Analysis and Commentary Posted in 2022-09
Congress Should Protect Voluntary Affirmative Action in Private Colleges and Universities

Cornell Law professor Michael C. Dorf explains how Congress can (and argues that it should) protect affirmative action in private colleges and universities in light of the supermajority of the Supreme Court that seems hostile to affirmative action. Professor Dorf points out that even if his suggestion seems far-fetched in the current political climate, urgent calls for action now can effectively arm advocates to effect change when they are better positioned to do so in the future.

The Supreme Court’s Cold Indifference in Alabama Death Penalty Case

Amherst professor Austin Sarat comments on Alabama’s recent aborted execution of Alan Miller. Professor Sarat describes how the U.S. Supreme Court allowed Miller’s execution to go forward despite a serious dispute about whether Miller submitted a form electing an execution method other than lethal injection.

It Is Time for the Supreme Court to Act: A Four Step Proposal to Strengthen the Court’s Legitimacy

Barry Winograd proposes a four-step plan to restore the legitimacy of the U.S. Supreme Court, which is currently facing a serious public relations problem. Mr. Winograd calls upon the Court itself to act—rather than waiting for the Executive or the Legislative branch—by: (1) providing live and orderly audio transmission of oral arguments, (2) adopting an enforceable code of ethics binding on all Justices, (3) establishing consistent standards limiting use of the Court’s “shadow docket,” and (4) establishing term limits for the Justices.

Parkland Case Challenges Us All to Figure Out What a Mass Murderer Deserves

Amherst professor Austin Sarat comments on the ongoing sentencing trial of Nikolas Cruz, who in 2018 murdered fourteen students and three staff members at Marjory Stoneman Douglas High School in Parkland, Florida. Professor Sarat explains the difficulty and complexity of having to decide what punishment an offender deserves—let alone someone guilty of perpetrating such an atrocity—particularly when it is a question of capital punishment or life in prison without the possibility of parole.

Lindsay Graham’s Gambit Is the Next Step Toward a Nationwide Abortion Ban

Amherst professor Austin Sarat comments on Senator Lindsay Graham’s proposed national 15-week abortion ban. Professor Sarat points out that the proposed bill contradicts his—and other anti-abortion Republicans, including Supreme Court Justices who voted to overturn Roe v. Wade—claim that the question of abortion should be decided by each state legislature.

Where Have All the (Aspiring) Law Profs Gone?

Illinois Law dean Vikram David Amar and professor Jason Mazzone consider some possible explanations for the ever-decreasing number of applicants for tenured/tenure-track faculty among law schools. Dean Amar and Professor Mazzone propose five possible reasons but point out that whatever the true reason(s), the apparent decline in the demand among talented new legal minds for law-teaching jobs should be a topic of discussion and concern.

Federal Judge Accepts Extravagant Complicity Claim to Exempt Company from Obligation to Provide Lifesaving Medicine

Cornell Law professor Michael C. Dorf comments on a recent decision by a federal district judge in Texas holding that a for-profit corporation was entitled to an exception from the legal obligation to provide employees with health insurance covering pre-exposure prophylaxis (PrEP), which protections against infection with HIV/AIDS. Professor Dorf explains the absurdity of the court’s conclusion, which is based on an extension of the Supreme Court’s dubious logic in Burwell v. Hobby Lobby.

If Originalism Is Going to Be Displaced, Critics Must Do Better than Dean Chemerinsky Seems to Be Doing

Illinois Law dean Vikram David Amar and professor Jason Mazzone respond to several points about originalism made by Berkeley Law Dean Erwin Chemerinsky in a recent article published in The Atlantic. Dean Amar and Professor Mazzone explain why three claims in particular—that originalism is an “obscure legal theory” only a few decades old, that judicial review in the federal courts is anti-originalist, and that accurately determining original meaning is “impossible.”

It’s Time to End the Inhumanity of Confinement on America’s Death Rows

Amherst professor Austin Sarat comments on a recent report by the advocacy group, the Legal Defense Fund, noting that the total number of people on death row is 3.6% lower than it was a year ago, and 35% lower than it was in 2001 when the death row population was at its peak. However, Professor Sarat highlights the inhumanity of allowing even this reduced number of people—indeed, anyone—to languish for years or decades on death row.

Biden’s Democracy Speech Highlights the New American Dilemma, Violence or Voting

Amherst professor Austin Sarat praises President Biden’s speech last Thursday as a much-needed reminder that Americans should settle their differences through voting not violence. Professor Sarat points out that today’s threat of political violence comes overwhelmingly from the political right, not the left, and from people who are not “lone wolves” but part of a broader community that echoes their violent ideas.

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

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

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... 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