Cornell University law professor Michael C. Dorf explains why the Masterpiece Cakeshop case before the US Supreme Court—in which the Court will decide whether a baker may refuse to serve a gay couple based on his religious beliefs—does not present a difficult choice between liberty and equality. Rather, Dorf points out, the baker’s free speech claim in this case should be relatively easy to reject because a cake without an articulate message on it does not constitute the “speech” of the person who made it.
Cornell University law professor Michael C. Dorf considers the recent spate of sexual misconduct allegations in the political sphere and entertainment industry, and notes how much less inclined to action and condemnation the former is compared to the latter. Dorf illustrates this point by considering the allegations against Donald Trump and Roy Moore, as well as various well-known Hollywood players, then evaluates several factors that may explain the contrast in reactions. Dorf concludes that the polarized, partisan state of our government, coupled with weak political parties, ultimately leaves Washington far more powerless to purge offending individuals than Hollywood.
Cornell University law professor Michael C. Dorf considers how President Trump’s attacks on CNN affect the Justice Department’s efforts to block AT&T’s proposed purchase of Time Warner (by requiring AT&T to sell off Turner Broadcasting, the parent company of CNN, or DirecTV). As Dorf points out, illicit intent can taint policies that without such intent would pass constitutional muster. Dorf explains why AT&T likely can meet the threshold of making a “credible showing of different treatment of similarly situated persons” to advance allegations of selective prosecution based on free speech.
Cornell University law professor Michael C. Dorf describes a principle most famously articulated by Thomas Jefferson, under which there should be a right to avoid providing financial support for causes one strongly opposes. Dorf argues that the Jeffersonian principle has lately run amok. He points out that the government’s argument against allowing a seventeen-year-old undocumented immigrant in federal custody to obtain a privately funded abortion is but one example of the government’s too-broad definition of “facilitation” of acts with which it disagrees. Dorf argues that adoption of such a position would convert every objectionable private exercise of rights into government participation.
Cornell University law professor Michael C. Dorf explains why, if Congress wants to ban or further regulated the sale of “bump stocks,” it should act quickly or risk missing the window in which regulation is possible. Dorf points out that the test the Supreme Court uses for whether weapons count as “arms” protected by the Second Amendment is whether they are in “common use,” not whether they are “dangerous and unusual weapons.” Dorf argues that so long as bump stocks remain legal, people can accumulate them, and if enough people do that before they are banned, there could be so many in circulation as to qualify as in common use, thereby falling within the scope of Second Amendment protection.
Cornell University law professor Michael C. Dorf describes some of the key similarities and differences between the most recent iteration of President Trump’s ban on entry to the US by certain foreign nationals (“Travel Ban 3.0”) and earlier versions, and considers whether these differences will affect the determination of the policy’s legality. Although the Supreme Court might not ultimately be the court that answers the question, Dorf points out that we may have an answer before too long.
Cornell University law professor Michael C. Dorf comments on a recent decision by the Israel Supreme Court holding that the government’s policy of exempting Haredim (ultra-Orthodox Jews) from military service was unconstitutional discrimination. Dorf describes the background of the legal system in Israel and explains how the relationship between the court and the elected officials in that country might inform judicial review in other democracies.
Cornell University law professor Michael C. Dorf comments on a recent decision by the Supreme Court of India in which that court ruled that the Constitution of India protects a right of privacy. Dorf explains the significance of the decision not only for the largest democracy in the world, but also for people in other constitutional democracies, including the United States.
Cornell University law professor Michael C. Dorf uses the refusal of private internet domain registrars to do business with neo-Nazi website The Daily Stormer to illustrate the need for a change in the law. Dorf acknowledges that in the case of The Daily Stormer, no rights were violated, and the companies acted within their terms of service. However, Dorf argues that Congress should impose obligations to respect freedom of speech on companies that provide essential internet services to avoid the future possibility that such private companies stifle speech of worthy organizations and legitimate causes.
Cornell University law professor Michael C. Dorf highlights some potentially dangerous consequences of the Justice Department’s recent indication that it would be investigating and suing colleges and universities that practice affirmative action. Dorf points out that the executive branch holds significant power over both public and private universities and colleges, and that it could exercise that power to induce significant changes in admissions policies.
Cornell University law professor Michael C. Dorf argues that if President Trump were to pardon himself, that action itself would not cause a constitutional crisis, but other actions Trump has already taken have already placed us far along a road to a constitutional crisis. Dorf defines a constitutional crisis in terms of three types first articulated by Sanford Levinson and Jack Balkin in a 2009 law review article, and Dorf proposes a fourth type characterized by defiance of unwritten norms that are not themselves legal obligations but that undergird the constitutional system as a whole.
Cornell University law professor Michael C. Dorf analyzes the arguments made by Donald Trump’s lawyers in defending against Summer Zervos’s defamation suit against him, specifically the argument that Trump’s comments were mere “hyperbole” and “fiery rhetoric,” which, in the context of a presidential campaign, do not amount to defamation under state law. Dorf argues that existing law already offers politicians some protections against frivolous lawsuits, and what Trump’s lawyers are asking for is essentially a license for a candidate to lie about anyone and anything so long as the controversy has some connection to politics.
Cornell University law professor Michael C. Dorf discusses possible implications and outcomes of the Supreme Court’s recent announcement that it will review the appeals court decisions invalidating President Trump’s travel ban executive order. Dorf explains the issue of mootness and also explains how one might predict how the Court will rule on the merits of the case.
Cornell University law professor Michael C. Dorf comments on a recent decision by the U.S. Supreme Court on the heritability of citizenship and explains why the decision might have implications for other immigration issues, such as the “Muslim ban” executive order. Dorf argues that the precedents the Court had to distinguish to reach its conclusion might give some insight into whether and how it might defer to other political branches on immigration issues.
Cornell University law professor Michael C. Dorf comments on the recent election of Republican Greg Gianforte in Montana, despite Gianforte’s being charged with misdemeanor assault for body-slamming a reporter. Dorf considers the broader implications of voters’ apparent indifference to the assault.
Cornell University law professor Michael C. Dorf comments on President Trump’s decision Tuesday night to fire FBI Director James Comey. Though Title VII obviously does not apply to Trump’s action, Dorf analogizes to the framework used in Title VII employment discrimination contexts to demonstrate that the evidence overwhelmingly suggests Trump’s asserted grounds for firing Comey were pretextual.
Cornell University law professor Michael C. Dorf describes President Trump’s first hundred days in office as characterized by incompetence and efforts to delegitimate the courts and the press. Dorf argues that the incompetence runs throughout Trump’s administration, not only in Trump himself.
Cornell University law professor Michael C. Dorf comments on the legality of President Trump’s missile strike on a Syrian airbase under domestic and international law. Dorf describes the different stakes under domestic and international law of permitting military intervention for humanitarian purposes.
Cornell University law professor Michael C. Dorf explains the significance of the U.S. Supreme Court’s recent decision regarding New York credit card surcharge laws as free speech. Dorf argues that the decision reflects an alarming trend of the Roberts Court to agree to recognize challenges to economic regulations on free speech grounds.
Cornell University law professor Michael C. Dorf explains the value of the confirmation hearing of Supreme Court nominee Neil Gorsuch, despite the tradition in such hearings of the nominee evading answering questions about the most divisive legal issues of the day. Dorf argues that the Gorsuch hearing provides a unique opportunity for bipartisan repudiation of President Trump’s irresponsible attacks on the judiciary.