Verdict

UF Levin College of Law professor and economist Neil H. Buchanan offers yet another illustration of why we need not worry about the national debt—the biggest businesses do it. Professor Buchanan points out that nearly every Fortune 500 company carries debt because doing so is good financial management, and if our country were to be running a surplus, that would mean that the government is collecting more in taxes than it needs to cover current spending.

Illinois Law dean Vikram David Amar rebuts an argument by Professor Will Baude and Michael McConnell regarding the so-called “Independent State Legislature” theory, which is being invoked by Republican elected legislators in North Carolina in a case currently before the U.S. Supreme Court. Dean Amar explains why the best understanding of the term “legislature” as used in Articles I and II of the U.S. Constitution to describe logistics of federal election logistics is “lawmaking system,” rather than a specific entity or body of persons.

Amherst professor Austin Sarat comments on the case of Kenneth Smith, whom Alabama plans to execute by lethal injection on November 17 based on a judge’s decision overriding a jury’s determination that he be sentenced to life in prison rather than death. Professor Sarat explains why such judicial override cases are so unjust, particularly given that Alabama has repealed judicial override (but not retroactively).

In this first of a two-part series of columns responding to a front-page article covering “non-news” about the national debt, UF Levin College of Law professor and economist Neil H. Buchanan responds to the only substantive claim the article raises. Specifically, Professor Buchanan debunks their claim that higher interest rates will create hyperinflation while the bond market melts down.

Cornell law professor Michael C. Dorf comments on the oral argument in National Pork Producers Council (NPPC) v. Ross, in which the U.S. Supreme Court is considering whether California’s Proposition 12 violates the dormant Commerce Clause. Professor Dorf observes that based on their questioning, the Justices are concerned about the case’s implications for other types of regulations based on a state’s moral interests and may seek a procedural “out” to avoid deciding the difficult question.

In this first of a two-part series of columns responding to a front-page article covering “non-news” about the national debt, UF Levin College of Law professor and economist Neil H. Buchanan explains how the reporters misleadingly frame a familiar (and wrong) anti-debt argument. Professor Buchanan argues that the reporters highlight an arbitrary “milestone” and inexplicably assign significance to an unremarkable and all but inevitable fact.

UNLV Boyd School of Law professor Leslie C. Griffin comments on a recently published book by Slate’s Dahlia Lithwick explaining the magic that women bring to law and the courts. Professor Griffin reviews Lithwick’s stories about extraordinary women and relates some of her own, as well.

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.

UF Levin College of Law professor and economist Neil H. Buchanan points out that contrary to claims by the Republican Party over the past forty years or so, the Declaration of Independence called for more government and more taxes. Professor Buchanan describes the historical context of the Declaration and argues that taxes are necessary if we want to give Americans the best kind of future that we can possibly create.

Cornell Law professor Michael C. Dorf explains how Congress can (and argues that it should) protect affirmative action in private colleges and universities in light of the supermajority of the Supreme Court that seems hostile to affirmative action. Professor Dorf points out that even if his suggestion seems far-fetched in the current political climate, urgent calls for action now can effectively arm advocates to effect change when they are better positioned to do so in the future.

Amherst professor Austin Sarat comments on Alabama’s recent aborted execution of Alan Miller. Professor Sarat describes how the U.S. Supreme Court allowed Miller’s execution to go forward despite a serious dispute about whether Miller submitted a form electing an execution method other than lethal injection.

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.

Amherst professor Austin Sarat comments on the ongoing sentencing trial of Nikolas Cruz, who in 2018 murdered fourteen students and three staff members at Marjory Stoneman Douglas High School in Parkland, Florida. Professor Sarat explains the difficulty and complexity of having to decide what punishment an offender deserves—let alone someone guilty of perpetrating such an atrocity—particularly when it is a question of capital punishment or life in prison without the possibility of parole.

Amherst professor Austin Sarat comments on Senator Lindsay Graham’s proposed national 15-week abortion ban. Professor Sarat points out that the proposed bill contradicts his—and other anti-abortion Republicans, including Supreme Court Justices who voted to overturn Roe v. Wade—claim that the question of abortion should be decided by each state legislature.

Illinois Law dean Vikram David Amar and professor Jason Mazzone consider some possible explanations for the ever-decreasing number of applicants for tenured/tenure-track faculty among law schools. Dean Amar and Professor Mazzone propose five possible reasons but point out that whatever the true reason(s), the apparent decline in the demand among talented new legal minds for law-teaching jobs should be a topic of discussion and concern.

Cornell Law professor Michael C. Dorf comments on a recent decision by a federal district judge in Texas holding that a for-profit corporation was entitled to an exception from the legal obligation to provide employees with health insurance covering pre-exposure prophylaxis (PrEP), which protections against infection with HIV/AIDS. Professor Dorf explains the absurdity of the court’s conclusion, which is based on an extension of the Supreme Court’s dubious logic in Burwell v. Hobby Lobby.

Illinois Law dean Vikram David Amar and professor Jason Mazzone respond to several points about originalism made by Berkeley Law Dean Erwin Chemerinsky in a recent article published in The Atlantic. Dean Amar and Professor Mazzone explain why three claims in particular—that originalism is an “obscure legal theory” only a few decades old, that judicial review in the federal courts is anti-originalist, and that accurately determining original meaning is “impossible.”

Amherst professor Austin Sarat comments on a recent report by the advocacy group, the Legal Defense Fund, noting that the total number of people on death row is 3.6% lower than it was a year ago, and 35% lower than it was in 2001 when the death row population was at its peak. However, Professor Sarat highlights the inhumanity of allowing even this reduced number of people—indeed, anyone—to languish for years or decades on death row.

Amherst professor Austin Sarat praises President Biden’s speech last Thursday as a much-needed reminder that Americans should settle their differences through voting not violence. Professor Sarat points out that today’s threat of political violence comes overwhelmingly from the political right, not the left, and from people who are not “lone wolves” but part of a broader community that echoes their violent ideas.

In light of the advent of a new academic year, Illinois Law dean Vikram David Amar offers twelve pieces of advice for incoming law students.