Verdict

In light of the approaching one-year anniversary of the January 6 Capitol Insurrection, Cornell law professor Michael C. Dorf argues that the next assault on American democracy could come from within the Capitol and other institutions of American democracy. Professor Dorf points out that the phrase “political violence” is an oxymoron in the context of a democracy; to practice democratic politics is to accept a common set of ground rules for resolving policy disputes peacefully, and when the loser of an election uses violence to try to change the result, democratic politics ceases functioning.

Kathryn Robb, executive director of CHILD USAdvocacy, explains how and why child sexual abuse is more insidious and long-lasting than “typical” civil wrongs recognized by law. Robb points out that while survivors of child sexual abuse may lack the physical injuries that the law and jurors often look for, they carry deeper wounds that affect their entire bodies and minds well into adulthood.

Cornell Law professor Joseph Margulies argues that prisons increase rather than decrease the likelihood that a person will find himself back in prison because the scarcity on the inside of nearly everything valuable requires illicit behavior and rewards violence. Professor Margulies observes that scarcity of essential goods in prison, such as food, medical care, contact with loved ones, etc., all but demands active participation in ongoing criminality and encourages prisoners to develop and refine the capacity for violence.

Amherst professor Austin Sarat explains why, even if there is a strong legal case for prosecuting former president Donald Trump for inciting the January 6 insurrection, doing so may not be the wisest thing to do. Professor Sarat suggests that the Attorney General can and should put together a record for history to judge, but going forward with even a well-grounded prosecution of Trump would almost certainly turn him into a martyr and bring this country ever closer to the abyss it is already fast approaching.

Former federal prosecutor Dennis Aftergut reflects on what has been different about 2021 with respect to police killings (and what has remained the same). He asks whether 2022 will bring about progress for the rights to be safe, to choose, to vote, or some other expansion of freedom, and calls upon all Americans to act to secure those rights.

In response to the December 16 announcement that, Cornell law professor Sherry F. Colb explains the significance of the U.S. Food and Drug Administration (FDA)’s December 16 announcement that it is permanently allowing doctors to administer medical abortions by telemedicine and through the mail. Professor Colb describes why the change is likely to make terminating a pregnancy more accessible and affordable and less dangerous, and she argues that medical abortion also challenges one ethical argument some anti-abortion advocates have raised.

UF Levin College of Law professor and economist Neil H. Buchanan explains the legal and policy reasons for reinstating the state and local taxes (SALT) deduction that Republicans severely limited in 2017. Professor Buchanan argues that the purpose of limiting the SALT deduction was to harm poor people in states that had robust social spending programs, so Democrats should unapologetically seize the opportunity to undo any unconstitutional provision designed in the first place as a political hit job.

Amherst professor Austin Sarat describes what death penalty abolitionists must do even as capital punishment in the United States wanes in popularity and use. Professor Sarat calls upon such advocates to invest time and resources in tracking and learning lessons from what has happened after states abolished the death penalty over the last 15 years.

Cornell law professor Joseph Margulies describes how he arrived at his moral philosophy, summed up as “there is no them, there is only us.” Professor Margulies explains that it comes in part from an understanding that all of humanity is imprisoned by our individual autobiographies—the profound choices that define our existence, like how we respond to loss, shame, rage, and pain.

Cornell law professor Michael C. Dorf explains why the concern expressed by Justice Sonia Sotomayor in her dissent in the Texas abortion case (Whole Woman’s Health v. Jackson) that other states will follow Texas’s example and employ “private bounty hunters” is well founded and legitimate.

Penn professor Marci A. Hamilton and UNLV Boyd School of Law professor Leslie C. Griffin explain why the separation between church and state is such an important principle in American democracy and describe ways in which this separation is being eroded. Professors Hamilton and Griffin urge courts and lawmakers to keep the states and the nation from being run by the world’s religions.

SMU Dedman School of Law professor Joanna L. Grossman comments on the abortion cases currently before the U.S. Supreme Court—one challenge a restrictive Texas abortion law and another challenge to a plainly unconstitutional Mississippi law. Professor Grossman argues that safe-haven laws—which Justice Amy Coney Barrett in particular asked about during her line of questioning in oral argument—play no role in the law or policy of abortion.

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 Michael C. Dorf comments on last week’s oral argument in Dobbs v. Jackson Women’s Health Organization, in which the Court will consider whether to overturn the right to abortion recognized in Roe v. Wade and subsequent cases. Specifically, Professor Dorf analyzes statements and questions by Justice Brett Kavanaugh, particularly in light of statements he made during his confirmation hearing.

Amherst professor Austin Sarat and former federal prosecutor Dennis Aftergut comment on a case in which the U.S. Supreme Court recently heard oral arguments that gives the Court an opportunity to overturn Roe v. Wade and related cases recognizing a constitutional right to abortion. Sarat and Aftergut point out that if the Court abandons Roe, that will ultimately spell the end of abortion rights in all states.

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.

Texas law professor Jeffrey Abramson comments on two jury verdicts last week—the acquittal of Kyle Rittenhouse in Kenosha, Wisconsin, and the conviction of three men who attacked and killed Ahmaud Arbery in Brunswick, Georgia—that demonstrate our country’s division over race, guns, vigilantism, and self-defense. Professor Abramson notes that when evidence is borderline, as it was in the Rittenhouse trial, jurors are “liberated” to decide on the basis of their own sentiments and values. Professor Abramson argues that the rushed jury selection process in the Rittenhouse trial effectively placed the Second Amendment, rather than the individual defendant himself, on trial.

Amherst professor Austin Sarat calls upon California Governor Gavin Newsom to ask the state legislature to end capital punishment. Professor Sarat explains why this route is superior to the direct democracy route (which failed in both 2012 and 2016) and why it’s so important that California abolish the death penalty.

Cornell Law professor Michael C. Dorf explains why Democrats should accept without further delay Senator Mitch McConnell’s offer of a streamlined process to pass a debt ceiling increase via the reconciliation process. Professor Dorf points out that due to opposition to filibuster reform by Democratic Senators Joe Manchin and Kyrsten Sinema, this is the only way to avoid an economic catastrophe as a result of the debt ceiling crisis.

Illinois Law dean Vikram David Amar and professor Jason Mazzone explain why a recent ruling by the U.S. Court of Appeals for the Fifth Circuit egregiously misunderstands the Commerce Clause issues presented in several lawsuits challenging the federal Occupational Safety and Health Administration (OSHA)’s authority to mandate vaccine and testing requirements for large employers. Dean Amar and Professor Mazzone focus on three ways in which the Fifth Circuit gets it wrong and expresses hope that the Sixth Circuit, which is where the lawsuits have been consolidated, does better.