Analysis and Commentary on Criminal Law
Lessons of the Cooper Affair

Cornell law professor Joseph Margulies comments on the recent incident in which Amy Cooper, a young white woman, called the police on Christian Cooper, an African American man who was birdwatching in Central Park. Margulies argues that the repercussions of Ms. Cooper’s actions—her suffering public ridicule and losing the valuable commodity of anonymity—achieve both the consequentialist and retributivist purposes of our penal system, so for the state to prosecute her as well would serve only to humiliate and demonize her

A Profile of John J. Gleeson, the Trial Court’s Proposed “Friend Of The Court” in the Michael Flynn Case

Touro law professors Jeffrey B. Morris and Rodger D. Citron conduct a profile of John J. Gleeson, the lawyer and former judge who has been appointed as a “friend of the court” to advise the federal district court on a matter where the U.S. Department of Justice is seeking dismissal of the case against former national security advisor Michael Flynn. Morris and Citron describe Gleeson’s background both on and off the bench and predict that, if given the opportunity to fulfill his role, Gleeson will certainly be fair and proper in determining the proper way to deal with Michael Flynn’s case.

Is My Dog a Psychopath? What Predators May Tell Us About the Insanity Defense

Cornell law professor Sherry F. Colb describes an incident where her dog “K” stalked and killed a rabbit, and she considers what criminal-law inferences we might draw from observing such predators’ behavior toward their prey. Colb ponders what distinguishes a dog who kills a rabbit from psychopaths who commit heinous crimes, noting that among humans, a so-called “moral imbecile” lacks conscience and empathy for others, and our society deems such individuals as deserving punishment.

Supreme Court Reverses “Bridgegate” Convictions

Cornell law professor Michael C. Dorf comments on last week’s decision by the U.S. Supreme Court reversing the convictions of two New Jersey officials for their role in the so-called “Bridgegate” scandal of 2013. Although the Court made clear that the underlying conduct was dangerous and wrong, its holding reversing the convictions may effectively permit corrupt bullies to continue to exercise political power, due in part to inadequate responses from other political actors.

Why People Dislike the Insanity Defense

Cornell law professor Sherry F. Colb comments on the insanity defense, considering when and why juries (and others) might perceive a criminal defendant to be not guilty by reason of insanity. Colb proposes that if a criminal defendant’s mental illness looks like an outside force that made him behave in an out-of-character fashion, then the jury is more likely to find him not guilty by reason of insanity.

Is Retribution Worth the Cost?

Cornell law professor Sherry F. Colb discusses the four purported goals of the criminal justice system—deterrence, incapacitation, retribution, and rehabilitation—and argues that retribution may preclude rehabilitation. Colb considers whether restorative justice—wherein a victim has a conversation with the offender and talks about what he did to her and why it was wrong—might better serve the rehabilitative purpose than long prison sentences do.

Will Coronavirus Stop America from Carrying Out Executions?

Guest columnist Austin Sarat—Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—points out one unusual effect of the COVID-19 pandemic: deferring the executions of death row inmates. Sarat observes that while past pandemics have not affected the rate at which states have executed inmates, last week the Texas Court of Criminal Appeals granted 60-day stays in the execution sentences of two men, and other states seem poised to follow suit.

“He Took It Like a Man”: Harvey Weinstein’s Conviction and the Limits of Discrimination Law

SMU Dedman School of Law professor Joanna L. Grossman comments on the recent conviction of Harvey Weinstein for criminal sexual assault in the first degree and rape in the third degree. Grossman points out that our country’s antidiscrimination laws do not actually protect the people they intend to protect, instead focusing on employer policies and procedures. She argues that we should take this opportunity to learn from the system of criminal law, which did work in this case, to fix the antidiscrimination laws that purport to protect against sexual harassment and misconduct.

Did President Trump Commit the Federal Crime of Bribery?

NYU law professor Samuel Estreicher and 3L Christopher S. Owens analyze, based on the facts presently known to the public, whether President Trump committed the federal crime of battery. After describing the elements required for the offense of bribery, Estreicher and Owens conclude that Trump’s conduct would support a finding of an exchange of official acts (by Trump) for things of value (the public statement sought from Zelensky), as well as the corrupt intent necessary to maintain a bribery charge.

What Insanity and Animal Welfare Have in Common

Cornell law professor Sherry F. Colb why the question whether a state may abolish the insanity defense (presently before the Supreme Court) is similar to the question whether a state should adopt so-called animal welfare laws. Colb argues that both the insanity defense and animal welfare measures provide the public with a sense of moral relief but only if we willfully ignore the reality of how animals and criminal defendants are treated.

A Critical (Non-Dershowitz) Look at Statutory Rape Laws

Cornell law professor Sherry F. Colb cautions against using a disgust reaction alone to justify legislation—particularly legislation involving criminal penalties. Colb points out that disgust can sometimes help us determine that something bad is in fact going on, but we should not to allow disgust to power our moral choices without interrogation.

Exploring Cy Pres, Restorative Justice, and Earned Redemption through Fleabag: Part II in a Series

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.

You’re So Vague, You Probably Think This Law’s Not About You

Cornell law professor Sherry F. Colb considers when the void-for-vagueness doctrine, which has a due process component, does and does not make sense. Colb argues that differences in the length of a criminal sentence have little or no deterrence effect, so imposing long sentences as an attempt to deter crimes is a waste of resources.

What Makes Self-Defense Justifiable?

Cornell law professor Sherry F. Colb discusses the criminal defenses of self-defense and defense of others and considers what role emotions should and do play in society’s assessment of whether a person’s violent conduct is justified and thus not criminally punishable. Colb argues that fear, rather than anger, most clearly motivates legitimate uses of self-defense or defense of others, but the mere fact of the victim’s anger (which might be present in addition to fear) should not necessarily mean the victim is criminally culpable.

How Should A Progressive Prosecutor Respond to Injustice Beyond Her Courtroom?

Cornell law professor Joseph Margulies explains why and how a progressive prosecutor should work to correct injustice throughout the criminal justice system. Margulies argues that a prosecutor must not, for example, turn a blind eye to the prisons in her state or pursue convictions for unjust laws.

A Welcome Turn to Violence

Cornell law professor Joseph Margulies describes several refreshing perspectives in the area of criminal justice reform that tackle the crucial and difficult issue of violent crime. By way of background, Margulies explains the simplistic and erroneous idea that drives the enormous (and enormously expensive) carceral state and explains the importance of recognizing humanity in order to begin to dismantle it.

Seven Steps for Progressive Prosecutors

Cornell law professor Joseph Margulies describes seven steps that progressive prosecutors must take to advance three fundamental principles of meaningful criminal justice reform—dignity, community, and equity. Margulies explains the importance of going beyond piecemeal initiatives to truly embracing and furthering an alternative organizing vision for the prosecutorial function.

Lawmakers Must Stop Cooperating in the Bishops’ Dirty Tricks

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.

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

MARCI A. HAMILTON is the Fels Institute of Government Professor of Practice, and Fox Family... 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 Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell... more

Lesley Wexler
Lesley Wexler

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