Analysis and Commentary Posted in 2016-06

Republicans Can Save Their Party if They Can Admit to Themselves That Clinton Is Tolerable

George Washington University law professor and economist Neil H. Buchanan explains why it is in the best interests of Republican leaders for them to admit that Hillary Clinton would be a tolerable president, rather than to support Donald Trump. Buchanan argues that for them to continue to support Trump is to risk putting a dangerous loose cannon in the White House, who at best will render the Republican party unrecognizable, and at worst could tear apart the country.

A Potential Landmine in Waiting in Utah v. Strieff

Cornell University law professor Sherry F. Colb discusses the U.S. Supreme Court’s recent decision in Utah v. Strieff, holding that evidence found in that case as a result of a Fourth Amendment violation was not the direct consequence of the violation and was therefore properly admitted into evidence against the defendant under the attenuation doctrine. Colb explains how one throwaway line in the opinion, if taken to its logical conclusion, could potentially spell the death of the exclusionary rule.

Finding Justice in Baltimore

Cornell University law professor Joseph Margulies explains why a criminal conviction of police officers is neither a necessary nor sufficient component of justice. In fact, Margulies argues that those who would dismantle the carceral state should not be the first to invoke it by seeking convictions as the sole means of justice.

Hooray! Finally Dropping the Blinders, Religious Leaders Are Calling Out Terrorists, Haters, Pedophiles and the Institutions that Enable Them

Cardozo law professor Marci A. Hamilton describes a relatively new phenomenon of religious leaders coming together to criticize bad acts—even bad acts perpetrated by people who purport to be religious themselves. Hamilton explains how for too long, religious actors seemed beyond reproach no matter what they did, simply by nature of being religious. She expresses great relief that such a period seems to be passing, as evidenced by the widespread support for the LGBTQ community in response to the recent shooting at the Orlando gay club Pulse.

What Montgomery v. Louisiana Portends for Future Juvenile Sentencing

Cornell University law professor Sherry F. Colb considers the changing meaning of the U.S. Supreme Court’s opinion in Miller v. Alabama, which held that mandatory life sentences without the possibility of parole. Colb discusses specifically the Court’s decision earlier this year in Montgomery v. Lousiana, which held that Miller must be applied retroactively on state collateral review.

Changing the World One Case at a Time: A Review of Gillian Thomas’s Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work

Hofstra University law professor Joanna Grossman praises Gillian Thomas’s new book Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work, which profiles ten of the most important Supreme Court cases to the advancement of women’s equality in the workplace.

Increased Controversy Over the Future of American Law Institute

Chapman University professor Ronald Rotunda comments on the increasingly controversial positions taken by the American Law Institute (ALI), which is one of the most important nongovernmental legal institutions in the United States. Rotunda describes some of the changes in laws proposed in recent editions of the ALI’s highly influential Model Codes and Restatements.

Donald Trump’s Criticism of Judge Curiel Was Racist, but Precisely How?

Dean and law professor at Illinois Law, Vikram David Amar discusses Donald Trump's public criticism of Judge Gonzalo Curiel, who is currently presiding over the federal fraud lawsuit against Trump University. Amar weighs Trump's arguments as to Judge Curiel's purported bias toward him against what is known about Trump's own tendency to personalize disagreements without cause. Amar argues further that while some opinions are in fact formed as a result of one's ethnicity and experiences as a racial minority, this does not apply in the present instance for a number of reasons, each of which Amar explores in today's column.

What Do “High Negatives” Mean? Or: Hillary Clinton On Her Worst Day Is Better Than Donald Trump On His Best

Neil H. Buchanan, a law professor and economist at George Washington University, discusses the negative opinions a large number of Americans hold about both Donald Trump and Hillary Clinton in the lead-up to the 2016 Presidential Election. He further explains how peoples' discontent with Clinton differs from that relating to Trump, revealing a stark disparity between the two candidates' qualifications to become President. Where Clinton's naysayers frequently offer vague or unsubstantiated complaints, Buchanan argues that the criticism aimed at Trump is far more substantive.

Trump’s Post-Orlando Statements Reveal the True Nature of His Proposed Ban on Muslim Immigration

Cornell University law professor Michael C. Dorf evaluates statements made by Donald Trump in response to the mass shooting at a gay nightclub in Orlando this past weekend. Dorf argues that by telling American Muslims that they are all presumed to be terrorists, Trump actually fosters resentment and radicalization in the small portion of the American Muslim community that has the potential for radicalization.

Even After Trump Loses, Constitutional Democracy in the United States Will Still Be in Peril

George Washington law professor and economist Neil H. Buchanan explains why, whether Donald Trump wins or loses the presidency, constitutional democracy in the United States is seriously threatened. Buchanan argues that Trump’s stated plans for the country would effectively destroy our constitutional democracy, but even a Republican-caused gridlocked Congress under a President Hillary Clinton could cause a debt crisis and economic collapse.

Prisoner Case Underscores Justice Scalia’s Legacy

Cornell University law professor Michael Dorf discusses a recent unanimous decision by the U.S. Supreme Court that illustrates the lasting impact Justice Scalia had on the Court’s approach to statutory interpretation. Dorf describes the shift from purposivism to textually constrained purposivism over the past half century, and explains how they differ from the textualism Justice Scalia espoused.

The Fifth Justice

Chapman University law professor Ronald Rotunda describes some significant changes in the law that could result from the next Supreme Court justice being appointed by a Democratic president. Rotunda looks at a number of seminal cases that were decided 5-4 that seem likely be overturned in such an event.

Lessons Learned from this Term’s Legislative Districting Decisions, Especially the Harris Case from Arizona

Dean and law professor at Illinois Law, Vikram David Amar describes some of the takeaway points from the U.S. Supreme Court’s decisions on legislative districting, particularly that in Harris v. Arizona Independent Redistricting Commission. Amar points out that the unexpected death of Justice Scalia in the middle of the term affects at least the reasoning—and perhaps the outcome—of this and many other cases.

Is This the Beginning of the End of Constitutional Democracy in the U.S.?

In this first of a two-part series of columns, George Washington law professor and economist Neil H. Buchanan considers whether the constitutional democracy in the United States is near its demise. Buchanan compares and contrasts the responses to issues faced by middle-class America given by Democratic presidential candidates Bernie Sanders and Hillary Clinton with those given by Republican nominee apparent Donald Trump.

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 Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... 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 of L... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from... more

Joseph Margulies
Joseph Margulies

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

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more