Dorf on Law

  The Democratic Party Needs a Serious Paradigm Shift (Boooo Chuck Schumer) Schumer Is Unlikeable, Condescending, And Bad For The Democrats We need more people that don’t yield to the bully Senator Chuck Schumer did the anti-Trump majority in the United States a huge favor last week, but everyone who should be applauding him is instead trashing him for it.  Choose your metaphor: Did he stop the left from committing a huge self-own?  Did he prevent an unforced error?  Did he step in to help his party avoid a self-inflicted wound?  No matter what one calls it, Schumer acted responsibly and stopped the anti-Trump opposition from creating the worst kind of unintended consequence: giving Donald Trump and Elon Musk even greater unchecked power.  Someone needs to thank that man. But it seems that no one is willing to do so, even his own longtime centrist allies, much less the progressive left (of which I am, more often that not, an enthusiastic part) or the NeverT...

This post summarizes and provide links to three of my latest efforts to describe and resist the war on the rule of law being waged by Donald Trump and Elon Musk. Continuing my numbering convention from earlier posts in this series, I start at 9. (9) Yesterday, I was the legal expert guest on the Bloomberg Law podcast . For roughly the first half of the podcast, host June Grasso and I discussed the recent district court ruling (in the posture of the grant of a preliminary injunction) that Elon Musk was appointed unconstitutionally and his dismantling of USAID violates separation of powers. During the second half of the podcast, we discussed other cases and the indications that the Trump administration is defying court orders. (10) One of the cases on which Grasso and I focus as Exhibit A for defiance is the litigation before Judge Boasberg contesting the administration's reliance on the Alien Enemies Act to expel hundreds of Venezuelan migrants to jail cells in El Salvador. That ca...

A recent poll shows that the Democratic Party has reached the lowest point in its history. Its clumsiness is evident. There is no leader. There is no shared platform. The Party could not even unify when President Trump gave his de facto State of the Union Address. Individual Democrats had varying signs and shirts, as well as even social media dancing. That’s right – dancing. When I was younger, I visited the International Clown Hall of Fame & Research in Wisconsin. This ragtag group of Democrats might have fit in at the museum. Political wheeler-dealer James Carville has urged the Democrats to sit back, do nothing , and allow President Trump to screw things up. But the declining Democratic Party poll rating above, and their Oaths of Office, demand more. My suggestion is that the Democratic Party establish a “Shadow Cabinet” in opposition, as in Great Britain and several other nations. This would provide the necessary coherence and leadership to rival the Republicans, who always se...

It is universally recognized by legal academics that originalism is not a single theory but rather a family of different approaches for judges to employ to interpret the United States Constitution. One clear example of this diversity of thought is that originalist judges and scholars who believe in "original meaning originalism" do not even agree on what is the appropriate target of their interpretive questions. Should judges be looking to what reasonable lay people thought was the original public meaning of the text when it was ratified or is it a search for what a hypothetical reasonable person would have thought the text meant? In cases where the text is legalistic, should originalists ask what legal experts in particular at the time thought the text meant, and if so, how legalistic does the text have to be to require that kind of search? There are strong disagreements among originalists on all these questions. There are many other examples of intramural disputes among ev...

[Note to readers: I am taking a day off from immersing myself in the ongoing insanity of US politics.  Instead, I decided to write about an issue that has somewhat less political valence than most topics.  As the first half of the column below demonstrates, however, "somewhat" is not even close to "none."]   As they were settling into their seats for our first class meeting after the Super Bowl last month, I asked my students at the University of Toronto what they thought about the halftime show.  This would normally be even more of a digression than I usually am willing to indulge in class, but in this case, the specific reason to ask the question had to do with what is now known around the world as The Kendrick-Drake Beef, a feud between rappers Kendrick Lamar and Drake. OK, but why would that be relevant to a bunch of Canadian law students enrolled in "US Tax Law for Canadian Lawyers"?  As almost everyone -- but not literally everyone -- reading this ...

The blizzard of recent news includes one disturbing development that might at first seem not to have anything to do with Donald Trump, even though it has everything to do with Donald Trump.  With Washington Post owner Jeff Bezos becoming ever more eager to steer his newspaper in a pro-Trump direction, the news (that is, non-editorial) side of The New York Times reported that Bezos on February 26th decreed that henceforth his chew toy's op-ed pages would become a one-sided advocacy organization, publishing only pieces that promote "personal liberties and free markets" while refusing to publish anything deemed to be in opposition to Bezos's view. Bezos fired the first shot in his pro-Trump war on journalism back in September of 2024, nixing a planned endorsement of Kamala Harris by The Post 's editorial board.  By a stroke of bad luck, that announcement shook the political world immediately before an op-ed that I had co-authored with Professors Dorf and Tribe wa...

In my essay earlier this week  (which was  republished in The Chronicle of Higher Education ) about the illegal $400 million funding cutoff to Columbia, I offered some speculation about why Columbia appears to be attempting to appease rather than sue the Trump administration. In describing Columbia’s approach as "appeasement," I intended to invoke the specter of Neville Chamberlain, but some readers might wonder why I think appeasement won't work in this instance. After all, Trump is vulnerable to manipulative flattery. Indeed, world leaders like Emmanuel Macron and Keir Starmer clearly understand the need to play to Trump's ego. Even leaders at odds with Trump play to his ego a bit. Thus, in his otherwise strongly worded response to Trump's tariffs, Justin Trudeau began by saying to "Donald" that he is "a smart guy," which, despite Trump's  ability to recognize a cartoon elephant  as such, is pretty clearly not something Trudeau (who actua...

What happens when a person's entire personal self image is based on something that they claim to hate?  I continue to be fascinated by the tension between conservative pundits' unearned professional prestige and their claims to being committed to "merit" as the sole basis upon which career success should be built.  Do they live in denial?  Do they double down?  Do they internalize self-hatred?  It seems that all of the above are possible. This is not, by the way, a problem only for the right-wing punditocracy but for the right in general.  I pointed out in a column on February 27 , for example, that JD Vance is an especially obvious example of this conflict: the chest-thumping "I did it all myself" ethos versus the simple fact that Vance is a classic beneficiary of diversity-aware admissions.  I cited a New York Times op-ed from last summer in which Lydia Polgreen noted that people like Vance get a huge leg up in the admissions processes of elite uni...

Over the last decade, President Trump has produced a more conservative U.S. Supreme Court by his appointments. The Court has abolished the right to abortion and affirmative action in university admissions. But I have always thought that three lesser known cases decided around 1970 have been central to the Court’s conservatism: Dandridge , Milliken , and Davis . Starting in the late 1960s, several celebrated academics, such as Harvard Law School’s Frank Michelman, authored scholarship on equal protection and due process that supported fundamental socio-economic rights for poor people. Ah the 1960s. It seems like centuries ago. Yet the U.S. Supreme Court, when it got around to considering these issues in the 1970s, generally disagreed with scholars like Michelman. The Court rejected Michelman’s views in Dandridge v. Williams (1970), which upheld a Maryland cap on welfare benefits, regardless of a family’s size. This decision lacked humanity. The Court also said that socio-economic issue...