Dorf on Law

Imagine that I am correct in predicting that Donald Trump will be reinstalled in the White House after losing the 2024 election.  For that matter, go ahead and imagine that he is declared the winner in November and that President Biden concedes.  Either way, Trump ends up back in the White House.  Once there, imagine further that I (along with others) am right that Trump and the Republicans will act on their stated goals of exacting retribution against Democrats, entertainers, journalists, and so on by prosecuting them, deporting them, or ruining them financially. Imagining all of that, a person might think something like this: "American fascism would be an ugly thing, but millions of people have lived under totalitarian regimes throughout human history.  And while that's bad (perhaps even fatal) for targeted minorities and political opponents of the dictator's regime, life will go on for most people.  I happen to be one of the non-targeted people, and although ...

The United States tends to celebrate its national holidays through rituals that harm non-human animals. Thanksgiving is colloquially called "turkey day" in recognition of the slaughter and consumption of millions of the birds so admired by Benjamin Franklin . Memorial Day honors those who lost their lives defending our nation by sacrificing millions of nonhumans for barbecuing . The Fourth of July is especially lurid. In addition to fireworks displays that terrify (and sometimes result in the death of) family pets and any nearby wildlife , for half a century, we have also marked the anniversary of our independence from Great Britain with the spectacle of the Nathan's Hot Dog Eating Contest. Gourmands compete to see who can devour the most tubes of 100% ground-up parts of slaughtered cows in a short time (currently ten minutes). Joey Chestnut is the reigning and 16-time Nathan's Hot Dog Eating champion. He is also the world-record holder (an astounding 76 hot dogs and...

In my essay after the oral argument in  FDA v. Alliance for Hippocratic Medicine , I more or less predicted that the Supreme Court would coalesce on a holding that the anti-abortion doctor plaintiffs and their organization lack standing to challenge FDA approvals of wider access to the abortion-pill mifepristone. I imagined that the Court could write a "Christmas tree of an opinion" with something for everyone except Justice Alito--who would consider anything other than full-scale Gilead to be the equivalent of a lump of coal. Yesterday's unanimous opinion by Justice Kavanaugh mostly vindicates my assessment. That doesn't exactly make me Nostradamus because I was hardly alone in reading the oral argument tea leaves in the way I did. In today's essay, I want to focus not only on how the actual opinion was similar to what I predicted but also on two ways in which it was different: (1) Justice Thomas got one-and-a-half presents, not just the one I thought Santa wou...

Over the last few years, many non-MAGA news outlets finally caught up with the reality that Donald Trump represents an existential threat to the rule of law.  There is much to be said about every aspect of that threat, and of course news outlets are focused on the most lurid -- but to be clear, absolutely real -- possibilities.  These include mass round-ups of millions of immigrants (and people mistaken for immigrants) into concentration camps, prosecuting Trump's political enemies, and using the US military to attack and most likely kill protesters in the streets. Again, those threats are real.  How do we know?  There is no need to connect any dots or to translate something that Trump has said into non-euphemistic form, because these are things that Trump and his backers have openly discussed.  It was not always thus.  Back in 2009, Republicans freaked out about Michelle Obama's efforts to get people to exercise more and to eat better, with the more extrem...

If you are reading this blog post, you probably have already heard about Justice Clarence Thomas's receipt of gifts and free travel worth millions of dollars from various donors. The list of such gifts is staggering. Before we get to that, however, let's discuss corruption. In McCutcheon v. FEC , the Supreme Court held that federal limits on aggregate political contributions violated the first amendment. It is a horrible decision written by Chief Justice Roberts, who said that the government can only target direct quid pro quo bribery when regulating campaign spending. Roberts pointed to nothing in text or history suggesting that the government is disabled from going after other, less direct, forms of political corruption.  Retired Judge Richard Posner was quite upset with this decision and wrote the following (while still an active judge): C hief Justice Roberts’ opinion in  McCutcheon v. Federal Election Commission   ...  in the name of free speech, further dimini...

It is possible to live in a world in which there is objectively too much advertising.  As it happens, we currently live in such a world.  Notably, one can reach that conclusion without rejecting modern capitalism as a whole, or anything even close to that.  I am not trying to dissuade anyone from rejecting capitalism if they are so inclined, mind you, but that is simply a different argument.  For what it might be worth, I continue to be in the camp of those who say that carefully governed market economies are about as good as we can hope for in a fallen world, but the point here is that even a true believer in the magic of market competition can (and should) conclude that the current glut of advertising is evidence that something has gone off the rails. Back when I taught undergraduate economics classes, it was unusual to question the concept of market efficiency itself , because that would reveal that the emperor truly had no clothes.  It was, however, quite no...

Last week, I made some observations about the turmoil within the Columbia Law Review (CLR) and between the student-editor leadership and its outside Board of Directors, focusing mostly on what I described as the oddity of the board's having completely shut down the CLR website as an interim measure--odd because it did not seem responsive to the concerns expressed by the board. A little less than a day after I published my observations, and after the website had been down for the better part of a business week, the board restored it, including the article by Rabea Eghbariah ( Toward Nakba as a Legal Concept )   at the center of the controversy. By my estimation, the student-editor leadership won the showdown. The website was restored but no disclaimer appears anywhere in or accompanying the article. Instead, the bottom of the website includes a link  to a statement by the board. I don't know whether that was the result of a negotiated compromise or imposed by the board i...

To hear them tell it, the Trump cultists -- which now evidently includes all but a tiny number of elected Republicans, along with the drones who attend his rallies and buy his crummy merch -- are now angry.  I mean, angry .  Really, truly p.o.'ed!  Weeping with rage.  Spitting fuckin' nails, man!!  And everyone else is going to pay the price.  Just you watch. The question is whether the price that anyone pays will be any worse because of Trump's epic loss in criminal court in New York last week.  The answer to that question is no. There is no point in quoting any of Trump's rantings on this topic, and the Speaker of the House with the generic name is so far gone on everything else that he is now effectively Trump's mini-me, using his dear leader's exact words in a one-man echo chamber.  And Johnson has recently decided to move on to new areas of depravity, responding to Senator Bernie Sanders's opposition to Israeli Prime Minister Benjamin Netany...

For several days, the Columbia Law Review (CLR) website has been offline. Clicking on it produces the statement "Website is under maintenance." That's not true in any real sense. There's nothing technically wrong with the website that requires maintenance. Rather, the CLR website went dark because its outside board of directors had concerns about publication of Rabea Eghbariah's article  Toward Nakba as a Legal Concept .   After some recapping, I'll offer a couple of thoughts about where I think the board went wrong. Readers who follow me on  X  know that yesterday evening I posted a thread about this topic . This essay covers some of the same ground as that thread, updated to reflect what I've since learned. * * * Back in the fall, the Harvard Law Review (HLR) solicited an essay by Eghbariah for its online blog but, after the full membership voted on the matter, opted not to publish the essay after all. Among the reasons given to Eghbariah was a worry th...