Cornell Law professor Sherry F. Colb comments on a recent interview in which actor Joaquin Phoenix, who is vegan, said that he would not “force” his nine-month-old son River to be vegan, though he hoped he would be. Professor Colb explores why the question and his answer have provoked strong responses among vegan activists and offers an alternative understanding of his statement that supports, rather than undermines, veganism.
Cornell Law professor Michael C. Dorf considers how the recent treatment of tennis player Naomi Osaka by the professional tennis establishment highlights key aspects of disability law. Professor Dorf argues that while reasonable people can disagree in many cases about what constitutes the “essence” of a sport for purposes of the Americans with Disabilities Act (ADA), no one can plausibly argue that speaking to reporters at a press conference is in any way essential to playing tennis.
Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—comments on a recent decision by a federal district judge in San Diego striking down California’s statewide ban on assault weapons. Professor Sarat observes that regardless of the outcome of the appeals in this case, the country will remain deeply divided about things like COVID-19 restrictions and gun ownership while our political leaders and the judges they appoint continue to repeat the underlying antipathies animating these divisions.
UNLV Boyd School of Law professor Leslie C. Griffin reflects on one of the earliest litigated ministerial exception cases, in which Billie Marie Barrett McClure sued the Salvation Army in 1971 for providing men with superior housing benefits as compared to women. Professor Griffin describes how the language of the petition for certiorari in that case (which was denied) raised some of the very issues that the Court did not fully consider until Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which it decided in 2012.
Using recent statements from Rutgers University as an example, Illinois Law dean and professor Vikram David Amar describes certain cautionary factors that high-level university administrators should bear in mind before engaging in institutional speech. Dean Amar explains the complexity of institutional speech in higher education and suggests that even well-intentioned speech can lead to unexpected criticism and responses.
Cornell Law professor Sherry F. Colb comments on the U.S. Supreme Court’s recent decision in Caniglia v. Strom, holding that police may not enter a private home to perform a “community caretaking” function without having a search warrant. Professor Colb suggests that by recognizing limits on the authority of law enforcement officers to enter a home without a warrant in these circumstances, the Court may be implicitly adopting the message of “defunding the police” by reallocating a non-police function to better-suited responders, such as social workers or mental health experts.
Illinois Law dean and professor Vikram David Amar critiques Supreme Court Justice Elena Kagan’s recent use of stare decisis doctrine and reliance interest in her dissenting opinion last term in Ramos v. Louisiana, and again this term in Edwards v. Vannoy. Dean Amar describes the reliance interest theory and explains why Justice Kagan’s reasoning is unusual and dubious.
Cornell Law professor Michael C. Dorf considers whether and how the U.S. Supreme Court next term might eliminate or substantially curtail the constitutional right to abortion recognized in Roe v. Wade. Professor Dorf describes the jurisprudence after that decision and argues that a decision that upholds the Mississippi law while purporting to forestall deciding the ultimate fate of Roe would be brazenly dishonest—albeit somewhat more likely than a clear overruling of Roe.
Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—comments on efforts by Republicans in 32 states to restrict the ballot initiative and voter referendum processes—two key levers of direct democracy. Professor Sarat describes origins and development of these processes in our country and argues that the opportunity for citizens to vote directly on the policies that affect their lives is an important democratic tradition that must be preserved.
In this second of a series of columns, Illinois Law dean Vikram David Amar and UC Davis Law professor emeritus Alan Brownstein continue their discussion of why the U.S. Supreme Court’s recent “Most Favored Nation” (MFN) approach to the Free Exercise Clause of First Amendment is troubling on a number of levels. Dean Amar and Professor Brownstein point out that an MFN-style approach is virtually guaranteed to cause geographical inequality because it relies upon fortuitous secular analogues.
NYU Law professor Samuel Estreicher and appellate lawyers Rex Heinke and Jessica Weisel describe the uncertainty surrounding whether Uber and Lyft drivers are subject to the Federal Arbitration Act. The authors note the split of authority across the nation and note that, depending on the outcome of litigation in the Second, Third, and Eleventh Circuits, the question may soon come before the U.S. Supreme Court to resolve.
Cornell Law professor Sherry F. Colb responds to an observation made by U.S. Supreme Court Justice Clarence in his concurring opinion in Jones v. Mississippi, noting an ostensible inconsistency in the language liberals use in discussing incarceration, as compared to pregnancy. Professor Colb acknowledges the face value of Justice Thomas’s point—that liberals refer to minors seeking an abortion as “women” and minors facing life imprisonment without the possibility of parole (“LWOP”) as “children”—but she points out that the difference in terminology reflects a consistent view that minors are not fully developed and should not be forced to do irreversible “adult” things like carry a pregnancy to term or serve a mandatory LWOP sentence.
Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—describes three kinds of defects and injustices inherent in capital punishment exemplified by the case of Pervis Payne, who is on death row in Tennessee. Professor Sarat points out that the death penalty in the United States is built upon erroneous convictions and miscarriages of justice, the prejudicial use of use of so-called victim impact evidence, and disproportionate targeting of defendants with intellectual disabilities or mental illness.
Igor De Lazari, a Brazilian legal scholar, Antonio Sepulveda, Professor of Law at the Getulio Vargas Foundation (FGV) and at the Fluminense Federal University, and Ana Beatriz a legal assistant at the Public Ministry Office of the State of Santa Catarina and Criminal Procedure Law Specialist, comment on the police use of lethal force in Rio de Janeiro. The authors suggest several institutional and social policy changes that would begin to address the disproportionate use of lethal force in Rio and restore public faith in its public security policy
UF Levin College of Law professor Neil H. Buchanan argues that the terms “cancel culture,” “wokeness,” and the like have come to mean only that the person using them does not like something that is being said or done. Professor Buchanan describes how these epithets are simply today’s (much more quickly adopted) versions of the 1990’s political correctness and “PC police”—all political tools for claiming victimhood.
Cornell Law professor Michael C. Dorf comments on last week’s announcement by the Facebook Oversight Board with its verdict regarding the company’s treatment of former President Donald Trump’s suspended account. Professor Dorf argues that the Board’s ruling makes sense in many respects, but makes two mutually exclusive demands of Facebook: clear rules for the sake of predictability and at the same time, flexibility for moderators to consider the individual context of a situation.
Cornell Law professor Sherry F. Colb explains why refusing to wear a mask is similar to refusing to wear a condom during intercourse with a partner who requests the use of a condom. Professor Colb points out that in both cases, the person is prioritizing himself over others and disregarding others’ safety.
In this first of a series of columns, Illinois Law dean Vikram David Amar and UC Davis Law professor emeritus Alan E. Brownstein discuss the U.S. Supreme Court’s apparent adoption of a “most favored nation” approach to protecting religious liberty under the Free Exercise Clause. Dean Amar and Professor Brownstein describe some of the problems with this approach and point out that the reason religious exercise receives constitutional recognition and protection is not because the Constitution assigns some heightened value to religious belief and practices over secular interests, but because we do not want the state to interfere with religious choice and the autonomy of religious individuals to associate with a religion of their choice.
UF Levin College of Law professor and economist Neil H. Buchanan responds to apparent plans by some Republicans to bring back the debt ceiling to obstruct the Biden administration. Professor Buchanan explains why that would be a bad idea and also why, if they do, President Biden might be able to kill the debt ceiling as a political issue.
Cornell Law professor Michael C. Dorf comments on the recent news that President Joseph Biden is using the word “genocide” to describe the Turkish regime’s murder of roughly 1.5 million Armenians during and after World War I. Professor Dorf explains why language matters in the context of genocide, torture, eugenics, taxes, and Humpty Dumpty.