Articles Posted in Uncategorized

Middle Tennessee State University professor John R. Vile explains what the Supreme Court’s decision this term in Dobbs v. Jackson Women’s Health Organization implies about the Court’s view of its prior decision in Planned Parenthood v. Casey. Professor Vile argues that it was unlikely a doctrine such as substantive due process could ever adequately resolve such a contentious issue as abortion and predicts that rigid state legislation that makes no exception for cases of rape, incest, and the life of the mother will face similar backlash.

Illinois Law professor Matthew Finkin comments on the Supreme Court’s recent decision in Viking River Cruises v. Moriana, pointing out several issues in the Court’s reasoning and conclusion as to the arbitration questions raised in that case. Professor Finkin argues that the decision incites three lines of inquiry—historical, empirical, and doctrinal—and then begs them, ultimately leaving more questions than it resolves.

Former federal prosecutor Dennis Aftergut comments on yesterday’s first public hearing of the U.S. House’s January 6 Committee. Mr. Aftergut describes four elements of the committee’s opening and the evidence the committee provided in support of element.

Amherst professor Austin Sarat reflects on American law’s worst moment(s) in 2021, noting that this year it was not a single moment but a series of events beginning with the January 6 insurrection. Professor Sarat argues that what followed the insurrection and ratified it demonstrate that Trump and his cronies are lining this country up for an unprecedented constitutional crisis in 2024, and Democrats have done nothing to resist the slow-moving coup.

Cornell Law professor Sherry F. Colb reflects on what the acquittal of Kyle Rittenhouse tells us about domestic violence and society’s expectations based on gender. Professor Colb argues that the law of self-defense, especially as it is developing away from the duty to retreat, demonstrates gender inequality within the criminal justice system by favoring testosterone-fueled vigilantes over the women who choose to survive rather than succumb to domestic violence.

NYU Law professor Samuel Estreicher and 3L Ryan Amelio comment on the unusual move by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) decision to require employee vaccinations for employers with a total of 100 or more employees. Estreicher and Amelio explain why it is unclear whether the Agency has authority to mandate vaccinations and testing.

Steven D. Schwinn, a professor of law at the University of Illinois Chicago John Marshall Law School argues that the Supreme Court’s order last week effectively striking down the COVID-19 eviction moratorium issued by the Centers for Disease Control reflects the Court’s highly partisan approach to executive authority. Professor Schwinn points out that only partisanship can explain why Court upheld the Trump administration’s travel ban in Trump v. Hawaii and struck down the Biden administration’s eviction moratorium.

NYU Law professor Samuel Estreicher and appellate lawyers Rex Heinke and Jessica Weisel comment on a case the U.S. Supreme Court will hear next term that presents the question what role, if any, federal courts should play in facilitating discovery in foreign arbitrations. The authors argue that while the case seems to turn on a simple matter of statutory interpretation, the case may shed new light on how the current Court approaches traditional interpretive tools.

Marci A. Hamilton, a professor at the University of Pennsylvania and one of the country’s leading church-state scholars, argues that the federal Religious Freedom Restoration Act (RFRA) was the first “big lie” in that purported to “restore” case law but actually gave religious actors the right to be above the law. Professor Hamilton notes two bills that have been introduced in Congress that would take measures to carve back RFRA’s destructive reach and which would not, contrary to some claims, threaten true religious liberty.

Cornell law professor Michael C. Dorf argues Trump’s actions during his final months are different from those of past presidents, and particularly dangerous. As Dorf explains, Trump is aiming to do damage for its own sake, whereas other lame-duck presidents have at least sought to advance policy aims in pursuit of some conception of the common good.

NYU law professor Samuel Estreicher and rising 2L Elisabeth H. Campbell argues that a liability shield for companies who follow federal administrative guidance in reopening workplaces during COVID-19 will not lead to significantly less litigation, nor will it help ensure workplaces are safe. Estreicher and Campbell explain why the liability shields being proposed would not preclude protracted litigation.

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on Tuesday’s oral argument before the U.S. Supreme Court in Trump v. Vance, which raises the question of whether the President should be able to shield his tax and financial records from a congressional subpoena. Sarat urges that the Court see through the grandiosity and paranoia of the President’s legal claims, arguing that the future of a government of limited powers and the rule of law hangs in the balance.

In this second of a series of columns, Illinois law dean and professor Vikram David Amar explains how the Arizona legislature has exceeded its power under the Seventeenth Amendment in prescribing how the governor must make a temporary appointment to a vacant US Senate seat. Amar points out that under the most likely reading of the Amendment, state legislatures may empower the governor to make such temporary appointments but may not further participate in the process.

Illinois Law professor Lesley Wexler comments on the possibility that President Donald Trump could receive the 2018 Nobel Peace Prize. Wexler consider the possibility unlikely, but she explains why it’s not so far-fetched as it might seem at first glance.

Illinois Law dean and professor Vikram David Amar comments on the proposal by Tim Draper to split California into several states. Amar highlights some of the legal issues with such a proposal.

Justia columnist, George Washington law professor, and economist Neil Buchanan argues that young people's ire at the Baby Boomers and the state of Social Security is misplaced. He contends that, despite baleful commentary on the state of the Social Security, it will be there for today's young people, unless they choose to dismantle it. Much more worrisome, Buchanan explains, is economic inequality in America, which is affecting both today's young people, and many of the Baby Boomers alike. He also notes that Social Security, while stable, could be further fortified by taxing the non-labor income of especially high earners.

Justia columnist, George Washington law professor, and economist Neil Buchanan comments on the recent IRS scandal, which he contends is better labeled a “non-scandal” limited to low-level mistakes and mid-level crisis mismanagement. He also covers the current state of the IRS, its role in American life, and the reasons its reach has expanded. Buchanan also warns that if we move the IRS out of its current role, we do so at our peril.

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the recent Supreme Court ruling in the Clapper case, which raised the question whether Amnesty International USA and other plaintiffs had standing to go to court to challenge a law passed by Congress in 2008 that permits the federal government to undertake additional surveillance and information-gathering with respect to persons outside the United States. In a 5-4 ruling, the Court held that the plaintiffs lacked standing to challenge that law; Amar explains the reasoning of the majority and that of the dissent, respectively.

Justia columnist and attorney Julie Hilden comments on a case in which an Atlanta teen, Alex Boston, is suing two of her classmates for libel, in connection with an instance of cyberbullying on Facebook. Hilden consider the pros and cons of using libel law to fight cyberbullying; suggests that there may be some weaknesses in Boston's case; and discusses the current legal uncertainty as to whether schools can punish off-campus speech that is related to the school, such as Facebook postings in which one student, or a group of students, bullies another student. With the Supreme Court so far silent on this issue, Boston and her parents invoked libel law, in lieu of a school punishment for the perpetrators. But Hilden questions whether, given the facts of the case, and given libel law's requirements, Boston's case can succeed. Hilden also provides some ideas for other teens who may seek to end the bullying that they suffer—including, if their parents do not support the filing of a lawsuit, and the case is extreme—possibly proceeding on their own with a guardian ad litem.

Justia columnist and Cardozo law professor Marci Hamilton comments on the situation unfolding in Hawaii with respect to the state's laws regarding statute of limitations for child sex abuse. As she explains, Hawaii's House and Senate each unanimously passed a bill that would create a two-year-long window of opportunity for child sex-abuse victims to file civil claims against their abusers, and against those who aided the abusers, even if the former statute of limitations had previously expired; and that would eliminate civil statutes of limitations entirely. But Hamilton – who has worked on the legislation with Sen. Maile Shimabukuro, abuse survivors, and others over the past year – notes that Hawaii governor Neil Abercrombie has issued a statement indicating that he will veto the bill. Hamilton takes strong issue with his reasons for doing so, and contends that he should change his mind.