Dorf on Law

  by Michael C. Dorf The lawsuit by Disney against Florida Governor DeSantis makes constitutional claims under the Contracts Clause, the Takings Clause, and the Due Process Clause, as well as two First Amendment claims. In this essay I focus on the fourth cause of action, which strikes me as the central claim and certainly the one that the narrative portion of the complaint most clearly tees up: that the legislation DeSantis promoted and signed to abolish the Reedy Creek Improvement District (RCID) and replace it with an institution beholden to the governor was retaliation for Disney's exercise of its First Amendment right to free speech--in particular, its criticisms of the so-called Don't-Say-Gay law. Disney's factual claims seem unassailable. Its legal position is also strong, but it intersects interestingly with two highly controversial SCOTUS cases. In today's essay, I'll compare and contrast Disney's First Amendment claims with  Trump v. Hawaii , which up...

by Neil H. Buchanan  In my most recent Dorf on Law column, " Law Schools Should Continue to Develop Critical Thinking Skills, Not Become Finishing Schools ," I revisited what I (and many, many other people) view as the core purpose of law schools and higher education more generally: not memorizing codes, not becoming "practice ready," not "useful" majors or courses, and certainly not presuming that students do not know that the behavior that is expected in a court of law or in the workplace is not the same as on campus.  No, as the title of the piece makes clear, the core purpose is to teach students to think critically. After I wrote that column, I suddenly thought to myself (using my mock-horror inner voice): Oh crap, I just used the word 'critical'!  In Florida!!  And I'm a public employee!!!  Oh, the horror.  What, oh what, shall I do? Indeed, in addition to using the word "critical" in the title of that piece, I used it three ...

By Eric Segall There was a time when I thought constitutional law was a combination of text, history, precedent, and, of course, the personal values of the justices. I now know that Erwin Chemerinsky was right when he wrote in a famous Foreword to the Harvard Law Review that "constitutional law is now and always has been about values....There is nothing else." I began to learn that hard lesson when I was a young lawyer at the United States Department of Justice.  I was the lead attorney in a federal case defending various federal programs giving different kinds of aid to public and private schools, including religious schools. A large part of the case involved the constitutionality of the federal government giving equipment and materials other than textbooks to private religious schools. The  problem for my case was quite simply that the Supreme Court had unequivocally held in Wolman v. Walters and Meek v. Pittenge r  that the government was not allowed to provide relig...

by Neil H. Buchanan Yesterday was the last day of classes at my law school, which is as good an excuse as any to reflect on some of the timeless issues that educators face in every area of learning.  Here I want to consider two related questions: What do law schools do? and What should law schools do (and not do)? As I teased in the title of this column, law schools are not -- and do not need to be -- finishing schools, teaching students to be well-behaved young ladies and gentlemen.  We law professors are, however, instilling habits and values that matter both to the legal profession and to society at large. Who might imagine otherwise?  The answer might surprise you.

by Michael C. Dorf The Supreme Court's stay order in Danco Labs v. Alliance for Hippocratic Medicine   both restores the status quo ante (under which mifepristone can be distributed in the mail) and provides an opportunity for an orderly consideration of the plaintiffs' claims.  However, because the case has been sent back to the Fifth Circuit--which already upheld (in a stay posture) the part of Judge Kacsmaryk's preliminary ruling that invalidated the FDA's 2016 expanded access to mifepristone, there is a fair chance that the plaintiffs will prevail again in the lower courts, thus ensuring that the case returns to the Supreme Court. The expedited appeal could mean a ruling in a few weeks or at most months, with a cert petition soon to follow, and thus a SCOTUS oral argument next Term. If and when the case returns to the Supreme Court, there are multiple grounds on which the plaintiffs should lose. My personal favorite is standing. The main route to standing offered by...

by Michael C. Dorf I recently wrote a Verdict column on whether a person imprisoned on conviction of a crime can serve while in prison and an accompanying blog post on whether, if such a president were imprisoned pursuant to a state criminal conviction, he could successfully challenge his custody through a federal habeas corpus petition. Comments I received via email and on social media raised related questions about circumvention. In one example, a president might use the 25th Amendment to circumvent limits on the pardon power. In the other, a president might use the pardon power to circumvent a provision of Section 3 of the Fourteenth Amendment. Let's start with a very brief recap. Suppose Donald Trump is tried, convicted, and sentenced to prison for a crime but then wins the presidency. Depending on the nature of the crime, he could be subject to impeachment and removal for it. He also could be deemed "unable to discharge the powers and duties of his office" within t...

by Neil H. Buchanan I have continued to dig into the controversy that erupted after some students at Stanford Law School temporarily disrupted a talk last month by a visiting speaker (an extreme right-wing judge from the 5th Circuit).  Thus far, I have published three columns on the topic: the first on Verdict last Thursday, the second here on Dorf on Law last Friday, and the third today on Verdict .  The column that you are reading right now is thus the fourth in an unplanned series, with another likely coming next week. There is no need to summarize all three of those columns here, so I will limit myself to saying that today's Verdict piece could be boiled down in significant part to this hypothetical exchange: Reader: How should a university respond to a situation like Stanford's, where a national arch-conservative trolling operation contrived a controversy for national political consumption? Me: Do you know how Stanford in fact responded? Reader: Yes, they punished ...

by Neil H. Buchanan and Michael C. Dorf As we explained in an essay on this blog late last month, we have a new academic paper available in which we consider the source of and limits on the authority of government officials to delay curing constitutional (and other legal) violations upon discovering them. As we noted, the last part of the paper extends the analysis beyond questions that involve winding down (rather than immediately ceasing) ongoing violations to circumstances in which government officials might be obligated to initiate a new course of unconstitutional (or otherwise illegal) action. Our principal example of the latter circumstance concerns the obligations of the president in the period leading up to a potential standoff with a Congress that refuses to raise the debt ceiling--a not-at-all-hypothetical period in which we currently find ourselves living. Our prior essay teased an upcoming Verdict column on a piece of the analysis that is only tangential to our article: ...

 By Eric Segall Tomorrow the Supreme Court hears oral arguments in Counterman v. Colorado , which raises the issue whether the first amendment prohibits the State of Colorado from prosecuting people for stalking under an objective test that does not require proof that the defendant subjectively intended to harm his victim (disclaimer: Mike and I both signed on to a brief in the case on the side of the state).  The defendant in the case sent numerous threatening and harassing social media messages to the plaintiff which would have objectively scared just about anyone. Even after the victim repeatedly blocked him, he found a way to send her more vile communications. Nevertheless, there is a circuit split over whether a person can be punished for this kind of abuse without proof of specific intent to harm. For the reasons discussed below, the first amendment should not disable state governments from punishing true threats where an objective observer taking into account all of the...

by Diane Kemker On April 15, 2023, the Washington Post published a shocking piece under the title, “The controversial article Matthew Kacsmaryk did not disclose to the Senate.”  Taking the facts reported in the article as true, Kacsmaryk, while working as an attorney at the First Liberty Institute, wrote an article that disclosed his extreme right-wing views about trans-affirming medical care and abortion in no uncertain terms. He then sent that article off, as one does, to a law review of which he had been an editor while a student, the Texas Review of Law & Politics (TROLP). Perhaps unsurprisingly, this secondary journal happily snapped it up. But once Kacsmaryk was nominated for a federal judgeship, which would require disclosure of all his published work, he contacted the journal and instructed them to remove his name as the author, and to substitute the names of two junior colleagues at First Liberty - whose names had not appeared on the draft the journal accepted (or ev...