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.
SMU Dedman School of Law professor Joanna L. Grossman comments on a recent unanimous decision by the U.S. Supreme Court clarifying a procedural point about Title VII and the requirements of employees filing discrimination claims in federal court. As Grossman explains, the Court’s opinion correctly minimizes the importance of a technical requirement of employees and might as a result provide greater protection to employees who suffer from workplace discrimination.
Cornell law professor Sherry F. Colb discusses a question the U.S. Supreme Court will consider next term—whether the U.S. Constitution prohibits a state’s abolition of the insanity defense. Colb points out the various ways in which our current criminal justice system arbitrarily excuses some sources of criminal conduct but not others, and she argues that because of these inconsistencies already inherent in the system, the insanity defense cannot logically be required.
Michigan law professor Evan Caminker considers whether Special Counsel Robert Mueller could have—and whether he can yet—opine on whether President Trump committed a federal crime in obstructing justice. Caminker argues that if Mueller is subpoenaed to testify before Congress, he should say more than he did in his report.
BU Law emerita professor Tamar Frankel explains how seemingly small hidden transaction fees can add up to a significant cost to the investor, particularly in long-term investments. Frankel explains that strictly literal interpretations of the regulations of broker-dealers lead to this unfair and costly result for investors and argues that society should focus on reinforcing brokers’ fiduciary duties of care (expertise) and loyalty (avoiding conflicts of interest).
NYU law professor Samuel Estreicher comments on the position in the Department of Justice recently took with respect to the Patient Protection and Affordable Care Act (colloquially known as “Obamacare”), declining to defend any part of the Act in court. Estreicher argues that the DOJ’s position lacks justification and explains the weaknesses of the district court’s reasoning striking down the entire Act.
Cornell law professor Michael C. Dorf considers whether two New York bills—one that requires state and local officials to provide congressional committees with the President’s state and local tax records upon request, and the other that would permit the state to prosecute an individual for conduct that was presidentially pardoned—set a dangerous precedent for state interference with federal action. Dorf argues that these bills provide a permissible form of diagonal checks and balances between the branches of the state and federal government and do not raise constitutional concerns.
Marci A. Hamilton, professor at the University of Pennsylvania and CEO of CHILD USA, describes a recent development in the movement for reforming statutes of limitations for victims of sexual assault. As Hamilton explains, New Jersey Governor Phil Murphy signed into law a bill that applies not only to children, but also to victims who were sexually assaulted as adults.
Illinois law dean and professor Vikram David Amar comments on the Supreme Court’s recent decision in Franchise Tax Board v. Hyatt and what it says about stare decisis, the notion that prior Court rulings are entitled to respect in the Court today. Amar explores the point the dissent makes about reliance and argues that reliance principles should drive the Court’s approach to stare decisis.
Cornell law professor Sherry F. Colb describes some ideological inconsistencies with the abortion law recently passed in Alabama, which prohibits all abortions except those necessary to protect against a serious health risk to the pregnant woman. Colb points out if an embryo or fetus and the woman carrying it are equally entitled to exist, then the exception for the serious health risk to the woman is inconsistent with that perceived equality. Colb also argues that the decision of Alabama lawmakers to penalize the abortion provider but not the abortion seeker similarly requires accepting on some level that a woman and her embryo or fetus are not co-equal occupants, which is inconsistent with the pro-life vision behind Alabama’s law.
SMU Dedman School of Law professor Joanna L. Grossman comments on the recent decision by the Kansas Supreme Court recognizing a state constitutional right to abortion. Grossman explains the historical backdrop of the dispute and describes the reasoning behind the decision of the Kansas Supreme Court.
Illinois law dean Vikram David Amar and professor Jason Mazzone considers whether (and when) a legislature should pass laws that court are likely to invalidate under current precedent. Amar and Mazzone argue that when legislatures enact laws that are at the time unenforceable, the legislatures are not necessarily wasting legislative resources or defying constitutional limits, but sometimes helpfully informing the work of other governmental actors and guide the resolution of constitutional issues
BU Law emerita professor Tamar Frankel argues that while private ordering—that is, rules of behavior without the backup of law—works well in some situations, such as among diamond traders and farmers, it cannot work in other situations, including the financial system. Frankel provides a brief review of the literature on private ordering and explains why the financial system cannot work under this model, and indeed why applying it would cause dangerous trends and damaging consequences.
Cornell law professor Michael C. Dorf comments on the US Supreme Court’s recent decision in Franchise Tax Board of California v. Hyatt, in which the conservative majority departed sharply from the brand of originalism that Justice Clarence Thomas (who authored the opinion) and his fellow conservatives purport to favor. Dorf points out the inconsistency of the Court’s conservative bloc criticizing liberal-leaning doctrine based on broad text in rights cases while simultaneously (as here) fashioning right-leaning doctrine from the murky materials of structure and history rather than text.
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.
Illinois law dean and professor Vikram David Amar comments on President Trump’s recent tweet suggesting that if the Democrats were to try to impeach him, he would ask the Supreme Court to block the impeachment. Amar argues that while critics of that assertion are correct, the legal matter is more complicated than might appear at first blush.
Marci A. Hamilton, professor at the University of Pennsylvania and CEO of CHILD USA, explains why the modest steps taken by Pope Francis ostensibly to address the child sex abuse problem in the Church are not enough to effect meaningful change. Hamilton points out that the United States has also failed to act, with the notable exception of Representative Bobby Scott (D-VA), who proposed that the Child Abuse Prevention and Treatment Act (CAPTA) re-appropriation include a requirement that the states examine their laws related to institution-based sex abuse.
Cornell law professor Sherry F. Colb comments on a recent decision by the US Court of Appeals for the Sixth Circuit holding unconstitutional the use of chalk by police officers to track whether a parked car has remained longer than permissible. Colb considers whether the decision—which seems to faithfully apply the US Supreme Court’s decisions in Jones v. United States and Florida v. Jardines—falls short of the “reasonable expectation of privacy” test the Court established in Katz v. United States. Colb proposes a test that instead combines trespass, information-gathering, as well as some privacy interest in that information, arguing that such a test would better reflect the scope of the Fourth Amendment.
Dean Falvy, a lecturer at the University of Washington School of Law, comments on Special Counsel Robert Mueller’s report on the Trump-Russia affair. Falvy points out nine deliberate choices Mueller made in conducting the investigation and drafting the report and highlights one choice Mueller notably deferred to the people.
Cornell law professor Michael C. Dorf comments on three cases in which the US Supreme Court recently granted review that together present the question whether Title VII of the Civil Rights Act of 1964 forbids employment discrimination on the basis of sexual orientation and gender identity. Dorf points out that the cases pose a test for the Court’s conservative majority—whether they will keep faith with their textualist commitment and rule for the plaintiffs or instead follow their conservative social views and rule for the defendant employers.