Dorf on Law

On the occasions when we at Dorf on Law post what we call classics (also known as reruns), we usually reach back into our archive by months or even years to find a column that has some sort of renewed relevance to the news of the day.  Today, I am turning the dial on the way-back machine only 22 days into the past; but given the time warp that seems to have enveloped the world this summer, a bit more than three weeks feels like an eternity. In any case, on U.S. Independence Day earlier this month, I published " About that Non-Debate, and Facing Reality ," which was my first response to the precipitating event that led President Biden to withdraw from the presidential race.  Reaching that finish line took an excruciatingly long time (from June 27th to July 21st), but we got there. I will suggest here, with absolutely no modesty, that my July 4th column is now interesting to read as an insta-classic.  Even if I am kidding myself, now that we know Biden is out and Harris is i

In a recent post on The Volokh Conspiracy , Professor Steven Calabresi proposes the creation of a federal commission with the power to invalidate college tuition increases beyond the cost of general inflation. In today's essay, I agree with some of the points that lead Professor Calabresi to offer this proposal, question more of them, and ultimately disagree with the recommendation. As a preliminary matter, it is refreshing to be able to engage with a usefully thought-provoking essay by Professor Calabresi. For nearly all of my academic career, I have regarded Calabresi as a principled conservative with whom I could and did often respectfully disagree. In recent months, however, he has authored a number of blog posts that suggested he had become, for lack of a better term, a Trumpist hack, even using the lingo of "witch hunt"  and engaging in absurd hyperbole with statements like "Justice Thomas . . . is actually the best justice ever to serve on the Supreme Court i

The most recent episode of the podcast Our Henhouse ( available here and wherever else you get your podcasts) features an interview with filmmaker Mark DeVries. Those of my readers who come here for the occasional vegan/animal-rights content will be familiar with DeVries from his film Speciesism: The Movie . That film includes interviews with important figures in the animal rights movement, including Peter Singer and the late great Sherry Colb. DeVries is now promoting his new film, Humans and Other Animals , which is currently screening and will be available for streaming in the near future. I look forward to seeing the film and very much hope that it is widely influential. In today's essay, I want to focus on something DeVries said early in the interview. Discussing the positive influence on his thinking of Steven Pinker, he and host Mariann Sullivan wondered why public intellectuals whose logic seems to lead to veganism do not change their behavior. Part of the answer is that t

The word "dizzying" does not even come close to describing the last twenty-six days in US politics.  With a nod to George Orwell, it seems apt to call this a doubleplusdizzying month.  Even before President Joe Biden withdrew his name from the 2024 election on Sunday, the previous eight days had seen the shooting at one of Donald Trump's political rallies, killing one person and injuring three others, including Trump himself.  The choice of J.D. Vance as the Republican VP nominee was thus essentially relegated to an oh-by-the-way story, because everyone was understandably focused on the suddenly salient threat of political violence. As a matter of pure political calculation, that shooting provided Trump with the world's most promising electoral opening.  To begin with the obvious, there was the automatic public reaction against the shooting, which should have redounded to Trump's benefit, at least on the margins.  By fortuitous coincidence ("fortuitous"

Over the last week, I received a number of inquiries--mostly from non-lawyers--about an out-of-the-box idea: what if, instead of dropping out of the race or continuing with the status quo, President Biden were to swap former President Obama for Vice President Harris as his running mate? These inquiries would appear to have been mooted as a practical matter by President Biden's announcement yesterday that he is dropping his bid for re-election. Nonetheless, exploring the question may prove interesting. (And not insignificantly, I did most of the work on today's column yesterday morning, before the announcement, so repurposing it for the new reality allowed me to avoid throwing that work out!) Suppose that the Democrats were to decide that running Obama as their VP candidate gives them the best chance of winning November's election. Perhaps they announce publicly that Obama will be given unprecedented authority as VP or even that the person at the top of the ticket (whether i

Over the course of the last several weeks, Americans have had occasion to think about Presidential succession. Should President Biden continue to resist calls from Democratic party leaders and voters to relinquish his place on the ballot, and in the event that, against the odds, he wins the Presidency, there is a substantial possibility that the deterioration in his physical health and mental acuity could advance to the point at which Vice President Harris would, by the terms of Section 1 of the 25th Amendment, become President. Meanwhile, the almost-successful attempt to assassinate former President Trump is a grim reminder that the American Presidency is soaked in blood--a fact unlikely to change, given American gun culture (as I discussed in a Verdict column earlier this week). One way or another, the probability of a transfer of power from a President to a Vice President during the coming years is non-trivial. Readers of this blog who are not also intimately familiar with the deta

[Note to readers: Earlier today, Verdict published my latest column: " A Fourth Tragedy of Political Violence . "  In it, I extend my discussion of the Trump rally shooting this past weekend.  Here, however, I return to my renewed desire to talk about " boring " policy issues, because we all need a break from existential dread.  Enjoy.]   A conservative, anti-tax think tank has decided to package some teaching materials -- what it calls "a comprehensive crash course ready for the classroom" -- so that high school social studies teachers can tell their students that taxes are bad.  I will explain more about that in a moment, but the good news is that Darien Shanske, a tax professor at UC Davis Law, recently put together a response to that barely disguised indoctrination program, and I joined more than seventy colleagues in the tax world by signing Professor Shanske's open letter warning educators that the materials "are not fit for use." The

Judge Aileen Cannon's decision to dismiss the documents case against former President Donald Trump based on the conclusion that Special Counsel Jack Smith was unlawfully appointed can be dissected and analyzed along at least three dimensions: (1) whether it's correct as a matter of law; (2) its immediate political impact, especially on the November election; and (3) the contradiction it embodies. Here I'll say a few brief words about each. (1) Judge Cannon's Argument . Jack Smith essentially has the powers of a U.S. Attorney. U.S. Attorneys are nominated by the President and confirmed by the Senate, but they almost certainly need not be. The Constitution's Appointments Clause requires that principal officers be appointed that way but a U.S. Attorney or Special Counsel is almost surely at most an "inferior officer," as the Supreme Court held with respect to the Independent Counsel in 1988 in Morrison v. Olson . Judge Cannon resists that conclusion because

On Verdict today, Professor Dorf published " Political Violence’s Potency ," while I published " Three Tragedies of Political Violence ."  Although both columns were reactions to the shooting at the Trump rally this past weekend, we did not coordinate our columns, nor did either of us even know that the other was writing a column today The common theme in both columns is to sound notes of caution about what people are already saying with great confidence about what happened and the lessons to be learned.  We both mention the 1981 assassination attempt of Ronald Reagan to highlight that politicians can be targeted for nonpolitical reasons.  Professor Dorf spends most of his time responding to the notion that political violence "never works," noting that of course it sometimes does (and making clear that it is still bad).  I point out (as the third "tragedy" mentioned in the title of my piece) that we already know that people will never agree abou