SMU Dedman School of Law professor Joanna L. Grossman and Stanford Law 1L Saraswati Rathod explain why recent efforts in various states to ban transgender women and girls from competing in women’s sports are dangerous and misguided. Professor Grossman and Ms. Rathod argue that the actions purport to solve a problem that doesn’t even exist, and they risk substantial harm to a vulnerable group of women and girls, as well as to women’s athletics across the board.
NYU Law professor Samuel Estreicher and Hofstra Law professor Julian G. Ku comment on a recent decision by a Pre-Trial Chamber of the International Criminal Court (ICC) ruling that the ICC’s jurisdiction extends to territory occupied by Israel during the 1967 Six Day War, namely, the West Bank, Gaza, and East Jerusalem. Professors Estreicher and Ku argue that the tenuous and legally unpersuasive nature of the ICC’s jurisdictional assertion in this case, as well as similarly aggressive findings over U.S. activities in Afghanistan, will only further weaken the tribunal’s overall international legitimacy going forward.
In this second of a series of columns on military sexual harassment and sexual assault, Illinois Law professor Lesley M. Wexler compares and contrasts the U.S. military’s efforts to address the problem with how the Canadian military is addressing the same issue. Professor Wexler notes that Canada’s government has adopted several tools to address sexual harassment and misconduct that the United States has not yet accepted, and while the two militaries are not identically situated, we should pay close attention their efforts and see whether lessons may be learned.
UNLV Boyd School of Law professor Leslie C. Griffin and University of Pennsylvania professor Marci A. Hamilton describe how the current Supreme Court is furtively undermining neutral and general laws by embracing a so-called “most favored nation” theory. Professors Griffin and Hamilton explain that under this dangerous approach, otherwise neutral laws that might incidentally burden religious exercise (such as zoning laws or public health regulations) are constitutionally suspect if they create any exceptions for purportedly secular activities, and, they argue, this can result in legal discrimination and harms to groups including LGBTQ+ individuals, children, those with disabilities, and others.
Cornell Law professor Sherry F. Colb comments on a recent episode of the podcast “Making Sense,” in which host Sam Harris talked with guests Bruce Friedrich and Liz Spech of the Good Food Institute about how we might all go about saving the world from climate disaster. Professor Colb notes a key point of discussion, that production and consumption of animal-based foods is a major contributor to the climate crisis, and argues that we just have to make ethical eating virtually identical to or better than unethical eating if we want to bring the vast majority of humanity along.
Illinois Law dean Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein comment on a recent decision by the U.S. Court of Appeals by the Sixth Circuit holding that the First Amendment protects a college teacher who refused to respect student gender-pronoun preferences. Dean Amar and Professor Brownstein argue that the court may have reached the wrong outcome on the facts, and in doing so it unnecessarily decided the extent to which a key Supreme Court case should or should not apply to the public higher education setting.
UF Levin College of Law professor and economist Neil H. Buchanan explains why President Biden’s infrastructure spending bill is inexpensive and necessary, given the long-term positive effects of such spending. Professor Buchanan puts the two-trillion-dollar price tag into context and argues that we actually need much more public investment than that.
Cornell Law professor Michael C. Dorf comments on a recent concurrence by Justice Clarence Thomas in a case in which the Court vacated as moot a federal appeals court ruling that the president cannot block users’ access to his Twitter account. Professor Dorf explains why Justice Thomas’s reasoning is deeply flawed, but he points out that Justice Thomas’s conclusion that the First Amendment might permit Congress to forbid Twitter from moderating content on its site finds unlikely support in arguments historically put forth by progressive politicians and scholars. In their view, very large private actors who exercise power over people’s lives comparable to and sometimes even exceeding that of government should be subject to the same sorts of norms that the Constitution applies to the government.
Illinois Law professor Lesley M. Wexler comments on a recent announcement by the Army Forces Command that fformal sexual harassment complaints would be moved out of the direct chain of command, instead going to an investigating officer outside the accused’s brigade. Professor Wexler explains that, while this might read as a small procedural change, it is actually a meaningful step for an institution long committed to a commander-centric justice model.
Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—describes ways in which states are attempting to normalize errors that occur during the process of lethal injection. Professor Sarat argues that lethal injection is demonstrably far from the painless form of death it once promised to be, and that it should be abolished in the United States.
SMU Dedman School of Law professor Joanna L. Grossman and Stanford Law professor Lawrence M. Friedman consider how the law views polyamory and polyamorous relationships. Professors Grossman and Friedman describe recent developments in family law and explain how those changes in the law have affected and will continue to affect the legal rights of people in polyamorous relationships.
Cornell Law professor Sherry F. Colb responds to the documentary mini-series called Allen v. Farrow, about Woody Allen, Mia Farrow, and the allegations of sexual abuse that their daughter Dylan made against her father. Professor Colb explains why it seems plausible that the man who lied casually on the phone with his ex-girlfriend would be capable of doing whatever he wanted to do, whatever he thought (correctly) he could get away with.
UF Levin College of Law professor Neil H. Buchanan describes the precarious situation of our democracy and notes that there are many necessary conditions for a constitutional republic to continue to operate, and because each is necessary, losing any of them would lead to the whole system crashing down. In this column, Professor Buchanan points out some of the many ways in which our nation could descend into autocracy.
Cornell Law professor Michael C. Dorf comments on a brief filed by Donald Trump’s former lawyer Sidney Powell in a defamation lawsuit brought by Dominion Voting Systems. Professor Dorf argues that Powell’s motion to dismiss the case should fail, but he notes that the argument presented in her brief is more subtle than is generally acknowledged.
UF Levin College of Law professor Neil H. Buchanan explains why it is not only possible and necessary to reform the president’s constitutional pardon power, but why doing so should be a high priority. Professor Buchanan argues that preventing future abuses of the pardon is critical to preventing its use as a tool of autocracy.
Guest columnist and former U.S. Congressman Brad Miller comments on recent reports that the Trump administration hindered and delayed investigations by inspectors general. Mr. Miller argues that to ensure that the inspectors general be able to do their job of preventing abuse of power, corruption, and incompetence, they should be made part of the Legislative Branch, rather than the Executive Branch.
In this second of a series of columns, Illinois Law dean and professor Vikram David Amar comments on the Kentucky proposal to change the way U.S. Senate vacancies are filled. Dean Amar argues that the Seventeenth Amendment precludes such a proposal, which would allow the state legislature to substantively constrain the governor’s choices in making a temporary appointment.
In this second of a series of columns, Illinois Law professor Lesley M. Wexler continues analogizing Oprah’s interview with Meghan and Harry to a truth commission and describes some goals against which we might measure the success of a truth commission. Professor Wexler proposes such measures as (1) whether the commission finishes its mandate and widely disseminates its findings, (2) whether it establishes a definitive narrative of the relevant abuses, and (3) whether it serves as catharsis for individual victims. She suggests that although some initial facts on the ground are negative, reform and reconciliation are still possible.
NYU Law professor Samuel Estreicher and Hofstra Law professor Julian G. Ku comment on a recent decision by the U.S. Supreme Court, holding that the doctrine of sovereign immunity bars claims based on Nazi-era expropriation of Jewish property. Professors Estreicher and Ku argue that the unanimous decision in that case, Germany v. Philipp reflects a now-solid trend of Roberts Court decisions limiting the reach of U.S. law and jurisdiction to stay within the territory of the United States while also avoiding controversial and unsettled interpretations of international law.
Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—comments on the decomposition of the legal injection paradigm over the past few decades, since it was first adopted in Oklahoma in 1999. Professor Sarat observes the evolution of the procedure over time and points out that none of the changes has resolved lethal injection’s fate or repaired its vexing problems.