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Should Prosecutors Worry About Having Jewish People on Capital Juries?

17 MAY 2024 | AUSTIN SARAT

On May 13, the New York Times published a story about discrimination in jury selection in death cases that was shocking, but not surprising. The story recounted longstanding efforts by prosecutors in Alameda County, California, to prevent people from serving as jurors in death penalty cases based on their race, gender, and religion.

Last month, a federal judge ordered an inquiry into those allegations. As the Times explains, “The inquiry, which may involve as many as 35 cases from as far back as 1977, is just getting underway. But the district attorney’s office says it has already found evidence that the discriminatory practice was widespread for decades and involved numerous prosecutors.”

The Times article highlighted and paid particular attention to the systematic exclusion of Jewish people from death penalty juries.

Read More Here

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Death Penalty States Beware: Nitrogen Hypoxia Is Not the Solution to America’s Long History of Inhumane Executions

10 MAY 2024 | AUSTIN SARAT

On May 8, Alabama’s Republican Governor Kay Ivey set a date for the state’s second execution by nitrogen hypoxia. Her office announced that Alan Eugene Miller would be put to death sometime within thirty hours after 12:00 a.m. on Thursday, September 26, 2024.

The governor’s action followed a decision by the Alabama Supreme Court granting the state attorney general’s request for permission to set Miller’s execution date. Miller was convicted and sentenced to death in July 2000 for killing three men in a workplace shooting.

If Alabama goes forward with its plan, it will be Miller’s second trip to the execution chamber. His first trip, in September 2022, produced a gruesome spectacle.

Read More Here

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Lawmakers Must Stop Cooperating in the Bishops’ Dirty Tricks

Marci A. Hamilton, professor at the University of Pennsylvania and CEO of CHILD USA, and Kathryn Robb, executive director of CHILD USAdvocacy, describe the latest trick by Catholic bishops in Maryland to successfully lobby for a statute of repose to be included in a bill, undermining its ability to provide meaningful justice to abuse victims. Hamilton and Robb call upon legislators to stop cooperating with Catholic bishops, as doing so leads only to continued secrecy, suffering, and pedophile empowerment.

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Clarence Thomas Speaks—And Arguably Contradicts His Longstanding Views

Cornell law professor Michael C. Dorf argues that the question Justice Clarence Thomas asked during oral argument in Flowers v. Mississippi potentially reflects a view inconsistent with one he and other conservative justices have strongly endorsed in the past. Dorf points out that Justice Thomas’s question, regarding the race of jurors struck by the defense counsel, suggests that discrimination against one group can cancel out discrimination against another, which is directly at odds with his expressed view that the Constitution forbids all government consideration of race.

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Supreme Court Takes a Case About Jury Unanimity

Cornell law professor Sherry F. colb comments on a case in which the US Supreme Court recently granted review, Ramos v. Louisiana, which presents the question whether states may permit conviction of an accused criminal on less than a unanimous jury voting “guilty.” Colb explains the doctrine of incorporation—by which most provisions of the Bill of Rights are held to be applicable as against the states as well as the federal government through the Fourteenth Amendment—and explains the possible significance of a unanimous jury verdict.

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Wells Fargo Bank and the Glass-Steagall Act

BU Law emerita professor Tamar Frankel comments on the renewed importance of the repealed Glass-Steagall Act which Congress passed after the failure of the financial system in the 1920s. Frankel argues that the alarming path of Wells Fargo Bank supports imposing regulations on banks similar to those levied by the Glass-Steagall Act.

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Untethered Textualism in the Seventh Circuit’s Kleber Ruling on Age Bias in Hiring

NYU law professor Samuel Estreicher comments on a recent decision by the US Court of Appeals for the Seventh Circuit that purports to interpret the Age Discrimination in Employment Act (ADEA) based on a textualist approach. Estreicher argues that the interpretation erroneously ignores the clear purpose of ADEA and constitutes a highly abstract interpretive venture that departs significantly from the legislators’ manifest intent.

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Should Originalists Enforce Rights More Strictly Against the States Than Against the Federal Government?

Cornell law professor Michael C. Dorf points out that, taken to its logical conclusion, the originalism philosophy espoused by US Supreme Court Justice Clarence Thomas should mean that the Constitution places stricter limits on states than it does on the federal government. As Dorf explains, the “original meaning” of the Bill of Rights as it applies to the states should refer to its meaning in 1868 (when the Fourteenth Amendment was adopted) rather than 1791 (when the Bill of Rights itself was adopted) because the Fourteenth Amendment makes the Bill of Rights applicable to the states. Dorf describes several key differences between the understanding of the Bill of Rights in 1868 and 1791 and considers whether one of the originalist justices will follow where the logic of their philosophy leads.

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Colorado Is Poised to Join the National Popular Vote Interstate Compact and Alter the Dynamics of the Movement

Illinois law dean and professor Vikram David Amar comments on the most recent development for the election reform movement known as the National Popular Vote (“NPV”) interstate compact plan—its imminent by Colorado. Amar describes three reasons that Colorado’s adoption of the plan is such a significant step for the movement.

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A Police Shooting and the Power of Narratives

Cornell law professor Sherry F. Colb describes two different narrative lenses through which one could perceive (and interpret) the shooting of an unarmed African American man by a white police officer: the “Blue Lives Matter” narrative and the “Black Lives Matter” narrative. Colb explains how such narratives shape public reactions to such incidents, and she calls upon everyone to pay attention to the facts and feel less wedded to our narratives so that we may be better able to deal with and sometimes even prevent future hardship.

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Separated at Birth: Federal Court Considers Whether Twins Can Be from Different Countries

SMU Dedman School of Law professor Joanna L. Grossman comments or a recent controversy arising from immigration rules that place an undue emphasis on biology in determining when a US-citizen-parent can transmit citizenship to a child born abroad. Grossman calls upon the US State Department to revise its Foreign Affairs Manual to align with the statutory scheme it purports to apply.

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The Purest False Equivalence of All: By Attacking Democrats on Substance, NeverTrumpers Destroy the Process

GW law professor and economist Neil H. Buchanan argues that pundits on the anti-Trump right erroneously conflate two different categories of objections, substance and process. Buchanan points out that by attacking the substantive policies supported by Democrats and not distinguishing substance from process, Republicans risk weakening the Constitution’s political processes.

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How Much Deference Will be Given to Affirmative Action Plans Fashioned by Students, and to Affirmative Action Plans More Generally? Part Three in a Series on the Challenge to Harvard Law Review’s Diversity Program

In this third and final column in a series about the legal challenge to Harvard Law Review’s diversity program, Illinois law dean Vikram David Amar and professor Jason Mazzone consider how much deference courts should give to law reviews when they assert diversity as a basis for considering race and gender. Amar and Mazzone anticipate that even in the unlikely event that this lawsuit reaches the Supreme Court, any fundamental changes to existing affirmative action doctrine would likely require the Court to weigh in on multiple cases over an extended period.

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Is Trump Even Worse Than Brexit? Need We Ask?

GW law professor and economist Neil H. Buchanan responds to a Washington Post guest column by Ian Birrell—a speechwriter for the United Kingdom’s former prime minister David Cameron—in which Birrell argues that Brexit is worse than Trump. Buchanan makes the case that Trump’s negative legacy is likely to be both worse and longer-lasting than Brexit’s.

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Did a Federal District Judge Defy the Supreme Court in Invalidating Male-Only Draft?

Cornell law professor Michael C. Dorf comments on a recent decision by a federal district court judge in Texas declaring unconstitutional the US’s male-only military draft. Dorf points out that the judge’s decision defies the Supreme Court’s admonition that federal court judges should follow even outdated Supreme Court precedents, “leaving to th[at] Court the prerogative of overruling its own decisions” and considers whether there is any other reason that admonition should not apply.

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#MeToo: Counting the Collective Harm of Missing Women’s Work

In light of recent revelations about Ryan Adams, a powerful musician and music producer, Illinois law professors Robin B. Kar and Lesley Wexler discuss the collective harm the scourge of sexual harassment inflicts on society, depriving it of countless and invaluable contributions. Kar and Wexler point out that research demonstrates that experiences of sexual harassment cause not only individual harms to women (such as decreases in mental and physical well-being) but also organizational withdrawal, decreases in organizational commitment, and decreases in productivity and job performance. The exact losses due to this withdrawal have yet to be measured, but evidence suggests the magnitude is enormous.