Dorf on Law

On Saturday,  New York Times  columnist Nicholas Kristof wrote an essay condemning the "Save Our Bacon Act," which passed the House and is currently pending before the Senate as part of the Farm Bill. Save Our Bacon would pre-empt state laws like California's Proposition 12, which establishes minimal welfare standards for the raising of pigs whose body parts are sold in the state. In National Pork Producers Council (NPPC) v. Ross   (2023), the Supreme Court upheld Prop 12 against a dormant commerce clause challenge. However, a ruling either for or against a dormant commerce clause claim sets the boundaries of what states may do only absent congressional action (i.e., while the congressional power to regulate interstate commerce lies dormant). Thus, Congress has the power to supersede NPPC and allow nationwide what Prop 12 banned in California: the sale of pork products from pigs who were born to sows confined to gestation crates in which they lack the space even to turn ...

The state of Florida attempted to sue the states of California and Washington, alleging that the latter two permit undocumented immigrants to obtain commercial driver's licenses even if they cannot read English. Article III of the Constitution grants the Supreme Court original jurisdiction of such state-versus-state cases, and a federal statute,  28 U. S. C. §1251 (a), makes such jurisdiction exclusive of the lower federal courts. Nonetheless, last week, the Supreme Court disallowed the lawsuit in a one-sentence order: "The motion for leave to file a bill of complaint is denied." That order prompted a dissent by Justice Thomas, joined by Justice Alito. They contended, as they had in prior state-versus-state cases in which the Court had likewise denied leave to file, that the Court's doing so was unauthorized. Indeed, the Thomas dissent quoted Chief Justice John Marshall in Cohens v. Virginia : "We have no more right to decline the exercise of jurisdiction which ...

Federal judges are people too, albeit with life tenure and substantial governmental power. Because federal judges are people too, they will sometimes make grave mistakes of judgment when performing their official duties. When such lapses occur, however, federal judges cannot be meaningfully punished unless their misconduct rises to the level of an impeachable offense, which includes only “high crimes and misdemeanors.” And to impeach a federal judge requires a majority vote in the House of Representatives and a two-thirds vote in the Senate. Because of the difficulty of the impeachment process, the question arises who judges the judges when they act badly but the behavior does not rise to the level of an impeachable offense. The answer unfortunately is the judges themselves. Therefore, it is imperative that investigations of misconduct by federal judges be publicly available so at the very least judges can be judged in the court of public opinion. Additionally, how federal judges wor...

The big news in American racism this year is that the bigots have decided to stop pretending that White men like them are being passed over in favor of supposedly inferior "diversity hires."  Well, that is not quite right, because of course they will continue to whine about what they insist on calling reverse racism against (presumptively superior, I guess) White men.  But the new and surprising (even to a cynic like me) addition to the White grievance canon in the US is that they are now tacitly admitting that they are afraid of a fair contest.  Now, even when their competition bests them fair and square, that is still somehow evidence that the world is rigged against White men. I made that point in the nineteenth and twentieth paragraphs of my 22-paragraph column  on Tuesday of this week, which means that I violated the prime directive of persuasive writing: make the big point right at the top.  Academic writing instills different expectations, and even after ...

My new book, Democracy in Education: The Importance of Free Speech in American Public Schools , is about the importance of the free speech of junior high school and high school students in the U.S., calling into question why the U.S. Supreme Court has treated public schools so differently than colleges for free speech purposes. There are many ways to defend free speech. Instead of defending the free speech rights of students on marketplace of ideas grounds, my focus is on how educational the experience can be when students exchange reasons with their classmates. The exercise of free speech rights over time can become normalized, not only encouraging students to think for themselves but also exposing them to ideas that they otherwise might not encounter elsewhere. An important part of becoming a citizen in a democracy calls for learning how to deal with disagreement in a pluralistic society like our own, which is characterized by considerable partisan divisions. It may seem counterintui...

We all agree that racism is bad, right?  Right?  At least as of this moment, opposing racism still appears to be the public position even of some -- but certainly not all -- of the most extreme Trumpists.  Donald Trump himself has not publicly used the n-word, as far as I know (although no one will be surprised when he inevitably does), but he has been pushing racist ideas for years.  Even so, we have not yet reached that anti-" woke "-est of moments when open, vulgar bigotry will become just another way for Republicans to "own the libs." Why not?  Because it continues to be perversely useful for Trumpists to appropriate the language of anti-racism as a means to promote White supremacy.  That jujitsu move is hardly new, but it is again a favored tool on the right.  The appointed seat-filler in the Florida Attorney General's office, for example, took it upon himself earlier this year to issue a statement  on official stationery that begins with ...

Memorial Day recognizes those who made the ultimate sacrifice for their country. Honoring that sacrifice would seem to require, at a minimum, that nobody be asked to make it in vain. Accordingly, fifteen years ago, I considered then-candidate Obama's 2002 statement that he was against "dumb wars" in light of what he had, as of May 2011, accomplished as president. As I noted there, although nations should fight only those wars that are just and smart, even a just war can turn unjust in its execution, and what may have initially looked like a smart (or at least non-dumb) war can prove dumb as it drags on. The opposite transformation, however, seems nearly impossible to imagine. Put aside the fact that Donald Trump's war on Iran violates both the US Constitution and international law . Put aside the possibility that under very different circumstances, an attack on Iran might nonetheless be just. Under the actual circumstances, this war is colossally stupid. Despite earl...

[N.B.  My latest Verdict column discusses the "Anti-Weaponization Fund" that Attorney General Blanche announced as part of the settlement of the Trumps' frivolous lawsuit against the IRS. Among other things, I suggest how a future Congress  might amend the statute that authorizes the executive branch of government to settle lawsuits to prevent future abuses by a future shamelessly avaricious and corrupt president, should we be so unfortunate as to experience another one. Now the exam.] Below you will find the exam I gave my federal courts students in the semester just concluded. They were permitted to consult their casebooks and notes but not the Internet, AI, or the like and were subject to a 4-hour time limit and a 2,500-word limit.   Question 1 (30 percent)             After holding hearings at which are recounted incidents reflecting popular hostility to AI data centers—very large installations of computers ...