Analysis and Commentary on Courts and Procedure
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.

Judge’s Ruling Helps January 6 Committee Zero in on Trump Lawyer’s Emails

Dennis Aftergut, a former federal prosecutor, explains how a recent ruling by a federal judge in Santa Ana, California, helps the House Select Committee investigating the January 6 attack get closer to obtaining emails from former Trump lawyer John Eastman. Mr. Aftergut argues that disclosure of Eastman’s emails would advance the committee’s search for truth, and with it, strengthened hope for preventing another insurrection.

Justice Breyer’s Legacy

In light of the news of Justice Stephen Breyer’s imminent retirement, Cornell Law professor Michael C. Dorf reflects on Justice Breyer’s career. Professor Dorf observes that Justice Breyer lacks a distinctive legacy largely for two reasons: (1) he was junior to O’Connor, Kennedy, and Ginsburg for their time on the Court together and thus did not get key liberal assignments, and (2) as a pragmatist and compromiser, his reasoning relied more on nuance than on bold strokes.

Can the Public Trust that an Unmasked Justice Gorsuch was Unbiased About Mandates?

Cornell law professor Michael C. Dorf asks whether we can trust that Justice Neil Gorsuch—who was the sole Justice not to wear a mask during oral arguments last week—was unbiased in considering two challenges to the Biden administration’s vaccine mandates. Professor Dorf argues that Justice Gorsuch’s refusal to wear a mask indicates that he either does not believe the public health guidance or thinks he should be free to decide for himself whether to follow it—both of which possibilities undercut public confidence in the basis for his votes in the vaccine cases.

Remembering Brett Kavanaugh

Cornell law professor Sherry F. Colb praises Ruth Marcus’s 2019 book, Supreme Ambition, about Brett Kavanaugh’s rise to power and the events that took place after Dr. Christine Blasey Ford accused him of sexual assault. Professor Colb notes that the book is engaging even for someone who closely followed the events as they occurred, and reflects on the trauma of living (and reliving) through that disillusioning period in our nation’s recent history.

Potential Juror Misconduct Threatens Ghislaine Maxwell Convictions

Texas law professor Jeffrey Abramson comments on a recent development in Ghislaine Maxwell’s jury trial for sex trafficking young girls to Jeffrey Epstein. Professor Abramson considers whether and to what extent Juror 50’s failure to disclose that he had been the victim of child sex abuse may upset the verdicts.

Who’s a Bounty Hunter? How the Supreme Court’s Own Standing Precedents Answer the Effort to Normalize Enforcement Outsourcing in the Texas Abortion Case

Cornell law professor Michael C. Dorf explains why the concern expressed by Justice Sonia Sotomayor in her dissent in the Texas abortion case (Whole Woman’s Health v. Jackson) that other states will follow Texas’s example and employ “private bounty hunters” is well founded and legitimate.

Kyle Rittenhouse, SB8 and the Dangerous Legalization of Vigilante Justice

Amherst professor Austin Sarat explains why the not guilty verdict of Kyle Rittenhouse sends a powerful message condoning vigilantism, particularly when coupled with the Texas law that authorizes private enforcement of its extreme prohibitions on abortion. Professor Sarat argues that vigilantism, including these instances, has historically taken root in times of social, cultural, and political transition, and in places with high levels of cultural diversity and institutional instability

A Question by Justice Thomas During the Second Amendment Argument Inadvertently Exposes a Weakness of his Originalist Philosophy

Cornell Law professor Michael C. Dorf explores the meaning of a question Justice Clarence Thomas asked during the oral argument in New. York State Rifle. & Pistol Association v. Bruen about the interpretation of the Second Amendment: “should we look at the founding, or should we look at the time of the adoption of the Fourteenth Amendment, which then, of course, applies it to the states?” Professor Dorf argues that the question exposes a weakness of Justice Thomas’s originalist philosophy and affirms what we already know about arguments rooted in original meaning: they typically serve a rhetorical function, and Justices invoke them to justify decisions taken on other, ideological, grounds.

The Supreme Court’s Authority is at Stake in the Texas Abortion Case

Cornell Law professor Michael C. Dorf argues that even the procedural issues presented in the federal government’s challenge to Texas’s restrictive abortion law are high stakes. Professor Dorf argues that the procedural question fundamentally asks whether the U.S. Supreme Court will permit state-sanctioned lawlessness.

From Boston to Brunswick, Georgia: The Perils of Jury Selection

Texas law professor Jeffrey Abramson explains why the trial judge in the case against the three men who chased and shot to death Ahmaud Arbery should not commit the same mistake that occurred in the Boston Marathon trial—speeding up jury selection to convict obviously guilty defendants, only to have the sentence thrown out on appeal. Professor Abramson argues that while judges may understandably feel frustrated during jury selection in high-profile cases, taking shortcuts during jury selection risks forcing victims, witnesses, and the community to live through traumatic events twice.

Alito, Texas Abortion and the Shadow Docket: Déjà vu All Over Again?

Amherst professor Austin Sarat and former federal prosecutor Dennis Aftergut comment on the U.S. Supreme Court’s increasing tendency to decide high-profile and far-reaching cases via its “shadow docket”—without oral argument or full briefing. Professor Sarat and Mr. Aftergut point out that recent remarks by Justice Samuel Alito reinforce the view that the Court has a partisan agenda that is increasingly out of step with the beliefs and values of the American people.

Would Overruling Roe v. Wade Retroactively Reanimate “Zombie” Abortion Laws?

Cornell Law professor Michael C. Dorf discusses an often overlooked procedural aspect related to Texas’s extreme anti-abortion law that could result in “zombie” laws taking effect in every other red state. Professor Dorf argues that there are several reasons to hope that a state scheme to retroactively enforce zombie abortion laws would fail, even if the Supreme Court curtails or eliminates the abortion right itself, not the least of which is that retroactive application of zombie laws is fundamentally unfair.

Mexican Government Lawsuit Against U.S. Gun Makers Tests the Limits of Territoriality

Cornell Law professor Michael C. Dorf discusses a lawsuit in which the government of Mexico is suing U.S. firearms manufacturers in federal court for failing to take reasonable steps to prevent their weapons from ending up in Mexico, profit from the trafficking of U.S.-made guns to Mexico, and in some respects deliberately target the illegal Mexican market. Professor Dorf argues that while the lawsuit presents strong moral and policy grounds for granting the Mexican government the relief it seeks, a 2005 federal statute, the Protection of Lawful Commerce in Arms Act (PLCAA), will likely prevent it from succeeding.

Improve the Supreme Court by Making it Less and More Like Elementary School

In light of the Presidential Commission holding hearings on Court expansion, Cornell Law professor Michael C. Dorf offers two reforms that build on the observations of others and his own experience. Professor Dorf suggests that the Court spread cases out over the entire year, rather than only between October and June/July, and that the Justices rotate the order of questioning from one argument to the next.

We Need a People’s (Not Presidential) Commission on the Supreme Court

Amherst professor Austin Sarat argues that a People’s Commission—rather than a Presidential Commission—on the U.S. Supreme Court is the only way to ensure that a democratic dialogue that truly represents the interests of the American people. In support of this argument, Professor Sarat draws upon a recent Gallup poll about public confidence in the Court and the highly critical testimony of Yale Law’s Samuel Moyn and Harvard Law’s Nikolas Bowie.

Can/Should A Federal Court Order the Creation of a Bipartisan Districting Commission in Illinois? Evaluating the Claims for Remedy in McConchie, the Republican Challenge to Illinois’s Recently Adopted Redistricting Plan

In this second of a series of columns commenting on Republican efforts to challenge the apportionment of Illinois state legislative districts that the General Assembly and the Governor recently enacted, Illinois Law dean Vikram David Amar and professor Jason Mazzone argue that a federal court may not be able to grant the relief the plaintiffs are seeking. Dean Amar and Professor Mazzone point out that the Illinois Supreme Court is the proper arbiter of the key legal question whether a commission is required under state law.

Evaluating the Republican Federal Court Challenge to Illinois’s Recently Adopted Redistricting Plan

In this first of a series of columns, Illinois Law dean Vikram David Amar and professor Jason Mazzone describe a lawsuit in which Republicans are challenging Illinois’s recently adopted redistricting plan. Dean Amar and Professor Mazzone identify several obstacles the lawsuit may face, which, in their estimation, make it unlikely to succeed.

Justice Kagan’s Unusual and Dubious Approach to “Reliance” Interests Relating to Stare Decisis

Illinois Law dean and professor Vikram David Amar critiques Supreme Court Justice Elena Kagan’s recent use of stare decisis doctrine and reliance interest in her dissenting opinion last term in Ramos v. Louisiana, and again this term in Edwards v. Vannoy. Dean Amar describes the reliance interest theory and explains why Justice Kagan’s reasoning is unusual and dubious.

Are Rideshare Drivers Like Uber’s and Lyft’s Subject to the Federal Arbitration Act?

NYU Law professor Samuel Estreicher and appellate lawyers Rex Heinke and Jessica Weisel describe the uncertainty surrounding whether Uber and Lyft drivers are subject to the Federal Arbitration Act. The authors note the split of authority across the nation and note that, depending on the outcome of litigation in the Second, Third, and Eleventh Circuits, the question may soon come before the U.S. Supreme Court to resolve.

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

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