Dorf on Law

Yesterday, Mike wrote a poignant tribute to Professor Richard H. Fallon, Jr., a legendary law professor at Harvard Law School. Dick was a brilliant scholar and wonderful human being. Our paths crossed numerous times over the years, and he was always incredibly generous both to me and my work, whether he agreed with what I was saying or not. That is just who he was, and I can't add anything of personal value to Mike's wonderful post. Instead, and maybe selfishly, I want to honor Dick in a different way. I have spent much of my academic career reading, writing, and talking about originalism, culminating but not ending in my book "Originalism as Faith." Subsequent to the publication of that book, Dick wrote what I think is one of the finest articles ever written on the subject, "The Chimerical Concept of Original Public Meaning ." Please don't let the term "chimerical" distract from the thesis of this piece, which is that for the constitutional p...

Richard H. Fallon Jr., the Story Professor of Law at Harvard Law School, died on Sunday. Dick was an exemplary scholar and teacher of constitutional law and federal courts. He was also one of the kindest, gentlest, most generous human beings one can come across. The obituary in yesterday's  Harvard Crimson captures some of what made Dick so extraordinary, quoting former students as well as colleagues. I share the view expressed by Cass Sunstein, who told the Crimson that Dick combined brilliance and humility in a nearly unique way. In today's tribute, I'll add a personal remembrance. With the possible exceptions of Laurence Tribe and Daniel Meltzer, who respectively taught me constitutional law and federal courts, and for both of whom I served as a research assistant as a student, no one has had a more profound influence on how I think about my core subjects than Dick. I'm not even sure Dan counts as an exception because Dick did so much of his path-breaking work in fe...

Here is the headline of a story in  The New York Times  from July 4: "From Court to Congress to the Mideast, Trump Tallies His Wins."  If one were searching for a perfect example of the absolutely blind insistence in the US on treating Donald Trump and his totalitarian regime just like we would treat any other US presidential administration, this headline would be in the running.  The editor might as well have written: "Nothing new to see here, folks!  Just wins and losses in the big game of American politics.  And now a word from our sponsor." What exactly is so bad about that framing?   It is not that Trump has suffered big policy or other losses, of course.  He in fact has gotten his way in recent weeks and months on a depressingly large number of matters, across a range of policy and governmental controversies.  No, the problem is that the notion of "tallying wins" evokes the idea of someone having engaged in spirited but genuinely ...

As I noted on the blog ( here and here ), last week and over the weekend, I attended Vegan Summerfest. My talks went well (I thought), but in today's essay I want to focus on a case I learned about during a side discussion. One of the best parts of just about any conference is the opportunity for informal conversations and the forging of connections. Today's essay is inspired by one such conversation with Dr. Faraz Harsini, whose remarkable personal story I urge readers to check out. Here I'll focus on one incident in which Faraz was involved, which implicates the following question: when should police give warnings before arresting someone? A few years ago, Faraz and Daraius Dubash were participating in an animal rights demonstration in a public park in Houston. The demonstration was non-disruptive. It consisted of showing videos of what happens to animals used for food. The roughly half-dozen demonstrators did not approach passersby but did talk with anyone who approach...

Although the chaotic news cycle moves inexorably forward, the sheer cruelty of the Trump budget law that congressional Republicans are celebrating deserves our continued attention.  It is not as though the effects of the bill's many depravities are all behind us, because it has been the law for less than a week and will continue to inflict gratuitous harm on people -- including tens of millions of people who do not think of themselves as vulnerable or even "dependent" on the government -- for decades to come. In my column yesterday, I called out the non-Republican commentators who are opportunistically (at best) or ignorantly (at worst) pushing the narrative that the budget bill is bad because "it increases the debt by $3.3 trillion over the next ten years."  As I pointed out, the bill could have been debt-neutral but even more harmful than it is.  After all, if one buys into -- or merely accepts as a matter of political reality -- the Republicans' continued...

To be clear, the bill that congressional Republicans dutifully passed and that Donald Trump signed on the country's nominal birthday last Friday was bad.  Very bad.  It seems safe to say that dooming tens of millions of people to needlessly early and painful deaths is bad.  In fact, I would venture to say that it is not good, because it is a massive upward redistribution of wealth, with health care and food assistance being taken away from the non-rich in order to partially fund a massive tax cut for the richest Americans and large corporations.  Yes, it is literally taking medicine away from sick people and food away from babies to make billionaires richer.  (And I do mean literally , not in the silly "my head literally exploded" non-sense but in the "this is in fact what will happen" sense.) So again: both bad and not good.  The problem is that there is a sloppy and misleading way to describe what is bad about that bill, and unsurprisingly, it involv...

As I explained here on the blog yesterday , from today through Sunday, I'm attending Vegan Summerfest. In yesterday's essay, I provided the descriptions of each of the talks I'll be giving and went into some detail about the first one (which I'll deliver later today), titled Free Speech for Animals . As promised, in today's essay I discuss my other talks. For those of you who missed yesterday's essay and don't want to click over to it, I'll provide the official description of each before diving in to a brief further exegesis of what I hope to accomplish. Human Rights for Nonhuman Animals : The 1948 Universal Declaration of Human Rights has played a critical role in efforts to combat grave injustices, including torture, genocide, and enslavement. But why should rights against such practices be restricted to human beings? Let’s explore whether, and if so, how, “human rights” can be a basis for securing rights for non-human animals. The genesis of this talk...

From tomorrow afternoon through Sunday, I'll be attending Vegan Summerfest , held on the campus of the University of Pittsburgh at Johnstown. As I noted last year , this is an annual conference I've been attending fairly consistently for nearly two decades now. In that post from last year, you can find descriptions of talks I've given in the past. This year, I'm giving three and a half brand new talks. I say three and a half because three of them are solo talks, while the fourth is a session I'm jointly running with philosopher Mylan Engel . (In the program , that fourth talk is listed under Professor Engel's name only because he submitted the proposal, so, even though I was named therein, the computer thought it was a solo performance.) Below, I provide the description from the program of each of my talks and then say a bit more about the first one, putting it in context with a seminar I'll be offering at Cornell Law School in the fall. In a follow-up post ...

As readers of this blog probably know, I was extremely fortunate to have a close relationship with retired judge Richard Posner, including hours of on the record taped conversations (it is common knowledge that he tragically now suffers from severe Alzheimer’s). I was recently listening to one of our discussions about the Hobby Lobby and Little Sisters of the Poor cases. We discussed both after his court rejected Notre Dame's absurd argument that signing a form granting it an exemption from the Affordable Care Act's requirement to provide birth control for its employees constituted a substantial burden on religion. We got into the weeds of free exercise and RFRA doctrine, or I should say, I tried to engage him in that conversation, but he refused. I was trying to show him that Justice Alito in Hobby Lobby effectively reduced substantial burden claims to non-reviewable sincerity claims, a point Justice Ginsburg made in dissent. I argued Alito’s move was deceitful and wrong. ...

Say anything to take power.  Do everything to hold power.   That is effectively the mantra of a rising dictator.  And in the United States today, on the eve of the annual Independence Day celebrations, the verb tense has now changed from "rising" to "risen."  In a conversation earlier today, a friend said, "People talk about whether there's a constitutional crisis.  That's no longer the question, because ...." and I finished the sentence, "we're already in post-constitutional mode." Given my decade-long series of analyses concluding that the US would soon no longer be a constitutional republic governed by laws and not men and with institutions guaranteeing ordered liberty, this is hardly surprising.  My friend and I both agreed, however, that this happened much,  much  more quickly than we expected -- and we honestly thought that we had long been on the outer boundaries of pessimism.  Oh well. How do we know that that fundamental chan...