Touro Law professor Laura Dooley comments on the U.S. Supreme Court’s decision in Dupree v. Younger, which held that there is no procedural requirement that a litigant who lost a “purely legal” issue at the summary judgment stage file a post-trial Rule 50 motion to preserve that issue for appeal. Professor Dooley points out that while the procedural issue raised in Dupree is ostensibly technical, it implicates numerous policy and strategy matters at the core of civil litigation in federal courts.
Arbitrator and mediator Barry Winograd comments on the recent decision by the U.S. Supreme Court in Coinbase v. Bielski, in which the Court held that a litigation stay is required when an interlocutory appeal permitted by Section 16(a) of the Federal Arbitration Act is taken from a federal district court order denying a motion to compel arbitration. Mr. Winograd summarizes the Coinbase decision, shares several thoughts about its reasoning, and considers the decision’s potential effects on arbitration practice.
Former federal prosecutor Dennis Aftergut highlights two points about the federal district court’s July 4 decision blocking the Biden administration from communicating with social media companies—points which, Mr. Aftergut argues, underscore the decision’s risk of sowing great mistrust in law. Mr. Aftergut contrasts the apparent “judge shopping” that put the case before a Trump-appointed judge with the even-handed approach of Special Counsel Jack Smith, and he points out the opinion’s glaring omission of an especially relevant precedent.
Illinois Law dean Vikram David Amar comments on the U.S. Supreme Court’s decision in Moore v. Harper, in which the Court forcefully repudiated the essence of the so-called “Independent State Legislature” (ISL) theory. Dean Amar describes the apparent evolution of several Justices’ views on ISL theory and explains how that evolution led to the Court’s sound rejection of the theory.
Cornell Law professor Michael C. Dorf contrasts the present Supreme Court with the one Yale Law Professor Alexander Bickel praised in a Harvard Law Review article in 1961. Unlike the Court Bickel described, which manipulated its docket to strategically avoid difficult and divisive issues, Professor Dorf argues that the present Court manipulates its docket to decide those issues—and often without full briefing or oral argument.
Amherst professor Austin Sarat comments on the most recent off-the-Court behavior by Justice Samuel Alito: preemptively responding to a ProPublica report that the Justice had gone on a $100,000 trip paid for by Republican mega-donor Paul Singer. Professor Sarat argues that this behavior is just the latest demonstration of Alito’s “grievance conservatism” and has no place on the highest court in the land.
Amherst professor Austin Sarat reflects on the acceptance speech by Chief Justice John Roberts of the American Law Institute’s Henry Friendly Medal. Professor Sarat argues that the speech demonstrates the Chief Justice’s lack of empathy for litigants whose lives the Court’s decisions affect and a lack of awareness of his own life of privilege.
Former federal prosecutor Dennis Aftergut comments on a recent development in the New York criminal case against Donald Trump—his filing of a notice to remove. Mr. Aftergut explains that this maneuver is simply a delay tactic and argues that Trump’s legal assertions are unlikely to succeed.
Penn professor Marci Hamilton and UNLV Boyd School of Law professor Leslie C. Griffin explain how six conservative Catholics were able to be on the U.S. Supreme Court at the same time. Professors Hamilton and Griffin describe how 1970s and 1980s laid the groundwork for today’s conservative Catholic Court and argue that this group is making extraordinary progress toward making the United States a Catholic theocracy.
Illinois Law Dean Vikram David Amar and Professor Jason Mazzone argue that, in light of the North Carolina Supreme Court’s “switcheroo” regarding partisan gerrymandering, the U.S. Supreme Court should immediately grant certiorari in Huffman v. Neiman to resolve the question of “Independent State Legislature (ISL) theory. Dean Amar and Professor Mazzone point out that the intense litigation pressure of today’s presidential elections and the shaky stature of the present Supreme Court together strongly support the Court acting quickly to resolve this pressing issue.
Criminal defense attorney and former federal prosecutor Jon May discusses the rules regarding televising high-profile trials and calls for the trials of former President Donald Trump to be televised in the interest of transparency. Mr. May argues that courts have adequate procedural controls to ensure jurors and the judicial process are sufficiently protected and that televising the trials will allow anyone, anywhere in the country or the world, to see the truth for themselves.
In this second of a series of columns in response to the Stanford Law School controversy involving disruption of a federal judge’s speech, Illinois Law dean Vikram David Amar and professor Jason Mazzone offer additional thoughts about how to design a training session about the freedom of speech and norms of the legal profession should include. Specifically, Dean Amar and Professor Mazzone discuss (1) when and how educational institutions should themselves speak, (2) the best ways to register disagreement with offensive speakers and messages, and (3) what schools should do about students who say they feel genuinely harmed or unsafe when certain kinds of speakers are present.
UNLV Boyd School of Law professor Leslie C. Griffin comments on the Attorney General’s Report on Child Sexual Abuse in the Archdiocese of Baltimore. Professor Griffin explains why statute of limitations reform is so important for victims to obtain justice.
NYU Law professor Samuel Estreicher and 3L Anuja Chowdhury comment on a recent decision by the U.S. Court of Appeals for the Ninth Circuit interpreting provisions of the Victims of Trafficking and Violence Protection Act of 2000 (TVPA). Professor Estreicher and Ms. Chowdhury explain the Ninth Circuit’s reasoning and conclusion that foreign defendants in TVPA civil actions cannot be found “present” within the meaning of the Act without a showing of either physical presence or purposeful direction of conduct towards the U.S. market.
Cornell Law professor Michael C. Dorf comments on the U.S. Supreme Court’s decision last week in Cruz v. Arizona, in which a 5-4 majority of the Court delivered a rare victory to a capital defendant. Professor Dorf describes the circuitous path Cruz’s case took and how it highlights an inadequacy in the standard for viewing the “adequacy” of state law grounds for denying federal judicial intervention.
Amherst professor Austin Sarat comments on the many attempts by South Carolina to resume executions in that state. Professor Sarat describes the recent history of capital punishment in that state and notes that a recent decision by the South Carolina supreme court put on hold a case involving death row inmates’ challenge to the state’s attempt to use the electric chair and the firing squad.
Amherst professor Austin Sarat points out the obsolescence of the Third Amendment and considers how we should regard that and other constitutional provisions that no longer serve the era in which we live. Professor Sarat argues that the Supreme Court has the unique authority to help the Constitution adapt to changing times, but the fascination of the Court’s current conservative majority with originalism threatens that adaptive capacity.
Harvard Law professor emeritus Laurence H. Tribe comments on a decision by a federal judge in Texas vacating the Biden administration’s loan forgiveness program. Professor Tribe argues that Judge Mark Pittman, a Trump appointee, incorrectly concluded that the court had jurisdiction to review the challenge to the debt relief program and explains why judicial restraint is such a critical part of a constitutional republic.
Former federal prosecutor Dennis Aftergut describes three pieces of news from Tuesday’s elections that Americans who value the Constitution should celebrate. Specifically, Mr. Aftergut highlights the defeat of key state gubernatorial election deniers, the continued confirmation of federal court judges, and the affirmation by voters of their faith in the evidence-based work that courts do.
Touro Law professors Laura Dooley and Rodger Citron discuss a case in which the U.S. Supreme Court will consider the constitutionality of a state statute authorizing the exercise of general personal jurisdiction over corporations registered to do business in the state. Professors Dooley and Citron argue that the Court will almost certainly declare the state statute violates the due process rights of the defendant corporation, and they explore why that outcome is such a foregone conclusion.