Analysis and Commentary Posted in 2021-01
Impeaching a Former President Is Plainly Constitutional

UF Levin College of Law professor and economist Neil H. Buchanan argues that the text of the Constitution makes clear that Congress has the power to impeach and convict Donald Trump, even though he is no longer President. Buchanan describes the unambiguous textual support for this conclusion, which Buchanan (and others) argue is also amply supported by the Constitution’s purpose, structure, and other interpretive approaches.

Transitional Justice and Inauguration Poems

Illinois law professor Lesley M. Wexler describes how Amanda Gorman’s The Hill We Climb and Jericho Brown’s Inaugural,’ an Original Poem—as two inaugural poems—fit within the call of transitional justice. Professor Wexler explains how, read together, the two poems provide a roadmap of the transitional justice terrain the government may choose to tread.

Tenth Circuit Holds That Contract Formation Issues Are for the Court, Not the Arbitrator, Notwithstanding an Express Delegation Clause

NYU law professor Samuel Estreicher discusses a recent decision by the Tenth Circuit in Fedor v. United Healthcare, in which the court clarified that a court must first find agreement to arbitrate before the severability doctrine comes into play. Professor Estreicher explains the severability doctrine, describes the facts giving rise to the case, and the Tenth Circuit’s reasoning behind its conclusion.

Should the Law Prohibit Anti-Fat Discrimination?

Cornell law professor Sherry F. Colb explores the problem of fat discrimination and considers what a law of anti-fat discrimination might look like, and why it could be important. Professor Colb explores the similarities and differences between legally protected characteristics and fatness and expresses optimism that a change in law could persuade some individuals to recognize fat people for the colleagues, students, friends, partners, and neighbors that they are.

Members-Only Unionism is Lawful and Can Make Sense

NYU law professor Samuel Estreicher responds to an op-ed by Ron Holland criticizing the recent announcement of a members-only union of 300 Google workers. Professor Estreicher points out several errors and assumptions in Mr. Holland’s piece, and he argues that, in sum, there is no good public policy case for barring or restricting members-only unionism.

Trump’s Coup Failed, But He Gave Republicans a Road Map to Ending Constitutional Democracy…Soon

UF Levin College of Law professor and economist Neil H. Buchanan points out that although Trump’s coup failed, Republicans now have in front of them all of the building blocks necessary to impose one-party rule in the United States within the next four years. In this first of a series of columns, Professor Buchanan describes but a few of the available options Republicans have to rig elections in their favor.

Obstacles to the Biden Agenda Include Americans’ Belief in Nonsense

Cornell law professor Michael C. Dorf comments on the willingness of Americans to believe lies and misinformation, pointing to confirmation bias and social media bubbles as playing key roles in this problem. Professor Dorf argues that we must render Trumpism beyond the pale, in part by shunning those who spread lies and minimizing opportunities for them to spread dangerous misinformation and incite riots.

Apology as Accountability in Transitional Justice

Illinois law professor Lesley M. Wexler discusses the possibility of and criteria for amend making, amid calls for national unity and moving forward after the violence at the Capitol on January 6. Professor Wexler focuses on Oklahoma Senator James Lankford’s recent apology after his call for an electoral commission, applauding Senator Lankford for his willingness to apologize but pointing out that these actions alone do not undertake much of the hard work demanded by restorative and transitional justice.

Why Georgia Should Take the Lead in Holding President Trump Accountable for His Crimes Against Democracy

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—and history teacher John deVille argue that George should take the lead in holding Donald Trump accountable for crimes against democracy. Professor Sarat and Mr. deVille point out that a criminal trial with Trump in the dock would be both “a galvanizing national seminar on democratic values” and “a chance for officers of the court to question the President in a forum where he could neither obfuscate nor intimidate.”

Trump’s Pardons Can and Must Be Challenged and Nullified

UF Levin College of Law professor and economist Neil H. Buchanan argues that the President’s pardon power is not absolute or unreviewable, despite what many have suggested. Professor Buchanan observes that this conventional misreading of the clause is agrammatical because it treats an ambiguous provision as if it were unambiguous, and he points out that even self-styled textualists do not construct comparable provisions of the Constitution so absolutely.

Double Jeopardy: Answers to Six Questions About Donald Trump’s Second Impeachment Trial

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, addresses six key questions about Donald Trump’s second impeachment trial. Falvy provides clear and supported answers to frequently asked questions such as whether the Senate can act to remove Trump from the presidency, whether it can hold a trial after his term expires, who should preside, and whether he will lose his presidential perks.

Transitional Justice, Anti-Democratic Riots, and Private Responses

In light of the events of January 6, Illinois law professors Lesley M. Wexler and Colleen Murphy identify some preliminary questions raised by private actors sanctioning other private actors for the latter’s potentially criminal activities at the Capitol. In particular, Professors Wexler and Murphy explain why the event gives rise to transitional justice concerns, and through the transitional justice lens, they assess the advantages and disadvantages of private action in this context.

Hawley’s Excuse for a Coup: Dangerous Nonsense in Search of a Legal Fig Leaf

UF Levin College of Law professor and economist Neil H. Buchanan challenges Senator Josh Hawley’s proffered reason that the Senate should have heard challenges to the counting of electoral votes. Professor Buchanan argues that, no matter how he tries to justify his approach, he was willing to violate the U.S. Constitution to overthrow the duly elected incoming President and to further his own cynical plans to run for President in a future election.

The Invisible Man and His Visible Victim

Cornell law professor Sherry F. Colb comments on a movie some have described as one of the best of 2020, The Invisible Man, and describes how the story in the movie offers possibilities for envisioning accountability for domestic violence and other crimes that often receive dismissive treatment under the heading of “he said/she said.” Professor Colb briefly describes the plot of the movie (including spoilers), and explains why the movie is so revelatory.

Remembering Deborah Rhode: Co-Author, Friend, and Feminist Co-Conspirator

SMU Dedman School of Law professor Joanna L. Grossman, Duke Law professor Katharine T. Bartlett, and Pitt Law professor Deborah L. Brake reflect on the life and achievements of Professor Deborah Rhode, who recently passed away. Professors Grossman, Bartlett, and Brake describe Professor Rhode’s countless contributions to the legal academy and to the fight for gender equity.

The Steps the Biden Administration Needs to Take to Rescue the U.S. from the Precipice of Theocracy

Marci A. Hamilton, a professor at the University of Pennsylvania and one of the country’s leading church-state scholars, describes the steps the Biden administration needs to take to bring the country back from the precipice of becoming a theocracy. Professor Hamilton highlights action items with respect to the Department of Justice, the Religious Freedom Restoration Act (RFRA) and the First Amendment, tax exemptions and accountability, and governmental financial support for organizations engaged in discriminatory practices.

One More for the Road: Why Congress Must Impeach Donald Trump (Again)

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, makes the case for impeaching Donald Trump again, after the failed insurrection of January 6. Falvy describes three possible ways to disempower Trump from undermining democracy in our nation and explains why immediate impeachment by the House and removal by the Senate is the most appropriate course of action.

To Our Elected Representatives in Congress: The Framers Wouldn’t Be Surprised a President Attempted a Coup, Just Disappointed You Didn’t Stop It Sooner

Marci A. Hamilton, a professor at the University of Pennsylvania and one of the country’s leading church-state scholars, pens an open letter to members of Congress, describing Wednesday’s insurrection by pro-Trump extremists as predicable (even predicted) to the Framers and calling upon Congress to impeach and convict the President. Professor Hamilton argues that Donald Trump is the embodiment of what the Framers expected from rulers: self-centered corruption, greed, and no care for the common good.

NYC’s Mandatory Collective Bargaining Agreements in Fast-Food Shops?

NYU law professor Samuel Estreicher and adjunct professor Zachary Fasman comment on two bills passed by the New York City Council that would mandate detailed and extensive labor protections for fast-food workers in New York City. Professors Estreicher and Fasman praise the intent behind the laws but explain why the City Council is not the place where binding agreements governing private workplaces in the City should be enacted.

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

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

MARCI A. HAMILTON is the Fels Institute of Government 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

Austin Sarat
Austin Sarat

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

Lesley Wexler
Lesley Wexler

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