Analysis and Commentary Posted in 2021-09
Is Democratic Gerrymandering of New York’s Congressional Delegation Hypocritical? Perhaps, But Unilateral Disarmament is Worse

Cornell Law professor Michael C. Dorf argues that Democrats may be justified in gerrymandering New York’s congressional districts even as they complain about gerrymandering by Republican-controlled state legislatures in Texas, Wisconsin, and elsewhere. Professor Dorf points out that it is sometimes but not always hypocritical to seek to change the law but continue to engage in behavior inconsistent with the change one seeks, and in the case of political gerrymandering, failure to do so amounts to unilateral disarmament.

“A Tragic Mistake”: Understanding the Aftermath of the Kabul Drone Strike: Part III—Making Amends

In this third and final part of a series of columns on the Kabul drone strike in August that killed numerous civilians, Illinois Law professors Lesley M. Wexler and Jennifer K. Robbennolt suggest a robust approach to making amends for the victims of lawful harm imposed during drone strikes and other military uses of force. Professors Wexler and Robbennolt note the substantial support for various aspects of amends from many key stakeholders, including the victims and their families, members of the military who suffer moral injury as a result of the killings, and even the U.S.’s military objectives, which often rely on winning the hearts and minds of local populations.

Some Hard Thought-Experiment Questions for Both Sides of the Abortion Debate

Illinois Law dean Vikram David Amar and UC Davis Law professor emeritus Alan Brownstein propose several difficult questions for both sides of the abortion debate in an effort to open dialogue and stimulate productive conversation about the contentious subject. Dean Amar and Professor Brownstein underscore the value of thinking about and discussing some of the core issues about abortion rights as part of a civil dialogue about abortion.

Will the Death Penalty Survive the Pandemic?

Amherst professor Austin Sarat observes that a sharp reduction in executions during the COVID-19 pandemic represents a clear departure from the typical response to crisis in the United States. Professor Sarat explores whether this departure signifies the demise of capital punishment, or instead whether, as suggested by Oklahoma’s plan to execute seven people over the next six months, we will see a return to the historic norm.

“A Tragic Mistake”: Understanding the Aftermath of the Kabul Drone Strike: Part II—Condolence and Solatia Payments

In this second of a three-part series of columns on the Kabul drone strike in August that killed numerous civilians, Illinois Law professor Lesley M. Wexler addresses the U.S. approach to voluntary condolence and solatia payments. Professor Wexler explains what these payments require and how they often fall short, and she points out the gulf between commitments to making condolence and solatia payments and payments actually made.

The “Americans Are Not Deadbeats Act”: Republicans Have Given Democrats a Gilded Political Path to Killing the Debt Ceiling

UF Levin College of Law professor and economist Neil H. Buchanan argues that Democrats have a clear path to eliminating the debt ceiling crisis once and for all. Professor Buchanan explains that the Democrats should employ the so-called Gephardt Rule, under which the debt ceiling is increased automatically as part of every taxing and spending bill that Congress passes.

The End of Abortion Rights: Texas Law Provides Grim Glimpse of Future

SMU Dedman School of Law professor Joanna L. Grossman answers some of the most frequently asked questions about Texas’s “SB 8” law, which bans most abortions, including those protected by the federal Constitution. Professor Grossman dispels some of the myths about the law and describes some of the ways it is both different and more extreme than other anti-abortion laws.

“A Tragic Mistake”: Understanding the Aftermath of the Kabul Drone Strike: Part I—Detecting Mistakes and No Required Reparations

In this first of a three-part series of columns on the Kabul drone strike in August that killed numerous civilians, Illinois Law professor Lesley M. Wexler raises two key concerns: that civil society rather than the government brought the mistake to light, and that there is no legal requirement to pay reparations. Professor Wexler describes the reasons behind our reliance on journalists and civil society to investigate problems like this strike and explains the relevant laws of war that allow the victims’ families to go uncompensated.

Abortion and the Adoption Option

Cornell Law professor Sherry F. Colb responds to the anti-abortion argument that anyone who does not want to keep a baby can and should give them up for adoption. Professor Colb points out that the pain and discomfort associated with carrying a child to term are tolerable only if one wants to keep the resulting baby; if one does not want or cannot keep a child, then pregnancy is intimate and intense suffering in a way that may be intolerable for the woman.

Why September 17 Is Neither the Only nor Necessarily the Best Day to Celebrate America’s True Constitutional Tradition

In light of Congress’s designation of today, September 17, as “Constitution Day,” Illinois Law dean Vikram David Amar and professor Jason Mazzone explain what this date celebrates and what it overlooks. Dean Amar and Professor Mazzone point out that while we should celebrate the drafters at the Philadelphia Convention, we should not disregard the imperfections in their work, or the ways in which Americans have worked to correct those imperfections.

Why Do We Continue to Use Loaded Words Even When We Know that They Have No Meaning?

UF Levin College of Law professor and economist Neil H. Buchanan explores the frequent phenomenon where people fall back on empty words and phrases, even when they have been convinced that those phrases are empty. Professor Buchanan relates some anecdotes demonstrating the phenomenon and calls for people to relearn and remember when they are saying words that communicate nothing, lest they lapse into reinforcing meaninglessness.

Would Overruling Roe v. Wade Retroactively Reanimate “Zombie” Abortion Laws?

Cornell Law professor Michael C. Dorf discusses an often overlooked procedural aspect related to Texas’s extreme anti-abortion law that could result in “zombie” laws taking effect in every other red state. Professor Dorf argues that there are several reasons to hope that a state scheme to retroactively enforce zombie abortion laws would fail, even if the Supreme Court curtails or eliminates the abortion right itself, not the least of which is that retroactive application of zombie laws is fundamentally unfair.

Looking Beyond Next Week’s California Gubernatorial Recall Election: The Case for Legislative Reform Rather Than Judicial Intervention

Illinois Law dean Vikram David Amar argues that legislative reform is the best response if Californians want to change the gubernatorial recall election process. Dean Amar points out that legislators who wish to act should do so before—rather than after—the results of the upcoming election come in, so as to deflect any concerns that they might be motivated by partisanship, even though the reform possibilities may not be facially partisan.

Some Think Dylann Roof Deserves to Die, But Executing Him Lets Hatred Carry the Day

Amherst College professor Austin Sarat responds to a federal appellate court decision upholding the conviction and death sentence of Dylann Roof for the 2015 murders of nine members of the historic Emanuel African Methodist Episcopal Church in Charleston, South Carolina, during a meeting of a Bible-study group. Professor Sarat argues that the death penalty is inappropriate even for one of this nation’s most reviled mass murderers because capital punishment has no place in a democratic society.

Texas Plays Chess with Pro-Choice Pawns

Cornell Law professor Sherry F. Colb comments on a blatantly unconstitutional Texas anti-abortion law that the U.S. Supreme Court recently declined to enjoin, pointing out the unusual structure of the legislation and the hypocrisy of “conservatives” who support it. Noting from the outset that the so-called heartbeat to which the legislation refers is not from an actual heart, but pulsing, undifferentiated cells, Professor Colb highlights the hypocrisy of so-called conservatives who favor insulating most civil defendants from suit while inviting nearly anyone to sue for “aiding and abetting” performance of an abortion.

Abolitionists Must Put Reviving Clemency in Capital Cases High on Their Agenda

Amherst College professor Austin Sarat explains why death penalty abolitionists should prioritize seeking grants of clemency in capital cases. Professor Sarat points to studies showing that the use of clemency in individual capital cases has lagged behind a larger trend of states turning away from capital punishment and argues that we as a nation should demand from our leaders the courage and conviction to see people worth saving on death row and to exercise mercy toward them.

Dear Young People: You WANT Congress to Kick the Can Down the Road on Social Security

UF Levin College of Law professor and economist Neil H. Buchanan explains why there is not an impending Social Security crisis, and in fact, anything Congress might do over the next decade or so in response to this nonexistent crisis will actually make matters worse, especially for young people themselves. Professor Buchanan describes why and how journalists misunderstand the Social Security Trustees’ 2021 annual report and argues that if Congress reacts by changing Social Security, it would essentially guarantee that today’s young people would be harmed, even if the Trustees’ forecasts turn out to be wrong.

A Strange Type of Federalism Awaits Us in Republicans’ Upcoming One-Party Autocracy

UF Levin College of Law professor Neil H. Buchanan considers the future of federalism when Republicans have forced the United States into a one-party autocracy. Professor Buchanan argues that while conservatives have long claimed to favor states’ rights, they will be unlikely to support states’ rights when Republicans control the federal government and are insulated from competition.

Mexican Government Lawsuit Against U.S. Gun Makers Tests the Limits of Territoriality

Cornell Law professor Michael C. Dorf discusses a lawsuit in which the government of Mexico is suing U.S. firearms manufacturers in federal court for failing to take reasonable steps to prevent their weapons from ending up in Mexico, profit from the trafficking of U.S.-made guns to Mexico, and in some respects deliberately target the illegal Mexican market. Professor Dorf argues that while the lawsuit presents strong moral and policy grounds for granting the Mexican government the relief it seeks, a 2005 federal statute, the Protection of Lawful Commerce in Arms Act (PLCAA), will likely prevent it from succeeding.

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