Analysis and Commentary on Courts and Procedure
What the Divided Argument in the SCOTUS Affirmative Action Cases Could Mean

Cornell Law professor Michael C. Dorf comments on the possible significance of the Supreme Court’s decision to divide, rather than consolidate, argument in the affirmative action cases it will be deciding next term. Professor Dorf suggests the decision would allow Justice Ketanji Brown Jackson to participate in one of the cases and could also allow the Court to attend to at least two important factual and legal differences between the two cases.

James Coddington’s Clemency Petition Offers a Chance to Recognize the Rehabilitation and Redemption of Death Row Inmates

Amherst professor Austin Sarat comments on the clemency petition filed by Oklahoma death-row inmate James Coddington. Professor Sarat argues that, though unlikely to succeed based on Oklahoma’s history, Coddington’s petition offers the state the chance to revive a tradition of recognizing rehabilitation and redemption for people on death row.

Roe and Dobbs as Defining Cases for the Supreme Court and the Justices Who Wrote the Majority Opinions

Touro Law professor Rodger D. Citron argues that just as Roe v. Wade is the representative case of Justice Harry Blackmun’s tenure on the Supreme Court, so too will Dobbs v. Jackson Women’s Health Organization become the emblematic decision of its author, Justice Samuel Alito, Jr. Professor Citron analyzes the differences between the two decisions and the Justices who authored them, and what those differences mean about the Court that decided each of those cases.

The Kavanaugh Court?

Illinois Law dean Vikram David Amar observes that Justice Brett Kavanaugh is emerging as a centrist perspective in key cases, including one expanding gun rights (New York State Rifle & Pistol Association v. Bruen) and one repudiating abortion rights (Dobbs v. Jackson Women’s Health Organization). Dean Amar points out that although Justice Kavanaugh voted with the majority in both cases, he added a narrower gloss via a concurring opinion and was the only Justice to do so in both cases.

Some Questions for the Alito Five

In light of Justice Samuel Alito’s leaked draft in Dobbs v. Jackson Women’s Health Org., which would overrule Roe v. Wade and its progeny, UChicago Law professor emeritus Albert W. Alschuler and Harvard Law professor emeritus Laurence H. Tribe ask six questions of the apparent five-Justice majority. Professors Alschuler and Tribe point out some of the inconsistencies and illogic of the opinion and call on the Justices to account for these issues.

Judicial Deference and the Future of Lethal Injection

Amherst professor Austin Sarat comments on a recent decision by a federal district court judge deferring to the evidence provided by the state in support of its lethal injection procedure, despite significant contradictory evidence. Professor Sarat argues that the trilogy of Supreme Court precedents on lethal injection not only altered the legal standards but tilted the playing field for fact-finding when death row inmates bring lethal injection challenges.

Are Activist Judges Efficient? Who Cares? What Matters Is That They Do Justice

UF Levin College of Law professor and economist Neil H. Buchanan explains why it is “efficient” (in one sense of that fraught word) for courts to sometimes act like legislatures—i.e., to legislate from the bench. Professor Buchanan points out that deciding cases too narrowly or incrementally causes unnecessary litigation to try to identify where courts will draw the line, particularly when the judges and justices already know where they want that line to be. He emphasizes, however, that efficiency is not the ultimate goal of the law, and minimizing litigation costs should never supersede the pursuit of justice.

Is the SCOTUS Leak Investigation Legal? Maybe, But It Is Also Hypocritical and Potentially Counterproductive

Cornell Law professor Michael C. Dorf argues that while the Supreme Court’s investigation into who leaked Justice Samuel Alito’s draft opinion overruling Roe v. Wade may be legal, it is also highly hypocritical in at least two respects. Professor Dorf argues that the investigation violates the spirit (and perhaps even the letter) of the Court’s Fourth Amendment cases, and it amounts to self-dealing because it focuses on the clerks, but not the Justices or their spouses.

Justice Comes to John Durham’s and Bill Barr’s Political Prosecution

Former federal prosecutor Dennis Aftergut comments on the acquittal of Clinton campaign lawyer Michael Sussman and what it means for former U.S. Attorney John Durham and former Trump Attorney General William Bar. Mr. Aftergut points out that all of Durham’s prosecutions, including another he has set for trial in October, are about facts that post-date the fully legitimate launch of the FBI’s 2016 Trump-Russia investigation, precluding any possibility of showing that investigation was a “hoax.”

Ten Thoughts on Illinois’s Unique Process for Filling State Supreme Court Vacancies

Illinois Law dean Vikram David Amar and professor Jason Mazzone offer ten thoughts on Illinois’s unique process for filling state supreme court vacancies. Dean Amar and Professor Mazzone describe some of the advantages and disadvantages of Illinois’s process, and they compare and contrast it to other similar processes in government.

Defamation Lawsuit Hits “Big Lie” Bullseye

Former federal prosecutor comments on recent news that courts have required several far-right television networks to issue statements recanting their false claims of widespread voter fraud in the 2020 presidential election. Mr. Aftergut praises these decisions as demonstrating the role of lawyers and courts in upholding truth and provable facts.

Why the North Carolina Berger Voter ID Case Pending in the U.S. Supreme Court Would Benefit from Certification to the State High Court: Part Two in a Series

In this second of a series of columns, Illinois Law dean Vikram David Amar and professor Jason Mazzone describe the facts and law giving rise to Berger v. North Carolina State Conference of the NAACP, a North Carolina voter ID case pending before the U.S. Supreme Court. Dean Amar and Professor Mazzone argue that the case highlights the importance of the legal procedure of certification and suggest that if the Court’s decision falls back on the traditional model of singular executive-branch representation embraced by the federal system and that of other states, the North Carolina legislature will have only itself to blame.

NY AG Tish James Won’t Be Fooled by Donald Trump’s Dodgy Affidavit to Escape His New York Court Contempt

Former federal prosecutor Dennis Aftergut points out that Donald Trump’s attempt to avoid being held in contempt of New York court for failing to respond to a document subpoena closely tracks an approach described by Nixon White House aide John Ehrlichman during the Watergate scandal. Mr. Aftergut predicts that New York Attorney General Letitia James is unlikely to fall for that tactic and is sure to go after Trump’s “limited, modified hang-out” to try to avoid accountability and the hand of justice.

The Value of Certification of State Law Questions by the U.S. Supreme Court to the North Carolina Supreme Court in the Pending North Carolina Berger Case: Part One in a Series

In this first of a series of columns, Illinois Law dean Vikram David Amar and professor Jason Mazzone describe the development of the legal procedure of certification of state-law questions—by which federal courts ask a state high court how state law would apply to specific circumstances. Dean Amar and Professor Mazzone explain why this procedure may be particularly helpful in a case currently pending in the U.S. Supreme Court, Berger v. North Carolina State Conference of the NAACP, which shows the downsides to a state’s (North Carolina’s0 unique refusal to accept certified questions.

Textualism Masks Ideological Opposition to the Administrative State

Cornell Law professor Michael C. Dorf comments on the recent decision by U.S. District Judge Kathryn Kimball Mizelle invalidating the federal mask mandate for travelers. Professor Dorf points out the flaws in Judge Mizelle’s reasoning and argues that her ruling reflects a right-wing ideology that is hostile to government agencies addressing even the most pressing social problems.

The Chief Justice’s Dissents Confirm He’s Not In Charge. Let’s Just Call It the “McConnell Court”

Former federal prosecutor Dennis Aftergut comments on three recent Supreme Court decisions in which Chief Justice John Roberts joined the dissent, demonstrating that he does not carry sway in decisions on central issues such as a woman’s right to choose, voting rights, or protecting the environment. Mr. Aftergut points out that how the Justices vote in the upcoming decision in Dobbs v. Jackson Women’s Health Organization will reveal whether the Roberts Court can preserve the core principles of judicial restraint in constitutional adjudication and stare decisis—or whether it is more appropriately called the “McConnell Court.”

The Evolution of Chief Justice John Roberts

Cornell Law professor Michael C. Dorf argues that Chief Justice John Roberts is, perhaps surprisingly, on the left of the current Court partly because of the Court moving far to the right in recent years and partly because of Roberts’s evolution as a jurist. Professor Dorf explores why Roberts has shifted, noting that he seems simply to adhere to a principle that historically liberals, moderates, and conservatives all agreed upon: don’t lie about the law.

Are Procedural Rights Under Title VII and Other Antidiscrimination Laws Modifiable or Waivable Outside of an Arbitration Agreement?

NYU Law professor Samuel Estreicher and 2L Andrew Vaccaro comment on a recent decision by the U.S. Court of Appeals for the Second Circuit suggesting that statutory procedural rights are generally waivable by contract outside of arbitration.

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

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... 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 the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Lesley Wexler
Lesley Wexler

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