Analysis and Commentary on Philosophy and Ethics
Transitional Justice and Inauguration Poems

Illinois law professor Lesley M. Wexler describes how Amanda Gorman’s The Hill We Climb and Jericho Brown’s Inaugural,’ an Original Poem—as two inaugural poems—fit within the call of transitional justice. Professor Wexler explains how, read together, the two poems provide a roadmap of the transitional justice terrain the government may choose to tread.

Apology as Accountability in Transitional Justice

Illinois law professor Lesley M. Wexler discusses the possibility of and criteria for amend making, amid calls for national unity and moving forward after the violence at the Capitol on January 6. Professor Wexler focuses on Oklahoma Senator James Lankford’s recent apology after his call for an electoral commission, applauding Senator Lankford for his willingness to apologize but pointing out that these actions alone do not undertake much of the hard work demanded by restorative and transitional justice.

American Law’s Worst Moment—2020

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—explains why the police murder of George Floyd was the worst moment of 2020 in American law. Professor Sarat proposes that we remember the event and that date—May 25—as “infamous,” a word reserved for rare and atrocious events like the bombing of Pearl Harbor, in an attempt to capture the brutality and inhumanity of the act.

Pardonne-Moi

Cornell Law professor Sherry F. Colb describes the assumptions inherent in the executive pardon power and explains why the purpose of the presidential pardon forecloses the possibility of a self-pardon. Colb argues that the only person who would dare to try to grant a self-pardon—one who lacks empathy—is the very one who should not be exercising the pardon power at all.

Trump’s Lawyers Will Get Away with Facilitating His Anti-Democratic Antics and They Know It

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—predicts that because the lawyer discipline process is broken, President Trump’s lawyers will get away with facilitating his anti-democratic misconduct. Professor Sarat notes that Lawyers Defending American Democracy (LDAD) released a letter calling on bar authorities to investigate and punish members of Trump’s post-election legal team, but he points out that while LDAD can shame those members, it still lacks the ability itself to discipline or disbar.

Answering My Hate Mail

Cornell law professor Joseph Margulies describes a recent piece of hate mail he received from someone who apparently saw him quoted in an Associated Press article about what a Biden administration might mean for the 40 remaining prisoners in Guantanamo. Professor Margulies explains that he can forgive the writer because he knows the writer’s rant most likely comes from a place of psychological and cultural insecurity, but at the same time he also holds the writer accountable for his behavior.

Pope Francis’s Statement Endorsing Civil Protections for Same-Sex Couples Undermines the Moral Legitimacy and Legal Arguments in Fulton v. City of Philadelphia

David S. Kemp, a professor at Berkeley Law, and Charles E. Binkley, MD, the director of bioethics at Santa Clara University’s Markkula Center for Applied Ethics, consider the implications of Pope Francis’s recently revealed statement endorsing same-sex civil unions as they pertain to a case currently before the U.S. Supreme Court. Kemp and Binkley argue that the Pope’s statement undermines the moral legitimacy of the Catholic organization’s position and casts a shadow on the premise of its legal arguments.

Can We Forgive the President?

Cornell law professor Joseph Margulies wonders whether we can—and specifically whether he can—forgive President Trump for all of the bad things he has done. Margulies reflects upon his career of representing those people many regard as monsters and concludes that he cannot and will not join in demonizing President or anyone else. Margulies points out that there are no monsters; we create monsters so we can demonize others as different from “us.”

Should Department of Justice Lawyers Defy William Barr?

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on an open letter addressed to the 100,000 professionals working in the U.S. Department of Justice and published by Lawyers Defending Democracy. In the letter, more than 600 members of the bar from across the United States call on their DOJ colleagues to refrain from “participating in political misuse of the DOJ in the elction period ahead.” Sarat argues that the letter rightly recognizes that Attorney General Barr’s blatant partisanship endangers the integrity of the DOJ itself and its role in preserving the rule of law.

William Barr Uses Victims and Their Families to Prop Up America’s Failing Death Penalty System

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—argues that Attorney General William Barr erroneously characterizes the families of victims of violent crimes as a homogeneous group unified in their support of the death penalty. Sarat points out that, in fact, some families of victims oppose the application of the death penalty (for a variety of reasons), so by trying to justify the reinstatement of the federal death penalty as bringing closure to victims and their families, Barr and his political allies are simply using these victims and their families to support his political ends.

The Right to Be Judged by What You Do, Not Who You Are

Cornell law professor Sherry F. Colb considers the case for occasionally including status—“who you are”—in assigning blame in criminal matters. Colb explains that generally, our penal system prohibits “status offenses,” but sometimes, such as in the case of psychopaths, we are comfortable deciding how to punish a person based at least in part on who they are.

Dear House Judiciary Committee: In Questioning William Barr, Employ the Ethics Complaint That 27 Distinguished DC Lawyers Filed Wednesday

Frederick Baron, former associate deputy attorney general and director of the Executive Office for National Security in the Department of Justice, Dennis Aftergut, a former federal prosecutor, and Austin Sarat, Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College, call upon the House Judiciary Committee to carefully read the ethics complaint by 27 distinguished DC lawyers against William Barr before questioning him today, July 28, 2020.

Narrow Debate About the Death Penalty

In light of the federal government’s resumption of executions, Cornell law professor Sherry F. Colb describes some of the common arguments of proponents and opponents of capital punishment. Colb observes that many of the moral arguments are based on a consequentialist perspective and suggests that a deontological perspective might lead to novel arguments and considerations about the death penalty.

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

William Barr Has Made the Federal Death Penalty a Weapon in Trump’s Campaign Arsenal

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on Attorney General William Barr’s recent order to resume federal executions and the political implications of that order. Sarat briefly describes the history of the federal death penalty in the United States and explains that, regardless of what state we live in, when the federal government puts someone to death, it does so in all of our names.

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.

Before She Died, “Jane Roe” Said She Was Never Really Pro-Life: Does It Matter?

Cornell law professor Michael C. Dorf comments on the revelation that before she died, Norma McCorvey—the woman who was the plaintiff in Roe v. Wade and who had subsequently become a prominent spokesperson for overturning the decision—said she was never really pro-life after all. Using this example, Dorf explains why, in some ways, the individual plaintiff’s identity does not matter for the purpose of deciding an important legal issue, yet in other ways, the plaintiff’s underlying story can be very important for other reasons.

Can Workers Tell Governors to Drop Dead? The Moral Authority to Defy Lockdowns

In this second of a series of columns about the COVID-19 protests, Cornell law professor Joseph Margulies argues, with some caveats, that workers have the moral authority to reopen their businesses in order to sustain themselves. Margulies notes that while he is not advising anyone to disobey the law (and while he personally supports the lockdown orders), business owners facing the impossible decision whether to follow the law or sustain themselves and their families are morally justified in defying the stay-at-home orders.

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