Articles Posted in Courts and Procedure

Penn professor Marci Hamilton and UNLV Boyd School of Law professor Leslie C. Griffin explain how six conservative Catholics were able to be on the U.S. Supreme Court at the same time. Professors Hamilton and Griffin describe how 1970s and 1980s laid the groundwork for today’s conservative Catholic Court and argue that this group is making extraordinary progress toward making the United States a Catholic theocracy.

Illinois Law Dean Vikram David Amar and Professor Jason Mazzone argue that, in light of the North Carolina Supreme Court’s “switcheroo” regarding partisan gerrymandering, the U.S. Supreme Court should immediately grant certiorari in Huffman v. Neiman to resolve the question of “Independent State Legislature (ISL) theory. Dean Amar and Professor Mazzone point out that the intense litigation pressure of today’s presidential elections and the shaky stature of the present Supreme Court together strongly support the Court acting quickly to resolve this pressing issue.

Criminal defense attorney and former federal prosecutor Jon May discusses the rules regarding televising high-profile trials and calls for the trials of former President Donald Trump to be televised in the interest of transparency. Mr. May argues that courts have adequate procedural controls to ensure jurors and the judicial process are sufficiently protected and that televising the trials will allow anyone, anywhere in the country or the world, to see the truth for themselves.

In this second of a series of columns in response to the Stanford Law School controversy involving disruption of a federal judge’s speech, Illinois Law dean Vikram David Amar and professor Jason Mazzone offer additional thoughts about how to design a training session about the freedom of speech and norms of the legal profession should include. Specifically, Dean Amar and Professor Mazzone discuss (1) when and how educational institutions should themselves speak, (2) the best ways to register disagreement with offensive speakers and messages, and (3) what schools should do about students who say they feel genuinely harmed or unsafe when certain kinds of speakers are present.

UNLV Boyd School of Law professor Leslie C. Griffin comments on the Attorney General’s Report on Child Sexual Abuse in the Archdiocese of Baltimore. Professor Griffin explains why statute of limitations reform is so important for victims to obtain justice.

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.

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.

Amherst professor Austin Sarat comments on the many attempts by South Carolina to resume executions in that state. Professor Sarat describes the recent history of capital punishment in that state and notes that a recent decision by the South Carolina supreme court put on hold a case involving death row inmates’ challenge to the state’s attempt to use the electric chair and the firing squad.

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.

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.

Former federal prosecutor Dennis Aftergut describes three pieces of news from Tuesday’s elections that Americans who value the Constitution should celebrate. Specifically, Mr. Aftergut highlights the defeat of key state gubernatorial election deniers, the continued confirmation of federal court judges, and the affirmation by voters of their faith in the evidence-based work that courts do.

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.

Former federal prosecutor Dennis Aftergut explains the stakes of the upcoming election with respect to the shape and legitimacy of the federal courts. Mr. Aftergut points to numerous recent examples of federal district courts and courts of appeals fulfilling their role as factfinders and seekers of truth amid a country awash in election lies and conspiracy theories.

Cornell Law professor Michael C. Dorf argues that the U.S. Supreme Court’s recent cases demonstrate that the Supreme Court’s self-professed originalists are acting in bad faith, knowing that professed originalism is no more than a rhetorical envelope they can stuff with their conservative policy views. Professor Dorf explains why the Court’s new test of “text, history, and tradition” is unjust, insincere, and destabilizing.

Illinois Law dean Vikram David Amar and professor Jason Mazzone comment on recent comments by U.S. Supreme Court Justice Elena Kagan expressing reservations about doctrinal changes attributable to the arrival of new Justices. Dean Amar and Professor Mazzone argue that new Justices have played an important and generally positive role in advancing the constitutional landscape.

Barry Winograd proposes a four-step plan to restore the legitimacy of the U.S. Supreme Court, which is currently facing a serious public relations problem. Mr. Winograd calls upon the Court itself to act—rather than waiting for the Executive or the Legislative branch—by: (1) providing live and orderly audio transmission of oral arguments, (2) adopting an enforceable code of ethics binding on all Justices, (3) establishing consistent standards limiting use of the Court’s “shadow docket,” and (4) establishing term limits for the Justices.

Cornell Law professor Michael C. Dorf comments on the possible significance of the Supreme Court’s decision to divide, rather than consolidate, argument in the affirmative action cases it will be deciding next term. Professor Dorf suggests the decision would allow Justice Ketanji Brown Jackson to participate in one of the cases and could also allow the Court to attend to at least two important factual and legal differences between the two cases.

Amherst professor Austin Sarat comments on the clemency petition filed by Oklahoma death-row inmate James Coddington. Professor Sarat argues that, though unlikely to succeed based on Oklahoma’s history, Coddington’s petition offers the state the chance to revive a tradition of recognizing rehabilitation and redemption for people on death row.

Touro Law professor Rodger D. Citron argues that just as Roe v. Wade is the representative case of Justice Harry Blackmun’s tenure on the Supreme Court, so too will Dobbs v. Jackson Women’s Health Organization become the emblematic decision of its author, Justice Samuel Alito, Jr. Professor Citron analyzes the differences between the two decisions and the Justices who authored them, and what those differences mean about the Court that decided each of those cases.

Illinois Law dean Vikram David Amar observes that Justice Brett Kavanaugh is emerging as a centrist perspective in key cases, including one expanding gun rights (New York State Rifle & Pistol Association v. Bruen) and one repudiating abortion rights (Dobbs v. Jackson Women’s Health Organization). Dean Amar points out that although Justice Kavanaugh voted with the majority in both cases, he added a narrower gloss via a concurring opinion and was the only Justice to do so in both cases.