Analysis and Commentary Posted in 2019-02
What Should the Court Do With That Cross?

UNLV Boyd School of Law professor Leslie C. Griffin comments on a case heard by the US Supreme Court this week raising questions about the Establishment Clause. Griffin summarizes some of the main points of each of the advocates in the case and argues that the Court should provide a clearer standard—a straightforward rule that one religion cannot be preferred to another.

Meat and Marriage: The Menace of Changing Definitions

Cornell law professor Sherry F. Colb considers the significance in policing “original” meanings of words, such as “meat” and “marriage.” She point out that in both contexts, arguments over the meaning of the word are rooted in strong feelings about status and do not truly reflect a concern with a risk of confusion.

Holy Dictum: Federal Judge Rejects Protection Against Transgender Discrimination in “Elegant Aside”

SMU Dedman School of Law professors Joanna L. Grossman and Grant M. Hayden comment on a concurring opinion by a Fifth Circuit judge that goes well out of its way to make illogical arguments regarding transgender discrimination under Title VII. Grossman and Hayden briefly describe the history of courts’ interpretation of Title VII and explain, point by point, why Judge James Ho’s writing is merely an “op-ed piece masquerading as a concurring opinion.”

The Democracy Conundrum: What If Large Numbers of Voters Are Racists? (The Trump/Brexit Tragedies)

GW law professor and economist Neil H. Buchanan looks at recent electoral developments in the United Kingdom and the United States (Brexit and Trump’s election) and argues that the justification that Leave/Trump voters “voted their pocketbooks and fears” is no longer supportable. Buchanan points out that democracy does not require that one side excuse the choices of voters who, in the face of overwhelming evidence, voted the wrong way.

Compare and Contrast: The Vatican’s Gathering of Bishops in Rome with the Epstein Court on Justice for Child Sex Abuse Victims

Marci A. Hamliton—professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania and founder, CEO, and Academic Director of CHILD USA—describes the similarities and differences between the Vatican’s gathering of bishops to address clergy sex abuse scandals and the federal judge’s ruling in the case of Jeffrey Epstein over sex trafficking scandals. Hamilton points out that decision in the Epstein case is a victory for child sex abuse victims, while the approach of the Catholic Church is already misguided.

How do Grutter and Fisher Bear on the Question Whether Law Reviews Can Take Race and Gender Into Account in Selecting Members (and Also Articles)? Part Two in a Series

Illinois law dean Vikram David Amar and professor Jason Mazzone continue their discussion of whether law reviews may take race and gender into account in selecting members and articles. In this second of a three-part series of columns, Amar and Mazzone analyze some of the key substantive arguments made by the plaintiff in the lawsuit.

Republicans Will Smear Democrats No Matter What “The Left” Does

GW law professor and economist Neil H. Buchanan argues that Democrats should embrace progressive policies rather than shy away from them in an effort to avoid being described as “extreme left” by Republicans. Buchanan points out that many of Democrats’ progressive policies are hugely popular, and Republicans will vilify them regardless.

The Heckler’s Veto vs. The Podium Pullback: Why Public Universities Should be Given Room to Craft Data-Informed and Viewpoint-Neutral Policies to Govern Speaker Events

Illinois law dean and professor Vikram David Amar comments on a challenge presently facing public (and many private) universities: how best to handle student organizations’ invitations of contentious speakers to speak on campus. Amar points out the legal limitations to some proposed solutions and argues that the law should adapt to a changing world to allow universities more options to craft data-informed and viewpoint-neutral policies.

Republicans Will Run an Entire Campaign Based on an Incorrectly Defined Word (Socialism) Because They Have Nothing Else

GW law professor and economist Neil H. Buchanan argues that while rhetoric and symbolism have always played an important role in politics, today’s Republicans are running an entire campaign on an incorrect definition of “socialism.” Buchanan points out that many people are discovering—to the chagrin of Republicans—that socialism means progressive taxation, increasing workers’ pay, and reducing the costs of higher education, rather than collectivist worker camps, and that it might actually be a good thing.

Complicity in Trump’s Bogus Emergency

Cornell law professor Michael C. Dorf comments on President Trump’s declaration of a national emergency after Congress denied him most of the funding he requested for a border wall. Dorf describes the legal framework that allows the president to do so even in the absence of an emergency and points out that combined actions of Congress, the courts, and the People have created this situation.

With Ink Not Yet Dry on the New York Child Victims Act, There Is Already Reason to Be Concerned About the Victims in this Process

Marci A. Hamilton—professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania and founder, CEO, and Academic Director of CHILD USA—comments on New York’s recent passage of the New York Child Victims Act and the troubling class action lawsuit filed purportedly on behalf of victims on the same day. Hamilton explains why class action lawsuits are inconsistent with child sex abuse victim empowerment and healing, pointing out that such lawsuits are designed for circumstances where the victims have identical or nearly identical harm, which is not the case with child sex abuse.

A Right to Abort a Full-Term “Fetus”?

Cornell law professor Sherry F. Colb comments on an abortion bill that is currently under consideration in Virginia, arguing that the bill would excessively liberalize abortion laws in that state. Colb, who is pro-choice, points out that pro-choice theorists and activists should discern exactly why they believe in the right to terminate an unwanted pregnancy and draw—rather than resist—rational distinctions between a ball of cells and a newborn baby.

Can Law Reviews Take Race and Gender Into Account in Selecting Members (and Also Articles)? Part One in a Series

In this first of a series of columns, Illinois law dean Vikram David Amar and professor Jason Mazzone comment on a legal challenge to the practice by Harvard Law Review of taking into consideration race, gender, and other demographic factors when making membership decisions. Amar and Mazzone highlight some of the hurdles the challenger faces in establishing standing— the right to have the dispute heard in a federal forum.

Justifying External Support for Regime Change in Venezuela

Cornell law professor Michael C. Dorf comments on the recognition by the United States and some other constitutional democracies of Juan Guaidó as Venezuela’s legitimate leader pending new elections. Dorf points out that many countries suffer under incompetent, corrupt, and authoritarian leaders just as Venezuela did under Nicolás Maduro, yet constitutional democracies typically do not rally behind the ouster of those leaders. What makes Maduro’s case different?

Not an Administrative Law Bang but a Whimper

NYU law professor Samuel Estreicher comments on Kisor v. Wilkie, a case currently before the US Supreme Court that raises the narrow question whether a court should accept an interpretation by the Department of Veterans Affairs of its own technical regulation but also gets at a broader question of judicial deference more generally. Estreicher argues that when agencies interpret their own regulations, courts should afford those interpretations only Skidmore respect, not the higher Chevron-style deference that has come to be commonplace.

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