Trump Lawyer Reads the Constitution Like a Secret Code Requiring Decryption

Cornell Law professor Michael C. Dorf comments on last week’s Supreme Court oral arguments in Trump v. Anderson, in which the Justices seemed inclined to overturn the Colorado Supreme Court’s decision that disqualified Donald Trump from the state’s Republican primary under the Fourteenth Amendment for “engaging in insurrection.” Professor Dorf points out that the Justices’ questioning revealed a spectrum of potential rationales, from concerns over political retribution and the historical interpretation of Section 3 of the Fourteenth Amendment to structural arguments about federal versus state authority in determining a candidate’s eligibility for the presidency.

The Supreme Court’s Oral Argument in Trump v. Anderson: The Court’s Seeming Failure to Understand Some Basic Starting Points

UC Davis Law professor Vikram David Amar expresses concern over the quality of the Supreme Court’s oral argument in Trump v. Anderson, suggesting that the Justices’ questions failed to adequately address the complexities of the case and the constitutional principles at stake, particularly regarding the electoral college and interstate federalism. Professor Amar critiques the Court’s understanding of the electoral college system, arguing that the Justices’ apprehensions about the potential consequences of their decision overlook the inherent flexibility states have in appointing electors—a flexibility underscored by originalist constitutional interpretations and past precedents.

Robert Hur’s Report on Biden Shows How Ageism Works

Amherst professor Austin Sarat criticizes the ageism evident in special counsel Robert Hur’s report on Joe Biden's handling of classified documents, highlighting its undue focus on the President’s age-related memory issues as irrelevant and prejudicial. Professor Sarat argues that such ageism, while pervasive and often ignored, undermines the valuable contributions of older individuals, emphasizing the importance of experience over age-related cognitive decline.

Federal Jurisdiction and the Limited Liability Company: Should the Diversity Statute be Amended?

Touro University, Jacob D. Fuchsberg Law Center, professors Meredith R. Miller and Laura A. Dooley discuss the complexities of federal jurisdiction in cases involving limited liability companies (LLCs), suggesting an amendment to the diversity statute to simplify determining an LLC’s citizenship based on its state of creation and principal place of business. Professors Miller and Dooley evaluate the strategic implications of such a change from both procedural and business law perspectives, considering the impact on litigants’ access to federal courts, the influence of recent legislative efforts on ownership transparency, and the balance between offering fair legal proceedings and maintaining the advantages of state versus federal litigation.

Oklahoma’s New Execution Plan Highlights the Magnitude of America’s Death Penalty Problems

Amherst professor Austin Sarat comments on the proposal by Oklahoma’s Attorney General and the Director of the Department of Corrections to execute execute six individuals with 90-day intervals between each, in a purported effort to address operational and mental health strains on execution team members. Professor Sarat points out that this plan fails to address deeper injustices within the death penalty system, not the least of which is the significant toll on those involved in executions, as well as the systemic issues of unfair trials and racial bias affecting death row inmates.

Look Away: How the Supreme Court Could Set Aside Trump’s Disqualification for Insurrection under the Fourteenth Amendment

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, argues that the U.S. Supreme Court should uphold the decisions of the Colorado and Maine courts that disqualified Donald Trump from running for President under Section 3 of the 14th Amendment based on his role in the January 6, 2021 attack on the U.S. Capitol. Mr. Falvy identifies several ways that the Court could rationalize putting Trump back on the ballot and explains the legal and consequential problems with each. In particular, Mr. Falvy criticizes the superficially appealing “let the people decide” line of thought, pointing out that it is actually highly undemocratic and dangerous; indeed, such dictators as Louis-Napoléon Bonaparte in France, Adolf Hitler in Germany, and Hugo Chavez in Venezuela, each launched a failed coup d’état, endured a short stint in jail, and returned to win power through elections.

Tragedy, Foresight and the Carceral State

Cornell professor Joseph Margulies discusses the groundbreaking prosecution for involuntary manslaughter of Jennifer and James Crumbley, parents of Ethan Crumbley, who killed four classmates in a school mass shooting. Professor Margulies highlights legal and moral complexities surrounding causation and parental responsibility, questioning whether the parents’ negligence in not foreseeing their son’s violent actions, despite clear warning signs, justifies holding them criminally liable for the murders. Professor Margulies also reflects on the broader implications for societal expectations of parental foresight and the limits of criminal law in addressing such tragic events.

Why a Recent Federal Lawsuit Filed by Republican Party Officials Challenging Mississippi’s Approach to Counting Ballots in Federal Elections Lacks Any Significant Chance of Success

UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone comment on a federal lawsuit filed by the Republican National Committee and the Republican Party of Mississippi, among others, challenging Mississippi’s law that counts mail-in ballots postmarked by Election Day but received within five business days thereafter for federal elections. Professors Amar and Mazzone argue that this lawsuit is unlikely to succeed due to the implausibility of its legal theory, highlighting the distinction between the act of voting and the counting of votes, and underscoring the constitutional and statutory framework that grants states broad leeway in election administration, including the acceptance of mail-in ballots.

Should Death Penalty Abolitionists Try to Make the Death Penalty More Humane?

Cornell Law professor Michael C. Dorf discusses the recent execution of Kenneth Eugene Smith by nitrogen hypoxia in Alabama, questioning the humanity of this method and comparing it unfavorably to other methods like lethal injection and electrocution. Professor Dorf delves into the complexities of the death penalty, including the constitutional implications, the effectiveness of alternative execution methods, and the ethical dilemmas facing death penalty abolitionists and pharmaceutical companies regarding the provision of more humane execution drugs.

Has the Justice Department Just Issued a Warning to the CIA?

Cornell professor Joseph Margulies reflects on the Department of Justice’s recent indictment of four Russian officers for torturing an American in Ukraine, interpreting it as a significant legal and moral statement against torture. Professor Margulies speculates whether this action represents a broader condemnation of torture or a narrower stance against torture when Americans are victims, contrasting it with the U.S.’s own history of torture post-9/11.

Another New Execution Method, Another Botched Execution

Amherst professor Austin Sarat laments the continued occurrence of botched executions in the United States, focusing on the recent introduction of nitrogen hypoxia in Alabama, which resulted in another failed attempt. Professor Sarat describes the disturbing details of Kenneth Smith’s execution, where the promise of a quick and painless death by nitrogen hypoxia was broken, leading to a prolonged and torturous process, thus adding to the history of failed executions with new methods in the United States.

Why Some Sports Journalists May Want to Go to Law School Before They Opine About the Law: The Misguided Criticism of the University of Illinois and its Head Basketball Coach, Brad Underwood, Over the Terrence Shannon Jr. Case

UC Davis Law professor Vikram David Amar defends the University of Illinois’ reinstatement of standout basketball player Terrence Shannon Jr. following a court injunction against his suspension due to allegations of sexual misconduct. Professor Amar argues that the University’s compliance with the court order, which recognized Shannon’s due process rights under the Fourteenth Amendment, was legally sound, and emphasizes that the decision to play Shannon was not influenced by the unproven allegations but rather by a legal obligation to treat him as any other team member in good standing. Professor Amar criticizes commentary by sports journalists like Gary Parrish for misunderstanding the legal nuances and the University’s obligation to adhere to the court’s ruling, noting that the decision to play Shannon is a matter of legal compliance, not a disregard for the seriousness of the allegations.

Rebel Yell: Why a Civil War Amendment Has Donald Trump Fighting to Keep His Name on the Presidential Ballot

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, examines the constitutional and political implications of a Colorado Supreme Court ruling that disqualified Donald Trump from running for president in 2024, based on his involvement in the January 6, 2021 attack on the U.S. Capitol. Mr. Falvy discusses the legal and factual issues that the U.S. Supreme Court will have to resolve in the case, and the potential impact of its decision on the country's future.

The Supreme Court Should Use the Richard Glossip Case To Say That the Constitution Forbids Executing the Innocent

Amherst professor Austin Sarat argues that the Supreme Court should use the case of Richard Glossip, a death row inmate who claims actual innocence, to declare that the Constitution forbids executing the innocent. Professor Sarat points out the various procedural problems and prosecutorial misconduct in Glossip’s case, as well as the Supreme Court’s precedents on actual innocence claims—which support his argument for addressing this fundamental issue of justice.

The Supreme Court Gets a New Opportunity to Oppose Racism in America’s Death Penalty

Amherst professor Austin Sarat argues that the U.S. Supreme Court should grant review in Warren King’s death penalty case, which epitomizes the persistent racial biases in jury selection, especially in death penalty cases. Professor Sarat emphasizes the significance of the Batson v. Kentucky decision against race-based juror exclusion, critiques its inadequate enforcement, and argues that King’s case, marked by discriminatory jury selection, offers the Court a crucial opportunity to reinforce Batson and address racial prejudice in the legal system.

Trump and House Republicans’ Heads-I-Win-Tails-You-Lose View of Impeachment

Cornell Law professor Michael C. Dorf discusses Republicans’ political manipulation of the impeachment process, particularly in the context of Donald Trump’s flawed immunity claims and House Republicans’ baseless impeachment investigations against President Joe Biden and Homeland Security Secretary Alejandro Mayorkas. Professor Dorf emphasizes that impeachment should be grounded in actual high crimes and misdemeanors, not political disagreements or policy choices.

Massachusetts Supreme Court Takes an Important Step in the Battle to End Life Without Parole Sentences

Amherst professor Austin Sarat discusses the movement against life without parole (LWOP) sentences in the United States, highlighting its flaws similar to those in the death penalty system, including racial disparities and the finality of judgment. Professor Sarat commends the Massachusetts Supreme Judicial Court’s recent ruling against LWOP for offenders under 21, signaling a significant step towards reevaluating and potentially ending LWOP sentences, paralleling efforts against capital punishment.

The Incredible, Inconsistent, Incoherent Legal Arguments About Presidential Immunity Made by Donald Trump’s Lawyer

Amherst professor Austin Sarat argues that in Tuesday’s oral argument before the U.S. Court of Appeals for the D.C. Circuit, Donald Trump’s lawyer, John Sauer, contorted the Constitution’s language to claim presidents have absolute immunity from criminal prosecution for official acts, despite Trump’s impeachment lawyers previously stating presidents could face prosecution once leaving office. Professor Sarat points out that the appeals court judges appeared unconvinced by Sauer’s arguments, questioning how his broad immunity claim aligns with constitutional checks on presidential power.

Volunteering to Die: A Client’s Agony and a Lawyer’s Dilemma

Cornell professor Joseph Margulies reflects on the ethical and legal dilemmas faced by lawyers representing death row inmates who choose to end their appeals and face execution, drawing on his own experience resisting a client’s choice to be executed, driven by the belief that the conviction was unjust and the death row conditions were inhumane. Professor Margulies grapples with the complexities of upholding the law, respecting client autonomy, and questioning whether intervening in a client’s decision to volunteer for execution is always the right course of action.

Alabama’s Plan to Use Nitrogen Hypoxia to Kill Kenneth Smith Draws International Condemnation

Amherst professor Austin Sarat discusses international condemnation of Alabama’s planned execution of Kenneth Smith using nitrogen hypoxia, a method untested in executions—highlighting the broader issue of the United States’ isolated stance on capital punishment among constitutional democracies. Professor Sarat details Smith’s case, noting a previous failed execution attempt and the criticism from UN experts, the Catholic association Community of Sant’Egidio, and the European Union, all emphasizing the inhumanity and potential violation of international human rights laws in using such an experimental method for execution.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at the University of... 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 Dwight D. Opperman Professor of Law and Director of the Center of Labor and... 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