Verdict

Cornell Law professor Sherry F. Colb comments on the U.S. Supreme Court’s recent decision in Caniglia v. Strom, holding that police may not enter a private home to perform a “community caretaking” function without having a search warrant. Professor Colb suggests that by recognizing limits on the authority of law enforcement officers to enter a home without a warrant in these circumstances, the Court may be implicitly adopting the message of “defunding the police” by reallocating a non-police function to better-suited responders, such as social workers or mental health experts.

Illinois Law dean and professor Vikram David Amar critiques Supreme Court Justice Elena Kagan’s recent use of stare decisis doctrine and reliance interest in her dissenting opinion last term in Ramos v. Louisiana, and again this term in Edwards v. Vannoy. Dean Amar describes the reliance interest theory and explains why Justice Kagan’s reasoning is unusual and dubious.

Cornell Law professor Michael C. Dorf considers whether and how the U.S. Supreme Court next term might eliminate or substantially curtail the constitutional right to abortion recognized in Roe v. Wade. Professor Dorf describes the jurisprudence after that decision and argues that a decision that upholds the Mississippi law while purporting to forestall deciding the ultimate fate of Roe would be brazenly dishonest—albeit somewhat more likely than a clear overruling of Roe.

Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—comments on efforts by Republicans in 32 states to restrict the ballot initiative and voter referendum processes—two key levers of direct democracy. Professor Sarat describes origins and development of these processes in our country and argues that the opportunity for citizens to vote directly on the policies that affect their lives is an important democratic tradition that must be preserved.

In this second of a series of columns, Illinois Law dean Vikram David Amar and UC Davis Law professor emeritus Alan Brownstein continue their discussion of why the U.S. Supreme Court’s recent “Most Favored Nation” (MFN) approach to the Free Exercise Clause of First Amendment is troubling on a number of levels. Dean Amar and Professor Brownstein point out that an MFN-style approach is virtually guaranteed to cause geographical inequality because it relies upon fortuitous secular analogues.

NYU Law professor Samuel Estreicher and appellate lawyers Rex Heinke and Jessica Weisel describe the uncertainty surrounding whether Uber and Lyft drivers are subject to the Federal Arbitration Act. The authors note the split of authority across the nation and note that, depending on the outcome of litigation in the Second, Third, and Eleventh Circuits, the question may soon come before the U.S. Supreme Court to resolve.

Cornell Law professor Sherry F. Colb responds to an observation made by U.S. Supreme Court Justice Clarence in his concurring opinion in Jones v. Mississippi, noting an ostensible inconsistency in the language liberals use in discussing incarceration, as compared to pregnancy. Professor Colb acknowledges the face value of Justice Thomas’s point—that liberals refer to minors seeking an abortion as “women” and minors facing life imprisonment without the possibility of parole (“LWOP”) as “children”—but she points out that the difference in terminology reflects a consistent view that minors are not fully developed and should not be forced to do irreversible “adult” things like carry a pregnancy to term or serve a mandatory LWOP sentence.

Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—describes three kinds of defects and injustices inherent in capital punishment exemplified by the case of Pervis Payne, who is on death row in Tennessee. Professor Sarat points out that the death penalty in the United States is built upon erroneous convictions and miscarriages of justice, the prejudicial use of use of so-called victim impact evidence, and disproportionate targeting of defendants with intellectual disabilities or mental illness.

Igor De Lazari, a Brazilian legal scholar, Antonio Sepulveda, Professor of Law at the Getulio Vargas Foundation (FGV) and at the Fluminense Federal University, and Ana Beatriz a legal assistant at the Public Ministry Office of the State of Santa Catarina and Criminal Procedure Law Specialist, comment on the police use of lethal force in Rio de Janeiro. The authors suggest several institutional and social policy changes that would begin to address the disproportionate use of lethal force in Rio and restore public faith in its public security policy

UF Levin College of Law professor Neil H. Buchanan argues that the terms “cancel culture,” “wokeness,” and the like have come to mean only that the person using them does not like something that is being said or done. Professor Buchanan describes how these epithets are simply today’s (much more quickly adopted) versions of the 1990’s political correctness and “PC police”—all political tools for claiming victimhood.

Cornell Law professor Michael C. Dorf comments on last week’s announcement by the Facebook Oversight Board with its verdict regarding the company’s treatment of former President Donald Trump’s suspended account. Professor Dorf argues that the Board’s ruling makes sense in many respects, but makes two mutually exclusive demands of Facebook: clear rules for the sake of predictability and at the same time, flexibility for moderators to consider the individual context of a situation.

Cornell Law professor Sherry F. Colb explains why refusing to wear a mask is similar to refusing to wear a condom during intercourse with a partner who requests the use of a condom. Professor Colb points out that in both cases, the person is prioritizing himself over others and disregarding others’ safety.

In this first of a series of columns, Illinois Law dean Vikram David Amar and UC Davis Law professor emeritus Alan E. Brownstein discuss the U.S. Supreme Court’s apparent adoption of a “most favored nation” approach to protecting religious liberty under the Free Exercise Clause. Dean Amar and Professor Brownstein describe some of the problems with this approach and point out that the reason religious exercise receives constitutional recognition and protection is not because the Constitution assigns some heightened value to religious belief and practices over secular interests, but because we do not want the state to interfere with religious choice and the autonomy of religious individuals to associate with a religion of their choice.

UF Levin College of Law professor and economist Neil H. Buchanan responds to apparent plans by some Republicans to bring back the debt ceiling to obstruct the Biden administration. Professor Buchanan explains why that would be a bad idea and also why, if they do, President Biden might be able to kill the debt ceiling as a political issue.

Cornell Law professor Michael C. Dorf comments on the recent news that President Joseph Biden is using the word “genocide” to describe the Turkish regime’s murder of roughly 1.5 million Armenians during and after World War I. Professor Dorf explains why language matters in the context of genocide, torture, eugenics, taxes, and Humpty Dumpty.

SMU Dedman School of Law professor Joanna L. Grossman and Stanford Law 1L Saraswati Rathod explain why recent efforts in various states to ban transgender women and girls from competing in women’s sports are dangerous and misguided. Professor Grossman and Ms. Rathod argue that the actions purport to solve a problem that doesn’t even exist, and they risk substantial harm to a vulnerable group of women and girls, as well as to women’s athletics across the board.

NYU Law professor Samuel Estreicher and Hofstra Law professor Julian G. Ku comment on a recent decision by a Pre-Trial Chamber of the International Criminal Court (ICC) ruling that the ICC’s jurisdiction extends to territory occupied by Israel during the 1967 Six Day War, namely, the West Bank, Gaza, and East Jerusalem. Professors Estreicher and Ku argue that the tenuous and legally unpersuasive nature of the ICC’s jurisdictional assertion in this case, as well as similarly aggressive findings over U.S. activities in Afghanistan, will only further weaken the tribunal’s overall international legitimacy going forward.

In this second of a series of columns on military sexual harassment and sexual assault, Illinois Law professor Lesley M. Wexler compares and contrasts the U.S. military’s efforts to address the problem with how the Canadian military is addressing the same issue. Professor Wexler notes that Canada’s government has adopted several tools to address sexual harassment and misconduct that the United States has not yet accepted, and while the two militaries are not identically situated, we should pay close attention their efforts and see whether lessons may be learned.

UNLV Boyd School of Law professor Leslie C. Griffin and University of Pennsylvania professor Marci A. Hamilton describe how the current Supreme Court is furtively undermining neutral and general laws by embracing a so-called “most favored nation” theory. Professors Griffin and Hamilton explain that under this dangerous approach, otherwise neutral laws that might incidentally burden religious exercise (such as zoning laws or public health regulations) are constitutionally suspect if they create any exceptions for purportedly secular activities, and, they argue, this can result in legal discrimination and harms to groups including LGBTQ+ individuals, children, those with disabilities, and others.

Cornell Law professor Sherry F. Colb comments on a recent episode of the podcast “Making Sense,” in which host Sam Harris talked with guests Bruce Friedrich and Liz Spech of the Good Food Institute about how we might all go about saving the world from climate disaster. Professor Colb notes a key point of discussion, that production and consumption of animal-based foods is a major contributor to the climate crisis, and argues that we just have to make ethical eating virtually identical to or better than unethical eating if we want to bring the vast majority of humanity along.