Cornell law professor Sherry F. Colb discusses the criminal defenses of self-defense and defense of others and considers what role emotions should and do play in society’s assessment of whether a person’s violent conduct is justified and thus not criminally punishable. Colb argues that fear, rather than anger, most clearly motivates legitimate uses of self-defense or defense of others, but the mere fact of the victim’s anger (which might be present in addition to fear) should not necessarily mean the victim is criminally culpable.
Jareb Gleckel, a third-year law student at Cornell Law, comments on the legal and regulatory issues that arise from new food technologies such as “cell-based meat”—which is derived from stem cells to create meat that is identical, at the cellular level, to animal flesh, but does not require the raising and slaughtering of animals. Gleckel explains why both the Food and Drug Administration (FDA) and the Department of Agriculture (USDA) have been asked to exercise jurisdiction over this cell-based meat and argues that, given the position of “Big Ag” that the USDA should regulate cell-based meat, cell-based meat companies therefore have the right to call their products “slaughter-free meat,” “cruelty-free meat,” “antibiotic-free meat,” or even simply “meat.”
University of Florida Levin College of Law professor Neil H. Buchanan considers whether America, having elected Donald Trump, must consequently accept everything he does as “democracy at work.” Buchanan argues that constitutional processes exist not only to protect democracy not only in word but also in spirit, and that extreme consequences of legal action can still threaten the future of democracy.
Cornell law professor Michael C. Dorf explains why President Trump’s threat to escalate tariffs on all Mexican goods if Mexico had not stopped the flow of Central American Migrants erroneously presumes a win-lose situation where none exists. Dorf also explains the fallacy of the criticism that immigration and trade ought to be always kept separate in negotiations.
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.