Analysis and Commentary on Courts and Procedure
Department of Justice Once Again Proves Its Loyalty to the President, Not the Rule of Law

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.

Wisconsin’s Decision to Have an Election This Month Was Unjust, But Was it Also Unconstitutional? Why the Plaintiffs (Rightly) Lost in the Supreme Court

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.

Will Coronavirus Stop America from Carrying Out Executions?

Guest columnist Austin Sarat—Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—points out one unusual effect of the COVID-19 pandemic: deferring the executions of death row inmates. Sarat observes that while past pandemics have not affected the rate at which states have executed inmates, last week the Texas Court of Criminal Appeals granted 60-day stays in the execution sentences of two men, and other states seem poised to follow suit.

A Giant Departs the Federal Bench: Reflections on the Retirement of the Hon. Jack B. Weinstein

Touro law professor Jeffrey B. Morris reflects on the impressive career of the Honorable Jack B. Weinstein, who recently announced his retirement from the U.S. District Court for the Eastern District of New York at the age of 98. Morris praises Judge Weinstein for his skill and humanity as a jurist, pointing out the many ways his opinions, articles, and speeches reflect his belief that “aiding the weak and suffering is the primary duty and soul of American law.”

D.C. Circuit Dismissal of Congressional Subpoena Lawsuit (Further) Erodes American Democracy

Cornell law professor Michael C. Dorf comments on last week’s decision by the U.S. Court of Appeals for the D.C. Circuit holding that federal courts could not enforce a congressional subpoena to former White House Counsel Don McGahn because federal courts cannot adjudicate interbranch disputes. Dorf describes some of the major flaws in the court’s reasoning and explains why the ruling is a clear victory for Donald Trump and a loss for the constitutional system.

New York Sues the Trump Administration Over “Trusted Traveler” Eligibility

Cornell law professor Michael C. Dorf comments on New York’s lawsuit against the federal government over the Department of Homeland Security’s decision to exclude New York residents from eligibility for Trusted Traveler programs. Dorf describes some of the interesting legal questions the lawsuit raises in terms of administrative law, judicial standing, and constitutional law.

Is John Roberts a Closeted Never-Trumper? Reading Between the Lines of the Chief Justice’s Year-End Report

Cornell law professor Michael C. Dorf offers one interpretation of Chief Justice John Roberts’s annual year-end report on the federal judiciary—that the Chief Justice intends to serve as a modest counterbalance to President Trump. Dorf supports his interpretation with text and context of the year-end report but offers his cautious praise to the Chief Justice with a few important caveats as well.

Taking Stock: A Review of Justice Stevens’s Last Book and an Appreciation of His Extraordinary Service on the Supreme Court

Rodger D. Citron, the Associate Dean for Research and Scholarship and a Professor of Law at Touro College, Jacob D. Fuchsberg Law Center, comments on the late Justice John Paul Stevens’s last book, The Making of a Justice: Reflections on My First 94 Years. Citron laments that, in his view, the memoir is too long yet does not say enough, but he lauds the justice for his outstanding service on the Supreme Court.

If There Are No “Obama Judges” or “Trump Judges,” Does the Constitution Permit Delaware to Require Partisan Balance on its Courts? The Supreme Court Will Decide.

Cornell law professor Michael C. Dorf comments on a case the U.S. Supreme Court recently agreed to review that presents the question whether a provision of the Delaware Constitution that requires the state’s judiciary be nearly equally balanced between Democrats and Republicans is constitutional. Dorf argues in favor of the provision, explaining that the provision takes into consideration partisan affiliation as means of limiting the role of politics in judicial appointments and judging.

Pete Buttigieg and his Critics Are Both Wrong About the Supreme Court

Cornell law professor Michael C. Dorf explains why Democratic presidential hopeful Pete Buttigieg and his critics are both wrong about the U.S. Supreme Court having become especially political. Dorf points out that since the Court’s 1803 decision in Marbury v. Madison the Court has been highly political, and the true problem lies with the unprecedented polarization of the political parties—not with the Court or the appointments process.

U.K. Supreme Court Prorogation Judgment Exemplifies Representation-Reinforcing Judicial Review

Cornell law professor Michael C. Dorf comments on the recent unanimous decision by the U.K. Supreme Court ruling that Prime Minister Boris Johnson acted unlawfully in asking the Queen to prorogue Parliament. Dorf explains how that ruling highlights the error of the U.S. Supreme Court’s recent ruling in Rucho v. Common Cause, in which the Court declined to intervene in a political gerrymandering case, citing the so-called political question doctrine.

How to Detect a Liar

Cornell law professor Sherry F. Colb responds to a colleague’s claim (yet unconfirmed) that jurors have an easier time distinguishing truth from falsehood when they read a transcript of testimony than when they listen to and watch the testimony directly. Assuming the claim is true, Colb describes why that claim might at first be surprising and also why, on further consideration, it makes sense. She proposes that if the claim is true, we ought perhaps to consider whether the distractors inherent in live testimony should excludable under the Federal Rules of Evidence.

North Carolina Three-Judge Panel Smartly Uses the Room the U.S. Supreme Court in Rucho v. Common Cause Left for State Courts to Enforce State Constitutions

Illinois law dean and professor Vikram David Amar comments on a recent decision by a panel of state-court judges in North Carolina striking down partisan gerrymandering schemes as violating that state’s constitution. Amar had argued after the U.S. Supreme Court’s decision in Rucho v. Common Cause that state courts would have to address partisan gerrymandering on “independent and adequate state-law grounds” (rather than on federal constitutional grounds), which is exactly what the North Carolina court did.

Could a Faithless Elector Ruling Doom an Attempt to Circumvent the Electoral College?

Cornell law professor Michael C. Dorf considers whether a possible Supreme Court ruling in a “faithless elector” case from the U.S. Court of Appeals for the Tenth Circuit could end the National Popular Vote (NPV) movement, which attempts to circumvent the Electoral College by interstate compact. Dorf provides a short background of NPV and the Tenth Circuit’s decision, and he explains why a decision by the Court decides to affirm the Tenth Circuit’s reasoning would threaten NPV.

Out Trumping Trump: Democrats Join the Attack on Courts but the United States Won’t Be Better for It

Guest columnist Austin Sarat—Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—expresses concern that Democrats are joining President Trump in undermining the public’s trust in the judiciary. Sarat specifically discusses an amicus brief filed with the U.S. Supreme Court by five Democratic senators in which the senators criticize the bias and partisanship of the Court’s conservative justices.

Exploring Cy Pres, Restorative Justice, and Earned Redemption through Fleabag: Part II in a Series

In this second of a series of columns, Illinois law professors Lesley Wexler, Jennifer Robbennolt, and Jennie Pahre continue their discussion of the legal mechanism of cy pres—by which a court decides a remedy based on how closely it serves the intended purpose (originally from the law of trusts). The authors draw upon the plot and characters of the television show Fleabag to illustrate how restorative justice might help re-center the #MeToo debate away from its seemingly sole punitive focus and more towards the twin purposes of victim restoration and deterrence.

Paying Tribute to Justice Breyer’s Quarter Century on the Court

In tribute to Justice Stephen Breyer’s 25 years of service as a U.S. Supreme Court justice, Illinois law dean and professor Vikram David Amar discusses his favorite Breyer majority opinion, dissent, and concurrence. Amar describes Justice Breyer’s opinion in each case and explains why it is notable, and he considers what we might expect from the justice in the coming years.

Cy Pres and Restorative Justice: Part I in a Series

In this first of a series of columns, Illinois law professors Jennie Pahre, Jennifer Robbennolt, and Lesley Wexler discuss the legal mechanism of cy pres—by which a court decides a remedy based on how closely it serves the intended purpose (originally from the law of trusts)—a mechanism the U.S. Supreme Court has expressed interest in resolving but about which the Court (in a per curiam opinion) described some reservations. The authors offer restorative justice as a way to answer some of those lingering questions about the remedy and to better tie cy pres to its intended purposes.

Advice for State Courts in the Aftermath of Rucho

Illinois law dean and professor Vikram David Amar discusses the U.S. Supreme Court’s decision in Rucho v. Common Cause, in which the Court held that disputes over partisan gerrymandering are political questions that are beyond the competence of federal courts to resolve. Amar argues that while state courts may attempt to process partisan gerrymandering claims under state statutes and state constitutional provisions, they would need to do so not under the federal Constitution but under independent and adequate state-law grounds.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Fels Institute of Government Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Austin Sarat
Austin Sarat

Austin Sarat is Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more