To Become Speaker, McCarthy Undercuts Law, Order, and Country

Harvard Law professor emeritus Laurence H. Tribe and former federal prosecutor Dennis Aftergut argue that newly elected House Speaker Kevin McCarthy chose ambition over law, order, and country. Professor Tribe and Mr. Aftergut describe how Speaker McCarthy’s concessions to the radical Republicans put us over the brink and seriously endanger democracy.

The Pregnant Workers Fairness Act: A Long-Awaited Victory for Pregnant Workers

SMU Dedman School of Law professor Joanna L. Grossman comments on the Pregnant Workers Fairness Act, which Congress introduced for the first time in 2012 and which President Biden finally signed into law on December 29, 2022. Professor Grossman explains the gaps in pregnancy discrimination law, the need to better address the realities of pregnant workers, and the ways in which the new law will better meet their needs.

Why 2022’s Last Election-Denier Loss Matters

Former Massachusetts Attorney General Scott Harshbarger and former federal prosecutor Dennis Aftergut explain why the victory of Kris Mayes over Republican election-denier Abe Hamadeh in the race for Arizona Attorney General is so important to the entire country. Mr. Harshbarger and Mr. Aftergut provide four reasons Mayes’s victory is crucial and how it illustrates why every vote matters.

George Santos and the Right of Candidates to Lie

Cornell Law professor Michael C. Dorf comments on the revelation that George Santos, who is scheduled to take the oath of office as a new member of Congress tomorrow, lied about nearly his entire biography. Professor Dorf explains why the First Amendment likely prevents candidates from being held criminally liable for their lies, but he points out other ways we can sanction candidates who blatantly lie to gain office.

When the Time Comes, I’d Like to Die on My Own Terms—But the Massachusetts Supreme Court Won’t Let Me

Amherst professor Austin Sarat comments on the Massachusetts Supreme Judicial Court’s refusal to recognize a constitutional right to medical aid in dying. Professor Sarat describes the basis of that decision and explains why state courts should recognize that right based on their own state constitutions.

As America’s Death Penalty Declines, Let’s Not Lose Sight of the Glaring Injustices That Remain

Amherst professor Austin Sarat reflects on capital punishment in 2022, pointing out that while it has continued its decades-long decline, it is still plagued with serious injustices. Professor Sarat argues that as abolitionists litigate to stop death sentences and executions, we must remember that the fight must ultimately be won in the political arena rather than only in the courts.

Lessons from Sam Bankman-Fried’s Brief Stay in a Bahamian Jail

Cornell Law professor Michael C. Dorf reflects on what we might learn about criminal justice systems from FTX co-founder and former CEO Sam Bankman-Fried and his brief stay in a Bahamian prison. Professor Dorf points out that the prison where Bankman-Fried was detained has been described as “not fit for humanity”—not unlike many prisons in the United States and elsewhere. He argues that no one—regardless of wealth or social status—deserves that kind of suffering on top of their term of imprisonment.

Merrick Garland Stays on Offense Against Trumpist Violence

Former federal prosecutor Dennis Aftergut comments on Monday’s news that the January 6 committee approved criminal referrals for former President Donald Trump, John Eastman, and others. Mr. Aftergut argues that consistent prosecution and conviction of those who engage in political violence—not only those who participated on January 6, but also those who have done so afterwards—are vital to deterring future disorder.

It is Time for the Biden Administration to Join the Rest of the World in Moving Against the Death Penalty

Amherst professor Austin Sarat argues that the Biden administration should join the rest of the world in officially opposing the death penalty by supporting the U.N. General Assembly’s resolution establishing a moratorium on executions. Professor Sarat points out that while supporting the resolution would not force the federal or state governments to change the status quo, it would put this country on record as committed to ending the death penalty—a particularly important accomplishment for a President who ran as an abolitionist.

The End of a Bad Era: Congress Repeals the Defense of Marriage Act

SMU Dedman School of Law professor Joanna L. Grossman comments on the passage of the Respect for Marriage Act, which practically and symbolically enshrines protection for same-sex marriage in federal law. Professor Grossman explains the shameful history of the Defense of Marriage Act (DOMA) and the changes effectuated by the Respect for Marriage Act.

SCOTUS Should Revisit Demeanor’s Role in the Courtroom

UConn School of Law professor Julia Simon-Kerr comments on a case that squarely presents the question whether the courtroom demeanor and body language of a non-testifying defendant can play a role in the jury’s consideration of guilt or innocence. Professor Simon-Kerr points out that despite research showing no evidence that we can learn much, if anything, about a person’s untruthfulness from nonverbal cues, jurors frequently rely on those factors in deciding the credibility of witnesses and, apparently, even the culpability of non-testifying defendants. She suggests that it although it is unlikely the Supreme Court will agree to hear the case, the case presents the Court with a unique opportunity to begin a long overdue reexamination of the privileged role of demeanor in our system of proof.

Post-Argument Analysis in the Moore v. Harper Case Raising the So-Called “Independent State Legislature” (ISL) Theory: What Might the Court Do?

Illinois Law dean Vikram David Amar analyzes last week’s oral argument in the Moore v. Harper case before the U.S. Supreme Court, which raises the “Independent State Legislature” (ISL) theory. Dean Amar makes seven key observations, including that a majority of the Court seems poised to reject ISL’s basic textual premise but also a middle group of Justices seem inclined to retain U.S. Supreme Court oversight over state courts on issues of federal elections.

How Pro-Choice Advocates Are Protecting the Rule of Law

Former federal prosecutor Dennis Aftergut points out that the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, in which it eliminated the constitutional right to abortion recognized in Roe v. Wade invigorated pro-choice activists to overturn abortion bans and enact more protections for women. Mr. Aftergut argues that this engagement will serve the rule of law by helping to avoid the widespread disobedience that threatens it.

What the Weinstein Jury’s Lengthy Deliberation Does (and Doesn’t) Mean

Texas Law professor Jeffrey Abramson comments on the trial of disgraced mogul Harvey Weinstein, in which the jury has been deliberating since December 2 without reaching a verdict. Professor Abramson suggests that the jury may simply be working its way through the five weeks of testimony, and the only takeaway from the amount of time it is taking is that the justice system is working.

Can SCOTUS Prevent Free Speech from Swallowing Anti-discrimination Law?

Cornell Law professor Michael C. Dorf explains the options available to the U.S. Supreme Court as it considers 303 Creative LLC v. Elenis, which presents a clash between a Colorado law forbidding places of public accommodation from discriminating based on sexual orientation and a conservative Christian web designer’s objection to creating material that, she says, tacitly expresses approval of same-sex marriage. Professor Dorf points out that the Court could conclude that the case does not implicate free speech at all, but instead it will almost surely rule against Colorado, which could pose a potentially existential threat to anti-discrimination law.

Why the United States Faces an Uphill Battle Convicting Donald Trump for Unlawfully Removing Government Documents From the White House and Concealing Them at Mar-a-Lago

Attorney Jon May discusses what offenses former President Donald Trump is likely to be charged with, and why the government may fail to convict him for any of those offenses. Specifically, Mr. May addresses the issues with each of the three statutes listed on the search warrant authorizing the search of Mar-a-Lago.

When the Supreme Court Overrules a Prior Constitutional Case, Has the Meaning of the Constitution Itself Changed? A Georgia Abortion Dispute Raises the Question

Illinois Law dean Vikram David Amar and California civil litigator Michael Schaps respond to the apparent view of a Georgia trial court judge that the current Supreme Court cannot retroactively affect the previous status (existence/non-existence) of a constitutional right found by a previous Court. Dean Amar and Mr. Schaps point out the flaws of this view and the absurd outcomes it would lead to if taken to its logical extension.

The Defense and a Special Prosecutor Agree About Unfairness in a Missouri Capital Case: Will That Be Enough to Stop an Execution?

Amherst professor Austin Sarat comments on a Missouri capital case in which both the defense lawyer and a special prosecutor appointed to review the case agree that unconstitutional racial bias played a crucial role in the handling of the case. Professor Sarat points out that such agreement is very unusual and that it thus falls to the Missouri Supreme Court to halt the execution so that the issues they have raised can be thoroughly investigated, or else allow the execution to go forward in a move that is perilously close to the state supreme court acquiescing in a lynching.

Will the Supreme Court Respect the Respect for Marriage Act?

Cornell Law professor Michael C. Dorf explains the scope and limits of the Respect for Marriage Act (RMA), which would codify a federal right to same-sex marriage. Professor Dorf argues that while the RMA cannot guarantee marriage equality for the long run, for now, it seems like a sensible hedge against an increasingly reactionary Supreme Court.

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

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

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

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

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

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