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 Recent Supreme Court Affirmative Action Oral Argument Zeroes in on the Concept of “Critical Mass”

Justia columnist and Cornell law professor Michael Dorf explains the origin and meaning of the concept of having a “critical mass” of minority students in the affirmative action context, and the role that this concept played in a recent Supreme Court oral argument relating to affirmative action at the University of Texas. Without a critical mass of minority students, it has been argued, such students will feel isolated in class and on campus, and there may be little diversity within the group of minority students itself. For these reasons, the University of Texas gives such students a special “plus factor” in admissions. Dorf explains how both conservatives and liberals on the Court have come to place what he argues is excessive weight on the “critical mass” concept, when it comes to affirmative action in education. He also summarizes the conservative Justices’ critique of the concept, but contends that that critique is itself flawed.

A Supreme Court Admiralty Case Sheds Light on a Longstanding Debate

Justia columnist and Cornell law professor Michael Dorf comments on an admiralty case in which the Supreme Court will hear oral argument next week, on the first day of its new Term. As Dorf explains, the case raises a narrow question at first glance: whether a houseboat counts as a “vessel” under federal maritime law. But Dorf also notes that, upon closer inspection, the case has a much wider meaning, illuminating the relevance of longstanding jurisprudential debates to real-world litigation. In particular, Dorf relates the case to a famous debate between two major thinkers on jurisprudence, H.L.A. Hart and Lon Fuller. Hart was a positivist; Fuller hewed to a “natural law” view; and Dorf explains how each of these stances relates to the case before the Court. Dorf also parallels the Hart/Fuller disagreement with one between Justice Scalia and Richard Posner.

A Federal Appeals Court Upholds Louboutin’s Trademark for Red-Soled Shoes: Has the Law Granted Too Much Protection for Intellectual Property?

Justia columnist and Cornell law professor Michael Dorf comments on a very interesting court case regarding intellectual property rights. As Dorf explains, the case concerned Christian Louboutin’s famous red-soled high-heeled shoes, and pitted Louboutin against Yves Saint Laurent. Dorf discusses the reasons a New York-based federal district court ruled against Louboutin, and the reasons a panel of the U.S. Court of Appeals for the Second Circuit reversed and remanded the case. Dorf questions the Second Circuit decision; questions more generally whether the law overprotects intellectual property; and urges that our legal regime must keep in mind the very real risk that the law in this area, rather than protecting creativity, will become a barrier to it. Dorf also briefly discusses the somewhat similar Apple/Samsung dispute.

How Todd Akin’s Statements About Rape and Pregnancy Undercut the Pro-Life Movement’s Efforts to Sell Itself as Pro-Woman

Congressman and Senate candidate Todd Akin’s comments about “legitimate rape,” in which he claimed that a woman who is raped is especially unlikely to get pregnant, are now notorious for being both offensive and factually wrong. In this column, Justia columnist and Cornell law professor Michael Dorf contends that—in addition to being highly inaccurate and offending many—Akin’s comments have also harmed the pro-life movement’s ability to present itself as pro-woman. Dorf notes that Akin’s “legitimate rape” phrase harkens back to old stereotypes claiming that women often made false rape claims, when we now know that is untrue. Ultimately, Dorf suggests, Akin’s comments may well have the greatest significance for the abortion debate, and Dorf explains why—examining the pro-life claim that women experience “abortion regret syndrome,” and considering whether the pro-life movement can, or should, be deemed pro-women, given certain facts about the movement.

Can the Government Require Doctors to Provide Misleading Information to Patients Seeking Abortions? A Federal Appeals Court Says No, but Means Yes

Justia columnist and Cornell law professor Michael Dorf comments on a recent decision from the U.S. Court of Appeals for the Eighth Circuit. As Dorf explains, the decision upheld a provision of a South Dakota law mandating that women seeking an abortion be informed that, with the abortion procedure, comes “an increased risk of suicidal ideation and suicide.” Although the medical literature shows only a correlation, and not a causal relationship, between abortion and suicide, and although that correlation likely stems entirely from some of the underlying factors that lead women to seek abortions in the first place, the Eighth Circuit still upheld the law at issue. Although the Eighth Circuit’s decision was quite plainly the wrong one, Dorf notes, he also predicts that it’s very unlikely that the U.S. Supreme Court will take the case. He then explains why the Court is likely to decline review and why, if it does grant review, it might uphold the law, even though it ought to be struck down.

Why the Chick-fil-A Controversy Raises Tough Questions About Government Power to Regulate Business Based on Owners’ Political Spending

Justia columnist and Cornell law professor Michael Dorf confronts an interesting question arising from a controversy relating to the Chick-fil-A restaurant chain. The chain’s president has made anti-same-sex-marriage statements. Under the First Amendment, Dorf notes, no government—federal, state, or local—can punish him for those statements alone. But Dorf also notes that the speech of businesses and their representatives can sometimes be a legitimate concern of government. And he cites two central reasons: First, speech manifesting bias may hint at illegal conduct manifesting the same bias, thus arguably justifying special scrutiny for the speaker. And second, in many circumstances, private speech may also implicate the government itself—for instance, when there is a restaurant on a military base. Citing a mix of hypotheticals and real-life examples, Dorf illustrates the difficult constitutional issues that are at play here.

How a Recent Supreme Court Case About Labor Unions Foreshadowed the Obamacare Ruling

Justia columnist and Cornell law professor Michael Dorf comments on an interesting end-of-Term Supreme Court ruling, Knox v. Service Employees International Union, Local 1000. Although the Knox opinion was, like all the other end-of-Term opinions, overshadowed by the blockbuster Obamacare opinion that the Court handed down, Dorf points out that the Knox opinion—which was issued before the Obamacare opinion—if carefully read, had actually foreshadowed the result in the Obamacare opinion. In addition to further exploring the relationship between the Knox and Obamacare opinions, Dorf also reads the Knox opinion to potentially spell bad news for labor unions, in the future. Yet the nature of that bad news may be ironic, for Dorf notes that if the conservative Justices do strike a blow to labor unions, they will need to betray their own conservative principles in order to do so.

How Rulings of the Supreme Constitutional Court of Egypt Hold Lessons for Emerging Democracies, and for Our Own

Justia columnist and Cornell law professor Michael Dorf comments on what emerging democracies, and even America’s own long-established democracy, can learn from two recent rulings from the Supreme Constitutional Court of Egypt. As Dorf explains, the rulings, and the political context in which they arose, can teach us much about courts’ role in promoting democracy. He notes that the world has decisively opted for constitutional review, and the protection of individual rights, which are now a standard feature of established democracies around the globe. Dorf notes, however, that constitutional courts in emerging democracies not only must worry about the tyranny of the majority and the protection of individual rights, but must also be concerned that the government will fall prey to a military coup. In addition to commenting on Egypt’s situation, Dorf also cites Pakistan as another instructive example of the role of courts.

A Supreme Court Ruling on Jurisdiction Has Potential Implications for the Law Regarding Drone Strikes

Justia columnist and Cornell law professor Michael Dorf discusses the Supreme Court’s decision in Elgin v. Dep’t of Commerce, which was just recently handed down. Dorf argues that the opinion, though not one of Term’s blockbusters, is still quite significant. That is, in part, because the decision may have implications for the U.S.’s controversial practice of using drone strikes to kill persons deemed to be U.S. enemies—including even U.S. citizens who are abroad. Moreover, Dorf notes that Elgin may have implications for the question whether the Obama Administration has been on firm legal ground when it has declined to enforce the Defense of Marriage Act (DOMA). In addition to these more practical implications of Elgin, Dorf contends that the decision may also be significant as a matter of constitutional theory regarding the respective roles of each of the branches of government.

How the Debate Following the Massive JPMorgan Chase Trading Loss Reveals the Laissez-Faire Ideology of Contemporary American Conservatism

With the huge JPMorgan Chase trading loss receiving much coverage in the news lately, Justia columnist and Cornell law professor Michael Dorf argues that the loss is evidence that conservatives’ laissez-faire approach to the market is untenable. Dorf begins by explaining how the JPMorgan Chase loss occurred and why some think a regulation called the Volcker Rule would have preempted the loss, had it been in effect, while others disagree. (That rule, Dorf notes, forbids banks from using depositor funds for speculative priority trading—in other words, for making their own bets—but also has an important exception.) Dorf also opines that the result of this year’s presidential election may well affect the Volcker Rule, with a possible future President Obama welcoming the Rule, and a possible future President Romney junking it, as he has suggested he will do. Dorf also expresses concern about the possible results if Romney is elected and the Rule and related regulations do not go into effect.

What’s Really at Stake in the Controversy Over Elizabeth Warren’s Past Claims of Native American Ancestry

Justia columnist and Cornell law professor Michael Dorf comments on the controversy that is brewing regarding Elizabeth Warren, the likely nominee for the Massachusetts Senate seat most recently held by Ted Kennedy. The controversy stems from Warren’s mentions of her Native American roots, and it turns out that Warren is, in fact, 1/32d Native American (specifically, Cherokee), so that her claim of having Native American roots is technically true, even if those roots are minimal. So why is the controversy continuing? Dorf suggests that it is because Republicans are trying to somehow connect Warren’s roots to affirmative action issues, even though there seems to be no evidence that Warren was ever herself a beneficiary of affirmative action. The Republicans’ goal, Dorf suggests, is to use affirmative action as a wedge between minority voters and working-class white voters.

Recent Supreme Court Rulings May Show Hostility to Civil Rights, Even on the Part of Almost All of the Court’s Liberals

Justia columnist and Cornell law professor Michael Dorf comments on two recent Supreme Court decisions that, he argues, may together show that almost the entire Supreme Court is hostile to civil rights claims. The first decision, handed down last week, is Filarsky v. Delia. There, the Court unanimously held that a part-time government employee who is alleged to have committed a federal civil rights violation enjoys qualified immunity. In the second decision, Minneci v. Pollard, which drew only one dissent and was handed down earlier this year, the Court also ruled in favor of a civil rights defendant. Focusing on the juxtaposition of the two rulings, Dorf argues, reveals a Court that selectively invokes principles of judicial restraint in a way that disserves civil rights.

Severability May Hold the Key to Obamacare’s Future: How Much of the Law Will Survive the Supreme Court’s Review?

Justia columnist and Cornell law professor Michael Dorf comments on a less often discussed but highly significant issue regarding the Supreme Court’s upcoming decision on Obamacare: If a majority of the Court finds that the minimum coverage provision is unconstitutional, how much of the rest of the law should—and will—also be invalidated by the Court? As Dorf notes, the Court heard from three attorneys who addressed this question, on the third day of oral argument in the case. The plaintiffs in the case contended that none of Obamacare should survive, but Dorf contends to the contrary that, if the minimum coverage provision is struck down, most of Obamacare should still be left standing. Dorf explains the root of the presumption that various parts of a law are severable from each other, and critiques the plaintiffs’ argument that Obamacare should be struck down in its entirety—setting forth three important respects in which he argues that that argument was wrong. One key point Dorf makes is that the statute as issue would work better if the minimum coverage provision were to be left standing, but it would still work if that provision were to be struck down.

Three Key Exchanges in the Obamacare Oral Argument

Justia columnist and Cornell law professor Michael Dorf comments on three important exchanges among the Supreme Court’s Justices that occurred during the Obamacare oral argument. As Dorf explains, the first exchange tested whether the government could constitutionally require Americans to buy things other than healthcare, such as burial insurance, mobile phones, or American cars. The second exchange involved a hypothetical regarding the government’s power to institute mandatory inoculation. And finally, the third exchange involved the Constitution's limits on “direct taxes.” Having discussed these important exchanges among the Justices, Dorf also describes what he believes to be the basis for the government’s best hope of winning the case.

What We Can Learn About Equality and Religion From a Recent Israeli Supreme Court Decision on Military Service

Justia columnist and Cornell law professor Michael Dorf comments on a recent Israeli Supreme Court decision that held that a law exempting ultra-Orthodox Jews from military service unconstitutionally denies equality of treatment to other Israelis, who either must serve in the military, or—if they are conscientious objectors—must perform alternative service. Dorf notes that the Israeli decision is not only interesting in its own right, but also sheds light on two questions that U.S. courts must frequently face: How should courts evaluate laws that confer special benefits on certain minorities within society? And, when should people and institutions be exempted from legal requirements based on religious objections? In particular, Dorf points out that the Israeli decision has interesting comparative-law implications for American debates about affirmative action, and about the granting of religious exemptions to otherwise-applicable laws.

The Supreme Court Agrees to Hear an Affirmative Action Case Will the Justices Honestly Confront the Issues?

Justia columnist and Cornell law professor Michael Dorf comments on the Supreme Court’s recent decision to review a case involving race-based affirmative action in higher education.  As Dorf explains, the Court has not resolved an affirmative-action case since 2003, and thus this new case will be especially closely watched.  Dorf discusses the affirmative action precedents that the Court has already handed down, including the famous Bakke case, and the University of Michigan cases, Gratz and Grutter—the impact of which, Dorf explains, has been modest.  The new case that the Court will review, Dorf explains, involves the University of Texas's admissions system—which offers admission to all Texas students who rank in the top ten percent of their high school class, and also adds consideration of race as one of a number of factors in admissions decisions.  Dorf describes the issues the Texas case raises, and predicts that the Court's opinions—on both sides—will necessarily lack candor, as both liberals and conservatives pay lip service to an ideal of colorblindness, but do not actually hew to that ideal.

How to Limit the Damage Caused by the Citizens United Decision

Justia columnist and Cornell law professor Michael Dorf comments on ways in which election funding can still be made more fair and just—even after the Supreme Court’s highly controversial Citizens United decision. (In Citizens United, as readers may recall, the Court invalidated a provision of McCain-Feingold that forbade the use of general corporate-treasury funds or union funds for financing political advertisements during the sixty days prior to a primary or general election.) Dorf covers the impact of Citizens United; the impact of another recent campaign-finance Supreme Court decision that preceded it; the calls that some have made for a constitutional amendment allowing campaign-finance reform; and options that Congress still retains, even after Citizens United, to reform the campaign finance process—such as simply requiring that media companies provide campaigns with copious free advertising space and time.

Some Legal and Policy Ramifications of Newt Gingrich’s Plan to Colonize the Moon

Justia columnist and Cornell law professor Michael Dorf comments on remarks that Republican presidential hopeful Newt Gingrich made last week, promising that if he were to be elected president, then by the end of his second term, he will have established a colony on the Moon. Could that really happen? And if it did, would it be a good idea? Dorf considers present technological limits, and legal obstacles stemming from U.S. treaty commitments. While highly skeptical of the Gingrich proposal, Dorf does find a kernel of sense in it: Gingrich, Dorf notes, may well be right that the colonization of space could be the key to the long-term survival of human civilization.

The Constitutional Politics of Recess Appointments

Justia columnist and Cornell law professor Michael Dorf comments on the constitutional law regarding recess appointments—that is, appointments made by the president when Congress is not in session. The topic is timely due to the current controversy over President Obama's recent grant of two recess appointments—for the positions of the head of the Consumer Financial Protection Bureau (CFPB), and the head of the National Labor Relations Board (NLRB). The President and Senate Republicans differ sharply as to whether Congress was, in fact, in recess when the appointments were made—and thus, as to whether the two appointments were valid. Dorf contends that each side makes a plausible case for its own position on this issue, and argues, more generally, that recess-appointment controversies cannot truly be understood without attention to the substantive merits of the appointment that is at issue in a given case.

Newt Gingrich Is Right That Judicial Supremacy Has Been Challenged Before, but Wrong to Try to Turn Back the Clock

Justia columnist and Cornell law professor Michael C. Dorf takes strong issue with presidential candidate Newt Gingrich’s comments regarding judicial supremacy. In particular, Dorf explains, Gingrich has suggested that federal judges could be summoned—even by force—to explain their decisions before Congress, and that Supreme Court Justices and lower federal court judges with whose opinions Gingrich disagrees ought to be impeached. Dorf explains that, as Gingrich states, there have indeed been times in American history when judicial supremacy—which holds that all other government actors must act as if bound by the rulings of the Supreme Court—has been controversial. However, Dorf contends, Gingrich—in suggesting that we revert to those times—fails to appreciate how and why the courts’ role has evolved over the course of American history up to the present, and, worse, puts forth a dangerous proposition.