Analysis and Commentary Posted in 2019-09
Is Actual Control Required for an Employer-Employee Relationship? The Case Law Suggests Otherwise

NYU law professor Samuel Estreicher and 3L Sara Spaur argue that the premise of a recent National Labor Relations Board proposed rulemaking—that an employer must exercise direct and immediate control over employees to be a joint employer under the National Labor Relations Act—is not supported by the common law, as is required. Estreicher and Spaur explain that the Restatements of Agency and four key cases support the opposite conclusion, that the test for employer status is not actual control, but simply the right to control employees.

Toxic Religious Liberty: President Trump Takes the Conservative Religious Agenda to the International Stage

Marci A. Hamilton, a professor at the University of Pennsylvania and one of the country’s leading church-state scholars, comments on President Trump's recent visit speech at the United Nations Event on Religious Freedom that promotes his administration's brand of religious liberty. Hamilton argues that Trump is leading the nation toward toxic religious liberty that our nations framers—and particularly James Madison—warned against and attempted to prevent.

Could Biden’s Promise to Return to ‘Normal’ End Up Being Even Worse for the Country?

University of Florida Levin College of Law professor and economist Neil H. Buchanan argues that Biden’s campaign promise of a return to “normal” if he is elected President could result in the country’s situation becoming even worse than it currently is. Buchanan suggests that if Biden wins the nomination and the presidency and he is not seen as a serious fighter, he will lose a generation of voters forever.

How to Detect a Liar

Cornell law professor Sherry F. Colb responds to a colleague’s claim (yet unconfirmed) that jurors have an easier time distinguishing truth from falsehood when they read a transcript of testimony than when they listen to and watch the testimony directly. Assuming the claim is true, Colb describes why that claim might at first be surprising and also why, on further consideration, it makes sense. She proposes that if the claim is true, we ought perhaps to consider whether the distractors inherent in live testimony should excludable under the Federal Rules of Evidence.

Whatever Andrew Wheeler’s True Motives, He Deserves Praise for Moving EPA Away from Animal Testing

Cornell law professor Michael C. Dorf comments on a memorandum recently issued by Andrew Wheeler, the administrator of the federal Environmental Protection Agency (EPA), that announced directives to substantially reduce government funding for and mandating of animal testing of chemicals to which humans might be exposed. Dorf acknowledges that Wheeler’s motivation might be the deregulation of industries that produce chemical products (a legitimate concern expressed by some public health and environmental groups), but Dorf argues that the policy is win-win-win: better for the animals spared experimentation; less costly to the public fisc; and better for human health.

Access to Justice for College Sex Abuse and Assault Victims

Marci A. Hamilton, professor at the University of Pennsylvania and CEO of CHILD USA, explains why statute of limitations (SOL) reform for sex abuse and assault victims is necessary not only for children, but also for college students. Hamilton describes the nationwide epidemic of sexual abuse on college and university campuses and argues that SOL reform is the best way to ensure these victims have access to justice.

North Carolina Three-Judge Panel Smartly Uses the Room the U.S. Supreme Court in Rucho v. Common Cause Left for State Courts to Enforce State Constitutions

Illinois law dean and professor Vikram David Amar comments on a recent decision by a panel of state-court judges in North Carolina striking down partisan gerrymandering schemes as violating that state’s constitution. Amar had argued after the U.S. Supreme Court’s decision in Rucho v. Common Cause that state courts would have to address partisan gerrymandering on “independent and adequate state-law grounds” (rather than on federal constitutional grounds), which is exactly what the North Carolina court did.

Explaining Why Dairy Won’t Share the Word “Milk”

Cornell law professor Sherry F. Colb comments on a battle over what products may carry the label “milk.” Colb proposes that the dairy industry opposes plant-based milks (such as soy milk or almond milk) from identifying their products using the word “milk” not because of any real risk of confusing consumers or market harm, but as a show of dominance in response to exposed vulnerability.

When Friends Preside Over Weddings: Tennessee Fights the Online Ministers

SMU Dedman School of Law professor Joanna L. Grossman comments on a law recently passed (and challenged) in Tennessee that purports to prohibit ministers ordained online from presiding over marriages in that state. Grossman explains why the Tennessee legislature passed the law and why it is being challenged, and she points out that based on the judge’s questions during the proceedings, the state may ultimately have to show at trial how the law is rationally related to its legitimate regulation of entry into marriage—regardless of whether it burdens the free exercise of religion.

Can the FDA Regulate Vaping as an Ethical Alternative to Tobacco Cigarettes?

Clinical bioethicist Charles E. Binkley and attorney David S. Kemp consider whether—and how—the Food and Drug Administration might reasonably regulate vaping devices, also known as electronic nicotine delivery system (ENDS), so that they can serve as an ethical alternative to combustible tobacco products. Specifically, Binkley and Kemp and call for further longitudinal data on the risks and benefits of ENDS and propose certain contingencies that must be in place before ENDS can serve as a viable replacement for conventional combustible tobacco products.

Free College: This Country’s Best Investment in Its Own Future

University of Florida Levin College of Law professor and economist Neil H. Buchanan explains why providing free college tuition for all students is the best investment the United States can make in its own future. Buchanan addresses several of the most common arguments against free college tuition, arguing that they purely moralistic objections that do not hold up to scrutiny.

Three Observations About the (Limited) Impact of the Tenth Circuit’s Recent Decision (in Baca v. Colorado Department of State) Concerning “Faithless” Electors in the Electoral College

Illinois law dean and professor Vikram David Amar offers three key observations about a recent decision by the U.S. Court of Appeals for the Tenth Circuit concerning “faithless” electors in the Electoral College. Specifically, Amar explains why the potential impact of the decision on the National Popular Vote movement is most likely limited, not extensive.

Could a Faithless Elector Ruling Doom an Attempt to Circumvent the Electoral College?

Cornell law professor Michael C. Dorf considers whether a possible Supreme Court ruling in a “faithless elector” case from the U.S. Court of Appeals for the Tenth Circuit could end the National Popular Vote (NPV) movement, which attempts to circumvent the Electoral College by interstate compact. Dorf provides a short background of NPV and the Tenth Circuit’s decision, and he explains why a decision by the Court decides to affirm the Tenth Circuit’s reasoning would threaten NPV.

Thinking About the Brain

UNLV Boyd School of Law professor Leslie C. Griffin responds to Professor Patricia Churchland’s book, Conscience: The Origins of Moral Intuition, offering contrasting views on morality. While Griffin recommends reading the book, she offers a differing view from that of the author, arguing that the physical brain can and does give rise to reason-centered moral rules to ethics.

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