Dorf on Law

One week from today and for the 28th consecutive summer, I will participate in the Practicing Law Institute's 28th Annual Supreme Court Review . As in other years, I'll be on most of the panels during the day, sometimes commenting on cases others present and sometimes presenting cases myself. I've got some "big" cases to present but also one pretty small onet: FCC v. AT&T . The end of the Term last month was a busy time for me. In addition to writing about the big cases for this blog, Verdict , and SCOTUSblog , I was hard at work on updates to my casebook. As a result, I didn't get around to reading FCC v. AT&T until yesterday. Although the outcome of the case is clearly correct given the Court's premises (as I'll explain momentarily), it is somewhat puzzling how the case even got to the Supreme Court. By the end of this short essay, I'll offer my best guess. But first, I'll discuss the merits. To oversimplify somewhat, the Federal Comm...

Earlier this month, a divided panel of the Eleventh Circuit surprised many people -- most definitely including me -- with a ruling that Florida-based journalist J.C. Bruce hailed in  The Tropic Press with this headline: " A victory for the First Amendment: DeSantis' pet project--the Stop WOKE Act--is shredded ."  The  Chronicle of Higher Education  (CHE) offered a more muted headline: " Are 'Divisive Concepts' Laws on the Ropes? "  Notwithstanding their different tones, both articles made it clear how important the Eleventh Circuit's ruling is. The majority opinion was written by Trump appointee Britt Grant, and her language was colorful, to say the least.  Bruce was obviously having a great time directly quoting the majority's handiwork, including these gems: "Florida's salary-for-speech rule is a breathtaking assertion of power to ban unpopular ideas from public discourse in the very places the State's own statutes recognize as ...

In my most recent  Verdict column , I offered some thoughts about a strange invitation for amicus briefing from the Board of Immigration Appeals (BIA). The BIA asked for views about whether it is bound by Supreme Court precedent "even in situations where an application of that precedent would require the Board to find a statute or regulation unconstitutional." As I explained in the column, of course the BIA is generally bound by Supreme Court precedent, but in certain circumstances that restriction can conflict with a prohibition on the BIA declaring acts of Congress unconstitutional. My column explained that there can be a conflict in cases involving as-applied challenges to federal statutes, depending on how broadly or narrowly one construes Supreme Court precedent. In order to explore what I took to be an interesting question, my Verdict column took the BIA amicus invitation at face value, but I cautioned at the end that one must be mindful that the BIA could well be acti...

In Professor Buchanan's "Veganniversary" essay yesterday, he referred to a variety of bad arguments against veganism, locating them within the larger culture that of late celebrates what many readers (and this writer) still regard as toxic masculinity. As it happens, I recently had occasion to encounter another familiar bad argument, which I'll describe as a way of making a point about the nature of strong beliefs. I've just completed a six-day bicycle tour of Counties Kerry and Cork in Ireland. It was part of an organized trip that included me, one of my adult daughters, two guides, and seven strangers who soon became friends. We all got along very well and had a splendid time. At various shared meals, I was given different food items from the standard fare, so it quickly became known that I'm a vegan. Mostly this went unremarked but at one point during the middle of the trip, one of the other cyclists, who, I should emphasize, is a very smart person with go...

Eighteen years ago tomorrow, I published a Dorf on Law column announcing that I had become a vegan.  Since that day, I have faithfully published yearly veganniversary columns --  2025 ,  2024 ,  2023 , 2022 , 2021 , 2020 plus followup , 2019 plus followup , 2018 , 2017 , 2016 , 2015 , 2014 , 2013 , 2012 , 2011 , 2010 , 2009 , as well as the original column in 2008 plus followup .  What to say this year? I continue to be amazed by how much invective is thrown at vegans.  I have of course highlighted examples of such bile over the years, largely to point out that (as Professor Colb used to remind me) such attacks would not be happening if we vegans were having no impact.  Usually, the invective comes from obviously ignorant sources, as I will discuss at length below, but sometimes it amounts to something akin to "friendly fire." Because Stephen Colbert's show was yanked off the air by the Trumpists running CBS, I am hesitant to point out that Colbe...

I do not know the best way to address the effects of centuries of legally sanctioned racist governmental policies. From slavery to Black Codes to segregation to red lining, our country imposed the opposite of color-blind policies on Black Americans for most of our history. These policies treated them first as property, then as indentured workers, then as people white folks did not want in their schools or their neighborhoods. Racist and oppressive government programs led directly to where we are today--a country where people are still judged by the color of their skin not the content of their character.  Black people represent about 13.5 percent of the population. Here are some alarming but not surprising data: 43% of Black people own their homes as compared to 72% of white people. In 1900, yes 1900, the gap was smaller. In that year, 48% of White people owned houses compared to 21% of Black people. The gap is larger now than when segregation was rampant and legal. The median inc...

Imagine a person who confidently and condescendingly tells you that he knows the answer to every question, except that he constantly gets facts wrong and cannot reason his way out of a paper bag.  Oh, and he is almost as unlikable as Ted Cruz.  Is he J.D. Vance, or is he AI?  (Admittedly, AI is not a "person," but are we truly sure about J.D.?) Early last month, I had some fun writing a couple of columns about large-language models -- which have, quite inaccurately, come to be called Artificial Intelligence (AI) -- and how bad they are.  On June 3 and June 9 , with reference to my lone previous column mentioning AI from last Fall, I stipulated that my critique was not based on tech expertise but simply on the fact that AI has been shown again and again -- no matter how much it has supposedly improved over time -- to be all but useless. I captured the fundamental problem in a quote from a podcaster that I used in both recent columns:  " If you presented a ca...

Last week, Justices Barrett and Kagan appeared before a House appropriations subcommittee to explain the Supreme Court's request for a budget increase. As has been widely reported (e.g., here ), the bulk of the requested increase is to address heightened security needs, as threats to Justices have increased in recent years. Both Justices Barrett and Kagan pointed to the Dobbs leak in 2022 as the point from which to measure the increase. Certainly there were security threats that one could specifically tie to that leak, most prominently the man who was arrested  in June 2022 near Justice Kavanaugh's home with a gun, a knife, pepper spray, and burglars' tools. Overall, however, I suspect that the threats being directed at the Justices are simply part of the larger trend of increased political violence more broadly. In general, that threat is greater from the right than from the left , although I don't know whether that's true with respect to threats directed specific...

The US Supreme Court's just-completed term will go down as another bloodbath for American constitutionalism, for the rule of law, and even for basic decency.  In yesterday's Part One of this two-part column, I explained that my goal is not to provide a "summary of the term" analysis along the lines that Professor Dorf has already done so well.  Instead, I have collected a few stray threads within various cases that might provide useful ways to think about what is happening and is likely to happen in the near future. Yesterday's entry promised a long list of such stray threads, but in fact my first two examples were more than enough to fill a column (and then some).  Those two examples included a good outcome ( Chatrie v. U.S. , a Fourth Amendment case the Professor Matthew Tokson nicely analyzed in three posts on this blog) and one with a very bad outcome ( Mullin v. Al Otro Lado , in which the Roberts Six played with words to negate a duly enacted statute). To ...