Analysis and Commentary Posted in 2016-01

The Moral Clarity of the Pro-Life Position in Frozen Embryo Disputes

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Cornell University law professor Sherry Colb discusses the recent trend of anti-abortion groups joining custody battles over frozen embryos on the side of the parent that seeks implantation. Colb argues that this position is consistent with their deeply held view that life begins at conception—much more so than their more usual stance in battles over abortion regulation.

Have Democrats Rediscovered Unions Too Late?

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Neil H. Buchanan, a law professor and economist at George Washington University, comments on the recent trend of mainstream liberal opinion makers to express public support for labor unions. Buchanan explains the tumultuous history of liberals and labor unions, and he wonders whether this overdue support is too little too late, in light of a case currently before the U.S. Supreme Court.

How Un-rule-y is the First Amendment?

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Cornell University law professor Michael Dorf considers an issue on which the U.S. Supreme Court recently heard oral argument: whether the First Amendment protects a government employee from adverse action based on the government’s mistaken belief that the employee was engaged in speech or association. Dorf highlights the nuances of the case and whether there is a meaningful difference between rule-guided conduct and reason-guided conduct.

Republicans Should Learn From Flint That Governing on the Cheap Costs Too Much

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George Washington law professor and economist Neil H. Buchanan discusses a set of issues raised by an op-ed on the public health emergency in Flint, Michigan, written by one of former president George W. Bush’s speechwriters. Buchanan argues that one of the takeaway lessons is that the government—and particularly the federal government—plays an essential role in responding adequately when disaster strikes.

The Bottoson Effect

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Cornell University law professor Joseph Margulies discusses the problem of states executing death row inmates under laws subsequently found to be unconstitutional, as has happened in Texas and in Florida, and likely in many other cases. Margulies laments that the United States continues to experiment with capital punishment when experience demonstrates the procedures for imposing this irreversible sentence are rife with problems.

Heading for The Dark Side of Journalism

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Former counsel to the president John W. Dean continues his discussion of the controversial investigative report by Al Jazeera Investigates that implicates several elite American athletes of illegal doping. Dean discusses the two lawsuits filed in federal court in the District of Columbia and the possible role an anti-SLAPP statute might play in those lawsuits.

Bill Cosby and the Rule Against Character Evidence

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Cornell University law professor Sherry Colb discusses the role of Pennsylvania Rule of Evidence 404 in the criminal trial against Bill Cosby. Colb argues that the rule against character evidence serves a specific purpose in “whodunit” cases (where the perpetrator is unknown) but that it may serve a different purpose in “what was done” cases, such as the present case against Cosby.

The Supreme Court Could Hear a Third License Plate Case

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Cornell University law professor Michael Dorf comments on a case involving free speech on license plates that may reach the U.S. Supreme Court in the near future. As Dorf points out, if the Court agrees to hear the case, it will be the third major license plate case it has decided. Dorf argues that the appeals court in the present case most likely erred in failing to protect the plaintiff’s right against compelled speech, but a broadly written Supreme Court opinion reversing the lower court could potentially undermine anti-discrimination law.

Insight From Oregon

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Cornell University law professor Joseph Margulies explains how the peaceful protesters at a federal facility in Oregon could advance the cause for criminal justice reform. Margulies reminds us that that the triggering event for the protest was an order by a federal judge that two ranchers serve a prison sentence mandated by federal statute that was far longer than the judge considered fair.

Act One of “The Dark Side”?

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In this first of a series of columns, former counsel to the president John W. Dean comments on the Al Jazeera sports doping exposé and the two defamation actions filed this week by Ryan Howard and Ryan Zimmerman. Dean anticipates that these lawsuits might develop into a lengthy legal battle that puts American defamation law to the test.

Sex Abuse Statute of Limitations Reform 2015 Year in Review: The Good, the Bad, and the Ugly

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Cardozo law professor Marci Hamilton discusses some of the changes 2015 saw with respect to reform of sex abuse statutes of limitations. Hamilton praises such progress as the sweeping inquiries undertaken by Australia’s Royal Commission into Institutional Responses to Child Sexual Abuse and the release of the award-winning motion picture, Spotlight, which chronicles the Boston Globe journalists’ path to breaking the story of priest abuse in the Catholic church.

More Than Kin: Pennsylvania Supreme Court Rules That Stepfather Granted Custody Rights Also Owes Child Support

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Hofstra University law professor Joanna Grossman discusses a case in which the Pennsylvania Supreme Court held that a stepfather who won shared custody of his former stepchildren must also pay child support. Grossman points out that this unusual ruling serves as a warning for parents and stepparents about the consequences of their choices about childrearing during marriage.

Meet our Columnists

Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Amar served as the Senior Assoc... more

Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington University. He teaches tax law and tax policy, and he has taught contract law, law and economics, and... more

Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published a... more

John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Before becoming White House counsel at age thirty-one, he was the chief minority counsel to the Judiciar... more

Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and four books on constitutional la... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law.  She is an expert in sex discrimination law. Her most recent book,  more

Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Practice and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion in the... more

David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from Rice University and his J.D. from the University of California, Berkeley, School of Law (Boalt Hall)... more

Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in more

Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of Law in Seattle, where she also directs the graduate program on Sustainable International Developmen... more

Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at Chapman University, Fowler School of Law. He joined the faculty in 2008. Before that, he was Univ... more