Analysis and Commentary Posted in 2018-02

Take a Flying Leap: The Second Circuit Holds That Skydiving Instructor Can Sue for Sexual Orientation Discrimination Under Title VII

SMU Dedman School of Law professor Joanna Grossman comments on a decision by the US Court of Appeals for the Second Circuit, sitting en banc, holding that sexual orientation discrimination is an actionable form of sex discrimination under Title VII of the Civil Rights Act of 1964. Grossman explains the significance of the holding and describes the circuitous route federal courts have taken to finally arrive at that common-sense conclusion.

Lawyers, Passwords, and the Obligation to Keep Clients’ Secrets

Chapman University, Fowler School of Law, professor Ronald D. Rotunda explains in concrete terms what the ABA's recommendation that attorneys "keep abreast" of "the benefits and risks associated with relevant technology" means: change your passwords into passphrases to keep confidential information secure. Rotunda describes how easy it is to hack simple passwords and cautions lawyers that the ramifications of compromised client information can be significant and far-reaching.

Pushback by Legislators Against Judges Illustrates the Overriding Importance of Legislative Elections

Illinois Law dean and professor Vikram David Amar comments on the phenomenon by legislators on judges for alleged "activism." Amar argues that when the attacks on judicial independence move from seeking to limit jurisdiction or undo particular rulings to attempting to remove jurists themselves, although such attacks may not "seem" right, they are (perhaps oddly) legal. He points out that state constitutions operate not just in the larger context of morality and justice, but also in the larger context of the US Constitution. Ultimately, Amar explains, the most important decisions are made not by judges or even legislators, but by voters, when they elect people to the political branches.

Did Trump Inadvertently Make Banning Dreamers Unconstitutional?

George Washington law professor and economist Neil H. Buchanan comments on the apparent conflict between President Trump's declaration that the Deferred Action for Childhood Arrivals (DACA) program is unconstitutional and his decision to delay ending it. Buchanan considers whether the inconsistent positions with respect to the program actually affect the constitutional options available to him.

Mass Shootings and the Supreme Court

Cornell University law professor Michael C. Dorf describes the underappreciated role of the US Supreme Court in shaping public opinion and discussion of gun regulations. Specifically, Dorf explains that the Court's seminal decisions in District of Columbia v. Heller and McDonald v. City of Chicago have symbolic importance beyond their literal holdings, giving gun rights proponents strong rhetoric, though not strong legal basis, for an absolutist position.

Red Lines and Chlorine Weapon Use in Syria

Illinois Law professor Lesley Wexler analyzes the Trump administration's position with respect to Syria and its use of chemical weapons. Wexler considers whether France or the US would actually follow through on their promises to use military force to enforce the Chemical Weapon Convention, and she considers whether it is even legal for states to do under the UN Charter in the absence of a need for self-defense or a UN authorization.

Trump’s Base: Broadly Speaking, Who Are They?

John W. Dean, former counsel to President Richard Nixon, continues his series of columns discussing Donald Trump's base-the persistent 24 percent of people who voted for him or who have spoken approvingly of him to pollsters. Though Dean awaits the results of one of the major studies of Trump's base, he notes that the 2016 exit poll demographics suggest that given Trump's 12-point margin over Clinton with men, his base is predominately male.

The Chancellor’s New Coalition: Why Germany Can’t Quit Angela Merkel

Guest columnist Dean Falvy, a lecturer at the University of Washington School of Law, describes the current political situation in Germany, and how the unlikely coalition between Angela Merkel's center-right party and the center-left Social Democrats came to be. As Falvy skillfully explains, the German government was designed to be nearly perfectly representative, and to encourage pro-democratic parties to stand together in defense of democracy, rather than allow partisan ambition empower the enemies of democracy.

New York: The City That Never Sleeps . . . in a State That Never Updates Its Parentage Laws

SMU Dedman School of Law professor Joanna L. Grossman comments on a difficult case in New York that illustrates that state's need for clear legislative direction regarding parentage and modern families. Grossman describes the background of the case and explains how the lack of comprehensive parentage laws leads to unpredictable and often undesirable results.

Do Defendants Have the Right to Make Bad Decisions?

Cornell University law professor Sherry F. Colb comments on the case before the US Supreme Court, McCoy v. Louisiana, in which the Court will decide whether a criminal defendant has a Sixth Amendment right to stop his attorney from announcing to a jury that his client killed the victims for whose murder he is standing trial. Colb considers the argument that the lawyer's behavior constituted deficient performance counsel and argues that in that case, the defendant's conviction should be reversed and remanded for a new trial.

Do Law Faculties Need to Cover the Range of Fields in Scholarship or Only in Teaching?

George Washington law professor and economist Neil H. Buchanan explains why a law faculty needs to cover the range of fields not only in teaching, but also in scholarship. Buchanan argues that if a law school is truly committed to covering specific courses, it should also be committed to hiring faculty with deep scholarly expertise in those subject matters. A professor who is not engaged with the subject matter both inside and outside the classroom is less effective in both realms.

Why the Supreme Court Was Right to Stay out of the Pennsylvania Supreme Court Districting Case, and Why State Courts Have Important Roles in this Arena

Illinois Law dean and professor Vikram David Amar explains why the US Supreme Court was right to leave undisturbed the recent congressional redistricting ruling by the Pennsylvania Supreme Court. Amar describes the important role (and limitations) of state courts and state legislative bodies in our federal system.

The Meaning of Trump’s Plan to Keep Gitmo Open

Cornell University Michael C. Dorf explains the symbolism of President Donald Trump's announcement during his State of the Union address that he would be keeping the detention facility at Guantánamo Bay open. Dorf points out that despite the extraordinarily high cost of keeping the facility open, Republicans support its continued operation simply as repudiation of President Obama, who wanted to close it. Dorf points out that Republicans' opposition to closing Gitmo during the Obama presidency also jibed with the not-so-veiled racism of many Republicans who questioned Obama's citizenship and commitment to the US (disregarding the fact that President Bush actually released more Gitmo detainees than President Obama did).

How a School Bus With No Wheels Taught Me to See Past Silos

Cornell University law professor Joseph Margulies describes inspiring story of the "Walking School Bus" in Olneyville, the low-income, predominately Latino neighborhood on the west side of Providence, Rhode Island. The Walking School Bus is a small group of parents who walk through a set route on a specified timetable, escorting children through dangerous areas to safely arrive at their respective schools. Margulies points out that this example is but one example of the importance of recognizing the intersection public health, crime, criminal justice, and policing-all critical and interrelated components of building stronger and safer communities.

If Republicans Really Wanted a Middle-Class Tax Cut, They Could Have Passed a Much Better (and Cheaper) Tax Bill

George Washington law professor and economist Neil H. Buchanan argues that Republicans could have achieved a middle-class tax cut a fraction of the cost of the Republicans' tax bill. Buchanan points out that while the middle class may see a few thousand dollars in the short-term, Republican donors and wealthy corporations will benefit from significantly reduced taxes year after year, indefinitely, causing yet another surge in economic inequality.

The #MeToo Elephant in the Room During the 2018 State of the Union

Marci A. Hamilton, a professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, critiques President Donald Trump for failing to mention the #MeToo movement during his State of the Union address. Hamilton posits that like Dr. Larry Nassar, who was accused of sexually abusing 265 young gymnasts, Trump believes he can indefinitely deflect questions about sexual assault, but she argues that he can do so only because the Republicans and evangelicals are propping him up.

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 is an economist and legal scholar and a Professor of Law at The George... 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

Anita Ramasastry
Anita Ramasastry

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

Lesley Wexler
Lesley Wexler

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