Analysis and Commentary Posted in 2019-03

Clarence Thomas Speaks—And Arguably Contradicts His Longstanding Views

Cornell law professor Michael C. Dorf argues that the question Justice Clarence Thomas asked during oral argument in Flowers v. Mississippi potentially reflects a view inconsistent with one he and other conservative justices have strongly endorsed in the past. Dorf points out that Justice Thomas’s question, regarding the race of jurors struck by the defense counsel, suggests that discrimination against one group can cancel out discrimination against another, which is directly at odds with his expressed view that the Constitution forbids all government consideration of race.

Supreme Court Takes a Case About Jury Unanimity

Cornell law professor Sherry F. Colb comments on a case in which the US Supreme Court recently granted review, Ramos v. Louisiana, which presents the question whether states may permit conviction of an accused criminal on less than a unanimous jury voting “guilty.” Colb explains the doctrine of incorporation—by which most provisions of the Bill of Rights are held to be applicable as against the states as well as the federal government through the Fourteenth Amendment—and explains the possible significance of a unanimous jury verdict.

Wells Fargo Bank and the Glass-Steagall Act

BU Law emerita professor Tamar Frankel comments on the renewed importance of the repealed Glass-Steagall Act which Congress passed after the failure of the financial system in the 1920s. Frankel argues that the alarming path of Wells Fargo Bank supports imposing regulations on banks similar to those levied by the Glass-Steagall Act.

Untethered Textualism in the Seventh Circuit’s Kleber Ruling on Age Bias in Hiring

NYU law professor Samuel Estreicher comments on a recent decision by the US Court of Appeals for the Seventh Circuit that purports to interpret the Age Discrimination in Employment Act (ADEA) based on a textualist approach. Estreicher argues that the interpretation erroneously ignores the clear purpose of ADEA and constitutes a highly abstract interpretive venture that departs significantly from the legislators’ manifest intent.

Should Originalists Enforce Rights More Strictly Against the States Than Against the Federal Government?

Cornell law professor Michael C. Dorf points out that, taken to its logical conclusion, the originalism philosophy espoused by US Supreme Court Justice Clarence Thomas should mean that the Constitution places stricter limits on states than it does on the federal government. As Dorf explains, the “original meaning” of the Bill of Rights as it applies to the states should refer to its meaning in 1868 (when the Fourteenth Amendment was adopted) rather than 1791 (when the Bill of Rights itself was adopted) because the Fourteenth Amendment makes the Bill of Rights applicable to the states. Dorf describes several key differences between the understanding of the Bill of Rights in 1868 and 1791 and considers whether one of the originalist justices will follow where the logic of their philosophy leads.

Why Do So Many Americans Continue to Support Donald Trump? In a Word: Authoritarianism

John W. Dean, former White House counsel under President Nixon, and Bob Altemeyer, a retired professor of psychology at the University of Manitoba, explain the social science that explains not only Donald Trump and his brand of leadership but also his loyal followers who would continue to support him even if he shot someone on 5th Avenue. Dean and Altemeyer argue that the dangers they pose are far graver than those presented by the Nixon presidency.

Colorado Is Poised to Join the National Popular Vote Interstate Compact and Alter the Dynamics of the Movement

Illinois law dean and professor Vikram David Amar comments on the most recent development for the election reform movement known as the National Popular Vote (“NPV”) interstate compact plan—its imminent adoption by Colorado. Amar describes three reasons that Colorado’s adoption of the plan is such a significant step for the movement.

A Police Shooting and the Power of Narratives

Cornell law professor Sherry F. Colb describes two different narrative lenses through which one could perceive (and interpret) the shooting of an unarmed African American man by a white police officer: the “Blue Lives Matter” narrative and the “Black Lives Matter” narrative. Colb explains how such narratives shape public reactions to such incidents, and she calls upon everyone to pay attention to the facts and feel less wedded to our narratives so that we may be better able to deal with and sometimes even prevent future hardship.

Separated at Birth: Federal Court Considers Whether Twins Can Be from Different Countries

SMU Dedman School of Law professor Joanna L. Grossman comments or a recent controversy arising from immigration rules that place an undue emphasis on biology in determining when a US-citizen-parent can transmit citizenship to a child born abroad. Grossman calls upon the US State Department to revise its Foreign Affairs Manual to align with the statutory scheme it purports to apply.

The Purest False Equivalence of All: By Attacking Democrats on Substance, NeverTrumpers Destroy the Process

GW law professor and economist Neil H. Buchanan argues that pundits on the anti-Trump right erroneously conflate two different categories of objections, substance and process. Buchanan points out that by attacking the substantive policies supported by Democrats and not distinguishing substance from process, Republicans risk weakening the Constitution’s political processes.

How Much Deference Will be Given to Affirmative Action Plans Fashioned by Students, and to Affirmative Action Plans More Generally? Part Three in a Series on the Challenge to Harvard Law Review’s Diversity Program

In this third and final column in a series about the legal challenge to Harvard Law Review’s diversity program, Illinois law dean Vikram David Amar and professor Jason Mazzone consider how much deference courts should give to law reviews when they assert diversity as a basis for considering race and gender. Amar and Mazzone anticipate that even in the unlikely event that this lawsuit reaches the Supreme Court, any fundamental changes to existing affirmative action doctrine would likely require the Court to weigh in on multiple cases over an extended period.

Is Trump Even Worse Than Brexit? Need We Ask?

GW law professor and economist Neil H. Buchanan responds to a Washington Post guest column by Ian Birrell—a speechwriter for the United Kingdom’s former prime minister David Cameron—in which Birrell argues that Brexit is worse than Trump. Buchanan makes the case that Trump’s negative legacy is likely to be both worse and longer-lasting than Brexit’s.

Did a Federal District Judge Defy the Supreme Court in Invalidating Male-Only Draft?

Cornell law professor Michael C. Dorf comments on a recent decision by a federal district court judge in Texas declaring unconstitutional the US’s male-only military draft. Dorf points out that the judge’s decision defies the Supreme Court’s admonition that federal court judges should follow even outdated Supreme Court precedents, “leaving to th[at] Court the prerogative of overruling its own decisions” and considers whether there is any other reason that admonition should not apply.

#MeToo: Counting the Collective Harm of Missing Women’s Work

In light of recent revelations about Ryan Adams, a powerful musician and music producer, Illinois law professors Robin B. Kar and Lesley Wexler discuss the collective harm the scourge of sexual harassment inflicts on society, depriving it of countless and invaluable contributions. Kar and Wexler point out that research demonstrates that experiences of sexual harassment cause not only individual harms to women (such as decreases in mental and physical well-being) but also organizational withdrawal, decreases in organizational commitment, and decreases in productivity and job performance. The exact losses due to this withdrawal have yet to be measured, but evidence suggests the magnitude is enormous.

President Trump’s Emergency Wall Declaration: A Guide to the Legal Issues

NYU law professor Samuel Estreicher and JD candidate David Moosmann comment on some of the legal issues presented by President Trump’s declaration of a national emergency to secure funds for a border wall along the southern US border. Estreicher and Moosmann argue that there is a need for legislation tightening up the standards for presidential declarations of a national emergency, and for Congress to review and consolidate the seemingly vast array of statutes that authorize emergency measures on a presidential declaration.

Robert Kraft Is the Canary in the Coal Mine: Conditions Have Changed for the Worse for Powerful Men Using Trafficked Girls and Women for Sex

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—discusses the significance of Patriots owner Robert Kraft being charged with soliciting a prostitute at a strip mall in Florida, after a sting exposed a sex trafficking scheme there. Hamilton points out the differences between the handling of Kraft and the mishandling of Palm Beach sex trafficker Jeffrey Epstein and suggests Kraft may be the “canary in the coal mine” indicating a shift of power from perpetrators to their victims.

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