Analysis and Commentary Posted in 2021-10
Texas SB8: A Cooperative Venture for Rapists and the State of Texas

In light of next week’s oral argument in a high-profile case involving the federal government’s challenge to a restrictive Texas abortion law, Cornell Law professor Sherry F. Colb explains what we can learn from the law’s failure to grant an exception to its near-absolute prohibition against abortion for pregnancies that result from rape or incest. Professor Colb argues that by refusing to permit the women of Texas to terminate pregnancies resulting from rape and by simultaneously allowing lawsuits against those assisting such terminations, the state of Texas deputizes a rapist to forcibly impose an entire pregnancy upon the victim of his choice.

The Proposed Tax on Billionaires’ Income Is Most Assuredly Constitutional, Unless the Supreme Court Simply Makes Stuff Up

UF Levin College of Law professor and economist Neil H. Buchanan explains why Democrats’ proposed tax on billionaires does not violate any part of the Constitution, despite claims to the contrary. Professor Buchanan argues that the U.S. Supreme Court, in normal times, should recognize that there is no constitutional barrier to the proposed tax, but this ultra-conservative majority Court could defy text and logic and create a new law from whole cloth, as it has done before on other issues.

The Supreme Court’s Authority is at Stake in the Texas Abortion Case

Cornell Law professor Michael C. Dorf argues that even the procedural issues presented in the federal government’s challenge to Texas’s restrictive abortion law are high stakes. Professor Dorf argues that the procedural question fundamentally asks whether the U.S. Supreme Court will permit state-sanctioned lawlessness.

From Boston to Brunswick, Georgia: The Perils of Jury Selection

Texas law professor Jeffrey Abramson explains why the trial judge in the case against the three men who chased and shot to death Ahmaud Arbery should not commit the same mistake that occurred in the Boston Marathon trial—speeding up jury selection to convict obviously guilty defendants, only to have the sentence thrown out on appeal. Professor Abramson argues that while judges may understandably feel frustrated during jury selection in high-profile cases, taking shortcuts during jury selection risks forcing victims, witnesses, and the community to live through traumatic events twice.

Believing Anita Hill

UNLV Boyd School of Law professor Leslie C. Griffin comments on a new book by Anita Hill, who famously testified about her sexual harassment by Clarence Thomas before his Supreme Court confirmation hearing. Professor Griffin praises Hill’s book for chronicling the history of gender violence and for demanding meaningful reform to address gender violence at all levels of society.

The Pro-Life Story of How Babies Are Made

Cornell Law professor Sherry F. Colb responds to some of the consensus views among pro-life advocates that reflect how they understand pregnancy. Professor Colb debunks the illogical argument that a zygote is a person and explains why the view of pregnancy as merely the placement of a zygote “somewhere” (i.e., inside a woman) to grow into a person is simplistic and misogynistic.

Supreme Court Poised to Put Boston Marathon Bomber Back on Death Row

Texas Law professor Jeffrey Abramson explains why the U.S. Supreme Court should not reinstate the death penalty for convicted Boston Marathon bomber Dzhokhar Tsarnaev, though a majority seemed poised to do just that when it heard oral arguments earlier this week. Professor Abramson argues that even this pro-death-penalty Supreme Court should see that when grievous mistakes are made at trial, as they were in Tsarnaev’s case, the defendant deserves a new death sentence hearing.

Three Threats to Future Generations: Should COVID-19 Change Our Thinking About Climate Disaster or the End of Democracy?

UF Levin College of Law professor Neil H. Buchanan considers whether the current COVID-19 pandemic changes the way we think about the ongoing crises of climate catastrophe and the escalating threats to the rule of law. Perhaps counterintuitively, Professor Buchanan concludes that neither this pandemic nor even the threat of future pandemics changes how we should think about our obligations to future generations because nothing about it requires our focus to the exclusion of those two existing threats.

Money, Law, and Other Noble Lies

Cornell Law professor Michael C. Dorf critiques the suggestion that the Treasury might instruct the Mint to create high-value platinum coins to pay federal obligations and avert a debt ceiling crisis. Professor Dorf argues that such action risks eroding public confidence in the very idea that money has value. He recognizes that in a democracy, government should generally trust the People with the truth but says there is sometimes a need to promote a “noble lie” for the good of society.

Shame on Texas: Playing Ping-Pong with the Lives of Pregnant People

SMU Dedman School of Law professor Joanna L. Grossman describes the unique burdens that Texas has imposed on people seeking to exercise their constitutionally protected right to an abortion, as well as those who provide abortions in that state. Professor Grossman focuses on the harmful and widespread effects of the legal limbo created by the enactment of a blatantly unconstitutional law such as Texas SB 8.

Alito, Texas Abortion and the Shadow Docket: Déjà vu All Over Again?

Amherst professor Austin Sarat and former federal prosecutor Dennis Aftergut comment on the U.S. Supreme Court’s increasing tendency to decide high-profile and far-reaching cases via its “shadow docket”—without oral argument or full briefing. Professor Sarat and Mr. Aftergut point out that recent remarks by Justice Samuel Alito reinforce the view that the Court has a partisan agenda that is increasingly out of step with the beliefs and values of the American people.

Rejecting Vaccination Status Discrimination: Learning from the Laws of War

Illinois Law professor Lesley M. Wexler argues that a just society should not punish unvaccinated persons in the allocation of even scarce medical care and resources, despite the exceptional circumstances of a global pandemic. In support of this position, Professor Wexler analogizes to the exceptional circumstances of war, pointing out that the laws of war also emphatically reject status discrimination in medical decision-making.

Only the Most Extreme Debt Ceiling Insanity Could Turn the ‘Big Coin Option’ into the Least-Bad Choice: So, Be Prepared!

UF Levin College of Law professor and economist Neil H. Buchanan responds to proposals that the so-called Big Coin option could alleviate the debt ceiling crisis. Professor Buchanan argues that this option, by which the Treasury would mint a platinum coin and designate its value at some arbitrarily high number to allow the government to continue paying its bills, is likely not the best solution to the contrived problem of debt ceiling.

Abortion in Texas and Middle-School Bullying

Cornell Law professor Sherry F. Colb describes how Texas’s abortion statute SB8 is similar to middle-school bullying in the way that it scares everyone into persecuting or shunning anyone who associates with a woman seeking an abortion. Professor Colb explains that by creating “untouchables,” the law compels everyone—even those who are not opposed to abortion—to avoid having anything to do with a woman who has had or is seeking to have an abortion.

Texas’s Extreme Abortion Law Threatens Girls’ Lives

University of Pennsylvania professor Marci A. Hamilton describes how Texas’s extreme anti-abortion law threatens the lives of female children in that state. Professor Hamilton argues that the law is effectively encouraging citizens to engage in economic trafficking of vulnerable girls, particularly girls who have been subject to sexual predators.

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