Analysis and Commentary on Criminal Law

The Many Faces of Backlash

Cornell University law professor Joseph Margulies considers how the politics of quiescence and backlash might manifest itself in the areas of criminal justice and national security. As to national security, Margulies predicts that backlash will be particularly potent, but as to criminal justice, his poor decisions that disproportionately affect poor people of color will unable to generate the same political resonance.

Clear Thinking About the Ferguson Effect

Cornell University law professor Joseph Margulies discusses the so-called “Ferguson Effect,” a hypothesis that increased public scrutiny of police violence correlates to higher rates of violent crime. Margulies argues that even if the Ferguson Effect is real—which he does not concede—the alternative of Zero Tolerance and other similar policies wreak havoc on poor communities of color. Margulies makes the case for communities having their own say in how they are policed.

Two Big Legal Misconceptions That Have Recently Arisen in the Presidential Race

Illinois Law dean Vikram David Amar and California civil litigation attorney Michael Schaps address two common misconceptions about the relationship between criminal law and politics that recently arose in the presidential race. Amar and Schaps explain first why the presumption of innocence does not apply to politics, and second, why the president actually does have the power to order prosecutions.

The Fury of the Mob: Comparing the Calls to Prosecute Clinton and Bush

Cornell University law professor Joseph Margulies compares and contrasts Donald Trump’s call for Hillary Clinton’s imprisonment and the same call against George W. Bush. Although he disagrees with both attempts to seek prosecution, Margulies argues that the call for Clinton’s imprisonment is at best akin to a lynch mob, whereas at least the desire to have Bush prosecuted reflects a good-faith attempt to use the law to punish war crimes.

Notorious P.I.G.: Rape Culture Meets Presidential Politics

SMU Dedman School of Law professor Joanna L. Grossman and University of Pittsburgh law professor Deborah L. Brake analyze the infamous video of Donald Trump boasting about what he can do to women, as well as the response of the Trump campaign. Grossman and Brake argue that Trump’s words in the video, and his non-apology following its release, epitomize the formula that creates rape-prone culture: deny harm, deflect responsibility, and normalize what happened.

Allocating Burdens of Proof in a Criminal Case: An Arizona Decision Raises Questions

Cornell University law professor Sherry F. Colb comments on a recent decision by the Arizona Supreme Court holding that a state statute properly created an affirmative defense to sexual abuse or child molestation when it placed the burden of proving no sexual motive on the defendant. Colb describes the court’s reasoning and explains why the U.S. Supreme Court should revisit its jurisprudence affirmative defenses to crimes and hold that some conduct may simply not be classified as an affirmative defense to be proved by the defendant in a criminal case.

Federal Investigations of Possible Corrupt Agreements by State Attorneys General who Threaten Criminal Prosecutions

Chapman University, Fowler School of Law, professor Ronald D. Rotunda argues that, in the interest of protecting free speech, the Attorneys General of New York and Massachusetts should comply with congressional subpoenas investigating whether the state attorneys general are part of a corrupt agreement with private interests seeking to harass. Rotunda argues that the state attorneys general are effectively chilling the free speech of scientists who question the validity of the theory that humans contribute to global warming.

A Defense of Shared Humanity: Criminal Justice and National Security

Cornell University law professor Joseph Margulies discusses two primary areas of law he has practiced during his career. Margulies explains how his time as a capital defense and civil rights attorney was a natural extension of his background in criminal defense investigation. Using an evocative example of a condemned individual deemed a threat to U.S. national security, Margulies shines a humanizing light on a demographic usually viewed as anything but by the American public in his argument against capital punishment.

The Future of the Supreme Court, Regardless of Who Wins the Election

Cornell University law professor Michael C. Dorf explains what can be deduced about the Supreme Court's future, even before the 2016 US presidential election. Dorf references the role that the Court plays in American public life while also offering notable examples of areas where the Court has little to no say. Additionally, Dorf reminds readers that many more cases are decided unanimously than by a single vote and that it is difficult to predict future ideological divisions among justices, regardless of whether they were nominated by a Republican or Democratic president.

Criminal Justice and the Myth of a Rising Tide

Cornell University law professor Joseph Margulies breaks down the 'rising tide' strategy of criminal justice and explains why this framework is ultimately misguided in the case of drug policy. Margulies explains that neither the class of drug nor the demographic of drug user is created equal within our criminal justice system due to a variety of factors that he explores in this column.

Racism, Classism, Feminism … and Brock Turner

Cornell University law professor Joseph Margulies responds to two of the most common criticisms of the trial and sentencing of former Stanford undergrad Brock Turner, who was convicted of sexually assaulting an unconscious woman. Margulies explains why a change to California law imposing a mandatory minimum sentence for this crime actually does not address these criticisms, and in fact exacerbates one of them.

Seeking to Criminalize the Clinton Foundation—A Footnote

Former counsel to President Nixon, John W. Dean argues that comparisons between former Virginia Governor Robert McDonnell and Democratic presidential candidate Hillary Clinton are inapt. Dean points out several ways in which Hillary’s behavior did not rise even to the level of that of McDonnell, and the U.S. Supreme Court found that even the latter did not support conviction.

The Outrageously False Charges of Perjury Against Hillary Clinton

John W. Dean, former counsel to President Nixon, discusses the charges of perjury and false statements brought against Hillary Clinton by congressional Republicans led by Bob Goodlatte and Jason Chaffetz. Dean closely scrutinizes the facts underlying the charges and concludes that the charges are utterly baseless and manifest an abuse of power beyond the pale of dirty politics.

Imposing Criminal Punishment by Introducing False Testimony

Ronald Rotunda, law professor at Chapman University, Fowler School of Law, comments on the latest developments in the criminal proceedings against Sholom Rubashkin—specifically the revelation that federal prosecutors introduced false testimony in pursuit of conviction. Rotunda provides background on the case and describes the misconduct of the prosecution in handling the case.

An Open Letter to the Change-Maker Hillary Rodham Clinton on Behalf of Sexual Abuse Victims in the United States

A Fox Distinguished Scholar in the Program for Research on Religion at the University of Pennsylvania, Marci Hamilton writes an open letter to Democratic Presidential Candidate Hillary Clinton on behalf of sexual abuse victims around the country. Hamilton asks Clinton what she will do as President of the United States to address the problem of child sex abuse and to help improve victims’ access to justice.

Can Criminal Justice Reform Survive Cleveland?

Cornell University law professor Joseph Margulies laments the revival of the “law and order” rhetoric triggered by the recent shootings in Dallas and Baton Rouge and seized upon as common ground for Donald Trump and the GOP. Margulies explains why greater police presence and more arrests actually make communities less safe, rather than safer, and argues that such changes threaten to undo the progress made in the criminal justice system over the past several decades.

Three Important Constitutional Lessons to Take From FBI Director Comey’s Statements About Hillary Clinton’s Email Management

Illinois Law dean and professor Vikram David Amar describes three lessons we should take from FBI Director Comey’s statements about Hillary Clinton’s email management. First, Amar points out that the president is the ultimate decisionmaker when it comes to all criminal prosecutions. Second, he argues that there are other ways that Republican leaders could seek to punish Ms. Clinton for what they believe to be wrongdoing—such as the impeachment process. Finally, Amar suggests that to prevent Republicans (or others) from doggedly trying to prosecute Ms. Clinton for years to come, regardless of the outcome of the presidential election, President Obama could pardon her just before he leaves office, as other presidents have done in numerous instances.

Should We Lift the Stigma on “Virtuous Pedophiles”?

Inspired by a Dan Savage podcast on the topic, Cornell University law professor Sherry Colb considers both the concept of “virtuous pedophiles” and some of its potential implications. Colb explains what this term means and draws several comparisons to other individuals who may be oriented toward a certain action that is either illegal or prohibited to them, ultimately expressing ambivalence toward the notion of the virtuous pedophile.

Finding Justice in Baltimore

Cornell University law professor Joseph Margulies explains why a criminal conviction of police officers is neither a necessary nor sufficient component of justice. In fact, Margulies argues that those who would dismantle the carceral state should not be the first to invoke it by seeking convictions as the sole means of justice.

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 Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar, a Professor of Law at The George Washington Univ... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.  Bef... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... 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 of L... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the leading church/state scholars in the United States, a Fox Distinguis... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney, writer, and editor at Justia. He received his B.A. in Psychology from... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more