UF Levin College of Law professor and economist Neil H. Buchanan, Cornell Law professor Michael C. Dorf, and Harvard Law professor emeritus Laurence H. Tribe explain why President Trump’s plan to win the election through a forced decision by the U.S. House of Representatives relies on an incorrect reading of the plain text of the Twelfth Amendment of the Constitution. The authors argue, even in a best-case scenario for Trump, in which the electoral votes of Pennsylvania are thrown out, Biden would still win with a majority of the resulting electoral votes and the House would simply not have the legal authority to vote on an election that had already been decided.
Cornell law professor Michael C. Dorf comments on last night’s presidential debate between President Trump and former Vice President Biden. Dorf observes that Trump’s repeated violations of the agreed-upon rules of the debate; his outrageous substantive comments refusing to condemn white supremacy (and instead naming a specific white supremacist group) and declining to say he would accept the outcome of the election; and his callous response to Biden’s mention of Biden’s deceased son Beau should alert any yet unaware Americans to the fact that Trump has no sense of decency.
Marci A. Hamilton—a professor at the University of Pennsylvania and one of the country’s leading church-state scholars—warns of a Supreme Court with at least six Catholics, far greater representation than in the general population of the country. Hamilton points out that the disconnect between the composition of the Supreme Court and the rest of the United States is partly a result of the courts being the final haven for those who have lost the culture wars, given that the majority of Americans endorse greater civil rights for the oppressed.
Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—describes how President Trump has laid the groundwork for a post-election coup d'ètat. Sarat points to Republicans’ intimidating voters from minority groups and others likely to vote Democratic, Trump’s shaping the federal judiciary with approximately 200 new judges, his pre-election statements, and the litigation already in progress as evidence of his plan to carry out a post-election coup by and through, not against, the law.
In honor of the late Justice Ruth Bader Ginsburg, SMU Dedman School of Law professor Joanna L. Grossman explains how the Pregnant Workers Fairness Act (PWFA) can promote women’s equal citizenship and protect Justice Ginsburg’s legacy of shaping gender equality. Grossman argues that the PWFA could help break down entrenched occupational segregation in the American economy, and, in so doing, honor Justice Ginsburg’s lifelong commitment to ensuring that women can be full members of society.
In recognition of the 50-year anniversary of the publication of Charles Reich’s “The Greening of America,” Touro law professor Rodger D. Citron explains what Reich actually said in “The Greening,” explains why it generated such a strong response, and reflects on what the piece has to say about the fractures of our current moment. Citron cautions that the promise of a new consciousness is as alluring—and may be as illusory—as it was when Reich wrote the article and book, 50 years ago.
Illinois law dean and professor Vikram David Amar reflects on three writings by the late Justice Ruth Bader Ginsburg that he finds himself most drawn to. Amar describes these writings as addressing ideas central to our form of democratic government, namely popular sovereignty, equal voting access, and judicial deference to Congress on policies involving the entire nation.
UF Levin College of Law professor and economist Neil H. Buchanan examines the flaws in the theory that Republicans’ support for Trump is about judges and tax cuts. Rather, Buchanan argues, they support his bigotry and his efforts to dismantle our democracy.
Cornell law professor Sherry F. Colb comments on a case the U.S. Supreme Court will consider this term that presents the question whether the Eighth Amendment ban on cruel and unusual punishment prohibits sentencing a juvenile offender to life without the possibility of parole. Colb considers the wisdom and constitutionality of imposing such a sentence on a person who was under 18 at the time of his crime.
In honor of the late Justice Ruth Bader Ginsburg, University of Pennsylvania professor Marci A. Hamilton and former clerk to Justice Sandra Day O’Connor, reflects on our country’s first two female Supreme Court Justices and their similarities and differences. Hamilton points out that a majority of Americans support a woman’s right to choose abortion in at least some circumstances and the right to contraception and warns the President and the Senate to think long and hard before they replace Ginsburg on the fly with a someone who is a threat to abortion and contraception.
Cornell law professor Joseph Margulies explains why the passing of Supreme Court Justice Ruth Bader Ginsburg last week should invigorate the left into seeking lasting change through the legislative and executive branches of government. Margulies points out that the myth of the Court as the ultimate defender of underrepresented minorities and the poor is, for much of the Court’s history, just a myth. He calls upon people everywhere to vote and make their will known, and he predicts that the Court will not stray far from the popular will.
Illinois law dean and professor Vikram David Amar comments on some of the questions commentators and analysts are, or will soon be, asking—specifically why we have bar exams for legal licensure, and, assuming we retain them, what they should look like going forward. Amar observes the limitations of the so-called diploma privilege advocated by some and suggests that states adopt greater interstate uniformity in their bar exams, shift toward more performance (as opposed to memorization) exams, and move away from being so time pressured.
Cornell law professor Michael C. Dorf comments on a recent decision by the Eleventh Circuit sitting en banc, in which the court upheld Florida’s Section 0751, by which the Republican-controlled state legislature gutted a voter referendum that would have restored the right to vote to ex-felons in the state who had served their time. Dorf points out that the court’s vote was split based on the party of the President who appointed them and argues that the majority exhibited an attitude of “petty sticklerism,” invoking formalistic and reality-denying reasons to rule as it did.
Illinois law dean and professor Vikram David Amar comments on a recent decision by a divided three-judge panel of the Fifth Circuit holding that a Texas vote-by-mail law that prefers people who are 65 or older does not violate the Twenty-Sixth Amendment of the federal Constitution. Amar explains why the decision is “deeply misguided” and runs counter to the clear words of the Constitution.
Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—argues that Attorney General William Barr erroneously characterizes the families of victims of violent crimes as a homogeneous group unified in their support of the death penalty. Sarat points out that, in fact, some families of victims oppose the application of the death penalty (for a variety of reasons), so by trying to justify the reinstatement of the federal death penalty as bringing closure to victims and their families, Barr and his political allies are simply using these victims and their families to support his political ends.
Illinois law professor Lesley Wexler comments on philosopher Kate Manne’s recent book, Entitled, in which Mann tackles “privileged men’s sense of entitlement” as a “pervasive social problem with often devastating consequences.” Wexler praises Manne’s work as “illuminating” and calls upon lawyers and law scholars to ask how such entitlements might best and safely be challenged and reallocated, and how new more egalitarian entitlements might be generated and enforced.
UNLV Boyd School of Law professor Leslie C. Griffin describes the legal landscape after the U.S. Supreme Court’s July 2020 decision in Our Lady of Guadalupe School v. Morrissey-Berru, in which the Court took an expansive view of the ministerial exception. Griffin describes two recent decisions by U.S. Courts of Appeals ruling in favor of an employee and against a religious employer, demonstrating that ministers still have a chance (albeit a small one) of winning their antidiscrimination lawsuits.
Cornell law professor Sherry F. Colb considers the case for occasionally including status—“who you are”—in assigning blame in criminal matters. Colb explains that generally, our penal system prohibits “status offenses,” but sometimes, such as in the case of psychopaths, we are comfortable deciding how to punish a person based at least in part on who they are.
SMU Dedman School of Law professor Joanna L. Grossman debunks a tweet by Texas Senator Ted Cruz about childbirth and abortion. Grossman describes how, contrary to Cruz’s claims, pregnancy is dangerous, Mifeprex has only minor potential side effects, and the risk of dying from childbirth is many times greater than the risk of dying from an abortion.
Cornell law professor Joseph Margulies comments on an essay by John J. Lennon, who is serving time in New York for murder, and a response by the sister of the murdered man responding to Lennon. Margulies points out that exceptional stories like Lennon’s set the bar too high, at the expense of the many who are ordinary.