Analysis and Commentary Posted in 2023-03
Federal Bankruptcy Law Is Toxic for Child Sex Abuse Victims

Marci A. Hamilton—a Professor of Practice in Political Science at the University of Pennsylvania and the founder and CEO of CHILD USA—explains why federal bankruptcy law causes harm to child sex abuse victims. Professor Hamilton points out that numerous Catholic dioceses, as well other large, powerful groups like the Boy Scouts of America and USA Gymnastics have used Chapter 11 to keep their secrets and avoid fairly compensating victims.

Repeal of Iraq War Authorization While Leaving Post-9/11 Authorization Will Send Mixed Signal

Cornell Law professor Michael C. Dorf comments on the apparently imminent repeal of two Authorizations for Use of Military Force (AUMFs) against Iraq. Professor Dorf argues that while their repeal can be seen as an acknowledgment of the terrible error of invading Iraq and a reassertion of the principle of separation of powers, the action is insufficient so long as the post-9/11 AUMF remains in place, giving the President extraordinary power to deploy the military overseas without congressional involvement.

Law Teaching in the Liberal Arts in the Trump Era

In light of unsubstantiated comments by former President Trump about prosecutors with a political agenda, Amherst professor Austin Sarat reflects on the importance of teaching law in the liberal arts. Professor Sarat points out that legal courses in the liberal arts are one place where students can learn about the politics of law and appreciate that while law is not completely separated from politics, nor is law completely subsumed by it.

FTC Authority to Ban Non-compete Clauses in Employment Agreements?

NYU Law professor Samuel Estreicher and 3L Zachary Garrett comment on a notice of proposed rulemaking by the Federal Trade Commission (FTC) that purports to ban non-compete clauses in employment agreements. Professor Estreicher and Mr. Garrett argue that the authority of the FTC to do so, based on its broad interpretation of Sections 5 and 6(g) of its authorizing statute, is dubious at best.

Reflections on Mary Jo McConahay’s Playing God: American Catholic Bishops and the Far Right

UNLV Boyd School of Law professor Leslie C. Griffin comments on Mary Jo McConahay’s new book, Playing God: American Catholic Bishops and the Far Right, which describes how U.S. Catholic bishops have successfully implemented far-right policies at all levels of U.S. government, despite views that differ radically from the head of the Church, Pope Francis. Professor Griffin summarizes McConahay’s telling of how Catholic bishops have pushed their agenda into law and encourages readers interested in this history to read Playing God.

What Role Can States Properly Play in Resisting Potential Federal Overreach? A Recent Federal Case From Missouri Involving Gun Rights Illustrates Possibilities and Misconceptions

Illinois Law dean Vikram David Amar comments on a recent decision by a federal district judge striking down Missouri’s Second Amendment Preservation Act (SAPA). Dean Amar argues that while there are signification portions of SAPA that are unconstitutional and should be enjoined, the court’s decision is overbroad and poorly reasoned and should be reversed in part on appeal.

First, “Let’s Corrupt All the Lawyers”: Trump’s Pathway to Autocracy

Harvard Law professor emeritus Laurence H. Tribe and former federal prosecutor Dennis Aftergut comment on an order last week by Judge Beryl Howell of the U.S. District Court for the District of Columbia ordering former Trump lawyer Evan Corcoran to answer questions he had declined to answer in January before Special Counsel Jack Smith’s grand jury. Professor Tribe and Mr. Aftergut point out that lawyers are uniquely positioned to either defend democracy against tyranny or facilitate its downfall; Judge Howell’s order reaffirmed the DC district court’s commitment to the rule of law as our shield against tyranny.

Why It May Be a Bad Idea for Nebraska Abolitionists to Again Put the Death Penalty on the Ballot

Amherst professor Austin Sarat explains why the plan by a coalition of death penalty opponents in Nebraska to put the death penalty on the ballot is a risky strategy. Professor Sarat points out that important and successful work that death penalty abolitionists have recently done to reframe the debates about capital punishment has not yet succeeded in the electoral arena, and history suggests that death penalty abolition is more likely to come from the top down than it is from the bottom up.

“Pro-Lifers” Choose Death

Amherst professor Austin Sarat and former federal prosecutor Dennis Aftergut comment on recent news that Republican legislators in four Southern states have proposed legislation that would make abortion a capital offense in those states. Professor Sarat and Mr. Aftergut point out the hypocrisy and cruelty of so-called “pro-lifers” advocating the death penalty for those who seek—and those who assist others in seeking—an abortion.

Ninth Circuit Limits Extraterritorial Reach of Trafficking Victims Protection Act

NYU Law professor Samuel Estreicher and 3L Anuja Chowdhury comment on a recent decision by the U.S. Court of Appeals for the Ninth Circuit interpreting provisions of the Victims of Trafficking and Violence Protection Act of 2000 (TVPA). Professor Estreicher and Ms. Chowdhury explain the Ninth Circuit’s reasoning and conclusion that foreign defendants in TVPA civil actions cannot be found “present” within the meaning of the Act without a showing of either physical presence or purposeful direction of conduct towards the U.S. market.

Accountability for Ukrainian War Crimes Ought to include Ukrainian War Crimes

Illinois law professor Lesley M. Wexler argues that based on the principle that justice needs to be justice for all, Ukraine should facilitate investigation of possible crimes by Ukrainians against Russians—not just crimes by Russians against Ukrainians. Professor Wexler contends that while U.S. and allied support for Ukraine must remain steadfast, encouraging Ukraine to make sure that all potential war crimes are investigated strengthens rather than weakens its moral authority.

Rhymes with ‘Joke’: A Word that Already Meant Nothing Now Means Even Less

UF Levin College of Law professor and economist Neil H. Buchanan points out the meaninglessness of conservatives’ new favorite word, “woke.” Professor Buchanan argues that despite the word’s lack of meaning, there are some interesting lessons to be learned from at least one near-miss in the attempt to put some substance behind the epithet.

Jack Daniel’s Claims to Have a Sense of Humor, but its Supreme Court Case Against a Poop-Themed Dog Toy Suggests Otherwise

Cornell Law professor Michael C. Dorf comments on a case before the U.S. Supreme Court involving a trademark infringement lawsuit by Jack Daniel’s against a maker of dog toys. Professor Dorf points out that while consumer confusion can undermine trademarks, confusion is also a characteristic of effective parody

Latest on the MAGA Republican Agenda: Intimidate Prosecutors and Politicize Prosecution

Amherst professor Austin Sarat comments on the number of bills recently introduced in many red states to curb prosecutorial discretion when it is exercised in ways that do not conform to their tough-on-crime agenda. Professor Sarat argues that prosecutorial discretion is an indispensable component of a society governed by laws, and that these bills violate the separation of powers, threaten to politicize prosecution, and, in so doing, undermine the rule of law.

Trump Lawyer Jenna Ellis Snatches Shame from the Jaws of Redemption

Former federal prosecutor Dennis Aftergut comments on the public censure of Trump lawyer Jenna Ellis for her misrepresentations on Fox News and elsewhere regarding the outcome of the 2020 Presidential Election. Mr. Aftergut points out that now, thanks to Jenna Ellis, we have a discipline case on the record against a lawyer whose only misconduct was in misleading the public in the public square.

The Ghost of Anthony Comstock and the Abortion Wars

Stanford Law visiting professor Joanna L. Grossman and professor Lawrence M. Friedman explain why the Comstock Act, an anti-vice law passed 150 years ago but never removed from the books, has recently become noticed again with Republicans’ renewed efforts to ban abortion nationwide. Professors Grossman and Friedman describe the law and the man behind the law, Anthony Comstock, and they argue that the so-called ghost law should remain dead.

How Much Is Enough?

Cornell professor Joseph Margulies argues that the only condition that justifies a prison sentence longer than 20 years is an ongoing threat to public safety, to be determined after that sentence has been served. Professor Margulies points out that, contrary to what many people think, individuals convicted of some of the most serious offenses, and who have already served exceptionally long terms, are often the people who are most apt to be valuable and contributing members of society, and who are best prepared for freedom.

More on Ranking Law Schools, and What Can be Learned from Ranking of Sports Teams: Part Two in a Series

In this second in a series of columns about law school rankings, Illinois Law dean Vikram David Amar explains how rankings for law (and medical) schools can benefit from innovations in college sports rankings. Specifically, Dean Amar suggests greater reliance on numerical, analytic metrics to help with assessments, less frequent updating of the rankings, and enabling consumers to adjust the weight of various ranking factors according to what they value in a school.

When Will Oklahoma Abolish the Death Penalty?

Amherst professor Austin Sarat comments on the recent changes in Oklahoma that suggest, perhaps surprisingly, that the state may be poised to abolish the death penalty. Professor Sarat observes that the 2022 election results, the objections of religious leaders, doubts among conservative politicians, and declining public support may signal a tide change in a state that has long been a leader in using death as a punishment.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at both Osgoode Hall... 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 Government at Cornell University. He was Counsel of Record in... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more