Analysis and Commentary Posted in 2018-11
Assessing the Challenge to Maine’s Ranked-Choice Voting System for Congressional Elections

Illinois law dean and professor Vikram David Amar discusses a legal challenge to Maine’s Ranked-Choice Voting system, filed by a Republican incumbent and three Republican Maine voters following the November 2018 mid-term election. Amar breaks down the crux of the lawsuit while also unpacking the logistics of a rank order voting system like Maine’s. Providing examples of how rank order voting could work in presidential elections, Amar uses illustrations of past election results to highlight how their outcome might have differed under such a voting system while addressing such a system's limitations.

Assessing the Aftermath of President Hillary Clinton’s 2018 Midterm Super-Shellacking

George Washington law professor and economist Neil H. Buchanan revisits his exploration of how vastly different U.S. government and politics might look today if Hillary Clinton had won the presidential election in 2016. In this alternate history, Buchanan points out how Republicans might use extreme tactics to undermine a Democratic president and discusses in what ways the 2018 midterm elections may have had a drastically different outcome.

A Sharp Backward Turn: Department of Education Proposes to Protect Schools, Not Students, in Cases of Sexual Violence

In this second of a two-part series, SMU Dedman School of Law professor Joanna L. Grossman and University of Pittsburgh law professor Deborah L. Brake revisit Title IX and the Department of Education’s proposal to rework how sexual assault and harassment claims are addressed by educational institutions that receive federal funds. Grossman and Brake argue that the Department’s proposed changes will ultimately result in a chilling effect on victims of sexual harassment coming forward and reporting their abuse.

The Department of Education’s Title IX Power Grab

Cornell law professor Michael C. Dorf discusses the Department of Education’s recent Notice of Proposed Rulemaking rules requiring due process protections for those accused of sexual assault or harassment in Title IX cases. Dorf provides a history of Title IX, explaining how the Obama administration issued guidance and instituted reforms to how institutions should approach addressing allegations of such conduct. He acknowledges the Department of Education's shift in policy under the Trump administration that led to its proposed rulemaking issuance, and argues that the Department only has the authority to permit these additional due process protections in most instances, rather than outright require institutions to adhere to them.

Unpacking Cambodia’s Nuremberg Moment

Illinois law professor Lesley Wexler reports on the genocide convictions recently handed down by the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia after trials concluded over crimes committed during the Khmer Rouge regime. Wexler suggests three main takeaways of the rulings, including how the determination of genocide is beneficial to many victims in Cambodia, a reminder about how international legal entities define genocide in the context of this and other human rights atrocities, and a breakdown of the crucial importance of reparations to the Cambodian people.

A Sharp Backward Turn: Department of Education Proposes to Undermine Protections for Students Against Sexual Harassment and Assault

SMU Dedman School of Law professor Joanna L. Grossman and University of Pittsburgh law professor Deborah L. Brake discuss a proposal by the Department of Education that would roll back Obama-era guidance on how claims of sexual assault and harassment are handled by educational institutions that receive federal funding. In part one of this two-part series, Grossman and Brake provide historical background on Title IX, explain regulations implemented during the Obama administration, and touch on how the Trump administration’s rollback may affect student victims of sexual assault and harassment.

The Whistleblowers

Boston University law professor Tamar Frankel unpacks the nuanced layers of whistleblower law. Frankel describes the two main legal sources that deal with whistleblowers in the United States, as well as the process by which a retaliated against whistleblower-employee may seek protection and relief. Frankel also explores the various objections to protecting whistleblowers, noting how problems may arise in the event that an employee whose employment was terminated as a result of whistleblowing activities is reinstated to their former position via the court system.

Why California Cannot Dictate to Whom the Federal Government Sells Federal Lands

Illinois law dean and professor Vikram David Amar explains why a federal district court was correct in ruling that a California law that seeks to discourage the transfer of federal lands to private parties violates principles of federal supremacy under the Constitution. Amar addresses the two arguments California made in defense of the law and points out that under long-standing precedent, states cannot single out federal entities for discriminatory regulatory treatment.

How Bad Will Things Become? Part Seven: Goodbye, New Deal and Great Society?

GW law professor and economist Neil H. Buchanan continues his series of columns considering how much damage the US Supreme Court will inflict after Justice Anthony Kennedy’s retirement. Drawing upon the nation’s experience with a conservative Court during the Lochner era, Buchanan predicts that one of the most consequential results of Republicans’ theft of a Supreme Court seat could be to seriously undermine one or more of Social Security, Medicare, and Medicaid.

Matthew Whitaker and the Constitution’s Appointments Gaps

Cornell law professor Michael C. Dorf considers the legality of President Donald Trump’s firing of US Attorney General Jeff Sessions and designating Matthew Whitaker as Acting Attorney General. Dorf points out that while the Constitution does not expressly address acting officers, Trump’s actions certainly violate the spirit of the law and the Constitution.

Tension Between the Vatican and American Bishops Over Next Steps in the Clergy Sex Abuse Crisis: Could We See the Beginning of a Schism?

Marci A. Hamilton—the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion at the University of Pennsylvania—describes the growing tension between the Vatican and American Bishops with respect to clergy sex abuse and considers whether a schism might be imminent. Hamilton refers to and draws upon a column she wrote in 2002, in which she argued that disagreement between American bishops and the Vatican over the correct path for dealing with clergy sex abuse was foreordained.

Caravans, Kavanaugh, Law and Order, and Moral Injury

Illinois law professor Lesley Wexler discusses the moral injury that results from conflicting fidelity to legal obligations and deeply held moral beliefs. Wexler explains how circumstances giving rise to such conflicts can arise and offers some suggestions of how persons experiencing moral injury might make peace with their value conflict.

Preferences, Norms, and a President Who Can’t Tell the Difference

Cornell law professor Joseph Margulies explains the difference between preferences and norms and argues that when social norms and personal preferences conflict, the norm must win. Margulies laments that President Donald Trump misunderstands the elemental distinction between social norms and personal preferences and accepts the norm as legitimate only to the extent it coincides with his personal views.

The Vatican Plans to Meet in February to Discuss Doing What the Bishops Should Have Done in 2002

Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, comments on Pope Francis’s call for the Catholic bishops to Rome to discuss the clergy sex abuse crisis. Hamilton points out that a similar meeting was called in 2002 after the Boston Globe’s report on sex abuse in the Boston Archdiocese, yet the changes needed in in the Catholic Church in 2002 are still outstanding today in 2018.

What Does #BelieveWomen Mean?

Cornell law professor Sherry F. Colb explains what #BelieveWomen means—that society should stop being presumptively skeptical of women who report sexual misconduct—as well as what the movement does not mean. Colb points out that to believe women does not mean to criminally convict the accused and bypass constitutional safeguards; rather, it means to treat their testimony the same as society and the law treat all other testimony—as presumptively credible. Colb argues that if we make systemic changes to the way we treat women reporting sexual misconduct, starting with initial contact with the police, these changes could translate into more widespread reforms in the courtroom and prosecution of sexual offenders.

The Immediate Gratification Election: Young Voters Can Stop Trump Here and Now

GW law professor and economist Neil H. Buchanan describes the immediate consequences that should persuade all voters, but particularly young voters, to vote in this year’s midterm election. Buchanan points out that the short-term consequences of Republican victories this week will mean the likely shutdown the special counsel’s investigation of Trump’s 2016 campaign, continued vilification of the FBI and intelligence services, environmental ruin, increasing economic inequality, and more.

Part Three on California’s Mandate That Women Be Placed on Corporate Boards: Dormant Commerce Clause and Improper Government Purpose Questions

Illinois law dean Vikram David Amar and professor Jason Mazzone continue their commentary on California’s mandate that women be placed on corporate boards. In this third of a series of columns on the topic, Amar and Mazzone consider whether SB 826 violates the Commerce Clause and whether there are constitutional issues with the state’s use of the law merely to make a political statement.

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