Charles Schwab in Praise of Fiduciary Independent Advisers

BU Law emerita professor Tamar Frankel describes two advertisements by Charles Schwab ostensibly praising independent investment advisers, who are fiduciaries. Frankel explains why this development may lead to a separation of advice from execution of trade in a way that offers greater protections to investors.

Can Economics Get Better, Even Though It Can’t Get Better?

UF law professor and economist Neil H. Buchanan comments on a recent positive development in the economics profession—a move beyond the narrow notion of “Pareto efficiency” that economists have used for decades to support trickle-down economics. Buchanan explains the significance of this development, with the caveat that the change will likely not make much difference in actual economic policies.

Same-Sex Couples, Identical Twins, and the Text of Title VII: Point-Counterpoint

Cornell law 3L Jareb Gleckel and professor Sherry F. Colb discuss, in point-counterpoint style, one aspect of the legal issue presented in Altitude Express v. Zarda—in which the U.S. Supreme Court will decide whether Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against their employees based on sexual orientation. Gleckel argues that sexual orientation discrimination does not qualify as sex discrimination under the text of Title VII and describes a hypothetical example in support of his argument. In response, Colb first addresses Gleckel’s formalistic argument and then contends, even assuming Gleckel’s premise to be true, that because the policy at issue in Zarda discriminates between men and women both formally and in a manner that inflicts a gender-relevant injury, it violates the text of Title VII.

Did President Trump Commit the Federal Crime of Bribery?

NYU law professor Samuel Estreicher and 3L Christopher S. Owens analyze, based on the facts presently known to the public, whether President Trump committed the federal crime of battery. After describing the elements required for the offense of bribery, Estreicher and Owens conclude that Trump’s conduct would support a finding of an exchange of official acts (by Trump) for things of value (the public statement sought from Zelensky), as well as the corrupt intent necessary to maintain a bribery charge.

Examining Federal Court Power in the Challenge to Mississippi’s Regime for Electing Governors: Part Two in Series

In this second of a series of columns, Illinois law dean Vikram David Amar and professor Jason Mazzone continue their discussion of a federal lawsuit challenging Mississippi’s scheme for electing governors. Amar and Mazzone examine a few important procedural and jurisdictional issues the lawsuit presents, specifically, why the plaintiffs have standing to sue in federal court and what remedies a federal court might provide if it agrees with the plaintiffs on the merits.

Trump Administration Lawyer Asserts That a State Courthouse is no Different from a Burger King

Cornell law professor Michael C. Dorf comments on a lawsuit in which New York State and other plaintiffs are suing the federal government over an immigration policy of arresting undocumented immigrants when they appear in state court on unrelated matters. Dorf explains why the federal judge hearing the case should reject the government’s motion to dismiss the lawsuit.

What Does John Bolton Know, and When Will We Know It? Why the Former National Security Advisor May Hold Trump’s Fate in His Hands

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, explains why former National Security Advisor John Bolton may hold the key to what happens with the impeachment proceedings of President Trump. Falvy describes Bolton’s background and shows why he may play such a critical and unique role in what happens to the President.

Another Way That American Democracy Might End

Neil H. Buchanan, a University of Florida Levin College of Law professor and economist, argues that a 2020 win for President Donald Trump would likely to lead to the end of constitutional democracy. Buchanan points out that the demise would be due not only to what Trump would do if reelected, but also what the Democratic Party and the media would do to pretend that the victory resulted from legitimate processes.

Reducing Pregnancy Discrimination, One Accommodation at a Time

SMU Dedman School of Law professor Joanna L. Grossman discusses a recent decision by a federal district court in Louisiana correctly applying the U.S. Supreme Court’s decision in Young v. United Parcel Service. Grossman describes the facts of that case and explains how Young affected the outcome; she argues that many cases decided before Young should come out differently now, but only if courts carefully apply the new standard to the facts before them.

2019 Is a Banner Year for SOL Reform, But There Is Much More to Do

Marci A. Hamilton, professor at the University of Pennsylvania and CEO of CHILD USA, explains why 2019 has been such an historic year for child sex abuse victims. Hamilton points out that children will not thrive in a society where individuals and institutions can ignore child sex abuse without consequence, so we must focus on protecting children and holding perpetrators and institutions accountable.

Is Mississippi’s Distinctive Method of Electing Governors Constitutional? Part One in a Series

In this first of a series of columns, Illinois law dean Vikram David Amar and professor Jason Mazzone consider whether Mississippi’s method of electing its governor—requiring a successful candidate to win both a majority of the state house of representatives and a majority of districts—is constitutional. Amar and Mazzone describe some of the important issues the case raises under the Fourteenth and Fifteenth Amendments.

Alarmism Is a Necessity and a Virtue in the Age of Trumpian Attacks on the Foundations of the Republic

University of Florida Levin College of Law professor and economist Neil H. Buchanan argues that, notwithstanding some commentators’ claims to the contrary, President Trump poses an existential threat to democracy in the United States and removing him from office via impeachment would be less messy and divisive than defeating him at the ballot box in November 2020. Buchanan points out that there is no reason to believe that Trump will accept losing the 2020 election, and there is every reason to fear that the inevitable protests by the majority of Americans whose votes defeated Trump will be met with violence.

The Argentine Election and the Limits of the Peter Principle

Cornell law professor Michael C. Dorf comments on Argentina’s national elections last month, in which the country elected as Vice President Cristina Fernández de Kirchner, who had previously served as President of Argentina from 2007 to 2015. Dorf considers why Kirchner, and indeed anyone, would accept a lower position than what she has previously held. Dorf argues that due to the Peter Principle—which states that workers in a hierarchical organization tend to rise to their level of incompetence—we would do well as a society to abandon the whole concept of a demotion.

“She Slept Her Way to the Top”: The Fourth Circuit Pushes Back on a Harmful Gender Stereotype

SMU Dedman School of Law professor Joanna L. Grossman comments on a decision by the U.S. Court of Appeals for the Fourth Circuit that spreading a false rumor that a woman “slept her way to the top” constitutes sex discrimination. Grossman points out that this case raises yet another example of the many ways in which working women do not compete on an equal playing field.

Dear Mayor “Extremely Vague” and Senator “Pipe Dream”: Put Up or Shut Up

University of Florida Levin College of Law professor and economist Neil H. Buchanan calls upon Democratic presidential candidates Mayor Pete Buttigieg and Senator Amy Klobuchar to step up and say what they are for, rather than merely what they are against. While Buchanan acknowledges that he does not fully agree with Warren’s Medicare-for-All proposal, but he praises her for being bold enough to put forth a plan, unlike many of her competitors.

Are Open Door Policies Cost-Justified?

Cornell law professor Sherry F. Colb comments on a minority practice by a number of male faculty at law schools and other institutions of announcing an “open door” policy in their offices, purportedly to protect against false accusations of sexual assault or sexual harassment. For purposes of discussion, Colb steps into the role of a hypothetical male faculty member who has such a policy, and then stepping back out of role, she discusses the pros and cons of such policies.

The Constitutional Permissibility (Under the First Amendment) of Public School District Zero-Tolerance Policies on Racial Epithets

Illinois law dean and professor Vikram David Amar discusses a recent controversy involving the termination of a Wisconsin public school security guard under a zero-tolerance policy on racial epithets. Amar explains why, if the guard had chosen to sue, he likely would have lost in court based on current precedent, and Amar uses the apparent injustice of that outcome to illustrate that public employees often don’t realize how much their speech can be proscribed and prescribed by their government employers.

Go Big, Democrats: Attempts to Rig Elections Are Not the Only Impeachable Offenses

University of Florida Levin College of Law professor and economist Neil H. Buchanan argues that Democrats should draft broad articles of impeachment. As Buchanan points out, if the Democrats do not lay out the full case against Trump, everything that is left out will have been validated and will become a precedent for future misdeeds by this or any other President.

Pete Buttigieg and his Critics Are Both Wrong About the Supreme Court

Cornell law professor Michael C. Dorf explains why Democratic presidential hopeful Pete Buttigieg and his critics are both wrong about the U.S. Supreme Court having become especially political. Dorf points out that since the Court’s 1803 decision in Marbury v. Madison the Court has been highly political, and the true problem lies with the unprecedented polarization of the political parties—not with the Court or the appointments process.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... 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

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

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more