Analysis and Commentary Posted in 2021-12
Prosecuting Trump May Be Right but Unwise

Amherst professor Austin Sarat explains why, even if there is a strong legal case for prosecuting former president Donald Trump for inciting the January 6 insurrection, doing so may not be the wisest thing to do. Professor Sarat suggests that the Attorney General can and should put together a record for history to judge, but going forward with even a well-grounded prosecution of Trump would almost certainly turn him into a martyr and bring this country ever closer to the abyss it is already fast approaching.

Police Killings Continue Even As Racial Justice Movement Changes America

Former federal prosecutor Dennis Aftergut reflects on what has been different about 2021 with respect to police killings (and what has remained the same). He asks whether 2022 will bring about progress for the rights to be safe, to choose, to vote, or some other expansion of freedom, and calls upon all Americans to act to secure those rights.

How Medical Abortion Challenges the Practice and the Moral Condemnation of Ending a Pregnancy

In response to the December 16 announcement that, Cornell law professor Sherry F. Colb explains the significance of the U.S. Food and Drug Administration (FDA)’s December 16 announcement that it is permanently allowing doctors to administer medical abortions by telemedicine and through the mail. Professor Colb describes why the change is likely to make terminating a pregnancy more accessible and affordable and less dangerous, and she argues that medical abortion also challenges one ethical argument some anti-abortion advocates have raised.

Repealing the Republicans’ Attack on State and Local Taxes Is Good Politics and Progressive Policy

UF Levin College of Law professor and economist Neil H. Buchanan explains the legal and policy reasons for reinstating the state and local taxes (SALT) deduction that Republicans severely limited in 2017. Professor Buchanan argues that the purpose of limiting the SALT deduction was to harm poor people in states that had robust social spending programs, so Democrats should unapologetically seize the opportunity to undo any unconstitutional provision designed in the first place as a political hit job.

It Is Not Too Early to Prepare for Life After the Abolition of Capital Punishment

Amherst professor Austin Sarat describes what death penalty abolitionists must do even as capital punishment in the United States wanes in popularity and use. Professor Sarat calls upon such advocates to invest time and resources in tracking and learning lessons from what has happened after states abolished the death penalty over the last 15 years.

Our Cages

Cornell law professor Joseph Margulies describes how he arrived at his moral philosophy, summed up as “there is no them, there is only us.” Professor Margulies explains that it comes in part from an understanding that all of humanity is imprisoned by our individual autobiographies—the profound choices that define our existence, like how we respond to loss, shame, rage, and pain.

Who’s a Bounty Hunter? How the Supreme Court’s Own Standing Precedents Answer the Effort to Normalize Enforcement Outsourcing in the Texas Abortion Case

Cornell law professor Michael C. Dorf explains why the concern expressed by Justice Sonia Sotomayor in her dissent in the Texas abortion case (Whole Woman’s Health v. Jackson) that other states will follow Texas’s example and employ “private bounty hunters” is well founded and legitimate.

Why We Still Like Separation of Church and State

Penn professor Marci A. Hamilton and UNLV Boyd School of Law professor Leslie C. Griffin explain why the separation between church and state is such an important principle in American democracy and describe ways in which this separation is being eroded. Professors Hamilton and Griffin urge courts and lawmakers to keep the states and the nation from being run by the world’s religions.

Dobbs v. Jackson Women’s Health Organization: The Supreme Court Is No Safe Haven for Abortion Rights

SMU Dedman School of Law professor Joanna L. Grossman comments on the abortion cases currently before the U.S. Supreme Court—one challenge a restrictive Texas abortion law and another challenge to a plainly unconstitutional Mississippi law. Professor Grossman argues that safe-haven laws—which Justice Amy Coney Barrett in particular asked about during her line of questioning in oral argument—play no role in the law or policy of abortion.

American Law’s Worst Moment(s), 2021

Amherst professor Austin Sarat reflects on American law’s worst moment(s) in 2021, noting that this year it was not a single moment but a series of events beginning with the January 6 insurrection. Professor Sarat argues that what followed the insurrection and ratified it demonstrate that Trump and his cronies are lining this country up for an unprecedented constitutional crisis in 2024, and Democrats have done nothing to resist the slow-moving coup.

Justice Kavanaugh’s Misdirection Plays in the Mississippi Abortion Case

Cornell Law professor Michael C. Dorf comments on last week’s oral argument in Dobbs v. Jackson Women’s Health Organization, in which the Court will consider whether to overturn the right to abortion recognized in Roe v. Wade and subsequent cases. Specifically, Professor Dorf analyzes statements and questions by Justice Brett Kavanaugh, particularly in light of statements he made during his confirmation hearing.

After Roe, The Coming Fight to End All Abortions Everywhere

Amherst professor Austin Sarat and former federal prosecutor Dennis Aftergut comment on a case in which the U.S. Supreme Court recently heard oral arguments that gives the Court an opportunity to overturn Roe v. Wade and related cases recognizing a constitutional right to abortion. Sarat and Aftergut point out that if the Court abandons Roe, that will ultimately spell the end of abortion rights in all states.

What the Kyle Rittenhouse Verdict Tells Us About Domestic Violence

Cornell Law professor Sherry F. Colb reflects on what the acquittal of Kyle Rittenhouse tells us about domestic violence and society’s expectations based on gender. Professor Colb argues that the law of self-defense, especially as it is developing away from the duty to retreat, demonstrates gender inequality within the criminal justice system by favoring testosterone-fueled vigilantes over the women who choose to survive rather than succumb to domestic violence.

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