Cornell law professor Michael C. Dorf comments on a recent decision in which the U.S. Supreme Court held that Congress lacked constitutional authority to enact the Copyright Remedy Clarification Act of 1990, which gives individuals the right to sue a state for damages for copyright infringement. Dorf describes the complexity of the Court’s sovereign immunity doctrine and points out the Court’s peculiar failure to simply invalidate a portion of the statute while severing and preserving the valid portions and/or applications of it—which the Court has done in some other cases.
Cornell law professor Michael C. Dorf implores the President or Congress to act swiftly and drastically to address the COVID-19 pandemic: lock down the nation and suspend habeas corpus. Dorf explains why this extreme measure is both appropriate and necessary in a situation such as this one.
Cornell law professor Michael C. Dorf observes that the unfolding catastrophe of COVID-19, the now-pandemic caused by a novel coronavirus, will require all of us—whatever our politics, religion, race, ethnicity, sex, sexual orientation, gender identity, and age—to come together and unite to defeat it. Dorf builds upon insights by Verdict columnist and University of Florida Law professor Neil Buchanan that generational justice is the wrong lens through which to view questions about funding Social Security because the real distributional problems in our society exist in the here in now and require people to work together, not at cross-purposes.
Cornell law professor Michael C. Dorf comments on last week’s decision by the U.S. Court of Appeals for the D.C. Circuit holding that federal courts could not enforce a congressional subpoena to former White House Counsel Don McGahn because federal courts cannot adjudicate interbranch disputes. Dorf describes some of the major flaws in the court’s reasoning and explains why the ruling is a clear victory for Donald Trump and a loss for the constitutional system.
Cornell law professor Michael C. Dorf comments on New York’s lawsuit against the federal government over the Department of Homeland Security’s decision to exclude New York residents from eligibility for Trusted Traveler programs. Dorf describes some of the interesting legal questions the lawsuit raises in terms of administrative law, judicial standing, and constitutional law.
Cornell law professor Michael C. Dorf considers how much freedom the government has to “level down” in response to a finding of impermissible discrimination. Dorf discusses several of the U.S. Supreme Court’s precedents on leveling down and points out that these decisions are difficult to reconcile with each other and leave unresolved the questions whether and when leveling down is permissible.
Cornell law professor Michael C. Dorf discusses the possible consequences of the Virginia legislature’s ratification of the Equal Rights Amendment (ERA) just last week, becoming the 38th state to do so. Dorf explains why there remains a question as to the validity of Virginia’s ratification, given the Amendment’s purported deadline, and explains why both liberals and conservatives alike should urge Congress to deem the ERA now valid.
Cornell law professor Michael C. Dorf offers one interpretation of Chief Justice John Roberts’s annual year-end report on the federal judiciary—that the Chief Justice intends to serve as a modest counterbalance to President Trump. Dorf supports his interpretation with text and context of the year-end report but offers his cautious praise to the Chief Justice with a few important caveats as well.
Cornell law professor Michael C. Dorf comments on a case the U.S. Supreme Court recently agreed to review that presents the question whether a provision of the Delaware Constitution that requires the state’s judiciary be nearly equally balanced between Democrats and Republicans is constitutional. Dorf argues in favor of the provision, explaining that the provision takes into consideration partisan affiliation as means of limiting the role of politics in judicial appointments and judging.
Cornell law professor Michael C. Dorf comments on a lawsuit in which New York State and other plaintiffs are suing the federal government over an immigration policy of arresting undocumented immigrants when they appear in state court on unrelated matters. Dorf explains why the federal judge hearing the case should reject the government’s motion to dismiss the lawsuit.
Cornell law professor Michael C. Dorf comments on Argentina’s national elections last month, in which the country elected as Vice President Cristina Fernández de Kirchner, who had previously served as President of Argentina from 2007 to 2015. Dorf considers why Kirchner, and indeed anyone, would accept a lower position than what she has previously held. Dorf argues that due to the Peter Principle—which states that workers in a hierarchical organization tend to rise to their level of incompetence—we would do well as a society to abandon the whole concept of a demotion.
Cornell law professor Michael C. Dorf explains why Democratic presidential hopeful Pete Buttigieg and his critics are both wrong about the U.S. Supreme Court having become especially political. Dorf points out that since the Court’s 1803 decision in Marbury v. Madison the Court has been highly political, and the true problem lies with the unprecedented polarization of the political parties—not with the Court or the appointments process.
Cornell law professor Michael C. Dorf explains why U.S. Supreme Court cases—confusingly, Nixon v. United States and United States v. Nixon—together should foreclose any legal arguments that might have supported President Trump’s strategy to fight impeachment. Dorf explains each of the precedents and their bearing on today’s situation.
Cornell law professor Michael C. Dorf comments on the recent unanimous decision by the U.K. Supreme Court ruling that Prime Minister Boris Johnson acted unlawfully in asking the Queen to prorogue Parliament. Dorf explains how that ruling highlights the error of the U.S. Supreme Court’s recent ruling in Rucho v. Common Cause, in which the Court declined to intervene in a political gerrymandering case, citing the so-called political question doctrine.
Cornell law professor Michael C. Dorf comments on a memorandum recently issued by Andrew Wheeler, the administrator of the federal Environmental Protection Agency (EPA), that announced directives to substantially reduce government funding for and mandating of animal testing of chemicals to which humans might be exposed. Dorf acknowledges that Wheeler’s motivation might be the deregulation of industries that produce chemical products (a legitimate concern expressed by some public health and environmental groups), but Dorf argues that the policy is win-win-win: better for the animals spared experimentation; less costly to the public fisc; and better for human health.
Cornell law professor Michael C. Dorf considers whether a possible Supreme Court ruling in a “faithless elector” case from the U.S. Court of Appeals for the Tenth Circuit could end the National Popular Vote (NPV) movement, which attempts to circumvent the Electoral College by interstate compact. Dorf provides a short background of NPV and the Tenth Circuit’s decision, and he explains why a decision by the Court decides to affirm the Tenth Circuit’s reasoning would threaten NPV.
Cornell law professor Michael C. Dorf offers some advice to new law students, highlighting the importance of being able to distinguish among different types of legal questions—easy questions, complicated questions, and indeterminate questions. Dorf explains what he means by each type of question and concludes with a caveat and a warning.
Cornell law professor Michael C. Dorf offers some thoughts on a comment by Golden State Warriors head coach Steve Kerr that moves by NBA stars like Kawhi Leonard and Anthony Davis are “bad for the league.” Dorf explains that while the concept—and legal acceptability—of efficient breach in contract law demonstrate that the law does not impose an obligation to carry out one’s end of a bargain, one could understand Kerr’s statement more accurately to mean that because the legal remedies for enforcing sports contracts are inadequate, the NBA and its fans must rely on the consciences of individual players to honor the obligation of good faith.
Cornell law professor Michael C. Dorf argues that the Trump administration’s new rule that would bar asylum applications from asylum-seekers who did not apply for asylum in at least one country en route to the United States is illegal, cruel, and counterproductive. Dorf explains why federal statutory law precludes such a rule and points out that while the Trump administration is not entirely responsible for the current immigration crisis, it has taken various steps to exacerbate the problem.
Cornell law professor Michael C. Dorf comments on the recent back-and-forth involving the Department of Justice seeking to place a new legal team on the Trump administration’s effort to justify the addition of a citizenship question to the 2020 census. Dorf points out that whoever ends up representing the administration, this attempted withdrawal may shed light on the merits of the case and the lengths to which the President and those who serve him are willing to go for the citizenship question.