Dorf on Law

Yesterday's New York Times revealed that in April 2025, White House Secretary Will Scharf--described in the article as such a conservative lawyer that he "had bemoaned John McCain as too moderate for the 2008 Republican nomination, and believed Mr. Trump had been vindictively prosecuted after his 2020 election loss"--wrote a memo explaining in detail why the apparent plan to suspend habeas corpus for undocumented immigrants was unlawful. The big news here is not what was in Mr. Scharf's memo but the fact that he felt the need to write it. The memo is a generally correct, even anodyne, recitation of the constitutional law of habeas corpus. The key case is Ex Parte Merryman , which held that Congress, rather than the president, has the power to suspend the privilege of the writ. Admittedly, Merryman was a decision by Chief Justice Taney in his capacity as a Circuit judge, not a ruling of the full Supreme Court, but its reasoning is sound. Although the Suspension Claus...

Jerry Seinfeld (playing himself in the snippet of a standup routine that began the show in the early seasons of Seinfeld ) poked fun at sports fans who remain loyal to their team, even as the players are traded or sign with other teams as free agents: you're basically rooting for their uniforms, or, as he put it, clothes . And yet, even Seinfeld himself doesn't think that or perhaps thinks or at least feels that, despite its irrationality, there is a reason to root for the clothes. There he was courtside and chatting excitedly with Larry David at the conclusion of the Knicks' astounding comeback in Game 4 . Moreover, the 2026 Knicks are not just a bunch of guys wearing Knicks uniforms. They are, in a sense that is not always true of sports teams, a continuation of Knicks teams--great, terrible, near-great, mediocre, and good--of the last 56 years. I was six years old in 1970 when Willis Reed hobbled onto the court, made two shots, and then ceded the day to Walt Clyde Frazie...

[N.B. The following is the third in my series of essays for the Knight First Amendment Institute's Reconstructing Free Expression project. It is cross-posted on the Knight website . My first entry is  here . The second is here .] There is no perfect way to fund higher education. Relying chiefly on  tuition  favors wealthy students and results in underfunding of the research mission of most colleges and universities because students who see themselves as customers understandably would prefer that the money they spend produce concrete benefits to them in the form of teaching and administrative services rather than add to the general storehouse of knowledge available to all of humanity. Relying chiefly on   donors   risks directing an institution’s mission to the donors’ priorities, which will not always align with the priorities of faculty, students, administrators, and other stakeholders. A wealthy alum who is the CEO of an oil company might be happy to fund...

The news cycle this week included coverage of a tantrum that Donald Trump threw before he walked out of an interview with NBC's Kristen Welker.  Trump was shouting about how the recent California primary elections were "crooked," because he was of the opinion that the vote counting took too long.  There was plenty of material in that rant-filled interview for comedians and pundits to ridicule, but for my money, this brief exchange at the end perfectly captures the mindset not only of Trump but of his entire political movement. Trump: They're cheating on the election. Welker: What ... do you have evidence to support that? Trump: All I have to do is look.  All I have to do is look. Well, since he repeated himself, we are all convinced!  Seriously, however, this is no small matter, because that moment was only the latest reminder that Trump and his followers have abandoned the very idea that they need to present evidence and logic in order to try to persuade people....

Professor Larry Solum,  in addition to running the influential Legal Theory Blog, is one of the country's leading academic originalists. He very recently had this to  say  about the  Dobbs   decision, which reversed  Roe v. Wade: Dobbs does not employ an originalist methodology or reasoning. This is really not subject to reasonable dispute: Dobbs’s reasoning is based on substantive due process and does not engage with the relevant clause, the Privileges or Immunities Clause from an originalist perspective.  The outcome of Dobbs might be defended on originalist grounds, but that does not transform the reasons it provides and the methods it employs into originalism. There are a number of important and fascinating aspects of this description. First, for almost 150 years the Supreme Court has used the Due Process Clause of the 14th Amendment to review unenumerated rights cases like abortion-not the Privileges or Immunities Clause. Professor Solum app...

To be clear up front, I am not an expert on anything tech-related, certainly not large-language models (LLM's, commonly miscalled AI, a mistake that I am reluctantly continuing to ape).  Had it been up to me, I would have had nothing to do with any of this, and the world would have been a better place all around.  Because the companies frantically pushing AI are insatiable, however, we are not given the option of having nothing to do with any of this, which means that we all -- even techno-ignoramuses like me -- are becoming involuntarily knowledgeable about various types of AI-based nonsense. Last week, I offered my first full column addressing AI, which included a reference to my only previous column that touched on AI at all.  In that earlier column (published in October 2025), I brought up AI in the context of trying to understand why financial markets were not falling as a result of Donald Trump's plainly terrible economic policies, most obviously his completely un...

Major Correction : Below you will find a blog post in which I made a boneheaded reading comprehension error. I'm leaving it up because, having in the past criticized others for hiding their errors, I think it only fair that I own mine. As you'll see, in what follows, I read the word "more"  in the last sentence I quoted to mean "less," which is pretty stupid. Thus, my assertion that ratifying the original First Amendment would result in a House of Representatives with over 6,500 members is not true--or rather would be true only if Congress agreed to increase its own size to that extent, which is effectively impossible. Having said all of that, I think there is merit in increasing the size of the House by statute, although there are of course political obstacles to doing that. Okay, here's my original blog post: ----- Whenever I hear someone say that "the First Amendment is first for a reason," I'm tempted to respond: "Yes, and the reas...

As reported yesterday in The NY Times  and likely dozens of other places, a new study by Lawfare found that roughly one in every sixteen of the January 6 rioters who were granted clemency by President Trump have "been arrested for and charged with—and in the vast majority of cases convicted of—other crimes, at least some of which were actively enabled by the clemency actions." The Lawfare study is the result of painstaking research. By sifting through records in multiple jurisdictions, the study's author, Katherine Pompilio, found more than twice as many instances of re-arrest than had previously been reported. Even so, the updated figure is probably an undercount, as she herself told the Times. Who could have guessed? The short answer is: anybody who knows anything about political violence. Here's most of the abstract of a 2020 paper : One of the most consistently supported conclusions in criminology is that prior criminal record predicts subsequent criminal behavio...

I do not pay much attention to day-to-day fluctuations in market prices for stocks, bonds, or commodities. Nonetheless, just by reading the regular news over the last several months, it has been difficult to miss the movement of oil prices. Much of the political news coverage focuses on gasoline prices--because apparently Americans who are largely unconcerned about an authoritarian government that scapegoats and persecutes immigrants, deploys the tools of government to enrich the president and persecute his critics, and cripples the government's ability to respond to natural disasters, public health crises, and other urgent problems, will be moved to object to its unlawful use of military force if  that makes it more expensive to fill up their gas tanks and purchase other items affected by higher energy costs. Because gas prices move more or less in tandem with market oil prices, the news coverage also frequently includes reports of those market prices going up or down. Those price...