Analysis and Commentary Posted in 2018-01

What Miranda Can Teach Us About Sexual Consent

Cornell University law professor Sherry F. Colb compares the requirement that police officers advise suspects in custody of their Miranda rights with the proposal that we as a society adopt a "Yes means yes" requirement for sexual consent. Colb describes how many of the fears about Miranda never actually came to fruition and points out how both the strengths and weaknesses of Miranda can help us to figure out how best to design the rules defining sexual assault.

Lawyers and Judges Crossing the Bar in 2017

Chapman University, Fowler School of Law, professor Ronald D. Rotunda commemorates some of the notable lawyers who died in 2017, including John Nolan, Jr., Michel, Aurillac, Willie, Stevenson Glanton, Gustavo Valdés, Hersh Wolch, the honorable Thomas Griesa, and others. Rotunda also notes one lawyer who had a near-death experience, Nikolai Gorokhov, a Russian lawyer who found key evidence of a $230 million corruption scandal involving high-ranking state officials.

Spin Class: The Press Inexplicably Scorns the Democrats After the Government Shutdown

George Washington law professor and economist Neil H. Buchanan calls out media outlets for blaming Democrats (or at least calling it a Democratic failure) for the government shutdown. Buchanan describes the generally favorable political environment for Democrats but the dangerous terrain they face, and he reiterates the point that the press unfairly applies different rules when covering Democrats and Republicans.

The Constitution Under Trump: A Year-One Report Card

Guest columnist Dean Falvy, a lecturer at the University of Washington School of Law, assesses how the Constitution is faring after one year of Donald Trump as president of the United States. Falvy evaluates Article I (Congress), Article II (the Executive Branch), Article III (the Judicial Branch), Article IV (federalism), the First Amendment (the press), and the Tenth Amendment (public opinion), giving each one a grade based on how well it is serving its purpose as intended by the framers.

The Constitutional Issues Driving the Events in the Hit Movie, The Post

Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein describe and analyze the two main legal doctrines that give rise to the action in the blockbuster movie The Post, which chronicles the efforts of journalists at the Washington Post and the New York Times to publish the Pentagon Papers. As Amar and Brownstein explain, the rule against prior restraint and the collateral bar rule animated many of the motives, moves, and countermoves that were documented in the acclaimed film.

Travel Ban 3.0 Heads to the Supreme Court: Win or Lose the Battle, the Resistance is Winning the War

Cornell University law professor Michael C. Dorf argues that regardless of the outcome of President Trump's "Travel Ban 3.0" before the US Supreme Court, the litigation challenging the Travel Ban should be regarded as a victory over Trump's effort to rule by diktat. In support of this argument, Dorf points out that the litigation makes it abundantly clear to the American people that Trump remains every ounce the same vile and petty would-be tyrant that he appeared on the campaign trail.

#MeToo, Time’s Up, and Restorative Justice

Illinois Law professor Lesley Wexler comments on the 2018 Golden Globes acceptance speech by Laura Dern calling for restorative justice in the context of the #MeToo and Time's Up movements. Wexler analyzes the possible meaning of this somewhat ambiguous call to action, explaining that it could mean the restoration and reintegration of women who have suffered employment setbacks at the hands of their harassers and assaulters, and pointing out that it could also carry the more traditional notion of restorative justice, which includes the wrongdoers and the community as a whole to engage in "apologies, restitution, and acknowledgments of harm and injury."

The Seduction of Piety

Cornell University law professor Joseph Margulies continues his discussion of what he calls "pious stories" that come up in discussions of the criminal justice system, explaining why the media and policy-makers continue to repeat these stories despite their being egregiously incorrect or even dangerously incomplete. Margulies points to three characteristics common to all three of these stories: they reduce complex social processes into over-simplified parables about heroes and villains, they engender racial colonialism, and they are perpetuated by people deeply committed to criminal justice reform.

Trump’s Base

In this first of a two-part series of columns, John W. Dean, former counsel to President Richard Nixon, considers who it is that comprises Donald Trump’s “base.” Dean describes the ways in which polls have correctly and incorrectly described Trump’s supporters and comments on the steady few who seem to support him no matter what.

The Trump Presidency and the #MeToo Movement

Professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, Marci A. Hamilton likens the relationship between the #MeToo movement and Donald Trump’s presidency as a David versus Goliath moment. Hamilton describes the contrast in apparent values between the two but finds comfort in the #MeToo movement’s demonstration that there is still identifiable right and wrong that we as a society can see and discuss.

Does the Automobile Exception to the Warrant Requirement Extend to Private Driveways?

Cornell University law professor Sherry F. Colb considers a question raised, but most likely not to be decided, in a criminal procedure case currently before the US Supreme Court. That case, Collins v. Virginia addresses the automobile exception to the Fourth Amendment warrant requirement, and Colb explores some reasons for eliminating the automobile exception altogether.

‘All the Money in the World,’ But Not Enough to Pay Male and Female Stars the Same?

SMU Dedman School of Law professor Joanna L. Grossman comments on the most recent high-profile revelation of pay disparity between men and women—that between Mark Wahlberg and Michelle Williams in Ridley Scott’s “All the Money in the World.” Grossman describes the state of pay discrimination laws and while she commends Wahlberg for donating the $1.5 million difference in compensation to the Time’s Up fund, she points out that it was not Wahlberg’s responsibility to rectify this disparity. Grossman calls upon the director Ridley Scott, the agency that represented Williams, and all Hollywood studios and directors to right the wrong of gender pay inequality.

The Helpful Role Lawyers Can Play in Rebuilding American Democracy

Illinois Law dean and professor Vikram David Amar offers some wisdom he shared during his keynote remarks at the swearing-in ceremony of new lawyers in Springfield, Illinois, describing how lawyers can help build American democracy. Amar comments on the specific duties and responsibilities lawyers swear to uphold, and explains why these duties are critical to the very foundations of our country.

Two (But Only Two) Jeers for Enforcing the Federal Marijuana Law in Legalized States

Cornell University law professor Michael C. Dorf comments on the recent announcement by Attorney General Sessions that the Trump Department of Justice was rescinding an Obama administration policy toward state-legal marijuana. Dorf argues that the policy shift breaks promises by then-candidate Trump and then-Senator Sessions, but that objections to the new policy on federalism grounds are largely misguided.

My Resolution for 2018: Less Piety, More Complexity

Cornell University law professor Joseph Margulies describes three stories among those who study the criminal justice system that are pejoratively described as “pious.” Margulies explains what it means to be a “pious story,” why such stories exist (because simple narratives are the easiest to translate into policy), and calls upon himself and others on both the Right and Left to abandon “pious” stories and tell whole truths instead.

Manafort’s Civil Action Attacking Special Counsel Mueller—A Publicity Ploy

John W. Dean, former counsel to President Richard Nixon, comments on former Trump campaign manager Paul Manafort’s civil action attacking Special Counsel Robert Mueller. Dean agrees with many other legal commentators that Manafort’s lawsuit is a publicity stunt and posits that, further, it gives Manafort’s lawyers a way to talk about his prosecution by the special counsel without violating the gag order imposed in the criminal case.

2017 SOL Reform Year in Review and How #MeToo Relates to Child Sex Abuse SOLs

Marci A. Hamilton, a professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, reflects on the changes to civil and criminal statutes of limitations (SOLs) for child sex abuse across the United States in 2017, and points out how SOLs relate to the #MeToo movement exposing the breadth and pervasiveness of adult sexual assault and harassment. Hamilton praises the progress made over the past year and but calls upon legislators and politicians at all levels to take additional steps to protect children.

Did the Sexual Revolution Cause the Sexual Misconduct Revealed by #MeToo?

Cornell University law professor Sherry F. Colb considers the claim by some people that the increase in accusations and occurrences of rape and other sexual misconduct is attributable to the sexual revolution of the late 1960s and mid-1970s. Colb points out that both rape and sexual misconduct existed well before the sexual revolution, and in fact the legal system until very recently either condoned or made it very difficult to prove rape (and categorically excluded the possibility of marital rape). In contrast, the sexual revolution was about liberating consenting adults to have sex with one another and giving women ownership over their own bodies.

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

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... more

Lesley Wexler
Lesley Wexler

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