Articles Posted in Courts and Procedure

Cornell University law professor Sherry F. Colb considers the arguments on both sides of a difficult question currently before the Supreme Court—whether a defendant is entitled to use juror testimony to impeach a verdict based on racial bias, notwithstanding a contrary rule of evidence. Colb describes the facts leading up to the case and discusses the jurisprudence that will most likely affect the justices’ ultimate decision.

Marci A. Hamilton, a Fox Distinguished Scholar in the Program for Research on Religion at the University of Pennsylvania, explains how federal and state law interact to block survivors of child sex abuse from justice. As Hamilton explains, extending statutes of limitations for bringing abuse claims, or eliminating them altogether, is only one (albeit critically important) step state legislators must take toward helping survivors get the justice they deserve.

University of Illinois Law dean and law professor Vikram David Amar comments on a case in which the Supreme Court heard oral arguments this week. In that case—Manuel v. Joliet—the Court will consider whether an individual’s Fourth Amendment right against unreasonable seizure continues after an indictment has issued, thereby allowing a malicious prosecution claim based on the Fourth Amendment. Amar argues that the case highlights some unusual features of Supreme Court practice, as well as some important aspects of constitutional law.

Cornell University law professor Michael C. Dorf explains what can be deduced about the Supreme Court's future, even before the 2016 US presidential election. Dorf references the role that the Court plays in American public life while also offering notable examples of areas where the Court has little to no say. Additionally, Dorf reminds readers that many more cases are decided unanimously than by a single vote and that it is difficult to predict future ideological divisions among justices, regardless of whether they were nominated by a Republican or Democratic president.

Illinois Law dean and professor Vikram David Amar and U.C. Davis Law professor Courtney Joslin discuss a recent decision by a federal district court in Texas issuing a nationwide order regarding bathroom access for transgender students. Amar and Joslin explain why the order almost certainly oversteps that court’s authority without providing any reasons or analysis to justify its overbroad relief.

University of Illinois dean and law professor Vikram David Amar responds to a law review article by University of Illinois law professor Al Alschuler criticizing the Seventh Circuit, and specifically judge Frank Easterbrook, for what Alschuler views as judicial wrongdoing. Rather than comment on the validity of Professor Alschuler’s allegations, Amar argues that Alschuler’s article highlights the need for greater attention to be paid to the integrity and validity of U.S. courts of appeals.

Cornell University law professor Michael C. Dorf comments on Justice Stephen Breyer’s use of a “courtesy fifth vote” to stay lower court rulings that would have allowed a trans student to use the restroom corresponding to his gender identity. Dorf explains the origin and history of the “courtesy” vote in the U.S. Supreme Court and argues that Justice Breyer’s attempt to invoke and expand it is inappropriate in this particular context.

Ronald Rotunda, law professor at Chapman University, Fowler School of Law, comments on a concurring opinion by Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit criticizing other judges for using legal terms of art. Rotunda argues that Judge Posner’s criticism makes little sense and is inconsistent with his own prior written opinions.

Cornell University law professor Michael C. Dorf comments on the procedural issues the U.S. Supreme Court recently addressed in the Texas abortion case, Whole Woman’s Health v. Hellerstedt. Dorf explains why the majority’s reasoning on the procedural issues is reasonable (and in his view, correct), notwithstanding the criticism by the dissent.

John W. Dean, former counsel to President Nixon, continues his discussion of the federal lawsuit against Trump University. As Dean points out, Trump’s attacks on Judge Gonzalo Curiel drew public attention to this lawsuit and may further harm his presidential bid if his confidential and video depositions are released, which Dean argues is likely.

Cornell University law professor Michael Dorf discusses a recent unanimous decision by the U.S. Supreme Court that illustrates the lasting impact Justice Scalia had on the Court’s approach to statutory interpretation. Dorf describes the shift from purposivism to textually constrained purposivism over the past half century, and explains how they differ from the textualism Justice Scalia espoused.

Illinois Law dean and professor Vikram David Amar discusses a challenge to the Affordable Care Act (popularly known as Obamacare) that recently succeeded in a lower federal court. That challenge, brought by the U.S. House of Representatives, raises the threshold issue whether the House can sue the president to vindicate their legislative powers. Amar explains the few notable times the Supreme Court has considered whether legislators or legislatures could sue the executive branch, and he compares and contrasts those cases with the present challenge.

Cornell University law professor Michael C. Dorf comments on the recent decision by the U.S. Supreme Court in Spokeo, Inc. v. Robins, in which the Court unremarkably affirmed its position that a plaintiff in federal court must have suffered (or be in danger of imminently suffering) a “concrete and particularized injury.” Dorf explains why, in cases such as Spokeo that involve one private party suing another, the Court should abandon the concreteness requirement of judicial standing.

Igor De Lazari, Antonio Sepulveda, and Carlos Bolonha discuss a recent decision by the Brazilian Supreme Court affecting presidential impeachment procedures. The authors point out that the United States and Brazil have similar constitutional origins of impeachment proceedings but that the two countries diverge in interpreting and applying those provisions.

Cornell University law professor Michael Dorf comments on a recent unusual order by the U.S. Supreme Court asking for supplemental briefing from the parties to the latest religious challenge to Obamacare. In contrast with other commentators who have described the order as “puzzling” or “baffling,” Dorf explains how the Court’s order resembles something federal district courts do on a routine basis: facilitate settlement of the dispute.

Vikram David Amar, law professor and dean at Illinois Law, and Michael Schaps, a California civil litigation attorney, critique a recent decision by the U.S. Court of Appeals for the Ninth Circuit considering whether and when a government physician can take into account a patient’s race. Amar and Schaps argue that the court’s analysis is internally consistent and legally flawed, as well.

Guest columnists Igor De Lazari, Antonio Sepulveda, and Henrique Rangel comment on a recent ruling by the Brazilian Supreme Court that criminal sentences may be enforced after a challengeable appellate court decision—a ruling the authors argue departs from the clear meaning of article 5, section LVII of the Brazilian Constitution. De Lazari, Sepulveda, and Rangel suggest that the ruling was based on strategic motivations by the justices, rather than purely on interpretations of the law.

Illinois Law dean and professor Vikram David Amar describes some of the risks Senate Republicans will face if they refuse to process any Supreme Court nominee that President Obama sends them, as they have claimed they would. Among these risks, Amar argues, are the possibility that a President Hillary Clinton might appoint Obama to the Supreme Court, that the Democrats could take over the Senate and approve a nominee that a Republican-controlled Senate would not have approved, or even that Justices Breyer and Ginsburg could retire under a Democrat-controlled Senate, giving President Obama three places on the Court to fill with liberal justices.

Cornell University law professor Michael Dorf explains why Republicans’ claims that President Obama lacks democratic legitimacy in appointing a successor to the late Justice Antonin Scalia. Dorf points out that the reasons offered thus far for refusing to confirm an Obama nominee seem to imply that originalism/formalism can be validated or invalidated by popular approval, even absent a constitutional amendment.

Vikram David Amar—dean and law professor at the University of Illinois College of Law—comments on a summary reversal by the U.S. Supreme Court of a decision by the Idaho Supreme Court. While Amar agrees with the Court that the Idaho court erred in reaching its decision, but he argues that the Idaho jurists were not guilty of the particular stupidity or defiance the Supreme Court imputed to them.