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.

The Inadequate “Adequate State Law Ground” Doctrine

Cornell Law professor Michael C. Dorf comments on the U.S. Supreme Court’s decision last week in Cruz v. Arizona, in which a 5-4 majority of the Court delivered a rare victory to a capital defendant. Professor Dorf describes the circuitous path Cruz’s case took and how it highlights an inadequacy in the standard for viewing the “adequacy” of state law grounds for denying federal judicial intervention.

Arizona Case May Change the National Conversation About Race and Capital Punishment

Amherst professor Austin Sarat comments on two cases currently working their way through the Arizona court system, in which defense lawyers from the Capital Unit of the Maricopa County Office of the Public Defender are raising innovative arguments based on the systemic racism in all aspects of American life. Professor Sarat argues that these carefully crafted and extensively documented motions call on judges to confront the reality of America’s racist past and continuing institutional racism before allowing the government to carry out any more “legal lynchings.”

Alabama’s Latest Steps to Use Nitrogen Hypoxia Recapitulate the Failed Promise of Humane Execution

Amherst professor Austin Sarat comments on recent news that Arkansas was “close” to completing the protocol needed to carry out executions by nitrogen hypoxia. Professor Sarat points out that nearly every method of execution was touted as “humane” when it was first introduced, but as history has proven time and time again, there is no such thing as a foolproof or humane execution.

The Hardest Question

Cornell professor of government Joseph Margulies describes the conundrum of reconciling the fact that prison sentences over 20 years are generally pointlessly cruel and unjust with the fury we feel against those who commit senseless mass murders. In particular Professor Margulies points to a new report by The Sentencing Project in support of their longstanding campaign to reduce the maximum prison sentence in the United States to 20 years, released on the same day that Erie County, New York, Judge Susan Eagan sentenced Buffalo shooter Payton Gendron to ten concurrent life sentences plus an additional 25 years to be served consecutively.

Donald Trump Wants to Use the Firing Squad, Mass Executions, and Videos to Turn Executions Into Reality TV

Amherst professor Austin Sarat comments on recent reporting that Donald Trump wants to use the firing squad, mass executions, and videos to heighten the drama of capital punishment. Professor Sarat argues that what Trump says about executions reveals the depth of his fascination with ghoulish things and that his latest death penalty musings offer a frightening reminder of the cruelty he would unleash if he is returned to the Oval Office.

For Any Good to Come of It, We Must Judge the Murder of Tyre Nichols in a Forgiving Spirit

In this fifth column in a series about the murder of Tyre Nichols by Memphis police officers, Cornell professor of government Joseph Margulies argues that, for any good to come of Nichols’s death, we must judge his killers in a forgiving spirit. Professor Margulies explains what it means to judge in a forgiving spirit: to assess the actions of another anchored in the unshakeable belief that those who have done wrong are nonetheless one of us.

What’s the Difference Between Spying by Balloon Versus by Satellite?

In light of recent news that the U.S. shot down a Chinese surveillance balloon, Cornell Law professor Michael C. Dorf explains the differences between spying by ballon and spying by satellite and explores some of the murky legal areas with respect to sovereign airspace, outer space, and military uses of both. Professor Dorf points out that modern satellites can capture remarkably clear images of Earthbound sites, but a comparably equipped surveillance balloon, in virtue of being ten or more times closer to the Earth’s surface, can necessarily capture even greater detail.

How to Think About Race in the Murder of Tyre Nichols

Cornell Law professor Joseph Margulies points out that the murder of Tyre Nichols challenges the oversimplified conception of authority and race that prevails in this country. Drawing upon the language of historian Robin Kelley, Professor Margulies argues that police violence is the end result of a racialized processnot merely an expression of anti-Black racism by white police officers.

Meet our Columnists
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois College of Law on the Urbana-Champaign campus. Immediately prior to taking the position at Illinois... more

Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar Chair in Taxation at the University of Florida's Levin College of Law. His research addresses economic... more

John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Before becoming White House counsel at age thirty-one, he was the chief minority counsel to the... more

Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and six books on constitutional... more

Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment Law and Co-Director, Institute of Judicial Administration, NYU School of Law.

Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas Boyd School of Law. Prof. Griffin, who teaches constitutional law and bioethics, is known for... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law and is currently serving as the Herman Phleger Visiting Professor at Stanford Law School. ... more

Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of Pennsylvania. She is also the founder, CEO, and Academic Director of CHILD USA, a 501(c)(3)... more

Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in Geren v. Omar... more

Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.Professor Sarat founded both Amherst College’s Department of Law,... more

Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and Professor of Constitutional Law Emeritus at Harvard Law School, where he has taught since 1968. Born in... more

Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Wexler was a Professor of Law at Florida State University,... more