Verdict

Arbitrator and mediator Barry Winograd comments on the recent decision by the U.S. Supreme Court in Coinbase v. Bielski, in which the Court held that a litigation stay is required when an interlocutory appeal permitted by Section 16(a) of the Federal Arbitration Act is taken from a federal district court order denying a motion to compel arbitration. Mr. Winograd summarizes the Coinbase decision, shares several thoughts about its reasoning, and considers the decision’s potential effects on arbitration practice.

Amherst professor Austin Sarat points out the hypocrisy of the Supreme Court in proclaiming the Constitution to be “colorblind” with respect to college admissions but turning a blind eye to blatant discrimination in the case of a Black man sentenced to death in Mississippi. Professor Sarat describes the facts of Clark v. Mississippi and argues that by refusing to act, the Supreme Court tacitly condones Mississippi’s blatant flaunting of the Court’s precedent.

Former federal prosecutor Dennis Aftergut highlights two points about the federal district court’s July 4 decision blocking the Biden administration from communicating with social media companies—points which, Mr. Aftergut argues, underscore the decision’s risk of sowing great mistrust in law. Mr. Aftergut contrasts the apparent “judge shopping” that put the case before a Trump-appointed judge with the even-handed approach of Special Counsel Jack Smith, and he points out the opinion’s glaring omission of an especially relevant precedent.

University of Illinois, Urbana-Champaign, history professor emeritus Frederick E. Hoxie reflects on the juxtaposition of the American Independence Day holiday and the prior week’s handful of Supreme Court decisions that usurp the ideal of self-government. Professor Hoxie argues that only by accepting one another and embracing our task as members of a lively democracy can we adopt effective rules for ourselves.

Illinois Law dean Vikram David Amar comments on the U.S. Supreme Court’s decision in Moore v. Harper, in which the Court forcefully repudiated the essence of the so-called “Independent State Legislature” (ISL) theory. Dean Amar describes the apparent evolution of several Justices’ views on ISL theory and explains how that evolution led to the Court’s sound rejection of the theory.

Cornell Law professor Michael C. Dorf contrasts the present Supreme Court with the one Yale Law Professor Alexander Bickel praised in a Harvard Law Review article in 1961. Unlike the Court Bickel described, which manipulated its docket to strategically avoid difficult and divisive issues, Professor Dorf argues that the present Court manipulates its docket to decide those issues—and often without full briefing or oral argument.

In the spirit of American Independence Day, Amherst professor Austin Sarat suggests that we not only celebrate America’s ideals but also reflect on its failings—failings that include its continued use of capital punishment. Professor Sarat reiterates the problems with capital punishment, such as the ineffective and inhumane methods of execution, racial inequities, time on death row, and the fact that most of those we execute are victims of extensive abuse and neglect from childhood or earlier.

Illinois Law professors Lesley Wexler and Jennifer Robbennolt comment on the recent decision by a judge declining to require an apology from the lawyers who submitted a brief with fictitious cases generated by ChatGPT. Professors Wexler and Robbennolt explain why the judge’s reasoning that “a compelled apology is not a sincere apology” assumes that a compelled apology has no value and fails to consider the other purposes apologies serve, such as acknowledgment to victims and affirmation of violated norms.

Illinois Law dean Vikram David Amar and professor Jason Mazzone comment on another free-speech controversy related to a student-invited speaker at the University of Pittsburgh. Dean Amar and Professor Mazzone describe the demand letter sent to Pitt officials by the Alliance Defending Freedom and explain why some of their arguments are on solid legal ground while one is tenuous at best.

Amherst professor Austin Sarat comments on the most recent off-the-Court behavior by Justice Samuel Alito: preemptively responding to a ProPublica report that the Justice had gone on a $100,000 trip paid for by Republican mega-donor Paul Singer. Professor Sarat argues that this behavior is just the latest demonstration of Alito’s “grievance conservatism” and has no place on the highest court in the land.

University of Chicago law professor emeritus Albert W. Alschuler comments on the split between the Third and Eighth Circuits on the question whether some convicted felons have a constitutional right to bear arms. Professor Alschuler describes the two courts’ decisions, as well as the contradictory language from the U.S. Supreme Court, and suggests that the Court is likely to resolve the question in the coming Term.

Illinois Law dean Vikram David Amar and professor Jason Mazzone comment on a recent decision by the U.S. Court of Appeals for the Fourth Circuit involving the admissions policy at a school in Virginia. Dean Amar and Professor Mazzone argue that while it’s not clear whether the U.S. Supreme Court will review this case, the issue the case raises is likely to be one the Court takes up soon.

Former federal prosecutor Dennis Aftergut comments on the “speaking indictment” of Donald Trump and what it means. Mr. Aftergut argues that the indictment illustrates the principle no one is above the law.

Cornell Law professor Michael C. Dorf comments on the so-called “unitary executive theory” and explains why it seems to form the basis for the extreme positions of conservative Justices on the U.S. Supreme Court. Professor Dorf argues that the conservative Justices may prefer to pursue their ideological goal of undercutting regulation via the dubious unitary executive theory rather than originalism, further undercutting the administrative state.

Amherst professor Austin Sarat comments on the recent exoneration of Barry Lee Jones from Arizona’s death row after evidence against him was revealed as “flawed.” Professor Sarat argues that shoddy defense lawyering, junk science, and myopic police work are regular features of America’s death penalty system and that dismantling the death penalty system is the only way to end the epidemic of false convictions.

Cornell professor Joseph Margulies distinguishes between the calls to prosecute officials from the George. W. Bush administration over their war crimes and the present prosecution of Donald Trump. Professor Margulies explains why he opposed prosecution of Bush but supports prosecution of Trump: Bush had the best interests of the country at heart, whereas the same cannot plausibly be said about Trump.

In this second of a series of columns conducting a postmortem on the debt ceiling crisis, UF Levin College of Law professor and economist Neil H. Buchanan and Cornell Law professor Michael C. Dorf explain why the temporary resolution of the debt ceiling crisis may result in an even higher cost when the issue arises again on January 2, 2025. Professors Buchanan and Dorf argue that the debt ceiling statute can only ever operate as a source of leverage for extortionists or, if neither side blinks, as the means of inflicting terrible damage to the country.

Former federal prosecutor Dennis Aftergut comments on five stories you might have missed that inspire continued faith in the functioning of our democracy. Mr. Aftergut suggest that when anti-democratic developments occur, citizens in a free society should never underestimate our ability to get things back on track by flexing our collective, pro-democracy muscle.

Amherst professor Austin Sarat comments on the recent execution of Michael Tisius by the state of Missouri, despite a request by several of the jurors who sentenced him to death in 2010 that his sentence be commuted to life without parole. Professor Sarat points out that the finality and likelihood of errors are but two reasons that any civil and just society should abolish the death penalty.

Former federal prosecutor Dennis Aftergut comments on the recent news that Judge Aileen Cannon has been assigned to the federal grand jury indictment of Donald Trump. Mr. Aftergut explains the possible outcomes if Judge Cannon does not recuse herself from the case and what Special Counsel Jack Smith might have in mind.