Dorf on Law

It's been quite a saga, one that has captured the attention of an entire nation and indeed many people around the world. An establishment figure who, only a year and a half ago, seemed politically invincible now faces what can only be described as a stunning defeat. The path from there to here has been a remarkable one. The movement that helped bring about this moment has drawn its energy from groups who have surprised many observers with the breadth and depth of their political engagement. As this movement steadily grew over the course of 2007, the political climate accordingly intensified, culminating this January and February in an extraordinary campaign and a stunning set of election results. But to the unending frustration of many, here we are in June, and the durability of any meaningful resolution remains somewhat unclear. Back in February, it seemed to many observers that at least the first round of that anti-establishment political campaign had reached a swift conclusion. ...

With South Carolina set to offer "I Believe" license plates containing an image of a crucifix, might we want to concede that perhaps Justice Scalia was onto something in suggesting that nonsectarianism means monotheistic nosectarianism (as discussed here )? In defending these specialty plates, SC State Senator Lawrence Grooms ( quoted in the NY Times ) contended that such license plates are no different from the use of the motto "In God We Trust" on the currency. Indeed, everyone---including people who don't believe in a single (or any) God or if they do, don't trust Him---must use the currency, whereas only people who choose the "I Believe" plates need to do so. South Carolina offers a wide range of specialty plates (see full list here ), including an "In God We Trust" plate and a "Sons of Confederate Veterans" plate, and makes it easy for organizations to order specialty plates. Thus, one plate is sponsored by the Secular ...

Below is an outline of the lunchtime remarks I will deliver today at the AALS Constitutional Law Conference in Cleveland. Constitutional Law and Constitutional Scholarship: Recent Developments and Future Paths I. Trends in Constitutional Law Let’s look at the long stable Rehnquist Court (1994—2005) and the early Roberts Court (2005—2008) by issue: 1) The Rehnquist Court began a “federalism revolution” that, by the end of this period, had moved the law in important but largely symbolic ways, and which had run out of steam as even some of its leaders balked at the sort of radical change advocated by Justice Thomas and some attorneys appearing before the Court. ( Raich, Lane, Hibbs , earlier: Reno v. Condon ). 2) The Court remains sharply divided over its role in recognizing and protecting unenumerated rights . In Glucksberg (1997), the Court tried to declare “this far and no further,” which was largely but not entirely an a...

I’m currently attending the Association of American Law Schools Conference on Constitutional Law in Cleveland (described here ). Tomorrow, I’ll give an address at the Lunch Session, with an accompanying post on this blog. For today, I thought I’d say a few words about yesterda morning's plenary session. The panel members--- Erwin Chemerinsky , Eric Segall and Lee Epstein---offered their respective takes on “The Changing Roberts Court.” Here’s a very condensed summary: Chemerinsky: With the Roberts and Alito appointments, we are now seeing the longtime dream of Republican Presidents finally coming to fruition. Conservatives have consolidated their power, as Justice Kennedy doesn’t often swing liberal, and he’s now the median Justice. Segall: It’s true that Kennedy holds the balance of power, but he really is a centrist. In fact, there are two Justice Kennedys (Segall’s formulation. I would have said “Justices Kennedy.”) There’s formalist Kennedy, who writes...

My latest FindLaw column (updated link here ) unpacks and critiques a speech this past Sunday by Justice Scalia to an Orthodox Jewish group, in which he argued that the First Amendment's Establishment Clause should not be interpreted to prevent government from favoring religion over nonreligion. The full version of the argument, which is set forth at length in Justice Scalia's dissent in McCreary Count v. ACLU of Kentucky , asserts that government cannot favor one monotheistic religion over another but can favor monotheism over non-monotheistic religions and nonreligion---at least in some contexts. As I explain in the column, Justice Scalia's argument is principally based on what he takes to be an historical and ongoing tradition. He does not offer a normative defense of this view, and for good reason: It would be completely inappropriate for a Supreme Court doctrine to be based on the Justices' evaluation of which religious views are "better." Nevertheless...

Et tu Big Brown? Equine steroid use is currently permitted in most states and, according to news accounts (e.g., this one ), widespread in thoroughbred racing. And why not? The rationale for forbidding human steroid use in other sports does not seem to apply to equine use. Or does it? That depends on what you think that rationale is. An excellent new film by Michael Moore-ish director Chris Bell, Bigger, Stronger, Faster , asks just why we forbid the use of anabolic steroids and why so many of them use them nonetheless. The film is not exactly pro-steroids, but it's not exactly anti-steroids either. I can't do the film justice in a short blog entry---and while using many of Moore's techniques to good effect, Bigger, Stronger, Faster is less polemical than most of Moore's films---but Bell essentially considers two main rationales for forbidding anabolic steroid use in sports: 1) They're unhealthy; and 2) they provide an unfair advantage. As to the health ques...

As the blogosphere and news universe (newsiverse?) issue a collective "duh" in response to Scott McClellan's announcement that much of the stuff he said as President Bush's press secretary was hokum, it's worth asking what rules or standards should govern when former government officials can air dirty laundry. Although I have never served in the executive branch of any government (unless you count my 6 months as a prosecutor of low-level offenses in Somerville, MA while a third-year law student), I have been tasked with keeping confidences for clients, as a law clerk, and in carrying out various administrative duties as an academic, usually involving personnel decisions. I'll put aside issues of confidentiality in academia, where I have witnessed so many blatant breaches as to make me question the existence of a confidentiality norm in anything but name only. As a law clerk, I always understood the norm to be that it was permissible to tell anecdotes about y...

I've been sitting here fascinated by the debate in front of the Rules & Bylaws Committee of the Democratic Party, and wondering why there was such a lack of coordination between the advocates for the Florida and Michigan motions. The Florida proposal was well-reasoned and based in the rules, while the Michigan proposal was strident and really didn't offer the committee a principled resolution. My bet, however, is that the Florida "Ausman" proposal is going to be adopted in full, with 100% of the superdelegates seated and a 50% seating of the pledged delegates; that the same remedy will be applied to Michigan; and that the Michigan delegate votes will be split 34-30 between Clinton and Obama. I offer no prediction on whether it's half votes for all, or full votes for half. I offer no prediction on the Florida split. Other entertaining bits: the tension between Harold Ickes and James Roosevelt. Do you think that they fought over a rattle while Harold's dad a...

We are now well into the aftermath of the law review submission season. The dust has settled on everyone's submissions and all, from the hopeful students to the Ivy League professors, know how well they did on the law review market. It is now time for both aspiring and established legal academics alike to complain and reflect critically about the student-run system of law reviews. Of course, there is nothing novel in these critiques; by now they are well-known and widely shared. There is no need to reinvent the wheel in order to fix many of the problems with the current law review system. The academic profession long ago found a better, if far from perfect, approach to academic publications – the blind peer-review system. For example, in a past post Michael Dorf suggested a model along these lines. Seeing that the system of professional publication of the American legal academy has been broken for some time now, the real puzzle in my eyes is not how to fix it but rather why it was...

I have watched with amusement over the years as the charge of "judicial activism" has morphed from meaning something like "a judicial decision to overturn the will of the people" into something more like "a judicial decision the speaker doesn't like." A nice recent example of the latter was in Sen. McCain's May 6 speech , in which he condemned Kelo as an instance of judicial activism---even though the Kelo case left to elected bodies the decision whether to use the power of eminent domain for redevelopment projects. It was the losing side in Kelo that sought intervention by the courts to block the political process. Kelo may or may not have been rightly decided. ( I happen to think it was rightly decided, although I thought the New London plan was a bad idea.) But if it was wrong, that is not because it was an activist decision, unless "activist" is now simply a synonym for wrong. Meanwhile, it turns out that charges of activism h...