Frederick Baron, former associate deputy attorney general and director of the Executive Office for National Security in the Department of Justice, Dennis Aftergut, a former federal prosecutor, and Austin Sarat, Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College, call upon the House Judiciary Committee to carefully read the ethics complaint by 27 distinguished DC lawyers against William Barr before questioning him today, July 28, 2020.
In light of the federal government’s resumption of executions, Cornell law professor Sherry F. Colb describes some of the common arguments of proponents and opponents of capital punishment. Colb observes that many of the moral arguments are based on a consequentialist perspective and suggests that a deontological perspective might lead to novel arguments and considerations about the death penalty.
Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, describes how to tell whether a government is plotting to overthrow itself—a phenomenon he calles a “Selfie Coup.” Falvy explains the difference between a Selfie Coup and creeping authoritarianism by providing examples of both and argues that the more aware civil society is of the possibility of a Selfie Coup, the more likely it can prepare its defenses in time to prevent it.
Cornell law professor Michael C. Dorf comments on the recent decision by the U.S. Supreme Court in McGirt v. Oklahoma, holding that a substantial portion of the state of Oklahoma is an Indian reservation of the Creek Nation. Dorf observes that the majority’s approach in McGirt makes it more likely that courts will find the existence of reservations for other tribes, but there could be collateral consequences in many other contexts.
Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on President Trump’s commutation of the sentence of Roger Stone. Sarat observes the pattern of Trump using his exclusive power of clemency to help those who, like Stone, committed crimes that show disdain for the legal process, and he argues that Trump seems “incapable of grasping the meaning of mercy or of understanding its place in a decent society.”
In this second of a two-part series of columns about the U.S. Supreme Court’s recent decision in the “faithless elector cases, Illinois Law dean and professor Vikram David Amar describes some good news that we may glean from those cases. Specifically, Amar points out that states have many ways of reducing elector faithlessness, and he lists three ways in which the Court’s decision paves the way for advances in the National Popular Vote (NPV) Interstate Compact movement.
SMU Dedman School of Law professor Joanna L. Grossman comments on the U.S. Supreme Court’s recent decision upholding the Trump administration’s religious and moral exemptions to the contraceptive mandate of the Affordable Care Act (ACA). Grossman provides a brief history of the conflict over the growing politicization of contraception in the United States and argues that the exemptions at issue in this case should never have been promulgated in the first place because they have no support in science or public policy.
UNLV Boyd School of Law professor Leslie C. Griffin describes the ministerial exception—a First Amendment rule created by courts that bars the application of anti-discrimination laws to religious organizations’ employment relationships with its “ministers”—and enumerates some of the cases in which the exception led to dismissal of a lawsuit. Griffin argues that we as a society cannot achieve full justice as long as courts interpret religious freedom to include a ministerial exception that condones racial discrimination lawsuits.
Cornell law professor Sherry F. Colb describes how the U.S. Supreme Court purported to allow the state of Kansas to substitute one insanity defense for another, but in fact approved its abolishment of the insanity defense altogether. Colb explains the difference between the insanity defense—an affirmative defense to the commission of a crime—and facts that negate mens rea—the mental element of a crime. Colb also notes how in dissent, Justice Stephen Breyer made a case for veganism, albeit probably inadvertently.
In this first of a two-part series of columns about the U.S. Supreme Court’s recent decision in the “faithless elector” cases, Illinois law dean and professor Vikram David Amar expresses disappointment that the majority opinion—authored by Justice Elena Kagan—and concurring opinion—by Justice Clarence Thomas—are not as well reasoned or careful as they could be. Amar points out some of the ways in which the opinions fall short, noting some of the arguments that merited more discussion, or at least more thorough consideration.
Cornell law professor Joseph Margulies comments on the recent incident in which Amy Cooper, a young white woman, called the police on Christian Cooper, an African American man who was birdwatching in Central Park. Margulies argues that the repercussions of Ms. Cooper’s actions—her suffering public ridicule and losing the valuable commodity of anonymity—achieve both the consequentialist and retributivist purposes of our penal system, so for the state to prosecute her as well would serve only to humiliate and demonize her
University of Pennsylvania professor Marci A. Hamilton draws upon a strategy used by anti-abortion advocates in suggesting a way to encourage (or coerce) more people into wearing masks to avoid the spread of COVID-19. Hamilton proposes requiring persons who opt not to wear a mask in public (1) to watch, on a large screen, an adult's beating heart for 30 seconds, and (2) to be read a statement about how their decision unreasonably endangers others.
UNLV Boyd School of Law professor Leslie C. Griffin comments on three recent decisions by the U.S. Supreme Court in which religion has won, at the expense of women. Griffin explains why the Court’s decisions in Our Lady of Guadalupe School v. Morrissey-Berru (and the consolidated case, St. James School v. Biel), Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (and the consolidated case, Trump v. Pennsylvania), and Espinoza v. Montana Department of Revenue together amount to sanctioned and government-funded discrimination masquerading as religious freedom.
Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on President Trump’s Fourth of July speeches, in which the President described a nation at war with itself and its legacy. Sarat points out the irony of Trump accusing others of lying about or attempting to erase the past, and he notes that Trump’s own distortion of historical facts is a tactic that authoritarian, fascist, and totalitarian regimes have used in the past to legitimize the regime or erase inconvenient truths.
Cornell law professor Michael C. Dorf comments on a recent Executive Order issued by President Trump calling for the creation of a “National Garden of American Heroes.” Dorf argues that we should recognize the Executive Order for the distraction that it mostly is and points out some of the Order’s fallacies, ambiguities, and inconsistencies.
Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on a religious liberty issue presented by the upcoming execution of Wesley Ira Purkey. Sarat explains that Purkey’s spiritual advisor is unable to attend Purkey’s execution due to the COVID-19 pandemic, and he points out that for the federal government to carry out the execution anyway would belie its purported commitment to religious liberty.
NYU law professor Samuel Estreicher and rising 2L Christopher Ioannou discuss how New York workers’ compensation law might apply to workers infected with COVID-19. Estreicher and Ioannou argue that despite some shortcomings of the workers’ compensation system, we should not take for granted its ability to allow workers to quickly receive medical attention and some amount of lost wages.
Illinois law dean and professor Vikram David Amar offers three observations on a measure recently approved by the California legislature that would, if approved by the voters, repeal Proposition 209, the voter initiative that has prohibited affirmative action by the state and its subdivisions since its passage in 1996. Amar praises the California legislature for seeking to repeal Prop 209 and for seeking to do so using the proper procedures, and he suggests that if Prop 209 is repealed, legal rationales for the use of race should be based not only on the value of diversity (as they have been for some time now), but also on the need to remedy past wrongs against Black Americans.
Cornell law professor Sherry F. Colb considers the policy question of whether, since the Constitution requires jury unanimity to convict a defendant of a serious crime, states should require a unanimous verdict to acquit a defendant, as well. Colb describes the reasons behind jury unanimity convictions and assesses whether they apply similarly to acquittals.