Associate Dean for Research & Scholarship and Professor of Law at Touro Law Rodger D. Citron comments on three cases coming up for oral argument before the U.S. Supreme Court. Citron observes that if the other eight justices vote along ideological lines, Chief Justice John Roberts will cast the deciding vote in those pivotal cases.
Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on the recent news that the Justice Department will seek dismissal of charges against Michael Flynn. Sarat suggests that because the decision does not seem to advance the fair administration of justice in this case, the court should take the unusual step of refusing to grant the prosecutor’s motion to dismiss.
Cornell law professor Sherry F. Colb considers what people mean when they say that a sexual assault allegation seems “out of character” for a particular person and explains why that reasoning is logically flawed. Focusing on differences between how people behave publicly and privately, Colb argues that the lack of an observed pattern of sexual misconduct is not evidence that a person did not engage in sexual misconduct on a specific occasion.
SMU Dedman School of Law professor Joanna L. Grossman and Stanford law professor Lawrence M. Friedman discuss the implications of COVID-19 restrictions on the execution of wills and marriage. Grossman and Friedman point out that the COVID-19 crisis demonstrates, among other things, how quickly and universally Americans rush into court, demanding from judges legal solutions to ethical, political, and social issues.
Cornell law professor Joseph Margulies comments on the protests that have erupted over COVID-19 restrictions. Margulies argues that because the state cannot (or will not) live up to its end of the social contract by committing to sustain people’s livelihood for the duration of the restrictions, the protests are morally legitimate.
NYU law professor Samuel Estreicher and 2L Elisabeth H. Campbell describe the wide array of laws that will need to come into play to keep workers safe and avoid employer liability as workplaces consider reopening amid the COVID-19 pandemic, cautioning that compliance will not necessarily relieve employers of the risk of litigation and liability. Estreicher and Campbell discuss applicable recommendations, guidelines, and requirements set forth by such agencies as the U.S. Department of Labor, which is responsible for administering the federal Occupational Safety and Health Act (OSHA), the Centers for Disease Control and Prevention (CDC), and the Equal Opportunity Employment Commission (EEOC).
Michigan Law dean emeritus Evan Caminker discusses a decision by the U.S. Court of Appeals for the Sixth Circuit, in which that court held that the Fourteenth Amendment’s Due Process Clause secures schoolchildren a fundamental right to a “basic minimum education” that “can plausibly impart literacy.” Caminker—one of the co-counsel for the plaintiffs in that case—explains why the decision is so remarkable and why the supposed dichotomy between positive and negative rights is not as stark as canonically claimed.
Austin Sarat—Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on yesterday’s decision by the U.S. Supreme Court deferring deciding on a Second Amendment issue presented by a New York City law that prohibited gun owners from transporting their guns out of the city. Sarat points out that the issue that divided the Court’s conservative justices in this case was not whether to radically expand the protections of the Second Amendment, but when and how to do so.
In light of the U.S. Supreme Court’s decision Monday in Ramos v. Louisiana, in which it held that the federal Constitution forbids states from convicting defendants except by a unanimous jury, Cornell law professor Michael C. Dorf discusses the Court’s jurisprudence on retroactivity. Dorf highlights some costs and benefits of retroactivity and argues that the Court’s refusal to issue advisory opinions limits its ability to resolve retroactivity questions in a way that responds to all the relevant considerations.
Cornell Law professor Sherry F. Colb comments on recent sexual assault allegations against presumptive Democratic nominee Joe Biden. Colb argues that if the only choices for President are Donald Trump and Joe Biden, the sexual assault allegation against the latter will take second fiddle to the need to defeat the former and defends this perspective as not manifesting hypocrisy or indifference to sexual assault or other intimate violence.
UF Levin College of Law professor and economist Neil H. Buchanan explains why we should not be concerned about increasing the federal government’s debt, despite what some journalists are suggesting. Buchanan points out that sometimes—such as during a pandemic or other crisis—the federal government should borrow more to prevent a downward economic spiral.
Cornell law professor Joseph Margulies observes that the COVID-19 pandemic reveals our shared equality as individuals but also lays bare the inequality of American society. Margulies argues that equality is an outcome achieved by one in aid to another, and by government in aid to all in need.
Illinois Law dean Vikram David Amar and professor Jason Mazzone comment on the U.S. Supreme Court’s recent per curiam decision staying an injunction by a federal district court in Wisconsin, effectively allowing the election in that state to go forward on with the normal timeline for casting ballots in place, despite concerns over the effects of COVID-19. Amar and Mazzone argue that, while the outcome might have been unjust, the plaintiffs in that case likely did not allege a constitutional violation and thus did not properly allege claims suitable to be remedied in federal court.
NYU law professors Samuel Estreicher and Jonathan F. Harris describe how the COVID-19 pandemic is forcing the United States to confront the problem of unchecked globalization. Estreicher and Harris argue that once the pandemic subsides, U.S. policymakers should, as a matter of national security, mandate that a minimum percentage of essential supplies be manufactured domestically.
SMU Dedman School of Law professor Joanna L. Grossman and Florida State University law professor Mary Ziegler discuss the abortion bans implemented in several states in response to the COVID-19 pandemic. Grossman and Ziegler explain why the bans are unconstitutional and comment on the connection between the legal challenges to those bans and the broader fight over abortion rights.
UNLV Boyd School of Law professor Leslie C. Griffin points out ways in which religions harm people—manifested today as an insistence on exemptions to social COVID-19 distancing orders. Griffin argues that telling the truth about religion should not be viewed as a form of discrimination and endorses Katherine Stewart’s recent book, The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism, which provides a detailed explanation of how the Religious Right has used its power to advance religion-based government in harmful ways.
Austin Sarat—Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on Harvard Law Professor Adrian Vermeule’s essay “Beyond Originalism,” which Sarat argues brings conservative authoritarianism out of the shadows. Sarat describes Vermeule as a modern-day Machiavelli, offering advice to the governing class and laying out a theory of governance Vermeule calls “common-good constitutionalism” but which in reality elevates the “common good” above individual goods in a manner antithetical to freedom, pluralism, and democracy.
Cornell law professor Michael C. Dorf comments on the recent per curiam opinion by the U.S. Supreme Court effectively requiring that in-person voting in the Wisconsin primary election go as scheduled and without deadline extension for mail-in ballots, despite the ongoing COVID-19 pandemic. Dorf argues that the decision is the result of partisan politics and petty sticklerism in the Court and will unnecessarily endanger the lives of voting citizens.
University of Pennsylvania professor Marci A. Hamilton writes an open letter to President Donald Trump asking that he not reopen the country until everyone has appropriate personal protective equipment (PPE). Hamilton argues that the President should exercise his power under the Defense Production Act to repurpose U.S. factories to make masks and gloves until everyone who needs them has them.
Illinois Law dean and professor Vikram David Amar comments on language in a recent U.S. Supreme Court decision, Allen v. Cooperdiscussing constitutional stare decisis in the context of state sovereign immunity. Amar points out some of the problems with the Court’s jurisprudence on state sovereign immunity and Congress’s Section 5 power, and he questions the Allen majority’s embrace of a “special justification” requirement for constitutional stare decisis.