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

The Supreme Court Considers What Role States May Play in Intellectual Disability Determinations

Justia columnist and Cornell Law professor Michael Dorf discusses an upcoming U.S. Supreme Court case addressing how to determine whether a criminal defendant is intellectually disabled and thus ineligible for the death penalty. Dorf explains the potentially far-reaching implications of the case, Hall v. Florida, and cautions that a ruling for Florida could undermine the uniformity of federal constitutional law.

The Supreme Court’s Responsibility for Recent Death Penalty Mishaps

Justia columnist and Cornell law professor Michael Dorf argues that what the late Justice Harry Blackmun famously called “the machinery of death” still remains deeply flawed. Dorf illustrates his point through two recent, controversial executions that illustrate how the practice of capital punishment continues to defy attempts to civilize it, and suggests that the responsibility is to be placed at the Court's door.

Obamacare and Participation in Evil

Cornell law professor and Justia columnist Michael Dorf comments on the Supreme Court’s Obamacare/RFRA cases, which he notes present a number of important legal issues, as well as a fundamental question for any liberal democracy: To what extent should people be exempted from laws that they regard as requiring them to participate in evil?

A Festivus for the Rest of Us

Justia columnist and Cornell law professor Michael Dorf explains why government officials around the country feel compelled to permit Festivus poles as part of their official holiday celebrations. How did we get to this point? The short answer, Dorf explains, is that Festivus poles in state capitols are an unexpected side effect of the Supreme Court’s Establishment Clause jurisprudence.

Who Benefits From Filibuster Reform?

Justia columnist and Cornell law professor Michael Dorf explains the politics behind filibuster reform, in the wake of the elimination of the rule requiring a supermajority vote to end debate—and thus to move to a merits vote—on presidential nominations to the lower federal courts and executive offices.

How the Supreme Court Unwittingly Legitimized Richie Incognito’s Unlawful Conduct

Justia columnist and Cornell law professor Michael Dorf comments on the legal and other aspects of the incidents by which Miami Dolphins offensive lineman Richie Incognito bullied and racially harassed his teammate Jonathan Martin, to the point that Martin left the team. Dorf also notes that, interestingly, several U.S. Supreme Court cases are relevant to the controversy regarding Incognito’s behavior.

Don’t Expect the Latest Mass Shootings to Produce Gun Control Legislation

Justia columnist and Cornell law professor Michael Dorf contends that mass shootings will never lead to gun-control laws. While he notes that the gun lobby plainly plays a role in that situation, Dorf also sees the difficulty of getting such laws passed as a failure of democracy: Although more people favor than oppose additional gun-control measures, the gun-control opponents appear to favor gun rights with greater intensity than the intensity with which the majority favors gun control.

Could the President Bomb Syria Even If Congress Says No?

Justia columnist and Cornell law professor Michael Dorf comments on President Obama’s options in Syria. Dorf notes that Secretary of State John Kerry’s position is that the President can act without Congress. But Dorf calls that position profoundly misguided, citing international law and the U.N. Charter on the use of force. Dorf also points out that Congressional approval cannot substitute for Security Council authorization. Moreover, he comments on prior presidents who faced situations in which there was a lack of Congressional authorization for the use of force.

The Obama Administration Has Temporarily Cut Military Aid to Egypt, But Still Won’t Call the Coup a Coup: Why Modern Presidents Evade the Law

Justia columnist and Cornell law professor Michael Dorf comments on the situation in Egypt, arguing that President Obama’s dubious legal position with respect to Egyptian aid fits a recent pattern of American presidents acting as though they are not constrained by law when it comes to American foreign policy. To support his thesis, Dorf cites choices made by Reagan, Clinton, and George W. Bush.

What’s So Odd About A-Rod Playing Baseball Pending Appeal? Nothing. Courts Allow It All the Time

Justia columnist and Cornell law professor Michael Dorf points out that, in allowing Alex Rodriguez to continue to play baseball despite charges that he violated rules forbidding the use of performance-enhancing drugs, Major League Baseball is simply doing what U.S. trial courts typically do: Even after coming to a judgment, they suspend that judgment pending appeal. Moreover, Dorf argues that the case for permitting A-Rod to play pending appeal is actually stronger than the case for suspending other sorts of judgments. Dorf also explains why the decision whether to suspend a judgment pending appeal can be complicated and controversial, illustrating the point by citing the Proposition 8 litigation.

A Federal Appeals Court Rejects a New York Times Reporter’s Plea to Shield His Source, Highlighting the Need for Action by the Other Branches

Cornell law professor Michael Dorf comments on a recent ruling by the United States Court of Appeals for the Fourth Circuit which rejected a claim by New York Times Reporter James Risen that he was entitled to shield his confidential source. Dorf contends that, having assured the public that the Justice Department respects the role of the press, the Administration should forcefully back federal legislation to give reporters a qualified shield for their sources, and even absent such legislation, the Justice Department should fast-track the implementation of Executive guidelines limiting the targeting of reporters.

The Petition for Immediate Supreme Court Review of a Foreign Intelligence Surveillance Court Order Raises Thorny Procedural Issues

Justia columnist and Cornell law professor Michael Dorf builds on a recent column by fellow Justia columnist and former counsel to the president John Dean, discussing the substantive privacy issues raised by a recent petition to the Supreme Court seeking review of a top-secret order by a federal judge sitting in his capacity as a Foreign Intelligence Surveillance Court, who ordered Verizon to turn over call logs of all calls in which at least one party was in the United States; and forbade Verizon from informing its customers that their phone activity (though not the content of their conversations) would be shared with the government in this way. The order, notably, came to light only because Edward Snowden disclosed it. How will the legal arguments that the controversy has raised strike the Supreme Court's Justices? Dorf emphasizes that before we can know the answer, the Court must, of course, decide to accept the case for review, and as Dorf notes, there are serious procedural obstacles to its doing so.

The Troubling Emergence of Novelty-Skepticism on the Supreme Court

Justia columnist and Cornell law professor Michael Dorf isolates an interesting, but also troubling, pattern in the Supreme Court’s thinking, which he calls novelty-skepticism. Dorf notes that novelty-skepticism cuts across doctrinal areas, and defines it as a recent tendency of the Justices to presume that novel forms of legislation are unconstitutional merely in light of their novelty. Dorf offers examples of novelty-skepticism from recent decisions, and urges that the Court ought to give up its novelty-skepticism, for sometimes a new kind of law can be entirely constitutional, and in general, there is no good reason that a new law should have to jump constitutional hurdles that are higher than those that more familiar laws have had to scale.

The Supreme Court Rejects Arizona’s Requirement That Voters Prove Their Citizenship—For Now

Justia columnist and Cornell law professor Michael Dorf comments on Monday’s Supreme Court ruling, Arizona v. Inter Tribal Council of Arizona. There, as Dorf explains, a mostly united Supreme Court rejected Arizona’s efforts to require voters to provide documentary evidence of their U.S. citizenship in order to register to vote in federal elections. Dorf highlights three key features of the case: (1) the Court did not divide ideologically; (2) the majority opinion affirms a principle of broad federal preemption with respect to federal regulation of voting; and (3) the Court left open the possibility that states—including Arizona—could circumvent the Court's ruling.

Whom Should Chris Christie Name to Frank Lautenberg’s Senate Seat? Current Law Provides No Perfect Options

Justia columnist and Cornell law professor Michael Dorf explains the complex situation regarding the New Jersey Senate seat that was held by Frank Lautenberg, who just recently passed away. Lautenberg was a devoted Democrat, but now a Republican will name his immediate successor, who will then have the advantage of incumbency in the next election. Dorf explains how and why this somewhat odd-seeming sequence of events occurred, and explains the role that the U.S. Constitution’s Seventeenth Amendment, in conjunction with New Jersey law, played here. Dorf also contends that there are far better ways than this to fill Senate vacancies, and describes one such system.

A Unanimous Supreme Court Ruling Underscores the Limits of Habeas Corpus as a Remedy for State Prisoners

Justia columnist and Cornell law professor Michael Dorf comments on Monday’s unanimous Supreme Court ruling in Metrish v. Lancaster, as well as on the more general significance of unanimous rulings. Lancaster, as Dorf explains, involved the writ of habeas corpus, which the Justices declined to invoke, despite evidence indicating that the convict at issue did not receive due process at the state court level. Dorf also notes that this is only one instance in a larger pattern of the weakening and narrowing of habeas corpus at the High Court.

Legal Limits on the Forced Feeding of Hunger-Striking Guantanamo Bay Detainees

Justia columnist and Cornell law professor Michael Dorf comments on the law applicable to the forced feeding, via tubes, of those Guantanamo detainees who refuse to eat, as they are on a hunger strike, and are becoming dangerously weak. Human rights groups condemn the forced feeding as cruel, but the government says that it is better than the detainee’s dying. With U.S. law unclear on the force-feeding issue as it related to detainees, Dorf analyzes the situation, citing two relevant Supreme Court precedents and other legal sources that might shed light on the issue. He also suggests that the detainees’ best hope, in this situation, might be to invoke international law, though their chances of prevailing will still be slim.

Some Good News for Human Rights Lawyers in the Supreme Court’s Interpretation of the Alien Tort Statute

Justia columnist and Cornell law professor Michael Dorf comments on the Supreme Court’s recent ruling on the Alien Tort Statue (ATS), which had been interpreted by many human rights attorneys as opening the way for serious foreign wrongs to be litigated in U.S. courts, including the Supreme Court. The conservative Justices rejected that interpretation, however, and their votes won the day, angering and disappointing human rights lawyers. Still, Dorf finds a few positives for the human rights law community in the Court's decision, as well, citing a handful of ATS approaches that may remain to be used.

Two Recent Supreme Court Cases Sow Confusion About the Standard for Certifying Class Actions

Justia columnist and Cornell law professor Michael Dorf comments on two recent Supreme Court cases that raise complicated and interesting issues regarding class action certification. Dorf explains the holding in each case, and addresses the interesting way in which the substantive merits of the cases and their procedural posture as class actions intertwine.