Dorf on Law

By Eric Segall I am currently working on a long law review article showing that the original meaning of judicial review is nothing like the practice of judicial review today. One can believe in originalism or one can believe in non-deferential, strong judicial review, but one cannot believe in both (at least with intellectual consistency). This blog post is a short summary of that thesis with a lot more to come.

by Neil H. Buchanan Here at Dorf on Law , we are still in shock as we try to cope with the passing of Sherry Colb.  Her husband Michael Dorf posted a beautiful eulogy this past Thursday, and I will soon publish my own thoughts about the death of my wonderful friend and colleague.  Today, however, I am not yet ready to wrestle with those thoughts and emotions, and I know that I would not be able to turn them into cogent (or even minimally coherent) prose.  I will do so soon, I promise, but not yet. Today, I want to share a column that I wrote in 2008, which was my announcement that I had become a vegan.  I include a link to it every year in my "veganniversary" posts, but I am republishing it today because, as the title of today's column indicates, publishing that column led to one my best moments with Sherry.   The moment was great not only because she had been hoping to convince me to become a vegan -- although that was obviously important and essential. ...

by Sherry F. Colb [Note from Michael Dorf: A reader suggested that we run a series of Sherry's "greatest hits," which I think is an excellent idea. Over the next several weeks, I'll periodically post Colb classics interspersed with new essays by my co-bloggers. I begin with an essay Sherry posted last December on Medium but not on Dorf on Law . Re-reading it now, it is evident that in talking about our dog Scooter, Sherry was in some way talking about her own illness, but I hesitate to make too much of the point. Sherry never liked when people used the stories of non-human animals simply as a vehicle for talking about humans. In any event, I'll let Sherry's own prose do the work, as it always did.]  --------- Losing Scooter When I first met Scooter, he was a small, soft pillow of black, beige, and brown. I picked him up and he licked my nose and eyes. He smelled like corn chips. His mother Hiccup stood outside in the yard, looking in through the sliding doors...

by Michael C. Dorf I'm writing with unspeakably sad news. Sherry Colb--my co-blogger, co-author, colleague, best friend, and wife for over 31 years--died this morning.  A funeral service will be held this Sunday August 28 at noon at  Plaza Jewish Community Chapel  on Amsterdam Avenue at 91st Street in Manhattan (five blocks from where Sherry grew up), followed by burial at  Cedar Park Chapel and Cemetery   in Paramus, NJ. There will be an additional memorial service at Cornell in Ithaca some time in the coming months. I expect that this news comes as a great shock to most readers, given Sherry's relative youth, and how, until very recently, she was extremely prolific--not just her  Verdict  columns and blog posts but also four law review articles in the last year.  Accordingly, I will add a bit of background.

by Antonio Haynes Since the execrable decision in Dobbs , there seems to be a cottage industry of articles discussing the increase in men having vasectomies. Indeed, a recent New York Times article explained that, “Vasectom[ies], a quick, outpatient surgical procedure that cuts the tubes that carry sperm, [are] one of the most reliable and cost-effective forms of contraception available — with almost none of the side effects or complications of birth control methods that are geared toward women.” Nevertheless, the procedure remains relatively rare. “[I]n the United States, an estimated 500,000 men get the procedure each year. Some surveys suggest roughly 5 to 6 percent of men between 18 and 45 have gotten the procedure, as opposed to roughly 20 percent of women aged 15 to 49 who have gotten their tubes tied.” According to one urologist, Dobbs itself might change everything: “In April, May and June, 38 young, child-free men got vasectomies at his clinics, making up 4.6 percent of his ...

by Neil H. Buchanan Earlier this summer, President Joe Biden and Speaker Nancy Pelosi were raked over the coals by some very understandably frustrated Americans who did not understand top Democrats' tepid reaction to the Supreme Court's ending of abortion rights.  The Court's decision, because it had been leaked months prior, was hardly a surprise.  And even though it still came as a shock, there was no excuse for Democratic leaders not to have responses ready to go, both in terms of political messaging and substantive policy responses. Instead, the response by the nation's top Democrats was to fall back on tired platitudes once again, telling people that "we just need to win more elections."  That that is tautologically true does not make it helpful, and Pelosi's "now you have to give us even more money to win even more elections" seemed especially tone-deaf (at best), with Democrats having won in 2020.  Yes, if Democrats had been able to pick ...

  by Michael C. Dorf Over four years ago, I wrote an essay here previewing remarks that Prof Colb and I were planning to deliver at an animal rights conference at Bucknell University. They concerned our views about how to address an objection to veganism (and vegetarianism and even pescatarianism) that has much in common with what philosophers call the nonidentity problem. The objection says that eating the products of animals benefits those animals because the animals bred and raised for food would not exist but for the demand for their products. As I wrote in 2018, the objection only gets off the ground with respect to farmed animals who have lives worth living, but given the conditions of modern animal agriculture, few animals do lead lives worth living. I then laid out the rest of the response Prof Colb and I were developing on the largely counterfactual assumption that animals bred and raised for food  do have lives worth living. The gears of academia move slowly, so our...

 By Eric Segall Readers of this blog likely know that I wrote a book in 2012 arguing that the Supreme Court is not a court and its Justices are not judges. My thesis was and is based on a perfect storm of factors, including the institutional design of the Court and our country, historical practices, and human nature. Taking these factors together, I concluded that the Supreme Court in practice makes all- things-considered decisions, not legal decisions, with the only real constraint being the Justices’  own views on what the American people and the elected branches will tolerate or accept. Here is a quick summary of those factors: 1) Most of the Constitution's litigated clauses are hopelessly imprecise; 2) Our Constitution is virtually impossible to amend and extremely old; 3) The people who serve on this institution hold their offices for life; 4) We have a strong tradition of aggressive judicial review dating back to at least 1857 ( Dred Scott); 5)  The Court's decision...

by Neil H. Buchanan It is a particularly unusual mid-August for those of us in  Dorf on Law World, one consequence of which is that my sincere intention to write a new column today fell by the wayside.  I therefore offer a Dorf on Law Classic from October 15, 2020.  Given the recent Republican primary results, the column seems especially pertinent to our near future. The Winner's Curse in an Autocratic Power Grab by Neil H. Buchanan What would it be like to be on the winning side of a Constitution-shattering political putsch?  Winning is great, right?  Certainly, one would think that -- at least for those who have no principles other than grabbing political power by any means necessary -- life would be pretty good on the other side of a coup d'etat.  You enjoy the spoils, and the other guys eat dirt. In my new Verdict column today , I start to address that question by looking at the highest-level Republican enablers of Donald Trump. ...

  by Michael C. Dorf My latest Verdict column previews the pending Supreme Court case of National Pork Producers Council (NPPC) v. Ross . As the column explains, the national pork industry has challenged California's Prop 12, which sets standards for the humane treatment of pigs from which pork products sold in the state derive, even where, as is true of over 99% of the pork sold in California, the pigs are raised and slaughtered in other states. The plaintiffs/petitioners argue that Prop 12 violates the dormant Commerce Clause because it imposes an excessive burden on interstate commerce and/or because it amounts to impermissible extraterritorial legislation. I argue in the column that both challenges should fail. The column then asks whether, if Prop 12 is valid, so are state laws that ban the importation into the state of abortion pills. After explaining why that result might follow, I offer possible grounds for distinguishing abortion pills, including that FDA approval of such...