Analysis and Commentary on Courts and Procedure
We Need a People’s (Not Presidential) Commission on the Supreme Court

Amherst professor Austin Sarat argues that a People’s Commission—rather than a Presidential Commission—on the U.S. Supreme Court is the only way to ensure that a democratic dialogue that truly represents the interests of the American people. In support of this argument, Professor Sarat draws upon a recent Gallup poll about public confidence in the Court and the highly critical testimony of Yale Law’s Samuel Moyn and Harvard Law’s Nikolas Bowie.

Can/Should A Federal Court Order the Creation of a Bipartisan Districting Commission in Illinois? Evaluating the Claims for Remedy in McConchie, the Republican Challenge to Illinois’s Recently Adopted Redistricting Plan

In this second of a series of columns commenting on Republican efforts to challenge the apportionment of Illinois state legislative districts that the General Assembly and the Governor recently enacted, Illinois Law dean Vikram David Amar and professor Jason Mazzone argue that a federal court may not be able to grant the relief the plaintiffs are seeking. Dean Amar and Professor Mazzone point out that the Illinois Supreme Court is the proper arbiter of the key legal question whether a commission is required under state law.

Evaluating the Republican Federal Court Challenge to Illinois’s Recently Adopted Redistricting Plan

In this first of a series of columns, Illinois Law dean Vikram David Amar and professor Jason Mazzone describe a lawsuit in which Republicans are challenging Illinois’s recently adopted redistricting plan. Dean Amar and Professor Mazzone identify several obstacles the lawsuit may face, which, in their estimation, make it unlikely to succeed.

Justice Kagan’s Unusual and Dubious Approach to “Reliance” Interests Relating to Stare Decisis

Illinois Law dean and professor Vikram David Amar critiques Supreme Court Justice Elena Kagan’s recent use of stare decisis doctrine and reliance interest in her dissenting opinion last term in Ramos v. Louisiana, and again this term in Edwards v. Vannoy. Dean Amar describes the reliance interest theory and explains why Justice Kagan’s reasoning is unusual and dubious.

Are Rideshare Drivers Like Uber’s and Lyft’s Subject to the Federal Arbitration Act?

NYU Law professor Samuel Estreicher and appellate lawyers Rex Heinke and Jessica Weisel describe the uncertainty surrounding whether Uber and Lyft drivers are subject to the Federal Arbitration Act. The authors note the split of authority across the nation and note that, depending on the outcome of litigation in the Second, Third, and Eleventh Circuits, the question may soon come before the U.S. Supreme Court to resolve.

Lethal Injection’s Dreadful Failures: How States Are Trying to Normalize Accidents

Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—describes ways in which states are attempting to normalize errors that occur during the process of lethal injection. Professor Sarat argues that lethal injection is demonstrably far from the painless form of death it once promised to be, and that it should be abolished in the United States.

Why the Supreme Court was Right Last Week to Deny Review of the Pennsylvania Supreme Court Decisions Handed Down Prior to the 2020 Election

Illinois Law dean Vikram David Amar and professor Jason Mazzone argue that the U.S. Supreme Court correctly denied review last week of the Pennsylvania Supreme Court decisions handed down before the 2020 election. Dean Amar and Professor Mazzone explain why the majority denied review and point out that the dissenting opinions unwittingly demonstrate the rightness of the majority.

Why the Biden Administration Was Right Earlier This Week to Change Course in the Obamacare Challenge Pending Before the Court

Illinois Law Dean Vikram David Amar comments on an unusual move by the U.S. Solicitor General’s office, sending a letter to the U.S. Supreme Court amending the position of the federal government in a case currently pending before the Court challenging the Affordable Care Act. Dean Amar explains why the arrival of a new administration should generally not trigger such position reversals, but he argues that the unusual circumstances—specifically the “exceptional implausibility” of the government’s prior filings—may justify the government’s action in this instance.

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.

Tenth Circuit Holds That Contract Formation Issues Are for the Court, Not the Arbitrator, Notwithstanding an Express Delegation Clause

NYU law professor Samuel Estreicher discusses a recent decision by the Tenth Circuit in Fedor v. United Healthcare, in which the court clarified that a court must first find agreement to arbitrate before the severability doctrine comes into play. Professor Estreicher explains the severability doctrine, describes the facts giving rise to the case, and the Tenth Circuit’s reasoning behind its conclusion.

Trump’s Manipulation of the Courts

Steven D. Schwinn, a professor of law at the University of Illinois Chicago John Marshall Law School, explains how the Supreme Court’s recent decision allowing the Trump administration to proceed with efforts to exclude undocumented aliens from the census is consistent with the administration’s manipulation of the courts to achieve illegal policy. Professor Schwinn describes why that the Court’s ruling in the census case is an appropriate bookend to the travel ban ruling he received early in his presidency.

Odysseus, Avocados, and Election Litigation Timing

Cornell law professor Michael C. Dorf explains the legal concepts of ripeness and laches, which pertain to the timing of filing a lawsuit, and argues that in the context of election lawsuits, it is far better for courts to relax ripeness rules and risk unnecessary adjudications than to discard the doctrine of laches and risk widespread disenfranchisement and the undermining of confidence in fair elections.

In (Trial) Courts (Especially) We Trust

Illinois law dean Vikram David Amar and professor Jason Mazzone describe the increasing importance of courts and lawyers in safeguarding and reinforcing the role of factual truths in our democracy. Dean Amar and Professor Mazzone point out that lawyers and judges are steeped in factual investigation and factual determination, and they call upon legal educators (like themselves) to continue instilling in students the commitment to analytical reasoning based in factual evidence, and to absolutely reject the notion that factual truth is just in the mind of the beholder.

The Mask Slips: Standing, the Affordable Care Act, and Hypocrisy in High Places

Cornell law professor Sherry F. Colb considers one aspect of the oral argument in California v. Texas, the latest challenge to the Affordable Care Act to come before the U.S. Supreme Court. Specifically, Colb considers the way in which some of the Justices talked during the oral argument about the doctrine of judicial standing, and she calls out those Justices’ hypocrisy as to that issue.

What Is a Seizure, and What Is a Holding? The Court Hears Argument in Torres v. Madrid

Cornell law professor Sherry F. Colb comments on two particular aspects of a case in which the U.S. Supreme Court heard oral argument last month, Torres v. Madrid. First, Colb discusses the distinction, for Fourth Amendment purposes, between touching someone directly with one’s hands and touching someone indirectly using an inanimate object. Second, she explains the difference between holding and dicta in a court opinion. Using these two points as illustrations, Colb shows how flexible the Constitution can be, lending itself to very different interpretations.

Seventh Circuit Rejects Court-Based Discovery in Aid of International Arbitration

NYU law professor Samuel Estreicher comments on a recent decision by the U.S. Court of Appeals for the Seventh Circuit in which the court bucked a recent trend in lower courts by holding that that parties to private international arbitrations can obtain court-based discovery. Estreicher explains the facts of that case and notes that the court’s decision reinforces a circuit split that might end up before the U.S. Supreme Court.

The Supreme Court Limbers Up to Aid and Abet Trump’s Coup

UF Levin College of Law professor and economist Neil H. Buchanan describes how the U.S. Supreme Court is readying itself to declare Trump the winner of the election. Professor Buchanan points out that no court acting in good faith would apply the text of the Constitution or existing Supreme Court precedents in a way that would allow any of this scheme to see the light of day, but based on what Justice Kavanaugh has written and what Justice Gorsuch strongly suggests, the Court might not even have that minimum amount of good faith.

If the Challengers Prevail on the Merits of the ACA California v. Texas Case, What is the Appropriate Remedy and What Effect Should the Ruling Have on the Entirety of the ACA? Part Four in a Series

In this fourth of a series of columns examining the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider what the appropriate remedy should be if the challengers prevail on the merits of the case. The authors explain why enjoining the 2017 amendment, which zeroed out the potential tax penalty for failure to maintain the specified health insurance coverage, is a more appropriate remedy than striking down the entire ACA.

The U.S. Supreme Court Cannot Determine the Election Result

Amherst College Associate Provost Austin Sarat and attorney Daniel B. Edelman argue that there is nothing the Supreme Court can do to prevent governors from certifying slates of electors that actually reflect the vote of the people in their states. Sarat and Edelman explain why Bush v Gore is both inapplicable, and by its own terms, never supposed to be used as precedent.

Options for Biden’s Supreme Court Reform Commission

Cornell law professor Michael C. Dorf explores several options that Democratic presidential candidate Joe Biden should consider if he wins the election and fulfills his proposal of convening a bipartisan commission of constitutional scholars to study and recommend court reforms. Dorf discusses the benefits and limitations of each option and describes how Congress and a President Biden could implement meaningful court reform that could withstand review by the Supreme Court itself.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at both Osgoode Hall... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more