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.
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.
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.
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.
Cornell law professor Michael C. Dorf comments on the recent back-and-forth involving the Department of Justice seeking to place a new legal team on the Trump administration’s effort to justify the addition of a citizenship question to the 2020 census. Dorf points out that whoever ends up representing the administration, this attempted withdrawal may shed light on the merits of the case and the lengths to which the President and those who serve him are willing to go for the citizenship question.
NYU law professor Samuel Estreicher comments on the U.S. Supreme Court’s recent decision regarding the inclusion of a citizenship question on the 2020 census questionnaire, arguing that courts should not get involved in determining whether agency action is based on “pretext.” Rather, Estreicher suggests that this particular case was highly unusual and that the Court’s decision should be limited accordingly.
Illinois law dean and professor Vikram David Amar reflects on the decisions the U.S. Supreme Court issued at the end of its 2018–19 term. Amar observes three key trends at the Court: its focus on what constitutes improper government motive, concerns over broad congressional delegation to the executive, and tension over the meaning and theory of stare decisis.
NYU law professor Samuel Estreicher comments on the position in the Department of Justice recently took with respect to the Patient Protection and Affordable Care Act (colloquially known as “Obamacare”), declining to defend any part of the Act in court. Estreicher argues that the DOJ’s position lacks justification and explains the weaknesses of the district court’s reasoning striking down the entire Act.
Illinois law dean and professor Vikram David Amar comments on the Supreme Court’s recent decision in Franchise Tax Board v. Hyatt and what it says about stare decisis, the notion that prior Court rulings are entitled to respect in the Court today. Amar explores the point the dissent makes about reliance and argues that reliance principles should drive the Court’s approach to stare decisis.
Illinois law dean Vikram David Amar and professor Jason Mazzone considers whether (and when) a legislature should pass laws that court are likely to invalidate under current precedent. Amar and Mazzone argue that when legislatures enact laws that are at the time unenforceable, the legislatures are not necessarily wasting legislative resources or defying constitutional limits, but sometimes helpfully informing the work of other governmental actors and guide the resolution of constitutional issues
Cornell law professor Michael C. Dorf comments on the practice by federal courts of dismissing investigations into complaints of judicial misconduct if the judge retires from the bench or is elevated to justice status. Dorf argues that a full investigation of someone who is no longer a judge (or no longer a judge on a covered court) may still have implications for judges who continue to serve and thus that judicial councils should not construe their statutory mandate as narrowly as they did in the recent investigations of then-Judges Maryanne Trump Barry, Alex Kozinski, and Brett Kavanaugh.
Marci A. Hamilton, professor at the University of Pennsylvania and CEO of CHILD USA, and Kathryn Robb, executive director of CHILD USAdvocacy, describe the latest trick by Catholic bishops in Maryland to successfully lobby for a statute of repose to be included in a bill, undermining its ability to provide meaningful justice to abuse victims. Hamilton and Robb call upon legislators to stop cooperating with Catholic bishops, as doing so leads only to continued secrecy, suffering, and pedophile empowerment.
Cornell law professor Michael C. Dorf comments on a recent decision by a federal district court judge in Texas declaring unconstitutional the US’s male-only military draft. Dorf points out that the judge’s decision defies the Supreme Court’s admonition that federal court judges should follow even outdated Supreme Court precedents, “leaving to th[at] Court the prerogative of overruling its own decisions” and considers whether there is any other reason that admonition should not apply.
Cornell law professor Michael C. Dorf comments on President Trump’s declaration of a national emergency after Congress denied him most of the funding he requested for a border wall. Dorf describes the legal framework that allows the president to do so even in the absence of an emergency and points out that combined actions of Congress, the courts, and the People have created this situation.
John Cannan—a research and instructional services librarian at Drexel University Thomas R. Kline School of Law in Philadelphia—discusses a case that will be argued before the US Supreme Court this week and explains how the legislative history of the law at issue in that case could save the lower court’s decision, which was written by then-Judge Brett Kavanaugh. Cannan points out the irony that Justice Kavanaugh, who is vocally opposed to using legislative history in interpreting the meaning of statutes, may find the greatest support for his decision in this case in the legislative history.
Cornell law professor Michael C. Dorf comments on the recent ruling by a federal district judge in Texas striking down the entirety of the Affordable Care Act and argues that the judge relies on a highly unorthodox (and erroneous) interpretation of the doctrine of “severability.” As Dorf explains, there is a notable lack of judicial consensus as to what courts actually do when they declare laws unconstitutional, despite that the Supreme Court established its power of judicial review over two centuries ago in Marbury v. Madison (1803).
GW law professor and economist Neil H. Buchanan continues his series of columns considering how much damage the US Supreme Court will inflict after Justice Anthony Kennedy’s retirement. Drawing upon the nation’s experience with a conservative Court during the Lochner era, Buchanan predicts that one of the most consequential results of Republicans’ theft of a Supreme Court seat could be to seriously undermine one or more of Social Security, Medicare, and Medicaid.
Cornell law professor Sherry F. Colb explains what #BelieveWomen means—that society should stop being presumptively skeptical of women who report sexual misconduct—as well as what the movement does not mean. Colb points out that to believe women does not mean to criminally convict the accused and bypass constitutional safeguards; rather, it means to treat their testimony the same as society and the law treat all other testimony—as presumptively credible. Colb argues that if we make systemic changes to the way we treat women reporting sexual misconduct, starting with initial contact with the police, these changes could translate into more widespread reforms in the courtroom and prosecution of sexual offenders.
Cornell law professor Michael C. Dorf comments on the announcement that retired Supreme Court Justice Sandra Day O’Connor would be withdrawing from public life and explains how, ironically, the exit of President Ronald Reagan’s Supreme Court nominees is giving rise to what could be called the Reagan Court. Dorf describes Reagan’s successes and failures with respect to shaping the Court and explains why only now, with its present composition, the Court may actually be poised to further Reagan’s agenda.
Illinois law professors Lesley Wexler and Colleen Murphy propose that the most lasting legacy of the Kavanaugh confirmation battle will not be Judge Kavanaugh’s imprint on the Court, but the bravery Dr. Ford has inspired in others. Wexler and Murphy view the recent events through the lens of transitional justice and argue that the confirmation of Judge Kavanaugh is not dispositive or even indicative of whether the aspirations for #MeToo movement may be realized.