Dorf on Law

I have no idea why, but lately I find myself thinking about May 4, 1970.  On that day, four young Americans were killed when government troops fired indiscriminately into a crowd of protesters.  Why would that pop into my head this week?  And other people seem to be talking about it as well.  Strange. Perhaps sarcasm is an inappropriate response to the latest horrors in the United States, but I cannot think of what would be appropriate.  In any event, I do think it is worth thinking about Kent State in today's context, because there are even more unpleasant/scary similarities than the obvious one.  More importantly, there is a massive difference that people are rightly taking as a possible reason for some hope in this darkest of hours in the United States. For those who were not alive at the time or who (like me) had simply forgotten most of the details, anti-Vietnam War protests were ongoing in 1970, especially on college campuses.  At Kent State, a...

For two decades, I have argued that the Supreme Court of the United States is not a real court of law and its justices do not perform their jobs like real judges. My argument is based on a perfect storm of factors: Our Constitution is almost impossible to amend and is incredibly old; we are the only country in the world with a two-century tradition of aggressive judicial review; our justices have life tenure; our justices are selected through an overtly partisan nomination and confirmation process; and most of the constitutional language the justices have to interpret is too imprecise to set logical limits on the scope of that interpretation. What all this amounts to is a tribunal that does not take prior law seriously enough to warrant the label “court of law.” I have set forth the detailed receipts for the conclusion that ideology, not law, dominates the Court's decisions in books, essays, articles, and blog posts. The main problem with the Supreme Court of the United States is t...

In 2018, Meta created an Oversight Board that quickly came to be known as the Supreme Court of Facebook. Although it still exists, it has become less important since Meta, in a transparent effort to curry favor with what was then the incoming second Trump administration, essentially abandoned content moderation a little over a year ago. Thus, comparisons between Facebook jurisprudence and that of the U.S. Supreme Court or other courts, while interesting, are not especially important these days. Meanwhile, however, AI company policies provide fertile ground for compare-and-contrast exercises. In today's essay, I'll consider the new constitution for Claude , Anthropic's AI chatbot. During the most recent episode of the podcast Hard Fork , Anthropic's in-house philosopher Amanda Askell explained the choices that went into Claude's new constitution, its purposes, and more. Although I'm more skeptical than Askell is that large language models (as opposed to AI that m...

The people who are currently running the US government have made it abundantly clear that they believe in the might-makes-right model of human interaction.  Both internally and externally, the current US regime seems to treat everything as ultimately only a question of how much they can grab, daring anyone -- the courts, Congress, states, cities, universities, law firms, protesters, and anyone and anything else -- to try to do anything about it.  Power is about macho posturing and taking advantage of every opening (and creating openings that did not previously exist), along with a huge dose of outright brutality.  International law?  It is to laugh.   The rule of law?  Whoever has the levers of power can use the law as they see fit. As shocking as all of that has been for everyone to witness for the last twelve months, disdain for norms and other social niceties has in fact been the bedrock of the academic canon in economics and other areas of the social s...

On Tuesday, the Supreme Court heard oral argument in Wolford v. Lopez . The case involves a 2023 Hawaii law that was aptly described by the Ninth Circuit (which upheld the law in part) as follows: "Whereas the old rule allowed a person with a carry permit to bring firearms onto private property unless the owner prohibited it, the new rule generally prohibits the carry of firearms onto private property unless the owner allows it." As it comes to the Court, the case presents the question whether the law is valid as applied to private property open to the public (such as grocery stores, gas stations, etc.) Under the framework the Court announced in NYS Rifle & Pistol v. Bruen , that implicates a 2-part test: (1) Does the law infringe the Second Amendment right (as incorporated here by the Fourteenth Amendment)? (2) If so, does the law sufficiently fit within the history and tradition of firearms regulation? The oral argument indicated that the Court will likely divide 6-3 a...

Donald Trump and his enablers regularly punish large groups of people for the perceived sins of one person, or at most the sins of a much narrower set of people.  Group punishment (also called collective punishment) happens to be a war crime , most fundamentally because it is the intentional infliction of harm on innocent people.  Worse than punishing people's direct relatives in a Hatfields-versus-McCoys way -- which is plenty bad -- group punishment is based on finding an arbitrary connection among people, something like saying that it is not only a perpetrator's immediate family who are "guilty" and thus punishable but that the in-laws of his 18th cousins thrice removed must also pay the price. And yes, group punishment truly is immoral, as decent people and international law have agreed at least since the end of World War II.  My concern today is with the almost random way in which Trump identifies the relevant "kinship" bond when he decides to punish pe...

Tomorrow morning the Supreme Court will hear oral argument in Trump v. Cook . I intend to listen along to the Court's Live Audio feed and to post snarky comments on BlueSky ( here ) while doing so. As the case comes to the Court, it presents a number of issues, including: Can pre-appointment conduct constitute "cause" for removal of a member of the Federal Reserve Board of Governors? Did the President's purported removal of Lisa Cook from her position based on unproven allegations violate her Fifth Amendment right to due process? To what extent can courts review a presidential for-cause removal that appears to be pretextual? Was the district court's order maintaining Cook in office a proper remedy? The Solicitor General contends in his  main merits brief  that "this case does not involve the constitutionality of the Federal Reserve Board's Removal protections," but that is only true in a technical sense. If Trump prevails based on the record here, t...

Today is the day officially designated to honor the legacy of the Rev. Dr. Martin Luther King, Jr., although one suspects that President Trump and his enablers are working to de-establish it as a national holiday or perhaps to re-designate it in some way. This year MLK Day happens to fall on January 19, so perhaps the observance in the White House will mark the 60-year anniversary of the election of Indira Gandhi as Prime Minister of India . Whether or not Trump even knows who she was, his political career has thus far echoed hers: an unlikely national leader with rabid followers whose tenure was characterized by corruption, militarism, and authoritarianism. Here at DoL , however, we observe MLK Day for real. Accordingly, below is an essay that first ran eleven years ago . It seems fitting for this year, as its focus is on the role of fears regarding civil unrest in the selection of Dr. King (rather than Thurgood Marshall, whom I propose as a hypothetical alternative) as the national p...