Analysis and Commentary on Courts and Procedure
Now Is the Time for Death Penalty Abolitionists to Join the Effort to End Life Without Parole Sentences

Amherst professor Austin Sarat discusses the use of life without parole (LWOP) sentences in the United States, examining upcoming state supreme court cases challenging these sentences and the historical role of death penalty abolitionists in promoting LWOP as an alternative to capital punishment. Professor Sarat argues that death penalty abolitionists should now reconsider their support for LWOP, recognizing it as another form of “death penalty” and joining efforts to scale back its use, especially given its disproportionate impact on young offenders and people of color.

Americans Should Not Be Afraid to Reform the Supreme Court

Amherst professor Austin Sarat discusses recent proposals for Supreme Court reform in the United States, including term limits for Justices, ethics rules, and jurisdiction stripping. Professor Sarat argues that such reforms are justified and necessary in light of the Court’s current conservative majority and controversial decisions, emphasizing that court reform has historical precedent and should not be feared despite potential challenges.

Is the Eighth Circuit Ruling the End of the Road for Student Debt Forgiveness?

Cornell Law professor Michael C. Dorf discusses recent court decisions blocking President Biden’s student debt forgiveness programs, including the Supreme Court’s invalidation of his initial plan and the Eighth Circuit’s ruling against the subsequent SAVE plan. Professor Dorf argues that these decisions reflect a broader assault on administrative power by Republican-appointed judges, leveraging doctrines like the major questions doctrine to hamstring effective regulation, and suggests that the Republican-packed judiciary, rather than the Biden administration, is the true culprit behind the failure of student debt relief efforts.

Trump v. United States is But One Illustration of the Supreme Court’s Ongoing Yet Problematic Commitment to Government Immunity for Violations of Law

UC Davis Law professor Vikram David Amar and professor emeritus Alan E. Brownstein discuss the U.S. Supreme Court’s recent decision in Trump v. United States regarding presidential immunity, drawing parallels to the Court’s interpretation of state sovereign immunity under the Eleventh Amendment. Professors Amar and Brownstein argue that in both cases, the Court has ignored the original public meaning of the Constitution, compromising the rule of law by allowing government officials to escape accountability for unlawful acts, while noting that the vagueness in the Trump decision may leave room for future refinement of the immunity framework.

Joe Biden’s Court Reform Journey Still Stops Short of Court Packing

Amherst professor Austin Sarat discusses President Joe Biden’s recent proposals for Supreme Court reform, including a constitutional amendment to reverse the decision on presidential immunity, term limits for Justices, and a binding ethics code. Professor Sarat notes that while these proposals mark a significant shift in Biden’s stance on Court reform, they stop short of embracing Court packing, which Professor Sarat suggests may be the most far-reaching response to the perceived crisis in the Supreme Court and the threat its conservative majority poses to democracy and the rule of law.

Judge Cannon’s Ruling Dismissing the Trump Case Suffers From Constitutional Myopia in Interpreting the Appointments Clause (and Appropriations Clause): Part Two in a Two-Part Series

UC Davis Law professor Vikram David Amar analyzes Judge Aileen Cannon’s dismissal of the improper-documents-handling indictment against former President Donald Trump, focusing on Judge Cannon’s interpretation of the Appointments Clause and its implications for Special Counsel Jack Smith’s appointment. In this second in a series of columns, Professor Amar argues that Judge Cannon’s ruling is flawed because it fails to consider the broader constitutional context and ignores that the current arrangement with Smith does not meaningfully differ from alternative setups that would be unquestionably constitutional, thus suggesting a need for a more flexible interpretation of the relevant statutes.

Judge Cannon’s Ruling Dismissing the Trump Case Suffers From Constitutional Myopia With Respect to the Proper Role of a District Court Judge: Part One in a Two-Part Series

UC Davis Law professor Vikram David Amar analyzes Judge Aileen Cannon’s decision to dismiss the Mar-a-Lago document handling indictment against former President Donald Trump, focusing on the judge’s reasoning regarding Special Counsel Jack Smith’s appointment. Professor Amar argues that Judge Cannon’s ruling is flawed due to her failure to respect the proper role of a district court judge in relation to higher court precedents, particularly the Supreme Court’s Nixon tapes case, and her misunderstanding of the larger constitutional context surrounding special counsel appointments.

After the Supreme Court’s Bissonnette Decision: Applying the Transportation Worker Exclusion Under the Federal Arbitration Act, Part II

In this second of a two-part series, arbitrator and mediator Barry Winograd continues to explore the challenges in interpreting the transportation worker exemption under Section 1 of the Federal Arbitration Act (FAA) and proposes a solution. Mr. Winograd suggests that courts should look to established labor and employment laws, such as the National Labor Relations Act, Railway Labor Act, and Fair Labor Standards Act, for guidance in determining who qualifies as a transportation worker, rather than relying on vague qualifiers created by the courts.

After the Supreme Court’s Bissonnette Decision: Applying the Transportation Worker Exclusion Under the Federal Arbitration Act, Part I

In this first of a two-part series, arbitrator and mediator Barry Winograd examines the Supreme Court's recent decision in Bissonnette v. LePage Bakeries and its impact on the interpretation of the transportation worker exemption under Section 1 of the Federal Arbitration Act (FAA). Mr. Winograd argues that the Court’s current approach to determining who qualifies as a transportation worker has led to increasing uncertainty and inefficiency in litigation, potentially transforming the FAA from a procedural statute into a de facto substantive employment law.

Should Justices Alito and Thomas Be Impeached?

Amherst professor Austin Sarat discusses the recent impeachment articles filed by Representative Alexandria Ocasio-Cortez against Supreme Court Justices Samuel Alito and Clarence Thomas, providing historical context for impeachment of Supreme Court Justices and examining the specific allegations against Alito and Thomas. Professor Sarat argues that while the impeachment is unlikely to succeed, it is justified given the Justices’ ethical transgressions, and it serves as an important condemnation of their conduct and a reminder of the need to uphold democratic principles and the integrity of the Supreme Court.

The 2023-24 Supreme Court That Was—And Wasn’t

Cornell Law professor Michael C. Dorf discusses key cases from the U.S. Supreme Court’s 2023 Term, focusing on cases where the Court made non-merits decisions and cases with high stakes beyond their precedential value. Professor Dorf argues that the Court’s procedural dismissals in significant cases like those involving social media content moderation and abortion access led to public confusion and missed opportunities to clarify important legal questions, while its rulings in high-stakes cases such as those involving former President Donald Trump had immediate and far-reaching consequences that sometimes overshadowed their legal precedents.

Arizona’s Embarrassing Death Penalty Mess Takes a New Turn

Amherst professor Austin Sarat discusses a legal and political controversy in Arizona surrounding the execution of death row inmate Aaron Gunches, involving various state officials including the county attorney, attorney general, and governor. Professor Sarat criticizes Maricopa County Attorney Rachel Mitchell’s unprecedented and allegedly illegal attempt to seek a death warrant, portraying it as a politically motivated move that undermines the established legal process and threatens to create chaos in Arizona's death penalty system.

The Continuing Relevance of The Rosenberg Espionage Case—for Judge Aileen Cannon

Touro University, Jacob D. Fuchsberg Law Center, professor Rodger D. Citron compares Judge Aileen Cannon’s handling of Donald Trump's classified documents case to Judge Irving Kaufman’s controversial management of the Rosenberg espionage trial in the 1950s. Professor Citron argues that Cannon should learn from Kaufman’s mistakes and prioritize impartiality in her management of the high-profile case, warning that her current approach of favoring the defense and delaying proceedings could negatively affect her professional legacy.

With the End of Its 2023-24 Term in Sight, the Supreme Court Has Not Been Particularly Partisan or Aggressive This Year, Even as it Has Had No Choice but to Take Certain High-Profile Cases (In Part Because of an Out-of-step Lower Court, the Fifth Circuit Court of Appeals)

UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone examine the current term of the U.S. Supreme Court, addressing common criticisms that the Court has become a partisan, far-right institution aggressively pushing a conservative agenda. Professors Amar and Mazzone argue that, contrary to these criticisms, the Court’s decisions in the 2023-24 term have not been consistently conservative or partisan, and that many of the high-profile cases were essentially thrust upon the Court rather than actively sought out, suggesting a more nuanced and less ideologically driven approach than critics claim.

Supreme Court “Bump Stock” Case Reveals the Limits of Statutory Interpretation

Cornell Law professor Michael C. Dorf discusses the U.S. Supreme Court’s recent 6-3 decision in Garland v. Cargill, which invalidated a federal regulation banning bump stocks by finding that they do not fall under the statutory definition of a machinegun. Professor Dorf argues that the Justices’ ideological views on gun control, rather than principled differences in interpretive methodology, best explain the divided outcome in this case and many other closely contested Supreme Court cases.

Justice Barrett May Serve as a Bridge Between Ideological Sides in the Trump Presidential Immunity Case

Criminal defense attorney Jon May discusses the oral argument the U.S. Supreme Court heard on April 25, 2024, regarding Donald Trump’s argument that the “January 6” case against him should be barred by presidential immunity. Mr. May argues that while some Justices are concerned about the implications of limiting presidential immunity, Justice Barrett’s approach of distinguishing between official acts done in the national interest and the misuse of presidential power for personal gain is a workable solution that would allow the prosecution of Trump’s actions on January 6 without negatively impacting future presidents making difficult decisions.

Justice Alito’s Modified, Limited Hangout

Former federal prosecutor Dennis Aftergut discusses Supreme Court Justice Samuel Alito’s refusal to recuse himself from a case involving Donald Trump’s claim of immunity related to the January 6th Capitol riot, despite flags associated with the insurrection being flown at Alito’s properties. Mr. Aftergut argues that Alito’s non-denial denials and failure to condemn the violence on January 6th raise serious questions about the appearance of impropriety and the Court’s legitimacy, suggesting that Alito should recuse himself to maintain public trust in the institution.

Progressives Need to Take the Gloves Off and Play Hardball with Our Rogue Supreme Court

Amherst professor Austin Sarat discusses the increasingly partisan and unethical behavior of the conservative majority on the U.S. Supreme Court, providing examples of actions by Justices Samuel Alito and Clarence Thomas that he argues undermine public trust in the institution. Professor Sarat contends that progressives in Congress need to take more aggressive action, beyond speeches and task forces, to hold the Court accountable and rein in rogue behavior, suggesting they use their oversight powers to subpoena justices and potentially reduce the Court’s budget.

Of Mass Torts, Multidistrict Litigation, and Collateral Estoppel: Notes on Justice Thomas’s Dissent from the Denial of Certiorari in E.I. du Pont de Nemours & Co. v. Abbott

Laura Dooley and Rodger Citron, both professors of law at Touro University, Jacob D. Fuchsberg Law Center, discuss the Supreme Court’s denial of certiorari in E.I. du Pont de Nemours & Co. v. Abbott, a mass tort case involving the application of nonmutual offensive collateral estoppel in a multidistrict litigation (MDL) context. Professors Dooley and Citron argue that while Justice Thomas’s dissent raises concerns about fairness and due process for the defendant Du Pont, the Court’s denial of certiorari appropriately defers to the lower courts’ fact-specific analysis and recognizes that plaintiffs in mass tort cases have the same right to efficient procedures as corporate defendants, so long as their use is fair.

The Federal Judge Who Sold Justice: A Review of Gary Stein’s Biography of Martin Manton

Touro University, Jacob D. Fuchsberg Law Center, professor Rodger D. Citron reviews Gary Stein’s biography “Justice for Sale: Graft, Greed, and a Crooked Federal Judge in 1930s Gotham,” which tells the story of Martin Manton, a once-prominent federal judge who served on the U.S. Court of Appeals for the Second Circuit but resigned in disgrace in 1939 after being indicted on corruption charges for selling his office. Professor Citron explains that while Manton was a product of the corrupt Tammany Hall political machine era in New York, his misconduct was exceptional in extending to the federal judiciary, and his story serves as an important reminder that federal judges are human and not immune to temptations, underscoring the need for appropriate financial disclosures and oversight to maintain the integrity and authority of the courts.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at the University of... 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 Dwight D. Opperman Professor of Law and Director of the Center of Labor and... 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 Government at Cornell University. He was Counsel of Record in... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

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