In this second of a two-part series of columns, UF Levin College of Law professor and economist Neil H. Buchanan explains why “The Handmaid’s Tale” is a pre-documentary—not in that it predicts what literally will happen in the United States, but in that it accurately describes America’s shift toward becoming a dystopia. Professor Buchanan points out that the mechanisms are already in place for an autocratic government to dispossess citizens of their property, and the rest can be changed at will.
Former federal prosecutor Dennis Aftergut comments on a report by the U.S. Department of Homeland Security’s Inspector General that in mid-2020, Trump administration officials in that department delayed and altered an intelligence study reporting on Russian interference in America’s 2020 presidential election. Mr. Aftergut describes three reasons the DHS inspector general’s report is important and calls on all Americans to ensure the next Congress has a majority of representatives committed to preserving our constitutional republic.
Cornell Law professor Sherry F. Colb comments on a case pending before the U.S. Supreme Court that presents the question whether a plaintiff may sue a police officer for an interrogation that violates the rules announced in Miranda v. Arizona and results in a statement that the prosecution introduces at the plaintiff’s trial, which ends in acquittal. Professor Colb argues that whether one views adherence to Miranda as a constitutional requirement or instead as a prophylactic sub-constitutional practice should have little bearing on the outcome of the case.
In this first of a two-part series of columns, UF Levin College of Law professor and economist Neil H. Buchanan explains why the financial situation in ‘The Handmaid’s Tale’ (specifically, the TV series version based on Margaret Atwood’s 1985 novel) is entirely possible in real life under current US law. Professor Buchanan points out that currency is merely a construct based on perceived value, and strategic changes in policies by an autocratic government could easily deprive anyone of money they think is “theirs.”
In response to the leaked draft opinion by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Org., Cornell Law professor Michael C. Dorf comments on the likely ramifications of the Supreme Court’s overruling Roe v. Wade, the seminal case recognizing the constitutional right to seek an abortion. Professor Dorf argues that the language and reasoning of the draft suggest that this emboldened Court with a super-majority of Republican appointees is also preparing to overrule Lawrence v. Texas (recognizing the right of consenting adults to engage in same-sex sexual conduct) and Obergefell v. Hodges (recognizing the right of same-sex couples to marry).
Amherst professor Austin Sarat comments on Tennessee’s recent last-minute cancellation of the execution of Oscar Franklin Smith for a “technical oversight.” Professor Sarat points out that such problems typically mean that state officials identified contamination in the compounded execution drugs or the “use by date” had passed, but the veil of secrecy surrounding executions prevents the public from discovering the true nature of the problem.
Cornell Law professor Joseph Margulies describes a society in which no transgression is so severe that society dissolves the bonds that connect all of humanity by its very nature. Professor Margulies points out that we live in an age when demonization is a first impulse rather than a last resort, and the inclination to treat a fellow human being as irredeemably unworthy of membership is, for many people, irresistibly seductive.
Illinois Law dean Vikram David Amar and professor Jason Mazzone comment on a recent case from Virginia that suggests when revising admissions criteria to alter the racial makeup of a school’s student body is constitutional (and when it is not). Dean Amar and Professor Mazzone point out that although some Supreme Court Justices have suggested in dicta and dissents some permissible options, they may very well decide that those options too are impermissible, despite the natural and reasonable reliance on those writings.
Former federal prosecutor Dennis Aftergut describes the special role that lawyers play in preserving democracy—a role even more important today than it was at the county’s founding. Mr. Aftergut calls lawyers to action particularly in light of the news of a forthcoming memoir by Geoffrey Berman, the former US Attorney for the Southern District of New York who resigned rather than carry out former President Trump’s efforts to bring weak cases against political opponents.
UF Levin College of Law professor and economist Neil H. Buchanan argues that Democrats should expressly reject (rather than implicitly accept) Republicans’ erroneous interpretation of the Twelfth Amendment, on the off chance it matters in the next coup attempt. Professor Buchanan explains why the Twelfth Amendment’s fallback provision applies only when the Electoral College vote is a tie.
Former federal prosecutor Dennis Aftergut comments on Wednesday’s GOP conference meeting in which House Minority Leader Kevin McCarthy attempted to distance himself from recorded comments he made immediately after the January 6 insurrection. Mr. Aftergut argues that the only way to keep our republic from falling apart is for journalists, public officials, and citizens to keep fighting for public truth.
UNLV Boyd School of Law professor Leslie C. Griffin comments on Monday’s oral argument in Kennedy v. Bremerton School District, which presents a question about the intersection between the Free Exercise Clause, the Establishment Clause, and government speech jurisprudence. Professor Griffin describes how various Justices approached the case and what we might learn about how they are inclined to vote.
Former federal prosecutor Dennis Aftergut argues that the January 6 House Select Committee’s new filing provides further support for the indictment of former Trump chief of staff Mark Meadows. Mr. Aftergut calls upon Attorney General Merrick Garland to fulfill his vow to uphold the Constitution by enforcing compliance with lawful congressional subpoenas.
Cornell Law professor Michael C. Dorf comments on the recent decision by U.S. District Judge Kathryn Kimball Mizelle invalidating the federal mask mandate for travelers. Professor Dorf points out the flaws in Judge Mizelle’s reasoning and argues that her ruling reflects a right-wing ideology that is hostile to government agencies addressing even the most pressing social problems.
Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, describes the parallels between Russia’s invasion of Ukraine and Hitler’s invasion of Poland. Mr. Falvy argues that even if Russia can wrest more territory from Ukraine in the short term, it is difficult to foresee an end to the war it has started.
Cornell Law professor Sherry F. Colb comments on the recent arrest by Texas law enforcement officers of a woman who allegedly self-induced an abortion. Although the local district attorney’s office announced that there would be no murder prosecution, Professor Colb points out that the arrest itself exposes the impact of religious fanaticism on the law.
Former federal prosecutor Dennis Aftergut comments on three recent Supreme Court decisions in which Chief Justice John Roberts joined the dissent, demonstrating that he does not carry sway in decisions on central issues such as a woman’s right to choose, voting rights, or protecting the environment. Mr. Aftergut points out that how the Justices vote in the upcoming decision in Dobbs v. Jackson Women’s Health Organization will reveal whether the Roberts Court can preserve the core principles of judicial restraint in constitutional adjudication and stare decisis—or whether it is more appropriately called the “McConnell Court.”
Cornell Law professor Michael C. Dorf explains how the U.S. Supreme Court’s recent seemingly inconsistent decisions in Ramirez v. Collier and Austin v. U.S. Navy Seals 1–26can be reconciled by examining the nature of the government interests in each case. Professor Dorf points out that while the Court has held judicial deference to prison officials’ expert judgment on security questions impermissible under RLUIPA, it has not (and did not in the Navy Seals case) decided whether deference to the military is compatible with RFRA and whether, if not, RFRA is unconstitutional.
SMU Dedman School of Law professor Joanna L. Grossman describes the American child welfare system and argues that Texas Governor Greg Abbott’s attempt to weaponize state child abuse law against trans children and their parents is grossly unconstitutional. Professor Grossman points out that the child welfare system gives parents broad discretion to make medical decisions for their children, and a state cannot simply decide that a particular type of medical treatment constitutes child abuse because it is politically opposed to it.
Amherst professor Austin Sarat describes the current state of capital punishment in the United States, in particular, the 27 states that authorize death sentences but have not actually carried out an execution in the last five or ten years. Professor Sarat argues that this limbo for death row inmates causes unnecessary suffering and reflects an appropriate reluctance to kill in the name of the state.