Analysis and Commentary Posted in 2018-08
Archbishop Vigano Calls for the Pope’s Resignation Because the Pope Did Nothing About Sex Abuse by Cardinal Theodore McCarrick—Is He Kidding?

Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, comments critically on a letter by Archbishop Carlo Maria Vigano suggesting that Pope Francis resign because he knew about Cardinal Theodore McCarrick sexually abusing seminarians and did nothing. Hamilton points out that bishops across the United States have been complicit in, or have covered up, countless acts of abuse, and if suddenly now one bishop is calling for everyone who played a part in cover-ups to resign, then it logically follows that the entire Church hierarchy must go.

Why I Do Not Give Trigger Warnings

Cornell law professor Sherry F. Colb describes the recent trend among professors to give “trigger warnings” prior to discussing sensitive materials with students and explains why she has chosen not to provide such warnings to her students. Colb points out that there is no reliable evidence that the warnings work as advertised; rather, they might actually do more harm than good. Colb concludes that an education necessarily means encountering ideas and theories that do not sit well with what one already believes, and students should not have the right to skip days or receive warnings when professors will be talking about unwelcome facts or theories.

Judge Kavanaugh on the Second Amendment

Alan Brownstein, an emeritus law professor at UC Davis Law, comments critically on the sole opinion—a dissent—US Supreme Court nominee Brett Kavanaugh has written about the Second Amendment. Brownstein points out two critical fallacies of Judge Kavanaugh’s position with respect to Second Amendment challenges to gun regulations articulated in that dissenting opinion.

Transitional Justice Lessons Regarding Complex Victims for #MeToo

Illinois law professor Lesley Wexler comments on the recent allegations that Asia Argento—an alleged victim of Harvey Weinstein and vocal #MeToo advocate—committed statutory rape against then-17-year-old Jimmy Bennett. Wexler argues that if the allegations are true and Argento is what is known as a “complex victim,” society should judge Argento neither more harshly, by virtue of the female perpetrator’s violation of traditional gender roles, nor less harshly, simply because she is also a victim, than other complex victims.

Accountable Capitalism and Progressive Prosperity

GW Law professor and economist Neil H. Buchanan explains why the notion of a completely “free” market is nonsensical and argues that Senator Elizabeth Warren’s proposed Accountable Capitalism Act would make capitalism in this country work better. Buchanan points out that there is not a baseline of “no rules” in any society; rather, the government has already simply set certain rules, and those who disproportionately benefit from those rules do not wish them to change.

The Ongoing Salience of Brett Kavanaugh’s Lurid Memo to Ken Starr

Cornell law professor Michael C. Dorf comments on the recently publicized memorandum Brett Kavanaugh wrote in 1998 in the course of his work for Independent Counsel Kenneth Starr, who was conducting the investigation of President Bill Clinton. Dorf points out that the sexually explicit questions Kavanaugh proposed in his memo should have been ruled inadmissible under applicable procedural rules. Inspired by Kavanaugh’s own line of questioning, Dorf concludes by proposing a question that he calls upon a senator to ask Judge Kavanaugh during his nomination hearing.

The Dawning of the Age of Aquarius: European Borders and Asylum Policy

Illinois law professor Lesley Wexler comments on the tenuous situation in Europe as to how the member states will deal with migrants seeking asylum. Wexler describes the background of the controversy, and discusses some of the developments and decisions of individual states that may affect whether Europe can reach a mutually agreed upon solution.

The More Things Change: Donald Trump and the National Security State

Cornell law professor Joseph Margulies describes the ways in which the United States has changed (and remained the same) in its approaches to national security, from President George W. Bush to President Barack Obama to President Donald Trump. Margulies refers to a column he wrote in January 2017 predicting the trajectory of national security under President Trump and points out that many of his predictions have come to pass.

Supporting Religion is Not Always Good for Religious Freedom

UNLV Boyd School of Law professor Leslie C. Griffin explains why broad support of religion is not necessarily good for religious freedom. Specifically, Griffin looks at the position of Judge Brett Kavanaugh on a number of issues from his time on the bench and before, and predicts that as a justice of the US Supreme Court, he is unlikely to ensure everyone’s constitutional rights are protected, but only those of certain groups.

Clergy Sex Abuse in Pennsylvania: No Justice Is Intolerable

Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, calls for reviving expired statutes of limitations so that the child victims documented in the grand jury report on sexual abuse in six Roman Catholic dioceses in Pennsylvania can obtain justice.

Why Elizabeth Warren Is Right That Capitalism Should Be Great

GW Law professor and economist Neil H. Buchanan explains why it is a false equivalence to say (as some journalists have said) that while Republicans have embraced increasingly extremist positions, so too have Democrats. Buchanan argues that true capitalism does not mean lack of rules altogether but simply a collection of rules that promote competition and fairness.

The Sex Trifecta: United Airlines Sued Over Pilot Who Tormented Flight Attendant with Stalking, Revenge Porn, and Harassment

SMU Dedman School of Law professor Joanna L. Grossman comments on a lawsuit recently filed by the EEOC against United Airlines alleging that the airline failed to protect a female flight attendant from sexual harassment by a pilot, in violation of its obligations under federal anti-discrimination law. Grossman argues that while United is entitled to its day in court, it will need compelling evidence to refute the allegations in the EEOC's complaint.

“Casing” Brett Kavanaugh: Why Senate Hearings Can and Should Explore His Views on Past Supreme Court Cases, and at the Very Least His Views on Applying Originalism Where It Would Lead to Progressive Results

Illinois Law dean and professor Vikram David Amar explains why the norm of not asking a Supreme Court nominee about his specific views about specific cases does not make sense and renders the hearing unhelpful in evaluating him as a potential justice. Amar explains the distinction between promising to rule in a certain way and predicting how one might rule, and he debunks some of the reasons often given for the norm of not asking (or answering) these types of questions during the confirmation hearing.

A Law in Austria That Would Have Forced Jews and Muslims to Register for Meat

Cornell law professor Sherry F. Colb explains the controversy over a proposed (but failed) law in Austria that would have regulated the consumption of Kosher and Halal meat in Lower Austria, one of nine states in that country. Colb points out that the law could not have achieved its purported purpose, to promote the welfare of animals, because it would have permitted animals to be slaughtered at all. Rather, it would have required that religious Jews and Muslims register with the government—just as they were required to do under Nazi rule. Colb also observes that while the law invidiously targeted religious Jews and Muslims, no one seemed to consider that the intended targets could avoid the law altogether by becoming vegans.

Time for a New—and Effective—Antitrust

Thomas Greaney and Samuel Miller—both adjunct professors at UC Hastings College of the Law and former attorneys with the Antitrust Division of the US Department of Justice—describe how antitrust law in the United States no longer operates as a legal sword to keep markets competitive, but as a shield to protect large companies from competition. Greaney and Miller call for a renewal of the antitrust enterprise using the best of current economics informed by a realistic appreciation for how markets actually work in the real world.

Why I Didn’t Sign the Kennedy Clerks’ Letter Supporting Confirmation of Brett Kavanaugh

Cornell law professor Michael C. Dorf describes why he chose not to join the 72 other former law clerks of Justice Anthony Kennedy who signed a letter urging the confirmation of Judge Brett Kavanaugh. Dorf explains that the letter is at best misleading, and he argues that while a norm of deference may be preferable, that norm no longer exists, and deference to the president’s choice in this age of extreme polarization would amount to unilateral Democratic disarmament.

Seeking Forward-Looking Justice for #ChurchToo

Illinois law professor Lesley Wexler comments on the #ChurchToo movement, a campaign arising from the viral #MeToo movement, that seeks to raise awareness of sexual assault in the specific context of churches. Wexler describes the similarities between the #MeToo and #ChurchToo movements, as well as some key differences, and explains that any meaningful change must come largely from within these communities due to challenges in church doctrine and philosophy, particularly with evangelical churches.

What We Can Learn About Stare Decisis (Respect for Precedent) from the Last Supreme Court Term

Illinois Law dean and professor Vikram David Amar comments on two decisions from the US Supreme Court’s 2017–18 term in which the Court notably overruled two longstanding constitutional precedents by 5–4 votes. Amar discusses the doctrine of horizontal stare decisis—the Court’s respect for its prior rulings—and focuses on three questions in particular these two cases present.

Trump’s Unilateral Tax Cut Proposal for the Rich is a Political Gift to Democrats

GW Law professor and economist Neil H. Buchanan discusses why the recent announcement by the Trump administration that it is considering a unilateral tax cut for the rich would be a political gift to Democrats. Buchanan describes what the tax cut would do and explains that no one thinks that such legislation could pass, which is why Trump’s people are talking about this executive workaround.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at both Osgoode Hall... 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

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... 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

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

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

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

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