Michigan Law dean emeritus Evan Caminker discusses a decision by the U.S. Court of Appeals for the Sixth Circuit, in which that court held that the Fourteenth Amendment’s Due Process Clause secures schoolchildren a fundamental right to a “basic minimum education” that “can plausibly impart literacy.” Caminker—one of the co-counsel for the plaintiffs in that case—explains why the decision is so remarkable and why the supposed dichotomy between positive and negative rights is not as stark as canonically claimed.
Austin Sarat—Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on yesterday’s decision by the U.S. Supreme Court deferring deciding on a Second Amendment issue presented by a New York City law that prohibited gun owners from transporting their guns out of the city. Sarat points out that the issue that divided the Court’s conservative justices in this case was not whether to radically expand the protections of the Second Amendment, but when and how to do so.
In light of the U.S. Supreme Court’s decision Monday in Ramos v. Louisiana, in which it held that the federal Constitution forbids states from convicting defendants except by a unanimous jury, Cornell law professor Michael C. Dorf discusses the Court’s jurisprudence on retroactivity. Dorf highlights some costs and benefits of retroactivity and argues that the Court’s refusal to issue advisory opinions limits its ability to resolve retroactivity questions in a way that responds to all the relevant considerations.
Cornell Law professor Sherry F. Colb comments on recent sexual assault allegations against presumptive Democratic nominee Joe Biden. Colb argues that if the only choices for President are Donald Trump and Joe Biden, the sexual assault allegation against the latter will take second fiddle to the need to defeat the former and defends this perspective as not manifesting hypocrisy or indifference to sexual assault or other intimate violence.
UF Levin College of Law professor and economist Neil H. Buchanan explains why we should not be concerned about increasing the federal government’s debt, despite what some journalists are suggesting. Buchanan points out that sometimes—such as during a pandemic or other crisis—the federal government should borrow more to prevent a downward economic spiral.
Cornell law professor Joseph Margulies observes that the COVID-19 pandemic reveals our shared equality as individuals but also lays bare the inequality of American society. Margulies argues that equality is an outcome achieved by one in aid to another, and by government in aid to all in need.
Illinois Law dean Vikram David Amar and professor Jason Mazzone comment on the U.S. Supreme Court’s recent per curiam decision staying an injunction by a federal district court in Wisconsin, effectively allowing the election in that state to go forward on with the normal timeline for casting ballots in place, despite concerns over the effects of COVID-19. Amar and Mazzone argue that, while the outcome might have been unjust, the plaintiffs in that case likely did not allege a constitutional violation and thus did not properly allege claims suitable to be remedied in federal court.
NYU law professors Samuel Estreicher and Jonathan F. Harris describe how the COVID-19 pandemic is forcing the United States to confront the problem of unchecked globalization. Estreicher and Harris argue that once the pandemic subsides, U.S. policymakers should, as a matter of national security, mandate that a minimum percentage of essential supplies be manufactured domestically.
SMU Dedman School of Law professor Joanna L. Grossman and Florida State University law professor Mary Ziegler discuss the abortion bans implemented in several states in response to the COVID-19 pandemic. Grossman and Ziegler explain why the bans are unconstitutional and comment on the connection between the legal challenges to those bans and the broader fight over abortion rights.
UNLV Boyd School of Law professor Leslie C. Griffin points out ways in which religions harm people—manifested today as an insistence on exemptions to social COVID-19 distancing orders. Griffin argues that telling the truth about religion should not be viewed as a form of discrimination and endorses Katherine Stewart’s recent book, The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism, which provides a detailed explanation of how the Religious Right has used its power to advance religion-based government in harmful ways.
Austin Sarat—Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on Harvard Law Professor Adrian Vermeule’s essay “Beyond Originalism,” which Sarat argues brings conservative authoritarianism out of the shadows. Sarat describes Vermeule as a modern-day Machiavelli, offering advice to the governing class and laying out a theory of governance Vermeule calls “common-good constitutionalism” but which in reality elevates the “common good” above individual goods in a manner antithetical to freedom, pluralism, and democracy.
Cornell law professor Michael C. Dorf comments on the recent per curiam opinion by the U.S. Supreme Court effectively requiring that in-person voting in the Wisconsin primary election go as scheduled and without deadline extension for mail-in ballots, despite the ongoing COVID-19 pandemic. Dorf argues that the decision is the result of partisan politics and petty sticklerism in the Court and will unnecessarily endanger the lives of voting citizens.
University of Pennsylvania professor Marci A. Hamilton writes an open letter to President Donald Trump asking that he not reopen the country until everyone has appropriate personal protective equipment (PPE). Hamilton argues that the President should exercise his power under the Defense Production Act to repurpose U.S. factories to make masks and gloves until everyone who needs them has them.
Illinois Law dean and professor Vikram David Amar comments on language in a recent U.S. Supreme Court decision, Allen v. Cooperdiscussing constitutional stare decisis in the context of state sovereign immunity. Amar points out some of the problems with the Court’s jurisprudence on state sovereign immunity and Congress’s Section 5 power, and he questions the Allen majority’s embrace of a “special justification” requirement for constitutional stare decisis.
Kathryn Robb, executive director of CHILD USAdvocacy, describes how the COVID-19 pandemic uniquely endangers children who are being sexually abused by people close to them. Robb describes ways in which teachers, coaches, and other adult figures in children’s lives must do to ensure the safety of children in this time when schools and other safe spaces are shut down.
Cornell law professor Sherry F. Colb comments on the insanity defense, considering when and why juries (and others) might perceive a criminal defendant to be not guilty by reason of insanity. Colb proposes that if a criminal defendant’s mental illness looks like an outside force that made him behave in an out-of-character fashion, then the jury is more likely to find him not guilty by reason of insanity.
Marci A. Hamilton, a professor at the University of Pennsylvania, argues that governors and lawmakers should not be granting religious exemptions to stay-at-home orders imposed due to COVID-19. Hamilton points out that there are two prerequisites for legitimate religious exemptions, and the exemptions granted in twelve states have met neither.
Cornell law professor Joseph Margulies calls upon President Trump to condemn the rise of anti-Asian calumny and violence and contrasts Trump’s actions today with those of President George W. Bush after the September 11 attacks. Margulies points out that immediately after 9/11, President Bush defined national identity in the language of equality and tolerance, stressing that Muslims and Arab-Americans were not the enemy.
Marci A. Hamilton, a professor at the University of Pennsylvania, criticizes the Trump administration’s failure to adequately handle the national coordination of efforts to get the COVID-19 crisis under control. Hamilton points out that the Framers of the Constitution anticipated that the country would face emergencies and intentionally consolidated power in a single President to make decisions to unify and protect the nation.
Cornell law professor Joseph Margulies observes how the COVID-19 pandemic is exposing the cruel folly of neoliberal governance. Margulies points out that neoliberalism—the idea that social problems are better solved by the private sector than by government—has brought millions of Americans to the edge of financial and physical ruin, and COVID-19 will push them over. He argues that now more than ever, we must be communitarians rather than individualists.