Cornell Law professor Michael C. Dorf explains how Congress can (and argues that it should) protect affirmative action in private colleges and universities in light of the supermajority of the Supreme Court that seems hostile to affirmative action. Professor Dorf points out that even if his suggestion seems far-fetched in the current political climate, urgent calls for action now can effectively arm advocates to effect change when they are better positioned to do so in the future.
Amherst professor Austin Sarat comments on Alabama’s recent aborted execution of Alan Miller. Professor Sarat describes how the U.S. Supreme Court allowed Miller’s execution to go forward despite a serious dispute about whether Miller submitted a form electing an execution method other than lethal injection.
Barry Winograd proposes a four-step plan to restore the legitimacy of the U.S. Supreme Court, which is currently facing a serious public relations problem. Mr. Winograd calls upon the Court itself to act—rather than waiting for the Executive or the Legislative branch—by: (1) providing live and orderly audio transmission of oral arguments, (2) adopting an enforceable code of ethics binding on all Justices, (3) establishing consistent standards limiting use of the Court’s “shadow docket,” and (4) establishing term limits for the Justices.
Amherst professor Austin Sarat comments on the ongoing sentencing trial of Nikolas Cruz, who in 2018 murdered fourteen students and three staff members at Marjory Stoneman Douglas High School in Parkland, Florida. Professor Sarat explains the difficulty and complexity of having to decide what punishment an offender deserves—let alone someone guilty of perpetrating such an atrocity—particularly when it is a question of capital punishment or life in prison without the possibility of parole.
Amherst professor Austin Sarat comments on Senator Lindsay Graham’s proposed national 15-week abortion ban. Professor Sarat points out that the proposed bill contradicts his—and other anti-abortion Republicans, including Supreme Court Justices who voted to overturn Roe v. Wade—claim that the question of abortion should be decided by each state legislature.
Illinois Law dean Vikram David Amar and professor Jason Mazzone consider some possible explanations for the ever-decreasing number of applicants for tenured/tenure-track faculty among law schools. Dean Amar and Professor Mazzone propose five possible reasons but point out that whatever the true reason(s), the apparent decline in the demand among talented new legal minds for law-teaching jobs should be a topic of discussion and concern.
Cornell Law professor Michael C. Dorf comments on a recent decision by a federal district judge in Texas holding that a for-profit corporation was entitled to an exception from the legal obligation to provide employees with health insurance covering pre-exposure prophylaxis (PrEP), which protections against infection with HIV/AIDS. Professor Dorf explains the absurdity of the court’s conclusion, which is based on an extension of the Supreme Court’s dubious logic in Burwell v. Hobby Lobby.
Illinois Law dean Vikram David Amar and professor Jason Mazzone respond to several points about originalism made by Berkeley Law Dean Erwin Chemerinsky in a recent article published in The Atlantic. Dean Amar and Professor Mazzone explain why three claims in particular—that originalism is an “obscure legal theory” only a few decades old, that judicial review in the federal courts is anti-originalist, and that accurately determining original meaning is “impossible.”
Amherst professor Austin Sarat comments on a recent report by the advocacy group, the Legal Defense Fund, noting that the total number of people on death row is 3.6% lower than it was a year ago, and 35% lower than it was in 2001 when the death row population was at its peak. However, Professor Sarat highlights the inhumanity of allowing even this reduced number of people—indeed, anyone—to languish for years or decades on death row.
Amherst professor Austin Sarat praises President Biden’s speech last Thursday as a much-needed reminder that Americans should settle their differences through voting not violence. Professor Sarat points out that today’s threat of political violence comes overwhelmingly from the political right, not the left, and from people who are not “lone wolves” but part of a broader community that echoes their violent ideas.
In light of the advent of a new academic year, Illinois Law dean Vikram David Amar offers twelve pieces of advice for incoming law students.
SMU Dedman School of Law professor Joanna L. Grossman describes the current status of abortion rights and access in Texas in light of the “Roe trigger ban” taking effect today, August 25, 2022. Professor Grossman explains the history of abortion in Texas and highlights the inhumanity of a law that prefers to let a pregnant woman die when a safe medical procedure would have saved her life, rather than permit her to terminate a pregnancy, even a non-viable one, unless she is on the brink of death or substantial bodily impairment.
Amherst professor Austin Sarat comments on Alabama’s recent botched execution of Joe Nathan James, which may have been the longest execution in American history. Professor Sarat argues that the cover-up, double-talk, and trial-and-error approach that mark lethal injection’s recent history mean that problems of the kind that occurred in the James execution will keep happening unless we stop using lethal injection altogether.
Cornell Law professor Joseph Margulies comments on two seemingly unrelated concerns expressed by readers: the policy of a local sheriff in Florida to publish mugshots of juveniles who have been charged with a felony, and the oppressively hot conditions of prison cells in Texas. Professor Margulies explains that both of these problems are products of an unforgiving society that insists on differentiating people into “us” versus “them.”
Amherst professor Austin Sarat comments on Donald Trump’s recently repeated calls to apply the death penalty to drug dealers. Professor Sarat points out that in 2020, only 30 people were executed worldwide for drug offenses (down from 116 in 2019), and they all occurred in China, Iran, and Saudi Arabia—hardly the kind of examples that any nation committed to respecting human rights should want to emulate.
Cornell Law professor Michael C. Dorf comments on a case currently before the U.S. Supreme Court involving a challenge by the pork industry to a California law—Proposition 12—that was adopted by referendum in 2018. Professor Dorf explains why Supreme Court should uphold Prop 12 against the plaintiffs’ “dormant” Commerce Clause claims, and he considers the implications of that holding on state power to ban abortion pills from other states.
Amherst professor Austin Sarat comments on a recent case in which the Oregon Court of Appeals held that Governor Kate Brown had the legal authority to grant mass clemency to more than 1,000 people convicted of crimes in her state. Professor Sarat points out that the decision joins a long line of others affirming the authority of governors and the President of the United States to grant clemency for “good reason, bad reason or no reason at all.”
Illinois Law dean Vikram David Amar and professor Jason Mazzone respond to a recent column by New York Times columnist David Leonhardt, arguing that neither of the recent high-profile developments after the Dobbs v. Jackson Women’s Health Organization decision is an example of “defying” the Court or “checking” judicial power. Dean Amar and Professor Mazzone point out that while neither the abortion vote in Kansas nor the pending federal marriage-equality proposal may fairly be characterized as “defying” or “checking,” some political reactions to Supreme Court rulings in the past arguably have involved defiance or disobedience of the Court.
Cornell Law professor Sherry F. Colb comments on U.S. Supreme Court Justice Samuel Alito’s July 28 keynote address at the Notre Dame Religious Liberty Summit in Rome, Italy. Professor Colb explains why Alito’s characterization of the Holocaust as a denial of religious liberty is untrue and misleading, and she points out that he uses his position of power to impose a specific brand of Christianity on unwilling people.
Cornell Law professor Joseph Margulies continues his discussion of why anger can benefit democracy, but he rebuts claims that only anti-democratic solutions can remedy the harms that are supposedly being inflicted on our society. Specifically, Professor Margulies points out as evidence of effective democratic processes the imminent passage of the Inflation Reduction Act of 2022 and the rejection by Kansas voters of a state constitutional amendment that could allow the legislature to restrict or prohibit abortions in that state.