Analysis and Commentary Posted in 2021-05
Could the Supreme Court Erode But Not Overrule Roe v. Wade in the Mississippi Case?

Cornell Law professor Michael C. Dorf considers whether and how the U.S. Supreme Court next term might eliminate or substantially curtail the constitutional right to abortion recognized in Roe v. Wade. Professor Dorf describes the jurisprudence after that decision and argues that a decision that upholds the Mississippi law while purporting to forestall deciding the ultimate fate of Roe would be brazenly dishonest—albeit somewhat more likely than a clear overruling of Roe.

The Latest Front in the Republican War on Democracy

Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—comments on efforts by Republicans in 32 states to restrict the ballot initiative and voter referendum processes—two key levers of direct democracy. Professor Sarat describes origins and development of these processes in our country and argues that the opportunity for citizens to vote directly on the policies that affect their lives is an important democratic tradition that must be preserved.

“Most Favored-Nation” (“MFN”) Style Reasoning in Free Exercise Viewed Through the Lens of Constitutional Equality:

In this second of a series of columns, Illinois Law dean Vikram David Amar and UC Davis Law professor emeritus Alan Brownstein continue their discussion of why the U.S. Supreme Court’s recent “Most Favored Nation” (MFN) approach to the Free Exercise Clause of First Amendment is troubling on a number of levels. Dean Amar and Professor Brownstein point out that an MFN-style approach is virtually guaranteed to cause geographical inequality because it relies upon fortuitous secular analogues.

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.

Justice Thomas Calls Out Liberals for Distinguishing Incarceration from Pregnancy

Cornell Law professor Sherry F. Colb responds to an observation made by U.S. Supreme Court Justice Clarence in his concurring opinion in Jones v. Mississippi, noting an ostensible inconsistency in the language liberals use in discussing incarceration, as compared to pregnancy. Professor Colb acknowledges the face value of Justice Thomas’s point—that liberals refer to minors seeking an abortion as “women” and minors facing life imprisonment without the possibility of parole (“LWOP”) as “children”—but she points out that the difference in terminology reflects a consistent view that minors are not fully developed and should not be forced to do irreversible “adult” things like carry a pregnancy to term or serve a mandatory LWOP sentence.

Pervis Payne’s Case Shines a Light on the Continuing Injustices of America’s Death Penalty

Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—describes three kinds of defects and injustices inherent in capital punishment exemplified by the case of Pervis Payne, who is on death row in Tennessee. Professor Sarat points out that the death penalty in the United States is built upon erroneous convictions and miscarriages of justice, the prejudicial use of use of so-called victim impact evidence, and disproportionate targeting of defendants with intellectual disabilities or mental illness.

Police Use of Lethal Force in Rio de Janeiro: Challenges and Perspectives

Igor De Lazari, a Brazilian legal scholar, Antonio Sepulveda, Professor of Law at the Getulio Vargas Foundation (FGV) and at the Fluminense Federal University, and Ana Beatriz a legal assistant at the Public Ministry Office of the State of Santa Catarina and Criminal Procedure Law Specialist, comment on the police use of lethal force in Rio de Janeiro. The authors suggest several institutional and social policy changes that would begin to address the disproportionate use of lethal force in Rio and restore public faith in its public security policy

Go Ahead and Cancel Me, You Erasing, Censorious Silencers; Also . . . Woke!

UF Levin College of Law professor Neil H. Buchanan argues that the terms “cancel culture,” “wokeness,” and the like have come to mean only that the person using them does not like something that is being said or done. Professor Buchanan describes how these epithets are simply today’s (much more quickly adopted) versions of the 1990’s political correctness and “PC police”—all political tools for claiming victimhood.

What Facebook and its Oversight Board Got Right and Wrong in the Trump Case

Cornell Law professor Michael C. Dorf comments on last week’s announcement by the Facebook Oversight Board with its verdict regarding the company’s treatment of former President Donald Trump’s suspended account. Professor Dorf argues that the Board’s ruling makes sense in many respects, but makes two mutually exclusive demands of Facebook: clear rules for the sake of predictability and at the same time, flexibility for moderators to consider the individual context of a situation.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... 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

MARCI A. HAMILTON is the Fels Institute of Government Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Austin Sarat
Austin Sarat

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

Lesley Wexler
Lesley Wexler

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