Verdict

Former federal prosecutor Dennis Aftergut argues that in deciding whether Mark Meadows’s case should be tried in federal court, the judge should apply a “totality of the circumstances” test—which would result in the case being remanded to state court. Mr. Aftergut points out that this approach would weigh all of Meadows’s actions, rather than focusing on a single official act, thereby accommodating competing legal and social values.

Cornell Law professor Michael C. Dorf argues that while the recent departure of Stanford’s associate dean for Diversity, Equity, and Inclusion (DEI) is noteworthy, the broader issue is the legal status of diversity initiatives following the recent Supreme Court ruling in Students for Fair Admissions v. President and Fellows of Harvard College. Professor Dorf contends that despite the Court’s skepticism towards race-based affirmative action, DEI offices still have a legitimate role, albeit one that may need to adjust its approaches to promoting diversity and inclusion.

Responding to an article earlier this month in the Wall Street Journal criticizing spending by state universities, UC Davis law professor Vikram David Amar argues that while public universities have indeed increased spending and tuition, the situation is more nuanced than simply blaming administrative bloat or wasteful spending. Professor Amar contends that higher education today offers a qualitatively different product than it did two decades ago, with enhanced services in career planning, mental health, and academic support, among other things, and that these changes, along with external factors like professorial salaries and underfunded pensions, contribute to the rise in costs.

Amherst professor Austin Sarat criticizes Florida Governor Ron DeSantis and Congressman Jim Jordan for decrying the “weaponization” of justice while themselves exerting political pressure to remove duly elected Democratic district attorneys. Professor Sarat warns that such actions undermine the independence of prosecutors and pose a threat to the rule of law, and he cautions voters to be vigilant against this danger in upcoming elections.

Former federal prosecutor Dennis Aftergut comments on the Fulton County indictment process involving Donald Trump and 18 others, including Kenneth Chesebro, who allegedly created the “fake elector” scheme. Mr. Aftergut explains the possible strategies by the prosecutor and defense, focusing on how Chesebro’s now-severed trial could pave the way for other prosecutions in the case, and provides insights into the evidence against him, emphasizing that a conviction in his trial could offer momentum for cases against Trump and other defendants.

Penn professor Marci Hamilton highlights the alarming alignment between Donald Trump and right-leaning evangelicals in undermining the rule of law, suggesting that both view it as an expendable barrier to their goals. Professor Hamilton draws attention to Trump's lawlessness and the evangelicals' belief that their religious convictions should override legal principles, creating a synergy where both groups assist each other, even as Trump faces legal accusations.

Rutgers Law adjunct lecturer David S. Kemp argues that generative artificial intelligence (AI) tools like ChatGPT can effectively complement conventional methods of learning in law school and can push law students (and their instrutors) to think critically and creatively about the future of legal practice. Mr. Kemp points out that generative AI is poised to revolutionize the practice of law and that forward-looking law educators should embrace the technology to best position their students to succeed today and tomorrow.

Amherst professor Austin Sarat describes the deep dissatisfaction and uncertainty surrounding the potential presidential candidates for the 2024 election, with recent polls showing neither Donald Trump nor Joe Biden as favorable choices for many Americans. Highlighting a historic level of pessimism about the country's direction, Professor Sarat warns that the upcoming “hold your nose” election, characterized by choosing the lesser of two evils, may pose a significant threat to the future of the Democratic Party and American democracy as a whole.

Kathryn Robb, executive director of CHILD USAdvocacy, critically observes that Chapter 11 of the U.S. Bankruptcy Code has been misused by entities like Purdue Pharma, Boy Scouts of America, and the Catholic Church to shield themselves from liability, particularly in cases involving the opioid epidemic and child sexual abuse. Ms. Robb calls for Congress and the U.S. Supreme Court to take immediate action to rectify these abuses, with the recent delay in the Purdue Pharma settlement presenting an opportunity for Congress to pass legislative amendments that serve justice and protect victims.

erst professor Austin Sarat comments on the case of Gerald Pizzuto, whom the state of Idaho has sought to execute by lethal injection five times since his 1986 conviction for first-degree murder. Professor Sarat points out that U.S. District Court Judge B. Lynn Winmill, who ruled in Pizzuto’s case, recognized the inherent psychological cruelty of capital punishment, particularly when it involves repeated rescheduling of execution dates.

Professor Neil H. Buchanan, a professor who has accepted a research sabbatical and retirement offer from the University of Florida, explains his decision to leave. He cites Florida’s increasingly hostile stance towards professors and higher education, driven by the state’s Republican Party, as the main cause for his departure, expressing concern over the state’s attacks on tenure, academic freedom, and its enactment of vaguely written laws that could compromise educational integrity, leading to a “brain drain” from the state.

Cornell Law professor Michael C. Dorf responds to a recent Wall Street Journal “puff piece” on U.S. Supreme Court Justice Samuel Alito, arguing that, contrary to the op-ed authors’ assertion, Justice Alito’s purported commitment to textualism is disingenuous and that he finds ways (atextually, if needed) to vote consistently for ideologically conservative outcomes. Professor Dorf refutes Justice Alito’s claim that Congress lacks the authority to impose ethical standards on the Supreme Court, pointing out Congress’s historical role in shaping the Court and the existing ethics regulations that apply to the Justices.

Stanford Law visiting professor Joanna L. Grossman discusses the legal landscape surrounding abortion rights in Texas, tracing its development from the Roe v. Wade decision to recent state laws that severely limit abortion access. Professor Grossman explains how a recent lawsuit challenging the Texas law’s enforcement against physicians whose good-faith judgment determines the pregnant person has an emergent medical condition requiring abortion care demonstrates that abortion bans have changed the way obstetrical care is practiced across the board.

Amherst professor Austin Sarat critiques U.S. Supreme Court Justice Clarence Thomas for his close relationships with conservative billionaires and the luxurious gifts and perks he’s received from them without proper disclosure, as recently reported by ProPublica. Drawing parallels to the case of Justice Abe Fortas, who resigned in the 1960s after a series of ethical missteps, Professor Sarat suggests that the current divisive political climate enables and even rewards ethically questionable behavior among leaders, as long as it aligns with tribal loyalties and partisan allegiances.

Cornell professor Joseph Margulies delves into the paradoxical attitudes society holds towards surveillance: while people criticize the invasion of privacy by the surveillance state, they also endorse and benefit from its capabilities, particularly when it serves a purpose they support. This conundrum is further complicated by the blurred lines between state and private surveillance, the use of publicly available data by companies, and the desire to hold the state accountable through the very means of surveillance.

In light of recent questions regarding the health of U.S. Senate minority leader Mitch McConnell (R-KY), UC Davis law professor Vikram David Amar examines Kentucky’s 2021 statute on filling Senate vacancies, which restricts the governor’s appointment power by requiring a choice from a list provided by the departing senator’s political party. Professor Amar expresses doubt about the law’s constitutionality in light of the Seventeenth Amendment and the historical intent to reduce political party influence in Senate appointments.

In this fourth in a series of columns, Illinois Law professor Lesley M. Wexler explains how the U.S., Ukraine, and Cluster Mine Ban Treaty parties can reinforce norms against cluster munitions use and enhance civilian protections, given the controversial decision of the Biden administration to supply Ukraine with these munitions. Professor Wexler argues that the U.S. and Ukraine should take several steps to bolster their public commitments to keeping civilians safe from cluster munitions including: both joining the Cluster Mine Ban Treaty or negotiating international restriction on high dud rates under the Convention on Certain Conventional Weapons; Ukraine operationalizing its assurances about use, conducting investigations into past unlawful use, and implementing Civilian Casualty Tracking Analysis and Response cells; and the U.S. monitoring and reporting on Ukraine’s compliance, tightening restrictions on the munitions use, and ceasing transferring cluster munitions once conventional artillery becomes more widely available.

Cornell professor Joseph Margulies reflects on two recent high-profile legal events: the indictment of Donald Trump for allegedly subverting democracy and the death sentencing of Robert Bowers for the deadliest antisemitic attack in U.S. history. Professor Margulies suggests that these cases, viewed by many as a triumph for the rule of law, represent societal attempts to protect integral aspects of American identity, with their punishment seen as purging threats to this identity. However, Professor Margulies argues that the law should not be weaponized to decide who belongs in society, as it usurps an authority that rightfully belongs to the people.

Amherst professor Austin Sarat highlights the potential of Special Counsel Jack Smith’s indictment of former President Donald Trump as a teaching resource in civics education, particularly in understanding the intersection of free speech, political lies, and democracy. Professor Sarat argues that the indictment can help clarify First Amendment rights concerning false statements, explain the importance of federalism in the U.S. electoral system, and illustrate the roles of “moral rebels” who stood against potential autocratic behavior, thereby offering crucial insights into America’s political culture and constitutional system.

UC Davis Law professor Vikram David Amar comments on the Loper Bright case the U.S. Supreme Court will be hearing next term, which provides the opportunity for the Court to revisit (and potentially eliminate) the Chevron deference doctrine. Professor Amar points out and analyzes some of the constitutional issues raised by the doctrine.