Amherst professor Austin Sarat points out the obsolescence of the Third Amendment and considers how we should regard that and other constitutional provisions that no longer serve the era in which we live. Professor Sarat argues that the Supreme Court has the unique authority to help the Constitution adapt to changing times, but the fascination of the Court’s current conservative majority with originalism threatens that adaptive capacity.
Cornell Law professor Michael C. Dorf considers whether the Biden administration’s announcement that it would end the COVID states of emergency in May affect pending Supreme Court cases involving immigration policy and student debt forgiveness. Professor Dorf explains why the news is unlikely to affect the outcome of the immigration case and, conversely, why it might affect the student debt forgiveness case.
Cornell Law professor Joseph Margulies comments on the videos released by the City of Memphis documenting the murder of Tyre Nichols by Memphis police officers. Professor Margulies points out that the atrocious conduct captured on video reflects a police culture that encourages brutality and indifference, arguing that if the Memphis Police Department can’t change the culture they’ve created, their officers don’t deserve the badge.
SMU Dedman School of Law professor Joanna L. Grossman comments on the Pregnant Workers Fairness Act, which Congress introduced for the first time in 2012 and which President Biden finally signed into law on December 29, 2022. Professor Grossman explains the gaps in pregnancy discrimination law, the need to better address the realities of pregnant workers, and the ways in which the new law will better meet their needs.
Cornell Law professor Michael C. Dorf comments on the revelation that George Santos, who is scheduled to take the oath of office as a new member of Congress tomorrow, lied about nearly his entire biography. Professor Dorf explains why the First Amendment likely prevents candidates from being held criminally liable for their lies, but he points out other ways we can sanction candidates who blatantly lie to gain office.
Amherst professor Austin Sarat comments on the Massachusetts Supreme Judicial Court’s refusal to recognize a constitutional right to medical aid in dying. Professor Sarat describes the basis of that decision and explains why state courts should recognize that right based on their own state constitutions.
SMU Dedman School of Law professor Joanna L. Grossman comments on the passage of the Respect for Marriage Act, which practically and symbolically enshrines protection for same-sex marriage in federal law. Professor Grossman explains the shameful history of the Defense of Marriage Act (DOMA) and the changes effectuated by the Respect for Marriage Act.
UConn School of Law professor Julia Simon-Kerr comments on a case that squarely presents the question whether the courtroom demeanor and body language of a non-testifying defendant can play a role in the jury’s consideration of guilt or innocence. Professor Simon-Kerr points out that despite research showing no evidence that we can learn much, if anything, about a person’s untruthfulness from nonverbal cues, jurors frequently rely on those factors in deciding the credibility of witnesses and, apparently, even the culpability of non-testifying defendants. She suggests that it although it is unlikely the Supreme Court will agree to hear the case, the case presents the Court with a unique opportunity to begin a long overdue reexamination of the privileged role of demeanor in our system of proof.
Illinois Law dean Vikram David Amar analyzes last week’s oral argument in the Moore v. Harper case before the U.S. Supreme Court, which raises the “Independent State Legislature” (ISL) theory. Dean Amar makes seven key observations, including that a majority of the Court seems poised to reject ISL’s basic textual premise but also a middle group of Justices seem inclined to retain U.S. Supreme Court oversight over state courts on issues of federal elections.
Cornell Law professor Michael C. Dorf explains the options available to the U.S. Supreme Court as it considers 303 Creative LLC v. Elenis, which presents a clash between a Colorado law forbidding places of public accommodation from discriminating based on sexual orientation and a conservative Christian web designer’s objection to creating material that, she says, tacitly expresses approval of same-sex marriage. Professor Dorf points out that the Court could conclude that the case does not implicate free speech at all, but instead it will almost surely rule against Colorado, which could pose a potentially existential threat to anti-discrimination law.
Amherst professor Austin Sarat describes the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization American law’s worst moment of the year. Professor Sarat describes several other runners-up but explains why the Dobbs ultimately earns that distinction.
Illinois Law dean Vikram David Amar and California civil litigator Michael Schaps respond to the apparent view of a Georgia trial court judge that the current Supreme Court cannot retroactively affect the previous status (existence/non-existence) of a constitutional right found by a previous Court. Dean Amar and Mr. Schaps point out the flaws of this view and the absurd outcomes it would lead to if taken to its logical extension.
Cornell Law professor Michael C. Dorf explains the scope and limits of the Respect for Marriage Act (RMA), which would codify a federal right to same-sex marriage. Professor Dorf argues that while the RMA cannot guarantee marriage equality for the long run, for now, it seems like a sensible hedge against an increasingly reactionary Supreme Court.
Illinois Law dean Vikram David Amar continues his discussion of why the “Independent State Legislature” theory is incorrect and counter to the original understanding of the Constitution. Dean Amar points to four key errors the Petitioners in Moore v. Harper make in their filings with the Supreme Court and argues that some of their omissions demonstrate just how non-originalist their theory really is.
Attorney Jon May predicts that within the next six months, former President Donald Trump will be indicted for violating the Espionage Act arising from his possession of classified documents after he left the White House. Mr. May describes some of the challenges that potentially classified evidence poses for both Trump’s defense and for the prosecution.
Harvard Law professor emeritus Laurence H. Tribe comments on a decision by a federal judge in Texas vacating the Biden administration’s loan forgiveness program. Professor Tribe argues that Judge Mark Pittman, a Trump appointee, incorrectly concluded that the court had jurisdiction to review the challenge to the debt relief program and explains why judicial restraint is such a critical part of a constitutional republic.
Illinois Law dean Vikram David Amar explains what Moore v. Harper, the case the U.S. Supreme Court will hear in December involving the so-called “Independent State Legislature” (ISL) theory, tells us about principled originalism. Specifically, Dean Amar argues that to embrace ISL theory would mean flouting George Washington, the first Congress, and the makers of all the early post-ratification state constitutions (to say nothing of the Americans who adopted the Constitution against the backdrop of the Articles of Confederation’s apparent meaning)—indeed the very antithesis of originalism.
Touro Law professors Laura Dooley and Rodger Citron discuss a case in which the U.S. Supreme Court will consider the constitutionality of a state statute authorizing the exercise of general personal jurisdiction over corporations registered to do business in the state. Professors Dooley and Citron argue that the Court will almost certainly declare the state statute violates the due process rights of the defendant corporation, and they explore why that outcome is such a foregone conclusion.
Illinois Law dean Vikram David Amar, professor Jason Mazzone, and Yale College junior Ethan Yan comment on some of the issues created by Ben Sasse’s (R – Nebraska) expected departure from the U.S. Senate. Dean Amar, Professor Mazzone, and Mr. Yan describe the requirements and constraints of Nebraska state law and the U.S. Constitution.
Amherst professor Austin Sarat argues that there should be a constitutional right to counsel throughout the execution process, particularly given the frequency with which serious errors occur during that time. Professor Sarat calls upon courts to recognize that the execution process is a “critical stage” of a criminal proceeding deserving the defendant’s right to legal representation.