In this second of a two-part series of columns discussing a recent incident at a North Carolina high school where a student was suspended for using the term “illegal alien” in class, UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone explore how the dispute might be analyzed applying only the Supreme Court’s seminal decision in Tinker v. Des Moines Independent School District. Professors Amar and Mazzone argue that while schools have some authority to regulate disruptive student speech under Tinker and Hazelwood v. Kuhlmeier, the student’s suspension here likely violated due process because he lacked clear prior notice that using this term, which appears in Supreme Court opinions and federal statutes, was prohibited.
In this first of a two-part series of columns discussing a recent incident at a North Carolina high school where a student was suspended for using the term “illegal alien” in class, UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone explain the relevant First Amendment case law surrounding student speech in public K-12 schools. Professors Amar and Mazzone suggest that under the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier, which allows schools broad authority to regulate student speech that occurs within the curriculum, the school may have been justified in disciplining the student, but they note that there are still some unresolved questions and complexities that they will address in Part II of their analysis.
Amherst professor Austin Sarat discusses House Speaker Mike Johnson’s recent visit to Columbia University, which Professor Sarat argues is part of a broader right-wing attack on universities, particularly those with elite reputations. Professor Sarat explains that Johnson’s visit, which called for the resignation of Columbia’s president due to alleged antisemitism on campus, was a politically motivated stunt designed to appeal to MAGA Republicans, and that universities must band together to defend their independence against such outside political interference.
UC Davis Law professor Vikram David Amar offers advice to law students on how to perform well on law school exams. Professor Amar’s main points include the importance of outlining before writing, addressing all major course topics, answering the specific questions asked, allocating time and space wisely, showing one's work, anticipating counterarguments, writing clearly, differentiating between settled and debatable issues, being concise, and proofreading responses.
Illinois Law professor Lesley M. Wexler discusses Israel’s attack on a World Central Kitchen humanitarian aid convoy in Gaza, the subsequent investigation, and the limited accountability measures taken by Israel in response. Professor Wexler argues that Israel should pursue more serious criminal accountability and undertake a systematic review of its actions during the Israel-Hamas conflict to address concerns about transparency, neutrality, and compliance with the laws of war, particularly regarding the protection of civilians and aid workers.
James F. McHugh, a retired Massachusetts Appeals Court Justice, comments on the American Law Institute (ALI)’s recently released Statement entitled “Ethical Standards for Election Administration,” which seeks to help election administrators understand and agree on basic ethical principles for implementing election laws, in light of the contentious 2020 Presidential Election and concerns about the upcoming November 2024 election. Justice McHugh points out that ALI’s report provides a set of common principles and a shared national vocabulary for ethical election administration, emphasizing adherence to the law, protection of election integrity, transparency, impartiality, personal integrity, ethics, and professional excellence, with the goal of increasing public confidence in the impartial administration of elections.
Cornell Law professor Michael C. Dorf discusses the recent conflict at Columbia University involving student protests, potential antisemitism, and the balance between free speech and protection from harassment on college campuses. Professor Dorf argues that while Title VI of the Civil Rights Act obligates colleges to prevent harassment, free speech should be more strongly protected in public campus spaces, and the sensitivities of observers should hold less weight there compared to other campus settings.
Amherst professor Austin Sarat discusses the history of execution methods in the United States and the recent findings from a Reprieve report showing that lethal injection executions of Black inmates are botched at a much higher rate than those of White inmates. Professor Sarat argues that this racial disparity in botched executions is unsurprising given the pervasive racist stereotypes and unequal treatment of Black bodies throughout American society, from schools to policing to healthcare, and reflects the illusory nature of the quest for a humane execution method.
Touro University, Jacob D. Fuchsberg Law Center, professor Rodger D. Citron reviews Gary Stein’s biography “Justice for Sale: Graft, Greed, and a Crooked Federal Judge in 1930s Gotham,” which tells the story of Martin Manton, a once-prominent federal judge who served on the U.S. Court of Appeals for the Second Circuit but resigned in disgrace in 1939 after being indicted on corruption charges for selling his office. Professor Citron explains that while Manton was a product of the corrupt Tammany Hall political machine era in New York, his misconduct was exceptional in extending to the federal judiciary, and his story serves as an important reminder that federal judges are human and not immune to temptations, underscoring the need for appropriate financial disclosures and oversight to maintain the integrity and authority of the courts.
UC Davis Law professor Vikram David Amar discusses two recent incidents at Stanford Law School and the University of Maryland where student protesters disrupted invited speakers, and he explores the legal and constitutional implications of such disruptions. Professor Amar argues that while protesters have a right to express their dissent, they do not have a constitutional right to “shout down” speakers in a way that prevents the speakers from being heard, and that universities can and should adopt content-neutral policies to prevent such disruptions without violating free speech principles.
NYU Law professor Samuel Estreicher and 2L Samuel Ball discuss the SEC’s new Rule 10D-1, which requires securities exchanges to mandate that listed companies adopt policies to recover erroneously awarded executive compensation in the event of an accounting restatement. Professor Estreicher and Mr. Ball explain how the new rule expands the scope of clawbacks compared to previous regulations and shifts the responsibility for implementing them from the SEC to the companies themselves, with the goal of improving compliance and avoiding potential legal challenges.
Stanford Law visiting professor Joanna L. Grossman and student Dr. Lauren N. Haumesser discuss a recent Arizona Supreme Court ruling that upheld an 1864 law banning nearly all abortions in the state, even in cases of rape or incest, with the only exception being to save the pregnant woman’s life. Professor Grossman and Dr. Haumesser argue that resurrecting this 160-year-old law is absurd and illogical given how much society has changed since then, and that modern Arizonans deserve to have their reproductive rights governed by more recently passed laws, like a 2022 statute banning abortion after 15 weeks, rather than an obsolete law from the 19th century.
Amherst professor Austin Sarat discusses the recent execution of Brian Dorsey by the state of Missouri and explores the question whether executing a rehabilitated prisoner violates the Eighth Amendment’s prohibition on cruel and unusual punishment. Professor Sarat argues that Dorsey’s execution served no legitimate penological purpose because he had been successfully rehabilitated during his time in prison, and therefore his execution amounted to cruel punishment without a justifiable purpose.
UC Davis Law professor Vikram David Amar discusses how the decentralized nature of the U.S. presidential election system allows individual states to have varying rules that can significantly impact the overall outcome, as illustrated by recent examples from Ohio, Nebraska, and the Supreme Court case Texas v. Pennsylvania. Professor Amar argues that the Supreme Court’s decision in Trump v. Anderson, which emphasized the need for uniformity in presidential candidate ballot access across states, was not adequately defended by the Justices, as it failed to address why the Constitution permits such consequential disuniformity in election administration among states.
Guest columnist Gary J. Simson—Macon Chair in Law at Mercer Law School and Professor Emeritus at Cornell Law School—addresses the potential conflict of interest if Justice Clarence Thomas participates in the Trump v. United States case, given his wife’s involvement in efforts to overturn the 2020 presidential election results. Professor Simson argues that Justice Thomas should recuse himself from the case to avoid further damaging public confidence in the Supreme Court, and if he refuses to do so, the other Justices should publicly disassociate themselves from his decision to prioritize the Court’s and the nation’s best interests.
UNLV Boyd School of Law professor Leslie C. Griffin discusses the concept of “cafeteria Catholicism,” where some Catholic politicians, such as President Joe Biden, follow certain elements of their faith while diverging from church teachings on other issues, such as, in Biden’s case, abortion rights, LGBTQ+ equality, and contraception. Professor Griffin argues that cafeteria Catholicism is a good thing, as it allows Catholic politicians to govern based on a pluralistic consensus that protects everyone’s rights and freedoms, rather than imposing specific Catholic doctrines on the entire population.
Cornell professor Joseph Margulies comments on Oklahoma Attorney General Gentner Drummond’s request to the Oklahoma Court of Criminal Appeals to slow down the pace of executions and Judge Gary Lumpkin’s critical response to that request. Professor Margulies suggests that Judge Lumpkin’s hostility towards Drummond’s motion is not merely due to moral insensitivity, but is an ideological attempt to admonish Drummond for perceived deviation from the staunchly pro-death penalty stance expected of his office, exemplifying the “black sheep effect” of harshly policing in-group boundaries.
The opinion piece discusses a recent Indiana appeals court ruling that granted religious exemptions to the state's restrictive abortion law based on Indiana's Religious Freedom Restoration Act (RFRA). The author argues that this ruling could have broader implications, potentially providing a basis in federal constitutional law to challenge abortion restrictions nationwide on the grounds of religious discrimination.
Amherst professor Austin Sarat discusses the recent unprecedented request by Santa Clara County District Attorney Jeff Rosen to resentence all death row inmates from his county, highlighting the critical role prosecutors play as gatekeepers in the death penalty system. Professor Sarat argues that Rosen’s actions, driven by concerns about racial bias and changing attitudes towards capital punishment, serve as an important example for other prosecutors to follow in order to right past wrongs and ensure justice is upheld, regardless of how much time has passed.
Cornell professor Joseph Margulies discusses the issue of bias in the U.S. Intelligence Community (IC) and the need for research into public trust in the IC, particularly in the current “post-truth” era. Professor Margulies argues that while existing research suggests broad public support for the IC, more comprehensive and nuanced research is needed to understand how the current partisan and “post-truth” environment may be eroding trust in the intelligence function, and that the Department of Defense should commission such research to inform its understanding of and response to this issue.
