Analysis and Commentary Posted in 2021-07
The Time Has Come: Local, State, and Federal Officials Need to Mandate COVID-19 Vaccination Now

University of Pennsylvania professor Marci A. Hamilton calls on local, state, and federal officials to require COVID-19 vaccination in order to effectively address the acute health crisis the virus’s variants imminently pose. Professor Hamilton argues that we should treat those who refuse to get vaccinated, without sound medical reasons for doing so, the same way we treat drunk drivers: civilly and criminally liable.

We Need a People’s (Not Presidential) Commission on the Supreme Court

Amherst professor Austin Sarat argues that a People’s Commission—rather than a Presidential Commission—on the U.S. Supreme Court is the only way to ensure that a democratic dialogue that truly represents the interests of the American people. In support of this argument, Professor Sarat draws upon a recent Gallup poll about public confidence in the Court and the highly critical testimony of Yale Law’s Samuel Moyn and Harvard Law’s Nikolas Bowie.

Beverly Brazauskas’s 2003 Case Against the Diocese

UNLV Boyd School of Law professor Leslie C. Griffin describes a recent conversation with Beverly Brazauskas—a woman who in 2003 lost a lawsuit against a Catholic bishop and diocese—in which Brazauskas reflects on her case. Professor Griffin points out that Brazauskas’s loss epitomizes the saying “you can’t win when you go up against the church” because religion in the United States is often treated as above the law.

The Worst Sequel of 2021: “Debt Ceiling Zombies Attack!”

UF Levin College of Law professor and economist Neil H. Buchanan comments on the (again) impending debt ceiling crisis if Senate Republicans (again) do not adjust the federal debt ceiling by the end of this month. Professor Buchanan reiterates the reasons the debt ceiling is unconstitutional and calls upon President Biden to instruct the Treasury Department to pay all bills in full, using exactly as much borrowed money as Congress’s duly enacted laws require, and to immediately announce that he will do so.

What If Edwards v. Vannoy Had Gone the Other Way?

Cornell Law professor Sherry F. Colb comments on the U.S. Supreme Court’s decision in Edwards v. Vannoy, in which it held that a prisoner may not invoke the denial of his Sixth Amendment right to a unanimous jury as a basis for challenging his criminal conviction when filing a federal habeas corpus petition. Professor Colb explains why, if cost/benefit analysis played a role in determining retroactivity, the Court perhaps should have decided that case the other way.

U.S. Supreme Court Again Restricts the Viability of International Human Rights Lawsuits in Federal Courts Under the 1789 Alien Tort Statute

NYU Law professor Samuel Estreicher and Hofstra Law professor Julian G. Ku comment on the U.S. Supreme Court’s recent decision in Nestlé v. Doe, in which the Court held that mere “corporate activity” within the United States is not enough to satisfy the general presumption against the extraterritorial application of federal law. Professor Estreicher and Ku point out that questions about the scope of future ATS claims or corporate liability may never be resolved if the vast majority of ATS claims are dismissed as a result of the Court’s reinvigorated extraterritoriality test.

New Texas Abortion Statute Raises Cutting-Edge Questions Not Just About Abortion but About the Relationship Between State and Federal Courts

Illinois Law dean Vikram David Amar and professor Jason Mazzone analyze some of the issues presented by a new Texas anti-abortion statute that is to be enforced entirely by private plaintiffs. Dean Amar and Professor Mazzone explore the unusual characteristics of the law and describe some approaches opponents might take—and indeed Whole Woman’s Health (WWH) has already filed a lawsuit in federal court that seems to follow an approach the authors describe.

The Real Issue in the Puerto Rican Cockfighting Case Before the Supreme Court

Cornell Law professor Michael C. Dorf comments on a recently filed petition in the U.S. Supreme Court presenting the question whether Congress had the constitutional authority to ban cockfighting in Puerto Rico. Professor Dorf explains why the Court is unlikely to agree to hear the case, but he points out that the case presents a broader issue of laws that proscribe one unpopular form of cruelty to animals (e.g., cockfighting), even as the vast majority of the law’s supporters routinely demand animal products that come from the infliction of suffering on a much more massive scale—the meat and dairy industries.

Out from Under: Britney Spears Seeks to be Relieved from Unusual Conservatorship

SMU Dedman School of Law professor Joanna L. Grossman and Stanford Law professor Lawrence M. Friedman comment on the recent publicity of the conservator of Britney Spears. Professors Grossman and Friedman explain the typical purpose of a conservatorship, provide a brief history of the history of conservatorship in American law, and explain why Britney’s conservatorship in particular is unusual and potentially problematic.

#BillCosby Is Still #Guilty

Cornell Law professor Sherry F. Colb comments on the Pennsylvania Supreme Court’s recent decision overturning Bill Cosby’s conviction for the sexual assault of Andrea Constand. Professor Colb makes clear that the court’s actions in that case do not exonerate Bill Cosby; rather, it remains true that a jury of his peers convicted him of sexual assault based on proof beyond a reasonable doubt.

The Intensifying Madness on America’s Political Right: A Decade-Long Perspective

UF Levin College of Law professor Neil H. Buchanan reflects on the evolution of America’s political right over the past decade, from his first Verdict column almost exactly ten years ago to today. Professor Buchanan points out that his first column discussed the problem of the debt-limit crisis, which he argues was a portent for Republicans’ abandonment of ideas, now turning instead to stoking cultural clashes and fomenting grievances.

The Supreme Court’s Hits and Misses on Children’s Civil Rights During the 2020 Term

Marci A. Hamilton, professor at the University of Pennsylvania and CEO of CHILD USA, discusses several decisions by the U.S. Supreme Court this past term that affect children’s rights: Fulton v. Philadelphia, addressing whether a religious social services agency can refuse to place children with same-sex couples; Mahanoy Area School District v. B.L., addressing whether a teen could be punished for speech on Snapchat, off school grounds and addressed to her own audience; and NCAA v. Alston, addressing whether the NCAA can deny student-athletes education-related benefits while exploiting their athletic achievements. Professor Hamilton notes that two of these three benefit children, while Fulton, which focuses exclusively on the adults involved and not the children, leaves open the possibility that states can pass neutral laws to meaningfully value the needs of children.

The Troubling Implications of the SCOTUS Arizona Voting Rights Case

Cornell Law professor Michael C. Dorf comments on the U.S. Supreme Court’s decision last week in Brnovich v. Democratic National Committee, in which the Court upheld along ideological lines two Arizona voting laws, one of which restricted who could collect mail-in ballots and the other of which invalidated votes mistakenly cast in the wrong district. Professor Dorf argues that even if the bottom line in Brnovich is correct, the legal analysis and the Court’s broad acceptance of Republican talking points about voter fraud portend ill for the future of American democracy.

What Is the Most Dangerous Part of the Republican Campaign Against Democracy?

Austin Sarat, Professor of Jurisprudence & Political Science at Amherst College, describes nefarious Republican efforts to ensure victory in future elections by changing rules governing voting and the vote-counting process. Professor Sarat points out that Republican-dominated state legislatures are devising ways to insert themselves into the vote counting process and replace local election officials with loyal partisans.

The Cosby Conviction Reversal Reveals a Faultline in Our Justice System for Sex Assault Victims: Unfairly Short Statutes of Limitation

Marci A. Hamilton, professor at the University of Pennsylvania and CEO of CHILD USA, comments on the recent decision by the Pennsylvania Supreme Court overturning Bill Cosby’s sexual assault conviction. Professor Hamilton argues that the decision illustrates the need for states to reform both civil and criminal statutes of limitations (SOLs) to give sexual assault and abuse survivors their day in court.

#FreeBritney and Believe Women

Illinois Law professor Lesley M. Wexler comments on Britney Spears’s petition to end her conservatorship and explains how her situation reflects general attitudes about believing women. Professor Wexler argues that the #FreeBritney movement may shape emerging norms of believability, which is often a precondition to convincing judges, jurors, co-workers, friends, and others in society about both the existence of abuse and its impact on its victims.

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