Category: Commentaries

The Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins does not fully resolve when an intangible injury such as a defendant’s misreporting of a plaintiff’s personal information is sufficient to constitute a “concrete injury” for Article III standing. However, the Spokeo decision makes clear that Congress has a significant role in defining intangible injuries…

In this essay I consider what it means to consider something. More directly, I consider how a judge might distinguish a source used for inspiration from a source used as legal authority. I wonder if Justice Sotomayor posits this line-drawing problem as a koan to would-be clerks. To my limited ken, the epistemological limits of…

Justice Antonin Scalia’s death prompted United States Senate Majority Leader Mitch McConnell (R-Ky.) and Judiciary Committee Chair Chuck Grassley (R-Iowa) to argue that the President to be inaugurated on January 20, 2017—not Barack Obama—must fill the empty Scalia post.1 Obama in turn expressed sympathy for the Justice’s family and friends, lauded his consummate public service,…

Two provisions of the U.S. Constitution that have received comparatively little public attention over the past 227 years are suddenly all over the news, having provided the basis for three pending lawsuits against the president of the United States. The Foreign and Domestic Emoluments Clauses arose out of the Founders’ concern with corruption – in…

Various arguments have been made to explain why public defenders continue to handle excessive caseloads: a lack of independence, organizational culture, or ethical blindness among them. All of these arguments are based on the idea that a public defender elects to labor under an excessive caseload either because they do not see it as excessive…

Law needs forensic science in order to assist judges and juries in accurate fact-finding. But law also needs a dependable way to distinguish between astronomy and astrology, science and pseudoscience. What is needed in order for forensic sciences to fulfill their promise in helping to achieve justice is a commitment to what Jennifer Mnookin and…

Special Counsel Robert Mueller is conducting an investigation into Russia’s interference in the 2016 presidential election and the possible coordination and cooperation with the Donald Trump presidential campaign. The investigation has raised numerous legal questions with serious political and legal implications. Chief among them is whether a sitting President can be indicted and prosecuted for…

Risk assessment algorithms—statistical formulas that predict the likelihood a person will commit crime in the future—are used across the country to help make life-altering decisions in the criminal process, including setting bail, determining sentences, selecting probation conditions, and deciding parole. Yet many of these instruments are “black-box” tools. The algorithms they use are secret, both…

On December 30, 2015, an affidavit of probable cause alleged that William H. Cosby, Jr., Ed.D., a comedian whose storied career spanned decades, committed aggravated indecent sexual assault upon Andrea Constand. For decades, women have been coming forward claiming to have been the victims of Cosby’s unwanted sexual advances, most of them claiming that Cosby…

The Supreme Court’s gay marriage decision in Obergefell has been hailed in almost all corners as a milestone in American jurisprudence. From topics as varied as adoption and taxes, a myriad of rights have now descended upon gay couples as a result of the Court’s ruling. In this Commentary, we explore the little discussed downsides…