Verdict

Cornell Law professor Michael C. Dorf comments on the Supreme Court’s decision in Allen v. Milligan, in which Chief Justice John Roberts, writing for a 5-4 majority of the Court, reaffirming a key precedent that allows Voting Rights Act (VRA) plaintiffs to sue to block legislative redistricting maps that have the effect of diluting minority voting strength. Professor Dorf expresses optimism that this decision might signal that the Chief Justice and Justice Brett Kavanaugh, the only Republican-appointed Justice who joined the majority, are not moving ideologically to the right as radically as their other colleagues on the Court.

UF Levin College of Law professor and economist Neil H. Buchanan suggests a sliver of a possibility that Republicans’ attempt to impose one-party rule on the United States might fail. Professor Buchanan’ points out that Republican presidential hopeful Ron DeSantis’s argument that he, unlike Donald Trump, could hold the presidency for eight years might be the best reason for Republicans in Congress to allow him to lose.

In this first 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 point out that President Biden’s debt ceiling resolution appears to have won the politics of 2023 and 2024 and sidestepped another huge crisis. However, Professors Buchanan and Dorf consider whether these short-term victories will have longer-term costs that prove even more extreme.

Cornell professor Joseph Margulies argues that the debt-ceiling “crisis” was manufactured by politicians and the media and that our nation is structurally induced to preserve and enflame such problems rather than solve them. Professor Margulies suggests that we view hype over alleged crises with skepticism and that we seek to understand the structural forces that drive “crisis-speak” so we can better resist its pull.

Amherst professor Austin Sarat points out that when death penalty abolitionists take up the cause of saving the lives of people accused of mass murder, they need also to keep reminding people that, in the many less notorious cases in which the state seeks death as a punishment, the death penalty continues to legitimize vengeance, intensify racial divisions, promise simple solutions to complex problems, and damage our political and legal institutions.

UNLV Boyd School of Law professor Leslie C. Griffin comments on the recently released report about abuse in the six Roman Catholic Illinois Dioceses. Professor Griffin points out several ways in which the report prioritizes the survivors—a welcome contrast to others who have prioritized the abusers at the expense of the survivors.

Illinois Law Dean Vikram David Amar critiques a recent decision by a federal district judge in Colorado on free speech under the First Amendment of the U.S. Constitution. Dean Amar points out the essential problems with the court’s reasoning and assesses what those errors might mean about the shortcomings of legal education and the legal system.

Amherst professor Austin Sarat reflects on the acceptance speech by Chief Justice John Roberts of the American Law Institute’s Henry Friendly Medal. Professor Sarat argues that the speech demonstrates the Chief Justice’s lack of empathy for litigants whose lives the Court’s decisions affect and a lack of awareness of his own life of privilege.

UF Levin College of Law professor and economist Neil H. Buchanan points out that, if we reach the drop-dead date of the debt ceiling, both options available to President Joe Biden will be unprecedented, destabilizing, and risky. Professor Buchanan argues that Biden’s least bad choice in that situation is to continue to pay the nation’s bills and that doing anything else for the sake of seeming “normal” is more dangerous for the economy and the country.

Cornell professor Joseph Margulies comments on the recent news, reported by the Sentencing Project, that between 2000 (the peak year) and 2020, the number of children detained by the criminal legal system experienced a 77% decline; indeed, the number fell every year between 2000 and 2020. Professor Margulies points out that even while we inevitably construct social meaning from crimes in general, we should celebrate the bare fact of this reduction in juvenile incarceration.

Illinois Law dean Vikram David Amar comments on the debt-ceiling controversy and argues that the left would be well-advised to engage the merits of these political and constitutional questions, rather than invoking the “the other side is unfairly trying to undo things that have already been decided” argument. Dean Amar points out that in fiscal politics and constitutional law, the status quo is not nearly as easy to identify or rigid as some would suppose, and very few decisions are truly immune from reconsideration, despite the principle of stare decisis.

UF Levin College of Law professor and economist Neil H. Buchanan and Cornell Law professor Michael C. Dorf explain the options currently available to President Biden for handling the impending debt ceiling crisis. Professors Buchanan and Dorf argue that while the best option would have been to announce from the outset that the debt ceiling is unconstitutional, the President’s current least bad option is, if the drop-dead date arrives, to continue to pay the nation’s debts notwithstanding the debt ceiling.

Cornell Law Professor Michael C. Dorf comments on the U.S. Supreme Court’s decision last week in National Pork Producers Council (NPPC) v. Ross, in which the Court rejected a challenge by a pork industry trade group to a California law that bans in-state sale of pork unless the pigs were raised in accordance with certain minimum standards for “humane” treatment. Professor Dorf points out that it is unusual for the Supreme Court to acknowledge, as Justice Neil Gorsuch’s lead opinion does, animal welfare as a legitimate moral interest and expresses hope that the decision might pave the way to more substantial reforms of animal cruelty laws and changes in personal consumption choices.

NYU Law Professor Samuel Estreicher comments on a recent decision by the Supreme Court of Illinois holding that the Illinois Biometric Information Privacy Act protections do not apply to union-represented workers because claims under the Privacy Act are preempted by Section 301 of the federal Labor Management Relations Act. Professor Estreicher argues that the court’s decision is in tension with the U.S. Supreme Court’s 1988 decision in Lingle v. Norge Div., Magic Chef, Inc., and its progeny, which provide that adjudication of an employer’s under the CBA does not generally trigger Section 301 preemption.

UF Levin College of Law professor and economist Neil H. Buchanan responds to a recent New York Times op-ed by Professor Michael McConnell that purports to defend congressional Republicans’ posture regarding the debt ceiling. Professor Buchanan argues that Professor McConnell’s entire argument is a strawman, fails to engage with the key points it purports to counter, and provides at most only the most inadequate fig leaf for Republicans’ willingness to endanger people’s livelihoods for political gain.

In this second in a series of columns on the litigation ending in settlement between Fox News and Dominion Voting Systems, Illinois Law professor Jennifer K. Robbennolt, University of Houston Law professor Jessica Bregant, and Illinois Law professor Verity Winship comment on the non-apology Fox made at the end of the case. The authors argue that the Fox/Dominion settlement is a stark example of the multiple audiences for an apology and how the incentives and desires of private parties and public audiences may diverge.

Amherst professor Austin Sarat comments on Justice Clarence Thomas’s dissent from the U.S. Supreme Court’s refusal to dismiss a lawsuit challenging the constitutionality of Alabama’s use of lethal injection as a method of execution. Professor Sarat argues that Justice Thomas has seldom come across a death sentence he wouldn’t uphold or an execution he wouldn’t try to expedite—and his opinion in this case was no exception.

UF Levin College of Law Professor Neil H. Buchanan and Cornell Law Professor Michael C. Dorf point out that if Republicans insist on using the debt ceiling to hold the economy hostage, President Joe Biden will be the one to decide which debts to prioritize. Professors Buchanan and Dorf argue that although the decision of which debts to prioritize should not belong to the President, Republicans give President Biden—or his less virtuous alter-ego “Dark Brandon”—no choice but to decide which debts to pay first, at their own risk.

Illinois Law dean Vikram David Amar comments on California’s SB 403, which proposes to prohibit discrimination on the basis of caste. Dean Amar points out some of the constitutional flaws in the bill and describes some changes that likely need to be made to make the law more constitutionally defensible.

Illinois Law professor Jennifer K. Robbennolt, University of Houston Law professor Jessica Bregant, and Illinois Law professor Verity Winship describe the findings of their study of people’s perceptions of legal settlements generally, and what that means about the Fox/Dominion settlement. The authors point out that the lawsuit ended exactly as most lawsuits do—in settlement—and argue that for all the case’s weighty implications, the public reactions to the settlement are exactly what we would expect.