Cornell law professor Michael C. Dorf comments on a recent Executive Order issued by President Trump calling for the creation of a “National Garden of American Heroes.” Dorf argues that we should recognize the Executive Order for the distraction that it mostly is and points out some of the Order’s fallacies, ambiguities, and inconsistencies.
Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on a religious liberty issue presented by the upcoming execution of Wesley Ira Purkey. Sarat explains that Purkey’s spiritual advisor is unable to attend Purkey’s execution due to the COVID-19 pandemic, and he points out that for the federal government to carry out the execution anyway would belie its purported commitment to religious liberty.
NYU law professor Samuel Estreicher and rising 2L Christopher Ioannou discuss how New York workers’ compensation law might apply to workers infected with COVID-19. Estreicher and Ioannou argue that despite some shortcomings of the workers’ compensation system, we should not take for granted its ability to allow workers to quickly receive medical attention and some amount of lost wages.
Illinois law dean and professor Vikram David Amar offers three observations on a measure recently approved by the California legislature that would, if approved by the voters, repeal Proposition 209, the voter initiative that has prohibited affirmative action by the state and its subdivisions since its passage in 1996. Amar praises the California legislature for seeking to repeal Prop 209 and for seeking to do so using the proper procedures, and he suggests that if Prop 209 is repealed, legal rationales for the use of race should be based not only on the value of diversity (as they have been for some time now), but also on the need to remedy past wrongs against Black Americans.
Cornell law professor Sherry F. Colb considers the policy question of whether, since the Constitution requires jury unanimity to convict a defendant of a serious crime, states should require a unanimous verdict to acquit a defendant, as well. Colb describes the reasons behind jury unanimity convictions and assesses whether they apply similarly to acquittals.
SMU Dedman School of Law professor Joanna L. Grossman comments on the U.S. Supreme Court’s decision in June Medical Services v. Russo, in which a 5-4 majority of the Court struck down a Louisiana law regulating abortion providers. Grossman describes the history of abortion decisions that got us to this place today and explains why the core right to seek a previability abortion without undue burden from the government remains intact.
Jareb Gleckel assesses what Chief Justice John Roberts’s concurrence in the June Medical decision might tell us about the future of abortion in the United States. Gleckel suggests that the concurrence suggests that the Chief Justice will not vote to overrule Roe and Planned Parenthood v. Casey but cautions that the test the Chief Justice embraces could provide a roadmap for anti-abortion states going forward.
Cornell law professor Joseph Margulies explores the idea of defunding the police, pointing out that we must first ask what tasks can only be performed by the police, and then ask the corollary question what tasks should the police do. Margulies uses several examples to illustrate the point that many tasks that we reflexively assign to the police can be better handled by others, and by assigning these tasks to others, we can effectively shrink the role of police in our society.
Touro law professor Rodger D. Citron analyzes the oral arguments in the cases before the U.S. Supreme Court regarding demands for President Trump’s financial records. Citron explains why it seems likely that the Court will reverse the lower courts’ decisions refusing to quash the House committee subpoenas and offers a number of observations based on his review of the transcript.
NYU law professor Samuel Estreicher and rising 3L Daniel Folsom comment on the U.S. Supreme Court’s recent decision in County of Maui v. Hawaii Wildlife Fund, in which the Court interpreted a provision of the Clean Water. Estreicher and Folsom argue that the case presented an opportunity to clarify the murky question of when the Chevron doctrine applies, yet the Court avoided answering that question.
UCLA law professor Joanna C. Schwartz and South Carolina law professor Seth W. Stoughton address some of the arguments commonly asserted to support qualified immunity, the doctrine that shields police officers from civil liability for constitutional violations. Schwartz and Stoughton argue that eliminating qualified immunity should not affect police decision-making and that existing Supreme Court doctrine gives police officers plenty of leeway to make mistakes without violating the Constitution. Because qualified immunity applies only to unreasonable actions by police officers, eliminating or substantially restricting it should not a chilling effect on police officers’ ability or willingness to respond to critical incidents.
In this second of a two-part series of columns considering the likelihood that President Trump will refuse to leave the White House even if he loses the election, UF Levin College of Law professor and economist Neil H. Buchanan describes the bad news that Trump and his supporters seem likely to use violence to keep him in office.
Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on a decision by a panel of the U.S. Court of Appeals for the D.C. Circuit holding that U.S. District Judge Emmet G. Sullivan exceeded his power by refusing to grant the Justice Department’s motion to dismiss the case against Michael Flynn, President Trump’s former national security advisor. Sarat explains the relationship between the judiciary and prosecutors and points out that that judicial deference toward prosecutorial decisions can only be reconciled with constitutional governance if prosecutors respect, and are guided by, canons of integrity and professionalism. Sarat argues that the current leadership of the Justice Department shows utter disdain for such canons.
In this two-part series of columns, UF Levin College of Law professor Neil H. Buchanan discusses some new reasons for guarded optimism that Americans are beginning to recognize—and thus might be able to mitigate—the danger Donald Trump represents to American democracy. In this first part, Buchanan grounds his guarded optimism in Joe Biden’s expressly voicing concern that Trump will not leave the White House if he loses the election.
Illinois Law dean and professor Vikram David Amar comments on the recent dispute over the U.S. Attorney for the Southern District of New York and explains what President Trump and Attorney General Barr could have done to avoid the problem altogether. Amar describes a process that, if followed, could have allowed the administration to appoint their first-choice candidate without causing the controversy in which it now finds itself.
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.
SMU Dedman School of Law professor Joanna L. Grossman and University of Pittsburgh law professor Deborah L. Brake comment on the U.S. Supreme Court’s recent ruling that Title VII prohibits discrimination on the basis of sexual orientation and gender identity. Grossman and Brake discuss the history of court decisions interpreting the meaning of “because of sex” under Title VII and describe the Supreme Court’s reasoning in Bostock v. Clayton County.
Cornell law professor Michael C. Dorf discusses a claim by Missouri Senator Josh Hawley that the purpose of originalism and textualism is to provide a mechanism for obtaining results that religious conservatives favor on ideological grounds. In light of two recent Supreme Court decisions that disappointed conservatives, Dorf considers how conservatives might respond to these decisions and expresses hope that they might rethink their support for Trump. Dorf observes that while Supreme Court rulings do sometimes follow election returns, the reverse is also sometimes true, and we can’t yet know which direction this year will flow.
Igor De Lazari, a Brazilian legal scholar, and Antonio Sepulveda, Professor of Law at the Getulio Vargas Foundation (FGV) and at the Fluminense Federal University, offer a comparative analysis of warrantless searches in Brazil and the United States. De Lazari and Sepulveda call for guidance from each country’s high court to help clarify the law and facilitate uniform and predictable rulings on the constitutionality of certain warrantless searches.
Cornell law professor Joseph Margulies uses the killing of Rayshard Brooks in Atlanta by police to explain some lessons for reform we might learn. Margulies calls upon us to use this case to reexamine the circumstances that should result in a custodial arrest and to shrink the function of police so as to use them only in the very few situations that truly require them.