Articles Posted in Courts and Procedure

Former federal prosecutor comments on recent news that courts have required several far-right television networks to issue statements recanting their false claims of widespread voter fraud in the 2020 presidential election. Mr. Aftergut praises these decisions as demonstrating the role of lawyers and courts in upholding truth and provable facts.

In this second of a series of columns, Illinois Law dean Vikram David Amar and professor Jason Mazzone describe the facts and law giving rise to Berger v. North Carolina State Conference of the NAACP, a North Carolina voter ID case pending before the U.S. Supreme Court. Dean Amar and Professor Mazzone argue that the case highlights the importance of the legal procedure of certification and suggest that if the Court’s decision falls back on the traditional model of singular executive-branch representation embraced by the federal system and that of other states, the North Carolina legislature will have only itself to blame.

Former federal prosecutor Dennis Aftergut points out that Donald Trump’s attempt to avoid being held in contempt of New York court for failing to respond to a document subpoena closely tracks an approach described by Nixon White House aide John Ehrlichman during the Watergate scandal. Mr. Aftergut predicts that New York Attorney General Letitia James is unlikely to fall for that tactic and is sure to go after Trump’s “limited, modified hang-out” to try to avoid accountability and the hand of justice.

In this first of a series of columns, Illinois Law dean Vikram David Amar and professor Jason Mazzone describe the development of the legal procedure of certification of state-law questions—by which federal courts ask a state high court how state law would apply to specific circumstances. Dean Amar and Professor Mazzone explain why this procedure may be particularly helpful in a case currently pending in the U.S. Supreme Court, Berger v. North Carolina State Conference of the NAACP, which shows the downsides to a state’s (North Carolina’s0 unique refusal to accept certified questions.

Cornell Law professor Michael C. Dorf comments on the recent decision by U.S. District Judge Kathryn Kimball Mizelle invalidating the federal mask mandate for travelers. Professor Dorf points out the flaws in Judge Mizelle’s reasoning and argues that her ruling reflects a right-wing ideology that is hostile to government agencies addressing even the most pressing social problems.

Former federal prosecutor Dennis Aftergut comments on three recent Supreme Court decisions in which Chief Justice John Roberts joined the dissent, demonstrating that he does not carry sway in decisions on central issues such as a woman’s right to choose, voting rights, or protecting the environment. Mr. Aftergut points out that how the Justices vote in the upcoming decision in Dobbs v. Jackson Women’s Health Organization will reveal whether the Roberts Court can preserve the core principles of judicial restraint in constitutional adjudication and stare decisis—or whether it is more appropriately called the “McConnell Court.”

Cornell Law professor Michael C. Dorf argues that Chief Justice John Roberts is, perhaps surprisingly, on the left of the current Court partly because of the Court moving far to the right in recent years and partly because of Roberts’s evolution as a jurist. Professor Dorf explores why Roberts has shifted, noting that he seems simply to adhere to a principle that historically liberals, moderates, and conservatives all agreed upon: don’t lie about the law.

NYU Law professor Samuel Estreicher and 2L Andrew Vaccaro comment on a recent decision by the U.S. Court of Appeals for the Second Circuit suggesting that statutory procedural rights are generally waivable by contract outside of arbitration.

Dennis Aftergut, a former federal prosecutor, explains how a recent ruling by a federal judge in Santa Ana, California, helps the House Select Committee investigating the January 6 attack get closer to obtaining emails from former Trump lawyer John Eastman. Mr. Aftergut argues that disclosure of Eastman’s emails would advance the committee’s search for truth, and with it, strengthened hope for preventing another insurrection.

In light of the news of Justice Stephen Breyer’s imminent retirement, Cornell Law professor Michael C. Dorf reflects on Justice Breyer’s career. Professor Dorf observes that Justice Breyer lacks a distinctive legacy largely for two reasons: (1) he was junior to O’Connor, Kennedy, and Ginsburg for their time on the Court together and thus did not get key liberal assignments, and (2) as a pragmatist and compromiser, his reasoning relied more on nuance than on bold strokes.

Cornell law professor Michael C. Dorf asks whether we can trust that Justice Neil Gorsuch—who was the sole Justice not to wear a mask during oral arguments last week—was unbiased in considering two challenges to the Biden administration’s vaccine mandates. Professor Dorf argues that Justice Gorsuch’s refusal to wear a mask indicates that he either does not believe the public health guidance or thinks he should be free to decide for himself whether to follow it—both of which possibilities undercut public confidence in the basis for his votes in the vaccine cases.

Cornell law professor Sherry F. Colb praises Ruth Marcus’s 2019 book, Supreme Ambition, about Brett Kavanaugh’s rise to power and the events that took place after Dr. Christine Blasey Ford accused him of sexual assault. Professor Colb notes that the book is engaging even for someone who closely followed the events as they occurred, and reflects on the trauma of living (and reliving) through that disillusioning period in our nation’s recent history.

Texas law professor Jeffrey Abramson comments on a recent development in Ghislaine Maxwell’s jury trial for sex trafficking young girls to Jeffrey Epstein. Professor Abramson considers whether and to what extent Juror 50’s failure to disclose that he had been the victim of child sex abuse may upset the verdicts.

Cornell law professor Michael C. Dorf explains why the concern expressed by Justice Sonia Sotomayor in her dissent in the Texas abortion case (Whole Woman’s Health v. Jackson) that other states will follow Texas’s example and employ “private bounty hunters” is well founded and legitimate.

Amherst professor Austin Sarat explains why the not guilty verdict of Kyle Rittenhouse sends a powerful message condoning vigilantism, particularly when coupled with the Texas law that authorizes private enforcement of its extreme prohibitions on abortion. Professor Sarat argues that vigilantism, including these instances, has historically taken root in times of social, cultural, and political transition, and in places with high levels of cultural diversity and institutional instability

Cornell Law professor Michael C. Dorf explores the meaning of a question Justice Clarence Thomas asked during the oral argument in New. York State Rifle. & Pistol Association v. Bruen about the interpretation of the Second Amendment: “should we look at the founding, or should we look at the time of the adoption of the Fourteenth Amendment, which then, of course, applies it to the states?” Professor Dorf argues that the question exposes a weakness of Justice Thomas’s originalist philosophy and affirms what we already know about arguments rooted in original meaning: they typically serve a rhetorical function, and Justices invoke them to justify decisions taken on other, ideological, grounds.

Cornell Law professor Michael C. Dorf argues that even the procedural issues presented in the federal government’s challenge to Texas’s restrictive abortion law are high stakes. Professor Dorf argues that the procedural question fundamentally asks whether the U.S. Supreme Court will permit state-sanctioned lawlessness.

Texas law professor Jeffrey Abramson explains why the trial judge in the case against the three men who chased and shot to death Ahmaud Arbery should not commit the same mistake that occurred in the Boston Marathon trial—speeding up jury selection to convict obviously guilty defendants, only to have the sentence thrown out on appeal. Professor Abramson argues that while judges may understandably feel frustrated during jury selection in high-profile cases, taking shortcuts during jury selection risks forcing victims, witnesses, and the community to live through traumatic events twice.

Amherst professor Austin Sarat and former federal prosecutor Dennis Aftergut comment on the U.S. Supreme Court’s increasing tendency to decide high-profile and far-reaching cases via its “shadow docket”—without oral argument or full briefing. Professor Sarat and Mr. Aftergut point out that recent remarks by Justice Samuel Alito reinforce the view that the Court has a partisan agenda that is increasingly out of step with the beliefs and values of the American people.

Cornell Law professor Michael C. Dorf discusses an often overlooked procedural aspect related to Texas’s extreme anti-abortion law that could result in “zombie” laws taking effect in every other red state. Professor Dorf argues that there are several reasons to hope that a state scheme to retroactively enforce zombie abortion laws would fail, even if the Supreme Court curtails or eliminates the abortion right itself, not the least of which is that retroactive application of zombie laws is fundamentally unfair.