Analysis and Commentary Posted in 2024-08
The Second Circuit Should Reverse a Misguided “Abortion Pill Reversal” Ruling
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Cornell Law professor Michael C. Dorf discusses a federal judge’s ruling that enjoins New York’s attorney general from enforcing state laws against crisis pregnancy centers promoting “abortion pill reversal” (APR) on First Amendment grounds. Professor Dorf argues that the ruling misunderstands the state’s interest in protecting citizens’ health and safety, asserting that the government should be able to regulate potentially false or dangerous medical claims even when they are made without commercial motive.

2024 Is Shaping Up to Be a “Tough vs. Tougher on Crime” Campaign
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Amherst professor Austin Sarat discusses the unusual dynamics of the 2024 U.S. presidential campaign, particularly focusing on how Vice President Kamala Harris is positioning herself on crime and criminal justice issues. Professor Sarat argues that Harris faces a delicate balancing act of appearing tough on crime to counter Republican attacks while maintaining credibility on criminal justice reform, suggesting she should emphasize crime prevention and address root causes rather than simply adopting traditional “tough-on-crime” rhetoric.

Why Elon Musk’s (and X’s) Lawsuit Against Companies Who Have Stopped Advertising on the X Platform Is Legally Weak
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UC Davis Law professors Vikram David Amar and Ashutosh Bhagwat analyze the antitrust lawsuit filed by X Corp. (formerly Twitter) against the World Federation of Advertisers and other corporations, examining potential legal barriers to the suit under antitrust law and the First Amendment. Professors Amar and Bhagwat argue that X’s lawsuit faces significant challenges, primarily because the alleged boycott likely falls under First Amendment protection similar to that granted in NAACP v. Claiborne Hardware, and because forcing advertisers to advertise on X would constitute compelled speech, which is generally prohibited under recent Supreme Court precedents.

What Is Happening to the Death Penalty in the Heartland Offers Lessons for All of America
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Amherst professor Austin Sarat examines the current state and history of the death penalty in Midwestern states, particularly Kansas, Nebraska, and Wyoming. Professor Sarat argues that growing bipartisan opposition to capital punishment in these traditionally conservative states, based on concerns about costs, effectiveness, and potential wrongful executions, may contribute to a broader national movement toward abolishing the death penalty.

Deciding When to Hold Trump’s Sentencing Hearing Is Not Just a Legal Question
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Amherst professor Austin Sarat discusses the upcoming sentencing of Donald Trump in New York and the challenges faced by Judge Juan Merchan in deciding when to hold the sentencing hearing and what punishment to impose. Professor Sarat argues that Judge Merchan’s decision requires both legal acumen and practical wisdom, as it could have significant political ramifications for the 2024 presidential election, regardless of whether the sentencing is delayed or proceeds as scheduled.

Now Is the Time for Death Penalty Abolitionists to Join the Effort to End Life Without Parole Sentences
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Amherst professor Austin Sarat discusses the use of life without parole (LWOP) sentences in the United States, examining upcoming state supreme court cases challenging these sentences and the historical role of death penalty abolitionists in promoting LWOP as an alternative to capital punishment. Professor Sarat argues that death penalty abolitionists should now reconsider their support for LWOP, recognizing it as another form of “death penalty” and joining efforts to scale back its use, especially given its disproportionate impact on young offenders and people of color.

Americans Should Not Be Afraid to Reform the Supreme Court
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Amherst professor Austin Sarat discusses recent proposals for Supreme Court reform in the United States, including term limits for Justices, ethics rules, and jurisdiction stripping. Professor Sarat argues that such reforms are justified and necessary in light of the Court’s current conservative majority and controversial decisions, emphasizing that court reform has historical precedent and should not be feared despite potential challenges.

Does Informed Consent Alone Mitigate Responsibility: Considering Patient Harm Related to Artificial Intelligence
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Surgeon and bioethicist Charles E. Binkley discusses the ethical implications and potential harms of using artificial intelligence (AI) in healthcare decision-making, particularly focusing on informed consent and physician responsibility. Dr. Binkley argues that patients should be informed when AI is used in their care, and that healthcare providers have a duty not only to inform patients of potential risks but also to mitigate those risks, emphasizing that the use of AI does not absolve physicians of their responsibilities to patients.

Is the Eighth Circuit Ruling the End of the Road for Student Debt Forgiveness?
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Cornell Law professor Michael C. Dorf discusses recent court decisions blocking President Biden’s student debt forgiveness programs, including the Supreme Court’s invalidation of his initial plan and the Eighth Circuit’s ruling against the subsequent SAVE plan. Professor Dorf argues that these decisions reflect a broader assault on administrative power by Republican-appointed judges, leveraging doctrines like the major questions doctrine to hamstring effective regulation, and suggests that the Republican-packed judiciary, rather than the Biden administration, is the true culprit behind the failure of student debt relief efforts.

Missouri Case is a Reminder That America Needs to Face Up to the False Conviction Epidemic in Death Cases
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Amherst professor Austin Sarat discusses the case of Marcellus Williams, a death row inmate in Missouri, and the broader issue of false convictions in capital cases due to unreliable informant testimony. Professor Sarat argues that Williams’s case exemplifies the urgent need for reform in the use of informant testimony in criminal trials, proposing several measures to improve the reliability and transparency of such evidence in order to prevent miscarriages of justice.

South Carolina Contemplates Execution Brutality
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Amherst professor Austin Sarat discusses the South Carolina Supreme Court’s recent decision allowing the state to carry out executions using the electric chair, firing squad, or lethal injection. Professor Sarat criticizes the ruling, arguing that it effectively nullifies constitutional protections against cruel punishment by permitting inhumane methods of execution under the guise of providing inmates with a choice, thus failing the citizens of South Carolina.

Catholic Sexual Abuse in New Jersey: Part II
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In this second part of a discussion of the Catholic sexual abuse in New Jersey, UNLV Boyd School of Law professor Leslie C. Griffin delves deeper into the history of sexual abuse cases against the Catholic Church in New Jersey, focusing on earlier cases, the impact of charitable immunity laws, and recent legal developments including bankruptcy filings and ongoing lawsuits. Professor Griffin highlights the complexities of these cases, including issues of jurisdiction, insurance disputes, and the ongoing struggle for justice, while also noting the significant financial settlements made by the Church and the continuing efforts of survivors and their lawyers to hold the institution accountable for past abuses.

Neil Gorsuch’s Faux Populist Lament
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Amherst professor Austin Sarat discusses Supreme Court Justice Neil Gorsuch’s newly published book Over Ruled: The Human Toll of Too Much Law and his recent public statements criticizing excessive regulation. Professor Sarat argues that despite Gorsuch’s attempts to present himself as a champion of ordinary Americans, his judicial record and conservative stance on federal regulations suggest that his book’s message should be viewed skeptically, as reduced regulation often benefits powerful interests at the expense of workers, the disabled, and environmental protection.

Catholic Sexual Abuse in New Jersey: Part I
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UNLV Boyd School of Law professor Leslie C. Griffin discusses the history and current state of sexual abuse cases against the Catholic Church in New Jersey, focusing on high-profile cases like that of former Cardinal Theodore McCarrick and the impact of recent legislative changes extending the statute of limitations for abuse claims. Professor Griffin details the numerous lawsuits filed during a two-year “lookback window,” the church’s efforts to compensate victims outside of court, and the ongoing struggle for justice and accountability, highlighting the widespread nature of the abuse and the challenges faced by survivors in seeking redress.

New Evidence of Nitrogen Hypoxia’s Brutality Should Lead Alabama to Reconsider Its Next Execution Plan
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Amherst professor Austin Sarat discusses Alabama's plan to execute Alan Lee Miller using nitrogen hypoxia, exploring the method's history, claims of humaneness, and the recent controversial execution of Kenneth Smith using this method. Professor Sarat argues that the gruesome details of Smith's execution expose the brutality of nitrogen hypoxia, contradicting proponents' claims of its safety and humaneness, and calls for Alabama to cancel Miller's execution or for courts to intervene and prevent it.

The Rebirth of a Kind of Birther Politics Shows Trump’s True Colors
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Amherst professor Austin Sarat discusses Donald Trump’s recent comments questioning Vice President Kamala Harris’s racial identity and explores the broader context of racial politics in the United States. Professor Sarat argues that Trump’s remarks are part of a deliberate strategy to stoke racial resentment and fear among white voters, highlighting the stark choice facing Americans in the upcoming election between embracing diversity and inclusivity or endorsing divisive racial politics.

What Is This Thing, Unity? Part II
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Cornell professor Joseph Margulies discusses the recent political developments in the United States, contrasting the Democratic Party’s rapid unity behind Kamala Harris with Donald Trump’s divisive rhetoric, and explores the implications of these different approaches for democracy. Professor Margulies argues that while short-term political unity can be beneficial in times of crisis, a healthy democracy should welcome policy disagreements without resorting to personal attacks, emphasizing the importance of focusing on issues rather than character judgments in political discourse.

Confused Appeals to Democracy, the Surprisingly Strong Harris Candidacy, and a Fair Assessment of Biden
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University of Toronto visiting law professor and economist Neil H. Buchanan discusses the recent political developments in the United States, specifically Joe Biden’s decision to withdraw from the 2024 presidential race and Kamala Harris’s emergence as the likely Democratic nominee. Professor Buchanan argues that while this change has brought optimism to those opposing Trump, it also reveals flaws in arguments about democracy and party processes, criticizes both Republican and Democratic responses to the situation, and calls for a more nuanced view of Biden’s decision to step down.

Meet our Columnists
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor of Law and Former Dean at the University of Illinois College of Law on the Urbana-Champaign campus.... more

Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at the University of Toronto Law school. He is the James J. Freeland Eminent Scholar Chair in Taxation Emeritus at the... 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 Dwight D. Opperman Professor of Law and Director of the Center of Labor and Employment Law and Institute of Judicial Administration at New York University School of Law. He... more

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 and CEO of CHILD USA, a 501(c)(3) nonprofit academic think... 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