Dorf on Law

As the situation in Israel and Gaza continues to produce a seemingly endless series of tragedies beginning with the October 7 attacks, I have been surprised and relieved to notice one positive aspect of the public discussion, especially from within Israel.   Put simply, people are allowed to continue to disagree with each other, as opposed to being silenced into supporting whoever happens to be in charge at the moment.  I am of course not saying that the situation is not horrifying on every level, but there is value in noting when something is going well -- especially when so much else is falling apart. A healthy and vigorous public debate is no small thing in a democracy, and it has always been a feature of the Israeli political culture, as far as I know.  On questions related to Israel, the conversation in Israel itself has always been unfettered and pointed, whereas American political discussion about Israel has always been stifled (and stifling).  Even in a ...

Over the next year or so, numerous courts (and state election officials) are going to be asked to disqualify Donald J. Trump from being President again because he engaged in an insurrection and thus is ineligible under Section 3 of the 14th Amendment. Lawsuits have already been filed in Minnesota and Colorado seeking to keep Trump off the ballot in those states. In the next few weeks, I’ll be speaking at Stanford and the University of Minnesota on this issue. To prepare, I’ve read numerous articles by prominent law professors trying to ascertain the original meaning of Section 3. After reviewing the current literature, it is quite clear to me that originalism cannot help us sort out the many legal questions surrounding Section 3 even if we wanted to use an exclusively historical and textual analysis. Instead, judges should focus on the here and now and apply Section 3's text according to contemporary needs and politics.  Although the question is close, I have reluctantly concluded...

The Hamas-led attacks on Israel happened on October 7, which is now more than ten days ago.  As Professor Dorf wrote here on October 10th, "readers [of Dorf on Law ] might reasonably expect that I and/or one or more of my co-bloggers would be quick to express views about the latest war. And we may yet."  He closed his column by adding: "In the meantime, I caution readers not to confuse reticence on the subject with indifference. It more nearly reflects the opposite reaction."  He found his voice yesterday, and I will now attempt to express some coherent thoughts as well, although I know that I cannot match his eloquence. It is not easy to write anything about this subject.  I have no words to describe my initial reaction to the news, as I (along with nearly everyone else) struggled to process the sheer horror and scope of what had happened.  I do, however, have the precise words to describe what I thought next: "Oh no, this is going to be used by some peopl...

The standard version of the doctrine of double effect (DDE) posits that it is sometimes permissible to intentionally commit an act that has the foreseeable consequence of causing serious harm (including the death of innocent people), so long as that harm is an incidental effect rather than the goal of the act and is proportionate to the act's benefit. Standard DDE has been offered as a basis for permitting a lethal dose of palliative medication where the doctor intends to alleviate a terminal patient's pain, with death as a foreseen side effect. More directly relevant to current events, DDE operates in the international humanitarian law of war, which forbids targeting civilians but permits targeting combatants even though civilian casualties are a foreseeable collateral consequence, so long as the attacker attempts to minimize civilian casualties and the foreseeable civilian casualties are proportionate to the military advantage to be gained by attacking the combatants. In  A N...

According to a possibly apocryphal story (of which the following is only one version) , when it was suggested to Joseph Stalin that the Pope might play a role in peace negotiations to conclude World War II and build the post-war order, Stalin quipped: "The Pope? How many divisions has the Pope?" As one of history's most prolific mass murderers, Stalin is hardly a source of moral guidance, but on this matter of realpolitik, he had a point. The meetings in Tehran, Yalta, and Potsdam among the leaders of the Allied nations were fundamentally about power. Lacking a military force and having played no substantial role in combating the Nazis ( to say the least ), Pope Pius XII had no leverage and thus, according to Stalin, should be denied a seat at the bargaining table. Stalin's supposed quip can be taken in at least two ways. One is that might makes right, which is really another way of saying--as Thrasymachus says in Book 1 of The Republic --that there is no such thing a...

As of this moment (early Thursday afternoon), House Republicans have not yet chosen a new Speaker to replace the hapless Kevin McCarthy, who was "vacated" last week by the hardest of hard-right MAGA loyalists.  Or was it the Democrats' fault?  I will discuss that debate below, but no matter how one views what happened last week, it remains true that Democrats could indeed join with Republicans to make some other Republican (or even McCarthy himself) the next Speaker.  If the Democrats choose not to do so, and if terrible things then happen in a way that seems plausibly tied to the lack of a functioning House of Representatives, will the resulting damage be the Democrats' fault?  And no matter who could be blamed, when should Democrats help pull Republicans out of the hole that they created? Put differently, we are once again in a situation where Democrats could cave to unreasonable demands (many of those demands being indecipherable and others contradictory, but neve...

As the title of today's essay indicates, I have some announcements, into which I'll intersperse some observations. (1) You can now watch recordings  of the Symposium in Honor of Sherry Colb that was held on September 29 at Rutgers Law School, which co-sponsored the event with the Cornell Law Review. With the exception of a lunchtime session of personal remembrances, the above link to the recording includes all of the day's panels. (If you want to jump directly to individual panels, panel 1 includes the Rutgers Dean's welcome and the papers on cross-cutting themes ; panel 2 is on animal rights ; panel 3 focuses on criminal procedure ; panel 4 is on feminist jurisprudence ; and the final recording is the Cornell Dean's concluding remarks .)   Despite the fact that the New York City metro area experienced very heavy rainfall that affected some local travel on the day of the symposium, it was very well attended and seemed to be very well received.  Because written paper...

Because of my age, rank, and other factors, I am one of the people who receives "headhunter" emails from search firms that have been hired to help law schools fill open deanships.  Like Professor Dorf , I am NOT interested in being a dean -- at all.  Such emails, however, do also seek the names of other people whom I might recommend for a decanal position, which gives me the opportunity to inflict a possible deanship on friends, acquaintances, and others. In any event, I recently received one of those inquiries, in this case for the dean search at Fordham's law school.  I read through the description of the position, which has also been posted publicly , and I noted something that should have been unremarkable but that stood out in the current academic and political environment.  Although such advertisements are predictably filled with boilerplate and vague-yet-uplifting prose, the advertisement included these forthright statements: Fordham Law’s accomplishments and ...