore that there is now open talk of political killings .  The media's coverage of such threats is mixed in with coverage of presidential primaries and conspiracy theories about Taylor Swift, which is beyond weird, but here we are. I am not writing this column, however, in response to yet another specific, newsworthy, norm-shattering story.  Instead, I want to explain why it makes absolutely no sense for the media or anyone else to be talking about whether one candidate can surge past another candidate, or who will be the VP pick for Republicans, or anything like that.  The cliche ab

Ten months ago, Professor Buchanan and I announced the pre-publication availability of our article Justice Delayed: Government Officials' Authority to Wind Down Constitutional Violations, which offers a descriptive and normative account of the power (and limits on the power) of judges and other government officials to gradually wind down rather than immediately cease constitutional (and other legal) violations. I'm happy to report that the final version of that article is now available in the Boston University Law Review . Professor Buchanan and I are very grateful to the editors of the review for their hard and careful editorial work. We are also very grateful to the B.U. Law Review editors for having reached out to Professor Alyssa King of Queen's University in Kingston, Ontario, who wrote a fascinating and enlightening response to our article . Professor King was a great choice because, as a U.S.-educated Canadian legal scholar of comparative procedure, she is ideally

It was sensible to welcome the emergence of fact-checkers at major newspapers and as independent journalistic operations.  With the internet speeding up the spread of falsehoods, and with politicians like Donald Trump and his cultists willing to pile lie upon lie, it seemed necessary to have people act on the adage attributed to Daniel Patrick Moynihan that "everyone is entitled to their own opinion but not their own facts."  Someone needed to call out the liars, right? There are three problems with this idea -- none of them fatal to the basic value of true fact-checking, but all of them serious enough to make it necessary to adjust our expectations regarding what all of this can accomplish.  The people doing the fact-checking are mostly journalists, after all, which means that they will bring with them all of the biases and professional norms that have prevented plain old journalism itself from performing a reliable fact-checking function. This leads to the first problem wi

As Mike recently blogged , the State of Alabama last week carried out the nation's first execution by nitrogen hypoxia.  Before long there were conflicting reports about whether Kenneth Smith's execution was "humane and effective" or badly botched.  Alabama described a "textbook" execution and called for other states to emulate its new gas protocol.  The journalist Lee Hedgepeth, by contrast, reported that shortly after the nitrogen began flowing, Smith "began thrashing against the straps, his whole body and head violently jerking back and forth for several minutes." Grisly execution details are not new.  For years, experts have warned that lethal injection posed significant risks of excruciating pain.  The three-drug protocol, which was the sole method of lethal injection until 2010 and remains in use in some states today, is especially problematic.  Execution observers have detailed numerous executions gone awry, such as Oklahoma's 2014 ex

 By Eric Segall Between January 2009 and May 2018, the United States endured 288 school shootings, while the second-place country, Mexico, had only eight. Since then, school shootings have occurred much more frequently in America. Nineteen students and two teachers were killed in 2022 at an ELEMENTARY SCHOOL in Uvalde, Texas. In 2023, there were 346 school shootings across our country, almost one a day. All in all, between 2018 and 2023 there were over 1200 school shootings in the United States.  In light of these numbers it is not surprising, though it is revolting, that it is now a common occurrence for schools to have active shooter drills. We live in a country where our children simply are not safe, and our communities are routinely traumatized by mass shootings, and nothing changes. The gun nightmare in America transcends school shootings. Wyoming, along with a few other western states, have high rates of suicide by guns. According to an officer  at a medical center in Wyoming,

I am more than willing to defend government regulation of business, but I do so only because the alternative is worse.  That is, it would be great to live in a world in which regulation were entirely unnecessary.  After all, regulating businesses' activities is neither fun nor easy.  It requires setting up processes that are fair and thorough, promulgating rules that are informed by expertise (which is often expensive to acquire and apply), and it creates an adversarial relationship that is obviously worse than an atmosphere of cooperation and positive back-and-forth communication -- or what is sometimes called enlightened self-interest. This is necessary to state up front because the people who think of themselves as "pro-business" -- but who are in fact ultimately bad for business -- have conjured up a story in which governments are positively eager to impose rules on businesses, apparently due to some combination of spite and jealousy.  They ask truly weird rhetorical

On Thursday night, Alabama carried out the first-ever U.S. execution of a human being by nitrogen gas when it used that method to kill Kenneth Eugene Smith. According to the AP report : The execution took about 22 minutes from the time between the opening and closing of the curtains to the viewing room. Smith appeared to remain conscious for several minutes. For at least two minutes, he appeared to shake and writhe on the gurney, sometimes pulling against the restraints. That was followed by several minutes of heavy breathing, until breathing was no longer perceptible. While recounting the same details,  the New York Times reports that "Alabama attorney general, Steve Marshall, hailed the execution as a 'historic' breakthrough." That reaction might most charitably be attributed to confirmation bias, given that   Smith apparently suffered terribly. Shaking and writhing while conscious are typically signs of extreme distress. Thus, the execution seems to have vindicate