Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and six books on constitutional law and related subjects. Professor Dorf blogs at Dorf on Law.

Columns by Michael C. Dorf
Is Democratic Gerrymandering of New York’s Congressional Delegation Hypocritical? Perhaps, But Unilateral Disarmament is Worse

Cornell Law professor Michael C. Dorf argues that Democrats may be justified in gerrymandering New York’s congressional districts even as they complain about gerrymandering by Republican-controlled state legislatures in Texas, Wisconsin, and elsewhere. Professor Dorf points out that it is sometimes but not always hypocritical to seek to change the law but continue to engage in behavior inconsistent with the change one seeks, and in the case of political gerrymandering, failure to do so amounts to unilateral disarmament.

Would Overruling Roe v. Wade Retroactively Reanimate “Zombie” Abortion Laws?

Cornell Law professor Michael C. Dorf discusses an often overlooked procedural aspect related to Texas’s extreme anti-abortion law that could result in “zombie” laws taking effect in every other red state. Professor Dorf argues that there are several reasons to hope that a state scheme to retroactively enforce zombie abortion laws would fail, even if the Supreme Court curtails or eliminates the abortion right itself, not the least of which is that retroactive application of zombie laws is fundamentally unfair.

Mexican Government Lawsuit Against U.S. Gun Makers Tests the Limits of Territoriality

Cornell Law professor Michael C. Dorf discusses a lawsuit in which the government of Mexico is suing U.S. firearms manufacturers in federal court for failing to take reasonable steps to prevent their weapons from ending up in Mexico, profit from the trafficking of U.S.-made guns to Mexico, and in some respects deliberately target the illegal Mexican market. Professor Dorf argues that while the lawsuit presents strong moral and policy grounds for granting the Mexican government the relief it seeks, a 2005 federal statute, the Protection of Lawful Commerce in Arms Act (PLCAA), will likely prevent it from succeeding.

How Long Will Andrew Cuomo Need to Wait for a Talking Head Gig on CNN or MSNBC?

Cornell Law professor Michael C. Dorf considers the possible next steps for New York Governor Andrew Cuomo, who recently announced his intention to resign amid multiple sexual harassment allegations. Professor Dorf observes that due to the media’s and society’s quick forgive-and-forget mentality, many disgraced politicians and celebrities quickly reemerge in the spotlight, suggesting that we are living in a post-shame society; Cuomo is likely to do the same.

Improve the Supreme Court by Making it Less and More Like Elementary School

In light of the Presidential Commission holding hearings on Court expansion, Cornell Law professor Michael C. Dorf offers two reforms that build on the observations of others and his own experience. Professor Dorf suggests that the Court spread cases out over the entire year, rather than only between October and June/July, and that the Justices rotate the order of questioning from one argument to the next.

The Real Issue in the Puerto Rican Cockfighting Case Before the Supreme Court

Cornell Law professor Michael C. Dorf comments on a recently filed petition in the U.S. Supreme Court presenting the question whether Congress had the constitutional authority to ban cockfighting in Puerto Rico. Professor Dorf explains why the Court is unlikely to agree to hear the case, but he points out that the case presents a broader issue of laws that proscribe one unpopular form of cruelty to animals (e.g., cockfighting), even as the vast majority of the law’s supporters routinely demand animal products that come from the infliction of suffering on a much more massive scale—the meat and dairy industries.

The Troubling Implications of the SCOTUS Arizona Voting Rights Case

Cornell Law professor Michael C. Dorf comments on the U.S. Supreme Court’s decision last week in Brnovich v. Democratic National Committee, in which the Court upheld along ideological lines two Arizona voting laws, one of which restricted who could collect mail-in ballots and the other of which invalidated votes mistakenly cast in the wrong district. Professor Dorf argues that even if the bottom line in Brnovich is correct, the legal analysis and the Court’s broad acceptance of Republican talking points about voter fraud portend ill for the future of American democracy.

Challengers to the Affordable Care Act Lose their Third Supreme Court Case: Will They Bring a Fourth?

In light of the U.S. Supreme Court’s decision last week rejecting a third legal challenge to the Affordable Care Act, Cornell Law professor Michael C. Dorf considers whether challengers could bring (and succeed on) a fourth. Professor Dorf explains why subsequent challenges are unlikely to succeed, pointing out that a nonexistent obligation (as the so-called individual mandate now is) cannot be unconstitutional.

Naomi Osaka, Disability Accommodations, and Platonic Essentialism

Cornell Law professor Michael C. Dorf considers how the recent treatment of tennis player Naomi Osaka by the professional tennis establishment highlights key aspects of disability law. Professor Dorf argues that while reasonable people can disagree in many cases about what constitutes the “essence” of a sport for purposes of the Americans with Disabilities Act (ADA), no one can plausibly argue that speaking to reporters at a press conference is in any way essential to playing tennis.

Could the Supreme Court Erode But Not Overrule Roe v. Wade in the Mississippi Case?

Cornell Law professor Michael C. Dorf considers whether and how the U.S. Supreme Court next term might eliminate or substantially curtail the constitutional right to abortion recognized in Roe v. Wade. Professor Dorf describes the jurisprudence after that decision and argues that a decision that upholds the Mississippi law while purporting to forestall deciding the ultimate fate of Roe would be brazenly dishonest—albeit somewhat more likely than a clear overruling of Roe.

What Facebook and its Oversight Board Got Right and Wrong in the Trump Case

Cornell Law professor Michael C. Dorf comments on last week’s announcement by the Facebook Oversight Board with its verdict regarding the company’s treatment of former President Donald Trump’s suspended account. Professor Dorf argues that the Board’s ruling makes sense in many respects, but makes two mutually exclusive demands of Facebook: clear rules for the sake of predictability and at the same time, flexibility for moderators to consider the individual context of a situation.

What’s in a Name? Genocide, Torture, Eugenics, Taxes, and Humpty Dumpty

Cornell Law professor Michael C. Dorf comments on the recent news that President Joseph Biden is using the word “genocide” to describe the Turkish regime’s murder of roughly 1.5 million Armenians during and after World War I. Professor Dorf explains why language matters in the context of genocide, torture, eugenics, taxes, and Humpty Dumpty.

Could Clarence Thomas Be Right About Twitter?

Cornell Law professor Michael C. Dorf comments on a recent concurrence by Justice Clarence Thomas in a case in which the Court vacated as moot a federal appeals court ruling that the president cannot block users’ access to his Twitter account. Professor Dorf explains why Justice Thomas’s reasoning is deeply flawed, but he points out that Justice Thomas’s conclusion that the First Amendment might permit Congress to forbid Twitter from moderating content on its site finds unlikely support in arguments historically put forth by progressive politicians and scholars. In their view, very large private actors who exercise power over people’s lives comparable to and sometimes even exceeding that of government should be subject to the same sorts of norms that the Constitution applies to the government.

Sidney Powell Files a Brief Embracing Fact-Free Politics

Cornell Law professor Michael C. Dorf comments on a brief filed by Donald Trump’s former lawyer Sidney Powell in a defamation lawsuit brought by Dominion Voting Systems. Professor Dorf argues that Powell’s motion to dismiss the case should fail, but he notes that the argument presented in her brief is more subtle than is generally acknowledged.

How Not to Criticize the American Rescue Plan Act of 2021

Cornell law professor Michael C. Dorf responds to three broad-based objections by Republican opponents to the American Rescue Plan Act of 2021: (1) that the already-recovering economy doesn’t need stimulus; (2) that many of the Act’s provisions have nothing to do with COVID-19; and (3) that there will be waste, fraud, and abuse. Professor Dorf explains why these objections ring hollow and argues that while the Act is not perfect legislation and will likely face challenges in implementation, it is a much better option than anything Republicans were offering.

The Hidden Ideological Stakes of SCOTUS Patent Case

Cornell law professor Michael C. Dorf describes the ostensibly complex legal issues presented in United States v. Arthrex, Inc., in which the U.S. Supreme Court heard argument earlier this week, and explains how those issues reflect an ideological divide as to other, more accessible matters. Professor Dorf argues that although many conservatives would like to dismantle the modern administrative state, our complex modern society all but requires these government agencies, so conservatives instead seek to make them politically accountable through a Senate-confirmed officer answerable to the president, furthering the so-called unitary-executive theory of Article II.

The Upside-Down Treatment of Religious Exceptions Cases in the Supreme Court

Cornell law professor Michael C. Dorf comments on the U.S. Supreme Court’s decision last week to reject an emergency application from the State of Alabama to lift a stay on the execution of Willie B. Smith III. Professor Dorf observes the Court’s unusual alignment of votes in the decision and argues that, particularly as reflected by the recent COVID-19 decisions, the liberal and conservative Justices have essentially swapped places from the seminal 1990 case Employment Division v. Smith, which established that the First Amendment does not guarantee a right to exceptions from neutral laws of general applicability.

The Excessive Complexity of Federal Court Gatekeeping Law

Cornell law professor Michael C. Dorf explains why Trump v. Sierra Club, a challenge to President Trump’s border wall currently pending before the U.S. Supreme Court, exemplifies the needless complexity of federal court gatekeeping law. Professor Dorf lists the various legal doctrines that restrict access to the federal courts and argues that their number and complexity tend to undercut, rather than serve, justice.

Obstacles to the Biden Agenda Include Americans’ Belief in Nonsense

Cornell law professor Michael C. Dorf comments on the willingness of Americans to believe lies and misinformation, pointing to confirmation bias and social media bubbles as playing key roles in this problem. Professor Dorf argues that we must render Trumpism beyond the pale, in part by shunning those who spread lies and minimizing opportunities for them to spread dangerous misinformation and incite riots.